Nkansah v. Martinez

PATRICK NKANSAH, ET AL. v. EDGAR A. MARTINEZ, ET AL.

CIVIL ACTION NO. 3:15-CV-00646

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

June 28, 2017

JUDGE JOHN W. DEGRAVELLES

MAGISTRATE JUDGE RICHARD L. BOURGEOIS, JR.

RULING AND ORDER ON DEFENDANTS' MOTION IN LIMINE TO EXCLUDE EXPERT REPORT AND TESTIMONY OF LAURA SCHEXNAYDER

Before the Court is the motion by defendant Depositors Insurance Company ("Depositors") to exclude the expert report and testimony of Laura Schexnayder. (Doc. 52.) The motion is opposed by plaintiff Patrick Nkansah ("Nkansah" or "Plaintiff"").¹ (Doc. 66.)² A reply memorandum has been filed in support of the motion. (Doc. 72.) For the reasons which follow, the motion is granted in part and denied in part.

I. BACKGROUND

This suit arises out of a motor vehicle accident between two tractor-trailer vehicles, one being driven by Plaintiff and the other driven by defendant Edgar A. Martinez ("Martinez"). Plaintiffs allege Martinez was at fault in the accident. (Docs. 1-3, 9 and 11.) Also sued is Depositors as the insurer for Martinez. Liability for the accident is disputed. (Docs. 4, 10 and 11.) The case was removed to this Court based on diversity of citizenship jurisdiction. (Doc. 1.)

In Plaintiffs' First Supplemental and Amending Complaint for Damages, Nkansah alleges he suffered damages in the form of physical and mental anguish, pain and suffering, as well asloss of income caused by his alleged "inability to drive [a] truck." (Doc. 9 ¶ 7.) In support of this claim for economic losses, Plaintiffs offer the expert report and testimony of bookkeeper and tax preparer Laura Schexnayder, the manager of a tax services company. It is the report, affidavit and deposition testimony of Ms. Schexnayder that is the subject of the present motion.

II. SUMMARY OF ARGUMENT OF THE PARTIES

Depositors argues that the Court should exclude the testimony and report of Ms. Schexnayder because (1) the report is deficient and does not comply with the requirements of Federal Rule of Civil Procedure 26(a)(2)(B) (Doc. 52-1 at 4, 12-13); (2) she is not qualified to be an expert, (id. at 4, 13-14); and (3) she did not employ proper scientific or technical methodology, (id. at 4, 14-16).

Nkansah responds that Schexnayder's training and practical and professional experience qualify her to render the proffered opinions, that her opinions as expressed in her report, affidavit and discovery deposition are sufficient to meet the requirements of Rule 26, and her opinions are supported by a sufficient methodology. (Doc. 66-1.) He offers her affidavit with more detailed information about Schexnayder's qualifications and opinions. (Doc. 66-2.)

Depositors replies that her qualifications "have nothing to do with her opinions in this case" (Doc. 72 at 1-2) and her testimony does not require scientific, technical or other specialized knowledge that will help the jury understand the evidence or determine a fact in issue. (Id. at 2.) Further, Depositors challenges Schexnayder's affidavit as the product of the leading questions of Plaintiffs' counsel which is contradicted by her deposition testimony. (Id. at 3-5.)

The details of the parties' arguments will be addressed in the Court's ruling.

III. LEGAL STANDARD

Pursuant to Rule 702, "a witness who is qualified as an expert by knowledge, skill, experience, or education may testify in the form of an opinion or otherwise" if its preconditions are met. FED. R. EVID. 702. Rule 702, however, does not render all expert testimony admissible. United States v Scavo, 593 F.2d 837, 844 (8th Cir. 1979). Rather, beyond being subject to the Rule's helpfulness requirement, expert testimony can still be excluded per Rule 403. FED. R. EVID. 403; United States v Green, 548 F.2d 1261, 1270 (6th Cir. 1977). Entirely discretionary, Rule 403 allows a court to "exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403.

This is a Daubert challenge based on the expert's alleged failure to use an accepted methodology and her opinion's alleged lack of an adequate factual foundation. (Doc. 52-1 at 4.) Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). When Daubert is invoked, a district court may, but is not required to, hold a hearing at which the proffered opinion may be challenged. Carlson v. Bioremedi Therapeutic Sys., Inc., 822 F.3d 194, 201 (5th Cir. 2016). However, when no hearing is held, "a district court must still perform its gatekeeping function by performing some type of Daubert inquiry." Id. "At a minimum, a district court must create a record of its Daubert inquiry and 'articulate its basis for admitting expert testimony.'" Id. (quoting Rodriquez v. Riddell Sports, Inc., 242 F.3d 567, 581 (5th Cir. 2001)).

The role of the trial court is to serve as the gatekeeper for expert testimony by making the determination of whether the expert opinion is reliable. As the Fifth Circuit has held:

[W]hen expert testimony is offered, the trial judge must perform a screening function to ensure that the expert's opinion is reliable and relevant to the facts at issue in the case. . . . Daubert went on to make "general observations" intended to guide a district court's evaluation of scientific evidence. The nonexclusive list includes "whether [a theory or technique] can be (and has been) tested," whether it "has been subjected to peer review and publication," the "known or potential rate of error," and the "existence and maintenance of standards controlling the technique's operation," as well as "general acceptance." . . . The Court summarized:

The inquiry envisioned by Rule 702 is, we emphasize, a flexible one. Its overarching subject is the scientific validity and thus the evidentiary relevance and reliability-of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.

Watkins v. Telsmith, Inc., 121 F.3d 984, 988-89 (5th Cir. 1997) (internal citations omitted).

The cases following Daubert have expanded the factors and explained the listing is neither all-encompassing nor is every factor required in every case. See, e.g., Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997); Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004). Indeed, courts may look to other factors. Joiner, 522 U.S. at 146.

This Court has explained:

The admissibility of expert testimony is governed by Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., . . . which provide that the court serves as a gatekeeper, ensuring all scientific testimony is relevant and reliable. This gatekeeping role extends to all expert testimony, whether scientific or not. . . . Under Rule 702, the court must consider three primary requirements in determining the admissibility of expert testimony: 1) qualifications of the expert witness; 2) relevance of the testimony; and 3) reliability of the principles and methodology upon which the testimony is based.

Fayard v. Tire Kingdom, Inc., No. 09-171, 2010 WL 3999011, at *1, 2010 U.S. Dist. LEXIS 108845, at *2-3 (M.D. La. Oct. 12, 2010) (internal citation omitted) (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999)).

This Court has broad discretion in deciding whether to admit expert opinion testimony. See, e.g., Joiner, 522 U.S. at 138-39 (holding that appellate courts review a trial court's decisionto admit or exclude expert testimony under Daubert under the abuse of discretion standard); Watkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir. 1997) (holding "[d]istrict courts enjoy wide latitude in determining the admissibility of expert testimony"); Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1050 (5th Cir. 1998) ("Trial courts have 'wide discretion' in deciding whether or not a particular witness qualifies as an expert under the Federal Rules of Evidence.").

"Notwithstanding Daubert, the Court remains cognizant that 'the rejection of expert testimony is the exception and not the rule.'" Johnson v. Samsung Elecs. Am., Inc., 277 F.R.D. 161, 165 (E.D. La. 2011) (citing Fed. R. Evid. 702 Advisory Committee Note (2000 amend.)). Further, as explained in Scordill v. Louisville Ladder Grp., L.L.C., No. 02-2565, 2003 WL 22427981, 2003 U.S. Dist. LEXIS 19052 (E.D. La. Oct. 24, 2003) (Vance, J.):

The Court notes that its role as a gatekeeper does not replace the traditional adversary system and the place of the jury within the system. . . . As the Daubert Court noted, "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." . . . The Fifth Circuit has added that, in determining the admissibility of expert testimony, a district court must defer to "'the jury's role as the proper arbiter of disputes between conflicting opinions. As a general rule, questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury's consideration.'"

Id., 2003 WL 22427981, at *3, 2003 U.S. Dist. LEXIS 19052, at *7-*8 (E.D. La. Oct. 24, 2003) (internal citations omitted) (relying on, among others, Rock v. Arkansas, 483 U.S. 44, 61, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987), and United States v. 14.38 Acres of Land, More or Less Sit. In Leflore County, Miss., 80 F.3d 1074, 1077 (5th Cir. 1996) (quoting Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir. 1987))).

The Supreme Court has recognized that not all expert opinion testimony can be measured by the same exact standard. Rather, the Daubert analysis is a "flexible" one, and "the factors...