United States District Court, D. Maine
ORDER DENYING PLAINTIFF'S MOTION TO EXCLUDE
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
personal injury plaintiff filed a
Daubert 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.
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)
Demo Salvage's Expert
Demo Salvage's Expert Designation of Edmond
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.
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
Edmond Provder's Expert Report
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). 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.
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.
POSITIONS OF THE PARTIES
Melanie Howard's Memorandum
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.
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.
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.
Demo Salvage's Opposition Memorandum
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. 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. ...