United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE, UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Daubert Motion to
Exclude Expert Opinions of Rebecca Summary filed by Defendant
Winkler, Inc., d/b/a "J. Winkler & Sons" (ECF
No. 20). The motion is fully briefed and ready for
disposition. Upon review of the motion, related memoranda,
and exhibits, the Court will deny Defendant's motion.
April 20, 2015, Plaintiff Nicole Holloway was involved in an
automobile accident. (Compl. ¶ 1, ECF No. 1) Plaintiff
alleges that Defendant Scott Litkenhus
("Litkenhus"), who was operating a tractor-trailer
in the course of his employment with Defendant Winkler, Inc.
("Winkler"), violated a stop sign and struck
Plaintiffs vehicle. (Id.) Plaintiff further alleges
that she sustained serious injuries as a result of the
collision, including injuries to her arm, ribs, knee, and low
back. (Id.) On August 4, 2017, Plaintiff filed a
Complaint in federal court, alleging negligence and
negligence per se on the part of Litkenhus (Counts I and II)
and vicarious liability against Winkler for Litkenhus'
negligence and negligence per se (Counts III and IV).
(Id. at ¶¶ 38-60) Plaintiff claims that
she has sustained economic losses consisting of medical
expenses and lost wages and will continue to sustain medical
expenses, wage losses, and loss of earning capacity.
support this claim, Plaintiff has designated an expert,
Rebecca M. Summary, Ph.D., to testify regarding Plaintiffs
lost income, lost household services, loss on sale of
business, and total economic loss. (PL's Ex. 2, ECF No.
21-2) Dr. Summary maintains in her Rule 26 Report that
Plaintiff, who previously owned and worked at a diner, would
have worked at the diner until age 70, would have performed
household services until age 74.5, and sold the diner under
duress for a loss. (Id.) Dr. Summary further claims
that the accident and Plaintiffs resulting injuries caused
losses in these areas. (Id.)
admission of expert testimony in federal court is governed by
Rule 702 of the Federal Rules of Evidence:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if: (a) the expert's scientific,
technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts or
data; (c) the testimony is the product of reliable principles
and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
Evid. 702. A district court acts as a "gatekeeper"
when screening expert testimony for relevance and
reliability. Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 590-93 (1993); Russell v. Whirlpool
Corp., 702 F.3d 450, 456 (8th Cir. 2012). "To
satisfy the reliability requirement, the party offering the
expert testimony 'must show by a preponderance of the
evidence both that the expert is qualified to render the
opinion and that the methodology underlying his conclusions
is scientifically valid.'" Barrett v. Rhodia,
Inc., 606 F.3d 975, 980 (8th Cir. 2010) (quoting
Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 757
(8th Cir. 2006)). "To satisfy the relevance requirement,
the proponent must show that the expert's reasoning or
methodology was applied properly to the facts at issue."
Id. The trial court has broad discretion concerning
the admission of expert testimony, and such decisions will
not be overturned on appeal absent an abuse of discretion.
Peitzmeier v. Hennessy Indus., Inc., 97 F.3d 293,
296 (8th Cir. 1996). "There is no single requirement for
admissibility as long as the proffer indicates that the
expert evidence is reliable and relevant."
Russell, 702 F.3d at 456-57 (quotation omitted).
"An expert's opinion should be excluded only if that
opinion is so fundamentally unsupported that it can offer no
assistance to the jury." Synergetics, Inc. v.
Hurst, 477 F.3d 949, 956 (8th Cir. 2007) (internal
quotation marks and citation omitted); see also Minn.
Supply Co. v. Raymond Corp., 472 F.3d 524, 544 (8th Cir.
2006) (quotation omitted). Doubts regarding the usefulness of
an expert's testimony should be resolved in favor of
admissibility. Marmo v. Tyson Fresh Meats, Inc., 457
F.3d 748, 758 (8th Cir. 2006) (citation omitted). "The
exclusion of an expert's opinion is proper only if it is
so fundamentally unsupported that it can offer no assistance
to the jury.'" Sappington v. Skyjack, Inc.,
512 F.3d 440, 448 (8th Cir. 2008) (quoting Wood v. Minn.
Mining & Mfg. Co., 112 F.3d 306, 309 (8th Cir.
asserts that the opinions of Plaintiff s expert, Dr. Rebecca
Summary, are based on assumptions formed from unreliable,
undocumented information conveyed by Plaintiff and not based
on generally accepted peer-reviewed economic methodology or
review of any pertinent information. Therefore, Winkler
argues that the Court should exclude such expert testimony as
Winkler claims that the Court should exclude Dr.
Summary's testimony regarding Plaintiffs lost wages and
lost earning capacity because the opinions are not supported
by documented information or proper assumptions. Winkler
contends that Dr. Summary's opinions are not based on
Plaintiffs actual income or earnings but are instead based on
an irrelevant and inaccurate hypothetical scenario wherein
Plaintiffs diner would resume profitability and Plaintiff
would resume drawing a wage from the profits. Winkler further
claims that Plaintiffs tax records do not reflect an annual
average income of $26, 000 as calculated by Dr. Summary.
addition, Winkler asserts that Dr. Summary wrongly assumes
that Plaintiff would return to working at the capacity she
worked prior to filing for disability related to scoliosis in
2012. Winkler contends that Dr. Summary's opinion rests
on an assumption that Plaintiffs scoliosis will improve such
that she would no longer need the hours per week reduction
taken before the accident. Further, Winkler maintains that
Dr. Summary's opinion that Plaintiff could work 60-hour
weeks at the diner is contradicted by her finding that
Plaintiffs disability would decrease the amount Plaintiff
could perform household services.
Winkler argues that Dr. Summary does not rely on documented
facts but instead uses baseless assumptions to opine
regarding the diner's profitability and depreciation,
Plaintiffs rental income from the attached beauty and barber
shop, and loss on the sale of the diner under duress. Winkler
contends that Dr. Summary's testimony should be excluded
because it is based on incomplete information and faulty
assumptions and will only serve to confuse the jury. In
response, Plaintiff asserts that Winkler merely ...