Preview
Filed 10 November 24 P6:38
Loren J ackson - District Clerk
Harris Coun!
ED101) 016071683
CAUSE NO. 2010-04488 By: angellia Dozier
GERARDO CRUZ IN THE DISTRICT COURT OF
Vv HARRIS COUNTY, TEXAS
CITY MASONRY, INC. 269"
J UDICIAL DISTRICT
PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO EXCLUDE
TESTIMONY OF DR. THOMAS H. MAYOR
TO THE HONORABLE J UDGE OF SAID COURT:
I
Summary of Response
Plaintiff, Gerardo Cruz asks this Honorable Court to deny Defendant City Masonry, Inc.’s
Motion to Exclude the Testimony of Plaintiffs Expert, Dr. Thomas H. Mayor for the following
reasons:
1 Defendant's motion fails to provide the Court with any proper grounds to
exclude orlimit the testimony of Dr. Thomas Mayor.
Dr. Mayor’s opinions and conclusions are reliable and comport in all ways
to the applicable Daubert/Robinson standards for expert testimony.
Defendant's Motion is predicated on its failure to prepare for trial, which
should not be a basis for excluding or limiting the testimony of Mr. Cruz’s
expert witnesses.
I.
Background
Gerardo Cruz's right hand and wrist were crushed on July 21, 2009, when a load of
cement blocks was mishandled by a forklift operator, causing the cement blocks to strike Mr.
Cruz. Mr. Cruz was initially treated by Dr. Walter Lee, a general practitioner that handles mostly
workers compensation related injuries. Mr. Cruz later saw Dr. Kenneth Berliner, a board
certified orthopedic surgeon, when his symptoms failed to heal. After conservative treatment
failed to produce the desired results, Dr. Berliner performed surgery on Mr. Cruz’s wrist. Dr.
Berliner has continued to treat Mr. Cruz for his wrist/hand injury after this surgery.
Doctor Berliner is Mr. Cruz’s treating physician, and is expected to testify at trial about
Mr. Cruz’s medical condition, including any required future care. Dr. Thomas Mayor was timely
designated as an expert economist. Dr. Mayor’s Expert Report and résumé are attached to this
response and Exhibits A and B. Dr. Mayor will testify on Plaintiff's economic losses, including
the valuation of lost earning capacity and future medical care and assistance. Defendant has
not taken the depositions of either Drs. Mayor or Berliner.
Mh.
Doctor Mayor is Imminently Qualified, and His Opinion Is Entirely Reliable
Defendant City Masonry’s motion is wholly without merit. The Defendants do not argue
that Dr. Thomas Mayor is not qualified to testify as an expert in this case. Instead, Defendant's
only argument is that Dr. Mayor’s conclusions in two areas, (1) lost earning capacity, and (2)
future medical care and assistance, do not satisfy various Robinson/Daubert standards due to a
what they believe to be a lack of evidence. Defendant makes absolutely no argument which
would give this Honorable Court grounds to strike Dr. Mayor. Defendants do not agree with Dr.
Mayor's opinions. That is not a proper basis to strike an expert or to file a motion requesting
that a Court strike an expert. All of the issues raised by Defendant City Masonry are relevant to
the weight of the evidence at trial, not admissibility pre-trial.
A Defendant seeks to benefit from its failure to prepare their case for trial.
Defendants have not made any attempt to disqualify Dr. Mayor based upon his
education, training, knowledge or skill. Defendant's only basis for this Court striking the
testimony of Dr. Mayor is that his opinions contain unsubstantiated ultimate conclusions.
Specifically, Defendant argues that Dr. Mayor's opinions on lost earning capacity and future
medical care are speculative because they are “conditioned upon and subject to evidence that
does not exist.”" This is false. Moreover, any assertion by Defendant that Mr. Cruz has no
evidence to prove an element of damages should be addressed in a no-evidence motion for
summary judgment, not a Daubert challenge.
This case is set for trial on January 3, 2011. Defendant's motion is to be heard on
See Defendant’s Motion, page 2.
November 29, 2010. Approximately one month from trial of this case, and with the holidays in
the meantime, Defendant has yet to take the depositions of Gerardo Cruz’s treating physician,
Dr. Berliner, or his expert witness, Dr. Thomas Mayor. Nor has Defendant issued Notice for
such a deposition. Plaintiff intends to call both these witnesses live at the courthouse in front of
the jury.
Defendant's motion argues that Dr. Mayor's testimony concerning lost earning capacity
and future medical care are not reliable because there is no evidence that Mr. Cruz lost any
earning capacity or will require future medical care. This is misleading. Dr. Berliner will testify
as to the manner in which Mr. Cruz's injuries affected his ability to work in the past and, within
reasonable probability, the manner they will affect his ability to work in the future. Also, as
Gerardo’s treating physician, Dr. Berliner will testify as to the future care Mr. Cruz will require.
Dr. Mayor is not a physician, and cannot testify under Robinson as to the necessity for
future care, or the medical impairment Mr. Cruz will suffer in the future. Defendant's motion
seems to argue that they expected Dr. Mayor to do so. What Dr. Mayor will testify about is the
economic impact these issues will have on Mr. Cruz.
Dr. Mayor’s expert testimony will help the jury understand the difference in valuation and
calculation of future dollars into present day amounts. These are complex calculations that
require specialized training and education to understand fully. Dr. Mayor's testimony will allow
the jury to better develop the proper award of damages in this case. Excluding Dr. Mayor's
testimony would only cause confusion to the jury. Indeed, economists have become a standard
in trials where future damages are in contest because of their efficacy in explaining to juries the
issues of valuation of future costs. While Defendant's motion may contain some issues for a
cross examination, it does not provide the court with any basis for excluding or limiting the
testimony of Dr. Mayor. As such, Mr. Cruz asks the Court to deny Defendant's Motion to
Exclude Dr. Mayor.
B Dr. Mayor's conclusions on Mr. Cruz’s lost earning capacity are reliable.
Defendant's motion does not attack the actual calculations Dr. Mayor used to determine
Mr. Cruz's lost earning capacity, but instead relies upon the improper “no-evidence” argument
as discussed supra. There is evidence in this case that Mr. Cruz suffered and will continue
suffer a loss of earning capacity. Gerardo Cruz, Dr. Berliner and Mr. Cruz’s other treating
physicians will testify as to the time off work Mr. Cruz missed due to his injuries. Also, Dr.
Berliner will testify as to the medical impairment Mr. Cruz has suffered and will continue to suffer
in the future due to his injuries.
Dr. Mayor is qualified to give expert opinions on economic damages, including loss of
earning capacity. Dr. Mayor has performed the proper reliable calculations for such valuations.
Dr. Mayor can reliably testify based upon the testimony of Dr. Berliner and Gerardo Cruz the
amount of lost earning capacity Mr. Cruz suffered due to his injuries. These opinions are based
upon the economic science, his background therein, and the facts of this case. Defendant has
offered the Court no basis for excluding Dr. Mayor’s testimony on Gerardo Cruz’s loss of
earning capacity. Mr. Cruz therefore asks the Court deny Defendant's Motion to Exclude Dr.
Mayor's testimony on these issues.
Cc Dr. Mayor's conclusions on the costs of Mr. Cruz’s future medical care and/or
assistance are reliable.
Again, Defendant's motion does not attack the actual calculations Dr. Mayor used to
value future medical care, but instead relies upon the improper “no-evidence” argument as
discussed supra. Dr. Mayor's calculations on future medical care are subject to the testimony of
Gerardo’s treating physician. As Dr. Mayor himself states on page three of his report, “As an
economist| naturally have no medical opinions as to what level of care may be required.” (Ex.
A). What Dr. Mayor does testify to is the present day value of any medical care required in the
future. Using the calculations which Defendant does not question, Dr. Mayor is able to testify to
the jury that for each $1,000 a year Gerardo Cruz will require in future medical care, the
necessary present day value would be approximately $46,745. This expert testimony is vital in
educating a lay juror about the complex nature of future damages. Defendant has offered the
Court no basis for excluding Dr. Mayor's testimony on future medical care, and doing so would
only complicate the trial of this case and confuse the jury.
NV.
In the Alternative, the Defendant Did Not Request a Formal Gatekeeper Hearing
Plaintiff Hereby Requests a Formal Gatekeeper Hearing
Alternatively, a formal gatekeeper hearing under TRE 104 has not yet been set by the
Court. Gerardo Cruz intends to call both Drs. Mayor and Berliner live at trial. Gerardo Cruz
requests the Court schedule a formal gatekeeper hearing under TRE 104, at which time Mr.
Cruz will provide the testimony of expert Thomas Mayor to rebut the objections filed by
Defendant. This case is set for trial on J anuary 3, 2010. Mr. Cruz requests the Court schedule
this gatekeeper hearing before trial.
V.
Conclusion and Prayer
Defendant's Motion to Exclude the Testimony of Dr. Thomas Mayor is wholly without
merit. The arguments Defendant makes are not properly brought in a Daubert/Robinson
Motion, but should be made, if at all, in a no-evidence motion for summary judgment.
Defendant's arguments might be are relevant to the weight of the evidence, but are not relevant
to the admissibility of expert testimony. Moreover, all of Dr. Mayor's calculations, opinions, and
conclusions are entirely reliable under the Daubert/Robinson standards. As such, Mr. Cruz
asks the Court to deny Defendant's Motion in its entirety.
WHEREFORE, Plaintiff Gerardo Cruz prays that the Court, upon hearing this Motion,
overrule Defendant's Daubert/Robinson Objections and deny Defendant’s Motion to Exclude
Testimony of Plaintiffs Expert, Dr. Thomas H. Mayor. A proposed order is attached for the
Court's consideration.
Respectfully submitted,
VUJ ASINOVIC & BECKCOM, PLLC
/s/ Vuk S. Vujasinovic
~a----—- +
VUK S. VUJ ASINOVIC
SBN: 00794800
1001 Texas Avenue, Suite 1020
Houston, Texas 77002
713.224.7800
713.224.7801 Fax
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
The undersigned authority hereby certifies that a true and correct copy of the foregoing
instrument has been served upon all counsel of record via certified mail, return receipt
requested, facsimile and/or hand delivery on this 24" day of October, 2010.
/s/ Vuk S. Vujasinovic
~a--—--------
VUK S. VUJ ASINOVIC
Preview
Filed 10 November 24 P6:38 Loren J ackson - District Clerk Harris Coun! ED101) 016071683 CAUSE NO. 2010-04488 By: angellia Dozier GERARDO CRUZ IN THE DISTRICT COURT OF Vv HARRIS COUNTY, TEXAS CITY MASONRY, INC. 269" J UDICIAL DISTRICT PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO EXCLUDE TESTIMONY OF DR. THOMAS H. MAYOR TO THE HONORABLE J UDGE OF SAID COURT: I Summary of Response Plaintiff, Gerardo Cruz asks this Honorable Court to deny Defendant City Masonry, Inc.’s Motion to Exclude the Testimony of Plaintiffs Expert, Dr. Thomas H. Mayor for the following reasons: 1 Defendant's motion fails to provide the Court with any proper grounds to exclude orlimit the testimony of Dr. Thomas Mayor. Dr. Mayor’s opinions and conclusions are reliable and comport in all ways to the applicable Daubert/Robinson standards for expert testimony. Defendant's Motion is predicated on its failure to prepare for trial, which should not be a basis for excluding or limiting the testimony of Mr. Cruz’s expert witnesses. I. Background Gerardo Cruz's right hand and wrist were crushed on July 21, 2009, when a load of cement blocks was mishandled by a forklift operator, causing the cement blocks to strike Mr. Cruz. Mr. Cruz was initially treated by Dr. Walter Lee, a general practitioner that handles mostly workers compensation related injuries. Mr. Cruz later saw Dr. Kenneth Berliner, a board certified orthopedic surgeon, when his symptoms failed to heal. After conservative treatment failed to produce the desired results, Dr. Berliner performed surgery on Mr. Cruz’s wrist. Dr. Berliner has continued to treat Mr. Cruz for his wrist/hand injury after this surgery. Doctor Berliner is Mr. Cruz’s treating physician, and is expected to testify at trial about Mr. Cruz’s medical condition, including any required future care. Dr. Thomas Mayor was timely designated as an expert economist. Dr. Mayor’s Expert Report and résumé are attached to this response and Exhibits A and B. Dr. Mayor will testify on Plaintiff's economic losses, including the valuation of lost earning capacity and future medical care and assistance. Defendant has not taken the depositions of either Drs. Mayor or Berliner. Mh. Doctor Mayor is Imminently Qualified, and His Opinion Is Entirely Reliable Defendant City Masonry’s motion is wholly without merit. The Defendants do not argue that Dr. Thomas Mayor is not qualified to testify as an expert in this case. Instead, Defendant's only argument is that Dr. Mayor’s conclusions in two areas, (1) lost earning capacity, and (2) future medical care and assistance, do not satisfy various Robinson/Daubert standards due to a what they believe to be a lack of evidence. Defendant makes absolutely no argument which would give this Honorable Court grounds to strike Dr. Mayor. Defendants do not agree with Dr. Mayor's opinions. That is not a proper basis to strike an expert or to file a motion requesting that a Court strike an expert. All of the issues raised by Defendant City Masonry are relevant to the weight of the evidence at trial, not admissibility pre-trial. A Defendant seeks to benefit from its failure to prepare their case for trial. Defendants have not made any attempt to disqualify Dr. Mayor based upon his education, training, knowledge or skill. Defendant's only basis for this Court striking the testimony of Dr. Mayor is that his opinions contain unsubstantiated ultimate conclusions. Specifically, Defendant argues that Dr. Mayor's opinions on lost earning capacity and future medical care are speculative because they are “conditioned upon and subject to evidence that does not exist.”" This is false. Moreover, any assertion by Defendant that Mr. Cruz has no evidence to prove an element of damages should be addressed in a no-evidence motion for summary judgment, not a Daubert challenge. This case is set for trial on January 3, 2011. Defendant's motion is to be heard on See Defendant’s Motion, page 2. November 29, 2010. Approximately one month from trial of this case, and with the holidays in the meantime, Defendant has yet to take the depositions of Gerardo Cruz’s treating physician, Dr. Berliner, or his expert witness, Dr. Thomas Mayor. Nor has Defendant issued Notice for such a deposition. Plaintiff intends to call both these witnesses live at the courthouse in front of the jury. Defendant's motion argues that Dr. Mayor's testimony concerning lost earning capacity and future medical care are not reliable because there is no evidence that Mr. Cruz lost any earning capacity or will require future medical care. This is misleading. Dr. Berliner will testify as to the manner in which Mr. Cruz's injuries affected his ability to work in the past and, within reasonable probability, the manner they will affect his ability to work in the future. Also, as Gerardo’s treating physician, Dr. Berliner will testify as to the future care Mr. Cruz will require. Dr. Mayor is not a physician, and cannot testify under Robinson as to the necessity for future care, or the medical impairment Mr. Cruz will suffer in the future. Defendant's motion seems to argue that they expected Dr. Mayor to do so. What Dr. Mayor will testify about is the economic impact these issues will have on Mr. Cruz. Dr. Mayor’s expert testimony will help the jury understand the difference in valuation and calculation of future dollars into present day amounts. These are complex calculations that require specialized training and education to understand fully. Dr. Mayor's testimony will allow the jury to better develop the proper award of damages in this case. Excluding Dr. Mayor's testimony would only cause confusion to the jury. Indeed, economists have become a standard in trials where future damages are in contest because of their efficacy in explaining to juries the issues of valuation of future costs. While Defendant's motion may contain some issues for a cross examination, it does not provide the court with any basis for excluding or limiting the testimony of Dr. Mayor. As such, Mr. Cruz asks the Court to deny Defendant's Motion to Exclude Dr. Mayor. B Dr. Mayor's conclusions on Mr. Cruz’s lost earning capacity are reliable. Defendant's motion does not attack the actual calculations Dr. Mayor used to determine Mr. Cruz's lost earning capacity, but instead relies upon the improper “no-evidence” argument as discussed supra. There is evidence in this case that Mr. Cruz suffered and will continue suffer a loss of earning capacity. Gerardo Cruz, Dr. Berliner and Mr. Cruz’s other treating physicians will testify as to the time off work Mr. Cruz missed due to his injuries. Also, Dr. Berliner will testify as to the medical impairment Mr. Cruz has suffered and will continue to suffer in the future due to his injuries. Dr. Mayor is qualified to give expert opinions on economic damages, including loss of earning capacity. Dr. Mayor has performed the proper reliable calculations for such valuations. Dr. Mayor can reliably testify based upon the testimony of Dr. Berliner and Gerardo Cruz the amount of lost earning capacity Mr. Cruz suffered due to his injuries. These opinions are based upon the economic science, his background therein, and the facts of this case. Defendant has offered the Court no basis for excluding Dr. Mayor’s testimony on Gerardo Cruz’s loss of earning capacity. Mr. Cruz therefore asks the Court deny Defendant's Motion to Exclude Dr. Mayor's testimony on these issues. Cc Dr. Mayor's conclusions on the costs of Mr. Cruz’s future medical care and/or assistance are reliable. Again, Defendant's motion does not attack the actual calculations Dr. Mayor used to value future medical care, but instead relies upon the improper “no-evidence” argument as discussed supra. Dr. Mayor's calculations on future medical care are subject to the testimony of Gerardo’s treating physician. As Dr. Mayor himself states on page three of his report, “As an economist| naturally have no medical opinions as to what level of care may be required.” (Ex. A). What Dr. Mayor does testify to is the present day value of any medical care required in the future. Using the calculations which Defendant does not question, Dr. Mayor is able to testify to the jury that for each $1,000 a year Gerardo Cruz will require in future medical care, the necessary present day value would be approximately $46,745. This expert testimony is vital in educating a lay juror about the complex nature of future damages. Defendant has offered the Court no basis for excluding Dr. Mayor's testimony on future medical care, and doing so would only complicate the trial of this case and confuse the jury. NV. In the Alternative, the Defendant Did Not Request a Formal Gatekeeper Hearing Plaintiff Hereby Requests a Formal Gatekeeper Hearing Alternatively, a formal gatekeeper hearing under TRE 104 has not yet been set by the Court. Gerardo Cruz intends to call both Drs. Mayor and Berliner live at trial. Gerardo Cruz requests the Court schedule a formal gatekeeper hearing under TRE 104, at which time Mr. Cruz will provide the testimony of expert Thomas Mayor to rebut the objections filed by Defendant. This case is set for trial on J anuary 3, 2010. Mr. Cruz requests the Court schedule this gatekeeper hearing before trial. V. Conclusion and Prayer Defendant's Motion to Exclude the Testimony of Dr. Thomas Mayor is wholly without merit. The arguments Defendant makes are not properly brought in a Daubert/Robinson Motion, but should be made, if at all, in a no-evidence motion for summary judgment. Defendant's arguments might be are relevant to the weight of the evidence, but are not relevant to the admissibility of expert testimony. Moreover, all of Dr. Mayor's calculations, opinions, and conclusions are entirely reliable under the Daubert/Robinson standards. As such, Mr. Cruz asks the Court to deny Defendant's Motion in its entirety. WHEREFORE, Plaintiff Gerardo Cruz prays that the Court, upon hearing this Motion, overrule Defendant's Daubert/Robinson Objections and deny Defendant’s Motion to Exclude Testimony of Plaintiffs Expert, Dr. Thomas H. Mayor. A proposed order is attached for the Court's consideration. Respectfully submitted, VUJ ASINOVIC & BECKCOM, PLLC /s/ Vuk S. Vujasinovic ~a----—- + VUK S. VUJ ASINOVIC SBN: 00794800 1001 Texas Avenue, Suite 1020 Houston, Texas 77002 713.224.7800 713.224.7801 Fax ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE The undersigned authority hereby certifies that a true and correct copy of the foregoing instrument has been served upon all counsel of record via certified mail, return receipt requested, facsimile and/or hand delivery on this 24" day of October, 2010. /s/ Vuk S. Vujasinovic ~a--—-------- VUK S. VUJ ASINOVIC