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February 22, 2001


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 diversity jurisdiction.

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.


I. The Daubert Motion

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).

A. Standard of Law

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. 1167.

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 ...

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