United States District Court, D. Maryland
Richard D. Bennett United States District Judge.
facts of this case have been set forth in this Court's
prior Memorandum Opinion of March 4, 2016 (ECF No. 14).
Plaintiff Valery Rozinsky (“Plaintiff” or
“Mr. Rozinsky”) has brought this action against
Defendant Assurance Company of America
(“Defendant” or “Assurance”),
asserting one count of breach of contract in connection with
an automobile accident on October 22, 2012, in which Mr.
Rozinsky allegedly sustained injuries while operating a
vehicle owned by his employer, Milhouse, LLC d/b/a Edible
Arrangements (“Milhouse”), and insured under a
motor vehicle insurance policy issued by Assurance. Compl.,
ECF No. 2. Mr. Rozinsky seeks to recover underinsured
motorist benefits, pursuant to the policy's
uninsured/underinsured motorist (“UIM”)
provision, which he claims Assurance “has refused to
pay . . . for his damages resulting from the collision,
” “[i]n breach of its insurance contract.”
Id. at 12.
Rozinsky filed this action in the Circuit Court for Baltimore
County, Maryland, but Assurance has removed this case to this
Court based on diversity of citizenship, pursuant to 28
U.S.C. § 1332. See Notice of Removal, ECF No.
1. Initially, Mr. Rozinsky brought a second count against
Assurance, jointly with his wife, Galina Rozinsky, alleging
loss of consortium in connection with the same accident and
his subsequent injuries. Compl., ¶ 14, ECF No. 2.
However, this Court has subsequently dismissed Court Two and,
accordingly, has dismissed Galina Rozinsky as a party in this
action. See March 4, 2016 Mem. Opinion and Order,
ECF Nos. 14 & 15.
pending before this Court is Assurance's Motion to
Exclude Expert Testimony of Kathy Stone (ECF No. 27). As
discussed infra, Ms. Stone has offered her opinion
that, “[b]ased on Mr. Rozinsky's age, education,
work history, transferable skills and [ ] physical
limitations . . . he is, within a reasonable degree of
vocational certainty, not a viable candidate for [vocational
rehabilitation] services and . . . has no present earning
capacity.” Stone Report, p. 2, ECF No. 29-15. The
parties' submissions have been reviewed, and no hearing
is necessary. See Local Rule 105.6 (D. Md. 2016).
For the reasons stated herein, Defendant Assurance Company of
America's Motion to Exclude Expert Testimony of Kathy
Stone (ECF No. 27) is DENIED. Mr. Rozinsky has established by
a “preponderance of the evidence” that Ms.
Stone's opinions satisfy Rule 702 of the Federal Rules of
Evidence and the factors for the admissibility of expert
testimony set forth by the United States Supreme Court in
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
592-93 (1993), and recently confirmed by the United States
Court of Appeals for the Fourth Circuit in Bresler v.
Wilmington Trust Co., 855 F.3d 178, 195 (4th Cir. 2017).
This case shall proceed to a bench trial before this Court,
beginning on Tuesday, August 1, 2017.
702 of the Federal Rules of Evidence provides that “[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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Rule 702 . . . . [c]ourts are required to act as
‘gatekeepers' to ensure that expert testimony is
relevant and reliable.” Bresler v. Wilmington Trust
Co., 855 F.3d 178, 195 (4th Cir. 2017) (quoting
Cooper v. Smith & Nephew, Inc., 259 F.3d 194,
199 (4th Cir. 2001) (citing Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 588 (1993))). “[A]
district court ‘must conduct a preliminary
assessment' to determine whether the methodology
underlying the expert witness' testimony is valid.”
Id. (quoting Daubert, 509 U.S. at 592-93).
The proponent of the expert testimony in question must
establish admissibility “by a preponderance of
proof.” Cooper, 259 F.3d at 199 (citing
Daubert, 509 U.S. at 592, n. 10).
United States Supreme Court in Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579 (1993) set forth several
factors for courts to consider in assessing the admissibility
of expert testimony. The United States Court of Appeals for
the Fourth Circuit has recently confirmed those factors in
Bresler v. Wilmington Trust Co., 855 F.3d 178, 195
(4th Cir. 2017):
In assessing the validity of the methodology employed by a
proposed expert witness, a court may consider whether the
expert witness' theory or technique: (1) “can be or
has been tested”; (2) “has been subjected to peer
review and publication”; (3) “has a high known or
potential rate of error”; and (4) is generally accepted
“within a relevant scientific community.”
(citing Cooper, 259 F.3d at 199). The
Daubert factors are “neither definitive, nor
exhaustive.” Cooper, 259 F.3d at 199 (citing
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150
(1999)). Rather, “[t]he district court must be granted
‘considerable leeway in deciding in a particular case
how to go about determining whether particular expert
testimony is reliable.' ” United States v.
McLean, No. 16-4673, 2017 WL ...