On March 19, 2018, Ralph Monte (“Monte”) visited the Defendant Sherwin-Williams Development Corporation’s store at 4473 South Semoran Boulevard in Orlando, Florida. While attempting to negotiate the ramp from the parking lot to the sidewalk, a wheelchair-bound Monte fell and sustained injuries. He claimed that the fall occurred because Defendant negligently maintained the premises and/or failed to warn him of a dangerous condition. Subsequently, Ralph Monte and his wife, Amarillis Monte filed this premises liability lawsuit under Florida law.
Plaintiffs retained Nizam Razack, who is board-certified in neurological surgery, as an expert witness to review Monte’s medical records and provide an opinion regarding his treatment and care.
One of Razack’s opinions was that the accident on March 19, 2018, caused an infection in Monte’s left elbow. The Defendant filed a motion to exclude Razack’s testimony regarding whether Monte’s accident caused the infection of his left elbow. The Plaintiffs untimely responded in opposition to the motion.
Neurosurgery Expert Witness
Nizam Razack, MD, JD, FAANS, FACS is the founder and president of Spine & Brain Neurosurgery Center.
Razack has completed three post-doctoral fellowships:
- Orthopedic spine deformities at the Rancho Los Amigos Medical Center in Los Angeles, California.
- Reconstructive & complex spine surgery at the Mayo Clinic in Rochester, Minnesota
- Neurosurgical oncology at the M.D. Anderson Cancer in Houston, Texas
Discussion by the Court
Argument by Defendant
The Defendant moved to exclude Razack’s testimony regarding a causal connection between Monte’s accident and the infection in his left elbow. The Defendant argued that:
(1) Razack lacked the qualifications to offer this opinion,
(2) this opinion is contradicted by record evidence, and
(3) this opinion is not predicated on any scientific testing or methodology.
Analysis
Since the Court had struck the Plaintiffs’ response to the Defendant’s motion as being untimely filed, the motion stood unopposed. As a result, the Court granted the Defendant’s motion as the Plaintiffs failed to meet their burden to show Razack’s opinion was admissible.
Even if the Court considered the Plaintiffs’ response, Razack’s opinion on the cause of Monte’s infection would still be excluded under Daubert‘s reliability standard.
Temporal Proximity and Causation
Razack’s report mainly consisted of a review of Monte’s medical records. After reviewing the records and conducting a physical examination of Monte on May 16, 2024, Razack concluded that the accident caused the infection in his left elbow. He based this opinion on the fact that the infection appeared shortly after the accident.
Citing Chapman v. Procter & Gamble Distributing, LLC, 766 F.3d 1296 (11th Cir. 2014), the Court noted that temporal proximity is generally not a reliable indicator of a causal relationship by itself. Courts routinely exclude expert opinions based solely on such reasoning. Accordingly, the Court observed that in the absence of a reliable basis, Razack’s causation opinion regarding the infection of Monte’s left elbow must be excluded.
Differential Diagnosis Argument
Nevertheless, the Plaintiffs argued that Razack’s opinion was a reliable differential diagnosis and was therefore admissible. They asserted that Razack formed his opinion based on comprehensive information, allowing him to establish a differential diagnosis. The Court observed that for a differential diagnosis to be considered reliable, it has to account for other possible factors that could have been the sole cause of the injury, and the expert has to explain why any alternative cause suggested by the defense was not the sole cause.
In his deposition, Razack testified that performing a differential diagnosis was part of his process when reviewing a patient’s records. However, he did not explicitly state that this was the methodology he used to determine that Monte’s infection was caused by the accident. Even assuming that Razack did employ this methodology, the Court still found his opinion unreliable. Razack did not indicate that he had considered other potential causes of Monte’s infection. In fact, during his deposition, Razack acknowledged that Monte’s infection could have been caused by bursitis.
Even if Razack’s opinion was based on a differential diagnosis, the Court found that he did not apply this methodology reliably.
Moreover, even if the opinion were reliable, Razack’s opinion would not be helpful to the jury. The notion of temporal proximity is not beyond the ken of the average lay person, and therefore, Razack’s opinion would not be helpful to the trier of fact in clarifying the cause of the infection. Consequently, the Court excluded Razack’s testimony on these grounds. Indeed, the Eleventh Circuit has noted that it is preferable to leave the question of causation in the hands of the jury where, as here, an expert’s opinion as to causation is based on temporal proximity alone.
Held
The Court granted the Defendant’s motion to exclude certain testimony of Plaintiff’s neurosurgery expert witness, Nizam Razack.
Key Takeaways:
Razack’s testimony regarding the causation of Monte’s elbow infection failed to meet the applicable standard for reliability because:
- His opinion relied primarily on temporal proximity (the infection appearing shortly after the accident), which courts generally do not accept as sufficient evidence of causation by itself.
- While Razack claimed to use differential diagnosis, he failed to:
- Explicitly state this was his methodology for determining causation
- Consider or rule out other potential causes of the infection
- Adequately address alternative causes (like bursitis, which he acknowledged as a possible cause)
- Even if Razack’s opinion were reliable, it is still not helpful because the notion of temporal proximity is not beyond the ken of the average lay person.
Case Details:
| Case caption: | Monte V. Sherwin-Williams Dev. Corp. |
| Docket Number: | 6:23cv288 |
| Court: | United States District Court for the Middle District of Florida, Orlando Division |
| Dated: | January 14, 2025 |
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