United States District Court, N.D. California
ORDER RE: MOTIONS IN LIMINE Re: ECF Nos. 114, 116
JON S. TIGAR, District Judge.
The Court heard argument concerning the parties' motions in limine on June 5, 2015.
Motion at ECF No. 114: Regarding Dr. Barry Ben-Zion
By this motion, Defendant Golden Gate Bridge, Highway & Transportation District ("the District") seeks to exclude the testimony of Plaintiff David Rhoades' economic damages expert Dr. Barry Ben-Zion pursuant to Federal Rule of Evidence 702.
Rule 702 provides that:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education 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.
The District argues that Dr. Ben-Zion's report should be excluded because it lacks a sufficient factual foundation under Rule 702(b) and fails to apply reliable principles and methods under Rule 702(c). "[T]he admission of expert testimony generally lies within the sound discretion of the trial court." Burlington N., Inc. v. Boxberger, 529 F.2d 284, 287 (9th Cir. 1975). Although courts should screen expert testimony that is premised upon "rampant speculation, " id., "it is not proper for the Court to exclude expert testimony merely because the factual bases for an expert's opinion are weak." Andler v. Clear Channel Broad., Inc., 670 F.3d 717, 729 (6th Cir. 2012) (quoting Boyar v. Korean Air Lines Co., 954 F.Supp. 4, 7 (D.D.C. 1996)).
In support of its motion to exclude Dr. Ben-Zion's report, the District points to the Third Circuit's decision in Benjamin v. Peter's Farm Condo. Owners Ass'n, 820 F.2d 640 (3d Cir. 1987). There, the Third Circuit granted a new trial where a testifying economic expert had calculated the plaintiff's lost earnings "figure  based solely on [plaintiff's] personal belief as to how much money he could earn together with his personal records reflecting money received and disbursed during the three month period after the injury." Id. at 643. Although the plaintiff told the expert that he "felt he was going to work part-time" and make approximately $10, 000 a year in his post-injury, part-time employment capacity, he had shown the expert records that did not support this estimate. Id. at 641. The Benjamin court stated that "[a]lthough mathematical exactness is not required, testimony of post-injury earning capacity must be based upon the proper factual foundation." Id . The court concluded that "reliance on [plaintiff's] personal belief as to his capabilities was improper because [plaintiff's] belief was merely speculative" and "the figure derived from that reliance was thus without proper foundation and insufficient for a jury properly to assess [plaintiff's] damages." Id.
The District argues that Dr. Ben-Zion's testimony should be excluded because his lost earnings calculations are not based on sufficient facts or data, but instead defer to "Rhoades' self-serving representation to Dr. Ben-Zion that he will not make a full income recovery until 2021." ECF No. 114 at 5. The District contends that Dr. Ben-Zion's assumption that Rhoades will take until the beginning of 2022 to return to his full earning capacity fails to account for Rhoades' deposition testimony, which indicates that he has already returned to full-time work. Id . The District also argues the report should be excluded because it does not apply reliable principles and methods for calculating economic loss and fails to reflect the speculative nature of the real estate market in which Rhoades works. Id.
The Court disagrees with the District's characterization of Dr. Ben-Zion's report as lacking a sufficient factual foundation or failing to use reliable methods. In preparing the report, Dr. Ben-Zion analyzed Rhoades' historical income, pre- and post-accident. Dr. Ben-Zion did account for the speculative nature of the real estate market, observing that Rhoades' income "fluctuates greatly from year to year, given that there is typically a lag between invest time and effort on real estate properties and reaping the rewards from these investments." ECF No. 141 at 7. Therefore, Dr. Ben-Zion determined Rhoades' pre-injury earnings "based on the average income he earned over several years prior to his injury." Id . Dr. Ben-Zion projected that Rhoades' income would have "increased by the rate of inflation" on average. Id. at 8. Dr. Ben-Zion ...