MARCEL LIVAUDAIS, JR., Senior United States District Judge
The following motions in limine filed by defendant are before the Court: (1) motion to strike the report and testimony of Dr. Fereydoun Aghazadeh (R.D. # 83); and (2) motion to limit testimony of G. Randolph Rice (R.D. # 82). Plaintiff opposes the motions, which were taken under submission on the briefs on July 10, 2002. This matter is set for a jury trial on July 22, 2002.
BACKGROUND
Mr. Scardina is a merchant seaman, a 3rd assistant engineer, who signed on the M/V MAERSK TEXAS as a QMED/Electrician on about February 12, 2000. He alleges that on February 29, 2000, as he was entering the control room of the vessel, he stepped onto a raised stepping block outside the control room door, lost his balance and fell, striking his lower back on the corner of the step and causing a low back injury.
ANALYSIS
Fed.R.Evid. 702 permits opinion testimony of an expert witness if that testimony will assist the trier of fact to understand the evidence or determine a fact in issue, and "if (1) the testimony is based upon sufficient facts or data, (2) the testimony is a product of reliable principals and methods, and (3) the witness has applied the principals and methods reliably to the facts of the case." The proffered witness must first be qualified as an expert by knowledge, skill, experience, training, or education, and second, the proffered expert's opinion, inference or other testimony must be based on scientific, technical or other specialized knowledge that will assist the trier of fact to understand the evidence or determine a fact at issue. Moore v. Ashland Chemical, Inc., 126 F.3d 679, 684 (5th Cir.), aff'd. en banc, 151 F.3d 269 (5th Cir. 1998).
The Federal Rules of Evidence require the trial judge to ensure that expert testimony or evidence presented to the jury is not only relevant, but reliable. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 2794, 125 L.Ed.2d 469 (1993); Moore, 126 F.3d at 684. The trial judge must determine whether the reasoning or methodology underlying the proffered expert testimony is valid under the principles of the discipline involved in order to determine whether the expert (1) is proposing to testify to scientific, technical or other specialized knowledge, that (2) will assist the trier of fact to understand or determine a fact in issue. Daubert, 113 S.Ct. at id. In other words, the proffered expert testimony must be sufficiently tied to the facts of the case that it will aid the trier of fact in resolving a factual dispute. Id. at 2795. An award of damages cannot be based on evidence that is speculative or purely conjectural. Manister v. Tenneco Oil Co., 929 F.2d 191, 194 (5th Cir. 1991), citing In Re Air Crash Disaster at New Orleans, Louisiana, 795 F.2d 1230, 1235 (5th Cir. 1986) and Haley v. Pan American World Airways Inc., 746 F.2d 311, 316 (5th Cir. 1984)
Testimony of C. Randolph Rice
Dr. Rice, plaintiff's expert economist, is expected to testify as to plaintiff's economic damages, that is, lost past and future income. In a report dated December 12, 2001, Dr. Rice set forth various projections using an annual wage base of approximately $30,000.00. Plaintiff's average annual earnings in the three to five years preceding the accident were approximately $26,000.00. His annual earnings for the five years from 1994 through 1999 varied from a low of $15,895.43 in 1995 to a high of $39,536.06 in 1996. On April 29, 2002, Dr. Rice produced a second report at the request of plaintiff's counsel. This report based plaintiff's "impairment of earning capacity" on projected annual incomes of $38,481.00 and $76,962.00, which of course produced much higher economic damages.
Exhibit A to defendants motion.
Exhibit D to defendant's motion — Summary of Social Security Earnings.
Defendant also argues that this expert report should be excluded because it was provided to him nine days past the deadline for plaintiff to produce expert reports. The court does not reach this argument as its ruling is based on other reasons.
See Exhibit B to defendant's motion — letter from Mr. Barker to Dr. Rice dated January 29, 2002.
Defendant argues that these numbers are not supported by any evidence, are purely speculative and "wildly inflated" and should be excluded. Plaintiff notes that defendant did not attack Dr. Rice's calculations which were made pursuant to generally accepted accounting principals of economics. It is not the calculations that defendant objects to, it is the underlying assumptions of plaintiff's projection annual income on which those calculations are based. Plaintiff argues that using $38,481.00 as a base wage is justified because he had actually demonstrated the historical exercise of his capacity to earn those wages on one occasion while working for only three months in 1997. Using that amount as a springboard, plaintiff further argues that his recent receipt of a PIC certificate could double his earning capacity since some employment contracts requiring a 3rd assistant engineer with a PIC certificate, call for 100%, or even 150% overtime whereas in the past he could get only 50% overtime.
Person In charge of Hazardous cargo, including hazardous liquids.
Mr. Scardina argues that those potential wages are supported by evidence because he will testify at trial that he has seen postings at the union hall for such positions, and it is possible that in his future employment he will be paid at the exact same rate of pay as he demonstrated his ability to earn in 1997 as a 3rd Assistant engineer, and he believes that it will be easier for him to find such work due to the availability of higher paying jobs for 3rd assistant engineers with a PIC certificate. According to plaintiff, this provides a reasonable foundation to assume that, unlike his past employment history, he now would always be able to sail six months per year earning at that rate while also being paid for six months vacation time. The Court disagrees.
For whatever reasons, plaintiff's employment records from 1990 through 1999 demonstrate a sporadic work and earnings history. During that period, his annual earnings varied from $12,851.00 in 1993 to $39,536.06 in 1996. His average annual income for the last nine years before his accident was $28,416.00. It is true that plaintiff demonstrated that it was possible for him to actually earn in one year, $38,900.00 because he did so in 1997. On the other hand, it is also possible for him to actually earn only $15,895.43, as he did the following year, 1998. Plaintiff asks the Court to assume that in the future a high paying employment contract requiring a PIC and providing 100% to 150% overtime would always be available, that he would always be hired for that contract, and that, unlike his practice in the past, he would have always worked to his full capacity, for his future work-life expectancy of 9 years. Even assuming Mr. Scardina testifies at trial to his personal knowledge that such jobs exist, such a scenario is pure speculation and, even acknowledging his recent receipt of the PIC certificate, is not supported by the evidence of his past work history.
Plaintiff next argues that it is for the jury to determine, under the facts of the case, which of the three alternative earnings assumptions is most accurate. He argues that he will testify at trial as to the reasons for his past somewhat erratic work history — that he took time of f to study for the PIC certificate and to care for his daughter "who was in trouble." He again assumes, and asks the Court to assume, that because those particular distractions no longer exist, he will always work steadily in the future, and always at the higher wages. Again, this scenario is based on speculation that in the future there will be no more family problems, nor any other distractions to influence plaintiff's future work performance.
It is the provenance of the Court to assure that an expert's testimony is not based on evidence that is speculative or conjectural, but is sufficiently tied to the facts of the case so that it will actually assist the trier of fact in resolving a factual dispute or to understand the evidence. Daubert, 113 S.Ct. at 2795. The Court concludes that Dr. Rice's testimony as to his supplemental opinion based on plaintiff's projected annual incomes of $38,000.00 and nearly $77,000.00 is not sufficiently tied to the facts or supported by the evidence available to the Court at this time, and is therefore excluded, subject to the Court's reconsideration of the issue should evidence introduced at trial provide sufficient factual basis for such testimony.
Report and testimony of Dr. Fereydoun Aghazadeh Dr. Aghazadeh is identified as plaintiff's expert Industrial Engineer/Ergonomist. Dr. Aghazadeh's report states in pertinent part as follows:
Again, defendant argues that Dr. Aghazadehs report and testimony should be excluded because his report was provided to defendant 30 days after plaintiff's deadline to provide its expert reports to defendant. Again, the court does not address this argument because its ruling is based on other reasons.
Given the dimensions of the block, the place where he had placed his right foot, and his height, it is very likely that his lower back collided with the block. It appears that Mr. Scardina's fall was due to fatigue, coordination impairment, and drowsiness/grogginess. I believe that the workplace was unreasonably dangerous due to the physical and mental condition of Mr. Scardina and the sustained injury is attributed to his work.
Report dated May 20, 2002, at p. 2, emphasis added.
Defendant argues that while Dr. Aghazadeh has extensive education and experience in ergonomics, industrial engineering, biomechanics and workplace design, he has no education, training or experience in any medical or pharmaceutical field. Dr. Aghazadeh opined, however, that Mr. Scardina's accident was due to his physical and mental impairments, not to the design or construction of the stepping block in front of the control room hatch. In fact, other than describing the dimensions of the stepping block on which Mr. Scardina allegedly fell, he expresses no opinion at all that the workplace was unreasonably dangerous because of its particular design or construction.
Plaintiff argues that Dr. Aghazadeh did not render an opinion in the field of pharmacology, but simply accepted as true the facts recited by Mr. Scardina that his fall was caused by his impaired physical condition, and that his impaired physical condition rendered the workplace unsafe. He submitted a letter from Dr. Aghazadeh dated July 11, 2002, in which Dr. Aghazadeh clarifies his prior report as follows:
As he lifts his left foot to bring it forward, and while the left foot is off the ground and his weight is on his right foot, he collapses. . . . Given the height of Mr. Scardina, applying the data from the anthropometric tables, and using the empirical evidence for subject experimentation and accident recreation, we can conclude that Mr. Scardina's back came in contact with the stepping block . . .
. . . I accepted the testimony of plaintiff and his pharmacologist that Mr. Scardina was drowsy and groggy and his coordination was impaired due to the medications. Based upon these facts, I feel that the workplace was unreasonably dangerous.
Again, Dr. Aghazadeh states that, in his opinion, the workplace was unreasonably dangerous due to Mr. Scardina's physical and mental impairments, not due to the design or construction of the workplace itself. He does not state that the workplace was unreasonably dangerous because Mr. Scardina's fall due to the fact that the step on which he fell was to high or too narrow or unable to safely support a person's weight. He states simply the Mr. Scardina struck his back because he collapsed while on the step due to his physical and mental impairments. The Court considers that most workplaces would be unreasonably dangerous to someone who is "drowsy and groggy" and is therefore likely to fall or collapse at any time and in any place. The Court concludes that Dr. Aghazadeh's testimony will not actually assist the trier of fact in understanding the evidence or resolving a factual dispute in this case.
Accordingly, for the foregoing reasons,
IT IS ORDERED that defendants' motion in limine to limit the testimony of plaintiff's expert economist, G. Randolph Rice, to his report dated December 12, 2001, is GRANTED subject to the Court's reconsideration at trial if warranted; and
IT IS FURTHER ORDERED that defendants motion in limine to exclude the report and testimony of plaintiff's expert industrial engineer/ergonomist, Dr. Fereydoun Aghazadeh is GRANTED.