Queen v. W.I.C., Inc. et al
Filing
200
ORDER, granting 120 MOTION to Exclude Plaintiff's Life Care Planner Santo Steven Bifulco filed by W. I. C., Inc., 122 MOTION to Exclude Plaintiff's Forensic Economist Karen Grossman Tabak filed by W. I. C., Inc. Signed by Judge David R. Herndon on 9/5/2017. (lmp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JORDAN QUEEN
Plaintiff,
vs.
Case No. 14-CV-519-DRH-SCW
W.I.C., INC. d/b/a
SNIPER TREESTANDS,
Defendant.
MEMORANDUM AND ORDER
HERNDON, District Judge:
I. Introduction and Background
Now before the Court are defendant’s motions to exclude Santo Steven
BiFulco, M.D. (Doc. 120) and Karen Grossman Tabak, Ph.D., C.P.A. (Doc. 122)
as plaintiff’s proposed experts. Naturally, plaintiff opposes both motions (Docs.
128 &129), to which defendant replied (Doc. 130). For the following reasons, the
motions are granted.
Plaintiff Jordan Queen brought the present lawsuit alleging that he was
injured after his tree stand, a Scout Model STLS41 tree stand, used for deer
hunting collapsed. (Doc. 2). The tree stand was distributed by the defendant.
Plaintiff alleges that on October 12, 2013, while he was at the top of the stand’s
ladder, the ladder bent, causing him to fall. As a result of the fall, plaintiff claims
that he suffered serious injuries. Because of said injuries, plaintiff alleges that he
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incurred medical expenses and lost wages, and that he will continue to lose
wages, due to the debilitating condition of his right leg and ankle.
II. Legal Standard
“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). The Daubert standard applies to all expert testimony,
whether based on scientific competence or other specialized or technical
expertise. Smith v. Ford Motor Co., 215 F.3d 713, 719 (7th Cir. 2000) (citing
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.137, 141 (1999)). Federal Rule of
Evidence 702, governing the admissibility of expert testimony, provides:
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.
“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 Pa. 732 F.3d 796, 806 (7th Cir.
Page 2 of 14
2013) (citing Daubert, 509 U.S. at 589); 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. 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”).
Courts in the Seventh Circuit conduct a three-step analysis under Daubert.
Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007). 1 First, the
district court must determine whether the person whose testimony is offered is in
fact an expert, as codified in Rule 702 through “knowledge, skill, experience,
training, or education.” Id. (citing Fed.R.Evid. 702). Notably, although “extensive
academic and practical expertise” sufficiently qualify a potential witness as an
expert, Bryant v. City of Chicago, 200 F.3d 1092, 1098 (7th Cir. 2000), “Rule 702
specifically contemplates the admission of testimony by experts whose knowledge
is based on experience,” Walker v. Soo Line R.R. Co., 208 F.3d 581, 591 (7th Cir.
2000). Smith, 215 F.3d at 718 (citing Kumho, 526 U.S. at 156 (“[N]o one denies
that an expert might draw a conclusion from a set of observations based on
extensive and specialized experience.”)).
The Court notes the Seventh Circuit has also described the Daubert analysis as a twostep process. See Chapman v. Maytag Corp., 297 F.3d 682, 686 (7th Cir. 2002).
However, as Chapman simply combines the first two steps described in Ervin as a single
test of reliability, whether the analysis is described as a three-step or two-step process
does not substantively change the Court’s analysis.
1
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Secondly, the district court must determine the expert’s reasoning or
methodology is reliable. Ervin, 492 F.3d at 904; see Mihailovich v. Laatsch, 359
F.3d 892, 918 (7th Cir. 2004) (citing Kumho, 526 U.S. at 147). Specifically, the
testimony must have a reliable basis in the knowledge and experience of the
relevant discipline, Kumho, 526 U.S. at 149 (internal quotations removed),
consisting in more than subjective belief or unsupported speculation. Chapman v.
Maytag Corp., 297 F.3d 682, 687 (7th Cir. 2002); Daubert, 509 U.S. at 590.
Further, as to reliability, Daubert provided the following non-exhaustive list
of relevant factors: “(1) whether the scientific theory can be or has been tested; (2)
whether the theory has been subjected to peer review and publication; (3) whether
the theory has been generally accepted in the scientific community.” Ervin, 492
F.3d 901, 904 (7th Cir. 2007) (citing Daubert, 509 U.S. at 593-94).
Nonetheless, there is no requirement that courts rely on each factor, as the
gatekeeping inquiry is flexible and must be “tied to the facts” of the particular
case.
Kumho, 526 U.S. at 150 (quoting Daubert, 509 U.S. at 591); see also
Chapman, 297 F.3d at 687. Thus, “the role of the court is to determine whether
the expert is qualified in the relevant field and to examine the methodology the
expert has used in reaching his [or her] conclusions.” Smith, 215 F.3d at 718
(citing Kumho, 526 U.S. at 153).
The district court possesses “great latitude in determining not only how to
measure the reliability of the proposed expert testimony but also whether the
testimony is, in fact, reliable.” United States v. Pansier, 576 F.3d 726, 737 (7th
Page 4 of 14
Cir. 2009) (citing Jenkins v. Bartlett, 487 F.3d 482, 489 (7th Cir. 2007)).
Accordingly, the court’s gatekeeping function requires focus on the expert’s
methodology; “[s]oundness of the factual underpinnings of the expert’s analysis
and the correctness of the expert’s conclusions based on that analysis are factual
matters to be determined by the trier of fact.” Smith, 215 F.3d at 718 (citing
Daubert, 509 U.S. at 595; Walker, 208 F.3d at 587).
Once a party calls into question an expert’s qualification under Daubert, it
is the party supporting that expert who carries the burden of persuasion to
convince the court that said expert is qualified. Fed.R.Evid. 702 advisory
committee's note 2000 Amend.) (“[T]he admissibility of all expert testimony is
governed by the principles of Rule 104(a). Under that Rule, the proponent has the
burden of establishing that the pertinent admissibility requirements are met by a
preponderance of the evidence.”); See also Lewis v. CITGO Petroleum Corp., 561
F.3d 698, 705 (7th Cir. 2009); Bourjaily v. United States, 483 U.S. 171, 175–76
(1987).
“It is not the trial court’s role to decide whether an expert’s opinion is
correct.
The trial court is limited to determining whether expert testimony is
pertinent to an issue in the case and whether the methodology underlying that
testimony is sound.” Id. (citing Kumho, 526 U.S. at 159 (Scalia, J., concurring)
(stating that the trial court’s function under Daubert is to exercise its discretion
“to choose among reasonable means of excluding expertise that is fausse and
science that is junky”)). However, as an expert must explain the methodologies
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and principles that support his or her opinion, he or she cannot simply assert a
“bottom line” or ipse dixit conclusion. Metavante Corp. v. Emigrant Sav. Bank,
619 F.3d 748, 761 (7th Cir. 2010) (quoting Minix v. Canarecci, 597 F.3d 824, 835
(7th Cir. 2010)).
Lastly, the district court must consider whether the proposed testimony
will assist the trier of fact in its analysis of any issue relevant to the dispute. See
Smith, 215 F.3d at 718; Chapman, 297 F.3d at 687; Daubert, 509 U.S. at 592. It
is crucial that the expert “testify to something more than what is ‘obvious to the
layperson’ in order to be of any particular assistance to the jury.’”
Dhillon v.
Crown Controls Corp., 269 F.3d 865, 871 (7th Cir. 2001) (quoting Ancho v.
Pentek Corp., 157 F.3d 512, 519 (7th Cir. 1998)). However, the expert need not
have an opinion as to the ultimate issue requiring resolution to satisfy this
condition. Smith, 215 F.3d at 718 (citing Walker, 208 F.3d at 587).
Based on the legal standard set forth above, the Court now turns to the
individual experts’ testimony challenged in this case.
III.Analysis
a. Dr. Santo Steven BiFulco
Dr. Santo Steven BiFulco was hired to prepare a life care plan outlining
Queen’s “needs for treatment and medical services, as well as equipment
necessary that he is reasonably certain to utilize in order to maximize his medical
and rehabilitative potential” following the injury at issue (Doc. 121-4, pg. 3).
Defendant argues that BiFulco’s life care plan and related testimony must be
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excluded. Specifically, defendant challenges BiFulco’s qualifications as an expert,
his methodologies, and the reliability of his opinions.
Santo Steven BiFulco, M.D., graduated from the University of South Florida
College of Medicine in 1986. Thereafter, he completed a one year internship in
internal medicine at Stony Brook University and the Nassau County Medical
Center. Subsequent to completing his internship, Dr. BiFulco spent three years as
a resident in Physical Medicine and Rehabilitation, and Rheumatology at Stony
Brook University and the Nassau County Medical Center. Upon completing his
residency in 1990, Dr. BiFulco entered private practice, where he has remained
for the last 27 years.
Currently, Dr. BiFulco is a licensed physiatrist (Doc. 121-5). He maintains
active medical licenses in both Florida and New York; holds multiple clinical
appointments; retains memberships of several professional associations including
the American Academy of Physical Medicine & Rehabilitation; and is certified as a
Certified Life Care Planner by the International Commission on Health
Certification (Doc. 128-3).
Plaintiff also notes that Dr. BiFulco has provided
medical testimony in over 30 state court cases since 2011 (Doc. 128-1). However,
as of this date, there is no indication that BiFulco has been qualified to offer
expert testimony in federal court or in state of Illinois (Doc. 121-1, pg. 32).
Despite this fact, in reviewing Dr. BiFulco’s qualifications, it appears that he
possesses the necessary “knowledge, skill, experience, training, or education” to
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qualify generally as a life care planner subject to a case specific analysis.
Fed.R.Evid. 702.
In carrying out its “gatekeeping” functions, this Court must also assess the
reliability of the methodology employed by Dr. BiFulco in reaching his opinions.
“The focus, of course, must be solely on principles and methodology, not on the
conclusions that they generate.” Daubert, 509 U.S. at 595, 113 S.Ct. 2786. With
regard to BiFulco’s methodology and reasoning, the Court finds that they are not
based on more than subjective belief and unsupported speculation.
Dr. BiFulco indicates that his life care plan was based on a review of
Queen’s medical records and a September 10, 2015, examination of Queen, which
lasted less than two hours (Doc. 121-1, pgs. 36-37). Defendant contends that
BiFulco’s opinions are not grounded in a proper basis because Dr. BiFulco relied
on his own assessment of Queen to develop his life care plan and opinions as to
Queen's condition and future needs, rather than the assessments prepared by
Queen’s treating physicians. In addition, defendant also argues that Dr. BiFulco’s
report exceeded the scope of his expertise and fails to establish the reliability of
his opinions.
Upon review of the report and relevant exhibits, it is clear that BiFulco’s
report and opinions fail to satisfy Daubert’s reliability standard. An expert must
explain the methodology and principles supporting his opinion, and that opinion
must amount to “more than a ‘bottom line.’” Minix v. Canarecci, 597 F.3d 824,
835 (7th Cir.2010). Here, BiFulco’s report sets forth recommendations that are
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unsupported by the medical records generated by Queen’s treating physicians,
and
BiFulco
fails
to
explain
the
basis
for
his
additional
treatment
recommendations and valuations.
In response to defendant’s motion, plaintiff submitted an article entitled
Life Care Planning: A Natural Domain of Physiatry, in an attempt to support the
proposition that BiFulco’s position as a physiatrist allows him to determine what
medical conditions remain relevant to plaintiffs future care, regardless of what the
medical records state (Doc. 128-2). However, plaintiff fails to demonstrate how
BiFulco meets any standard that allows a physiatrist to offer opinions about
Queen’s specific surgical and orthopedic needs, different from those offered by
Queen’s treating physicians.
Dr. BiFulco’s recommended care plan suggests multiple treatments that are
neither supported by Queen’s medical records, nor recommended by Queen’s
treating physicians. Dr. BiFulco’s report and his deposition testimony fail to
provide insight into the methods by which BiFulco reached the conclusions that
Queen required extensive physical therapy, massage therapy, mechanical traction,
intersegmental traction, electrical stimulation, muscle stimulation, ultrasound,
trigger point injections, steroid injections, and anesthetic blocks. None of Queen’s
treating physicians recommended those proposed treatments; Dr. BiFulco never
ordered any additional diagnostic tests; Dr. BiFulco never spoke to Queen after
that initial examination; he never spoke to any of Queen’s family members; and he
never spoke to Queen’s treating physicians (Doc. 121-1, pg. 43; 56-57) Also, Dr.
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BiFulco testified he was not asked to arrive at a diagnosis or make a prognosis of
Mr. Queen’s condition separate from what was already in Queen’s medical records
(Doc. 121-1, pg. 59-60).
Further, plaintiff failed to show that BiFulco’s methodology, in arriving at
his opinions, is readily recognized as reliable. It is undisputed that BiFulco did
not conduct any scientific tests or experiments in order to arrive at his
conclusions about Queen’s life care plan. He simply relied on his template to
develop the plan without any indication as to the methods or basis for his
additional treatment suggestions. There is no indication that his methods can or
have been tested, and no indication that his methodology has been generally
accepted in the scientific community. He also fails to indicate that his methods
and reporting style have been peer reviewed.
BiFulco has not subjected his methodology to peer review, did not prepare
the initial report himself, and did not discuss the life care plan with Queen’s
treating physicians in order to validate his proposed treatments. He also failed to
describe the basis for his life care plan— specifically those additional treatments
not recommended by Queen’s treating physicians—and
the methodology
employed to reach those conclusions. Moreover, his nurse practitioner Ashley
Literski prepared the draft life care plan that was forwarded to BiFulco she he
could add information from Queen’s medical records and from BiFulco’s
examination. (Doc. 121-1) BiFulco could not estimate how much of the plan he
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prepared and how much was prepared by Literski, who has not been qualified as
an expert (Id.).
A very significant Daubert factor is whether the proffered scientific theory
has been subjected to the scientific method. As was touched on above, Dr. BiFulco
offered no basis for his projections regarding the frequency of Queen’s future care
and its costs. An expert must explain the methodologies and principles that
support his opinion; he cannot simply assert a “bottom line” or ipse dixit
conclusion. Metavante Corp., 619 F.3d at 761. Here, the methodology employed
by BiFulco cannot be tested, has not been subjected to peer review, and is not
generally accepted in the relevant scientific communities. In fact, his treatments
are not even supported by Queen’s medical records.
Queen’s testimony and medical records do not identify any additional
medical treatment or medical services received after his July 17, 2014 follow-up
visit with Dr. Gardner to support BiFulco’s proposed course of treatment.
Further, plaintiff fails to demonstrate how BiFulco meets any standard for
physiatrists to offer these opinions that far exceed the recommendations of
plaintiff’s treating physicians. Neither BiFulco’s CV, nor his testimony indicate
that he is qualified to proffer opinions about Queen’s specific surgical and
orthopedic needs, or about Queen’s need for additional treatment modalities
independent of those suggested by his treating physicians. In certain fields, such
as medicine, an expert's specialization in the more specific field is certainly
necessary to offer an expert opinion. See, e.g., Pipitone v. Biomatrix, Inc., 288
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F.3d 239 (5th Cir.2002). Here, BiFulco is a licensed physiatrist without any
orthopedic expertise. Given that plaintiff failed to establish a standard for a
physiatrist to offer these opinions, the Court finds that BiFulco’s opinion is not
reliable and not based on proper methodology.
An opinion without foundation in the record has no probative value, and
so is neither relevant within the meaning of Rules 401 and 402 nor helpful to the
trier of fact within the meaning of Rule 702. Norwest Bank, N.A., No. 3:94-CV78RM, 1997 WL 33479072, at *7 (N.D. Ind. Jan. 29, 1997), citing Buckner v.
Sam's Club, Inc., 75 F.2d 290, 294 (7th Cir.1996). Given that BiFulco’s opinions
on Queen’s future medical treatment have no foundation in the record, and his
methods prove unreliable, it follows that BiFulco’s cost valuation opinion based
on those recommended treatments also lacks a proper foundation. Thus, the
Court agrees that the proposed treatments and cost estimates in BiFulco’s life
care plan are not scientifically reliable.
Once a party calls into question the qualification under Daubert, it is the
party supporting that expert who carries the burden of persuasion to convince the
court that said expert is qualified. Fed.R.Evid. 702 advisory committee's note
2000 Amend. The Court is simply not convinced by plaintiff’s arguments to
support BiFulco’s report and opinions. Accordingly, the Court finds that BiFulco’s
opinions are not reliable or based on proper methodology. Based on this evidence
and the fact that plaintiff bears the burden of persuasion to support their
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proffered expert, the report and testimony of Dr. Santo Steven BiFulco will be
disallowed.
b. Karen Grossman Tabak
Defendant also moves to exclude the testimony and opinions of Karen
Grossman Tabak, Ph.D., C.P.A., plaintiff’s forensic economist (Doc. 122).
Defendant does not challenge Tabak’s qualifications as an expert, but rather her
methodology and economic projections about the present value of plaintiff’s future
medical care. Specifically, defendant argues that Tabak’s opinions and testimony
must be excluded because “her testimony and opinions are based solely on [Santo
Steven] BiFulco’s and his nurse practitioner Ashley Literski’s inadmissible life
care plan,” and because “Tabak did not independently evaluate the costs BiFulco
and Literski attributed to their life care plan items” (Doc. 122). The Court agrees.
“Unlike an ordinary witness, [ ], an expert is permitted wide latitude to offer
opinions, including those that are not based on firsthand knowledge or
observation. See Fed.R.Evid. 702 and 703. Presumably, this relaxation of the
usual requirement of firsthand knowledge [ ] is premised on an assumption that
the expert's opinion will have a reliable basis in the knowledge and experience of
his discipline.” Daubert, 509 U.S. at 592. However, in this case, based on the
Court’s exclusion of Dr. BiFulco’s report, it follows that Tabak’s report and
testimony are also barred.
Daubert instructed courts to not be concerned with reliability of the
conclusions generated by valid methods and reasoning, but instead determine the
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validity of the principles and methodology underlying conclusions and inferences.
Winters v. Fru–Con, Inc., 498 F.3d 734, 742 (7th Cir.2007). Here, the Court
previously excluded Dr. BiFulco’s report based on speculation and unsupported
conclusions. Given that Tabak based her opinions on the now excluded life care
plan, her testimony is, likewise, barred. Therefore, defendant's motion to exclude
the report of Karen Grossman Tabak’s is granted.
IV.Conclusion
Accordingly, the Court GRANTS the defendant’s motions to exclude
testimony of Santo Steven BiFulco (Doc. 120) and Karen Grossman Tabak (Doc.
122).
IT IS SO ORDERED.
Signed this 5th day of September, 2017.
Digitally signed by
Judge David R.
Herndon
Date: 2017.09.05
13:13:17 -05'00'
United States District Judge
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