Dezmen McBride was booked into custody at the W.C. “Dub” Brassell Detention Center on May 21, 2021. McBride died 15 days later on June 5, 2021, at the age of 18 years old.
Deborah McBride commenced this action alleging that County Defendants and Separate Defendant Lieutenant Samuel Baker, Jr., in his individual capacity: were deliberately indifferent to McBride’s serious medical needs; used excessive force against McBride; were negligent; were liable for McBride’s wrongful death; violated the Equal Protection Clause; and intentionally inflicted emotional distress on McBride. After McBride’s death, Tanaria Heard was substituted as the Special Administrator of the Estate of Dezmen McBride.
County Defendants requested that the Court exclude the testimony of William Rutledge because, according to County Defendants, Rutledge’s testimony and opinions “would not assist the trier of fact, contain irrelevant opinions and a legal opinion, invade the province of the jury, contain speculation, and would causes [sic] juror confusion in the least.”
General Surgery Expert Witness
William L. Rutledge spent four years as the medical director of Forest Park Medical Clinic and Cumberland Park Medical Clinic, besides serving as an adjunct faculty member in the biology department of Arkansas Baptist College.
For nearly two years prior, Rutledge was a research assistant professor for University of Arkansas’ Department of Surgery. He spent a handful of years before as a staff physician, educator, and medical director, preceded by 16 years as a general surgeon for Arkansas Surgical Associates/William L. Rutledge M.D., P.A.
Rutledge also performed duties as a surgeon for Arkansas Trauma Surgeons, LLC from 1997 to 2000, and was the medial director for Meharry Alcohol and Drug Abuse Program in Nashville, Tennessee, from 1982 to 1984.
The County Defendants argued that Rutledge’s claim that County Defendants’ deliberate indifference was the cause of McBride’s death is a legal conclusion only the Court can make. Conversely, Heard contended that Rutledge’s opinions touching on a jury question shouldn’t lead to his testimony being excluded.
Rutledge’s report dated June 12, 2024, concerns whether the care that McBride received was proper and within care standards. Additionally, in his report, Rutledge provides his professional opinion in this matter based on a review of the following: the medical examiner’s report; medical records from Jefferson Regional Medical Center; attorney notes of timeline; call log and incident report from Jefferson County Sheriff’s Department; and a summary of the investigation.
Rutledge offered many opinions in his report, and he stated that he gave those opinions “with a reasonable degree of medical certainty.” Specifically, Rutledge opined, in part, that “although the CT scan showed no intracranial hemorrhage, McBride clearly exhibited multiple signs of increased intracranial pressure.” For example, McBride exhibited nausea, vomiting, headaches, visual changes, changes in behavior, weakness, inability to stand and walk, confusion, and possible seizure activity. Furthermore, Rutledge also opined that the failure to get McBride evaluated and treated between June 2, 2021, and June 5, 2021, “more probably than not caused his demise.” In addition, Rutledge opined that “McBride progressively worsened” on June 2, 3, and 4, 2021, “as personnel were deliberately indifferent.” Ultimately, Rutledge’s report concluded that “[t]he delay in diagnosis and treatment of Dezmen McBride due to deliberate indifference by jail personnel and nursing personnel led to his death on June 5, 2021.”
Analysis
County Defendants asserted that Rutledge’s opinion is “unhelpful to the trier of fact considering the prevailing law, and threatens to cause jury confusion—particularly in a case that is not complex .”
However, the Eighth Circuit Court of Appeals has determined in a series of cases that, when alleging a violation of 42 U.S.C. § 1983 based on an alleged delay in medical treatment, a Plaintiff’s failure to offer such evidence is fatal to his claim.
Therefore, the Court ruled that Rutledge’s opinions are relevant to the issues in this matter—namely whether County Defendants were deliberately indifferent to McBride’s medical needs and consequently contributed to or caused McBride’s death.
Moreover, that the state crime lab found McBride’s cause of death to be undetermined does not negate the relevancy of Rutledge’s opinions on McBride’s cause of death.
Proving deliberate indifference requires that the Plaintiff “prove that officials knew about excessive risks to his health but disregarded them and that their unconstitutional actions in fact caused his injuries.” In this case, what County Defendants knew, what they did or did not do in response to that knowledge, and how quickly they acted or failed to act are all among the many questions of fact for the jury to determine.
Because Rutledge’s testimony that County Defendants were deliberately indifferent is “not a fact-based opinion, but a statement of legal conclusion,” the Court excluded Rutledge’s testimony using this precise legal phrase.
Held
The Court granted, in part, and denied, in part, County Defendants’ Daubert motion in limine to exclude Dr. William L. Rutledge’s report.
Key Takeaway:
While the Court found Rutledge’s medical opinions on the propriety of care, the progression of McBride’s condition, and the potential cause of death to be relevant to the claim of deliberate indifference, it excluded Rutledge’s direct statement that the “personnel were deliberately indifferent” and that the “delay in diagnosis and treatment…due to deliberate indifference…led to his death” because the Court deemed these statements to be legal conclusions, not fact-based opinions, which are reserved for the Court to decide.
Case Details:
Case Caption:
Heard V. Association Of Arkansas Counties Risk Management Fund Et Al
Defendants CooperSurgical, Inc., Femcare, Ltd., and Utah Medical Products, Inc. manufacture and distribute birth control devices called Filshie Clips.
Filshie Clips are 3-5 millimeters wide and are laparoscopically placed on the fallopian tubes. Plaintiffs are individuals who had tubal ligation surgery in 2009 and 2010.
Plaintiffs Giovanna Bulox and Lorena Ahiri Merlo are sisters. Bulox underwent a tubal ligation procedure, choosing Filshie clips on July 13, 2010. Merlo underwent a tubal ligation procedure through the use of Filshie clips on July 21, 2009. Several years later, both sisters allegedly began to experience discomfort and pain.
In 2019, doctors removed two migrated Filshie Clips from Bulox’s body, one in her intestinal wall. Plaintiff Merlo had the same pain several years after her surgery, and in 2020, radiology showed the Filshie Clips migrated in her body. An attempt to remove them laparoscopically was unsuccessful; Merlo still has displaced Filshie Clips in her body. Plaintiffs sued Defendants for: (1) design defect; (2) manufacturing defect; (3) failure to warn; (4) strict liability; (5) negligence; (6) violation of consumer protection laws; (7) gross negligence; and (8) exemplary damages.
Dr. Howard Sharp opined that the Filshie Clip was not the likely cause of Plaintiffs’ pain. Sharp was retained to “offer a differential diagnosis on the complex issue of the medical cause for Plaintiffs’ claimed injuries—in essence pain allegedly caused by a Filshie Clip that migrated.”
Plaintiffs argued that he should not be allowed to testify that factors other than migrated Filshie Clips were the cause of Plaintiffs’ pain because he has “openly acknowledged the absence of any alternative reason, evidence, or cause for the pain and subsequent injuries incurred by Plaintiffs,” and, therefore, they claim his opinion does not meet the standard for reliability.
Obstetrics and Gynecology Expert Witness
Dr. Howard Taylor Sharp is a tenured professor in the Department of Obstetrics and Gynecology at the University of Utah School of Medicine, where he has practiced for over 28 years. He currently serves as the Division Chief of General Obstetrics and Gynecology and Minimally Invasive Gynecological Surgery. Additionally, he is the Vice Chair for Clinical Activities in the department. He completed his residency in obstetrics and gynecology at the University of Utah in 1994, followed by a fellowship in minimally invasive gynecology at the Greater Baltimore Medical Center in Maryland in 1995.
Moreover, Sharp has research interests which include surgical complications, medical device efficacy and complications, and pelvic pain.
Plaintiffs did not question Sharp’s qualifications as an expert, but rather the reliability of his opinion.
Plaintiffs argued that because Sharp did not opine as to “what, other than Filshie Clip migration, caused Plaintiffs’ injuries,” his opinion is based on speculation and conjecture and is not tied directly to the evidence.
Basically, Plaintiffs contended that, by not suggesting a plausible alternative cause, Sharp’s opinion is unreliable, lacking a proper foundation, and could mislead the jury and invite speculation.
However, Sharp examined Plaintiffs’ medical histories and medical records, and reviewed Plaintiffs’ expert materials and materials related to clip migration, including clinical reports. Sharp utilized his years of specialized knowledge as a medical doctor, specifically as an obstetrician and gynecologist familiar with Filshie Clips and human physiology, as the basis of his opinion. The Court held that Sharp satisfies the requirements of Rule 702 and Daubert.
Regardless of whether Sharp’s opinion is correct or not, he has sufficiently articulated a basis for his opinion. That he did not physically examine both Plaintiffs is insufficient to show that his opinion should be excluded as unreliable.
The Court added that Sharp did provide alternative causes, namely, lengthy medical histories from both Plaintiffs containing other potential causes and in Bulox’s case, persistent complaints of pain before clip placement and after removal. The Court held that Plaintiffs’ complained-of deficiencies addressed Sharp’s credibility and not the reliability of his testimony.
Held
The Court denied Plaintiffs’ motion to exclude Dr. Howard Taylor Sharp’s opinion.
Key Takeaway:
Plaintiffs’ motion contains objections to the weight and not admissibility of Sharp’s testimony, which are objections best handled in vigorous cross-examination.
While Plaintiffs contended that Sharp’s opinion could mislead the jury and invite speculation by not suggesting a plausible alternative cause, the Court observed that Sharp examined Plaintiffs’ medical histories and medical records, and reviewed Plaintiffs’ expert materials and materials related to clip migration, including clinical reports. Moreover, Sharp did provide alternative causes, namely, lengthy medical histories from both Plaintiffs containing other potential causes and in Bulox’s case, persistent complaints of pain before clip placement and after removal.
Plaintiff Ansur America Insurance Company (“Ansur”) filed this lawsuit alleging legal malpractice related to a product liability case filed in St. Clair County, Illinois after Defendants, James A. Borland and Quinn, Johnston, Henderson & Pretorous CHTD failed to properly manage the defense of the underlying case, resulting in Ansur being forced to settle for an unsupported and unprecedented amount.
Plaintiff alleged that Defendants did not meet the standard of care in representing Plaintiff in a tripartite relationship, where Plaintiff insured a company that sold the Underlying Plaintiff a shower stool that broke, causing her to fall and dislodge hardware recently placed by a surgeon in her spine.
Defendants disclosed Joseph Bleyer as a legal malpractice expert witness and Daryl Douglas as an insurance expert witness.
Plaintiff filed a motion to exclude the testimony of Defendant’s experts Bleyer and Douglas.
Legal Malpractice Expert Witness
Joseph A. Bleyer is managing partner in the law firm of Bleyer and Bleyer, Marion, Illinois which is a law firm practicing extensively in litigation and defense in tort/negligence claims, constitutional claims of rights and litigation and defense of municipalities in both Illinois and the United States Supreme Court. He graduated from Southern Illinois University in 1986 and is presently licensed in the State of Illinois, United States Supreme Court, United States Court of Appeals for the Seventh Circuit, United States District Court for Central Illinois, and United States District Court for the Southern District of Illinois.
Daryl Douglas spent 20 years as the senior vice president and claims manager at national primary and excess carriers and international reinsurers. During that time, Douglas managed the medical malpractice and general liability exposures for insured hospitals, physicians, and nursing homes, across the country. He counseled insurers and reinsurers on liability and coverage issues, and successfully settled hundreds of catastrophic cases, both before and after trial.
Douglas has built a national reputation handling some of the nation’s largest and most challenging mass actions and achieving highly regarded results along the way.
Plaintiff’s Motion to Exclude the Testimony of Joseph Bleyer
Bleyer is an attorney who has practiced law since 1986. He has never handled a legal malpractice case and has no particular knowledge, experience or training in the area of legal professional responsibility.
While Bleyer has a great deal of legal experience, neither his report nor deposition testimony connect the dots between his generalized legal experience and the bases for his opinions and conclusions in the “often specialized and complex matters of professional responsibility”, including the applicable standard of care.
Moreover, the Court finds that Bleyer’s conclusions and opinions do not meet the Daubert standards for reliability. While Bleyer lists thirteen opinions in his report, his first opinion accurately summarizes the remaining twelve:
“Based upon my experience and my review of the above transcripts and documents, I have formed the opinion, to a reasonable degree of professional certainty, that James Borland and Quinn, Johnston, Henderson & Pretorious Chtd. (collectively, ‘Defendants’) met the standard of care. Defendants did not breach their fiduciary duties required by Illinois attorneys in dealing with both Ansur and Signature.”
The Court held that Bleyer failed to provide a sufficient basis and support for his opinions that the Various Defendants met the standard of care. Although given several opportunities to do so in his deposition, Bleyer failed to identify a measurable standard of care or the source of what he believes the standard of care is. Instead, his opinions are based solely upon his professional judgment, to be applied on a “case-by-case” basis.
Plaintiff’s Motion to Exclude the Testimony of Daryl Douglas
Douglas is a licensed attorney who has had practiced in an insurance claims department and has had various roles in the insurance coverage and defense fields. While Douglas has a both legal and practical experience in the insurance claims industry, as Plaintiff correctly notes, “he simply opines that he would have acted differently, without offering any analysis of ‘how his experience informs his conclusions’ or sufficiently linking ‘his expertise to his opinions’ as Daubert requires.”
The Court held that Douglas defaults to a “case-by-case” analysis instead of a measurable standard of care. For instance, when asked what the standard of care was, he said “I think the standard of care depends upon the liability and exposure and circumstances and facts of each case.” When asked, repeatedly, how he would define a “high exposure” case that would necessitate additional attention from claims managers, he finally said, “there are number of things that create exposure to the insurance company that could result in a future payout, and they are going to be different in each case.”
At bottom, Defendants have failed to meet their burden of demonstrating that Douglas’ proposed testimony is the product of reliable principles and methods. Therefore, the Court finds that his testimony will not assist the jury in understanding the evidence or determining a fact in issue in this case.
Held
The Court granted the Plaintiff’s motion to exclude the testimony of Joseph Bleyer and Daryl Douglas.
Key Takeaways:
When an expert’s opinions are grounded solely on his experience, those opinions must be based on sufficient facts, data, and relevant standards, and must be the product of methodology that is generally accepted in the expert community. Bleyer’s methodology is nothing more than what he would have done under the circumstances presented. He did not cite to or attempt to apply the Rules of Professional Conduct or any other identifiable source for the applicable standard of care in his report or testimony.
Defendants have failed to meet their burden of demonstrating that Douglas’ proposed testimony is the product of reliable principles and methods because Douglas defaults to a “case-by-case” analysis instead of a measurable standard of care.
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
On March 19, 2018, Ralph Monte (“Monte”) visited the Defendant Sherwin-Williams Development Corporation’s store at 4473 South Semoran Boulevard in Orlando, Florida. While attempting to negotiate the ramp from the parking lot to the sidewalk, a wheelchair-bound Monte fell and sustained injuries. He claimed that the fall occurred because Defendant negligently maintained the premises and/or failed to warn him of a dangerous condition. Subsequently, Ralph Monte and his wife, Amarillis Monte filed this premises liability lawsuit under Florida law.
The Plaintiffs retained Robert Henry Burke, a forensic architect, as an expert witness to assess whether the conditions of the Defendant’s premises contributed to Monte’s accident. Burke visited the accident site twice, reviewed photographs taken by Monte and the Plaintiffs’ counsel, analyzed images pulled from the Internet in May 2019, and spoke with Monte on May 19, 2021. Burke produced his final expert report on May 30, 2024, a few days before the June 4, 2024 deadline to disclose expert reports.
In response, Defendant filed a motion to exclude Burke’s testimony regarding the slope and cross-slope of the ramp and whether or not the slope or cross-slope contributed to Monte’s accident. The Defendant argued that:
Burke’s opinions were not timely disclosed
He is unqualified to render these opinions
His opinions are not reliable or helpful
Architecture Expert Witness
Robert H. Burke Jr., AIA, served as NCARB president in 1992 and holds the distinction of being the only Florida architect to serve as both chairman of the Florida Board of Architecture and Interior Design and president of NCARB. A graduate of the University of Florida, Burke has received the Distinguished Alumnus and Distinguished Service Awards from the School of Architecture. In 1974, he co-founded his architectural firm, now known as BHM Architecture, which grew into one of central Florida’s most respected architectural practices. In 2013, he established RHBj Consulting to provide litigation support services for design and construction matters across Florida.
After assessing the premises’ conditions with regard to the relevant building codes, Burke opined that:
The ramp was improperly placed in an access aisle.
A one-inch change in level at the top of the ramp and sidewalk violated relevant code provisions.
The slope of the ramp was measured to be between 12.1% and 12.8%, while the relevant code allows a maximum slope of 8.33%.
After the ramp was removed following Monte’s accident, Burke calculated the slope by holding a twelve-inch digital level to the “clean concrete surface along the adjacent concrete curb” that was created by the ramp’s removal. In his view, these opinions “portray hazardous conditions and caused or contributed to Monte’s wheelchair fall accident.” He added that the premises were subject to other code violations.
When Defendant deposed Burke on August 2, 2024, he admitted that the methodology used to determine the slope of the ramp was inaccurate and could not be relied upon. Rather, a new calculation that he prepared the day before his deposition was “more accurate.” Accordingly, Burke stated that he was formally withdrawing his opinion regarding the slope of the ramp. Similarly, while Burke testified at his deposition that he had, since preparing his expert report, determined that the ramp was subject to a cross-slope that also contributed to Monte’s injury, he conceded that his report did not contain any opinion regarding cross-slope. Defendant reports that as of September 30, 2024, Burke had “not issued an updated report to reflect these new opinions and the opinions that were withdrawn.”
Analysis
When the Defendants moved to exclude some of Burke’s testimony, the Plaintiffs filed an untimely response. The Defendant moved to strike the Plaintiffs’ untimely response, and the Court granted the motion. Essentially, the Defendant’s motion to exclude is unopposed. Furthermore, the Court noted that the Plaintiffs failed to meet their burden of demonstrating the admissibility of Burke’s opinions.
Opinions Were Not TimelyDisclosed
The Court noted that the Plaintiffs failed to provide a supplemental expert report updating Burke’s opinions as to the slope and cross-slope. In other words, Plaintiffs failed to file a supplemental report detailing the new methodology employed by Burke to calculate the slope of the ramp and discussing how he determined that the ramp was subject to cross-slope. The case management and scheduling order required Plaintiffs’ expert report to be disclosed by June 4, 2024. Indeed, even if Plaintiffs had filed a supplemental expert report immediately after Burke’s deposition—which they did not—the Court would have had the discretion to exclude that supplemental report because the date to file expert disclosures had passed.
Reliability of Opinions
Even if the Court were to consider the untimely response, it found that Burke’s opinions were not reliable as per the Daubert standard. Initially, Burke calculated the slope of the ramp using a methodology that he later admitted was unreliable. Despite recognizing the error in his initial approach, Burke did not provide an updated report to correct or clarify his revised opinion. As a result, the Court concluded that the Plaintiffs failed to establish the reliability of Burke’s opinions regarding the slope.
The Court also noted that Burke did not explain how he determined that the ramp was subject to a cross-slope contributing to Monte’s injury, rendering his opinion on the cross-slope unreliable as well.
Held
The Court granted the Defendant’s motion to exclude certain testimony provided by the Plaintiff’s architecture expert witness, Robert Henry Burke.
Key Takeaways:
The Court granted Defendant’s motion to exclude Burke’s testimony due to the Plaintiff’s failure to timely disclose revised opinions. Additionally, the Court found that Burke’s opinions were unreliable. His opinion regarding the ramp’s slope relied on an inaccurate methodology, and no supplemental report was provided after he withdrew his initial opinion. Furthermore, Burke did not adequately explain the cross-slope issue or its contribution to the accident, leading the Court to exclude his testimony for lack of reliability and untimely disclosure.
Please refer to the blog previously published about this case:
Plaintiff Mark Walker (“Walker”) worked as a locomotive engineer for Defendant Union Pacific Railroad Company (“Union Pacific”) from approximately 2005 through 2019. After the Court dismissed Walker’s claim under the Americans with Disabilities Act (“ADA”) alleging failure to accommodate, Walker’s remaining claims allege disparate treatment and disparate impact in violation of the ADA. Walker contends that Union Pacific “regarded” Walker as disabled by having a color vision deficiency.
Plaintiff alleged that Union Pacific violated the ADA by requiring Walker to take a secondary color vision field test (“CVFT”), Union Pacific’s proprietary “Light Cannon” test, even though Walker had just passed a scientific color vision test, the “Ishihara” test. Walker also alleged that Union Pacific violated the ADA because the specific version of Union Pacific’s proprietary Light Cannon test that was administered to Walker in July 2019 did not effectively assess an employee’s ability to read and interpret railroad signals because that test screens out qualified individuals who do not, in fact, have color vision deficiencies but whom the test, and thus Union Pacific, wrongfully “regards” as being color vision deficient.
Walker was hired by Union Pacific in 2003, and he passed the Ishihara at that time. He was certified as an engineer in 2005 and he again passed the Ishihara. In 2007 he passed the Ishihara again as part of his recertification as an engineer. In 2010, Walker failed the Ishihara test after incorrectly identifying two plates. Walker was recertified as an engineer, however, after he passed Union Pacific’s then-current wayside signal CVFT. In 2013, Walker again failed the Ishihara by incorrectly identifying two plates. Again, Walker was recertified after passing Union Pacific’s wayside signal CVFT. Walker passed the Ishihara on June 20, 2016. He again passed the Ishihara on June 21, 2019.
Challenges to Expert Testimony
Walker moved to exclude or limit the testimony of Union Pacific’s expert witnesses Steven Fender and Jeff Rabin, O.D., Ph.D. He argued that Fender is not qualified to provide expert testimony on any subject relevant to this case and that Fender’s testimony is irrelevant and unreliable. Walker contended that because he passed the Ishihara test, is a qualified employee as a matter of law, and the Light Cannon is only a qualification standard, Fender’s testimony about regulatory standards is irrelevant. He also argued that Fender is unqualified to render any opinion outside of regulatory standards, such as the efficacy of the Light Cannon test, and his opinions about the efficacy of the Light Cannon test are unreliable and unhelpful to the jury.
Walker also moved to limit Rabin’s testimony to what is contained in his non-reporting witness disclosure under Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure.
Union Pacific moved to exclude the testimony of Walker’s expert witness Jay Neitz, Ph.D. as misleading, confusing, unreliable, and unhelpful to the jury. Union Pacific argued that Neitz’s testimony is misleading because he misinterprets federal regulations by construing the Light Cannon test as a “scientific” test instead of a “field” test.
Railroad Expert Witness
Steven Fender is a Railroad Transportation and Safety Consultant who has worked in the industry for 45 years. He worked for 31 years at the FRA. He is highly qualified in the fields of railroad operations, safety, and regulations.
Jeff C. Rabin is a tenured Professor of Optometry and Assistant Dean for Research, Assessment and Graduate Studies at the University of the Incarnate Word Rosenberg School of Optometry, where he teaches courses in vision science, optics and binocular vision. Rabin received his Bachelor of Science in Physiological Psychology with highest honors from the University of California at Santa Barbara, and Doctor of Optometry, Masters of Science and Doctor of Philosophy Degrees in Physiological Optics from the University of California at Berkeley.
Jay Neitz is the E.K. Bishop Endowed professor in Ophthalmology at the University of Washington in Seattle. He has been a research scientist and an educator for 30+ years. He is an expert in all aspects of disorders of the eye and their effect on visual performance.
Under the regulations of the Federal Railroad Administration (“FRA”), railroad companies must test railroad engineers at least every three years for, among other things, color vision acuity. The initial test must be one of a set of scientific tests approved by the FRA, including, as relevant here, the Ishihara 14-plate test (“Ishihara”). If an engineer fails the initial, or primary, test, the examinee may undergo a secondary test, which may consist of an [“o]phthalmologic referral, field testing, or other practical color testing.”
A.Development of Union Pacific’s Light Cannon Test
Union Pacific began developing the Light Cannon test in 2015. In October 2015, Dr. Jeff Rabin and Dr. Douglas J. Ivan, M.D., reviewed the Light Cannon test and testing protocol. The 2015 device contained four eight-inch LED lights, in two rows of two, that flashed four colors—red, yellow, green, and white—for five seconds each, and required each color light to be manually turned on and off. The examinee was located one-quarter mile away from the device, with a nurse taking down responses and Union Pacific staff at either end managing the test.
Rabin and Ivan issued their “draft” final report on January 25, 2016. This report identified that the Light Cannon test had “a number of critical short comings in its current design and within the proposed test administrative procedures.”
Union Pacific nevertheless implemented the Light Cannon test on April 1, 2016, with only the few modifications previously described and no further validation studies having been performed. Rabin was hired in approximately mid-2018 to conduct further studies to evaluate the efficacy of the Light Cannon. Rabin testified at deposition, and confirmed at the hearing, that based on the new testing protocols and other changes made to the Light Cannon test after his 2016 report, he believes the 2020 version of Light Cannon test is a valid field test. He noted, however, that for people with color deficiencies, he believes the change in testing protocols did not make a statistically significant difference.
B. Plaintiff Walker
On July 3, 2019, Union Pacific’s Associate Medical Director, Dr. Donald Richard Lewis, stated that Walker had met the FRA’s vision requirements and was approved for recertification. Nonetheless, two days later, Walker’s file was flagged as “not approved” for safety sensitive work. Dr. John Holland, M.D., Union Pacific’s former Chief Medical Office had intervened to require Walker to undergo secondary testing with Union Pacific’s Light Cannon test, based on Walker’s previous Ishihara failures in 2010 and 2013. On July 8, 2019, Walker took and failed Union Pacific’s Light Cannon test. Based on this failure, Union Pacific determined that Walker could not work in a position requiring accurate color signal recognition, and thus he could not work in his current position.
In April 2016, after Union Pacific implemented the Light Cannon test, Walker was an employee who had “failed the primary color vision field testing on [his] last medical certification exam” (his 2013 Ishihara test), but Union Pacific did not retest him using the Light Cannon test despite the recommendation of the NTSB. Indeed, when Walker passed the Ishihara in June 2016, Union Pacific still did not make Walker take the Light Cannon secondary field test. Not until Walker failed the Ishihara in June 2019 did Union Pacific require him to take the Light Cannon secondary CVFT.
i. Walker’s Motion Challenging Fender
Fender’s opinion that the Light Cannon test is in compliance with the rules and regulations of the FRA is irrelevant
Walker argued that Fender’s opinion that the Light Cannon test “complied” with the FRA regulations is irrelevant. He also contended that with this opinion out as irrelevant, Fender is not qualified to opine about his remaining opinions, particularly about the “efficacy” of the Light Cannon test. Walker also asserted that Fender’s opinions other than those related to the FRA regulatory framework (which are irrelevant) are unreliable and not helpful to a jury.
Walker contended that Fender’s opinion that the Light Cannon test is in compliance with the rules and regulations of the FRA is irrelevant to this case because the Court ruled at summary judgment that Union Pacific did not have to subject Walker to the Light Cannon test under FRA regulations, and may even have been precluded from doing so under the regulations.
The Court can instruct the jury as to the legal requirements of the FRA, to the extent they are relevant. Further, whether the Light Cannon is “compliant” with the FRA, to the extent that may be relevant, is a legal conclusion and not a proper topic for expert testimony. Therefore, to the extent Fender’s testimony is intended to explain FRA rules and regulations regarding color vision acuity testing to the jury or opine that the Light Cannon was compliant with FRA rules and regulations, such testimony is improper.
The Court held that Fender may not opine about how Walker’s case compares to cases presented to the Locomotive Engineer Review Board or the Operating Crew Review Board, or that the Light Cannon test is in compliance with FRA rules and regulations per the decisions of those review boards. Such a discussion is of minimal relevance and is unduly prejudicial and potentially confusing to the jury.
Fender is qualified to opine as to whether the Light Cannon test was “valid” as that term is used in the Best Practices
Walker argued that Fender is unqualified to render an opinion regarding the efficacy of the Light Cannon test, and that the opinion is unreliable and unhelpful. Fender spent decades working in railroad operations and safety. He explained at the hearing that he had frequent exposure to railroad signals. He also saw the Light Cannon test in operation. The Court held that Fender is qualified to opine as to whether the Light Cannon test was “valid” as that term is used in the Best Practices—meaning that the test reasonably matched real world operating or working conditions.
Fender opined generally in his report that the Light Cannon test is “employee friendly” because it shows all four lights to orient the examinee and is “a practical, well-developed, and implemented test which replicates real world conditions.” During Walker’s 2019 test, he was not given the 2016 protocol (or the 2019 protocol as it is identified in Rabin’s testing); nor was he given the modified 2020 protocol. Nonetheless, the experts’ opinions about the efficacy of the Light Cannon test after the 2020 changes were implemented provide some probative value to the test taken by Walker, which involved a hybrid protocol between the 2016 and 2020 testing protocols.
The Court found that Fender’s opinion about the efficacy of the 2020 Light Cannon test, even though he repeatedly emphasized the importance of all four colors first being shown to the examinee, is somewhat helpful to the jury. It also is reliable because Fender has decades of related experience in the industry and personal experience viewing the Light Cannon test.
The remaining aspects of Fender’s opinion also are reliable and potentially helpful to the jury based on Fender’s experience and the issues in this case regarding railroad safety and the need for color vision acuity
The Court held that Fender may testify to Union Pacific’s general rail business and rail infrastructure, its importance in the supply chain, and its importance to national security and the military. He also may testify generally to the complexity and business of the rail lines and Union Pacific’s rail lines, in particular. Fender further generally may describe safety concerns, signaling systems, and the importance of color vision acuity to signaling systems and safe rail operations.
Walker’s Motion Challenging Rabin
Rabin is a limited expert witness disclosed under Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure. Accordingly, he did not provide (and was not required to provide) an expert report. As an initial matter, the Court holds that, as with Fender, Rabin may not testify that the Light Cannon test complies with or is valid under the FRA’s rules and regulations.
Walker sought to ensure that Union Pacific does not attempt to have Rabin testify regarding anything specific to Walker—his color vision acuity, the application of the Light Cannon test with respect to Walker, or his ability to perform his job safely. The Court agreed that these issues are outside the scope of Rabin’s disclosed testimony.
The Court concluded, however, that Union Pacific has sufficiently disclosed its intention to elicit testimony from Rabin regarding his 2019-20 study of the Light Cannon test.
Counsel for Union Pacific also argued that there should be no temporal distinction between Rabin’s testimony regarding the 2016 and 2020 Light Cannon tests because Rabin noted that both versions of the test nearly equally captured persons with color vision deficiencies. This case, however, is about an employee who alleges that he does not have any color vision deficiency but instead was regarded as having such a deficiency because of his earlier failures of the Ishihara test.
Although Rabin’s opinion regarding the effectiveness of the Light Cannon is based on the modified 2020 test and testing protocols, like Fender’s opinion it still has some probative value and is thus somewhat helpful to the jury. This is because Walker did not receive the 2016 testing protocol. Thus, the Court held that Rabin may testify as to the efficacy of the 2020 Light Cannon and whether it accurately mimics actual operating or working conditions in the field.
Union Pacific’s Motion Challenging Neitz
Neitz mistakenly opined that the Light Cannon test must be validated as a scientific test instead of a field test
Union Pacific first argued that Neitz mistakenly opined that the Light Cannon test must be validated as a scientific test instead of a field test. They designed the Light Cannon as a field test, not a scientific test. It is intended to match newer LED signals. Regardless of the dispute about the validity of the Light Cannon test, the Court agreed that it is a field test and not a scientific test. Walker argued, however, that because the Light Cannon does not use any actual equipment from the field, it cannot be a field test.
That, however, goes to the “validity” of the field test, not to whether it is a field test. The Court will preclude, as irrelevant and misleading, Neitz from testifying that the Light Cannon test was required to undergo rigorous scientific study or peer review or must meet the standards of a scientific test to be a valid secondary field test.
Union Pacific also challenged the helpfulness of Neitz’s opinion because he does not provide a test that would suffice under the regulations. Neitz, however, discussed the advantages and disadvantages of several available tests. The Court held that this challenge goes to the weight of his opinion, not its admissibility.
Neitz’s opinion is unreliable because it relies on Rabin’s 2019-20 testing regarding the Light Cannon test
Finally, Union Pacific argued that Neitz’s opinion is unreliable because it relied on Rabin’s 2019-20 testing regarding the Light Cannon test without considering Rabin’s later deposition testimony regarding the validity of the Light Cannon test after the 2020 changes had been implemented and because Neitz has never seen the Light Cannon test.
The Court held that Neitz may focus on the pre-2020 test, which is more similar to the test given to Walker than the 2020 test, and Union Pacific can challenge through cross examination why Neitz did not further consider Rabin’s evaluation of the Light Cannon post-changes, and whether Neitz is moved by Rabin’s change of heart after the 2020 changes to the Light Cannon were implemented.
The Court held that Neitz is highly qualified regarding color vision acuity examinations, has reviewed Walker’s examinations and medical records, has reviewed the 2019-20 test data about the Light Cannon, understands color vision acuity testing in general, and offers a variety of opinions that are helpful to the jury on these topics. His opinions specific to the Light Cannon test do not necessarily require that he have seen the device, because he differentiates the pre- and post- 2020 protocols and relies on the underlying data from Rabin’s testing.
In other words, Neitz is not improperly “parroting” the opinion of another expert, but has independently reached his own opinions, relying on the facts and data gathered by another testifying expert.
Most of Neitz’s unchallenged testimony is unrelated to whether the Light Cannon test must undergo vigorous scientific testing
Finally, Union Pacific does not specifically challenge most of Neitz’s proposed testimony, other than generally to assert that because it is “based on” his misunderstanding that the Light Cannon test is not a field test, it must be excluded. The Court disagrees. Most of this unchallenged testimony is unrelated to whether the Light Cannon test must undergo vigorous scientific testing.
This includes:
(a) color vision acuity in general
(b) persons may not pass the primary color vision FRA test but still may safely work as a locomotive engineer or conductor because they have sufficiently color vision acuity to safely perform their duties
(c) how the majority of anomalous trichromats who fail the Ishihara can recognize and distinguish between railroad signals and the need for a valid test to separate out those who cannot
(d) Rabin’s 2019-20 study demonstrated that the Light Cannon test cannot screen anomalous trichromats who are perfectly capable of reading colored signals from those who cannot
(e) Rabin’s 2019-20 study showed that the Light Cannon was not a test that was reliable or valid (e.g., reasonably matched actual operating or working conditions), and reinforced he and Ivan’s 2016 report reaching the same conclusion
(f) a discussion of Walker’s past test results, including improper grading
(g) a discussion of Walker’s medical history and how it related to his color vision acuity
(h) a description of how Walker had consistently passed the color vision tests sufficient to show adequate color acuity.
The Court finds that all of this testimony is reliable and would be helpful to the jury.
Held
The Court granted in part and denied in part Plaintiff’s motion to exclude the testimony of Steven Fender and Jeff Rabin, and Defendant’s Daubert motion to exclude the testimony of Jay Neitz.
Key Takeaway:
Fender’s opinion about the efficacy of the 2020 Light Cannon test, even though he repeatedly emphasized the importance of all four colors first being shown to the examinee, is somewhat helpful to the jury. It also is reliable because Fender has decades of related experience in the industry and personal experience viewing the Light Cannon test.
Although Rabin’s opinion regarding the effectiveness of the Light Cannon is based on the modified 2020 test and testing protocols, like Fender’s opinion it still has some probative value and is thus somewhat helpful to the jury. This is because Walker did not receive the 2016 testing protocol. Thus, the Court held that Rabin may testify as to the efficacy of the 2020 Light Cannon and whether it accurately mimics actual operating or working conditions in the field.
Neitz is not improperly “parroting” the opinion of another expert, but has reviewed Walker’s examinations and medical records, has reviewed the 2019-20 test data about the Light Cannon, understands color vision acuity testing in general, and offers a variety of opinions that are helpful to the jury on these topics.
Plaintiff Old Gate Partners, LLC (“Old Gate”) alleged that Paddock is liable for contamination of a property (“the Property”) currently owned by Old Gate. Paddock retained Michael P. Hedden to provide valuation opinions of the Property’s “highest and best use and market value.”
As a part of his analysis, he utilized an appraisal technique known as the sales comparison approach. Based on this approach, Hedden concluded that the Property’s market value was not less than $9 million as of May 2017 and not less than $10.37 million as of April 2023.
Old Gate sought to exclude Hedden’s testimony on the grounds the he is unqualified
On November 29, 2023, Old Gate filed its first motion to preclude Hedden’s testimony. Old Gate sought to exclude Hedden’s testimony on the grounds the he is unqualified, that certain of his proffered opinions are irrelevant, and that his analysis is unreliable.
The Court granted the motion in part and denied it in part. Specifically, the Court rejected challenges to Hedden’s qualifications, and it excluded as irrelevant his opinions about Milford’s zoning intentions and entrepreneurial profit.
The Court also excluded as unreliable Hedden’s valuation opinions of the Property. The Court concluded that his sales comparison analysis relied on “unclear, unsupported rationales”, and that Hedden failed to disclose “underlying data sufficient to replicate his analysis”.
Hedden’s report provided “no discernable methodology” sufficient for the Court to understand how Hedden determined adjusted sale prices
Further, the Court also found that Hedden had categorized certain adjustment factors using qualitative descriptors like “superior” or “inferior”, without ascribing quantitative dollar amounts or percentage adjustments. As a result, the Court reasoned, Hedden’s report provided “no discernable methodology” sufficient for the Court to understand how Hedden determined adjusted sale prices, and, ultimately, his 2017 and 2023 valuations.
However, because Hedden could potentially clarify his methodology, the Court granted the Motion as to the valuation opinions without prejudice to Hedden filing an amended report that corrects the shortcomings identified by the Court.
On June 19, 2024, Paddock filed an expert report supplement from Hedden. On August 13, 2024, Old Gate filed its second motion to exclude Hedden’s testimony.
Old Gate argued that the supplement is insufficient to correct the infirmities identified by the Court in its prior Ruling, and that Hedden’s 2017 and 2023 valuation opinions should remain excluded.
Real Estate Appraisal Expert Witness
Michael P. Hedden has over 43 years of real estate appraisal, valuation and consulting experience. Hedden is a Managing Director and, in this role, specializes in providing valuation, litigation support, and expert testimony services as a knowledgeable real estate professional in all aspects of market analysis and valuation of real property. Michael has experience in the appraisal of industrial, commercial, residential, and special purpose property including hospitality, hospital, and healthcare facilities.
In its prior Ruling, the Court provided leave for Hedden to file an amended report that explained, “with reasonable clarity and precision, the methodology that he used when he made his adjustments.” In his expert report supplement, Hedden included updated sales adjustment grids for his 2017 and 2023 valuations. Under the heading of “Cumulative Adjusted Price,” these grids replace the prior “Superior” and “Inferior” designations of the original report with percentage value adjustments. It appears to the Court that these percentage value adjustments are only at intervals of 5 percent, either 5 percent, 10 percent, 15 percent, or a dash, indicating no adjustment. In his narrative explanations for how he arrived at these intervals, Hedden largely relied on “his experience and professional judgment.”
The Plaintiff has raised concerns about this disclosed methodology. The Court shares these concerns about whether Hedden’s selected numerical adjustments are “based on sufficient facts or data,” or whether these adjustments are subjective, speculative, or arbitrary.
In the Court’s view, this raises serious concerns about whether Hedden’s experience and professional judgment can fill the gap between qualitative observations and quantitative adjustments to property valuations.
However, because the parties are scheduled for a bench trial, the Court “has considerable discretion in admitting the proffered testimony.”
The Court chooses to exercise that discretion here and will admit Hedden’s valuation opinions. In the Court’s view, Hedden’s supplemental report is sufficient to render his methodology discernable and understandable to the Court.
Held
The Court denied the Plaintiff’s second motion to preclude the testimony of Michael P. Hedden.
Key Takeaway:
Rather than delaying the case through a detailed scrutiny of Hedden’s property comparison adjustments, the Court will reserve judgment and decide “after the evidence is presented whether it deserves to be credited by meeting the requirements of Daubert and its progeny.”
Old Gate is free to vigorously cross examine Hedden on the reliability of his valuations. Additionally, Old Gate may raise arguments at a later stage that Hedden’s testimony should be disregarded by the trier of fact because it fails to meet the threshold for admissibility under Daubert.
Case Details:
Case Caption:
Old Gate Partners, Llc V. Paddock Enterprises, LLC
Docket Number:
3:18cv1657
Court:
United States District Court for the District of Connecticut
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.
Plaintiffs sought to exclude testimony by Defendant’s expert witness, Cole D. Greves, M.D., as to two opinions that he has rendered: first, that the use of forceps did not cause the Minor Plaintiff’s injuries (“Opinion No. 8”); and second, his experience would suggest that the Minor Plaintiff’s injuries could be related to the E. coli infection and ensuing sepsis and potentially lead to additional challenges through his life course, and his Apgar scores suggest a significant hypoxic event or metabolic acidosis at birth.
Maternal Fetal Medicine Expert Witness
Cole Douglas Greves, MD, FACOG is a clinical perinatologist, medical director of the hospital’s antepartum and women’s intensive care unit, and assistant director of medical education. He also serves on the faculty of the University of Central Florida College of Medicine.
Greves completed his undergraduate degree at the University of Minnesota in Minneapolis and earned his medical degree from the University of North Dakota School of Medicine in Grand Forks, North Dakota. He completed his residency at Orlando Health and a fellowship in maternal fetal medicine at the University of Rochester – Strong Memorial Hospital in Rochester, New York.
Greves has conducted extensive research during his career. Currently he is the principal investigator on a Cesarean section study and co-investigator on a sepsis study. He also is a frequent presenter at medical conferences and meetings.
Plaintiffs argued that Greves is not qualified to render opinions regarding alternative explanations for the Minor Plaintiff’s injuries nor the “life course” for the minor plaintiff and thus his opinions are barred by Rule 702 of the Federal Rules of Evidence.
Since this matter is a non-jury trial, the Court held that there is less need for scrutinizing reliability prior to trial.
Therefore, the Court can evaluate during trial the credibility and reliability of Greves.
Held
The Court denied the Plaintiff’s motion to exclude testimony by Defendant’s expert witness, Cole D. Greves, M.D.
Key Takeaway:
Since this matter is a non-jury trial, the credibility and reliability of Greves’ opinions regarding alternative explanations for the Minor Plaintiff’s injuries or the “life course” for the Minor Plaintiff can be evaluated during trial.
Please refer to the blogs previously published about this case:
This litigation arises out of an auto accident involving Plaintiff Shaun E. Howard and a Tractor-trailer driven by Defendant Reginald Mitchell.
On November 18, 2021, Plaintiff was driving his vehicle on LA 21 in St. Tammany, Louisiana. As Plaintiff was driving in the left lane, Plaintiff alleged Mitchell, who was operating a tractor-trailer, attempted to merge into the left lane.
As a result of this accident Plaintiff alleged that he suffered multiple injuries treated, in part, by Dr. Eric Oberlander. Defendants sought to exclude Oberlander’s testimony regarding Plaintiff’s possible development of adjacent segment disease due to the alleged failure of Oberlander to provide testimony on the methodology used to reach this opinion.
Neurosurgery Expert Witness
Eric Oberlander is an award winning spine specialist who has developed one of the largest practices in the country. Oberlander graduated from Virginia Tech with degrees in Engineering, French and Chemistry. He was one of the first American engineering students to study at the prestigious Ecole des Ponts et Chaussees in Paris, France. He received his medical degree from Virginia Commonwealth University and continued his training at the Medical College of Virginia, where he completed his Neurosurgical residency, and fellowship in complex and minimally invasive spinal surgery. Oberlander also served his country as a Lieutenant Commander in the U.S. Navy Reserve from 2003-2012.
Oberlander joined The NeuroMedical Center in 2008 and served as The Spine Hospital of Louisiana’s elected Chief of Staff from 2012-2014. He is currently the team neurosurgeon for the LSU Athletic Department and has an active interest in concussion prevention and research.
Defendants clarified they are not challenging Oberlander’s qualifications, education, or experience, but rather the basis of Oberlander’s opinion on adjacent segment disease. Oberlander claimed he had a “file cabinet” full of materials he used to conclude that Plaintiff will more likely than not develop adjacent segment disease. Defendants stated they served a subpoena duces tecum on Oberlander for a copy of these files, but the materials sent in response included none related to adjacent segment disease.
Oberlander’s deposition testimony indicated that he has been treating Plaintiff for about two years, reviewed Plaintiff’s imaging, and performed Plaintiff’s anterior cervical discectomy and fusion at C6-7. While Oberlander did not provide studies that helped him reach his conclusions on adjacent segment disease, the Fifth Circuit has held “where an expert otherwise reliably utilizes scientific methods to reach a conclusion, lack of textual support may go to the weight, not admissibility of the expert’s testimony.”
In addition to being Plaintiff’s treating neurosurgeon, Oberlander’s deposition testimony discusses how cervical fusion, a procedure Oberlander performed on Plaintiff, causes stress on adjacent levels. Oberlander further discussed how subsequent MRIs post Plaintiff’s surgery revealed “adjacent level pathology.
As such, this Court found that Oberlander’s testimony is reliable and relevant. The reliability inquiry requires the Court to assess whether the reasoning or methodology underlying the expert’s testimony is valid. Based on the evidence presented, Plaintiff has satisfied this burden. Although Defendants raised doubt as to Oberlander’s sources on which he bases his medical opinions, these issues are best addressed through “vigorous cross-examination” and “presentation of contrary evidence.”
Held
The Court denied Defendants’ Daubert motion to exclude evidence of Eric Oberlander regarding future adjacent segment disease and future surgery.
Key Takeaway:
Defendants did not dispute Oberlander’s sixteen years of experience or the fact that he is an award-winning spine specialist who operates daily. However, Defendants argued that Oberlander did not provide the specific medical literature he used to arrive at his conclusion regarding the development of adjacent segment disease. It should be noted that the Fifth Circuit has held that “where an expert otherwise reliably utilizes scientific methods to reach a conclusion, lack of textual support may go to the weight, not the admissibility, of the expert’s testimony.”
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.
