Deramus v. SAIA Motor Freight Line, LLC et al

Filing 138

MEMORANDUM OPINION AND ORDER that defendant's 119 MOTION to Strike Testimony of Dr. Hammad and Life Care Planner Kathy Smith is DENIED; that defendant's 120 MOTION to Strike Supplemental Exhibits to Defendant's Motion to Strike Pla intiff's Experts is DENIED AS MOOT; that defendant's 126 RENEWED MOTION to Extend the Deadline to Allow the Defendant to Name an Expert to Counter the Testimony of Dr. Hammad is DENIED AS MOOT. Signed by Hon. Chief Judge Mark E. Fuller on 6/15/2009. (cc, )

IN THE UNTIED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION L E A H A. DERAMUS, P la in tif f , v. S A IA MOTOR FREIGHT LINE, LLC D e f e n d a n t. ) ) ) ) ) ) ) ) )

CASE NO. 2:08-cv-23-MEF (W O )

M E M O R A N D U M OPINION AND ORDER T h is cause is before the Court on Defendant's Motion to Strike Testimony of Dr. H a m m a d and Life Care Planner Kathy Smith (Doc. # 119) filed on April 27, 2009, D e f e n d a n t's Motion to Strike Supplemental Exhibits to Defendant's Motion to Strike P la in tif f 's Experts (Doc. #120) filed on April 27, 2009, and Defendant's Renewed M o tio n to Extend the Deadline to Allow the Defendant to Name an Expert to Counter the T e stim o n y of Dr. Hammad (Doc. #126) filed on May 6, 2009. In its motions, Defendant m o v e s to strike and rebut testimony given by Dr. Hammad and Kathy Smith. The Court w ill discuss each motion in turn. A. Defendant's Motion to Strike Testimony of Dr. Hammad and Life Care Planner K a th y Smith i. Admissibility of Expert Opinions under Rule 702 and Daubert F e d . R. Evid. 702 ("Rule 702") governs the admission of expert testimony and provides: If scientific, technical, or other specialized knowledge will assist the trier of

fact to understand the evidence or to determine a fact in issue, a witness q u a lif ie d as an expert by knowledge, skill, experience, training, or e d u c a tio n , may testify thereto in the form of an opinion or otherwise, if (1) th e testimony is based upon sufficient facts or data, (2) the testimony is the p ro d u c t of reliable principles and methods, and (3) the witness has applied th e principles and methods reliably to the facts of the case. Id. The Court is also required to make a "gatekeeping" determination as to the admission o f expert testimony in accordance with Daubert v. Merrell Dow Pharmaceuticals, Inc., 5 0 9 U.S. 579 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). This C o u rt must ensure that the expert testimony is both relevant and reliable. In determining th e reliability of a particular expert, the Court may apply the factors outlined in Daubert: (1 ) whether the theory or technique at question can and has been tested; (2) whether the te c h n iq u e or theory has been subject to peer review or testing; (3) whether the known or p o te n tia l rate of error is acceptable; and (4) whether the technique or theory is generally a c c e p te d by experts in the relevant field of study. Allison v. McGhan Med. Corp., 184 F .3 d 1300, 1309-10 (11th Cir. 1999) (applying Daubert factors). ii. Dr. Hammad In Defendant's Motion to Strike (Doc. # 119), Defendant moves to exclude the o p in io n s of Plaintiff's pain management physician, Dr. Mustafa Hammad. Defendant a rg u e s that Dr. Hammad's testimony lacks reliability under Rule 702 and fails to meet the D a u b e r t standard. Plaintiff responds that she is presenting Dr. Hammad in his capacity as h e r pain management physician and that his testimony fufills Rule 702 and Daubert re q u ire m e n ts . 2

Here, the record shows that Dr. Hammad is a licensed physician in Florida and G e o rg ia and has treated Plaintiff for over seven months. In addition, any failure by Dr. H a m m a d to rely on credible evidence in making his assessments is something that can be a d d re s s e d by Defendant on cross-examination. The credibility issues raised by the D e f e n d a n t, therefore, are issues more properly resolved through "vigorous crosse x a m in a tio n , presentation of contrary evidence, and careful instruction on the burden of p ro o f . Daubert, 509 U.S. at 96. Defendant's conclusion that Dr. Hammad's opinions are s p e c u la tiv e is a matter this Court has rejected. Dr. Hammad's qualifications, treatment of P la in tif f , and opinions are relevant and admissible pursuant to Rule 702 and Daubert. Questions that Defendant has about Dr. Hammad's opinions should be evaluated by the ju ry, as his opinions go to weight and not admissibility. iii. Kathy Smith D e f e n d a n t also argues that Kathy Smith ("Smith") is not qualified to render an opinion a s to Plaintiff's future medical needs because she has no proper foundation for her opinion u n d e r Rule 702. Plaintiff responds that Smith is qualified to render expert opinions

re g a rd in g Plaintiff's future medical needs by her education, experience as a registered nurse, a n d training. Smith reviewed Plaintiff's medical records and the depositions of Plaintiff's tre a tin g physicians. Plaintiff also argues that there is authoritative case law finding a nurse q u a lif ie d to serve as an expert life care planner. See Marcano Rivera v. Turabo Med. Ctr. P a rtn e r s h ip , 415 F.3d 162, 170 (1st Cir. 2005); Garcia v. Kelly-Springfield Tire Co., No.

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8:99-cv-1611-T-17TGW, 2004 WL 5642430 (M.D. Fla. Mar. 2, 2004); Blair v. Samardjich, N o . CV202-114, 2003 WL 25764890 (S.D. Ga. Sept. 23, 2003). O n May 11, 2009, the Court heard testimony from Smith to determine the a d m is sib ility of her opinions. It is clear that Smith has done life care planning in other p e rs o n a l injury cases and that her experience and training are substantial. For example, S m ith has completed the requirements for certification as a life care planner and is a certified d i a b i lity management specialist, case manager, and legal nurse consultant. Smith also f o rm e d Southern Care Management, a case management company that specializes in life care p la n s , case management, and legal nurse consulting. In addition, Smith testified that her p ro p o s e d care plan was based on a review of Plaintiff's medical records, depositions taken f ro m Plaintiff's physicians, and numerous meetings with Plaintiff. After consideration, the C o u rt concludes that any objection to Smith's opinions must go to the weight the jury should g iv e to her testimony rather than its admissibility. Accordingly, Defendant's Motion to Strike Testimony of Dr. Hammad and Life Care P la n n e r Kathy Smith is due to be denied. B . Defendant's Motion to Strike Supplemental Exhibits to Defendant's Motion to S tr ik e Plaintiff's Experts D e f e n d a n t's Motion to Strike Supplemental Exhibits (Doc. # 120) presently before th is Court is due to be denied as moot in accordance with the Court's ruling on Defendant's M o tio n to Strike (Doc. #119). C . Defendant's Renewed Motion to Extend the Deadline to Allow the Defendant to 4

Name an Expert to Counter the Testimony of Dr. Hammad In Defendant's Renewed Motion to Extend the Deadline (Doc. #126), Defendant asks f o r the Court's permission to designate an expert witness to counter the deposition testimony o f Dr. Hammad. On May 12, 2009, the Court entered an Amended Scheduling Order (Doc. # 1 3 6 ) in this case. In that order, the Court gave Defendant until May 22, 2009, to designate a n expert for the limited purpose of rebuting Dr. Hammad's testimony. Therefore,

D e f e n d a n t's Renewed Motion to Extend the Deadline (Doc. #126) is due to be denied as m o o t. D. CONCLUSION It is hereby ORDERED that: (1) D e f e n d a n t's Motion to Strike Testimony of Dr. Hammad and Life Care P la n n e r Kathy Smith (Doc. # 119) is DENIED; (2) Defendant's Motion to Strike Supplemental Exhibits to Defendant's Motion to Strike Plaintiff's Experts (Doc. #120) is DENIED AS MOOT; (3) Defendant's Renewed Motion to Extend the Deadline to Allow the Defendant to Name an Expert to Counter the Testimony of Dr. Hammad (Doc. #126) is D E N IE D AS MOOT. D O N E this the 15 th day of June, 2009.

/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE 5