Following an automobile accident in which driver Ronald Skinner struck Plaintiff’s vehicle, Plaintiff subsequently filed suit against Defendants. To offer opinion testimony as to Plaintiff’s damages, Plaintiff’s counsel identified Dr. Manijeh Berenji, an occupational and environmental medicine physician, as an expert life care planner and emailed Defendants a life care plan for Plaintiff that Berenji prepared.
Compiled after Berenji conducted a “detailed review” of Plaintiff’s medical records and interviewed Plaintiff, Berenji’s life care plan listed medical costs that Plaintiff was likely to incur—including surgeries such as a lumbar discectomy, lumbar hardware removal, and cervical microdiscectomy, various injections, and a Functional Restoration Program—totaling $446,350.
Defendants contended that Berenji failed to meet the substantive requirements of expert testimony pursuant to Federal Rule of Evidence 702 and Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Occupational Medicine Expert Witness
Manijeh Berenji is board-certified in occupational and environmental medicine as well as public health in general preventive medicine. She is the chief of Occupational Health at VA Long Beach Healthcare System.
She has over 10 years of experience in occupational and environmental medicine, preventive medicine, and population health.
Discussion by the Court
Plaintiff failed to properly disclose Berenji as an expert witness
Defendants argued (1) that Plaintiff’s disclosure of Berenji failed to meet Rule 26(a)(2)(B)’s requirements for witnesses specifically retained to provide expert testimony and (2) Plaintiff cannot meet his burden in showing the noncompliance was justified or harmless.
Defendants first argued that Plaintiff failed to properly disclose Berenji as an expert witness because although Plaintiff’s counsel emailed the life care plan to Defendants, Plaintiff did not comply with Rule 26(a)(4)’s requirement that an expert disclosure be written, signed, and served on the other party.
Next, Defendants argued that Berenji’s written report failed to satisfy the requirements of Rule 26(a)(2)(B) for experts specifically retained to provide expert testimony. First, they argued, Plaintiff failed to meet the requirement to list all other cases in the past four years in which the witness has testified as an expert witness—despite that Berenji later testified that she is deposed at least a few times per month. The Court noted that Berenji’s life care plan did not include any such list.
Although Defendants ultimately obtained a copy of Berenji’s CV, they obtained it through a subpoena to Medical Life Care Planners, not Plaintiff’s expert disclosure. The Court held that Plaintiff failed to provide the basis for the expert’s qualifications.
While Defendants did ultimately depose Berenji, the Court held that Plaintiff’s failure to disclose the other cases in which she has provided expert testimony prejudiced Defendants by limiting their ability to compare her testimony in other cases and cross-examine her about any similarities or inconsistencies.
Berenji’s testimony failed Rule 702’s requirements
1. Qualifications
Defendants first argued that Berenji was not qualified to testify as an expert witness regarding life care planning because (1) she was not certified as a life care planner and (2) she lacked experience in the field. Although Defendants acknowledged that lack of certification was not dispositive, they argued that such a lack—paired with the fact that Berenji had only been preparing life care plans for about a year and only had any training by way of the introductory module of certification coursework and by following a listserv—demonstrated that she was not qualified to speak as an expert in that area.
2. Reliability
Defendants argued that Berenji “failed to take into account” that none of Plaintiff’s treating physicians recommended surgery when she formulated her life care plan. Berenji neither spoke with nor received any information from any of Plaintiff’s treating physicians.
In sum, Defendants argued that because Berenji’s life care plan was based on generalized medical guidelines, rather than Plaintiff’s specific circumstances with his treating physicians, Berenji’s expert opinion was not based on “sufficient facts or data.”
Because she did not discuss the need for more surgeries with qualified physicians, the Court held that Berenji cannot offer the requisite reliability for her opinions because she necessarily relied on her own lack of expertise or resorted to a generic set of guidelines to support her opinions.
The Court disagreed with the suggestion that Berenji’s testimony “did not relate to any issue in the case.” Although it may be disputable and unreliable, it certainly would be relevant if allowed. That said, given that the Court agreed that Berenji’s testimony failed Rule 702’s other requirements (namely, her lack of qualification to provide spinal and other surgery recommendations and her lack of consultation with the treating physicians), the Court found that her expert testimony must be excluded.
Held
The Court granted Defendant’s motion to strike Manijeh Berenji because her testimony failed to meet the substantive standard for expert witnesses under Federal Rule of Evidence 702 and Daubert.
Key Takeaways:
- The Court held that Berenji is unqualified to provide spinal and other surgery recommendations. She previously testified that she is not in a position to recommend spinal surgeries to patients and does not have training in the areas in which she recommended Plaintiff have treatment (spinal surgery, neurosurgery, orthopedics, physical therapy, pain management, optometry, or radiology).
- The Court found that Berenji’s guideline recommendations are not based on any consultation with Plaintiff’s treating physician because she did not discuss the need for more surgeries with qualified physicians.
Case Details:
| Case Caption: | Hamilton V. Louisville Cartage Co Inc Et Al |
| Docket Number: | 5:23cv241 |
| Court: | United States District Court, Georgia Middle |
| Date: | May 21, 2024 |
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