This case stems from a rear-end, chain-reaction accident. Plaintiffs alleged that, on or about June 16, 2019, Plaintiff Miranda Allen was driving northbound on Interstate 5 in Skagit County, Washington, with Plaintiff J.M. as a passenger in her vehicle.
While Plaintiff Allen’s vehicle was stopped in traffic, Defendant Martin Barratt, also driving northbound on Interstate 5, rear-ended Plaintiff Allen’s vehicle, “caus[ing] Plaintiff Allen’s vehicle to crash into the rear of the vehicle directly in front of them.” As a result of the accident, Plaintiff Allen allegedly sustained substantial and permanent injuries.
On February 3, 2025, the Parties timely filed respective motions to exclude expert testimony. First, Plaintiffs filed a motion to exclude the expert testimony of Dr. Michael Hatzakis, Defendants’ physiatrist expert. Later that day, Defendants filed a motion to exclude the expert testimony of Dr. Leah Keylard, Plaintiffs’ audiologist expert.
Physical Medicine And Rehabilitation Expert Witness
Dr. Michael Hatzakis has been board certified in Physical Medicine and Rehabilitation for the last 20 years.
Hatzakis worked as an engineer for almost a decade before entering medical school at Stanford University School of Medicine in California. While attending medical school, he also worked in the department of Electrical Engineering at Stanford, Neurosurgery and Interventional Radiology. Among other projects, he developed neural prosthetic devices under a joint program between Stanford medical school and the Department of Electrical Engineering. He did his residency training in Physical Medicine and Rehabilitation at Thomas Jefferson University Hospital in Philadelphia, PA.
Over the last five years, through his leadership in the American Academy of Physical Medicine and Rehabilitation (AAPM&R), he has spearheaded one of the most ambitious “big- data” projects to improve the quality of care for individuals with low back pain, and, with neurological disorders.
Audiology Expert Witness
Leah Wilkinson Keylard is a clinical audiologist and has been practicing since 1999.
She has a strong background in diagnostic and rehabilitative audiologic techniques. She holds a Doctor of Audiology (Au.D.) from the Arizona School of Health Sciences.
Discussion by the Court
Michael Hatzakis
Plaintiffs sought to exclude the expert testimony of Michael Hatzakis as insufficient under Federal Rule of Evidence 702.
Plaintiffs represented that Hatzakis produced an initial expert report in November 2023 where he opined, inter alia, that Plaintiff Allen’s injuries had been proximately caused by the motor vehicle collision at issue in this case.
According to Plaintiffs, Hatzakis’ opinions in the November 2023 report concurred with other expert testimony in the case: Hatzakis agreed that Allen suffered from the injuries and damages the other expert and independent medical examiners had found.” On November 26, 2024, however, Hatzakis provided Plaintiffs with an addendum to his original report. In the addendum, Hatzakis diverged from his original findings, opining that “none of Allen’s injuries or damages were caused by the collision, in direct contrast to his first report.”
Plaintiffs’ Grounds for Exclusion
First, Plaintiffs asserted that “Hatzakis has rendered opinions and conclusions which are contrary to scientifically accepted principles, and are based upon inaccurate and incomplete information.” Second, Plaintiffs asserted that Hatzakis’ opinions and conclusions “are . . . in direct contrast to the one other matter [Plaintiffs’ counsel] could find.”
a. Opinions “Contrary to Scientifically Accepted Principles”
Opinions and conclusions are intellectual constructs that are dissimilar from, and incomparable to, scientific principles. In and of itself, an opinion or conclusion cannot contradict a scientific principle, unless it is an opinion or conclusion that specifically addresses the merits of that principle.
A sum, for example, cannot be “contrary” to, say, arithmetic; an x-ray impression cannot be “contrary” to radiology. To the extent that Plaintiffs intended to assert that Hatzakis’ opinions and conclusions are based on or derived from non-scientific principles—or, alternatively, are incorrectly based on or improperly derived from scientific principles—Plaintiffs do not sufficiently demonstrate that this is so. The Court held that the Plaintiffs relied on conclusory statements and did not connect their lengthy recitation of the rules of evidence to their cursory discussion of how Hatzakis’ testimony transgresses those rules.
Moreover, Plaintiffs’ argument that Hatzakis’ opinions and conclusions are based upon inaccurate and incomplete information also failed. Plaintiffs did not provide any indication that Hatzakis reviewed any data that were factually wrong or otherwise erroneous. Plaintiffs suggested that Hatzakis might have based his opinions on an incomplete set of records, but not that those records were, however scant, faulty. According to the Court, the fact that an expert might have based their opinion on incomplete records is not sufficient grounds for exclusion under the Daubert standard. Rather, such a critique “goes to the weight of his opinions rather than their admissibility.”
b. Opinions “in Direct Contrast” with Other Opinions
As to Plaintiffs’ second basis for excluding Hatzakis’ testimony, it simply did not make sense. Plaintiffs asserted that Hatzakis’ opinions and conclusions are “in direct contrast to the one other matter [Plaintiffs’ counsel] could find, absent providing an adequate testimony list.” Taking Plaintiffs’ argument at face value, the Court is at a loss to see how Hatzakis’ opinions in an unrelated case have anything to do with his opinions in this one. Unless the facts, circumstances, and damages that were the subject of Hatzakis’ opinions in the other matter are directly comparable to Plaintiff Allen’s injuries and damages here—and Plaintiff does not provide any evidence indicating that they were—then it is not clear how those opinions and conclusions could logically be “in direct contrast” to the opinions and conclusions at issue in this case.
To the extent Plaintiffs asserted that Defendants should have provided more robust disclosure with respect to Hatzakis’ testimony either before or after his deposition, the Court noted that Plaintiffs had Hatzakis’ list of testimony as early as November 20, 2023, yet waited more than a year—until December 5, 2024, one day after discovery motions were due and just 11 days before Hatzakis’ scheduled deposition on December 16, 2024—to raise the issue of the adequacy of the list of testimony.
c. Opinions Based on “Erroneous Assumptions”
Finally, as to Plaintiffs’ third basis for excluding Hatzakis’ testimony, Plaintiffs did not identify any of the purported “erroneous assumptions” not in the record upon which Hatzakis’ opinions are based. As discussed above, it appears that Plaintiffs objected to the size of the body of evidence that Hatzakis reviewed when forming his opinions, not the evidence itself. The Court ruled that such a deficiency can be borne out in cross examination and need not form the basis for exclusion.
Leah Keylard
Plaintiffs chose to list Dr. Leah Keylard, an audiologist, as a retained expert witness under Rule 26(a)(2)(B), meaning she was required to provide a written report.
Defendants sought to exclude the testimony of Keylard. Keylard opined on Plaintiff Allen’s alleged injuries. Unlike Plaintiffs’ other expert reports disclosed under Rule 26(a)(2)(B), Keylard’s report is captioned as a “chart note,” not an expert report, and it is only three pages long.
Although Keylard’s report refers to a “[r]eview of medical records as well as described history of noise provided by the patient,” the report does not discuss any specific documents or medical records that informed Keylard’s opinion and provides only a cursory summary of the results of three diagnostic tests. Indeed, the “report” reads much like it is labeled: as a healthcare provider’s note prepared subsequent to a patient encounter, not a studied synthesis and analysis of diagnoses and data from multiple sources.
Defendants argued that the brevity of Keylard’s report, as well as its lack of specific detail, particularly with respect to the sources upon which Keylard has based her conclusions, leaves the report short of the requirements that Rule 26(a)(2)(B) prescribes for an expert report.
Defendants’ Grounds for Exclusion
a. Rule 26(a)(2)(B)
As Defendants pointed out, Keylard’s report is a “‘chart note’ and not a full report.” The Court held that a “chart note” is not a proper expert report under Rule 26(a)(2).
Indeed, when presented with expert reports similar to that of Keylard, courts have excluded the testimony as having been insufficiently disclosed under Rule 26(a)(2)(B).
Keylard’s report refers to “records relating to [her] independent medical evaluation but d[oes] not provide records of that evaluation,” leaving Defendants “[without] the necessary records to counter-designate a rebuttal expert.”
For their part, Plaintiffs argued, inappositely, that Keylard’s Rule 26(a)(2)(B) report was sufficient because “Defendant[s] had an opportunity to depose Keylard and chose not to.” This is beside the point. The relative sufficiency of a Rule 26(a)(2)(B) report is not enhanced by the opposing party’s decision not to depose its author—in fact, the rule contemplates the exact opposite relationship between disclosures and depositions.
b. Rule 37(c)(1)
Plaintiffs argued that Keylard’s testimony should not be excluded, because “[e]xclusionary sanction based on discovery violations are [sic] generally improper absent undue prejudice to the opposing side.”
This misstates the law, which provides that “information may be introduced if the parties’ failure to disclose the required information was substantially justified or harmless.”
Plaintiffs relied on “Defendant[s’] fail[ure] to depose Keylard” as demonstrative that the deficiencies in Keylard’s report were substantially justified or harmless.
As discussed above, this is not a germane argument with respect to violations under Rule 26 and exclusion under Rule 37. As the Seventh Circuit has held, “the [expert] report must be complete such that opposing counsel is not forced to depose an expert in order to avoid ambush at trial; and moreover the report must be sufficiently complete so as to shorten or decrease the need for expert depositions and thus to conserve resources.”
The Court thus found that Plaintiff’s deficient Rule 26(a)(2)(B) disclosure with respect to Keylard was neither substantially justified nor harmless. Moreover, given that discovery is closed, the deadline for dispositive motions has lapsed, and trial begins in approximately two months, the deficiencies cannot be easily remedied without radically reworking this case’s longstanding schedule.
Held
- The Court denied Plaintiff’s motion to exclude defense expert Michael Hatzakis.
- The Court granted Defendants’ motion to exclude Dr. Leah Keylard.
Key Takeaways:
- Opinions and conclusions are intellectual constructs that are dissimilar from, and incomparable to, scientific principles. In and of itself, an opinion or conclusion cannot contradict a scientific principle, unless it is an opinion or conclusion that specifically addresses the merits of that principle.
- Plaintiffs had plenty of time between the issuance of the most recent scheduling order and the lapsing of deadline for discovery motions to try to resolve the issue with Defendants and, if necessary, file an appropriate motion with the Court to obtain any needed information prior to Hatzakis’ deposition.
Case Details:
| Case Caption: | Allen V. Barratt Et Al |
| Docket Number: | 2:23cv474 |
| Court Name: | United States District Court, Washington Western |
| Order Date: | April 08, 2025 |
