James Maples, the Plaintiff, filed a lawsuit against Union Pacific Railroad Company, Inc., the Defendant, under the Federal Employers’ Liability Act (“FELA”), alleging on-the-job injuries stemming from when a wheel broke and detached from the utility vehicle he operated. Union Pacific acknowledged responsibility for the wheel detaching from the utility vehicle but disputed that it caused any harm to Maples. Maples sought partial summary judgment on Union Pacific’s affirmative defenses, encompassing issues such as mitigation, apportionment of fault, failure to join a party, pendency of another related action, accord and satisfaction, arbitration and award, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, and waiver. Additionally, Maples aimed to exclude expert testimony from Union Pacific’s medical expert, Earl Peeples, and biomechanical expert, Jeffrey Broker.
Orthopedic Surgery Expert Witness
Dr. Raymond Earl Peeples, MD, graduated from the University of Oklahoma College of Medicine. Following his medical education, he completed a Straight Surgical Internship at Baptist Memorial Hospital. Subsequently, he pursued Orthopaedic Surgery Residency at the University of Oklahoma Health Sciences Center. Further enhancing his expertise, Peeples underwent a Hand Surgery and Microsurgery Fellowship at the University of Colorado Health Sciences Center’s Office of Graduate Medical Education. Currently, Raymond Peeples works at Peeples Medical Legal Consulting. His extensive medical education, residency, and fellowship experiences contribute to his qualifications as a medical expert in the field.
Biomechanics Expert Witness
Dr. Jeffrey Palmer Broker, Ph.D., received his Ph.D. in Biomechanics and Motor Control from the University of California, Los Angeles. He holds a B.S. in Mechanical Engineering from California Polytechnic State University. Broker specializes in Biomechanics of Injury, and Accident Causation. His expertise extends to areas like Cycling (control and falls, dynamic simulations, equipment failures) and Sports and Recreation Equipment. Broker has been the owner of Echelon Biomechanics. He also serves as an Associate Professor in Biomechanics at the University of Colorado.
Discussion by the Court
Summary judgment was denied concerning the mitigation and apportionment affirmative defenses. However, for the remaining affirmative defenses, summary judgment was granted, as Union Pacific explicitly stated its intention not to present them. Union Pacific retains the option to seek reconsideration if Maples introduces evidence that opens the door for these defenses.
Summary judgment was denied on the mitigation affirmative defense as it was determined that the question of whether Maples acted reasonably to mitigate his damages should be decided by a jury. This decision was based on the recognition that the failure to mitigate the loss of earnings is a valid affirmative defense in FELA cases. A genuine dispute existed regarding Maples’ capability to perform work beyond what he had undertaken since the accident. It was emphasized that the FELA does not exempt claimants from the obligation to seek suitable employment, and FELA Defendants have the right to a jury instruction on mitigation when the record supports it. In this case, the record indicated that Maples might not have adequately sought other jobs, potentially failing to mitigate damages.
Summary judgment was denied on the apportionment affirmative defense due to the existence of a genuine factual dispute regarding whether Maples’s back injuries pre-existed from the date of the accident. It was emphasized that FELA Defendants bear liability solely for damages resulting from their negligence. Therefore, the apportionment affirmative defense was deemed appropriate in this context.
Maples’s motion to exclude Peeples from offering expert testimony on secondary gain or malingering, Maples’s credibility, and Matthew Gornet‘s deposition testimony was denied as moot. It is worth noting that Plaintiff raised arguments against Peeples’ suggestions of Dr. Gornet doing something improper, illegal or unethical in this case.
This decision arose as Union Pacific affirmed its lack of intention to elicit trial testimony from Peeples on these specific issues. However, Maples retained the option to seek reconsideration if Union Pacific alters its course and expresses an intent to present testimony on these matters.
The Court acknowledged that Peeples, a medical doctor specializing in orthopedic surgery, was deemed qualified to testify about medical causation. This recognition was supported by the precedent set in Harris v. Ladd, No. 5:09CV00179 JLH (E.D. Ark. Jan. 25, 2012), where it was established that a Defendant’s medical expert has the right to testify that the physical injuries for which the Plaintiff seeks compensation were not caused by the accident.
The motion to prevent Peeples from expressing opinions on the reasonableness of the work restrictions prescribed by Maples’s doctor was denied based on Peeples’ qualification to provide such testimony. The Court noted that disagreements with a treating physician’s course of treatment could be addressed during cross-examination.
Peeples was permitted to testify about Gornet’s charges and liens, as the Court recognized that his specialized knowledge could assist a jury in making credibility determinations regarding these issues.
Maples’s motion to exclude Broker’s expert testimony was denied, as the Court found that Broker’s opinion was not “so fundamentally unsupported that it can offer no assistance to the jury.” This determination stemmed from Broker’s qualifications as a Ph.D. specializing in the biomechanics of injuries and accident causation. The Court deemed Broker’s testimony admissible, particularly his assertion that biomechanically, Maples’s low back injury was inconsistent with the forces exerted during his accident.
Held
The Court granted in part and denied in part Maples’ motion for partial summary judgment. The Court also denied Maples’ motions to exclude the testimony of Union Pacific’s experts Earl Peeples and Jeffrey Broker.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
In the legal proceedings between Maples and Union Pacific under the Federal Employers’ Liability Act (FELA), expert testimony played a crucial role. The Court allowed testimony from Earl Peeples, a medical doctor specializing in orthopedic surgery, on matters related to medical causation.Additionally, the Court permitted Peeples to testify about Gornet’s charges and liens, acknowledging Peeples’ specialized knowledge as beneficial for the jury in assessing credibility on these issues.
Similarly, the Court allowed Jeffrey Broker, a Ph.D. specializing in biomechanics, to provide expert testimony. Despite Maples’ attempt to exclude Broker’s testimony, the Court found that Broker’s opinion was not fundamentally unsupported and could offer assistance to the jury. The Court highlighted Broker’s qualifications in biomechanics of injuries and accident causation, particularly noting his assertion that Maples’s low back injury was biomechanically inconsistent with the forces exerted during the accident. In both instances, the Court’s decisions reflected a careful consideration of the experts’ qualifications and the relevance of their testimony to the case.
The case involved the Plaintiff, Anthony Cladd who fell and suffered injuries while using a shower stall at a truck stop owned by the Defendant, TA Operating, LLC. The Plaintiff asserted that the fall and injuries were a result of the shower stall being unsafe, and claimed that the Defendant breached a duty of care owed to him. The Plaintiff pursued legal action against the Defendant, alleging premises liability.
The Plaintiff claimed that the reason for his fall was the presence of standing water in the shower during use, stating that “The shower has a lot of standing water and was draining very slowly.” The Plaintiff alleged negligence on the part of the Defendant, asserting that they failed to maintain the shower drain, leading to a significant backup and slip hazard. Additionally, the Plaintiff accused the Defendant of failing to provide an anti-slip surface in the shower, neglecting to inspect the shower for unreasonably dangerous conditions, and not warning the Plaintiff about such conditions. The Plaintiff further claimed that the Defendant failed to correct the hazardous conditions, lacked adequate staff to inspect the shower, insufficiently trained their staff for identifying dangerous conditions, and did not adhere to its own corporate policies or have sufficient policies in place.
On June 6, 2022, the Court issued its Case Management and Scheduling Order, which set a deadline for the Plaintiff to disclose any retained experts and their reports by February 6, 2023. However, on February 17, 2023, the Plaintiff, having failed to comply with the deadline, filed a Motion for Extension of Time to disclose their experts. Subsequently, on February 24, 2023, the Court granted the Plaintiff’s motion, extending the expert disclosure deadlines by 45 days, with the new deadline set for April 10, 2023. On the specified date, April 10, 2023, the Plaintiff disclosed two retained expert witnesses, namely David Collette and Georges El-Bahri. The Plaintiff’s expert disclosures indicated that a copy of El-Bahri’s written report was being prepared and would be provided upon receipt. However, even three months after the initially expected date for producing El-Bahri’s report, the Plaintiff had not supplied any expert report for El-Bahri. The Defendant’s counsel made efforts to obtain the report by sending correspondences to the Plaintiff’s counsel. Despite these requests, no expert report was provided and the discovery was ultimately closed.
The Defendant filed a Daubert Motion to Preclude the testimony and opinions of Plaintiff’s Expert, David Collette, a Motion to Strike Plaintiff’s Expert Witness Georges El-Bahri as he failed to furnish an expert report within the stipulated timeframe, and a Motion for summary judgment.
Collette admitted during deposition that he was not qualified to provide expert opinions on the coefficient of friction of the shower floor with standing water, and he did not conduct any testing under such conditions. The Defendant argued that Collette’s opinions were speculative, with questionable relevance to the trial issues. The methodology employed by Collette was deemed unscientific and unreliable, and the Defendant contended that his testimony would not assist the jury but instead lead to confusion.
Mechanical Engineering Expert Witness
David Collette holds a Bachelor of Science in Mechanical Engineering from the University of Manitoba, Canada and further pursued his education by earning a Masters of Business Administration from the University of Chicago. With an academic background in both engineering and business, Collette possesses over 18 years of extensive experience. Throughout his career, he has demonstrated expertise in developing, commercializing, analyzing, and troubleshooting walkway solutions, encompassing various aspects such as chemistry, tools, mats (walk-off, bath), cleaning processes, coatings, treatments, and flooring material selection. Currently serving as the President of Substratum Group, Collette leads the development of proprietary products and services aimed at supporting Walkway Management programs. His role involves providing customers with comprehensive solutions related to the selection, testing, care, and maintenance of walkways (e.g., floors, sidewalks, ramps, stairways) and bathing surfaces (e.g., tubs, showers).
Orthopedic Surgery Expert Witness
Dr. Georges F. El-Bahri, a Doctor of Osteopathic Medicine, earned his degree from Nova Southeastern University College of Osteopathic Medicine. He holds a Bachelor of Science in Biomedical Science from the University of South Florida. El-Bahri pursued postgraduate education and training, completing an Orthopedic Sports Medicine Fellowship at Andrews Research and Education Foundation, and an Orthopedic Surgery Residency at Largo Medical Center. His expertise extends to sports medicine injuries, particularly those of the knee and shoulder, with a focus on arthroscopic procedures, total joint replacements, and general orthopedic care. El-Bahri holds various positions, including Certified Life Care Planner at Life Care Plan MD, Extremity Surgeon at Interventional Pain Specialists, Extremity Surgeon at Spine Centers of America, Orthopedic Surgeon at Ortho One Jacksonville, and Orthopedic Specialist at Concentra-Occupational Health. He also maintains his private practice at Bahri Orthopedics and Sports Medicine Clinic.
Discussion by the Court
The Defendant requested the Court to exclude David Collette’s entire testimony, contending that he lacked qualification, utilized invalid methodology, and his testimony would not assist the trier of fact. The Court observed that an expert’s qualification is determined by factors such as knowledge, skill, experience, training, or education, according to Federal Rule of Evidence 702. An expert is not automatically deemed unqualified if their experience doesn’t perfectly align with the matter at hand. The qualification assessment should consider the expert’s credentials in relation to the subject matter of the proposed testimony. If an expert is minimally qualified, objections to their expertise should be treated as matters of credibility and weight, rather than admissibility.
Collette holds a Bachelor of Science degree in Mechanical Engineering and served as a voting member on the technical committee for American National Standards Institute (ANSI)/National Floor Safety Institute(NFSI) B101.4 Test Method for Measuring the Wet Barefoot Condition of Surfaces, focusing on developing a barefoot standard for various surfaces such as bathtubs, shower enclosures, pool decks, and walkways in 2019. With over 14 years of experience in developing, launching, and auditing walkway and bathing surface safety programs. Collette does not possess a PhD in engineering. However, a preponderance of evidence indicated his qualification to testify on the coefficient of friction of the shower stall floor, its slipperiness, and relevant industry standards.
In the case of Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190, 1193 (11th Cir. 2011), it was established that a qualified expert utilizing reliable testing methodology has the authority to testify about the safety of a Defendant’s flooring choice, determined by the surface’s coefficient of friction. Typically, coefficient of friction evidence is presented by an expert witness who also addresses industry standards and assesses whether the surface complies with them. Furthermore, according to Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1285 (11th Cir. 2015), a delay in testing the area where an accident occurred does not undermine the reliability of coefficient testing if the site has not materially changed since the incident. The case emphasized that weaknesses in the factual basis of an expert’s opinion are subject to challenges in terms of credibility and weight through cross-examination and the presentation of contrary evidence.
Collette conducted coefficient of friction tests using an American Slip Meter 925 tribometer and the ANSI A326.3 standard test method for measuring dynamic coefficient of friction (DCOF) of hard surface flooring materials. He asserted that the test method employed was the standard test used by manufacturers, interior designers, and architects for testing bathing surface floors. Collette performed the coefficient of friction test on the shower stall floor under somewhat different conditions than were present during the accident: it was over two years later, and there was no significant standing water present for his test. Additionally, he tested three samples of the shower stall floor instead of the entire surface. The Defendant could raise these considerations, but they pertain to the weight and credibility of the evidence, not its admissibility. Collette utilized an established methodology, the ANSI A326.3 standard test method, to assess the coefficient of friction of the surface. A preponderance of the evidence suggested that his testimony was grounded in a reliable methodology.
In Sorrels, it was established that expert testimony concerning the coefficient of friction (COF) of a flooring surface could be beneficial to a jury in a slip and fall case. The Court emphasized that challenging such evidence should be done through vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of truth, as outlined in the Daubert case.
Collette’s testimony closely parallels the testimony presented in Sorrels, proving beneficial to the jury in the slip and fall context. The preponderance of the evidence suggested that Collette’s testimony would aid the trier of fact by applying his expertise and remained relevant to the case. The Daubert standard was deemed satisfied for all three prongs, and as a result, Collette’s testimony was not barred.
To establish a premises liability claim, the Plaintiff must demonstrate the elements of a negligence claim and prove that the Defendant had possession or control of the premises and notice of the hazardous condition. This includes showing: (1) the Defendant owed a duty, (2) there was a breach of that duty, (3) a causal link between the breach and the Plaintiff’s injury, (4) the Plaintiff suffered damages due to that injury, (5) the Defendant had possession or control of the premises, and (6) the Defendant had actual or constructive notice of the dangerous conditions leading to the injury.
Considering the evidence favorably for the non-moving party, a material fact dispute exists regarding whether the shower stall floor posed a hidden danger. Collette, the Plaintiff’s expert witness, asserted in his written report that the wet dynamic coefficient of friction for the shower stall floor fell below industry standards for public showers and floors meant to be walked upon when wet. This condition, akin to the level-changing steps in Echevarria and Hilliard, could be perceived as more slippery than reasonably expected, potentially adding a hidden danger. A jury could reasonably find that such conditions create liability for premises owners, as invitees may not anticipate these dangers.
The Defendant argued that Collette’s opinions were irrelevant and unsupported. However, in considering the evidence favorably for the non-moving party, Collette’s report and opinions were deemed relevant as they made it more likely that the shower stall floor had hidden danger, being more slippery than reasonably expected. Consequently, the Court determined that summary judgment was not appropriate for this matter.
According to Federal Rule of Civil Procedure 26(a)(2)(B), expert witness disclosures must be accompanied by a signed report if the expert is “retained or specially employed” for testimony. These disclosures must adhere to Court-ordered deadlines, as outlined in Federal Rule of Civil Procedure 26(a)(2)(D). Failure to make such disclosures could result in the expert being barred from presenting evidence at trial, unless the failure is deemed “substantially justified or harmless,” pursuant to Federal Rule of Civil Procedure 37(c)(1).
In this case, the Case Management and Scheduling Order stipulated a deadline for the Plaintiff’s disclosure of expert reports as February 6, 2023 . The Defendant emphasized that the Plaintiff did not disclose a report from Georges El-Bahri by that date. The Plaintiff failed to provide good cause for the untimely disclosure and did not respond to the Defendant’s Motion to Strike. The Court decided that Defendant’s Motion to Strike may be treated as unopposed. Consequently, it was deemed appropriate to strike El-Bahri as an expert witness for the Plaintiff.
Held
The Court also denied the Defendant’s Daubert Motion seeking to preclude the testimony and opinions of Plaintiff’s Expert, David Collette. Furthermore, the Court granted the Defendant’s Motion to Strike Plaintiff’s Expert Witness, Georges El-Bahri. The Court also denied the Defendant’s Motion for Summary Judgment.
The Court issued a ruling on January 08, 2024 to terminate all pending motions and administratively close the case pending further order of the Court. The parties were directed to file a joint stipulated form of final order or judgment or move the Court upon good cause to reopen the case on or before March 04, 2024.
Key Takeaways
The Plaintiff, who suffered injuries in a truck stop shower stall, relied on the expert opinions of David Collette to establish the hazardous conditions of the shower floor. The Defendant contested the admissibility of Collette’s testimony, asserting that he lacked qualifications and used unreliable methodology. The Court, however, found that Collette, with his engineering background and extensive experience, met the qualifications for offering expert opinions on the coefficient of friction of the shower floor. The Court emphasized that objections to an expert’s expertise should be matters of credibility and weight, rather than admissibility. Collette’s use of established testing methodology and his relevance to industry standards strengthened the admissibility of his testimony. The Court also highlighted the significance of expert testimony in premises liability cases, acknowledging its potential to assist the jury in understanding complex issues such as the slipperiness of flooring surfaces. The Plaintiff’s expert Georges El-Bahri faced challenges to the timeliness of expert disclosures because the Plaintiff failed to provide good cause for the untimely disclosure and did not respond to the Defendant’s Motion to Strike, therefore barring the expert. Here, the Court underscored the importance of adhering to procedural rules for expert witness disclosures and the potential consequences, such as being barred from presenting evidence at trial.
This case involved a personal injury lawsuit filed by Plaintiff, Morgan Fitch against her employer, Defendant, BNSF Railway Company (BNSF), under the Federal Employers’ Liability Act (FELA). On February 28, 2020, the Plaintiff was fulfilling her duties as a conductor for the Defendant, engaged in the transportation of a train from Minot, North Dakota to Rugby, North Dakota. While in the locomotive cab with a three-person train crew, the train suddenly initiated an emergency stop without any prior warning. The abrupt force of the stop resulted in the Plaintiff being thrown forward into the locomotive’s nose, leading to injuries in her right arm and shoulder. Additionally, throughout the litigation process, the Plaintiff asserted that she had sustained neurological and cognitive injuries, including a traumatic brain injury.
Fitch filed motions to exclude the expert testimony of three defense witnesses that BNSF disclosed: Melissa Castro, a neuropsychologist; Frederick Strobl, a neurologist; and Steven Moen, an orthopedic surgeon. Fitch argued in her motions and cited the supplemental report of her own expert, Dr. Steven David Lockman, that the methodology and reasoning underlying the defense experts’ testimony was not scientifically valid.
Neuropsychology Expert Witness
Dr. Melissa Castro is a clinical neuropsychologist with expertise in areas such as concussion, traumatic brain injury, post-traumatic stress disorder, mild cognitive impairment, dementia, and cross-cultural assessments. She is board certified by the American Board of Clinical Neuropsychology and licensed to practice in Minnesota and Wisconsin. Her educational background includes a doctorate in psychology from the Ponce School of Medicine and Health Sciences and a bachelor’s degree in psychology from Concordia University. Castro currently serves as a clinical neuropsychologist at the Minneapolis Clinic of Neurology.
Neurology Expert Witness
Dr. Frederick Thomas Strobl is a medical doctor with specialized expertise in the field of neurology. His educational background includes a bachelor’s degree in electronics engineering from the University of Minnesota as well as a medical degree from the University of Minnesota Medical School. Strobl completed his residency training in neurology at the University of Minnesota Hospitals, followed by a fellowship at Mayo Clinic. He is licensed to practice medicine in Minnesota and is board certified in neurology by the American Academy of Neurology as well as in electromyography by the American Board of Electrodiagnostic Medicine. Strobl is the co-founder and former Chairman and CEO of CNS, Inc., known for creating Breathe Right Nasal Strips. He currently serves as a mentor, presenter and keynote speaker for the Med Tech Accelerator program, an alliance between Mayo Clinic and Arizona State University. Additionally, Strobl hosts the podcast Brain Health Minute, covering various neurology topics.
Orthopedic Surgery Expert Witness
Dr. Steven A. Moen earned his Bachelor of Arts in Chemistry from Saint Olaf College. He went on to earn his Doctor of Medicine from the University of Minnesota School of Medicine, followed by a General Surgery internship at the University of Minnesota. Moen completed his Orthopaedic Residency Program at the University of Minnesota and is licensed to practice in Minnesota. He is also a Board Certified Orthopedic Surgeon. He has been practicing as an Orthopedic Surgeon at Twin Cities Orthopedics in Edina, Minnesota since 1998.
Discussions by the Court
Rule 702 of the Federal Rules of Evidence outlines criteria for expert testimony admissibility. The rule requires the trial judge to serve as a “gatekeeper,” admitting expert testimony if it is both relevant and reliable. The judge has broad discretion in assessing reliability. Credibility and weight of expert testimony are left to the trier of fact. Only fundamentally unsupported expert opinions may be excluded. Parties may present scientifically valid expert opinions that assist the jury, with Daubert emphasizing a preliminary assessment of scientific validity. Courts encourage liberal admission of expert testimony, and the traditional means of challenging evidence include cross-examination and presenting contrary evidence. District Courts are cautioned against weighing competing expert opinions, leaving such decisions to the jury when opinions are within a reasonable range of expert disagreement.
BNSF engaged Castro, a clinical neuropsychologist, to conduct a Rule 35 medical examination of Fitch. Castro’s conclusions consistently expressed skepticism regarding the severity of Fitch’s brain injury, contending that its impact on her life would be minimal. These conclusions were founded on three scientifically unsound premises: (1) an assertion that Fitch was deliberately exaggerating her injuries for personal gain, based on specific test results (namely symptom validity tests (SVTs) and performance function tests (PFTs)); (2) a claim that Fitch did not meet the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) diagnostic criteria for post-traumatic stress disorder (PTSD); and (3) an argument that Fitch should have already recovered from her brain injury. The Plaintiff argues that Castro’s expert opinions were derived from information that was incorrect, inaccurate, incomplete, and incompetent. As a result, the Plaintiff asserted that Castro’s trial testimony would be unreliable and invalid under Rule 702 and should be excluded.
The Court, having thoroughly examined the parties’ submissions, determined that Castro is an experienced, qualified, and competent board-certified neuropsychologist. The record showed that Castro conducted a comprehensive examination and interview of the Plaintiff, administered relevant tests, and thoroughly reviewed the Plaintiff’s medical records before formulating her conclusions. The Court found that Castro’s methodology and reasoning were scientifically valid and applicable to the facts of the case. Consequently, the Court concluded that Castro’s expert testimony was both relevant and reliable, aligning with Rule 702 of the Federal Rules of Evidence.
BNSF enlisted Strobl, a board-certified neurologist, to conduct a Rule 35 medical examination of Fitch. Strobl’s conclusions consistently downplayed the severity of Fitch’s alleged brain injury, asserting that she suffered no injury and that the effects would have no lasting impact. The Plaintiff argued that Strobl’s conclusions were rooted in two scientifically unsound premises: (1) minimizing Fitch’s injury based on information from the Cleveland Clinic website, the injury not being recognized in the emergency department, and the absence of physical evidence of trauma at the time of the incident; and (2) interpreting specific test results ( namely Electromyography(EMG)) to ostensibly rule out a brachial plexus injury. The Plaintiff contended that Strobl’s conclusions were not merely a difference of opinion but rather stemmed from unreliable and invalid information, and therefore, advocated for the exclusion of Strobl’s testimony in the case.
The Court, having reviewed the matter, determined that Strobl was an experienced, qualified, and competent board-certified neurologist. Strobl’s opinions were based on a thorough examination of the Plaintiff and an assessment of her medical history from records. The Court concluded that the methodology and reasoning behind Strobl’s testimony were scientifically valid and applicable to the case’s facts. Consequently, the Court found Strobl’s expert testimony to be relevant, reliable, and in accordance with Rule 702 of the Federal Rules of Evidence.
BNSF engaged Moen, a board-certified orthopedic surgeon, to conduct a Rule 35 medical examination of Fitch. Moen concluded that Fitch had a soft-tissue injury to her right shoulder and did not suffer a specific brachial plexus injury. He based this conclusion on an April 2020 Electromyography (EMG) that he characterized as “essentially normal.” Moen asserted that brachial plexus injuries typically result from birth trauma or major trauma, such scenarios were inconsistent with Fitch’s emergency room examination where no swelling, bruising, or bony abnormalities were noted. The Plaintiff argued that Moen’s reasoning was logically flawed as it incorrectly assumed that the April 2020 EMG ruled out the possibility of a brachial plexus injury. Consequently, the Plaintiff asserted that Moen’s conclusions were fundamentally flawed, unreliable, and invalid, advocating for his exclusion from testifying regarding Fitch’s brachial plexus injury.
Upon examination, the Court determined that Moen was an experienced, qualified, and competent board-certified orthopedic surgeon. Moen conducted an examination of the Plaintiff and assessed her medical history from records. The Court concluded that the methodology and reasoning behind Moen’s testimony were scientifically valid and applicable to the case’s facts. As a result, the Court found Moen’s expert testimony to be relevant, reliable, and in accordance with Rule 702 of the Federal Rules of Evidence.
Therefore, the Plaintiff’s motions sought the Court’s evaluation of competing expert opinions, a matter pertaining to the weight assigned by the factfinder rather than the admissibility of such testimony. The Court emphasized the appropriate approach to challenge expert opinions through robust cross-examination and the presentation of conflicting evidence, rather than wholesale exclusion at trial, citing precedent Olson v. Ford Motor Co., 411 F. Supp. 2d 1137, 1145 (D.N.D. 2006). The Court refused to overstep the jury’s role in determining credibility and the weight to be given to the evidence.
Held
The Court denied the Plaintiff’s motions to exclude the testimony of defense medical experts, Melissa Castro, Frederick Strobl, and Steven Moen. The Court found they were qualified experts whose methodology and reasoning was scientifically valid. It would be up to the jury to determine how much weight to give their testimony. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
The expert witness testimony in this case relates to the standards for admissibility under Rule 702. The Court serves as a “gatekeeper” in assessing whether expert opinions are relevant and reliable. However, Courts give broad discretion to trial judges on determinations of reliability. Once expert testimony passes the reliability threshold, issues of credibility and weighing competing testimony fall to the trier of fact, usually the jury. Wholesale exclusion of expert opinions is meant to be the exception rather than the norm. Courts should not examine whether the expert’s conclusions are necessarily correct or which theory among competing ones has superior merit. Rather, as long as qualified experts have utilized scientifically valid reasoning that assists the trier of fact, exclusion is unwarranted even if some disagreement exists. Here, despite variances in conclusions reached, the Court found that all three defense experts proffered relevant and sufficiently reliable testimony based on examination of the Plaintiff and her records along with application of sound methodology. With liberal admission standards favoring allowing expert testimony, the Court denied motions to exclude these witnesses. The jury will now decide what weight to afford each expert opinion at trial during its deliberations. Vigorous cross-examination provides the appropriate tool for addressing shaky expert testimony rather than exclusion.
Plaintiff Valerie Peterson filed a personal injury lawsuit against Defendant Ross Dress for Less, Inc. in the United States District Court for the Eastern District of Missouri. Peterson alleged that on July 6, 2020, while shopping at a Ross Dress for Less store in Poplar Bluff, Missouri, she was struck by an overloaded shopping cart transported by a Ross’ employee, causing her serious injuries.
As per the Case Management Order, the Plaintiff had until July 15, 2023, to disclose expert witnesses. On that date, the Plaintiff’s counsel informed the Defendant’s counsel via email about the intent to name Matthew Gornet as an expert witness, seeking an extension of 45 days to submit Gornet’s report. The Defendant’s counsel agreed to a 30-day extension. On August 15, the Plaintiff’s counsel notified the Defendant’s counsel of the ongoing delay in receiving Gornet’s report. However, on August 18, the Plaintiff’s counsel finally sent Gornet’s report to the Defendant’s counsel, accompanied by a link to various medical records of the Plaintiff.
In his report, Gornet detailed his treatment of the Plaintiff for neck and low back problems, commencing in April 2021, which included two surgeries. He indicated that the Plaintiff would need future treatment for cervical and lumbar spine issues, estimating associated costs. Gornet opined that the incident on or about July 6, 2020, aggravated the Plaintiff’s pre-existing degenerative conditions, basing his opinion on comparative studies, knowledge of similar cases, and a review of relevant medical records.
The Defendant filed a motion to strike Gornet, citing two main reasons: first, the late submission of the report, provided three days after the agreed 30-day extension period, and second, the report’s alleged failure to include required information under Rule 26(a)(2)(B).
Orthopedic Surgery Expert Witness
Dr. Matthew Frederick Gornet, M.D., is a spine surgeon currently employed at St. Louis Spine and Orthopedic Surgery Center. He completed his Bachelor of Arts degree at Washington University. He then attended Johns Hopkins University School of Medicine where he received his Medical Degree. This was followed by a residency program in General Surgery at Johns Hopkins Hospital and then a residency program focused specifically on Orthopedic Surgery, also completed at Johns Hopkins Hospital. Gornet then completed an advanced Spinal Surgery fellowship program at Johns Hopkins Hospital under the guidance of globally renowned spine surgeon Dr. John Kostuik. He is certified by the American Board of Orthopaedic Surgery.
Discussions by the Court
The Court initially addressed the Defendant’s contention that Gornet’s report should be stricken due to non-compliance with Rule 26(a)(2)(B). The Plaintiff countered, asserting that Rule 26(a)(2)(B) was inapplicable to Gornet as he was a treating physician, and instead, compliance with Rule 26(a)(2)(C) was sufficient. The Defendant, in its reply, maintained the position that Rule 26(a)(2)(B) applied but added that even if it did not, Gornet’s testimony should be excluded because he was never appropriately disclosed as an expert under any aspect of Rule 26(a)(2).
Rule 26(a)(2) outlines disclosure requirements for expert witnesses in trial testimony. It distinguishes two categories: (1) experts retained for the case, requiring a detailed report (Rule 26(a)(2)(B)), and (2) other witnesses, who need not provide a report but must disclose the subject matter and a summary of their expected testimony (Rule 26(a)(2)(C)).
The Eighth Circuit clarified the application of these rules to treating physicians offering expert testimony, emphasizing that if a treating physician forms opinions outside their treatment scope, they are considered retained experts and must adhere to Rule 26(a)(2). The Court, in Johnson v. Friesen, 79 F.4th 939, 943 (8th Cir. 2023), held that such physicians must submit an expert report, not just a summary, as mandated by Rule 26(a)(2)(B). Failure to comply may result in exclusion of the expert’s testimony, as seen in Johnson and other related cases.
The situation involves Gornet, identified as one of the Plaintiff’s treating physicians, detailing his treatment, including two surgeries. The Plaintiff’s deposition testimony confirms that she was referred to Gornet after physical therapy proved ineffective. Despite establishing Gornet as a treating physician, it’s emphasized that this alone doesn’t determine the applicability of Rule 26(a)(2)(B) to his opinions. The crucial consideration is whether Gornet’s views on the cause of the Plaintiff’s injury and her future treatment needs and costs were formed “in the course of providing treatment,” a legal standard not addressed by either party in their submissions.
Upon reviewing the record, the Court determined that Gornet’s opinions were, to some extent, formulated outside the course of providing treatment to the Plaintiff. Gornet’s letter was a response to a request from the Plaintiff’s counsel for an “expert opinion and narrative report” concerning the causation of the injuries and future treatment needs. The letter contained specific treatment recommendations and cost estimates for procedures over the next decade, suggesting these conclusions likely did not arise during the course of the Plaintiff’s treatment. Notably, Gornet did not specify when he formed his causation opinion but indicated it was based on various comparisons and reviews. The Court found it more likely that Gornet developed these opinions outside the context of providing treatment, considering the detailed nature of his recommendations, his compensation for the report, and the indication from the Plaintiff’s attorney that Rule 26(a)(2)(B) requirements applied.
The Court concluded that Gornet formed his opinions outside the course of providing treatment to the Plaintiff, making him subject to Rule 26(a)(2)(B). However, the Court agreed with the Defendant that Gornet’s two-and-a-half-page report did not fully meet the requirements of Rule 26(a)(2)(B).
First, Gornet’s report lacked the necessary detail regarding the “facts or data considered” in forming his opinions, as mandated by Rule 26(a)(2)(B)(ii). Second, it failed to include any exhibits supporting his opinions, violating Rule 26(a)(2)(B)(iii). Third, the report lacked information on Gornet’s qualifications and publications from the past 10 years, contravening Rule 26(a)(2)(B)(iv). Fourth, it did not provide a comprehensive list of cases in which Gornet testified over the previous four years, violating Rule 26(a)(2)(B)(v). Finally, the report did not contain a clear statement of the compensation to be paid for Gornet’s study and testimony, as required by Rule 26(a)(2)(B)(vi).
As a result of these deficiencies, the Court determined that the Plaintiff did not comply with Rule 26(a)(2)(B) regarding Gornet’s expert report. Additionally, the Court deemed Gornet’s non-compliant report untimely, being submitted three days after the agreed-upon 30-day extension in the Case Management Order.
The Court then addressed the Plaintiff’s failure to comply with Rule 26(a)(2)(B) and the Case Management Order, the potential remedies were emphasized under Rule 37. Rule 37 provided the Court with wide discretion to impose sanctions for noncompliance, including exclusion of evidence, unless the failure was substantially justified or harmless. However, the Court acknowledged that the exclusion of evidence was a severe measure and should be used sparingly. Rule 37(c)(1) allowed the Court to order the payment of reasonable expenses and attorney’s fees caused by the failure to disclose and impose other appropriate sanctions. In determining an appropriate remedy, the Court considered factors such as the reason for noncompliance, the surprise and prejudice to the opposing party, the potential disruption to trial order and efficiency, and the importance of the information or testimony.
After considering relevant factors, the Court determined that the circumstances did not justify the severe sanction of excluding all or part of Gornet’s testimony. Regarding the first factor, the Plaintiff did not explicitly state the reason for noncompliance, but it seemed to result from a combination of misunderstanding the applicable law and a failure to ensure timely submission of relevant information by Gornet. This factor slightly favored exclusion. Concerning the second factor, the surprise and prejudice to the Defendant appeared minimal, as the Plaintiff’s actions did not involve attempting to spring new expert testimony on the Defendant on the brink of trial. Instead, the Plaintiff submitted a deficient report three days late, and adjustments to the Case Management Order could accommodate the necessary steps for the Defendant. The third factor, related to trial order and efficiency, favored allowing Gornet to testify, given the trial was more than eight months away. The fourth factor, emphasizing the importance of the information or testimony, strongly opposed exclusion, as Gornet’s testimony held significant relevance to the Plaintiff’s case. Considering these factors, the Court found the Plaintiff’s noncompliance with Rule 26(a)(2)(B) to be harmless under the circumstances, and exclusion was deemed unwarranted.
While the Court chose not to exclude Gornet’s testimony, it deemed a lesser sanction appropriate for the Plaintiff’s failure to comply with Rule 26(a)(2)(B) and the Case Management Order. Considering the circumstances, the Court found awarding reasonable fees and costs to the Defendant as an appropriate sanction. However, the Court decided to provide the Plaintiff with an opportunity to be heard before imposing this sanction, following the procedure outlined in Fed. R. Civ. P. 37(c)(1). The Court set brief deadlines for the Defendant to file a motion requesting and documenting reasonable fees and costs, for the Plaintiff to respond to those fees and costs, and for the Plaintiff to supplement her Rule 26 disclosures with a compliant expert report from Gornet within twenty-one days. Additionally, the Court extended remaining deadlines in the Case Management Order to allow the Defendant sufficient time for Gornet’s deposition and expert disclosures. This approach aligns with decisions made by other district Courts in similar situations.
Held
The Court denied Defendant’s Motion to Strike Plaintiff’s Expert Witness Matthew Gornet. The Court issued further orders directing the Plaintiff to supplement her Rule 26 disclosures and provide a compliant supplemental expert report from Gornet within twenty-one days. Additionally, the Defendant was instructed to file a motion for reasonable fees and costs within fourteen days, with the Plaintiff required to respond within the same timeframe after the motion is filed. The parties were directed to meet and confer within fourteen days to submit a Joint Proposed Scheduling Plan, suggesting new deadlines for a Second Amended Case Management Order. The Court reserved the option to decide whether a scheduling conference would be necessary based on the submitted plan before entering a Second Amended Case Management Order.
Key Takeaways
This case demonstrates that treating physicians providing expert opinion testimony may be subject to the more stringent report requirements of Federal Rule of Civil Procedure 26(a)(2)(B) rather than the more lenient disclosures of Rule 26(a)(2)(C). The key factor is whether the physician formed the expert opinions at issue in the course of providing treatment to the patient. If the opinions were formed outside the course of treatment, Rule 26(a)(2)(B) likely applies.
Here, Gornet offered specific opinions on causation, future treatment, costs, and prognosis that he appears to have formed at least partly outside the course of Peterson’s treatment. Thus, his report had to comply with Rule 26(a)(2)(B). His failure to do so subjected Peterson to potential sanctions, including exclusion of Gornet’s testimony. However, the Court opted for lesser sanctions since exclusion seemed too harsh under the circumstances. The case shows Courts have broad discretion to fashion appropriate remedies for violations of expert disclosure rules. Their goal is finding a fair outcome, not punishing a defective expert report.
