# Sater

> District Court, N.D. Indiana · December 8, 2025

URL: https://www.frixlaw.com/law-library/cases/11216161

## Case

- **Full name:** Merle Sater, et al. v. Republic Services of Indiana Transportation LLC, et al.
- **Court:** District Court, N.D. Indiana
- **Decided:** December 8, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

MERLE SATER, et al.,

Plaintiffs,

v. Case No. 3:23-CV-403-CCB

REPUBLIC SERVICES OF INDIANA
TRANSPORTATION LLC, et al.,

Defendants.

OPINION AND ORDER
Defendants have moved to exclude the testimony of Plaintiffs’ experts Dr. Rick
Wickstrom, Dr. George Shaw, and Sara Ford under Federal Rule of Evidence 702. They
have also moved to strike the supplemental affidavits filed by Dr. Wickstrom and Sara
Ford as an untimely disclosure under Federal Rule of Civil Procedure 26 and as
unhelpful to the jury under Rule of Evidence 702.
BACKGROUND

On August 3rd, 2021, a garbage truck operated by Defendant Republic Services
of Indiana and driven by Defendant Travis Ottbridge crashed into the rear end of
Plaintiff Merle Sater’s pickup truck (“pickup”). (ECF 11). Republic Services of Indiana
has admitted that the garbage truck driver was negligent and solely at fault for the
accident, and that he was operating within the scope of his employment. (ECF 9 at 3, ¶
8). Thus, the only remaining issues are the amount of damages and to what degree Mr.
Sater’s alleged injuries were proximately caused by Defendants’ negligence. (ECF 107 at
2–3).1

Plaintiffs’ designated experts include Dr. George Shaw, who will testify about
how the accident occurred and how it caused Mr. Sater’s injuries, Dr. Rick Wickstrom,
who will testify about the extent of Mr. Sater’s current disability, and Sara Ford, who
will testify about the extent of Mr. Sater’s lost future-earnings capacity. Defendants
have objected to these experts’ testimony under Rule 702’s Daubert inquiry on various
grounds, including qualification and methodology. (ECF 70; 72; 74). They also argue

that the supplemental affidavits filed by Dr. Wickstrom and Sara Ford are an untimely
disclosure of expert materials under Federal Rule of Civil Procedure 26, and are
unhelpful to the jury under Rule of Evidence 702. (ECF 92; 97).
ANALYSIS

Expert testimony is admissible at trial under Federal Rule of Evidence 702 if the
testimony is relevant to a fact in issue, is based on sufficient facts or data, and results
from reliable scientific or other expert methods that are properly applied. Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592–93 (1993). Before admitting expert
testimony, courts “must determine whether the witness is qualified; whether the
expert's methodology is scientifically reliable; and whether the testimony will assist the

trier of fact to understand the evidence or to determine a fact in issue.” Gopalratnam v.
Hewlett-Packard Co., 877 F.3d 771, 779 (7th Cir. 2017) (internal quotation omitted). In

1 Mr. Sater’s wife, Cindy Sater, is also a Plaintiff in the case. (ECF 5).
making this determination, courts often look to factors such as whether a theory has
been subjected to peer review or accepted within the relevant expert community,

whether there are standards controlling the technique’s operation, and whether it has a
potential error rate. See Deputy v. Lehman Bros., 345 F.3d 494, 505 (7th Cir. 2003).
However, “No one factor is dispositive . . . and ‘the Supreme Court has repeatedly
emphasized [that] the Rule 702 test is a flexible one.’ ” Timm v. Goodyear Dunlop Tires
North Am., Ltd., 932 F.3d 986, 993 (7th Cir. 2019) (alteration in original) (quoting Smith v.
Ford Motor Co., 215 F.3d 713, 719 (7th Cir. 2000)). In addition, “the correct inquiry

focuses not on ‘the ultimate correctness of the expert's conclusions,’ but rather on ‘the
soundness and care with which the expert arrived at her opinion.’” Id. (quoting Schultz
v. Akzo Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013)). An expert’s opinion “must
consist of more than simply ‘subjective belief or unsupported speculation.’” Cummins v.
Lyle Indus., 93 F.3d 362, 368 (7th Cir. 1996) (citing Daubert, 509 U.S. at 589). The burden

to establish the admissibility of an expert's testimony by a preponderance of the
evidence falls on its proponent. Varlen Corp. v. Liberty Mut. Ins., 924 F.3d 456, 459 (7th
Cir. 2019).
Under Rule 702, an expert may be qualified to testify by “knowledge, skill,
experience, training, or education.” Higgins v. Koch Dev. Corp., 997 F. Supp. 2d 924, 930

(S.D. Ind. 2014) (quoting Fed. R. Evid. 702). An expert is qualified if his “qualifications
provide a foundation for [him] to answer a specific question.” Id. (quoting Berry v. City
of Detroit, 25 F.3d 1342, 1351 (6th Cir. 1994)). In other words, courts determine whether
an expert is qualified by evaluating each of the expert's conclusions individually, then
assessing whether the expert has the “adequate education, skill, and training to reach
them.” Gayton v. McCoy, 593 F.3d 610, 617 (7th Cir. 2010). An expert's specialization, or

lack thereof, “typically goes to the weight to be placed on [her] opinion, not its
admissibility.” Hall v. Flannery, 840 F.3d 922, 929 (7th Cir. 2016).
A. Dr. George Shaw

Plaintiffs have retained Dr. Shaw to testify regarding the physical forces of the
accident and how those forces caused Mr. Sater’s injuries. Defendants object to Dr.
Shaw’s qualification to testify about Mr. Sater’s injuries, and also argue that his
methodology for examining the physics of the accident is unsound.
1. Qualifications

Dr. Shaw is a board-certified emergency physician who holds an M.D. from
Georgetown University, a Ph.D. in physics from the University of Maryland, and a B.A.
in physics from the University of Virginia. (ECF 79 at 1). He has served as a research
physicist for the Navy, a research assistant in the Department of Physics at the
University of Maryland, and has published and presented on biomechanics. (Id.). He is
also an Adjunct Associate Professor of Emergency Medicine in the Biomedical
Engineering program at the University of Cincinnati College of Medicine. (Id.). Dr.
Shaw has been published in several peer-reviewed journals, and is a certified

independent medical examiner. (Id.). His company, Shaw Biomedical Consulting,
provides expert witness services in biomechanics, biomedical engineering, and
emergency medicine. (Id.).
Defendants have not objected to Dr. Shaw’s qualifications to testify about the
physics of the accident, and this Court finds them sufficient. Rather, Defendants argue

that he is not qualified to testify about the medical causes of Mr. Sater’s injuries—
specifically, about the cause of his cervical disc herniation. Defendants argue that while
Dr. Shaw may have medical expertise, it is not in the relevant field, since he is “not a
spine surgeon.” (ECF 73 at 10).
Yet when deciding the scope of qualification for medical experts, courts have
consistently emphasized that the relevant question is not whether the expert’s resume,

titles, or listed practice area “fits” the subject matter—indeed, “courts often find that a
physician in general practice is competent to testify about problems that a medical
specialist typically treats.” Gayton, 593 F.3d at 617 (citing 29 Wright & Gold, Federal
Practice and Procedure, § 6265 (1997)). Rather, courts look at “each of the conclusions [a
medical expert] draws individually to see if he has the adequate education, skill, and

training to reach them.” Id. If a specific conclusion relies on “knowledge that any
competent physician would typically possess,” then the expert is likely qualified to
testify. Id. at 618.
Here, although Dr. Shaw is not a “spine surgeon,” he has experience in
diagnosing injuries—including cervical disc herniations like Mr. Sater’s—and deciding

whether an injury requires further expert treatment. (ECF 79 at 12–13). In addition, Dr.
Shaw has extensive experience in biomechanics, which in cases like these is applied to
understand the cause of injuries. (Id. at 11). Here, Dr. Shaw is not testifying about the
treatment of Mr. Sater’s injury, but its cause. Dr. Shaw’s medical experience in
diagnosis, as well as his expertise in general medicine and biomechanics, provides him
with the foundation to answer specific questions about Mr. Sater’s injuries, and renders

him qualified as an expert. (ECF 78 at 12–13). See Gayton, 593 F.3d at 617.
2. Methodology

Defendants make several objections to Dr. Shaw’s methodology for calculating
the physical forces experienced by Mr. Sater. First, they argue that he improperly
prioritizes the testimony of a witness who stated that before the accident he saw
Defendants’ garbage truck traveling at “40, 45, whatever the speed limit was.” (ECF 72
at 4). However, this witness did not observe the accident itself. Defendants compare this
statement with the findings of their accident-reconstruction expert, Michael O’Hern,
who used physical data from the crash scene to estimate that the garbage truck was
slowing down before impact and that its speed was between 17–21 mph at the time it
hit Mr. Sater’s pickup (Id. at 21). Defendants argue that “Dr. Shaw recklessly replaces

the physical evidence with [the witness’s] testimony.” (Id. at 20). In addition, they argue
that Dr. Shaw failed to consider specific variables which O’Hern referenced, including
the angular impact between the vehicles. (Id. at 10).
But as Plaintiffs note, Dr. Shaw does not replace O’Hern’s findings with the
witness’s testimony. Rather, he integrates them, using the witness’s estimate as the

higher bound for his calculations, and O’Hern’s findings as the lower bound. (Id.). This
does not contradict O’Hern’s testimony at all—in his deposition, O’Hern did not assert
that the data refuted a higher speed, but simply that he could not speculate about the
possibility of a higher speed. (ECF 72 at 7) (stating that “I don’t have the solid
foundation for the evidence” and “would not comment” on the possibility of the car
speed ranging above his estimate based on “the data I have at this point”). O’Hern

provides a recommended speed range but does not provide an absolute ceiling. Given
this, it was reasonable for Dr. Shaw to integrate O’Hern’s ex-post findings with the
(admittedly imperfect) testimony of a witness present when the crash occurred. And, by
incorporating O’Hern’s findings, Dr. Shaw explicitly acknowledged the evidence which
O’Hern based his findings on. (ECF 79 at 19) (“given that there was evidence of the
[garbage truck] braking, the larger values of acceleration and delta-V are upper limits”).

Of course, Dr. Shaw’s results are not impregnable, just as the data on which he bases his
opinions is not. Nor does he claim impregnable results—Dr. Shaw does not assert a
specific speed or force, but rather a broad range of possibilities.
This is different from Robb v. Burlington N. & Santa Fe Ry., 100 F. Supp. 2d 867
(N.D. Ill. 2000), the case which Defendants argue is “uncannily on point.” In Robb, the

expert picked one speed value without justifying his choice, gave no calculations based
on other lower speed estimates, and “did not even consider the possibility that [the
witness] might have been plausibly wrong about the speed.” Id. at 872–73. Here, Dr.
Shaw incorporates other lower speed estimates and considers the possibility that the
witness might have been wrong—the lower end of his range estimate, 17 mph, accounts

for the fact that the witness’s statement about the garbage truck traveling at “whatever
the speed limit was” may have been incorrect. (ECF 19–20).
If Defendants wish to critique the upper end of Dr. Shaw’s range based on the
reliability of his source, they may do so. But the fact that Dr. Shaw’ calculations
amalgamated the various limited and imperfect sources at hand is not a reason to bar
him from testifying. See Manpower Inc. v. Ins. of Pennsylvania, 732 F.3d 796, 806 (7th Cir.

2013) (“reliability is primarily a question of the validity of the methodology employed
by an expert, not the quality of the data used in applying the methodology”).
Defendants also argue that Dr. Shaw erred by using the acceleration rate for Mr.
Sater’s pickup as a stand-in for the acceleration experienced by Mr. Sater. Defendants
argue that instead, Dr. Shaw should have performed a more granular analysis of the
acceleration of Mr. Sater’s body inside the pickup. (ECF 72 at 27). Thus, Defendants

argue that Dr. Shaw presents an imperfect picture of the “occupant dynamics” inside
the car. (Id.).
But as Plaintiffs point out, the exact dynamics of Mr. Sater’s movement inside the
car are difficult to reliably measure given limitations in the data. (ECF 79 at 20). This is
almost always the case in car crashes and is why, as Plaintiffs explain, researchers often

use the acceleration forces experienced by the car as a “surrogate” for the forces
experienced by the occupant. (Id.). And, as Plaintiffs also point out, the specific
occupant dynamics in this case are rendered even harder to measure by the fact that Mr.
Sater’s seat broke during the crash. (Id. at 20–21).
Given all this, Dr. Shaw’s prudential choice to use better-known but more

generalized data (the movement of Mr. Sater’s pickup) in place of more specific but less
well-known data (the movement of Mr. Sater inside the vehicle during the crash) does
not render his methodology “speculation” or an “unfounded inference[]” and thus
unreliable under Rule 702. See Gopalratnam, 877 F.3d at 783 (discussing how it is “not the
trial court’s role to decide” whether an expert’s “opinions were ultimately correct” but
rather that the court is limited to “determining ‘whether the methodology underlying

that testimony [was] sound’” (quoting Smith, 215 F.3d at 719)). As always, these choices
can be questioned in cross-examination.
Defendants also argue that Dr. Shaw’s methodology in determining the cause of
Mr. Sater’s injuries was flawed in two respects. First, they argue that Dr. Shaw failed to
address conditions evident in a prior 2003 MRI when analyzing a 2021 MRI of Mr. Sater
taken after the accident. (ECF 72 at 32). But Dr. Shaw does address the relationship

between these two MRI records, discussing how the 2021 MRI is “substantially
different” from the 2003 MRI, and indicating changes which “are likely acute to
subacute changes.” (Id. at 23 & n.33). Second, Defendants argue that Dr. Shaw
contradicts himself by stating that flexion and axial loading would be necessary for Mr.
Sater’s injuries, without providing any evidence that Mr. Sater experienced forces which

would cause flexion/axial loading or providing sources which explain what the
threshold for those forces would be. (ECF 72 at 33). But Dr. Shaw’s statements about
flexion/axial loading were a rule statement of medical doctrine—an observation about
the type of forces necessary to cause the injuries observed in Mr. Sater. (Id. at 23). Dr.
Shaw’s conclusions about the presence of these forces are based on the fact of Mr.

Sater’s injuries, not the other way around. Defendants do not object or provide any
evidence that this is incorrect as a statement of medical doctrine. Dr. Shaw’s statements
regarding injury causation are sufficient for Rule 702.
B. Dr. Rick Wickstrom

Plaintiffs retained Dr. Wickstrom to measure Mr. Sater’s disability, which he did
two times using a series of exercises called a Functional Capacity Evaluation (“FCE”).
Both times, he concluded that Mr. Sater was 100 percent occupationally disabled and
unable to perform any gainful work. (ECF 75 at 5).
Defendants do not object to Dr. Wickstrom’s qualifications. Dr. Wickstrom
received a Bachelor of Science at Ohio State University and his Doctorate in Physical
Therapy from Alabama State University. He is certified as a medical examiner by the

Federal Motor Carrier Safety Administration, has had leadership positions within the
American Physical Therapy Association and the International Association of Rehab
Professionals, and was president of the Occupational Health Special Interest Group of
the American Physical Therapy Association (“APTA”). Dr. Wickstrom has also
published more than 30 articles and book chapters on topics related to functional

capacity testing and worker fitness. (ECF 82 at 9–10). Given this background, Dr.
Wickstrom is qualified to testify as an expert on Mr. Sater’s physical disability.
Defendants object that Dr. Wickstrom’s FCE protocol has not been peer reviewed
or published in any scholarly articles. However, while Dr. Wickstrom’s FCE protocol,
called the “WorkAbility FCE” has not been peer reviewed as such, it relies on a

substantial amount of peer-reviewed material, including two key sources which have
been authored by Dr. Wickstrom himself. In 2018, the Occupational Health Special
Interest Group of the APTA commissioned Dr. Wickstrom and three other authors to
compose a peer-reviewed resource on FCE performance, which was published by the
Academy of Orthopedic Physical Therapy. (ECF 81 at 12–13). Dr. Wickstrom also
authored a peer-reviewed document on best practices for FCE implementation. (Id. at

13). These materials are extensively cited in Dr. Wickstrom’s FCE protocol documents,
along with other peer-reviewed sources. (ECF 81-4). Additionally, Dr. Wickstrom’s FCE
protocol has been licensed to other clinical groups. (ECF 81 at 12).
Defendants also argue that Dr. Wickstrom’s evaluation of Mr. Sater deviated
from the best practices described in his own sources by neglecting to use “objective”
measurement tools such as a heart-rate monitor or force gauge. (ECF 75 at 9–10). For

example, Dr. Wickstrom only used heart-rate measurements to obtain a baseline for Mr.
Sater and only used a force gauge to measure grip strength. (ECF 75 at 11).
But Dr. Wickstrom explains that these decisions are entirely consistent with
accepted methodology. For example, he notes that he did not make extensive use of a
heart-rate monitor because Mr. Sater’s use of beta blockers would render the readings

unreliable for diagnosis purposes. (ECF 81 at 23). Defendants’ own expert agreed with
this. (ECF 81-6 at 1). Similarly, Dr. Wickstrom explains that he did not use a force gauge
to conduct push/pull tests on Mr. Sater because that part of the FCE was designed to
assess Mr. Sater’s ability to perform his specific job as a truck driver—an occupation
which does not require push/pull tests. (ECF 81 at 29).

Defendants argue that Dr. Wickstrom relied on “his own subjective beliefs” in
recording Mr. Sater’s responses, which violated his FCE protocol’s guidelines and
sources. (ECF 75 at 25). But Plaintiffs show that perceived exertion in conjunction with a
professional’s judgment is a valid measurement tool in the research community,
supported by many of Dr. Wickstrom’s sources. (ECF 81 at 29–31). One source actually
defends perceived exertion as a superior evaluation tool to heart rate and blood

pressure responses. (Id.). Together, these sources show that in the FCE context, arbitrary
subjective assertions are different from the “clinical observations of effort” which are
consistent with best practices. (Id. at 30).
Finally, Defendants argue that Dr. Wickstrom’s FCE implementation is not
reliable because he reached different results in his follow-up FCE. But Mr. Sater had
undergone cataract surgery, a total knee replacement, and physical therapy between the

two exams. (Id. at 22). Given these changes, a modified spread of results does not
indicate a problem with Dr. Wickstrom’s methodology.
Defendants have also moved to strike Dr. Wickstrom’s critical comments
regarding their own expert, Andreas Lohmar. Defendants are correct that an expert
may not attack the credibility of another expert. See Bamcor LLC v. Jupiter Aluminum

Corp., 767 F. Supp. 2d 959, 976 (N.D. Ind. 2011). However, critiques of another expert’s
methods or results are standard fare in the battle of the experts. See id. (“An expert may
criticize the methods, calculations, and conclusions offered by the opposing side’s
expert . . . [s]uch criticisms aid the trier of fact in determining how much weight to
assign the expert’s opinion in deliberation.”). Almost all of Dr. Wickstrom’s comments

appear to fall into this category.
As Defendants note, Dr. Wickstrom does state that Mr. Lohmar’s opinion is “not
a credible opinion.” But “credibility” is an ambiguous term. It can mean that someone is
not credible in the sense that their opinions are not well founded. See Webster’s Third
New International Dictionary 532 (2002) (defining “credible” as “entitled to
confidence”). In this sense, any time an expert makes a legitimate critique of another

expert’s methodology, he is calling their “credibility” into question. See Bamcor, 767 F.
Supp. 2d at 976. However, in a legal context, credibility is about the honesty,
truthfulness, or reliability of a witness. See, e.g., Relational, LLC v. Hodges, 627 F.3d 668,
673 (7th Cir. 2010) (“Credibility is earned, and here, [witness] simply failed to persuade
the court that he was telling the truth”); See also Black’s Law Dictionary, “witness,”
(2024) (defining “credible witness” as “a witness whose testimony is believable.”). In

the context of his report, Dr. Wickstrom appears to be making a claim about Dr.
Lohmar’s methodology, not his personal honesty or believability. Thus, this Court
declines to strike or exclude that statement at this time. If it later appears that Dr.
Wickstrom is making a credibility assessment of Mr. Lohmar in the legally
inappropriate sense, Defendants are free to make another motion.

Defendants have also moved to exclude Dr. Wickstrom’s testimony regarding
the causation of Mr. Sater’s injuries. For example, Dr. Wickstrom stated that Mr. Sater’s
inability to perform gainful employment was “a result of injuries suffered in the
accident,” which was a “career-ending event,” and that the accident “worsened or
aggravated . . . new areas of problems.” (ECF 75 at 7–8). Plaintiff responds that Dr.

Wickstrom is entitled to rely on medical diagnoses and opinions.
There are two problems with Dr. Wickstrom’s statements. First, he does not
clearly signal that his comments regarding Mr. Sater’s injuries are mere references
rather than his own expert opinions—and his statement that “I do have an opinion on
medical causation” does not help things. (Id. at 31). Second, even if Dr. Wickstrom is
only relying on medical opinions, this Court must still evaluate whether his testimony

in this area passes the Daubert threshold—here, whether it will “assist the trier of fact to
understand the evidence or to determine a fact in issue.” Gopalratnam, 877 F.3d at 779
(quoting Meyers v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010)). Plaintiffs have
retained several physicians to discuss medical causation. (ECF 97 at 16). And Dr.
Wickstrom has not explained how a discussion of causation is necessary to his analysis
of Mr. Sater’s ongoing disabilities. Thus, for Dr. Wickstrom to reference medical

opinions which he did not reach himself and is not personally qualified to testify on will
not assist the trier of fact in this case, and may mislead the jury by attributing Dr.
Wickstrom’s own expert credentials to the medical opinions which he merely relays. See
Daubert, 509 U.S. at 595. Thus, this Court excludes Dr. Wickstrom from testifying in any
way regarding the causation of Mr. Sater’s injuries.

C. Sara Ford

Plaintiffs retained Ms. Ford to calculate Mr. Sater’s lost earnings due to his
injuries. Ms. Ford used an analysis known as the “Vocational Economic Rationale
(“VER”), which involved several steps. First, Ms. Ford determined Mr. Sater’s earning
capacity before and after the accident, using his W-2 records and fringe benefit data
from the U.S. Bureau of Labor Statistics. (ECF 77 at 9–10). Then, she projected these
earnings across Mr. Sater’s “worklife expectancy,” or the number of years of future
employment (in this case 6.6 years), while accounting for a compensation growth rate
based on the average long-term growth rate measured by the U.S. Bureau of Labor
Statistics and a discount rate based on the return rate of U.S. Federal Reserve Treasury
Bills (Id. at 10).

Defendants do not object to Ms. Ford’s qualifications. Ms. Ford received her
Bachelor of Arts in Labor Economics from the University of Cincinnati and her Masters
of Rehabilitation Counseling from the University of Kentucky. She has provided
testimony in more than 170 trials at the state and federal level. (ECF 77 at 4–5). The
Court finds that Ms. Ford is qualified to testify regarding Mr. Sater’s loss of earning
capacity.

Defendants attack the reliability of Ms. Ford’s VER methodology on two
grounds. First, Defendants argue that Ms. Ford’s methodology is not well regarded
within the scientific community. Second, Defendants attack the methodology on its
merits, arguing that it is unreliable because it is overly generalized and fails to account
for Mr. Sater’s specific life circumstances. (ECF 71 at 14).

Defendants assert that Ms. Ford’s VER method has “never been peer reviewed,”
and cite three articles by two authors who have criticized its methodology. (Id. at 5). But
Plaintiffs cite several peer-reviewed articles defending the VER’s methodology. (ECF 77
at 13).2 Additionally, a number of courts have agreed with the determination that Ms.
Ford’s methodology has been sufficiently peer reviewed. See Honeycutt v. Cabins for You,

LLC, No. 3:21-CV-311, 2023 WL 6059790, at *7 (E.D. Tenn. March 13, 2023); (“The VER

2 There appears to be a dispute about whether one of the articles was published in the peer-reviewed
section of a journal. Defendants assert that this article was invited for publication rather than evaluated
by a panel. (ECF 71 at 3). However, this is not particularly important, because that is not the only peer-
reviewed article Plaintiffs point to. (ECF 77 at 13).
methodology Ford relies on has also been peer-reviewed and endorsed by multiple
journals and economists”); Jenson v. Lowe’s Home Centers, LLC, No. 1:22-CV-1100-JRS-

CSW, 2024 WL 1340324, at *4 (S.D. Ind. Mar. 29, 2024) (“a previous version of the [VER]
has been published in a peer reviewed journal, as has support for the [VER] itself”);
Kaepplinger v. Michelotti, No. 17- CV-5847, 2022 WL 267886, at * 12 (N.D. Ill. Jan. 28, 2022)
(discussing how articles on the VER methodology have been “repeatedly accepted for
publication in peer-reviewed journals and presented in peer-reviewed forums”).
Nor does the fact that some economists have criticized this method render it

inadmissible under Daubert. See Erickson v. Baxter Healthcare, Inc., 151 F. Supp. 2d 952,
965 (N.D. Ill. 2001) (“defendants cite no authority to support the notion that ‘consensus’
is the touchstone of reliability under Rule 702”). It is not for this Court to pick a side in
an academic debate about economic predictions. See Schultz 721 F.3d at 433 (“Rule 702
[does] not require, or even permit, the district court to choose between . . . two studies

at the gatekeeping stage. Both experts [are] entitled to present their views, and the
merits and demerits of each study can be explored at trial.”).
Defendants cite articles criticizing the method, (ECF 71 at 6), but Plaintiffs cite
articles in the same journal, responding to this criticism (ECF 77 at 16). Defendants
point to a survey in which roughly 62 percent of respondents criticized a key

component of the VER method. (ECF 71 at 27). However, the flipside of this is that
roughly 18 percent of economists answered that they did consider that component
“reliable for purposes of estimating work life.” Id. Given that this survey had 170
respondents, and all respondents were members of the National Association of Forensic
Economics (“NAFE”), that’s roughly 30 positive responses from members of NAFE.
(ECF 70-1 at 179) (citing Michael L. Brookshire et al., A 2009 Survey of Forensic

Economists, 21 J. Forensic Econ. 5, 22–23 (2009)). Rather than showing a comprehensive
institutional rejection, all Defendants’ sources tend to show is an ongoing debate. And
the presence of an ongoing academic debate does not by itself render a methodology
unreliable for purposes of Daubert. See Schultz, 721 F.3d at 433.
Defendants argue that the VER method is problematic because it does not use
occupation-specific statistics to calculate either Mr. Sater’s remaining worklife

expectancy time or his future earnings growth. (ECF 71 at 4–5, 20, 26). Instead, Ms. Ford
used “broad survey data for all U.S. workers.” (Id.). Despite Defendants’ claim that their
objection is more about Ms. Ford’s methodology than her data, it really does concern
data—specifically, the fact that she did not use more individually-tailored data for
predicting Mr. Sater’s wage growth rate and worklife expectancy. (ECF 71 at 33).

But Defendants fail to show that Ms. Ford’s use of general statistical data renders
her analysis methodologically unreliable for purposes of Rule 702. First, as Plaintiffs
note, it might be predictively problematic to use highly specific data, because “it is
incorrect to say a given worker’s worklife expectancy and earning capacity are limited
to a single occupation.” (ECF 77 at 12). After all, a worker might switch jobs or

locations, or acquire new training or certifications during his lifetime. Thus, a prediction
based purely on the wage growth for a specific type of occupation might fail to
statistically account for the probability of switching occupations. (Id.).
Moreover, Defendants do not respond to Plaintiffs’ assertion that the data for the
“average wage growth of similarly situated individuals,”—in this case, truck drivers—

simply does not exist at this time. (Id. at 12). Thus, while there is substantial data
recorded by the U.S. government on the general wage growth rate, Defendants have not
shown that job-specific data exists. (Id.). Defendants argue that Ms. Ford’s methodology
is inadequate as compared to an alternate hypothetical methodology, but they do not
show that this alternate methodology is realistically possible.
Ms. Ford’s VER is a far cry from the inadmissible examples cited by Defendants.

See e.g., Am. Honda Motor Co. v. Allen, 600 F.3d 813 (7th Cir. 2010) (excluding expert who,
without any support, asserted what he thought was a “reasonable” performance
standard); Gopalratnam 877 F.3d at 784 (excluding expert whose “central underlying
premise” about battery chemistry was “not only unsupported, but in fact contrary to
generally accepted battery science”); Lang v. Kohl’s Food Stores, Inc., 217 F.3d 919, 924

(7th Cir. 2000) (affirming exclusion of expert whose “methodology” was mere “talking
off the cuff—deploying neither data nor analysis”).
The VER method’s wide adoption among courts across the country and in this
circuit confirms that it is reliable for purposes of Rule 702.3 See Eliason v. Superior Ref. Co.
LLC, No. 19-CV-829-WMC, 2021 WL 4820252, at *6 (W.D. Wis. Oct. 15, 2021); Rossi, 2013

WL 1632065, at *2-4 (N.D. Ill. Apr. 16, 2013); Dahl v. Hofherr, No. 3:14-CV-1734-MGG,

3 Defendants cite Sturgis v. R&L Carriers, Inc., 554 F. Supp. 3d 976 (N.D. Ind. 2021) as an example of a case
where a court found the VER unreliable under Rule 702. However, that case was an outlier at the time,
and courts have declined to follow its analysis. See, e.g., Honeycutt, 2023 WL 6059790; Eliason, 2021 WL
4820252; Kaepplinger, 2022 WL 267886.
2016 WL 8668498, at *8-9 (N.D. Ind. Nov. 18, 2016); Barr v. United States, No. 315-CV-
01329-DRH-PMF, 2018 WL 4815413, at *6 (S.D. Ill. Oct. 4, 2018).

The use of statistical generalities does not render Ms. Ford’s VER methodology
pure speculation or guesswork. Rather, the methodology takes known starting
conditions (Mr. Sater’s salary at the time of his injury) and extrapolates those conditions
into the future. Like any statistical predictive method, Ms. Ford’s VER depends on data
which is necessarily general to some degree, and thus will never be perfect—not
because Ms. Ford’s method is “unreliable” in the sense that it is speculative or arbitrary,

but because any general approximation can fail to predict a specific individual’s future.
Defendants are free to question how applicable these generalities are in cross-
examination. See Artis v. Santos, 95 F.4th 518, 527 (7th Cir. 2024) (“After the Daubert
threshold, the ‘familiar tools of vigorous cross-examination, presentation of contrary
evidence, and careful instruction on burden of proof’ will do.” (quoting Lapsley v. Xtec,

Inc., 689 F.3d 802, 805 (7th Cir. 2012) (internal quotations omitted)). The Court finds that
Ms. Ford’s method is reliable for purposes of Rule 702 by a preponderance of the
evidence.
D. Supplemental Affidavits of Sara Ford and Dr. Rick Wickstrom

Defendants have also moved to strike the supplemental affidavits of both Sara
Ford and Dr. Rick Wickstrom under Rule of Civil Procedure 26 and Rule of Evidence
702.
1. Rule 26

Federal Rule of Civil Procedure 26(a)(2)(B) dictates that a party must accompany
its disclosure of an expert witness with a written report containing “a complete
statement of all opinions the witness will express and the basis for them” as well as “the
facts or data considered by the witness” in forming the opinions. If a party fails to
comply with this requirement, then they cannot use that witness to supply evidence
unless the failure was “substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
However, under Rule 26(e)(1), a party who has made a disclosure “must supplement or

correct its disclosure or response . . . in a timely manner if the party learns that in some
material respect the disclosure or response is incomplete or incorrect.”
Thus, when a party files a supplemental affidavit after an expert disclosure,
courts must determine whether the affidavit is truly “supplemental” under Rule 26(e),
or an attempt to subvert the requirements of Rule 26(a) by amending or replacing the

data or theoretical basis for the expert’s opinion. Parties may not “offer new opinions
under the guise of the supplemental label” or “sandbag one’s opponent with claims and
issues which should have been included in the expert witness’ report.” Whole Woman’s
Health Alliance v. Hill, No. 1:18-CV-01904-SEB-MJD, 2020 WL 7129727, at *2 (S.D. Ind.
Dec. 3, 2020) (citing Welch v. Eli Lilly & Co., No. 1:06-CV-0641-RLY-JMS, 2009 WL

700199, at *4 (S.D. Ind. Mar. 16, 2009)); Allgood v. Gen. Motors Corp., No. 1:02-CV-1077-
DFH-TAB, 2007 WL 647496, at *3 (S.D. Ind. Feb 2, 2007)). A “purportedly supplemental
report that is prepared by a different expert or introduces new theories is better
characterized as a new report.” Cerda v. Chicago Cubs Baseball Club, LLC, No. 17-C-9023,
2023 WL 11951488, at *3 (N.D. Ill. Apr. 6, 2023) (citing Allstate Ins. v. Maytag Corp., No.
98-C-1462, 1999 WL 203349, at * 6 (N.D. Ill. Mar. 30, 1999)). Thus, courts will discard

supplemental affidavits which conflict with prior deposition testimony or add
significant new theoretical material. On the other hand, “[a] revised expert report that is
consistent with the core opinions expressed in the original expert report is likely to
qualify as a supplemental report.” Id. (citing Gilbane Bldg. Co. v. Downers Grove Cmty.
High Sch. Dist. No. 99, No. 02-C-2260, 2005 WL 838679, at *8 (N.D. Ill. Apr. 5, 2005)).
With regard to Ms. Ford, the titles of her additional sources identify them as

responses to some of the key arguments made by Defendants in their motion to exclude
her testimony. One of the sources is a response to an academic article cited by
Defendants. (ECF 105 at 2). And the other is a response to the district court case that
Defendants rely on for many of their arguments. (Id.). These opinions are consistent
with Ms. Ford’s initial disclosure, and fall within the ambit of a legitimate response to

arguments raised in Defendants’ Daubert motion. An expert does not need to “cover any
and every objection or criticism of which an opposing party may conceivably
complain,” in their initial disclosure, and need not “stand mute in response” to an
opposing party’s Daubert motion. Kapplinger v. Michelotti, No. 17-CV-5847, 2022 WL
267886, at *12 n.21 (N.D. Ill. Jan. 28, 2022)(citing Allgood v. Gen. Motors Corp., No. 102-

CV-1077-DFH-TAB, 2006 WL 2669337, at *5 (S.D. Ind. Sept. 18, 2006)).
In Dr. Wickstrom’s case, Defendants make a perfunctory reference to several
parts of his Affidavit as examples of “new theories or factual bases,” specifically, his
statements that: Mr. Sater’s medications disqualified him from driving a truck; no jobs
were available to Mr. Sater because he could not “manipulate competitively”; Mr.
Sater’s FCE was split between a job-specific and “any occupation” category; and that he

was trained in a certain FCE method (the “Blankenship” method). Defendants also
object to the Affidavit’s explanation of how the different results in the second FCE
resulted in the same conclusion as the first. (ECF 106 at 3 & n. 1).4
However, each of these statements is not providing a “new theory” but simply
providing additional detail to address arguments made by Defendants.
Mr. Sater’s medications were listed as part of the recorded data in Dr.

Wickstrom’s second FCE report. (ECF 67-8 at 104). Dr. Wickstrom re-emphasized this in
his Affidavit in order to respond to Defendants’ contention that Dr. Wickstrom’s
conclusions were unfounded—but no new data was introduced. Likewise, Dr.
Wickstrom’s description of Mr. Sater as being unable to “manipulate competitively”
was an elaboration of his earlier finding that Mr. Sater had limited mobility in actions

that involved changing posture or bending his neck. (ECF 67-8 at 110). Dr Wickstrom’s
discussion of “job-specific” and “any occupation” components was not a “new theory”
but rather a response to Defendants’ argument that he did not properly tailor his
examination criteria. (ECF 101 at 6). Dr. Wickstrom mentioned that he was trained in
the “Blankenship” functional capacity evaluation method in order to demonstrate that

he was qualified to rebut the opinions of Defendants’ own expert, who was trained in

4 Defendants also object to the fact that Dr. Wickstrom “did not disclose that he did not perform a
keyboard test during FCE 2.” ((ECF 106 at 3 & n. 1). It is hard to see how an expert’s follow-up statement
about what he did not do (and did not claim to do) is “new material” for purposes of this analysis.
the Blankenship method. (ECF 81-3 at 17). Last, Dr. Wickstrom discussed the differences
between his two FCE’s in order to rebut the Defendants’ claim that the inconsistencies

between them were a sign of invalidity—explaining that the differing FCE data was
“consistent with the interventions that Mr. Sater had between my two exams.” (ECF 81-
3 at 14).
Defendants also point to an article discussed in the Affidavit which was not
mentioned in Dr. Wickstrom’s deposition (but was cited in Dr. Wickstrom’s original
disclosure). (ECF 101 at 7). But Dr. Wickstrom and Plaintiffs place special emphasis on

this article in order to respond to Defendants’ argument that his clinical observations of
perceived pain or exertion were not a reliable or valid measurement tool. (ECF 81-3 at
17; ECF 82 at 30–31). Thus, the subsequent heightened focus on the article is not a
change of theory or belated disclosure of critical material.
2. Rule 702

Defendants also argue that both Dr. Wickstrom and Ms. Ford’s affidavits should
be stricken as unhelpful to the jury under Fed. R. Evid. 702. These arguments mainly
duplicate the arguments for striking the affidavits under Rule 26. For Dr. Wickstrom,
the Defendants argue that his Affidavit “offer[s] new opinions” or is a “desperate
attempt” to “cobble together” an ex-post explanation. (ECF 97 at 3). This argument fails

since, as explained above, Dr. Wickstrom’s supplemental comments are not “new
opinions” but responses to points made by the Defendants. For Ms. Ford, Defendants
object that her Affidavit is unhelpful since it is primarily a response to arguments
discussed in a case where her method was rejected. (ECF 105 at 5). But Defendants
extensively rely on that case, so this focus is warranted. (ECF 71 at 4).

Given that the jury must determine how much weight to give Ms. Ford and Dr.
Wickstrom’s testimony, this Court finds that the additional responsive methodological
discussion provided in both supplemental affidavits will be helpful to the jury. The
Court declines to strike Plaintiffs’ supplemental affidavits of Dr. Wickstrom and Ms.
Ford under Rule 702.
CONCLUSION

For the foregoing reasons, Defendants’ motions to exclude the expert testimony
of Sara Ford and Dr. George Shaw are DENIED. (ECF 70; 72). Defendants’ motion to
exclude the expert testimony of Dr. Rick Wickstrom is granted (in part) only as to Dr.
Wickstrom’s testimony regarding the causes of Mr. Sater’s injuries. (ECF 74).

SO ORDERED on December 8, 2025.

/s/Cristal C. Brisco
CRISTAL C. BRISCO, JUDGE
UNITED STATES DISTRICT COURT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11216161. Public record. Not legal advice.