Pogue v. The Northwestern Mutual Life Insurance Company

Filing 142

MEMORANDUM OPINION signed by Senior Judge Charles R. Simpson, III on 9/22/2017, re 124 MOTION to Exclude Plaintiff's Rebuttal Expert's Opinions and Related Testimony. cc: Counsel (RLK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
JAMES H. POGUE

PLAINTIFF

CIVIL ACTION NO. 3:14-CV-00598-CRS

v.

NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY

DEFENDANT

MEMORANDUM OPINION
I.

Introduction

This matter is before the court on defendant Northwestern Mutual Life Insurance
Company’s (“Northwestern Mutual”) motion to exclude plaintiff James H. Pogue’s (“Pogue”)
rebuttal expert opinions and related testimony. ECF No. 124-1. For the reasons below, the court
will grant the motion.
II.

Case Background

Pogue is a physician who previously practiced medicine in Nashville, Tennessee. ECF
No. 124-1, p. 2. Pogue filed suit against Northwestern Mutual in 2014, claiming breach of
contract, breach of the duty of good faith and fair dealing, violations of the Unfair Settlement
Practices Act, and violations of the Consumer Protection Act, all based on the insurance
company’s denial of his long term disability claim. Pl.’s Compl., ECF No. 1-2, ¶¶ 9-26.
Pogue submitted a request for disability benefits to Northwestern Mutual dated April 28,
2013. ECF No. 124-4, p. 3. In his request, Pogue stated that he suffered from a “severe anxiety
disorder” and that “on November 9, 2012 [he] had a total nervous breakdown and could no
longer think clearly enough to practice medicine.” Id. He also stated that he suffered from
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“severe tinnitus, blurred vision, abdominal pain, dizziness, fatigue, and [headaches]” of an
undetermined cause. Id. Pogue noted in his request that he “voluntarily surrender[ed] his
[medical] license due to a feeling of personal incompetence to handle work stresses as of Nov. 9,
2012.” Id. at 7.
After reviewing Pogue’s request, Northwestern Mutual issued a denial letter on
November 9, 2014, stating that it did “not find proof of disability” and believed that Pogue
“made intentional, and even fraudulent, misrepresentations throughout [his] claim in order to
deceive Northwestern Mutual into providing benefits. . .” ECF No. 124-5, p. 8. The insurance
company pointed to several discrepancies in the information Pogue provided. Of particular
significance was a decision by the Tennessee Board of Medical Examiners dated November 20,
2012—less than two weeks after Pogue’s alleged nervous breakdown—suspending Pogue’s
medical license due to his improper prescribing of controlled substances to patients and family
members. Id. at 6. Northwestern Mutual referred to Pogue’s insurance contract, which states that
“there will be no benefits for a disability or loss that results from or is caused by or contributed
to by the suspension, revocation, or surrender of a professional or occupational license or
certificate.” Id. at 8. Northwestern Mutual concluded that “although [Pogue] may [have had] a
nervous breakdown on November 9, 2012 . . . [it] was unable to establish proof that, apart from
[his] licensing issues, [he had] been unable to perform the duties of [his] occupation because of a
disabling psychiatric illness.” Id. Pogue appealed this denial twice, and in both instances
Northwestern Mutual upheld the claim denial. ECF No. 117-4; ECF No. 117-5.
In anticipation of trial, Pogue provided Northwestern Mutual with his expert disclosures
on October 15, 2015. ECF No. 129-3. He indicated that he anticipates calling on Dr. Roy Asta,
his treating psychiatrist, and Dr. Bracken Lewis, his treating physician, to testify. Id. The

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disclosure states that “[e]ach of these medical providers is expected to provide expert medical
opinions that [Pogue’s] physical and mental restrictions and limitations prevent [him] from
performing each of the principal duties of a medical doctor.” Id.
Northwestern Mutual then disclosed its seven expert witnesses on February 15, 2016.
ECF No. 47-2. Two of these experts, Dr. Dennis Buchholz and Dr. Sara Swanson, are
neuropsychologists. Id. Dr. Buchholz was retained by Northwestern Mutual in August 2013 to
conduct neuropsychological testing on Pogue in connection with his claim and will testify as to
the results and his conclusions. Id. at 4. Dr. Swanson was retained by Northwestern Mutual in
anticipation of litigation and will testify to “her opinion that [Pogue] has no cognitive limitations
or impairments that [prevent] him from performing his occupational duties as a physician.” Id. at
2.
On August 8, 2016, Pogue disclosed his rebuttal expert witness, Dr. Michael Cecil (“Dr.
Cecil”). ECF No. 128-2. The disclosure states that Dr. Cecil has been retained to provide his
“expert medical opinion as to Dr. Pogue’s ability to engage in the duties of a physician from
November 2012 to date.” ECF No. 128-3, ¶ 2. In his expert report, Dr. Cecil concludes that:
(1) Dr. Pogue should be regarded as an individual with moderate brain
functioning disability.
(2) Dr. Pogue is not capable of returning to his previous position as a physician
given his significant neuropsychological deficits.
(3) The etiology of Dr. Pogue’s functional limitations is organic and physical in
nature, caused by brain trauma.
(4) Dr. Pogue’s functional limitations, preventing him from performing the duties
of a physician, have been present since at least November 9, 2012. Id. at ¶ 37.

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Northwestern Mutual now moves to exclude Dr. Cecil’s expert testimony, claiming that it
is outside the scope of rebuttal testimony under Federal Rule of Civil Procedure 26(a)(2)(D)(ii),
or alternatively, that it is unreliable under Federal Rule of Evidence 702.
III.

Legal Standard

Federal Rule of Civil Procedure 26(a)(2)(D)(ii) governs the scope of rebuttal expert
testimony. This Rule describes rebuttal expert testimony as evidence “intended solely to
contradict or rebut evidence on the same subject matter” discussed by another party’s expert
witness. Fed. R. Civ. P 26(a)(2)(D)(ii). There is little guidance on what constitutes ‘the same
subject matter,’ but courts have “been reluctant to narrowly construe the phrase . . . beyond its
plain language.” T.C. Systems, Inc. v. Town of Colonie, New York, 213 F.Supp.2d 171, 180
(N.D.N.Y July 19, 2002). Rebuttal experts can use “new methodologies” to refute the opinions
of other experts. Park West Radiology v. Carecore Nat. LLC, 675 F.Supp.2d 314, 316 (S.D.N.Y.
Nov. 19, 2009). However, rebuttal experts cannot merely supplement the opinions of experts
from the party’s case-in-chief or “advance new arguments or new evidence” for the case.
Madison Capital Co., LLC v. S & S Salvage, LLC, 2011 WL 195639 (W.D.Ky. Jan. 19, 2011);
Bentley v. Highlands Hospital Corp., 2016 WL 5867496 at *5 (E.D.Ky. Oct. 6, 2016) (quoting
Blake v. Securitas Sec. Servs., Inc., 292 F.R.D. 15, 17 (D.D.C. May 1, 2013)).
Federal Rule of Evidence 702 limits the content of rebuttal expert testimony. This rule
states:
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;

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(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.
According to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597, 113 S.
Ct. 2786, 125 L.Ed.2d 469 (1993), trial judges serve as “gatekeepers” under Rule 702 to ensure
that opinions offered by expert witnesses meet the thresholds for reliability and relevance. This is
true whether “the testimony is based on ‘scientific’ knowledge” or “technical [or] other
‘specialized’ knowledge.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S. Ct.
1167, 143 L.Ed.2d 238 (1999). The appropriate inquiry for determining whether expert
testimony is reliable will depend in large part on the subject matter, and “the law grants a district
court the same broad latitude when it decides how to determine reliability as it enjoys in respect
to its ultimate reliability determination.”1 Id. Notwithstanding this flexibility, the role of a trial
judge is to assess the “principles and methodology” used by experts, not the conclusions they
ultimately reach. Daubert, 509 U.S. at 595. The traditional tools of the adversarial system,
including “cross-examination, presentation of contrary evidence, and careful instruction on the
burden of proof,” are still adequate “means of attacking shaky but admissible testimony.” Id. at
597 (citing Rock v. Arkansas, 483 U.S. 44, 61, 107 S. Ct. 2704, 97 L.Ed.2d 37 (1987)).

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In Daubert, the Court included a non-exhaustive list of factors that could be used in assessing the reliability of an
expert’s opinion, including (1) “whether it can be or has been tested;” (2) “whether [it] . . . has been subject to peer
review and publication;” (3) whether there is a “known or potential rate of error,” and (4) whether it enjoys “general
acceptance . . . in the relevant scientific community.” Daubert, 509 U.S. at 594. While these factors are helpful in
assessing the reliability of opinions based on scientific studies, they are less relevant when assessing an expert’s
diagnosis of a particular individual’s condition, as we have in this case.

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IV.

Discussion

a. Admissibility of Dr. Cecil’s Rebuttal Expert Testimony under Fed. R. Civ. P. 26(a)(2)(D)(ii)
Northwestern Mutual argues that Dr. Cecil’s testimony should be excluded because it is
outside the scope of rebuttal testimony under Federal Rule of Civil Procedure 26(a)(2)(D)(ii). It
states that Dr. Cecil’s report “offers new theories and factual findings,” which go “far beyond
attempting to rebut the opinions offered by Northwestern Mutual’s experts and consultants.”
ECF No. 124-1, p. 20. Accordingly, it argues that Dr. Cecil’s opinions should be excluded.” Id.
The court disagrees.
Pogue retained Dr. Cecil to rebut the opinions of Dr. Dennis Buchholz and Dr. Sara
Swanson, two of Northwestern Mutual’s expert witnesses. ECF No. 128, p. 21. Dr. Buchholz
performed neuropsychological testing on Pogue in August 2013 in connection with his disability
claim. ECF No. 124-10, p. 2. His expert report discusses the results of these tests and ultimately
concludes that Pogue’s “observed psychomotor slowing is most likely due to functional
psychological factors rather than neurological disease.” Id. at 8. Dr. Cecil directly responds to
this conclusion in his rebuttal report, stating that:
The significant impairments noted in Dr. Buchholz[‘s] [report] were improperly
characterized as solely representative of cognitive slowing and failed to consider
whether Dr. Pogue’s impaired testing results were caused by his underlying brain
dysfunction. In the context of superior scores that Dr. Pogue produced, these
impaired scores are only suggestive of functional brain impairment. ECF No. 1283 ¶ 30.
Dr. Cecil’s opinion contradicts Dr. Buchholz’s opinion as to the cause of Pogue’s psychomotor
slowing.
Dr. Swanson reviewed Pogue’s psychological and psychiatric evaluations on behalf of
Northwestern Mutual to determine whether Pogue has “vocational limitations as a result of
neuropsychological impairment.” ECF No. 124-11, p. 1. She concludes that there is “no support
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for cognitive limitations,” but rather, evidence of “symptom fabrication [that] is typical of
malingering.” Id. at 5. Dr. Cecil disagrees with this finding, stating that “[i]t is based on a flawed
analysis and scoring of Dr. Buchholz’s testing results.” ECF No. 128-3, ¶ 36. His evaluation of
Pogue, by contrast, reveals several cognitive limitations, including “impaired processing speed
scores . . . impaired semantic fluency and immediate and delayed auditory memory . . . [and]
impaired fine motor speed scores,” which he concludes will prevent Pogue from returning to
work as a physician. Id. at ¶ 21. Dr. Cecil’s opinion contradicts Dr. Swanson’s opinion as to the
extent of Pogue’s cognitive limitations and his ability to return to the practice of medicine.
Although Dr. Cecil does offer a new finding—that Pogue suffers from brain trauma—this
still falls within the scope of rebuttal expert testimony. Dr. Cecil does not offer this conclusion
independently, but rather relies on it in challenging the opinions of Dr. Buchholz and Dr.
Swanson. Both Dr. Buchholz and Dr. Swanson conclude that Pogue’s limitations, if any, are
purely psychological and do not prevent him from returning to work as a physician. Dr. Cecil, by
contrast, asserts that Pogue’s limitations are caused by brain trauma and will inhibit his ability to
work as a physician. Because Dr. Cecil’s opinions respond to Northwestern Mutual’s experts’
opinions, they are within the scope of rebuttal testimony.
b. Admissibility of Dr. Cecil’s Rebuttal Expert Testimony under Fed. R. Evid. 702
Northwestern Mutual alternatively argues that Dr. Cecil’s rebuttal expert testimony
should be excluded under Federal Rule of Evidence 702, both because he lacks sufficient
expertise to opine about Pogue’s neuropsychological condition, and because his opinions are
unreliable.

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i. Dr. Cecil’s Qualifications
Northwestern Mutual first contends that Dr. Cecil does not possess the “knowledge, skill,
experience, training, or education” requisite for providing expert testimony as to the cause of
Pogue’s alleged neuropsychological deficits. ECF No. 124-1, p. 17. It points out that Dr. Cecil is
a psychologist rather than a board certified neuropsychologist and claims that diagnosing “the
etiology of [Pogue’s] alleged disability” is “well outside his experience of counseling patients
and families.” Id. The court disagrees.
Dr. Cecil received his Doctorate in Clinical Psychology from Wright State University
School of Professional Psychology in 2000. ECF No. 128-4, p. 1. During his doctoral study, he
completed an internship in clinical psychology on a neuropsychology track at the University of
Texas. Id. Upon completion of his doctorate, Dr. Cecil served as a clinical neuropsychologist at
Frazier Rehab Institute, where his responsibilities included providing “neuropsychological
evaluations . . . psychotherapy to individuals with brain-injury, [and] outpatient
neuropsychological and forensic evaluations and treatment.” Id. at 2. From there, Dr. Cecil
continued to practice as a clinical neuropsychologist at Columbus Regional Hospital, where he
performed “inpatient [and] outpatient comprehensive neuropsychological evaluations” for
neurologists and neurosurgeons, and engaged in “[w]eekly consultation with neurologists
regarding neurological findings, results of neuroimaging, and neuropsychological evaluation
results.” Id. Dr. Cecil currently serves as the President and CEO of Louisville Neuropsychology,
a “private practice dedicated to evaluating and treating individuals with neuropsychological and
psychological disorders.” Id. at 1.
Dr. Cecil’s lack of board certification does not in itself disqualify him from testifying to
the cause of Pogue’s neuropsychological deficits. An expert witness “need not have certificates

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of training [or] memberships in professional organizations,” or even be “an outstanding
practitioner in the field in which he professes expertise.” U.S. v. Barker, 553 F.2d 1013, 1024
(6th Cir. 1977) (citing Tank v. Commissioner, 270 F.2d 477, 478 (6th Cir. 1959)). Indeed, the
Advisory Committee’s notes on the 2000 Amendment to Rule 702 state that “[n]othing in this
amendment is intended to suggest that experience alone—or experience in conjunction with
other knowledge, skill, training, or education—may not provide a sufficient foundation for
expert testimony.” Fed. R. Evid. 702 advisory committee’s note to 2000 amendment. Rather, the
correct inquiry for determining whether an individual may testify as an expert on a particular
topic is whether that person’s “knowledge of the subject matter is such that his opinion will most
likely assist the trier of fact in arriving at truth.” Barker, 553 F.2d at 1024 (quoting Holmgren v.
Massey-Ferguson, Inc., 516 F.2d 856, 858 (8th Cir. 1975)).
The court finds that Dr. Cecil’s extensive professional background in the field of
neuropsychology qualifies him to testify as to the cause of Pogue’s alleged neuropsychological
deficits. Of particular relevance is his experience providing neuropsychological evaluations and
treatment to individuals with brain injuries. His knowledge of this subject matter could be
helpful to the jury in determining the facts at issue in this case. Dr. Cecil is qualified to opine as
to the cause of Pogue’s alleged neuropsychological deficits.
ii. Reliability of Dr. Cecil’s Opinions
Northwestern Mutual next contends that Dr. Cecil’s opinions are not reliable.
Specifically, it states that he does not have adequate scientific or factual bases to opine that (1)
Pogue’s alleged neuropsychological deficits were caused by brain trauma, (2) the alleged deficits
make Pogue incapable of returning to the practice of medicine, and (3) the alleged deficits have
been present since at least November 9, 2012. These opinions will be addressed in turn.

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1. Conclusion that Pogue Suffers From Brain Trauma
Northwestern Mutual argues that Dr. Cecil does not have an adequate scientific or factual
basis to opine that Pogue’s alleged neuropsychological deficits were caused by brain trauma.
ECF No. 124-1, p. 14. It notes that Pogue “never gave a history of traumatic brain injury to
Northwestern Mutual” or to any of the “independent medical consultants who examined him in
connection with his disability claim.” Id. at 16. Moreover, none of the “extensive and detailed
histories gathered by [Pogue’s] treaters make [any] mention of concussions or traumatic brain
injury.” Id. Based on this, Northwestern Mutual contends that Dr. Cecil’s “bare conclusion” is
inadmissible. Id. The court agrees.
Dr. Cecil concludes that “[t]o a reasonable degree of medical certainty . . . [t]he etiology
of Dr. Pogue’s functional limitations is organic and physical in nature, caused by his brain
trauma.” ECF No. 128-3, ¶ 37. His primary basis for this conclusion is a 3T MRI of Pogue’s
brain showing “corpus callosal tract cutoffs that could be associated with trauma.” Id. at ¶ 21
(emphasis added). He notes that this etiology “explains [Pogue’s] impaired speed processing
scores,” as well as his “extreme anxiety and panic attacks, anti-social and social avoidance . . .
[and] impaired memory and ability to engage in complex tasks,” all of which he claims are
manifestations of brain trauma. Id. at ¶¶ 21, 26.
Dr. Cecil’s conclusion is at most a “working hypothesis” and does not rise to the level of
‘scientific or technical knowledge’ required under Rule 702. Tamraz v. Lincoln Elec. Co., 620
F.3d 665, 669 (6th Cir. 2010). Although Dr. Cecil finds that the results of Pogue’s 3T MRI
“could be associated with trauma,” he fails to take the next step in establishing that corpus
callosal tract cutoffs are, to a reasonable degree of medical certainty, caused by brain trauma.
ECF No. 128-3, p. ¶ 21 (emphasis added). Dr. Cecil does not point to anything from Pogue’s

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extensive medical history or patient interview suggesting that he ever suffered from brain
trauma. Moreover, he does not point to any literature which might show an exclusive causal
relationship between brain trauma and corpus callosal tract cutoffs, or rule out other possible
causes for this condition. Rather, he points to a handful of symptoms that are associated with
brain trauma, and then leaps to the conclusion that Pogue’s limitations are the result of brain
trauma. While some of Pogue’s symptoms are linked to brain trauma, they are also linked to a
variety of other disorders, some organic and some psychiatric.
It is well established that “the ‘ipse dixit of the expert’ alone is not sufficient to permit the
admission of an opinion.” Tamraz, 620 F.3d 665 at 671 (6th Cir. 2010) (citing Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)). Rule 702 requires that an
expert’s opinions be “supported by appropriate validation—i.e. ‘good grounds,’ based on what is
known.” Daubert, 509 U.S. at 589. It is not the court’s role to fill in the “analytical gap between
the data and the opinions offered.” General Elec. Co., 522 U.S. at 146; See also Turpin v.
Merrell Dow Pharmaceuticals, Inc., 959 F.2d 1349, 1361 (6th Cir. 1992) (“The analytical gap
between the evidence presented and the inferences to be drawn on the ultimate issues . . . is too
wide.”); Rodrigues v. Baxter Healthcare Corp., 567 Fed. Appx. 359, 361 (6th Cir. 2014) (“[T]his
unexplained conclusion failed to connect the dots . . .”). In this case, the gap between the
evidence Dr. Cecil presents and the conclusion he ultimately reaches is simply too wide.
Accordingly, the court finds that Dr. Cecil does not have an adequate scientific or factual basis
for opining that Pogue’s alleged limitations are the result of brain trauma.
2. Conclusion that Pogue is Incapable of Returning to the Practice of Medicine
Additionally, Northwestern Mutual argues that Dr. Cecil does not have an adequate
scientific or factual basis to opine that Pogue is unable to return to the practice of medicine. It

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states that “[Dr.] Cecil fails to provide any additional insight – he does not review the rigors of a
family physician, he does not describe these alleged ‘actual limitations,’ and he does not explain
how they might affect or limit [Pogue] in practice.” ECF No. 124-1, p. 19. Without further
support, Northwestern Mutual asserts that Dr. Cecil’s opinion is inadmissible. Id. The court
agrees.
Dr. Cecil concludes that “[t]o a reasonable degree of medical certainty . . . Dr. Pogue is
not capable of returning to his previous position as a physician given his significant
neuropsychological deficits.” ECF No. 128-3, ¶ 37. The fatal flaw of this conclusion is that it is
based solely on his finding that Pogue suffers from brain trauma, which the court has determined
to be unreliable. Indeed, Dr. Cecil only comments on Pogue’s inability to practice medicine in
his review of Pogue’s 2013 evaluation by the Vanderbilt University Department of Psychiatry.
He states that he “disagree[s] with the conclusion that Dr. Pogue could return to practicing
medicine,” and notes that “the examiners did not consider or investigate Dr. Pogue’s etiology
and whether there was an organic physical cause which has now been determined.” Id. at ¶ 28.
Without any other basis to support this conclusion, it too will be deemed unreliable. The court
finds that Dr. Cecil lacks a sufficient scientific or factual basis to opine that Pogue is unable to
return to the practice of medicine.
3. Conclusion that Pogue’s Condition Has Existed Since November 9, 2012
Finally, Northwestern Mutual argues that Dr. Cecil fails to provide an adequate scientific
or factual basis for his opinion that Pogue’s alleged limitations have been present since at least
November 9, 2012. It claims that Dr. Cecil “offers no facts to substantiate his opinion that a
condition existed almost four (4) years before he even saw [Pogue].” ECF No. 124-1, p. 18. The
court agrees.

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Dr. Cecil concludes that “[t]o a reasonable degree of medical certainty . . . Dr. Pogue’s
functional limitations, preventing him from performing the duties of a physician, have been
present since at least November 9, 2012.” ECF No. 128-3, ¶ 37. However, Dr. Cecil did not
conduct his evaluation of Pogue until 2016. His only attempt to link Pogue’s alleged condition to
November 9, 2012 is his commentary on Pogue’s psychiatry records, which date back to 2005.
He states that Pogue’s records show that he has “extreme anxiety and panic attacks, anti-social
and social avoidance, as well as impaired memory and ability to engage in complex tasks . . .
which are each the expected result of a person . . . who is suffering from the effects of brain
trauma.” Id. at ¶ 26. This conclusion—like the one regarding Pogue’s inability to return to
practicing medicine—is premised on the unreliable finding that Pogue suffers from brain trauma.
There is no other evidence in Dr. Cecil’s report indicating that Pogue’s alleged limitations have
existed since November 9, 2012. Therefore, the court finds that Dr. Cecil lacks a sufficient
scientific or factual basis to support this conclusion.
As the Sixth Circuit stated in Tamraz v. Lincoln Electric Company, 620 F.3d 665, 671
(6th Cir. 2010), the phrase “‘to a reasonable degree of medical certainty’—the conclusion by
itself—does not make . . . an opinion admissible.” Dr. Cecil fails to provide an adequate
foundation for his conclusion that Pogue suffers from brain trauma. He then uses this unfounded
conclusion as a basis for the remainder of his opinions. Because of this, the court finds that Dr.
Cecil’s opinions and related testimony are inadmissible under Rule 702.

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V.

Conclusion

For these reasons, the court will grant Northwestern Mutual’s motion to exclude Pogue’s
rebuttal expert opinions and related testimony. An order will be entered in accordance with this
memorandum.

September 22, 2017

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