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Esparza v. Regent Insurance Co.

United States District Court, D. Kansas

July 9, 2019




         This matter is before the court on intervenor Regent Insurance Company's Motion to Exclude the Expert Economic Damages Opinion of Gary Baker, Ph.D. (Dkt. 79). Baker was retained by plaintiff to estimate the present value of plaintiff's historic and future losses, including wages, employer benefits, and forgone household services. Regent does not challenge Baker's qualifications as an economist, but argues his opinions are inadmissible because they are too speculative to comply with Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and because plaintiff's disclosures did not comply with Federal Rule of Civil Procedure 26. For the reasons set forth below, the court finds that plaintiff's disclosures were sufficient, and that Baker's opinions satisfy the standard for admissibility.

         A. Background

         Esparza was seriously injured in a motor vehicle accident on June 20, 2016 while attending training to serve as the Assistant General Manager of a new Freddy's Frozen Custard location near San Diego, California. Following an extensive recovery period Esparza was able to return to work, albeit with various restrictions ordered by her physicians. Esparza retained Gary Baker, PhD., a former professor of economics at Washburn University, to provide an opinion regarding the value of her economic losses, including lost future earnings and loss of household services on behalf of Esparza's wife and children. Baker's initial report was issued July 31, 2017. At that time, Esparza had not yet been released to work by her treating physicians.

         The court entered its Scheduling Order on July 27, 2018. The Order noted that Esparza had already served retained expert disclosures pursuant to Rule 26(a)(2). It directed that Regent was to serve expert disclosures by November 9, 2018, and that rebuttal experts were to be designated by December 14, 2018. The Order further provided that any objections to the expert disclosures, other than those pursuant to Federal Rule of Evidence 702-05, must be served within 14 days of service of the disclosure and “confined to technical objections related to the sufficiency of the written expert disclosures.” (Dkt. 38, p. 3-4). Regent never lodged such an objection.

         Regent took Baker's deposition on August 31, 2018. The record does not disclose that any objection was made during that deposition to either the timeliness or sufficiency of the Rule 26 disclosures. During his deposition, Baker indicated that an updated report may be likely based upon Esparza's hope that she may be re-hired by her old employer at a different position. (Dkt. 83, p. 8).

         Although that particular employment did not come to fruition, by late 2018 Esparza had obtained employment at a call center after what she describes as an “exhaustive” job search. Baker issued a supplemental report on December 3, 2018, with revised damage calculations based upon the wages Esparza was earning at her new job. Discovery was set to close on February 15, 2019, and the Scheduling Order had directed that all supplemental disclosures be served at least 40 days prior to the close of discovery. Esparza offered to make Dr. Baker available for a second deposition, but Regent declined the opportunity to do so. Regent instead filed this motion to exclude Baker's opinion within the time specified by the court.

         B. Legal Standard

         This court performs a “gatekeeping” role with respect to the admission of expert testimony. See generally Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589-93 (1993); Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 969 (10th Cir. 2001). Federal Rule of Evidence 702 governs the admissibility of expert testimony, and provides 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.

         There is a two-part analysis to determine whether an expert's opinions are admissible. Marten Transp., Ltd. v. Platform Advert. Inc., 184 F.Supp.3d 1006, 1009 (D. Kan. 2016). The court first considers whether the witness is qualified by “knowledge, skill, experience, training or education” to render the opinions. Second, the court determines whether the witness's opinions are “reliable” under the principles set forth in Daubert and Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 147-48 (1999). “The rejection of expert testimony is the exception rather than the rule.” Marten Transp., 184 F.Supp.3d at 1009 (citing Fed.R.Evid. 702 advisory committee notes). ...

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