Plaintiff Azzine Kali alleged that while driving for Lyft on February 17, 2023, he was seriously injured in an automobile accident caused by the negligence of Defendant Erasmo Lopez, who at the time was operating his vehicle on behalf of Defendant J Bermudez Trucking, Inc.
Plaintiff produced the report of vocational rehabilitation expert John Dieckman, an assistant vocational services director at Proto-Worx, Inc. Defendants filed a motion to exclude Dieckman’s testimony.
Vocational Rehabilitation Expert Witness
John W. Dieckman, MS, CRC, CDMC has been a licensed vocationalist since 1983. He has been qualified as an expert vocationalist numerous times in both state and federal courts.
Defendants asserted that Dieckman’s opinion on Plaintiff’s future lost earnings should be excluded because it is speculative, subjective and unsupported by any published or unpublished sources.
Highlighting that Plaintiff cited no authority for his contention that vocational experts “routinely” employ BLS data, Defendants specify that in any event the issue here is that Dieckman did not apply a reliable methodology when he replaced Plaintiff’s actual job earnings as a rideshare driver with the government figure even though at his deposition he was unable to identify any literature or studies supporting this decision and admitted that “[t]here’s no particular way to confirm” that the selected Bureau of Labor Statistics (BLS) classification applies to Plaintiff.
The Court agreed with Defendants that Dieckman’s methodology in reaching his opinion regarding Plaintiff’s future lost wages was unreliable. Although Plaintiff’s earnings for his years as a rideshare driver for which Dieckman had complete information at the time of his report (2020 to 2023) ranged within a reasonably narrow band of a few thousand dollars each year, Dieckman jettisoned this data based on actual income in favor of the much higher (approximately 73 percent more than Plaintiff’s best year) BLS figure, despite the fact that he admittedly lacked key information regarding the applicability of the relevant BLS occupational classification, including what constituted “full-time” under it, the average number of days and hours worked, and whether the classification even covered rideshare drivers like Plaintiff.
B. “Fit”
Defendants asserted that Dieckman’s opinion that Plaintiff is limited to 50 percent of a normal workload (and thus 50 percent of his earning capacity) did not fit the facts of this case because his post-injury 2023 and 2024 tax records showed no diminution in his income.
The Court again agreed with Defendants. Dieckman’s findings are predicated upon the notion that Plaintiff will permanently remain able to work only half of a full workload, with an attendant 50 percent cut in earnings. However, after being injured in February 2023, Plaintiff went on to earn more as a rideshare driver that year than he did the year before and only $1,284 less than his all-time high from the year before that. Indeed, in 2024 (the most recent year for which there appears to be earning information), Plaintiff earned approximately 69 percent more than in 2022, the last full year before his injury. Yet Plaintiff asked the Court to permit Dieckman to testify that Plaintiff will never again reach more than 50 percent of his former earning capacity.
Held
The Court granted Defendants’ motion to exclude the testimony of Plaintiff’s expert, John Dieckman.
Key Takeaway
It is doubtful that Dieckman’s hypothesized final calculation is “testable” as to accuracy given that his choice of the BLS figure reflects a lack of “the existence and maintenance of standards controlling the technique’s operation.”
Case Details:
Case Caption:
Kali V. Lopez Et Al
Docket Number:
2:24cv4197
Court Name:
United States District Court, Pennsylvania Eastern
Jenessa Dubey was employed by Concentric Healthcare Solutions, LLC from August 2016 until her termination on December 2, 2021. She has filed a lawsuit against Concentric and Robert Bales, alleging sex-based discrimination, sexual harassment, and unpaid wages.
The case focuses on Dubey’s claims that, over several years, Bales engaged in conduct that created a hostile work environment during her time at the company.
Nathaniel Curtis is typically engaged to analyze lost earnings related to complex labor discrimination and wrongful termination disputes.
He holds an MBA, a Master’s Degree in Business Administration, and a Bachelor’s in “Business Ecology.” He serves as the Chief Financial Officer of a private engineering firm with over 150 employees based in Arizona.
Curtis opined that the present value of Plaintiff’s lost earnings resulting from Defendants’ conduct is approximately $5.4 million as of January 1, 2024, based on documents produced by the parties, and information obtained from research efforts.
Curtis is Qualified under Rule 702
The Court found that Curtis is qualified to testify as an economics expert based on his education and professional experience. He holds an MBA in Business Administration and a Bachelor’s degree in Business Ecology, which satisfy the educational requirements under Rule 702. In addition, he has over ten years of experience providing expert analysis in similar cases. Therefore, the Court concluded that Curtis met the threshold qualifications to testify as an expert and will not exclude him at this pretrial stage.
Whether Curtis’ Testimony Will Assist the Jury
Defendants next argued that Curtis’ opinions about lost earning capacity are not helpful to the jury because the Plaintiff does not claim that her earning capacity was harmed. In response, Plaintiff contended that Curtis intends to testify only about the amount of her lost future earnings due to her wrongful termination by Concentric.
There appeared to be a misunderstanding between the parties regarding the scope of Curtis’ intended testimony. In his report, Curtis stated that he was engaged to “calculate [Plaintiff’s] lost earnings resulting from Defendants’ actions as described in [her] complaint.” During his deposition, he was asked about the following statement: “[t]he relevant issue is [Plaintiff’s] earning capacity as a professional, not her earning capacity at Concentric.” When asked why her earning capacity at Concentric was not considered relevant, Curtis explained: “It’s not that it’s not relevant. It’s not the goal. The goal isn’t to say what she would have earned at Concentric. It’s to understand what her earnings capacity was.”
The Court found that Curtis’ testimony will assist the jury because he will provide “knowledge beyond the trier of fact’s common knowledge.” The Defendants’ objections go to the weight of Curtis’ testimony and the evidence supporting it—not to its admissibility.
Sufficient Facts and Data
Defendant next argued that Curtis’ testimony relied on insufficient facts and data in violation of Rule 702(b). However, the Court found that Curtis’ opinions are drawn from sufficient factual grounds. Curtis stated in his report that, in developing his opinions, he reviewed documents produced by the parties, and information obtained from research efforts related to this report.
Curtis has also included an exhibit detailing the documents he relied upon which includes check stubs and an offer letter. Plaintiff also noted in her response that Curtis relied upon records of Plaintiff’s historical compensation and commissions and data regarding compensation conditions in the specific industry at the relevant time. She also argued that Defendant’s expert also relied upon these same documents to reach his opinion.
Defendants argued in their Reply that Curtis “only reviewed two commission payments to predict Plaintiff’s commissions for the remainder of her career” and that this limited review of two commission payments “is insufficient to predict almost 25 years of commissions.”
Defendant essentially argued that Plaintiff’s commission payments and wage data were reviewed in a vacuum. Yet, according to Curtis, they were reviewed in conjunction with other documents, evidence and statistics from the Bureau of Labor. Cutis then utilized these facts, data and assumptions to reach a conclusion as to Plaintiff’s lost wages. These facts and data, reviewed in the aggregate, establish sufficient factual grounds from which Curtis could form an opinion and draw conclusions from.
Reliable Principals and Methods
Defendant argued that Curtis’ opinions regarding Plaintiff’s future earning capacity and expected growth rate in the “Actual Scenario” employed an unreliable methodology.
Curtis employed a But-For Scenario and an Actual Scenario to calculate Plaintiff’s damages. He states that “the Actual Scenario differs from the But-For Scenario by assuming that [Plaintiff] will experience abnormal wage increases and commission increases in her new position because workers commonly experience several years of above average earnings increases when they pursue long-term and stable employment.”
Curtis also stated that that “with respect to the Plaintiff’s lost commissions, I reviewed Plaintiff’s pay stubs, which revealed commissions in September 2021 of $16,308 and in October 2021 of $18,011. Using historical earnings, and specifically recent historical earnings, is a generally accepted and testable data source used by experts to calculate lost earnings in wrongful termination disputes.”
Defendants objected to Curtis’ calculations regarding earning capacity growth and commissions. They also argued that he failed to explain the basis for his assumption of a 10% annual commission. However, an expert “may, in appropriate circumstances, rely on assumptions when formulating opinions.”
While Defendants argued that Curtis did not take Plaintiff’s specific job into consideration in determining what rate was appropriate, the Court held that Curtis’ opinions are indeed the product of reliable principles and methods such that he can testify under Rule 702. It should be attacked by cross examination at trial—not exclusion beforehand.
Held
The Court denied the Defendants’ Daubert motion to exclude Plaintiff Jenessa Dubey’s expert, Nathaniel Curtis, MBA.
Key Takeaway:
Curtis has applied reliable principles to form his hypothesis. It is not for the Court to gauge whether that hypothesis is ultimately correct, so long as his opinion stays “within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology.”
Case Details:
Case Caption:
Dubey V. Concentric Healthcare Solutions LLC Et Al
The present lawsuit involves a tort dispute arising from an incident in which Andrés González-Pérez (“Plaintiff” or “González”) was allegedly injured after he fell from a poorly maintained ladder that provided access to a vessel owned and operated by Harley Marine Financing LLC (“HMF”) and Harley Marine NY, Inc. (“HMNY,” collectively “Defendants” or “Harley Marine”).
In the course of the legal proceedings, the Defendants filed the following three motions:
Motion to exclude portions of the Life Care Plan prepared by the Plaintiff’s physical medicine expert witness Gloydian Cruz-Gomez.
Motion to exclude the testimony of Plaintiff’s economics expert witness Kenneth McCoin.
Motion to exclude the testimony of the Plaintiff’s vocational rehabilitation expert witness Ashley G. Lastrapes.
Physical Medicine Expert Witness
Gloydian Cruz-Gomez is a Physical Medicine & Rehabilitation and Pain Medicine specialist who has practiced medicine in Florida since 2011.
Cruz is a licensed physician in the state of Florida, and she is certified by the American Board of Physical Medicine & Rehabilitation and the American Board of Pain Medicine. Cruz is also a Certified Life Care Planner, as designated by the International Commission on Health Care Certification.
Kenneth G. McCoin is a consulting economist and a chartered financial analyst. He holds a Ph.D. in Economics from the University of Houston. His professional experience includes serving as Chief Economist at American General Capital Management. He also taught investments and corporate finance at Houston Baptist University.
Ashley G. Lastrapes has worked in rehabilitation counseling since 2011. She holds a Ph.D. in Counselor Education and Supervision from the University of Holy Cross, a Master of Health Science in Rehabilitation Counseling from Louisiana State University Health Sciences Center, and a Bachelor of Science in Psychology from the University of New Orleans.
The Defendants sought to exclude portions of the life care plan prepared by Gloydian Cruz-Gomez. They argued that her calculation of the cost of medications that González will incur for future use is unreliable. Specifically, they contended that her estimates, which included the cost of NSAIDs, opioids, antidepressants, and Zanaflex for the next 25 years of his life, lacked a reliable foundation.
ii) Plaintiff’s Counter-Argument
In response, the Plaintiff defended the reliability of Cruz-Gomez’s Life Care Plan by pointing out that her estimates were grounded in Plaintiff’s medical records, consultations with treating physicians, and established medical guidelines. Additionally, he argued that she applied well-recognized principles in life care planning and offered a rational basis for her cost estimates.
iii) Analysis
While Harley Marine agreed that Cruz-Gómez is qualified to render the opinions included in her report and that the methodology used in reaching said opinions met the standards of Rule 702, Daubert and its progeny, the Court was still required to examine whether the experts’ opinions on future medications was based on reliable foundations.
In her life care plan, Cruz-Gomez explained that she relied on all past medical, social, psychological, educational, vocational, and rehabilitation data to the extent they are available and applicable. This included records of medications prescribed by González’s treating physician. She used this information, in addition to her education, training, and experience as a board-certified physical medicine and rehabilitation specialist and certified life care planner to determine González’s future medication needs. She based her conclusions on a “reasonable degree of medical probability,” indicating it was more likely than not that González would require the medications outlined in the plan. The Court held that her analysis followed reliable principles and methods and relied on sufficient facts and data, meeting the requirements of Rule 702.
Conclusion
Consequently, it should be noted that Harley Marine objected only to the section of Cruz Gómez’s report addressing the costs of Plaintiff’s future medications. Defendants’ experts’ competing opinion was the sole basis for their challenge to the factual basis of Cruz Gómez’s opinions on Plaintiff’s future medications. Citing United States V. Vargas, 471 F.3d 255 (1st Cir. 2006), the Court held that when the factual underpinning of an expert is weak, it is a matter affecting the weight and credibility of the testimony— a question to be resolved by the jury. Thus, their challenge goes to credibility of the expert, not the reliability of her opinions.
B. Kenneth McCoin
i) Defendants’ Argument
To begin with, Harley Marine sought to exclude Kenneth McCoin’s opinion on González’s earning capacity, arguing that his analysis lacked sufficient facts and data, making it unreliable. Specifically, the Defendants contended that McCoin failed to consider González’s post-injury earnings and relied on an unsupported assumption that wages increase over time when the record did not provide evidence of such a conclusion.
ii) Plaintiff’s Counter-Argument
In response, the Plaintiff defended McCoin’s methodology, asserting that he based his calculations on González’s tax returns and employment contract. These, according to the Plaintiff, provided a valid and reasonable foundation for estimating his earning capacity in the absence of his injuries. The Plaintiff also argued that any income earned by González after his injury was irrelevant to McCoin’s analysis. Moreover, McCoin’s use of a “societal wage growth” factor is a recognized method of forecasting future earning capacity.
iii) Analysis
First, the Court observed that Harley Marine appeared to confuse “earning capacity” with “lost earning capacity.” McCoin was tasked with estimating González’s postinjury economic capacity in the absence of the incident. The jury would then determine the actual loss of income based on this estimate. However, the Court found that Harley Marine incorrectly argued that McCoin’s failure to consider medical information, vocational data, and post-employment history undermined the reliability of his analysis. The Court clarified that McCoin’s role was to provide an estimate of what his earning capacity would have been, but for the accident, from which the jury can make a lost earning capacity determination.
Second, the Court found that McCoin’s assumption that González was not working after the injury did not affect his analysis of his earning capacity. His task was to evaluate earning capacity absent the injury, making post-injury employment irrelevant to this assessment. McCoin relied on González’s tax returns from 2019–2021 and an independent contractor agreement with PETROCARE Marine Consultants, Inc., which provided a sufficient and reliable basis for his calculations.
The Court found that McCoin’s application of a “societal wage growth factor” in his earning capacity analysis does not make his conclusions unreliable. McCoin explained at deposition what a “societal wage growth factor” is and the purpose for including it in his analysis: “Those are wage growth that redounds to employees due to the increase in general labor productivity.” Courts are instructed to consider “societal factors” which contributes to “wages of workers increase over time.” Therefore, the Court held that McCoin’s implementation of a “societal wage factor” in his earning capacity calculation was well-reasoned, not overly speculative.
Conclusion
The Court also rejected Harley Marine’s claim that fluctuations in González’s earnings from 2019–2021 proscribe McCoin from having a reliable basis to apply a societal wage growth factor to the earnings capacity analysis. In other words, variations in income over three years did not undermine the reliability of McCoin’s methodology. As McCoin explained in his deposition, even self-employed individuals experience market changes in wages. For the Court, a fluctuation of earnings over three years does not seem to be sufficient basis to discredit the expert’s methodologies.
C. Ashley G. Lastrapes
i) Defendants’ Argument
Harley Marine sought to exclude Ashley Lastrapes’ vocational assessment for González, claiming it lacked a sufficient factual basis to evaluate his earning capacity under Rule 702.
ii) Plaintiff’s Counter-Argument
González countered that despite Lastrapes issuing a “guarded” assessment of his post-injury earning capacity, her report offered valuable insights with regard to his capacity to work which are relevant to the case, including the following:
a) Lastrapes provided opinions on the Life Care Plan developed by Gloydian Cruz-Gomez. She also assessed González’s physical limitations, decreased ability to perform daily activities, and the resulting loss of vocational opportunities.
b) She analyzed the potential impact of a future surgery, as predicted by Cruz Gómez, on González’s ability to earn income.
c) Lastrapes evaluated González’s inability to travel for work-related tasks, as well as the economic losses stemming from this limitation.
iii) Analysis
Lastrapes was retained to conduct a vocational assessment evaluating the factors affecting González’s post-injury earning capacity following his May 2022 injury. She relied on medical and employment records, litigation case materials, and expert reports from Cruz-Gomez and McCoin, and conducted a clinical interview with González.
Regarding vocational prognosis, Lastrapes concluded it was “guarded,” explaining that she needed additional information to provide a definitive opinion on future wage loss. However, the Court noted this was only one aspect of her report because Lastrapes also addressed other critical issues, including the Life Care Plan by Cruz-Gomez, González’s physical limitations, and his diminished ability to perform daily activities, which reduced his vocational opportunities. She further analyzed how a potential future surgery would impact his earning capacity and highlighted economic losses tied to his inability to travel for work-related tasks.
Harley Marine argued that the absence of a conclusive vocational prognosis warranted the exclusion of all of Lastrapes’ testimony. The Court disagreed, emphasizing that her opinions were grounded in reliable data and aligned with the scope of her assignment.
Therefore, the Court observed that the parties could address any challenges to Lastrapes’ credibility or conclusions through cross-examination and the presentation of contrary evidence, as outlined in Daubert. It refused to penalize González because his expert presented sound opinions within the scope of her task only where a reliable basis existed.
Held
Accordingly, the Court issued the following orders:
Motion in limine to exclude portions of the Life Care Plan prepared by Plaintiff’s physical medicine expert witness Gloydian Cruz-Gomez was denied
Motion in limine to exclude the testimony of Plaintiff’s economics expert witness Kenneth McCoin was denied
Motion in limine to exclude the testimony of Plaintiff’s vocational rehabilitation expert witness Ashley G. Lastrapes was denied.
Key Takeaway:
First, physical medicine expert witness Gloydian Cruz-Gomez’s Life Care Plan, based on medical records and professional expertise, was deemed grounded in sufficient data, despite conflicting opinions from the Defendants’ expert.
Moreover, economics expert witness Kenneth McCoin’s analysis of the Plaintiff’s postinjury economic capacity in the absence of the incident was supported by tax returns and an independent contractor agreement, with the Court affirming that his use of a societal wage growth factor was a valid and recognized method.
Lastly, vocational rehabilitation expert witness Ashley Lastrapes’ vocational assessment was upheld as it was based on comprehensive medical and employment records, despite her “guarded” prognosis, as the Court noted that such conclusions could be addressed during cross-examination.
Case Details:
Case caption:
González-Pérez v. Harley Marine Fin. LLC
Docket Number:
3:22cv1519
Court:
United States District Court for the District of Puerto Rico
