Florida Southern District Court decided that a podiatry expert witness’ causation theory with regard to severe burns was admissible after she compared and contrasted the Plaintiff’s health before and after the incident.
This is a negligence action in admiralty for damages the Plaintiff suffered while vacationing aboard the Explorer of The Seas on May 14, 2022. The Plaintiff alleged that on May 14, 2022, he sustained severe burns on the soles of his feet while standing on the ship’s heated pool deck. The Plaintiff sought treatment on board, and medical staff diagnosed him with second-degree burns. The Plaintiff’s expert witness and treating podiatrist, Dr. Julia Shauger, evaluated the Plaintiff on May 25, 2022, upon his return home and diagnosed the Plaintiff with third-degree burns to the “entire surface plantar feet.” Shauger also stated that the Plaintiff’s diabetes and neuropathy were complicating factors.
Defendant sought to exclude Shauger’s opinion on three grounds: (1) she provided speculative opinions and testimony about the costs of future care; (2) her opinions on causation were unreliable; and (3) Shauger’s expert disclosure was deficient under Federal Rule of Civil Procedure 26(a)(2).
Podiatry Expert Witness
Julia Shauger, DPM is a board-certified podiatric physician and surgeon with
nearly 30 years of experience and specialties in cryoskin, laser fungal toenails, and minimally invasive surgery. Shauger earned her Bachelor of Science in Biology from St. Xavier University before attending the prestigious William M. Scholl College of Podiatric Medicine in Chicago, IL., where she graduated with a Doctorate of Podiatric Medicine in 1993, followed by postgraduate training in podiatric primary care, orthopedics, and surgical medicine.
Shauger maintains membership with several leading organizations in her
field, including the American Podiatric Medical Association, the American
Podiatric Women’s Association, and the American Academy of Podiatric Sports Medicine. She is licensed to practice in both Illinois and Indiana, and speaks three languages: English, French and Spanish.
Discussion by the Court
Shauger could only speculate as to the costs of a future procedure of which the Plaintiff is not currently a candidate
Defendant challenged the reliability and helpfulness of Shauger’s testimony. First, Defendant contended Shauger “could only speculate . . . as to the costs of a future procedure of which the Plaintiff is not currently a candidate.” Shauger referred to her medical procedure codes that estimated the cost of laser oblation, if necessary to treat the Plaintiff’s burned feet, somewhere between $138 to $142 per foot with another roughly $5,000 to $20,000 in hospital costs. Defendant believed this was too speculative to satisfy Daubert.
The Plaintiff has been a patient of Shauger since October 2022 for fungal infections, ingrown toenails, and diabetes affecting his feet. Shauger stated that before the alleged incident, the Plaintiff did not have burns, blisters, lesions, or injuries to either foot.
Moreover, based on the Plaintiff’s injury and her records, she was sure that the Plaintiff’s description of the injury was consistent with the burn injuries she observed on May 25, 2022. Lastly, any nerve damage the Plaintiff sustained was caused by the alleged incident.
Shauger added, “The codes I would bill are really negligible.” In reaching her medical conclusion, she looked at her medical notes only. Moreover, she stated that ensuring the Plaintiff always stays protected would rule out the need for procedure.
The Court held that even though Shauger could not state “how long or how much future treatment is going to cost,” but she did provide an estimate that built a meaningful connection between her experience and the cause of injury.
Shauger’s medical opinions were unreliable because she did not consult any other of the Plaintiff’s medical records or any of the depositions in this case
Second, the Plaintiff contended that Shauger’s medical opinions were unreliable because she did not consult “any other of the Plaintiff’s medical records or any of the depositions in this case.” Shauger ultimately opined that ship’s heated pool deck caused the Plaintiff’s burns by comparing the Plaintiff’s visits before the alleged incident and afterward.
Defendant contended that since Shauger did not consult shipboard medical records, the Plaintiff’s medical records, or any of the other depositions taken to form a proper causation theory, Rule 702(b) of the Federal Rules of Evidence disqualified her testimony. They challenged her opinion for failure to consult medical documents other than her own notes.
Defendant relied upon Morrow v. Brenntag Mid-South, Inc. from the Middle District of Florida. Id.; 505 F. Supp. 3d 1287, 1291 (M.D. Fla. 2020). There, the Court held the expert doctor “formed an opinion on medical causation without reviewing any of the prior treatment providers’ records; indeed he was unaware Morrow even underwent conservative treatment with [another doctor].”
The Plaintiff, however, distinguished Morrow from the facts here because the treating physician in Morrow had not reviewed the Plaintiff’s pre-incident medical records. The Court found weight in this distinction. Shauger had evaluated the Plaintiff less than a month before the incident for an ingrown toenail and had seen him within days after the incident.
She testified at her deposition that the Plaintiff had feeling on his soles before the incident and had no lesions, burns, injuries, or blisters on either foot. Moreover, this Court has stated that future determinations do not need to be airtight.
Defendant contends Shauger did not comply with Rule 26(a)(2) by providing details regarding her “qualifications, education/training, and professional experience“
If the Court were to find that Shauger’s disclosure was pursuant to Rule 26(a)(2)(B), Shauger should be excluded because there was no written report, proper CV, fee schedule, or testimonial history provided with the disclosure as listed. If the Court were to give the Plaintiff the benefit of the doubt, Shauger could be considered to have been disclosed by the Plaintiff as a non-retained expert, treating physician, which would make Shauger’s disclosure subject to Rule 26(a)(2)(C) disclosure requirements.
Defendant’s argument appeared to boil down to the Plaintiff not meeting the requirements of a Rule 26(a)(2)(C) non-retained expert. Defendant added that the Plaintiff provided no summary of facts and instead included “an ineffective list of broad, proposed opinions.”
A treating physician/non-retained expert complies with Rule 26(a)(2)(C) when she provides “the subject matter and a summary of facts and opinion as to which [she] [is] expected to testify.” Disclosure under Rule 26(a)(2)(c) follows a much more flexible standard than the required reporting in Rule 26(a)(2)(B) required for retained expert witnesses.
Shauger provided thirty-eight pages of medical reports concerning the Plaintiff before and after the alleged incident as Plaintiff’s treating physician. Additionally, the Plaintiff satisfied the “subject matter” prong of Rule 26(a)(2)(C) by describing Shauger’s background and explaining that she will provide testimony concerning “Plaintiff’s shipboard injury, the unreasonably hot ship’s deck as the case of his injury.”
Shauger based her theory of causation on her own examinations of the Plaintiff as his treating physician. Her medical reports would have ostensibly been made to evaluate and treat the Plaintiff—and not for pursuing litigation. As the Plaintiff’s podiatrist, Shuager concluded that the Plaintiff had third-degree burns and loss of mobility were likely caused from an extremely hot heating deck.
The Court found that the Plaintiff complied with the disclosure requirements of Rule 26(a)(2)(C).
Held
The Court denied the Defendant’s Daubert Motion to Strike the Testimony of Julia Shauger, M.D.
Key Takeaways:
- Logical Conclusion: Shauger testified at her deposition that the Plaintiff had feeling on his soles before the incident and had no lesions, burns, injuries, or blisters on either foot. An expert comparing and contrasting a the Plaintiff’s health before and after the incident is fine, so long as the expert reaches a logical conclusion. These facts and the before-and-after reports would be reliable information helpful to a jury.
- Absolute Certainty: Shauger could not state “how long or how much future treatment is going to cost,” but she did provide an estimate that built a meaningful connection between her experience and the cause of injury. “Absolute certainty” is not the aim of reliable expert testimony.
- Disclosure Requirements: Disclosure under Rule 26(a)(2)(c) follows a much more flexible standard than the required reporting in Rule 26(a)(2)(B) required for retained expert witnesses.
Case Details:
| Case Caption: | Larocco v. Royal Caribbean Cruises |
| Docket Number: | 1:23cv20777 |
| Court: | United States District Court, Florida Southern |
| Order Date: | March 04, 2024 |
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