Trinidad v. Moore et al

Filing 137

MEMORANDUM OPINION AND ORDER as follows: 1. The 99 Motion in Limine Excluding Undisclosed Opinions of Dr. Nilesh Kotecha is GRANTED to the extent that Dr. Nilesh Kotecha may not offer an opinion as to causation in this case. 2. The 101 Motion in Limine Excluding Undisclosed Opinions of Dr. Victoria Do is GRANTED to the extent that Dr. Do may not offer an opinion which affirms the Life Care Plan in this case or which offers an opinion as to future surgeries of the Plaintiff. 3. The 47 Motio n to Preclude Testimony of Plaintiffs Expert Sasha R. Iversen, D.O. is GRANTED in part and DENIED in part. Dr. Iversen will be allowed to testify and to offer opinion and a Life Care Plan, but her opinions and Life Care plan will not include an opinion as to the need for or the costs of future surgeries of the Plaintiff. Signed by Honorable Judge W. Harold Albritton, III on 9/23/2016. (Attachments: # 1 Civil Appeals Checklist)(dmn, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

JOSE A. TRINIDAD,

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Plaintiff,
v.

DANIEL JOE MOORE, JR., and
RDB TRUCKING, LLC,
Defendants.

Civil Action No. 2:15cv323-WHA
(wo)

MEMORANDUM OPINION AND ORDER
I.

INTRODUCTION

This cause is before the court on a Motion to Preclude Testimony of Plaintiff’s Expert
Sasha R. Iversen, D.O. (Doc. #47), a Motion in Limine Excluding Undisclosed Opinions of Dr.
Victoria Do (Doc. #101), and a Motion in Limine Excluding Undisclosed Opinions of Dr. Nilesh
Kotecha (Doc. #99).
Dr. Iverson is offered as an expert who provided a life care plan in this case. Dr. Do is a
treating physician of the Plaintiff. Dr. Kotecha is also a treating physician of the Plaintiff.
The Defendants have moved to exclude testimony from the two treating physicians on the
basis that the Plaintiff seeks to have them offer expert opinions without having made the proper
disclosures under Fed. R. Civ. Pro. 26. As to Dr. Kotecha, the Defendants argue that the
Plaintiff’s counsel indicated at the pre-trial conference in this case that the doctor will testify as
to causation, but Dr. Kotecha was not disclosed as an expert, but merely listed as a witness. As to

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Dr. Do, the Defendants’ objection to her testimony was triggered by statements made by counsel
for the Plaintiff at the pretrial conference held in this case that Dr. Do would provide testimony
relevant to the Life Care Plan. The Defendants contend that Dr. Do should not be allowed to
affirm the Life Care Plan of Dr. Iversen or testify as to future treatment because Dr. Do was
never identified as an expert regarding the Plaintiff’s long-term future care or treatment.
As to Dr. Iversen’s testimony, the Defendants move for exclusion based on Fed. R. Evid.
702.
The court will begin with the Motions in Limine as to the testimony of Dr. Do and Dr.
Kotecha, and then address the Motion in Limine as to Dr. Iversen’s testimony.
II.

STANDARDS OF REVIEW
A. Rule 26 Disclosures

Rule 26(a) of the Federal Rules of Civil Procedure provides as follows:
(2) Disclosure of Expert Testimony.
(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must
disclose to the other parties the identity of any witness it may use at trial to present
evidence under Federal Rule of Evidence 702, 703, or 705.
(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or
ordered by the court, this disclosure must be accompanied by a written report--prepared
and signed by the witness--if the witness is one retained or specially employed to provide
expert testimony in the case or one whose duties as the party's employee regularly
involve giving expert testimony.
***
(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or
ordered by the court, if the witness is not required to provide a written report, this
disclosure must state:
(i) the subject matter on which the witness is expected to present evidence under Federal
Rule of Evidence 702, 703, or 705; and
(ii) a summary of the facts and opinions to which the witness is expected to testify.

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Fed. R. Civ. P. 26. Where a party fails to provide information as required under Rule 26(a), Rule
37 authorizes the court to sanction that party, including exclusion of evidence from trial. See
Fed. R. Civ. P. 37(c).
Section 8 of the Uniform Scheduling Order entered in this case on July 28, 2015 set
deadlines (later extended) for disclosure of “any person who may be used at trial to present
evidence under Rules 701, 702, 703, or 705 . . . .” and further provided that “The parties shall
comply fully with all requirements of Rule 26(a)(2) in regard to disclosure of expert testimony.”
B. Rule 702
The admissibility of expert testimony is governed by Fed. R. of Evid. 702 which
provides:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise 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 based on 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 the
case.
Rule 702, as interpreted by the Supreme Court, Aassign[s] to the trial judge the
task of ensuring that an expert=s testimony both rests on a reliable foundation and is
relevant to the task at hand.@ Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 587
(1993). This Agatekeeping@ function is important Ato ensure that speculative, unreliable
expert testimony does not reach the jury under the mantle of reliability that accompanies
the appellation expert testimony.@ Rink v. Cheminova, Inc., 400 F.3d 1286, 1291 (11th
Cir. 2005) (quotation and citation omitted).
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III.

DISCUSSION

A. Motion To Exclude Based on a Failure to Make Rule 26 Disclosures
As set out above, there are two different disclosure requirements under Rule 26 which
can apply to expert testimony. Rule 26(a)(2)(B) governs when a witness is one who is specially
retained to provide expert testimony and must provide a written report. Rule 26(a)(2)(C) applies
when a witness does not have to provide a written report. Under Fed. R. Civ. Pro. 26(a)(2)(C), if
a witness is not one who has to provide a written report, but the witness will present evidence
under Rule 702, 703, or 705, then the subject matter on which the witness is expected to present
evidence under Rules 702, 703, or 705, and a summary of the facts and opinions to which the
witness is expected to testify must be disclosed. These rules became effective in 2010. Fed. R.
Civ. Pro. 26(a)(2); Kondragunta v. Ace Doran Hauling & Rigging Co., No. 1:11cv1094, 2013
WL 1189493, at *3 (N.D. Ga. March 21, 2013).
The notes to the Rules, 2010 Amendment, state that under Rule 26(a)(2)(C), a witness
may “both testify as a fact witness and also provide expert testimony” and that “[f]requent
examples include physicians or other health care professionals and employees of a party who do
not regularly provide expert testimony.” This statement indicates that Rule 26(a)(2)(C)
disclosure requirements apply to treating physicians. In fact, one court has summarized the
operation of the two disclosure rules as follows: “[a]n expert report is required to be provided if
the expert is retained and specially employed to provide testimony in a case, and it is true this
requirement does not apply to Plaintiff’s treating physicians,” but Rule 26(a)(2)(C) “has a
specific requirement for disclosures regarding treating physicians . . .” Davis v. Green, No.
1:12cv3549-WSD, 2015 WL 3505665, *4 (N.D. Ga. June 3, 2015).
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1. Dr. Kotecha
The Defendants have moved in limine to exclude undisclosed opinions of Dr. Kotecha, a
treating physician. Specifically, the Defendants state that at the pretrial conference in this case,
Plaintiff’s counsel indicated that Dr. Kotecha may testify regarding causation, but Dr. Kotecha
was not disclosed as an expert witnesss.
Dr. Kotecha is listed on the Plaintiff’s witness list as a “may call” witness, and has been
identified in the briefing on the Motion in Limine as a treating physician. Dr. Kotecha is not
listed on the Plaintiff’s Amended Designation of Expert Witnesses. (Doc. #55-4). The Plaintiff
states that Dr. Kotecha was disclosed to the Defendants as a treating physician on March 14,
2016. Although the Plaintiff cites the court to the Plaintiff’s First Supplemental Disclosures, that
document was not filed with the court, and is not attached to the Plaintiff’s response, so the court
cannot review the scope of the disclosure. (Doc. #124 at p.6). The Plaintiff does not appear to
contend, however, that he complied with any Rule 26 disclosure requirements, other than to
identify Dr. Kotecha by name as a treating physician.
The issue before this court, therefore, is whether testimony as to causation by Dr.
Kotecha, a treating physician, falls within Rule 26(a)(2)(C). The Eleventh Circuit has explained
that “the testimony of treating physicians presents special evidentiary problems that require great
care and circumspection by the trial court.” Williams v. Mast Biosurgery USA, Inc., 644 F.3d
1312 (11th Cir. 2011). In Williams, the court relied on decisions from other circuits which
reasoned that a treating physician is not considered an expert witness if he or she testifies about
observations based on personal knowledge, including the treatment of the party, but when a
“treating physician’s testimony is based on a hypothesis, not the experience of treating the
patient, it crosses the line from lay to expert testimony.” Id. at 1317-18.
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Another district court, in an opinion relied upon by the Plaintiff, similarly has reasoned
that a physician who is not qualified as an expert may not provide explanations of scientific and
technical information unless it is grounded in the physician’s own observations and technical
experience. Eberhart v. Novartis Pharmaceuticals Corp., 867 F. Supp. 2d 1241 (N.D. Ga. 2011).
The court further pointed out that when causation is not necessary to provide medical treatment
and is based on a hypothesis, it is expert testimony. Id. at 1252.
Specifically with regard to causation testimony by treating physicians, courts addressing
the issue after 2010 have concluded that where a plaintiff offers a treating physician’s testimony
as to causation, the offering party is required to comply with Rule 26(a)(2)(C)). See, e.g., Davis
v. Green, No. 1:12cv3549-WSD, 2015 WL 3505665, at *3-4 (June 3, 2015); Kondragunta, 2013
WL 1189493, at *6.
The Plaintiff in this case has cited the court to cases to support his argument that
testimony as to causation is within the purview of a treating physician and does not require
disclosure under Rule 26(a). The cases cited by the Plaintiff, however, examine the scope of the
reporting requirement in Rule 26(a)(2)(B), not Rule 26(a)(2)(C), or were decided under the
previous version of the Rule. See Cobble v. Wal-Mart Stores E., No. 1:10cv10, 2010 WL
1088513, at *3 (N.D. Ind. March 19, 2010) and Odum v. Rayonier, Inc., No. Civ. A. CV204-190,
2007 WL 2002445, at *3 (S.D. Ga. July 5, 2007).1

1

One of the decisions relied on by the Plaintiff, Goodman v. Staples the Office
Superstore, LLC, 644 F.3d 817 (9th Cir. 2011), although decided after 2010, only addressed Rule
26(a)(2)(B), and concluded that “a treating physician is only exempt from Rule 26(a)(2)(B)'s
written report requirement to the extent that his opinions were formed during the course of
treatment.”

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This court is persuaded that when a treating physician offers an opinion as to causation,
unless that opinion was formed and given as part of treatment, that testimony is expert testimony
by the treating physician and triggers the requirements of Rule 26(a)(2)(C). In this case, the
court has not been provided the substance of the testimony from Dr. Kotecha, so the Plaintiff has
not shown that any opinion as to causation was made for the purpose of treatment of the Plaintiff.
The Plaintiff should have, but failed to, comply with the requirements of Rule 26(a)(2)(C) and
the requirements set out in the Uniform Scheduling Order.
A failure to make the appropriate disclosures under Rule 26(a)(2)(C) precludes a party
from introducing the testimony at trial unless the failure to comply was substantially justified or
harmless. See Fed. R. Civ. Proc. 37(c)(1). Courts generally apply a multi-factor test in applying
this rule. See Kondragunta, 2013 WL 1189493 at *7. These factors include surprise to the party
against whom the evidence would be offered, ability of the party to cure the surprise, the extent
to which allowing the evidence would disrupt the trial, the importance of the evidence, and the
nondisclosing party’s explanation for its failure to disclose. Id.
In this case, the Defendants’ motion was prompted by representations at the pretrial
conference that Dr. Kotecha would provide evidence as to causation. The Plaintiff states that Dr.
Kotecha was disclosed as a witness, but the court has no evidence as to the scope of that
disclosure. Although causation evidence is important in this case, as will be more fully
discussed below, the Plaintiff has an opinion by another treating physician as to causation.
Therefore, in view of the apparent surprise of the evidence close-in-time to the trial date, the fact
that there will be other evidence of causation, and the lack of evidence before the court as to the
scope of disclosure by the Plaintiff, the court cannot conclude that the Plaintiff has shown that

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his failure to comply is substantially justified or harmless under Rule 37. The Motion in Limine
as to testimony as to causation by Dr. Kotecha is due to be GRANTED.
2. Dr. Do
Dr. Do is also a treating physician of the Plaintiff, but Dr. Do provided an Expert Report
and was disclosed as an expert. The Defendants have not moved in limine to exclude all of Dr.
Do’s testimony, but only to exclude undisclosed opinions. Specifically, the Defendants state that
at the pre-trial conference held in this case, counsel for the Plaintiff indicated that Dr. Do would
provide approval of the Life Care Plan of Dr. Iversen and/or would provide an opinion as to the
Plaintiff’s future treatment.
The Defendants point to the Plaintiff’s First Amended Designation of Expert Witnesses
which states, “Dr. Do examined Plaintiff and has provided a report wherein she states that
Plaintiff has suffered spinal injuries as a result of this automobile accident with herniation of
cervical lumbar disc. Further opinions may be found in Dr. Do’s medical records.” (Doc. #1011). The Defendants point out that this summary does not reference future care. The Defendants
also state that none of Dr. Do’s medical records regarding the Plaintiff reflect any opinions
related to future medical treatment or a Life Care Plan.
The Plaintiff has cited the court to cases in which testimony as to prognosis was
considered to fall within a treating physician’s testimony. See, e.g., Odum v. Rayonier, Inc., No.
Civ A CV204-190, 2007 WL 2002445, at *3 (S.D. Ga. July 5, 2007). That case, however, was
decided prior to 2010, and the reporting requirements of Rule 26(a)(2)(C) which apply to treating
physicians.

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The court has discussed Rule 26(a)(2)(C) disclosure requirements above, and has
concluded that a treating physician’s testimony is an opinion which must be disclosed unless the
opinion was made within the course of treatment. As will be more fully discussed below, there
is evidence within the medical records and report of Dr. Do that the Plaintiff will require epidural
injections. The disclosures as to Dr. Do’s testimony and her medical records, however, do not
refer in any way to a Life Care Plan or other types of future treatment, such as anticipated
surgeries. This case presents somewhat unusual facts with regard to prognosis in that there is a
doctor’s report and there are medical records, but that evidence, which was disclosed, does not
include an opinion with regard to surgery. Instead, the Plaintiff apparently intends to have the
treating physician provide a new opinion, which was not provided during the course of treating
the Plaintiff, and was not disclosed, as to future treatment. Under these facts, the court concludes
that Dr. Do’s opinions as to future surgery are offered as expert testimony. See Williams v. Mast
Biosurgery USA, Inc., 644 F.3d 1312, 1317-18 (11th Cir. 2011) (reasoning that when a “treating
physician’s testimony is based on a hypothesis, not the experience of treating the patient, it
crosses the line from lay to expert testimony.”). Rule 26(a)(2)(C) disclosure requirements,
therefore, apply and were not met with respect to any opinion as to a Life Care Plan or to
anticipated surgeries.
As noted earlier, Rule 37 governs when a plaintiff has failed to make disclosures under
Rule 26(a). The Plaintiff asserts that the Defendants have claimed no prejudice in allowing Dr.
Do to testify as to future treatment, and that the probative value of Dr. Do’s testimony is high.
The testimony referred to in the pre-trial conference, affirming a Life Care Plan or testifying as
to future treatment, which is beyond that which had been disclosed as of the date of the pre-trial
conference, was a surprise to the Defendants, and the Plaintiff has not explained why this

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information was not previously disclosed. See Kondragunta, 2013 WL 1189493 at *7 (listing
the factors of surprise to the party against whom the evidence would be offered, ability of the
party to cure the surprise, the extent to which allowing the evidence would disrupt the trial, the
importance of the evidence, and the nondisclosing party’s explanation for its failure to disclose).
The court concludes, therefore, that the Motion in Limine is due to be GRANTED as to
testimony by Dr. Do as to affirmation of a life care plan or future treatment which is not
discussed in her medical records or report.
B. Rule 702 Motion to Exclude
Dr. Iversen has been offered by the Plaintiff as a retained expert. There is no objection to
the disclosures made of Dr. Iversen’s testimony under Rule 26. Instead, the Defendants seek to
exclude this testimony under Rule 702.
In determining the admissibility of expert testimony under Rule 702, this court must
conduct Aa rigorous three part inquiry,@ considering whether: (1) the expert is qualified to testify
competently regarding the matters he intends to address; (2) the methodology by which the
expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry
mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of
scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in
issue. City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir.1998).
Qualifications
Under Rule 702, to qualify as an expert, a witness is required to possess the “knowledge,
skill, experience, training or education” relevant to the evidence at issue. Fed. R. Evid. 702.

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The Defendants do not object to Dr. Iversen’s qualifications generally, but instead argue
that orthopedics and orthopedic surgery are fields outside of Dr. Iversen’s area of expertise, so
she is not qualified to offer the opinion that the Plaintiff will need 6 epidural injections, a
cervical discectomy and fusion surgery, and a lumbar laminectomy, discectomy, and fusion
surgery.
The Plaintiff responds that he is not offering Dr. Iversen as an expert in the various types
of surgery. He points to Dr. Iversen’s deposition testimony that as a rehabilitation physician she
routinely will recommend and perform cervical and lumbar epidural injections. The Plaintiff
states that Dr. Iverson reviewed medical records, conducted a physical exam, and made an
estimate of the probable care Trinidad would need based on the information and her own
experience.
Dr. Iverson is a Doctor of Osteopathy who is employed as a Certified Life Care Planner.
She is licensed in the State of Texas and board certified in Physical Medicine and Rehabilitation
and has practiced medicine since 2012. Her education, experience, and training qualify her to
express an opinion, and to base her life care plan for the Plaintiff on that opinion, consistent with
her experience and the medical records that she reviewed. See M.D.P. v. Middleton, 925 F.
Supp. 2d 1272, 1275–76 (M.D. Ala. 2013) (finding the life care planner was qualified to offer
testimony even though the life care planner does not make medical recommendations, but pulls
recommendations from medical records, or gets them from treating doctors). The court
concludes that she is qualified to provide expert testimony in this case, but will address particular
opinions she has offered within the context of reliability analysis.
Reliability

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The Defendants argue that Dr. Iversen’s opinions are not reliable because they are not
based on sufficient facts or data, but instead are based on speculation. Specifically, the
Defendants argue that Dr. Iversen’s testimony is not based on sufficient facts or data because she
did not ask the Plaintiff about his history of fibromyalgia or his activities prior to the accident
and only spoke to the Plaintiff about the accident, nor did she review a 2010 MRI. The
Defendants also state that Dr. Iversen did not review all of the available medical records.
The Defendants also criticize Dr. Iversen’s methodology, stating that she used a
technique of “drag and drop,” boilerplate language in the software to complete sections of the
Life Care Plan.
The Defendants offer testimony from John Dahlberg, M.A., who is a life care planner and
is critical of Dr. Iversen’s methods and says they do not meet industry standards. The
Defendant’s expert, Dr. Andrew Cordover, has specific criticisms, such as that the vendor
surveys include name brand medications, a pediatric practice’s prices are used for one projection,
and there is no explanation for why vocational evaluation and counseling costs are included even
though the Plaintiff currently is employed as a truck driver.
The Plaintiff responds that Dr. Iversen has testified that in preparing the Life Care Plan,
she followed the methodology outlined in the textbook for Life Care Planners and peer-reviewed
journals. Dr. Iversen explains in her deposition that she collected data, including medical
records, her own interview and examination of the Plaintiff, and other records and information.
The Plaintiff argues that there is nothing wrong with using forms to complete the Life Care Plan,
and that the Defendants’ criticisms go to weight.

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In determining reliability, the court may ask: “(1) whether the expert's theory can be and
has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the
known or potential rate of error of the particular scientific technique; and (4) whether the
technique is generally accepted in the scientific community.” McCorvey v. Baxter Healthcare
Corp., 298 F.3d 1253, 1256 (11th Cir. 2002). Other factors which may be relevant to a
determination of reliability are (1) whether they have developed their opinions expressly for the
purpose of testifying, (2) whether there is an analytical gap between an accepted premise and a
conclusion, (3) the expert's consideration of alternative hypotheses, (4) the degree of care
exercised, (5) and whether the field of expertise is known to reach reliable results. See
Fed.R.Evid. 702.
Standards of scientific reliability, such as testability and peer review, do not apply to all
forms of expert testimony, however. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 151 (1999).
For nonscientific expert testimony, “the trial judge must have considerable leeway in deciding in
a particular case how to go about determining whether particular expert testimony is reliable.” Id.
at 152.
Dr. Iversen conducted a physical examination of the Plaintiff and reviewed medical
records provided to her. One of the medical records she reviewed was from an October 14, 2015
examination of the Plaintiff by Dr. Victoria Do. In her report, Dr. Iversen summarizes Dr. Do’s
report as stating that Trinidad had an MRI in November of 2014 which showed C6-C7 herniation
and another MRI from the same date showed L4-L5 herniation and L5-S1 herniation. Dr. Do
recommended a lumbar epidural steroid injection and a referral to a neurologist for an EMG. Dr.
Iversen’s report states that Dr. Do indicated that Trinidad had suffered spinal injuries as a result
of the accident and that Trinidad had significant pain and was a candidate for cervical and
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lumbar ESI. Dr. Do’s medical reports, therefore, as summarized, include evidence regarding
causation and epidural injections.
In the Plaintiff’s Supplemental Designation of Expert Witnesses, the Plaintiff discloses
that Randy Salmons, Ph.D. will provide an opinion as to the Plaintiff’s barriers to employment
based on his physical limitations and the opinions of the Plaintiff’s treating physicians. This
expert testimony has not been objected to. Therefore, there will be evidence presented as to an
impairment to the Plaintiff’s employability.
Dr. Iversen also used vendor pricing for services to estimate costs in her Life Care Plan.
The fact that the Defendants’ experts are critical of Dr. Iversen’s methods does not mean
that her methods lack sufficient reliability to be admissible. Kuithe v. Gulf Caribe Mar., Inc., No.
CIV.A. 08-0458-WSC, 2009 WL 4694790, at *2 (S.D. Ala. Nov. 25, 2009) (stating that it is
“error to conflate admissibility with credibility, as by considering the relative weight of
competing experts and their opinions.”).
The court concludes based on Dr. Iversen’s reliance on medical records, her own
examination of the Plaintiff as a certified physician, her reliance on other sources of information,
her use of an established methodology, and the existence of facts in other evidence which
support her opinions means that the majority of her opinions, such as her opinions regarding
future epidural injections and employment impairment, is sufficiently reliable to be considered
by the jury, and that the Defendant’s objections go to weight. Deramus v. Saia Motor Freight
Line, LLC, No. 2:08-CV-23-MEF, 2009 WL 1664084, at *2 (M.D. Ala. June 15, 2009) (finding
that where a proposed life care plan was based on a review of Plaintiff's medical records,
depositions taken from Plaintiff's physicians, and numerous meetings with Plaintiff any objection

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to the opinions must go to the weight the jury should give to her testimony rather than its
admissibility); In re Knudsen, No. CIV.A. 08-00505-CG-B, 2010 WL 1994906, at *8 (S.D. Ala.
May 17, 2010) (arguments that the life care planner did not consider various facts and
arguments in making her opinions or whether she contacted enough “sitter services” or “care
facilities” in calculating an average price for those services concern the weight of the evidence
rather than the reliability of the expert's application of her methodology).
Dr. Iversen’s Life Care plan also includes cost projections for future surgeries, however,
which presents a different reliability issue. Although there is evidence as to epidural injections
in Dr. Do’s report, there is no recommendation from any treating physician that the Plaintiff have
surgery. At the pre-trial conference, when Plaintiff’s counsel was asked specifically about the
basis for a Life Care Plan which includes future surgery, Plaintiff’s counsel referred to testimony
by Dr. Do. For the reasons set forth above, any opinion testimony by Dr. Do which was not
disclosed pursuant to Rule 26 is due to be excluded, and no testimony as to recommended
surgery was disclosed previously.
In her deposition, Dr. Iversen was asked whether any treating physician recommended
that the Plaintiff have a cervical fusion and she answered, “No, they’ve started now, now he’s
finally seen an orthopedist and now they’re recommending nerve blocks and if that doesn’t work,
you know, I’m sure they’ll go on to the next step. I don’t know what the surgeon is going to
recommend.” (Doc. #47-1 p. 175:17-21).
Dr. Iversen has stated in her deposition that based on her training and her experience with
other patients, she can offer the opinion that the Plaintiff will require surgery in the future. (Doc.
#47-1 at p. 175:10-11),

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Simply because an expert may be qualified by experience does not mean that experience
“is a sufficient foundation rendering reliable any conceivable opinion the expert may express.”
United States v. Frazier, 387 F.3d 1244, 1261 (11th Cir. 2004).
Dr. Iversen’s review of medical records revealed no recommendation that the Plaintiff
have surgery of any kind, and she stated in her deposition that she did not know what a surgeon
would recommend. Because Dr. Iverson is not an orthopedist, the court agrees that an opinion
that the Plaintiff requires surgery for his condition, even though no treating physician has
recommended surgery, is not based on sufficiently reliable evidence, but is instead based on
speculation. The court concludes, therefore, that Dr. Iversen will not be allowed to testify about
future medical care for which there is no recommendation in the Plaintiff’s medical records or a
treating physician, specifically, future surgeries.
Helpfulness to the jury
The Defendants contend that Dr. Iversen’s testimony will not be helpful to the jury,
specifically her testimony as to future treatment, because none of the Plaintiff’s treating
physicians have recommended that he receive the treatment Dr. Iversen recommends. The
Defendants argue that the Plaintiff’s recovery of damages requires a showing that the expenses
are reasonably certain to be incurred as a result of the plaintiff’s current physical injury.
The court agrees and finds that on the alternative basis of lack of helpfulness to the jury
that an opinion by Dr. Iversen that the Plaintiff will require surgery in the future and cost
projections based on future surgeries are due to be excluded.
IV.

CONCLUSION

For the reasons discussed, it is hereby ORDERED as follows:
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1.

The Motion in Limine Excluding Undisclosed Opinions of Dr. Nilesh Kotecha (Doc.
#99) is GRANTED to the extent that Dr. Nilesh Kotecha may not offer an opinion as
to causation in this case.

2. The Motion in Limine Excluding Undisclosed Opinions of Dr. Victoria Do (Doc.
#101) is GRANTED to the extent that Dr. Do may not offer an opinion which affirms
the Life Care Plan in this case or which offers an opinion as to future surgeries of the
Plaintiff.
3. The Motion to Preclude Testimony of Plaintiff’s Expert Sasha R. Iversen, D.O. (Doc.
#47) is GRANTED in part and DENIED in part. Dr. Iversen will be allowed to
testify and to offer opinion and a Life Care Plan, but her opinions and Life Care plan
will not include an opinion as to the need for or the costs of future surgeries of the
Plaintiff.

Done this 23rd day of September, 2016.

/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT COURT

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