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Fox v. Safeco Insurance Company of Illinois

United States District Court, M.D. Florida, Tampa Division

January 23, 2018




         THIS MATTER is before the Court on Defendant's Motion in Limine to Exclude the Testimony of Plaintiffs' Experts, Michael Shahnasarian, Ph.D. and F. A. Raffa, Ph.D. (“Motion”) (Dkt. 68) and Plaintiffs' response in opposition (Dkt. 80). Upon consideration, it is recommended that Defendant's Motion be denied.


         Plaintiffs sued Defendant asserting underinsured motorist and consortium claims arising out of a June 9, 2015, automobile accident involving Plaintiff Jason Fox. (Dkt. 55.) As a result of the accident, Mr. Fox is claiming multiple injuries, including a brain injury. (Dkt. 80 at 2.) Mr. Fox contends that his cognitive difficulties after the accident have affected his skills as an attorney. (Dkt. 80 at 2-3.) During the course of litigation, Plaintiffs retained Dr. Michael Shahnasarian as a vocational rehabilitation expert to determine Mr. Fox's lost earning capacity. (Dkt. 80 at 3.)

         In analyzing Mr. Fox's lost earning capacity, Dr. Shahnasarian interviewed Mr. Fox multiples times and conducted tests to assess his abilities, reviewed Mr. Fox's vocational, earning, and medical history, and interviewed Mr. Fox's partner at his law firm, Geoff Bichler. (Dkts. 68-1 at 4, 30; 80 at 3-4.) Based on his analysis, Dr. Shahnasarian concluded that Mr. Fox's injuries from the accident have diminished his productivity. (Dkts. 68-1 at 28-30; 80 at 4-5.) Further, during Mr. Bichler's interview with Dr. Shahnasarian, Mr. Bichler estimated that Mr. Fox's annual earnings as a partner at their law firm should be approximately $350, 000 to $400, 000 with annual billings of approximately $1, 000, 000. (Id.) Dr. Shahnasarian reports that Mr. Fox's 2016 productivity was less than half of this expectation. (Dkts. 68-1 at 16; 80 at 5.) In his report, Dr. Shahnasarian concludes that “accident-related problems have caused Mr. Fox to sustain a 50% loss of earning capacity.” (Dkt. 68-1 at 30-31.)

         In its Motion, Defendant challenges Dr. Shahnasarian's opinions under Federal Rule of Evidence 702. (Dkt. 68.) Defendant argues that his opinions are unsupported, speculative, and unreliable, and should therefore be excluded from evidence. (Dkt. 68 at 2.) Specifically, Defendant contends that Dr. Shahnasarian's opinions are speculative because he failed to take into consideration the differences between Mr. Fox's work at his current firm and the firm he worked at one week prior to the accident. (Dkt. 68 at 14, 16.) Defendant asserts that Dr. Shahnasarian's opinions are also inadmissible because he failed to analyze alternative employment for Mr. Fox. (Id.) Defendant further argues that Dr. Shahnasarian's opinions are not based on any physical or mental deficit of Mr. Fox and that, to the contrary, Plaintiffs' physician Dr. Hoffman opined that Mr. Fox is competent in his current condition to work as an attorney. (Dkt. 68 at 14-15.) Defendant also points out that Mr. Fox has not sought mental health treatment, thereby failing to mitigate his damages. (Dkt. 68 at 15.)

         Defendant contends that Plaintiffs' expert economist, Dr. Raffa, should be excluded as well because his opinions are based partly on those of Dr. Shahnasarian. (Dkt. 68 at 3.) Defendant claims that the experts' opinions fail to assist the trier of fact as the opinions are not sufficiently detailed to allow the jury to quantify the loss of earning capacity. (Dkt. 68 at 19.)

         In response, Plaintiffs contend that Defendant's arguments bear on the weight the jury should ascribe, not admissibility of Dr. Shahnasarian's opinions. (Dkt. 80 at 1.) Plaintiffs assert that Dr. Shahnasarian's opinions are reliable because they are based on his thorough investigation, record review, and accepted principles in vocational rehabilitation. (Dkt. 80 at 15-18.) Plaintiffs contend that Defendant has not provided any evidence that Dr. Shahnasarian's methodology is inadequate and that his opinions are not based on speculation, but rather on the interviews he conducted and records he reviewed. (Dkt. 80 at 17-18.) Last, Plaintiffs argue that Dr. Shahnasarian's opinions may assist the jury in quantifying Mr. Fox's lost earning capacity. (Dkt. 80 at 19.)


         Pursuant to Federal Rule of Evidence 702, a witness who is qualified as an expert 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. In determining the admissibility of expert testimony under Rule 702, courts must conduct a three-part inquiry considering whether:

(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

Cook ex rel. Estate of Tessier v. Sheriff of Monroe County, Fla., 402 F.3d 1092, 1107 (11th Cir. 2005) (quoting United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004)); McCorvey v.Baxter Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir. 2002). In other words, the proponent of the testimony must “demonstrate that the witness is qualified to testify competently, that his opinions are based on sound methodology, and that his testimony will be helpful to the trier of fact.” Tessier, 402 F.3d at 1107. The district court has broad discretion in determining whether to admit or exclude expert testimony, and its ...

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