This case arises out of Plaintiffs’ employment with McKesson and their allegation that McKesson discriminated and retaliated against them by denying them religious accommodations to McKesson’s COVID-19 Vaccination Protocol and terminating their employment. Plaintiffs sought damages which, including lost wages, in the form of back pay and front pay, and fringe benefits.
Plaintiffs retained Larry D. Stokes, Ph.D., of Beta Business Consulting, LLC, as an expert witness to provide his opinions of the economic losses purportedly suffered by each Plaintiff.
Defendants claimed that Stokes’ reports and testimony are inadmissible because his lack of knowledge reveals them to be wholly unreliable.
Economics Expert Witness
Larry D. Stokes is a forensic economist with over 40 years of experience in litigation related economics. He founded the Beta Business
Consulting, LLC which provides provides economic analysis reports, research and expert testimony for economic damage claims involving personal injury, wrongful death, employment (loss of earning capacity) and more.
Discussion by the Court
Stokes based his opinions on Plaintiffs’ earnings history, including the value of fringe benefits. To begin with, economists typically rely on W-2’s, personal information supplied by Plaintiffs in answers to economists’ questionaries, and employers’ information about compensation.
The Court found that Defendants’ motion lists seven items Stokes did not recall at his deposition. However, Defendants have not shown that these seven items are information essential to Stokes’ opinions. For example, Defendants argue that “Stokes did not know how he was retained for this case or when he began working on the analysis,” but fail to explain how this information is necessary foundation for his opinions.
Defendants have not addressed the facts and data Stokes used in reaching his opinions. That he did not remember at his deposition seven questions asked by Defense counsel might make for fruitful cross-examination, but the Court held that his failure to remember when he was employed or what information was requested of Plaintiffs does not show he lacked reliable data.
Defendants also argued that Stokes’ opinions should be excluded at trial because he “conceded that there were multiple errors in his initial reports at least one of which was a ‘pretty obvious mistake’ which ‘had a substantial impact.”’ However, the Court found that Stokes’ initial reports were revised, and the conceded errors were corrected.
The motion also sought exclusion of Stokes’ opinions from trial because he relied on unverified information provided by Plaintiffs or their counsel. However, the Court held that there is no basis to expect an expert to personally interview Plaintiffs and verify their history. To the contrary, Fed. R. Evid. Rule 703 specifically authorizes experts to base opinions “on facts or data in the case that the expert has been made aware of or personally observed.”
Held
The Court denied the Defendants’ motion to strike the expert testimony and report of Plaintiffs’ expert witness Larry D. Stokes.
Key Takeaways:
- Expert reports are hearsay and normally not admitted at trial, absent stipulation. Experts are expected to be prepared to discuss their opinions and the basis of their opinions when they are deposed. But if an expert does not remember how the data was gathered or who prepared what portion of a report, his opinion is not discarded if the report sufficiently details the information he relied on in reaching his opinions. Typically, the expert is allowed to review his report and refresh his memory.
- That an expert makes errors that are later corrected in supplemental reports does not show that the expert’s opinions lack sufficient facts or data. A few inconsequential errors in an initial report that was later revised to correct the errors do not warrant the exclusion of the expert’s opinions.
Case Details:
| Case Caption: | Loyd Et Al V. Mckesson Corporation Et Al |
| Docket Number: | 2:22cv2065 |
| Court: | United States District Court, Arizona |
| Order Date: | September 12, 2024 |
Leave a Reply