Expert Witness Profiler

Category: Neurosurgery Expert Witness

  • Neurosurgery Expert’s Testimony About the Cause of Low Back Pain Admitted

    Neurosurgery Expert’s Testimony About the Cause of Low Back Pain Admitted

    Plaintiff Ellen Thomas brought this action against Defendant Smith’s Food & Drug Centers alleging negligence relating to a slip and fall in December 2020.

    Defendant filed a motion to strike the testimony of Plaintiff’s expert, Dr. James J. Lynch, regarding future possible medical treatment and the cause thereof. 

    Plaintiff saw Lynch, at Swift Institute, on March 8, 2023, for low back pain, right lower extremity pain, and right knee pain. Because Plaintiff had failed conservative treatment measures, Lynch recommended a lumbar surgery to treat Plaintiff’s low back pain. Surgery was originally scheduled for April 27, 2023.

    On October 5, 2023, the Court entered a discovery plan and scheduling order which set the expert disclosure deadline for January 4, 2024, the rebuttal expert disclosure deadline for February 5, 2024, and the discovery cutoff for March 4, 2024. On January 5, 2024, Plaintiff served her non-retained expert witness disclosure that included Lynch.

    After the close of discovery, Defendant moved to exclude any evidence of future damages. The Court specifically denied Defendant’s motion to exclude future back surgery, finding Plaintiff’s failure to formally disclose Lynch as a witness harmless under the circumstances. Pursuant to that holding, the Court allowed a limited re-opening of discovery so that Defendant could depose and review the records and testimony of Lynch.

    During his deposition, Lynch testified that Plaintiff’s low back pain was caused by the December 2020 slip and fall, which necessitated surgery. Defendant subsequently filed a motion to strike evidence, testimony, and opinions of Lynch. After Defendant filed the motion to strike, the Court ruled that because Lynch is a treating doctor who was disclosed as a non-retained expert, he did not need to be disclosed as a retained expert. 

    Neurosurgery Expert Witness

    James J. Lynch, MD, FACS, FAANS is a board-certified neurosurgeon with 30 years of experience specializing in complex spine surgery, cervical disorders, degenerative spine, spinal deformities, trauma, tumor infection, and minimally invasive spine surgery. He is also proficient in endoscopic spine surgery techniques.

    He earned his medical degree from Trinity College in Dublin, Ireland, followed by a Mayo Clinic residency in Rochester, MN.

    Want to know more about the challenges James Lynch has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    While the Defendant did not challenge Lynch’s qualifications as a medical expert, it filed a motion to strike his testimony on the grounds that it: (1) lacks a sufficient basis in facts and data, (2) is not the product of reliable principles and methods; and (3) is internally inconsistent and contradicts both Plaintiff’s testimony and her medical records. 

    Helpfulness to the Jury

    The Court must consider whether Plaintiff has shown that Lynch’s medical expertise regarding low back pain and analysis of Plaintiff’s lumbar pathology will help the jury understand the evidence.

    Lynch knows clinical guidelines for treating low back pain; he understands how to interpret medical records and imaging; and he personally treated Plaintiff for her low back pain. Assessing Plaintiff’s damages in this negligence case will require the jury to assess which of Plaintiff’s injuries were caused by the slip and fall. It will also require the jury to understand what future medical treatment is needed. Lynch’s specialized knowledge will be useful to the jury, and Plaintiff has met her burden to show as much.

    Sufficient Facts or Data

    Defendant argued that Lynch “based his opinions on the recommended surgery on Plaintiff’s statement that ‘she relates that her back pain and leg pain and knee pain began after the fall in December 2020.’”

    Lynch has used sufficient facts and data to reach his conclusions regarding Plaintiff’s need for surgery and the cause of her low back pain. He used Plaintiff’s relevant medical records, which showed that Plaintiff had failed conservative treatment methods, as well as medical imaging, to reach his conclusions. Lynch also relied on his medical knowledge and experience. 

    These sources together form an appropriate basis for Lynch’s opinions. The Court thus held that Plaintiff has shown that Lynch has used sufficient data and facts to survive a motion to strike evidence, opinions, and testimony regarding future possible medical treatment and the cause thereof.

    Reliable Principles and Methods

    Defendant claimed that the record is “lacking in testing to confirm Lynch’s theories” such as neurological examinations or nerve studies to “determine the source of radiculopathy that Plaintiff alleged was from back pain caused from the incident;” or “review of prior medical records or films to determine when the actual cyst appeared in Plaintiff’s lower back that is the origin of her pain complaints.”

    Plaintiff argued that Lynch conducted a differential diagnosis regarding causation of Plaintiff’s back injury after “taking her medical history, physically examining her as her treating physician, and reviewing her MRI and medical history.” 

    Lynch testified that, based on Plaintiff’s Magnetic Resonance Imaging (MRI) scan and X-rays, he recommended a particular lumbar surgery, that a majority of physicians would recommend for similar pathology. Based on those imaging tests, his appointment with Plaintiff, and a review of Plaintiff’s medical history, Lynch testified that he believed, to a reasonable degree of medical probability, that Plaintiff’s low back pain was caused by the December 2020 slip and fall.

    Lynch also considered whether the low back pain was caused by something other than the slip and fall but found that even if Plaintiff had a lumbar disc bulge or cyst prior to the fall, it became symptomatic only after the fall. To the extent that Lynch did not adequately rule out alternative causes for Plaintiff’s injuries, this is a “credibility determination that goes to the weight of his opinions, not their admissibility.” The Court therefore found that Lynch’s testimony used reliable methods and principles.

    Discrepancies Regarding Lynch’s Testimony

    Defendant centers much of its motion to strike on alleged inconsistencies in Lynch’s deposition testimony, particularly focusing on his answers to questions regarding the cause of certain pathology seen in Plaintiff’s vertebrae.

    Defendant contrasts Lynch’s testimony that he could not render an opinion, to a reasonable degree of medical certainty, as to when Plaintiff’s synovial cyst, disc bulge, and disc slippage first occurred, but did render such an opinion as to what caused Plaintiff’s low back pain, noting that issues like cysts and disc bulges could be asymptomatic, until an injury, like the one at Smith’s, precipitated symptoms.

    Similarly, Defendant argued that Lynch’s testimony regarding the cause of Plaintiff’s low back pain contradicts both Plaintiff’s own testimony and her medical records, which, according to Defendant, indicate that her low back pain did not become a primary concern until 2022.

    However, Lynch testified that her low back pain was not well-documented and may have worsened over time, ultimately resulting in her appointment with him in 2023. 

    Defendant failed to explain how these answers are irreconcilable and further neglects to cite to any case law standing for the proposition that such discrepancy is sufficient ground to strike evidence, testimony, and opinions of an expert.

    The Court declined to strike Lynch’s testimony regarding future possible medical treatment and the cause thereof. 

    Held

    The Court denied the Defendant’s motion to strike the testimony Plaintiff’s expert James Lynch, M.D.

    Key Takeaway:

    The mere possibility that an expert may be impeached is not a ground for exclusion. The Defendant failed to cite any case law supporting the proposition that such a discrepancy is sufficient to strike an expert’s evidence, testimony, or opinions.

    Case Details:

    Case Caption: Thomas V. Smith’s Food & Drug Centers, Inc.
    Docket Number: 3:23cv439
    Court Name: United States District Court, Nevada
    Order Date: September 12, 2025
  • Untimely Disclosure of Neurosurgery Expert Permitted in Damages-Only Case

    Untimely Disclosure of Neurosurgery Expert Permitted in Damages-Only Case

    Plaintiff, Pearl R. Kline was driving her vehicle eastbound on Interstate 70, near the Clear Springs exit in Washington County, Maryland. At the same time, a vehicle owned by Defendant Road Range Express and operated by Defendant Sukhjinder Singh was traveling directly behind Plaintiff’s vehicle. When Plaintiff stopped for traffic, Singh’s vehicle struck the rear of her vehicle. This incident led Plaintiff to file a negligence action against Road Range Express and Singh.

    On June 19, 2025, Defendants filed a motion to strike Plaintiff’s Rule 26(a)(2) disclosure of Dr. Ira M. Garonzik. In their motion, Defendants argued that Plaintiff’s Rule 26(a)(2) expert disclosure should be stricken because it is (1) untimely and (2) insufficient, in violation of Rule 26(a)(2) of the Federal Rules of Civil Procedure. 

    Neurosurgery Expert Witness

    Dr. Ira M. Garonzik is the founder and president of the Baltimore Neurosurgery and Spine Center which began in 2005. The Baltimore Neurosurgery and Spine Center specializes in the comprehensive treatment of a wide variety of intracranial and spinal disorders. Garonzik is widely published, having authored more than fifty peer reviewed articles, book chapters and abstracts.

    He completed his neurosurgical residency at the Johns Hopkins Hospital after earning his medical degree from the Emory University School of Medicine Summa Cum Laude and his undergraduate degree with highest honors from Johns Hopkins University. During his training, Garonzik completed specialized fellowships in complex spinal surgery and functional neurosurgery.

    Get the full story on challenges to Ira Garonzik’s expert opinions and testimony with an in-depth Challenge Study.

    Discussion by the Court

    Defendants argued that they would be severely prejudiced if the Court were to permit the untimely disclosure of Plaintiff’s expert because discovery had closed and the deadlines for their own disclosures had elapsed, leaving them with no opportunity to rebut or respond to Garonzik’s opinions.

    Plaintiff’s disclosure included the expert’s curriculum vitae and fee schedule, but omitted the expert’s report and did not otherwise summarize the expert’s opinions. There is no dispute that Plaintiff’s disclosure of Garonzik was untimely. And because the disclosure lacked the required written report when Plaintiff served it on Defendants, it was plainly insufficient.

    There is no dispute that Plaintiff’s disclosure of Garonzik was untimely. And because the disclosure lacked the required written report when Plaintiff served it on Defendants, it was plainly insufficient under Rule 26(a)(2) of the Federal Rules of Civil Procedure. Moreover, as Plaintiff’s own opposition admitted, the untimely disclosure was not substantially justified. Consequently, the real inquiry is whether the error was harmless.

    In determining whether a party’s failure to disclose was substantially justified or harmless so as to exclude a witness pursuant to Rule 37(c)(1), this Court has broad discretion and is guided by consideration of five factors: “(1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the non-disclosing party’s explanation for its failure to disclose the evidence.” 

    Analysis

    The first factor, surprise, weighed in Defendants’ favor, as the disclosure came more than two months after the disclosure deadline and without advance notice.

    The second factor—the ability to cure—cuts both ways. Because the discovery period has closed, Defendants’ ability to identify a rebuttal expert is limited. However, reopening discovery for the narrow purpose of allowing Defendants to serve their own expert disclosures provides an adequate cure. Indeed, there are several cases in this District that have permitted limited extensions of discovery to mitigate the prejudice from untimely expert disclosures. 

    The third factor, disruption of trial, did not weigh heavily against Plaintiff, as no trial date has been set, and a modest extension of expert discovery will not substantially disrupt proceedings. The fourth factor, the importance of the evidence, strongly favored Plaintiff, as Garonzik is Plaintiff’s sole expert on damages, which is the only remaining issue in this case. Finally, the fifth factor, the explanation for the delay, weighed against Plaintiff, as no justification has been provided for failing to comply with the Scheduling Order.

    Given the broad discretion afforded to district courts in weighing these factors and fashioning appropriate sanctions, the Court will treat Plaintiff’s disclosure of Garonzik as an untimely Rule 26(a)(2) disclosure that can be rendered harmless by modifying deadlines in the Scheduling Order. 

    Held

    The Court denied the Defendants’ motion to strike Plaintiff’s Rule 26(a)(2) disclosure of Dr. Ira M. Garonzik.

    Key Takeaway:

    On balance, although Plaintiff’s disclosure was untimely, insufficient, and unjustified, precluding Plaintiff’s expert from testifying altogether in this damages-only case would be an extreme result. 

    The Court can adequately minimize the prejudice to Defendants through a limited reopening of expert discovery. The Court will re-open discovery for a 45-day period for the sole purpose of allowing Defendants to conduct discovery related to Garonzik’s report (including a deposition of Garonzik) and to designate rebuttal witnesses.

    Case Details:

    Case Caption: Kline V. Singh Et Al
    Docket Number: 1:25cv63
    Court Name: United States District Court, Maryland
    Order Date: August 28, 2025
  • Neurosurgery Expert Witness’ Causation Testimony Regarding Elbow Infection Excluded

    Neurosurgery Expert Witness’ Causation Testimony Regarding Elbow Infection Excluded

    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

    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:

    1. Orthopedic spine deformities at the Rancho Los Amigos Medical Center in Los Angeles, California. 
    2. Reconstructive & complex spine surgery at the Mayo Clinic in Rochester, Minnesota
    3. Neurosurgical oncology at the M.D. Anderson Cancer in Houston, Texas

    Want to know more about the challenges Nizam Razack has faced? Get the full details with our Challenge Study report.  

    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:

    1. 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.
    2. 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)
    3. 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
  • Neurosurgery Expert Witness’ Testimony Admitted Despite Lack of Textual Support

    Neurosurgery Expert Witness’ Testimony Admitted Despite Lack of Textual Support

    This litigation arises out of an auto accident involving Plaintiff Shaun E. Howard and a Tractor-trailer driven by Defendant Reginald Mitchell.

    On November 18, 2021, Plaintiff was driving his vehicle on LA 21 in St. Tammany, Louisiana. As Plaintiff was driving in the left lane, Plaintiff alleged Mitchell, who was operating a tractor-trailer, attempted to merge into the left lane.

    As a result of this accident Plaintiff alleged that he suffered multiple injuries treated, in part, by Dr. Eric Oberlander. Defendants sought to exclude Oberlander’s testimony regarding Plaintiff’s possible development of adjacent segment disease due to the alleged failure of Oberlander to provide testimony on the methodology used to reach this opinion.

    Neurosurgery Expert Witness

    Eric Oberlander is an award winning spine specialist who has developed one of the largest practices in the country. Oberlander graduated from Virginia Tech with degrees in Engineering, French and Chemistry. He was one of the first American engineering students to study at the prestigious Ecole des Ponts et Chaussees in Paris, France. He received his medical degree from Virginia Commonwealth University and continued his training at the Medical College of Virginia, where he completed his Neurosurgical residency, and fellowship in complex and minimally invasive spinal surgery. Oberlander also served his country as a Lieutenant Commander in the U.S. Navy Reserve from 2003-2012.

    Oberlander joined The NeuroMedical Center in 2008 and served as The Spine Hospital of Louisiana’s elected Chief of Staff from 2012-2014. He is currently the team neurosurgeon for the LSU Athletic Department and has an active interest in concussion prevention and research.

    Get the full story on challenges to Eric Oberlander’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    Defendants clarified they are not challenging Oberlander’s qualifications, education, or experience, but rather the basis of Oberlander’s opinion on adjacent segment disease. Oberlander claimed he had a “file cabinet” full of materials he used to conclude that Plaintiff will more likely than not develop adjacent segment disease. Defendants stated they served a subpoena duces tecum on Oberlander for a copy of these files, but the materials sent in response included none related to adjacent segment disease.

    Oberlander’s deposition testimony indicated that he has been treating Plaintiff for about two years, reviewed Plaintiff’s imaging, and performed Plaintiff’s anterior cervical discectomy and fusion at C6-7. While Oberlander did not provide studies that helped him reach his conclusions on adjacent segment disease, the Fifth Circuit has held “where an expert otherwise reliably utilizes scientific methods to reach a conclusion, lack of textual support may go to the weight, not admissibility of the expert’s testimony.”

    In addition to being Plaintiff’s treating neurosurgeon, Oberlander’s deposition testimony discusses how cervical fusion, a procedure Oberlander performed on Plaintiff, causes stress on adjacent levels. Oberlander further discussed how subsequent MRIs post Plaintiff’s surgery revealed “adjacent level pathology.

    As such, this Court found that Oberlander’s testimony is reliable and relevant. The reliability inquiry requires the Court to assess whether the reasoning or methodology underlying the expert’s testimony is valid. Based on the evidence presented, Plaintiff has satisfied this burden. Although Defendants raised doubt as to Oberlander’s sources on which he bases his medical opinions, these issues are best addressed through “vigorous cross-examination” and “presentation of contrary evidence.”

    Held

    The Court denied Defendants’ Daubert motion to exclude evidence of Eric Oberlander regarding future adjacent segment disease and future surgery.

    Key Takeaway:

    Defendants did not dispute Oberlander’s sixteen years of experience or the fact that he is an award-winning spine specialist who operates daily. However, Defendants argued that Oberlander did not provide the specific medical literature he used to arrive at his conclusion regarding the development of adjacent segment disease. It should be noted that the Fifth Circuit has held that “where an expert otherwise reliably utilizes scientific methods to reach a conclusion, lack of textual support may go to the weight, not the admissibility, of the expert’s testimony.”

    Case Details:

    Case Caption: Howard V. J&B Hauling, Llc Et Al
    Docket Number: 2:22cv993
    Court: United States District Court, Louisiana Eastern
    Order Date: October 01, 2024

  • Forensic Engineering Expert Witness’ Evaluation of the Safety Procedures Partly Excluded

    Forensic Engineering Expert Witness’ Evaluation of the Safety Procedures Partly Excluded

    It all started when Lewis Youngman fell from his motorized wheelchair while driving on the entry gangway of the Defendant’s cruise ship, Mariner of the Seas. Youngman alleged that, as a result of Defendant’s negligence, a certain portion of the gangway was impermissibly steep, uneven, and mis-leveled. Consequently, Youngman argues, the uneven flooring caused his wheelchair to tip over. This alleged negligence then resulted in severe injuries.

    Defendant sought to strike some of this expert testimony from Plaintiff’s expert witness, Frank Fore, and Plaintiff’s hybrid witnesses, Timothy Carter, M.D., and Mark Fulton, M.D. As to Fore (an engineer), Defendant sought to strike his opinion that Plaintiff would not have been ejected from his motorized wheelchair were it not for the impermissibly steep incline of the gangway. Additionally, Defendant sought to strike Fore’s testimony that, had one of Defendant’s crewmembers more appropriately assisted Plaintiff, in accordance with Defendant’s own internal policies, Plaintiff’s incident would not have occurred.

    Further, Defendant sought to strike Plaintiff’s treating physicians, Carter and Fulton, for Plaintiff’s allegedly insufficient pretrial disclosure. Alternatively, if the Court deems Plaintiff’s disclosures to be sufficient, Defendant moved to strike certain testimony from Carter on reliability grounds.

    Forensic Engineering Expert Witness

    Frank A. Fore is a forensic engineer, his specialties include vessel dynamics, kinematics, and accident reconstruction; occupant and pedestrian biomechanical dynamics, kinematics and injury analysis, tribology and the engineering of interacting moving surfaces, including the study of the co-efficient of friction, lubrication, and wear.

    Get the full story on challenges to Frank Fore’s expert opinions and testimony with an in-depth Challenge Study.

    Neurosurgery Expert Witness

    Mark Fulton is a Board-Certified Diplomat by the American Board of Neurological Surgery and is a fellow American Association of Neurological Surgeons, who specializes in both complex spinal and intracranial surgery. He received his medical degree from University of Utah School of Medicine and served both a Residency program and a Surgical Critical Care Fellowship at the Ohio State University Hospitals.

    Want to know more about the challenges Mark Fulton has faced? Get the full details with our Challenge Study report. 

    Neurology Expert Witness

    Timothy D. Carter is a Board-Certified Diplomat by the American Board of Neurology, who specializes in neurology, internal medicine, and clinical neurophysiology. He received his medical degree from University of Florida School of Medicine and completed a year of internal medicine residency at the University of Virginia affiliated programs. His neurology residency and clinical neurophysiology fellowship were completed at the Medical University of South Carolina where he was also Chief Resident.

    Discover more cases with Timothy D. Carter as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    Frank Fore

    Fore opined in his report that:

    “Plaintiff would not have been ejected and injured had his mobility scooter not abruptly tipped over on the gangway’s steep slope … or if the Gangway and Transition Plate had not exceed[ed] the mandatory maximum slope requirements as set forth in the Americans with Disabilities Act and the Florida Building Code, inter alia.”

    Defendant argued that this conclusion is inadmissible because Fore did not engage in sufficient—or indeed any—testing before reaching this conclusion. Specifically, Defendant avers that Fore had no information regarding the make or model of Plaintiff’s motorized wheelchair (which Fore mistakenly referred to as a mobility scooter throughout his report); did not know how much the wheelchair weighed; did not know how much Plaintiff weighed; did not know how many wheels the wheelchair had; did not consider, or even know, the speed at which the wheelchair was traveling; and lacked understanding of other important details before drawing his conclusion. Defendant also pointed out that Fore did no experiments or other tests before arriving at his conclusion.

    Fore made no effort to gather pertinent facts before concluding that the slope of the gangway was the cause of Plaintiff’s injury

    The Court held that Fore’s conclusion is borne almost entirely of “anecdotal experience or speculation.” Fore offered no awareness of any facts specific to Plaintiff’s situation, let alone that he considered those facts in his opinion. Specifically, Fore’s opinion is untethered to critical facts such as the speed at which Plaintiff was traveling, the assistive device in which Plaintiff was traveling, the weight at which Plaintiff was traveling, or other details which would be necessary to render a reliable, non-speculative methodology. To the contrary, Fore’s opinion is based entirely on the theory that the gangway appeared to him to be improperly sloped, juxtaposed against videos of other people ostensibly falling on the gangway. The Court “concluded that there is simply too great an analytical gap between the data and the opinion proffered.”

    However, Plaintiff missed the operative purpose for which this testimony was offered: “Defendant’s conformity to industry safety standards.” Here, Defendant has wisely opted not to challenge the portion of Fore’s testimony that opines on whether the gangway conforms with industry standards. Given Fore’s stated experience and training, plus his review of the basics of the record in the case, the Court held that this conclusion does fall within the Daubert reliability standard.

    The Court held that Fore’s opinion rests too strongly upon speculation, such that it is unreliable under Daubert and its progeny. And because Fore’s speculation-laden testimony that the allegedly improperly-sloped gangway was the but-for cause of Plaintiff’s injuries lacked legal reliability, the Court granted Defendant’s motion to strike that portion of Fore’s testimony.

    However, the Court refused to strike Fore’s testimony that “certain building codes and guidelines or regulations were arguably applicable to the subject gangway and that any alleged deficiencies with the subject gangway may have contributed to Plaintiff’s incident.” 

    Fore may not, however, testify that Plaintiff’s “mobility scooter would not have tipped over” had Defendant complied with its policy 

    Defendant sought to strike the portion of Fore’s report that Plaintiff’s “mobility scooter would not have tipped over had an RCCL crewmember assisted [Plaintiff] as required by RCCL internal policies ….”

    The Court decided that Fore may testify as to whether, in his opinion, Defendant complied with its own internal policies. Indeed, courts have held that it is not a legal conclusion to analyze a party’s actions against its internal policies, and to determine whether the party complied with those policies. 

    The Court held that Fore may not, however, testify that Plaintiff’s “mobility scooter would not have tipped over” had Defendant complied with its policy. This testimony certainly rings again of an ultimate legal conclusion; i.e., that Defendant’s alleged failure to comply with its policy was the but-for cause of Plaintiff’s injuries. Thus, this portion of Fore’s anticipated testimony is inadmissible as it is purely a legal conclusion.

    Challenges as to the Disclosure of Mark Fulton and Timothy D. Carter

    Mark Fulton and Timothy D. Carter are hybrid witnesses pursuant to Federal Rule of Civil Procedure 26(a)(2)(C). Both are treating physicians of the Plaintiff, who will offer opinions within their areas of expertise, as disclosed below, but who need not provide a written report.

    In addition to no reports being disclosed, Defendant argued that Plaintiff’s description of the testimony was also vague. That description is as follows:

    “The Plaintiff’s medical condition related to the injuries that the Plaintiff sustained as alleged in the Complaint, including Plaintiff’s current medical symptoms, past and future medical and surgical condition and treatment, injury causation, aggravation of injuries and preexisting conditions due to the subject incident, diagnosis, prognosis, permanency, disability, and impairment, … the reasonableness of the costs and necessity of the medical care and treatment that was performed on the Plaintiff and the nature and estimated cost of future necessary medical and treatment for the Plaintiff.”

    While the Court doubted whether the disclosure’s description is sufficient, the Court readily found that the ample time to depose the expert witnesses cured any ostensible prejudice.

    Challenges as to Carter’s Anticipated Testimony

    Defendant lodged substantive challenges to Carter’s proffered testimony.

    Carter is a neurologist who has been treating Plaintiff since 2017. In 2019, Carter seemed to indicate that Plaintiff was experiencing neurological issues, and in 2021 essentially reaffirmed Plaintiff’s 2019 condition. On August 21, 2022, Plaintiff experienced his fall, and on September 7, 2022, underwent neck surgery. Eight months after Plaintiff’s fall, in May 2023 (and again in June 2023), Plaintiff had a visit with Carter. At that point, Carter seemed to notice marked differences in Plaintiff, including significant declines in his “mental and cognitive status,” his “speech and language,” his “attention and concentration,” and other mental faculties. Now, Carter seeks to testify that “more likely than not … the confluence of events together [i.e., Plaintiff’s fall and subsequent surgery] certainly contributed to some degree of deterioration.”

    Defendant argued that Carter’s causation opinions should be excluded because Carter relied too heavily on temporal proximity and failed to rule out other factors causing Plaintiff’s neurological demise. Specifically, Defendant argued that Plaintiff, per Carter, was beginning to experience decline before Plaintiff’s fall; that imaging showed Plaintiff’s brain was already losing size and blood flow; that Carter failed to rule out that Plaintiff’s recurring urinary tract infections, as well as opioid and cannabis use, contributed to Plaintiff’s cognitive decline; that Carter could not determine that Plaintiff’s cerebral fluid issues were caused by the fall; and that Carter could not connect Plaintiff’s bowel and bladder incontinence to the fall.

    Defendant’s Unpersuasive Challenges to Carter’s Opinions are Meritless 

    Carter bases his findings on a years-long relationship with Plaintiff, myriad neurological testing over those years, unchallenged qualifications in neurology, Plaintiff’s accident and surgery, and observations based on those years of visiting with Plaintiff to conclude that “the confluence of events together certainly contributed to some degree of deterioration.”

    The Court held that it suffices to pass muster under Daubert, regardless of whether Carter directly ruled out every other cause of Plaintiff’s sudden neurological decline, or in part considered temporal proximity. 

    And to the extent that Defendant challenged the certainty of Carter’s findings (i.e., that “the confluence of events” contributed to “some degree of deterioration”), the Court decided that the Defendant is entitled to draw out Carter’s certainty before the jury via cross-examination. But such an argument goes to the weight, not the admissibility, of Carter’s testimony. 

    Held

    • The Court granted Defendant’s motion to strike Frank Fore’s testimony that the allegedly improper gangway slope was the primary or but-for cause of Plaintiff’s injury (or in other words the accident would not have happened but for the slope).
    • The Court denied Defendant’s motion to strike Fore’s testimony that Defendant failed to comply with its internal policies.
    • The Court granted Defendant’s motion to strike Fore’s testimony that Defendant’s failure to comply with its internal policies is the primary or but-for cause of Plaintiff’s injuries (or in other words the accident would not have happened had Defendant followed its internal policies).
    • The Court held that any deficiency in Plaintiff’s disclosures of Mark Fulton and Timothy Carter will be cured so long as Plaintiff makes Fulton and Carter available for deposition within twenty days of this Order. 
    • The Court denied Defendant’s substantive motion to strike the testimony of Carter.

    Key Takeaways:

    • Defendant persuasively challenged the reliability of the methodology Fore employed to go a step further to conclude that the ostensibly-improper gangway was the but-for cause of Plaintiff’s injurious ejection. An ultimate causation opinion goes a great deal further than simply an opinion that industry standards were not followed. A causation opinion must be supported by greater analysis and investigation.
    • Fore’s testimony that “certain building codes and guidelines or regulations were arguably applicable to the subject gangway and that any alleged deficiencies with the subject gangway may have contributed to Plaintiff’s incident” certainly falls within his expertise and experience. And the work he undertook to reach that more limited opinion is sufficient for Daubert purposes.

    Case Details:

    Case Caption: Youngman V. Royal Caribbean Cruises Ltd.
    Docket Number: 1:23cv21796
    Court: United States District Court, Florida Southern
    Order Date: September 2, 2024