Anderson v. Hansen

1

KATHERINE ANDERSON, et. al., Plaintiffs, v. JEFFREY HANSEN, Defendant.

No. 4:20-CV-00991-JAR

United States District Court, E.D. Missouri, Eastern Division

April 25, 2023

MEMORANDUM AND ORDER

JOHN A. ROSS, UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendant Jeffrey Hansen's motion to exclude the testimony of Plaintiffs' expert witnesses Karen Tabak, Sarah Riley, and Patricia Westmoreland. (ECF No. 99). The motion is fully briefed and ready for disposition. For the reasons outlined below, the Court will grant, in part, and deny, in part, the motion.

Background

This case concerns the alleged sexual assault of Plaintiff Katherine Anderson by Mr. Hansen in St. Louis, Missouri on August 29-30, 2018. Ms. Anderson raised five counts in her complaint: (I) Battery, including the administration of an intoxicating substance without her consent; (II) Assault (III) False Imprisonment; (IV) Battery, including forcible sexual contact; and (V) Tortious Interference with Contract Ongoing Business Relationship, and/or Prospective Business Relations. (ECF No. 1). Specifically, Ms. Anderson contends that on the night of August 29, 2018, Mr. Hansen offered her a drink spiked with an intoxicating substance. After ingesting this substance, Ms. Anderson was unable to move or otherwise control her body. On the night of August-29 and into the morning of August 30, Mr. Hansen came to Ms Anderson's hotel room and sexually assaulted her. Plaintiffs allege that Mr. Hansen's actions caused Ms. Anderson's ongoing mental and emotional distress, and that this distress prevented Ms. Anderson from advancing in her career with or continuing to work for American Family Life Insurance Company of Columbus (“AFLAC”). Id.

Plaintiffs have disclosed and provided the report of two retained expert witnesses: (i) Dr. Karen Tabak, an expert in lost earning capacity; and (ii) Dr. Sarah Riley, an expert in toxicology. They have also identified Dr. Patricia Westmoreland, an expert in psychiatry, as a non-retained expert witness. (ECF No. 112 at 8). Dr. Tabak opines that Ms. Anderson's lost earning capacity from June 27, 2019 through December 31, 2021 is between $333,620 and $732,409. (ECF No. 99, Exh. 1). In order to arrive at these conclusions, she assumes the following: (i) that the net real discount rate is two percent; (ii) that Ms. Anderson's future earning capacity would either have remained the same, based on her 2018 earnings of net business expenses, or have grown to approximately $553,109 in 2020 if she had been promoted to AFLAC Marketing Director; (iii) that she would be able to earn the average salary of an insurance sales agent, approximately $52,180, beginning January 1, 2021; and (iv) that Ms. Anderson would have retired at seventy-five years old. Id. Dr. Riley opines that Ms. Anderson's symptoms on the night of August 29, 2018 are consistent with the effects of drug facilitated sexual assault (“DFSA”) and that the information presented in the case cannot be used to conclude that Ms. Anderson was not administered a drug. (ECF No. 100, Exh. 3).

Mr. Hansen initially retained Dr. Westmoreland in order to conduct an Independent Medical Evaluation (“IME”) of Ms. Anderson on March 9, 2021. (ECF No. 100 at 6). Dr. Westmoreland found that Ms. Anderson suffered from Post-Traumatic Stress Disorder (“PTSD”). Plaintiffs then disclosed Dr. Westmoreland as a non-retained expert witness on August 31, 2021, just under two months after the deadline for disclosing retained expert witnesses outlined in the case management order. Id.

Legal Standards

The admission of expert testimony in federal court is governed by Federal Rule of Evidence 702. A district court acts as a “gatekeeper” when screening expert testimony for relevance and reliability. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590-93 (1993); Russell v. Whirlpool Corp., 702 F.3d 450, 456 (8th Cir. 2012). To satisfy the reliability requirement, the party offering the expert testimony “must show by a preponderance of the evidence both that the expert is qualified to render the opinion and that the methodology underlying his conclusions is scientifically valid.” Barrett v. Rhodia, Inc., 606 F.3d 975, 980 (8th Cir. 2010) (quoting Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 757 (8th Cir. 2006)). To satisfy the relevance requirement, the proponent must show that the expert's reasoning or methodology was applied properly to the facts at issue. Id.

The Court in Daubert emphasized that the inquiry required by FRE 702 is intended to be flexible. 509 U.S. at 594. The Daubert analysis was extended to all expert testimony, as opposed to only “scientific” testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 135,147 (1999). Due to the liberalization of expert testimony admission standards signaled by Daubert and its progeny, and the codification of this trend by FRE 702, the Eighth Circuit has held that expert testimony should be liberally admitted. Johnson v. Mead Johnson & Co., LLC, 754 F.3d 557, 562 (8th Cir. 2014) (citing United States v. Finch, 630 F.3d 1057, 1062 (8th Cir. 2011) (doubts about usefulness of expert testimony are resolved in favor of admissibility)); Robinson v. GEICO Gen. Ins. Co., 447 F.3d 1096, 1100 (8th Cir. 2006) (expert testimony should be admitted if it advances the trier of fact's understanding “to any degree”); Lauzon v. Senco Prod., Inc., 270 F.3d 681,686 (8th Cir. 2001) (FRE 702 “clearly is one of admissibility rather than exclusion”) (quotations omitted). As long as the expert testimony rests upon “good grounds, based on what is known,” it should be tested by the adversary process with competing expert testimony and cross-examination, rather than excluded at the outset. Id. (citing Daubert, 509 U.S. at 596). Exclusion of an expert opinion is proper “only if it is so fundamentally unsupported that it can offer no assistance to the jury.” Wood v. Minnesota Mining & Mfg. Co., 112 F.3d 306, 309 (8th Cir. 1997) (citation and quotation marks omitted).

Discussion

I. Dr. Tabak

Mr. Hansen makes two arguments in support of excluding Dr. Tabak's report and testimony at trial. First, Mr. Hansen argues that Dr. Tabak relies on unsupported assumptions in order to reach her conclusions. (ECF No. 100 at 2). Though Plaintiff claims lost income in the Complaint, Dr. Tabak's analysis^[1] addresses Ms. Anderson's lost earning capacity.^[2] Mr. Hansen also contends that Dr. Tabak improperly assumes that Ms. Anderson would have remained an insurance sales manager at AFLAC but for Mr. Hansen's conduct, that is, Mr. Hansen claims that Dr. Tabak cannot assume that Mr. Hansen's actions caused Ms. Anderson to resign. Id. at 3. Likewise, Dr. Tabak assumes that Ms. Anderson would have become an AFLAC Marketing Director but for Mr. Hansen's actions. Id. For both assumptions, Mr. Hansen points out that Dr. Tabak has no evidence to support her conclusions. Id. Second, Mr. Hansen argues that Dr. Tabak lacks the expertise necessary to opine as to Ms. Anderson's future employability and lost earning capacity, as she admitted in her deposition that a vocational rehabilitation expert should conduct this analysis. Id. Dr. Tabak therefore assumes that Ms. Anderson is no longer able to do the same job as she was able to do prior to the alleged sexual assault.^[3] Id.

Plaintiffs assert that their complaint properly lists “lost back wages, lost front wages” as both current and future lost income. (ECF No. 112 at 3). Plaintiffs retained Dr. Tabak to opine as to the amount of money Ms. Anderson lost as a result of her departure from AFLAC, which includes her lost earning capacity. Id. Further, Plaintiffs argue that Dr. Tabak's report does not contain impermissible assumptions, as Dr. Tabak is permitted to assume certain factors in order to arrive at a conclusion. Id. at 4. Importantly, Plaintiffs note that Dr. Tabak does not assume causation - that Mr. Hansen caused Ms. Anderson to resign -- as the issue of causation is irrelevant to her calculation of damages. Id. Plaintiffs also point out that the jury would only accept Dr. Tabak's opinions if it accepted the causation evidence Plaintiffs intend to present. Thus, Plaintiffs contend, their case logically builds from the evidence presented to Dr. Tabak's opinion. Id. at 45.

Mr. Hansen's concerns about Dr. Tabak's assumptions goes to the reliability of her methodology. Federal Rule of Evidence 702 outlines a two-pronged test for the admissibility of expert testimony. First, the expert testifying must be “qualified as an expert by knowledge, skill, experience, training, or education[.]” Fed.R.Evid. 702. Second, the testimony offered must be based on “sufficient facts or data” and it must also be “the product of reliable principles and methods” applied “reliably to the facts of the case.” Id. Typically, when considering the methodology an expert applies, courts consider: (i) whether the theory or technique has been tested, (ii) whether the theory has been subjected to peer review and publication, (iii) the known or potential rate of error in the theory, and (iv) whether the theory has been generally accepted. See Peitzmeier v. Hennessy Indus., Inc., 97 F.3d 923, 297 (8th Cir. 1996) (quoting Daubert, 509 U.S. at 594). However, the 702 inquiry is flexible, and these factors are not exclusive. See Jaurequi v. Carter Mfg. Co., 173 F.3d 1076,1083 (8th Cir. 1999). Courts should resolve doubt in favor of admissibility. See Marmo, 457 F.3d at 758.

A court will typically not exclude an expert's report or testimony on the basis of assumptions in their analysis. “Raising questions about, and exposing gaps in, [an expert's] analyses and conclusions is a task for [d]efendants to perform in front of a jury.” Hanrahan v. Wyeth, Inc., No. 4:04CV01255...