Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579; 113 S.Ct. 2786; 125 L.Ed.469 (1993)(Daubert I). This decision states that the Frye Test from Fry v. United States, 293 F. 1013 (D.C. Cir. 1923) had been superceded by Rule 702 of the Federal Rules of Evidence (FRE) that were adopted by Congress in 1975. It directed that trial court judges should act as “gatekeepers” to insure that evidence presented in court was scientifically reliable, subject to four general tests: (1) Whether the theory or technique underlying the testimony can be or has been tested; (2) whether the theory or technique has been subject to peer review; (3) the known or potential rate of error should be determined, as should the existence and maintenance of standards controlling the technique’s operation; (4) whether the theory or technique has been generally accepted by the relevant scientific community. 

General Electric Co. v. Joiner, 522 U.S. 136; 118 S.Ct 512 (1997). Deals with admissibility of expert testimony.Deals with admissibility of expert  testimony. Joiner is the second in the triumvirate of decisions of the United States Supreme Court elaborating the meaning of the Daubert decision. The 11th Circuit had reversed the decision of a trial court judge not to allow testimony of a medical expert, suggesting that the standards for excluding testimony were more stringent than the tests for admitting testimony. The Supreme Court made it clear that trial court judges have considerable discretion and reversed the 11th Circuit decision. Justice Bryer’s concurring opinion strongly encourages trial court judges to make use of Federal Rule 106, which allows court appointed experts.

Kumho Tire Co., Ltd v. Carmichael, 509 U.S. 579; 119 S.Ct. 1167 (1999). This decision made it clear that while none of the original four Daubert tests may apply in a given instance, the general test of scientific reliability applies to all types of expert testimony. 

Weisgram v. Marley, 528 U.S. 440; 120 S.Ct. 1011; 145 L.Ed. 2d 958 (2000). Held that if expert testimony that was the basis for a claim was held inadmissible, the cause of action could be dismissed without a right of appeal. 

Winans v. The New York and Erie Railroad Company, 62 U.S. 88, 16 L. Ed. 68, 1858 U.S. LEXIS 626 (1858). “Experience has shown that opposite opinions of persons professing to be experts may be obtained to any amount; and it often occurs that not only many days, but even weeks, are consumed in cross-examinations, to test the skill or knowledge of such witnesses and the correctness of their opinions, wasting the time and wearying the patience of both court and jury, and perplexing, instead of elucidating, the questions involved in the issue.”

1st Circuit

Coastal Fuels of Puerto Rico, Inc. v. Caribbean Petroleum Corp., 175 F.3d 18 (1st Cir. 1999). Ruled specifically that Daubert and Kumho applied to economic analysis, stating: "the district court's gatekeeping function extendes to all expert evidence, including economic analysis, not merely to evidence involving scientific conclusions.

Cummings v. The Standard Register Company, 265 F. 3d 56 (1st Cir. 2001). This decision responds in part to an error in testimony initially made by economic expert Martin Duffy.  After being cross examined, Duffy realized that he had made an error in calculating front pay at $656,867. After correcting his figures, Duffy then testified to front pay losses of $494,712. His figures for back pay were deemed correct. Duffy’s report was not entered into evidence and the jury awarded $665,000  for front pay. The 1st Circuit determined that the jury had probably been confused by the initial error in Duffy’s calculation and offered Cummings the option of accepting $494,712 or a new trial. The court also determined under a Daubert standard that the district court had been correct in determining that Duffy’s testimony was admissible and that the district court did not abuse its discretion in refusing to strike the testimony of Duffy.

Quinones-Pancheo v. American Airlines, Inc., 979 F.2d (1st Cir. 1992)  Economic expert Mario Puchi based his projections on the assumption that the injured plaintiff had intended to reenlist in the military and remain there until eligible to retire on a military pension. The economic expert also assumed that the plaitiff had a total and permanent disability, which was not borne out by the facts of the case. The economic expert was not permitted to testify.

Stevens v. Bangor and Aroostook, R.R., 97 F.3d 594 (1st Cir. 1996). The plaintiff's vocational expert was permitted to testify. 

Torrez-Ocasio v. Texaco Puerto Rico, Inc., 2007 U.S. Dist. LEXIS 56102 (D. Puerto Rico, 2007). This is was a decision by Judge Juan M. Perez-Gimenez to grant a motion in limine to bar the testimony of plaintiff’s Life Care Planner, Gerri Pennachio, and economist Francisco E. Martinez based on the fact that the plaintiff had admitted that the testimony of plaintiff’s expert witness Dr. Jaime Zorba did not meet Daubert standards. Since the proposed testimony of the economist depended on the testimony of the Life Care Planner and the testimony of the Life Care Planner depended on the testimony of Dr. Zorba, the failure of his testimony to meet Daubert standard rendered the testimonies of Life Care Planner and economist inadmissible.

    District Courts in the 1st Circuit (MA, ME, NH, RI and Puerto Rico)

Griffith v. Eastern Maine Medical Center, 2009 U.S. Dist. LEXIS 16236 (D. Me. 2009). The court granted a defense motion to exclude the economic testimony of Dr. Ray Neveu based on his failure to issue a complete report of his opinions by the scheduling deadline. Dr. Neveu’s report indicated that he would provide details of his opinions in a “timely fashion,” which the judge did not regard as meeting the requirements of the Court. The Court said: “This court has already specified what "a timely fashion" is in this case in its scheduling order. That is not a matter to be determined at the convenience of the expert witness, particularly when no reason is given why the expert cannot comply with the deadline set in the court's scheduling order. An expert's complete report is due at a specific time during the discovery period in order to allow opposing counsel to depose the expert, if desired, and to allow the opposing party's expert witness time to respond to the opinions expressed in the report, also within the discovery period, so that the plaintiff's counsel will also have an opportunity to explore those opinions before the end of discovery and the deadline for the filing of dispositive motions. See Thibeault v. Square D Co., 960 F.2d 239, 244 (1st Cir. 1992) (Rule 26 promotes fair play in discovery and at trial). Allowing an expert to express his opinions "before trial" at a time chosen by the expert would throw in disarray the orderly procedure that the civil rules are designed to promote. See Ortiz-Lopez v. Sociedad Espanola de Auxilio Mutuo y Beneficiencia de Puerto Rico, 248 F.3d 29, 35 (1st Cir. 2001). An expert can always supplement his or her opinions after submitting a report, should the need arise. What the expert cannot do is dictate the timing and progress of the case; that is a matter solely within the court's control.”

2nd Circuit

Amorgianos v. National Railroad, 2002 U.S. App. Lexis, 17792 (2nd Cir. 2002). This decision affirms a trial court decision that had reversed a jury verdict in favor of a plaintiff, followed by a Daubert hearing to preclude testimony by two plaintiff experts and a summary judgement in favor of the defendants following the decision in the Daubert hearing. The decision of the trial court was 137 F.Supp.2d 147 (E.D.N.Y. 2001).  This is a short decision that discusses all four of the United States Supreme Court cases from Daubert to the present that involve admissibility of expert testimony. The discussion begins from Daubert v. Merrell Dow, 509 U.S. 579 (1993), proceeds through Gen. Elec. Co. V. Joiner, 522 U.S. 135 (1997), Kumho Tire Co. V. Carmichael, 526 U.S. 137 and Weisgram v. Marley Co, 528 U.S. 440 (2000), before upholding the decision of the trial court judge.  It also cites its own decision in McCullock v. H.B. Fuller Co, 61 F.3d 1038 (2nd Cir. 1995) to the effect that the abuse of discretion standards, which is the standard used to challenge a trial court judge on admissibility issues, is based on how the trial court went about determining reliability as much as it ultimate decision.  The 2nd Circuit cited In re Paoli R.R. Yard PCB Litig., 35 F. 3d 717 (3rd Cir. 1994) as saying: “[T]he reliability analysis applies to all aspects of an expert’s testimony: the methodology, the facts underlying the expert’s opinion, the link between the facts and the conclusion, et alia.” (Submitted by Jerry Martin.) 

Boucher v. U.S. Suzuki Motor Corp., 73 F3d 18 (2nd Cir. 1996). Dr. Kenneth Reagles, a vocational expert and not an economist, projected the lost future earnings of John Boucher. Mr. Boucher had a sporadic work history, having earned $10,393 in 1983, $5,800 in 1984, $4,600 in 1985 and $7,800 in 1985.  Dr. Reagles assumed that Mr. Boucher had an earning capacity as of 1988 of $12,480 per year plus 19 percent for fringe benefits, based on fringe benefits Mr. Boucher did not have at the time of his injury.  The court did not find this reasonable.

Shatkin v. McDonnell Douglas Corp., 727 F. 2d 202 (2nd Cir. 1984). The economist, Dr. Mantell for the plaintiff made calculations on behalf of a parent suing for damages in the death of a child. The court felt that there was no foundation for an assumption that the child would have supported the parent in the future and "noted a number of assumptions and assertions made by Dr. Mantell that were so unrealistic and contradictory as to suggest bad faith."

United States v. Pearson, 2009 U.S. App. LEXIS 14555 (2nd Cir. 2009). This is a decision in the appeal of the restitution award in a child pornography case. Dr. Kenneth Reagles had projected life care costs of counseling for two female child victims of the child pornographer.  Reagles was described as: “the owner of K.W. Reagles & Associates, L.L.C., a company that provides ‘[f]orensic vocational, rehabilitation, and economic consulting services, as well as employee assistance, case management, and psychological counseling services.’ Gov’t App. at 65, 132. Reagles concluded that each victim ‘has a number of mental health issues that will require treatment and services, presently and into the future, some of the rest of her life’ as a result of her sexual assault by Pearson. He estimated the future cost to Pearson’s victims of obtaining medical care to be $2,002,732 and $921,976 for Jane Doe #1 and Jane Doe #2, respectively.” The District Court reduced those amounts to $667,577 and $307,325, respectively, arguing that although Reagles “who is a very good economist, [is] qualified to make diagnoses in the case of severe psychological impediments caused by the defendant,” the Court did not believe Reagles had the ability to determine the amount attributable to the girls’ pre-existing conditions. “The court concluded also that the victims’ future medical expenses should not be discounted to present value because restitution could not be paid presently.”  The 2nd Circuit also held that: “Where further losses are likely but the amount cannot be calculated with reasonable certainty at the time of the initial sentence, a victim may nevertheless be able to secure compensation for further losses pursuant to 18 U.S.C. § 3664(d)(5). The court remanded the decision to the District Court for further explanation of the amounts awarded by the District Court, vacating the amounts so that the District Court could change the amounts if it felt that such changes were warranted.

Coleman v. Dydula, 190 F.R.D. 316 (W.D.N.Y. 1999). This decision is cited in some law books as interpreting the requirement for experts under FRCP 26(a)(2)(B) to list prior testimonies during the previous four years. The district court said: “Plaintiffs are precluded from introducing the testimony of their vocational expert, Herbert Weber, because they failed to comply with this court 's previous order of April 26, 1999. As to Dr. Reiber, plaintiffs shall provide defendants with a list of all cases in which Dr. Reiber has testified in the past four years in compliance with Rule 26. This list should include the name of the court, the names of the parties, the docket number (if available), and whether the testimony was given during a deposition or at a trial.” This decision was submitted by Jerry Martin. 

Coleman v. Dydula, 139 F.Supp.2d 388 (W.D.N.Y. 2001). The testimony of Dr.  Ronald Reiber was challenged under a Daubert motion and upheld. Dr. Reiber had projected lost future wages, future costs of health care coverage and worklife expectancy.  Dr. Reiber used growth rates of 3 percent and 7.3 pecent for both damages categories using a “sum of annuity” formula. Reiber cited the 1996 NAFE Survey as justifying “the theory that historical CPI data can be used to estimate future inflation” (Question 2 from that survey) .  Reiber was challenged because he did not say “how far back” he went in deriving his 3 percent growth rate, with defendant’s insisting that this was precisely the kind of thing that made Reiber’s testimony unreliable. He also justified his 7.3 percent growth rate based on Question 4 in the 1996 NAFE Survey.  Reiber’s worklife expectancy assumption was that the plaintiff would work to age 66, based on the fact that she did not have a pension in her current employment and had stated an intention to work to her 66th birthday. 

Hough-Scoma v. Wal-Mart Stores, Inc., WL 261857 W.D.N.Y.; 1999 U.S. Dist. LEXIS 7046. Testimony based on Gamboa tables was rejected because of lack of foundation.

Israel v. Spring Industries, 2006 U.S. Dist. LEXIS 80863 (E.D.N.Y. 2006). Judge Robert M. Levy’s memorandum denied the admissibility of the testimony of Dr. Leonard Freifelder, Ph.D., president of Freifelder & Associates. Freifelder had projected an eleven year old child’s loss of future earnings and cost of future life care. Judge Levy noted that Dr. Freifelder had never studied labor economics or medical economics and had never held an academic teaching position in economics, and said: “An expert may incorporate assumptions into his or her opinion, but those assumptions must be ones that a reasonable juror could find correct based on admissible evidence. . . In other words, the expert’s underlying assumptions must be evaluated for accuracy. Dr. Freifelder’s underlying assumptions are problematic in a few respects. First, in determining Joseph’s pre-incident earning capacity, he assumes that, had Joseph not been exposed to polyester in the crip sheets, he would have had a normal work life expectancy, meaning that he would have been ‘able to work as a typical male[.]’ . . .His calculations do not take into account the possibility that some of Joseph’s medical conditions were pre-existing and would have affected Joseph’s work life regardless of his purported exposure to polyester. . . Dr. Freifelder testified that he knew that both of Joseph’s parents and one of Joseph’s siblings had received high school diplomas and not continued on to college, but he did not know whether any of Joseph’s other siblings had plans to attend college. . .Nor did he know what percentage of white males in the American population complete high school or attend college. . . Again, Dr. Freifelder does not claim to be a vocational or educational specialist; he has no expertise in evaluating personal skill sets or predicting a particular individual’s vocational or educational prospects. . . In making his calculations, he did not take into account Joseph’s individual characteristics or his family’s socioeconomic status . . . In short, his assumption that, had Joseph been healthy, he would have graduated from high school or completed some college is speculative.” 

Lava Trading, Inc., v. Hartford Fire Insurance, 2005 U.S. Dist LEXIS 4566 (S.D.N.Y., 2005). This decision contains extensive discussion of the expert report and methods used to develop that report by Dr. Eric Clemons, the plaintiff’s principle damages expert. Sanctions were awarded to the defendant based on way Dr. Clemons report was handled. The Court said about Dr. Clemons’ report: “It failed . . to identify either (1) the specific facts or factual assumptions on which Dr. Clemons relied to generate his opinions or (2) the methodology that he used (other than in the most general and unhelpful terms) or (3) his actual calculation of the losses or (4) the basis for the dramatic alteration of his loss numbers frm the first to the second report. In short, the report – in all of its manifestations and supplementations – did not disclose any of the essential details needed to understand and assess Dr. Clemon’s conclusions.” Dr. Clemens was precluded from testifying.

Mastrantuono v. United States, 163 F. Supp. 2d 244 (S.D.N.Y. 2001). The court rejected the report of economist Andrew Weintraub, Ph.D., regarding Samantha Bellantoni’s claim for lost future wages, saying: “Weintraub was not given Bellantoni’s W-2 forms for the years 1998, 1999, and 2000, but instead had to estimate her annual earnings by averaging her 1995 to 1997 annual income (Tr. at 134-35.) Dr. Weintraub admitted that this rendered his report incomplete. (Id.) Additionally, Dr. Weintraub unaccountably assumed that Bellantoni’s future wages would grow at 4%, and used the same 4% rate in discounting the future wage loss to present value, as if the interest rate would ever be as low as the rate of inflation. Because we reject this report, we find that plaintiff has failed to prove her future loss of wages by a preponderance of the evidence.” 

Pouliot v. Paul Arpin Van Lines, Inc., 2006 U.S. Dist. LEXIS 32564 (D.CT, 2006). This decision involved Dr. Tony Gamboa for the Plaintiff and Dr. Allan McCausland for the defendant. It appears that Dr. Gamboa used a total offset method, which the defense challenged as not reducing damages to present value. The judge held that Connecticut law “requires that the parties by allowed to present evidence on the proper method of calculating damages, and that the jury be permitted to choose whether or not to credit any evidence presented. He also wrote that “[a]lthough Arpin argues that Dr. McCausland’s testimony as to the appropriate discount rate was more correct than that of Dr. Gamboa, the jury may well have credited Dr. Gamboa’s testimony above Dr. McCausland. The court does not find it necessary to disturb this credibility assessment.”

Queen v. International Paper Company, 2006 U.S. Dist. LEXIS 26725 (N.D.N.Y. 2006). This is Memorandum-Decision and Order by U.S. Magistrate Judge David Homer, holding that an expert witness report by Dr. James Lambrinos would not be precluded in the ground that Dr. Lambrinos initial report was not signed and failed to include Lambrinos’ compensation or llist of cases in which Lambrinos had testified as an expert. These materials were served to the defendant six weeks after the close of discovery. The court held that the substance of the disclosures was made prior to the discovery deadline and therefore that the error had been harmless.

Shatkin v. McDonnell Douglas, 565 F.Supp.93 (S.D.N.Y. 1983). This is one of two decisions excoriating the testimony of Dr. Edmund Mantell in related litigation from two different federal judges.  The other is Shu-Tao Lin v. McDonnell Douglas, 574 F.Supp. 1407 (S.D.N.Y. 1983). Dr. Mantell used the same methods used in that case, as described in that listing. Judge Pollack said: “This court finds that Dr. Mantell’s assumptions and techniques of calculation involve gross error at almost every step. The testimony is not competent, has no evidentiary value and no reasonable juror would be justified in relon on or according any weight to it whatsoever. To permit the jury to hear it would amount to irretrievable prejudicial projections of an unfounded character and hopelessly prejudice the fairness of the trial.”

Shu-Tao Lin v. McDonnell Douglas, 574 F.Supp. 1407 (S.D.N.Y. 1983). This is one of two decisions excoriating the testimony of Dr. Edmund Mantell in related litigation from two different federal judges. The other is Shatkin v. McDonnell Douglas, 565 F.Supp.93 (S.D.N.Y. 1983). Dr. Mantell used total offset, 25 percent increases in income for the first four years after the wrongful death, $125,000 as an extrapolation from actual earnings in the five months prior to the death, compared with annual earnings in the previous year of $56,000, a 13 percent tax rate. However, the award was increased by 50 percent for the interest income to Mrs. Lin resulting from the damage award.  Judge Sweet quoted Judge Pollak from the Shatkin decision as saying: “This court finds that Dr. Mantell’s assumptions and techniques of calculation involve gross error at almost every step. The testimony is not competent, has no evidentiary value and no reasonable juror would be justified in relon on or according any weight to it whatsoever. To permit the jury to hear it would amount to irretrievable prejudicial projections of an unfounded character and hopelessly prejudice the fairness of the trial.” The discussion of the inadmissibility of this testimony because of internal contradictions under Rule 703 is very interesting.

Supply & Building Co. v. Estee Lauder International, 2001 U.S.Dist. Lexis 20737 (S.D.N.Y. 2001). This is an order admitting the testimony of the defense economic expert Theodore Martens and denying the testimony of the plaintiff’s expert Robert Sherwin. Both were CPA’s and this was a business damages case. The order places heavy reliance on the Daubert and Kumho decisions. 

United States v. Starzecpyzel, 880 F. Supp. 1027 (S.D.N.Y. 1995). Judge Lawrence M. McKenna allowed the testimony of Forensic Document Examiner (FDE) Mary Wenderoth Kelly in a criminal action. At 1029, Judge McKenna said: “Yet, as distinguished from such discredited ventures as hedonic damages expertise, clinical ecology, trauma-cancer expertise or the Benedictin plaintiffs’ statistical machinations, forensic document examination does involve true expertise, which may prove helpful to a fact finder.

3rd  Circuit

    Court of Appeals

Benjamin v. Peter’s Farm Condominium Owners Association, 820 F.2d 640 (3rd Cir. 1987).  The lost earnings projection of Leonard Chasen, a certified public accountant, had been admitted by the trial court judge. It was rejected by the Third Circuit Court of Appeals on the grounds that the only foundation for an assumption that the plaintiff’s post injury earning capacity was $10,000 per year was “Benjamin’s personal belief as to how much money he could earn together with his personal records reflecting money recived and disbursed during the three month period after the injury.  Likewise the only foundation for pre injury earnings was business earnings of $24,500, based on Benjamin’s 1984 tax return.  The court said, “We agree with PFCA’s position that, on this record, Chasen’s calculation is a “castle made of sand.” 

Donlin v. Philips Lighting North America Corp., 2009 U.S. App. Lexis 8408; 106 Fair Empl. Prac. Cas. (BNA) 1 (3rd Cir. 2009). This decision affirmed the district court as to liability, but remanded for a new trial on damages. Several issues were involved with why the damage portion of the district court decision was remanded. One of those issues was that the district court permitted the plaintiff to testify at length about back pay and front pay. The 3rd Circuit said: “[W]e find that the District Court should have barred portions of Donlin's testimony requiring technical or specialized knowledge. Donlin admitted that she was "not a professional," nor a finance major or forensic economist. . . . Donlin's testimony regarding facts within her personal knowledge (such as her current and past earnings) was appropriate. But, much of Donlin's testimony went beyond those easily verifiable facts within her personal knowledge and instead required forward-looking speculation for which she lacked the necessary training. For instance, in calculating her front pay, Donlin speculated that Philips would provide a 3% annual pay raise; in fact, the company did not provide an increase of more than 1.3 % in the years immediately prior to the trial. Additionally, having no experience with retirement benefits, Donlin misinterpreted Philips's definition of "pensionable earnings" and erroneously assumed a flat 5% per year on pension earnings based only on an example in the Philips pension manual. After admitting that she had never performed a present-value discounting calculation prior to the day before trial, Donlin testified that she received instructions from her lawyer the night before regarding the proper discount rate. Finally, Donlin misapplied the life expectancy charts and therefore did not properly account for the probability of her death. In sum, Donlin's testimony crossed  the line into subject areas that demand expert testimony.” Suggested by Marc Weinstein.

Elcock v. KMART Corporation, 233 F.3d 734; 2000 U.S. App. LEXIS 34822 (3rd Cir. 2000). This decision provides extensive discussion reasons why the 3rd Circuit reversed the trial court decision to admit the vocational testimony of Dr. Chester Copemann and the economic testimony of Dr. Bernard Pettingill. It cites eight Daubert factors from In Re: Paoli Railroad Yard PCB Litigation (Paoli II), 35 F.3d 717, 742 (3rd Cir. 1994) and finds numerous faults with the testimony of Dr. Copemann. It also discussed at length the degree to which the fact that Dr. Copemann had pled guilty to embezzlement could be introduced to impeach the crediblity of his testimony. The discussion of reasons for not admitting the economic damages testimony of Dr. Pettingill was not as extensive, saying: “In sum, we believe that Pettingill’s economic damages model relied on several empirical assumptions that were not supported by the record. Although Pettingill suggested to the jury that it might discount the 100 percent disability figure he plugged into his economic model, this suggestion is not sufficient to change the result. In the absence of clearer instructions or emphasis by the witness or the court, a jury is likely to adopt the gross figure advanced by a witness who has been presented as an expert. Accordingly, the District Court abused its discretion in admitting Pettingill’s model as evidence.”

Gumbs v. International Harvester, Inc., 718 F.2d 88 (3rd Cir. 1983).  S. Jones-Hendrikson, the economist for the plaintiff, had projected lost earnings based on the life expectancy of the plaintiff without consideration of worklife factors and had used a base income figure more than double the plaintiff's average income in the four years prior to the accident. 

Oddi v. Ford Motor Company, 234 F.3d 136 (3rd Cir. 2000). This case does not directly evaluate economic damages, but cites Elcock v. K-Mart and provides Elcock's set of eight Daubert tests for admission of testimony.

Aetna, Inc., v. Express Scripts, Inc. 2009 U.S. Dist. LEXIS 84975 (E.D. Pa. 2009).  This order denies a motion in limine (under Daubert criteria) to exclude the testimony of economic expert, Robert J. DeLuca, in a contract violation commercial litigation. This decision contains a valuable discussion of “reliability” and “disclosure” in the opinions offered by economic experts in commercial cases. Specifically the defendant did not disclose its method for rounding up prices of products, but then attacked the expert in deposition for his failure to round up prices using the defense’s undisclosed procedure. The plaintiff expert produced an errata sheet with calculations corrected for the now disclosed rounding procedure. The defendant then moved to bar the errata as a new report filed after the disclosure deadline. Similarly, the defendant did not disclose prices and costs for certain product lines and DeLuca had to “fill-in” missing data using projections. The defendant attacked the expert for lack of reliability in using projected rather than actual data. The decision held that the defendant created the need for the errata sheet and data projections and could not use the defense’s failure to disclose this information as the basis for disqualifying the plaintiff’s expert. (Some language used in this description was provided by John O. Ward.)

Booth v. Black & Decker, 2001 U.S. Dist. Lexis 4495 (E.D.Pa. 2001).  This decision did not involve economic testimony, but cited the eight Daubert factors used in Elcock v. K-Mart. The decision excluded the testimony of Richard B. Thomas about toaster defects, saying: "there was no evidence that the method he applied was subject to peer review, had a known or potential rate of error, could be measured by existing standards, or was generally accepted. Futhermore, there was no establishiment of the relationship beteen the technique and the methods. Though Thomas may be qualified to testify on these matters, he did not take sufficient care in supporting the credibility or reliability of the methodology he applied . . ."

Bowman v. International Petroleum Corporation, 1995 U.S. Dist. LEXIS 10873 (E.D.PA 1995). The defendant appealed based in part on the trial court having permitted the testimony of economic expert David Bunin, which was based on a flawed methodology. The Court emphasized the fact that the defense had time to retain its own economic expert, but had not done so in rejecting this part of the appeal.

Gutierrez v.  Johnson & Johnson, 2006 U.S. Dist. LEXIS 80834 (D.N.J. 2006).  This memorandum by Judge William M. Walls rejects motions in limine under a Daubert standard to strike the reports of economists Dr. Janice Madden on behalf of the plaintiff and Dr. David Wise on behalf of the defendant in an employment discrimination at the stage of class certification. Dr. Madden has her Ph.D. from Duke University and is a professor at the University of Pennsylvania. Dr. Wise is an economist at Harvard University. Regarding Dr. Madden’s report, Judge Walls said: “The Court is unpersuaded that Dr. Madden’s choice of variables renders her analysis so fatally flawed that it should be stricken as a matter of law. Generally, decisions regarding what control variables to include in an expert report go to weight, not admissibility. . . Since the expert accounted for experience and seniority within the company and tracked the employees over time, the data was not so incomplete to be rendered irrelevant and any inadequacies in the methodology could be addressed in cross examination.” Regarding Dr. Wise’s report, Judge Walls said: “Plaintiffs raise some serious limitations to Dr. Wise’s approach. However, this Court is mindful that under Daubert, a court is directed to focus on principles and methodolgy, not on the conclusions they generate. Daubert, 509 U.S. at 595. Plaintiffs do not dispute the validity of the statistical tests Dr. Wise performed, nor could they. As Nobel Laureate Dr. Daniel McFadden stated in his declaration, the Chow test, fixed affects models, f-tests, and t-tests are all standard, peer reviewed tests with acknowledged reliability. . .Rather, Plaintiffs challenge Dr. Wise’s interpretation of the results as they relate to the legal concept of commonality. However, disagreements about the conclusions to be drawn from a particular test affect the weight of a report, not its admissibility. . . Plaintiffs’ concerns about the significance or lack of significance of the Wise Report can be adequately addressed through cross-examination.”

JMJ Enterprises, Inc. v. Via Veneto Italian Ice, Inc, 1998 U.S. Dist. LEXIS 5098 (E.D.Pa. 1998). Leon A. LaRosa, Jr., who had a Bachelor’s Degree in Business Administration and a Master’s in Taxation, had his testimony ruled inadmissible because: (1) He did very little to verify his sales projection; (2) Did not attempt to verify information in the tax return; (3) Did not consider the owner’s experience with respect to the company’s potential success; (4) Did not conduct industry research; and (5) Found sales would rise dramatically but expenses would not increase.  There is a good discussion in this decision of Daubert standards and how they should apply in a business valuation context.  (Submitted by Holly Sharp.) 

Montgomery v. Mitsubishi Motors Corp., 2006 U.S. Dist LEXIS 24433 (E.D. PA 2006).  In this judicial memorandum, Judge Pratter denied Mitsubishi’s move to preclude the testimony of Dr. Anthony Gamboa. Judge Pratter denied the motion without prejudice, meaning that the issue can be raised again later. At least one error in Mitsubishi’s brief was a claim that Dr. Gamboa had assumed that Montgomery would work to age 89 based on the LPE-type calculation Dr. Gamboa had made. 

McNamara v. Kmart Corporation, 2010 U.S. Dist. LEXIS 865 (D. Virg. Isl.). This opinion upheld a trial court decision not to admit the testimony of economic expert Robert Johnson and to severely limit the testimony of vocational rehabilitation expert Susan McKenzie. The Court rejected the testimony of physiatrist Dr. Gary Jett, upon whose testimony much of the testimony of McKenzie and all of the testimony of Johnson rested. The Court said: Johnson’s conclusions were premised on his understanding of McNamara’s future medical and non-medical expenses provided to him by McKenzie. Because future medical needs and costs were beyond McKenzie’s expertise and her calculation of medical expenses were derived from Dr. Jett’s unreliable chart, the basis for Johnson’s opinions were faulty. There was simply nothing for him to reduce to present value. His testimony would have been a mere reiteration of Dr. Jett’s suspect numbers.” The Court’s description of Dr. Jett’s methods and opinions was very negative.
 
Polymer Dynamics, Inc., v. Bayer Corporation, 2005 U.S. LEXIS 7945 (E.D.Pa. 2005). Defendant Bayer filed motions in limine under a Daubert standard to exclude the testimony of various plaintiff experts, including Dr. A. Lawrence Kolbe. The court found that Dr. Kolbe was qualified to offer the jury an opinion on damages, that his methodology was reliable and that Dr. Kolbe’s testimony fit the facts of the case.

Balance v. Wal-Mart Stores, Inc., 1999 U.S. App. LEXIS 7663 (4th Cir. 1999). This decision involved a slip-and-fall case in Wilson, North Carolina. At issue on appeal was whether the medical testimony of Dr. David Tomaszek and the corresponding life plan testimony of Anthony Sciara, Ph.D. should have been admitted. A Daubert hearing had been conducted by the District Court judge and the 4th Circuit Court of Appeals upheld the District Court judge. 

Berlyn Inc. v. Gazette Newspapers, Inc., 2003 U.S.App. LEXIS 16814 (4th Cir. 2003). From footnote 3: “Appellants also seek to rely on the the testimony of their proposed exert witness, Mr. James Shaffer. The district court correctly ruled, however, that Shaffer is unqualified to offer expert testimony as an economist on the establishment of relevant product or geographic markets. While Shaffer has an MBA and significant executive experience in the newspaper industry, he subscribes to no economics journals, has not published any economics-related articles. He is also unfamiliar with basic terminology and concepts used by economists who work on antitrust cases. Furthermore, Shaffer admitted that he had never conducted a relevant market analysis, and that any reading he had done on the subject came from materials provided to him by Appellant’s attorneys.” 

Berlyn Inc., et al. v. The Gazette Newspaper, Inc., 214 F.Supp. 2d 530 (D. Maryland). The district court excluded the antitrust economics testimony of James B. Shaffer, but allowed Shaffer to testify about lost profits on the basis of his experience in the newspaper industry. Shaffer’s proposed opinion about market power was rejected because: “Shaffer is not qualified to offer this opinion. Shaffer’s background is completely devoid of specific education, training, or experience in economics or antitrust analysis. His education is in engineering and business administration. He has never performed a relevant market analysis for antitrust purposes, and at the time he was retained as an expert n this case, he was entirely unaware of how an economist would perform such a study. Clearly, Shaffer cannot qualify under the general requirements of Rule 702, which requires ‘knowledge, experience, training or education.”

McMillan v. Weeks Marine, Inc., 2007 U.S. Dist. LEXIS 20833 (D.DE 2007). A new trial on damages was granted because Royal A. Bunin had been admitted to testify about the plaintiff’s lost earnings, but went beyond the scope of his expertise in his testimony. “During trial, Mr. Bunin, an actuarial economist expert witness, was permitted to testify, over Defendant’s objection, about the employment frequencies, hours worked, and employment experiences of workers in the dredging industry. He testified that ‘while earlier on in a person’s career there may be fluctuation as they’re known in the industry picking up work, but once they’re known in the industry, they get picked up and their work seems to be more solid year round. (D.I. 95 at 11). He also testified that this opinion derived from other reports he had prepared for other workers in the dredging industry who were members of the Union of Operating Engineers Local 25. Id. After reviewing Mr. Bunin’s expert reports, the Court finds that these opinions were not disclosed as required, nor did Mr. Bunin provide any bases to support them. Moreover, the Court concludes that Mr. Bunin’s testimony on Plaintiff’s future prospects for employment in the dredging industry reflects vocational experience outside the scope of his expert report, discipline and prior experience as an actuarial-economist.”

TFWS, Inc. V. Schaefer, 183 F. Supp. 789 (Dist. of Maryland 2002). Drs. Frank Chaloupka and David Levy for the defendant and Thomas Overstreet for the plaintiff were all found qualified to offer expert opinions in an antitrust matter, with the court emphasizing the Kumho decision in its ruling. The court went on to say that it found the testimony of Drs. Chaloupka and Levy more persuasive than that of Dr. Overstreet.

5rd  Circuit

    Court of Appeals

In re Air Crash Disaster at New Orleans, Louisiana on July 9, 1982, 795 F.2d 1230 (5th Cir. 1986). The Fifth Circuit Court of Appeals reversed the trial court decision in a wrongful death matter because: “We are persuaded that the evidence in support of the claimed loss of inheritance was too speculative and that the remaining awards of the jury were so excessive as to require a new trial.”  The unnamed economist had projected that the decedent’s salary would grow at an annual real rate of 8 percent and would have paid only 5 percent of his income in income taxes. The court pointed out that this was extremely unrealistic and also noted evidence in the case that suggested “increasingly significant sums had been spent in previous years in gambling junkets to Las Vegas.” On the inheritance issue, the 5th Circuit said: “In sum, we find the assumptions of plaintiff’s economist so abusive of the known facts, and so removed from any area of demonstrated expertise, as to provide no reasonable basis for calculating how much of Ted Eymard’s income would have found its way into assets or savings to be inherited by his children.”

Marcel v. Placid Oil Company, 11 F.3d 563 (5th Cir. 1994). The district court had precluded the testimony of economic expert Dr. Kenneth Boudreaux based on the worklife expectancies of oil field workers that had been prepared by Richard Camus & Associates. Plaintiffs criticized the Camus study as outdated, statistically suspect, and untrustworthy. The 5th Circuit said: “In presenting the testimony of Dr. Boudreaux, Placid did not tender any evidence comparing the worklife in the oilfield with the national average or with the worklife in any other occupation. Without some indication of how oilfield worklife differs from that of other occupations, however, there are several bases upon which the district court could have excluded the evidence, for example, a finding that the probative value of the Camus study did not outweigh the prejudice of its admission or that it was not sufficiently reliable in the present context. Upon the record before us, we cannot hold that it was an abuse of discretion to exclude the tendered evidence.” In a footnote, the 5th Circuit noted that “Plaintiffs contend that Placid failed to preserve this issue for appeal because it did not proffer either the Camus study or the testimony of Dr. Boudreaux.” 

Randolph v. Laeisz, 896 F.2d 965 (5th Cir. 1990). A trial court decision was reversed in part on the basis of the unreasonable calculations of an unnamed economist.  Randolph had worked as a clerk/checker for two unions that had merged in 1983, after which there was a loss of hours worked by Randolph. This loss of hours had been ignored by plaintiff’s economist. The court also noted that: “[T]he record does not support the validity of the economist’s actual mechanical calculations. His testimony on direct and cross examination was confusing at best and nothing else in the record clarifies how the economist reached his end result figures.” 

    District Courts in the 5th Circuit (LA, MS, TX)

Albert v. Jordan, 2007 U.S. Dist. LEXIS 85368 (W.D. La 2007). Judge James T. Trimble, Jr., granted a defense motion in limine to exclude testimony of vocational expert Glen Hebert, MRC and R. Douglas Womack, Ph.D. that was based on occupations and earnings that Hebert claimed represented the earning capacity of plaintiffs Paul Reed and Keith Dorn. Judge Trimble held that amounts being projected were far in excess of the earning capacity demonstrated by the two plaintiffs in their earnings record and said that “Plaintiffs have presented no evidence is to either plaintiff’s aptitude or earnings history that would indicate support for the opinions proffered by Mr. Hebert. He also held that the Court “will allow these experts to testify as to Mr.Reed and Mr. Dorn’s loss of earning capacity based on a wage scale proven by their work history.”

Arreola v. Epic Divers, Inc, 2006 U.S. Dist. LEXIS 88275 (E.D.LA 2006). The Plaintiff challenged the admissibility of testimony by the defense economist, Kenneth Boudreaux, that Plaintiff’s work-life expectancy as a commercial diver was five years baed on a July 1993 case study compiled by Louisiana State University’s Department of Quantitative Business Analysis for the benefit of the Association of Diving Contractors, Inc. Boudreaux’s report noted that “if Plaintiff’s alleged impairment precludes him only from diving for a living, as opposed to undertaking a non-diving occupation, then any future wage loss calculation should be based on Plaintiff’s remaining expected worklife as a diver. . .  The Plaintiff argued that the LSU study did not meet the requirements of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), because no other court has ever ruled on its admissibility, and because it has never been published or subject to peer review. Plaintiff also argues that the time frame reflected in the report (1975-1992), which was supposedly one of very unfavorable economic conditions for buyers, does not correlate with today’s conditions.” The Court went on to discuss the nature of the LSU study in some detail and said: “[G]iven Boudreaux’s impressive credentials, if the jury learns about the LSU study from his lips then it will surely give more credence to the report than what it could ever garner on its own. It would simply be unfair to allow the Defendants to use the study to put the burden on Plaintiff to convince the jury that unlike other divers in past years he would not have voluntarily dropped out of diving. Again, unlike other divers who might voluntarily choose to end their careers, the Plaintiff’s career had ended not by choice but by necessity given his injury. He is entitled to a presumption that he would have spent his entire career as a diver.”  Boudreaux was not allowed to testify regarding any type of reduced worklife expectancy for divers “because that is not his area of expertise” and any testimony about the LSU study was specifically excluded because the judge did not consider it reliable.

Butler v. MBNA Technology, Inc., 2003 U.S. Dist LEXIS (N.D.Tex. 2003).  A motion to exclude the expert opinion of Dr. James T. McClave, an economist for the plaintiff, was granted in part and denied in part. “Dr. McClave’s opinion is traceable to a specific, identifiable source,” which satisfied the court that “expert opinion must be founded on facts and data that are capable of independent verification.”  However, Dr. McClave’s comparison of plaintiff’s annual salary increases with those of job candidates who hold degrees in computer science was rejected as unreliable. The plaintiff had a job grade of Senior Software Engineer, based on a bachelor’s degree in Management Information Systems, which the court did not consider as equivalent to degrees in computer science.” 

Garcia v. Columbia Medical Center of Sherman, 996 F.Supp. 617 (E.D.Tex. 1998).  The plaintiff had retained Daniel J. Slottje as its economic expert. The defense had retained Ygnacio D.Garza as its economic expert.  Defense moved to bar the testimony of Slottje.  The court said: “[T]he methods and principles used by Slottje in reaching his opinions certainly have a sound basis in the field of economics. . . The question of whether Slottje’s opinions are accurate in light of his use of United States figures for worklife expectancy is a question that goes to the weight, not the admissibility, of this evidence. In fact, Columbia’s own expert . . . used the same methodology as Slottje in reaching his opinions regarding Garcia’s past and future earnings. . . he too substituted data for worklife expectancy in the United States for the unavailable Mexican data.” 

In Re: Vioxx Products Liability Litigation, 2007 U.S. Dist. LEXIS 40612 (E.D. La. 2007).  The plaintiff was granted a new trial on the ground that a defense witness, Dr. Barry Rayburn, had testified that he was a board certified cardiologist when, in fact, he was not a board certified cardiologist.  

Jack v. Schlumberger Technology Corp., 2008 U.S. Dist. LEXIS 13530 (W.D.La. 2008) This is a one page memorandum responding to plaintiff’s motion for a Daubert hearing to determine whether Dr. Kenneth Boudreaux could testify based on the Camus study. The judge denied the motion as not needed because he was ruling that Boudreaux’s testimony was excluded to the extent that it relied upon the Camus study, for which Dr. Boudreaux’s testimony had been excluded fourteen years earlier in Marcel v. Placid Oil, 11 F.3d 563 (5th Cir. 1994). The Camus study allegedly measured worklives over oilfield workers. The defendant did not oppose this ruling.  

Miller v. Burlington Northern, 2001 U.S.Dist. Lexis 16650 (N.D.Tex 2001). This is a short, very well written memorandum Robert K Roach, U.S. Magistrate Judge, admitting the economic damages testimony of Jeffrey Opp, the economic expert for the plaintiff under the Daubert standard. Judge Roach said: “The knowledge and skills used by Opp in assembling and compiling the data, performing mathematical calculations, selecting the formulae (functions) to be applied to the data, charting the results, and then summarizing the end figures in mathematics do not require special college courses or post-graduate education. The methodology is not a proper subject for peer review. The bachelor’s degree in economics which Opp holds reflects the degree of mastery of basic mathematical, statistical and language skills necessary to perform the compilations, calculations and formulae selections used by Opp in his analysis and making his report. Brain surgery, it ain’t. . . . Mathematics is not junk science. Defendant’s Daubert motion is overruled. Opp can testify.” 

Owens v. Excel Management Services, Inc., 2003 U.S. Dist LEXIS 20296 (N.D.Texas 2003).  The testimony regarding back pay and front pay damages of economist J. Herbert Burkman, Ph.D., was permitted after a Daubert hearing. Dr. Burkman’s testimony was challenged on the grounds of his assumption that she would maintain her earnings if she had transitioned with fellow employees to a new department and because he had projected her earnings to age 70.  The court said regarding his age 70 projection: “Nor does Dr. Burkman’s decision to project plaintiff’s future lost wages to age 70 dictate that his testimony be stricken. Dr. Burkman based his estimate of front pay damages on plaintiff’s stated desire to work until age 70, if possible. . . . Although worklife expectancy tables estimate that a 54-year old college educated woman will likely retire in her mid-sixties, nothing in Daubert or its progeny requires an expert’s testimony to be circumscribed by statistical averages when evidence in a particular case supports a different conclusion. A jury can easily recalculate earnings if it finds that retirement at an earlier age is warranted.” 

Ostrowiecki v. Agressor Fleet, Ltd., 2008 U.S. Dist. LEXIS 59586. This is a memorandum denying a plaintiff motion in limine to preclude the defense testimony of economist Dr. Kenneth Boudreaux and a defense motion in limine to preclude the plaintiff testimony of economic expert Holly Sharp. Daubert standards were used. Judge Lance M. Africk rejected each defense and plaintiff argument by saying that vigorous cross examination was the correct method to deal with the issues being raised, not the barring of expert testimony. Sharp had projected several damages not projected by Boudreaux, one of which was loss of accumulations to an estate. Boudreaux argued that any such calculation was inherently too speculative for him to project. Sharp had provided a projection. One other key difference between the experts was that Sharp had projected a loss from the sale of the decedent’s business after the decedent’s death, while Boudreaux had not done so.

Scardina v. Maersk Line, LTD., 2002 U.S. Dist. LEXIS 13468 (E.D.LA. 2002). This legal memorandum responds to motions to limit the testimony of Dr. G. Randolph Rice, an economist, and to strike the report and testimony of Dr. Fereydoun Aghazadeh, an Industrial Engineer/Ergonomist. Both motions were granted. The Court said of Dr. Rice: “Dr. Rice, plaintiff’s expert economist, is expected to testify as to plaintiff’s economic damages, that is lost past and future income. In a report dated December 12, 2001, Dr. Rice set forth various projections using an annual wage base of approximately $30,000.00. Plaintiff’s average annual earnings in the three to five years preceding the accident were approximately $26,000. His annual earnings for the five years from 1994 through 1999 varied from a low of $15,895 to a high of $39,536.06 in 1996. On April 29, 2002, Dr. Rice produced a second report at the request of plaintiff’s counsel. This report based plaintiff’s ‘impairment of earning capacity’ on projected annual incomes of $38,481.00 and $76,962.00, which of course produced much higher economic damages. . . It is the provenance of the Court to assure that an expert’s testimony is not based on evidence that is speculative and conjectural, but is sufficiently tied to the facts of the case so that it will actually assist the trier of fact in resolving a factual dispute or to understand the evidence. Daubert, 113 S.Ct at 2795. The court concludes that Dr. Rice’s testimony as to his supplemental opinion based on projected annual incomes of $38,000 and nearly $77,000 is not sufficiently tied to the facts or supported by the evidence available to the Court at this time, and is therefore excluded, subject to the Court’s reconsideration of the issue should evidence be introduced at trial provide sufficient factual basis for such testimony.”

Stewart v. Rowan Companies, Inc., 2002 U.S. Dist. LEXIS 4135 (E.D.LA 2002). This is a memorandum allowing Shael Wolfson was permitted to testify about economic damages. The defendant had challenged the admissibility of Wolfson’s testimony on the basis that only a Ph.D. in economics is qualified to offer an opinion of plaintiff’s economic damages. The court said: “Wolfson possesses a masters of science degree in economics from Florida State University, and is currently pursuing a doctorate in economics at Louisiana State University. In addition, he has published journal articles on the topic of calculating economic damages. He has been qualified in state court cases. . .The absence of a doctorate does not compel the conclusion that he is not qualified to testify as an expert economist. . . . Indeed, defendant gives no reason why a person with a master’s degree in economics is not sufficiently schooled in economics to estimate economic losses. The Court finds Wolfson sufficiently qualified to render an opinion on plaintiff’s economic losses.” 

Taylor v. Air Logistics, Inc., 1988 U.S. Dist. Lexis 7409 (E.D. LA 1988). This memorandum and order discusses the litigative history of a decision that was originally reached on April 21, 1983 and therefore fell under Culver I and not Culver II.  The decision went through appeals to the 5th Circuit Court of Appeals and came back again with instructions that the trial court set damages for lost household services.  The plaintiff’s economist was a “Dr. Goodman,” while the economist for the defense was Kenneth Boudreaux.  It is indicated that damages were based on a wage growth rate of 5.3 percent and the discount rate was 10.25 percent, as used by both economists, who nevertheless came up with slightly different present values for lost earnings based on differences in the way taxes were calculated. Dr. Goodman came up with $294,747.02 and Dr. Boudreaux came up with $294,002.00. With respect to household services, Dr. Goodman found $34,075.48 and Dr. Boudreau found $25,002.00 The judge accepted Dr. Goodman’s figure in determining final damages. There was also a long discussion of the amount to award for pre judgement interest. 

Utsey v. Olshan Foundation Repair Company, 2007 U.S. Dist. LEXIS 85918. (E.D. La 2007). This memorandum by Judge Helen G. Berrigan denied a motion to exclude the testimony of economic expert Dr. Randolph Rice. This is a Daubert-Kumho review. Defendants had charged that Louisiana law required the testimony of a vocational expert as a foundation for an expert opinion of earnings loss by an economist.  Judge Berrigan wrote: “Although defendants’ argument may be correct regarding the amount of money the plaintiffs could recover in state court, the defendants have not provided any federal authority to support their argument to exclude Rice’s expert report under the federal rules of evidence . . . Therefore, the defendant’s concern about the factual basis of Rice’s report is best resolved by vigorous cross examination and the presentation of contrary evidence.” 

Vienne v. American Honda Motor Company, Inc., 2001 U.S. Dist. LEXIS 606 (E.D.La. 2001). 
The District Court held that Barney Hedgewood, a vocational rehabilitation expert, had sufficient training and experience to be allowed to testify about his life care plan for the plaintiff after a consideration of Daubert standards.

Vogler v. Blackmore, 2003 U.S. App. LEXIS 24020 (5th Cir. 2003). This decision affirms a trial court decision to admit the testimony of “grief expert” in “thanatology,”Dr. Phyllis Silverman, who had a bachelor’s degree in psychology and sociology, a master’s degree in social work, and a Ph.D. in public health. The court added the following: “Further, even if we were to find that the district court abused its discretion in admitting Dr. Silverman’s testimony, the admission of that testimony was harmless. The facts of this case are tragic: a mother and child are dead, leaving a grieving father to care for his wife’s children from a prior marriage while attempting to care for himself. Evidence presented by the collective Plaintiffs at trial included pictures of a happy family and the mangled, flattened remains of Mrs. Vogler’s car. It is highly unlikely that Dr. Silverman’s testimony aided the jury’s resolution of this case or in its awards to Mr. Vogler.”  There is also discussion of a 50 percent multiplier between a jury’s award of economic damages and the allowable size of an award for future mental anguish and future loss of companionship. The 5th Circuit seemed to be saying that the multiple was between economic damages that the jury could have awarded and the allowable size of the award for future mental anguish and loss of companionship. The economic expert had testified to future earnings loss between $455,000 and $700,000, with an addition of $200,000 for the value of household services. Thus, the 5th Circuit said that $900,000 could have been awarded. Submitted by Jerry Martin.

Walker v. Yellow Freight Systems, Inc., 1999 U.S.Dist. LEXIS 15012 and 1999 U.S.Dist LEXIS 16128 (E.D.La 1999). In the first order (9/23/99) defendant’s motion to prohibit testimony by economic expert Robert Johnson was denied in a Daubert hearing. Kenneth Boudreaux was the economic expert for the defense. Of major focus was Johnson’s assumption that the decedent had contributed 35 hours per week of household services based on the Peskin study, which projected 15.1 hours per week. It appears that Johnson had used the value per hour from the Peskin study. The court said: “Because the Peskin study itself is reliable, the Court assumes that any figures it provides are reliable. In his affidavit, Dr. Boudreaux is admittedly unfamiliar with the Peskin study and the Court does not give weight to his objections. The Court also discussed other questionable assumptions in Johnson’s report, but said that went to the weight of the evidence. The second order (10/19/99), interpreting Louisiana law, held that “loss of earning capacity may be factored into a loss of support calculation, since earning capacity is relevant to ‘the possibility of a decrease or increase in earnings.’ 

6th Circuit

    Court of Appeals

Leap v. Malone, 1996 U.S. App. LEXIS 33965 (6th Cir. 1996). The 6th Circuit affirmed the jury decision to award Christina Leap $100,000 for lost earning capacity. Dr. Anthony Gamboa had projected her earnings loss at between $906,000 and $1.4 million. The Court noted that the former figure had been described as “extraordinarily optimistic.” One of the sources for the appeal was that “Dr. Gamboa’s testimony was ‘unimpeached [and] uncontradicted.’” The court rejected that argument, say: “Defense counsel conducted an effective cross-examination of Dr. Gamboa, exposing apparent weaknesses in his position. And the jury could reasonably have concluded that the dismal picture of Miss Leap’s future presented by Dr. Gamboa was contradicted by other evidence.”  

Birge v. Dollar General Corporation, 2006 U.S. Dist. LEXIS (W.D.TN 2006). This is a decision of a U.S. District Judge affirming the decision of a Magistrate Judge’s order to exclude the testimony of Dr. David Ciscel. The Magistrate Judge had found that Dr. Ciscel was qualified to offer expert testimony concerning lost future income, but conclude “that Dr. Ciscel’s testimony was too speculative and unreliable to be admissible at trial because it was based on insufficient information about Dexter Birge’s income, both past and future, and B’s Quick Shop’s payment of wages to the decedent. The Magistrate Judge had recited testimony from Dr. Ciscel that $50-a-day wage data provided by Robert Birge, the decedent’s father, was “useless information.” However the appeal requested that Dr. Ciscel be permitted to testify based on either $50-a-day or minimum wage. This request was denied as “untimely.” 

Ogden v. St. Mary’s Medical Center, 2007 U.S. Dist. LEXIS 41853 (E.D. Mich. 2007).  This is a order from Judge Thomas Luddington denying without prejudice a motion to strike plaintiff’s proposed economic expert, Dr. Frank Stafford of the University of Michigan. The memorandum details of the methodology used by Stafford to project losses in an employment discrimination case. Stafford had assumed an earnings basis of “about” $25,000, an assumed rate retirement age of 65, and an inflation rate of 3% which was added to his projection of annual salaries, and a 24 percent fringe benefit rate. Defendants raised a variety of objections under Daubert-Kumho, including his use of a flat 24% rate for fringe benefits, double counting involved with both salary increases and the addition of inflation at 3% and use of a retirement age of 65 instead of work-life expectancy tables. Judge Luddington said: “Although Defendants criticize the selection of certain assumed values or the selection of a particular financial information as relevant over other data, Defendants have not suggested that the fundamental approach taken by Plaintiff’s proposed expert departs from accepted practice in the field of economics. Defendants have not offered any affidavit from another economist, for example, that the proposed expert’s methodology represents a departure from accepted discipline. The proposed expert has not articulated the algorithm employed to produce his projection, but neither have Defendants identified any defect on that point.”

7th Circuit

   Court of Appeals

Huey v. United Parcel Service, 165 F.3d 1084 (7th Cir. 1999). This decision affirms a trial court decision not to permit the testimony of Q. R. Verdier, referred to by Judge Easterbrook in quotes as a “forensic vocational expert.” Verdier had written a letter to the plaintiff attorney, who had turned it over in discovery as the report of the expert. Easterbrook continued: “As far as this letter reveals, Verdier did nothing but talk to Huey, read documents that Huey’s counsel sent, and write a letter. Verdier does not describe the reasoning used to reach his conclusion. During an offer of proof, Verdier was clear about the limits of his inquiry and the basis of his opinion. Asked if he did more than accept Huey’s view that UPS retaliated, Verdier replied: ‘I think he’s the one that [sic] best knows what happened in the situation.’ This will not do as the work of an expert.” 

In Re Brand Name Prescription Drugs Antitrust Litigation, 186 F.3d 781 (7th Cir. 1999).  This is a classic Richard Posner decision on an appeal of the trial court decision in which the trial court judge excluded most of the testimony of Dr. Robert Lucas, a Nobel prize winning economist under a Daubert standard. Judge Posner wrote: “But what was objectionable about his evidence actually had nothing to do with Daubert, it was that the evidence mainly concerned a matter not in issue – that the manufacturers of brand name prescription drugs engage in price discrimination, showing that they have market power. Everyone knows this. The question is whether the market power owes anything to collusion. (Even if it did, we remind that to obtain damages the plaintiffs would have to separate the price effects of collusion from the price effects of the plaintiff’s lawful market power. Blue Cross & Blue Shield United of Wisconsin v. Marshfield Clinic, 152 F.3d 588, 593-94 (7th Cit. 1998). On that, Lucas had virtually nothing to say. It is irrelevant, therefore, that, as the plaintiffs point out, the district judge erred in excluding Lucas’s testimony on the grounds that he did – that Lucas had not studied the prescription drug industry in depth and had formulated his tentative opinion after working on the case for only 40 hours. His opinion that there is price discrimination in the prescription drug industry is one that an economist of Lucas’s distinction should have been able to reach in even less time. Indeed the existence of price discrimination should have been removed as an issue at trial by a stipulation of the parties. 

Large v. Mobile Tool International, Inc., 2007 U.S. Dist. LEXIS 55463 (N.D. Ind. 2007). This opinion and order of Judge William C. Lee rejected defendant’s motion for summary judgment with respect to a number of issues. One of those issues was that “Large’s claim for future wage loss fails because he has not identified a forensic economist and has not identified any witness who will present admissible testimony regarding a present value calculation of his future economic loss.” The plaintiff identified Mr. Peder Melberg, a vocational rehabilitation expert, regarding future economic loss.  The opinion identified the methods uses by Melberg, which did not include a reduction to present value. Judge Lee held that Large had presented sufficient evidence to meet his initial burden, that the defense was free to demonstrate the weakness of Melberg’s opinions, that 7th Circuit law did not require reduction of a loss claim to present value, and indicated that the defendant could challenge Melberg’s credentials in a Daubert hearing. Judge Lee added: “If the defendants desire present value calculations, the better reasoning is to require them to present such evidence.” “Them” in this context appears to refer to the defendants.

Quirin v. Wingfoot Commercial Tire Systems, 2006 U.S. Dist. LEXIS 36472. (C.D. IL, 2006). Economic expert Dr. Leroy Grossman had projected personal injury losses of the Plaintiff on the basis that the Plaintiff was totally disabled or able to earn only the minimum wage. The defense challenged the admissibility of Dr. Grossman’s testimony on the basis that these assumptions were not supported by the facts of the case. The Court agreed with Defendants that expert testimony should be excluded if it is based upon unprovable assumptions. The defendants cited Elcock v. Kmart Corp., 233 F.3d 734 (3rd Cir. 2000) in support of their position. In denying Defendant’s motion, the Court cited differences between Elcock and the case at hand. There was evidence that Mr. Quirin had been unable to obtain work since his injury. “Further, unlike Elcock, Dr. Grossman’s calculations were based upon Mr. Quirin’s actual pre-injury income.” 

Sokol v. Akron Gen. Med. Ctr., 1997 U.S. Dist. Lexis 22078 (N.D.Ohio 1997). This decision related to the admissibility of an affidavit by David M. Eisenstadt, Ph.d., the plaintiff’s economic expert in an antitrust action.  The court cited Ohio v. Louis Trauth Dairy, 925 F.Supp. 1247 (S.D.Ohio 1996) as applying “a modified Daubert analysis to an economist’s testimony based on a statistical multiple regression analysis” and In re Aluminum Phosphide Antitrust Litigation, 893 F.Supp. 1497 (D.Ka. 1995), in which the court applied a modified Daubert analysis and held that an economist’s testimony regarding price declines attributable to a conspiracy was admissible. The court then concluded that it would review Eisenstadt’s affidavit to determine whether Eisenstadt’s testimony is based on valid economic reasoning, saying, “The court’s focus is on the principles and methodology used by Eisenstadt and not on the resulting conclusions.”

   District Courts in the 7th Circuit (IL, IN, WI)

8th Circuit

    Court of Appeals

Blue Dane Simmental v. American Simmental, 178 F. 3d 1035 (8th Cir. 1999). This was a contract violation case, not a personal injury, but the testimony of Dr. Alan Baquet, an agricultural economist, was excluded based on Daubert standards and the exclusion was upheld by the 8th Circuit Court of Appeals. Dr. Baquet was found qualified, but his methodology was found unreliable and "simplistic.

Children’s Broadcasting Corporation v. The Walt Disney Company, 245 F.3d 1008 (8th Cir. 2001). The trial court had granted a new trial based on its own failure under a Daubert standard to have excluded the testimony of Stephen Willis, apparently an accountant. The trial court found that the testimony of Willis was based on an incomplete model and constituted nothing more than speculation based on the ipse dixit of the expert. The 8th Circuit upheld the decision of the trial court judge to grant a new trial on this basis. (Submitted by Frank Tinari.)

Concord Boat Corp. v. Brunswick, 207 F.3d 1039 (8th Cir. 2000). This was an antitrust action, but the trial court judge had admitted the testimony of Dr. Robert Hall.  The 8th Circuit Court of Appeals found that Dr. Hall's model was unreliable for several reasons. This is notable because the "Reference Guide on Estimation of Economic Losses in Damages" in the Reference Manual on Scientific Evidence, first and second editions (1994 and 2000) was written by Robert Hall and Victoria Lazear. Even this kind of credential is not sufficient to avoid not being allowed to testify under Daubert standards.

Johnson v. Serra, 521 F.2d 1289 (8th Cir. 1975). Economist Edward Foster’s projections of future inflationary increases in earnings through the year 2002 should have been inadmissible under Minnesota law according to the 8th Circuit. The court said: “His testimony on future inflationary projections through the year 2002 should . . . have been excluded as speculative and the excessive verdict obviously derived from it must be reduced or, in the alternative, a new trial granted.” The 8th Circuit cited federal cases not allowing inflationary projections to be made, as in Johnson v. Penrod Drilling Co, 510 F.2d 234 (5th Cir. 1975) (en banc).

Meterlogic, Inc. v. KLT, Inc., 2004 U.S. App. LEXIS 10149 (8th Cir. 2004). The 8th Circuit reviewed for abuse of discretion the trial court’s decision to exclude the damages testimony of Lawrence Redler. “Redler was to testify regarding the discounted present value of Meterlogic’s now-defunct business of providing remote monitoring services for business machines. He predicted financial results ten years into the future even though the parties’ contract extended only two years and allowed for termination at any time; he assumed that Meterlogic would be the sole representative of the appellees, even though the contract was a non-exclusive agreement; he assumed that the parties would have 30% market share in the remote monitoring and metering market, but admitted that he had no market research to support that estimate; he assumed 15% annual growth without any data indicating that the estimate was realistic; he admitted to having no data on how many remote monitoring and metering devices would be sold; and he admitted that he based his analysis on the so-called Metzler report, which was prepared for KLT only as an investment planning tool. . . We conclude that the district court did not abuse its discretion by excluding Redler’s testimony.”  Submitted by both David Jones and Ralph Frasca.

Peitzmeier v. Hennessy Industries, Inc., 97 F.3d 293 (8th Cir. 1996).  This 1996 decision of the 8th Circuit Court of Appeals rejected the notion that engineering principles were not novel scientific testimony and therefore not subject to the standards of Daubert v. Merrell-Dow Pharmaceutical, Inc., 509 U.S. 579.  Thus, the 8th Circuit had anticipated the conclusion reached by the United States Supreme Court in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).

     District Courts in the 8th Circuit (AR, IA, MN, MO, NE, ND, SD)

Hammes v. Yamaha Motor Corp. U.S.A., 2006 U.S. LEXIS 26526 (D.MN 2006). Dr. Paul Estenson was permitted to testify under Daubert-Kumho standards. The court cited the following credentials: “Estensen is a trained economist with a Ph.D. in economics from the University of Nebraska-Lincoln. He has taught college-level courses, worked in the research department of the Federal Reserve Bank of Minneapolis, and been a member of the research department of the Federal Reserve Bank of Minneapolis.” The court also said: “The methods employed by Estensen have been utilized by other economists. Furthermore, Estensen’s failure to employ a specific test, the “Worklife Estimates by Occupation” which assumes that individuals do not change careers, does not undermine the reliability of his methods. . . Estensen’s technique has been tested and employed by other expert economists; it has been subject to peer review; does not have a known rate of error; and is generally accepted in the economics community.” The Court also ruled that Estensen’s failure to incorportate such factors as the possibility of a previous injury and his use of a Monte Carlo simulation to verify the accuracy of his analysis did not disqualify him. Finally, the Court held that Estenson’s projection that value of Hammes’ household services will increase over time did not undermine the reliability of his conclusions. “This is an issue of fact that goes to the weight of the evidence, not to admissibility.”

Hernandez v. Flor, 2003 U.S. Dist. LEXIS 1732 (D. Minn 2003).  Defendants sought to exclude testimony about the valuation of emotional services by economist, Dr. Gene Trevino, based on the arguments that emotional services are not a proper topic for expert testimony and that Dr. Trevino was not qualified to testify as to the dollar value of emotional services that the decedent Cruz would have provided to his family. The District Court allowed the testimony saying that “Defendants can make their objections through cross-examination,” but indicated that it would determine at trial whether various parts of Trevino’s testimony lacks the requisite foundation or is admissible.

Kinnaman v. Ford, 2000 U.S. Dist. LEXIS 235, (E.D.Mo 2000). The court denied the admissibility of vocational expert Sherry Browing under the Daubert standard, saying: [T]here is simply no corroborating evidence of Browning's testimony and exhibits that the methodology she has employed to develop her conclusions is an acceptable methodology and has been tested and is generally accurate. There is nothing in the record to support Browning's methodology other than that she promulgated it, and that it is used by other persons in her discipline. The expert's bald assurance of validity is not sufficient to show that her methodology meets a proper standard of reliability.”

Norwest Bank v. K-Mart, 1997 U.S. Dist. LEXIS 3426 (N.D. Ind. 1997). The Judge Robert L. Miller granted defendant’s motion in limine to exclude the testimony of Dr. Robert Voogt, a life care planning expert. Judge Miller said: “Dr. Voogt’s ‘forecasts’ of Mrs. Frick’s present and future medical needs are not admissible. This leaves the other class of opinions plaintiffs wish to offer through Dr. Voogt: his cost valuation of the life plan he outlined. Cost evaluation does not require medical expertise, and Dr. Voogt plainly has the requisite experience to make his opinion relevant to the trier of fact. It does not appear, however, that those opinions are based on any evidence other than Dr. Voogt’s inadmissible opinions on the care Mrs. Frick will need.  It does not appear from the record that any health care provider will testify that Mrs. Frick will need the course of treatment upon which Dr. Voogt based his cost valuations. Dr. Voogt testified that he has not discussed the plan’s components with Mrs. Frick’s treating physicians, either before or after devising the plan. No other health care provider has recommended all of the plans components, and it does not appear that any other health care provider recommended any single component of the plan other than Mrs. Frick’s current pharmaceutical prescriptions. An opinion without foundation in the record has no probative value, and so is neither relevant with the meaning of Rules 401 and 402 nor helpful to the trier of fact within the meaning of Rule 702.”

Self v. Equilon Enterprises, LLC, 2007 U.S. Dist. LEXIS 47381 (E.D. Mo 2007).  This memorandum grants a motion to strike the reports of two damages experts of the plaintiff. The report of Richard Berliner, a petroleum marketing executive, about the scope of competition between gasoline retail outlets. The court cited Berlyn, Inc. V. The Gazette Newspapers, Inc, 214 F. Supp. 2d 530, 536 (D. Md. 2002) as holding that general business experience unrelated to antitrust economics does not render a witness qualified to offer an opinion on complicated antitrust cases such as defining relevant markets. The court said: “Applying the foregoing to the Berliner report, the undersigned finds that Berliner is not qualified and even if qualified, his opinion is not reliable, in that it is based on insufficient facts and unsound methodology for the reasons set forth. Berliner is not an economist. As noted by Defendants, the Court finds that Plaintiffs concede that Berliner is not qualified to render an opinion as to the relevant geographic market by arguing that they do not ‘rely on Mr. Berliner’s expertise for complicated issues such as defining relevant markets.’ Thus, Berliner’s expert report clearly purports to render an expert opinion defining the relevant geographic market in contradiction to Plaintiffs’ concession that he is unqualified to offer such opinions.”

9th Circuit     

    Court of Appeals

Cooper v. Travelers, 113 Fed. Appx. 198, 2004 U.S. App. LEXIS 21324 (9th Cir. 2004). Robert Johnson’s testimony in breach of implied covenant case was properly excluded by the district court under Rule 702. “Johnson himself testified during voir dire that in his normal professional practice he would verify client-provided data before relying on it to reach a conclusion. Yet, Johnson, who intended to base his opinion solely on data provided by Cooper, failed to follow this procedure. Because Johnson’s testimony was not based on the type of data on which experts in economics would reasonably rely, and Johnson admitted as much during voir dire, the district court did not abuse its discretion when it excluded the testimony.”

Daubert v. Merrell Dow Pharmaceuticals, Inc, 43 F.3d 1311 (9th Cir. 1995)(Daubert II). This is the decision following remand from the United States Supreme Court back to the 9th Circuit Court of Appeals. It emphasizes the value of demonstration that theories underlying testimony are used for purposes other than litigation and lays out a more complete list of Daubert standards.

Trevino v. Gates, 99 F.3d 911 (9th Cir. 1996), an unnamed economist projected the lost earnings of decedent Juan Bahena on the basis of an assumption that Bahena was employed as a full time mechanic when he was killed. The plaintiff was Behena’s infant child, whose last name was Trevino and with whose mother Bahena lived.  The court said: “The only foundation laid for this assumption was testimony that (1) Bahena left in the morning and returned in the evening; (2) he gave Trevino’s mother money at fairly regular intervals; and (3) he was observed on a few occasions working on cars.” The economic expert’s testimony was not admitted.

Alvarado v. Loftus, 2007 U.S. Dist. LEXIS 19245 (D. Co. 2007). Judge Blackburn denied defendant’s motion to exclude the testimony of economist John O. Ward. This case involved the wrongful deaths of two Mexican nationals who were visiting the United States. One was a 10 year old male child and the other was a seventy one year old female. Ward had used data from the United States for growth rates, employment data, wage data, and mortality tables. Ward used an “average adjustment factor to deflate potential losses to standards in Mexico.” Judge Blackburn questioned the adjustment factor, but held that: “[T]his conversion constitutes the application of reasonably reliable principles and methods to the facts known to Dr. Ward, and other analyses made by Dr. Ward. Under these circumstances, vigorous cross examination, presentation of contrary evidence, and careful instruction on the burden of proof are the appropriate means for challenging the principles and methods used by Dr. Ward.”

Hayes v. Wal-Mart Stores, Inc., 294 F. Supp. 2d 1249 (E.D. Okla 2003). The court granted defendant’s motion in limine to bar proposed economic expert testimony by Dr. Will Clark on punitive damages. Clark had suggested using total dividends of Wal-Mart as a measure of punitive damages that would not cause irreparable financial harm to Wal-Mart. Citing Voilas v. General Motors Corp., 73 F. Supp. 2d 452, 464 (D. N.J. 1999), the court said: “[H]is opinion amounts to little more than speculation as to what the effect on Wal-Mart will be if the jury were to calculate an award of punitive damages as equal to or less than dividends paid. Such a conclusion (so far as the present record reflects) has not been tested or subjected to peer review, has no known error rate and has not been accepted in the community of economists. There is no methodology revealed by which he reaches his conclusion. Indeed, the Court speculates that if Dr. Clark could, in fact, accurately predict the financial consequences of the suggested punitive damages, he would be making millions by conulsting for Wall Street investment banks. His curriculum vitae, however, does not record such experience

Law v. National Collegiate Athletic Association, 1998 U.S. Dist. LEXIS 6640 (D. Kan. 1998). The testimony of Dr. Robert Tollison was challenged in a motion in limine under a Daubert standard in an antitrust action. Tollison was the plaintiff’s expert and Dr. John R. Umbeck was the defendant’s economic expert. The court began by noting that Dr. Tollison’s credentials “are both undisputed and beyond dispute.” The decision is detailed in its description of Tollison’s methods and the challenges made to them by Umbeck. The court’s treatment of Umbeck is less respectful, noting various things that Umbeck did not do that would have been warranted by his criticism, saying at the end of which: “Therefore, except to the limited extent discussed below, we are left with a hodge-podge of miscellaneous attacks on so-called ‘absurd results’ and ‘faulty assumptions,’ cute rhetorical strategems, and unsubstantiated speculation about problems that may or may not infect Dr. Tollison’s work.” 

Nielberger v. FedEx Ground Package Sys., 566 F.3d 1184 (10th Cir. 2009). The testimony of life care planning expert Doris Shriver and economic expert Thomas Roney regarding past medical expenses had been excluded at the trial court level based on a failure of the Plaintiff to provide testimony by a treating physician to establish that the Plaintiff’s medical expenses were reasonable and necessary to treat injuries caused by the accident (as compared with a pre-existing scoliosis condition). The plaintiff failed to provide a record of the testimony of Shriver that included Shriver’s testimony, but it appeared that the only basis for past medical expenses was testimony by the plaintiff herself, which the 10th Circuit did not consider qualified. Shriver and Roney were apparently allowed to present testimony about future life care costs. The 10th Circuit upheld the trial court decision.  Suggested by Bob Taylor.

North v. Ford Motor Company, 2007 U.S. Dist. LEXIS 4869 (D.UT 2007). Ford had filed an evidence spoliation claim and five motions in limine under a Daubert standard in a wrongful death action governed by Utah law. Judge Stewart provided citations to10th  Circuit decisions regarding the interpretation of Daubert and rejected all but one of the motions in limine, dealing with each of them separately. The memorandum does not give the first names of the experts. The one motion in limine that was granted was for a “Dr. Jorgenson,” who is a psychologist. Vocational expert “Ms. Wilson” an economist “Dr. Philips” were allowed to testify. The judge wrote: “Dr. Philips is an economist. Ford sees to exclude the opinion of Dr. Phillips regarding Steven North’s future economic losses on essentially the same grounds as it challenged Ms. Wilson’s opinion–that it disregards the real facts of Steven North’s employment, education, earnings and training. Ford also seeks to exclude Dr. Philips’ opinion on Nicole North’s economic losses on the ground of lack of foundation. This Court finds that Ford’s objections are matters relating to the credibility of this witness and the weight that the jury may give to his opinions. Having reviewed the record on this Motion, the Court finds that Dr. Phillips’ opinions as to future economic losses meet the Daubert standard for admissibility.”   

Robertson v. Hecksel, 2005 U.S. App. LEXIS 17201 (11th Cir. 2005). The mother of a 30 year old adult decedent brought an action for her own loss of support, loss of companionship, and pain and suffering resulting from the death of her son in a 42 U.S.C. § 1983 action on the basis of a deprivation of her Fourteenth Amendment right to a relationship with her adult son. This claim was dismissed by the trial count. The dismissal was affirmed by the 11th Circuit on the grounds that there is no constitutionally-protected liberty interest in a continued relationship with an adult child. The 11th Circuit pointedly did not minimize the value of the loss of such a relationship, but said: “[I]t is the province of the Florida legislature to decide when a parent can recover for the loss of an adult child. We will not circumvent its authority through an unsupported reading of the Fourteenth Amendment.”  

Tucker v. Fearn, 2003 U.S. App. LEXIS 11536 (11th Cir. 2003). This decision holds specifically that loss of society damages resulting from the death of a minor child cannot be recovered by a parent under general maritime law. The implication, however, is that loss of society damages are not allowable under any circumstances in maritime law. The decision reviews the different maritime acts that authorize wrongful death litigation and the decisions that have previously been reached to preclude loss of society damages under those acts. In 1978, the U.S. Supreme Court disallowed loss of society damages under the Jones Act in Mobil Oil Corp. v. Higginbotham, 436 U.S. 618 (1978) and under the Death on the High Seas Act (DOHSA) in Miles v. Apex Marine Corp., 498 U.S. 19 (1990). 

Kearney v. Auto-Owners Insurance Company, 2007 U. S. Dist. LEXIS 80378 (M.D.Fla. 2007). This memorandum from magistrate judge Thomas G. Wilson recommends denying a motion in limine by the plaintiff to deny the testimony of Dr. Michael Piette. The memorandum discusses Dr. Piette’s methods at some length. Judge Wilson indicated that the arguments used by the plaintiff are arguments that go to the weight of Dr. Piette’s testimony, not its admissibility. One argument made by the plaintiff was that Dr. Piette’s testimony should be excluded because “[t]he determination of a plaintiff’s loss of earning capacity is not something beyond the understanding of the average citizen.” About this argument, Judge Wilson said: “The notion that the testimony of an experienced economist would not assist the jury in determining the plaintiff’s pre-accident earning capacity is, on its face, preposterous, and it is belied by the plaintiff’s proffer of his own expert economist on this issue.”

Matter of the Adventure Bound Sports, Inc. and Andre Smith, 858 F.Supp. 1192 (D.Ga. 1994).  This case was tried under the Death on the High Seas Act (DOHSA). It involves complex issues of lost earnings and fringe benefits based on the projection that the decedent would have remained in the military until eligible for military retirement. He would then have gone to work in the private sector. The court assesses the impact of the death on the family’s access to various military benefits and then the projection of the plaintiff economic expert, Dr. Costen that private employment fringe benefits should be calculated at 15 percent of wages. There is a claim by another woman that the decedent was the father of her child, a child from a previous marriage, claims for lost college educations by the children of his marriage, claims of lost household service, loss of nurture and guidance (which was allowed), gifts to the child from the previous marriage, claim of loss of college education by that child, loss of inheritance, collateral source issues, calculations of taxes, an prejudgement interest. The court also provides an assessment of the impact of Culver II and the fact that it was overridden by Monessen S.W. Ry Co. v. Morgan.  This is a decision that is twenty two pages in single spaced text, but all of which is concerned with matters of damages relevant to a forensic economist. 

Federal Circuit

    Court of Appeals

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The source of the Frye test that was replaced by Daubert-Kumho standards as the basis for admissibility of expert testimony.

Joy v. Bell Helicopter Textron, Inc, 999 F.2d 549 (D.C. Cir 1993). Dr. John Glennie had projected four earnings loss scenarios for the decedent, Mr. Joy. Tax returns indicated that prior to his death, Mr. Joy and his wife operated a toy store and had reported $14,680 on his tax returns, with an equal amount reported by his wife.  The lowest of four future earnings rates used for future projections was $35,907, with values ranging up to $97,536 based on a consulting career Mr. Joy had mentioned thinking about on one occasion. The court found all of Dr. Glennie’s projections speculative and did not allow him to testify.

Oldham v. Korean Airlines Co., LTD., 127 F.3d (C.A.D.C. 1997). Testimony by an economic expert was admitted. 

       District Courts in the Federal Circuit (Washington, D.C.)

Butera v. District of Columbia, 83 F.Supp. 2d 25 (D. Dist. Col. 1999). Defendants sought a new trial on the grounds that the Court had refused to strike allegedly inadmissible testimony by three experts, including an economist, Dr. Richard Edelman. The Court said: “Defendants state that Dr. Edelman’s testimony was speculative because the lost-future-earnings prediction was not based on Eric Butera’s work history. That argument, however, goes to the weight rather than the admissibility of the testimony. Dr. Edelman explained in great detail how he came to his predictions, and Defendants cross-examined him extensively. In any event, it is not improper for a calculation to be based upon earning potential rather than demonstrated earning capacity.”  

Logerquist v. McVey, 1 P.3d 113 (Ariz. 2000).   The Supreme Court of Arizona retained the Frye standard for admission of expert testimony, rejecting Daubert. More importantly, it held  even Frye does not apply when the nature of the testimony is not novel scientific evidence, saying: “Frye is inapplicable when a qualified witness offers relevant testimony or conclusions based on experience and observation about human behavior for the purpose of explaining that behavior.”  This was a 3-2 decision. The dissents from Justice Martone and Justice McGregor strongly urge the adoption of Daubert and Kumho. 

Arkansas

Farm Bureau Insurance Company v. Foote, 314 Ark. 105; 14 S.W.3d 512 (Arkansas 2000 ). In this decision, the Arkansas Supreme Court accepted Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, as binding in Arkansas cases. The Court pointed out that: “Two years before the Court’s decision in Daubert, this court adopted a strikingly similar approach to the admission of novel scientific testimony in Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). At issue was the contention of a plaintiff expert that a dog had an ability to detect accelerants in an arson investigation that exceeded that of all scientific tests. This contention was found not to pass muster.

Manus v. American Airlines, Inc., 314 F.3d 968 (8th Cir. 2003). Interpreting Arkansas law, The 8th Circuit upheld the trial court’s admission of testimony by economist, Dr. Ralph Scott. The 8th Circuit said:  “Dr. Scott testified as the earning capacities of cosmetologists, travel agents and high school graduates. He stated that travel agents and high school graduates have approximately the same earning capacity, and that cosmetologists have 60% of the earning capacity of travel agents. He resented the jury with three figures. The first was based on the value of the loss between the accident and trial. The second was the present value of the lost earning capacity of a travel agent for twenty-one years at full employment. The third was half the total of the second, which took into account the possibility that Stephanie might reenter the work force after approximately ten years or that she might work at 50% productivity. Dr. Scott also testified that if the jury wished to reduce the figure to an amount appropriate to a cosmetologist’s earning capacity, it could multiply the figures by 60%.” The court commented: “Although we are inclined to agree with the district court’s observation that the evidence of Stephanie’s loss of earning capacity ‘was not particularly strong,’ we conclude that it was not materially weaker than the evidence in Gibson and Coleman. [Gibson v. Garrison, 824 S.W.2d 829 (Ark. 1992); Coleman v. Cathey, 565 S.W.2d 426.]

Crenshaw v. County of Los Angeles, 2004 Cal App. Unpub. LEXIS 4377. This decision admitted the life care testimony of Sara Gruentz, a certified rehabilitation nurse, and rejected arguments that the testimony of economist David Barker should have been excluded. The defense had argued that Gruentz was not qualified to testify about what was required based on medical diagnosis. The challenge to Barker was based on the inadmissibility of testimony by Gruentz

People v. Leahy, 882 P.2d 312 (Calif. 1994). The Supreme Court of California emphatically retained the Frye standard for admission of expert testimony, rejecting Daubert.

Lindsey v. People, 892 P.2d (Colo. 1995). The Colorado Supreme Court retained the Frye standard, but noted that its version of Frye "is not far removed from evaluation required under FRE..702," which is the basis of the Daubert decision. 

Schultz v. Wells, 13 P.3d 846, 2000 Colo. J.C.A.R. 4821 (Colo.App. 2000). This decision discussed the relative standings of the Frye test and Colorado’s Rule 702 (which parallels the FRE 702) in providing the basis for admission of expert testimony. After extensive discussion, the court said: “Accordingly, we agree with the defendant that Colorado Rules of Evidence, rather than the general acceptance test required under Frye, provided the appropriate framework to determine the admissibility of the evidence at issue here. However, the trial court did not rely exclusively on Frye, but also analyzed the issue in depth under CRE 402 and 702. Thus, we conclude that the court’s consideration of the Frye test here was not inappropriate.”  There were several witnesses in question not in economics, but a vocational rehabilitation expert had projected earnings loss. The testimony of that expert was allowed to stand. 

Delaware

Bowen v. E. I. Dupont de Nemours & Co., 906 A.2d 787. (DE 2006). The trial court had excluded the testimony of two of the Plaintiff’s expert witnesses, prompting a Daubert review by the Delaware Supreme Court, which affirmed the decision of the trial court. The Court quoted Dura Auto. Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609 (7th Cir. 2002) to the effect that: “A scientist, however well credentialed he may be, is not permitted to be the mouthpiece of a scientist in a different specialty. That would not be responsible science. A theoretical economist, however able, would not be allowed to testify to the findings of an econometric study conducted by another economist if he lacked expertise in econometrics and the study raised questions that only an econometrician could answer.  If it were apparent that the study was not cut and dried, the author would have to testify; he could not hide behind the theoretician.” Economic issues were not central to the decision in this case. 

Porter v. Turner, 2008 Del. LEXIS 280 (Delaware 2008). The Delaware Supreme Court affirmed several trial court decisions, one of which was to allow the economic damages testimony of Andrew Verzilli for the plaintiff. One challenge to the testimony of Verzilli was that the medical expert had never clearly stated that life care would be needed throughout the plaintiff’s lifetime.  The Court indicated that the record did indicate that medical expert had expressed that opinion. The second challenge was based on the fact that Verzilli had been unaware of the plaintiff’s income from a “side job.” The Court indicated that the defendant had never produced any reliable figure to quantify Turner’s additional income at the side job and said: “To be sure, Verzilli’s failure to include an estimate of income from his ‘side job’ casts some doubt about the accuracy of his assumptions underlying his opinion about future lost income. That failure does not require a wholesale exclusion of his opinion about future lost income, however Porter’s contention that Verzilli’s opinion should be barred in toto clearly is a misplaced attack on the verifiability of Verzilli’s methodology based on Daubert. Porter challenges only Verzilli’s underlying assumptions, not the methodology that is based on the assumptions. Moreover, by vigorous cross examination, Porter’s counsel could highlight the inaccuracy or unreliability of Verzilli’s estimates based on his failure to consider the “side job” income. Porter’s counsel could and did attack the validity of the assumptions about Turner’s capacity to work that Verzilli relied upon when formulating his ultimate opinion. We note that the jury must have understood the significance of the assumptions’ questionable validity, because the jury discounted a portion of Verzilli’s projections, and awarded less than Verzilli’s combined estimates for future care and lost income.” 

Florida

Castillo v. E.I. Du Pont De Nemours & Co., 2003 Fla. LEXIS 1159; 28 Fla. L. Weekly S 538 (Fla. 2003).  The Florida Supreme Court reemphasized its commitment to the Frye standard rather than Daubert in quashing a Court of Appeals decision to reverse on the basis of the insufficiency of plaintiff’s expert testimony at the trial court level. Much of the emphasis was on the difference between rejecting testimony based on the conclusions that were reached versus the legitimacy of the method used to reach conclusions. The court cited the Illinois decision in Donaldson v. Central Illinois Public Service Co., 313 Ill. App. 3d 1051, 740 N.E. 2d 68 (Ill. 2000) as drawing a similar distinction between the legitimacy of the methodology compared with the correctness of the opinion derived from the methodology. 

Flanagan v. State of Florida, 625 So. 2d 827 (Fla. 1993). This decision reaffirmed “the basic principle that novel scientific evidence is not admissible in Florida unless it meets the test established in Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (D.C. Cir. 1993).  The Court said: “[P]ure opinion testimony, such as an expert’s opinion that a defendant is incompetent, does not have to meet Frye, because this type of testimony is based on the expert’s personal experience and training. While cloaked with the credibility of the expert, this testimony is analyzed by a jury as it analyzes any other personal opinion or factual testimony of a witness. Profile testimony, on the other hand, by its nature necessarily relies on some scientific principle or test, which implies an infalliability not found in pure opinion testimony.  The jury will naturally assume that the scientific principles underlying the expert’s conclusion are valid. Accordingly, this type of testimony must meet the Frye test, designed to ensure that the jury will not be misled by experimental scientific methods which may ultimately prove to be unsound.”

Florida Power & Light Company v. Tursi, 729 So. 2d 995 (Fla. App. 1999). The Florida Court of Appeals held that a treating physician’s testimony was admissible based on his knowledge and experience without requiring a Frye test that only applies to novel scientific evidence. 

Kallas  v. Carnival Corporation, 2009 U.S. Dist. LEXIS 33797 (S.D. Fla. 2009). District Judge Edwin G. Torres granted defendant’s Daubert motion in limine to exclude the expert witness testimony of economic expert Dr. Nitin Paranjpe on the subject of the lost earnings of Hailey Kallas alleged to have been caused by the death of Jonathan Kallas, the father of Hailey Kallas. Judge Torres described Dr. Paranjpe’s method of calculation as follows: “Dr. Paranjpe . . . purported to measure the loss in parental training and guidance to Hailey. . . He calculated the loss as the difference between obtaining a high school degree and a college degree. He based this measurement on the premise that children who lose a parent suffer from the loss of parental guidance and support conducive to achieving higher education. In other words, Hailey is at risk for not going to college because she has lost her father and his presumably positive influence; accordingly, she is entitled to the amount of money she may lose out on because of that risk. Dr. Paranjpe calculated Hailey’s projected compensation to age 67 based on her attaining a college degree at $7,839,003 and her projected compensation based on her obtaining a high school degree at $4,115,982 . . He explained that ‘the loss of her father has put her at risk, as measured by the difference between the college degree and high school compensation of the magnitude of $3,723,022 over four years, or an average of $930,755 per year.” After extended analysis of the literature, Judge Torres said: “We find that Plaintiffs have failed to satisfy the reliability prong of Daubert with regard to their expert’s opinion that the proper measure of the loss of parental guidance and support to a child whose father is deceased is the difference between her projected college degree compensation and her projected high school compensation. Common sense tells us that the loss of a parent may have an impact on a child in many ways, or, as Dr. Paranjpe testified, ‘[t]he loss of a parent in the household puts a child at risk.’ . . But the rest of Dr. Paranjpe’s theory is not supported by any data or analysis that has been provided to us. 

Ramirez v. State, 2001 Fla. Lexis 2304 (Fla. Sup. Ct., Dec. 20, 2001). The Florida Supreme Court Court, while formally retaining the Frye standard, expressly incorporated some Daubert factors into Frye jurisprudence.

Idaho

Illinois

Branum v. Slezak, 289 Ill. App. 948; 682 N.E.2d 1165; 1997 Ill. App. LEXIS 480 (Ill.App.1997). The Illinois Court of Appeals held that Walter Johnson’s projection of lost earnings for an iron worker with certainty to age 65 had been correctly excluded by the trial court’s judge’s acceptance of the defendant’s motion in limine. The court also commented on the greater reasonableness of the testimony of Stan Smith because it had a foundation from the expert testimony of a vocational expert Fisher that the plaintiff would have been able to earn $9 to $10 per hour in electrical assembly work. The decision is unclear about whether what the court thought lacked foundation is Walter Johnson’s projection of Branum’s earnings as an iron worker without the foundation of a vocational expert or Johnson’s projection of earnings to age 65. It is also not clear what assumptions Stan Smith made about worklife expectancy in this case. The LEXIS version of this decision indicates that the discussion of Johnson and Smith were “unpublishable” under Illinois Supreme Court Rule 23.

Donaldson v. Central Illinois Public Service, 199 Ill. 2d 63; 767 N.E.2d 314 (2002). The Illinois Supreme Court said: “Illinois law is unequivocal: the exclusive test for the admission of expert testimony is governed by the standard first expressed in Frye v. United States, 54 App. D.C. 46, 293 F.1013 (D.C. Cir. 1923). . . The Frye standard, commonly called the ‘general acceptance’ test, dictates that scientific evidence is only admissible at trial if the methodology or scientific principle upon which the opinion is based is ‘sufficiently’ established to have gained general acceptance in the particular field in which it belongs.” The Court defines and rejects a “Frye-plus-reliability” standard as requiring that “having determined that a technique or methodology is generally accepted, the court must still consider whether the opinion is reliable.” The Court said: “[A] technique is not generally accepted in the scientific community if it is by nature unreliable.” 

Tube City  v. Matthews, 2009 Ind. App. LEXIS 190 (Ind. App. 2009). From the decision: “At the jury trial, . . . Dr. Gamboa, a vocational economist, testified that the present value of Matthews’s future lost earning capacity was between $656,412 and $821,056. In addition, Dr. Gamboa concluded that Matthews was occupationally disabled and would lose seven years of his working life.” The Court went on to quote and affirm the trial court judge as saying: “[Dr. Gamboa is translating what the doctors have said . . . and putting it into work life and economic loss based on a reduced work life and, in addition, based on reduced earning capacity as represented by his physical condition. Which, as a vocational economist, he’s allowed to consider and to evaluate, because that’s what vocational counselors do.” The decision went on to add that: “Dr. Charles Linke, an economist and Tube City’s expert, used the same methodology as Dr. Gamboa, including the same percentage for fringe benefits, the same interest rate growth rate (sic), and the same data from the Current Population Survey that is gathered by the U.S.  Bureau of the Census.  Therefore, Tube City cannot now complain that Dr. Gamboa’s methodology is unreliable.”   

Kempf Contracting and Design, Inc., v. Holland-Tucker, 892 N.E.2d 672 (Ind App. 2008). Kempf argued that the trial court abused its discretion in allowing the testimony of John Tierney of Vocational Economics based on “sound scientific principle” under a Daubert standard. According to the Court Tierney had based his opinion that Tucker suffered a permanent disability under the definition used by the American Community Survey (ACS). “Tierney then used databases compiled by the government to determine the earning capacity of people with a physical disability who have attained a bachelor’s degree, as Tucker had, and to determine the work life expectancy of people in the same category. He did not look at data regarding people with a physical disability in Tucker’s specific profession of engineering, as that information was not available in the databases he utilized. Tr. at 43. The databases Tierney used in reaching his opinion were also not specifically geared to Tucker’s specific disability as defined by the ACS. . . . Tucker failed to present any evidence to establish the scientific reliability of Teirney’s methodology in determining Tucker’s reduction in earning capacity and work life expectancy. As the proponent of the expert testimony, Tucker had the burden of establishing the reliability of the scientific tests upon which the expert’s testimony is based. Tucker presented no evidence, however, that this process had been tested or subject to peer review, or whether there was a known or potential error rate. Further, no testimony was given that standards existed to control how the process was utilized by people in the vocational economic field. At the motion to exclude hearing, Tierney testified that database and methodology he used to determine Tucker’s future earning capacity were well known in the field of vocational disability and that private parties have written on the effect that disability has on earnings and employment. Tr. at 37, 40. However, Tierney did not name any peer-reviewed publication or provide any citation to authority that supported his bald assertion that his methodology to determine Tucker’s lost future earnings was generally accepted in the field of vocational economics. Additionally, even though Tierney may have testified previously regarding this methodology, such fact does not establish that his methodology was scientifically reliable.” The court, however, added the footnote: “We do not hold that the methodology utilized by Mr. Tierney is not scientifically reliable. Rather, we hold t hat Tucker failed to produce sufficient evidence to establish such reliability.”

Ollis v. Knecht, 751 N.E. 2d 825 (Ind. App. 2001).  Dr. Terrence Parks used a “mirror image approach” for projecting the plaintiff’s loss of earnings. Dr. Parks assumed that the plaintiff’s death caused a loss of fourteen years of earnings and therefore used a fourteen year period from the past to project future wage increases and the future discount rate. In a 702(b) hearing, Dr. Parks was unable to name a peer reviewed publication that supported the mirror image approach, though he claimed that Gerald Martin’s book (unidentified by title) supported the mirror image approach. Dr. Parks did not provide a full citation to Martin’s book.  Since Dr. Parks was unable to provide any citation to support his assertion that this method was generally accepted within the filed of economics, his testimony was not allowed. (Submitted by Ann Neff.)

Iowa

Kansas

Armstrong v. City of Wichita, 21 Kan. App. 2d 750; 907 P.2d 932 (Kan. App. 1995).  This decision holds that neither the Frye or Daubert standards apply to decisions of an administrative law judge or the Workers Compensation Board admission of testimony from a treating physician, nor must “occupational disease” be precisely defined.  The Armstrong court quoted Chinn v. Gay & Taylor, Inc., 219 Kan. 196, Syl. P 3, 547 P.2d 751(1976) as follows: “The existence, nature and extent of the disability of an injured workman is a question of fact. Medical testimony is not essential to the establishment of these facts and it is not necessary that a workman’s disability be given a medical name or label.” (Emphasis added in the Armstrong decision). 

Kuhn v. Sandoz Pharmaceuticals Corporation, 270 Kan. 443; 14 P.3d 1170 (Kan. 2000).  This was the most recent affirmation that Kansas retains the Frye test instead of recognizing Daubert. It also emphasizes that the Frye test does not apply to “pure opinion” expert testimony, citing Florida Power and Light Co. v. Tursi, 229 So. 2d 995 (Fla. Dist. App. 1999) as a reference to the “pure opinion” exception to the Frye test. It also cited Logerquist v. McVey, 196 Ariz. 470 (Arizona 2000) in its extensive discussion of the “pure opinion” exception to the Frye test. In this case, the issues had to do with the admissibility of medical testimony, which the Kuhn court felt did not employ “a new or experimental scientific technique” in a way that would trigger the Frye test of general acceptance. 

State v. Warden, 891 P.2d 1074. (Kan. 1995). Retained Frye standard, rejecting Daubert as more liberal than Frye.

Anderson v. Sharp, 1998 U.S. Dist. Lexis 9564 (E.D. La. 1998). Melville Wolfson was permitted to testify about “sums for lost income, fringe benefits, loss of support, loss of household services and medical expenses in this case even though the claim was a “lost chance of survival” claim, interpreted under Louisiana law. The defense maintained that Mrs. Anderson [was] not entitled to bring a wrongful death action because Mr. Anderson did not have a greater than fifty percent chance of survival absent any [alleged] negligence of the defendants.” The District Court relied the Louisiana Supreme Court in Smith v. State, 676 So.2d 543 (1996), as providing the framework for “lost chance of survival” cases in Louisiana and admitted Wolfson’s testimony.

Bell v. Penney, 2009 U.S. Dist. LEXIS (W.D. La.  2009). This decision denied an appeal by the defendant based on the Report and Recommendation of the Magistrate Judge previously filed as Bell v. Penney, 2009 U.S. Dist LEXIS 95182 (W.D. La.  2009). In that report, the magistrate judge said: “Defendants argue that plaintiff’s expert economist, Dr. Christensen, should be excluded because his one-paragraph report is based on plaintiff’s own testimony of her lost wages rather than ‘actual wage records,’ because his testimony is not based on the opinions of any vocational rehabilitation expert, and because there is no medical evidence as to plaintiff’s limitations.” . . . Plaintiff’s testimony is a sufficient factual basis for the expert’s opinions to be admitted. The trier of fact, however, is entitled to accept or reject the plaintiff’s self -serving testimony and, in turn, any expert economic testimony based on it. As plaintiffs point out [i]t is ‘the r ole of the adversarial system, not the court, to highlight weak evidence.’ . . . Nor is there a requirement that vocational rehabilitation testimony be presented in every case. It is entirely proper for the expert to base his report on the assumption that the plaintiff has medical thus work limitations  – otherwise, his testimony would be immaterial. However, if at trial, there is no testimony supporting that assumption, then the district judge can consider excluding Dr. Christensen’s testimony at that time.”

Broussard v.  Lafayette Insurance Company, 2008 La. App. LEXIS 757 (La. App. 2008). This was an appeal based on trial court admission of testimony by vocational expert Glen Hebert and economist Dr. Douglas Womack. The appeals court affirmed the trial court ruling that these witnesses could testify, quoting its own decision in Rowe v. State Farm Mutual Automobile Insurance Company, 670 So2d 718 (La. App. 1996) as follows: “As a general rule, the factual basis of an expert’s opinion goes to the credibility of the testimony, not to its admissibility, and it is up to the opposing party to examine the factual basis of the opinion in cross examination. Loudermill v. Dow Chemical Co., 863 F.2d 566 (8th Cir. 1988). However, if an expert opinion is so fundamentally unsupported that it can offer no assistance to the jury, then the testimony should not be admitted at all.”

Brown v.  City of Madisonville, 2007 2104 (La.App. 1 Cir. 11/24/08); 5 So. 3d 874 (La. App. 2008). This decision rejected an appeal based on a defense appeal that the trial court had erred in denying its motion in limine to exclude the testimony of Dr. Charles Bettinger, an economist, based on a Daubert objection. The Court implicitly held that economic testimony is “nonscientific, expert testimony,” and quoted Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct.1167 in holding that “the law grants a district judge the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.” The Court went on to say: “Accordingly the factual basis for an expert opinion determines the credibility of the testimony. It is the responsibility of opposing counsel to explore the factual basis [Pg 7] for the opinion and thus, determine its reliability. An unsupported opinion can offer no assistance to the fact finder, and should not be admitted as expert testimony. . . The trial court’s opinion must be tied to the facts of the particular case. The abuse of discretion standard applies to the ultimate conclusion as to whether to exclude expert witness testimony and to the trial court’s decision as to how to determine reliability. . .Furthermore, when opinions of expert witnesses differ, it is for the trial of fact to determine the most credible evidence and these determinations will not be overturned unless it is proven that the expert’s stated reasons are patently unsound.” At issue was Dr Bettinger’s decision to base the lost earnings of the Plaintiff on his past wages as a truck driver working for an employer and to ignore the truck driver’s earnings while working as an independent contractor. The Plaintiff had not done well as an independent contractor and had returned to working for an employer. The Court quoted portions of Dr. Bettinger’s testimony which clearly explained why he had ignored Plaintiff’s earnings as an independent contractor and said: “The reasons expressed by Dr. Bettinger are logical, reasonable and supported by the evidence. Thus, we cannot say that the trial court abused its discretion in allowing Dr. Bettinger to testify regarding his calculations of Mr. Brown’s lost wages, past and future.”  Suggested by Robert Taylor.

Maine

Donatelli v. Unumprovident Corporation, 2004 U.S. Dist. LEXIS 25867 (D. Maine 2004). This decision is a judicial memorandum granting in part and rejecting in part the testimony about lost earnings by plaintiff’s expert Mary H. Fox, Ph.D. in a wrongful termination matter. Dr. Fox is not an expert in accounting or economics, but has a doctorate in applied adult development-assessment and has worked in the field of industrial psychology for approximately 25 years. The court allowed Dr. Fox’s testimony about future employability as a result of plaintiff’s termination, but excluded her damages calculation. The judge provides extended discussion of the reasoning behind his decision that Dr. Fox’s damages calculation did not meet the requirements of Rule 702.  

Maryland

Reed v. State of Maryland, 283 Md. 374, 391 A.2d 364 (Md. 1978). In Maryland, a hearing on a motion in limine to preclude false or inaccurate testimony is called a “Frye-Reed” hearing. “Frye” refers to Frye v. United States, 54 D.C. Cir. 46, 293 F. 1013 (1923). This is the “Reed” part of the Maryland standard and spells out how the Frye ruling applies in Maryland. Frye has been referred to as the “general acceptance” standard that for a scientific premise to be accepted in court, it must be “generally accepted” in the scientific field from which the testimony is derived. In Frye, the relevant field was persons with expert knowledge about the accuracy of lie detector examinations. In Reed, the relevant field was determined to be persons with expert knowledge about voice detection form telephone calls relative to voice samples taken from an accused plaintiff. The decision contains extensive discussion of science and applications of the Frye test in other states. It is well worth reading by economic experts, particularly those contemplating testimony in Maryland courts.  The dissent in this decision is also extended and thoughtful. The Court said: “The introduction of evidence based on a scientific process, not generally accepted in the scientific community, is likely to distract the fact finder from its central concern, namely the rendition of a judgment on the merits of the litigation. Without the Frye test or something similar, the reliability of an experimental scientific technique is likely to become a central issue in each trial in which it is introduced, as long as there remains serious disagreement in the scientific community over its reliability. Again and again, cross-examination of expert witnesses will be as protracted and time-consuming as it was at the trial in the instant case, and proceedings may well degenerate into trials of the technique itself. The Frye test is designed to forestall this difficulty as well. The Court also said: “Our adoption of the Frye standard does not, of course, disturb the traditional discretion of the trial judge with respect to the admissibility of expert testimony. Frye sets forth only a legal standard which governs the trial judge’s determination of a threshold issue. . Testimony based on a technique which is found to have gained ‘general acceptance in the scientific community’ may be admitted into evidence, but only if a trial court judge also determines in the exercise of his discretion, as he must in all other instances of expert testimony, that the proposed testimony will be helpful to the jury, that the expert is properly qualified, etc. Obviously, however, if a technique does not meet the Frye standard, a trial judge will have no occasion to reach these further issues. 

Michigan

Craig v. Oakwood Hospital, 2004 Mich. LEXIS 1561 (Mich. 2004). The Michigan Supreme Court held that Davis-Frye standard continues to be the standard for admissibility of expert testimony in Michigan. It reversed a decision of the trial court judge not to hold a Davis-Frye hearing to determine whether the testimony of medical doctor’s testimony was admissible under Michigan’s Rule 702 (MRE 702), saying that expert testimony “must (be) based on a “recognized” form of “scientific, technical, or other specialized knowledge.” The decision provides definitions for the terms “recognized,” “scientific,” and “knowledge.” The Frye part of Davis-Frye refers to Frye v. United States, 54 App. D.C. 46 (D.C. Cir. 1923). The Davis part of Davis-Frye refers to People v. Davis, 343 Mich. 348; 72 N. W.2d 269 (Mich. 1955). Submitted by William King.

Doren v. Battle Creek Health System, 187 F.3d 595 (6th Cir. 1999). This is a decision under the Americans with Disabilities Act. The plaintiff alleged she was disabled because of a series of medical conditions. The court’s ruling was that she was not disabled under the meaning of the ADA.  The decision discusses an affidavit issued by Dr. Robert Ancell stating that the plaintiff “was not able to perform the duties (of a nurse) on the adult floor.” The court pointed out that Dr. Ancell’s affidavit did not offer “specific facts showing that there is a genuine issue for trail.”  Suggested by Penelope Caragonne.

Hashem v. Les Stanford Oldsmobile, Inc, 266 Mich. App. 61; 697 N.W.2d 558 (Mich. App. 2005).  Les Stanford Oldsmobile argued that it was entitled to a new trial, or remittatur, as the result of the trial court’s decision to permit the testimony of economist Michael Thompson about the effect of inflation on an award of future noneconomic damages. The court of appeals held that the trial court was not in error to have allowed such testimony.

People v. Lee, 537 N.W.2d 233 (Mich. Ct.App. 1995).  Retained Frye standard, rejecting Daubert as more liberal than Frye.

Minnesota

Berg v. Degreeff, 1993 Minn. App. LEXIS 409.  The Minnesota Court of Appeals allowed Dr. Karl Egge to project lost earnings both on the basis that a decedent would have become president of his father’s company and that he would not have been able to do so.

Goeb v. Tharaldson, 615 N.W.2d 800 (Minn. 2000). Retained Frye-Mack standard, rejecting Daubert  as more liberal than Frye. Frye refers to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Mack refers to State v. Mack, 292 N.W.2d 764 (Minn. 1980).  The court said: “[B]ecause Daubert stresses a more liberal and flexible approach to the admission of scientific testimony, it has been viewed as relaxing the barriers to the admissibility of scientific evidence. . . Daubert takes from scientists and confers upon judges uneducated in science the authority to determine what is scientific. . . By comparison, the Frye general acceptance standard ensures that the persons most qualified to assess scientific validity have the determinative voice.” 

Prectel v. Gonse, 396 N.W.2d 837 (Minnesota 1986). The Minnesota Supreme Court affirmed the trial court’s decision to allow the testimony of Dr. Karl Egge, the plaintiff’s economist. “Dr. Egge, an economist, offered his opinion that a married woman between the ages of 40 and 54 who is employed outside the home and has a child approximately 16 years of age provides approximately $8,000 worth of services to the family per year. He based his opinion on a study by Gaugher and Walker entitled “The Dollar Value of Household Work.”

ZumBerge v. Northern States Power Co., 481 N.W.3d 103 (Minn. App. 1992). The Minnesota Court of Appeals upheld the admission of testimony by Dr. Michael Behr. “The trial court found that Dr. Behr was a qualified economist, and while his methodology was apparently unique, no evidence indicates that it was invalid. Dr. Behr explained in great detail on direct and cross examination how he reached his conclusions and why he made the assumptions he did.”

Missouri

Bennet v. Mallincrodt, 698 S.W.2d 854 (Mo. App. 1985). Mallincrodt was being sued for having increased the risk of cancer for the class of plaintiffs. One of the questions being resolved on appeal was whether plaintiffs may recover on the theory that their increased risk of cancer is a present injury. The court said: “In Missouri, no different than most jurisdictions, future damages in a personal injury action are not compensable unless reasonably certain to occur. . . Damages based on mere mathematical probabilities significantly undercompensate those who actually develop cancer and are a windfall to those who do not. No acceptable definition of justice would contemplate such a result. Consequently, this claim of injury is fatally defective.”  

Callahan v. Cardinal Glennon Hospital, 863 S.W.2d (Missouri 1993).  This decision indicates the status of Missouri on the issues of the Frye test versus Daubert standards for admitting expert testimony. The Supreme Court indicates that there was no objection to the testimony of the plaintiff’s experts, so the Court did not decide “whether section 490.065, RSMo Supp. 1992, supercedes the Frye doctrine in the same manner that Daubert held that Federal Rule 702 changes the requirements for the admissibility of expert testimony in federal court.” There has been no subsequent decision on this matter. 

First Nat’l. Bank of Fort Smith v. Kansas City Southern Ry., 865 S.W.2d 719 (Mo. App. 1993). The testimony of Wilbur Swearingen, a life care planning expert, was held inadmissible even though the court ruled that Swearingen was qualified to testify. The issue was he foundation for Swearingen’s assumption that the needs motivating the life care plan would exist in the future. The Court said: “It is not enough for the doctor to testify to the possibility of a certain result; his testimony should show that it is reasonably certain to follow the injury. Consequences which are contingent, speculative, or merely possible are not proper to be considered by the jury in ascertaining the damages, for it would be plainly unjust to compel one to pay damages for results that may or may not ensue and which are merely problematical.”

Greer v. Continental Gaming Company, 5 S.W.3d 559 (Mo.App. 1999). The Western District Court of Appeals held that John O. Ward’s testimony about lost earnings and lost household services should not have been admitted because: “Ward’s testimony was based on the assumption that Greer, age 60 at the time of trial, would not be able to work for the next five or ten years and would be unable to perform household servies for the rest of her life. An expert may base an opinion on hypothesized facts, but when such opinion (other than one stated on cross examination) is based on hypothesized information, the facts must either be in the record or admissible as evidence, citing Lytle v. T-Mac, Inc., 931 S.W.2d 496 (Mo.App. 496 1996).

Hobbs v. Harken, 969 S.W.2d 318 (Mo.App.1998). The Western District Court of Appeals held that  John O. Ward’s testimony about lost earnings should not have been admitted by the trial court because the necessary factual or evidentiary support did not exist “for Dr.  Ward’s assumption that Mr. Hobbs’ vestibular or other injuries would affect his earning capacity got twenty years into the future in the same way they had in the past.” The court did not criticize Dr. Ward, but pointed to the lack of foundation or the assumption he had been asked to make by the plaintiff attorney. The Court quoted Thienes v. Harlin Fruit Co, 499 S.W.2d 223 (Mo. App. 1973) as saying: “Reasonable certainty contemplates and demands something more than a showing of contingent or speculative occurrences, possible or even probable developments, or conjecture, likelihood and probability.”

Kauzlarich v. Atchison, Topeka and Santa Fe Railroad Co., 1995 Mo. App. LEXIS 55 (Mo. App. 1995). The court affirmed the trial court’s admission of Dr. Donald Vogenthaler, citing Donjon v. Black & Decker, Inc, 825 S.W.2d 31 (Mo. App. 1992) as follows: “The trial court is given wide latitude to determine the need for expert testimony. As long as the witness has some qualifications, the testimony may be permitted; the extent of the expert’s experience or training goes to the weight of his testimony but does not render the testimony incompetent.” The Kauzlarich Court then said: “Clearly, under this standard, Dr. Vogenthaler was a qualified expert as to Kauzlararich’s employability following the accident as well as his future loss of earnings. Dr. Vogenthaler had more education and training in the employability of injured workers and economics as far as calculating future earnings than the average person does.”

Long v. Missouri Delta Medical Center, 33 S.W.3d 629 (MO. App. 2000). Rufused to reverse based on testimony of Harold Goldstein, in spite of quoting Goldstein as follows: "My spread is 3.29 percent growth rate, and 1.64 percent discount. [The] spread is 1.65, the difference between the two, and there are I know of at least a dozen different economists that would come up with a spread of 1.65." 

McGuire v. Seltsam, 138 S.W.3d 318 (MO 2004).  Citing State Bd. for the Healing Arts v. McDonagh, 123 S.W.3d 146 (Mo. banc 2003), this decision holds that neither Frye v. United States, 54 App. D.C. 46 (D.C. Cir. 1923) or Daubert v. Merrell Dow Pharmaceuticals, Inc, 509 U.S. 579 (1993) governs the admission of expert testimony in Missouri. Section 490.065 is controlling.

Mitchem v. Gabbert, 31 S.W.3d 538 (Mo. App. 2000).  The fact that the life care plan of Dr. Terry Winkler was not presented in present value terms by an economist was held not to be in error by the trial court. The court also held that Dr. Winkler was qualified to testify.

Kenton v. Hyatt Hotels Corporation, 693 S.W.2d 83 (Mo. 1985). The decision upholds the admission by the trial court of testimony by a disabled law school professor about the physical difficulties facing a disabled law student. The Missouri supreme court also discusses the important role of vocational experts in assisting a jury to make decisions in disability cases. 

Parr v. Carr, 16 S.W.3d 332 (Mo 2000).  This Missouri Supreme Court Decision was based on litigation to the proceeds from a wrongful death claim between the widow and parents of a decedent.  The parents claimed that the report prepared by Dr. L. Kenneth Hubbell for lost business income and lost household services on behalf of the wife was not reasonable. The father introduced a letter from Dr. John O. Ward criticizing Dr. Hubbell’s calculations and opined that Dr. Hubbell’s methodology was “not within the generally accepted practices of business valuation or economic loss calculation in the advent of wrongful death.”  The trial court had accepted Dr. Hubbell’s testimony as a basis for dividing the proceeds. That decision had been appealed to the Western District Missouri Court of Appeals, Parr v. Carr, 1999 Mo. App. Lexis 1843 (Mo.App. 2000), which had affirmed the trial court decision. The Missouri Supreme Court also affirmed, with modification that did not have to do with either Dr. Hubbell’s report or Dr. Ward’s letter.

Sampson v. Missouri Pacific Railroad Company, 560 S.W.2d 573 (Missouri 1978). The Missouri Supreme Court upheld the testimony of Dr. Frank E. Wagner, then chair of the economics department at the University of Missouri at Kansas City that was based on worklife expectancy tables that did not consider plaintiff’s alleged heart condition or alcoholism and on claiming that Dr. Wagner’s calculations were based on “pure conjecture and speculation” that the trend of wages from 1968 to 74 was an annual growth rate of 7.3 percent. After describing Dr. Wagner’s methodology in some detail, the Missouri Supreme Court ruled that the trial court had not erred in admitting Dr. Wagner’s testimony. 

State Board of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146 (MO 2003). The Missouri Supreme Court makes it clear in this decision that the standard for admission of expert testimony in Missouri is Missouri’s Section 490.065, which is similar to, but not identical to Federal Rule 702. It is not Frye, as had been previously interpreted, and not Daubert, but Section 490.065. The Court argued while Missouri’s Section 490.065 is nearly identical to Federal Rule 702, it contains small wording differences that make it a more stringent standard than Federal Rule 702. Section 490.065.3 goes beyond Rule 702 “to require that the facts or data on which an expert bases an opinion or inference ‘must be of a type reasonably relied upon by expert in the field in forming opinions or inferences upon the subject’ and that these facts and data ‘must be otherwise reasonably reliable.’” Thus, a court must independently assess the reliability of facts or data. Of critical importance, this also requires that a court identify the relevant scientific community in which the data and facts are accepted. The McDonagh court pointed out that Daubert does not require identification of the relevant scientific community. At issue in the case was the relevant community within which Dr. McDonagh practiced, holding that it was the community of doctors treating vascular disease, not all doctors and not doctors using chelation therapy as the State Board of Registration and Dr. McDonagh had respectively argued. 

Theines v. Harlin Fruit Co., 499 S.W. 2d 223 (Mo. App. 1973). The plaintiff had based his projection of damages on a military career with various promotions and a specific post military employments. After the trial, the Missouri court of Appeals reversed on damages only and remanded to the trial court on to reconsider damages, saying: “Reasonable certainty contemplates and demands something more than showing of contingent or speculative occurrences, possible or even probable developments, or conjecture, likelihood and probability.”

Weitlauf v. Parkway School District, 2008 U.S. Dist. LEXIS 144469 (E.D.Mo 2008). Geraldine K. Weitlauf filed an employment discrimination case pro se, and tried to introduce her son Wade Weitlauf as her economic expert. The Court said: “Mr Weitlauf lacks the education and/or economics background to be qualified as an expert economist regarding the plaintiff’s alleged economic damages. He is employed as a bank official with a bachelor’s degree in Finance. He has never before 1) prepared an economic loss valuation for any individual; 2) never taught a class on evaluating the types of economic losses alleged in this lawsuit; and 3) has never been hired as an economic loss expert. He has no formal training in the field of economic losses as alleged in this lawsuit, no experience or practical knowledge that would provide him with some level of expertise in such a field; thus, he fails to meet the criteria of Rule 702 and/or Daubert. It appears to this court that his “expertise” was developed solely for purposes of his mother’s lawsuit. Furthermore, Mr. Weitlauf’s analysis was done solely on the basis of information supplied to him by the plaintiff. He failed to consult or obtain any objective information regarding his mother’s employment status such as her salary and value of her fringe benefits. His “valuations” were primarily calculated using the Missouri Public School Retirement System’s website without any real understanding as to the mechanics of the website’s protocol for calculating retirement benefits. Finally, as her son, Mr. Weitlauf is listed as a primary beneficiary on plaintiff’s retirement account, and a named beneficiary in her will. Thus, his expert testimony is not objective since he has a financial stake in her recovery of economic damages in this lawsuit.”

Williams v. Daus, M.D., 2003 Mo. App. LEXIS 1213 (Mo. App. 2003). The appellant challenged the trial court’s admission of testimony by economist Dr. John O. Ward on the grounds that it did not meet the criterion of “a reasonable degree of economic certainty.” The Court cited a previous case, saying: “[T] he precise words used by an expert witness do not necessarily ‘render his testimony inadmissible if he intended to express his opinion or judgement.’” The court also referred to the term “reasonable degree of certainty” as “talismanic,” and not required. 

Wright v. American Home Products Corporation, 2008 U.S. Dist. LEXIS 32125 (W.D. Mo. 2008). This memorandum denied a defendant’s request to exclude the expert testimony of life care planner Dr. Lori Hilton about life care expenses of the plaintiff and economist Dr. Everett Dillman concerning the financial worth of the Wyeth, Inc., for purposes of determining punitive damages. The Court indicated that Missouri law allows testimony to establish the worth of a company for purposes of punitive damages and reviews the relevance of federal case law setting limits on the amount of punitive damages.

Nebraska

Epp v. Lauby, 271 Neb. 640 (Nebraska, 2006). “We have noted with approval nonexclusive criteria which the trial court may consider in evaluating the reliability of a particular theory. These include (1) whether the theory or technique can be, and has been, tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether there is a known or potential rate of error; (4) whether there are standards controlling the technique’s operation; and (5) whether the theory or technique enjoys general acceptance within the relevant scientific community. See Carlson v. Okerstrom, 267 Neb. 397, 675 N.W.2d 80 (2004); Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001). These are, however, neither exclusive nor binding; different factors may prove significant in different cases, and additional factors may prove relevant under particular circumstances.” Suggested by Michael O’Hara. 

McNeel v. Union Pacific Railroad, 276 Neb. 143 (Neb. 2008). Union Pacific had challenged the scientific validity a diagnosis of toxic encephalopathy as the source of the plaintiff’s medical condition. The Court did not reach the issue of the scientific merit of that diagnosis, saying: “[W]e  need not reach (that issue) because we conclude that the district court correctly concluded that even if considered scientifically reliable, the opinions of McNeel’s experts did not ‘fit’ the issues of this case because they did not identify any specific causative agent for the diagnosis of toxic encephalopathy.”  The Court went on to say: “Under the Daubert/Schafersman analysis, expert testimony lacks ‘fit’ when ‘a large analytic leap must be made between the facts and the opinion.’” That is the case here. Assuming without deciding that the diagnosis of toxic encephalopathy was the product of scientifically reliable methodology, it is simply too great an analytical leap to conclude that it was caused by some act or omission on the part of Union Pacific, given that the experts could not identify any toxic agent.” Suggested by Michael O’Hara. 

Perry Lumber Co. v. Durable Services, Inc., 266 Neb. 517 (2003).  The Nebraska Supreme Court determined that the trial court judge’s decision not to allow the defense expert to testify “concerning the results of his test which Perry had previously placed in evidence through the testimony of its own expert” was an abuse of discretion under the standards of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993).  The court also said: “Because we conclude that Perry waived any objection to admissibility of the test results by adducing the evidence through its expert in chief, we do not reach the issue of whether the evidence could have been excluded if a timely objection had been made.” Submitted by Michael O’Hara. 

Perry Lumber Co. v. Durable Servs., 271 Neb. 303 (Neb. 2006). This was an appeal by the defendant to the Nebraska Supreme Court on the basis that the decision of the trial court to treat James Wagner, an expert on the causes of fires, as a lay witness rather than an expert witness was reversible error. The Nebraska Supreme Court reviewed its standards under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 569, and concluded that it was reversible error not to have admitted Wagner as an expert witness rather than a lay witness. The plaintiff also filed a counter claim to preclude the testimony of the defendant’s expert on causes of fires on the ground that the defendant’s expert’s testimony was limited to criticism of the methods used by the plaintiff’s expert and did not include his own opinion about the cause of the fire. This issue was rendered moot by the decision to remand for a new trial, but the Nebraska Supreme Court spoke to this issue in anticipation that it would become relevant in a new trial. The Court stated succinctly: “Testimony criticizing the procedures and opinions of another expert is an acceptable form of expert testimony.” Submitted by Michael O’Hara.

Phillips v. Industrial Machine, 257 Neb. 256; 597 N.W.2d 377 (Neb. 1999).  The Nebraska Supreme Court held that the trial court judge was correct in ordering a new trial based on the vocational rehabilitation expert testimony of Alfred J. Marachisio, Jr.  Marchisio had relied on the New Worklife Expectancy tables produced by Vocational Econometrics to project a shortened worklife expectancy for the plaintiff.  The trial court had “concluded that given the broad definition of a disabled person as used in the New Worklife Expectancy Tables and Marchisio’s vague conclusion that Phillips would work ‘less’ as a result of her disability, the testimony ‘was so generic and lacking in certainty that it failed to make the existence of a disputed fact more or less probable, and was of no value to the jury.”  The Nebraska Supreme Court went on to say: “The court noted that the definition of ‘disabled’ as used in the New Worklife Expectancy Tables made no differentiation between people with minor disabilities and those withe serious disabilities or between people with disabilities that affect their work and those with disabilities which have no effect on their work. The court explained that under these circumstances, Marchisio ‘could present virtually the same opinion testimony he presented in this case in any courtroom, with any injured plaintiff, without modifying the opinion at all.’ . . . We agree.” 

Schaferman v. Agland Coop [Schaferman I], 631 N.W.2d 860 (Neb. 2001). The Supreme Court of Nebraska, which had initially rejected Daubert and retained the Frye test, adopted Daubert in this decision.

Schafersman v. Agland Coop [Schaferman II], 268 Neb. 138 (Neb. 2004). This decision will be called Schafersman II. In Schafersman I, 262 Neb. 215 (Neb. 2001), the Nebraska Supreme Court reversed a jury award for the Schafersmans, holding that their causation expert, Dr.Wallace Wass, failed to meet the Frye general acceptance test. The Nebraska Supreme Court, however, also ruled that Nebraska would no longer employ the Frye test and adopted the standards of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In this decision, the Nebraska Supreme Court upheld a lower court opinion that the testimony did not meet Daubert tests either. Submitted by Michael O’Hara.

Zimmerman v. Powell, 268 Neb. 422 (Neb. 2004).  The Nebraska Supreme Court held that the trial court had inadequately performed its gatekeeping function under Daubert/Schaferman I standards and allowed a witness whose testimony was unreliable to testify. Daubert refers to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786 (1993), and its progeny. “Schaferman I” refers to Schafersman v. Agland Coop, 262 Neb. 14, 631 N.W. 2d 862 (2001).  The decision provides a history of decisions in Nebraska interpreting Nebraska’s Rule 702. Submitted by Michael O’Hara. 

Dow Chemical Co. v. Mahlum, 970 P.2d 98 (Nev. 1999). The Nevada Supreme Court retained the Frye standard in preference to Daubert, saying "we do not presently perceive a need to adopt Daubert."

Cohen v. Cuomo, 2009 N.J. Super. Unpub. LEXIS 2290 (N.J. Super. 2009). Among issues on appeal was plaintiff’s contention that treatment of his expert economist, Dr. Ronald L. Rosenberg, undermined the credibility of his case and that the trial court erred in prohibiting Dr. Rosenberg from testifying as to plaintiff’s lost pension benefits. Rosenberg claimed that the plaintiff would have had a fully vested pension based on a conversation with Areles Alvarez of Teamster Local 641 Welfare fund. Defendant requested a Rule 104 hearing to determine whether Alvarez was a reliable source of information regarding plaintiff’s pension interest as used by Rosenberg. Rosenberg did not have his complete file with him, but affirmed that Alvarez was the “key information source” he had relied upon. He was permitted to get the rest of his file during lunch. After lunch he acknowledged that he could not state with certainty who directed him to contact Alvarez regarding details of plaintiff’s Teamster’s pension interest. The Superior Court said: “Dr. Rosenberg could not provide foundational support for the use of hearsay evidence attributed to Alvarez, precluding the substantiation, and thus, the admissibility of his testimony on that issue. The trial court did not abuse its discretion in excluding Dr. Rosenberg’s testimony bottomed on hearsay information received from a source not shown to be the type reasonably relied upon by experts in the field.” 

Dombroski v. City of Atlantic City, 308 N.J. Super. 459; 706 A.2d 242 (N.J. Super. 1998). This case involved an appeal of the decision of the trial court not to allow testimony from economic expert Robert Wolf regarding the plaintiff’s loss of earning capacity. The Superior Court upheld the decision of the trial court on the ground that Wolf had not provided any evidence or basis for assuming that the plaintiff might lose his current employment. The trial court had determined that the plaintiff had a permanent injury that might result in a loss of earning capacity if the plaintiff had to find a new job. However the trial court also noted that the plaintiff went back to work at his old job after recovering from his injury, that the plaintiff was a valued employee who was getting raises and “good personnel notes in his file.” Thus, the reason for granting defense motions to bar Wolf’s testimony was that he had not developed any statistical basis for assessing the probability that the plaintiff would lose his job in the future. Both the trial court and the Superior Court, however, made it clear that a worker can have a loss of earning capacity even if the worker is making a higher income now than before the worker’s injury. Doing so, however, must be based on some “evidentiary and logical basis or at least, rationally estimating a compensatory award.” Suggested by Frank Tinari.

Kemp v. State of New Jersey, 2002 N.J. Lexis 1260 (N.J. 2002). The New Jersey Supreme Court ruled that an medical doctor expert witness should not have been excluded from testifying without a Rule 104 hearing.  In the process, it widened its acceptance of Daubert v. Merrell Dow, 509 U.S. 579 (1993) from toxic torts to medical testimony, rejecting the “general acceptance” standard it had maintained earlier. The Frye decision is not specifically mentioned and the court ruled directly from New Jersey Rule 702.  The court effectively said that a party was entitled to present its expert at a separate hearing to determine the expert’s admissibility before being excluded. 

State v. Doriguzzi, 760 A.2d 336. Althought New Jersey is an avowed Frye state, this decision uses a Daubert style for toxic tort litigation.

State v. Harvey, 699 A.2d 596. Although New Jersey is an avowed Frye state, this decision uses a Daubert style for toxic tort litigation.

Hernandez v. 1010 Company, 2009 NY Slip Op 52618U (N.Y. Misc. 2009). In rejecting an appeal by defendants, the Court said: “The Court notes that defendants failed to call their own economist to possibly challenge plaintiff’s economist’s calculations. His testimony, along with the record of plaintiff’s record of earnings, and plaintiff’s medical testimony were sufficient to justify the jury’s determination of earnings and to survive defendant’s challenge.” The court went on to say: “The award for economic loss is sustained with one exception. As stated above, plaintiff produced the plaintiff’s W-2 statements and FICA earnings statements from which his expert economist arrived at his projections. For the cost of replacement of the plaintiff’s insurance policy, the economic report multiplied the plaintiff’s earnings by 14% without any evidence of the contents of the insurance policy or the amount of premium the plaintiff paid. The evidence, therefore, was insufficient to make such a determination. Accordingly, the damages must be reduced by the product of that 14% calculation.” 

Smith v. M.V. Woods Construction Company, 2003 N.Y. App. Div. LEXIS 10026 (N.Y. App. 2003).  The court held that “plaintiff’s vocational rehabilitation expert was not qualified to express an opinion on past and future loss of earnings, past and future loss of household services and past and future medical services.” The court cited several decisions in which an expert was qualified for one type of testimony, but not another, and drew the analogy that “a medical doctor is not qualified as a ballistics expert,” citing a case in which that ruling had been made. 

Walek v. Walek, 193 Misc. 2d 241; 749 N.Y.S.2d 383 (2002). Dr. Frederick Floss, the economic expert for the plaintiff was opposed by a defense expert (unnamed) in the specific area of the health care benefits of the New York State Retirement system. The decision includes an extensive statement of the background expertise of Dr. Floss to address this question, saying: “Thus, while defendant’s expert is certainly qualified in her area, her lack of familiarity with an employee’s health care benefits significantly dilutes the weight of her testimony. On the other hand, the referee found the evidence given by plaintiff’s expert entirely credible and fully persuasive on all pertinent points, and I agree with that determination.” 

Eastman v.  The Stanley Works, 2009 Ohio 634 (Ohio App. 2009). The Ohio Court of appeals reversed the trial court decision and remanded the case for retrial on the basis of the testimony of vocational expert Dr.  Bruce Growick and economist Dr. Richard Palfin. The court concluded that the jury’s award of future economic damages was not supported by the evidence presented by Growick and Palfin. Growick’s testimony was that the physical difficulties and eye impairment of the plaintiff resulting from his injury reduced the number of jobs for which the plaintiff was qualified before his injury by 80 to 85 percent. Growick acknowledged that plaintiff  was earning as much after the injury as before the injury and “admitted that it would be speculative to state that appellee would be unable to perform his job at a particular point in the future.” With respect to Palfin, the court said: “On cross examination, Dr. Palfin conceded that he had based his annual earnings calculation on a 52-week year. He also testified that he had not taken into account the seasonal nature of appellee’s work, and the fact that appellee’s work weeks were not uniformly 40-hour weeks. Therefore, Dr. Palfin had used an annual future wage   of $29,120, while appellee’s annual salary prior to the accident was only $21,350.03. Dr. Palfin did not assign a starting year for when appellee would experience loss of earning capacity; rather, he stated, it would be up to the jury to determine when appellee would actually begin to experience any loss of earning capacity.”

Commonwealth v. Crews, 640 A.2d 395 (Pa. 1994). Retained Frye standard, rejecting Daubert as more liberal than Frye.

Grady v. Frito-Lay, Inc., 2003 Pa. LEXIS 2590 (Pa 2003). With this decision, the Pennsylvania Supreme Court maintained Pennsylvania’s adherence to the Frye test, based on Frye v. United States, 54 U.S. App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923). In doing so, it continued to reject he U.S. Supreme Court decision in Daubert v. Merrell Dow Phamaceuticals, Inc., 509 U.S. 597 (1993). The court said: “In our view, Frye’s ‘general acceptance’ test is a proven and workable rule, which when faithfully followed, fairly serves its purpose of assisting the courts in determining when scientific evidence is reliable and should be admitted.” Submitted by Terry Dinneen and Joseph Agrusa.  

Vinitski v. Adler, 69 Pa.. D. & C.4th 78 (Pa D. & C. 2004). The trial court had rejected a medical expert’s testimony based on the requirements of the Frye test. The trial court decision was upheld by the Common Pleas Court. The decision contains extensive discussion of the Frye test and the Frye hearing that was held on this issue. The Court said: “It is important to understand two terms as defined by the Superior Court. The first term, methodology, is ‘[1] a method of research in which a problem is identified, [2] relevant data are gathered, [3] a hypothesis is formulated from these data, and [4] the hypothesis is empirically tested.’ Trach v. Fellin, 817 A.2d 1102 (Pa. Super. 2003). ‘Empirical’ is defined as ‘provable or verifiable by experience or experiment.’” The court determined that the “methods” of the medical expert “appear to be nothing more than a few anecdotal references and a cursory review of several studies tangentially related to benzodizepines and possible permanent effects.” 

Degen v. Bayman, 90 S.D. 400; 241 N.W.2d 703 (S.Dak.1976). The trial court decision had been appealed by the plaintiff on several grounds. One of those grounds was that the trial court: “did not fully instruct the jury instruct the jury on damages for pain, suffering and mental anguish, as well as for time lost from pursuing normal activities. While the specific words ‘personal inconvenience and loss of ability to enjoy life’ were not used, their meaning was embodied therein. Had the court given the refused instruction, it would have been only cumulative of those already given and might very well have only confused the jury in its deliberations.”

Garland v. Rossknecht, 2001 SD 42; 624 N.W.2d 700 (S.Dak. 2001). The economic expert testimony of Don Frankenfeld was ruled inadmissible because: “Frankenfeld had concluded that Garland had suffered from “a ten percent ‘disability’ or earning capacity reduction. When questioned about how he arrived at this percentage, Frankenfeld stated, ‘it was a judgment call.’ In fact, his opinion was based solely on information provided by Garland. Garland reported that when he worked on a four-hour graphic design project, he had to take a half hour break. Frankenfeld extrapolated a half hour break every four hours into one hour of nonproductivity a day. He then took ‘one and divided it by eight, one hour out of an eight-hour day is one-eighth, twelve and a half percent.’ He then discounted the rating to ten percent.” Frankenfeld then admitted that “a vocational expert has competence I do not have to take physical limitations and translate them into vocational limitations.” In spite of this, the trial court admitted Frankenfeld’s testimony. The South Dakota Supreme Court reversed on this grounds.

Kay v.  Lamar Advertising of South Dakota, Inc., 2009 U.S. Dist. LEXIS 74520 (D. South. Dakota 2009). This was an order denying defendant’s motion in limine to limit the testimony of Dr. Walter Lierman, an economist, on behalf of the plaintiff. Judge Karen E. Schreier applied a Daubert standard as interpreted by the 8th Circuit in Lauzon v. Senco Products, 207 F.3d 681 (8th Cir. 2001) in holding that the proposed testimony of Dr. Lierman was based on sufficient facts and data, was a product of reliable principles and methods, and that Dr. Lierman applied the methodology reliably to the facts of the case. In her analysis of “sufficient facts and data,” Judge Schreier said: “Rule 702 does not require Dr. Lierman to have all of the facts or even the best facts. It only requires ‘sufficient facts.’ See Fed. R.  Evid. 702. Any weakness perceived by defendants in the factual basis of Dr. Lierman’s opinions are capable of being brought out in cross-examination and argued to the jury.”

Texas

E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549; 38 Tex. Sup. St. J. 852 (1995).  In this case, the Texas Supreme Court took a very strong position in favor of scientific considerations for admission of expert testimony, paralleling the Daubert v. Merrell Dow Pharmaceuticals, Inc, 509 U.S. 579 (1993) decision at the federal level. The Robinson Court discussed Rule 702 at length before providing a list of six non inclusive factors that a trial court should consider: (1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique’s potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses which have been made of the theory or technique. 

Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998). This decision could be called the Kumho decision of Texas although it was reached before the United States Supreme Court reached its decision in Kumho Tire Co., Ltd v. Carmichael, 509 U.S. 579; 119 S.Ct. 1167 (1999).  It holds that the specific scientific factors mentioned in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579; 113 S.Ct. 2786; 125 L.Ed.469 (1993) and in E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549; 38 Tex. Sup. St. J. 852 (1995) may not be applicable in all cases, but that the gatekeeper role of trial courts under Rule 702 applies in all instances of expert testimony, both in terms of the reliability of the expert and his or her testimony. The court said: “[E]ven if the specific factors set out in Daubert for assessing the reliability and relevance of scientific evidence do not fit other expert testimony, the court is not relieved of its responsibility to evaluate the reliability of the testimony in determining its admissibility.” In this decision, there is stress on the fact that the fact that an expert would be qualified to testify on some matters does not imply that the expert would be qualified to testify on the matters at hand.

GMBH v. Davis, 2005 Tex. App. LEXIS 1904 (Tex. App. 2005).  A Texas Court of Appeals upheld the admission of Dr. Keith Fairchild on behalf of the plaintiff in a case involving a claim of damages based on commercial misrepresentation by GMHB. The standard of review under E.I. du Pont de Nemours & Co. v. Robinson 923 S.W.2d 549 (1995) (the Daubert of Texas) is short and clear. Fairchild has a doctorate in economics and teaches a university course in corporate valuation, so he is qualified. Fairchild’s testimony aided the jury in resolving a factual dispute. In the absense of contrary evidence, Fairchild’s methods had a reliable foundation.

Guzman v. Guajardo, 761 S.W.2d 506 (Tex.App. 1988). Dr. Everett Dillman had presented a benchmark for the value of the loss of society of decent’s society to his mother, based on one hour per day over the life expectancy of the mother, valued at salaries in the helping professions, including clergy, social work and counselors. The Texas Court of Appeals did not reverse on the basis of this admission.  Dr. Dillman also provided testimony about lost earnings and lost household services. 

Manasco v. Insurance Company of the State of Pennsylvania, 2002 Tex. App. Lexis 7252. The trauma-cancer testimony of Dr.  Richard Hamer was not admitted. Dr. Hamer, a board-certified neurologist testified that the plaintiff’s head injury caused his cancer. The Texas Court of Appeals applied the standards of Texas Rule 702, based on the standards laid out in E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (1995) to exclude the testimony. The court discussed the literature concerning head injury trauma and cancer and concluded that the trial court had been correct in refusing to admit Dr. Hamer’s testimony.  This is of special interest becauase the theory of cancer caused by trauma was the leading example of “junk science” in Peter Huber’s definition of that term in Galileo’s Revenge: Junk Science in the Courtroom, Basic Books, 1991. 

Pilgrim’s Pride Corporation v. Smoak, 134 S.W.3d 880 (Tex. App. 2004). The defense appealed based on the admission of testimony by two experts, including economist Dr. Dale Funderbunk, on the basis of insufficient evidence of causation, past and future lost earning capacity, or future medical care, to sustain a judgment. Pilgrim’s Pride contended that Dale Funderbunk was not a qualified vocational expert or employment specialist and that his methodology was flawed. The decision describes Funderbunk’s assumptions and methodology in some detail, including the fact that Funderbunk had used several different assumptions about worklife expectancy. The court held that Funderbunk was properly qualified and that his testimony was not based on an unsound methodology.  

SeaRiver Maritime v. Pike, 2006 Tex. App. LEXIS 4904 (Tex. App. 2006). SeaRiver appealed the trial court decision to allow Dr. Robert Voogt to testify, relying significantly on the exclusion of Dr. Voogt in the case of Norwest Bank  v. K-Mart, 1997 U.S. Dist. LEXIS 3426 (N.D. Ind. 1997).  The Court held that: “Norwest is plainly distinguishable. As we read Dr. Voogt’s testimony, his approach in this case avoided the mistakes in Norwest. He based much of his cost evaluation upon the records and recommendations of the treating physicians. Unlike Norwest, other qualified health care providers testified and related many of the components of the health care plan. Further, unlike Norwest, SeaRiver also provided health care evidence through its own life care expert. The pharmaceutical prescriptions were based on Pike’s past treatment history, which Voogt delineated. Taken as a whole, Dr. Voogt demonstrated special knowledge concerning most of the very matters on which he gave an opinion. . . . Under these circumstances, we cannot say the trial court abused its discretion by refusing to exclude the totality of the expert’s testimony.” (Parts of Dr. Voogt’s testimony were excluded, but those parts were not part of the appeal.)  

Belshe v. Pinecrest Cluster Association, 2005 Va. Cir. LEXIS 56 (2005). Testimony of plaintiff’s exert orthopedist was excluded because plaintiff failed to meet scheduling deadlines for providing a report. The court the testimony of Anthony Bird, a vocational expert because Bird was unable to formulate his own opinions in the absence of the orthopedist’s report. The court also excluded the testimony of Richard Edelman, an economist, to the extent that his opinions would have depended on either the opinions of the orthopedist or Mr. Bird, but allowed Dr. Edelman to compute and testify about pre-judgment interest to the jury.

John v. Im, 263 Va. 315; 559 S.E.2d 694. This Virgina Supreme Court decision used Daubert standards to uphold the decision of the trial court judge in denying the admissibility of a psychologist and an expert on QEEG testing of electrical functioning of the brain. The defense argued that the court properly excluded the testimony because the testimony lacked a sufficient factual basis, did not take into account all testing variables and did not assess the effect of those variables on the test results.  The Virginia Supreme Court agreed.

Vasquez v. Mabini, 269 Va 155; 606 S.E.2d 809 (Va. 2005). “At trial, the plaintiff presented the testimony of Richard B. Edelman, a Professor Emeritus of Finance at American University, as an expert witness with regard to the decedent’s loss of income and the economic value of the loss of her services, protection, care and assistance. No objection was made to his qualifications. He testified that Mrs. Mabini’s lost income and benefits would have amounted to $121,533 if she had worked until age 60 and $203,145 if she had worked until age 66. He gave the value of her lost services as $343,287 and reasonable funeral expenses as $12,403. His calculation of the total loss to the beneficiaries was thus $477,223 based on retirement at age 60 and $558, 835 based on retirement at age 66. These conclusions were necessarily dependent upon certain assumptions to which the defendants objected: that the decedent would have found full-time employment the day after the accident at a wage of $8.00 per hour ($16,000 per year) and would have remained so employed until retirement; that her employer would have provided additional contributions amounting to 3.7% of her income in the form of a “401(k)” or similar retirement benefit; that her income would increase at 4.25 percent per year, and that Pomeroy, her dependent adult son, would have continued to live 24 years into the future even though the witness knew that he had died before trial. The defendants also objected to the witness’ failure to consider the life expectancy of the decedent’s husband in arriving at the economic value of her lost household services.” Based on that summary, the Virginia Supreme Court held: “Because the expert testimony was based upon fictional assumptions not supported by the evidence, it was speculative and unreliable as a matter of law and should have been stricken.” The decision was remanded to a lower court for a new trial limited to the issue of damages.  Suggested by Michael J. Piette.

State v. Copeland, 922 P.2d 1304 (Wash. 1996). The Washington Supreme Court retained the Frye standard in lieu of Daubert, saying that the application of Frye in that state "has not been so difficult as to call for its abandonment."

State v. Riker, 869 P.2d 43 (Wash. 1994). The Washington Supreme Court, while formally retaining the Frye standard, expressly incorporated some Daubert factors into Frye jurisprudence.

West Virginia

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Last Modified: January 11, 2010

Updated to January 11, 2010