IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KRISTIN PEREZ HAINES : CIVIL ACTION

:

V. :

:

RODNEY GENE LEE and : NO: 02-CV-4432

NORTHSTAR TRUCKING SERVICES, INC. :

PLAINTIFF’S RESPONSE TO DEFENDANT’S 

MOTION IN LIMINE, OR IN THE ALTERNATIVE, REQUEST

FOR A DAUBERT HEARING, TO PRECLUDE THE TESTIMONY

OF DAVID L. HOPKINS, ABA, MAA

Plaintiff, Kristin Perez Haines, by and through her attorneys, Law Offices of Gregg R.

Durlofsky, PC, responds to defendants Motion in Limine, or in the Alternative, Request for a

Daubert Hearing, to Preclude the Testimony of David L. Hopkins, ABA, MAA, as follows:

1. Admitted in Part/ Denied in Part. It is admitted that Plaintiff filed a complaint

against Rodney Gene Lee on July 3, 2002. The remaining allegations of this

paragraph are denied as Plaintiff filed an Amended Complaint on August 1, 2002

naming Defendant Northstar Trucking Services, Inc in addition to Rodney Gene

Lee in this matter.

2. Denied. Plaintiff’s Complaint is a legal document which speaks fully on its face.

3. Admitted in Part/ Denied in Part. It is admitted that Plaintiff retained David L.

Hopkins’ to testify regarding loss of earning capacity. Plaintiff denies any inference

that Mr. Hopkins’ testimony is limited to loss of earning capacity as Mr. Hopkins

report addresses loss of fringe benefits and household services as well. see Exhibit

A..

4. Denied. David L. Hopkins’ report attached hereto as Exhibit “A” is a legal

Case 2:02-cv-04432-BWK Document 25 Filed 06/16/2003 Page 1 of 9
document which speaks fully on it face.

5. Denied. David L. Hopkins’ report attached hereto as Exhibit “A” is a legal

document which speaks fully on it face. By way of further response, but in no way

waiving any prior denial, David L. Hopkins relies upon the Vocational Report of

Donald E. Jennings, Ed.d which indicated an appropriate level of Lost Earning

Capacity for Ms. Perez Haines to be $8.00 per hour. Further Dr. Jennings

indicates that Ms. Perez Haines would have an alternative level of earning

capacity based upon average earnings as a Certified Nursing Assistant at $9.90 per

hour. This amount was determined upon reliance upon the Pennsylvania

Occupational Wages (Lancaster County Work Force Investment Area) by the

Pennsylvania Department of Labor & Industry. See Exhibit 2, p. 10. Further,

David Hopkins relied upon the “Consumer Income” report of the U.S. Department

of Commerce in his calculation of Ms. Haines past and future lost wages. See

Exhibit A, p.3.

6. Denied. Denied. David L. Hopkins’ report attached hereto as Exhibit “A” is a

legal document which speaks fully on it face. By way of further response, but in no

way waiving any prior denial, David L. Hopkins relies upon the Vocational Report

of Donald E. Jennings, Ed.d which indicated an appropriate level of Lost Earning

Capacity for Ms. Perez Haines to be $8.00 per hour. Further Dr. Jennings

indicates that Ms. Perez Haines would have an alternative level of earning

capacity based upon average earnings as a Certified Nursing Assistant at $9.90 per

hour. This amount was determined upon reliance upon the Pennsylvania

Occupational Wages (Lancaster County Work Force Investment Area) by the

Case 2:02-cv-04432-BWK Document 25 Filed 06/16/2003 Page 2 of 9
Pennsylvania Department of Labor & Industry. See Exhibit 2, p. 10. Further,

David Hopkins relied upon the “Consumer Income” report of the U.S. Department

of Commerce in his calculation of Ms. Haines past and future lost wages. See

Exhibit A, p.3.

7. Admitted in Part/Denied in Part. It is specifically denied Plaintiff’s last worked as

Certified Nursing Assistant in July 2000 and her wages were 8.50/hr. Plaintiff last

worked as a Certified Nursing Assistant at a rate of $15.00 per hour. See Exhibit

C, p.31, l.23. Plaintiff’s W-2's are legal documents which speak fully on their face

and these allegation are Denied. It is admitted that Plaintiff did not make $19,000

or more per year as a Certified Nursing Assistance. By way, of further response,

Ms. Haines was 20 years of age at the time of this incident, having graduated highschool in 1998.. 

9. (sic) Denied. Plaintiff’s tax returns are legal documents which speak fully on

their face.

10. Denied. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct.

2786, 2795 (1993), is a legal opinion which speaks fully on its face.

11. Denied. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct.

2786, 2795 (1993), is a legal opinion which speaks fully on its face.

12. Denied. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct.

2786, 2795 (1993), is a legal opinion which speaks fully on its face.

13. Denied. Elcock v. Kmart Corp., 233 F.3d 734,754 (3rd Cir. 2000) is a legal

opinion which speaks fully on its face.

14. Denied. It is specifically denied that Plaintiff’s earning capacity are not supported

Case 2:02-cv-04432-BWK Document 25 Filed 06/16/2003 Page 3 of 9
by Plaintiff’s prior earning history and therefore the methodology used to

formulate Dr. Hopkins conclusions is flawed.

15. Denied. As a conclusion of law to which no response or pleading is required.

16. Denied. It is specifically denied that David Hopkins should be precluded from

testifying at the time of the trial.

17. Denied. As a conclusion of law to which no response or pleading is required.

WHEREFORE, Plaintiff, Kristin Perez Haines, requests this Court to deny Defendants,

Motion in Limine to preclude the testimony of or the Alternative to Request a Daubert hearing

regarding the proposed testimony of David L. Hopkins, ABA, MAA.

LAW OFFICES OF GREGG R. DURLOFSKY

BY: _________________________________

Gregg R. Durlofsky, Esquire

I.D.# 66253

111 W. Germantown Pike

Plymouth Meeting, PA 19462

610-834-9483

Attorney for Plaintiff

Case 2:02-cv-04432-BWK Document 25 Filed 06/16/2003 Page 4 of 9
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KRISTIN PEREZ HAINES : CIVIL ACTION

:

v. :

:

RODNEY GENE LEE and : NO: 02-CV-4432

NORTHSTAR TRUCKING SERVICES, INC. :

MEMORANDUM OF LAW IN SUPPORT OF

PLAINTIFF’S RESPONSE TO DEFENDANT’S REQUEST FOR A

DAUBERT HEARING OR IN THE ALTERNATIVE TO PRECLUDE

THE TESTIMONY OF DAVID L. HOPKINS, ABA, MAA

Plaintiff, Kristin Perez Haines, by and through her attorneys, Law Offices of Gregg R.

Durlofsky, PC, responds to defendants Motion in Limine, and in support thereof avers as follows:

I. Procedural and Factual History

This case arises out of a motor vehicle accident of August 3, 2000 in Mount Joy,

Pennsylvania. Plaintiff, Kristin Perez Haines, was rear-ended by the tractor trailer being driven by

Rodney Gene Lee while in the course and scope of his employment with Northstar Trucking

Services. As a result of this incident, Carl Goodman, M.D. has opined that Plaintiff is unable to

work. See Exhibit B, pg.4.

II. The Methodology used by Hopkins in not flawed and Hopkins’ testimony is admissible.

 In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 2795

(1993), yes the Supreme Court held that under rule 402 of The Federal Rules of Evidence the

Trial Judge must be sure that any and all scientific testimony or evidence admitted is not only

relevant but reliable. The presentation of Daubert’s gate keeping requirement has resulted in the

recognition of several well defined factors which determining the admissibility of expert evidence. 

Specifically in determinating whether the pre-offered opinion is sufficiently reliable in its

Case 2:02-cv-04432-BWK Document 25 Filed 06/16/2003 Page 5 of 9
admission to evidence the Court must consider factors including the following:

i. Whether the method consists of testable hypothesis;

ii. whether the method has been subject to Peer Review;

iii. the known or the potential rate of error for the existence and maintenance of

standards controlling the technique operation;

iv. whether the method is generally accepted;

v. the relationship of the techniques two methods which have been established to be

reliable;

vi. the qualifications of the expert witness testifying based upon the methodology;

vii. The non-judicial uses to which the method has been put.

 In re: TMI Litigation Cases Consolidated II 911 F. Sub 775, 787 MD, PA 1996.

Mathematical exactness is not required for testimony regarding post injury earning capacity, but

said testimony must be based upon proper factual foundation. Benjamin v. Peter’s condominium

owner’s, 820 F.2d 640, 643 (3d Cir. 1987).

The defense’s sole assertion in this Motion is that Hopkins relied upon assumptions of

Plaintiff’s earnings that were not supported by the records and that were not supported by

Plaintiff’s prior earning history. However, though the defense acknowledges that Plaintiff was a

licensed certified nursing assistant, they fail to site Hopkins sources in determining Plaintiff loss 

wage potential. 

David L. Hopkins relies upon the Vocational Report of Donald E. Jennings, Ed.d which

indicates an level of Lost Earning Capacity for Ms. Perez Haines to be $8.00 per hour. This

hourly figure was based upon the hourly wage for employment that was obtained by Ms. Haines

prior to this incident. A Plaintiff’s prior per hour wage rate has been indicated to be probative and

Case 2:02-cv-04432-BWK Document 25 Filed 06/16/2003 Page 6 of 9
a basis for a loss earnings calculations. Elcott v. Kmart Corporation, 233 F.3d 734 (3rd Cir. 2000)

Further Dr. Jennings indicates that Ms. Perez Haines would have an alternative level of earning

capacity based upon average earnings as a Certified Nursing Assistant at $9.90 per hour. This

alternative amount was determined upon reliance upon the Pennsylvania Occupational Wages

(Lancaster County Work Force Investment Area) by the Pennsylvania Department of Labor & 

Industry. See Exhibit 2, p. 10. Ms. Haines is a resident of Lancaster County, Pennsylvania.

Additionally, Jennings relied upon Haines Social Security Records demonstrating wages in the

amount of $12,862.00 for an incomplete year of work as a Certified Nursing Assistant in

formulating his opinions. See Exhibit B, p.3,& Exhibit D. Further Jennings utilized a battery of

eleven vocational test in formulating his opinion. See Exhibit B, p.2. 

Further, David Hopkins relied upon the “Consumer Income” Report of the U.S.

Department of Commerce in his calculation of Ms. Haines past and future lost wages. See Exhibit

A, p.3. These numbers utilized in the US Labor Market report were for female high school

graduates in the US Labor Market employed as certified nursing aids. In summary, Dr. Hopkins

methodology in establishing plaintiffs past and future lost earnings is reliable, based upon

extensive testing, vocational and medical opinions, and accepted standards. 

Finally, the Court in Padillas v. Stork-Gameco, Inc. ., 186 F.3rd at 417 the Court stated

they had long stressed the importance of in limine hearings under Daubert. The Court in Padillas

goes on to state given the complex factual inquiry required by Daubert, Courts will be hard

pressed in all but the most clear cut cases to gauge the reliability of an expert of expert proof on a

truncated record. Padillas v. Stork-Gamco, Inc., 186 F.3rd at 418. The Court in Padillas reversed

the decision of the trial court which has excluded plaintiffs expert in a products liability case

finding that the trial abused its discretion by granting the defendants Daubert Motion in the

Case 2:02-cv-04432-BWK Document 25 Filed 06/16/2003 Page 7 of 9
absence of a hearing, relying solely upon the experts report. 

WHEREFORE, Plaintiff, respectfully requests that Defendants Motion in Limine to

exclude the testimony of David L. Hopkins, ABA, MAA be denied with prejudice.

LAW OFFICES OF GREGG R. DURLOFSKY

By:_________________________________

 Gregg R. Durlofsky, Esquire

 Attorney for Plaintiff

Dated:

Case 2:02-cv-04432-BWK Document 25 Filed 06/16/2003 Page 8 of 9
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KRISTIN PEREZ HAINES : CIVIL ACTION

:

v. :

:

RODNEY GENE LEE and : NO: 02-CV-4432

NORTHSTAR TRUCKING SERVICES, INC. :

CERTIFICATE OF SERVICE

I, Gregg R. Durlofsky, hereby certify that I have forwarded a true and correct copy of

Plaintiff’s Response to Defendant’s Motion in Limine, or in the Alternative, Request For a

Daubert Hearing, to Preclude the Testimony of David L. Hopkins, ABA, MAA by first class mail,

postage prepaid on the date shown below to the following interested counsel:

Timothy Abeel,Esquire

Dawn Jennings, Esquire

The Widener Building

One South Penn Square

Philadelphia, PA 19107

LAW OFFICES OF GREGG R. DURLOFSKY

By:_________________________________

 Gregg R. Durlofsky, Esquire

 Attorney for Plaintiff

Dated:

Case 2:02-cv-04432-BWK Document 25 Filed 06/16/2003 Page 9 of 9