Boyle et al v. Quanta Services Inc et al

Filing 44

OPINION AND ORDER: DENYING 38 Motion to Prohibit Brian L Ratigan M.D. from Offering Expert Testimony on the Issue of Causation; However DISCOVERY is heregy REOPENED for 60 days for the limited purpose of examining any additional relevant records related to the issue of causation, and for Defendants to obtain their own expert on the issue of causation (if they so wish), and make that expert available to Plaintiffs for deposition. Signed by Judge Rudy Lozano on 1/14/15. (jld)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
MARK BOYLE and
TERESA BOYLE,
Plaintiffs,
v.
INFRASOURCE CONSTRUCTION,
LLC, et al.,
Defendants.

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No. 3:13-CV-732

OPINION AND ORDER
This matter is before the Court on the Defendants’ Motion to
Prohibit Brian L. Ratigan, M.D., From Offering Expert Testimony on
the

Issue

of

Causation,

filed

by

Defendants,

InfraSource

Construction, LLC f/k/a InfraSource Underground Construction, LLC
(“InfraSource”) and Peter L. Anthony (“Anthony”), on November 24,
2014 (DE #38).

For the reasons set forth below, the motion (DE

#38) is DENIED.

However, DISCOVERY is HEREBY reopened for 60 days

for the limited purpose of examining any additional relevant
records related to the issue of causation, and for Defendants to
obtain their own expert on the issue of causation (if they so
wish), and make that expert available to Plaintiffs for deposition.

BACKGROUND

Plaintiffs allege Anthony was an employee of Quanta Services,
Inc.

(Compl., DE #1, ¶ 4.)

While operating a pickup truck leased

to InfraSource, Plaintiffs allege Anthony ignored, disregarded or
otherwise failed to completely obey a stop sign controlling the
intersection at Rose Road and Old Lincoln Highway in Plymouth,
Marshall County, Indiana, and collided with Teresa Boyle’s vehicle,
causing her significant injuries. (Id., ¶¶ 17-19.)
Boyle contends that the August 5, 2011 automobile accident
caused her to sustain the following injuries to her right shoulder:
(1) a SLAP1 tear, (2) a chondral defect on the humeral head, and
(3) a tear of the subscapularis tendon.

(Defs.’ Ex. B, DE #39-2.)

Since December 2011, Boyle received medical treatment from Dr.
Brian L. Ratigan, M.D., an orthopedic surgeon affiliated with South
Bend Orthopedics.

(Defs.’ Ex. C, DE #39-3, Ratigan Dep., Aug. 13,

2014, p. 8) Dr. Ratigan surgically repaired Boyle’s SLAP tear, in
May 2013 Dr. Ratigan resurfaced Boyle’s humeral head through a
second surgical procedure, and finally in May 2014 Dr. Ratigan
repaired the subscapularis tear through during a third surgery.
(Defs.’ Ex. D, DE #39-4, Ratigan Dep. Oct. 15, 2014, pp. 75-58.)

Plaintiffs did not disclose Dr. Ratigan’s name on their Rule
1

According to the American Academy of Orthopaedic Surgeons,
“SLAP” stands for Superior Labrum Anterior and Posterior. It is
a tear injury to the ring of cartilage that surrounds the socket
of the shoulder joint.
Http://orthoinfo.aaos.org/topic.cfm?topic=A00627.
2

26(a)(2) Disclosures.

(Defs.’ Ex. E, DE #39-5.)

During his

deposition, Dr. Ratigan opined that all three of Teresa Boyle’s
right shoulder injuries were, in his opinion, caused by the August
2011 collision.

(Defs.’ Ex. C, DE #39-3, Ratigan Dep. Aug. 13,

2014, pp. 18, 19, 31, 39.)

DISCUSSION
Federal Rule of Evidence 702, which governs expert testimony,
provides the following:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact
in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education, may testify thereto in the form of
an opinion or otherwise, if (1) the testimony
is based upon sufficient facts or data, (2)
the testimony is the product of reliable
principles and methods, and (3) the witness
has applied the principles and methods
reliably to the facts of the case.
F.R.E. 702.

In addition, in Daubert v. Merrell Dow Pharms., Inc.,

the Supreme Court fashioned a two-prong test of admissibility for
evidence based on the “scientific knowledge” mentioned in Rule 702.
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993). To
be admissible, evidence must be both relevant and reliable. Id. at
589; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152
(1999) (noting the objective of court’s gatekeeping requirement is
to ensure reliability and relevancy of expert testimony).
3

Under the reliability prong, scientific evidence must be
reliable in the sense that the expert’s testimony must present
genuine scientific knowledge.

Daubert, 509 U.S. at 592-93; Deimer

v. Cincinnati Sub-Zero Prods. Inc., 58 F.3d 341, 344 (7th Cir.
1995).
the

Generally, the expert witness must employ in the courtroom

same

level

of

intellectual

rigor

that

practice of an expert in the witness’s field.
152.

characterizes

the

Kumho, 526 U.S. at

Specifically, a court may, but is not required to, consider

a nonexclusive list of four factors in assessing reliability: (1)
whether the expert’s theories and techniques can be verified by the
scientific method through testing; (2) whether the theories and
techniques have been subjected to peer review and publication; (3)
whether the theories and techniques have been evaluated for their
potential

rate

of

error;

and

(4)

whether

the

theories

and

techniques have been generally accepted by the relevant scientific
community.

Daubert, 509 U.S. at 593-94.

However,

it

is

important

to

note

that

“the

measure

of

intellectual rigor will vary by the field of expertise and the way
of demonstrating expertise will also vary.”
Mgmt., 102 F.3d 256, 263 (7th Cir. 1996).

Tyus v. Urban Search
As the Seventh Circuit

pointed out in United States v. Allen, 269 F.3d 842, 846 (7th Cir.
2001), the Advisory Committee notes to Rule 702 note that “[i]n
certain fields, experience is the predominant, if not the sole,
basis for a great deal of reliable expert testimony.”

4

Fed. R.

Evid. 702, 2000 advisory committee notes.
Under the relevance prong, the testimony must assist the trier
of fact to understand the evidence in the sense that it is relevant
to or “fits” the facts of the case.

Daubert, 509 U.S. at 591;

Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000).

In

other words, the testimony must be such that the jury can apply it
in a meaningful way to the facts at hand.
essentially

represents

an

inquiry

This “fit” analysis

similar

to

if

not

indistinguishable from the basic evidentiary inquiries into whether
evidence is relevant and, if so, whether its probative value is
nonetheless substantially outweighed by, among others, the danger
of unfair prejudice and jury confusion.

See Daubert, 509 U.S. at

595; Ayers v. Robinson, 887 F. Supp. 1049, 1058-59 (N.D. Ill.
1995).
In this case, Defendants first argue that Plaintiffs waived
the right to present any expert testimony from Dr. Ratigan at trial
regarding causation, duration, or effect of Boyle’s injuries,
because they failed to disclose him as an expert pursuant to
Federal Rule of Civil Procedure 26(a)(2).

While it is true Dr.

Ratigan was not identified in the Rule 26(a)(2)(A) disclosures, as
spelled out in Plaintiffs’ response, the Plaintiffs did provide: a
summary expert report from Dr. Ratigan including his opinion on
causation; deposition testimony disclosing Dr. Ratigan’s opinions
on causation; discovery answers that Dr. Ratigan’s opinions would

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be supplemented; and electronic communications that Dr. Ratigan’s
deposition would establish causation.

(DE #40, pp. 1-2.)

Indeed,

Plaintiffs provide at least 8 examples of notices of Dr. Ratigan’s
opinions on causation.

(DE #40, pp. 2-3.)

Rules 26 does provide

that “[a]ll witnesses who are to give expert testimony under the
Federal

Rules

26(a)(2)(A).”

of

Evidence

must

be

disclosed

under

Rule

Musser v. Gentiva Health Servs., 356 F.3d 751, 756

(7th Cir. 2004) (emphasis in original).

However, the purpose of

providing an expert’s report “is to provide adequate notice of the
substance of the expert’s forthcoming testimony, and to give the
opposing party time to prepare for a response.”
R.R.

Passenger

Corp.,

619

F.3d

729,

734

Meyers v. Nat’l

(7th

Cir.

2010).

Plaintiffs did not follow the rule to the letter, but they did give
Defendants notice that Dr. Ratigan was going to opine on causation.
The trial in this case is set for August 2015.

Under the

circumstances, the Court believes the most equitable course of
action would be to reopen discovery to allow Defendants to conduct
additional discovery about Dr. Ratigan’s causation opinion, and to
allow Defendants an opportunity to obtain their own causation
expert, should they so choose.
Defendants also argue that Dr. Ratigan is not qualified to
opine on the issue of causation.

Specifically, they contend he

lacks the knowledge, skill, experience, training, and education to
qualify as an expert on causation.

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(DE #39, pp. 6-7.)

Defendants

concede he is an expert in the field of orthopedic medicine, but
contend he also needs a background in biomechanics.
7.)

(Id., pp. 6-

This Court finds that Dr. Ratigan, as an orthopedic surgeon,

does possess the skill, experience, training and education to
qualify as an expert on the issue of the cause of Plaintiff’s
injuries. See, e.g., Banister v. Burton, 636 F.3d 828, 831-32 (7th
Cir. 2011) (holding training in common to all doctors qualified a
trauma surgeon to give opinions on Plaintiff’s ability to throw an
object or crawl); Musser, 356 F.3d at 757 n. 2.

As the Seventh

Circuit recently rationalized:
Defendants’ argument places the bar for medical
expert testimony much too high.
Indeed, taking
Defendants’ argument to its logical conclusion, no
doctor would ever be qualified to give medical
causation testimony unless he or she was also
qualified in the field of accident reconstruction
or the like. The court therefore finds that Dr.
Misamore, in his capacity as an orthopaedic surgeon
with more than twenty-five years of experience
treating rotator cuff-type injuries for patients
like Charles, is qualified to give such an opinion.
Charles v. Quality Carriers, Inc., No. 1:08-cv-0428-RLY-JMS, 2010
WL 724510, at *3 (S.D. Ind. Feb. 25, 2010).

This Court concurs,

finding Dr. Ratigan, an orthopedic surgeon who formulated his
opinion on causation during surgery, is permitted to present
causation testimony under Rule 702. Dr. Ratigan prepared a summary
expert report, told defense that Plaintiff’s rotator cuff tear and
chondral head defect were consistent with the mechanism of injury,
and during his deposition noted the chondral head defect was a

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traumatic, not chronic, injury. This evidence all corroborates his
opinion that the rotator cuff was torn by the forces in the
accident, and the Court finds Dr. Ratigan qualified to give such an
opinion.
Finally, Defendants argue that Dr. Ratigan’s conclusion that
Plaintiff’s SLAP tear and chondral defect of the humeral head were
caused by the August 5, 2011 collision is unreliable because it is
unsupported by sufficient facts or data, and is not the product of
reliable principles or methods under Daubert. The Court disagrees.
During his deposition, Dr. Ratigan testified as to the facts and
observations which supported his causation conclusion, including
the nature of the repair and the fact that there weren’t any
complaints of shoulder pain prior to the injury.
# 40-9, Ratigan Dep., pp. 19-20.)

(Pl.’s Ex. 9, DE

He also testified as to her

articular cartilage being subjected to traumatic sheering forces,
leaving a deficit in the cushion between bones, and leaving nerve
endings exposed.

Those forces, coupled with the absence of any

pain complaints in Plaintiff’s right shoulder prior to the crash,
lead to Dr. Ratigan’s conclusion that the rotator cuff was ripped
or torn by the same forces which ripped a divot from the articular
cartilage of her humerus.

(Id., pp. 20-21.)

Dr. Ratigan has

testified that the tear of Plaintiff’s right rotator cuff was
traumatic, not degenerative or chronic, because of the physical
condition he repaired, and explained the sheering force that tore

8

off her rotator cuff and sheered off part of the head of her
humerus.

Thus, Dr. Ratigan’s opinion is not purely speculative or

unsupported by scientific data or method. As such, the Court finds
that Dr. Ratigan is qualified to testify as to the causation of
Teresa Boyle’s shoulder injuries, and that his proposed testimony
is both reliable and relevant.

CONCLUSION
For the reasons set forth below, the motion (DE #38) is
DENIED.

However, DISCOVERY is HEREBY reopened for 60 days for the

limited

purpose

of

examining

any

additional

relevant

records

related to the issue of causation, and for Defendants to obtain
their own expert on the issue of causation (if they so wish), and
make that expert available to Plaintiffs for deposition.

DATED: January 14, 2015

/s/ RUDY LOZANO, Judge
United States District Court

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