A district judge in Nebraska admitted the testimony of an orthopedic spine surgeon despite lacking the required education, training and experience in physics, engineering, accident reconstruction or biomechanics.
Plaintiffs, Lisa Rentz Johnson and George Johnson, have brought a personal injury lawsuit involving an accident between two tractor-trailers in a parking lot. Lisa alleged she sustained physical injuries and disability because of the collision, including injuries to her head, neck, back, left arm, and left knee. George sought damages for alleged loss of consortium.
The Defendants retained Dr. Chris Cornett, an orthopedic spine surgeon with Nebraska Medicine, as an expert witness to perform an independent medical evaluation (“IME”) of Lisa.
The Plaintiffs filed a motion to exclude certain testimony and opinions found in Cornett’s report.
The Plaintiffs argued Cornett’s opinions related to the severity of the collision must be stricken and excluded from trial because he failed to provide the methodology by which he formed his non-medical opinions.
Orthopaedic Surgery Expert Witness
Dr. Chris A. Cornett, an orthopedic spine surgeon with Nebraska Medicine, has more than a decade of experience as a trauma doctor. He attended medical school at University of Nebraska Medical Center and also has a master’s degree in physical therapy from the UNMC Medicine School of Allied Health Professions. He is a member of the American Academy of Orthopaedic Surgeons (AAOS).
The Plaintiffs objected to Cornett’s description of the damage to the two vehicles based on the photographs he reviewed; Cornett’s noting, “The mechanism in this case and the photographs of the vehicles seem mild, and certainly not high energy in my opinion”; and his conclusion that he did “not see any reason, given this mechanism and the prior history, that one could medically state that this injury permanently aggravated or worsened those preexisting conditions.”
The Plaintiffs argued that since Cornett has no education, training and experience in anything other than orthopedics, all of his opinions on speed, impact and energy should be excluded.”
Cornett testified during his deposition that he did not see it was “reasonable medically that [Lisa] suffered a significant spine injury or a permanent worsening of a prior condition that ultimately required surgery.”
When Cornett was asked what qualifications he has “to assess the energy forces related to the impact of the case”, he responded, “I would say no qualifications, again, as a physicist or a biomechanical expert but just qualifications as taking Level 1 trauma call for over a decade.”
Cornett testified that through his experience as a trauma doctor, it is common to have some description of an accident, either through first responders directly or in subsequent reports.
The Court was satisfied that Cornett is sufficiently qualified and reliable to opine on the specific issues relevant to this case.
Held
The Court denied Plaintiffs’ motion to exclude certain testimony and opinions found in Chris Cornett’s report.
Key Takeaway:
Cornett lacked education in physics, engineering, accident reconstruction or biomechanics but testified that through his experience as a trauma doctor, it is common to have some description of an accident, either through first responders directly or in subsequent reports.
Pamela Ahmed has a history of back problems dating back to a traffic accident in approximately 1988. By 2020, Ahmed had a litany of “bad orthopedic issues,” leading her doctor to deem her an “orthopedic disaster.”
She began to experience significant hip arthritis, and her doctor diagnosed her with end-stage osteoarthritis. Ahmed underwent a right total hip arthroplasty on November 4, 2020, during which her doctor implanted her with a Pinnacle Altrx polyethylene liner, Pinnacle cup, and Biolox ceramic femoral head.
On February 25, 2021, Ahmed reported to her doctor that her hip was popping and that she had fallen. Ahmed underwent a revision hip arthroplasty in March 2021, and received a new femoral head and acetabular liner. On March 19, 2021, Ahmed underwent an additional surgery as a result of an infection. In June and August 2021, Ahmed experienced two incidences of hip dislocation.
Ahmed filed this lawsuit alleging that she was injured when her polyethylene hip implant (the Pinnacle Altrx) became dislocated. She retained two expert witnesses Richard Edwards and Dr. Kenneth Sands.
Defendants have since moved to exclude all opinions of Plaintiff’s expert, Edwards, and Plaintiff’s rebuttal expert, Sands.
Materials Science Expert Witness
Richard Edwards held a Bachelor’s degree in materials science and engineering and had studied in a mechanical engineering graduate program. He had extensive experience conducting failure analyses on various materials, including medical device implants and hip replacement systems. Edwards had analyzed plastics, including polyethylene used in the hip implant liner. He examined the failed hip implant components, reviewed relevant literature, and conducted non-destructive testing. However, he had not previously analyzed a polyethylene hip implant liner prior to this product liability case.
Dr. Kenneth Sands M.D. is an orthopedic surgery expert witness from Florida. He is certified by the American Board of Orthopaedic Surgery. Dr. Sands completed his BS in 1992 from Duke University. He completed his MD in 1996 from Tulane University School of Medicine. He also completed his residencies in 2002 from SUNY Downstate Health Sciences University. Currently, Dr. Sands is an Orthopedist at Melbourne Regional Medical Center.
The Court held that Edwards’ design defect opinions are generally reliable, but he may not testify as to alternative design theory.
1. Edwards Is Qualified to Testify as an Expert Regarding the Hip Implant
The Court held that Defendants’ attempts to narrow the subject matter about which Edwards must be qualified to testify are unavailing. His mechanical engineering background and decades of experience conducting failure analyses, including of medical devices and of hip implants specifically, meant that this subject matter was “sufficiently within his expertise.”
2.Edwards’ Design Defect Opinions are Generally Reliable, but he may not Testify as to Alternative Design Theory
Defendants argued that Edwards’ design defect opinions should be excluded because they are not the product of objective scientific testing or methodology. The Court found that Edwards’ design defect opinions are scientifically reliable despite his lack of destructive testing of the incident product. Defendants also attacked Edwards’ opinions as unscientific resting on a “selective and incomplete review of the literature.” Yet, Edwards’ report cited the 25 sources that he reviewed while investigating the product failure, including a variety of academic papers and published industry reports. Defendants argued that that Edwards’ conclusions amounted to “unauthorized conclusions from limited data” because “none of the papers he considered actually concluded that the Pinnacle hip replacement device or any component parts (including the Altryx liner at issue) were defective. The Court held that Edwards’ literature review was part of a wider technical process, which also included examining and measuring the Hip Implant’s ball and liner; conducting an infrared spectrograph of the liner material; and creating a replica to better visualize some of the liner’s characteristics.
3.Edwards may not Reliably Testify as to Alternative Design Theory
Edwards’ expert report consisted of multiple alternative design proposals. The Court disagreed as to Edwards’ ability to testify regarding a theoretical alternative design when applicable case law suggests that the failure to test a proposed alternative design or cite another’s testing of the design is fatal to the admissibility of said testimony.
4.Edwards’ Manufacturing Defect Opinions are not Impermissible Ipse Dixit
According to Defendants, Edwards’ manufacturing defect opinions are pure ipse dixit, “based on speculation, conjecture and inference, rather than reliable principles and methods.” The Court held that while Edwards may not reliably testify as to alternative design theory, his defect opinions are “the product of reliable principles and methods” and reflect “a reliable application of the principles and methods to the facts of the case.” Like many (if not most) scientists, Edwards did not have direct evidence of a manufacturing or design flaw in the Hip Implant but instead employed inductive reasoning to reach the hypothesis that the product was defective in either manufacturing or design.
5.Edwards’ Non-Medical Causation Opinions Are Not Excludable
Defendants also asked that the Court exclude Edwards’ causation opinions because he is not qualified to offer medical causation opinions, and even if he were qualified to offer medical causation opinions, “his opinions would still be inadmissible because he failed to meaningfully account for far more likely factors and causes of Ahmed’s alleged injuries.” Edwards concluded that the Hip Implant malfunctioned because the locking mechanism between the Altrx liner and Pinnacle cup was inadequate to hold the liner in place after impingement occurred. The Court held that this is a product defect opinion from a materials scientist and engineer with over forty years’ experience in failure analysis of various materials. It is not a medical causation opinion. And, as explained infra, an expert opinion regarding medical causation is not necessary under the facts/allegations of this case.
6.Opinions that Edwards Revealed for the First Time at his Deposition May Come In
Edwards discussed at his deposition the following that were not included in his expert report: (1) his opinion that “the plastic in the liner is too deformable,” and (2) a free body diagram to calculate the forces exerted on the Hip Implant. As to both, the Court cannot see how Defendants’ objections hold water. For Rule 26(a)(2)(B) experts, the party’s duty to supplement extends to both to information in that expert’s report and information given during the expert’s deposition. The Court held that no supplementation was needed for merely explaining an opinion that Edwards already detailed in his report. Rule 26(e) envisions supplementation when a party’s discovery disclosures happen to be defective in some way so that the disclosure was incorrect and incomplete, and therefore, misleading. To conclude, Plaintiff had no duty to supplement Edwards’ expert report.
Kenneth Sands
The Court held that Sands may not testify in Plaintiff’s case-in-chief to establish medical causation. He may only testify to rebut the Defendant’s expert. Nonetheless, as discussed infra, expert medical causation testimony is not necessary in this case because the Record does not reveal a genuine dispute that the Hip Implant’s failure caused Plaintiff’s injuries — only whether there was a defect in the Hip Implant that caused it to fail. The Plaintiff tendered Edwards’ testimony in aid of the latter purpose.
1.Sands Reliably “Ruled In” Defect as a Cause of Ahmed’s Injuries
Sands based his opinion that the cause of the failed Hip Implant was multifactorial on his review of Ahmed’s medical records, depositions of relevant parties, medical case reports, Edwards’ expert report, and his own experience with total hip arthroplasty.
Defendants attacked Sands’ reliance on case reports as impermissible because “they are not the kind of scientific materials on which experts would rely outside the courtroom.”
The Court held that Sands’ rebuttal report cannot properly and did not prove causation — that’s Edwards’ job. All the same, given that the Court already held supra that Edwards’ design defect opinions were generally reliable, Sands was allowed to rule on them in support of his refusal to rule out the Hip Implant itself as a major contributing factor for Ahmed’s failed total hip replacement.
2. Sands Did Not “Rule Out” Any of the Three Variable as Potential Causes for the Hip Implant’s Failure and Was Not Obligated to Do So
An expert’s differential diagnosis testimony is unreliable when it fails to sufficiently explain why other potential causes have been ruled out. Yet a differential diagnosis is not an absolute requirement to survive a Daubert challenge.
The Court held that Sands did not conduct a differential diagnosis in this case and was not required to do so.
Both Sands and Defendants’ expert Barrington agreed that a successful arthroplasty necessitated the alignment of three variables: the surgeon, the implant, and patient-specific factors. Sands did not rule out any of these as potential causes; rather, his detailed concerns with respect to each factor undergird his conclusion that Ahmed’s failed total hip replacement was multifactorial. Nor did he find that all possible causes were causes.
Held
The Court granted Defendants’ motion to exclude opinions of Richard Edwards to the extent that Edwards was prohibited from testifying as to any alternative design for the Hip Implant but denied it as to every other respect.
The Court denied Defendants’ motion to exclude opinions of Kenneth Sands.
Key Takeaways:
Rebuttal experts can address the same subject matter as opposing experts and arrive at contradicting conclusions, provided they directly respond to the opposing expert’s opinions.
Experts may rely on case reports to support their opinions, acknowledging the limitations of such reports and using them in conjunction with other evidence.
A formal differential diagnosis is not always required for expert testimony on causation to be admissible.
Expert qualifications are assessed liberally, with experience in a related field qualifying an expert to testify on specific issues.
Alternative design theories must undergo testing or validation to be admissible as expert testimony.
Opinions first disclosed during an expert’s deposition may be admissible if they do not materially differ from the expert’s report and are disclosed before the pretrial deadline.
Case Details:
Case Caption:
Ahmed v. Johnson & Johnson Healthcare Sys.
Docket Number:
1:22cv190
Court:
United States District Court for the Southern District of Alabama
This case involves a lawsuit filed by Donald F. Greene and Nicole F. Greene (“Plaintiffs”) against Ledvance LLC (“Defendant”) regarding injuries Donald Greene sustained when a fluorescent light bulb he was changing allegedly exploded. The incident occurred on June 11, 2020 at Donald Greene’s workplace.
According to the allegations, On June 11, 2020, Donald Greene, employed as a site manager for Waste Connections, was in the process of changing a fluorescent light bulb located on a wall in the garage of his workplace when the light bulb suddenly and abruptly exploded without warning. Donald Greene sustained severe injuries, primarily to his left arm. He was taken by ambulance to the hospital where his left bicep wound was treated and closed surgically. He later underwent two additional surgeries on his left bicep performed by orthopedic surgeon Joshua P. Moss, who continued treating Donald Greene’s injuries.
Plaintiffs brought suit against Defendant, the alleged designer, manufacturer, seller and distributor of the subject fluorescent light bulb, under the Tennessee Product Liability Acts. Plaintiffs alleged that because a fluorescent light bulb does not normally “violently explode” during normal handling, Defendant was also liable under the common law doctrine of res ipsa loquitur, contending that the nature of the incident itself implies negligence.
In the course of expert disclosures, Plaintiffs identified Moss as the treating physician for Plaintiff Greene. Moss intended to testify on causation, medical necessity, and details of Greene’s treatment, along with the impact of the injury on Greene’s physical abilities. His opinions emphasized that on June 11, 2020, Greene suffered a serious injury to his left arm when a fluorescent light bulb exploded during a change, causing immediate tissue disruption and bleeding in the left biceps area. Moss, drawing on his experience as an orthopedic surgeon for military personnel, asserted that the traumatic laceration of tissue in Greene’s left arm resulted from a force comparable to that experienced by military personnel injured by explosive ordnance of fragmentation devices. This distinction was crucial, indicating a highly violent force, as opposed to the type of injury that would typically result from a simple fall onto the bulb.
The Defendant sought to exclude specific testimony from Moss, specifically objecting to any opinions related to the fluorescent lamp at issue and the manner in which broken glass from the lamp might have caused Greene’s injury. The motion specifically aimed at precluding Moss from asserting that Greene’s injury resulted from an explosion or, based on his military experience, that the traumatic laceration was due to a highly violent force comparable to injuries sustained by soldiers exposed to explosive ordnance or fragmentation devices.
On May 26, 2023, the Plaintiffs revealed Thomas Kelly as their expert in the case. Kelly, a licensed electrical engineer employed by the Warrant Group, Inc. since 2017, specialized in consulting on property damage and injuries related to electrical equipment.
As part of his investigation, Kelly conducted three key activities: (1) examined the clothing worn by Plaintiff Greene on the day of the incident, (2) scrutinized lamps retrieved from adjacent fixtures at the facility, and (3) conducted a meeting with Plaintiff Greene to inspect, document, and photograph the light fixture and facility in question. In addition to these on-site activities, Kelly also reviewed various documents, including Plaintiff Greene’s deposition transcript, the emergency medical services and police reports from June 11, 2020, an invoice from Lloyd’s Electrical Service dated December 31, 2013, Safety Data Sheets for Sylvania fluorescent light bulbs, and photographs taken at the scene of the incident.
In his analysis, 1) The lamp’s power was cut off via the circuit breaker panel before the lamp-changing process, disconnecting the energy source for the fixture. The incident was not a result of an electrical failure in the building’s electrical system.
2) The light fixture in question contained a single electronic ballast, with no battery backup or stored energy. Power to the fixture had been deactivated by opening the related circuit breaker before the process began. Plaintiff Greene showed no observable burn marks on his hands, indicating no contact with an energized source. The light fixture was returned to service after replacing the lamps post-incident, and the issue was not caused by an electrical failure in the fixture.
3) Fluorescent lamps are constructed with thin glass tubing, coated with phosphorus on the inside. Glass end caps, tungsten filaments, and mercury vapor are components added during the assembly process, with stress accumulating during these steps. A defect in any component, influenced by these stresses, can act as a trigger. Kelly’s analysis concludes that the failure of the lamp resulted from a defect in the fluorescent lamp assembly, to a reasonable degree of engineering certainty.
On May 26, 2023, the same day Plaintiffs revealed Kelly as their expert, Defendant initiated a motion for summary judgment. In support of this motion, Defendant submitted declarations from its experts: David W. Powell, a mechanical engineer, and Erick H. Knox, Ph.D., P.E., a biomedical engineer. Additionally, Defendant filed a declaration from its corporate representative, Danielle Sohl. In response, Plaintiffs submitted Kelly’s Declaration:
It clarifies discrepancies in Plaintiff Greene’s initial description of the lamp removal process. He reaffirms his opinions on the lamp failure despite the correction in the direction of movement. Kelly discusses the ladder’s specifications, noting that the fly section’s load-bearing capacity is contingent on the entire assembly supporting the rated weight. He addresses marks on the walls, attributing them to various tools and parts rather than the ladder. Refuting Defendant’s hypothesis on the ladder’s position during the incident, Kelly highlights inconsistencies with the broken cover plate and plastic piece. He mentions challenges in evaluating debris due to safety concerns during the pandemic, emphasizing Greene’s account and post-incident photographs as primary evidence. Kelly references NFPA 921, asserting that while the lay term “explosion” was used, the circumstances don’t align with the standard’s definition. He applied NFPA 921 guidelines considering witness statements and photographic evidence. Regarding the SDS for the lamp, Kelly contends that the lack of warnings left Greene unaware of the hazard’s severity, leading to Defendant’s failure in providing adequate warnings.
Defendant filed two motions seeking to exclude certain expert testimony from Plaintiffs’ expert Thomas Kelly, an electrical engineer, as well as a motion to strike Kelly’s subsequent declaration.
Electrical Engineering Expert Witness
Thomas J. Kelly has substantial educational background including a Bachelor of Science in Electrical Engineering and a Master of Science in Electrical Engineering from Florida Atlantic University. He further completed Master of Business Administration from Winthrop University. He investigates the cause and scope of damage for fire, explosion, and property loss incidents. He is certified as a Fire and Explosion Investigator. He is employed with The Warren Group, Inc., as a senior consulting engineer
Orthopedic Surgery Expert Witness
Dr. Joshua P. Moss has an educational background consisting of a Bachelor of Science from the University of Notre Dame and a Doctor of Medicine from Vanderbilt University School of Medicine. His residency was in Orthopaedic Surgery at the University of North Carolina, Chapel Hill School of Medicine. He then completed a fellowship in Mary S. Stern Hand Surgery at the University of Cincinnati. Moss is board certified by the American Board of Orthopaedic Surgery . His specialties include orthopedics and hand surgery. He began his practice at University Orthopaedic Surgeons in 2016.
Discussions by the Court
The Defendant put forth several grounds in support of its motion to exclude specific aspects of Moss’s testimony. Firstly, the Defendant contended that Moss lacked sufficient knowledge concerning fluorescent light bulbs, emphasizing his absence of experiments to determine whether Greene’s injury could have resulted from impaling an arm on the broken end of a fluorescent lamp. Additionally, the Defendant asserted that Moss lacked experience in designing or manufacturing fluorescent light bulbs. Citing Moss’s deposition testimony, the Defendant argued that he conceded the existence of a viable alternative cause for Plaintiff Greene’s injury. Ultimately, the Defendant sought the Court’s intervention to exclude these opinions from Moss as unreliable.
Plaintiffs responded by asserting that Moss’s anticipated testimony was well within the scope of his expertise. They emphasized his background as an orthopedic surgeon for military personnel and his direct involvement in treating Plaintiff Greene. Plaintiffs argued that Moss’s opinions, rooted in his relevant experience, were reliable. While acknowledging that Moss is not an expert on light bulbs, Plaintiffs contended that the Defendant failed to provide a valid basis for excluding his opinions. They further asserted that the Defendant misrepresented Moss’s deposition testimony and contended that the challenges to his opinions were more appropriately addressed through cross-examination during the legal proceedings.
The Defendant, in its reply, maintained that Moss should not be permitted to present causation opinions during the trial. The Defendant argued that Moss had not personally conducted any testing to determine if Plaintiff Greene’s injuries could have resulted from an allegedly exploding fluorescent lamp. The Defendant emphasized that Moss had not undertaken any investigation into the accident beyond examining Plaintiff Greene’s wounds. Additionally, the Defendant highlighted Moss’s lack of experience in the manufacturing of fluorescent light bulbs. Based on these points, the Defendant asserted that excluding Moss’s causation opinion was justified.
During the hearing, the Defendant clarified its stance, indicating that it did not contest Moss’s opinions regarding the similarity of Plaintiff Greene’s injury to battlefield injuries or the assertion that the injuries resulted from glass. The Defendant also expressed lesser concern about Moss’s testimony characterizing the injuries as consistent with a “highly violative force.” However, the Defendant argued that Moss should be prevented from asserting that Plaintiff Greene’s injury specifically resulted from an exploding or imploding light bulb. In response, the Plaintiffs contended that the challenges raised by the Defendant pertained more to the weight of Moss’s opinions rather than their admissibility.
Citing relevant cases such as In re Aredia & Zometa Prods. Liab. Litig., 754 F. Supp. 2d 934, 937 (M.D. Tenn. 2010), there is a fundamental distinction between a treating physician’s ability to diagnose a medical condition based on clinical experience and their capacity to offer an opinion on the causation of the patient’s injuries. The case emphasizes that while a treating physician can provide a diagnosis, their opinions on the source or causation of the diagnosed condition may be restricted. It underscores the principle that a treating physician, without an expert report, is not allowed to go beyond information acquired during the treatment to offer opinions on the causation of injuries.
Plaintiffs argued that Moss had experience treating individuals with injuries related to glass. However, Moss admitted that, apart from installing them in his garage, he lacked familiarity with fluorescent light bulbs and did not consider himself an expert on them. Federal Rule of Evidence 702 was referenced to underscore the requirement that expert testimony should be based on an accepted body of learning or experience in the expert’s field. Moreover, Moss, aside from relying on Plaintiff Greene’s account, had not conducted an independent investigation into the accident to verify that the light bulb had indeed exploded.
Additionally, Moss acknowledged an inability to rule out alternative causes for Plaintiff’s injuries. Citing the case, Wilson v. Taser Int’l, Inc., 303 F. App’x 708 (11th Cir. 2008), where a treating physician’s testimony attributing an injury to a taser gun was deemed unreliable, the Court concluded that Moss was not permitted to provide opinions concerning the fluorescent lamp in question or how broken glass from that lamp may have caused injury to the Plaintiff.
During the Daubert hearing on November 16, 2023, Kelly provided testimony about his professional background, detailing his fifteen years in facilities management with formal training on equipment such as ladders and fire extinguishers. In his current role, he specializes in fire, shock, and electrical investigations. Kelly asserted that the incident resulted from the fluorescent light bulb imploding and expelling glass material. He clarified the distinction between “implosion” and “explosion” based on NFPA definitions, highlighting that an implosion, as observed in this case, may be colloquially perceived as an explosion. To reach his conclusions, Kelly examined the building’s use, assessed the electrical circuit and wiring, disassembled the light fixture, and met with Plaintiff Greene to understand his perspective. Confirming the functionality of the fixture and finding no defects, Kelly ruled out electrical failure. He utilized his knowledge and experience to hypothesize, evaluate potential causes, and ultimately concluded that a manufacturing defect in the light bulb caused the incident.
During the testimony, Kelly affirmed his familiarity with the light bulb in question, citing his experience using and purchasing it during his tenure as a facilities manager. He also acquired knowledge of the bulb’s manufacturing process from a documentary. Kelly supported his opinion that the incident was not caused by improper handling by referencing Plaintiff Greene’s demonstration and noting the absence of trauma to Greene’s hands.
Kelly clarified that his opinions in the Declaration were responsive to the declarations of Defendant’s experts supporting the summary judgment motion. Regarding paragraph 6 of his Declaration, Kelly explained his interpretation of ladder weight limits based on his experience and training. The opinions in paragraph 8 stemmed from his review of photographs and professional experience, where he observed no scuff marks on the floor, indicating the ladder did not slide down the wall.
In his Declaration, Kelly mentioned concerns about bloodborne pathogens and pandemic-related cleanup. During testimony, he emphasized his knowledge of injuries involving bleeding, his multiple bloodborne pathogens training sessions, and his participation in a medical emergency response team with a previous employer.
During the Daubert hearing, Kelly testified to his extensive experience in facilities management, emphasizing his training in ladders, fire safety, and electrical investigations. He explained his conclusion that the incident resulted from the fluorescent light bulb imploding and ejecting glass, clarifying the technical definition of “explosion” and detailing his examination of the building’s usage, electrical circuit, and the light fixture’s components.
Kelly affirmed his familiarity with the specific light bulb through prior usage and purchases, as well as viewing a documentary on its manufacturing process. He defended his opinions in response to Defendant’s expert declarations, providing context for his interpretations. On cross-examination, Kelly acknowledged his lack of expertise as a ladder specialist or accident reconstructionist but defended his hypothesis about the light bulb’s spontaneous failure due to a manufacturing defect.
Kelly admitted to not having investigated the manufacturing process, quality control, or conducting specific tests on exemplar bulbs. He highlighted his reliance on Plaintiff Greene’s account and dismissed alternative causes, emphasizing his inability to test the actual subject light bulb. The defense questioned his analysis of marks on the wall and ladder placement, challenging the adequacy of his investigation. Kelly defended his lack of testing, citing unavailability of the subject light bulb and reliance on Plaintiff Greene’s account.
In re-direct examination, Kelly maintained that something caused the light bulb to implode, stressing factors like temperature changes. He admitted to the absence of testing records due to the closure of the manufacturing plant. Kelly clarified that his failure-to-warn opinion was a facilities manager’s perspective, not an engineering standpoint, responding to Powell’s description of implosion in his testimony.
Defendant seeks to exclude Kelly’s testimony, contending it lacks relevance and is based on insufficient facts or unreliable methodology under Rule 702 and Daubert. Defendant moves to strike Kelly’s opinions expressed in his Declaration, claiming they are untimely under the Scheduling Order and inadmissible. Plaintiffs argue that Kelly is qualified, and his opinions are based on thorough review, utilizing a valid process of elimination. Plaintiffs assert that Sohl’s deposition undermines Powell’s theory. Defendant’s reply insists on Kelly’s failure to identify a product defect, lack of proper testing, and presents new opinions beyond his expertise. The debate also touches on the timeliness of Kelly’s Declaration and the potential for a supplemental deposition.
The Court emphasized the flexibility of the Daubert test, acknowledging various factors in assessing reliability. The burden of proving admissibility lies with the party offering the expert. In this case, the Court determined that Kelly’s opinion on the cause of the incident lacked reliability, leading to its inadmissibility. The Court also questioned Kelly’s qualifications regarding warnings and considered his opinion on the cleanup process as speculative.
The Court, in assessing Kelly’s qualification to opine on Plaintiff Greene’s handling of the light bulb, found the opinion lacked reliability due to insufficient facts and data. Kelly’s reliance on Plaintiff Greene’s reenactment, without proper testing or verification of key aspects, raised concerns about the accuracy of the conclusion. The Court highlighted discrepancies in the reenactment, such as the ladder type used, rung spacing, and the attempt to change the bulb using the ladder’s top fly section. Additionally, Kelly’s speculative opinions on wall marks, scuff marks, electrical conduct, and debris investigation were deemed unreliable and unsupported. The Court referenced the analytical gap between data and opinion, emphasizing the need for a valid scientific basis.
The Court contested Kelly’s qualifications to assert a manufacturing defect in the light bulb assembly, challenging his expertise as a licensed professional engineer and facilities manager. Despite his background, the Court found Kelly lacked the necessary qualifications to testify on a manufacturing defect in a fluorescent light bulb. His limited familiarity, derived from watching a video, and the absence of experience in designing or manufacturing such bulbs were deemed insufficient. Moreover, the Court critiqued Kelly’s methodology, citing the Pride v. BIC Corp., 218 F.3d 566, 578 (6th Cir. 2000) case and emphasizing the failure to conduct reliable laboratory testing to validate his hypotheses. Kelly’s reliance on Plaintiff’s statements without proper testing and failure to verify key aspects rendered his opinion on manufacturing defects inadmissible.
The Court contested Kelly’s qualifications to opine on warnings, as Plaintiffs failed to establish his expertise in the field relevant to warnings. While Plaintiffs argued Kelly’s experience as a facilities manager and familiarity with Occupational Safety and Health Administration (“OSHA”) standards rendered him capable, the Court found this insufficient, emphasizing the absence of qualifications in the adequacy of warnings based on Kelly’s curriculum vitae. Therefore, the Court deemed Kelly unqualified to offer an opinion on warnings. Additionally, the Court addressed Kelly’s opinion about the cleanup process, finding it speculative and inadmissible due to the lack of factual foundation for his statement about the disposal of debris.
Rule 26(a)(2) of the Federal Rules of Civil Procedure governs expert disclosures, requiring parties to disclose witnesses and provide a written report for retained experts. The Scheduling Order sets deadlines for expert disclosures and permits rebuttal opinions within 30 days after the other party’s disclosure. Rule 26(a)(2)(D)(ii) defines rebuttal evidence as intended to contradict or rebut evidence on the same subject matter. Plaintiffs, in this case, disclosed expert opinions within the specified deadlines, and Defendant contested certain opinions in Kelly’s Declaration as untimely. Defendant challenged four opinions in Kelly’s Declaration: “(1) certain black marks on the wall are as likely to be from other sources from the ladder [Plaintiff] Greene was using, (2) a plastic piece on the floor does not match the missing portion of an electrical outlet cover, (3) certain NFPA guidelines do not apply to this case, and (4) [Defendant] failed to warn that if broken, a fluorescent lamp can implode, dispersing glass fragments.” The Court ruled against striking most opinions but found one regarding failure to warn untimely, excluding it under Rule 37.
Defendant contends that Kelly is introducing new information in his analysis, which could have been considered earlier. Plaintiffs argue that Kelly’s opinions are valid rebuttals to Knox, responding to inconsistencies in Plaintiff Greene’s account of certain black marks on the wall and a plastic piece on the floor highlighted by Knox. The Court deems Kelly’s opinions on these matters as appropriate rebuttal testimony and rejects the motion to strike them.
Defendant claims that Kelly’s statement in his declaration about the lamp failure not fitting the NFPA 921 standard is an attempt to alter his previous deposition testimony. Plaintiffs argue that their response to Defendant’s summary judgment motion required Kelly to review and address new information provided by the Defendant. The Court determines that Kelly’s statement is not an effort to change his deposition testimony, and as a result, declines to strike it.
The Court determines that regardless of whether Kelly’s opinion introduces a new theory of liability, it is not a proper rebuttal opinion. Defendant’s experts did not provide opinions on warnings, as acknowledged by Kelly during the Daubert hearing. Since failure to warn is alleged in the Amended Complaint and Kelly disclosed in his initial disclosure that the light bulb exploded, the Court concludes that Plaintiffs should have initially disclosed an opinion from an expert with the requisite qualifications regarding warnings. As they disclosed Kelly’s new opinions that he is not qualified to render, the Court finds that these opinions are not genuine rebuttal evidence and may be excluded.
The Court cites Rule 37(c)(1) of the Federal Rules of Civil Procedure, stating that if a party fails to provide required information or identify a witness as per Rule 26(a), they cannot use that information or witness unless the failure was substantially justified or harmless. The burden to show substantial justification or harmlessness lies with the potentially sanctioned party. The Court references the Sixth Circuit’s five factors for assessing whether a party’s omitted or late disclosure is “substantially justified” or “harmless,” including the surprise to the opposing party, the ability to cure the surprise, the extent of trial disruption, the importance of the evidence, and the nondisclosing party’s explanation for the failure to disclose the evidence. The Court refers to Howe v. City of Akron, 801 F.3d 718, 747-48 (6th Cir. 2015) for these factors.
The Court concludes that a majority of the factors favor the exclusion of Kelly’s opinions. Despite the Plaintiffs’ assertion that the Defendant cannot be surprised because Kelly’s original report allowed for supplementation with additional opinions, the Court emphasizes that such allowance does not permit the introduction of entirely new opinions in violation of the Scheduling Order. It notes that the Defendant lacks the ability to cure the surprise, even with the Plaintiffs’ offer to provide Kelly for a second deposition, as the Defendant would need to potentially retain its own warnings expert and prepare a rebuttal report. The Court underscores that there will be no trial disruption, but the discovery deadline has already expired. The Court also deems the importance of the evidence as favoring exclusion, pointing out that Kelly is not qualified under Rule 702 and Daubert to render the opinion on warnings. Finally, in terms of explanation, the Court rejects the Plaintiffs’ argument that Kelly’s opinion is a rebuttal, determining that it is not, and notes that the Plaintiffs were aware of the Defendant’s intention to submit evidence related to glass tube dispersion. The Court concludes that the Howe factors lean towards excluding Kelly’s opinions on warnings.
Held
The Court ultimately granted Defendant’s motion to exclude the testimony of Thomas J. Kelly in its entirety. The Court also granted in part and denied in part Defendant’s motion to strike the declaration of Thomas J. Kelly. The Court granted the Defendant’s motion to exclude specific testimony from Plaintiff’s expert witness, Joshua Moss.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
This case involved an injury allegedly caused by an exploding fluorescent light bulb. The Plaintiff disclosed his treating orthopedic surgeon, Joshua Moss, as an expert witness to testify about the cause of the injury, the details of treatment provided, the impact on the Plaintiff’s abilities, and the reasonableness of medical expenses. However, the Court granted the Defendant’s motion to exclude certain aspects of Moss’s proposed testimony.
Specifically, the Court found that while Moss could testify to his diagnosis and treatment of the Plaintiff’s injuries, he lacked sufficient knowledge and investigation to reliably opine on the cause of the injuries being an exploding light bulb. Moss admitted he was not an expert on fluorescent bulbs, did not investigate the accident scene, and could not rule out alternative causes. Thus, the key takeaways are that treating physicians can testify to diagnosis/treatment but cannot reliably testify to causation without proper expertise in the injury mechanism at issue and investigation excluding alternative causes. Lacking such foundation, the Court will exclude unreliable causation opinions even from an otherwise qualified expert.
The Court also excluded all opinions from Plaintiffs’ proffered electrical engineering expert Thomas Kelly after finding him generally unqualified and his methodology unreliable. Specifically, Kelly lacked specific qualifications and expertise to opine on alleged manufacturing defects in fluorescent light bulbs or the adequacy of product warnings. His opinions were also not grounded in sufficient facts, data, or testing to validate his hypotheses. He failed to properly test or investigate alternative theories. This reliability gap proved fatal to the admissibility of his causation opinions.
The case shows that practical experience alone may not qualify someone to provide expert opinions if that experience does not directly correlate to the specific issues in the case. It also demonstrates that while an expert can rely on a hypothesis and process of elimination, testing and factual data are still required to establish opinions as reliable and admissible. Failing to follow reliable principles and methods consistent with the facts renders expert testimony unreliable and subject to exclusion no matter the expert’s qualifications. Parties must vet experts thoroughly regarding qualifications and methodology before disclosure.
This case involved a lawsuit filed by Louis Edward Hill against Century Arms, Inc. and Century International Arms, Inc. (collectively “Defendants”) relating to a pistol that allegedly unintentionally discharged when it fell out of its holster, resulting in injury to Hill’s knee.
On November 28, 2017, the Plaintiff purchased a Canik TP9SF Elite model pistol. Subsequently, on February 25, 2019, the Plaintiff sustained injuries when the pistol, housed in a holster, fell, struck the ground, and discharged unintentionally. The Plaintiff asserts that a safety defect rendered the pistol unreasonably dangerous. The Amended Complaint contends that the Defendants, involved in the design, manufacturing, import, marketing, distribution, and sale of the pistol, are responsible. The Plaintiff points to a September 1, 2017, “Product Safety Warning and Severe Duty Upgrade Notice” issued by the Defendants, which was not a recall but a voluntary upgrade. This notice applied to the Plaintiff’s pistol and acknowledged that dropping pistols could damage safety features, leading to unintentional discharge. The Plaintiff alleges negligence, strict liability for manufacturing and design defects, negligence, and strict liability for failure to warn. The complaint also includes allegations related to vicarious liability.
The Plaintiff suffered a knee injury in the accident and sought medical treatment from Dr. Konstantinos Triantafillou, M.D., a board-certified orthopedic surgeon. Following a deposition on September 8, 2022, Triantafillou testified that the likelihood of the Plaintiff requiring a total knee replacement in the future was “more likely than not.” He explained that the significant damage to the joint, characterized by a sizable hole, made it challenging to anticipate anything other than the development of painful arthritis in the future.
The Plaintiff enlisted the services of Robert P. Tremp, a life care expert, to assess future care needs, rehabilitation planning, and the impact of conditions on independent living and vocational development. In Tremp’s First Report finalized on September 26, 2022 (“Tremp’s First Report”) , he estimated the Plaintiff’s future medical expenses at $76,861.50, covering MRIs, X-rays, physical therapy, orthopedic appointments, and a total knee replacement. Notably, Tremp qualified that this list of future medical care was contingent on physician recommendations, except for the total knee replacement, which was based on Triantafillou’s deposition testimony. Tremp arrived at his opinions after reviewing the Plaintiff’s medical records and Triantafillou’s deposition.
On October 25, 2022, Robert P. Tremp asked Triantafillou to fill out a questionnaire on the Plaintiff’s future medical needs. In a report by November 3, 2022, Triantafillou suggested lifelong annual medical visits, no immediate treatments, but potential surgical intervention for post-traumatic arthritis, with joint replacement as a future consideration.
On November 17, 2022, a similar questionnaire was completed, omitting uncertain treatments. Triantafillou noted medical visits as needed for pain, potential surgery for arthritis pending evaluation, and probable but unspecified therapies. They recommended periodic diagnostics, injections, assistive devices, and aids based on symptom aggravation.
On February 9, 2023, the Plaintiff’s expert disclosure deadline expired, and Defendants claim that the Plaintiff disclosed Tremp along with three other experts as witnesses. On September 15, 2023, Defendants deposed Tremp, and during the deposition, the Plaintiff produced Tremp’s expert file, which included a one-page telemedicine Independent Medical Examination (IME) report prepared by William Tontz on March 11, 2023. Tontz recommended annual orthopedic visits for ongoing knee pain, along with annual MRI and CT scans for monitoring. Viscosupplementation was advised biannually. It was reasonably certain that the patient would eventually need a total knee arthroplasty and hardware removal due to persistent pain and post-traumatic arthritis.
In response to questions about any inconsistency between the recommendations of Triantafillou and Tontz, Tremp stated that “Triantafillou didn’t have much feedback in terms of recommendations based on the input he gave.” Defendants assert that, in addition to disclosing the IME with Tontz, Tremp also disclosed his Second Life Care Plan (“Tremp’s Second Report”) on the day of his deposition. Dated July 26, 2023, Tremp’s Second Report, based on Tontz’s recommendations, indicated that the Plaintiff will need orthopedic surgery appointments, viscosupplementation injections for the knee, total knee replacement with hardware removal, MRI of the left knee, and a CT scan of the knee. Tremp explained that he withdrew the September 27, 2022 plan because the 2023 plan replaced it due to new information from the IME with Tontz.
Defendants filed two motions seeking to exclude the evidence relating to Tontz. First, they sought to exclude Tontz as an undisclosed expert witness in violation of Rule 26(a)(2) and exclude his opinions as a sanction pursuant to Rule 37. Second, they sought to exclude Tremp’s testimony relying on Tontz’s opinions.
Life Care Planning Expert Witness
Robert P. Tremp, Jr., M.A., C.R.C., C.L.C.P., holds a Master of Arts degree in Special Education and Rehabilitation, which he earned from the University of Arizona in 2004. Prior to this graduate program, Tremp completed a Bachelor of Arts in Interdisciplinary Studies and Social Science, Human Resources and Society at Michigan State University in 2002. Additionally, in 2004 he finished an internship with the Rehabilitation Services Administration of the Arizona Department of Economic Security. He has obtained professional certifications demonstrating specialization and expertise, including as a Certified Rehabilitation Counselor, Certified Life Care Planner, and Provisional Mental Health Counselor. Presently, Tremp serves as a consultant with the firm Deutsch, Tremp & Tremp, LLC, which has office locations in Arizona, Florida, Michigan and New York.
Orthopaedic Surgery Expert Witness
Dr. William Tontz, Jr., M.D., earned his medical degree from the University of Southern California School of Medicine. Prior to medical school, he obtained an undergraduate Biology degree from the University of California, Irvine. He is board certified by the American Board of Orthopedic Surgery, with specialized training in conditions of the spine. Tontz’s clinical expertise includes spine trauma and reconstruction procedures, minimally invasive cervical and lumbar surgeries, non-operative spine care, and decompression surgeries. He practices as an orthopedic spine surgeon with Coastal Medical Group and Sarasota Orthopedic Institute.
Discussions by the Court
Defendants are seeking to exclude the opinion of Tontz because Plaintiff did not disclose him as an expert witness by the February 9, 2023 deadline. Plaintiff contends that disclosure was unnecessary as he did not plan to call Tontz at trial. Plaintiff also argues that Rule 35 doesn’t mandate a Court order for a party to consult a physician and that Defendants were required to request Tontz’s Independent Medical Examination (IME), which they failed to do.
The Court disagrees with Plaintiff, citing Rule 26(b)(3)(D), which shields consulting experts from discovery unless exceptional circumstances are shown. However, Tontz goes beyond a consulting expert as Rule 26(b)(4) distinguishes between testifying and non-testifying experts. Although Plaintiff asserts he won’t call Tontz at trial, he presents Tontz’s opinions through Tremp. While Plaintiff wasn’t required to seek a Court order for the consultation, the rules necessitate timely disclosure of Tontz’s opinions if intended for trial reliance.
Plaintiff refers to Rule 35, arguing it requires the party seeking an IME to request reports of all earlier or later examinations of the same condition. Since Defendants obtained an IME with Dr. Koenig, Plaintiff contends they were obligated to request the subsequent IME by Tontz, which they failed to do.
The Advisory Committee note on Fed. R. Civ. P. 35(b)(3) clarifies that reports of examining physicians are discoverable under various rules, not solely under Rule 35(b). Plaintiff’s attempt to use Rule 35 as a means to utilize Tontz’s untimely disclosure is deemed impermissible by the Court. Defendants argue that they previously requested this information during discovery, and Plaintiff failed to supplement his responses as required under Rule 26(e).
Given the Court’s finding that Plaintiff was obligated to disclose Tontz by February 9, 2023, and failed to do so, Rule 37 comes into play. Rule 37(c) mandates exclusion unless the harm is substantially justified or harmless. Plaintiff did not argue that the failure to disclose Tontz was harmless or substantially justified, which alone justifies granting Defendants’ motion. The Court considered the circumstances and applied the five factors identified by the Sixth Circuit to assess the party’s failure to disclose, citing the case Howe v. City of Akron, 801 F.3d 718, 747-48 (6th Cir. 2015): (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.
Regarding the first Howe factor, which considers Defendants’ surprise, the Court favors excluding Tontz’s opinions. Plaintiff acknowledged the error in including Tontz as an expert to be deposed but confirmed he would not be called as a witness. Plaintiff’s late disclosure, seven months after the expert deadline, added to Defendants’ surprise.
As for the second factor, Defendants’ ability to cure the surprise, it favors exclusion. With the late disclosure in September 2023 and the trial set for January 2024, Defendants lacked sufficient time for discovery from Tontz.
The third factor, disruption to the trial date, supports exclusion. Plaintiff’s significant delay in disclosing Tontz, seven months after the deadline, would impact the trial set for January 2024.
The fourth factor, the importance of the evidence, slightly weighs against exclusion. While Defendants argue Tontz’s report lacks foundation, Tremp relies on it to form an opinion on Plaintiff’s future medical needs.
The fifth factor, the reason for the late disclosure, supports exclusion. Plaintiff’s failure to explain the delayed disclosure and the argument that he wasn’t required to disclose Tontz are deemed insufficient.
Considering these factors, the Court concludes that Tontz’s opinions should be excluded.
Defendants seek to exclude evidence relying on Tontz’s opinions, including Tremp’s Second Report. Plaintiff argues Rule 703 allows experts to base opinions on inadmissible facts if experts in the field would reasonably rely on them. However, the Court deems this argument irrelevant, emphasizing that the issue is not about an expert relying on others’ work but whether commissioning an undisclosed expert after the expert disclosure deadline is acceptable. The Court notes that obtaining an opinion from an undisclosed expert based on existing evidence post-deadline is considered untimely. Since Tontz’s opinions are inadmissible, Tremp lacks a valid foundation for his opinions in the Second Report.
Plaintiff argues that, even without Tontz’s report, there is enough support from Triantafillou’s deposition for the life care plan’s findings on the need for future surgery and monitoring. Triantafillou, according to Plaintiff, acknowledged the likelihood of post-traumatic arthritis but differed from Tontz in his “hands-off” monitoring approach. Defendants counter that Triantafillou did not suggest knee replacement surgery, and they question the necessity of ongoing monitoring, emphasizing Triantafillou’s stance that it does not significantly impact treatment. Despite the exclusion of Tontz’s opinions, Plaintiff contends there is evidence, such as X-rays and potential knee replacement, supporting the need for limited future monitoring.
Triantafillou acknowledged the potential need for radiographic images and nonsurgical options before considering knee replacement. While he couldn’t assert certainty, he expressed a likelihood of Plaintiff developing arthritis and, more likely than not, needing a knee replacement. Defendants argue that Triantafillou later disavowed certainty, but the Court notes his consistent indication of a greater than 50% probability of future surgical intervention. The Court deems testimony relying on Triantafillou’s opinions for the life care plan admissible, leaving the weight for the jury’s consideration.
Held
The Court has granted Defendants’ Motion to Preclude the Records and Opinions of Plaintiff’s Undisclosed Expert, William L. Tontz, as well as any testimony and opinions relying on those records and opinions. Additionally, the Court has granted in part and denied in part Defendants’ Motion to Exclude the Testimony of Plaintiff’s Expert, Robert P. Tremp, and the supporting memorandum of law. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
This case demonstrates the importance of disclosing expert witnesses by the Court-ordered deadline. Here, the Plaintiff retained Tontz to provide an expert opinion on future medical treatment but failed to disclose Tontz by the February 2023 deadline. The late disclosure in September 2023 was prejudicial to the Defendants, who faced surprise expert opinions without time to obtain responsive testimony before the January 2024 trial.
The Court excluded Tontz as an undisclosed expert witness, finding the late disclosure was neither substantially justified nor harmless. This automatic sanction under Rule 37 highlights the need to timely disclose retained experts. An expert report cannot be snuck in as a “consulting” expert exempt from disclosure if that expert’s opinions will be presented at trial.
Additionally, unrelated expert witnesses cannot bolster their opinions by relying on an excluded expert’s inadmissible opinions. Here, once Tontz’s opinions were excluded, the Court precluded the Plaintiff’s life care planning expert from offering a supplemental report based solely on Tontz’s excluded findings.
In sum, parties must timely disclose all retained experts expected to provide opinions at trial, and no party can utilize an excluded expert’s opinions to support another testifying expert. Carefully following expert disclosure requirements remains critical to avoiding preclusion of evidence and testimony.
This case involved a personal injury lawsuit filed by Plaintiff Darla Lacara and the testimony of the Defendant’s orthopedic expert witness. Lacara alleged that she suffered a labral tear to her hip as a result of an injury sustained while shopping at a Kohl’s department store on December 23, 2020.
According to Lacara, she was walking through the Kohl’s store when her purse, which was on her right shoulder, got caught on a protruding hook on a shelving unit. This caused the shelving unit to fall onto Lacara’s right side. Lacara twisted her body to the left and used her left hand to push the fallen shelving unit off of her. Lacara claimed that having to brace herself against the shelving unit and twist her body in this manner caused her to suffer a labral tear in her left hip.
Kohl’s disputed Lacara’s version of events and causation theory. Kohl’s retained orthopaedic surgeon Dr. Chad Millet as an orthopedic expert witness. Dr. Millet opined that Lacara’s hip injury was not caused by the incident at Kohl’s. Rather, he opined that her injury was caused by “repeated impingements” resulting from “the aspherical nature of her femoral head.” Dr. Millet formed this opinion after reviewing Lacara’s medical records, but he did not physically examine her.
Lacara filed a motion to exclude causation expert Dr. Millet’s orthopedic expert witness testimony under Daubert, arguing that his methodology was unreliable because it was based solely on a review of medical records rather than a physical examination. Lacara also argued Dr. Millet’s opinion was unreliable because he mistakenly assumed she had fallen to the ground during the incident, when she did not actually fall.
Orthopaedic Expert Witness
Dr. Chad Millet is an orthopaedic surgeon specializing in hip and knee replacement surgery, with a particular interest in minimally invasive techniques. He completed orthopaedic residency training at Louisiana State University and a fellowship in joint replacement at Johns Hopkins Hospital. Dr. Millet has served in numerous leadership roles including President of the Greater New Orleans Orthopaedic Society, Chief of Orthopaedics at two hospitals, and Chairman of Surgery. He is recognized nationally for his expertise in joint replacement techniques. Dr. Millet’s leadership experience includes serving as President of the Louisiana Orthopaedic Association and he is currently President of the Society for Arthritic Joint Surgery. He is a member of several prestigious professional associations. With this extensive surgical experience, leadership, teaching appointments, awards, and membership in elite orthopaedic societies, Dr. Millet is highly qualified to provide expert testimony regarding orthopaedic injuries and conditions.
Discussions by the Court
The Court noted that under Daubert, expert testimony must be based on sufficient facts and reliable methodology. However, the Court found that experts are permitted to offer opinions not based on firsthand knowledge or observation, citing Daubert v. Merrell Dow Pharmaceuticals, Inc. The Court stated that numerous Courts have held that an expert witness need not personally examine a Plaintiff to offer an opinion. Rather, review of medical records combined with the expert’s medical experience can sufficiently ensure reliability. The Court concluded Dr. Millet’s methodology of reviewing the medical records informed by his extensive experience as an orthopaedic surgeon was sufficiently reliable under Daubert. The Court ruled Dr. Millet’s reliance on records instead of examining Lacara went to the weight, not admissibility, of his testimony.
Lacara also argued Dr. Millet’s opinion was unreliable because he mistakenly assumed she had fallen during the incident when she did not actually fall. The Court found Dr. Millet’s understanding of the accident was consistent with Lacara’s deposition testimony – he accurately stated her purse got caught on a protruding hook which caused the rack to fall into her arm as she described. While Dr. Millet mentioned an assumption Lacara fell, the Court found this did not render his opinion inadmissible. The Court reasoned that if anything, an assumption of additional trauma would make Dr. Millet more likely to relate the injury to the incident. However, Dr. Millet testified that his causation opinion was based on Lacara’s chronic condition, not any assumed fall. Again, the Court ruled the dispute over the basis for Dr. Millet’s opinion affected the weight the jury should assign it, not admissibility.
In conclusion, the Court stated Dr. Millet’s methodology of reviewing the medical records was acceptable and sufficiently reliable under Daubert to allow his testimony and the causation expert’s testimony was admitted. The Court found Lacara’s complaints about Dr. Millet not examining her and assuming she fell went to the weight of his testimony and constituted issues for cross-examination and the jury to consider.
Held
The Court ruled that despite some alleged flaws in his methodology, Dr. Millet could testify and the jury could determine the appropriate weight to give his opinions. Lacara’s motion to exclude the orthopedic expert witness testimony under Daubert was denied. The Court dismissed the case without prejudice on August 29, 2023.
Key takeaway
This case demonstrates that experts are permitted to offer opinions based solely on a review of records, without physically examining the Plaintiff. An expert’s reliance on medical records rather than a firsthand exam goes to the weight, not the admissibility, of the testimony. The Court found that review of records combined with the expert’s professional experience can be a sufficiently reliable methodology under Daubert as a result of which the causation expert’s testimony was admitted.
