Easter filed a claim with UNUM, the issuer of his long-term disability insurance policy, asserting he was disabled since December 21, 2019 and unable to continue practicing dentistry. UNUM initially determined he was totally disabled pursuant to the policy and started to pay him benefits. But his claim was later closed after UNUM determined that neither [an] injury or sickness restricted his ability to perform the material and substantial duties of his regular occupation. Easter disagreed and this breach-of-contract action followed.
Easter’s only remaining disability theory is anxiety. The theory is advanced by a Dr. Delaney, and as Easter himself puts it, “the posture repeatedly assumed by dentists can cause pain which then increases [Easter]’s anxiety symptoms which then cause[] his tremors and tics.” Easter asserts that this results in his total disability under the policy, and he is thus entitled to the policy benefits.
UNUM filed a Daubert motion to exclude any testimony by Dr. John Lawrence Merritt and Easter agreed to the exclusion of Merritt’s testimony except as to two topics: Merritt’s observation of Easter’s “shakiness/motor tics” and “as to the ergonomic challenges faced by dentists which has bearing on the symptoms suffered by [Easter].”
Physical Medicine & Rehabilitation Expert Witness
John Lawrence Merritt has over 40 years of experience as clinician, teacher and researcher, and as an expert witness in complex, high profile cases for spinal cord injury, brain injury, catastrophic injuries; plaintiff and defense. His expertise lies in developing & reviewing Life Care Plans. He is board certified in brain injury medicine, spinal cord injury medicine, physical medicine and rehabilitation, and in internal medicine.
Discussion by the Court
Merritt’s observations of Plaintiff
Regarding Merritt’s testimony as to any shakiness/motor tics he personally observed during his December 4, 2023, examination of Easter, the Court held that this portion of Merritt’s testimony is being offered only for what he observed when he examined Easter—namely, that he observed Easter’s alleged tics/shakiness. And “a physician’s observation of a patient’s injury during treatment is permissible lay testimony (assuming it is otherwise admissible).”
Thus, none of UNUM’s Daubert arguments apply to or prevent Merritt from testifying as to what he saw while examining Easter. There is no need for Merritt to be a psychiatrist or to have supporting and contemporaneous medical records to recount what he observed. Nor are UNUM’s cited social security cases analyzing whether administrative law judges “improperly discounted the opinions of” doctors applicable to Merritt’s anticipated testimony.
Ergonomics of a dental practice
Plaintiff sought to have Merritt testify as an expert witness “regarding the issue of dental ergonomics and its effect on [Easter]’s condition.” UNUM contended that this portion of Merritt’s proffered testimony failed Daubert’s three-prong test.
Merritt lacks the qualification to speak on dentistry ergonomics
For the first prong, Easter never identified Merritt as an ergonomics expert or explained how his various board certifications in brain injury medicine, spinal cord injury medicine, physical medicine and rehabilitation, and in internal medicine make Merritt qualified to speak on ergonomics.
The Court found that Easter failed to establish Merritt’s qualification to speak on dentistry ergonomics.
Merritt’s reliability is not established
As to the second prong, Easter sought to establish Merritt’s reliability by pointing out that “his report attached citations to a number of articles pertaining to the physical loads on dentists,” including one apparent peer-reviewed article authored by Merritt himself in 1987.
The Court held that the citation of the articles alone fails to establish that Merritt is qualified or that his methodology is reliable.
Furthermore, Easter’s brief and Merritt’s report only illustrate his ergonomic conclusions. Neither discuss any principles, methodologies, or ideas advanced in the articles or otherwise, much less how they were applied by Merritt to reach an ergonomic conclusion on Easter.
Merritt’s proffered testimony does not help the trier of fact
Merritt sought “to testify regarding the issue of dental ergonomics and its effect on [Easter]’s condition.” But as Easter himself admitted, he “retained John Merritt, M.D. to determine whether there was a physical basis for his disability” and Merritt concluded “that Plaintiff suffers from a persistent motor tic disorder on the movement disorder spectrum that in the nature of a neurological disorder,” a theory that Easter himself states he withdraws.
Easter’s current theory “maintains that the shakiness/motor tics are a physical manifestation of a psychiatric condition which Dr. Delaney can speak to.” The Court held that Easter failed to establish by a preponderance of the evidence that Merritt’s testimony would be helpful to the trier of fact, especially considering that his theory has been withdrawn and another proposed.
Held
The Court granted in part and denied in part Defendant’s Daubert motion to exclude the expert testimony of Dr. John Lawrence Merritt.
Key Takeaway:
Easter essentially asked the Court to find Merritt reliable solely based on his conclusions, something the Eleventh Circuit has made clear it cannot do. For Merritt to be found reliable, there must be “some rational connection between the methodology and the opinion—something that explains how the application of the methodology permits the conclusion(s) reached.” Easter, in this case, failed to offer the required application or rational connection.
Case Details:
| Case Caption: | Easter V. Unum Life Insurance Company Of America |
| Docket Number: | 2:23cv52 |
| Court: | United States District Court, Florida Middle |
| Order Date: | August 12, 2024 |
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