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Clark v. Lard Oil Company, Inc.

United States District Court, S.D. Mississippi, Eastern Division

September 12, 2019




         This cause comes before the Court on the Motion to Exclude Expert Opinions of Defendant's CPA, C. Mark Bullock [94] filed by Plaintiff, Ramsay Clark, wherein Plaintiff argues that Bullock's opinions should be excluded pursuant to Federal Rule of Evidence 702 and the standard for the admissibility of expert testimony articulated in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Defendants have responded [106], and Plaintiff filed a reply [113]. Having reviewed the parties' submissions, the relevant legal authority, Mr. Bullock's opinion letter dated April 30, 2019, and otherwise being fully advised in the premises, the Court finds the motion is well taken and will be granted.

         I. BACKGROUND

         This action arises out of a June 6, 2016 automobile accident involving a tanker truck driven by an employee of ACM Transportation who caused a four-car pileup on Old Highway 11 in Hattiesburg, Mississippi. Plaintiff allegedly sustained multiple injuries in the accident. There has been an admission of liability and thus, the only issue is damages. In support of his damages claim, Plaintiff retained Bill Brister, Ph.D., an economist to opine about Plaintiff lost earnings resulting from injuries Plaintiff allegedly suffered. He submitted a report on October 4, 2017 [90-2] and another on February 28, 2019 [90-1].[1] In opposition, Defendants hired C. Mark Bullock (“Bullock”), a CPA, to rebut the opinions of Bill Brister.

         On April 30, 2019 Bullock wrote a letter, consisting of just over three pages, to Defendants' counsel, Edward C. Taylor [94-4].[2] In the letter, Bullock states that he has been retained “to offer opinions regarding Plaintiff Ramsay Clark's claim for loss of future earnings in the above-referenced matter.” Bullock states in the letter that he reviewed the two reports of Brister; Plaintiff's 2017 federal income tax return; Plaintiff's deposition transcript; W-2's for 2010-2017 and miscellaneous payroll records from Plaintiff's employer. [94-4]. Within the letter he appears to state a number of different opinions. The first is contained in the first paragraph: “As will be discussed below, in my opinion, there is no credible basis that Mr. Clark has had any significant loss of future earnings as a result of the subject automobile accident.” [94-4] at p.1.

         Bullock then states that after reviewing Brister's two reports and comparing the conclusions reached in each report, he identified six issues that he believes raise “significant doubts as to the reliability of the alleged lost earnings claim of Ramsay Clark.” [94-4] at p.1. These six issue statements could be construed as opinions or it could simply be the information Bullock considered to form the bases of his opinions. These six issues are as follows:

First, after noting that the claim decreased with the second report, Bullock opines that Brister changed his theory because there was no documented loss of earnings in 2018.
Next, Bullock notes that the decrease in the losses indicates that “assumptions can be easily manipulated to alter or achieve the desired result.” Third, he claims that Plaintiff's deposition revealed many significant events other than the accident that affected Plaintiff's compensation. Bullock recites the deposition snippets in his letter.
Fourth, he states that, “The earnings of Mr. Clark reflect a successful career path.” While not clearly stated, it appears he recites figures either from Plaintiff's W2s or payroll records, perhaps both.
Fifth, Bullock recites Brister's assumptions in his first report and states that Brister's estimate first assumed “that [Plaintiff] suffered a significant reduction in earning capacity as the result of injuries incurred on June 6, 2016, ” and the second assumption was that “this reduction in earning capacity will continue throughout the remainder of his work life expectancy.” Bullock then states that this first report provides proof only that Plaintiff's loss of earnings is temporary in nature lasting no more than one year-June 2016 to June 2017 and that Table 1 Earnings Schedule proves that assertion.[3] Bullock also states that Plaintiff's deposition testimony supports many causes for the 10% drop in earnings in the year following his injury.
Sixth and finally, Bullock asserts that the business reasons for hiring a helper to be paid 15% of Plaintiff's omissions is not proven in Brister's report and that the arrangement appears to be short term in duration and has to date lasted no more than a few months.

         Other opinions appear to be contained in the “Summary of Conclusions, ” which state:

A. Dr. Bill Brister's reduction in alleged loss of earnings from $958, 772 down to $664, 981 (30.64%) proves his various theories and assumptions are not based upon facts but instead are based upon statistical analysis easily manipulated to achieve the desired result.
B. The Reasons [Plaintiff's] income escalated were quoted directly from his deposition and included moving from inside or counter sales to outside sales where he was compensated by a 2% commission on sales. His compensation jumped from approximately $50, 000 in 2011 to approximately $110, 000 in 2012 or 120%. Then [Plaintiff's] income jumped once again when his compensation was changed for 2015 to a commission based upon sales profits. His compensation rose to $193, 140 in 2015 and capped at $219, 632 in 2016. During 2017, [Plaintiff] lost his two biggest accounts . . . .After losing the two accounts, [Plaintiff's] compensation dropped to $201, 539 in 2017, his one year of short-term ...

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