Carmody v. State Farm Mutual Automobile Insurance Company
Filing
84
ORDER granting 76 Motion in Limine to Limit Expert Testimony of Robert Masson, M.D. Signed by Judge Roy B. Dalton, Jr. on 9/18/2015. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
WILLIAM SCOTT CARMODY,
Plaintiff,
v.
Case No. 6:14-cv-830-Orl-37KRS
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant.
ORDER
This cause is before the Court on the following:
(1)
Daubert Motion to Limit Expert Testimony of Robert Masson, M.D.
(Doc. 76), filed May 15, 2015; and
(2)
Plaintiff’s Opposition and Response to Defendant’s Daubert Motion
(Doc. 78), filed May 29, 2015.
BACKGROUND
Plaintiff William Scott Carmody is Defendant State Farm Mutual Automobile
Insurance Company’s insured under Automobile Insurance Policy 028708159E
(“Policy”), which includes coverage for uninsured motorist insurance benefits
(“UM Benefits”). (See Doc. 2, ¶ 6; Doc. 1-1, p. 13; see also Doc. 7, ¶¶ 6, 11–12.) On
September 22, 2011, Jennifer R. Vause (“UM Motorist”) negligently “rear-ended” the
vehicle occupied by Plaintiff (“2011 Accident”). Contending that the 2011 Accident
caused him permanent injuries, and the UM Motorist would likely be unable “to fully
compensate” Plaintiff for his losses, Plaintiff demanded UM Benefits under the Policy.
(See Doc. 2, ¶¶ 2–4, 7–8.) Defendant failed to pay Plaintiff UM Benefits as requested,
which Plaintiff claims is a breach of the Policy (see id. ¶¶ 9–10). Defendant admits that
the Policy provides coverage for the Accident; however, it denies that Plaintiff sustained
injuries or damages from the Accident sufficient to trigger an entitlement to UM Benefits.
(See Doc. 7, ¶¶ 6, 8–9, 11–12.)
On September 10, 2014, the Court entered its Case Management and
Scheduling Order (“CMSO”) requiring—among other things—that Plaintiff and
Defendant submit their Disclosure of Expert Reports by December 19, 2014, and
January 20, 2015, respectively. (Doc. 18, p. 14.) Thereafter, contentious discovery
ensued which required repeated Court intervention. (See Doc. 25, 28, 30, 33, 34, 37,
39, 47, 56, 62, 65, 73, 75.) Pertinent to the matters presently before the Court, the Court
entered Orders sanctioning Plaintiff for his untimely and insufficient expert witness
disclosures by precluding Plaintiff’s reliance on the testimony of certain medical
professionals and also limiting the testimony of Plaintiff’s remaining “treating”
physicians—Richard
Smith,
M.D.
(“Dr.
Smith”)
and
Robert
Masson,
M.D.
(“Dr. Masson”)—to “opinions formed based on observations made during the course of
[Plaintiff’s] treatment.” (See Doc. 62, p. 10; see also Doc. 75 (rejecting Plaintiff’s
objections and adopting and affirming Order imposing sanctions).)
On March 20, 2015, Plaintiff disclosed that Dr. Masson “will testify that the [2011
Accident] caused the onset of [Plaintiff’s] symptoms and aggravation of a pre-existing
lumbar condition” and “about how the [A]ccident-related injuries have impacted the life
of Plaintiff.” (See Doc. 53, p. 4.) Further, Dr. Masson will “provide expert testimony that
the injuries caused by [the Accident] to the Plaintiff are permanent, and require future
medical care.” (Id. (emphasis added).) After deposing Dr. Masson, Defendant filed a
motion requesting entry of an Order prohibiting Dr. Masson from offering expert
2
testimony as to the cause of Plaintiff’s injuries. (See Doc. 76 (“Daubert Motion”).)
Plaintiff filed his response. (Doc. 78.) The action is set to be tried before a jury during
the trial term commencing November 2, 2015 (Doc. 18), and the Daubert Motion is now
ripe for adjudication. 1
LEGAL STANDARDS
Before allowing a party to present the opinion testimony of an expert witness at a
jury trial, courts must act as a “gatekeeper” by making a preliminary determination that
the requirements of Federal Rule of Evidence 702 are satisfied. See Daubert v. Merrell
Dow Pharms., Inc., 509 U.S. 579, 590 (1993); see also Fed. R. Evid. 104(a). Rule 702
provides that a witness with the requisite “knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise” if: (a) the witness
possesses “scientific, technical, or other specialized knowledge” that “will help the trier
of fact to understand the evidence or to determine a fact at 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.” These requirements help ensure that any expert testimony presented
at a jury trial is relevant, reliable, and supported on “good grounds.” See Daubert,
509 U.S. at 589–90. Further, under Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152
(1999), the court must ensure that expert witnesses present “in the courtroom the same
level of intellectual rigor that characterizes the practice of the expert in the field.”
The U.S. Court of Appeals for the Eleventh Circuit has identified three questions
that the district court should consider before allowing expert testimony. See City of
1
The Court set the matter for a hearing (Doc. 80), but the Court cancelled the
hearing based on the parties’ representations that neither would present evidence at the
hearing (Doc. 81).
3
Tuscaloosa v. Harcros Chem., Inc., 158 F.3d 548, 562 (11th Cir. 1998). First—
qualification—is the expert qualified to testify competently regarding the matters he
intends to address? Id. Second—reliability—is the methodology by which the expert
reaches his conclusions sufficiently reliable? Id. Third—helpfulness—does the
testimony assist the trier of fact, through the application of scientific, technical, or
specialized expertise, to understand the evidence or to determine a fact in issue.? Id.
The party presenting the expert witness must establish by a preponderance of the
evidence that all three of these questions are answered in the affirmative. See id.;
Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1335 (11th Cir. 2010).
The court’s reliability assessment must focus “solely on principles and
methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 595.
Such focus is aided by consideration of a non-exhaustive list of factors, including any
known or potential rate of error, whether the methodology is generally accepted in the
expert’s field, and whether it has been subjected to peer review, publication, or testing.
See id. at 593–94. If the “methodology” is no more than the expert’s own ipse dixit, then
the court should not permit the opinion testimony. See Gen. Elec. Co. v. Joiner,
522 U.S. 136, 146 (1997) (directing courts to exclude expert witness testimony when
there is “simply too great an analytical gap between the data and the opinion
proffered”).
DISCUSSION
Dr. Masson is an experienced and decorated physician in the field of
Neurosurgery, and Defendant does not challenge his qualifications. (See Doc. 76; see
also Doc. 78, pp. 21–29.) Rather, Defendant challenges the reliability of Dr. Masson’s
opinion that Plaintiff’s physical injuries and problems were caused by the 2011 Accident.
4
(See Doc. 76.) Defendant argues that these opinions are unreliable because:
(1) Dr. Mason lacks “a proper foundation, i.e. sufficient facts and data” for his causation
opinion; (2) Dr. Mason based his causation opinion solely on the patient history relayed
by Plaintiff rather than a methodology founded on scientific methods or techniques; and
(3) Dr. Mason failed to exclude other possible causes of Plaintiff’s injuries. (Id. at 3, 6, 8,
12.) Plaintiff counters that Dr. Masson’s causation opinions are sufficiently reliable
because they are based on the “traditional medical concept of subjective, objective
(physical exam), assessment and prognosis” (SOAP method). 2 (See Doc. 78, p. 13.)
Dr. Masson testified that he examined Plaintiff only one time—after this action
was filed and almost four years after the 2011 Accident. (Doc. 76, p. 15.) Aside from an
MRI study—done on a date unknown to Dr. Masson—he did not review Plaintiff’s prior
medical reports or medical history, and he did not communicate with Plaintiff’s prior
doctors or therapists before making his causation opinion. (See id. at 16–17.) Rather,
Dr. Masson relied on the history provided to him by Plaintiff, which reflected a close
temporal proximity between the 2011 Accident and onset of his injuries and omitted
information about prior injuries Plaintiff sustained in train and automobile accidents
before the 2011 Accident. 3 (Id. at 18–19, 24 (admitting that he did not know of or
consider prior accidents).)
2
The Court is not persuaded by Plaintiff’s argument concerning SOAP. SOAP
may be a generally accepted methodology for certain medical treatment purposes—
such as forming a diagnosis or treatment plan—but it is not a generally accepted
methodology for determining the cause of a medical problem. Further, Plaintiff has not
shown that, when used to determine causation, SOAP has a known error rate, is subject
to testing, or has been subject to peer review.
3 Dr. Masson testified that the injuries he found during his physical examination
of Plaintiff were “consistent with the story the patient gave [him].” (Doc. 76, p. 25.)
5
Courts frequently exclude causation opinion testimony from expert witnesses
who—like Dr. Masson—base their opinions on a plaintiff’s account of the facts without
consideration of other possible causes of an injury. See Kilpatrick v. Breg, Inc., 613 F.3d
1329, 1336 (11th Cir. 2010); Hendrix ex rel. G.P. v. Enenflo Co., Inc. 609 F.3d 1183,
1195 (11th Cir. 2010) (holding that the expert must not only rule out other possible
causes to get to the final suspected cause, but also make sure the final cause is derived
from a scientific methodology); Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cnty.,
402 F.3d 1092, 1111 (11th Cir. 2005); see also Cooper v. Marten Transport, Ltd, 539 F.
App’x 963 (11th Cir. 2013); 4 see Bowers v. Norfolk S. Corp., 537F.Supp.2d 1343, 1366
(M.D. Ga. 2007) (rejecting causation opinion of physician which was based on an
incomplete medical history). Based on this law, and a careful review of the record—
particularly Dr. Masson’s deposition—the Court finds that Plaintiff has not established
by a preponderance of the evidence that Dr. Masson’s subjective causation opinion is
based on sufficient facts and data nor that it is the product of a reliable methodology.
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED that the Daubert Motion
to Limit Expert Testimony of Robert Masson, M.D. (Doc. 76) is GRANTED.
4
The district court in Cooper precluded two physicians—Drs. Pollydore and
Kelly—from offering expert opinions concerning the cause of a plaintiff’s spinal injuries.
Cooper, 539 F. App’x at 967. Drs. Pollydore and Kelly were the Cooper plaintiff’s
treating physician and surgeon, and the district court determined that their causation
opinions were not reliable because they were based only on physical examinations of
the Cooper plaintiff and a review of his medical history in relation to the subject
accident. See id. at 966–67. The Eleventh Circuit agreed with the exclusion ruling
because the methodology employed by Drs. Pollydore and Kelly amounted to “simple
reliance on a temporal relationship” without considering and excluding alternative
causes. Id. (rejecting plaintiff’s characterization of his experts’ methodology as properly
founded on “basic physics principles and the effects of force on the spine”).
6
DONE AND ORDERED in Chambers in Orlando, Florida, on September 18,
2015.
Copies:
Counsel of Record
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