Chaudry v. Provident Life and Accident Ins. Co. et al
Filing
186
MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 5/1/2015:Mailed notice(kef, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NASEEM M. CHAUDHRY, M.D.,
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Plaintiff,
v.
PROVIDENT LIFE AND ACCIDENT
INSURANCE COMPANY
Defendant.
No. 12 C 5838
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
Defendant Provident Life and Accident Insurance Company (“Provident Life”) has
moved the Court to exclude the testimony, opinions and report of Plaintiff’s vocational expert,
Susan Entenberg, at trial. For the reasons discussed below, Defendant’s motion is granted in part
and denied in part.
BACKGROUND
Plaintiff Naseem M. Chaudhry, M.D., is seeking disability benefits from an insurance
policy issued by Defendant Provident Life (“Policy”) based on the impact of a deteriorative eye
condition. Plaintiff claims that this condition has rendered him unable to perform the substantial
and material duties of his occupation. Defendant Provident Life paid total disability benefits to
Plaintiff under the Policy from mid-2003 to August 2011. Provident Life subsequently
concluded that insufficient evidence existed to support paying continued benefits to Plaintiff,
including evidence that Plaintiff continued to treat patients and Plaintiff pled guilty to engaging
in a scheme to defraud Medicare. Provident Life therefore terminated Plaintiff’s disability
benefits on August 15, 2011. Plaintiff thereafter sued Provident Life for breach of contract,
waiver, and estoppel. In advance of trial, Defendant now seeks to exclude the opinions of
Plaintiff’s retained vocational expert, Susan Entenberg, pursuant to Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) and Kumho Tire
Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999).
Under the Policy, Residual Disability benefits apply when, due to injury or sickness, the
insured (1) is not able to do one or more of his “substantial and material daily business duties” or
is not able to do his “usual daily business duties for as much time as it would normally take
[him] to do it,” (2) has a loss of monthly income in his occupation of at least 20%, and (3) is
receiving care by a Physician which is appropriate for the condition causing the loss of monthly
income. To qualify for Residual Disability benefits, the insured must suffer a loss of monthly
income of at least 20% due to his disability. If the insured loses over 75% of his prior monthly
income due to disability, the Policy deems the insured to have suffered a total loss of income.
The Policy permits the insurer to require any proof it considers necessary to determine the
insured’s current and prior monthly incomes for purposes of calculating the Residual Disability
benefit due, if any.
Under the Policy, the insured’s “occupation” is “the occupation (or occupations, if more
than one) in which [the insured is] regularly engaged at the time [he] become[s] disabled.” If
the insured’s occupation “is limited to a recognized specialty within the scope of [his] degree or
license,” the Policy deems that specialty to be his occupation. Plaintiff has disclosed Ms.
Entenberg to opine on his occupation at the time he became disabled, what his duties were at
time, and whether he could be restored through reasonable accommodation. Ms. Entenberg is a
Vocational Rehabilitation Counselor and a Certified Rehabilitation Counselor. (R. 149-1,
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Entenberg Expert Report, at 4; R.149-2, Entenberg Dep., at 96-97.) Ms. Entenberg received her
Bachelors of Science degree from Boston University in 1974 and her Masters in Counseling
Psychology with an emphasis in rehabilitation counseling in 1975 from Northwestern University.
(R.149-1, at 4.) Ms. Entenberg offers the following vocational opinion related to this case:
Based upon my review of the above-stated records and my education, training, and
experience, it is my opinion that Dr. Chaudhry’s occupation at the time of his disability
was that of a psychiatrist, with a primary emphasis as a geriatric psychiatrist. It is also
my opinion that these duties included driving as well as the need to frequently read
patient charts and medical records and are precluded by his visual limitations. It is
further my opinion that his occupation as a psychiatrist could not be restored to a
competitive nature through reasonable accommodation.
(R. 149-1, at 3.) On April 13, 2015, the Court held a Daubert hearing on the motion. During the
hearing, Ms. Entenberg testified regarding her opinions.
LEGAL STANDARD FOR DAUBERT MOTIONS
“A district court’s decision to exclude expert testimony is governed by Federal Rules of
Evidence 702 and 703, as construed by the Supreme Court in Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed.2d 469 (1993).” Brown v. Burlington Northern
Santa Fe Ry. Co., 765 F.3d 765, 771 (7th Cir. 2014); see also Lewis v. Citgo Petroleum Corp.,
561 F.3d 698, 705 (7th Cir. 2009). Rule 702 provides, in relevant part, that “[i]f scientific,
technical or other specialized knowledge will assist the trier of fact[,] . . . a witness qualified as
an expert by knowledge, skill, experience, training or education, may testify thereto in the form
of an opinion. . . .” Id. “In short, the rule requires that the trial judge ensure that any and all
expert testimony or evidence admitted “is not only relevant, but reliable.” Manpower, Inc. v. Ins.
Co. of Penn., 732 F.3d 796, 806 (7th Cir. 2013); see also Bielskis v. Louisville Ladder, Inc., 663
F.3d 887, 894 (7th Cir. 2011) (explaining that ultimately, the expert's opinion “must be reasoned
and founded on data [and] must also utilize the methods of the relevant discipline”); Lees v.
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Carthage College, 714 F.3d 516, 521 (7th Cir. 2013) (explaining the current version of Rule 702
essentially codified Daubert and “remains the gold standard for evaluating the reliability of
expert testimony”). The Daubert principles apply equally to scientific and non-scientific expert
testimony. See Manpower, Inc., 732 F.3d at 806 (citing Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 147–49, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)).
Under the expert-testimony framework, courts perform the gatekeeping function of
determining prior to admission whether the expert testimony is both relevant and reliable. See
Manpower, Inc., 732 F.3d at 806; Lees, 714 F.3d at 521; United States v. Pansier, 576 F.3d 726,
737 (7th Cir. 2009) (“To determine reliability, the court should consider the proposed expert’s
full range of experience and training, as well as the methodology used to arrive [at] a particular
conclusion.”). In doing so, courts “make the following inquiries before admitting expert
testimony: first, the expert must be qualified as an expert by knowledge, skill, experience,
training, or education; second, the proposed expert testimony must assist the trier of fact in
determining a relevant fact at issue in the case; third, the expert’s testimony must be based on
sufficient facts or data and reliable principles and methods; and fourth, the expert must have
reliably applied the principles and methods to the facts of the case.” Lees, 714 F.3d at 521-22;
see also Stollings v. Ryobi Techs., Inc., 725 F.3d 753, 765 (7th Cir. 2013); Pansier, 576 F.3d at
737. In Daubert, the Supreme Court offered the following non-exclusive factors to aid courts in
determining whether a particular expert opinion is grounded in a reliable scientific methodology:
(1) whether the proffered theory can be and has been tested; (2) whether the theory has been
subjected to peer review and publication; (3) whether the theory has a known or potential rate of
error; and (4) whether the relevant scientific community has accepted the theory. See Happel v.
Walmart Stores, Inc., 602 F.3d 820, 824 (7th Cir. 2010); Winters v. Fru-Con Inc., 498 F.3d 734,
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742 (7th Cir. 2007). Further, the 2000 Advisory Committee’s Notes to Rule 702 list the
following additional factors for gauging an expert’s reliability: (1) whether the testimony relates
to “matters growing naturally and directly out of research . . . conducted independent of the
litigation”; (2) “[w]hether the expert has unjustifiably extrapolated from an accepted premise to
an unfounded conclusion”; (3) “[w]hether the expert has adequately accounted for obvious
alternative explanations”; (4) “[w]hether the expert is being as careful as he would be in his
regular professional work outside paid litigation consulting”; and (5) “[w]hether the field of
expertise claimed by the expert is known to reach reliable results for the type of opinion the
expert would give.” Id. (internal quotations omitted); see also American Honda Motor Co. v.
Allen, 600 F.3d 813, 817 (7th Cir. 2010); Fuesting v. Zimmer, Inc., 421 F.3d 528, 534-35 (7th
Cir. 2005), vacated in part on other grounds, 448 F.3d 936 (7th Cir. 2006). “[B]ecause there are
‘many different kinds of experts, and many different kinds of expertise,’ the reliability analysis
should be geared toward the precise sort of testimony at issue and not any fixed evaluative
factors.” Lees, 714 F.3d at 521, (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150, 119
S. Ct. 1167 (1999)). See also Deputy v. Lehman Bros., Inc., 345 F.3d 494, 505 (7th Cir. 2003)
(noting that the Daubert analysis is flexible); Goodwin v. MTD Prods., Inc., 232 F.3d 600, 608
n.4 (7th Cir. 2000) (noting that “the Daubert Court emphasized that it did not presume to set out
a definitive checklist or test, and that the district judge’s inquiry should be flexible”) (quotations
omitted).
In assessing the admissibility of an expert’s testimony, the Court’s focus “must be solely
on principles and methodology, not on the conclusions they generate.’” Winters, 498 F.3d at 742
(quoting Chapman v. Maytag Corp., 297 F.3d 682, 687 (7th Cir. 2002)). “The goal of Daubert is
to assure that experts employ the same ‘intellectual rigor’ in their courtroom testimony as would
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be employed by an expert in the relevant field.” Jenkins v. Bartlett, 487 F.3d 482, 489 (7th Cir.
2007) (quoting Kumho Tire, 526 U.S. at 152). A district court’s evaluation of expert testimony
under Daubert does not “take the place of the jury to decide ultimate issues of credibility and
accuracy.” Lapsley v. Xtek, Inc., 689 F.3d 802, 805 (7th Cir. 2012) (citing Daubert, 509 U.S. at
596). Once it is determined that “the proposed expert testimony meets the Daubert threshold of
relevance and reliability, the accuracy of the actual evidence is to be tested before the jury with
the familiar tools of ‘vigorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof.’” Id.
In addition, as this is a bench trial, the Seventh Circuit instructs:
Where the gatekeeper and the factfinder are one and the same – that is, the judge –
the need to make such decisions prior to hearing testimony is lessened. See United
States v. Brown, 415 F.3d 1257, 1268-69 (11th Cir. 2005). That is not to say that
the scientific reliability requirement is lessened in such situations; the point is only
that the court can hear the evidence and make its reliability determination during,
rather than in advance of, trial. Thus, where the factfinder and the gatekeeper are
the same, the court does not err in admitting the evidence subject to the ability later
to exclude it or disregard it if it turns out not to meet the standard of reliability
established by Rule 702.
In re Salem, 465 F.3d 767, 777 (7th Cir. 2006); see also Metavante Corp. v. Emigrant Sav. Bank,
619 F.3d 748, 760 (7th Cir. 2010) (observing that “the court in a bench trial need not make
reliability determinations before evidence is presented” because “the usual concerns of the rule—
keeping unreliable expert testimony from the jury—are not present in such a setting”); Brown,
415 F.3d at 1269 (“There is less need for the gatekeeper to keep the gate when the gatekeeper is
keeping the gate only for himself”).
ANALYSIS
Defendant contends that Ms. Entenberg’s opinions lack reliability, are based on unsound
methodology and amount essentially to advocacy and not science. Defendant does not, however,
challenge Ms. Entenberg’s qualifications.
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I.
Susan Entenberg’s Opinions
Ms. Entenberg is a Vocational Rehabilitation Counselor and a Certified Rehabilitation
Counselor. She describes her profession as:
I'm a vocational rehabilitation counselor, so I work with individuals who have some form
of impairment, be it physical, mental, a combination of both, to assess their vocational
potential, and the goal is to return them to their maximum level of functioning, whatever
that would be. To provide services to them.
(R. 149-2, Entenberg Dep., 96-97.) Ms. Entenberg received her Bachelors of Science degree
from Boston University in 1974 and her Masters in Counseling Psychology with an emphasis in
rehabilitation counseling in 1975 from Northwestern University. (R.149-1, Entenberg Expert
Report, at 4.) Ms. Entenberg has consulted as a vocational expert for the Social Security
Administration since 1982 and has presented at various conferences over the last 30 years on
Vocational Expert Testimony and Vocational Rehabilitation. (Id., at 5.)
Ms. Entenberg opined that Plaintiff’s pre-disability occupation was as a psychiatrist, with
a primary emphasis in geriatric psychiatry and further opined that his visual limitations prevent
him from performing that occupation in a competitive nature through reasonable
accommodation. Specifically, she opined:
Based upon my review of the above-stated records and my education, training, and
experience, it is my opinion that Dr. Chaudhry’s occupation at the time of his disability
was that of a psychiatrist, with a primary emphasis as a geriatric psychiatrist. It is also
my opinion that these duties included driving as well as the need to frequently read
patient charts and medical records and are precluded by his visual limitations. It is
further my opinion that his occupation as a psychiatrist could not be restored to a
competitive nature through reasonable accommodation.
(Id., at 3.)
In reaching her opinions, Ms. Entenberg reviewed various records, including an excerpt
of the Policy definitions, Dr. Chaudhry’s initial disability claim, correspondence between Dr.
Chaudhry and Provident Life, Provident vocational rehabilitation reviews, reasons for denial of
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insurance coverage, Dr. Chaudhry’s 2002 income tax return, U.S. Department of Labor’s
Dictionary of Occupational Titles (“DOT”), as well as records relating to Dr. Chaudhry’s
indictment, change of plea hearing, the government’s sentencing memo, sentencing hearing, and
affidavits of Dr. Chaudhry and his brother—Mahmood Choudry. (Id., at 1.) Although her
standard method includes interviewing her subjects when she is given access to them, Ms.
Entenberg did not interview Dr. Chaudhry because of his credibility and veracity issues
stemming from his criminal guilty plea involving his medical billings. (Entenberg Daubert Hr’g.
Tr., Apr. 13, 2015, 10:17-11:2; 77:10-78:17; R.149-2, 48:10-49:5.) Specifically, on April 14,
2010, Plaintiff pled guilty to one count of healthcare fraud in violation of 18 U.S.C. § 1347. See
Minute Order After Change of Plea Hearing, United States v. Chaudhry, No. 06-cr-469 (N.D. Ill.
Apr., 14, 2010) (R.60). Plaintiff pled guilty to knowingly and willfully executing a scheme to
defraud. (See id.; Indictment, United States v. Chaudhry, No. 06-cr-469 (N.D. Ill. June 29, 2006)
(R.1).) For these same reasons, although Ms. Entenberg reviewed Dr. Chaudhry’s affidavit, she
did not read his deposition. Instead, Ms. Entenberg thought it was important to primarily rely on
the records in reaching her opinions. (Daubert Hr’g. Tr., 10:22-11:2.)
II.
Ms. Entenberg’s Opinion that Dr. Chaudhry Had a “Primary Emphasis As a
Geriatric Psychiatrist” Is Not Reliable
Ms. Entenberg opined that at the time he became disabled Dr. Chaudhry was “a
psychiatrist, with a primary emphasis as a geriatric psychiatrist.” (R.149-1, at 3.) Defendant
argues that the Court should strike this portion of Ms. Entenberg’s opinion because she did not
have a reliable basis to make such an opinion. The Court agrees.
A court must ensure that expert testimony is relevant and reliable. Manpower, 732 F.3d
at 806. “Reliability … is primarily a question of the validity of the methodology employed by an
expert, not the quality of the data used in applying the methodology.” Id.
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Ms. Entenberg explained at the Daubert hearing that her opinion that Dr. Chaudhry had
an “emphasis as a geriatric psychiatrist” means that “he was a psychiatrist and – but his emphasis
was in providing services in nursing homes and with geriatric patients.” (Daubert Hr’g. Tr., 5;
see also R.149-2, 13:20-14:9.) In reaching this opinion, Ms. Entenberg relied on Dr.
Chaudhry’s initial claim for disability, his guilty plea transcript, the government’s sentencing
memorandum from his criminal case, Provident’s vocational reviews, and his continuing medical
education courses. (R. 149-1, at 2; R. 149-2, 17-18.) She then did a search on the Internet and
found “a definition of the role what is a geriatric psychiatrist, who sees a geriatric psychiatrist”
from the Geriatric Mental Health Foundation. (R. 149-2, 31-32.) Specifically, the Geriatric
Mental Health Foundation provides:
A geriatric psychiatrist is a medical doctor with special training in the diagnosis
and treatment of mental disorders that may occur in older adults. These disorders
include, but are not limited to, dementia, depression, anxiety, and late-life
schizophrenia. Geriatric psychiatrist[s] see patients in many settings, including
office, hospital, clinic, long-term care facility (nursing home), or an independent or
assisted living facility.
(R. 149-1, at 2.) Although she was not familiar with the Geriatric Mental Health Foundation and
does not personally regard it as an authoritative text, she relied on this definition as
“information” to form her opinion. (R.149-2, 32-33.) Based on this definition—and the
documentation and CME courses as discussed below—Ms. Entenberg opined that Dr. Chaudhry
had a “primary emphasis as a Geriatric Psychiatrist.”
Despite her opinion, Ms. Entenberg admitted that in Dr. Chaudhry’s initial claim for
disability he did not identify his occupation as a geriatric psychiatrist. (Id., 33.) Instead, he
identified himself as a “[p]sychiatrist seeing patients at hospitals, offices and nursing homes.”
(Id.) Furthermore, Ms. Entenberg admitted that on Dr. Chaudhry’s Curriculum Vitae, he did not
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list geriatric psychiatry as his specialty or emphasis, and that he did not have any board
certifications in geriatric psychiatry. (Id., 33-35, 138:24-140:4.)
Further, Dr. Chaudhry primarily worked at Rock Creek Center. Ms. Entenberg conceded
that this facility was not a geriatric facility. (Id., 43, 130.) In fact, she did not know how many
geriatric patients were at this facility. (Id.) Moreover, when Dr. Chaudhry submitted his
application to renew his license in Ohio, he stated that his specialty was psychiatry. (Id., 139.)
He did not mark the specialty of “geriatric psychiatry” on this application even though it was an
available option. (Id., 139-40). Ms. Entenberg did not review any of Dr. Chaudhry’s patient
records. As such, she did not know the age of the patients whom Dr. Chaudhry saw at the
nursing homes, offices, or other hospitals he billed for visits to. (Id., 131.) Even though Ms.
Entenberg focused on Dr. Chaudhry’s visits to nursing homes, she also acknowledged that
nursing homes are not limited to treatment of geriatric patients. (Daubert Hr’g. Tr., 104:10-16
(“It’s not exclusive. Majority are geriatric. But there’s other disabled individuals. There’s all
types of people in nursing homes”).)
Ms. Entenberg’s additional reliance on Plaintiff’s continuing medical education courses
and billing practices in reaching her opinion does not rescue the reliability of her selective
methodology and review of data. Ms. Entenberg relied on Plaintiff’s continuing medical
education courses, however, only five of Plaintiff’s twenty-five CME courses were specific to
geriatric patients. (R. 149-2, 135-36.) Ms. Entenberg further admitted that she did not know the
ratio of continuing education courses he took related to geriatrics and non-geriatrics. (Id.,
35-37.) Ms. Entenberg’s relied on Dr. Chaudhry’s billings as reflective of his treatment of
geriatric patients in nursing homes. She admitted, however, that she could not tell the percentage
of the billings that pertained to nursing homes or what percentage were for geriatric patients.
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(Id., at 37:3-11.) Ms. Entenberg further admitted that because Dr. Chaudhry pled guilty to fraud
in connection with his billings, including billing for services not performed, she could not trust
the veracity of these billings. (Daubert Hr’g. Tr., 68:19-69:17.) She further admitted that she
could not determine what billing treatments Dr. Chaudhry actually performed and what billings
were fraudulent. (Daubert Hr’g. Tr., 78; see also R.149-2, 14:20-17:4, 19:15-22, 37:7-40:16.)
Ms. Entenberg did not undertake an independent review of any of the patient charts to determine
if Dr. Chaudhry made any notations in the charts to corroborate that he actually treated the
patients. (R.149-2, 39:20-22.) Ms. Entenberg also conceded that Medicare reimbursements
received by Dr. Chaudhry were not necessarily limited to the geriatric population. (Id., 132.)
Thus, she could not determine a patient’s age simply based on a Medicare reimbursement. (Id.)
According to Ms. Entenberg’s testimony at her Daubert hearing, she reached this opinion
“based on the population, the nursing home population he was dealing with, [and because of the]
amount of [his] continuing education primarily with geriatrics.” (Daubert Hr’g. Tr., 85.) Ms.
Entenberg, however, could not provide any details as to what a “primary emphasis” meant in
terms of a percentage of Dr. Chaudhry’s patient population being geriatric or a percentage of his
time treating geriatric patients. (Daubert Hr’g. Tr., 85:13-25; 86:8-12.) In essence, she reached
this conclusion because Dr. Chaudhry saw some patients in nursing homes even though he also
saw patients at Rock Creek, his office, and regular hospitals. (R. 149-2, 131.) As Ms. Entenberg
acknowledged, Dr. Chaudhry treated adolescents, adults and geriatrics. (Id., 137.) Despite her
opinion, Ms. Entenberg admitted that she did not review any patient records and did not know
what percentage of his patients were geriatric, what percentage of his billings were for geriatric
patients, or what percentage of his practice involved geriatric patients. (Id.).
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Furthermore, Ms. Entenberg did not identify any particular education, experiences or
training that she has had regarding geriatric psychiatrists to assist in reaching this opinion. Her
underlying factual discrepancies are the result of faulty methods and a lack of investigation into
Dr. Chaudhry’s work. In sum, she has not identified a reliable basis or methodology for reaching
her opinion that Dr. Chaudhry’s occupation as a psychiatrist included “a primary emphasis as a
geriatric psychiatrist,” and the Court thus strikes it. See Hartman v. EBSCO Industries, Inc., 758
F.3d 810, 818-19 (7th Cir. 2014) (“The hallmark of the Supreme Court’s expert testimony cases
is still reliability.”). See also Brown, 765 F.3d at 773 (affirming district court’s exclusion of
expert testimony under Daubert where the expert’s “factual deficiencies or discrepancies …
[were] the result of [the expert’s] faulty methods and lack of investigation”).
III.
Ms. Entenberg’s Opinion that Dr. Chaudhry’s Visual Limitations Preclude Him
from Restoring His Occupation as a Psychiatrist to a Competitive Nature Through
Reasonable Accommodation is Admissible
Defendant also seeks to preclude as unreliable Ms. Entenberg’s opinion that Dr.
Chaudhry’s visual limitations precluded him from performing his occupational duties as a
psychiatrist and that reasonable accommodation would not restore his occupation to a
competitive nature. According to Defendant, Ms. Entenberg only reviewed the documentation
provided by Plaintiff’s counsel in rendering her opinions and failed to review relevant
documentation and evidence in reaching her opinions.
In particular, Defendant argues that Ms. Entenberg’s opinions are incomplete because she
selectively picked information and because she “did not … ask for additional information,
despite admitting that it could be helpful to her opinion.” (R.149, Def’s Mem. in Support to
Exclude Evidence and Testimony of Entenberg, at 11.) Although, for example, Ms. Entenberg
relied on Dr. Chaudhry’s billing records as reliable, she ignored as unreliable Dr. Chaudhry’s
own notation in his application for medical license renewal to the Ohio Board … that he had no
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condition which impaired or limited or restricted his ability to safely practice. (Daubert Hr’g.
Tr., 51:25-52:10, 53:15-55:7.) Ms. Entenberg found this information irrelevant and unreliable
because it was Dr. Chaudhry’s own opinion about his medical restrictions and she relied only on
medical information. (Daubert Hr’g. Tr., 55:3-10.) Ms. Entenberg did, however, rely on Dr.
Chaudhry’s testimony, along with that of his brother, Mahmood Choudry, when determining the
type of work Dr. Chaudhry engaged in while working with his brother in Ohio, but only relied on
the affidavits of Dr. Chaudhry and his brother and did not review their depositions even though
she was aware of them and knew they were available. Based on her review, Ms. Entenberg
testified that Dr. Chaudhry’s work in Ohio was “completely different” than his previous work,
even though he was still acting as a psychiatrist. (Daubert Hr’g. Tr., 39:18-20.)
Defendant argues that Ms. Entenberg failed to consider the actual evidence regarding Dr.
Chaudhry’s pre-disability occupation and capabilities. In particular, Defendant contends that
Ms. Entenberg relied too heavily on the affidavit of Plaintiff’s brother, Mahmood Choudry,
without also reviewing his deposition which is allegedly contradictory. Ms. Entenberg’s reliance
on Mahmood’s affidavit rather than his deposition is not a criticism of her methodology, but
rather goes to the weight that should be afforded an opinion offered by Ms. Entenberg based on
Mahmood’s testimony. This argument is rooted in a credibility determination, which is
inappropriate at the Daubert stage. See Lapsley, Inc., 689 F.3d at 805 (“A Daubert inquiry is not
designed to have the district judge take the place of the jury to decide ultimate issues of
credibility and accuracy”). Indeed, Ms. Entenberg testified that she did not review Dr.
Chaudhry’s brother’s deposition—despite the fact that she did review his affidavit—even though
she knew it was available. Ms. Entenberg relied on the affidavit and Mahmood’s representation
that he helped Dr. Chaudhry by organizing files, sorting documents, reading documents and
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reading final copies of dictated documents. (Daubert Hr’g. Tr., 92:24-94:19) In his deposition,
however, Mahmood Choudry testified that he was not assisting Dr. Chaudhry with any kind of
reviewing charts, reading charts, seeing patients, making notes from his time practicing in Ohio
and that he helped him on a few occasions no more than an hour per week. (R.149-4, Mahmood
Choudry Dep., 24:5-13.) Ms. Entenberg testified that if Mahmood Choudry was actually only
helping “on a few occasions” that would not be the same as what she understood his role to be in
assisting Dr. Chaudhry. (Daubert Hr’g. Tr., 94:13-19.) Ms. Entenberg’s reliance on Mahmood
Choudry’s affidavit without consideration of his deposition may prove to lessen the weight of her
opinion. Defendant is free to conduct a rigorous cross examination of Ms. Entenberg and
Mahmood Choudry to uncover alleged credibility issues as this is central to the importance of the
adversary system. See United States v. O’Neill, 437 F.3d 654, 66 (7th Cir. 2006) (explaining the
adversary system “which is fundamental to Anglo-American jurisprudence”).
Defendant further argues that Ms. Entenberg’s opinions regarding Dr. Chaudhry’s
vocation are incomplete and lack sufficient foundation because she “did not conduct an
independent investigation.” (R.149, at 11; see also R.162, Def’s Reply Br., at 4-8.) Expert
testimony, however, need not be based on first-hand knowledge or research actually conducted
by the expert herself. See Daubert, 509 U.S. at 592; Mihailovich v. Laatsch, 359 F.3d 892, 919
(7th Cir. 2004) (“[T]he Daubert framework is a flexible one that must be adapted to the … type
of testimony being proffered.”); Walker v. Soo Line R.R., 208 F.3d 581, 588 (7th Cir. 2000)
(“[C]ourts frequently have pointed to an expert’s reliance on the reports of others as an
indication that their testimony is reliable”). Indeed, Ms. Entenberg testified that she did not need
to review the medical records because the medical issues exceeded her experience. (R.149-2,
21-22; see also R.160, at 4.) To the extent Defendant criticizes her reliance on the same
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information that Provident Life relied upon, that goes to the weight to be given to Ms.
Entenberg’s opinion, not its admissibility. See Lapsley, Inc., 689 F.3d at 805; see also R.160, at
2 (explaining the Provident Life claims file contained information “deemed material to Plaintiff’s
claim”).
Defendant also argues that Ms. Entenberg failed to review Dr. Chaudhry’s visual
limitations and capabilities and relied only on data provided by counsel in rendering her opinion.
Specifically, Defendant contends that “Entenberg incorrectly assumed there was no question
regarding Plaintiff’s medical limitations” and did not “verify[] the accuracy and relevance of the
data” provided by counsel. (R.149, at 10.) Defendant’s criticisms of assumptions and accuracy
of the data, however, are not a challenge to Ms. Entenberg’s methodology in this case. Instead,
Defendant’s criticisms focus on the reliability of the underlying data and assumptions used by
Ms. Entenberg in the application of her methodology. These criticisms go to the weight of the
evidence and are better left to the adversarial process to be determined by the fact finder. See
Manpower, Inc., 732 F.3d at 808 (“The reliability of data and assumptions used in applying a
methodology is tested by the adversarial process and determined by the jury; the court's role is
generally limited to assessing the reliability of the methodology—the framework—of the
expert’s analysis”); Lapsley, 689 F.3d at 805 (explaining that the accuracy of the actual evidence
relied upon in a relevant and reliable expert opinion can be challenged with the familiar tools of
‘vigorous cross-examination, presentation of contrary evidence …’”).
Similarly, Defendant argues that Ms. Entenberg’s opinion is speculative, highlighting
numerous “unfounded assumptions or admissions”. (R.149, at 11-12; see also R.162, at 9-11.)1
1
In arguing that Ms. Entenberg’s opinion is speculative, Defendant also relies on Ammons v.
Aramark Uniform Servs., Inc., 368 F.3d 809 (7th Cir. 2004). In Ammons, the Seventh Circuit affirmed
the district court’s holding that Ms. Entenberg’s opinions regarding the ability of the plaintiff to return to
work and perform the vast majority of his duties was unreliable. Ammons, 368 F.3d at 816. Defendant
15
The specific criticisms Defendant highlights, however, are reflective of Ms. Entenberg’s
understanding and assumptions in this case. Ms. Entenberg applied her own experience and
relied upon various records, including the Provident Life claim file which included vocational
assessments and vocational rehabilitation reviews addressing Dr. Chaudhry’s visual limitations,
as well as statements in affidavits from Dr. Chaudhry and his brother whom he worked for—in
some capacity—after his initial disability claim. (R.149-1, at 1.) Ms. Entenberg further
reviewed an excerpt of the Policy definitions, including the definition for “occupation”, DOT
occupational title of psychiatrist, Provident Life’s reasons for denial of insurance coverage, as
well as Dr. Chaudhry’s 2002 income tax return, and records related to Chaudhry’s fraud charges
that included a review of his billing practices. (Id.) These records are included in the type of
documents a vocational expert’s methodology would normally rely on. See Hale v. Gannon, No.
1:11-cv-277-WTL-DKL, 2012 WL 3866864, at *4-5 (S.D. Ind. Sept. 5, 2012) (finding
vocational expert’s methodology to be scientifically reliable where expert derived functional
limitations from medical records; applied light work limitations from the DOT; used the Bureau
of Labor Statistics to determine wages; and utilized a scientific report regarding work-life
expectancy and cited all of these sources in her report).
Defendant’s argument that Ms. Entenberg’s opinion is unreliable because she failed to
conduct her own research into whether there were accommodations Plaintiff could utilize to
perform his occupation fares no better. Defendant relies heavily on excerpts from Ms.
argues that here, like in Ammons, Ms. Entenberg did not interview Dr. Chaudhry, nor did she review his
deposition, making her opinion unreliable. Ms. Entenberg provided an explanation as to why, in this case
where credibility determinations are at the center of many disputes, she deviated from her standard
procedure and refrained from interviewing Dr. Chaudhry and relied instead on the records available,
including those in the claim file from Provident Life, in making her determinations. This explanation
does not render Ms. Entenberg’s methodology improper. What impact, if any, her decision to refrain
from interviewing Dr. Chaudhry or review his deposition has on the accuracy and weight of her opinion is
a matter properly left for trial. See Lapsley, 689 F.3d at 805.
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Entenberg’s deposition testimony in a previous, unrelated litigation, wherein she testified that a
blind woman could work with accommodations. See Estate of Breanna Davis v. Sparrow
Hospital, et al., No. 121338 NH, Circuit Court for the County of Ingham, Michigan, Entenberg
Deposition, Oct. 30, 2013 (“Sparrow deposition”). Defendant’s reliance on the Sparrow
deposition, however, only undermines its argument that Ms. Entenberg should have conducted
independent investigation because it serves to show that her personal experience in the field as a
vocational rehabilitation counselor has exposed her to information related to accommodations for
the visually impaired. Indeed, as Defendant states in its brief, “Entenberg proffered a wealth of
information regarding the accommodations available to visually impaired individuals” and
“stated she frequently worked with visually impaired individuals to help them find work.”
(R.149, at 7; see also R.160, Pltf’s Resp. Br., at 2 (“Entenberg, as a Vocational Rehabilitation
Counselor, is qualified to use her training, education and experience to opine … whether Plaintiff
could perform his occupation at a competitive level”).) An expert’s reliance on experience
alone, does not render her opinion unreliable. See 2000 Advisory Committee Notes to Rule 702.
“In certain fields, experience is the predominant, if not the sole basis for a great deal of reliable
expert testimony.” Id. The Seventh Circuit has repeatedly stated that “genuine expertise may be
based on experience or training.” United States v. Conn, 297 F.3d 548, 556 (7th Cir. 2002)
(quoting Tyus v. Urban Search Mgmt., 102 F.3d 256, 263 (7th Cir. 1996)). “[W]hile extensive
academic and practical expertise in an area is certainly sufficient to qualify a potential witness as
an expert, Rule 702 specifically contemplates the admission of testimony by experts whose
knowledge is based on experience.” Trustees of Chicago Painters & Decorators Pension,
Health & Welfare, & Deferred Sav. Plan Trust Funds v. Royal Int’l Drywall & Decorating, Inc.,
493 F.3d 782, 787-88 (7th Cir. 2007) (citations and quotations omitted). As such, courts
17
“consider a proposed expert’s full range of practical experience, as well as academic or technical
training, when determining whether that expert is qualified to render an opinion in a given area.”
Id. (quoting Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000)). Accordingly, Ms.
Entenberg’s former testimony regarding accommodations for the visually impaired serves to
highlight her personal experience applicable to this case and does not render her opinion here, as
to reasonable accommodation, inadmissible.
CONCLUSION
For the reasons discussed in detail above, the Court grants in part and denies in part
Defendant’s motion to exclude the testimony of Plaintiff’s expert, Ms. Entenberg.
DATED:
May 1, 2015
ENTERED
_________________________________
AMY J. ST. EVE
United States District Court Judge
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