Haines v. Get Air LLC

          ORDER

          Honorable Rosemary Márquez United States District Judge.

         Pending before the Court is Defendant's Motion to Preclude Testimony of Anthony Gamboa. (Doc. 284.)^[1] The Motion is fully briefed. (Doc. 296.) The Court held a Daubert hearing on June 27, 2019. (Doc. 317.)

         I. Daubert Hearing-Testimony of Robert Taylor

         Three days before the Daubert hearing, Defendant filed a document titled “Daubert Hearing Brief” (Doc. 315), which contained a request to present testimony by vocational economist Robert Taylor by videoconference at the Daubert hearing. Mr. Taylor has been precluded from testifying at trial based on untimely expert disclosure. (Doc. 264.) The Court is aware of at least one district court that has found that Federal Rule of Civil Procedure 26(a) does not require the timely disclosure of an expert report if a party seeks to use the expert only to support a Daubert motion but does not intend to call the expert as a witness at trial. See Yakima Valley Mem. Hosp. v. Wa. State Dep't of Health, No. CV-09-3032-EFS, 2012 WL 12951705, at *2 (E.D. Wa. May 18, 2012). However, here, Defendant was not diligent in timely presenting its request to offer Mr. Taylor's testimony by videoconference. Furthermore, allowing Mr. Taylor to testify would cause unfair prejudice to Plaintiff, who did not have the opportunity to depose Mr. Taylor during discovery. Although such prejudice could be alleviated by reopening discovery to allow Plaintiff to depose Mr. Taylor, Defendant has not shown the requisite diligence to justify modifying the Court's Scheduling Order to reopen discovery. See Fed. R. Civ. P. 16(b)(4). Furthermore, reopening discovery would cause significant delays in this case, which has been pending since 2015 and which has a firm trial date scheduled. Finally, the Court has reviewed Mr. Taylor's report and, based on the contents of that report, the Court does not find that Mr. Taylor's testimony would assist the Court in resolving Defendant's Daubert motion. (Doc. 315-1.) Accordingly, the Court will not re-open the Daubert hearing to hear testimony by Mr. Taylor.

         II. Daubert Motion

         A. Legal Standard

         Admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence, which 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.

         Fed. R. Evid. 702. This rule requires the trial court to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharms, Inc., 509 U.S. 579, 589 (1993). To do so, the court must assess “whether the reasoning or methodology underlying the testimony” is valid and “whether that reasoning or methodology properly can be applied to the facts in issue.” Id. at 592-93. This gatekeeping function applies not only to expert testimony based on “scientific” knowledge but also expert testimony based on “technical” and “other specialized” knowledge. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 147-49 (1999). Its purpose is to ensure “that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id. at 152.

         Factors relevant to the reliability of expert testimony include, but are not limited to, whether the theory or technique used by the expert “can be (and has been) tested, ” whether it “has been subjected to peer review and publication, ” “the known or potential rate of error, ” “the existence and maintenance of standards controlling the technique's operation, ” and the degree of acceptance in the relevant community of expertise. Daubert, 509 U.S. at 593-94; Kumho Tire, 526 U.S. at 149-50. Rule 702's “helpfulness” standard requires that expert testimony be relevant to issues in the case and that there be “a valid scientific connection to the pertinent inquiry as a precondition to admissibility.” Daubert, 509 U.S. at 591. An expert's opinions may not be premised on “subjective belief or unsupported speculation.” Id. at 590 (internal quotation marks omitted).

         B. Background

         Anthony M. Gamboa Jr., Ph.D., M.B.A., describes himself as a vocational economic analyst. (Transcr. 7/5/19 hearing at 35.) According to Dr. Gamboa, a vocational economic analyst assesses lost earning capacity by defining an individual's pre-injury earning capacity, pre-injury work-life expectancy, post-injury earning capacity, and post-injury work-life expectancy, and then calculating the present value of the loss in earning capacity. (Id.) In contrast, a vocational rehabilitation expert assesses lost earning capacity by interviewing the injured individual, assessing the individual's capabilities, assessing the job market, determining what jobs the individual is capable of performing, and determining which accommodations would allow the individual to perform those jobs. (Id. at 9.)

         Dr. Gamboa obtained a B.S. degree in education from the University of Massachusetts at Boston in 1966, a M.Ed. degree in guidance and counseling from Miami University in 1967, and a Ph.D. in guidance and counseling from Ohio State University in 1971. (Doc. 284-1 at 2-3; see also Transcr. 7/5/19 hearing at 39-40.) In 1981, 1987, 1990, and 1993, he completed postdoctoral studies in vocational rehabilitation counseling, economic assessment of earnings, and labor economics. (Doc. 284-1 at 2; see also Transcr. 7/5/19 hearing at 27-29, 40-41.) In 1993, he obtained his M.B.A. from the University of Chicago. (Doc. 284-1 at 2; see also Transcr. 7/5/19 hearing at 29, 41).

         In 1977, Dr. Gamboa formed a company specializing in vocational economic analysis called Present Vocational Economics, Inc. (See Doc. 284-1 at 3; Transcr. 7/5/19 hearing at 41.) He has worked as an analyst for that company ever since. (Doc. 284-1 at 3.) He was also on contract with the U.S. Department of Health and Human Services, Social Security Administration, Bureau of Hearings and Appeals from 1977 to 1992. (See Doc. 284-1 at 3; Transcr. 7/5/19 hearing at 41.) He has provided expert testimony in the area of vocational economic ...