Guthrie v. Hochstetler

Filing 34

OPINION AND ORDER DENYING 30 MOTION Exclude Expert filed by Greg Guthrie. Signed by Magistrate Judge Michael G Gotsch, Sr on 5/14/18. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
GREG GUTHRIE,
Plaintiff,
v.
LORI ANN HOCHSTETLER,
Defendant.

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CAUSE NO. 3:16-cv-473-MGG

OPINION AND ORDER
On March 14, 2018, Plaintiff, Greg Guthrie, filed his Motion to Exclude Expert
Testimony asking the Court to exclude the testimony of Defendant Lori Ann
Hochstetler’s retained expert, Ernest P. Chiodo, M.D., J.D., M.P.H., M.S., M.B.A., C.I.H.,
under Federal Rules of Evidence 403 and 702 as well as the principles set forth in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Hochstetler filed her
response in opposition to Defendants’ motion on March 28, 2018. Guthrie’s motion
became ripe on April 4, 2018, when he filed a reply brief. Jurisdiction in this Court is
proper under 28 U.S.C. § 1332(a)(1), as Guthrie and Hochstetler are citizens of different
states and the amount in controversy exceeds $75,000.000, exclusive of interest and
costs. The Court issues the following opinion pursuant to the consent of the parties and
28 U.S.C. § 636(c).

I.

RELEVANT BACKGROUND
On August 30, 2014, the parties were involved in a car collision in which

Hochstetler rear-ended Guthrie’s car. Both cars had been stopped on a highway offramp. Guthrie began moving forward as traffic allowed but then had to stop abruptly
when the car in front of him stopped. Hochstetler was not able to stop before colliding
with Guthrie’s car. Guthrie’s bumper sustained minor damage and Guthrie reported no
injuries at the scene. However, a little more than two weeks after the collision, Guthrie
visited a doctor and was diagnosed with cervical strain requiring chiropractic treatment
and physical therapy. Later, a neurosurgeon diagnosed him with a herniated disc in his
neck that ultimately led to fusion surgery about fifteen months after the collision.
On March 22, 2016, Guthrie initiated this civil action against Hochstetler alleging
that her negligence resulted in the car collision that caused the herniated disc in his
neck. Accordingly, Guthrie seeks judgment against Hochstetler to compensate him for
all his losses.
On September 20, 2016, this Court issued its Rule 16(b) Preliminary Pretrial
Scheduling Order establishing deadlines for discovery, including the disclosure of
retained experts, and for “[a]ny evidentiary objections to another party’s expert witness,
whether directed to the witness’s qualifications or to the foundation for the anticipated
testimony,” among other things. [DE 8 at 2]. Specifically, the Court set July 1, 2017, as
the deadline for evidentiary objections. The Court explicitly informed the parties that

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“[f]ailure to file such objections is waiver of any objection to opinion testimony outlined
in the statement filed by the witness’s proponent.” [Id.].
On July 1, 2017, Dr. Chiodo, Hochstetler’s retained expert, sent his report in the
form of a letter to her attorney. Dr. Chiodo was retained as an expert in the field of
biomedical 1 engineering. He is a medical doctor, a lawyer, and has advanced degrees in
public health, biomedical engineering, threat response management, and occupational
and environmental health sciences with a specialization in industrial toxicology. Dr.
Chiodo maintains patients as part of his medical practice, represents plaintiffs in toxic
tort cases, and works as a forensic expert witness typically for the defense in cases
involving low-speed collisions.
Based upon a review of Guthrie’s medical records, a photo of the bumper of
Guthrie’s car after the collision, Guthrie’s responses to written discovery requests,
transcripts from depositions of three of Guthrie’s treating physicians, and the police
crash report as well as peer reviewed medical and scientific literature and the Court’s
own Reference Manual on Scientific Evidence, 3rd Edition, Dr. Chiodo opined in his report
that there is no causal connection between the August 2014 and Guthrie’s ill health. Dr.
Chiodo stated also that Guthrie suffered no injury or illness due to the collision

Throughout their briefs, the parties refer to Dr. Chiodo as a “biomechanical” and a “biomedical”
engineer without clear explanation of any distinction. The Court will use the term “biomedical engineer”
throughout this order based on Dr. Chiodo’s degree in biomedical engineering reflected on his
curriculum vitae.

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therefore no treatment, rehabilitation, or accommodation was required due to the
collision. [DE 31-1 at 13].
On September 22, 2017, Guthrie deposed Dr. Chiodo. In the parties’ proposed
pretrial order filed on October 11, 2017, Guthrie informed the Court that he
“anticipate[d] filing a Daubert Motion challenging Dr. Earnest [sic] Chiodo from
testifying once the deposition testimony is transcribed.” [DE 19 at 1]. For reasons
unrelated to Guthrie’s anticipated Daubert motion, the trial was rescheduled for June 26,
2018, through an order dated November 28, 2017. [DE 28]. After the Court denied
Hochstetler’s motion to exclude testimony from two of Guthrie’s treating physicians for
alleged discovery shortcomings through an order dated February 2, 2018 [DE 29],
Guthrie filed the instant Daubert motion on March 14, 2018.
Through his motion, Guthrie challenges the reliability of Dr. Chiodo’s opinions,
as well as their helpfulness to the jury, citing Fed. R. Evid. 702. Alternatively, Guthrie
invokes Fed. R. Evid. 403 and contends that any relevance of Dr. Chiodo’s opinions to
this case is substantially outweighed by the danger of unfair prejudice and the risk of
misleading the jury. Hochstetler contests each of Guthrie’s arguments.
II.

ANALYSIS
A.

Waiver of Evidentiary Objection

As a preliminary matter, Guthrie’s instant Daubert motion was not filed before
the Court’s deadline for evidentiary objections of July 1, 2017. Additionally, Guthrie did
not file a motion to extend the evidentiary objection deadline before or after the
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deadline expired. Instead, Guthrie simply reported an anticipated Daubert motion more
than three months after the deadline passed in a proposed pretrial order [DE 19] and
then filed the motion without leave of court five months later. Guthrie has offered no
explanation for the untimely motion despite being served the Court’s Preliminary
Pretrial Scheduling Order [DE 8] in which the deadline was set and the parties’
proposed pretrial order, which included a footnote explicitly stating that “[t]he deadline
for filing of all potentially dispositive motions, including Daubert motions was July 1,
2017.” [DE 19 at 1 n.2].
Arguably, Guthrie may have waived his objection to Dr. Chiodo by failing to
comply with the Court’s deadline. However, the Court recognizes that it would have
been difficult for Guthrie to file a Daubert motion when Dr. Chiodo’s report was sent to
Hochstetler’s attorney on the same date as the Court’s deadline for evidentiary
objections. Nevertheless, the deadline passed. Under Fed. R. Civ. P. 6(b)(1)(B), the court
may extend deadlines for good cause “on motion made after the time has expired if the
party failed to act because of excusable neglect.” While the Court may have willingly
extended the deadline for evidentiary objections given the timing of Dr. Chiodo’s report
if requested shortly after deadline passed or even shortly after Dr. Chiodo’s deposition,
Guthrie never asked. Instead, Guthrie waited eight months after the deadline passed
and filed the motion without asking the Court’s permission. Moreover, Guthrie has
offered no explanation for why he tarried more than five months after Dr. Chiodo’s
deposition before filing the instant motion. Thus, Guthrie has failed to demonstrate the
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excusable neglect necessary to justify an extension of the evidentiary objection deadline
now. Accordingly, the Court would be within its authority to deny Guthrie’s instant
motion as untimely. Yet Guthrie’s motion also fails on the merits as discussed below.
B.

Legal Standard under Daubert

Federal Rule of Evidence 702 governs the admission of expert testimony and
states that
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)
(b)
(c)
(d)

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;
the testimony is based on sufficient facts or data;
the testimony is the product of reliable principles and methods; and
the expert has reliably applied the principles and methods to the
facts of the case.

As a threshold matter, courts must examine whether 1) the expert will “testify based on
valid scientific, technical, or specialized knowledge, i.e., whether the expert’s testimony
is reliable,” and 2) whether that testimony will assist the trier of fact in understanding
or determining a fact in issue. Ruppel v. Kucanin, No. 3:08 CV 591, 2011 WL 2470621, at
*2 (N.D. Ind. June 20, 2011) (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592
(1993)); see also Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000).
Accordingly, courts play a critical “gatekeeper” role ensuring that any expert
testimony or evidence admitted is not only relevant but reliable. Mihailovich v. Laatsch,
359 F.3d 892, 918 (7th Cir. 2004). To fulfill the gatekeeper role, courts must determine
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whether an expert is qualified in the relevant field and whether the methodology
underlying the expert’s conclusion is reliable. See Ammons v. Aramark Unif. Servs., Inc.,
368 F.3d 809, 816 (7th Cir. 2004). The judge retains “the discretionary authority . . . to
determine reliability in light of the facts and circumstances in a particular case.” Kumho
Tire Co., 526 U.S. at 158.
An expert’s testimony is admissible when it provides “something more than
what is obvious to the layperson in order to be of any particular assistance to the jury.”
Dhillion v. Crown Controls Corp., 269 F.3d 865, 871 (7th Cir. 2001). In addition, “[a]n
expert must substantiate his opinion; providing only an ultimate conclusion with no
analysis is meaningless.” Winters v. Fru-Con Inc., 498 F.3d 734, 743 (7th Cir. 2007)
(internal quotations omitted). Similarly, opinion evidence may be unreliable and
worthy of exclusion if a court concludes “that there is simply too great an analytical gap
between the data and the opinion proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146
(1997). Stated another way, an expert opinion that only consists of “subjective belief or
unsupported speculation” should be excluded. Deimer v. Cincinnati Sub-Zero Prod., Inc.,
58 F.3d 341, 344 (7th Cir. 1995) (quoting Daubert, 509 U.S. at 590).
However, exclusion of expert testimony should be the exception, not the rule. See
Advisory Committee Notes to Rule 702. The jury must still be allowed to play its essential
role as the arbiter of the weight and credibility of testimony. Stollings v. Ryobi Techs.,
Inc., 725 F.3d 753, 765 (7th Cir. 2013). The soundness of the factual underpinnings of the
expert’s analysis and the correctness of the expert’s conclusions based on that analysis
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remain factual matters to be determined by the jury. Id.; see also Lees v. Carthage Coll., 714
F.3d 516, 525 (7th Cir. 2013)
B.

Reliability of Dr. Chiodo’s Opinions

Guthrie does not challenge Dr. Chiodo’s qualifications as a biomedical engineer
or a physician. Similarly, Guthrie does not challenge Dr. Chiodo’s additional expertise
arising from his board certification in occupational medicine, which requires specialized
training in causation of injuries and diseases, his advanced training in accident
reconstruction, and his experience lecturing on low-speed traffic accidents and resulting
injuries. Yet Guthrie does challenge the reliability and helpfulness of Dr. Chiodo’s
opinion that the August 2014 collision did not cause Guthrie’s herniated disc and
related symptoms at issue in this case.
In reaching his overarching opinion on causation, Dr. Chiodo first
reviewed the photo of Guthrie’s car post-collision and calculated the G forces he
experienced citing peer reviewed medical and scientific literature to support his
method. Chiodo’s biomechanical analysis and calculations also led him to
conclude that Guthrie experienced fewer G forces in the collision than would
have been generated when he entered and sat into the motor vehicle before the
collision. Furthermore, Dr. Chiodo demonstrated that the disc herniation Guthrie
suffered could only have occurred with force that would have also caused bony
injuries to the spine that Guthrie did not manifest.

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Second, Dr. Chiodo’s report proceeded to an analysis of both general and
specific causation based on principles and methods cited in The Reference Manual
on Scientific Evidence, 3rd Edition. The Reference Manual was prepared for and is
used as a resource by judges managing cases involving scientific and technical
evidence by outlining principles and methods of science with citations. Dr.
Chiodo cites The Reference Manual for the proposition that an expert’s opinion on
causation must be supported by reasonable explanations about the effects of
exposure to forces such as those involved in the collision here.
Dr. Chiodo then advocated for his opinions about the effects of the
collision on Guthrie over the causation opinions of Guthrie’s treating physicians
alleging that they lacked necessary scientific explanation. In particular, Dr.
Chiodo questioned the treating physicians’ opinions claiming they failed to
eliminate all possible causes of Guthrie’s symptoms, besides the collision—a
process call differential diagnosis validated in The Reference Manual. Dr. Chiodo
then concluded that the treating physicians’ opinions reflected the post hoc ergo
propter hoc fallacy because they were based only on the temporal relationship
between the collision and Guthrie’s symptoms and nothing more.
Through the instant motion, Guthrie argues that
(1) Dr. Chiodo’s opinions constitute legal conclusions that will not be
helpful to the trier of fact;
(2) insufficient information forms the basis of Dr. Chiodo’s causation
opinion;
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(3) Dr. Chiodo did not employ reliable principles and methods in arriving
at his conclusions; and
(4) Dr. Chiodo did not reliably apply biomechanical engineering
principles and methods to this case.
Guthrie rejects as unreliable Dr. Chiodo’s biomechanical analysis and
calculations arguing that he failed to consider all the relevant evidence available
to analyze the forces resulting from the collision and their effect on Guthrie. In
particular, Guthrie challenges Dr. Chiodo’s contention that looking at a
photograph of one car involved in a rear-end collision is the best evidence for
determining the speed at impact—that review of Guthrie’s deposition testimony
about his experience and pain before and after the collision, repair estimates for
the vehicle, the type of bumper involved, and any damage under the vehicle is
not required. Yet, Dr. Chiodo cites an article in the European Spine Journal,
which is devoted to spine surgery and related disciplines including but not
limited to biomechanics and pathophysiology, to support his application of this
method. [DE 31-1 at 4 (citing Castro WH, et al., Do “whiplash injuries” occur in lowspeed rear impacts? EUR. SPINE J. (1997) 6:366-375)]; see also European Spine Journal,
https://www.europeanspinejournal.org/about. Guthrie has not presented
evidence to discredit this publication or Castro’s article. Thus, Guthrie has not
demonstrated that Dr. Chiodo’s method is not reliable.

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Similarly, Guthrie rejects as unreliable Dr. Chiodo’s opinion that treating
physicians should conduct differential diagnosis to eliminate causes of a patient’s
symptoms before opining about the causation of the symptoms. Dr. Chiodo
ultimately opined that Guthrie’s treating physicians fell prey to the post hoc ergo
propter hoc fallacy when they relied solely on the temporal relationship between
the collision and Guthrie’s symptoms rather than taking the additional step of
eliminating other potential causes of those symptoms. Guthrie argues that Dr.
Chiodo’s only foundation for this approach to causation analysis is The Reference
Manual, which is not a source reasonably relied upon by biomedical engineers
under Fed. R. Evid. 703. Moreover, Guthrie argues that Dr. Chiodo’s
interpretation of The Reference Manual is a legal conclusion to which experts
cannot testify. See United States v. Sinclair, 74 F.3d 753, 757 n. 1 (7th Cir. 1996);
Bammerlin v. Navistar Int'l Transp. Corp., 30 F.3d 898, 900 (7th Cir. 1994).
These arguments are not compelling either. While The Reference Manual
may not be a source on every biomedical engineer’s bookshelf, it would
reasonably appear on a forensic expert’s bookshelf. Moreover, the process of
differential diagnosis is an application of logic that would be evident to any trier
of fact. Thus, Dr. Chiodo’s citation merely documents what is common
knowledge before he evaluated the opinions about causation from the medical
records presented him for analysis.

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In the end, the instant motion reflects Guthrie’s dissatisfaction with Dr.
Chiodo’s opinions on whether the collision caused his symptoms and injuries.
His arguments go to the weight to be given to Dr. Chiodo’s opinion testimony
rather than its admissibility. See Stollings, 725 F3d. 765. Therefore, Guthrie has
not persuaded the Court that Dr. Chiodo’s opinions are unreliable such that they
should be withheld from the trier of fact who will be charged with discerning the
credibility of Dr. Chiodo’s opinion testimony. Moreover, Dr. Chiodo’s
knowledge will help the trier of fact understand the effect of the collision on
Guthrie, a key fact in this case. Accordingly, Dr. Chiodo should be allowed to
testify.
In the final analysis, Guthrie’s objections challenge the weight to be given
to Dr. Chiodo’s opinion, rather than its admissibility. Guthrie will have an
opportunity to challenge the weight of Dr. Chiodo’s opinion in the crucible of
cross-examination at trial, which will give the jury an opportunity to afford this
evidence its proper weight. Nothing in the record demonstrates that this
evidence is improper, prejudicial, or otherwise inadmissible; rather, the record
demonstrates it could be helpful to the jury. In performing its role as gatekeeper,
this Court finds that the evidentiary gate should be opened so that the jury can
consider Dr. Chiodo’s testimony in light of other evidence in making its
determination of causation, liability, and damages.

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III.

CONCLUSION
Having determined that Dr. Chiodo retains the scientific knowledge to

help the jury decide the critical question of causation, that Dr. Chiodo’s opinions
are based on sufficient facts or data, and that he applied reliable principles and
methods in reaching those opinions as required under Fed. R. Evid. 702, the
Court DENIES Guthrie’s instant motion to exclude. [DE 30].
SO ORDERED.
Dated this 14th day of May 2018.
s/Michael G. Gotsch, Sr.
Michael G. Gotsch, Sr.
United States Magistrate Judge

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