On May 22, 2021, Keith Anderson (“Anderson”) and Lorena McCaigue (“McCaigue”) (“Plaintiffs”) brought this action against Pasadena Police Chief John E. Perez (“Perez”) and the City of Pasadena (“City”). The action arises out of Defendants’ alleged retaliation against Plaintiffs in response to the following actions: (1) bringing a civil action against the City of Pasadena and certain Pasadena police officers in which violations of the California Tort Claims Act were alleged; and (2) making a request under California’s Public Records Act (“CPRA”) to obtain copies of police body camera footage.
To begin with, McCaigue is a federal law enforcement agent who was based in the Los Angeles area. On July 22, 2019, Pasadena police responded to a call reporting a supposed suicidal person. Thereafter, McCaigue’s identity was publicized in such a way that it was no longer safe for her to continue her work in the Los Angeles area. McCaigue applied for and was granted a transfer to a new locality that has not been disclosed. However, in this new locality McCaigue lacked the same opportunities for meaningful advancement, thus negatively affecting her lifetime total earnings.
Defendant argued that the opinions of Phillip D. Sidlow, Plaintiff’s expert, were insufficient to prove that Defendant’s conduct caused McCaigue’s lost wages because his testimony was unreliable and based on “assumptions.”
Economics Expert Witness
Phillip D. Sidlow has a Master’s Degree in Applied Economics from Johns Hopkins University and is employed as a vocational economics analyst. Moreover, he has published articles about earning capacity loss, and has served as an expert in calculating lost economic opportunities suffered by parties in hundreds of lawsuits.
Defendant argued that Sidlow’s testimony should have been excluded because it “lacked foundation and was based on pure speculation,” including assumptions he and Plaintiff McCaigue made, rather than Sidlow’s independent “research,” “review,” or consultation with Plaintiff McCaigue’s supervisors.
Based on Sidlow’s experience, education, and specialized knowledge, the Court determined that Sidlow was qualified to provide expert testimony as to Plaintiff McCaigue’s lost earning potential, based on information provided by Plaintiff McCaigue.
In other words, Defendant’s challenge to Sidlow concerned the weight, not admissibility, of his testimony.
Held
The Court denied the Defendant’s motion to exclude the testimony of Phillip Sidlow.
Key Takeaway:
Although Defendant asserted that Sidlow’s testimony must be excluded because it was based on “pure speculation and assumptions,” the assumptions of an expert go to the probative weight, rather than the admissibility, of the evidence.
Case Details:
Case Caption:
Anderson V. Perez
Docket Number:
2:21cv4290
Court Name:
United States District Court for the Central District of California
Plaintiff Kimberly Breuil claimed that she was injured in a motor vehicle accident that took place on October 8, 2021.
Breuil claimed that her injuries have made it painful to look downward and difficult to lift objects. As a result, she is seeking future lost wages and diminished earning capacity totaling between $483,273 and $1,085,644. She alleged that these injuries forced her to resign from her job at the United States Postal Service and take a lower-paying job at Pizza Hut or a similar employer for the remainder of her career. Breuil asserted that she has already experienced, and will continue to experience, loss of income and earning potential.
Brooke A. Liggett is a Certified Public Accountant, a Master Analyst in Financial Forensics, a Certified Valuation Analyst, and is also certified in Financial Forensics. She is the owner of Liggett Forensic Accounting and Economics.
She specializes in calculating economic damages in personal injury and wrongful death cases, as well as in business-related economic damages.
Dr. Brett Anthony Miller is a board-certified orthopedic surgeon and sports medicine specialist. Miller finished his undergraduate education at Washburn University in Topeka, Kansas, before earning his Doctor of Medicine degree from the University of Kansas School of Medicine in Kansas City, Kansas. There, he went on to complete both his internship and orthopedic surgery residency at the University of Kansas Medical Center.
Miller joined Orthopedic and Sports Medicine Center in 2004. At the practice’s office in St. Joseph, Missouri, Miller offers specialized care for sports-related and acute injuries using evidence-based medicine and modern operative techniques, including shoulder arthroscopy.
Brendan P. Bourdage holds an M.S. in Kinesiology from California Polytechnic University, Humboldt. He has successfully completed numerous continuing education courses in crash analysis, collision reconstruction and investigation, as well as other training related to motor vehicle accidents. He holds licenses and registrations in engineering, traffic accident reconstruction, and functional movement, and has published articles and presented seminars on these topics.
Liggett, a Certified Public Accountant, initially calculated that the Plaintiff’s change in employment had resulted in a lifetime loss of earnings between $488,273 and $1,085,644.
However, the Plaintiff clarified that Liggett did not offer any opinions on whether the accident caused the Plaintiff to leave her job at the United States Postal Service (USPS), whether she could have continued working there, or on any other causation-related issues. Instead, Liggett’s role was limited to comparing the Plaintiff’s former earning capacity at USPS to her income at the time. She relied on the Plaintiff’s own statements about her inability to continue working at USPS and based her calculations on the Plaintiff’s then-current job and income.
Moreover, Liggett explicitly stated that she was not a vocational expert and was not offering vocational opinions. Her testimony was confined to calculating the financial losses related to earning capacity and retirement benefits, which was within the scope of her expertise as a CPA. Additionally, the Plaintiff asserted that Liggett had no opinions about whether the Defendants caused the Plaintiff’s injuries or whether those injuries led to a reduction in earnings.
Consequently, the Plaintiff contended that, if the jury concluded the Defendants were responsible for the Plaintiff’s job loss, Liggett’s testimony would assist the jury in determining the amount of damages. Ultimately, the Court found that Liggett was qualified to testify about present value calculations. Any concerns raised by the Defendants could be addressed through cross-examination or the presentation of contrary evidence. Importantly, the record contained no indication that Liggett intended to offer opinions on causation or vocational matters, and any such testimony would not be permitted. She was allowed to testify strictly in her capacity as an accountant, relying on admissible evidence.
Brett Miller
Miller, an orthopedic surgeon, conducted an independent medical examination of the Plaintiff. The Defendants sought to prevent him from offering any opinions on the Plaintiff’s mental health conditions allegedly caused by the accident, arguing that he is not qualified to do so. In response, the Plaintiffs stated that they have withdrawn any opinions Miller may have had regarding the Plaintiff’s mental health or depression. Therefore, they argued, the Defendants’ motion is now moot.
In reply, the Defendants maintained that the Court should formally exclude any such opinions, since Miller, as an orthopedic surgeon, is not qualified to opine on mental health issues. The Court noted that the Plaintiffs had clearly stated—both in their filings and on the record—that Miller would not offer any testimony or opinions related to the Plaintiff’s mental health or depression.
If the Plaintiffs later attempt to introduce such opinions from Miller at trial, the Court will address any objections from the Defendants at that time. However, since the Plaintiffs have already withdrawn these opinions, they will not be allowed at trial. As a result, the motion to exclude is denied as moot.
Brendan Bourdage
The Defendants argued that Bourdage was not qualified to offer expert testimony on several issues, including the speed of impact during the collision, the change in velocity of the Plaintiff’s vehicle, the effect of the collision on the Plaintiff, and the Plaintiff’s injuries. Specifically, they claimed that Bourdage was not a medical expert and, therefore, should not have been permitted to testify about the Plaintiff’s injuries or their causes. Moreover, they contended that he lacked the necessary engineering background to provide biomechanical opinions.
In addition, the Defendants moved to exclude Bourdage’s opinions entirely, asserting that his conclusions were not sufficiently connected to the facts of the case and would not assist the jury in resolving any factual disputes. Furthermore, they challenged the reliability of Bourdage’s methodology.
After reviewing Bourdage’s CV and expert report, the Court found that the Defendants’ concerns were more appropriately addressed through cross-examination. Accordingly, Bourdage was permitted to present the opinions set forth in his report regarding how rear-end collisions could cause injuries, along with the general mechanisms and contributing factors involved in such injuries. However, because Bourdage was not a medical doctor, the Court ruled that he could not—and would not—be allowed to testify about the specific injuries the Plaintiff may have suffered in this collision.
Held
To begin with, all rulings by this Court on Daubert motions are preliminary in nature. The Court’s rulings are subject to change based on the evidence and testimony presented during trial.
The Court denied the Defendants’ motion to exclude the testimony of Brooke Liggett.
The Defendants’ motion to exclude the testimony of Dr. Brett Miller was denied as moot.
The Court denied the Defendants’ motion to exclude the testimony of Brendan Bourdage, PhD.
Key Takeaways:
There is nothing in the record to suggest that Liggett has any opinion about causation or any vocational opinions. Liggett may testify as an accountant relying on other admissible testimony.
Bourdage is not a medical doctor and cannot, and will not, be allowed to testify as to what injuries this Plaintiff actually suffered in this collision.
