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Howard v. Salvage

United States District Court, D. Maine

January 31, 2019

MELANIE HOWARD Plaintiff,
v.
DEMO SALVAGE Defendant.

          ORDER DENYING PLAINTIFF'S MOTION TO EXCLUDE EXPERT TESTIMONY

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.

         A personal injury plaintiff filed a Daubert[1] motion to exclude the proposed testimony of the defendant's vocational expert. The Court denies the motion because it finds the expert's proffered testimony sufficiently reliable to survive the Daubert challenge and it concludes that any asserted deficiencies in the expert's testimony may be addressed through proper objections or cross-examination.

         I. BACKGROUND

         A. Procedural History

         On April 5, 2018, Ms. Howard filed a complaint against Demo Salvage asserting claims of negligence and vicarious liability. Compl. (ECF No. 1). On May 25, 2018, Demo Salvage filed an answer, denying both claims. Answer (ECF No. 6). With jury selection scheduled for February 5, 2019 and trial set to begin on February 25, 2019, on January 4, 2019, Ms. Howard filed a motion to exclude the proposed testimony of one of Demo Salvage's expert witnesses, Edmond Provder. Pl.'s Mot. to Exclude Expert Test. of Edmond Provder (ECF No. 29) (Pl.'s Mot.). On January 18, 2019, Demo Salvage responded to Ms. Howard's motion to exclude Mr. Provder's proposed testimony. Def.'s Opp'n to Pl.'s Mot. to Exclude Expert Test. of Edmond Provder (ECF No. 46) (Def.'s Opp'n).

         B. Demo Salvage's Expert

         1. Demo Salvage's Expert Designation of Edmond Provder

         On November 20, 2018, Demo Salvage made a supplemental expert designation of Mr. Provder as a “vocational, rehabilitation, and lifecare planning expert.” Def.'s Opp'n, Attach. 1, Def.'s Suppl. Designation of Experts at 1 (Def.'s Expert Designation); Pl.'s Mot., Attach. 4 at 1. Mr. Provder holds a Bachelor of Science degree and a Master of Education degree in rehabilitation counseling from Pennsylvania State University and has received doctoral credit hours in rehabilitation counseling from New York University and post-graduate credit hours from the University of Florida's Intelicus Life Care Planning Program for catastrophic case management. Def.'s Opp'n Attach. 1, Professional Qualifications of Edmond A. Provder at 20. For the past thirty-seven years, Occupational Assessment Services has employed Mr. Provder as a vocational expert/life care planner. Id. Mr. Provder has also been employed as a vocational consultant for Social Security Disability hearings and a supervisor of vocational facilities at Mount Sinai Hospital. Id.

         According to Demo Salvage, Mr. Provder plans to “opine on Ms. Howard's employability, transferable skills learned from past occupations, and earning capacity in the local labor market, as well as to make a determination as to the feasibility of her receiving vocational rehabilitation services.” Def.'s Expert Designation at 1. In Mr. Provder's opinion, Ms. Howard “can be employed as a Pipefitter and Pipefitter Helper . . . [and] she has the ability to access the labor market and can perform jobs requiring Sedentary, Light, Medium, and Heavy Physical demands which are within her vocational capacity.” Id.

         2. Edmond Provder's Expert Report

         On October 17, 2018, Mr. Provder prepared a report on Ms. Howard's employability and earning capacity. Def.'s Opp'n, Attach. 2, Edmond Provder's Expert Report, at 1 (Provder's Report).[2] Mr. Provder's methodology consisted of six parts: (1) “reviewing the deposition and medical documents, as well as other documents that describes the evaluee's condition;” (2) performing a vocational analysis of Ms. Howard's past work history and classifying her work history using the United States Department of Labor's Dictionary of Occupational Titles and “O*Net” to determine the physical demands, skill level, “Specific Vocational Preparation (SVP), ” and “the General Educational Development (GED) of Ms. Howard's employment” to ascertain Ms. Howard's pre-injury vocational capacity; (3) use of the “Vocational Diagnosis and Assessment of Residual Employability (VDARE) process” to determine Ms. Howard's aptitudes, skills, and skill level in relation to the transferability of those skills to other jobs within her vocational capacity; (4) conducting “[a] Labor Market Access (LMA) analysis . . . to determine Ms. Howard's ability to enter the labor market given her skill and vocational capacity;” (5) formulating an opinion based on a review of all the materials “as to Ms. Howards post-injury vocational capacity, employability, earning capacity, and the feasibility of her receiving vocational rehabilitation services;” (6) if Ms. Howard is determined to be employable, analyzing labor market statistics or private labor studies to “determine whether jobs exist that Ms. Howard can perform within her vocational capacity and the current earnings of these occupations.” Id. at 2-3. In his report, Mr. Provder stated that he reviewed various hospital records, physician records, diagnostic records, and legal records. Id. at 4-7.

         In his October 17, 2018 report, Mr. Provder expressed the opinion that Ms. Howard “can be employed as a Pipefitter and Pipefitter Helper.” Id. at 22. He opined that she “could be competitively placed in the job market on a full-time, competitive basis.” Id. He concluded that she “is able to transfer her skills to such Sedentary and Light semi-skilled occupations as Information Clerk, Order Clerk, or Parts Sale Clerk.” Id. at 23. He listed nine semi-skilled occupations with annual salary ranges from a low of $24, 292 to a high of $46, 190 that he concluded Ms. Howard “had the vocational capacity to perform.” Id. He wrote that in his opinion, as a vocational expert, Ms. Howard “could perform these occupations on a sustained, full-time, regular, competitive basis.” Id. (emphasis in report). He stated that “Ms. Howard has sustained no loss of earnings due to her injuries” and that her “ability to replace her earnings is dependent on her motivation to remain employed.” Id.

         II. POSITIONS OF THE PARTIES

         A. Melanie Howard's Memorandum

         Melanie Howard moves to exclude Mr. Provder's expected testimony on two bases: (1) his testimony is not sufficiently reliable to be admissible; and (2) he reaches conclusions beyond his expertise. Pl.'s Mot. at 1. Ms. Howard contends that Mr. Provder's expected testimony is not reliable because he employed a flawed methodology to reach his conclusions. Id. at 4, 7. Ms. Howard points out that Mr. Provder wrote in his report that “a review is made of all of the materials and an opinion is formulated as to Ms. Howard's post-injury vocational rehabilitation services.” Id. at 4 (quoting Provder Report at 3). But Ms. Howard says that Mr. Provder did not review all the materials available to him, such as Ms. Howard's experts' depositions, and that he failed to conduct an interview of Ms. Howard. Id. at 5. In Ms. Howard's view, Mr. Howard “violated his own methodology and that of any reasonable expert by failing to review information that would have helped to inform his opinions, which he agreed would have been the better practice.” Id. at 5. Considering this incomplete review, Ms. Howard claims Mr. Provder had an inadequate foundation for his opinions. Id. at 7.

         Ms. Howard also argues that Mr. Provder exceeded the scope of his expertise because he opined that he did not believe Ms. Howard's psychological condition (PTSD) had a lot of impact on her ability to work. Id. at 5-7. Ms. Howard notes that two of her expert witnesses, Dr. Lubit, a psychiatrist, and Nickie Cole, Ms. Howard's PTSD therapist, directly disagree with Mr. Provder. Id. Ms. Howard says Mr. Provder “cherry picks and then misinterprets a single phrase from the final paragraph of Dr. Lubit's report . . . as support for his opinion that [Ms. Howard] could work, if only she were motivated to.” Id. at 5. Ms. Howard asserts “[Mr.] Provder is grasping at straws. He is substituting his own psychological opinion for those of the true psychological experts.” Id. at 6. Ms. Howard claims Mr. Provder “attempts to qualify himself [as a mental health expert] by saying he has worked with people with PTSD who have returned to work . . ..” Id. at 7.

         Ms. Howard contends that Mr. Provder's lack of foundation by failing to engage in appropriate methodology is “inextricably entwined” with his giving opinions outside his expertise. Id. at 8. Lastly, Ms. Howard states, “[e]ven if the Court were inclined to allow the foundation [challenge to Mr. Provder's testimony] . . . to be the subject of vigorous cross-examination rather than exclusion, ” Mr. Provder's testimony should nevertheless be excluded in its entirety because Mr. Provder cannot give his opinion about her employability without stating his opinion as to her psychological state. Id.

         B. Demo Salvage's Opposition Memorandum

         Demo Salvage asserts Ms. Howard's motion is premised on whether Mr. Provder's proffered testimony is based on a reliable scientific foundation. Def.'s Opp'n at 4.[3] Demo Salvage argues that Ms. Howard “takes pains to find fault in Mr. Provder's methodology when there is none.” Id. at 5. Demo Salvage contends that Ms. Howard's argument that Mr. Provder did not review “all the materials” is overblown considering that Mr. Provder reviewed all of the Ms. Howard's “expert reports prior to generating his own, and prior to his deposition . . . [and that Ms. Howard's] expert witnesses testified in conformation with their previously generated reports.” Id. Demo Salvage says that Ms. Howard's contention that Mr. Provder violated his own methodology by not reviewing her expert witnesses' depositions is “specious.” Id. Demo Salvage highlights a portion of Ms. Howard's deposition in which Ms. Howard states, “I was . . . trying to get them . . . to fire me []” to undercut Ms. Howard's claim that Mr. ...


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