Stewart v. Johnson et al
ORDER granting 80 Motion to Exclude an Opinion of Defendants' Expert Witness Dr. Jiong Yan; granting in part and denying in part 81 Motion to Exclude in Part Expert Witness Testimony. Signed by Magistrate Judge Benjamin W. Cheesbro on 07/19/2021. (jlh)
Case 5:18-cv-00037-LGW-BWC Document 96 Filed 07/19/21 Page 1 of 21
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
CHRISTOPHER BRYAN STEWART,
CIVIL ACTION NO.: 5:18-cv-37
EDWINA JOHNSON, et al.,
This matter is before the Court on Plaintiff’s Motion to Exclude an Opinion of
Defendants’ Expert Witness Dr. Jiong Yan, doc. 80, and Defendants’ Motion to Exclude in Part
Expert Witness Testimony, doc. 81. The parties have fully briefed the issues. Docs. 83, 84, 86,
88. For the following reasons, the Court GRANTS Plaintiff’s Motion to Exclude an Opinion of
Defendants’ Expert Witness Dr. Jiong Yan. Doc. 80. Defendants are prohibited from having Dr.
Jiong Yan testify at trial.
Additionally, the Court GRANTS as unopposed in part and DENIES in part
Defendants’ Motion to Exclude in Part Expert Witness Testimony. Doc. 81. Plaintiff’s experts,
Dr. Diego Espinosa and Dr. Dilip Thomas, may testify generally on their treatment of Plaintiff
and opinions formed during the course of treatment. Dr. Espinosa is expressly permitted to
testify that a choroidal rupture is generally caused by trauma, and Dr. Espinosa may testify about
his continued monitoring of Plaintiff’s condition and the likelihood for further deterioration.
However, Dr. Espinosa and Dr. Thomas are both prohibited from testifying about
Plaintiff’s alleged Post Traumatic Stress Disorder (“PTSD”) and mental health issues. Both
doctors are also prohibited from testifying about the date on which Plaintiff’s injury occurred and
Case 5:18-cv-00037-LGW-BWC Document 96 Filed 07/19/21 Page 2 of 21
whether (or which) assault caused Plaintiff’s injury. Additionally, Dr. Thomas is prohibited
from testifying Plaintiff’s condition will worsen or deteriorate further.
Plaintiff brings this action under 42 U.S.C. § 1983 and the Eighth and Fourteenth
Amendments, alleging Defendants failed to protect him from two assaults by other inmates in
April 2016. At the relevant time, Plaintiff was an inmate at Ware State Prison (“WSP”) and in
the custody of the Georgia Department of Corrections (“GDC”), and Defendants were employees
of GDC working at WSP.
Plaintiff’s claims involve him being attacked by other inmates on two different occasions.
Plaintiff was first assaulted at WSP on April 20, 2016. As a result of that assault, Plaintiff
contends he suffered a right eye injury, resulting in lost central vision. Plaintiff was assaulted
again, five days later, on April 25, 2016, while he was asleep. Plaintiff alleges he sustained a
serious head injury in the second assault and was taken to the hospital for treatment. As a result
of these attacks, Plaintiff asserts he experienced psychological effects and suffered eye injuries.
Plaintiff has identified his treating physicians—Dr. Diego Espinosa and Dr. Dilip A.
Thomas—as experts to testify on his eye injuries at trial. Doc. 80 at 2; Doc. 81-1 at 1.
Defendants retained their own expert, Dr. Jiong Yan, to provide testimony on Plaintiff’s eye
Plaintiff argues Dr. Yan’s opinions are unreliable under Daubert and should be excluded.
Doc. 80. Similarly, Defendants challenge Plaintiff’s experts, arguing they should not be
permitted to testify on Plaintiff’s claimed PTSD, the cause of Plaintiff’s eye injuries, or the
potential or likelihood for future deterioration of Plaintiff’s eye condition. Doc. 81-1.
Case 5:18-cv-00037-LGW-BWC Document 96 Filed 07/19/21 Page 3 of 21
Plaintiff’s Challenge to Defendants’ Expert Dr. Yan
Plaintiff brings a challenge to the opinions of Defendants’ expert, Dr. Yan. Doc. 80.
Defendants filed a Response, and Plaintiff filed a Reply. Docs. 83, 88. Dr. Yan was retained by
Defendants for purposes of this litigation, and she provided Defendants with an opinion on
Plaintiff’s eye injuries. Doc. 83 at 2. Dr. Yan is a practicing ophthalmologist with a focus on
vitreo-retinal diseases and surgery. Id. Dr. Yan formed her opinions by reviewing Plaintiff’s
medical records but has not treated or examined Plaintiff. Id. at 3.
Dr. Yan, in her report, offers two opinions. Dr. Yan opines Plaintiff’s eye injury was not
the result of the first assault on April 20, 2016, and instead, resulted from the second assault, on
April 25, 2016. Id. at 2 (citing Doc. 83-1). Dr. Yan also opines Plaintiff’s vision loss is unlikely
to progress beyond 20/70, as “the injury is self-limiting . . . and unlikely to progress beyond 6
months of the recovery period.” Id. at 3–4. Plaintiff argues these opinions should be excluded,
as the opinions are unreliable, nothing more than ipse dixit, and unhelpful to the trier of fact.
Plaintiff highlights Dr. Yan’s ultimate opinion is also inconsistent with the evidence in the case,
as Plaintiff’s vision loss did, in fact, progress to 20/200. Id. at 7.
Defendants oppose Plaintiff’s Motion. Doc. 83. Defendants argue Dr. Yan’s report and
the opinions contained therein are sufficiently reliable under the Federal Rules of Evidence and
Daubert. 1 Doc. 83 at 3. Specifically, Defendants argue Dr. Yan’s report is based on her
experience and that experience was reliably applied because the opinions are supported by the
factual evidence in the record. Id. at 4.
Defendants also assert Dr. Yan is qualified to testify on these issues and her report complies with
Federal Rule of Civil Procedure 26(a)(2)(B). Doc. 81 at 1–3, 4. However, Plaintiff has not challenged
Dr. Yan’s qualifications or her report under the Federal Rules of Civil Procedure; thus, the Court will not
consider Defendants’ arguments on these points.
Case 5:18-cv-00037-LGW-BWC Document 96 Filed 07/19/21 Page 4 of 21
Federal Rule of Evidence 702 and Daubert
The United States Supreme Court’s holding in Daubert v. Merrell Dow Pharmaceutical,
Inc., 509 U.S. 579 (1993), and the text of Rule 702 require trial judges to serve as gatekeepers in
determining the admissibility of expert testimony; however, any decision regarding admissibility
is not a position on the strength or weight of the testimony. Fed. R. Evid. 702; Kumho Tire Co.
v. Carmichael, 526 U.S. 137, 141 (1999). In this Circuit, courts routinely look to three elements
to determine if an expert is qualified under Daubert and Rule 702. As the Eleventh Circuit Court
of Appeals has stated, the elements for consideration are 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.
United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (citations omitted). “[A]lthough
there is some overlap among the inquiries into an expert’s qualifications, the reliability of his
proffered opinion and the helpfulness of that opinion, these are distinct concepts that courts and
litigants must take care not to conflate.” Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326
F.3d 1333, 1341 (11th Cir. 2003). The trial court has broad latitude in evaluating each of these
As to qualifications, an expert may be qualified “by knowledge, skill, experience,
training, or education.” Hendrix ex rel. G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1193 (11th Cir.
2010). The expert need not have experience precisely mirroring the case at bar in order to be
qualified. Maiz v. Virani, 253 F.3d 641, 665 (11th Cir. 2001). However, where an expert does
have experience directly applicable to an issue at bar, experience alone may provide a sufficient
foundation for expert testimony. Frazier, 387 F.3d at 1261.
Case 5:18-cv-00037-LGW-BWC Document 96 Filed 07/19/21 Page 5 of 21
As to reliability, courts look, when possible, to: (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. Daubert, 509 U.S. at 593–94.
However, these factors are not exhaustive, and “a federal court should consider any additional
factors that may advance its Rule 702 analysis.” Quiet Tech., 326 F.3d at 1341. At all times in
this flexible inquiry, the court’s focus must be “solely on principles and methodology, not on the
conclusions that they generate.” Seamon v. Remington Arms Co., LLC, 813 F.3d 983, 988 (11th
Cir. 2016) (citation omitted).
Finally, as to the third Daubert factor, expert testimony is likely to assist the trier of fact
to the extent it “concern[s] matters beyond the understanding of the average lay person and
logically advance[s] a material aspect of the proponent’s case.” Kennedy v. Elec. Ins. Co., Case
No. 4:18cv148, 2019 WL 2090776, at *5 (S.D. Ga. May 13, 2019) (citing Daubert, 509 U.S. at
591); Frazier, 387 F.3d at 1262–63. Rule 702 permits experts to make conclusions based on
competing versions of the facts, but those conclusions must still assist the trier of fact by
explaining something that is “‘beyond the understanding of the average lay person.’” Jackson v.
Catanzariti, No. 6:12-CV-113, 2019 WL 2098991, at *10 (S.D. Ga. May 14, 2019) (citing
Frazier, 387 F.3d at 1262). 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.
(quoting Cook v. Sheriff of Monroe Cnty., 402 F.3d 1092, 1111 (11th Cir. 2005)). Such
testimony “is properly excluded when it is not needed to clarify facts and issues of common
understanding which jurors are able to comprehend for themselves.” Hibiscus Assocs. Ltd. v.
Case 5:18-cv-00037-LGW-BWC Document 96 Filed 07/19/21 Page 6 of 21
Bd. of Trs. of Policemen & Firemen Ret. Sys., 50 F.3d 908, 917 (11th Cir. 1995) (citations
“The burden of laying the proper foundation for the admission of the expert testimony is
on the party offering the expert, and admissibility must be shown by a preponderance of the
evidence.” Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999). However, “it
is not the role of the district court to make ultimate conclusions as to the persuasiveness of
proffered evidence.” Quiet Tech., 326 F.3d at 1341. Instead, “[v]igorous 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.” Daubert, 509
U.S. at 596.
Defendants Fail to Establish Dr. Yan’s Opinions are Based on Reliable
Plaintiff challenges Dr. Yan’s opinions as based on an unreliable methodology. Dr. Yan
opines the second assault caused Plaintiff’s eye injury and that Plaintiff’s eye injury should not
result in vision loss worse than 20/70 because it is “self-limiting.” Doc. 80-1. Plaintiff asserts
Dr. Yan’s report fails to explain how her experience as an ophthalmologist led to her conclusions
or opinions, why the experience was a sufficient basis for the opinion, or how the experience was
reliably applied to the facts of this case. Doc. 80 at 5–6.
Dr. Yan’s report first lays out her qualifications as an expert in ophthalmology, which
Plaintiff does not challenge at this time. Doc. 80-1 at 1. Dr. Yan then provides her opinions in
this case, including that the injury was a result of the April 25, 2016 assault. Dr. Yan also states
which medical records support her findings and summarizes those records. Id. at 2 The report
concludes with a summary of her findings. There, Dr. Yan states based on the medical records
Case 5:18-cv-00037-LGW-BWC Document 96 Filed 07/19/21 Page 7 of 21
from April 20 and April 25, 2016, each describing Plaintiff’s eye injuries, Plaintiff’s vision loss
is most likely a result of the April 25, 2016 assault. Id. at 3.
Defendants argue Dr. Yan’s opinions are based on a reliable methodology because she is
qualified to testify on the subject and state her experience and review of Plaintiff’s medical
records form the basis for her opinions and conclusions. Doc. 83 at 3. Importantly, Dr. Yan has
not been deposed in the case. Thus, the Court only considers what the parties have provided—
Dr. Yan’s report and her curriculum vitae.
Dr. Yan’s experience in ophthalmology—on its own—does not provide a sufficient
foundation rendering the opinions she expresses reliable. Frazier, 387 F.3d at 1261 (explaining
an expert may be qualified by experience, but this “does not mean that experience, standing
alone, is a sufficient foundation rendering reliable any conceivable opinion the expert may
express”); Quiet Tech., 326 F.3d at 1341 (“[W]hile an expert’s overwhelming qualifications may
bear on the reliability of his proffered testimony, they are by no means a guarantor of
reliability.”). Conclusory assertions that and expert’s opinions are based on her training and
experience are insufficient to establish reliability. Fed. Trade Comm’n v. Nat’l Urological Grp.,
Inc., No. 1:04-CV-3294, 2017 WL 6759868, at *41 (N.D. Ga. Oct. 10, 2017), aff’d, 786
F. App’x 947 (11th Cir. 2019); see also Dukes v. Georgia, 428 F. Supp. 2d 1298, 1315 (N.D. Ga.
2006) (“Dr. Greifinger does not specify what experiences or what standards he relied upon in
making any of these determinations. In order to find Dr. Greifinger’s opinion testimony reliable
and connected to scientific data, this court would need to take a leap of faith and rely on Dr.
Greifinger’s ipse dixit and assurance that his testimony is based on nationally accepted standards
. . . . Accepting Dr. Greifinger’s experience alone as evidence of the reliability of his statements
is tantamount to disregarding entirely the reliability prong of the Daubert analysis.”), aff’d 212 F.
Case 5:18-cv-00037-LGW-BWC Document 96 Filed 07/19/21 Page 8 of 21
App’x 916 (11th Cir. 2006). When an expert is relying on experience, the reliability requirement
requires an expert to “explain how [her] experience leads to the conclusion reached, why that
experience is a sufficient basis for the opinion and how that experience is reliably applied to the
facts.” Frazier, 387 F.3d at 1261 (citation omitted). In other words, to admit Dr. Yan’s opinion,
she must be able to demonstrate a sufficient connection between her experience and the opinion
In her report, Dr. Yan states, “My opinions are formed on the basis of my review of the
medical records and on my training and experience in Vitreo-Retinal Diseases and Surgery.”
Doc. 80-1 at 1. The report contains no other explanation of Dr. Yan’s methodology. Based on
this statement, Dr. Yan’s methodology is that she is a qualified ophthalmologist and formed an
opinion based on Plaintiff’s records. This is, at its core, ipse dixit. While review of medical
records was likely essential in a case like this, it is not alone sufficient to demonstrate a reliable
methodology. 2 While Dr. Yan’s experience may be extensive, invoking that experience on its
own is not enough to demonstrate a reliable methodology. As the proponent of the expert
testimony, Defendants (and Dr. Yan) are required to demonstrate a sufficient connection between
Dr. Yan’s experience and her opinions. Review Dr. Yan’s opinions highlights the absence of
any discernible connection. Dr. Yan opines the first injury was likely not associated with
permanent vision loss, while the second injury was. But it is unclear exactly how being an
ophthalmologist would lead one to that conclusion. Dr. Yan also opines on how Plaintiff’s
injuries, treatment, and condition would likely progress, but, again, it is unclear how Dr. Yan
To be clear, Dr. Yan was not required to examine Plaintiff in order to offer an expert opinion on
his injuries. See, e.g., Geyer v. NCL (Bahamas) Ltd., 203 F. Supp. 3d 1212, 1217 (S.D. Fla. 2016)
(denying motion to exclude based on medical expert’s review of medical records without physical
Case 5:18-cv-00037-LGW-BWC Document 96 Filed 07/19/21 Page 9 of 21
reaches those opinions based solely on her experience. Ultimate, Dr. Yan’s report is completely
silent on the connection between her experience and her opinions.
Defendants argue Dr. Yan’s opinions are reliable because they are supported by the
evidence. Doc. 83 at 4. The implication of Defendants’ argument is the opinions are reliable
because they are correct—a proposition which Plaintiff disputes. Doc. 88. The accuracy or
correctness of Dr. Yan’s ultimate opinions are not germane to their reliability under Daubert.
Seamon, 813 F.3d at 988 (explaining the reliability analysis must “focus solely on principles and
methodology, not on the conclusions that they generate.”). For this reason, Defendants’ reliance
on Kennedy v. Electric Insurance Company, CV 4:18-148, 2019 WL 2090776, at *3–4 (S.D. Ga.
May 13, 2019), is misplaced. While this Court in Kennedy considered whether the expert’s
conclusions were supported by facts in the record, that was in response to defendant’s argument
the expert’s testimony should be excluded because it was premised on inadequate or inaccurate
factual foundation. Id. at *3. Here, Plaintiff does not bring a similar challenge and, instead,
asserts Dr. Yan’s opinion is unreliable because she does not connect her experience to her
opinions, as is required under Daubert when the expert bases an opinion on experience. Further,
in Kennedy, the Court explicitly found the expert “thoroughly explains in his report the bases for
his opinions.” Id.
While Dr. Yan summarizes medical records and states she applied her experience in
reaching her opinion on the cause of Plaintiff’s eye injuries, she does not explain how her
experience supports these conclusions. Dr. Yan fails to explain why her experience is a
sufficient basis for her opinion and how that experience was reliably applied. Defendants have
not met their burden of establishing reliability, as Dr. Yan’s report is totally devoid of any
connection between her experience and her opinion. Dukes, 428 F. Supp. 2d at 1315; see also
Case 5:18-cv-00037-LGW-BWC Document 96 Filed 07/19/21 Page 10 of 21
Anderson v. Columbia County, No. CV 112-031, 2014 WL 8103792, at *11 (S.D. Ga. Mar. 31,
2014) (excluding an expert physician because he did not connect his experience to his opinions);
Thomas v. Hubtex Machinebau GmbH & Co KG, No. 7:06-CV-81, 2008 WL 4371977, at *7
(M.D. Ga. Sept. 23, 2008) (excluding an expert’s opinion when he asserted causation opinion
was based on literature he reviewed and his experience and formalized training but did not
explain how his experience and training led to the conclusions he reached); Simon v.
Healthsouth of Sarasota Ltd. P’ship, No. 8:12-CV-236, 2021 WL 268496, at *5 (M.D. Fla. Jan.
27, 2021) (excluding an expert physician where “he fails to identify specific experiences or
medical standards he relied on” in forming his opinion); Cosseboom v. Royal Caribbean Cruises
Ltd., No. 1:20-cv-20343, 2020 WL 9071566, at *3 (S.D. Fla. Dec. 16, 2020) (explaining if a
doctor is going to rely on his experience, “Rule 702 requires him to explain how that experience
is reliably applied to his opinions and the facts”). 3
Because Defendants and Dr. Yan have failed to identify a reliable methodology for Dr.
Yan’s opinions, namely a sufficient connection between her experience and her opinions, her
testimony should be excluded.
Defendants’ Other Arguments are Unpersuasive
Defendants argue Plaintiff is using a Daubert motion to “circumvent the adversarial
process” and, thus, Dr. Yan’s opinion should not be excluded. Doc. 83 at 6. Defendants are
Moreover, Dr. Yan appears to base her opinion almost exclusively on the temporal relationship
between Plaintiff’s assaults and his symptoms, as described in medical records, in forming her opinion
about which assault causes his injuries. Generally, a temporal relationship between an incident and
symptoms, alone, is not a sufficient basis or methodology under Daubert to support a causation opinion.
See McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1243 (11th Cir. 2005) (“Drawing a [causation]
conclusion from temporal relationships leads to the blunder of the post hoc ergo propter hoc fallacy[,
which] assumes causality from temporal sequence . . . . It is called a fallacy because it makes an
assumption based on the false inference that a temporal relationship proves a causal relationship.”).
Case 5:18-cv-00037-LGW-BWC Document 96 Filed 07/19/21 Page 11 of 21
correct Daubert does not replace cross-examination and presentation of contrary evidence.
However, the Eleventh Circuit has explained this to mean a district court should avoid weighing
evidence and making credibility determinations. Quiet-Tech, 326 F.3d at 1341. The Court has
not considered whether Dr. Yan’s opinions are persuasive, nor has Plaintiff argued the Court
should. Instead, the Court has endeavored to “conduct an exacting analysis of the proffered
expert’s methodology,” as it must. Id. (citing McCorvey v. Baxter Healthcare Corp., 298 F.3d
1253, 1256 (11th Cir. 2002)).
Defendants assert the circumstances in this case weigh in favor of admitting Dr. Yan’s
testimony because Plaintiff chose not to depose Dr. Yan. Plaintiff’s decision on whether to
depose Dr. Yan is immaterial. Defendants, as the parties seeking to offer Dr. Yan as an expert,
bear the burden of showing her opinion is admissible and must do so by a preponderance of the
evidence. Allison, 184 F.3d at 1306. While a deposition may or may not have been helpful to
Defendants in establishing Dr. Yan’s methodology, there is no requirement Plaintiff depose her.
Plaintiff’s decision on whether to depose Dr. Yan did not prevent Defendants from introducing
other evidence establishing Dr. Yan employed a reliable methodology, such as an affidavit or
declaration from Dr. Yan.
Finally, Defendants argue excluding Dr. Yan’s testimony because of any inconsistencies
between her opinion and Plaintiff’s vision loss would be an unfair result given the late disclosure
of additional medical records. As explained above, the undersigned takes no position on the
merits of Dr. Yan’s opinion on Plaintiff’s vision loss. To be clear, the fact Dr. Yan opined
Plaintiff’s eye injury would be “self-limiting,” but then actually did become worse, has no
bearing on whether Dr. Yan connected her experience to her opinion. Further, Defendants
requested and received an extension because of a delay in obtaining Plaintiff’s medical records.
Case 5:18-cv-00037-LGW-BWC Document 96 Filed 07/19/21 Page 12 of 21
Doc. 74. This extension was granted for the express purpose of reviewing Plaintiff’s recently
disclosed medical records. Id. Even though the Court granted the extension, there is no
indication Defendants used that time to have Dr. Yan review the records and amend her
opinion. 4 If Defendants felt prejudiced by the timing of Plaintiff’s disclosures, they were free to
bring the issue before the Court, but they did not. And given the extension Defendants were
granted, their argument about any prejudice resulting from tardy disclosures is unconvincing.
In sum, Dr. Yan’s opinions are based on her experience as an ophthalmologist. However,
Dr. Yan does not connect her opinion on Plaintiff’s vision loss with her experience; she does not
explain how her experience in ophthalmology “leads to the conclusion reached, why that
experience is a sufficient basis for the opinion and how that experience is reliably applied to the
facts.” Frazier, 387 F.3d at 1261 (citation omitted). It was Defendants’ burden to establish her
opinion was reliable by connecting her experience to that opinion. Defendants have failed to do
so. Accordingly, I GRANT Plaintiff’s Motion. Dr. Yan is prohibited from testifying at trial. 5
Defendants’ Challenge to the Testimony of Plaintiff’s Treating Physicians
Defendants challenge Plaintiff’s treating physicians, Dr. Diego Espinosa and Dr. Dilip
Thomas, who Plaintiff plans to have testify as non-reporting expert witnesses. Docs. 81-1, 86.
Dr. Espinosa and Dr. Thomas both treated Plaintiff while he was incarcerated. Dr. Espinosa and
Dr. Thomas both provided expert disclosures pursuant to Federal Rule of Civil Procedure
While the Court will not address the accuracy or correctness of Dr. Yan’s opinion, the opinions in
her written report—the only opinions before the Court—are plainly based on incomplete medical records.
To the extent Dr. Yan’s opinions in this case are based on her experience and review of Plaintiff’s
medical records, even that approach is unreliable, given that she did not conduct a complete review of the
records before forming those opinions.
Because Dr. Yan’s methodology is insufficient under Daubert, the Court declines to address
Plaintiff’s argument Dr. Yan’s opinions are not helpful.
Case 5:18-cv-00037-LGW-BWC Document 96 Filed 07/19/21 Page 13 of 21
26(a)(2)(C), identifying themselves as treating physicians expected to testify at trial. 6 Docs. 812, 81-3.
Defendants seek to prohibit Dr. Espinosa and Dr. Thomas from testifying on Plaintiff’s
alleged PTSD and mental health issues, the cause of Plaintiff’s eye injuries, and the potential
likelihood Plaintiff’s condition will worsen and whether complications will arise (i.e.,
prognosis). 7 Id. at 2. Defendants seek to prohibit Plaintiff’s treating physicians from offering
opinions unrelated to their direct diagnoses and treatment of Plaintiff because no disclosure was
made under Federal Rule of Civil Procedure 26(a)(2)(B). Id. at 11. However, they do not
challenge Dr. Espinosa and Dr. Thomas’ ability to testify about their firsthand observations and
treatment of Plaintiff. Defendants also raise challenges regarding whether the doctors’ opinions
are sufficiently precise and whether the opinions are based on ipse dixit. Plaintiff filed a
Response to Defendants’ Motion, opposing some portions of Defendants’ request to exclude
testimony on causation and prognosis. Doc. 84.
“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.” Williams v.
Mast Biosurgery USA, Inc., 644 F.3d 1312, 1317 (11th Cir. 2011) (quoting Davoll v. Webb, 194
F.3d 1116, 1138 (10th Cir. 1999)). Daubert does not apply to such testimony. However, “once
the treating physician expresses an opinion unrelated to treatment which is ‘based on scientific,
There is no challenge to the adequacy of the Rule 26(a)(2)(C) disclosures.
Defendants also argue Dr Espinosa and Dr. Thomas should not be treated as reporting experts
under Federal Rule of Civil Procedure 26(a)(2)(B) because they are treating physicians and did not
otherwise provide an expert report. Doc. 81-1 at 5–8; Doc. 84 at 3. Plaintiff agrees. Therefore, the Court
will treat Drs. Espinosa and Thomas a non-reporting experts and analyze their ability to testify
Case 5:18-cv-00037-LGW-BWC Document 96 Filed 07/19/21 Page 14 of 21
technical, or other specialized knowledge,’ that witness is offering expert testimony for which
the court must perform its essential gatekeeping function as required by Daubert.” Wilson v.
Taser Int’l, Inc., 303 F. App’x 708, 712 (11th Cir. 2008) (citing United States v. Henderson, 409
F.3d 1293, 1300 (11th Cir. 2005) (finding a treating physician’s opinion on causation was expert
testimony because “his opinion regarding the cause of [plaintiff’s] injuries was not needed to
explain his decision making process, nor did it pertain to [plaintiff’s] treatment”)).
In other words, “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, and it must
comply with the requirements of Rule 702 and the strictures of Daubert.” Williams, 644 F.3d at
1317–18 (finding the identity of a foreign substance removed from the plaintiff’s body “was not
necessary for her treatment” and, therefore, was not admissible as lay testimony by a treating
physician); Henderson, 409 F.3d at 1300 (“[The treating physician’s] diagnosis of the injury
itself . . . would be permissible lay testimony, but her statement about the cause of the injury was
. . . a ‘hypothesis’” because “[she] did not need to determine how [plaintiff] was injured to treat
him in this case.”).
PTSD and Mental Health Testimony
Plaintiff does not oppose Defendants’ request Drs. Espinosa and Thomas be prohibited
from testifying about PTSD, as Plaintiff does not plan to elicit such testimony from them.
Doc. 84 at 2. Accordingly, the Court GRANTS as unopposed these portions of Defendants’
Motion. Dr. Thomas and Dr. Espinosa are prohibited from testifying on Plaintiff’s alleged PTSD
or other mental health issues.
Case 5:18-cv-00037-LGW-BWC Document 96 Filed 07/19/21 Page 15 of 21
Defendants argue Drs. Espinosa and Thomas should be prohibited from offering
testimony on the cause of Plaintiff’s injury because causation is an area typically reserved for
reporting expert witnesses and outside the scope of permissible treating physician testimony, as
the opinions are not based on their treatment of Plaintiff. Doc. 81-1 at 16. Specifically,
Defendants seek to preclude Dr. Espinosa from testifying that Plaintiff’s injuries occurred on a
specific date or because of a specific trauma, including a specific assault. Doc. 86 at 3.
However, Defendants do not challenge Dr. Espinosa testifying that Plaintiff’s injuries are
consistent with recent trauma, generally, which is consistent with Dr. Espinosa’s opinion formed
during treatment of Plaintiff and Dr. Espinosa’s deposition testimony. 8 Id.; Doc. 86 at 2.
Plaintiff largely agrees with Defendants about the limitation on Drs. Espinosa and
Thomas’ testimony but asserts any order is unnecessary and would unnecessarily limit their
testimony. Doc. 84 at 3–4. Further, Plaintiff argues Dr. Espinosa’s causation opinion—that
Plaintiff’s injuries were the result of recent trauma—is not so imprecise or unspecific as to
warrant its exclusion.
Dr. Espinosa made no specific findings on the cause of Plaintiff’s eye injury, a choroidal
rupture. Doc. 81-4 at 10–11, 21, 23. Dr. Espinosa determined Plaintiff had a choroidal rupture,
which is generally caused by trauma, and Plaintiff’s injury was consistent with recent trauma.
Doc. 81-4 at 10–11. Defendants do not dispute Dr. Espinosa’s ability to offer such testimony.
Doc. 86 at 2. Thus, Dr. Espinosa may testify Plaintiff’s choroidal rupture was the result of recent
trauma, consistent with other applicable law and Rules.
Defendants’ challenge arises largely from the fact Plaintiff’s Rule 26(a)(2)(C) disclosures
contained broad descriptions of the doctors’ expected testimony. See Docs. 81-2, 81-3.
Case 5:18-cv-00037-LGW-BWC Document 96 Filed 07/19/21 Page 16 of 21
Defendants assert Dr. Espinosa should not be allowed to offer testimony on the precise
date on which Plaintiff’s eye injury occurred or what trauma caused Plaintiff’s injury. Doc. 81-4
at 11. Plaintiff concedes such testimony is impressible. Accordingly, Dr. Espinosa cannot offer
an opinion about the specific date on which Plaintiff’s injuries occurred, which assault caused
Plaintiff’s injuries, or even that it was caused by an assault.
Defendants challenge Dr. Thomas’ ability to offer causation testimony. Specifically,
Defendants seek to prohibit Dr. Thomas from testifying about causation because he could not
determine when Plaintiff’s double-vision occurred (i.e., the date). Plaintiff concedes Dr. Thomas
should not be permitted to offer testimony about the date of the injury but argues Thomas should
be allowed to testify the double vision was “caused by trauma.” Doc. 84 at n.2. In their Reply,
Defendants do not address Dr. Thomas’ ability to testify that trauma, generally, caused Plaintiff’s
Dr. Thomas is excluded from testifying about the cause of Plaintiff’s double-vision in
terms of date, and this portion of Defendants’ Motion is GRANTED as unopposed. However,
the Court declines to address whether Dr. Thomas may testify that Plaintiff’s double-vision was
caused by trauma generally.
In sum, Defendants’ Motion is GRANTED as unopposed insofar as it seeks to prohibit
Dr. Espinosa and Dr. Thomas from testifying on the date which Plaintiff’s injury occurred and
whether (or which) assault caused Plaintiff’s injury. However, this Order does not prevent Dr.
Espinosa from explaining Plaintiff’s choroidal rupture is the result of trauma generally. That is,
Case 5:18-cv-00037-LGW-BWC Document 96 Filed 07/19/21 Page 17 of 21
Dr. Espinosa can testify Plaintiff’s injuries were the result of recent trauma, but he and Dr.
Thomas cannot testify Plaintiff sustained the injuries on any particular date. 9
Defendants seek to prohibit Dr. Espinosa and Dr. Thomas from offering testimony on the
likelihood Plaintiff’s eyesight will worsen in the future or that he will develop further
complications from his injuries, i.e., Plaintiff’s prognosis. Doc. 81-1 at 17–18; Doc. 86 at 3–4.
Defendants argue prognosis opinions are the province of reporting expert witnesses, and nonreporting treating physicians should not be permitted to offer such testimony.
Plaintiff states he does not intend to solicit prognosis testimony from Dr. Thomas. Doc.
84 at 10 n.5. Because Plaintiff states he does not intend to solicit prognosis testimony from Dr.
Thomas, this portion of Defendants’ Motion is GRANTED as unopposed without further
analysis. Dr. Thomas is prohibited from offering prognosis testimony, including testifying on
whether Plaintiff’s condition or injuries will worsen or whether further complications will arise.
However, Dr. Thomas is permitted to offer fact-witness testimony, including on his current
treatment of Plaintiff, to the extent any exists.
Regarding Dr. Espinosa, Defendants contend all prognosis testimony regarding whether
Plaintiff’s condition will worse and whether complications will arise should be excluded because
Dr. Espinosa has not observed deterioration or complications and there was no Rule 26(a)(2)(B)
expert report. Additionally, Defendants argue Dr. Espinosa should not be allowed to offer
Plaintiff suggests Defendants are trying to put unnecessary limits on Dr. Espinosa and Dr.
Thomas’ testimony and limit their testimony to a short statement. Doc. 84 at n.1. However, nothing in
this Order should be read to put such limits on Drs. Espinosa and Thomas’ testimony or prescribe precise
language which they must use when testifying. This Order does not preclude Drs. Espinosa or Thomas
from expounding on permitted topics. Instead, this Order simply prohibits Drs. Espinosa and Thomas
from testifying Plaintiff sustained his injuries on any particular date or from any particular trauma.
Case 5:18-cv-00037-LGW-BWC Document 96 Filed 07/19/21 Page 18 of 21
testimony on prognosis because it is imprecise and unspecific. Further, they assert any testimony
Dr. Espinosa offers about a risk of future deterioration is mere ipse dixit.
On the other hand, Plaintiff argues Dr. Espinosa formed his prognosis opinions in the
scope of treating Plaintiff, and, therefore, he is permitted to testify on this topic, even though he
did not provide a Rule 26(a)(2)(B) report. Doc. 84 at 10. Further, Plaintiff contends Dr.
Espinosa offers testimony about how choroidal ruptures worsen over time and his testimony was
not imprecise or unspecific.
“[A] treating physician may testify as a lay witness about . . . the individual’s prognosis
as long as those opinions are based on his or her personal observations during the course of
treatment of the individual rather than as part of litigation preparation, and as long as those
opinions were necessary for his or her treatment of the induvial.” Robles v. Costco Wholesale
Corp., No. 8:18-cv-1453, 2019 WL 11505075, at *3 (M.D. Fla. July 26, 2019) (citing
Henderson, 409 F.3d at 1300; In re Am. Airlines Flight 331, No. 1:10-cv-20131, 2013 WL
12340490, at *3 (S.D. Fla. Sept. 3, 2013); and Bryan v. Whitfield, No. 3:14-cv-341, 2015 WL
3407485, at *3 (N.D. Fla. Mar. 16, 2015)); Levine v. Wyeth Inc., No. 8:09-cv-854, 2010 WL
2612579, at *1 (M.D. Fla. June 25, 2010).
However, a treating physician may not testify as a lay witness about opinions that are not
based on her personal observations or that go beyond those arising from her treatment of the
individual. Robles, 2019 WL 11505075, at *4 (citing Williams, 644 F.3d at 1317–18; and
Henderson, 409 F.3d at 1300). If a treating physician’s testimony is based on a hypothesis or
conjecture and not her personal observations or the experience of treating the individual, it
crosses the line from lay to expert testimony. Id. (citations omitted).
Case 5:18-cv-00037-LGW-BWC Document 96 Filed 07/19/21 Page 19 of 21
Plaintiff seeks to have Dr. Espinosa testify he is continuing to treat and monitor Plaintiff
for further complications and deterioration and determine whether additional treatment is needed.
Doc. 84 at 10 (citing Doc. 84-4 at 7). Plaintiff has demonstrated Dr. Espinosa monitoring
Plaintiff for further complications is part of his treatment of Plaintiff. Testimony about ongoing
monitoring (i.e., the circumstances of the actual ongoing monitoring program, such as frequency
and methods of examination) is plainly fact-witness testimony and not expert testimony, and Dr.
Espinosa explains as much in his deposition. Doc. 84-4 at 7. Thus, Dr. Espinosa is permitted to
testify about his continued monitoring of Plaintiff’s condition as a fact witness, subject to other
applicable Rules of Evidence.
Additionally, Dr. Espinosa is permitted offer testimony about whether Plaintiff’s
condition will worsen or deteriorate in the future and whether Plaintiff is likely to experience
complications from his injuries, without submitting a Rule 26(a)(2)(B) report because he
developed these prognosis opinions while treating Plaintiff. Williams v. Mast Biosurgery USA,
Inc., 644 F.3d 1312, 1317 (11th Cir. 2011) (explaining treating physicians may testify as to their
“personal knowledge, including the treatment of the party”); Bryan, 2015 WL 3407485, at *5.
Indeed, Dr. Espinosa’s continued monitoring of Plaintiff’s condition is precisely because of his
concerns Plaintiff’s condition may worsen or deteriorate further. That is, Dr. Espinosa’s
opinions about Plaintiff’s prognosis were developed during treatment and not specifically for the
purposes of the litigation, and, therefore, he is permitted under Rule 26 to testify on those topics
as long as he provided a Rule 26(a)(2)(C) disclosure, which he did. See, e.g., Guffey v.
Dillard’s, Inc., No. 3:14-CV-1469-J-32JBT, 2015 WL 12844949, at *3 (M.D. Fla. Dec. 29,
2015) (concluding treating physicians may testify on causation, prognosis, and other matters
without providing a Rule 26(a)(2)(B) report, so long as the opinions are formed during the course
Case 5:18-cv-00037-LGW-BWC Document 96 Filed 07/19/21 Page 20 of 21
of treatment). While Dr. Espinosa’s opinions on Plaintiff’s prognosis may constitute expert
opinion testimony subject to Rule 702 and Daubert, Dr. Espinosa was not required to provide a
Rule 26(a)(2)(B) report in order to testify on these topics.
Defendants also argue Dr. Espinosa’s prognosis opinions should be excluded because the
opinions are imprecise and unspecific, as he testified at deposition vision loss from a choroidal
rupture is typically static and not expected to worsen and complications are rare. Doc. 86 at 4.
However, Dr. Espinosa acknowledging further deterioration or complications are rare in a case
like Plaintiff’s is not imprecise or unspecific; instead, it is a specific statement about likelihood
and one that is helpful to the jury. That is, just because the likelihood of further deterioration or
complications are rare is not a reason to exclude his testimony. Defendants are free to crossexam Dr. Espinosa on his opinions. Exclusion is not appropriate simply because Dr. Espinosa
previously testified about a low likelihood of future complications. See Daubert, 509 U.S. at 596
(explaining “[v]igorous 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”).
Finally, Dr. Espinosa’s opinion on deterioration or complications is not the result of ipse
dixit. At his deposition, Dr. Espinosa explained in detail Plaintiff’s medical condition, how the
condition could worsen over time, and Plaintiff’s vision has not stabilized and could continue to
decrease in the future. Doc. 81-4 at 6–7, 11, 20–21. In sum, at deposition, Dr. Espinosa
provided a detailed explanation about how he reached his conclusions on prognosis and how
those conclusions are based on his specialized knowledge in the field; thus, such opinions are not
Case 5:18-cv-00037-LGW-BWC Document 96 Filed 07/19/21 Page 21 of 21
Accordingly, to the extent Defendants seek to have Dr. Espinosa’s testimony on his
continued monitoring of Plaintiff’s condition or whether Plaintiff’s condition will worsen or
whether complications will arise excluded, their motion is DENIED. However, to be clear, Dr.
Espinosa’s testimony on these topics is limited to facts he observed first-hand and opinions he
formed during the course of treating Plaintiff.
For the foregoing reasons, the Court GRANTS Plaintiff’s Motion to Exclude an Opinion
of Defendants’ Expert Witness Dr. Jiong Yan. Doc. 80. Further, the Court GRANTS in part as
unopposed and DENIES in part Defendants’ Motion to Exclude in Part Expert Witness
Testimony. Doc. 81.
SO ORDERED, this 19th day of July, 2021.
BENJAMIN W. CHEESBRO
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?