United States District Court, D. Nebraska
MEMORANDUM & ORDER
LYLE E. STROM, Senior District Judge.
This matter is before the Court on the motion of the defendant West Corporation ("West") to exclude the testimony of Donald L. Frankenfeld (Filing No. 200). Plaintiff Rex Brown intends to use Frankenfeld's testimony and expert report to establish damages in the form of lost wages. Defendant West Corporation seeks the exclusion of the testimony and report on the basis that the factual basis and methodology used by Frankenfeld in forming his expert opinion are unreliable.
A. Legal Standard
Federal Rule of Evidence 702 places limitations on the admission of expert testimony:
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.
Trial courts "must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). "This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Id. at 592-93. Specifically, the court should consider where applicable the factors set forth in Daubert: whether the experts method 1) has been or can be tested, 2) "has been subjected to peer review, " 3) "has a known or potential rate of error, " and 4) have gained general acceptance in the relevant community. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149 (1999). However, the factors should be applied in a flexible manner that takes into consideration the circumstances of the case. Daubert, 509 U.S. at 594-95.
The Court must also consider other applicable rules, including Federal Rule of Evidence 403 which balances the probative value of certain evidence against its potential to prejudice the trier of fact. Id. at 595.
The central premise of the disputed testimony is Frankenfeld's opinion that:
The principal measure of Mr. Brown's loss is his diminished earning capacity. At West, his earnings were substantial and on an upward trajectory, reaching $338, 064 (annualized) in 2010. Using his three-year average earnings of $290, 282, and deducting estimated mitigation earnings of $85, 000 per ...