F/V Mary Virginia is a vessel owned and operated by Westbank Fishing, LLC. Plaintiff Timothy Milne sustained personal injuries while working as a second engineer aboard the F/V Mary Virginia. Milne alleged that on May 14, 2023, he slipped on a slick substance and fell approximately 14 feet from the gunnel of a purse boat to the deck of the Mary Virginia, injuring his lower back and right wrist.
Milne received emergency medical treatment and was referred to Scott Tucker for an orthopedic evaluation of his back and wrist. Tucker cleared Milne to return to work with no restrictions on September 7, 2023. However, Milne told his captain that he could not work due to back pain. Milne was diagnosed with back strain and sought treatment from Stephen Rynick. Westbank sought a second opinion from Everett Robert, who performed an independent medical examination and opined that Milne’s back pain is attributable to conditions predating the May 14, 2023 accident.
On May 9, 2024, Milne sued Westbank seeking damages under the Jones Act and for maintenance and cure. To defend against Milne’s claims, Westbank hired Marzieh Ardestani. Ardestani visited the Mary Virginia, inspected the ship and purse boats as they were positioned at the time of the accident, and took photographs and measurements. She reviewed these photographs and measurements, schematic diagrams of the purse boat, deposition testimony, Robert’s report, Milne’s medical records, and scholarly articles to prepare her report.
However, Milne argued that Ardestani cannot offer opinions on medical causation and sought to exclude or limit her testimony in that respect.
Mechanical Engineering Expert Witness
Marzieh Ardestani holds a Ph.D. in mechanical engineering with special emphasis on human biomechanics and a certification in accident reconstruction, as a biomechanics expert.
To begin with, Ardestani explained in her report that she analyzed the mechanics of the fall to determine the forces that Milne would have experienced in a 14-foot fall. Specifically, she posits that “Milne’s account, describing a slip-induced fall, sliding down, bracing with right hand and landing on his lower back, cannot coexist within a single dynamic fall.” Moreover, Ardestani further opined that Milne most likely experienced a sliding fall, which “typically results in less forceful contact with the ground,” as opposed to a slip-induced fall. However, she concluded that, in either case, his “spine would not have experienced hyperflexion,” which would have been necessary for the fall to cause his injuries.
Analysis
Milne does not contest Ardestani’s qualifications to testify as an expert in biomechanics. However, Milne specifically argues that Ardestani’s report contains impermissible opinions on medical causation.
The Court held that Ardestani explained the forces involved in Milne’s fall and addressed whether those forces were likely to have caused the injuries alleged by Milne – as this Court has permitted biomechanics experts to do.
To sum up, Ardestani does not opine on the “precise cause of a specific injury,” but posits that the forces of Milne’s fall would not have caused his injuries.
Thus, Ardestani’s report is within the scope of her expertise in biomechanics. In other words, any concerns Milne may have regarding the bases and sources of her opinions go to the weight, not admissibility, of the testimony and can be addressed through cross-examination and the presentation of countervailing expert testimony.
Held
In conclusion, the Court denied Milne’s motion in limine to exclude the testimony of Marzieh Ardestani.
Key Takeaway:
Ardestani’s report is within the scope of her expertise in biomechanics because she does not opine on the “precise cause of a specific injury,” but posits that the forces of Milne’s fall would not have caused his injuries. Her report does not constitute impermissible opinions on medical causation.
Case Details:
Case Caption:
Milne V. Westbank Fishing, LLC
Docket Number:
2:24cv1179
Court:
January 16, 2025
Order Date:
United States District Court for the Eastern District of Louisiana
Plaintiff, William Harrison Sims’ claims arise out of an October 24, 2019, two-vehicle collision involving Plaintiff, who was operating the 2004 BMW (“Subject BMW”). Tameca Harris-Jackson (“Harris-Jackson”) was operating the Hyundai that collided with the Subject BMW. Plaintiff alleges he sustained “severe, permanent, and life-altering injuries” due to the driver-side Takata airbag unexpectedly rupturing and shooting “metal shrapnel into his face and body.”
Defendants procured and installed the airbag inflator during the process of “designing, manufacturing, assembling, and producing” the vehicle. Plaintiff brought this action for damages against both Defendants BMW of North America (“BMW NA”) and Bayerische Motoren Werke AG (“BMW AG”), alleging strict liability and negligence from procuring and installing the airbag.
BMW of North America, LLC and Bayerische Motoren Werke AG (The “BMW Defendants”) requested the Court to preclude the injury causation testimony of Plaintiff’s neurological expert Paul Buechel, M.D., P.A. because he is not qualified to offer injury causation opinions.
Neurology Expert Witness
Paul Buechel is a board-certified neurologist with over 33 years of experience. His medical degree is from Syracuse. His residency was done at University of Kentucky.
Defendants argued that Buechel is not a biomechanical engineer and that sufficient facts and data do not support his opinions, nor are they based on a reliable methodology. They also averred that Buechel did “no testing” without specifying what testing should have been performed. And Defendants contended that Buechel failed to rule out contact with the steering wheel or dash as the cause of Plaintiff’s neurological injuries. As such, Defendants characterized Buechel’s opinions as pure ipse dixit of an expert based on too great of an analytical gap.
In the introductory section of their Motion, Defendants argued that Buechel testified at deposition that Plaintiff could have sustained “a traumatic brain injury from other blunt trauma to the head.” They contended that this undercuts the reliability of his opinion that the defective inflator and the shrapnel surgically removed from Plaintiff caused his TBI. Defendants also cited Buechel’s deposition, in which he stated he did not inspect the shrapnel. And the defense avers that Plaintiff’s nasal septal deviation, which his ear, nose, and throat physician felt was secondary to striking the wheel or dash, contradicts Buechel’s causation opinion.
Buechel is a board-certified neurologist who conducted two independent medical evaluations of Plaintiff one year apart. He offered an assessment of Plaintiff’s injuries and limitations based on the medical records, patient history, and his independent medical evaluations. Buechel then outlined Plaintiff’s future necessary and reasonable medical needs.
Defendants did not contest Buechel’s qualifications to render these opinions, the reliability of the principles and methodology employed by Buechel, or that his testimony about Plaintiff’s injuries and future medical needs is helpful to the jury.
Analysis
Defendants only contested whether Buechel’s opinion that, “[r]egarding causality, in the greatest medical probability, it is [his] opinion that each of these listed diagnoses and symptoms are indeed directly related to the injuries he sustained in the vehicle airbag explosion which occurred on 10/24/19.”
At deposition, Buechel clarified that even assuming the ENT is correct that Plaintiff’s nasal septal deviation was caused by Plaintiff’s face making contact with the wheel or dash, this is still due to the defective inflator sending shrapnel through the airbag and preventing it from protecting the Plaintiff. Therefore, injuries sustained by contacting the wheel or dash are caused by the airbag exploding. Buechel did not concede that his injury causation opinion is unreliable because the ENT found a septal deviation could have been caused by striking the wheel or dash. To the contrary, Buechel observed that Plaintiff’s nasal bridge exam “looked well on the photographs,” and typically, one would expect a laceration or a bridge abrasion when the patient’s face strikes the wheel or dash.
The Court finds the methodology employed by Buechel to support his injury causation opinion is the product of reliable principles and methods properly applied to the facts of the case. As Plaintiff observes in his response, Buechel reviewed the medical records and evidence collected from the scene. He considered the nature of the injuries as “an indication of the size of the shrapnel” along with the “depth of penetration.” Buechel does not need to be trained as a biomechanical engineer to render his opinions, despite Defendants’ bald assertion.
Held
The Court denied the Defendants’ motion to preclude the testimony of Dr. Paul Buechel.
Key Takeaway:
Buechel does not need to be trained as a biomechanical engineer to render his opinions, despite Defendants’ bald assertion. Buechel’s opinions rest upon his training and experience, combined with the medical evidence showing the size of lacerations caused by the shrapnel and the depth of penetration. This is more than adequate to satisfy Daubert and its progeny.
This a personal injury case in which the Plaintiff, Morgan Fitch, sought damages for injuries allegedly suffered while working as a conductor for Defendant BNSF Railway Company (BNSF) under the Federal Employers’ Liability Act (FELA). Fitch contends she was injured on February 28, 2020, while part of a train crew operating a BNSF train between Minot and Rugby in North Dakota. In her complaint, Fitch alleges the train went into an emergency stop which caused her to be thrown down and injure her right arm and shoulder. Fitch has alleged that she sustained neurological and cognitive injuries, including a traumatic brain injury. On November 20, 2024, Fitch disclosed medical records documenting a new symptom that was not previously disclosed.
She alleges left homonymous hemianopia (i.e. a loss of vision on the left side) was caused by the February 28, 2020, incident. Fitch has repeatedly taken a vision test with varying results. She failed several tests, which resulted in a determination that she cannot drive. However, she has passed the last test taken which allows her to legally drive. On December 27, 2024, Fitch disclosed the seventh report of Dr. Steven Lockman, her retained medical expert. Lockman’s supplement report offers opinions regarding Fitch’s visual field defect and a new diagnosis of Complex Regional Pain Syndrome (“CRPS”).
BNSF contended any evidence, documents, or testimony regarding the newly discovered medical symptoms alleged by Fitch should be excluded. Specifically, BNSF sought to exclude evidence that: 1) Fitch has lost portions of her field of vision, 2) Fitch cannot drive due to vision loss; and 3) Fitch has been diagnosed with CRPS. Fitch filed a response in opposition to the motions on January 6, 2025.
Physical Medicine & Rehabilitation Expert Witness
Steven David Lockman is triple board certified in Brain Injury Medicine, Physical Medicine & Rehabilitation (PM&R), and Electrodiagnostic Medicine (EMGs and nerve conduction studies). He has over 25 years of experience providing care for individuals with brain injuries and complex neurorehabilitation conditions.
The deadlines to disclose amended and rebuttal reports were July 19, 2024, and September 13, 2024, respectively; however, the Plaintiff disclosed Lockman’s supplemental expert report on December 27, 2024.
Additionally, the supplemental expert report was served months after the discovery deadline, which was October 15, 2024. According to the newly disclosed report, Lockman saw Fitch on December 11, 2024, yet did not date his report until December 23, 2024. The Plaintiff waited until December 27, 2024, to serve the report.
The Plaintiff’s alleged vision loss and inability to drive was disclosed approximately two months prior to trial, and the Complex Regional Pain Syndrome diagnosis was disclosed less than one month before trial. The Court held that the late disclosures arguably deprive BNSF of the opportunity to fully conduct discovery and consult with experts on the newly alleged symptoms prior to trial.
The incident that caused Fitch’s injuries occurred on February 28, 2020. This action has been pending for over three years and trial has been continued previously. The new medical conditions were disclosed more than four (4) years after the incident. The admission of evidence regarding the Plaintiff’s diagnosis of CRPS, her alleged loss of vision, and her inability to drive would prejudice BNSF since trial is less than one month away. During a telephone status conference with the parties on January 7, 2025, counsel for the Plaintiff stated they would not be introducing any evidence at trial concerning the Plaintiff’s inability to drive so that subject matter is a non-issue, and such evidence is prohibited at trial.
Analysis
As to the condition of CRPS, the Plaintiff is precluded from presenting evidence at trial of her recent CRPS diagnosis. In Lockman’s report dated December 23, 2024, he opined that it was his “impression” that Fitch “met the Budapest criteria for the diagnosis of Complex Regional Pain Syndrome (CRPS).” As recognized by Lockman, this is a “new diagnosis” that warrants more aggressive treatment for pain management. The diagnosis appears to be a progression of the patient’s brachial plexopathy condition.
It is undisputed that Fitch has been diagnosed with a right brachial plexopathy. Lockman can opine on his observations concerning Fitch’s brachial plexus injuries, consistent with the medical records he has reviewed, combined with his own medical records, his expert reports, disclosures, and deposition testimony. Lockman can also opine on the diagnosis, prognosis, and the care and treatment needed to address the brachial plexus injuries, as well as the other medical conditions he has diagnosed, treated, and addressed to date.
None of that information is a surprise nor is it prejudicial. Lockman’s medical records and reports, and his depositions disclose that diagnosis, treatment, and prognosis. BNSF has retained expert witnesses to rebut the diagnosis. However, Lockman will be precluded from presenting specific testimony on the “new diagnosis” of CRPS made on December 23, 2024, as discussed in his most recent report. As a practical matter, neither party is prejudiced by this very limited preclusion of testimony. The reality is that the care, treatment, and pain management for a brachial plexopathy condition differs very little from the care, treatment, and pain management of CRPS.
Held
The Court granted in part the Defendant’s motion to exclude the testimony of Steven Lockman.
Key Takeaway:
Parties have a continuing duty to supplement expert opinions under Rule 26(e) of the Federal Rules of Civil Procedure. The failure to timely disclose new medical conditions is certainly not harmless as it may significantly alter the scope of damages in any case.
The present case involved a medical malpractice claim filed by Plaintiffs Tyler Grenier and Jenna Grenier, individually, and as the next friend of minor J.A.G., against the Defendant United States of America (“Defendant”). The Plaintiffs alleged medical negligence at Tripler Army Medical Center (“Tripler”) concerning prenatal care and labor provided to Plaintiff Jenna Grenier (“Jenna”) and the delivery of J.A.G. The claims included severe physical injuries sustained by Jenna and J.A.G., negligent infliction of emotional distress on Tyler and Jenna, loss of filial consortium, and Tyler’s loss of spousal consortium.
In the current motion, the Defendant sought to strike the expert testimony of Ofer Levy, a pediatrics expert witness presented by the Plaintiffs. Defendant argued that Levy’s expert report was filed after the expert report deadline, as a rebuttal report, and that he had not been previously disclosed as an expert.
The Plaintiffs filed their opposition on August 13, 2024, asserting that Levy’s report was timely because the rebuttal disclosure deadline had been extended to June 10, 2024, the same day his report was disclosed.
Defendant replied on August 20, 2024, contending that Ofer Levy’s expert report is not a rebuttal report because it did not respond to any new information and it is an entirely new expert witness with new opinions that should have been disclosed by the expert witness disclosure deadline of March 11, 2024.
Pediatrics Expert Witness
Ofer Levy is principal investigator, staff physician and the Director of the Precision Vaccines Program at Boston Children’s Hospital, Professor of Pediatrics at Harvard Medical School, and Associate Member of the Broad Institute of MIT and Harvard.
After graduating from the Bronx High School of Science and then Yale College (B.S., Molecular Biophysics & Biochemistry), Levy received his MD and PhD degrees from New York University.
The parties agreed that Ofer Levy’s report was filed within the deadline for rebuttal expert reports. However, they disagreed on whether the report qualified as a rebuttal or an initial expert report. The Court determined that the report was an initial expert report, not a proper rebuttal.
Ofer Levy’s opinion stated that the forceps-assisted vaginal delivery caused the minor Plaintiff’s injuries and that a cesarean section should have been performed instead. He further opined that the perinatal injuries would have been avoided with a cesarean section. This opinion mirrored that of Plaintiffs’ obstetrics and gynecology expert witness, Adam V. Levy, who had similarly concluded that a cesarean delivery would have prevented the injuries.
The Court found that Ofer Levy’s report went beyond providing a rebuttal. Instead, it sought to reinforce the opinions already expressed by Adam V. Levy. This was impermissible, as it did not respond to new evidence but rather bolstered the original expert report. The Court referenced Parenti v. Cnty. of Monterey, where a purported rebuttal was excluded because it merely reinforced the original expert’s opinions.
Violation of Federal Rule of Civil Procedure 37(c)(1)
Under Federal Rule of Civil Procedure 37(c)(1), if a party fails to disclose expert testimony as required, the Court may exclude the testimony unless the failure is substantially justified or harmless. The Court ruled that Ofer Levy’s failure to disclose his expert status and report by the deadline was neither justified nor harmless. Consequently, the Court determined that the appropriate sanction was to strike Levy’s expert testimony and report.
Factors for Exclusion Sanction
To decide whether exclusion was appropriate, the Court considered several factors:
The public’s interest in the swift resolution of litigation.
The Court’s need to manage its docket efficiently.
The risk of prejudice to the Defendant.
The public policy favoring the resolution of cases on their merits.
The availability of less severe sanctions.
The Court found that the first three factors supported exclusion. The untimely disclosure would cause delays, which weighed against the Plaintiffs. The fourth factor was neutral, as striking Levy’s report would not dispose of the case. Finally, the fifth factor supported exclusion because the Plaintiffs could still proceed with their claims and trial without Levy’s testimony. Therefore, the Court decided to strike Levy’s expert report and testimony.
Held:
The Court, in light of the aforementioned discussion, granted Defendant’s motion to strike Plaintiff’s pediatrics expert witness Ofer Levy’s expert report and testimony.
Key Takeaway:
The Court struck the expert testimony of Ofer Levy because his report, filed after the expert deadline, was deemed an initial expert report rather than a rebuttal. The Court found that Levy’s testimony merely reinforced the opinions of another expert, Adam V. Levy, instead of responding to new evidence. Since Levy’s untimely disclosure was neither substantially justified nor harmless, the Court ruled that his report and testimony should be excluded as a sanction under Federal Rule of Civil Procedure 37(c)(1).
Please refer to the blogs previously published about this case:
This case involves injuries caused by a falling sign at a retail store. Allison Howard alleged that on March 27, 2023, she was shopping in a Target store when she was hit in the neck and upper back by an improperly attached metal and wooden sign that fell from the top shelf of the aisle she was shopping in. Howard claimed that she did not cause the sign to fall.
At her deposition, Howard testified that the accident occurred when her ex-husband, Isaiah Laborde, who was playing catch with her children, tossed a stuffed animal (specifically, the crab Sebastian from the Little Mermaid) in the air and it hit the sign, causing it to fall. Laborde confirmed the same at his deposition. Nonetheless, Howard alleged that Target’s negligence caused the accident, and she sought various damages for her resulting injuries.
Howard hired Mitchell Wood as a liability expert to support her theory of the case. Target argued that Wood should be precluded from testifying for a myriad of reasons.
Architecture Expert Witness
Mitchell Wood holds degrees in architecture and civil engineering, has been a licensed architect for 36 years and a licensed commercial general contractor and residential builder for more than 25 years. He owns an architectural design and planning firm that performs residential and commercial design services, building and safety code reviews, site inspections, and project management. He also owns a residential and commercial building business. Wood has been involved in commercial and retail building design projects, including designing safe walkways. He has been accepted as an expert witness by Louisiana federal and state courts in the fields of construction, inspection, project management, site safety, architecture and design, and building codes.
Wood, after reading the complaint and Laborde’s deposition, studying photographs of the accident scene and the sign, and examining the stuffed animal (which weighs 1.27 ounces), issued a report in which he opined “that the metal/wood sign was not anchored in or attached to the support bracket in a secure manner.”
He stated that he deduced this opinion from the relatively light weight of the stuffed animal, which he said should not have been able to detach the heavier sign from the bracket.
Wood further opined that Target knew, or should have known, of the unsafe manner in which the sign was attached to the overhead bracket. And he stated that “Target’s failure to safely attach this metal/wood sign to the support bracket in question created a hazardous condition which resulted in an unreasonable risk of harm to its customers” that “could have been easily rectified by properly anchoring the metal/wood sign with a screw and/or bolt.”
Finally, according to Wood, “the hazardous condition and unreasonable risk of harm created by Target is a ‘prima facie’ cause and cause-in-fact of Howard’s injuries.”
Parties’ Positions
First, Target argued that, as an architect and general contractor, Wood is unqualified to render opinions in this matter because he does not have any experience or qualifications related to retail signage or falling merchandise claims, has never published on those subjects, and is not a retail safety expert. Next, Target contended that Wood’s opinions are unreliable because he did not inspect the sign, did not take into account Laborde’s actions as a cause of the accident, and did not conduct a duty-risk analysis before concluding that Target was at fault. Finally, Target argued that Wood’s opinions that a dangerous condition existed and that Target knew, or should have known, about it should be excluded as improper legal conclusions that will not assist the jury.
In opposition, Howard argued that Wood is qualified to render the opinions he stated in his report because he has decades of experience as an architect and contractor, including experience working on the design and safety of commercial buildings. She then recounts counsel’s efforts to arrange for Wood to inspect the property and blames Target for the lack of inspection. Howard contended that Wood’s opinions are relevant and reliable because he can testify as to the difference in the weight between the objects involved – a 1.27 ounce stuffed animal as compared to a 2.79 pound sign – and explain that the toy should not have been able to dislodge the sign if the sign was secured properly.
Howard also argued that Wood can explain the cost-benefit analysis regarding Target’s layout and alterative signage attachment systems. Finally, Howard argued that Wood’s opinions would be helpful to the jury because most jurors are not familiar with “retail signage attachment systems and general pedestrian safety precautions in a retail store setting.”
Analysis
Having weighed Wood’s report and qualifications against the arguments presented, the Court found that Wood’s education and experience qualify him to render the opinions expressed regarding the relative weights of the objects involved in the incident and available alternative methods for anchoring the sign. Those opinions are relevant and reliable. However, Wood may not offer any opinions as to ultimate factual or legal conclusions, including whether Target knew, or should have known, there was an unsafe condition, whether Target created an unreasonable risk of harm, and what constitutes a prima facie cause or cause-in-fact of the accident and injuries. These matters are reserved for either the factfinder or the Court.
Held
The Court granted Target’s motion in limine to exclude Mitchell Wood’s testimony as to precluding Wood from testifying as to ultimate factual and legal conclusions, including whether Target knew, or should have known, there was an unsafe condition, whether Target created an unreasonable risk of harm, and what was a prima facie cause or cause-in-fact of the accident and injuries. The motion is otherwise denied.
Key Takeaway:
Wood was barred from testifying as to ultimate factual and legal conclusions, but his education and experience qualify him to render opinions regarding the relative weights of the objects involved in the incident and available alternative methods for anchoring the sign.
Plaintiff Towanda R. Futrell filed this personal injury action on August 28, 2023. The action arises from a motor vehicle accident on Interstate 64 on December 16, 2022, when a tractor-trailer owned by AV Leasing, LLC, leased by Triton Logistics, Inc., and driven by Daniel Cramer, collided with a bus on which Futrell was a passenger.
Pursuant to Rule 26(a)(2) of the Federal Rules of Civil Procedure, on May 28, 2024, Futrell disclosed Dallas Lea, II, M.D. (“Dr. Lea”), as an expert witness in the field of orthopedic surgery who may be called to testify at trial. Futrell disclosed that Lea was expected to testify to: (a) Futrell’s injuries, including a broken right ankle, sprained left ankle, broken eye socket, and broken left jaw; (b) Futrell’s ankle surgeries; (c) Futrell’s “extensive physical medicine and rehabilitation”; and (d) his opinion that Futrell’s injuries, medical treatment, hospitalizations, “past and future pain and suffering, past and future medical expenses and medical costs and life care medical costs, and economic or non-economic related damages” are “a proximate cause of Defendant Daniel Cramer’s negligence.”
Futrell provided Defendants with a copy of Lea’s curriculum vitae. On or before July 9, 2024, Futrell also provided Defendants with Lea’s expert report-a life care plan for Futrell. The life care plan outlines Futrell’s treatment following the accident, Lea’s opinion that Futrell “will have chronic symptoms and residual disabilities resulting from the accident,” and a table containing Lea’s recommendations for Futrell’s “current and future care needs.”
On September 17, 2024, Defendants filed the pending motion in limine to exclude Lea’s opinion because he was not properly designated as an expert in life care planning and the opinions in his life care plan lack the requisite foundation.
Lea was not properly designated as an expert in life care planning
First, the Defendants asserted that Lea was not properly designated as an expert in life care planning. The Defendants noted that Lea was designated as an expert in orthopedic surgery who was expected to testify about Futrell’s injuries, Futrell’s treatment, and his opinion that Futrell’s injuries, treatment, past and future pain and suffering, past and future medical expenses, and life care costs were proximately caused by Defendant Daniel Cramer’s negligence.
Lea’s opinions lack the proper foundation and are speculative
Next, Defendants argued that Lea’s opinions lacked the proper foundation and were speculative. Lea never treated Futrell and did not interview her or her treating physicians prior to developing the life care plan. The life care plan was drafted based on Lea’s review of Futrell’s medical records.
Physical Medicine & Rehabilitation Expert Witness
Dallas Alexander Lea, II M.D. is an internationally recognized spinal cord injury physician, fellowship-trained, and double-boarded in Physical Medicine and Rehabilitation (PM&R) and Spinal Cord Injury (SCI) Medicine.
Errors in the Rule 26(a)(2) disclosure are harmless as Dr. Lea’s CV, life care plan, and deposition clarify his expertise and outline his proposed expert testimony
Futrell asserted that Defendants were provided with a copy of Lea’s CV, which put them on notice that Lea was a life care planner, board certified in physical medicine and rehabilitation, and Defendants were provided with his life care plan on July 5, 2024. During Lea’s deposition, Futrell’s counsel clarified that the designation of Lea as an orthopedic surgeon was due to a “typographical error.” Lea testified that he was not an orthopedic surgeon, but a specialist in spinal cord injury and in physical medicine and rehabilitation. Lea explained that he would not be testifying about causation or negligence, rather he would testify to Futrell’s “injuries and future care and needs,” and that he was asked to “review records, review the case, and produce a life care plan.”
The Court found that Futrell’s failure to identify Lea as an expert to testify about Futrell’s life care plan in the Rule 26(a)(2) disclosure served on May 28, 2024, was harmless. The Rule 26(a)(2) disclosure was inaccurate. Futrell’s explanation for the inaccurate disclosure—that it was a “typographical error”—is less than satisfactory.The inaccuracy also goes beyond simply misstating that Lea is an orthopedic surgeon, by wrongfully disclosing that Lea will testify about the cause of Futrell’s injuries. The disclosure did, however, include Lea’s expected testimony about Plaintiffs future medical care and expected costs over her lifetime. The provision of Lea’s CV and life care plan clarified his expertise and proposed testimony and Defendants were further able to clarify this with his deposition taken September 6, 2024.
Lea’s proposed testimony concerning Futrell’s life care plan is based on his medical expertise and will be helpful to a jury
Defendants also challenged several of the line items in Lea’s life care plan table, specifically house cleaning, ophthalmologist evaluations, an ear, nose, and throat evaluation, yearly visits to her primary care physician, and psychological counseling.
Defendants argued Lea did not know whether Futrell has familial support to take care of house cleaning or to what extent she has suffered emotional injuries and needs counseling. They concluded that the life care plan is speculative and not tailored to Futrell’s unique needs, and Futrell “provides no indication why Lea’s life care plan is more plausible than other possibilities of what she will require in the future.”
Lea explained that: (1) Futrell’s chronic symptoms and residual disabilities “were evident” in her medical records (2) the monthly housecleaning expense is for deep cleaning (3) the ophthalmologist evaluation and ear, nose, and throat evaluation were a precaution due to her jaw fracture and broken eye socket (4) the yearly visit to her primary care physician would be in addition to a routine yearly physical and would be necessary for pain management and pain management medications and (5) psychological counseling was included because of the mention of Futrell’s anxiety in the medical record.
The Court held that Lea reviewed and summarized Futrell’s past treatment, current treatment regimen, and future treatment recommended by her physicians. Lea then developed a life care plan projecting Futrell’s future costs based on this review. A certain amount of speculation is inherent in a life care plan that projects what will be needed in the future and hinges on future events. Permitting cross-examination regarding the facts and data Lea relied on to arrive at the future costs will allow the fact finder to determine the appropriate weight to assign to Lea’s testimony.
Held
The Court held that permitting Lea to testify about the life care plan he outlined for Futrell would not disrupt the trial. Lea, however, will not be permitted to testify about the cause of Futrell’s injuries and his testimony will be limited to the opinions outlined in his life care plan.
The Court found that Lea is qualified to testify as an expert witness and he is proposing to testify to relevant medical knowledge that will assist the trier of fact in understanding a fact in issue. Nor does the Court find that the probative value of such testimony is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. The Court found that Defendants’ concerns about the reliability of Lea’s testimony may be properly raised during cross-examination, but they are insufficient to persuade the Court to exclude Lea.
The Court denied Defendants’ motion in limine to exclude the expert opinions of Dallas Lea, II, M.D.
Key Takeaways:
The Rule 26(a)(2) disclosure was inaccurate. Futrell’s explanation for the inaccurate disclosure—that it was a “typographical error”—is less than satisfactory.The inaccuracy also goes beyond simply misstating that Lea is an orthopedic surgeon, by wrongfully disclosing that Lea will testify about the cause of Futrell’s injuries.
A certain amount of speculation is inherent in a life care plan that projects what will be needed in the future and hinges on future events.
Case Details:
Case Caption:
Futtrell V. Av Leasing, LLC
Docket Number:
4:23cv118
Court:
United States District Court for the Eastern District of Virginia, Newport News Division
It all started when Lewis Youngman fell from his motorized wheelchair while driving on the entry gangway of the Defendant’s cruise ship, Mariner of the Seas. Youngman alleged that, as a result of Defendant’s negligence, a certain portion of the gangway was impermissibly steep, uneven, and mis-leveled. Consequently, Youngman argues, the uneven flooring caused his wheelchair to tip over. This alleged negligence then resulted in severe injuries.
Defendant sought to strike some of this expert testimony from Plaintiff’s expert witness, Frank Fore, and Plaintiff’s hybrid witnesses, Timothy Carter, M.D., and Mark Fulton, M.D. As to Fore (an engineer), Defendant sought to strike his opinion that Plaintiff would not have been ejected from his motorized wheelchair were it not for the impermissibly steep incline of the gangway. Additionally, Defendant sought to strike Fore’s testimony that, had one of Defendant’s crewmembers more appropriately assisted Plaintiff, in accordance with Defendant’s own internal policies, Plaintiff’s incident would not have occurred.
Further, Defendant sought to strike Plaintiff’s treating physicians, Carter and Fulton, for Plaintiff’s allegedly insufficient pretrial disclosure. Alternatively, if the Court deems Plaintiff’s disclosures to be sufficient, Defendant moved to strike certain testimony from Carter on reliability grounds.
Forensic Engineering Expert Witness
Frank A. Fore is a forensic engineer, his specialties include vessel dynamics, kinematics, and accident reconstruction; occupant and pedestrian biomechanical dynamics, kinematics and injury analysis, tribology and the engineering of interacting moving surfaces, including the study of the co-efficient of friction, lubrication, and wear.
Mark Fulton is a Board-Certified Diplomat by the American Board of Neurological Surgery and is a fellow American Association of Neurological Surgeons, who specializes in both complex spinal and intracranial surgery. He received his medical degree from University of Utah School of Medicine and served both a Residency program and a Surgical Critical Care Fellowship at the Ohio State University Hospitals.
Timothy D. Carter is a Board-Certified Diplomat by the American Board of Neurology, who specializes in neurology, internal medicine, and clinical neurophysiology. He received his medical degree from University of Florida School of Medicine and completed a year of internal medicine residency at the University of Virginia affiliated programs. His neurology residency and clinical neurophysiology fellowship were completed at the Medical University of South Carolina where he was also Chief Resident.
“Plaintiff would not have been ejected and injured had his mobility scooter not abruptly tipped over on the gangway’s steep slope … or if the Gangway and Transition Plate had not exceed[ed] the mandatory maximum slope requirements as set forth in the Americans with Disabilities Act and the Florida Building Code, inter alia.”
Defendant argued that this conclusion is inadmissible because Fore did not engage in sufficient—or indeed any—testing before reaching this conclusion. Specifically, Defendant avers that Fore had no information regarding the make or model of Plaintiff’s motorized wheelchair (which Fore mistakenly referred to as a mobility scooter throughout his report); did not know how much the wheelchair weighed; did not know how much Plaintiff weighed; did not know how many wheels the wheelchair had; did not consider, or even know, the speed at which the wheelchair was traveling; and lacked understanding of other important details before drawing his conclusion. Defendant also pointed out that Fore did no experiments or other tests before arriving at his conclusion.
Fore made no effort to gather pertinent facts before concluding that the slope of the gangway was the cause of Plaintiff’s injury
The Court held that Fore’s conclusion is borne almost entirely of “anecdotal experience or speculation.” Fore offered no awareness of any facts specific to Plaintiff’s situation, let alone that he considered those facts in his opinion. Specifically, Fore’s opinion is untethered to critical facts such as the speed at which Plaintiff was traveling, the assistive device in which Plaintiff was traveling, the weight at which Plaintiff was traveling, or other details which would be necessary to render a reliable, non-speculative methodology. To the contrary, Fore’s opinion is based entirely on the theory that the gangway appeared to him to be improperly sloped, juxtaposed against videos of other people ostensibly falling on the gangway. The Court “concluded that there is simply too great an analytical gap between the data and the opinion proffered.”
However, Plaintiff missed the operative purpose for which this testimony was offered: “Defendant’s conformity to industry safety standards.” Here, Defendant has wisely opted not to challenge the portion of Fore’s testimony that opines on whether the gangway conforms with industry standards. Given Fore’s stated experience and training, plus his review of the basics of the record in the case, the Court held that this conclusion does fall within the Daubert reliability standard.
The Court held that Fore’s opinion rests too strongly upon speculation, such that it is unreliable under Daubert and its progeny. And because Fore’s speculation-laden testimony that the allegedly improperly-sloped gangway was the but-for cause of Plaintiff’s injuries lacked legal reliability, the Court granted Defendant’s motion to strike that portion of Fore’s testimony.
However, the Court refused to strike Fore’s testimony that “certain building codes and guidelines or regulations were arguably applicable to the subject gangway and that any alleged deficiencies with the subject gangway may have contributed to Plaintiff’s incident.”
Fore may not, however, testify that Plaintiff’s “mobility scooter would not have tipped over” had Defendant complied with its policy
Defendant sought to strike the portion of Fore’s report that Plaintiff’s “mobility scooter would not have tipped over had an RCCL crewmember assisted [Plaintiff] as required by RCCL internal policies ….”
The Court decided that Fore may testify as to whether, in his opinion, Defendant complied with its own internal policies. Indeed, courts have held that it is not a legal conclusion to analyze a party’s actions against its internal policies, and to determine whether the party complied with those policies.
The Court held that Fore may not, however, testify that Plaintiff’s “mobility scooter would not have tipped over” had Defendant complied with its policy. This testimony certainly rings again of an ultimate legal conclusion; i.e., that Defendant’s alleged failure to comply with its policy was the but-for cause of Plaintiff’s injuries. Thus, this portion of Fore’s anticipated testimony is inadmissible as it is purely a legal conclusion.
Challenges as to the Disclosure of Mark Fulton and Timothy D. Carter
Mark Fulton and Timothy D. Carter are hybrid witnesses pursuant to Federal Rule of Civil Procedure 26(a)(2)(C). Both are treating physicians of the Plaintiff, who will offer opinions within their areas of expertise, as disclosed below, but who need not provide a written report.
In addition to no reports being disclosed, Defendant argued that Plaintiff’s description of the testimony was also vague. That description is as follows:
“The Plaintiff’s medical condition related to the injuries that the Plaintiff sustained as alleged in the Complaint, including Plaintiff’s current medical symptoms, past and future medical and surgical condition and treatment, injury causation, aggravation of injuries and preexisting conditions due to the subject incident, diagnosis, prognosis, permanency, disability, and impairment, … the reasonableness of the costs and necessity of the medical care and treatment that was performed on the Plaintiff and the nature and estimated cost of future necessary medical and treatment for the Plaintiff.”
While the Court doubted whether the disclosure’s description is sufficient, the Court readily found that the ample time to depose the expert witnesses cured any ostensible prejudice.
Challenges as to Carter’s Anticipated Testimony
Defendant lodged substantive challenges to Carter’s proffered testimony.
Carter is a neurologist who has been treating Plaintiff since 2017. In 2019, Carter seemed to indicate that Plaintiff was experiencing neurological issues, and in 2021 essentially reaffirmed Plaintiff’s 2019 condition. On August 21, 2022, Plaintiff experienced his fall, and on September 7, 2022, underwent neck surgery. Eight months after Plaintiff’s fall, in May 2023 (and again in June 2023), Plaintiff had a visit with Carter. At that point, Carter seemed to notice marked differences in Plaintiff, including significant declines in his “mental and cognitive status,” his “speech and language,” his “attention and concentration,” and other mental faculties. Now, Carter seeks to testify that “more likely than not … the confluence of events together [i.e., Plaintiff’s fall and subsequent surgery] certainly contributed to some degree of deterioration.”
Defendant argued that Carter’s causation opinions should be excluded because Carter relied too heavily on temporal proximity and failed to rule out other factors causing Plaintiff’s neurological demise. Specifically, Defendant argued that Plaintiff, per Carter, was beginning to experience decline before Plaintiff’s fall; that imaging showed Plaintiff’s brain was already losing size and blood flow; that Carter failed to rule out that Plaintiff’s recurring urinary tract infections, as well as opioid and cannabis use, contributed to Plaintiff’s cognitive decline; that Carter could not determine that Plaintiff’s cerebral fluid issues were caused by the fall; and that Carter could not connect Plaintiff’s bowel and bladder incontinence to the fall.
Defendant’s Unpersuasive Challenges to Carter’s Opinions are Meritless
Carter bases his findings on a years-long relationship with Plaintiff, myriad neurological testing over those years, unchallenged qualifications in neurology, Plaintiff’s accident and surgery, and observations based on those years of visiting with Plaintiff to conclude that “the confluence of events together certainly contributed to some degree of deterioration.”
The Court held that it suffices to pass muster under Daubert, regardless of whether Carter directly ruled out every other cause of Plaintiff’s sudden neurological decline, or in part considered temporal proximity.
And to the extent that Defendant challenged the certainty of Carter’s findings (i.e., that “the confluence of events” contributed to “some degree of deterioration”), the Court decided that the Defendant is entitled to draw out Carter’s certainty before the jury via cross-examination. But such an argument goes to the weight, not the admissibility, of Carter’s testimony.
Held
The Court granted Defendant’s motion to strike Frank Fore’s testimony that the allegedly improper gangway slope was the primary or but-for cause of Plaintiff’s injury (or in other words the accident would not have happened but for the slope).
The Court denied Defendant’s motion to strike Fore’s testimony that Defendant failed to comply with its internal policies.
The Court granted Defendant’s motion to strike Fore’s testimony that Defendant’s failure to comply with its internal policies is the primary or but-for cause of Plaintiff’s injuries (or in other words the accident would not have happened had Defendant followed its internal policies).
The Court held that any deficiency in Plaintiff’s disclosures of Mark Fulton and Timothy Carter will be cured so long as Plaintiff makes Fulton and Carter available for deposition within twenty days of this Order.
The Court denied Defendant’s substantive motion to strike the testimony of Carter.
Key Takeaways:
Defendant persuasively challenged the reliability of the methodology Fore employed to go a step further to conclude that the ostensibly-improper gangway was the but-for cause of Plaintiff’s injurious ejection. An ultimate causation opinion goes a great deal further than simply an opinion that industry standards were not followed. A causation opinion must be supported by greater analysis and investigation.
Fore’s testimony that “certain building codes and guidelines or regulations were arguably applicable to the subject gangway and that any alleged deficiencies with the subject gangway may have contributed to Plaintiff’s incident” certainly falls within his expertise and experience. And the work he undertook to reach that more limited opinion is sufficient for Daubert purposes.
This case arises from a high-speed, single vehicle collision into a tree. After the collision, the vehicle caught fire and exploded. Plaintiff Jade Burch was the front seat passenger in the vehicle.
As a result of the collision, Burch broke her pelvis, femur, tibia, and seven ribs. She required emergency leg surgery. Burch also suffered burns on her left foot, which required a skin graft. To date, Burch has incurred over one million dollars of medical expenses and will have at least one more surgery in the future.
Defendant hired Marilyn Pacheco to give testimony “regarding the reasonableness of medical charges for medical services provided.
Pacheco opines that “the $900,343.05 in billed charges on or after 10/25/21 is excessive and the reasonable value of the past medical care received by Plaintiff is $429,553.74.” Plaintiff argued Pacheco’s opinions must be excluded because she is not qualified to offer them, they are unreliable and unhelpful to the trier of fact under Fed. R. Evid. 702 and Daubert and its progeny, and her opinions impermissibly inject collateral source into this case under Georgia law.
Medical Billing Expert Witness
Marilyn Godoy Pacheco has over 30 years of experience in establishing medical charges, medical billing, collections, pricing, and third-party payer contract negotiations and has been qualified and has testified as an expert forensic medical bill auditor in state and federal trials and arbitrations on approximately 638 occasions. She has 18 years of experience managing the medical billing department of a medical practice with 10 physicians; became a Certified Professional Coder from the American Academy of Professional Coders in 2012; founded E&M Billing Services, a medical billing service for multiple independent physician practices filing 1,000 claims per month, in 2004; been the director of Miller Children’s Subspecialty Group since 2005 where she provides oversight of the medical billing department, contract negotiations, and credentialing of 26 specialty medical groups with 90+ physicians; and since 2012, she has provided expert testimony for medical billing and auditing services for Elevate Services, Inc.
Plaintiff first challenged Pacheco’s qualifications, arguing she is not qualified to offer opinions about what an Augusta hospital (or any Georgia hospital) should have charged for Plaintiff’s medical treatment. Plaintiff argued while Pacheco may be qualified to assign the right billing codes to the medical services provided at Doctor’s Hospital, she is not qualified to use those codes to determine a reasonable fee in this case. However, the Court held that the Defendant has met its burden of demonstrating Pacheco is qualified as a medical billing expert.
Plaintiff pointed out that Pacheco held only a high school diploma and lacked formal training in finance or economics. Moreover, she had no professional experience with pricing medical procedures and services in the state of Georgia. Despite this, Pacheco’s extensive experience in medical billing qualified her as an expert. She asserted that no specific academic degree existed for medical billing professionals, who do not need to be physicians or healthcare providers. As a medical billing expert she has specialized knowledge on industry-specific requirements “including ICD-9, ICD-10, CPT, HCPCS, APC, DRG, and NDC coding, rules, and regulations related to each code set and regional/geographic pricing.”
B. Pacheco’s Methodology and Reliability
The Court found Pacheco’s methodology is sufficiently reliable for admissibility, and the weaknesses in the data she relies on in conducting her methodology is appropriately addressed on cross examination. To form her opinions, Pacheco used a multi-step process to review and audit the medical charges to determine the reasonable value of the services provided.
First, Pacheco analyzed Plaintiff’s past medical records, billing data, and medical cost benchmarking resources over the period of Plaintiff’s treatment in Augusta.
Second, she applied geographic-specific pricing to determine the reasonable marketplace value for the same services within the same community within the same year.
Third, she conducted a market analysis of the local medical community for similar services based on published data “to identify additional evidence of reasonable marketplace value and further validate the results of the audit.”
Plaintiff argued Pacheco’s methodology simply consists of plugging codes into databases from which she picks the “reasonable” value for the medical services; she cannot explain the origin of the data in these databases; she did no independent research in the Augusta or Georgia healthcare market to determine what hospitals charge for similar services; and therefore neither the Court nor the jury can test whether the databases are accurate and reliable. But these arguments are appropriately addressed on cross examination.
Moreover, the methodology and data sources Pacheco employed have been peer reviewed in 2013 by Gerard Anderson, Ph.D., a widely known expert in the field of healthcare services pricing, and again in 2023 by a panel of experts including Professor Emeritus Gerald F. Kominski, Ph.D,; Orthopedic Surgeon Stewart L. Shanfield, M.D.; QA Auditor and Coder Vivian Washington, CPC, COC, CPMA, CRC, CPC-1; and Healthcare Administrator Andrew Bowen who found the methodology “sound, reliable, and applied appropriately using industry standard data.”
C. Helpfulness to the Jury
The Court is also unpersuaded by Plaintiff’s contention that Pacheco’s opinions are not helpful to the jury. The average lay person does not know what hospitals charge for healthcare services or understand how they generate the prices. Pacheco’s opinions address coding issues and whether the correct billing codes were applied, removing charges for improper packaged services, which is beyond the understanding of the average lay person and will assist the jury in determining whether Plaintiff’s medical expenses are reasonable.
D. Collateral Source Rule
The collateral source rule bars the Defendant from presenting any evidence as to payment of expenses of a tortious injury paid for by a third party and taking any credit toward the Defendant’s liability and damages for such payments.” But the Eleventh Circuit has rejected this challenge to similar medical billing experts, explaining “Defendants were properly allowed to argue that medical charges were unreasonably high,” and such expert testimony “did not violate the collateral source rule.” Here, Pacheco does not opine that the medical expenses should be reduced by insurance payments, write-offs, or write-downs.
The Court held that her testimony as to how the charged fees compare to the market is relevant to the reasonableness inquiry and does not “purport to present evidence that a third party paid for or should pay for the expenses of the tortious injury allegedly caused by Defendant’s negligence; accordingly the collateral source rule does not apply.”
Held
In conclusion, the Court denied Plaintiff’s motion to exclude the testimony of Defendant’s medical billing expert witness, Marilyn Pacheco.
Key Takeaway:
Not only is Pacheco qualified as a medical billing expert, she used a multi-step process to review and audit the medical charges to determine the reasonable value of the services provided followed by a detailed analysis of Plaintiff’s past medical records, billing data, and medical cost benchmarking resources over the period of Plaintiff’s treatment in Augusta. Moreover, her opinions address coding issues and whether the correct billing codes were applied, removing charges for improper packaged services, which is beyond the understanding of the average lay person and will assist the jury in determining whether Plaintiff’s medical expenses are reasonable.
Case Details:
Case caption:
Burch v. Cracker Barrel Old Country Store, Inc.
Docket Number:
5:22cv316
Court:
United States District Court for the Middle District of Georgia, Macon Division
This matter arises out of a medical malpractice action filed by Plaintiffs Tyler Grenier, individually, and Jenna Grenier, individually and as next friend of J.A.G., a minor, (collectively “Plaintiffs”) against Defendant United States of America (“Defendant”) for alleged medical negligence at Tripler Army Medical Center (“Tripler”) related to the medical care by Defendant’s employees for prenatal care and labor of Plaintiff Jenna Grenier (“Jenna”), and the subsequent delivery of J.A.G.
Severe physical injuries sustained by Jenna Grenier and J.A.G. are alleged as well as the negligent infliction of emotional distress to Plaintiff Tyler Grenier (“Tyler”) and Jenna; Plaintiffs’ loss of filial consortium; and Tyler’s loss of spousal consortium.
In the instant motion, Defendant sought to exclude certain portions of opinions rendered by Plaintiffs’ expert witness, Dr. Adam Levy, M.D., because: his opinions regarding estimated fetal weight are unreliable; his opinions regarding Jenna’s operative delivery and using forceps resulting in excessive force are unreliable; his opinions about obtaining Jenna’s informed consent are unreliable; his opinions that Justin Pilgrim, D.O., and Asha Mada, D.O., were unqualified or incompetent are unreliable; his opinions that the medical care rendered to repair Jenna’s laceration injury are unreliable; and his opinions about the cause of the Minor Plaintiff’s injuries are unreliable and his deference on causation to a neonatologist acknowledged his lack of expertise.
Obstetrics and Gynecology Expert Witness
Dr. Adam Levy is a board-certified obstetrician gynecologist and has been a Fellow of the American College of Obstetrics and Gynecology since 1993. During his service in the Air Force he served as an OB/GYN specialist. He currently supervises and instructs residents in a high-risk pregnancy population labor and delivery.
Plaintiffs argued that Levy’s opinion that Defendant’s physicians failed to appreciate the risk for delivery complications because pre-delivery fetal growth was beyond the norm comports with accepted medical literature and therefore his opinion that the physicians who chose to deliver with forceps fell below the standard of care is reliable. As to Levy’s opinions regarding operative vaginal delivery, Plaintiffs argued that they are based on medical records and literature, and thus reliable.
Plaintiffs argued that Levy’s opinion that Jenna was not given a meaningful choice as to the method of delivery is “consistent with the modern standards of the medical community, his own deposition testimony, and thus [is] reliable and should not be excluded.” As to Levy’s opinions regarding the standard of care provided by Pilgrim and Mada in proceeding with forceps delivery, Plaintiffs pointed to his education, work and training in the area of high-risk obstetrics in a teaching hospital as qualifying him to render his opinions and submit that qualifications go to weight and not admissibility.
As to Levy’s opinion that the repair of the perineal laceration was done incorrectly, Plaintiffs submit that he is qualified to opine on the repair based on his education, training and experience. Plaintiffs submit that Levy’s opinions “regarding the traumatic birth being the cause of injuries to J.A.G. and his mother” are based on risks identified in medical literature and thus reliable.
Levy opined that “[t]he breaches of the standard of care of [J.A.G.] has caused brain damage” and that “cesarean delivery would have prevented both the newborn birth injuries and maternal injuries in this case.”
Levy’s opinions relate to the issue of medical standard of care
Defendant did not challenge Levy’s opinions as being irrelevant nor that he lacks qualification in the field of obstetrics and gynecology. The Court ruled that Levy’s opinions relate to the issue of medical standard of care. If he has misconstrued the medical records, or his analysis is otherwise shaky, then pointing out any such failures is appropriate for cross-examination and not exclusion where the expert’s qualifications and relevance of his opinions are not in issue. However, because Levy has deferred to a neonatologist as to the cause of the minor Plaintiff’s injuries, the Court believed that he is not qualified to render opinion testimony that the physicians’ breaches of the standard of care for the minor Plaintiff “has caused brain damage among the multitude of injuries that are currently being treated and will require further treatment far into the foreseeable future[,]” and that opinion is excluded.
As for his opinion regarding Jenna’s statements about whether she gave informed consent; the Court held the information to be factual because it did not require the assistance of an expert as required by Rule 702. The Court also excluded his opinion about Mada’s motivations. His conclusion that Jenna’s expressed desire for cesarean delivery was also ignored, was considered speculative at best.
Held
The Court granted in part and denied in part the Defendant’s motion to exclude the expert report and testimony of Dr. Adam Levy, M.D.
Key Takeaway:
Defendant did not challenge Levy’s opinions as being irrelevant nor that he lacks qualification in the field of obstetrics and gynecology. However, because Levy has deferred to a neonatologist as to the cause of the minor Plaintiff’s injuries, the Court believed that he is not qualified to render opinion testimony that the physicians’ breaches of the standard of care for the minor Plaintiff is the cause of brain damage.
The Plaintiffs — Carmelo Leon and Wanda Leon — brought this action against the Defendants — United Industries Corporation (“UIC”), Spectrum Brands, Inc. (“SBI”), Cutter, and Home Depot U.S.A., Inc. (“Home Depot”) — after Carmelo Leon sustained burn injuries during an incident involving a mosquito-repelling candle manufactured and sold by the Defendants.
The Defendants initially moved to exclude the testimony of the Plaintiffs’ expert, Courtland Imel. In this case, the Defendants challenged Imel’s testimony on the second factor under Rule 702: whether the proposed expert opinion is based upon reliable data and methodology.
FDA Expert Witness
Courtland Imel is a senior consultant with experience in product development, quality, validation, training, regulatory compliance, and regulatory submissions (IND, NDA, ANDA, 510K, PMA, and DMF) for pharmaceutical, medical device, nutraceutical, cosmetic, and vet products. He has 36 years of experience in the FDA regulated industry.
Imel started Ceutical Labs to provide the needed infrastructure that many companies lack, but require to manage projects and daily activities. He has a Bachelor of Science degree in Chemistry from Baylor University.
Imel’s expert report contains four general “possible causes for candle fires.” However, the report did not contain an opinion as to the cause of the candle fire in this case. In fact, Imel testified that he can test his hypothesis in his lab but had not yet. In Imel’s deposition, he confirmed that he “had not done any work in this case to rule in or rule out any of those possible explanations.” Therefore, the Court held that Imel’s opinions are not based on reliable data and methodology.
The Plaintiffs argued that Imel “can still test his theories before the time of trial and render an opinion.”
For a Court to determine whether an expert opinion is admissible, that “opinion requires some explanation as to how the expert came to his conclusion and what methodologies or evidence substantiate that conclusion.” Therefore, it is at this stage of the litigation that the Court requires information about the tests and data underlying Imel’s testimony. The time for discovery in this case has passed, and Imel cannot now go back and conduct the testing to support his hypotheses.
Held
The Court granted the Defendants’ motion to exclude Courtland Imel’s expert testimony.
Key Takeaway:
Imel was yet to test his hypothesis in this case and he had not done any work in this case to rule in or rule out any of the possible explanations. While testing is not an absolute prerequisite for admitting an expert opinion, it is usually critical to show that an expert “adhered to the same standards of intellectual rigor that are demanded in their professional work.” The Court held that Imel’s expert report did not contain an opinion as to the cause of the candle fire in this case.
