Court admits the opinions presented by the Defense Medical Expert Witnesses after analyzing the Plaintiff's Medical Records

Court admits the opinions presented by the Defense Medical Expert Witnesses after analyzing the Plaintiff’s Medical Records

This case involved a personal injury lawsuit filed by Plaintiff, Morgan Fitch against her employer, Defendant, BNSF Railway Company (BNSF), under the Federal Employers’ Liability Act (FELA). On February 28, 2020, the Plaintiff was fulfilling her duties as a conductor for the Defendant, engaged in the transportation of a train from Minot, North Dakota to Rugby, North Dakota. While in the locomotive cab with a three-person train crew, the train suddenly initiated an emergency stop without any prior warning. The abrupt force of the stop resulted in the Plaintiff being thrown forward into the locomotive’s nose, leading to injuries in her right arm and shoulder. Additionally, throughout the litigation process, the Plaintiff asserted that she had sustained neurological and cognitive injuries, including a traumatic brain injury.

Fitch filed motions to exclude the expert testimony of three defense witnesses that BNSF disclosed: Melissa Castro, a neuropsychologist; Frederick Strobl, a neurologist; and Steven Moen, an orthopedic surgeon. Fitch argued in her motions and cited the supplemental report of her own expert, Dr. Steven David Lockman, that the methodology and reasoning underlying the defense experts’ testimony was not scientifically valid.

Neuropsychology Expert Witness

Dr. Melissa Castro is a clinical neuropsychologist with expertise in areas such as concussion, traumatic brain injury, post-traumatic stress disorder, mild cognitive impairment, dementia, and cross-cultural assessments. She is board certified by the American Board of Clinical Neuropsychology and licensed to practice in Minnesota and Wisconsin. Her educational background includes a doctorate in psychology from the Ponce School of Medicine and Health Sciences and a bachelor’s degree in psychology from Concordia University. Castro currently serves as a clinical neuropsychologist at the Minneapolis Clinic of Neurology. 

Neurology Expert Witness

Dr. Frederick Thomas Strobl is a medical doctor with specialized expertise in the field of neurology. His educational background includes a bachelor’s degree in electronics engineering from the University of Minnesota as well as a medical degree from the University of Minnesota Medical School. Strobl completed his residency training in neurology at the University of Minnesota Hospitals, followed by a fellowship at Mayo Clinic. He is licensed to practice medicine in Minnesota and is board certified in neurology by the American Academy of Neurology as well as in electromyography by the American Board of Electrodiagnostic Medicine. Strobl is the co-founder and former Chairman and CEO of CNS, Inc., known for creating Breathe Right Nasal Strips. He currently serves as a mentor, presenter and keynote speaker for the Med Tech Accelerator program, an alliance between Mayo Clinic and Arizona State University. Additionally, Strobl hosts the podcast Brain Health Minute, covering various neurology topics.

Orthopedic Surgery Expert Witness

Dr. Steven A. Moen earned his Bachelor of Arts in Chemistry from Saint Olaf College. He went on to earn his Doctor of Medicine from the University of Minnesota School of Medicine, followed by a General Surgery internship at the University of Minnesota. Moen completed his Orthopaedic Residency Program at the University of Minnesota and is licensed to practice in Minnesota. He is also a Board Certified Orthopedic Surgeon. He has been practicing as an Orthopedic Surgeon at Twin Cities Orthopedics in Edina, Minnesota since 1998. 

Discussions by the Court

Rule 702 of the Federal Rules of Evidence outlines criteria for expert testimony admissibility. The rule requires the trial judge to serve as a “gatekeeper,” admitting expert testimony if it is both relevant and reliable. The judge has broad discretion in assessing reliability. Credibility and weight of expert testimony are left to the trier of fact. Only fundamentally unsupported expert opinions may be excluded. Parties may present scientifically valid expert opinions that assist the jury, with Daubert emphasizing a preliminary assessment of scientific validity. Courts encourage liberal admission of expert testimony, and the traditional means of challenging evidence include cross-examination and presenting contrary evidence. District Courts are cautioned against weighing competing expert opinions, leaving such decisions to the jury when opinions are within a reasonable range of expert disagreement.

BNSF engaged Castro, a clinical neuropsychologist, to conduct a Rule 35 medical examination of Fitch. Castro’s conclusions consistently expressed skepticism regarding the severity of Fitch’s brain injury, contending that its impact on her life would be minimal. These conclusions were founded on three scientifically unsound premises: (1) an assertion that Fitch was deliberately exaggerating her injuries for personal gain, based on specific test results (namely symptom validity tests (SVTs) and performance function tests (PFTs)); (2) a claim that Fitch did not meet the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) diagnostic criteria for  post-traumatic stress disorder (PTSD); and (3) an argument that Fitch should have already recovered from her brain injury. The Plaintiff argues that Castro’s expert opinions were derived from information that was incorrect, inaccurate, incomplete, and incompetent. As a result, the Plaintiff asserted that Castro’s trial testimony would be unreliable and invalid under Rule 702 and should be excluded.

The Court, having thoroughly examined the parties’ submissions, determined that Castro is an experienced, qualified, and competent board-certified neuropsychologist. The record showed that Castro conducted a comprehensive examination and interview of the Plaintiff, administered relevant tests, and thoroughly reviewed the Plaintiff’s medical records before formulating her conclusions. The Court found that Castro’s methodology and reasoning were scientifically valid and applicable to the facts of the case. Consequently, the Court concluded that Castro’s expert testimony was both relevant and reliable, aligning with Rule 702 of the Federal Rules of Evidence.

BNSF enlisted Strobl, a board-certified neurologist, to conduct a Rule 35 medical examination of Fitch. Strobl’s conclusions consistently downplayed the severity of Fitch’s alleged brain injury, asserting that she suffered no injury and that the effects would have no lasting impact. The Plaintiff argued that Strobl’s conclusions were rooted in two scientifically unsound premises: (1) minimizing Fitch’s injury based on information from the Cleveland Clinic website, the injury not being recognized in the emergency department, and the absence of physical evidence of trauma at the time of the incident; and (2) interpreting specific test results ( namely Electromyography(EMG)) to ostensibly rule out a brachial plexus injury. The Plaintiff contended that Strobl’s conclusions were not merely a difference of opinion but rather stemmed from unreliable and invalid information, and therefore, advocated for the exclusion of Strobl’s testimony in the case.

The Court, having reviewed the matter, determined that Strobl was an experienced, qualified, and competent board-certified neurologist. Strobl’s opinions were based on a thorough examination of the Plaintiff and an assessment of her medical history from records. The Court concluded that the methodology and reasoning behind Strobl’s testimony were scientifically valid and applicable to the case’s facts. Consequently, the Court found Strobl’s expert testimony to be relevant, reliable, and in accordance with Rule 702 of the Federal Rules of Evidence.

BNSF engaged Moen, a board-certified orthopedic surgeon, to conduct a Rule 35 medical examination of Fitch. Moen concluded that Fitch had a soft-tissue injury to her right shoulder and did not suffer a specific brachial plexus injury. He based this conclusion on an April 2020 Electromyography (EMG) that he characterized as “essentially normal.” Moen asserted that brachial plexus injuries typically result from birth trauma or major trauma, such scenarios were inconsistent with Fitch’s emergency room examination where no swelling, bruising, or bony abnormalities were noted. The Plaintiff argued that Moen’s reasoning was logically flawed as it incorrectly assumed that the April 2020 EMG ruled out the possibility of a brachial plexus injury. Consequently, the Plaintiff asserted that Moen’s conclusions were fundamentally flawed, unreliable, and invalid, advocating for his exclusion from testifying regarding Fitch’s brachial plexus injury.

Upon examination, the Court determined that Moen was an experienced, qualified, and competent board-certified orthopedic surgeon. Moen conducted an examination of the Plaintiff and assessed her medical history from records. The Court concluded that the methodology and reasoning behind Moen’s testimony were scientifically valid and applicable to the case’s facts. As a result, the Court found Moen’s expert testimony to be relevant, reliable, and in accordance with Rule 702 of the Federal Rules of Evidence.

Therefore, the Plaintiff’s motions sought the Court’s evaluation of competing expert opinions, a matter pertaining to the weight assigned by the factfinder rather than the admissibility of such testimony. The Court emphasized the appropriate approach to challenge expert opinions through robust cross-examination and the presentation of conflicting evidence, rather than wholesale exclusion at trial, citing precedent Olson v. Ford Motor Co., 411 F. Supp. 2d 1137, 1145 (D.N.D. 2006). The Court refused to overstep the jury’s role in determining credibility and the weight to be given to the evidence.


The Court denied the Plaintiff’s motions to exclude the testimony of defense medical experts, Melissa Castro, Frederick Strobl, and Steven Moen. The Court found they were qualified experts whose methodology and reasoning was scientifically valid. It would be up to the jury to determine how much weight to give their testimony. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

Key Takeaways

The expert witness testimony in this case relates to the standards for admissibility under Rule 702. The Court serves as a “gatekeeper” in assessing whether expert opinions are relevant and reliable. However, Courts give broad discretion to trial judges on determinations of reliability. Once expert testimony passes the reliability threshold, issues of credibility and weighing competing testimony fall to the trier of fact, usually the jury. Wholesale exclusion of expert opinions is meant to be the exception rather than the norm. Courts should not examine whether the expert’s conclusions are necessarily correct or which theory among competing ones has superior merit. Rather, as long as qualified experts have utilized scientifically valid reasoning that assists the trier of fact, exclusion is unwarranted even if some disagreement exists. Here, despite variances in conclusions reached, the Court found that all three defense experts proffered relevant and sufficiently reliable testimony based on examination of the Plaintiff and her records along with application of sound methodology. With liberal admission standards favoring allowing expert testimony, the Court denied motions to exclude these witnesses. The jury will now decide what weight to afford each expert opinion at trial during its deliberations. Vigorous cross-examination provides the appropriate tool for addressing shaky expert testimony rather than exclusion.


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