Barcus v. The Phoenix Insurance Co.

Filing 106

MEMORANDUM AND ORDER denying 92 Plaintiff's Daubert Motion/Motion in Limine to Limit the Testimony of Rachel Jensen; denying 93 Plaintiff's Second Daubert Motion/Motion in Limine to Limit the Testimony of Keith Kobes; denying 94 Plaintiff's Third Daubert Motion/Motion in Limine to Limit the Testimony of Maria Korth; granting in part and denying in part 95 Defendant's Motion to Exclude Plaintiff's Expert Witness, Julia Johnson, Pursuant to Rule 703 and Daubert v. Merrell Dow; and granting 96 Defendant's Motion to Exclude Plaintiff's Expert Witness, Michael Dreiling, Pursuant to Rule 703 and Daubert v. Merrell Dow. Signed by District Judge Holly L. Teeter on 1/25/2019. (mls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
WILLIAM LANE BARCUS,
Plaintiff,
v.

Case No. 2:17-cv-02492-HLT

THE PHOENIX INSURANCE CO.,
Defendant.

MEMORANDUM AND ORDER
Plaintiff William Lane Barcus brings this action seeking underinsured motorist benefits
from his insurer, Defendant The Phoenix Insurance Co., in connection with a May 2013 motor
vehicle accident. Plaintiff contends the accident caused a traumatic brain injury, resulting in
vestibular symptoms and permanent cognitive deficits. Defendant disputes the nature and extent
of Plaintiff’s injuries and the value of Plaintiff’s alleged damages.
Before the Court are five motions to exclude expert testimony (Docs. 92, 93, 94, 95, 96).
After a detailed review, the Court denies Plaintiff’s motions to exclude testimony of Dr. Maria
Korth, Dr. Rachel Jensen, and Dr. Keith Kobes (Docs. 92, 93, 94). The Court grants Defendant’s
motion to exclude testimony of Michael Dreiling (Doc. 96) and grants in part and denies in part
Defendant’s motion to exclude testimony of Dr. Julia Johnson (Doc. 95).
I.

STANDARD
Federal Rule of Evidence 702 governs the admissibility of expert testimony and imposes

upon the district court a “gatekeeping obligation” to ensure that expert testimony is both relevant
and reliable. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993); Kumho Tire Co.,
Ltd. v. Carmichael, 526 U.S. 137, 147 (1999). A court’s gatekeeping function, however, does not
replace the traditional adversary system and the role of the jury. Cohen v. Lockwood, 2004 WL

763961, at *2 (D. Kan. 2004). Where there are questions related to the bases and sources of an
expert’s opinion, these issues go to the weight to be assigned to that opinion—rather than
admissibility—and are for the trier of fact to determine. Id. The burden is on the party offering the
expert testimony to prove its admissibility. United States v. Nacchio, 555 F.3d 1234, 1241 (10th
Cir. 2009).
II.

ANALYSIS
A. Defendant’s Experts
Defendant offers testimony from Dr. Maria Korth, Dr. Rachel Jensen, and Dr. Keith Kobes

to support its position that (1) Plaintiff did not suffer a traumatic brain injury in the subject accident
and (2) Plaintiff is no longer experiencing any cognitive deficits as a result of the accident. Plaintiff
moves to exclude the proffered testimony. Docs. 92, 93, 94. The Court addresses Plaintiff’s
arguments with respect to each expert.
1. Dr. Maria Korth (Doc. 94)
Dr. Korth is a neuropsychologist and one of Plaintiff’s primary treating providers. Plaintiff
was referred to Dr. Korth for evaluation and treatment after complaining of so-called “vestibular”
symptoms—such as dizziness and difficulty concentrating. Doc. 100-1 at 1-3. Dr. Korth testifies
that, when she first examined Plaintiff in January 2014, she diagnosed Plaintiff with postconcussive syndrome based on subjective reports from Plaintiff and his mother, information
gathered during the visit, and Plaintiff’s initial test results. Doc. 100-2 at 4, 8. However, Dr. Korth
further testifies that, in February 2016, Plaintiff was no longer presenting in a way that was
consistent with post-concussive syndrome, and she discharged him. Id. at 4. Specifically, Dr. Korth
testifies that, at the time she discharged Plaintiff, he no longer met the criteria for post-concussive
syndrome. Id. at 15.

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Plaintiff challenges the admissibility of Dr. Korth’s testimony primarily on the basis that it
is unreliable. Doc. 94. Specifically, Plaintiff argues that Dr. Korth cannot testify regarding the
extent to which Plaintiff’s cognitive deficits had abated by February 2016 because her opinion is
“speculative and not supported by sufficient facts or data.” Id. at 7-8. For the following reasons,
the Court disagrees.
First, Dr. Korth was Plaintiff’s treating neuropsychologist. Courts in this district have
recognized that because “[a] treating physician often forms an opinion about the cause of an injury
or the extent to which it will persist in the future based upon his examination of a patient,” courts
“have allowed doctors to ‘testify at trial concerning any medical opinions that [they] formed during
the course of . . . treatment with respect to [plaintiff’s] injuries, their cause, and the extent of
[plaintiff’s] disability.’” Cohen, 2004 WL 763961, at *3 (internal citations omitted); see also
Watson v. Taylor, 2006 WL 6901064, at *3 (D. Kan. 2006). The opinions offered by Dr. Korth in
her report are based on her personal examination, treatment, and cognitive testing of Plaintiff. She
is therefore qualified, as Plaintiff’s treating provider, to testify to the opinions formed during her
treatment regarding the extent of his injuries, the cause of those injuries, and her diagnosis. These
opinions are reliable and admissible.
Moreover—with respect to Plaintiff’s argument that Dr. Korth’s opinion was not offered
with a sufficient degree of “probability”—a treating provider’s opinion is not rendered unreliable
simply because she does not testify regarding the degree of her certainty. See Randolph v. QuikTrip
Corp., 2017 WL 2181120, at *2 (D. Kan. 2017) (“When the treating physician does not state with
certainty the cause of the plaintiff’s condition, ‘that does not render his testimony unreliable.’”).
Indeed, courts in this district have found a treating provider’s opinion sufficiently reliable even

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when not “particularly persuasive.”1 Id. (holding that, though the treating physician’s opinion as
to causation “may not be particularly persuasive, it is sufficiently reliable to be admissible”).
Therefore, to the extent Dr. Korth did not state with certainty that Plaintiff was no longer suffering
cognitive deficits, this does not render her testimony unreliable. That issue goes to the weight and
credibility that should be afforded to Dr. Korth’s opinion, which is for the jury to decide.
Second, the Court rejects Plaintiff’s argument that Dr. Korth cannot opine regarding
alternative explanations (i.e., other than cognitive deficits) for Plaintiff’s vestibular symptoms. In
her deposition, Dr. Korth testified that, during Plaintiff’s last visit, she considered other
explanations for his reported symptoms—including conversion disorder and depression. Doc. 1002 at 16. Dr. Korth did not give any opinion about the certainty or probability of these causes.
However, as Defendant explains, Dr. Korth’s testimony is not being offered to establish causation.
Plaintiff, not Defendant, bears the burden to establish with the requisite degree of certainty that his
vestibular symptoms ultimately stem from the accident. See Cohen, 2004 WL 763961, at *5.
Defendant is using Dr. Korth’s testimony to counter Plaintiff’s contentions regarding the cause of
his symptoms, which is reasonable. Id. The Court denies Plaintiff’s motion to exclude Dr. Korth’s
testimony.
2. Dr. Rachel Jensen (Doc. 92)
Dr. Jensen is a neuropsychologist who examined Plaintiff and has been designated as an
expert by Defendant. In June 2015, Dr. Korth referred Plaintiff to Dr. Jensen for a
neuropsychological evaluation to assess Plaintiff’s cognitive functioning. Doc. 98-1 at 1.
Dr. Jensen testifies that Plaintiff’s efforts during the testing appeared to fluctuate and this,
combined with inconsistent test results, raised “validity” concerns. Doc. 98-2 at 7-8. Due to these

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The Court, however, makes no finding regarding the weight and credibility of Dr. Korth’s testimony.

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validity concerns, Dr. Jensen testifies she was unable to determine whether Plaintiff suffered a
cognitive impairment. Id. at 22. As with Dr. Korth, Plaintiff appears to argue that Dr. Jensen’s
testimony should be excluded as unreliable. Doc. 92. Plaintiff primarily challenges Dr. Jensen’s
methodology, arguing that, because she reached her opinion without performing a “differential
diagnosis,”2 her testimony does not satisfy Rule 702’s reliability requirement. Id. The Court
disagrees.
First, Dr. Jensen is a treating provider and, as such, is qualified to testify to her opinions
regarding Plaintiff’s cognitive functioning that were formed during the course of her treatment.
These opinions are reliable and admissible for the reasons set forth above with respect to Dr. Korth.
See supra Part II.A.1.
Second, the fact that Dr. Jensen did not perform a differential diagnosis does not warrant
exclusion. Although a differential diagnosis is admissible under certain circumstances if
performed, it is not required for a treating provider’s testimony to be admissible. Watson, 2006
WL 6901064, at *3. Likewise, because Dr. Jensen did not use a differential diagnosis methodology
to reach her conclusions, the cases cited by Plaintiff in support of his argument for exclusion—
Delgado v. Unruh, 2017 WL 957437 (D. Kan. 2017), Rucker v. Drake, 2001 WL 36095910 (E.D.
Mo. 2001), and Braxton v. DKMZ Trucking, Inc., 2013 WL 6592771 (E.D. Mo. 2013) (each related
to the admissibility of expert opinions based on a differential diagnosis methodology)—are
inapposite. Moreover, as with Dr. Korth, Defendant offers Dr. Jensen’s testimony to cast doubt on
Plaintiff’s theory of causation, not to establish that element—indeed, that is Plaintiff’s burden.

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A differential diagnosis is a standard scientific technique used to identify the cause of a medical problem. Cohen,
2004 WL 763961, at *3. It refers to the process by which an expert “rules in” all scientifically plausible causes of
the plaintiff’s injury and then “rules out” the least plausible causes until only the most likely cause remains.
Hollander v. Sandoz Pharm. Corp., 289 F.3d 1193, 1209 (10th Cir. 2002). This remaining cause is the expert’s
conclusion. Id.

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Defendant’s use of Dr. Jensen’s testimony is sufficiently reasonable and reliable. See Cohen, 2004
WL 763961, at *5. The Court therefore denies Plaintiff’s motion to exclude Dr. Jensen.
3. Dr. Keith Kobes (Doc. 93)
Dr. Kobes is a neuropsychologist who has been retained by Defendant. Based on an
independent examination of Plaintiff and his review of Plaintiff’s records from his treating
providers, Dr. Kobes issued a report in March 2018 concluding that Plaintiff did not suffer a
traumatic brain injury in the accident and is not experiencing any resultant cognitive deficits.
Doc. 97-1 at 24.
As with Dr. Jensen, Plaintiff seeks to exclude Dr. Kobes’s testimony as unreliable and
challenges the testimony primarily on the basis that Dr. Kobes did not perform a differential
diagnosis. Doc. 93. The Court disagrees and finds that, for the same reasons set forth above with
respect to Dr. Jensen, the fact that Dr. Kobes did not use a differential diagnosis methodology does
not render his testimony inadmissible. See supra Part II.A.2. A defense expert’s opinion may be
admissible regardless of whether the expert has ruled out every cause to arrive at their opinion.
Cohen, 2004 WL 763961, at *5. The Court accordingly denies Plaintiff’s motion to exclude
Dr. Kobes.
B. Plaintiff’s Experts
Plaintiff offers testimony from vocational expert Michael Dreiling and educational
neuropsychologist Dr. Julia Johnson to support his theory of damages. Defendant moves to exclude
Mr. Dreiling and Dr. Johnson’s testimony. Docs. 95, 96. The Court addresses Defendant’s
arguments with respect to Mr. Dreiling and Dr. Johnson in turn.

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1. Michael Dreiling (Doc. 96)
Plaintiff designates Mr. Dreiling as a vocational expert. In this case, Mr. Dreiling opines
that, although prior to the accident it would have been reasonable to expect Plaintiff to obtain a
bachelor’s-level degree, this is no longer a realistic expectation. Doc. 96-1 at 9. Mr. Dreiling
further testifies that Plaintiff’s realistic earning capacity in the open labor market is now that of a
high school graduate at a below-average range. Id. In its motion, Defendant does not attack
Mr. Dreiling’s qualifications but, rather, seeks to exclude the testimony due to Mr. Dreiling’s
flawed methodology. Doc. 96.
The Court agrees with Defendant and finds that Mr. Dreiling’s testimony is not the product
of a reliable methodology and warrants exclusion. In rendering his opinion, Mr. Dreiling did not
perform any vocational testing of Plaintiff, instead relying on Plaintiff’s records—including the
results of Dr. Jensen’s June 2015 neuropsychological testing and Dr. Korth’s March 2015
treatment records. Doc. 96-1; Doc. 96-2 at 4. Mr. Dreiling also conducted interviews of Plaintiff
and Plaintiff’s mother. Doc. 96-2 at 2-3. Notably, Mr. Dreiling did not rely upon the records from
Plaintiff’s final visit with Dr. Korth on February 10, 2016. Doc. 96-1; Doc. 96-2 at 9-10.
In this case, Mr. Dreiling has testified that, in conducting a vocational assessment, the
appropriate methodology includes considering records from the end of a patient’s treatment.
Doc. 96-2 at 8. Nonetheless, as set forth above, Mr. Dreiling relied upon Dr. Korth’s March 2015
records instead of also considering the records from her final treatment with Plaintiff almost a full
year later, wherein—crucially for purposes of this litigation—she reversed course from her
previous diagnosis, concluding Plaintiff no longer met the criteria for post-concussive syndrome.
Dr. Korth’s February 2016 records were available in early 2017 when Mr. Dreiling performed his
vocational assessment of Plaintiff and drafted his corresponding report, yet Mr. Dreiling did not

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consider them—nor does he explain why he did not consider the records or how the records would
impact his opinion. Id. at 9-10.
If any step in an expert’s methodology renders the expert’s analysis unreliable, it also
renders the testimony inadmissible. Mitchell v. Gencorp Inc., 165 F.3d 778, 782 (10th Cir. 1999)
(“Under Daubert, ‘any step that renders the analysis unreliable . . . renders the expert’s testimony
inadmissible.’”). Even though Mr. Dreiling had the time and ability to review Dr. Korth’s end-oftreatment records in formulating his opinion—a necessary review based upon his admitted
methodology—he did not do so and does not proffer any explanation for this failure. By
Mr. Dreiling’s own admission, his methodology in this case is flawed. This renders Mr. Dreiling’s
opinion unreliable and, accordingly, inadmissible. The Court grants Defendant’s motion to exclude
Mr. Dreiling’s testimony.3
2. Dr. Julia Johnson (Doc. 95)
Dr. Johnson is an educational neuropsychologist retained by Plaintiff as an expert in this
action. As an educational neuropsychologist, Dr. Johnson conducts evaluations of students to make
“educational” diagnoses of health impairments that impact a student’s ability to learn. Doc. 95-3
at 6, 14. Dr. Johnson has testified that her role in this case included reviewing Plaintiff’s treatment
records and “confirming” the diagnoses of Plaintiff’s treating providers. Id. at 26.
In her report, Dr. Johnson opines that Plaintiff has an educational diagnosis of a traumatic
brain injury, post-traumatic stress disorder (“PTSD”), and Generalized Anxiety Disorder, affecting
his cognitive processing speed and resulting in diminished efficiency. Doc. 95-2 at 2. Dr. Johnson

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The Court further notes that other courts in this district have recently excluded expert testimony from Mr. Dreiling
on the basis of unreliability. See, e.g., Foster v. USIC Locating Servs., LLC, 2018 WL 3757577, at *3 (D. Kan. 2018)
(finding Mr. Dreiling’s opinion regarding the plaintiff’s future earning capacity unreliable because it lacked “a
sufficient factual foundation”).

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also concludes that Plaintiff would find it “extremely difficult to complete a college degree” based
on his cognitive deficits and that Plaintiff is entitled to, and will require, accommodations to
complete any post-high school vocational training or college level studies. Id. at 6-7. Defendant
attacks Dr. Johnson’s testimony as (1) the product of an unreliable methodology, (2) unsupported
by the facts, and (3) irrelevant. Doc. 95.
The Court disagrees that the wholesale exclusion of Dr. Johnson’s proffered testimony is
warranted. However, the Court finds that Dr. Johnson should not be permitted to “confirm”
Dr. Korth’s 2014 diagnosis past the date of her February 2016 report. Like Mr. Dreiling,
Dr. Johnson did not independently evaluate Plaintiff and thus bases her opinions exclusively on
her review of Plaintiff’s records. Doc. 95-2 at 2; Doc. 95-3 at 26. Among the materials considered
by Dr. Johnson in rendering her opinion are treatment records from Dr. Korth dated
October 15, 2014, March 3, 2015, and February 15, 2016. Doc. 95-2 at 2. Dr. Johnson uses those
records to “confirm” Dr. Korth’s 2014 diagnosis. Id.; Doc. 95-3 at 26. The Court finds that
Dr. Johnson may confirm Dr. Korth’s diagnosis up to February 2016. However, past that point
there is a treating provider—Dr. Korth herself—who personally evaluated Plaintiff and withdrew
her diagnosis of post-concussive syndrome. Dr. Johnson therefore cannot confirm any diagnosis
by Dr. Korth beyond the date of Dr. Korth’s February 10, 2016 report because, simply put, there
is no diagnosis to confirm at that point.
The Court also excludes Dr. Johnson from offering “preliminary diagnoses” of PTSD and
Generalized Anxiety Disorder. In her deposition, Dr. Johnson testified to the importance of
interviewing the patient, his parents, and his teachers when performing an evaluation, and
acknowledged that these are sources of information typically relied upon by professionals in her
field. Doc. 101-2 at 1-2, 5. To that end, Dr. Johnson further testified that she could not diagnose a

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patient without personally evaluating the patient. Id. at 9. As set forth above, Dr. Johnson did not
independently evaluate Plaintiff, nor did she meet or speak with Plaintiff’s parents or teachers or
perform any independent testing of Plaintiff. Id. at 7. Dr. Johnson’s own testimony in this case—
coupled with the fact that, as Defendant points out, Plaintiff has never been diagnosed with PTSD
or Generalized Anxiety Disorder by a treating provider—illustrates that her methodology is
unreliable on this point. Therefore, Dr. Johnson’s testimony regarding her preliminary diagnoses
of PTSD and Generalized Anxiety Disorder must also be excluded.
Finally, with respect to any testimony from Dr. Johnson regarding Plaintiff’s entitlement
to accommodations under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et
seq., or the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400, et seq., the
Court agrees with Defendant that this testimony is irrelevant. The Court recognizes that Plaintiff,
in his opposition to Defendant’s motion to exclude Dr. Johnson, explains that Dr. Johnson does
not intend to opine regarding Plaintiff’s entitlement to any such accommodations. Doc. 101 at 19.
However, for the sake of clarity, to the extent Dr. Johnson purports to offer such testimony, she is
precluded from doing so.
The Court therefore grants Defendant’s motion in part and denies it in part. The Court
declines to exclude the entirety of Dr. Johnson’s proffered testimony. However, the Court excludes
Dr. Johnson from (1) confirming Dr. Korth’s 2014 diagnosis past the date of her February 2016
report, (2) offering preliminary diagnoses of PTSD and Generalized Anxiety Disorder, and
(3) testifying regarding Plaintiff’s entitlement to any accommodations under the ADA or IDEA.
III.

CONCLUSION
THE COURT THEREFORE ORDERS that Plaintiff’s Daubert Motion/Motion in Limine

to Limit the Testimony of Rachel Jensen (Doc. 92) is DENIED.

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THE COURT FURTHER ORDERS that Plaintiff’s Second Daubert Motion/Motion in
Limine to Limit the Testimony of Keith Kobes (Doc. 93) is DENIED.
THE COURT FURTHER ORDERS that Plaintiff’s Third Daubert Motion/Motion in
Limine to Limit the Testimony of Maria Korth (Doc. 94) is DENIED.
THE COURT FURTHER ORDERS that Defendant’s Motion to Exclude Plaintiff’s Expert
Witness, Julia Johnson, Pursuant to Rule 703 and Daubert v. Merrell Dow (Doc. 95) is GRANTED
IN PART and DENIED IN PART as set forth in Part II.B.2, supra.
THE COURT FURTHER ORDERS that Defendant’s Motion to Exclude Plaintiff’s Expert
Witness, Michael Dreiling, Pursuant to Rule 703 and Daubert v. Merrell Dow (Doc. 96) is
GRANTED.
IT IS SO ORDERED.
Dated: January 25, 2019

/s/ Holly L. Teeter
HOLLY L. TEETER
UNITED STATES DISTRICT JUDGE

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