Somerlott v. McNeilus Truck and Manufacturing, Inc.

Filing 111

ORDER denying Defendant's 78 Motion to Exclude Testimony of Plaintiff's Expert John R. Cary. Signed by Judge Marsha J. Pechman. (PM)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

8
9
10

BENJAMIN SOMERLOTT,
Plaintiff,

11
12
13

v.

CASE NO. C16-789-MJP
ORDER DENYING DEFENDANT’S
MOTION TO EXCLUDE
TESTIMONY OF PLAINTIFF’S
EXPERT JOHN R. CARY

MCNEILUS TRUCK AND
MANUFACTURING INC,

14
Defendant.
15
16

THIS MATTER comes before the Court on Defendant’s Motion to Exclude Testimony of

17

Plaintiff’s Expert John R. Cary (Dkt. No. 78). The Court has reviewed the Motion, the

18

Response (Dkt. Nos. 92), the Reply (Dkt. No. 100) and all related papers.

19
20

Background
This is a products liability case brought by Plaintiff Benjamin Somerlott against

21

Defendant McNeilus Truck and Manufacturing, Inc. (Dkt. No. 3.) Plaintiff was injured while

22

operating a McNeilus side-loading commercial refuse truck manufactured and sold by

23

Defendant (the “Side Loader”). (Id.) The Court is familiar with the remaining facts of the

24

case, and will not repeat them here.

ORDER DENYING MOTION TO EXCLUDE - 1

1

Plaintiff retained Mr. John R. Cary, a vocational expert with a Masters in Rehabilitation

2

Counseling and certifications in Rehabilitation and Vocational Counseling and Disability

3

Management. (See Dkt. No. 79-2 at 2.) Mr. Cary submitted a detailed expert report discussing

4

the extent of Plaintiff’s injury and impairment and recommendations for vocational

5

rehabilitation. (See Dkt. No. 79-3.) Dr. Cary’s expert report included estimates of earning

6

capacity as a result of the injury. (Id. at 15-16.) Defendant takes issue with Mr. Cary’s

7

qualifications, and moves the Court to exclude these estimates under Rule 702. (See Dkt. No.

8

78.) In particular, Defendant contends that because Mr. Cary is not an economist by training,

9

he is incapable of performing basic mathematical calculations. (Id. at 5-9.)

10

Discussion

11

The Court finds that Mr. Cary’s calculations and his estimates of Plaintiff’s earning

12

capacity are well within the range of acceptable testimony for an expert with Mr. Cary’s

13

qualifications. Mr. Cary’s estimates were produced using basic arithmetic, and contrary to

14

Defendant’s claim, do not constitute “economic opinions.” (See id. at 5.) Mr. Cary does not

15

need “any graduate level education or professional experience in the field of economics” to

16

perform these calculations. (Id.) Such estimates are routinely included in testimony by

17

vocational experts and widely considered to be within the scope of their expertise, and indeed,

18

the Court notes that Defendant’s vocational expert performed the same calculations. (See Dkt.

19

No. 93-1.) Both lack of particularized expertise and the factual basis for an expert’s opinion go

20

to the credibility of testimony, not its admissibility. See United States v. Little, 753 F.2d 1420,

21

1445 (9th Cir. 1984) (citation omitted); Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d

22

998, 1017 n.14 (9th Cir. 2004). Any concerns as to the adequacy of Mr. Cary’s calculations

23

and his resulting estimates can be addressed through cross-examination, presentation of

24

ORDER DENYING MOTION TO EXCLUDE - 2

1

contrary evidence, and jury instructions on the proper method for calculating economic

2

damages.

3

Therefore, the Court DENIES Defendant’s Motion to Exclude.

4
5
6

Conclusion
Because Mr. Cary is qualified to provide estimates of Plaintiff’s earning potential in his
role as a vocational expert, the Court DENIES Defendant’s Motion to Exclude.

7
8

The clerk is ordered to provide copies of this order to all counsel.

9

Dated December 18, 2017.

11

A

12

Marsha J. Pechman
United States District Judge

10

13
14
15
16
17
18
19
20
21
22
23
24

ORDER DENYING MOTION TO EXCLUDE - 3