Bostick v. State Farm Mutual Automobile Insurance Company

Filing 75

ORDER denying (Doc. # 59 ) Motion to Limit Defendant's Expert Witness, Michael J. Foley, M.D. Signed by Judge Virginia M. Hernandez Covington on 7/11/2017. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LISA N. BOSTICK,
Plaintiff,
v.

Case No. 8:16-cv-1400-T-33AAS

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant.
_____________________________/
ORDER
This cause is before the Court pursuant to Plaintiff
Lisa N. Bostick’s Motion to Limit Defendant’s Expert Witness,
Michael J. Foley, M.D. (Doc. # 59), filed June 1, 2017.
Defendant, State Farm Mutual Automobile Insurance Company
filed a Response in Opposition to Plaintiff’s Motion on June
30, 2017. (Doc. # 72). For the reasons that follow, the Court
denies the Motion.
I.

Background
Bostick filed the Complaint in state court against State

Farm

seeking

payment

of

underinsured

motorist

benefits

related to a car accident that occurred on November 14, 2013.
(Doc. # 2). State Farm removed the case on June 2, 2016, based
on complete diversity of citizenship. (Doc. # 1).

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Bostick,

a University of Tampa professor, claims to have suffered a
disabling and permanent brain injury (axonal shearing) as a
result of the crash. (Doc. # 67 at 4).
that

the

car

accident

was

a

While Bostick claims

significant

and

traumatic

incident, State Farm characterizes the crash as a mere fender
bender.
State Farm retained expert witness, Michael J. Foley,
M.D., a radiologist, and disclosed the same to Bostick on
March

10,

2017.

(Doc.

#

72

at

2).

State

Farm

retained

Dr. Foley “to assist the jury’s understanding of traumatic
brain

injuries”

and

“to

read

Plaintiff’s

numerous

radiographic films, including MRIs of the brain [and] to offer
opinions within his area of specialty as to his radiological
interpretation of those images.” (Id.).
Dr. Foley was deposed on May 12, 2017, during which he
stated that because he did not review all of the medical
records, he would be unable to give a total causation opinion.
(Doc. # 59 at 1-2). He added that, in effect, radiology alone
is insufficient to diagnose a brain injury from an MRI; “it
requires

clinical

correlation.”

(Id.

at

4).

Bostick

accordingly seeks an order limiting Dr. Foley’s opinion and
specifically
testimony.

precluding

him

offering

causation

In its response, State Farm explains that Dr.

2 

from

Foley is not going to give a global causation opinion, but,
rather, his opinion will reflect what he saw on the films.
II.

Discussion
Federal Rules of Evidence Rule 702, which governs the

admissibility of expert testimony, states that:
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.
Fed. R. Evid. 702.
When

a

party

raises

an

objection

to

an

expert’s

testimony, the Court must perform its gatekeeping duties to
determine whether the expert testimony “is not only relevant,
but reliable.” Daubert v. Merrell Dow Pharm., 509 U.S. 579,
589 (1993). When deciding Daubert issues, the trial judge has
broad discretion in how to conduct the review. Kumho Tire Co.
v.

Carmichael,

526

U.S.

137,

152

(1999).

Usually,

“the

rejection of expert testimony is the exception rather than
the rule.” See Advisory Committee Notes to the 2000 Amendment
to Rule 702.

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The Eleventh Circuit has adopted a three-part analysis
for determining whether expert testimony is admissible under
Daubert and Rule 702:
To fulfill their obligation under Daubert, district
courts must engage in a rigorous inquiry to
determine 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.
Rink v. Cheminova, Inc., 400 F.3d 1286, 1291–92 (11th Cir.
2005) (internal citations omitted). The party offering the
expert has the burden of satisfying each of these elements by
a preponderance of the evidence. Id. at 1292; see also Allison
v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999).
A.

Dr. Foley is Qualified

State Farm included Dr. Foley’s CV, which reflects that
Dr.

Foley

has

over

thirty-five

years

of

medical

and

radiological experience in interpreting radiologic images and
seeing, diagnosing, and treating patients. (Doc. # 72 at 5).
During his professional career, he received triple board
certification by the American Board of Radiology. (Id.). In
addition, he is among the 10% of radiologists to have the

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distinction of being elected as a Fellow of the American
College of Radiology. (Id.). Since 1987, he has been qualified
as an expert in both state and federal courts in Florida on
numerous occasions. (Id.)
Based on these credentials, Bostick does not challenge
the qualifications of Dr. Foley as an expert in the field of
radiology. Therefore, the Court concludes that Dr. Foley is
qualified to testify competently regarding his findings in
the radiology report on Bostick. The first prong of the
Daubert analysis is satisfied.
B.

Dr. Foley’s Methodology is Sound

The

methodology

consistent

with

the

used

by

Dr.

literature

Foley

and

is

standard

methodology

used

and
by

radiologists in the United States. (Id. at 6). It is within
the province of radiologists to view an MRI and differentiate
between

evidence

of

acute

injury

versus

evidence

of

degeneration due to the aging process. (Id. at 7).
Bostick

relies

heavily

on

Dr.

Foley’s

deposition

testimony to support her present motion. She contends that
Dr. Foley, by his own admission, cannot sufficiently diagnose
a brain injury from an MRI. (Doc. # 59 at 4). Rather,
“[causation] requires clinical correlation.” (Id. at ¶ 1).
Bostick seeks to exclude or limit Dr. Foley’s testimony

5 

because “State Farm should not be permitted to request Foley
to speculate based on the limited scope of his clinical
inquiry.” (Id. at ¶ 2).
The

Court

is

not

convinced

by

Bostick’s

argument.

Bostick is free to bring Dr. Foley’s statements regarding
causation to the attention of the jury and to cross-examine
Dr. Foley in this regard.

However, Dr. Foley’s statements,

which reflect his careful and nuanced opinion regarding the
limitations

of

radiological

evidence

in

extrapolating

causation, are not a basis for striking or limiting Dr.
Foley’s testimony.
v.

GMAC

Mortg.

In Taylor, Bean & Whitaker Mortg. Corp.

Corp.,

No.

5:05-cv-260-Oc-GRJ,

2008

WL

3819752, at *5 (M.D. Fla. Aug. 12, 2008), the court noted:
[T]hese arguments go more to the weight of the
evidence, than the admissibility of the evidence
under Daubert. The Court need not determine that
the expert [defendant] seeks to offer into evidence
is irrefutable or certainly correct. The certainty
and correctness of [the expert’s] opinion will be
tested through cross-examination and presentation
of contrary evidence and not by a Daubert
challenge. Indeed the Court’s role as gatekeeper
is not intended to supplant the adversary system or
the role of the jury.
Id.
The reasoning adopted in Taylor, Bean & Whitaker is
applicable here.
reviewed

every

And, although Dr. Foley will not have
available

medical

6 

record

in

making

his

determination,

Bostick

has

not

shown

that

Dr.

Foley’s

testimony is unsound. (Doc. # 59 at 1-2). Bostick should
resolve her challenges to the expert’s methodology through
the

adversary

system.

“Vigorous

cross-examination,

presentation of contrary evidence, and careful instruction on
the burden of proof are the traditional and appropriate means
of attacking shaky but admissible evidence.” Allison, 184
F.3d at 1311-12 (quoting Daubert, 509 U.S. at 596).
The Court concludes that Dr. Foley’s methodology is
sufficiently reliable and satisfies the second factor of the
Daubert analysis.
C.

Dr. Foley Will Assist the Trier of Fact

Expert testimony is helpful to the trier of fact “if it
concerns matters that are beyond the understanding of the
average lay person.” United States v. Frazier, 387 F.3d 1244,
1262 (11th Cir. 2004). In other words, “[p]roffered expert
testimony generally will not help the trier of fact when it
offers nothing more than what lawyers for the parties can
argue in closing arguments.” Id. at 1262–63.
Dr.

Foley,

a

physician

with

thirty-five

years

of

experience in diagnostic radiology, will assist the jury as
they are confronted with radiological evidence. In addition
to studying and practicing radiology, Dr. Foley has also

7 

taught at two different medical schools. Given Dr. Foley’s
experience

and

radiology,

it

the
is

complexity
unlikely

inherent

that

the

in

the

average

field

lay

of

person

possesses the education and training necessary to understand
what is shown on the radiological film and, more importantly,
what the significance of those findings are. Thus, the Court
finds that Dr. Foley’s testimony will assist the trier of
fact and denies the Motion to Strike.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Plaintiff Bostick’s Motion to Limit Defendant’s Expert
Witness, Michael J. Foley, M.D. (Doc. # 59), is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
11th day of July, 2017.

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