Three Experts Allowed in Negligence Case

Plaintiff sued defendant for negligence when a live electrical wire caused injury to their minor child.  The plaintiff hired three expert witnesses, which were challenged by defendant.  The court denied the motion to exclude.

Facts:   This case (Marland et al v. Asplundh Tree Expert – United States District Court – District of Utah – January 10th, 2017) involves a negligence claim against the defendant (Asplundh) for their part in an an accident involving a tree limb that fell on a power line and then fell into a neighboring backyard where the plaintiff (J.S.M.) was playing.  J.S.M. suffered electrical burns and injuries as a result of this incident. J.S.M. hired three experts to assist in the case:  1) Dr. Sam Goldstein (neuropsychology expert witness), 2) Ms. Dina Galli (life care planning expert witness), and Mr. Jeremy Sharp (economics expert witness).  Asplundh filed motions to exclude the expert testimony of all three witnesses.

Discussion:  Dr. Goldstein opined that J.S.M. may attend college but it not likely to major in areas related to science and mathematics.  In addition, he is unlikely to attend graduate school.  Ms. Galli, relying on Dr. Goldstein’s opinions, assessed J.S.M.’s future earning capacity and employment.  Last, Mr. Sharp relied on Dr. Goldstein’s opinions in forming his calculations in regards to total economic damages.

Asplundh argues that Dr. Goldstein’s testimony is not reliable and not helpful to the jury.  Asplundh’s arguments are trifold: 1) Dr. Goldstein has not pointed to any scientific literature, or any other evidence that J.S.M. will not be able to study mathematics or science and then attend graduate school; 2) Dr. Goldstein’s opinions were not expressed with a “reasonable degree of certainty”; and 3) Dr. Goldstein did not take into account J.S.M’s improvement from second to third grade, the assessment of J.S.M. having taken place in the second grade.

The court opined that Dr. Goldstein’s opinions are supported by evidence.  He consulted medical records, school records, family history, and utilized twenty tests and questionnaires.  The court opined that Dr. Goldstein reached his conclusions by applying the data he collected through his assessment of J.S.M. and his personal experience as a neuropsychologist and school psychologist.  Any arguments about the data is best brought up in cross-examination before trial.

In addition, Dr. Goldstein’s statement that his opinions are based on at least 51 percent does not warrant exclusion under Daubert.  The court opined that the cases cited by Asplundh do not correlate to the current case.  In addition, he based his opinions on J.S.M.’s medical records, family history, and data from tests and questionnaires and has not contradicted his own testimony.  Any arguments on the level of confidence that Dr. Goldstein has of his opinions are best addressed at cross-examination.

Last, Asplundh’s argument that Dr. Goldstein’s opinions are not reliable because they do not take into account J.S.M.’s improvements from second grade to third grade is not granted. Dr. Goldstein stated that he will create an addendum to his initial assessment, but any arguments on this issue should be addressed at cross-examination.

Since the defendant’s only argument against Ms. Galli’s and Mr. Sharpe’s testimony is that they should be excluded because they rely on Dr. Goldstein’s opinions, the court opined that their testimony will be allowed as well.

Conclusion:  The motion to exclude the testimony of the expert witnesses is denied.