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Rozinsky v. Assurance Company of America

United States District Court, D. Maryland

July 21, 2017

VALERY ROZINSKY, Plaintiff,
v.
ASSURANCE COMPANY OF AMERICA, Defendant.

          MEMORANDUM OPINION

          Richard D. Bennett United States District Judge.

         The 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.

         Mr. 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.

         Currently 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.

         STANDARD OF REVIEW

         Rule 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 methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

         “Under 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).

         The 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 ...


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