Opinion
CIVIL ACTION NO. 01-2175 SECTION: E/2
May 1, 2002
RULING ON MOTION
Defendant Omega Protein, Inc. ("Omega") has filed a motion in limine to exclude and/or limit any testimony of plaintiff's economic expert, or any evidence relating to plaintiff's inability to return to gainful employment. R.D. 19. Plaintiff opposes the motion, which was set for hearing without oral argument on May 1, 2002.
BACKGROUND
Mr. Cooley was 55 years old when he was injured while working as a "ringsetter" aboard a commercial fishing vessel, the M/V SANDY POINT, owned by Omega. He had worked for the same employer, including Omega's predecessors, for about 9 years. Mr. Cooley's job actually involved about 6 months of fishing work each year in season, for which he earned a percentage wage based on the amount of catch the vessel made. During the off season, Mr. Cooley's sole income was from unemployment compensation payments.
See generally, Report of Tom Stewart, M.S., CRC, Vocational Rehabilitation counselor, dated January 17, 2002.
Chester Cooley's deposition, P. 19.
On April 17, 2001, Mr. Cooley was handling a braided rope when it apparently came loose and struck his left hand resulting in a severe fracture of the middle finger of his left hand. He was treated by Dr. Charlton Barnes at Barnes Gulf Coast Orthopaedics, P.A. No surgery was performed and Mr. Cooley was treated conservatively with medication and physical therapy. Dr. Barnes released Mr. Cooley as "able to return to work" on October 30, 2001, stating "per FCE is able to perform duties as a cook". No restrictions were noted. Dr. Barnes discharged Mr. Cooley on November 21, 2001, noting that he had reached MMI (maximum medical improvement) on that date, and that he had a PPD (partial permanent disability) of 15% in his injured finger, 3% hand, 3% upper extremity and 2% whole body.
Barnes Gulf coast Orthopaedics, P.A. Employee Work Status Report dated 10/29/2001. An FCE is a Functional capacity Evaluation, a copy of which is not in the record.
Barnes Gulf Coast Orthopaedics, P.A. Employee Work status Report dated 11/21/2001.
On December 12, 2001, Semoon Chang, Ph.D., prepared an expert report estimating the present value of future lost earnings for Mr. Cooley at $111,974.45. Dr. Chang's report is based on the assumption that Mr. Cooley is totally disabled and will have no future income.
Tom Stewart, a vocational rehabilitation counselor, produced a report on January 17, 2002. Mr. Stewart reported that Mr. Cooley was "functionally illiterate", that he could not read or spell, and could not do simple math such as make change. His entire work history consists of unskilled to semi-skilled, heavy to very heavy labor. Mr. Stewart opined as follows:
In consideration of Mr. Cooley's age, lack of education, work history, functional illiteracy, and the fact that he has very little strength and dexterity in his injured left hand/arm, it is this counselor's opinion that Mr. Cooley is unable to work in the competitive labor market at this time.
Mr. Cooley was deposed on March 22, 2002. At that time, he testified that he had been receiving unemployment compensation for about 4 weeks, and that when he applied for unemployment he reported that he was able and willing to work, as he must to be eligible to receive the unemployment compensation. Mr. Cooley further testified as follows:
Q. . . . . When you applied for unemployment five or six weeks ago, did you feel you were able to work?
A. Yes.
Q. What type of work do you think you can do?
A. I'm a fisherman.
Q. Do you think you can work as a fisherman?
A. Yes. I'm willing to give it a try.
ANALYSIS
Fed.R.Evid. 702 permits opinion testimony of an expert witness if that testimony will assist the trier of fact to understand the evidence or determine a fact in issue, and "if (1) the testimony is based upon sufficient facts or data, (2) the testimony is a product of reliable principals and methods, and (3) the witness has applied the principals and methods reliably to the facts of the case."
Omega moved to exclude or limit Dr. Chang's testimony as to Mr. Cooley's future lost earnings because his opinion is based on the assumption that Mr. Cooley is permanently totally disabled, an assumption that Omega argues is not supported by the facts. Omega points out that Dr. Barnes released Mr. Cooley to return to work without restrictions in October 2001, and in his deposition Mr. Cooley testified that he is "able and willing" to return to work as a fisherman, therefore he is clearly not totally disabled. As evidence that Mr. Cooley is totally disabled, he cites the vocational rehabilitation counselor's report that in his opinion, "Mr. Cooley is unable to work in the competitive labor market at this time."
Dr. Barnes' release of Mr. Cooley to return to work, and the statement that he is able to work as a cook, is apparently not Dr. Barnes' medical opinion, but is based on an FCE that is not in the record. Mr. Cooley's deposition testimony that he is able to work as a fisherman was apparently based on his willingness to "try" to do the work, not on his experience of actually doing the work since his injury. It may well be that, given the limits on the use of his left hand and arm, he may not be able to actually do the work. Mr. Cooley is also aware that he will not be eligible for unemployment benefits unless he states that he is able and willing to work. On the other hand, Dr. Barnes' medical opinion is that Mr. Cooley's partial permanent disability in his injured finger is only 15%, and his hand is 3%, and that he had reached maximum medical improvement as of November 21, 2001. Further, Mr. Stewart's opinion is that Mr. Cooley is unable to work in the competitive labor market "at this time". He does not state that Mr. Cooley will not be able to return to work at some time in the future.
The extent and term of Mr. Cooley's disability is clearly disputed and the evidence presently in the record and before the court is limited scope. Evidence of the extent of Mr. Cooley's disability will be more current and apparent at trial, at which time the court will be better able to determine what, if any, limits should be placed on Dr. Chang's testimony.
Accordingly, upon a review of the record, Omega's motion and memorandum and plaintiff's opposition thereto;
IT IS ORDERED that Omega Protein, Inc.'s motion in limine to exclude and/or limit Dr. Chang's testimony or evidence of plaintiff's future lost earnings be and is hereby DENIED, subject to Omega's right to reurge the motion at trial.