The opinion of the court was delivered by: Curtin, District Judge.
Frances Coleman and Jerzy Dydula were involved in a motor
vehicle accident on Buffalo's East Side in March 1993. In the
present action, Frances Coleman ("plaintiff") claims that Jerzy
Dydula and his wife, Alicija Dydula ("defendants"), are liable
for personal injuries that she suffered as a result of that
accident. The case is before this court on the basis of
In the summer of 2000, the court learned of defendants'
objection to one of plaintiffs expert witnesses, Dr. Ronald
Reiber. Dr. Reiber is a professor of economics at Canisius
College and has been retained by plaintiffs' counsel, John
Fromen, Esq., as an expert witness on the issue of economic
damages. On August 8, 2000, the court directed counsel for
defendants to file a Daubert motion regarding Dr. Reiber's
proposed testimony. Item 82. Accordingly, defendants, by their
counsel, Stanley Sliwa, Esq., filed the present motion in
September 2000. Item 87.
At about the same time, on August 31, 2000, plaintiff filed a
motion seeking an order granting partial relief from an order of
Magistrate Judge Carol E. Heckman issued on September 8, 1999.
Item 58. On January 18, 2001, the court heard oral argument on
the Daubert motion and considered the motion seeking relief
from the Magistrate Judge's order as submitted without argument.
See Item 104. In this order and opinion, the Daubert motion
shall be considered first.
Defendants seek to exclude Dr. Ronald Reiber's testimony
regarding Mrs. Coleman's ("plaintiff") lost future wages, future
costs of health care coverage, and worklife
expectancy.*fn1 Defendants argue that Reiber's opinions on
these issues must be excluded because plaintiffs have not, and
cannot, establish that this proffered testimony is sufficiently
"reliable" under Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), and Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct.
2786, 125 L.Ed.2d 469 (1993).
The Federal Rules of Evidence set forth the standard for
admissibility of expert testimony: "If scientific, technical, or
other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue a
witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an
opinion or otherwise." Fed.R.Evid. 702. The trial judge is to
act as a "gatekeeper" with respect to expert testimony to ensure
that such testimony is both relevant and reliable. See
Daubert, 509 U.S. at 589-91, 113 S.Ct. 2786. This rule applies
not only to scientific knowledge, but also to technical or other
specialized knowledge. See Kumho, 526 U.S. at 141, 119 S.Ct.
1167. The determination as to the relevance and reliability of
such evidence is committed to the sound discretion of the trial
court. See id. at 158, 119 S.Ct. 1167.
Daubert sets forth specific factors, such as "testing, peer
review, error rates, and `acceptability' in the relevant
scientific community," which the trial court may consider in
determining reliability. Kumho, 526 U.S. at 141, 119 S.Ct.
1167. However, the Daubert test is flexible and its "list of
specific factors neither necessarily nor exclusively applies to
all experts or in every case." Id. To this end, the Supreme
Court has more generally explained that trial courts should
"make certain that an expert . . . employs in the courtroom the
same level of intellectual rigor that characterizes the practice
of an expert in the relevant field." Id. at 152, 119 S.Ct.
Furthermore, the trial judge must insure that the expert's
opinion is based upon "more than subjective belief or
unsupported speculation. . . . Proposed testimony must be
supported by appropriate validation — i.e., `good grounds,'
based on what is known." Daubert, 509 U.S. at 590, 113 S.Ct.
2786. Expert testimony is reliable where it has "a traceable,
analytical basis in objective fact. . . ." Bragdon v. Abbott,
524 U.S. 624, 653, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998)
(citing General Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct.
512, 139 L.Ed.2d 508 (1997)).
Finally, it is within the trial court's discretion to craft
reasonable criteria to be used to determine reliability in a
particular case and whether the proposed testimony meets those
criteria. See Kumho, 526 U.S. at 158, 119 S.Ct. 1167 (decision
to exclude expert evidence within trial court's discretion where
based on "failure to satisfy either Daubert's factors or any
other set of reasonable reliability criteria").
In this case, defendants insist that the three areas of
Reiber's challenged testimony — future lost wages, future health
insurance costs, and worklife expectancy — fail to meet
Daubert and Kumho Tire's requirement of reliability.
B. Future Lost Wages and Health Insurance Costs
The court will take up Reiber's testimony on future lost wages
and health insurance costs together because defendants attack
the proffered testimony on these issues with substantially
similar arguments. The similarity of defendants' arguments on
these two issues likely owes to the fact that Reiber calculated
future lost wages and increases in health insurance costs by
using very similar techniques.
Reiber has explained two alternate wage growth rates for the
next 18 years: 3 percent and 7.3 percent. For the first wage
growth rate (3 percent), Reiber referred to the past ten years
of the Consumer Price Index for Urban Consumers ("CPI-U"). Based
largely on this data from the CPI-U, Reiber estimated that there
would be 3 percent annual inflation from now until 2018. Based
on the principle that wages rise with inflation, Reiber inferred
that plaintiffs wage growth rate would also have been around 3
percent. Alternatively, Reiber derived a 7.3 percent growth rate
by referring to the increases in pay that plaintiff received
from 1992 through 1997, which is when she stopped working as ...