United States District Court, W.D. Missouri, Central Division
NANETTE K. LAUGHREY, UNITED STATES DISTRICT JUDGE
Sareap Noeuy moves to exclude testimony of Plaintiff Sabrina
Graham's expert witnesses, Kurt Krueger, an economist,
and Mitchell Mullins, a life care planner. Doc. 115. The
motion is denied.
Rule 702 of the Federal Rules of Civil Procedure, the Court
considers whether (1) the expert testimony is relevant in
that it will be useful to the trier of fact, and (2) the
expert is qualified to assist the finder of fact, and (3) the
proposed evidence is reliable or trustworthy. As to
trustworthiness, the Court considers whether the evidence is
based upon sufficient facts or data, and is the product of
reliable principles and methods, and whether the witness has
applied those principles and methods reliably to the facts.
Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686
(8th Cir. 2001). These considerations are made
with an eye toward the factors set out in Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993):
whether a theory or technique can or has been tested; whether
it has been subjected to peer review and publication; the
known or potential rate of error; and whether the theory is
generally accepted. Id. at 686-87.
standard for admission of expert testimony is a liberal one.
Johnson v. Mead Johnson & Co., LLC, 754
F.3d 557, 562 (8th Cir. 2014). “As long as
the expert's ... 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 by the court at the outset.” Id.
A district court has “broad discretion” to admit
or exclude expert testimony. Clark v. Hedrick, M.D.,
150 F.3d 912, 915 (8th Cir. 1998). See also
Wagner v. Hesston Corp., 450 F.3d 756, 758
(8th Cir. 2006) (“Under the framework
developed in Daubert, trial courts must serve as
gatekeepers to insure that proffered expert testimony is both
relevant and reliable. Trial courts are given broad
discretion in fulfilling this gatekeeping role[.]”).
general rule, the factual basis of an expert opinion goes to
the credibility of the testimony, not the admissibility, and
it is up to the opposing party to examine the factual basis
for the opinion in cross-examination. Only if the
expert's opinion is so fundamentally unsupported that it
can offer no assistance to the jury must such testimony be
excluded. Bonner v. ISP Techs., Inc., 259 F.3d 924,
929-30 (8th Cir. 2001) (citation omitted).
The Krueger opinion
alleges she was injured in a car accident she had with Noeuy,
and she seeks to offer the opinion of Kurt Krueger, who will
testify to her past and future lost earning capacity, and the
economic value of her loss of household and farm services.
is a senior economist at John Ward economics, who performs
expert economic appraisal work. In preparing his expert
report for this case, Krueger reviewed Graham's W-2 and
income tax forms from 2009-2015; various pay stubs from 2014,
2015, and 2016; emails from Graham to her attorneys;
Graham's deposition transcript; and Graham's resume.
In calculating Graham's lost earning capacity, Krueger
first determined Graham's anticipated annual full-time
earnings level. In making these calculations, he relied on
Graham's W-2 income tax records and pay stubs, which
established her hourly wage rate. Further, he relied on
Graham's deposition, in which she testified that her
regular work schedule is three, twelve-hour shifts per week.
She further stated that her employer routinely offers her
overtime work, and that she desires to work as much overtime
as possible. Krueger's calculations of Graham's
earnings capacity assumed a 36-hour workweek and one overtime
shift per pay period.
first argues that Krueger's calculation of Graham's
past lost earning capacity is not based upon Graham's
actual employment situation or opportunities, emphasizing
that Graham is only employed on an “as needed” or
“p.r.n.” basis. Doc. 115, p. 7. Further, he
argues that Graham is not guaranteed an overtime shift per
pay period and that her employment records indicate she has
worked as much, if not more, since her accident. Although
Noeuy is correct that Graham is employed on an “as
needed” basis and her earnings were greater in 2015
than in the recent prior years, these facts do not
demonstrate that Krueger's calculation of Graham's
lost earning capacity is fundamentally inaccurate or
unreliable. Krueger testified that lost earnings and lost
earning capacity are two distinct concepts: earning capacity
is the amount an individual is capable of earning,
while earnings represent what an individual actually earns.
Doc. 123-6, p.14. Thus, the fact that Graham is employed as
an “as needed” basis and is not guaranteed an
overtime shift per pay period does not impact the calculation
of what she is capable of earning. Doc. 115-2, p. 14.
Further, the facts Krueger assumed in reaching his
calculations are supported by evidence in the record. Graham
testified that she desires to take as many overtime shifts as
possible, and that she declined two to three overtime shifts
per pay period because of her physical limitations.
Krueger's opinion that Graham's earnings were lower
than her full-time earning capacity is therefore admissible.
Noeuy may cross-examine Krueger as to the distinction between
loss of earnings and lost earning capacity.
opinion concerning Graham's future lost earning capacity,
and loss of household and farm services, is also admissible.
In his projection of future economic loss, Krueger assumed
Graham will never fully, physically recover. Noeuy argues
that Krueger's opinion should be excluded because it was
based solely on Graham's own statements, not medical
evidence. But Graham points to the opinion of her treating
physician, Dr. Benjamin Summerhays, in support of her claim
that she will not fully recover. Noeuy identifies no
authority mandating exclusion of an expert opinion that fails
to cite supporting medical evidence otherwise reflected in
the record, nor is the Court aware of any. Further, the
factual basis of an expert opinion generally goes to the
credibility of testimony, not its admissibility.
Bonner, 259 F.3d at 929-30. The Court cannot say
Krueger's opinion so lacks fundamental support that it
will be of no assistance to the jury. Therefore, Noeuy's
motion to exclude the Kreuger opinion is denied.
The Mullins opinion
seeks to admit the opinion of Dr. Mitchell Mullins, an
emergency medicine physician and “life care planner,
” who will testify to the costs of Graham's future
“life care plan” as a result of the accident.
Doc. 123, p. 8. In arriving at his opinion, Mullins performed
a detailed evaluation. The purposes of the evaluation were to
(1) assess the extent to which Graham's injuries impede
her ability to live independently, and (2) make
recommendations to the items and services Graham will need to
obtain a quality of life post-injury. Doc. 123-10, p. 1.
argues that Dr. Mullins' opinion should be excluded
because it is based on the unsupported premise that Graham is
permanently disabled. Doc. 115, p.10. But Dr. Mullins is a
trained medical professional who performed a detailed
evaluation. He interviewed and examined Graham, reviewed
medical records including those prepared by her treating
physicians, and prepared a report. Doc. 123-8, p. 6. He
concluded Graham “continues to experience significant
physical limitations that affect her ability to fully
participate in activities of daily living” and that she
“will continue to require medical care and management
of her injuries ...