United States District Court, M.D. Florida, Tampa Division
REPORT AND RECOMMENDATION
S. SNEED UNTIED STATES MAGISTRATE JUDGE
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.
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.)
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.)
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.)
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.)
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.)
to Federal Rule of Evidence 702, a witness who is qualified
as an expert may testify in the form of an opinion or
(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 ...