Immigration Expert Witness Evaluates Damages in Wrongful Death Claim


Immigration Expert WitnessCASE: Novovic v. Greyhound Lines, Inc., 2012 U.S. Dist. LEXIS 9203

BACKGROUND:

Sevdija Novovic, individually, and Sevdija Novovic, Smajlje Srdanovic, and Glenn Zuckerman as Administrators of the Estate of Rama Novovic commenced this action against Greyhound Lines, Inc. and Motor Coach Industries (“MCI”). Plaintiff claims that defendant Greyhound was negligent and engaged in wanton, reckless, and illegal conduct, and that defendant is liable for wrongful death, and that defendant MCI was negligent and liable for wrongful death.

Many issues were challenged in this suit, and among them was the immigration status of the deceased Mr. Novovic. This was a contentious point because if Novovic was in the U.S. illegally and likely to get deported, this would have an enormous effect on the Plaintiffs’ total damages claims, as it would affect his future potential earnings calculation and would require an immigration expert witness. Additionally, a loss of consortium claim was filed by his wife.

Expert Witness:

Plaintiffs claim damages for Roma Novovic’s future lost earnings, and hired an expert economist, Dr. John Burke, whose expert report calculated what Novovic’s lost earnings would likely have been had his life not been tragically ended early. In his report, Dr. Burke used U.S. sources for statistics and calculated the earnings based on U.S. dollar figures.

Daubert Challenge:

Greyhound moved to preclude the expert testimony of Plaintiffs’ retained economist, Dr. John Burke, at trial as irrelevant and unreliable because Mr. Burke’s report only used U.S. statistical data and failed to account for Novovic’s immigration status. Mr. Burke was timely identified by Plaintiffs as an expert on the issue of calculating the lost economic value resulting from Novovic’s death.

Conclusion:

Dr. Burke, being a a Ph.D economist who had testified as an expert many times using the methodology he employed in his report on Mr. Novovic’s lost economic value was accepted by the Court as a qualified expert on these issues. The Court believed that his methodology was generally reliable in its principles and methods, as is required by Federal Rule of Evidence 702. Moreover, the Court believed that the testimony would undoubtedly “assist the trier of fact to understand . . . [facts] in issue” pertaining to Plaintiffs’ damages. Importantly, however, the Court agreed that the deceased Novovic’s immigration status is relevant to rebutting claims of damages for lost future earnings and loss of consortium. Dr. Burke’s report did not appear to have accounted at all for the possibility, which seems likely, that Novovic would not have remained in this country for an extended period of time due to his expired U.S. visa and the deportation proceedings pending against him. Dr. Burke’s oversight in failing to account for the immigration status of Mr. Novovic, and the fact that Novovic may not have been able to earn money in the United States for much longer, may undercut the reliability of his conclusions regarding the earning potential of Mr. Novovic through the end of his life.

The Court ruled that Defendants may introduce the evidence of Novovic’s immigration status on the relevant issues of lost future earnings and loss of consortium. Although it did not affect the admissibility, the weight of Burke’s testimony was to be effected by the oversights listed above regarding Novovic’s immigration status. The Court granted the defendants the opportunity to cross-examine Dr. Burke on his failure to consider this relevant fact bearing on what Mr. Novovic would have been able to earn.

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