# Perry v. The Schumacher Group of Louisiana

> District Court, M.D. Florida · December 4, 2020

URL: https://www.frixlaw.com/law-library/cases/10106511

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** December 4, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10106511

## How later opinions describe it (automated extraction)

- finding expert’s opinion sufficiently reliable when it was based on examination of record evidence, including depositions, and applied against expert’s knowledge and experience

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

PAMELA M. PERRY,

Plaintiff,

v. Case No: 2:13-cv-36-FtM-29DNF

THE SCHUMACHER GROUP OF
LOUISIANA, a Louisiana
corporation, THE SCHUMACHER
GROUP OF FLORIDA, INC., a
Florida corporation, COLLIER
EMERGENCY GROUP, LLC, a
Florida limited liability
company, HEALTH MANAGEMENT
ASSOCIATES INC., a Michigan
corporation and NAPLES HMA,
LLC, a Florida limited
liability company,

Defendants.

OPINION AND ORDER
This matter comes before the Court on defendants The
Schumacher Group of Louisiana, The Schumacher Group of Florida,
Inc., and Collier Emergency Group, LLC’s Daubert Motion in Limine
to Exclude Testimony of Dr. Mark Cichon Regarding Plaintiff’s
Pecuniary Damages (Doc. #300), and defendant Naples HMA, LLC’s
Daubert Motion to Strike and/or Exclude Expert Testimony and Report
of Mark Cichon, D.O. (Doc. #306), both filed on September 18, 2020.
Plaintiff filed an Omnibus Response (Doc. #315) to the motions on
October 16, 2020. For the reasons set forth below, the motions
are granted in part and denied in part.
I.

The Schumacher Group (TSG), consisting of defendants the
Schumacher Group of Louisiana, Inc., the Schumacher Group of
Florida, Inc., and the Collier Emergency Group, LLC (CEG), is a
corporation that provides healthcare staffing services at medical
facilities in certain states throughout the country. (Doc. #142,
p. 12.) In 2011, CEG entered into an exclusive agreement with
defendant Naples HMA, LLC (HMA) to staff the emergency department
at two hospitals in Naples, Florida. (Doc. #244-1, p. 30.)
Plaintiff Pamela Perry, M.D., an African American female emergency
physician, was hired in June 2011 to serve as the medical director
in the emergency department at one of the hospitals, Pine Ridge.
(Doc. #244, p. 5.) However, plaintiff’s employment was

subsequently terminated in 2012 and she has filed suit against the
defendants alleging various discrimination and retaliation claims.
(Doc. #235.)
In support of her claims, plaintiff has engaged Dr. Mark
Cichon to provide an independent analysis of the impact of her
termination “on her career in emergency medicine and on her
earnings and future earnings in that position.” (Doc. #304-1, p.
3.) Dr. Cichon, who specializes in emergency medicine and pre-
hospital care, has a bachelor of science degree in biology, a minor
in psychology and chemistry, and a doctor of medicine. (Doc.
#302-1, pp. 19, 28; Doc. #304-1, p. 17.) He has also completed a

two-year professional development program from Harvard which
addressed topics such as human resources and finances. (Doc.
#302-1, p. 21; Doc. #304-1, p. 17.) Dr. Cichon is currently the
Associate Chief Medical Officer and Physician in Chief at Loyola
University Medical Center in Illinois, having previously served as
Chairman of the Department of Emergency Medicine. (Doc. #304-1,
p. 18.) Dr. Cichon has also served as an emergency department
medical director at various hospitals since 1996, and taught at
various colleges since 1994. (Id.)
In his report, Dr. Chicon offers seven opinions to be
expressed at trial. TSG and HMA now seek to exclude Dr. Cichon’s
opinions on a variety of grounds. (Doc. #300; Doc. #306.)

II.
The admission of expert testimony is governed by Rule 702 of
the Federal Rules of Evidence, which 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.

Fed. R. Evid. 702. Rule 702 contemplates that the district court
serve as gatekeeper for the admission of scientific testimony in
order to ensure that any and all expert testimony is both relevant
and reliable. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
589 (1993); Tampa Bay Water v. HDR Eng’g, Inc., 731 F.3d 1171,
1183 (11th Cir. 2013). “The Supreme Court did not intend, however,
that the gatekeeper role supplant the adversary system or the role
of the jury: vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but
admissible evidence.” McDowell v. Brown, 392 F.3d 1283, 1299
(11th Cir. 2004) (marks and citations omitted).
In determining the admissibility of expert testimony under
Rule 702, the Court applies a “rigorous” three-part inquiry.
United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en
banc). Expert testimony is admissible if (1) the expert is
qualified to testify on the topic at issue, (2) the methodology
used by the expert is sufficiently reliable, and (3) the testimony
will assist the trier of fact. Arthrex, Inc., v. Parcus Med.,
LLC, 2014 WL 3747598, *1 (M.D. Fla. July 29, 2014) (citing Tampa
Bay Water, 731 F.3d at 1183). The burden of laying the proper

foundation for the admission of expert testimony “is on the party
offering the expert, and the admissibility must be shown by a
preponderance of the evidence.” Kilpatrick v. Breg, Inc., 613
F.3d 1329, 1335 (11th Cir. 2010) (quoting McCorvey v. Baxter
Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002)). The
admission of expert testimony is a matter within the discretion of
the district court, which is accorded considerable leeway in making
its determination. Frazier, 387 F.3d at 1258.
III.
TSG and HMA argue the Court should exclude all of Dr. Cichon’s
opinions because (1) he is unqualified to opine on the subjects,
(2) his opinions are based on an unreliable methodology, and (3)

his testimony will not be helpful to a jury. (Doc. #300, pp. 3-
8; Doc. #306, 6-17.) Having reviewed the seven topics on which
Dr. Cichon seeks to offer an opinion, the Court finds they can be
divided roughly into two categories: (1) topics related to
plaintiff’s career prospects, and (2) topics related to
plaintiff’s financial damages. While TSG and HMA’s motions focus
mainly on the opinions related to the latter topics, the Court
will address all the opinions offered in Dr. Cichon’s report.
A. Opinions Related to Plaintiff’s Career Prospects
In his report, Dr. Cichon offers four opinions relevant to
plaintiff’s career prospects following her termination. Those

opinions are as follows:
•
“Dr. Perry’s positive impact on ER performance would have
made her highly likely to remain in her position as medical
director.”
•
“Dr. Perry likely would have been able to continue to work at
Pine Ridge Hospital after the termination of the Schumacher
Group’s contract with Naples HMA.”
•
“The fact that Dr. Perry held a leadership position for only
a short time and then had to go back to a non-leadership
position may undermine her credibility as a leader and prevent
prospective employers from actually learning about her
successful performance as a medical director.”
•
“Given her qualifications and actual performance at her job
at Pine Ridge Hospital, I believe that Dr. Perry would still
be working in an ED medical director’s position.”1
(Doc. #304-1, pp. 9-14.)

1 As part of this opinion, Dr. Cichon estimates how much
“medical director earnings” plaintiff will “not be able to earn
over the remainder of her career.” (Doc. #304-1, p. 14.) The
Court will address this estimate with Dr. Cichon’s opinions on
plaintiff’s financial damages.
As noted, the first inquiry in determining whether an expert’s
testimony is admissible is determining whether the expert is
qualified to testify on the topic at issue. Arthrex, 2014 WL

3747598, *1 (citing Tampa Bay Water, 731 F.3d at 1183). Having
reviewed Dr. Cichon’s report and deposition testimony, as well as
the arguments of the parties, the Court finds he is qualified to
offer the opinions listed above.
Dr. Cichon has extensive experience serving as an emergency
department medical director, as well administrative experience as
Loyola University Medical Center’s Chairman of the Department of
Emergency Medicine, Associate Chief Medical Officer, and Physician
in Chief. (Doc. #304-1, p. 18.) In these roles, Dr. Cichon has
been utilized by Loyola “to give ideas on what compensation would
be on what is the market basket for benefits for emergency
physicians in [the] area,” as well as provide “insight as a

chairman to what is [sic] reasonable expectations and job roles.”
(Doc. #302-1, pp. 50-51.) Dr. Cichon also has experience with
transitioning service providers at medical facilities, including
being responsible for transitioning physicians and hiring new
ones. (Id. p. 73.) The Court finds this sufficient experience
to qualify Dr. Cichon to offer opinions on plaintiff’s career
prospects. See Fed. R. Evid. 702 (permitting a witness to be
qualified as an expert based on experience); Anderson v. Techtronic
Indus. N. Am., Inc., 2015 WL 12843836, *2 (M.D. Fla. Apr. 14, 2015)
(“The qualification standard for expert testimony is not
stringent, and so long as the expert is minimally qualified,

objections to the level of the expert’s expertise go to credibility
and weight, not admissibility.” (citation omitted)). HMA argues
Dr. Cichon is not qualified because his experience practicing
emergency medicine in a university setting does not make him “an
expert in other emergency departments or how they run.” (Doc. #306,
p. 9.) However, “[a]n expert is not necessarily unqualified
simply because [their] experience does not precisely match the
matter at hand.” Furmanite Am., Inc. v. T.D. Williamson, Inc.,
506 F. Supp. 2d 1126, 1129 (M.D. Fla. 2007).
The second inquiry for determining the admissibility of
expert testimony is whether the methodology used by the expert is
sufficiently reliable. Arthrex, 2014 WL 3747598, *1 (citing Tampa

Bay Water, 731 F.3d at 1183). The reliability prong is distinct
from an expert’s qualifications; thus, an expert can be qualified
but his opinions unreliable. Frazier, 387 F.3d at 1261. “Exactly
how reliability is evaluated may vary from case to case, but what
remains constant is the requirement that the trial judge evaluate
the reliability of the testimony before allowing its admission at
trial.” Id. at 1262. Having reviewed Dr. Cichon’s report and
deposition testimony, the Court finds his opinions regarding
plaintiff’s career prospects are sufficiently reliable.
The record indicates that in formulating his opinions, Dr.

Cichon reviewed, inter alia, interrogatories, depositions, TSG
records, tax returns, and published articles. (Doc. #304-1, pp.
6-9.) Regarding the career-prospects opinions at issue, Dr.
Cichon also relied upon (1) patient satisfaction scores and email
correspondence about the scores collected during plaintiff’s
tenure at Pine Ridge, (2) his knowledge of emergency room key
metrics and the tenure of medical directors meeting those metrics,
(3) a review of the current online roster of emergency room
physicians working for HMA, and (4) research into emergency rooms
located within “a suitable geographic location” for plaintiff and
their staffing numbers. (Id. pp. 9-12.) The Court finds this
sufficient under Daubert. See Am. Gen. Life Ins. Co. v. Schoenthal

Family, LLC, 555 F.3d 1331, 1338 (11th Cir. 2009) (“A district
court may decide that nonscientific testimony is reliable based
‘upon personal knowledge or experience.’” (quoting Kumho Tire Co.,
Ltd. v. Carmichael, 526 U.S. 137, 150 (1999)); Goines v. Lee Mem’l
Health Sys., 2019 WL 1101878, *6 (M.D. Fla. Mar. 8, 2019) (finding
expert’s opinion sufficiently reliable when it was based on
examination of record evidence, including depositions, and applied
against expert’s knowledge and experience).
The final criteria for the admission of expert testimony is
the requirement that the testimony assist the trier of fact.
Arthrex, 2014 WL 3747598, *1 (citing Tampa Bay Water, 731 F.3d at

1183). “[E]xpert testimony is admissible if it concerns matters
that are beyond the understanding of the average lay person . . .
Proffered expert testimony generally will not help the trier of
fact when it offers nothing more than what lawyers for the parties
can argue in closing arguments.” Frazier, 387 F.3d at 1262-63.
Having reviewed the evidence, the Court concludes that Dr. Cichon’s
opinions on plaintiff’s job performance and the impact of the
termination on her career prospects will assist the jury. For
example, such testimony is directly relevant in determining the
potential scope of plaintiff’s damages and the issue of mitigation.
Accordingly, the Court finds the opinions satisfy Daubert and are
admissible.
B. Opinions Related to Plaintiff’s Financial Damages

Dr. Cichon also opines on plaintiff’s financial damages as a
result of the termination, offering the following:
•
Plaintiff would have earned an additional $944,451 in
compensation from 2012 to 2019 had she not been terminated,
and an additional $1,630,347 between 2020 and 2032;
•
Plaintiff suffered $58,670 in damages related to expenses she
paid because she was forced to take positions that required
her to live away from home;
•
Plaintiff is entitled to an additional $504,601 in damages
due to a reduced qualify of life.
(Doc. #304-1, pp. 10-16.)
In determining the amount of back pay plaintiff is owed, Dr.
Cichon multiplied plaintiff’s average monthly earnings while at
Pine Ridge by twelve to create a “baseline” for her annual
compensation. (Id. pp. 10-11.) Dr. Cichon then raised this
figure by 3.6% per year in accordance with trends in the Florida
market to determine plaintiff’s estimated annual income between
2012 and 2019. (Id.) Dr. Cichon then subtracted plaintiff’s
actual earnings from those years and totaled the amount ($944,451).
(Id.)
In determining the amount plaintiff would have continued to
earn after 2019, Dr. Cichon used plaintiff’s medical director
stipend and incentive pay to determine she would have earned an
estimated $152,016 more per year as of 2020. (Id. p. 14.) Dr.
Cichon adjusted this amount by 3.6% per year until 2032, the year
in which plaintiff would turn sixty-five years old. (Id.) When
totaled, this amount ($1,630,347) represents the medical director
earnings plaintiff would have earned over the remainder of her
career. (Id.)
In determining plaintiff’s travel related expenses, Dr.

Cichon used plaintiff’s 2012 to 2019 tax filings to calculate her
mileage deductions as well as hotel and meal expenses. (Id. p.
13.) Dr. Cichon totaled the amount and then subtracted the “tax
benefit” plaintiff received from deducting these amounts from her
income. (Id.) The remaining amount ($58,670) represents the
“expenses [plaintiff] paid because she was forced to take positions
that required her to live away from home.” (Id.)
Finally, in calculating the amount of compensation plaintiff
is owed due to the increased stress and reduced quality of life
from having to work away from home ($504,601), Dr. Cichon
multiplied the amount plaintiff earned from the year of her
termination through 2019 by twenty percent. (Id. p. 15.) Dr.

Cichon used the twenty percent figure because he “assume[d] that
commuting and quality of life issues related [to] her post-
termination positions meant that [plaintiff] had to work a minimum
of 20% harder than she would have had she been able to maintain a
regular career in one location as a medical director.” (Id.)
TSA and HMA argue that Dr. Cichon’s damages opinions are
inadmissible under each of the three prongs of Daubert. (Doc.
#300, pp. 3-8; Doc. #306, pp. 6-17.) Regarding the first prong,
TSG and HMA assert that because Dr. Cichon does not have degrees
in statistics, economics, human resources, psychology, or
taxation, and because his experience is related to emergency

medicine, he is unqualified to opine on plaintiff’s financial
damages. (Doc. #300, pp. 3-5; Doc. #306, pp. 6-12.) Plaintiff
responds that Dr. Cichon is not being offered as an expert in these
fields, and thus his opinions do not require such a background.
(Doc. #315, pp. 6-7.) Plaintiff further argues that Dr. Cichon’s
experience as a medical director and administrator qualify him to
offer all of his opinions. (Id. pp. 8-9.)
Having reviewed the arguments of the parties as well as Dr.
Cichon’s report and deposition, the Court is unconvinced he has
the requisite experience to opine on plaintiff’s damages. It is
undisputed that Dr. Cichon is not an expert in any financial areas
such as economics or taxation, and he does not have experience

calculating economic losses caused by employment termination.
While Dr. Cichon may have some practical experience involving taxes
and financial matters, such experience is simply insufficient to
constitute expertise under Daubert. See Nat’l Union Fire Ins. Co.
of Pittsburgh v. Tyco Integrated Sec., LLC, 2015 WL 11251759, *6
(S.D. Fla. July 6, 2015) (“Although an expert may be permitted to
rely on her experience in formulating her opinion, this alone is
insufficient; Daubert requires an explanation as to how the
experiences yield the conclusion, why the experiences are
sufficient, and how the experiences are reliably applied to the
facts.”).

Even if Dr. Cichon had sufficient experience to qualify as an
expert in calculating financial damages, the Court is unconvinced
his calculations of plaintiff’s damages would assist the jury.
Plaintiff acknowledges that Dr. Cichon “is not an accountant or
human resources professional, tax adviser, or statistician.”
(Doc. #315, p. 7.) Nonetheless, plaintiff argues “[t]he damage
amounts that Dr. Cichon arrived at do not rely on complex economic
models, specialized tax knowledge, or statistics,” and that “[t]he
calculations that he performed . . . are not ones that require the
professional skills that the Defendants fault him for lacking.”
(Id. pp. 7-8.)
Plaintiff is essentially arguing that because Dr. Cichon’s

calculations are not overly complex, he does not need specialized
knowledge or experience to make them. However, the simplicity of
the mathematics is a double-edged sword, because if the
calculations are so simple Dr. Cichon can do them without any
expertise, then the jury can as well. See Frazier, 387 F.3d at
1262-63 (“[E]xpert testimony is admissible if it concerns matters
that are beyond the understanding of the average lay person . . .
Proffered expert testimony generally will not help the trier of
fact when it offers nothing more than what lawyers for the parties
can argue in closing arguments.”); Rossi v. Darden, 2017 WL
2129429, *9 (S.D. Fla. May 17, 2017) (determining expert’s “basic

arithmetic exercise” was “not beyond the understanding of the
average lay person” and “therefore does not assist the trier of
fact through application of an expert’s specialized knowledge or
technique”); Bowe v. Pub. Storage, 2015 WL 11233065, *4 (S.D. Fla.
May 7, 2015) (excluding expert’s damages calculation based on
“simple arithmetic, division and multiplication” because such
calculations were “not beyond the understanding of the average lay
person”); LSQ Funding Grp., L.C. v. EDS Field Servs., 879 F. Supp.
2d 1320, 1336 (M.D. Fla. 2012) (“Dr. Ugone’s simple arithmetic
calculation is not beyond the understanding of the average lay
person and therefore would not help the trier of fact.”).
Accordingly, the Court finds plaintiff has failed to meet her

burden of demonstrating (1) Dr. Cichon is qualified to offer
opinions on plaintiff’s financial damages caused by the
termination, and (2) that such opinions would assist the jury.
Therefore, Dr. Cichon’s calculations of plaintiff’s lost wages,
travel expenses, and quality of life compensation are inadmissible
as expert testimony.2 But see Fed. R. Evid. 701 (permitting a

2 The Court’s ruling would not preclude Dr. Cichon from
testifying as to plaintiff’s salary when she was terminated, nor
non-expert witness to testify to an opinion that, inter alia, does
not fall within the scope of Rule 702); U.S. v. Hamaker, 455 F.3d
1316, 1331-32 (llth Cir. 2006) (determining witness’s testimony
was “permissible lay testimony under Rule 701” when such testimony
was based on basic arithmetic calculations).
Accordingly, it is hereby
ORDERED:
The Schumacher Group of Louisiana, The Schumacher Group of
Florida, Inec., and Collier Emergency Group, LLC’s Daubert Motion
in Limine to Exclude Testimony of Dr. Mark Cichon Regarding
Plaintiff’s Pecuniary Damages (Doc. #300) and defendant Naples
HMA, LLC’s Daubert Motion to Strike and/or Exclude Expert Testimony
and Report of Mark Cichon, D.O. (Doc. #306) are GRANTED in part
and DENIED in part for the reasons expressed herein.
DONE AND ORDERED at Fort Myers, Florida, this 4th day of
December, 2020.

if aw (OL
: | hy >» ZAK Loeb
adi EF. STEELE
SHNIOR UNITED STATES DISTRICT JUDGE

Copies: Counsel of record

testifying as to trends in the Florida market or the expected
retirement age for medical directors, assuming such testimony is
otherwise admissible.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10106511. Public record. Not legal advice.