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Category: Orthopedic Surgery Expert Witness

  • Orthopedic Surgery Expert’s Opinions About an Aggravation of Pre-Existing Degenerative Disc Disease Admitted

    Orthopedic Surgery Expert’s Opinions About an Aggravation of Pre-Existing Degenerative Disc Disease Admitted

    Plaintiff Myles Childress brought his claims against Defendant Wal-Mart Stores East I, LP. after he allegedly sustained injuries while delivering goods to a Walmart store in Bridgeton, Missouri. 

    Plaintiff raised claims against both Defendant Walmart and Walmart’s employee, an unknown Doe Defendant. 

    Dr. Richard Kube is an orthopedic spine surgeon practicing in Peoria, Illinois. Defendant argued that Kube’s conclusions regarding causation are deficient because Kube relied on Plaintiff’s inaccurate representation of his medical history.

    Orthopedic Surgery Expert Witness

    Richard A. Kube II, MD, FACSS, FAAOS, CIME is a fellowship trained spine surgeon and Founder/Owner of Prairie Spine & Pain Institute, in Peoria, Illinois. He also founded and owns Prairie Surgicare, an AAAHC certified surgical facility. He holds Board Certifications from the American Board of Spine Surgery, American Board of Orthopaedic Surgery and American Board of Independent Medical Examiners.

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

    Discussion by the Court

    While there is no dispute that Plaintiff’s medical records indicate that he had degenerative back problems before the alleged injury occurred, Kube specifically testified that the alleged incident aggravated Plaintiff’s degenerative spine condition, causing it to become symptomatic when it was previously asymptomatic. Kube further testified that surgical intervention was necessary to treat this aggravated condition. Kube also testified that the injuries to Plaintiff’s spine are consistent with the way Plaintiff describes being knocked to the ground by the pallet. 

    Defendant’s Arguments

    Defendant contended that the incident cannot be the “but for” or the proximate cause of Plaintiff’s back injuries because Plaintiff already had records of degenerative changes in his spine before the incident occurred. Essentially Defendant argued that Plaintiff’s degenerative injuries were always present and were not a result of acute trauma, and therefore any treatment he received from Kube was going to occur anyway.

    Defendant also raised a side argument regarding whether Plaintiff properly disclosed Kube as an expert witness under Rule 26, and therefore questioned whether Kube can even testify in this matter as an expert. 

    Defendant contended that (1) to establish causation in this case, Plaintiff must present expert testimony; (2) Kube provides the only causation testimony in this case; and (3) Plaintiff’s failure to properly disclose Kube as an expert within the timeframe permitted by the Court’s case management order precludes the use of his testimony in defeating the Defendant’s motion for summary judgment.

    Plaintiff’s Response

    Plaintiff contended that Defendant has not filed a motion to exclude Kube’s testimony, and therefore its assertion that there is no record evidence that could establish causation is futile.

    Plaintiff stated that Kube is a treating physician and not a retained expert witness, so Plaintiff had no duty to supply a written expert report. Moreover, Defendant’s counsel waived his right to a discovery deposition of Kube.

    Analysis

    The Court found that Defendant has had sufficient notice of Kube’s opinions regarding causation and has not been prejudiced by Plaintiff’s alleged failure to timely disclose him. The Court has reviewed the email exchange between the parties’ counsel from before the disclosure deadline regarding (1) whether Kube was required to produce an expert report, and (2) what will be the purpose of his deposition. 

    These emails indicate that Defendant knew as early as July 24, 2024, that Kube was going to testify in this case and that, prior to Kube’s deposition, Defendant stated he was not taking the deposition as a “discovery” deposition. 

    Kube’s deposition occurred on September 30, 2024, before the deadline for Plaintiff to make his experts available for deposition.

    At this stage in the case and on this record, the Court found that Defendant was at least on notice that Kube would be testifying in this case before the deadline for expert witness disclosure and that Defendant’s argument in the motion for summary judgment are not sufficient to exclude Kube from offering his causation testimony at trial without some additional showing of prejudice.

    Held

    Because Kube’s causation testimony was sufficient to create a genuine issue of material fact that must proceed to trial, so the Court denied Defendant’s motion for summary judgment.

    Key Takeaway:

    Defendant’s only argument is that Plaintiff did not properly disclose Kube as an expert witness before the deadline set to disclose experts under the Court’s case management order.

    The Court found that Defendant has had sufficient notice of Kube’s opinions regarding causation and has not been prejudiced by Plaintiff’s alleged failure to timely disclose him. 

    Case Details:

    Case Caption: Childress V. Wal-Mart Stores East I, LP
    Docket Number: 4:24cv580
    Court Name: United States District Court, Missouri Eastern
    Order Date: May 30, 2025
  • Orthopedic Surgery Expert’s Opinion on Future Damages Admitted

    Orthopedic Surgery Expert’s Opinion on Future Damages Admitted

    This case concerns a motor vehicle accident involving the Plaintiffs, Vanessa Rivera and her minor child K.C., and Joseph Giordano, a driver for Defendants Safway Services, LLC and Brand Safway Services, LLC. The Plaintiffs asserted four counts of negligence against the Defendants and sought damages for the physical, emotional, and financial injuries they allegedly suffered from the accident.

    Defendants filed a motion to exclude the opinions of Dr. Nikhil Thakur and Maryanne Cline. Basically, the Defendants contended that Thakur’s opinions are not founded on a satisfactory level of analytical rigor and are not the product of reliable principles and methods.

    Moreover, Defendants added that Thakur’s conclusions regarding future medical treatment were speculative under Massachusetts law governing future damages. Based on these challenges, Defendants argued that excluding the expert testimony would mean Plaintiffs could not establish the necessary amount in controversy, requiring dismissal for lack of subject matter jurisdiction.

    As for Cline, the Defendants’ only justification for moving to exclude her medical cost projections hinges on the preclusion of Thakur’s opinions.

    Orthopedic Surgery Expert Witness

    Dr. Nikhil Thakur is a Board Certified Orthopaedic Spine Surgeon, who specializes in Adult Reconstructive Spine Surgery. Previously, he was an Assistant Professor at SUNY – Upstate in Syracuse NY, where he performed over 300 elective and traumatic spine surgeries at a Level 1 Trauma Center each year. He also developed and ran the spine program at Upstate University at Community General. He continues to hold an adjunct professorship there and is actively involved in his stem cell lab, which he co-directs.

    Thakur completed his spine fellowship at the prestigious Emory Spine Center in Atlanta, where he was involved in the care of the Atlanta Falcons. He also completed an orthopaedic trauma fellowship at Brown University – Rhode Island Hospital.

    Discover more cases with Nikhil Thakur as an expert witness by ordering his comprehensive Expert Witness Profile report. 

    Life Care Planning Expert Witness

    Maryanne Cline began her career in nursing in 1985 and specifically, rehabilitation nursing in 1991. She worked with traumatically injured clients at St. Anthony’s Medical Center in Crown Point, Indiana and in the Physical Medicine and Rehabilitation Inpatient Unit at The Cleveland Clinic.

    Her varied clinical experience includes cardiology, medical/surgical, oncology and hospice. Cline has nearly ten years’ experience in the field of Life Care Planning, first as a research assistant then becoming a Certified Life Care Planner in 2012.

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

    Discussion by the Court

    Initial Arguments

    Defendants moved to exclude the testimony and opinions of plaintiffs’ experts, Thakur, an orthopedic spine surgeon, and Maryanne Cline, a certified nurse life care planner. They argued Thakur’s opinions were inadmissible under Federal Rule of Evidence 702. Defendants asserted his opinions lacked satisfactory analytical rigor and did not result from reliable methods.

    Methodology

    The Court evaluated Thakur’s methodology for forming his expert opinions. Thakur based his opinions on a physical examination of Rivera. Furthermore, he also took her medical history and interpreted medical records from her other healthcare providers. Ultimately, the Court found this approach constituted a reliable methodology under Federal Rule of Evidence 702.

    The Court addressed the Defendants’ specific challenges to alleged “errors and omissions” in Thakur’s report. Specifically, Defendants argued certain points, like the fact that Thakur described the accident as a slip and fall instead of a motor vehicle accident or that Thakur did not reference any medical records contradicting his description of Rivera’s ongoing complications and his diagnosis of a C4-C5 disc herniation, warranted exclusion. Nevertheless, the Court held that these disputes over the factual underpinnings of the report did not evince a “significant ‘analytical ga[p]’” between Thakur’s opinions and the record evidence.

    The Defendants’ only methodological quibble—that Thakur did not wait until two years after the accident to measure Rivera’s maximum medical improvement—is not a significant enough analytical issue to merit wholesale exclusion of his opinions. 

    The Defendants next argued that Thakur’s conclusions regarding Rivera’s future medical treatment are “speculative and precatory” and must be excluded under Massachusetts law governing recovery for future damages.

    A Plaintiff, however, “is not restricted to compensation for suffering and expense” that “will inevitably follow,” because “suffering and expense following an injury cannot be foretold with exactness.” Instead, a Plaintiff may be compensated for expenses “which by a fair preponderance of the evidence [she] has satisfied the jury reasonably are to be expected to follow.” 

    Relevance

    Under Federal Rule of Evidence 403, the Court determined Thakur’s opinions had significant probative value which was not substantially outweighed by the danger of unfair prejudice or jury confusion. Moreover, the Court rejected the argument that the jury would improperly rely on Thakur’s credentials alone or become confused by the “stark contrast” between Thakur’s report and Rivera’s deposition testimony.

    Since Thakur’s opinions were admissible under Rules 702, 403, and Massachusetts law, the Court likewise found that Maryanne Cline’s medical cost projections should not be excluded. After all, Cline based her opinions on Thakur’s admissible findings and recommendations.

    Held

    The Court denied the Defendants’ motion to exclude the experts, Dr. Nikhil Thakur and Maryanne Cline.

    Key Takeaways:

    • Ultimately, the “errors and omissions” highlighted by the Defendant did not evince a significant analytical gap between Thakur’s opinions and the record evidence.
    • Because the evidentiary value of Thakur’s opinions is not substantially outweighed by the risk of jury confusion or unfair prejudice, exclusion of his report and testimony is unwarranted.

    Case Details:

    Case Caption: Rivera V. Safway Servs., LLC
    Docket Number: 1:23cv12184
    Court Name: United States District Court for the District of Massachusetts
    Order Date: April 23, 2025
  • Orthopedic Surgery Expert’s Testimony will Assist the Court in Determining Questions of Causation

    Orthopedic Surgery Expert’s Testimony will Assist the Court in Determining Questions of Causation

    Following the May 3, 2017 motor vehicle accident that is the basis of this legal action, the Plaintiff presented to the emergency department of Robert Wood Johnson University Hospital with complaints of neck, back, shoulder, and left knee pain.

    He was then referred to orthopedist Dr. Steven L. Nehmer for evaluation and treatment of his shoulder and knee injuries, and Nehmer saw him four times.

    Nehmer prepared two reports concerning the injuries claimed by Plaintiff in this action. His April 8, 2018 report noted Plaintiff presented with “complaints of pains at his neck, both shoulders, low back, and left knee.” According to the report, Nehmer conducted a physical examination of Plaintiff’s shoulders and knee during his first visit to the office on September 28, 2017, and thereafter saw Plaintiff twice more.

    The report also stated that Nehmer reviewed MRI studies of Plaintiff’s shoulder, left knee, and cervical and lumbar spine, from imaging performed by Ironbound MRI on August 3, 2017. Based on the foregoing, Nehmer determined Plaintiff suffered from cervical disc herniations with multiple bulges, a lumbar disc herniation with bulges, a right shoulder partial rotator cuff and posttraumatic impingement syndrome, and left knee medial meniscal tear. He concluded, based on his overall evaluation, that these injuries “are causally related to the motor vehicle accident of May 3, 2017.” Later, after Plaintiff returned to see Nehmer in 2019 for continuing pain, Nehmer issued his May 30, 2019 report, which stated, in relevant part, that the opinions expressed in the April 8, 2018 report have not changed.

    Late Designation

    Nehmer, though providing reports as the Plaintiff’s treating physician outlining his findings and conclusions, was not identified as an expert witness in this action until 2024, just before the Final Pretrial Order before trial. This belated designation stemmed from the procedural circumstances of the case, where the Plaintiff proceeded pro se for the majority of the pretrial period, including the resolution of summary judgment motions. Pro bono counsel was appointed by the Court to represent the Plaintiff only when the case was ready for trial, at which point expert discovery had already concluded. However, newly appointed counsel determined that expert testimony was necessary to establish the extent and nature of the injuries the Plaintiff allegedly sustained in the accident.

    The Defendant consented to the Plaintiff’s designation of Nehmer as an expert, recognizing his prior involvement and the fact that his records had already been produced during discovery. In preparation for the damages phase of trial, Nehmer participated in a de bene esse deposition on July 25, 2024. During this deposition, the Defendants cross-examined him regarding his opinions, specifically the causal relationship between the accident and the Plaintiff’s injuries. In the current motion, the Defendants seek to exclude any portion of Nehmer’s expert opinion concerning the diagnosis, prognosis, and causation of the Plaintiff’s injuries to his cervical spine and lumbar spine.

    Orthopedic Surgery Expert Witness

    Steven L. Nehmer is a board-certified orthopedic surgeon licensed to practice in New Jersey. He has over 35 years of experience.

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

    Discussion by the Court

    Rule 702

    The Defendants argued that Nehmer’s opinion regarding the Plaintiff’s spinal injuries should be excluded because it relied solely on MRI reviews, without his own physical examination of the Plaintiff’s cervical and lumbar spine in the course of treatment. They contended this lack of direct examination made his spinal injury opinions inadmissible. The Plaintiff countered that under Rule 702 and Third Circuit precedent, medical experts can base opinions on medical records, making Nehmer’s testimony, including his opinion about Plaintiff’s neck and back injuries, admissible.

    The Defendants challenged Nehmer’s expert testimony on the Plaintiff’s cervical and lumbar spine injuries, arguing it lacked reliability and fit under Rule 702. They asserted his opinion was unreliable as it was based on the doctor’s review of Plaintiff’s medical records, not his own examination or treatment of those areas. Furthermore, they claimed these records were inadmissible hearsay, further undermining the opinion’s reliability and justifying the exclusion of Nehmer’s causation testimony regarding the Plaintiff’s back and neck injuries.

    The Court found that Nehmer’s opinion, as presented in his April 8, 2018 report, met the minimal reliability standard of Rule 702. His conclusions were based on the Plaintiff’s reported symptoms and the accident, along with Nehmer’s review of medical records, including imaging of the Plaintiff’s cervical and lumbar spines taken shortly after the accident. Additionally, Nehmer evaluated the Plaintiff’s shoulder and left knee injuries, performing an examination of those areas. While a physical examination of the Plaintiff’s neck and back would have strengthened his opinion on those injuries, its absence affects the weight, not the admissibility, of his expert testimony under the totality of the circumstances and Rule 702.

    Rule 703

    The Defendants also argued against Nehmer’s opinion as to Plaintiff’s cervical and lumbar spine injuries, claiming it improperly relied on hearsay evidence – the studies of MRI films performed by a radiologist. They asserted the Plaintiff couldn’t introduce the non-testifying radiologist’s inadmissible hearsay statements through Nehmer’s testimony. The Court rejected this argument, citing Federal Rule of Evidence 703, which allows experts to rely on facts or data reasonably relied upon experts in the particular field, even if the facts or data are not admissible in evidence. In this case,  hearsay consists of medical records and films are the type of data doctors typically use for diagnosis and treatment.

    The Court concluded that Nehmer’s opinion relates to the Plaintiff’s alleged injuries from the May 3 accident and will help the Court determine causation, the nature of the injuries, and their extent.

    Held

    The Court denied the Defendants’ motion to strike a portion of the testimony of Plaintiff’s orthopedic expert Dr. Steven Nehmer.

    Key Takeaway:

    • Nehmer’s testimony is relevant for the purposes of the case because his opinion pertains to the injuries Plaintiff allegedly suffered as a result of the May 3 accident and will assist the Court in determining questions of causation, the nature of the injuries, and the extent to which Plaintiff was allegedly injured.
    • While a physical examination of Plaintiff’s neck and back would have strengthened Nehmer’s opinion as to those alleged injuries, the absence of such a diagnostic tool goes to the weight of the expert testimony. In view of the totality of the circumstances, it does not render his opinion unreliable under Rule 702.

    Case Details:

    Case Caption: Lorenzo-Noda V. Kazak Et Al
    Docket Number: 2:18cv13414
    Court Name: United States District Court, New Jersey
    Order Date: March 24, 2025
  • Court Dismissed Objections With Regard to Untimely Designations of Expert Witnesses

    Court Dismissed Objections With Regard to Untimely Designations of Expert Witnesses

    By this suit, Plaintiff Anthony Guernon brought claims of negligence and negligence per se against Defendant Joel Barroso and for vicarious liability against Barroso’s Employer, Stevens Transport, Inc. (“Stevens Transport”), arising out of a motor vehicle accident which occurred on May 3, 2021, In El Paso County, Colorado. Following several extensions, the parties were required to designate rebuttal experts on or before August 26, 2024.

    On that date, Defendants submitted a document in which they designated the following expert witnesses:

    1. Jon Karraker, a certified public accountant;

    2. Dr. Bruce Morgenstern, a neurologist;

    3. Dr. Philip Stull, an orthopedic surgeon;

    4. Margot Burns, a rehabilitation specialist and life care planner; and

    5. James Desmond, an expert on the standard of care in the trucking industry.

    Guernon objected that Karraker, Morgenstern and Stull, and Burns actually are affirmative, not rebuttal, witnesses, and therefore their designations are untimely and should be stricken. He further claimed Karraker and Morgenstern asserted opinions beyond their expertise.

    Accounting Expert Witness

    Jon Karraker is an expert witness in the field of accounting of personal injury losses in both the private and business sector.

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

    Neurology Expert Witness

    Bruce Morgenstern is a physician licensed to practice in the State of Colorado and is board certified and specializes in neurology.

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

    Orthopedic Surgery Expert Witness

    Philip Stull completed his residency in orthopedic surgery at the New York Orthopedic Hospital/Columbia-Presbyterian Medical Center in New York City and graduated in 1993. He then received specialized training in sports medicine by completing a year-long fellowship at the University of Colorado and Aspen Valley Hospital in Aspen, Colorado. He has experience treating professional, collegiate, high school, and all levels of recreational athletes. 

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

    Vocational Rehabilitation Expert Witness

    Margot Burns is a Clinical Case Manager, Clinical Supervisor, Behavioral and Vocational Specialist encompassing all phases of brain injury rehabilitation from acute neurobehavioral and coma management to post-acute and outpatient, community-based services. Burns holds a Master of Science in Rehabilitation Counseling and a Certificate in Life Care Planning.

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

    Safety Expert Witness

    James Desmond is a Certified Director of Safety Certificate, an OSHA 30 Hour General Industry Certificate, and a Driver Improvement Instructor/Trainer Certificate. Desmond is a Department of Transportation Designated Employer Representative, holds a Commercial Drivers’ License and is the President of Coastal Carrier Compliance and Consulting.

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

    Discussion by the Court

    The Court cannot properly assess these arguments, however, because they are stated at such a high level of generality that they present no argument at all. Essentially, Guernon has done little more than state what he seeks to prove – that the witnesses are actually affirmative experts and/or that their opinions exceed their proper area of expertise. The Court is neither required nor inclined to consider such “cursory, unsupported, or otherwise inadequately briefed arguments.”

    Moreover, the Court held that the difficulty in analyzing what little argument is discernable in the motion is compounded by Guernon’s failure to provide the Court with the allegedly problematic defense expert reports, his own experts’ reports for purposes of comparison, or any of the experts’ curriculum vitae.

    Guernon’s belated submission of the challenged reports in connection with his reply brief does not cure his initial failure to produce them, especially when the reply does nothing more than invite the Court to peruse the documents itself for evidence in support of his prior, inadequate arguments. As a result, the Court denied the motion to strike the designations of these four experts as improper.

    With regard to the fifth expert, Desmond, who will testify to the standard of care in the trucking industry, Guernon asserted his opinion is irrelevant because Stevens Transport has conceded vicarious liability for the actions of Barroso. Guernon pointed to nothing in the record demonstrating Stevens Transport has made such a concession, and Stevens Transport denies it has done anything other than acknowledge that if – and only if –Barroso ultimately is found liable for negligence, it will be vicariously liable for any damages caused thereby. The issues addressed by Desmond’s report therefore appear to remain in play in this lawsuit. Therefore, the Court denied the motion to strike his testimony.

    Held

    The Court denied the Plaintiff’s motion to strike or exclude the opinions untimely and improperly disclosed.

    Key Takeaway:

    Guernon objected that Karraker, Morgenstern and Stull, and Burns actually are affirmative, not rebuttal, witnesses, and therefore their designations are untimely and should be stricken. He further claimed Karraker and Morgenstern asserted opinions beyond their expertise. Essentially, Guernon has done little more than state what he seeks to prove – that the witnesses are actually affirmative experts and/or that their opinions exceed their proper area of expertise. The Court is neither required nor inclined to consider such “cursory, unsupported, or otherwise inadequately briefed arguments.”

    Case Details:

    Case Caption: Guernon Et Al V. Barroso Et Al
    Docket Number: 1:22cv2547
    Court: United States District Court for the District of Colorado
    Order Date: October 23, 2024
  • Accident Reconstruction Expert Witness’ Testimony Admitted Despite His Failure to Visit the Accident Scene

    Accident Reconstruction Expert Witness’ Testimony Admitted Despite His Failure to Visit the Accident Scene

    Sheila Harper’s vehicle was struck by a Ford F-350 driven by Michael LaBeau at an intersection on the Naval Construction Battalion Center in Gulfport, Mississippi on August 10, 2021.

    Michael LaBeau was acting within the course and scope of his employment with the United States Navy when the accident took place. Harper filed an administrative complaint under the Federal Tort Claims Act, before filing this lawsuit against the United States. 

    She designated her treating physician, Dr. George Salloum, as an expert witness. The United States asked the Court to exclude Salloum’s opinion that the surgeries he performed on Harper’s shoulders were causally connected to the accident. Harper asked the Court to strike the expert testimony of the United States proposed expert witness, Evan McConnell, who was designated as an expert in the fields of accident reconstruction and biomechanical engineering.

    Harper argued that McConnell provides medical opinions that are outside his field of expertise. She further asserts that his opinions are unreliable because he did not visit the accident scene, inspect the parties’ vehicles, conduct interviews concerning the accident, or “perform any physical or virtual crash reproductions.”

    The United States argued that Salloum’s causation opinion should be excluded because he did not rule out other possible causes of Harper’s shoulder injuries, and he did not know that she had undergone two rotator cuff surgeries on her right shoulder prior to the accident at issue. It was further asserted that Salloum was not aware of “Harper’s significant history of serious falls requiring various treatments.”

    Accident Reconstruction Expert Witness

    Evan McConnell holds a B.S. degree in Bioengineering and an M.S. degree in Biomedical Engineering, and he is a registered professional engineer in the states of Georgia, Alabama, and Tennessee. He is also an Accredited Traffic Accident Reconstructionist through the Accreditation Commission for Traffic Accident Reconstruction (ACTAR #3600) and a certified XL Tribometrist. McConnell has extensive experience in analyzing the dynamics and biomechanics involved in numerous accidental events, including low- and high-speed auto accidents, slip and fall events, and workplace injuries, among others.

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

    Orthopedic Surgery Expert Witness

    George Salloum joined Bienville Orthopaedic Specialists in 2001. He specializes in sports medicine along with reconstructive surgery of the shoulder and knee. Salloum uses an arthroscopic and muscle sparing approach to the knee and shoulder, resulting in shorter hospital stays and more rapid rehabilitation. He has been at the forefront of the latest techniques in balancing knee replacements, including consulting with implant companies on both techniques and devices as well as teaching and lecturing other surgeons on the newest balancing techniques. He has extensive experience in robotic knee replacements.

    Salloum is board certified by the American Board of Orthopaedic Surgery with a Certificate of Added Qualification in Orthopaedic Sports Medicine. He completed his internship and residency at the University of Mississippi Medical Center, Department of Orthopaedic Surgery and Rehabilitation in 2001. Salloum sees patients at the Biloxi and Gulfport locations and is accepting new patients.

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

    Discussion by the Court

    Harper’s motion to strike the United States’ expert witness Evan McConnell

    McConnell prepared a seventeen-page report supported by numerous citations to peer-reviewed literature, a simulation of the angle of impact, photographs he reviewed, and two charts depicting compressive loads on the spine. He explained that he did not visit the scene of the accident because his review of the accident report and “Google Earth overviews of the accident site” revealed that “there were no specific roadway factors at this location that would influence the dynamics of the contacting vehicles in such a way as to affect the subsequent biomechanical analysis.”

    He researched vehicles similar to Harper’s Chevrolet using the National Highway Traffic Safety Administration’s Crash Investigation Sampling System.

    Using the data he retrieved, he “concluded that the subject Chevrolet likely experienced a primarily rearward-directed delta-V of up to but no more than 7 mph in the accident.” The lack of airbag deployment further supported this determination.

    Harper claimed that she suffered injuries to her head, arms, wrists, neck, and shoulders in the accident. While reviewing Harper’s medical records to determine injuries diagnosed in her medical records, he concluded that “the contact between the left-rear of the Ford [driven by LaBeau] and the left-front of the Chevrolet [driven by Harper] would have been expected to result in a primarily rearward-directed change in speed (delta-V) of up to 6 miles per hour (mph) for the Chevrolet.”

    Whether McConnell Offers Inappropriate Medical Opinions

    Most courts that have addressed this issue have determined that biomechanical engineers are qualified “to render an opinion as to the forces generated in a particular accident and the general types of injuries those forces may generate,” but they are not qualified to offer opinions as to specific causation, i.e., “the precise cause of a specific injury.”

    The Court held that McConnell’s opinions pertain to general causation, such as the forces that an occupant of a Chevrolet would be subjected to in the car accident at issue. He has not issued any specific opinions concerning the cause of Harper’s injuries.

    Whether McConnell’s Opinions Are Reliable And Relevant

    Harper argued that McConnell’s opinions are unreliable and unhelpful due to his failure to visit the scene of the accident, interview witnesses, inspect the parties’ vehicles, or “perform any physical or virtual crash reproductions.”

    McConnell has explained that an inspection of the scene of the accident was not necessary due to the road conditions and nature of the accident. He has also testified that the use of photographs in the field of accident reconstruction “is a well-accepted, repeatable, and reliable methodology supported by peer-reviewed literature,” and he cited peer-reviewed articles supporting this methodology in his report. The Court found that McConnell’s opinions are supported by sufficient facts and data as well as an accepted peer-reviewed methodology. Furthermore, his testimony will assist the Court in determining the amount of force generated by the accident. 

    The United States’ Motion To Exclude Salloum’s Causation Testimony

    Salloum offered the following opinion: “Within a reasonable degree of medical probability, I feel that the motor vehicle collision caused the left shoulder rotator cuff tear and the recurrent rotator cuff tear to the right shoulder and aggravated. Likely pre-existing carpal tunnel syndrome bilaterally. I anticipate no future medical costs with regards to these injuries at this point.”

    He further opined that she reached maximum medical improvement for both of her shoulder surgeries on October 13, 2022. 

    During his deposition, Salloum testified that he did not have access to Harper’s medical records and treatment history when formulating his opinion, so he could only rely on the medical history provided by Harper. Salloum testified that he was aware Harper had previous surgery on her right rotator cuff, and his medical records reflect that she informed him of that prior surgery. 

    The Court has not found any basis in the record for excluding Salloum’s opinion that the accident caused Harper’s left shoulder injury. Furthermore, there is testimony and evidence before the Court indicating that Salloum was aware of Harper’s pre-existing right shoulder injury when he determined that the right shoulder injury that he surgically repaired was caused by the accident. Finally, while there is some confusion regarding Salloum’s treatment and opinions concerning Harper’s right shoulder, there is no danger of confusing or providing prejudicial information to a jury in the present case, and the Court will be in a better position to consider the United States’ arguments concerning Salloum’s testimony at trial. 

    Held

    • The Court denied the motion to strike expert witness Evan McConnell filed by Plaintiff Sheila Harper.
    • The Court denied the motion to exclude causation testimony of George Salloum filed by Defendant United States of America.

    Key Takeaways:

    • McConnell’s opinions pertain to general causation, such as the forces that an occupant of a Chevrolet would be subjected to in the car accident at issue. He has not issued any specific opinions concerning the precise cause of Harper’s injuries.
    • The United States has not identified any record of prior injury to Harper’s left shoulder that Salloum should have considered before opining as to the causation of Harper’s left shoulder injury. Harper’s other accidents and injuries appear unrelated to her shoulder injuries; thus, at this time, the Court cannot fault Salloum for failing to consider them.

    Case Details:

    Case Caption: Harper V. The United States Of America Et Al
    Docket Number: 1:23cv197
    Court: United States District Court for the Southern District of Mississippi, Southern Division
    Order Date: September 23, 2024
  • Orthopedic Surgery Expert Witness’ Opinion on Alleged Personal Orthopedic Injuries Admitted

    Orthopedic Surgery Expert Witness’ Opinion on Alleged Personal Orthopedic Injuries Admitted

    Plaintiff Rickie Russell, Jr. (“Russell) alleged that, on August 13, 2021, Terry Delmer Prater (“Prater”) crashed an 18-wheeler truck into Russell’s roadside work crew Russell claimed he was pinned between two vehicles and suffered serious injuries as a result of that motor vehicle collision. Russell brought suit against Defendants Prater and Big V Feeds, Inc. for the injuries he sustained.

    As part of their defense, Defendants retained Vishal Patel, M.D. to offer expert testimony. Russell filed a motion to exclude Dr. Patel’s testimony because: 1) Patel lacks proper qualifications as an expert; and 2) his methodology is unreliable.

    Orthopedic Surgery Expert Witness

    Vishal Patel has been board certified by the American Board of Orthopaedic Surgery since 2015, a Fellow of the American Academy of Orthopaedic Surgeons since 2019, and an attending spine surgeon for over ten years. Patel’s medical practice is devoted to orthopedic surgery, and he maintains a full, unrestricted license to practice medicine.

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

    Discussion by the Court

    Patel has sufficient qualifications to serve as an expert

    First, Russell argued that Patel lacked the requisite qualifications to serve as an expert in the present case because he “has never physically examined Russell, listened to his complaints, and would not even recognize Russell if he was standing across the hall from him.”

    Russell seemed to contend that because Patel did not treat Russell, Patel is not qualified to serve as a retained expert physician. However, that cannot be the case. To hold otherwise would be to exclude all retained expert physicians.

    After reviewing Patel’s curriculum vitae, the Court was satisfied with his education, training and experience to qualify him to offer his opinion on Russell’s alleged personal orthopedic injuries and the reasonableness and necessity of Russell’s medical treatment.

    Patel’s methodology is reliable

    After reviewing Patel’s expert report, the Court found that his methodology is reliable.

    The Court held that Patel identified the medical records for Russell that he reviewed and then summarized those records in detail in his report. Thereafter, he applied his education, training, experience, and knowledge of the medical facts within the medical records to reach his opinions regarding Russell’s personal orthopedic injuries and necessity of medical treatment in reasonable medical probability. Therefore, Patel has sufficiently described his methodology and has adequately supported his opinions such that his methodology is reliable.

    Additionally, Russell argued that Patel’s methodology was not reliable because “[a] diagnosis typically involves a physician physically examining a patient, to which there is no argument that Patel did not examine Russell.” The Court held that a retained expert physician’s role is to “examine a patient’s medical files and reach a conclusion about the diagnosis.”

    Held

    The Court denied Plaintiff’s motion to exclude the testimony of Vishal Patel.

    Key Takeaway:

    Russell argued that Patel lacked the requisite qualifications to serve as an expert in the present case because he “has never physically examined Russell, listened to his complaints, and would not even recognize Russell if he was standing across the hall from him.” The Court held that a retained expert physician’s role is to “examine a patient’s medical files and reach a conclusion about the diagnosis.”

    Please refer to the blog previously published about this case: Neurology Expert Witness’ Opinions About the Potential Presence of a Mild Traumatic Brain Injury Admitted

    Case Details:

    Case Caption: Russell, Jr. V. Big V Feeds, Inc. Et Al
    Docket Number: 4:23cv622
    Court: United States District Court, Texas Eastern
    Order Date: August 16, 2024
  • Forensic Engineering Expert Witness’ Opinions Admitted as they are Pertinent to the Negligence Inquiry

    Forensic Engineering Expert Witness’ Opinions Admitted as they are Pertinent to the Negligence Inquiry

    This matter asrises from a slip and fall incident that occurred on May 10, 2020, at the Smith’s grocery store located at 7130 North Durango Drive in Las Vegas, Nevada. Plaintiff, Sierra Golia-Huffman alleged that she slipped and fell on liquid in the floral department while holding her child. Smith’s has produced surveillance footage indicating that (1) Plaintiff walked through the area of incident twice within one minute, the first time being without any incident; (2) Plaintiff was carrying flowers she had just taken from a pot of water on her second time through the area, thereafter slipping and falling; and (3) Plaintiff got up and left the area of incident without letting any employees of Smith’s know that she suffered an incident and without showing any signs of distress.

    Smith’s filed motions to exclude the testimony and opinions of Golia-Huffman’s retained forensic engineering and safety expert, Dr. Frank Perez and spine surgeon, William Muir, for a variety of reasons.

    Forensic Engineering Expert Witness

    Frank A. Perez has a doctorate in mechanical engineering and since 1995 has worked as a forensic engineer in mechanical engineering, accident reconstruction, human factors, and safety. He has previously testified in atleast 300 depositions and at least 100 trials as an expert witness.

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

    Orthopedic Surgery Expert Witness

    William S. Muir, MD is Board-Certified with the American Board of Orthopedic Surgeons & fellowship trained Pain Management Expert for 30 years. He graduated from Brigham Young University with honors after he completed a graduate program at Stanford University in physical therapy.  He practiced physical therapy in Las Vegas for several years prior to attending medical school at the University of Nevada School of Medicine.      

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

    Discussion by the Court

    Frank Perez

    Unhelpful to the Trier of Fact

    Smith’s argued that Perez’s opinions on the conditions of the Smith’s floral department floor should be excluded as unhelpful to the trier of fact because Perez tested and inspected the floor two years after Golia-Huffman’s incident, and because it is “common knowledge that water causes a floor to become slippery.

    The Court held that Golia-Huffman sued Smith’s for negligence, based on the floral department floor being wet. So, Perez’s opinions regarding the slipperiness of the floral department floor when wet are pertinent to the negligence inquiry and helpful to the trier of fact. Also, Smith’s did not contend that anything changed in its floral department between Golia-Huffman’s incident and Perez’s examination.

    Based on Speculation and Omitting Key Details

    Smith’s argued that Perez’s opinions are based on speculation, not objective evidence, and because Perez omits important details from his analysis.

    Smith listed a variety of Perez’s opinions that it argued “were not actually based on evidence,” as well as several issues it claimed Perez had omitted.

    The Court held that the alleged problems with Perez’s report that Smith’s raises are more properly addressed during cross-examination.

    Retail Standard of Care

    Smith’s argued that “Perez is not qualified to discuss any type of retail standard of care that should have been exercised by [Smith’s] or its employees or agents” because he does not have any qualifications “regarding retail safety standards or standards regarding inspections of retail establishments, physical sweeping of stores, or experience with floral departments.”

    The Court held that Perez’s extensive experience in premises liability cases, as well as his review of the evidence in this case, qualify him to testify as to his opinions on the retail standard of care Smith’s should have used.

    Improper Rebuttal Testimony

    Smith’s argued that in his third supplemental report, Perez includes opinions that are not proper rebuttal testimony and must be excluded because Perez should have included them in his initial report. These are Perez’s opinions on “the manner in which the water may have fallen on the ground” and his “opinions as to where the water came from that [Golia-Huffman] slipped on.”

    In the parties’ third joint stipulation to extend discovery, the parties stated that they did not seek to extend the expert disclosure deadline, but instead “plan[ned] to work together to allow all experts to prepare proper supplemental disclosures.” The Court held that since Perez is responding to new evidence that was not available to him at the time of his initial disclosure, his supplemental reports are not excluded for offering opinions that should have been disclosed in his initial report.

    William Muir

    Smith’s moved to exclude medical expert Dr. William Muir’s testimony as untimely and lacking foundation. They argued that Muir’s reports are untimely because in his second supplemental report, he reviewed documents that were over two years old, but he did not explain why he included these documents in the second supplemental report instead of in his initial report. Smith’s acknowledged that the parties said they would work together to allow their experts to properly supplement their reports, but Smith’s did not consider a two-year delay a proper supplement. Smith’s also argued that several of Muir’s opinions are flawed because they lack foundation.

    The Court held that the disclosures were timely per the parties’ agreed upon extension of the deadlines and refused to exclude Muir’s testimony for lack of foundation, as this goes to impeachment and may be addressed by Smith’s on cross-examination.

    Held

    The Court denied Smith’s motions to exclude the testimony and opinions of Golia-Huffman’s retained forensic engineering and safety expert, Dr. Frank Perez and spine surgeon, William Muir.

    Key Takeaways:

    • Perez’s opinions regarding the slipperiness of the floral department floor when wet are pertinent to the negligence inquiry and helpful to the trier of fact.
    • Perez’s extensive experience in premises liability cases, as well as his review of the evidence in this case, qualify him to testify as to his opinions on the retail standard of care Smith’s should have used.

    Case Details:

    Case Caption: Golia-Huffman V. Smith’s Food & Drug Centers, Inc.
    Docket Number: 2:21cv1260
    Court: United States District Court for the District of Nevada
    Order Date: July 29, 2024
  • Medical Expert Witnesses’ Testimony about Plaintiff’s Damages and Personal Injuries Limited

    Medical Expert Witnesses’ Testimony about Plaintiff’s Damages and Personal Injuries Limited

    This lawsuit arises from a minor automobile accident that occurred at approximately 1:30 p.m. on October 9, 2020, in Española, New Mexico. Plaintiff Charles Hartung (“Plaintiff”) was a passenger in a four-door GMC pickup operated by his friend Ralph Andrew, Sr. Plaintiff.

    Gommert, a salesman employed by McLane, entered the road from an adjacent gas station and did not see the pickup as it approached. The front end of Gommert’s company car collided with the rear wheel on the passenger side of the pickup.

    Plaintiff disclosed Brian M. Shelley, M.D., and Mark K. Crawford, M.D. (collectively, the “Retained Experts”), as unified, retained experts. They testified that “the treatment [Plaintiff] received was reasonable, necessary, and appropriate; and that [Plaintiff’s] current conditions related to the motor vehicle collision are closed head injury and cognitive difficulties (by report), right shoulder pain and motion deficits, low back pain with right lower extremity radiation (aggravated), SI joint injury, headaches, anxiety (aggravated) and depression (aggravated).”

    In response, Defendants argued that the Court should exclude testimony from these experts under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), because some facts supporting their opinions are undermined by medical records which the experts did not review before rendering their opinions.

    Family Medicine Expert Witness

    Brian M. Shelley MD is board-certified in family medicine and serves as an Attending Physician at the University of New Mexico Pain Consultation and Treatment Center. Additionally, at UNM, Dr. Shelley is Professor of Family and Community Medicine and trains medical residents in chronic pain management. Moreover, Dr. Shelley has published several peer-reviewed articles about innovative approaches to chronic pain education and co-created the Advanced Diplomate credential for the American Academy of Pain Management. Also, Dr. Shelley is the Director of Albuquerque Independent Medical Services LLC and is currently certified by the American Board of Independent Medical Examiners.

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

    Orthopedic Surgery Expert Witness

    Mark K. Crawford MD is a retired Fellowship Trained Orthopedic Spine Surgeon. He previously worked at UNM, Optum Health, and New Mexico Orthopaedics in Albuquerque, NM. Moreover, he is certified by the American Board of Independent Medical Examiners and has also served on many IME panels.

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Mark Crawford’s expert testimony. 

    Discussion by the Court

    To begin with, among the expert testimony Defendants sought to exclude is testimony related to closed head injuries and cognitive difficulties. In his response brief, Plaintiff represented that his experts are not offering any opinions related to a head injury or cognitive difficulties. Thus, Defendants’ motion to exclude expert testimony related to head injury or cognitive difficulties is granted.

    Experts were not furnished with all Plaintiff’s pre-accident medical records and imaging studies

    Below is a summary of the inaccuracies Defendants contend exist in the expert reports, along with Plaintiff’s responses:

    • First, Defendants noted that Plaintiff told the experts he takes ibuprofen for pain and that his wife would not let him take opioid medications, and Plaintiff said he was nervous about them as well. Yet, during his deposition, Plaintiff testified under oath that he was a chronic user of hydrocodone. Plaintiff responded that he was prescribed opioid pain medications in the past. At the time of the IME, however, Plaintiff was no longer taking opioids. Accordingly, when asked about opioids at the IME, Plaintiff’s statements were accurate.
    • Second, Defendants argued that over a year after the subject accident, Maximo Santiago M.D. reviewed and referenced a pre-accident MRI and observed that the pre-accident and post-accident findings appear similar. The experts did not have Dr. Santiago’s report. Plaintiff responded that the experts reviewed an MRI taken approximately two months after the accident, which provided a comparison to MRIs taken prior to the accident.
    • Third, Defendants noted that Plaintiff reported to the experts that he had not experienced any sexual dysfunction before the accident. Yet Plaintiff received treatment for erectile disfunction and low testosterone in November 2017. Plaintiff responded that their experts are not opining on sexual dysfunction.
    • Finally, Defendants argued that Plaintiff told the experts that he had not suffered from lower extremity pain, numbness, or weakness before the accident. However, Plaintiff’s neurologist and pain management doctor, Dr. Kandel, whose records are absent from the experts’ chronology, documented chronic pain in Plaintiff’s legs, weakness, numbness, and difficulty sleeping in May 2019.

    The primary focus of the admissibility question is on the data the expert had

    Situations might arise in which an expert’s failure to consider certain information makes the expert’s opinion unreliable.

    However, the primary focus of the admissibility question is on the data the expert had, not the data he did not have. Moreover, even if Defendants mounted a legally sufficient attack on the reliability of the data under Federal Rule of Evidence 702(b), the Court found that Plaintiff has shown the experts had sufficiently reliable data when forming their opinions.

    Held

    In conclusion, the Court granted in part Defendants’ motion to exclude the testimony of Brian M. Shelley And Mark K. Crawford. The Court denied the remainder of the Defendants’ motion.

    Key Takeaway:

    In short, the circumstances of this case did not present a situation where the underlying data on which experts found their opinions was so unreliable that the experts’ opinions should be excluded. Moreover, the Court held that assertions that experts failed to consider all available data or founded their opinions on unreliable data are common fodder for cross-examination.

    Case Details:

    Case Caption: Hartung V. Gommert Et Al
    Docket Number: 1:23cv569
    Court: United States District Court, New Mexico
    Order Date: June 18, 2024
  • Testimony of Orthopedic Surgery Expert Witness Excluded due to Lack Of Evidence About His Methods

    Testimony of Orthopedic Surgery Expert Witness Excluded due to Lack Of Evidence About His Methods

    A district judge in New Mexico struck the testimony of Defendant’s orthopedic surgery expert witness Paul Saiz due to lack of a record discussing the reasoning or methodology underlying his testimony.

    Plaintiff’s injuries and damages in this case resulted from an automobile accident on July 11, 2021, in Grant County, New Mexico. At that time, Plaintiff was driving a 2021 Volvo tractor-trailer. He was at a stop in the westbound lanes of Interstate 10, near mile marker 36, due to a traffic incident near mile marker 35. Defendant Singh, operating a 2022 Freightliner tractor-trailer owned by Defendants Sunshine was traveling westbound on Interstate 10 near mile marker 36.

    While performing his duties for Defendant Sunshine, Defendant Singh collided with the rear of Plaintiff’s trailer. He was driving at a high speed, without paying attention, and failed to hit the brakes. Due to the immense speed, Defendant Singh continued on his path of destruction after the collision with Plaintiff and struck other vehicles as well.

    Since Plaintiff placed his “physical injuries in controversy,” Defendants requested a Rule 35 examination. This unopposed motion was quickly granted. Defendants hired Paul Saiz, an orthopedic surgery expert witness to conduct the Rule 35 examination. Following the issuance of the Rule 35 report, Plaintiff filed a motion and objected to some of Saiz’s opinions under Federal Rule of Evidence 702 and Daubert.

    Specifically, Plaintiff objected to Saiz’s opinions in the areas of biomechanics, radiology, the Plaintiff’s prognosis, medical costs, and critiques of treating physicians. Plaintiff’s counsel acknowledged Saiz’s expertise in one field but argued that his expertise did not extend to other areas.

    Orthopedic Surgery Expert Witness

    Paul Saiz is the only board-certified orthopedic surgeon and board-certified spine surgeon in the state of New Mexico. His education can be traced back to the Baylor College of Medicine in Houston, Texas, where he earned his Doctor of Medicine. He then completed his Orthopedic Residency in Phoenix, Arizona. Saiz also completed a Spine Fellowship in Reconstructive Surgery at Sonoran Spine Center in Phoenix and a Musculoskeletal Oncology fellowship at Rush/Presbyterian in Chicago, Illinois. In the instant case, Paul Saiz conducted an Independent Medical Examination on Plaintiff, pursuant to the Defendant’s motion under Rule 35.

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

    Discussion By The Court

    A. Expert Opinion Of Paul Saiz

    Paul Saiz, in his report pursuant to Rule 35, stated there was no evidence of an acute cervical spine injury. Further, he opined that Plaintiff did not aggravate any pre-existing injury. He indicated that no further treatment was needed for the thoracic or lumbar spine. Therefore, any future care due to cervical surgery would not be related to the motor vehicle accident.

    B. Defendant’s Arguments

    Defendants’ counsel disagreed, arguing that Plaintiff’s view was far too narrow regarding medical costs, billing, and documentation efficacy. Defendants’ counsel claimed that Saiz’s CV alone demonstrated his expertise. However, this argument lost the Court’s favor. Despite suggesting that Saiz’s expertise could be explored through deposition, no deposition was ever scheduled. Considering Plaintiff’s Daubert challenges to Saiz’s expert opinion in his Rule 35 report and the absence of deposition testimony, the Court, in its gatekeeping role, had to schedule a pretrial evidentiary hearing regarding the admissibility of Saiz’s Rule 35 evaluation of Plaintiff.

    C. Evidentiary Hearing

    Considering Plaintiff’s objection to the expert’s opinions, Defendants needed to prove admissibility. The Court acknowledged Saiz’s qualifications in orthopedic surgery but remained uncertain about his expertise in biomechanics or radiology.

    Additionally, the Court had no information about Saiz’s knowledge, skills, or experience in medical billing. It was unclear if he had direct involvement in medical billing or if his support staff handled it. Therefore, the Court could only speculate about Saiz’s potential testimony and credentials.

    No evidence was presented regarding Saiz’s methods, testing, peer review, error rate, or independent research. This lack of information prevented the Court from determining if his reasoning or methodology was scientifically valid or applicable to the case facts, as required by Daubert. The Court found that Defendants had the opportunity to sufficiently develop the record on these issues but failed to do so.

    Held

    Consequently, the Court granted Plaintiff’s motion to strike the opinions and testimony of Defendant’s medical expert Paul Saiz.

    Key Takeaway:

    The Court acknowledged Saiz’s qualifications in orthopedic surgery but was uncertain of his expertise in biomechanics, radiology, and medical billing. The Court needed more information on Saiz’s methods and research to determine the validity of his opinions. Defendants presented only arguments without any supporting evidence to validate Saiz’s opinions.

    Case Details:

     Case Caption:  Garcia V. Singh Et Al
     Docket Number:  2:23cv545
     Court:  United States District Court, New Mexico, Las Cruces
     Order Date:  June 11, 2024
  • Biomechanics Expert Witness Allowed to Testify Despite not Visiting the Accident Scene

    Biomechanics Expert Witness Allowed to Testify Despite not Visiting the Accident Scene

    On August 28, 2019, Plaintiff Annie Perrone (“Plaintiff”) commenced this diversity action against Catamount Ski Resort, LLC (“Catamount Ski Resort”) and Catamount Development Corporation (“Catamount Development”; together with Catamount Ski Resort, “Catamount” or “Defendants”) alleging negligence and gross negligence in connection with injuries Plaintiff suffered while skiing at Catamount Ski Area. 

    Plaintiff and Defendants each sought to preclude or limit the testimony of the opposing party’s experts as per Rule 702. 

    Plaintiff sought to preclude Defendants’ biomechanical engineering expert, Irving Scher, Ph.D., “from testifying at trial regarding the causation of Plaintiff’s injuries.” Defendants sought to: (1) limit the testimony of Plaintiff’s testifying doctor, Thomas S. Eagan, M.D., and (2) preclude or limit the testimony of Plaintiff’s snow sports expert, Stanley Gale.

    Biomechanics Expert Witness

    Irving Scher is a Principal and Biomechanical Engineer at Guidance Engineering and Applied Research. He specializes in biomechanical engineering and accident reconstruction. Scher evaluates product safety and performance for recreational sports equipment, injury prevention products, and mechanical systems. Moreover, he investigates human injuries in accidents and product failures by using biomechanical engineering techniques that apply the principles of engineering to the human body.

    Discover more cases with Irving Scher as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Orthopedic Surgery Expert Witness

    Thomas S. Eagan is Board Certified in Orthopaedic Surgery; as such, he is a Diplomate of the American Board of Orthopaedic Surgery. He has been president of the Fulton County Medical Society. Eagan received his medical degree from Albany Medical College, and continued his orthopaedic training at Dartmouth Medical College in New Hampshire. Also, he keeps in touch with advances in the field of orthopaedic surgery through his active participation in many respected medical societies, such as the American Medical Association, the American Academy of Orthopaedic Surgeons, and the New York State Medical Society.

    Get in-depth insights into Thomas Eagan’s expert witness experience by requesting his Expert Witness Profile today.

    Ski Safety Expert Witness

    Stanley Gale has 51 years of on-snow ski safety training and experience. He is a veteran ski patroller of almost 40 years. He has been a ski and snow safety expert witness for over 14 years. Gale routinely travels to ski resorts, tubing hills, sledding hills and snowmobile locations. As a result, he is well versed in the latest custom and practices for safety and mitigation of risk. Moreover, he is aware of the practical applications and day to day experiences of skiers and sledders. 

    Gain a comprehensive understanding of Stanley Gale’s qualifications and casework history with his Expert Witness Profile report.

    Discussion by the Court

    A. Plaintiff’s Motion in Limine

    1. Irving Scher, Ph.D.

    Plaintiff contended that Scher is “not a medical doctor” and did not have “the educational background or training” to provide an opinion as to the medical causation of Plaintiff’s pelvic fracture sustained in the ski accident.

    Defendants asserted that Scher will not testify as to Plaintiff’s medical injuries, and that he relied on the review of a board-certified radiologist to identify and confirm the injuries Plaintiff sustained to her pelvis. 

    The Court found Scher qualified to testify regarding general causation, including the efficacy of whether commercially available padding on an object a Plaintiff collided with while downhill skiing could have prevented or reduced the severity of a Plaintiff’s injury.

    Plaintiff further contended that because Scher never went to the accident site, he should not be able to testify that “a non-beginner skier should be able to stop or change direction to avoid open, obvious, visible, and marked snow making (or other obstacles) that are 135 feet away.” 

    The fact that Scher did not personally visit the site of the accident did not, by itself, make his testimony unreliable.

    B. Defendants’ Motion in Limine

    1. Thomas S. Eagan, M.D.

    Eagan’s Opinion is Based on the Review of Plaintiff’s Medical Records

    Defendants contended that Plaintiff was treated by “a number of orthopedists following her injury,” however, Plaintiff is only calling  Eagan, a “regular courtroom witness,” whose office is over 150 miles from Plaintiff’s residence, to testify. Defendants relied on several cases for the proposition that “a non-treating physician, hired only to testify as an expert witness, may not state the history of an accident as related to him by the Plaintiff or testify as to Plaintiff’s medical complaints . . . nor can the expert summarize and read statements and findings contained in the reports and records of Plaintiff’s treating physicians, where reports and records were not in evidence and treating physicians did not testify at trial.”

    In response, Plaintiff argued that Eagan’s opinion is not relying on hearsay, because he “conducted a physical examination of Plaintiff” and his opinion is based on the review of Plaintiff’s medical records.”

    The Court found that Eagan may testify based on his examination of Plaintiff and the medical records he relied on in forming his opinion which are admitted into evidence, as long as he lays the proper foundation.

    Eagan is qualified to testify as to the causal relationship between Plaintiff’s complaints and her reported injury

    Defendants next argued that there was “no evidentiary foundation” in the medical records for Eagan’s opinions that: (1) Plaintiff “suffered a torn labrum of the right hip”; (2) Plaintiff will “more likely than not develop arthritis of the right hip and require a hip replacement during her lifetime”; and (3) Plaintiff “is not able to perform heavy labor or place excessive loads on her injured pelvis.” The Court  held that Defendants’ arguments “were more appropriate for cross examination” of Eagan at trial.

    Defendants also asserted that Eagan was not qualified to testify based on his diagnostic tests “whether or not there is symptom magnification” by Plaintiff because this falls under the purview of a psychologist. The Court found that Eagan was qualified to testify as to the causal relationship between Plaintiff’s complaints and her reported injury, as long as he lays a proper foundation.

    Defendants argued that Eagan’s opinion that Plaintiff “will require cesarean section for delivery of any children” should be precluded because “there is no evidentiary basis.” The Court disagreed and held that Defendants’ challenge is an appropriate subject for cross-examination. 

    Defendants added that Eagan’s opinion regarding whether Plaintiff will require a cesarian section for delivery of any children is cumulative of Plaintiff’s OB/GYN witness. The Court did not have sufficient information regarding the OB/GYN witness’ testimony to determine whether Eagan’s testimony would be cumulative.

    2. Stanley Gale

    To begin with, Defendants first argued that Gale is not qualified to give expert testimony because he did not “have the levels of knowledge, experience, or skill in the area of accident reconstruction or ski area operations” necessary to provide an expert opinion. Defendants asserted that his opinions were “speculative and conclusory.” The Court found that Gale is qualified to testify as to the customs and practices of the ski industry, including safety standards and practices.

    Defendants next argued that Gale should be precluded from testifying that the snow gun was not marked, and his expert disclosure that the snow gun was not marked should be stricken. They contended that photographs obtained from Plaintiff showed that an orange lollipop marked the snow gun with which Plaintiff collided.

    Defendants asserted that because Gale previously gave testimony that properly placed Catamount lollipops [marking snow guns] met the State Code, Gale should be precluded from testifying that the snow gun was unmarked. The Court disagreed and refused to exclude Gale’s testimony regarding that aspect.

    Despite Defendant’s objections, the Court held that Gale had the requisite expertise to opine on practices related to padding a snow gun located on a ski trail. However, Gale must testify based on his personal knowledge, and he must explain how his personal experience leads to his conclusions.

    Moreover, Defendants contended that Gale should be precluded from testifying that a ski trail “is not limited to the groomed surface” because he previously testified “on multiple occasions that there is a difference between grooming beginner and expert trails.” The Court held that Gale’s previous testimony was insufficient to preclude him from testifying whether a ski trail is limited to the groomed surface.

    Held

    To sum it up, the Court denied Plaintiff’s motion in limine to preclude Irving Scher’s testimony. The Court reserved decision on Defendants’ motion in limine as to a certain aspect of Thomas Eagan’s testimony until trial but denied the Defendants’ motion in limine to preclude or limit Stanley Gale’s testimony.

    Key Takeaways:

    • The Court insisted on a proper foundation for each of the expert’s opinions. That is to say, Courts routinely examine the factual bases of expert opinions before arriving at a decision.
    • Above all, if the witness is relying solely or primarily on experience, they must explain how their personal experience leads to their conclusions.

    Case Details:

    Case Caption: Perrone V. Catamount Ski Resort, Llc Et Al
    Docket Number: 1:20cv563
    Court Name: United States District Court, New York Northern
    Date: May 09, 2024