Lohr v. Zehner et al
OPINION AND ORDER: it is ORDERED that plf administrator Richard I. Lohr, II's 112 MOTION to Exclude the Testimony of Dr. Gordon J. Kirschberg is provisionally granted in part and denied in part as set forth in the above opinion. Signed by Honorable Judge Myron H. Thompson on 7/8/2014. (wcl, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
RICHARD I. LOHR, II, as
Administrator of the Estate )
of Charles David Fancher,
JOSEPH EARL ZEHNER, III,
CIVIL ACTION NO.
OPINION AND ORDER
Plaintiff Richard I. Lohr, II, as administrator of the
estate of Charles David Fancher, filed this wrongful-death
lawsuit against defendants Joseph Earl Zehner, III and
United Parcel Service, Inc. (UPS), among others.
lawsuit arises out of a series of highway collisions that
resulted in Fancher’s death.
The cause is before the
testimony of Zehner and UPS’s proffered expert Dr. Gordon
Kirschberg from testifying before the jury.
Fed. R. Evid. 702 allows experts to offer opinion
“(a) the expert's scientific, technical,
or other specialized knowledge will help
the trier of fact to understand the
evidence or to determine a fact in
sufficient facts or data;
“(c) the testimony is the product of
reliable principles and methods; and
“(d) the expert has reliably applied the
principles and methods to the facts of
Fed. R. Evid. 702.
If an expert’s testimony is otherwise
admissible, he may testify to the ultimate issue in a
Fed. R. Evid. 704(a).
Before an expert may testify, the court must play a
gatekeeping role to ensure that the testimony is reliable.
See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141
(1999); Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
Even if part of an expert’s testimony is
based on unreliable methodology, the court should allow
those parts that are reliable and admissible.
and Cas. Co. v. Whirlpool Corp., 704 F.3d 1338, 1342 (11th
The facts of this case are complex and disputed.
However, it is undisputed that early in the morning,
before sunrise, Zehner was driving a UPS tractor-trailer
on an interstate highway, when he collided with the rear
of another tractor-trailer, and his truck turned on its
side, blocking the highway.
Less than a half hour later,
Fancher approached Zehner’s upturned truck, collided with
it, and died.
Immediately after Fancher’s collision, Zehner told a
number of people that he must have fallen asleep before
his collision with the other tractor-trailer.
Zehner and UPS now argue that he was in shock and had
suffered a traumatic brain injury at the time of those
As a result, they argue that he temporarily
lost his memory of the minutes immediately preceding the
collision and was confused when he told people he had
Zehner and UPS proffer Dr. Kirschberg as an expert in
neurology, and no party challenges his qualifications.
Furthermore, in his motion to exclude, administrator Lohr
does not seem to argue that Dr. Kirschberg could not opine
amnesia, including reasons why a mild concussion may not
always be diagnosed.
However, he argues that the doctor’s
opinion as to whether Zehner actually experienced a brain
injury and corresponding amnesia is not reliable.
argues that the opinion is not based on sufficient facts
or data, are not the product of reliable principles, and
would not be helpful to the jury.
Dr. Kirschberg bases his opinion that Zehner suffered
a mild concussion, retrograde amnesia, and post-traumatic
amnesia on reading Zehner’s deposition and on an in-person
collisions, as well as the fact, documented in his medical
records, that he broke ribs during the collision.
factual basis of the doctor’s expert opinion is therefore
As the doctor testified in deposition, “If
the history is false, then the diagnosis is going to be
Kirschberg Dep., Pl’s Ex. C (Doc. No. 112-3) at
Although Dr. Kirschberg testified that he found Zehner
to be credible, there is no independent basis in his
expert report or deposition testimony to support that
This is not a case in which a treating doctor
has engaged in a number of encounters with a patient. See,
e.g. Henderson v. Goodyear Dunlop Tires N.A. Ltd., 2013 WL
5729377 at *4-*5 (M.D. Ala. Oct. 22, 2013) (Watkins,
C.J.); Deramus v. Saia Motor Freight Line, 2009 WL 1664085
(M.D. Ala. Jun. 15, 2009) (Fuller, C.J.).
In this case,
Dr. Kirschberg’s factual basis is nearly identical to the
determination is not sufficiently reliable to go before a
jury as expert opinion.
In order to separate Dr. Kirschberg’s scientifically
grounded expert opinions from the non-expert credibility
determination, he will be permitted to opine generally
about concussions and amnesia conditions and to describe
the ways in which Zehner’s description of his symptoms is
consistent with such conditions. However, without advance
actually sustained a concussion or experienced amnesia.
* * *
administrator Richard I. Lohr, II’s motion to exclude the
testimony of Dr. Gordon J. Kirschberg (doc. no. 112) is
provisionally granted in part and denied in part as set
forth in the above opinion.
DONE, this the 8th day of July, 2014.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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