United States District Court, N.D. Mississippi, Oxford Division
LOLITA PENNINGTON, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE AND WRONGFUL DEATH BENEFICIARIES OF ANDRIANA HALL, et al. PLAINTIFFS
UPS GROUND FREIGHT, INC., a/k/a UNITED PARCEL SERVICE DEFENDANT
B. BIGGERS, JR., UNITED STATES DISTRICT JUDGE
cause comes before the court upon the defendant's motion
to exclude expert testimony pursuant to Rule 702 of the
Federal Rules of Evidence and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). Defendant
requests that the court exclude the testimony of
Plaintiffs' expert Dr. Ralph Scott.
702 governs the admission of expert testimony, providing:
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.
Daubert, the Supreme Court provided additional
guidance on the admission of expert testimony. 509 U.S. 579
(1993). The Daubert court emphasized that expert
testimony must be both relevant and reliable before it may be
admissible. Id. at 589. Among the factors to be
considered are whether the expert opinion is susceptible to
testing and has been subjected to such testing; whether the
opinion has been subjected to peer review; whether a known or
potential rate of error is associated with the methodology
used and whether standards exist which control the
technique's operation; and whether the theory has been
accepted in the scientific community. Id. at 593-94.
have designated Dr. Scott as an expert in the field of
economics. Specifically, Dr. Scott opines as to “net
cash value of the life” of the decedent or, in other
words, the decedent's lost future income. Defendant does
not challenge Dr. Scott's qualifications for purposes of
this motion. Instead, Defendant argues that Dr. Scott's
opinions are unreliable. In particular, Defendant contends
both that Dr. Scott's opinions are not based upon
sufficient facts or data and are not the product of reliable
principles or methods.
moving to exclude, Defendant asserts that Dr. Scott
completely failed to take into account the decedent's
prior work history and corresponding earnings nor her limited
scholastic achievement. This is confirmed by Dr. Scott's
deposition testimony in which he conceded that did not
consider these facts although they were available to him. A
review of his testimony indicates that Dr. Scott's
opinions are not based upon any facts in the record other
than the decedent's dates of birth and death.
additionally objects to the methodology used by Dr. Scott in
forming his opinions. Rather than using facts from the
instant case in calculating the decedent's future lost
income, Dr. Scott relied entirely upon the national average
earnings for individuals. Defendant argues that Plaintiffs
have failed to demonstrate that such methodology is reliable
or that it has been reliably applied in this case.
response, Plaintiffs cite to Greyhound Lines, Inc. v.
Sutton, 765 So.2d 1269, 1277 (Miss. 2000), in which the
Mississippi Supreme Court held as follows:
[I]n cases brought for the wrongful death of a child
where there is no past income upon which to base a
calculation of projected future income, there is a rebuttable
presumption that the deceased child's income would have
been the equivalent of the national average as set forth by
the United States Department of Labor.
added. Plaintiffs' reliance on Sutton is
misplaced. The Sutton approach is relevant and
proper only in cases involving the death of a child with no
past earnings history. See Sutton, 765 So.2d 1269
(finding the methodology applicable in the death of three
children, the oldest of whom was eight); Spotlite Skating
Rink, Inc. v. Barnes ex rel. Barnes¸988 So.2d 364
(Miss. 2008) (applying the Sutton approach in the
death of a ten-year old). In the instant case, the decedent
was not a child and undisputedly did have past income upon
which to base a calculation of her lost future income.
Further, the Mississippi Supreme Court has held the
application of Dr. Scott's proposed methodology to be
inappropriate under circumstances similar to those presented
here. See Rebelwood Apartment RP, LP v. English, 48
So.3d 483 (finding the Sutton approach improper
where the decedent was twenty-three years old and had prior
earnings history upon which to base lost income calculation).
Plaintiffs point to no other authority which supports the
admission of Dr. Scott's expert testimony.
the court notes that Dr. Scott has filed an affidavit in
which he avers that his use of national average earnings is
“generally accepted methodology” in the field of
forensic economics. Dr. Scott, however, failed to cite any
legal or scientific authority to substantiate his averment.
An “expert's assurances that he has utilized
generally accepted scientific methodology is
insufficient.” Moore v. Ashland Chemical,
Inc., 151 F.3d 269, 276 (5th Cir. 1998).
these reasons, the court finds that Plaintiffs have not
carried their burden in demonstrating that Dr. Scott's
opinions are based upon sufficient facts or data or the
product of reliable methodology. Accordingly, the court finds
that Defendant's motion to exclude the expert ...