Plaintiff, Mostafa Natour was injured in a car accident with a United States Postal Services delivery truck. Natour received medical treatment that consisted of imaging studies, chiropractic care, epidural injections, and pain management care. He sought to recover, among other things, his past medical expenses. Natour retained Alex Cruz, M.D. of Abacus Analytics as an expert on causation as well as the reasonableness and necessity of Natour’s medical expenses.
The Government argued that Cruz’s testimony about the reasonableness of Natour’s medical expenses should be excluded because: (1) Cruz did not employ valid reasoning or methodology and thus offered an unreliable opinion; and (2) Cruz is unqualified.
Orthopedic Surgery Expert Witness
Dr. Alex Cruz is a distinguished orthopedic surgeon specializing in spine surgery, with extensive training and recognition in his field. He earned his MD at the University of South Florida, followed by an orthopedic surgical residency and a spine fellowship at Baylor College of Medicine and University of Wisconsin, respectively. Favored for his conservative, patientfocused approach, Cruz excels in performing minimally invasive procedures for a range of spine conditions. His work has earned him significant recognition, and he holds memberships in the North American Spine Society and the American Academy of Orthopedic Surgeons.
Cruz testified that he did not utilize his own personal knowledge and experience when determining the reasonable cost of Natour’s medical care. Cruz instead relied solely upon the value generated by the Abacus Analytics website.
To begin with, Cruz’s methodology for determining the reasonable cost of Natour’s medical expenses was very simple: he typed in the CPT code and zip code, and the database generated a range of values. He then used that output in his report. He does not know how the figure was determined. Neither does he know anything about the underlying data. Cruz disregarded his own experience, even when it conflicted with the information that the database was giving him. He cannot explain how the Abacus Analytics website determines the “UCR” value of medical services. At his deposition, he did not “recall how it’s done” or know how the website aggregated the data from the various “industry standard databases.” The Court held that Cruz did not know much about the data within the industry standard databases or the differences between them.
He stated that his opinions relied on the Abacus Analytics website because he would “rather have [the UCR values] from an objective source” and did not “want to give . . . whatever [he thought was] correct . . . based on [his] own experiences.” Cruz stated that he never tried to make his own determination as to what the usual, customary and reasonable value was. The Court held that Cruz did not compare Natour’s charges to the amounts Cruz charges in his own medical practice or the amounts paid by the various private insurers with whom he works.
In conclusion, Cruz’s expert opinions are not based on reliable data and are not the product of reliable principles and methods.
Held
The Court granted Defendant’s motion to exclude Plaintiff’s retained expert Dr. Alex Cruz.
Key Takeaway:
In the context of medical billing, courts have held that an expert’s testimony about the reasonableness of medical expenses may be admitted when the expert utilized reliable databases and explained the methodology for determining the value of the medical care provided. Cruz, however, cannot explain how the Abacus Analytics website determines the “UCR” value of medical services. Cruz did not employ valid reasoning or methodology and thus offered an unreliable opinion.
Plaintiff sued Berry Petroleum Company for injuries incurred while pumping oil for transport as a crude oil truck driver for Savage Industries Inc. In both the initial disclosure and the supplemental disclosure at issue here, Plaintiff designated Edward R. Ziegler as an “oil field, oil tank and oil tank’s ‘thief hatch’ safety expert as to all relevant safety issues involved in this injury incident.”
Berry agreed that Plaintiff complied with the deadlines concerning Ziegler’s initial disclosures and report. Ziegler’s deposition was taken December 16, 2022. Per the fifth amended scheduling order, expert discovery closed January 29, 2024. On April 12, 2024, Plaintiff filed his Second Supplemental Expert Reports containing an updated expert report from Ziegler. Berry moved the Court to exclude this updated report on the grounds that it is untimely and that the delay was not substantially justified or harmless.
Petroleum Engineering Expert Witness
Edward R. Ziegler is a petroleum and natural gas engineer with a law degree. He is also a registered Professional Engineer (Texas and Wyoming), a Certified Safety Professional (C.S.P.), and has been trained several times as an OSHA 500-series instructor. Currently, Ziegler is the American Society of Safety Engineers’ appointee to the ANSI Z49.1 welding and cutting safety committee, and he has served on other industry safety committees.
Besides, his diverse, international background includes oilfield, safety, pipeline, and construction employment. Particularly, he has extensive oilfield experience in drilling, completion, production, reservoir, and construction engineering—both onshore and offshore.
Under Fed. R. Civ. P. 37(c)(1), “if a party fails to provide information . . . as required by Rule 26(a) or (e), the party is not allowed to use that information . . . unless the failure was substantially justified or is harmless.”
Berry argued that “it will undoubtedly be prejudiced” if the report is not excluded and that this prejudice cannot be cured. Berry claimed that it will be prejudiced by increased costs, arguing that it will have to conduct a second Ziegler deposition, pay for its own experts to review the supplemental report, and the amount of prejudgment interest will be increased by delaying trial. The Court did not find this persuasive. Berry conceded that the supplemental report does not rely on new information, and further, there is no trial date set.
Next, Berry argued that the supplemental report will disrupt the trial because it will further delay the trial. As there is not yet a trial date set, the inclusion of the supplemental report does not disrupt the trial setting. Accordingly, the Court found that this factor did not weigh in favor of exclusion.
Finally, Berry argued that the untimely disclosure was willful because Plaintiff had waited so long to produce it. Berry also asserted that Plaintiff was using this supplemental report to add additional opinions or reinforce opinions already presented in the original report. They did not cite any part of the report to support this assertion. Berry also objected to Plaintiff’s explanation as to why he had filed the supplemental report. The Court did not need to consider Plaintiff’s explanation in finding that this factor did not weigh in favor of exclusion. Berry did not present evidence that suggested bad faith or willfulness by Plaintiff.
Held
The Court denied Defendant Berry Petroleum Company, LLC’s motion to exclude Plaintiff’s second supplemental expert reports containing an updated expert report from Edward Ziegler.
Key Takeaway:
Berry conceded that the supplemental report does not rely on new information, and further, there is no trial date set. As there is not yet a trial date set, the inclusion of the supplemental report does not disrupt the trial setting. In conclusion, the Court found that Berry did not present evidence that suggested bad faith or willfulness by Plaintiff.
Case Details:
Case Caption:
Skinner V. Berry Petroleum Company Et Al
Docket Number:
1:19cv124
Court:
United States District Court for the District of Utah, Central Division
This is a personal injury action stemming from an accident between two tractor trailers. On November 10, 2020, while operating a truck on behalf of his employer, Robert Hibbert was rear-ended by another tractor trailer.
Witnesses noted that he “did not stop and was slumped over the wheel”; the EMS report indicated that Plaintiff, Hibbert did not remember what happened.
Hibbert suffered a stroke on or about May 22, 2013 and alleged that the symptoms he exhibited after the accident are similar to those he exhibited around the time of his 2013 stroke. Plaintiff sought to have his treating physician, Dr. John E. Robinton, to testify that Plaintiff “hit his head and lost consciousness” as a result of the accident, that this impact caused a concussion, and that the concussion triggered a stroke.
In the “Impression” section of his report, Robinton made the following comment, which formed the basis for this motion: “Given the fact that the recent MRI revealed no evidence of an acute injury, I am hopeful that the present complaints and findings are related to a concussion.” Robinton also noted in a letter dated March 30, 2021 that, after reviewing Plaintiff’s neuropsychological assessment, “it did not appear that the report is absolute in [its] conclusion regarding etiology.” From this, Plaintiff argued, Dr. Robinton can testify regarding a possible concussion because “the issue of the concussion has not been ruled out.”
Defendant sought to preclude Robinton’s testimony that the November 10, 2020 accident caused any injury to Plaintiff.
Neurology Expert Witness
John E. Robinton is a neurologist in Montclair, New Jersey and is affiliated with multiple hospitals in the area, including Mountainside Medical Center at Hackensack Meridian Health and Saint Michael’s Medical Center. Firstly, he received his medical degree from Weill Cornell Medicine and has been in practice for more than 20 years. Moreover, Dr. John E. Robinton has expertise in treating Parkinson’s disease, neck pain and spine problems, non-Alzheimer’s dementia, among other conditions.
The Court found that there is no evidence in the record indicating that Plaintiff sustained head trauma or any other kind of injury in the accident, and Robinton’s remark only expresses “hope[] that the present complaints and findings are related to a concussion.”
Plaintiffs sought to have Robinton testify that another injury, e.g., a concussion caused by the accident, triggered Plaintiff’s condition merely because “[t]here is no etiology showing the cause of the Plaintiff’s stroke from this accident.” The Court held that the mere absence of evidence concerning etiology does not open the door to rank speculation as to what else may or may not have been the cause of the post-accident symptoms—and certainly this rank speculation does not clear the Daubert bar when it is expressed in the form of “hope.”
Plaintiff pointed to Stigliano v. Connaught Labs., Inc., which held that “treating doctors may testify about their diagnosis and treatment of [a patient’s] disorder, including their determination of that disorder’s cause.”
All Robinton offered was “hope that the present complaints and findings are related to a concussion”—far from a medical conclusion or diagnosis. The Court held that Stigliano, its progeny, and any cases interpreting New Jersey’s rules of evidence are entirely inapplicable to the question of whether Robinton’s testimony can be admitted. Moreover, even under Stigliano, Robinton’s testimony could not be admitted. His remarks regarding a possible concussion are not a “diagnosis,” but merely conjecture.
Held
The Court granted Defendants Flavors C. and Ricardo Ralat’s motion to preclude John Robinton’s testimony.
Key Takeaway:
To be admissible, an expert must base the conclusions of her testimony on “‘methods and procedures of science’ rather than on ‘subjective belief or unsupported speculation.’” Any testimony by Robinton that the accident caused an injury which triggered Plaintiff’s symptoms would constitute precisely the kind of “subjective belief or unsupported speculation” contemplated by Daubert to be in violation of Rule 702.
Case Details:
Case Caption:
Hibbert V. Flavors C. Inc. Et Al
Docket Number:
2:21cv13119
Court:
United States District Court for the District of New Jersey
A district judge in Nebraska admitted the testimony of an orthopedic spine surgeon despite lacking the required education, training and experience in physics, engineering, accident reconstruction or biomechanics.
Plaintiffs, Lisa Rentz Johnson and George Johnson, have brought a personal injury lawsuit involving an accident between two tractor-trailers in a parking lot. Lisa alleged she sustained physical injuries and disability because of the collision, including injuries to her head, neck, back, left arm, and left knee. George sought damages for alleged loss of consortium.
The Defendants retained Dr. Chris Cornett, an orthopedic spine surgeon with Nebraska Medicine, as an expert witness to perform an independent medical evaluation (“IME”) of Lisa.
The Plaintiffs filed a motion to exclude certain testimony and opinions found in Cornett’s report.
The Plaintiffs argued Cornett’s opinions related to the severity of the collision must be stricken and excluded from trial because he failed to provide the methodology by which he formed his non-medical opinions.
Orthopaedic Surgery Expert Witness
Dr. Chris A. Cornett, an orthopedic spine surgeon with Nebraska Medicine, has more than a decade of experience as a trauma doctor. He attended medical school at University of Nebraska Medical Center and also has a master’s degree in physical therapy from the UNMC Medicine School of Allied Health Professions. He is a member of the American Academy of Orthopaedic Surgeons (AAOS).
The Plaintiffs objected to Cornett’s description of the damage to the two vehicles based on the photographs he reviewed; Cornett’s noting, “The mechanism in this case and the photographs of the vehicles seem mild, and certainly not high energy in my opinion”; and his conclusion that he did “not see any reason, given this mechanism and the prior history, that one could medically state that this injury permanently aggravated or worsened those preexisting conditions.”
The Plaintiffs argued that since Cornett has no education, training and experience in anything other than orthopedics, all of his opinions on speed, impact and energy should be excluded.”
Cornett testified during his deposition that he did not see it was “reasonable medically that [Lisa] suffered a significant spine injury or a permanent worsening of a prior condition that ultimately required surgery.”
When Cornett was asked what qualifications he has “to assess the energy forces related to the impact of the case”, he responded, “I would say no qualifications, again, as a physicist or a biomechanical expert but just qualifications as taking Level 1 trauma call for over a decade.”
Cornett testified that through his experience as a trauma doctor, it is common to have some description of an accident, either through first responders directly or in subsequent reports.
The Court was satisfied that Cornett is sufficiently qualified and reliable to opine on the specific issues relevant to this case.
Held
The Court denied Plaintiffs’ motion to exclude certain testimony and opinions found in Chris Cornett’s report.
Key Takeaway:
Cornett lacked education in physics, engineering, accident reconstruction or biomechanics but testified that through his experience as a trauma doctor, it is common to have some description of an accident, either through first responders directly or in subsequent reports.
On March 22, 2021, Plaintiff Brandon Long, an employee of Helmerich & Payne International Drilling Co. (“H&P”), was supervising the de-rigging of an oil rig in the Unita Basin near Myton, Utah.
H&P hired a subcontractor to assist with moving the drilling rig and other equipment, which in turn hired Defendant J&C Enterprises, Inc. (“J&C”) to operate a crane as part of the de-rigging process. While Long was on the rig, employees of J&C allegedly removed some pins from a rig deck, which caused the load to shift and swing uncontrolled towards Long, hitting Long’s foot and pinning it between two other pieces of equipment. Long claimed J&C was negligent in securing the rig deck to the crane hook and has sued to recover for the injuries he sustained as a result.
In defense of these claims, J&C has designated Daniel T. Reinke as an expert in oil and gas operations to testify on its behalf. Reinke opined that Long’s injury was the result of his own actions.
Long filed a motion to strike Reinke’s opinions pursuant to Rule 702 as his “statements were simply lay testimony given the imprimatur of expert opinion and/or were unhelpful to the jury because they were untethered from any authority suggesting the customs and practices of the industry.”
Oil & Gas Expert Witness
Daniel Reinke is a professional engineer who has over 48 years of experience, both as an employee and consultant, in oil and gas operations. He has served as an operator, drilling engineer, reservoir engineer, and production engineer on over 2,000 oil and gas wells. He is the founder and president of an operating company which has served as operator and contract operator of more than 100 wells.
The Court admitted Reinke’s opinions that Long’s injuries were the result of his own actions
The Court held that since Long has not shown Reinke’s articulation of industry customs and practices is contrary to established standards or otherwise infirm, Reinke’s statement of those standards based on his own experience is sufficient for admissibility. In other words, there is nothing objectionable in Reinke’s statements that everyone on site has Stop Work Authority, that each employee is responsible for his own safety while working at the site and must follow his own employer’s safety policies, that each contractor performs specialized services requiring different skills and safety protocols, and that it is a basic safety rule of the oilfield not to locate oneself between two unstable pieces of equipment.
The Court added that Reinke’s opinion that J&C was not directing the work reasonably appeared to be an outgrowth of his observations that each contractor was responsible for its own piece of the de-rigging process and that, as the owner of the rig, H&P was responsible for directing the work.
Moreover, it is unlikely a lay jury could be expected to know the layout and components of an oil rig or how the various parts of the rig and the equipment involved in the derigging process move and interact with one another which is why the Court admitted Reinke’s opinions that Long’s injuries were the result of his own actions and not the fault of J&C, as well as his suggestion that Long would not have been injured had he located himself anywhere else.
According to Rule 704, the Court found that Reinke explained the bases of his conclusions as to the relative fault of each party, and to the extent his testimony may embrace an ultimate issue in the case, it seemed likely to “assist, rather than supplant, the jury’s judgment.”
One of Reinke’s opinions struck the Court as potentially problematic
However, Reinke’s conclusion that, “based on the incident report published by H&P, Long did not follow the safety policies and procedures of his employer” struck the Court as potentially problematic.
Since Reinke did not describe the contents of the report; it may be the conclusion whether Long violated his employer’s safety policies is self-evident from the document itself.
Held
The Court granted in part and denied in part the Plaintiff’s motion to strike the testimony of Daniel Reinke.
Key Takeaway:
The Court held that there is nothing objectionable in Reinke’s statements that everyone on site has Stop Work Authority, that each employee is responsible for his own safety while working at the site and must follow his own employer’s safety policies, that each contractor performs specialized services requiring different skills and safety protocols, and that it is a basic safety rule of the oilfield not to locate oneself between two unstable pieces of equipment. However, Reinke’s conclusion that, “based on the incident report published by H&P, Long did not follow the safety policies and procedures of his employer” struck the Court as potentially problematic since it was not at all apparent why it required expert interpretation.
On August 28, 2019, Plaintiff Annie Perrone (“Plaintiff”) commenced this diversity action against Catamount Ski Resort, LLC (“Catamount Ski Resort”) and Catamount Development Corporation (“Catamount Development”; together with Catamount Ski Resort, “Catamount” or “Defendants”) alleging negligence and gross negligence in connection with injuries Plaintiff suffered while skiing at Catamount Ski Area.
Plaintiff and Defendants each sought to preclude or limit the testimony of the opposing party’s experts as per Rule 702.
Plaintiff sought to preclude Defendants’ biomechanical engineering expert, Irving Scher, Ph.D., “from testifying at trial regarding the causation of Plaintiff’s injuries.” Defendants sought to: (1) limit the testimony of Plaintiff’s testifying doctor, Thomas S. Eagan, M.D., and (2) preclude or limit the testimony of Plaintiff’s snow sports expert, Stanley Gale.
Biomechanics Expert Witness
Irving Scher is a Principal and Biomechanical Engineer at Guidance Engineering and Applied Research. He specializes in biomechanical engineering and accident reconstruction. Scher evaluates product safety and performance for recreational sports equipment, injury prevention products, and mechanical systems. Moreover, he investigates human injuries in accidents and product failures by using biomechanical engineering techniques that apply the principles of engineering to the human body.
Thomas S. Eagan is Board Certified in Orthopaedic Surgery; as such, he is a Diplomate of the American Board of Orthopaedic Surgery. He has been president of the Fulton County Medical Society. Eagan received his medical degree from Albany Medical College, and continued his orthopaedic training at Dartmouth Medical College in New Hampshire. Also, he keeps in touch with advances in the field of orthopaedic surgery through his active participation in many respected medical societies, such as the American Medical Association, the American Academy of Orthopaedic Surgeons, and the New York State Medical Society.
Stanley Gale has 51 years of on-snow ski safety training and experience. He is a veteran ski patroller of almost 40 years. He has been a ski and snow safety expert witness for over 14 years. Gale routinely travels to ski resorts, tubing hills, sledding hills and snowmobile locations. As a result, he is well versed in the latest custom and practices for safety and mitigation of risk. Moreover, he is aware of the practical applications and day to day experiences of skiers and sledders.
Plaintiff contended that Scher is “not a medical doctor” and did not have “the educational background or training” to provide an opinion as to the medical causation of Plaintiff’s pelvic fracture sustained in the ski accident.
Defendants asserted that Scher will not testify as to Plaintiff’s medical injuries, and that he relied on the review of a board-certified radiologist to identify and confirm the injuries Plaintiff sustained to her pelvis.
The Court found Scher qualified to testify regarding general causation, including the efficacy of whether commercially available padding on an object a Plaintiff collided with while downhill skiing could have prevented or reduced the severity of a Plaintiff’s injury.
Plaintiff further contended that because Scher never went to the accident site, he should not be able to testify that “a non-beginner skier should be able to stop or change direction to avoid open, obvious, visible, and marked snow making (or other obstacles) that are 135 feet away.”
The fact that Scher did not personally visit the site of the accident did not, by itself, make his testimony unreliable.
B. Defendants’ Motion in Limine
1. Thomas S. Eagan, M.D.
Eagan’s Opinion is Based on the Review of Plaintiff’s Medical Records
Defendants contended that Plaintiff was treated by “a number of orthopedists following her injury,” however, Plaintiff is only calling Eagan, a “regular courtroom witness,” whose office is over 150 miles from Plaintiff’s residence, to testify. Defendants relied on several cases for the proposition that “a non-treating physician, hired only to testify as an expert witness, may not state the history of an accident as related to him by the Plaintiff or testify as to Plaintiff’s medical complaints . . . nor can the expert summarize and read statements and findings contained in the reports and records of Plaintiff’s treating physicians, where reports and records were not in evidence and treating physicians did not testify at trial.”
In response, Plaintiff argued that Eagan’s opinion is not relying on hearsay, because he “conducted a physical examination of Plaintiff” and his opinion is based on the review of Plaintiff’s medical records.”
The Court found that Eagan may testify based on his examination of Plaintiff and the medical records he relied on in forming his opinion which are admitted into evidence, as long as he lays the proper foundation.
Eagan is qualified to testify as to the causal relationship between Plaintiff’s complaints and her reported injury
Defendants next argued that there was “no evidentiary foundation” in the medical records for Eagan’s opinions that: (1) Plaintiff “suffered a torn labrum of the right hip”; (2) Plaintiff will “more likely than not develop arthritis of the right hip and require a hip replacement during her lifetime”; and (3) Plaintiff “is not able to perform heavy labor or place excessive loads on her injured pelvis.” The Court held that Defendants’ arguments “were more appropriate for cross examination” of Eagan at trial.
Defendants also asserted that Eagan was not qualified to testify based on his diagnostic tests “whether or not there is symptom magnification” by Plaintiff because this falls under the purview of a psychologist. The Court found that Eagan was qualified to testify as to the causal relationship between Plaintiff’s complaints and her reported injury, as long as he lays a proper foundation.
Defendants argued that Eagan’s opinion that Plaintiff “will require cesarean section for delivery of any children” should be precluded because “there is no evidentiary basis.” The Court disagreed and held that Defendants’ challenge is an appropriate subject for cross-examination.
Defendants added that Eagan’s opinion regarding whether Plaintiff will require a cesarian section for delivery of any children is cumulative of Plaintiff’s OB/GYN witness. The Court did not have sufficient information regarding the OB/GYN witness’ testimony to determine whether Eagan’s testimony would be cumulative.
2. Stanley Gale
To begin with, Defendants first argued that Gale is not qualified to give expert testimony because he did not “have the levels of knowledge, experience, or skill in the area of accident reconstruction or ski area operations” necessary to provide an expert opinion. Defendants asserted that his opinions were “speculative and conclusory.” The Court found that Gale is qualified to testify as to the customs and practices of the ski industry, including safety standards and practices.
Defendants next argued that Gale should be precluded from testifying that the snow gun was not marked, and his expert disclosure that the snow gun was not marked should be stricken. They contended that photographs obtained from Plaintiff showed that an orange lollipop marked the snow gun with which Plaintiff collided.
Defendants asserted that because Gale previously gave testimony that properly placed Catamount lollipops [marking snow guns] met the State Code, Gale should be precluded from testifying that the snow gun was unmarked. The Court disagreed and refused to exclude Gale’s testimony regarding that aspect.
Despite Defendant’s objections, the Court held that Gale had the requisite expertise to opine on practices related to padding a snow gun located on a ski trail. However, Gale must testify based on his personal knowledge, and he must explain how his personal experience leads to his conclusions.
Moreover, Defendants contended that Gale should be precluded from testifying that a ski trail “is not limited to the groomed surface” because he previously testified “on multiple occasions that there is a difference between grooming beginner and expert trails.” The Court held that Gale’s previous testimony was insufficient to preclude him from testifying whether a ski trail is limited to the groomed surface.
Held
To sum it up, the Court denied Plaintiff’s motion in limine to preclude Irving Scher’s testimony. The Court reserved decision on Defendants’ motion in limine as to a certain aspect of Thomas Eagan’s testimony until trial but denied the Defendants’ motion in limine to preclude or limit Stanley Gale’s testimony.
Key Takeaways:
The Court insisted on a proper foundation for each of the expert’s opinions. That is to say, Courts routinely examine the factual bases of expert opinions before arriving at a decision.
