Opinion
CIVIL ACTION NO. 01-1322.
May 16, 2002
MINUTE ENTRY
Before the Court is the defendants' Motion In Limine, seeking a ruling excluding speculative or unsupported damage evidence which requires expert opinion testimony. Insofar as plaintiff's claims concern economic loss ( i.e., back pay, front pay and/or future loss of earnings), defendants contend that the plaintiff herself lacks the requisite expertise in the area of economics to make the necessary accounting assumptions and/or calculations, to refer to appropriate tables, to opine regarding what constitutes reasonable discount rates, inflations rates and their application. Moreover, defendants note that the plaintiff failed to comply with this Court's scheduling orders and Federal Rule of Civil Procedure 26, regarding the disclosure of expert testimony.
Plaintiff filed formal opposition, citing the Louisiana First Circuit case Williams v. Rubicon, Inc., 808 So.2d 852 (La.App. 1st Cir. 2002). Plaintiff counters that her back wage claim is premised on her agreed salary of $20,000 per year at the time of her termination and not the $42,000 promised promotion salary. Plaintiff makes no argument at all regarding the front pay or loss of future earnings, although plaintiff's entitlement to such appears as contested issues of fact in the pretrial order. See Pretrial Order, at Section IX, items H, I, L, and N, at pp. 18-19.
It is noteworthy that Williams, supra, involved a bench trial and not a jury trial. Moreover, plaintiff's evidence supporting her claims of back pay and loss of future earnings included the opinion of a qualified expert in the field of economics. Significantly, in affirming state trial judge's award of $127,417.00 in back pay, Judge Pettigrew noted that (1) "there was conflicting evidence by two expert witnesses," and (2) that plaintiff's expert economist, Dr. Richardson, noted that such "earnings were appropriately compounded by a composite interest rate representing both short and long term interest rates." Williams, 808 So.2d at 860 (internal quotation marks omitted). As to the award of front pay, the appellate court (1) highlighted the fact of the speculative nature of awards of lost future income, (2) noted that it requires the trial judge to consider a myriad of factors presented, and (3) further "involves intelligent guess-work by the court." Id. at 862. In this vein, the appellate court noted that the trial judge relied on the guidance of plaintiff's expert economist, Dr. Richardson, whose expert opinions considered the disparities between projections of future income with respect to the plaintiff's former and present employment, work life expectancy, diminished employment opportunities, and valuations based upon reasonable assumptions and projections. Id. at 863-64.
Compliance with Federal Rule of Civil Procedure 26(a)(2)(A) requires disclosure of the identity of any expert witness. To eliminate unfair surprise, the drafters saw fit to require the parties also to disclose the substance of the expert opinion testimony and the basis of such opinion, inter alia. See Fed.R.Civ.P.26(a)(2)(B) (requiring a party to accompany the disclosure of an expert witness with a complete, written report prepared and signed by the witness).
Rule 26(a)(2)(B) specifically provides that:
(2) Disclosure of Expert Testimony.
(B) Except as otherwise stipulated or directed by the court, this disclosure [ i.e., identity of witness] shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by a witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons there for; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study or testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.Id. (emphasis added).
Rule 701 of the Federal Rules of Evidence only applies if the witness is not testifying as an expert. It provides that a non-expert witness may testify in the form of opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness' testimony or the determination of a fact issue. See Fed.R.Evid. 701. Pursuant to Rule 701, a lay witness is limited to opinions or inferences (1) based on personal perception; (2) that an ordinary average person would form from those perceptions; and (3) helpful to the jury.
See Rushing v. Kansas City So. Railway Co., 185 F.3d 496, 512 (5th Cir. 1999) (quoting United States v. Riddle, 103 F.3d 423, 428 (5th Cir. 1997); Doddy v. Oxy USA, Inc., 101 F.3d 448, 460 (5th Cir. 1996) (a person may testify as a lay witness if his opinions or inferences do not require any specialized knowledge and could be reached by an ordinary person); and Lambeth v. Edison Chouest Offshore, L.L.C., 1999 WL 1204843 (E.D. La. 1999) (Vance, J.) (lay witness lacked specialized knowledge required to assess the quality of medical care he received; lay testimony limited to topics within the witness' personal knowledge, which required neither specialized nor scientific knowledge).
This Court has serious reservations regarding the plaintiff's testimony projecting economic loss as a lay witness. The Court recognizes that there may well be agreement regarding the plaintiff's salary at the time of her termination and that such is a matter within her personal knowledge that does not require any specialized knowledge. However, with regard to both her back pay and front pay/loss of future earnings calculations, it is far from clear in this case that plaintiff's undisclosed opinion testimony as a lay witness rests, for its validity, on a factual predicate entirely within her own perception and does not require any specialized knowledge. Suffice it to say, it remains to be determined whether or not the plaintiff's opinions and inferences supporting her lay testimony regarding economic loss require specialized knowledge and could be reached by any ordinary person. Indeed, the $20,000 salary figure is simply the beginning of an equation, which contemplates reference to a whole host of factors with which an expert economist is fluent. Without knowing the parameters, the bases, and the assumptions of the plaintiff's "fact testimony" with respect to economic loss, the Court cannot determine whether her opinions and/or inferences in that regard could be reached by an ordinary person.
The Court will defer ruling on the evidentiary issues raised by the defendants regarding plaintiff's claims of economic loss until both the parties and this Court have had the opportunity to hear in limine testimony by the plaintiff in this vein. Post-hearing in limine, the Court shall rule definitively on the issue of the permissible scope of the plaintiff's testimony regarding her alleged economic loss. Accordingly, and pending this Court's hearing in limine the plaintiff's testimony regarding economic loss,
IT IS ORDERED that counsel shall refrain from either arguing in opening statements or eliciting any testimony from any witnesses, regarding any sum certain or dollar figure representing a specific amount allegedly due to the plaintiff for either back pay or loss of future earning. Counsel may refer to plaintiff's alleged economic loss generally in opening statements, and may also refer to the fact of the plaintiff's salary at the time of her alleged wrongful termination by Service Zone, since her salary is a factual matter within her own personal knowledge.