Heavilin v. Madison National Life Ins Co et al

Filing 71

OPINION AND ORDER: Court DENIES 36 , 37 , 38 , 39 Plaintiff's motions to exclude Defendant's expert witnesses. Signed by Judge Joseph S Van Bokkelen on 1/18/2013. (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DIANNA HEAVILIN,

)
)
Plaintiff,
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v.
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)
MADISON NATIONAL LIFE INSURANCE CO., )
)
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Defendant.
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Case No. 2:10-CV-505-JVB

OPINION AND ORDER
Plaintiff Dianna Heavilin was a guidance counselor in Indiana’s South Central
Community School Corporation for 16 years, until she did not return to work following a critical
performance review in May 2009. Plaintiff then filed a claim for long-term disability benefits
under her policy with Defendant Madison National Life Insurance Co. Defendant employed
several doctors to review Plaintiff’s claim and, relying on their recommendations, ultimately
denied the claim. Plaintiff sued Defendant, and the case is scheduled for trial on April 1, 2013.
Plaintiff filed four motions to exclude Defendant’s expert witnesses, the physicians who
reviewed Plaintiff’s disability claim: Dr. Stuart Shipco, who is board certified by the
American Board of Psychiatry and Neurology (DE 36); Dr. Steven McIntire, who is board
certified in neurology (DE 37); Dr. Melvyn Lurie, who is board certified in Psychiatry (DE 38);
and Dr. Angela Wagner who is board certified in physical medicine and rehabilitation (DE 39).
Each motion essentially presents the same argument. Plaintiff insists that the opinions of
Defendant’s expert witnesses are unreliable and are not based on sufficient facts or data. In
particular, Plaintiff submits that their opinions may not be admitted at trial because none of the
physicians has ever examined Plaintiff in person and their review of Plaintiff’s medical records is

insufficient for a reliable opinion. Plaintiff also implies that her physician, Dr. Lonnie Ailes, who
has been treating her for some time and has been seeing her in person, is the only expert
qualified to testify at trial.
The Court finds no basis to exclude Defendant’s expert witnesses. Plaintiff cites no
authority that requires physicians, who are called as expert witnesses, to personally examine the
plaintiff in addition to reviewing her medical history. In fact, this preposition is inconsistent with
precedent. See Walker v. Soo Line R. Co., 208 F.3d 581, 591 (7th Cir. 2000) (admitting opinion
testimony from a physician who performed a records review without an examination, noting that
“evaluation of the patient’s medical records, like performance of a physical examination, is a
reliable method of concluding that the patient is ill even in the absence of a physical
examination”) (quoting In re Paoli R.R. Yard PCB Ligig., 35 F.3d 717, 762 (3d. Cir. 1994).
Likewise, the record suggests that Defendant’s expert witnesses reviewed enough of
Plaintiff’s medical records to enable them to give their opinions on her psychological and
physical well-being. Furthermore, their opinions are stated in sufficient detail and are not based
on junk science. Whether their conclusions are right or wrong is a separate matter to be
determined by the jury. Furthermore, the credibility of expert witnesses does not present a
question of admissibility; rather in cross-examining these witnesses, Plaintiff will be given a
chance to discredit them. See Cooper v. Carl A. Nelson & Co., 211 F.3d 1008, 1021 (7th Cir.
2000) (“[T]he accuracy and truthfulness of the underlying history is subject to meaningful
exploration and cross-examination and ultimately jury evaluation.”); see also Estate of Gee v.
Bloomington Hosp., 2012 WL 591459, *3 (S.D. Ind., February 20, 2012) (noting that crossexamination, not exclusion, was the appropriate remedy for expert testimony alleged to be “not
credible.”).

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Finally, the Defendant’s expert witnesses’ opinions pertain to the sufficiency of
Plaintiff’s proof that she had become disabled, not whether she actually did become disabled.
That is, none of the experts were retained to diagnose Plaintiff and prescribe a course of
treatment for her ailments. Rather, they were asked to offer their opinions as to whether the
available information, including her medical records, was adequate to support her claim of
disability under her insurance policy. Nothing in Plaintiff’s motions suggest that Defendant’s
experts are not qualified to present such opinions.
For these reasons, the Court denies Plaintiff’s motions to exclude Defendant’s expert
witnesses (DE 36—39).

SO ORDERED on January 18, 2013.

S/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE

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