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finding the defendant's argument "wholly without merit" because the licensing statute at issue "regulate[d] the actual provision of rehabilitation counseling services, not expert testimony."
Summary of this case from Jackson v. State Farm Fire & Cas. Co.Opinion
Civil Action No: 03-3287 Section: "R" (5).
February 3, 2005
ORDER AND REASONS
The defendant moves the Court to exclude the testimony of James Cowart, the plaintiff's vocational rehabilitation expert. The plaintiff moves the Court to exclude the testimony of Dennis Howard, the defendant's safety expert. For the following reasons, the Court denies the defendant's motion and defers ruling on the plaintiff's motion.
I. BACKGROUND
Transocean employed Doug Messer as a Jones Act seaman aboard the M/V F100. On July 1, 2003, Messer allegedly slipped and fell aboard the vessel. On November 21, 2003, Messer sued Transocean. He alleges that Transocean's negligence caused the accident. Furthermore, he seeks damages for loss of wages, loss of earning capacity, disability, medical expenses, maintenance and cure benefits, and pain and suffering.
II. DISCUSSION
A. Legal Standard
Federal Rule of Evidence 702 gives the district court considerable discretion to admit or exclude expert testimony. See General Electric Co. v. Joiner, 522 U.S. 136, 138-39 (1997). Rule 702 provides that an expert witness "qualified . . . by knowledge, skill, experience, training or education," may testify when scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. FED. R. EVID. 702. For the testimony to be admissible, Rule 702 requires that (1) the testimony be based on sufficient facts or data, (2) the testimony be the product of reliable principles and methods, and (3) the witness apply the principles and methods reliably to the facts of the case. FED. R. EVID. 702.
In Daubert v. Merrell Dow Pharmaceuticals, the Supreme Court held that Rule 702 requires the district court to act as a "gatekeeper" to ensure that "any and all scientific evidence admitted is not only relevant, but reliable." 509 U.S. 579, 589 (1993). See also Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (clarifying that Daubert gatekeeping function applies to all forms of expert testimony). The Court's gatekeeping function thus involves a two-part inquiry into reliability and relevance. First, the Court must determine whether the proffered expert testimony is reliable. The party offering the testimony bears the burden of establishing its reliability by a preponderance of the evidence. See Moore v. Ashland Chemical Inc., 151 F.3d 269, 276 (5th Cir. 1998). The reliability inquiry requires the Court to assess whether the reasoning or methodology underlying the expert's testimony is valid. See Daubert, 509 U.S. at 589. The aim is to exclude expert testimony based merely on subjective belief or unsupported speculation. See id. at 590. Second, the Court must determine whether the expert's reasoning or methodology "fits" the facts of the case and whether it will thereby assist the trier of fact to understand the evidence, in other words, whether it is relevant. See id. at 591.
B. Analysis
(1) James Cowart's Qualifications
Transocean contends that James Cowart is insufficiently qualified to testify as a vocational rehabilitation expert. Cowart is a nationally certified rehabilitation counselor and a licensed professional counselor in Alabama. (Pl.'s Mem. Opp'n Mot. Limine, Ex. C.) He has worked as a vocational rehabilitation counselor since 1969. ( Id.) Specifically, Cowart served the United States Army as a vocational rehabilitation counselor for 21 years, from 1969 to 1990. ( Id.) Currently, he has been working as a vocational rehabilitation counselor in the private sector for more than 14 years. ( Id.) Cowart has experience in providing vocational rehabilitation counseling, vocational evaluation, vocational testing, job-placement to injured individuals, and career counseling to non-injured individuals. ( Id.) Moreover, Cowart has a Master's Degree in Psychology and Counseling, and he has completed postgraduate course work in Vocational Rehabilitation Counseling. ( Id.) Furthermore, he has testified as an expert in vocational rehabilitation in Louisiana state and federal courts. (Pl.'s Supp. Mem. at 3, Ex. A.) In light of his education and experience in the field of vocational rehabilitation counseling, the Court finds that Cowart is sufficiently qualified to testify as an expert in vocational rehabilitation.
Transocean argues that Cowart is not qualified to testify as an expert in vocational rehabilitation because he is not licensed in Louisiana. Under the Louisiana licensing statute, any person who holds himself out to the public as an expert in vocational rehabilitation or as a "licensed professional rehabilitation counselor" must have a valid Louisiana license. La.R.S. 37:3450. This means that no person may perform vocational rehabilitation services without a license. Id. Any person who violates the statute is guilty of a misdemeanor. Id. Ultimately, Transocean contends that the Court would be assisting in the commission of a misdemeanor if it permits Cowart to testify.
Transocean's argument is wholly without merit. The Louisiana licensing statute regulates the actual provision of rehabilitation counseling services, not expert testimony. Notably, the purpose of the statute is to regulate the "activities of those persons who render service to the public in the rehabilitation counseling area and use the title 'licensed professional rehabilitation counselor'" for the "protection of public health, safety, and welfare." La.R.S. 37:3442. Moreover, even if the licensing statute were to apply to expert testimony, Cowart is exempt from its requirements. This is because the statute explicitly excludes from its requirements non-resident counselors who are temporarily employed in Louisiana and hold a valid license from another state. La.R.S. 37:3452(2). Accordingly, the Court rejects Transocean's argument.
(2) Reliability of Cowart's Testimony
Cowart opines that Messer cannot return to gainful employment. Transocean contends that Cowart's opinion is not reliable. According to Transocean, this is because Cowart based his expert opinion on too little data. The Court, however, finds that Cowart based his opinion on sufficient data to permit him to testify. In his deposition, Cowart testified that he reviewed the documentation in the case file in forming his opinion, but that he did not remember everything that he reviewed. (Def.'s Supp. Mem., Ex. C at 9-10.) Cowart further explained that he relied heavily on Dr. Bartholomew's report because it was the only record relevant to vocational matters. ( Id. at 9.) Cowart also made an initial vocational evaluation on the basis of an interview with Messer. ( Id. at 10-11.) In the interview, Cowart reviewed Messer's work history from the time that Messer was fifteen years old. ( Id. at 27.) Cowart also ascertained that Messer attended school through the eighth grade. ( Id. at 28.) The Court finds that Cowart based his opinion on sufficient data.
Furthermore, Cowart adequately explained the basis of his opinion. In Cowart's opinion, Dr. Bartholomew assigned Messer a 15 percent permanent partial impairment rating. ( Id. at 22.) Cowart noted that Messer lives in a rural area with limited opportunities for people of his educational level. ( Id. at 28.) According to Cowart, most of the jobs available to Messer in his geographic area will require full use of the body. ( Id. at 29.) Therefore, Cowart concluded that Messer is unable to return to gainful employment.
Transocean argues that Cowart's opinion is not reliable because, Transocean alleges, Cowart misinterpreted Dr. Bartholomew's records. Similarly, Transocean questions Cowart's reliability because Cowart did not administer tests to determine Messer's vocational interests and academic aptitude. The Court has determined that Cowart's work meets the threshold requirement for admissibility. These latter questions about the sources and bases of an expert's opinion are more properly left to the finder of fact. U.S. v. 14.38 Acres of Land, 80 F.3d 1074, 1077 (5th Cir. 1996). Accordingly, Transocean's objections are without merit.
(3) Dennis Howard
Transocean offers Howard as a marine safety expert. Messer moves the Court to exclude Howard's testimony on the basis that it is unreliable. The parties have informed the Court that their respective safety experts are scheduled to inspect the M/V F100 in the near future and issue supplemental expert reports. The inspection and supplemental reports may render the motion moot. Accordingly, the Court defers ruling on the motion to exclude Howard's testimony. The Court orders the parties to inform the Court of their position on the motion following the submission of the supplemental expert reports.
III. CONCLUSION
For the foregoing reasons, the Court DENIES the defendant's motion in limine and DEFERS ruling on the plaintiff's motion in limine.