The opinion
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
REX EAGON and DIANA EAGON,
individually and as co-administrators of the
ESTATE OF DARIEN M. EAGON,
Plaintiffs,
v. CIVIL ACTION NO. 3:23-0013
CABELL COUNTY EMERGENCY MEDICAL SERVICES,
UNIDENTIFIED CABELL COUNTY EMERGENCY MEDICAL SERVICES AGENT,
GORDON MERRY III, and
JOHN DOE NON-PARTY FAULT ENTITY IDENTIFIED BY CO-DEFENDANTS,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court are three motions in limine filed by Defendant Cabell
County Emergency Medical Services (CCEMS) related to the decedent Darien M. Eagon’s lost
wages. These motions are: (1) CCEMS’s Motion in Limine to Exclude Plaintiffs’ Expert, Dr.
Clifford Hawley (ECF No. 126), (2) CCEMS’s Motion in Limine to Exclude Decedent’s Alleged
Lost Wages (ECF No. 128), and (3) CCEMS’s Motion in Limine to Exclude Evidence or
Testimony about Documentation not Produced in Discovery. ECF No. 137. Plaintiffs Rex and
Diana Eagon oppose all three motions. On June 5, 2025, the Court held a hearing on the motions.
Upon consideration of the parties’ arguments and for the following reasons, the Court GRANTS
CCEMS’s Motion in Limine to Exclude Evidence or Testimony about Documentation not
Produced in Discovery; DENIES, in part, and GRANTS, in part, its Motion in Limine to
Exclude Plaintiffs’ Expert, Dr. Clifford Hawley; and DENIES its Motion in Limine to Exclude
Decedent’s Alleged Lost Wages.
The underlying facts of this case are set forth in detail in this Court’s prior
Memorandum Opinions and Orders. See Eagon v. Cabell Cnty. Emergency Med. Servs., Civ. Act.
No. 3:23-0013, 2025 WL 72166 (S.D. W. Va. Jan. 10, 2025); Eagon v. Cabell Cnty. Emergency
Med. Servs., Civ. Act. No. 3:23-0013, 2023 WL 8853727 (S.D. W. Va. Dec. 21, 2023). In essence,
Plaintiffs Rex and Diana Eagon filed this lawsuit alleging that Defendants’ acts and omissions
resulted in their daughter Darien M. Eagon’s suicide. As part of their claim, Plaintiffs seek their
daughter’s lost wages. To this end, they hired Clifford B. Hawley, Ph.D., to calculate the economic
loss.
In his report, Dr. Hawley considered, inter alia, Mr. Eagon’s deposition and
Plaintiffs’ Answers to Defendant CCEMS’s First Set of Interrogatories and Request for Production
of Documents. Economic Losses of Darien Eagon by Clifford B. Hawley, Ph.D., at 2 (May 23,
2024), ECF No. 126-1; Rex Eagon Dep., ECF No. 126-2; Pls.’ Answers to Def. CCEMS’s First
Set of Interrog. and Reqs. for Produc. of Docs., ECF No. 126-3. During his deposition, Mr. Eagon
stated that his daughter had worked part-time at the family business and, because she had proven
herself by increasing the company’s postcard sales by approximately 30%, they were putting her
in charge of all the company’s sales. Rex. Eagon Dep. 28:8-23; 29:1-14. Plaintiffs also asserted in
their interrogatory response that, based upon their daughter’s excellent sales record, she was
projected “to earn approximately $60,000 in salary plus another $12,000 in health insurance
benefits” in 2021. Pls.’ Answers to Def. CCEMS’s First Set of Interrog. and Reqs. for Produc. of
Docs., at 3. While Ms. Eagon’s wages were significantly less the two previous years,1 Plaintiffs
1In their Answers to Interrogatories, Plaintiffs stated that from October 2019 through the
end of 2019, the company paid their daughter a total of $4,897.74 in commissions and health
benefits and in 2020 she “received “$14,164 in commissions and $12,321.67 in health insurance
explained the large increase in her expected salary because “she was promoted to the full-time
position of Manager of all sales (not just post cards)” just days before she committed suicide. Id.
Relying upon expected commissions in the amount of $60,000 in 2021, Dr. Hawley
estimated Ms. Eagon’s benefits would be $15,000 per year, for a total of $75,000. Id. Assuming
Ms. Eagon worked until age 65, Dr. Hawley calculated the present value of Ms. Eagon’s “lost
earning capacity” at $1,264,271. Id. at 2-3. As an alternative, Dr. Hawley estimated Ms. Eagon’s
earnings would be $36,360 based upon “the average annual earnings of those in Sales and Related
Occupations in the Huntington-Ashland, WV-KY-OH statistical area” with $9,090 in benefits.
Under this scenario, reduced to present value, Dr. Hawley calculated Ms. Eagon’s lost earning
capacity at $766,148 if she had worked until age 65. Id. at 3. Additionally, he calculated the loss
of her household services to be $803,497. Id. at 4.
On March 24, 2025, CCEMS filed its motions to exclude Dr. Hawley from
testifying at trial and to exclude evidence of Ms. Eagon’s lost wages. In support of its motion to
exclude Dr. Hawley, CCEMS argues his testimony is not sufficiently tied to the facts of the case
and will not be helpful in determining Ms. Eagon’s future lost wages. Specifically, CCEMS asserts
that Plaintiffs did not produce any records or documents substantiating Ms. Eagon’s wages and
benefits either at her family’s company or for any other employment she previously held.
Moreover, CCEMS contends that Dr. Hawley’s assumptions contradict the actual facts. In their
second motion, CCEMS argues any evidence of lost wages should be excluded pursuant to Rule
26(a) of the Federal Rules of Civil Procedure because Plaintiffs did not provide “a computation of
benefits for a total of $26,486.32.” Id.
each category of damages claimed[.]” Fed. R. Civ. P. 26(a). As Plaintiffs did not provide any
documentation in support of the wage claim, CCEMS insists Plaintiffs should be prohibited from
offering, eliciting, commenting, or referring to any lost wages. CCEMS argues that to do otherwise
would be speculative, misleading, irrelevant, and unfairly prejudicial.
When Plaintiffs filed their Responses to these motions, they contemporaneously
emailed CCEMS copies of Ms. Eagon’s W-2s, a spreadsheet with her health insurance
information, and a business tax return, which they claim are “embodied in” Answers to CCEMS’s
Interrogatories. Pls.’ Omnibus Resp. to Def. CCEMS’s Motions in limine to Exclude all of Pls.’
Experts, at 12, ECF No. 133. Having just received these documents for the first time, CCEMS then
filed an additional motion to exclude this evidence under Rule 26 as it was not produced until after
the close of discovery.
Addressing this last motion first, the Court agrees with CCEMS. In its short
Response, Plaintiffs assert they provided these documents to CCEMS as they match Mr. Eagon’s
prior deposition testimony and their answers to interrogatories. Thus, Plaintiffs contend that
CCEMS should not be surprised by the information and, if CCEMS wanted more information
about how Dr. Hawley reached his conclusions, they should have deposed him and consulted with
Plaintiffs about the underlying documentation.
However, the Court finds Plaintiffs’ arguments do not address their responsibility
to comply with Rule 26. Pursuant to Rule 26(a)(1)(A), Plaintiffs
must, without awaiting a discovery request, provide to the other
parties: . . . a computation of each category of damages claimed by
the disclosing party—who must also make available for inspection
and copying as under Rule 34 the documents or other evidentiary
material, unless privileged or protected from disclosure, on which
each computation is based, including materials bearing on the nature
and extent of injuries suffered[.]
Fed. R. Civ. P. 26(a)(1)(A)(iii). Additionally, Rule 26(a)(3) required Plaintiffs to identify in its
pretrial disclosures “an identification of each document or other exhibit, including summaries of
other evidence—separately identifying those items the party expects to offer and those it may
offer if the need arises.” Fed. R. Civ. P. 26(a)(3)(iii).
Here, Plaintiffs did not provide CCEMS copies of Ms. Eagon’s W-2s, the health
insurance spreadsheet, or the family’s business tax return until long after discovery closed and
Plaintiffs were faced with CCEMS’s motions in limine. Although Plaintiffs assert the
information is “embodied” in their interrogatory response and CCEMS did not specifically
request the documents, CCEMS, in fact, did generally request the production of “any and all
documents or tangible things identified by the Plaintiffs in response to the . . . interrogatories,”
which included Plaintiffs’ interrogatory response to Ms. Eagon’s employment, commissions, and
benefits. Pls.’ Resp. to CCEMS’s Reqs. for Prod. of Docs., at 9, ECF No. 126-3; Pls.’ Answers
to Def. CCEMS’s First Set of Interrog. and Reqs. for Prod. of Docs., at 3; see also Fed. R. Civ.
P. 34(b)(2)(A) (providing, in part, “[t]he party to whom the request [for a production of
documents] is directed must respond in writing within 30 days after being served”). Moreover,
in any event, the Rule also required those documents to be timely provided “without awaiting a
discovery request.” Fed. R. Civ. P. 26(a)(1)(A)(iii). Nevertheless, Plaintiffs did not provide those
documents to CCEMS until April 7, 2025, and Dr. Hawley did not include these documents in
the list of the ones he reviewed in preparing his report.
As Plaintiffs did not comply with Rule 26, the Court must now determine the
appropriate remedy. When information is not provided as required by Rule 26(a) or (e), Rule 37
of the Federal Rules of Civil Procedure provides that “the party is not allowed to use that
information . . . to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.” Fed. R. Evid. 37(c)(1), in part. This Court has “broad
discretion to determine whether a nondisclosure of evidence is substantially justified or harmless
for purposes of a Rule 37(c)(1) exclusion analysis[.]” Southern States Rack & Fixture, Inc. v.
Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003). This discretion is guided by five
factors: “(1) the surprise to the party against whom the evidence would be offered; (2) the ability
of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the
trial; (4) the importance of the evidence; and (5) the nondisclosing party’s explanation for its
failure to disclose the evidence.” Id. Factors one through four “relate primarily to the
harmlessness exception, while the last factor, addressing the party’s explanation for its
nondisclosure, relates mainly to the substantial justification exception.” Bresler v. Wilmington
Tr. Co., 855 F.3d 178, 190 (4th Cir. 2017) (citation omitted). It is the non-disclosing party’s
burden to establish these factors. Wilkins v. Montgomery, 751 F.3d 214, 222 (4th Cir. 2014).
In response to CCEMS’s motion, Plaintiffs simply argue that the documents
should not be a surprise in light of Mr. Eagon’s deposition testimony and their interrogatory
response. Additionally, they place blame on CCEMS for not deposing Dr. Hawley, not having
their own economic expert do an analysis, and not consulting with Plaintiffs before filing their
motions. However, the Court finds these arguments are insufficient for Plaintiffs to meet their
burden.
Guided by the above factors, the Court finds that the documentary evidence
Plaintiffs submitted in support of lost wages and benefits obviously is significant for trial
purposes. If permitted to be offered by Plaintiffs, it clearly would impact CCEMS’s trial strategy
and calculation of its risks. Prior to these documents being provided, Plaintiffs rested their
economic damages on their daughter being given an oral promotion within ten days of her death
and Plaintiffs’ representation that it would increase her commissions and health insurance
benefits from $26,486.32 in 2020 to $72,000 in 2021. Clearly, CCEMS believed Plaintiffs’
estimation about what she might earn in 2021 was assailable and moved to exclude such evidence
and Dr. Hawley’s testimony. After CCEMS filed its related motions in limine, Plaintiffs then
decided to give CCEMS copies of Ms. Eagon’s W-2s, a spreadsheet of benefits, and a business
tax return. Importantly, this late disclosure gave CCEMS no opportunity to analyze or challenge
the documentary evidence prior to the discovery deadline, and the Court finds reopening
discovery on this issue is not a viable option because, in all likelihood, it will disrupt the trial
date which is less than one month away.
Additionally, although CCEMS never filed a motion to compel the production of
these documents, Plaintiffs should have realized their importance if they intended to use them.
It should have been obvious that CCEMS would likely hotly contest evidence of future lost
wages based upon Ms. Eagon’s work history, struggles with alcohol, and difficulties with her
family. As this Court stated in its earlier decision, Mr. Eagon told a police officer who responded
to the scene that his wife “had terminated their daughter’s employment many times from a
company they owned due to her drinking.” Eagon, 2025 WL 72166, at *5. Mr. Eagon also stated
during his deposition that his daughter previously was fired years earlier from a magazine
distribution company. Rex Eagon Dep., 27:21-24. Thus, it should have been apparent that
evidence corroborating Mr. Eagon’s deposition and Plaintiffs’ interrogatory response claiming
their daughter was an excellent employee and earned a big promotion just days before her death
would be important in establishing their damage claim. Nevertheless, it was not timely provided,
and Plaintiffs have offered no legitimate explanation as to why it was not done. Given these
circumstances, the Court FINDS Plaintiffs’ late disclosure was neither substantially justified nor
harmless. and GRANTS CCEMS’s Motion in Limine to Exclude Evidence or Testimony about
the wage and benefit documentation produced on April 7, 2025, and prohibits Plaintiffs from
introducing these documents at trial.
The Court next turns to CCEMS’s motion to exclude evidence of future lost wages
all together and its motion to exclude Dr. Hawley’s report and testimony regarding his calculation
as to Ms. Eagon’s lost wages and household services. Pursuant to Rule 702 of the Federal Rules
of Evidence,
[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. “Implicit in the text of Rule 702 . . . is a district court’s gatekeeping
responsibility to ‘ensur[e] that an expert’s testimony both rests on a reliable foundation and is
relevant to the task at hand.’” Nease v. Ford Motor Co., 848 F.3d 219, 229 (4th Cir. 2017) (quoting
Daubert v. Merrell Down Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993) (emphasis added in
Nease)). To conduct this gatekeeping function, a court must make “a preliminary assessment of
whether the reasoning or methodology underlying the testimony is scientifically valid and of
whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509
U.S. at 592–93. In assessing the reliability of expert testimony, “the district court must ensure that
the proffered expert opinion is ‘based on scientific, technical, or other specialized knowledge and
not on belief or speculation, and inferences must be derived using scientific or other valid
methods.’” Nease, 848 F.3d at 229 (quoting Oglesby v. Gen. Motors Corp., 190 F.3d 244, 250 (4th
Cir. 1999) (emphasis added in Nease)). Daubert offers a non-exhaustive list of guideposts to assist
a district court in determining “if expert testimony is sufficiently reliable to be admissible.” Id.2
2These guideposts include:
First, “a key question to be answered in determining whether a
theory or technique is scientific knowledge that will assist the trier
of fact will be whether it can be (and has been) tested.” A second
question to be considered by a district court is “whether the theory
or technique has been subjected to peer review and publication.”
Publication regarding the theory bears upon peer review; “[t]he fact
of publication (or lack thereof) in a peer reviewed journal will be a
relevant, though not dispositive, consideration in assessing the
scientific validity of a particular technique or methodology on which
an opinion is premised.” Third, “in the case of a particular scientific
technique, the court ordinarily should consider the known or
potential rate of error.” Fourth, . . . “‘general acceptance’” is
nonetheless relevant to the reliability inquiry. “Widespread
acceptance can be an important factor in ruling particular evidence
admissible, and a known technique which has been able to attract
only minimal support with the community may properly be viewed
with skepticism.” (citation and internal quotation marks omitted).
The party offering the expert opinion has the burden of establishing its admissibility by a
preponderance of proof. Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001)
(citation omitted).
Applying Rule 702 and the Daubert standard, the Court first considers Dr.
Hawley’s estimate of Ms. Eagon’s lost earning capacity of $1,264,271. In his report, Dr. Hawley
states this estimate is based upon Mr. Eagon’s expectation “that her earnings would be about
$60,000 in 2021.”3 CCEMS argues Plaintiffs’ beliefs about what their daughter would have earned
following her promotion is speculative and unreliable, and they failed to provide a computation of
those damages under Rule 26. Therefore, CCEMS insists both Mr. Eagon’s testimony and Dr.
Hawley’s calculation based on that information should be excluded. The Court disagrees.
As the owner of the family business, Mr. Eagon stated in his deposition that his
daughter was paid on commission and had handled the company’s postcard sales, which was just
one of the company’s products. Rex Eagon Dep. 28:8-23. Given her success with postcard sales,
Plaintiffs assert they promoted her to handle all the products the company sold. Id. 29:1-9; Pls.’
Answers to Def. CCEMS’s First Set of Interrog. and Reqs. for Produc. of Docs., at 3. In their
interrogatory response, Plaintiffs more precisely explained that their daughter “grew the family
business’s post card sales by 33%,” which far exceeded the industry standards. Id. Plaintiffs further
indicated their daughter was promoted just days before her death “to the full-time position of
Id. (quoting Daubert, 509 U.S. at 593).
3Economic Losses of Darien Eagon, Report by Clifford B. Hawley, Ph.D., at 2.
Manager of all sales” and “based on her 10% commission, she would have been set in 2021 to earn
approximately $60,000 in salary plus another $12,000 in health benefits.” Id.
Although CCEMS challenges this evidence, the Court cannot say it should be
excluded under Rule 26 for failing to substantiate it with documentation or for being speculative
or unfairly prejudicial. Ms. Eagon was an employee of a family-run business. Mr. Eagon, as owner
of the company, gave sworn deposition testimony that he was putting his daughter in charge of all
the company’s sales because she had proved herself by increasing the company’s postcard sales.
In their interrogatory response, Plaintiffs computed her wages as 10% of the company’s total sales
for a total of $60,000. While Plaintiffs did not timely provide the documentation to corroborate
this evidence, Mr. Eagon, as Ms. Eagon’s employer, nevertheless is qualified to say what his
company would have paid her by computing 10% of the company’s total sales. Given the
admissibility of this evidence, the Court finds no reason why Dr. Hawley also cannot rely upon
what the owner of a company asserts an employee would make to calculate what Ms. Eagon’s lost
earnings would be until age 65. Certainly, CCEMS may attempt to impeach Mr. Eagon and
challenge his computation, but whether Mr. Eagon ultimately is believable is for the jury, not the
Court, to decide. Therefore, the Court DENIES CCEMS’s Motion in Limine to Exclude
Decedent’s Alleged Lost Wages and CCEMS’s Motion in Limine to Exclude Plaintiffs’ Expert,
Dr. Clifford Hawley, to the extent he bases his calculation upon Ms. Eagon’s projected
commissions of $60,000.
As to Dr. Hawley’s lower estimate, Plaintiffs argue such evidence is admissible as
it is based upon “the average annual earnings of those in Sales and Related Occupations in the
Huntington-Ashland, WV-KY-OH statistical area (U.S. Bureau of Labor Statistics, May 2023
Metropolitan and Nonmetropolitan Area Occupational Employment and Wage Estimates).”
Economic Losses of Darien Eagon, Report by Clifford B. Hawley, Ph.D., at 3. On the other hand,
CCEMS points out that this estimate does not consider any specific information about Ms. Eagon,
such as her level of education or sex. Thus, CCEMS insists it is insufficiently reliable and tied to
the facts of this case. The Court agrees with CCEMS. Merely quoting what the average sales person
in this area earns without any consideration of the type of sales work Ms. Eagon was doing, her
education, or sex is not an estimate based upon a reliable application by Dr. Hawley to the facts of
this case. Therefore, the Court finds Dr. Hawley’s calculation and testimony in this regard does
not meet the Rule 702 and Daubert standards and GRANTS CCEMS’s motion to exclude
evidence based upon Dr. Hawley’s calculations based on average earnings in the area.
Lastly, Dr. Hawley opines that the loss of household services is $803,497.
Although CCEMS broadly argues in its motion that Dr. Hawley’s testimony should be entirely
excluded, it makes no specific arguments as to why his opinion regarding Ms. Eagon’s loss of
household services is inadmissible. Therefore, the Court DENIES WITHOUT PREJUDICE the
motion to exclude this evidence.
Accordingly, having considered the arguments of the parties, the Court GRANTS
CCEMS’s Motion in Limine to Exclude Evidence or Testimony about Documentation not
Produced in Discovery (ECF No. 137); DENIES its Motion in Limine to Exclude Decedent’s
Alleged Lost Wages (ECF No. 128); and DENIES CCEMS’s Motion in Limine to Exclude
Plaintiffs’ Expert, Dr. Clifford Hawley with respect to his calculation based upon Plaintiffs’
assertion Ms. Eagon would have made $60,000 a year in commissions, DENIES WITHOUT
PREJUDICE the motion with regard to Dr. Hawley’s calculation of household services, and
GRANTS the motion as to Dr. Hawley’s calculations based upon the wages of an average sales
person in the area. ECF No. 126.
The Court DIRECTS the Clerk to send a copy of this Memorandum Opinion and
Order to counsel of record, and any unrepresented parties.
ENTER: June 10, 2025
: JZ.
ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE
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