United States District Court, S.D. Indiana, Indianapolis Division
ENTRY REGARDING MOTIONS TO EXCLUDE EXPERT TESTIMONY
WILLIAM T. LAWRENCE, District Judge.
This cause is before the Court on several motions filed by the Defendants seeking to exclude portions of the expected testimony of the Plaintiff's expert witnesses. In addition, the Plaintiff has filed a motion to file a surreply relating to one of the motions; that motion (Dkt. No. 406) is GRANTED and the Clerk is directed to file Docket No. 406-1. The Court, being duly advised, resolves each motion as follows.
The admissibility of expert testimony "is governed by Federal Rules of Evidence 702 and 703, as construed by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)." Brown v. Burlington Northern Santa Fe Ry. Co., 765 F.3d 765, 771-72 (7th Cir. 2014).
Rule 702(c) requires that an expert's testimony be "the product of reliable principles and methods." Similarly, Rule 703 requires the expert to rely on "facts or data, " as opposed to subjective impressions. Daubert laid out four factors by which courts can evaluate the reliability of expert testimony: (1) whether the expert's conclusions are falsifiable; (2) whether the expert's method has been subject to peer review; (3) whether there is a known error rate associated with the technique; and (4) whether the method is generally accepted in the relevant scientific community. 509 U.S. at 593-94, 113 S.Ct. 2786.
Id. The Supreme Court in Daubert interpreted Rule 702 to require that district courts, prior to admitting expert testimony, determine whether the testimony is reliable and whether it will assist the trier of fact in determining some fact that is at issue. That is, the district court serves as a "gatekeeper" whose role is to ensure that an expert's testimony is reliable and relevant." Stuhlmacher v. Home Depot U.S.A., Inc., 774 F.3d 405, 409 (7th Cir. 2014) (internal citations omitted).
The Plaintiff has named four expert witnesses; the Defendants move to exclude all or part of the testimony of each of them.
A. Stan Smith (Dkt. No. 303)
St. Vincent moves to exclude the testimony of the Plaintiff's expert Stan Smith, Ph.D., who is an economist. Dr. Smith opines both to the Plaintiff's wage loss and the value of her loss of enjoyment of life. St. Vincent argues that both of his opinions are faulty and should be excluded. The Court agrees.
First, Dr. Smith assigns a dollar value to the Plaintiff's loss of enjoyment of life, or hedonic damages, from the date of the events at issue in this case through her expected life expectancy of 81.9 years. Dr. Smith's methodology involves establishing an estimated "value of life" based upon various studies that measure the value of life using the "willingness-to-pay" method. As Dr. Smith explains, "[t]he studies examine incremental pay for risky occupations as well as a multitude of data regarding expenditure for life savings by individuals, industry, and state and federal agencies." Dr. Smith then asked the Plaintiff to estimate by what percentage her enjoyment of her life was decreased in the past and will be decreased in the future as a result of the incidents at issue in this lawsuit. Finally, Dr. Smith applied those percentages to the baseline "value of life" number to arrive at the value of the reduction in the value of the Plaintiff's enjoyment of life caused by the relevant events.
Dr. Smith has been permitted to testify in numerous state and federal cases; however, his methodology also has been rejected by numerous courts for a variety of reasons. See, e.g., Smith v. Jenkins, 732 F.3d 51, 66 (1st Cir. 2013) (citing cases and noting that "[t]he overwhelming majority of courts have concluded that his willingness-to-pay' methodology is either unreliable or not likely to assist the jury in valuing hedonic damages, or both"); Mercado v. Ahmed, 974 F.2d 863, 871 (7th Cir. 1992) (expressing "serious doubts about his assertion that the studies he relies upon actually measure how much Americans value life"). The Court concurs with the analyses of Dr. Smith's methodology in Smith and Mercado and finds particularly problematic one aspect of his methodology. As the First Circuit notes, Dr. Smith's methodology equates the "value of life" that the studies he relies on purport to quantify with the "value of enjoyment of life" that he has been asked to calculate in this case. Even assuming Dr. Smith arrives at his "value of life" number in a scientifically reliable way, reducing it by, say, 25 percent would arrive at the value of a life that has been cut short by 25 percent, not at a life that is of the same duration but 25 percent less enjoyable. In order to be useful to the jury, Dr. Smith would have had to start with the value of the enjoyment of the Plaintiff's life but-for the events at issue in this case and then reduce that figure by the percentage of enjoyment she has lost; instead, he started with what he purports to the overall value of her life. Dr. Smith offers no explanation why he believes the value of a person's life is the same as the value of the enjoyment of a person's life, and, as the First Circuit held, "[t]hat Dr. Smith may equate [the two] is not enough to bridge that gap." Id. at 67. Accordingly, Dr. Smith's testimony regarding hedonic damages lacks a factual basis and therefore fails to satisfy Rule 702 and will not be admitted.
Dr. Smith also offers a calculation of the Plaintiff's lost wages, which he arrives at by calculating the value of the salary (including benefits) the Plaintiff would have earned for the remainder of her residency, then during a critical care fellowship, and finally as a practicing critical care specialist during the course of her life and comparing it to the value of the average annual earnings for white, non-Hispanic females age 35-44 with a bachelor's degree for that same time period. St. Vincent argues that his calculations are based on two faulty factual premises.
First, St. Vincent takes issue with Dr. Smith's opinion assumption that the Plaintiff would have become a critical care specialist, in light of the fact that she was in an internal medicine residency program and, it argues, it is mere speculation that she would have been accepted to and completed a critical care fellowship following her residency. "Damages must be proved, and not just dreamed, though some degree of speculation is permissible in computing damages, because reasonable doubts as to remedy ought to be resolved against the wrongdoer." MindGames, Inc. v. Western Pub. Co., Inc., 218 F.3d 652, 658 (7th Cir. 2000). The Plaintiff has the burden of proving her damages to a reasonable degree of certainty, Pearson v. Welborn, 471 F.3d 732, 744 (7th Cir. 2006), and the Court agrees with St. Vincent that the Plaintiff's own testimony that she intended to apply for a critical care fellowship after completing her residency is not, without more, enough in this case. The Court has, and the jury will have, no idea what percentage of residents who apply for a critical care fellowship are accepted, what qualifications successful applicants have, and whether the Plaintiff was likely to have those qualifications. Absent this type of evidence, the jury will have no way of knowing whether the Plaintiff's hope to become a critical care specialist was reasonably certain ...