Walkowicz Shea v. Kalahari Resorts & Conventions - Poconos et al

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NATASHA WALKOWICZ SHEA,
Plaintiff,
V.
KALAHARI RESORTS &
CONVENTIONS - POCONOS, and
KALAHARI RESORTS PA, LLC, and
KALAHARI RESORTS, LLC,
Defendants.
3:23-CV-814
(JUDGE MARIANI)
MEMORANDUM OPINION
Before the Court is Defendants ' motion in limine. (Doc. 48). 	In its motion,
Defendants seek to preclude Plaintiff Natasha Walkowicz Shea from offering any testimony
from her economic loss experts John W. Dieckman , MS, CRC , CDMC and Andrew C.
Verzilli, MBA. (Doc. 48 at 2-5). 	Plaintiff opposes Defendants' motion. 	(Doc. 50). 	On
February 18 , 2026 , the Court held a Daubert hearing to address the pending motion. 	For
the reasons tha t follow, Defendants ' motion will be granted in part and denied in part.
I. 	FACTUAL BACKGROUND
In the motion, Defendants claim that both of Plaintiffs economic loss experts'
testimony relies entirely on speculation and hearsay and is therefore inadmissible.
Specifically, "nowhere in either expert 's report is there an indication that any independent
invest igation or analysis was perfo rmed by either expert with regard to verifying the
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speculative statement made by Plaint iff that he r fall was the cause of her employer school
district not renewing her contract. Therefore , based upon the facts presented and the law in
this matter, the economic testimony as to alleged future loss of earnings and loss of
earnings capac ity should be precluded." (Doc. 48 at 2-5) . In contrast , Plaint iff cla ims that
Mr. Dieckman 's and Mr. Verzilli opinions are not speculative . Rather, Pla intiff asserts that
the opinions are admissible under the liberal Daubert standard and are relevant to Plaintiffs
cla im of damages under Pennsylvania law. 	(Doc . 50 at 5-10).
Expert Report of John W. Dieckman
In his report, Mr. Dieckman , a vocationalist , purports to "provide an opinion regarding
the vocational prospects and the economic loss suffered by Dr. Shea because of injuries
sustained in medical malpractice accident." 1 (Doc. 50-3 at 2). "For purposes of this
assessment I reviewed several medical and related reports , cited below. 	I was also able to
conduct an interview and assessment with Dr. Shea . The interview took place by Zoom on
8/13/24. 	I followed up with her by phone on 10/15//23 [sic] to update information regarding
her employment and med ical condition." (Id .).
In addition , Mr. Dieckman reviewed the following records: 	(1) the complaint; (2) St.
Anthony Community Hospital, emergency room records; (3) MRI spine, 12/29/23; (4)
medical records from severa l physicians; (5) the independent medical examination of Dr.
Contrary to Mr. Dieckma n's assertions , this is a prem ises liab ility case , not a medical ma lpractice
case . At the Daubert hearing , Mr . Dieckman recogn ized and corrected th is descriptive error .
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Nirav Shah; (6) Dr . Shea's CV and tax returns from 2022-23 ; (7) Port Jervis City School
District documents , including a PTO summary for Dr. Shea, the employee agreement for Dr.
Shea, and administrative evaluations for Dr. Shea from 2022-2023 and 2023-24; (8)
pension estimate for Dr. Shea, retiring in 2030; and (9) a paystub of Natasha Shea dated
8/2/24. (Id . at 6).
Mr. Dieckman set forth his conclusions as follows:
Natasha Shea was injured in a slip and fall accident on 3/11/23. 	As a result of this
injury , she had difficulty completing tasks of her position as Assistant Superintended
for Instruction for Port Jervis City School District.
It is the opinion of Dr. Shah that these injuries are permanent and that they will reduce
her expected work life.
She is currently under contract for an additional 2 years. Her contract has not been
renewed and her expectation is that she will lose this position within 2 years.
Two alternatives regarding future wage loss are presented. 	The first is the difference
in pension between completion of 25 years of service versus 30 years of service, which
is full pension. 	That will result in annual loss of pension calculated at $66,625. 	Over
her remaining lifetime, this loss is calculated at $1,753,570.
An alternative considers that she will be unable to continue in her current role beyond
2 years and will be forced to find alternative employment. 	In this alternative scenario,
she will suffer an annual loss of earnings calculated at $96,695 . Over 16.12 years of
expected work life , her losses in this scenario are calculated at $1 ,558,723.
It is my professional opinion that Natasha Shea , as a result of the slip and fall accident
on 3/11/23 , will suffer a loss of future earnings capacity between $1,558,723 and
$1 , 753,570.
(Id. at 12-13) (emphasis in original).
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Expert Report of Andrew Verzilli
Mr. Verzilli has an MBA and is being offered as an expert in economics and intends
to testify regarding Plaintiff's lost earnings capacity. According to Mr. Verzilli's report, he
reviewed: 	(1) the complaint; (2) Mr. Dieckman's vocational report; (3) 2023 Income Tax
Return; (4) Employment Agreement of 7/18/24; (5) Pension Benefits Profile from NYSTRS;
(6) NYSTRS Pension estimates; (7) Dr. Shah's expert medical report; (8) the deposition of
plaintiff; and (9) "various publications/source documents (as cited)." (Doc. 50-4 at 1). 	Mr.
Verzilli will opine that Plaintiff's estimated loss in earnings capacity ranges from $1,610,523
to $2,144,953. 	(Doc. 50-4 at 5). 	Defendants' principal issue with the testimony of Mr.
Verzilli is that such testimony is speculative because it wrongly relies on Mr. Dieckman's
vocational report. 	(Doc. 48).
II. 	ANALYSIS
Federal Rule of Evidence 702 governs the admissibility of expert witnesses. 	It
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 the proponent
demonstrates to the court that it is more likely than not that:
(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's opinion reflects a reliable application of the principles and methods to
the facts of the case.
Fed. R. Evid. 702.
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"Rule 702 embodies a trilogy of restrictions on expert testimony: 	qualification,
reliability, and fit." Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir .
2003) (citing In re Paoli R.R Yard PCB Litig., 35 F.3d 717, 741-43 (3d Cir. 1994)). Rule 702
has a "liberal policy of admissibility ." Pineda v. Ford Motor Co ., 520 F.3d 237, 243 (3d Cir.
2008) (internal citation and quotation marks omitted) . Accordingly, the "rejection of expert
testimony is the exception and not the rule." Dorman Prods. v. PACCAR, Inc., 201 F. Supp.
3d 663, 686 (E.D. Pa . 2016). The party offering the expert must prove each of these
requirements by a preponderance of the evidence. 	In re TM/ Litig., 193 F.3d 613,663 (3d
Cir. 1999); accord Fed. R. Evid. 702.
A. Qualification of Plaintiff's Economic Loss Experts.
"Qualifications refers to the requirement that the witness possess specialized
expertise." Schneider ex. Rel. Estate of Schneider, 320 F.3d at 404. To qualify as an
expert, Rule 702 requires the witness to have "specialized knowledge regarding the area of
testimony." Betterbox Commc 'ns Ltd. v. BB Techs ., Inc ., 300 F.3d 325, 335 (3d Cir. 2002).
The Third Circuit has instructed district courts to interpret the qualification requirement
"liberally" and not to insist on a particular kind of degree or background when evaluating the
qualifications of an expert. 	Waldorfv. Shuta, 142 F.3d 601,625 (3d Cir. 1998); see also
Pineda, 520 F.3d at 244 ("We have interpreted Rule 702's qualification requirement
liberally.").
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Mr. Dieckman has been a licensed vocationalist since 1983 . He has been qualified
as an expert vocationalist numerous times in both state and federal courts. 	Hr'g Tr. at
29 :16-32:1. Mr. Verzilli is an economist who holds an MBA and has also been qualified as
an economics expert in both state and federal court. 	Hr'g Tr. at 21 :16-22:23; 67:17-68:3.
Based on the testimony at the Daubert hearing , the Court finds that both Mr. Dieckman and
Mr. Verzilli satisfy Rule 702's liberal qualification standards and are therefore qualified to
offer their opinions in this case, with the limitations on Mr. Dieckman's testimony as stated
later herein.
B. 	Reliability of Plaintiff's Economic Loss Experts.
An expert's testimony is reliable if it "is based on the methods and procedures of
science rather than on subjective belief or unsupported speculation." Schneider ex rel .
Estate of Schneider, 320 F.3d at 404 (internal citation and quotation marks omitted). "Yet
admissibility is not based on whether an expert's opinion has the best foundation, or even
whether the opinion is supported by the best methodology or unassailable research.
Rather, the court looks to whether the expert's testimony is supported by good grounds."
UGI Sunbury, LLC v. A Permanent Easement for 1.7575 Acres , 949 F.3d 825, 834 (3d Cir.
2020) (internal citation and quotation marks omitted). "This inquiry applies to all aspects of
an expert's testimony: the methodology, the facts underlying the expert's opinion, and the
link between the facts and the conclusion." 	Cohen v. Cohen, 125 F.4th 454, 462 (3d Cir.
2025) (internal citation and quotation marks omitted).
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To determine whether the expert's testimony is supported by "good grounds,"
Daubert's reliability analysis requires a court to consider, among other things: 	"(1) whether
a method consists of a testable hypothesis; (2) whether the method has been subjected to
peer review; (3) the known or potential rate of error; (4) the existence and maintenance of
standards controlling the technique's operation; (5) whether the method is generally
accepted; (6) the relationship of the technique to methods which have been established to
be reliable; (7) the qualifications of the expert witness testifying based on the methodology;
and (8) the non-judicial uses to which the methods have been put." In re Paoli, 35 F.3d at
742 n.8. "However, Daubert did not set out a definitive checklist or test, and no single factor
was deemed dispositive." Mercurio v. Louisville Ladder, Inc., 2018 WL 4088059, at *4 (M.D.
Pa. Aug. 27, 2018) (citing Daubert, 509 U.S. at 593). 	"While a litigant has to make more
than a prima facie showing that his expert's methodology is reliable" the Third Circuit has
"cautioned that the evidentiary requirement of reliability is lower than the merits standard of
correctness." Pineda, 520 F.3d at 247 (internal citation and quotation marks omitted). The
Daubert standard "is not intended to be a high one, nor is it to be applied in a manner that
requires the plaintiffs to prove their case twice-they do not have to demonstrate to the
judge by a preponderance of the evidence that the assessment of their experts are correct,
they only have to demonstrate by a preponderance of evidence that their opinions are
reliable." Oddi v. Ford Motor Co., 234 F.3d 136 , 145 (3d Cir. 2000) (internal citation and
quotation marks omitted).
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The Court finds that the opinions of Mr. Dieckman, as limited herein, and Mr. Verzilli
are reliable based on the preponderance of the evidence presented at the Daubert
hearings. 	Both relied on generally accepted principles in their respective fields. 	For Mr.
Dieckman , the Court finds his methodology to be reliable and based upon "good grounds ."
At the Daubert hearing, Mr. Dieckman testified as follows:
Q: 	I just asked very simply, what are factors you use as a vocational expert when
determining loss of earnings capacity?
A: 	Okay, yes. 	My methodology is the same when I'm doing evaluations fo r
individuals both in workers' comp and for persona l injury. First of all, I review
documentation, mostly medical documentation related to someone's level of
disability. Whenever there is financial information , tax returns, pay stubs, whatever,
that's also important to me. 	In this particular case, I had an opportunity to review a
contract and a pension agreement for Dr. Shea. 	So that's relevant financial
information . After that, I will do an interview. And my interview will basically attempt
to gather some logistical information, where someone lives, how they access
transportation, et cetera, to confirm some medical information, and then get some
educational vocational information, basically to understand what someone's
particular work history is as well as their current employment. And then after that, I
will offer an opinion regarding someone's alternate employability. 	If they cannot do
the one job , what other kinds of posit ions might they be able to do? What other
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kinds of earnings might they be able to do? And then what is the wage loss that's
associated with a change in career.
Q: And are those generally accepted things in your field as a vocational specialist?
A: 	Very much so, yes.
Q: Okay. And when you did your-you offered your report for Dr. Shea , did you use
your standard and customary methods that you used in other cases, both forensic
and non-forensic?
A: Yes, positively .
Q: Okay. 	So one thing you relied on in your report was the medical documentation,
including the expert report for Dr. Nirav Shah which talked about reasonable and
necessary occupation adjustments, time off work, and reduced life expectancy. Is
relying on medical experts and their reports something you do as a vocational
expert?
A: 	It is a necessity in my field . I need, obviously, to have a medical opinion
regarding limitations and any prognosis for improvement or lack of improvement in
the future . So I need to rely upon something like Dr. Shah in this particular case. 	I
quote his report liberally in my evaluation because his opinion really forms the basis
of my opinions as well.
Q: Okay. And in addition to relying on medical reports, is it usual and customary
thing for you to interview the person who-you know, to determine whether or not
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you believe, from a vocational perspective, that they have a loss of earnings
capacity?
A: Yes. 	I always interview a person, unless there is some particular circumstances
where I'm only asked to do a review of records. 	That's very rare. 	I've literally
interviewed hundreds and hundreds of individuals over the years regarding their own
particular employment situation and, ultimately , their loss of earnings.
Hr'g Tr. at 32:8-34:11; see also 34:12-40:10 (discussing methodology).
Mr. Dieckman also testified that the opinions he intends to offer are generally accepted in
his field and are based on a reasonable degree of professional certainty. 	Id. at 40:6-10.
For Mr. Verzilli, the Court finds his methodology reliable and generally accepted with
the economics community and his testimony is supported by "goods grounds." At the
Daubert hearing, Mr. Verzilli test ified as follows:
Q: Okay. Can you tell us about any relevant experience-you know, just in terms of
performing evaluations of loss of future earnings capacity, can you just tell us what
are the relevant factors that are taken into account?
A: 	It would be the background of the individual, their age , education, employment,
earnings history, those relevant facts. 	Then we also have to look at the labor market
and economic data. 	There are times, such as here, I have to rely upon a vocational
opinion such as Mr. Dieckman who is providing an opinion that's not in my area of
economics, so in terms of assuming that this injury's going to affect what work she
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can do or if someone has to retire early. And then after we do all that, we're
basically doing math.
Hr'g Tr. at 68:4-17.
Q: Okay. 	Now, you also mentioned looking at tax returns, an employment
agreement, pension benefits, and pension estimates. Are these documents that you
would generally-that you would generally rely on in determining somebody's loss of
future earnings?
A: Yes, I would look at the tax returns, an employment agreement-here, we have
the New York teacher's pension; and there was information from the pension
system, and as well as Dr. Shea's deposition.
Q: Okay. And are these things-are these items that would be generally accepted
to be relied upon by people in your field?
A: Yes.
Hr'g Tr. at 69:11-23.
Q: Okay. 	Now, can you explain how you did your calculation of pre-injury versus
post-injury earning capacity and how this, you know-and, you know, sort of how
you got to the conclusions you have?
A: 	Sure. 	In terms of Dr. Shea's pre-injury earnings capacity, I based it on her
current salary with Port Jervis City School District of $200,000 a year. 	That was her
pre-injury earnings capacity. 	In terms of post-injury, I did-I did two, one as early
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retirement. 	So I assumed she would continue working in that job until age 55 and
retire five years earlier than going to age 60. 	So in that instance, there was no loss
of earnings capacity until we assumed she would leave the labor market. My second
alternative would be at the end of this school year , as of the end of June of 2026 ,
she would-her present employment would end, and she would have alternative
earnings capacity of about $97,000 a year . And so that's was the two post-injury
alternatives.
Q: All right. And are those-and then those calculation you came to, they are based
on reliable methods?
A: Yes, they are.
Q: Okay. Are they standardly used by economist such as yourself in calculating
future lost earnings potential?
A: All the time. 	Loss of earnings capacity is, what is the person's pre-injury potential
had this event not occurred and comparing that to their post-injury earnings capacity.
So it's two income steams. And you subtract the post-injury from the pre-injury . And
that gives you the loss of earnings capacity.
Hr'g Tr. at 70: 18-71 :21.
C. Whether the Proposed Expert's Testimony Fits the Case
The expert's testimony must also '"fit,' in that it must assist the trier of fact." 	Oddi,
234 F.3d at 145. "To determine whether an expert's testimony fits the proceedings, this
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Court asks whe ther it will help the trier of fac t to understand the evidence or to determine a
fact in issue. " UGI Sunbury, 949 F.3d at 835. 	In other words, "the expert 's testimony must
be relevant for the purpose of the case and must assist the trier of fact." Schneider ex. Rel
Schneider, 320 F.3d at 405; see also Cohen, 125 F.4th at 464 (fit "goes primarily to
relevance") . 	"Fit is not always obvious, and scientific validity for one purpose is not
necessary scientific validity for other, unrelated purposes ." UGI Sunbury, 949 F.3d at 835.
Specific Opinions Offered by Mr. Dieckman
Mr. Dieckman is a vocationalist has been both accepted as an expert by numerous
courts. 	He intends to testify regarding the future economic losses suffered by Plaintiff as a
result of her fall. 	In his report, he relies on the opinion of Dr. Shah as to permanence of
Plaintiff's injury. He also relies on his interview with Plaintiff, who informed him that her
contract was not renewed because of the fall. 2
Pennsylvania law "'does not require that proof in support of claims for damages or in
support of compensation must conform to the standard of mathematical exactness ."'
Kaczkowski v. Boulbasz, 491 Pa. 561 , 567, 421 A.2d 1027 (1980) (quoting Lach v. Fleth ,
361 Pa. 340 , 352, 64 A.2d 821 (1949)) . Instead , all the "law requires is that a claim for
damages must be supported by a reasonable basis fo r calculation: 	mere guess or
speculat ion is not enough. " Id. (i nternal citation and quotation marks omitted) . "If the facts
2 	As exp lained , infra at 15-16 , Mr. Dieckman will be precluded from testifying as to what Plaintiff told
him in regard to the non-renewal of her contract with the Port Jervis City School Distr ict , i. e. , that it was not
renewed because of injuries she sustained in the slip and fall inc ident at issue in this case .
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afford a reasonably fair basis for calculating how much plaintiff's entitled to, such evidence
cannot be regarded as legally insufficient to support a claim for compensation." Id.
"An individual's future earning capacity is capable of estimation based upon objective
factors of age, maturity, education and skill. A determination of an individual's future
earning capacity based on objective criteria is far less speculative than most other estimates
made by the trier of fact." Id. at 57 4. "Admittedly, predicting lost future earnings entails
some degree of speculation. 	However, that alone does not justify excluding reliable
economic evidence since imprecision is inherent in any computation of lost future benefit.
In view of our acceptance of the reliability of the science of economics, the victim's lost
future earning capacity should be treated like any other question of fact and should be
submitted to the trier of fact after proper foundation and expert testimony." Id.
"To recover for the loss of wages, a plaintiff must establish a wage loss that is the
result of the negligence of the defendant. With respect to impairment of earnings capacity,
the law requires only proof that the injured person's economic horizons have been
shortened as a result of the of the tortfeasor's negligence." Mader v. Duquesne Light Co.,
199 A.3d 1258, 1267 (Pa. Super. 2018). "The consideration of loss of earning capacity is
not solely the comparative amount of money earned before or after an injury. The true test
is whether or not there is a loss of earning power, and of ability to earn money. An award of
damages for lost future earnings capacity must be supported by evidence linking the
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plaintiffs injuries to loss of earnings capacity." Id. 	"It is for the jury to decide the extent and
duration of the loss." Fish v. Gosnell, 463 A.2d 1042, 1051 (Pa. Super. 1983).
Defendants' principal issue with Mr. Dieckman's testimony is that he relied upon his
interview of Plaintiff in order to opine that Plaintiff's contract was not renewed because of
the accident. Whether Plaintiffs contract was or was not renewed, and whether that
renewal (or lack thereo~ was caused by Plaintiffs injuries due to the slip and fall are
disputed facts . "An expert is, nonetheless, permitted to base his opinions on a particular
version of disputed facts and the weight to be accorded to that opinion is for the jury."
Walker v. Gordon, 46 Fed. App'x 691, 695-96 (3d Cir. 2002). 	It is also a proper subject of
cross-examination at trial. 	See id. at 696 ("Again, factual disputes are for the jury, and
Walker was perfectly free to explore on cross-examination the reliance placed by [expert] on
the disputed facts and to argue to the jury that, if it rejected the underlying factual premises
of his report, it should also reject [expert's] expert opinion.").
In sum, the Court will deny Defendants' motion and permit Mr. Dieckman to offer his
opinions regarding Plaintiffs future loss earnings capacity (i.e., shortened "economic
horizons") because he is qualified to offer those opinions, those opinions are reliable, and
they fit with this case. At trial, Defendants will be able to cross-examine Mr. Dieckman to
highlight certain assumptions he relied on in forming his opinion in an attempt to undermine
his credibility. 	Mr. Dieckman, however, will be precluded from testifying as to any
statements made to him by the Plaintiff wherein she informed him that the non-renewal of
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her contract of employment with the Port Jervis City School District was caused by, or the
result of, injuries sustained by Plaintiff as a result of a slip and fall on the premises of the
Defendants. The introduction of any such statements through Mr. Dieckman presents
inadmissible hearsay and their probative value does not substantially outweigh their
prejudicial effect. 	Fed . R. Evid. 703; see also United States v. Gilmore, 837 Fed. App'x 101,
104-05 (3d Cir. 2020); United States v. Lane, 2025 WL 3229509, at *1-2 (3d Cir. Nov. 19,
2025); Langbord v. United States Dept. of Treasury, 832 F.3d 170, 194-96 (3d Cir. 2016)
As to other objections raised by the Defendants, the Court will entertain objections to Mr.
Dieckman's testimony on a question-by-question basis at trial.
Specific Opinions Offered by Mr. Verzi/Ii
Similarly, the Court will not preclude the testimony of Mr. Verzilli. 	He is qualified to
offer those opinions, his opinions are reliable, and they fit with this case and are relevant.
See Dougherty v. Sch. Dist. of Philadelphia, 2015 WL 2365600, at *9 n.1 (E.D. Pa. May 18,
2025) (denying motion in limine seeking to preclude Mr. Verzilli from testifying). 	Moreover,
the methodology used by Mr. Verzilli in calculating Plaintiff's future lost earning capacity is a
well-accepted methodology in the fields of economics, which Defendants do not dispute.
Therefore, Mr. Verzilli will be permitted to testify at trial. 	Like Mr. Dieckman, many of
Defendants' issues with his testimony go to weight, not admissibility . At trial, Defendants
will be able to cross-examine Mr. Verzilli to highlight certain assumptions he relied on in
forming his opinion in an attempt to undermine his credibility. As to other objections raised
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by the Defendants, the Court will entertain objections to Mr. Verzilli's testimony on a
question-by-question basis at trial.
Ill. 	CONCLUSION
For the foregoing reasons, Defendants' motion in limine will be granted in part and
denied in part. A separate Order follows.
J ,
United States District Judge
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