This lawsuit arises from a minor automobile accident that occurred at approximately 1:30 p.m. on October 9, 2020, in Española, New Mexico. Plaintiff Charles Hartung (“Plaintiff”) was a passenger in a four-door GMC pickup operated by his friend Ralph Andrew, Sr. Plaintiff.
Gommert, a salesman employed by McLane, entered the road from an adjacent gas station and did not see the pickup as it approached. The front end of Gommert’s company car collided with the rear wheel on the passenger side of the pickup.
Plaintiff disclosed Brian M. Shelley, M.D., and Mark K. Crawford, M.D. (collectively, the “Retained Experts”), as unified, retained experts. They testified that “the treatment [Plaintiff] received was reasonable, necessary, and appropriate; and that [Plaintiff’s] current conditions related to the motor vehicle collision are closed head injury and cognitive difficulties (by report), right shoulder pain and motion deficits, low back pain with right lower extremity radiation (aggravated), SI joint injury, headaches, anxiety (aggravated) and depression (aggravated).”
In response, Defendants argued that the Court should exclude testimony from these experts under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), because some facts supporting their opinions are undermined by medical records which the experts did not review before rendering their opinions.
Family Medicine Expert Witness
Brian M. Shelley MD is board-certified in family medicine and serves as an Attending Physician at the University of New Mexico Pain Consultation and Treatment Center. Additionally, at UNM, Dr. Shelley is Professor of Family and Community Medicine and trains medical residents in chronic pain management. Moreover, Dr. Shelley has published several peer-reviewed articles about innovative approaches to chronic pain education and co-created the Advanced Diplomate credential for the American Academy of Pain Management. Also, Dr. Shelley is the Director of Albuquerque Independent Medical Services LLC and is currently certified by the American Board of Independent Medical Examiners.
Orthopedic Surgery Expert Witness
Mark K. Crawford MD is a retired Fellowship Trained Orthopedic Spine Surgeon. He previously worked at UNM, Optum Health, and New Mexico Orthopaedics in Albuquerque, NM. Moreover, he is certified by the American Board of Independent Medical Examiners and has also served on many IME panels.
Discussion by the Court
To begin with, among the expert testimony Defendants sought to exclude is testimony related to closed head injuries and cognitive difficulties. In his response brief, Plaintiff represented that his experts are not offering any opinions related to a head injury or cognitive difficulties. Thus, Defendants’ motion to exclude expert testimony related to head injury or cognitive difficulties is granted.
Experts were not furnished with all Plaintiff’s pre-accident medical records and imaging studies
Below is a summary of the inaccuracies Defendants contend exist in the expert reports, along with Plaintiff’s responses:
- First, Defendants noted that Plaintiff told the experts he takes ibuprofen for pain and that his wife would not let him take opioid medications, and Plaintiff said he was nervous about them as well. Yet, during his deposition, Plaintiff testified under oath that he was a chronic user of hydrocodone. Plaintiff responded that he was prescribed opioid pain medications in the past. At the time of the IME, however, Plaintiff was no longer taking opioids. Accordingly, when asked about opioids at the IME, Plaintiff’s statements were accurate.
- Second, Defendants argued that over a year after the subject accident, Maximo Santiago M.D. reviewed and referenced a pre-accident MRI and observed that the pre-accident and post-accident findings appear similar. The experts did not have Dr. Santiago’s report. Plaintiff responded that the experts reviewed an MRI taken approximately two months after the accident, which provided a comparison to MRIs taken prior to the accident.
- Third, Defendants noted that Plaintiff reported to the experts that he had not experienced any sexual dysfunction before the accident. Yet Plaintiff received treatment for erectile disfunction and low testosterone in November 2017. Plaintiff responded that their experts are not opining on sexual dysfunction.
- Finally, Defendants argued that Plaintiff told the experts that he had not suffered from lower extremity pain, numbness, or weakness before the accident. However, Plaintiff’s neurologist and pain management doctor, Dr. Kandel, whose records are absent from the experts’ chronology, documented chronic pain in Plaintiff’s legs, weakness, numbness, and difficulty sleeping in May 2019.
The primary focus of the admissibility question is on the data the expert had
Situations might arise in which an expert’s failure to consider certain information makes the expert’s opinion unreliable.
However, the primary focus of the admissibility question is on the data the expert had, not the data he did not have. Moreover, even if Defendants mounted a legally sufficient attack on the reliability of the data under Federal Rule of Evidence 702(b), the Court found that Plaintiff has shown the experts had sufficiently reliable data when forming their opinions.
Held
In conclusion, the Court granted in part Defendants’ motion to exclude the testimony of Brian M. Shelley And Mark K. Crawford. The Court denied the remainder of the Defendants’ motion.
Key Takeaway:
In short, the circumstances of this case did not present a situation where the underlying data on which experts found their opinions was so unreliable that the experts’ opinions should be excluded. Moreover, the Court held that assertions that experts failed to consider all available data or founded their opinions on unreliable data are common fodder for cross-examination.
Case Details:
| Case Caption: | Hartung V. Gommert Et Al |
| Docket Number: | 1:23cv569 |
| Court: | United States District Court, New Mexico |
| Order Date: | June 18, 2024 |
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