Bostick v. State Farm Mutual Automobile Insurance Company

Filing 76

ORDER: Plaintiff Lisa N. Bostick's Motion to Limit the Testimony of Defendant's Expert Witness Ronald J. Fijalkowski, Ph.D. (Doc. # 60 ) is denied. Signed by Judge Virginia M. Hernandez Covington on 7/17/2017. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LISA N. BOSTICK,
Plaintiff,
Case No. 8:16-cv-1400-T-33AAS

v.
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant.
_____________________________/

ORDER
This cause is before the Court pursuant to Plaintiff
Lisa N. Bostick’s Motion to Limit the Testimony of Defendant’s
Expert Witness, Ronald J. Fijalkowski, Ph.D. (Doc. # 60),
filed June 1, 2017. Defendant, State Farm Mutual Automobile
Insurance

Company,

filed

a

Response

in

Opposition

to

Plaintiff’s Daubert Motion on July 3, 2017, (Doc. # 73). For
the reasons that follow, the Court denies the Motion.
I.

Background
After sustaining injuries in a November 14, 2013, car

accident, Bostick filed a state court action against State
Farm for breach of contract in which she seeks recovery of
uninsured motorist benefits. (Doc. # 2). State Farm removed

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the case to this Court on June 2, 2016, under 28 U.S.C. §
1332. (Doc. # 1).
State

Farm

retained

expert

witness,

Ronald

J.

Fijalkowski, Ph.D., a biomechanical and biomedical engineer,
and properly disclosed his identity to Bostick on March 10,
2017. (Doc. # 60 at 1). Dr. Fijalkowski was retained to assist
the jury in understanding the mechanics and biomechanics of
the car accident, including the forces involved, levels of
force reasonably necessary to result in certain injuries, the
likelihood of injury to Bostick, and any other opinions
arising out of his review of reports and incident-related
documentation. (Id.).
II.

Discussion
Bostick contends that Dr. Fijalkowski’s methodology is

flawed

because

Dr.

Fijalkowski

failed

to

take

into

consideration Bostick’s idiosyncratic features. (Doc. # 60 at
12). Bostick requests that the Court limit Dr. Fijalkowski’s
testimony

to

discussion

of

the

forces

involved

collision because he is not a medical doctor. (Id.).

in

the

Bostick

particularly objects to Dr. Fijalkowski providing causation
testimony.
In

its

response,

State

Farm

explains

that

Dr.

Fijalkowski “did not utilize a ‘one size fits all’ statistical

2

analysis, and that he ‘had to account for her [specific]
biomechanical attributes.’” (Doc. # 73 at 8). Further, Dr.
Fijalkowski “will not be opining as to prognosis, diagnosis,
nor treatment for same. Dr. Fijalkowski will opine as to
biomechanical/biomedical causation of injury, as well as
mechanism of injury; however, he will not ‘go beyond the
typical expertise of a biomechanical engineer.’” (Doc. # 73
at 6).
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 the review is conducted. Kumho Tire

3

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.
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. Fijalkowski is Qualified

State Farm included Dr. Fijalkowski’s CV as an exhibit
to

its

response.

(Doc.

#

73-1).

Dr.

Fijalkowski

is

a

biomedical engineer with a Ph.D. in biomedical engineering

4

from Marquette University. (Id.). His scientific research has
focused on trauma biomechanics, with specialties in injury
causation biomechanics, brain injury biomechanics, spinal
biomechanics, sports biomechanics, human injury mechanisms,
human

tolerance

thresholds,

reconstruction,

and

Fijalkowski

a

Society,

is

Society

diffuse

member
of

of

vehicular

brain
the

Automotive

injury.

(Id.).

Biomedical

Engineers,

accident
Dr.

Engineering

International

Society of Biomechanics in Sports, and American Society of
Mechanical Engineers. (Id.). Dr. Fijalkowski is also a member
of

the

Industry

Affairs

Committee

within

the

Biomedical

Engineering Society. (Doc. # 73-2). Further, Dr. Fijalkowski
has published eight peer-reviewed publications, which focus
on spine and brain injury. (Doc. # 73-1).
Based on these credentials, Bostick does not challenge
the qualifications of Dr. Fijalkowski as an expert in the
field of biomechanics. Therefore, the Court concludes that
Dr. Fijalkowski is qualified to testify competently regarding
his findings in the biomedical and biomechanical engineering
report on Bostick. The first prong of the Daubert analysis is
satisfied.
B.

Dr. Fijalkowski’s Methodology

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The methodology used by Dr. Fijalkowski is reliable,
peer-reviewed, and scientifically accepted. (Doc. # 73 at 8).
Dr. Fijalkowski described his five step peer reviewed and
generally accepted methodology in his deposition:
The first of which is to evaluate how severe that
collision is and then focus in on identifying the
injuries that were diagnosed by the treating
physicians. So[,] in this case, it’s just simply
reviewing the medical records to identify those
diagnoses. The third step is to evaluate the
response of Dr. Bostick in response to those
forces; so how did her body move, how much force
was applied to different components of her body,
and did those forces – were they applied in the
right direction and were they hard enough to create
the injury mechanism to cause those injuries in the
context of human tolerance and her unique
biological attributes.
(Id. at 9-10). Dr. Fijalkowski’s report includes 137
footnotes in support of his methodology. (Id.).
Bostick
Fijalkowski

points
utilized

out

that

does

not

the

methodology

take

into

Dr.

account

Bostick’s unique circumstances, such as her measurements
or

body

size;

the

testimony

of

before-and-after

witnesses; or whether the fact that Bostick is a female
was part of the analysis. (Id. at 11). However, the “one
size fits all” approach complained of by Bostick is
contrary to Dr. Fijalkowski’s analysis in this matter.
State Farm alleges in its reply that Dr. Fijalkowski’s

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methodology took into account “her age and body type
inside of the specific vehicle that she was utilizing at
the time of the subject accident.” (Id. at 10).
Bostick’s issues with Dr. Fijalkowski’s methodology do
not justify an order limiting or excluding his testimony. In
Taylor, Bean & Whitaker Mortg. Corp. v. GMAC Mortg. 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.

Although Dr. Fijalkowski may not have taken

into account all of Bostick’s unique attributes, Bostick has
not shown that Dr. Fijalkowski’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

7

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. Fijalkowski’s methodology
is sufficiently reliable and satisfies the second factor of
the Daubert analysis.
C.

Dr. Fijalkowski 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. Fijalkowski has been a biomechanical engineer for
over fourteen years. (Doc. # 73 at 13). Dr. Fijalkowski has
a Ph.D. in the subject matter and continues his research
through peer-reviewed publications. (Doc. # 73-1). Given Dr.
Fijalkowski’s experience and the complexity inherent in the
field of biomechanics, it is unlikely that the average lay
person possesses the education and training necessary to
understand
Fijalkowski.

the

analysis

Therefore,

and

methodologies

courts

8

have

used

routinely

by

Dr.

accepted

biomechanical expert opinion testimony. See, e.g., Berner v.
Carnival

Corp.,

632

F.

Supp.

2d

1208

(S.D.

Fla.

2009)(authorizing biomechanical engineer to testify as to
causation in personal injury case in which plaintiff claimed
traumatic brain injury). Thus, the Court finds that Dr.
Fijalkowski’s testimony will assist the trier of fact and
denies the Motion.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Plaintiff Bostick’s Motion to Limit Defendant’s Expert
Witness, Ronald J. Fijalkowski, Ph.D. (Doc. # 60) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida,
this 17th day of July, 2017.

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