Lohr v. Zehner et al

Filing 248

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,
)
Deceased,
)
)
Plaintiff,
)
)
v.
)
)
JOSEPH EARL ZEHNER, III,
)
et al.,
)
)
Defendants.
)

CIVIL ACTION NO.
2:12cv533-MHT
(WO)

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.

The

lawsuit arises out of a series of highway collisions that
resulted in Fancher’s death.
court

on

administrator

Lohr’s

The cause is before the
motion

to

exclude

the

testimony of Zehner and UPS’s proffered expert Dr. Gordon
J.

Kirschberg from testifying before the jury.

I.

LEGAL STANDARD

Fed. R. Evid. 702 allows experts to offer opinion
testimony if:
“(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
issue;
“(b)
the
testimony
is
sufficient facts or data;

based

on

“(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
the case.”
Fed. R. Evid. 702.

If an expert’s testimony is otherwise

admissible, he may testify to the ultimate issue in a
civil case.

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,
597 (1993).

Even if part of an expert’s testimony is

2

based on unreliable methodology, the court should allow
those parts that are reliable and admissible.

United Fire

and Cas. Co. v. Whirlpool Corp., 704 F.3d 1338, 1342 (11th
Cir. 2013).

II. BACKGROUND
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.

However,

Zehner and UPS now argue that he was in shock and had
suffered a traumatic brain injury at the time of those

3

statements.

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
fallen asleep.

III. DISCUSSION
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
generally

about

concussions,

the

nature

retrograde

and

amnesia,

symptoms
and

of

mild

post-traumatic

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.

He

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.

4

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
interview

with

him

more

than

two

years

after

the

collisions, as well as the fact, documented in his medical
records, that he broke ribs during the collision.

The

factual basis of the doctor’s expert opinion is therefore
highly

dependent

statements.

on

the

truthfulness

of

Zehner’s

As the doctor testified in deposition, “If

the history is false, then the diagnosis is going to be
false.”

Kirschberg Dep., Pl’s Ex. C (Doc. No. 112-3) at

75:14-16.
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
finding.

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,

5

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
testimony

that

recollections,
purported

the

jury

after

two

symptoms.

will
years

Therefore,

hear:
had
such

Zehner’s

passed,
a

of

own
his

credibility

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
approval
permitted

from

the

to

state

court,

Dr.

whether,

Kirschberg
in

his

will

opinion,

not

be

Zehner

actually sustained a concussion or experienced amnesia.

6

* * *
Accordingly,

it

is

ORDERED

that

plaintiff

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