Porras v. United States

• Decision Date: 09 June 2022
• Docket Number: 8:21-cv-423-JSS
• Parties: MARISA PORRAS, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — Middle District of Florida

MARISA PORRAS, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

No. 8:21-cv-423-JSS

United States District Court, M.D. Florida, Tampa Division

June 9, 2022

ORDER

Plaintiff seeks to exclude Defendant's experts' testimony under Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993). Plaintiff filed her Motion to Exclude Expert Testimony of Dr Jeremy Cummings (Dkt. 57), Motion to Exclude Expert Testimony of Dr. James M. Bullock (Dkt. 59), and Motion to Exclude Expert Testimony of Dr. Neil Schechter (Dkt. 61) (“Daubert Motions”), and Defendant filed responses in opposition (Dkts. 75, 76, 77). Additionally Plaintiff seeks entry of partial summary judgment (“Summary Judgment Motion”) (Dkts. 63, 82), which Defendant opposes (Dkt. 71). On April 8, 2022 and April 25 2022, the court held hearings on the Motions. For the reasons set forth below, Plaintiff's Daubert Motions (Dkts. 57, 59, 61) and Summary Judgment Motion (Dkt. 63) are denied.

BACKGROUND

This action arises out of a March 5, 2019 motor vehicle accident between Plaintiff, Marisa Porras, and United States Postal Service employee, Natasha Michelle Prieto, in Manatee County, Florida. (Dkt. 1.) As a result Plaintiff brings this lawsuit against the United States of America (“Defendant”) under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1) and 2674 et seq. (“FTCA”), to recover for injuries sustained in the accident. (Id.) In the complaint, Plaintiff alleges that Ms. Prieto was negligent while acting within the course and scope of her employment as a postal truck driver. (Id.) Defendant answered, asserted affirmative defenses, and filed a counterclaim against Plaintiff. (Dkt. 7.) The parties stipulated to the dismissal of the counterclaim. (Dkt. 97.)

The parties proceeded through discovery and are now preparing for an August 2022 bench trial.^[1]Plaintiff now seeks to exclude Defendant's experts and moves for partial summary judgment.

A. Daubert Motions (Dkts. 57, 91, 61)

Plaintiff requests that the court exclude the opinion testimony of Drs. Jeremy Cummings, James M. Bullock, and Neil Schechter on the grounds that their opinions are wholly unreliable. Defendant responds that Plaintiff's Daubert Motions are motions in limine and that “the gatekeeping requirements of Daubert are not implicated here.” (Dkts. 75, 76, 77.) Defendant further maintains that because this case would not involve a jury trial, “pretrial consideration of such motions ‘weighs heavily in favor of denying the motions in limine and addressing the issues if and when they come up at trial.'” (Dkt. 77 at 5 (quoting Johnson & Johnson Vision Care, Inc. v. CIBA Vision Corp., 616 F.Supp.2d 1250, 1256 (M.D. Fla. 2009)). Nonetheless, Defendant maintains that the opinions offered by these witnesses are sufficiently reliable, reasonably certain, and will assist the trier of fact. (Id.)

In determining the admissibility of expert testimony under Federal Rule of Evidence 702, “[t]he court serves as a gatekeeper, charged with screening out experts whose methods are untrustworthy or whose expertise is irrelevant to the issue at hand.” Corwin v. Walt Disney Co., 475 F.3d 1239, 1250 (11th Cir. 2007). A determination of admissibility requires findings that “(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.” United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en banc) (quoting City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998)). The party offering an expert has the burden of satisfying each of these elements by a preponderance of the evidence. Cook ex rel. Estate of Tessier v. Sheriff of Monroe County, Fla., 402 F.3d 1092, 1107 (11th Cir. 2005).

The focus of the Daubert analysis is “on principles and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 595. “Thus, the proponent of the [expert] testimony does not have the burden of proving that it is scientifically correct, but that by a preponderance of the evidence, it is reliable.” Allison v. McGhan Med. Corp., 184 F.3d 1300, 1312 (11th Cir. 1999) (citing In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3rd Cir. 1994)). “The evidentiary requirement of reliability is lower than the merits standard of correctness. Daubert states that a judge should find an expert opinion reliable under Rule 702 if it is based on ‘good grounds,' i.e., if it is based on the methods and procedures of science.” In re Paoli, 35 F.3d at 744. Hence “in most cases, objections to the inadequacies of a [scientific] study are more appropriately considered an objection going to the weight of the evidence rather than its admissibility.” Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003) (quoting Hemmings v. Tidyman's Inc., 285 F.3d 1174, 1188 (9th Cir. 2002)).

Thus, the court acts as gatekeeper to prevent speculative and unreliable “expert” testimony from reaching the jury. See Rink v. Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir. 2005) (noting that the “task of evaluating the reliability of expert testimony is uniquely entrusted to the district court under Daubert”). The gatekeeping role is “significant” because an “expert's opinion ‘can be both powerful and quite misleading.'” Frazier, 387 F.3d at 1260 (quoting Daubert, 509 U.S. at 595).

However, in actions set for a non-jury trial, such as this matter, “[t]here is considerable legal support for the proposition that the Daubert gatekeeping function is relaxed.” See SE Property Holdings, LLC v. Center, No. 15-cv-0033-WS-C, 2017 WL 242610, at *3 (S.D. Ala. Jan. 19. 2017). That is because the court, sitting as trier of fact, is in the best position to distinguish between persuasive and insufficient expert evidence at trial. See, e.g., United States v. Brown, 415 F.3d 1257, 1269 (11th Cir. 2005) (“There is less need for the gatekeeper to keep the gate when the gatekeeper is keeping the gate only for himself.”); Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000) (“Most of the safeguards provided for in Daubert are not as essential in a case such as this where a district judge sits as the trier of fact in place of a jury.”); Ass Armor, LLC v. Under Armour, Inc., No. 15-cv-20853-Civ-COOKE/TORRES, 2016 WL 7156092, at *4 (S.D. Fla. Dec. 8, 2016) (“As this is a bench trial without a jury, however, the need for an advance ruling to exclude [an expert's] testimony is superfluous and unnecessary.”).

Here, the court finds that Plaintiff's concerns with Defendant's experts are more appropriately addressed at trial when all the facts can be considered in detail. See Brown, 415 F.3d at 1269; N.W.B. Imports & Exports, Inc. v. Eiras, No. 3:03-cv-1071-J-2-MMH, 2005 WL 5960920, at *1 (M.D. Fla. Mar. 22, 2005) (“Because this is a nonjury trial, the gatekeeping purpose of Daubert is not implicated. The Court will therefore receive [the expert's] testimony, make a final admissibility decision and, if admissible, accord it the weight, if any, it deserves.”); see also City of S. Miami v. Desantis, No. 19-cv-22927-BLOOM/Louis, 2020 WL 7074644, at *6-7 (S.D. Fla. Dec. 3, 2020) (discussing how borderline admissible evidence is less of concern for bench trials). If any shortcomings regarding the experts' qualifications arise or part of the experts' testimony appear irrelevant or unreliable, Plaintiff may present her arguments through “[v]igorous cross examination [and the] presentation of contrary evidence” at trial. Daubert, 509 U.S. at 596; see also U.S. v. Ala. Power Co., 730 F.3d 1278, 1282-85 (11th Cir. 2013) (the Daubert inquiry “is not intended to supplant” cross-examination and presentation of contrary evidence). By proceeding in this manner, the court will be in a better position to assess whether and how much weight to give Defendant's experts' testimony. See Huff v. United States, No. 19-cv-14100-MARTINEZ/MAYNARD, 2022 WL 1126713, at *4 (S.D. Fla. Apr. 4, 2022) (noting that “[t]he court, sitting as trier of fact, is in the best position to distinguish between persuasive and shaky expert evidence at trial and it is thus accepted that the importance of the pretrial exclusion process contemplated by Daubert is lessened in that situation”); NBIS Constr. & Transp. Ins. Servs., Inc. v. Liebherr-Am., Inc., No. 19-2777-AAS, ECF Doc. 96 (M.D. Fla. June 22, 2021) (denying without prejudice motion to exclude expert witness and noting that “the court can address these issues with the benefit of the context of the trial and can disregard inadmissible evidence”); Seitz v. United States, No. 2:14-cv-60-WCO, 2015 WL 13719668, at *4 (N.D.Ga. July 29, 2015) (denying motions to exclude expert witnesses in an FTCA case since “the better time to address each exclusion request is at the time of trial” especially “where the trier of fact is the court”); Bristol-Myers Squibb Co. v. Andrx Pharm., Inc., 343 F.Supp.2d 1124, 1131 (S.D. Fla. 2004) (advance rulings on admission of evidence are unnecessary in bench trial “where the Court must evaluate the evidence regardless of whether it ultimately decides to exclude it”).

As to Plaintiff's contention that Dr. Bullock's Second Supplemental Rule 26 Expert Disclosure should be excluded as untimely (Dkt. 59 at 16-17), the court notes that Plaintiff was provided with the disclosure (Dkt. 59-1) before taking Mr. Bullock's deposition. As such, even if untimely, the court finds that the disclosure was harmless as Plaintiff received this information well in...