Opinion
No. 7:99-CV-0149-R
October 16, 2001
MEMORANDUM AND ORDER ON MCGARVEY DAUBERT MOTION
This is a personal injury case brought under FELA by a railroad engineer injured in two collisions separated by sixteen months. The first collision occurred between his train and a vehicle driven by an employee of two of the individual defendants and the second collision occurred between the commercial transportation vehicle engaged by the railroad employer to transport plaintiff as a crew member and another vehicle on the highway. The railroad employer, the driver of the first vehicle, and his employers, the operators of the second colliding vehicle and several unknown John Does are the named defendants.
Federal Employers' Liability Act, 45 U.S.C. § 51-60.
His wife is also a plaintiff seeking damages for loss of consortium.
Among the damages alleged to have been sustained by the Plaintiff are his loss of earnings in the past, the loss of earnings in the future, and loss of earning capacity. Pursuant to the Amended Scheduling Order, Plaintiff's designated Jeffrey B. Opp as "Plaintiff's economic expert."
Plaintiff has alleged the earnings loss as an element of damage asserted against each and every of the defendants. See Paragraphs 11, 22, 32 and 55 of the Original Complaint.
Defendants Gary and Carolyn McGarvey ("McGarveys"), the owners of the vehicle that collided with the train, as the employers of the operator of the vehicle, have filed a Daubert motion challenging the projected testimony of Opp as Plaintiff's economic expert. Their Daubert motion has been referred to me for hearing and determination by the Court's general Order of Reference as a non-dispositive motion.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L. Ed. 2d 469 (1993).
Having reviewed McGarvey's Motion and the accompanying Appendix and Brief, Plaintiffs' Response and McGarvey's Reply as the "gatekeeper," I do not find sufficient support on Daubert grounds for shutting the gate on Opp's testimony. The first prong of the two prong Daubert analysis is a reliability assessment by which the gatekeeper is to evaluate the methodology used byte expert in his analysis. The second prong is the "fit" analysis, to-wit: whether the proffered expert testimony will assist the trier of fact in understanding or determining a fact in issue.
Opp's report dated January 22, 2001 and the accompanying spreadsheets and schedules reflect that Opp's anticipated role in the trial of this case is to summarize and coalesce extensive statistical data related to Plaintiff's past net earnings and his future net earnings extrapolated therefrom and to compare that data to similar data derived from a selected set of other employees and applied in the same manner to Plaintiff's anticipated future earnings events. The "science" or "methodology" used by Opp in preparing the data spreadsheets and schedules was basic mathematics, the same learned in grade school but with a smattering of simple algebraic formulae (functions) learned in high school thrown in. The spreadsheets and schedules attached to and supporting the report are reproducible using any common spreadsheet programs such as Excel, Quatro Pro or Data Pro. The formulae used to calculate the various entries for addition, subtraction and multiplication and recording the various subtotals and totals are likewise available in the same spreadsheet programs.
Copyrights of Microsoft, Corel, and Data Pro, respectively.
The essence of Opp's anticipated testimony as reflected in his report of January 22 and his deposition excerpts is the mathematical differential between the amount of earnings Plaintiff experienced in the past and reasonably could have anticipated in the future had he not been injured and those same past and future earnings he experienced and reasonably could anticipate earning in the future in his injured state. To arrive at the differential, Opp took known data (Plaintiff's own wage history for four years prior to the first collision), added in the calculated value of the fringe benefits, deducted therefrom the federal income taxes reported and/or paid, backed out certain expenses and certain "tier" retirement payments, to arrive at the "net" historical railroad earnings. The mathematical functions used to arrive at such historical figures were addition, subtraction, and multiplication, all grade school skills. From the baseline of that "historical" data, Opp projected the figures into the future using a commonly recognized mathematical principal known as "extrapolation." This function does presume or assume a straight line ("linear") relationship between past occurrences and future events, an assumption that may be challenged on cross-examination, but is fair to assume and is not "junk science."
Appendix pp. 130-151.
Opp did use "set theory" (another mathematical tool) to project Plaintiff's earnings into the future. Opp assumed that Plaintiff was a member of a class of similarly situated railroad employees (the "set") and projected that Plaintiff's future earnings would be affected by the same factors that did affect the set members in the past and would affect the members in the future. The McGarveys challenge the composition of the "set" selected by Opp (those furnished by the railroad employer) as not being representative of Plaintiff. The use of a set (of which Plaintiff is assumed to be a member) to project the effects of certain assumed events is recognized methodology for predicting effects on individual members of the set. But the composition of the set should be defined so as to include the Plaintiff. I cannot find, as a matter of law, that the Plaintiff is not a member of the set chosen by Opp for his computational and analytical purposes. But the use of an inappropriate set or a set factually unrelated to Plaintiff certainly makes Opp's projected testimony an easy target for cross-examination.
Appendix 90-91.
Using certain disclosed different assumptions as to what future events might affect Plaintiff's earning experience (i.e., working 5 or 10 more years or retiring at age 62) for his written report purposes, Opp chose three different time periods as to which he calculated the gross (total) effect of his injuries on the Plaintiff's earnings differentials. The McGarveys challenge the arbitrariness of the selection of these three periods. Since his data covered a 22-year range, Opp could have selected any annual or other period for analytical and reporting purposes, but the choice of these three periods for reporting and presentation purposes is based on certain fair assumptions concerning Plaintiff's future working options.
The McGarveys complain about Opp's extensive use of annualizations in his calculations of earnings differentials. Annualizations of fiscal data are common and are as accurate as using averages or calculating means. Again, fodder for cross-examination, but not exclusion.
It is inherent in projecting future earnings that certain assumptions need be made. These assumptions were disclosed by Opp in his report. The assumptions he made are not clearly mistaken, unsupportable, or fanciful. They appear to be fairly made. But if mistaken, they are certainly fodder for cross-examination, not exclusion.
It is not the trial court's role to determine the truth or falsity of the expert's opinion but merely to focus on the underlying principals and the methodology. E.I du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995)
Finally, Opp's written report summarized in the language of the written word what the mathematical language in the compilations of data and mathematical functions disclosed.
The knowledge and skills used by Opp in assembling and compiling the data, performing the mathematical calculations, selecting the formulae (functions) to be applied to the data, charting the results, and then summarizing the end figures in mathematical and written language do not require special college degrees or post-graduate education. The methodology is not proper subject of peer review. The bachelor's degree in economics which Opp holds reflects the degree of mastery of basic mathematical, statistical and language skills necessary to perform the compilations, calculations and formulae selections used by Opp in his analysis and in making his report. Brain surgery, it ain't. And Einstein did not have a degree in nuclear physics either. Opp's proffered testimony meets the reliability assessment prong of Daubert.
As previously indicated, loss of earnings is one of the major damage issues plead by the Plaintiff's. I could not conceive of a more difficult challenge to a trial attorney than presenting lost wage data without an expert to summarize the voluminous data and calculations. Opps' analysis and opinions based thereon are relevant to the issues in controversy formed by the pleadings. Opps' proffered testimony needs the "fit" prong of Daubert.
Mathematics is not junk science. Defendants' Daubert motion is overruled. Opp can testify.
IT IS SO ORDERED.