Edwards v. Permobil, Inc. et al

Filing 218

ORDER AND REASONS denying 199 Motion in Limine to exclude the testimony of Dr. Monroe Laborde and Dr. Joseph Cormier. Signed by Chief Judge Sarah S. Vance on 8/22/13. (jjs, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DERRICK EDWARDS

CIVIL ACTION

VERSUS

NO: 11-1900

PERMOBIL, INC., ET AL.

SECTION: R

ORDER AND REASONS
On August 9, 2013, this Court denied plaintiff’s motion in
limine to exclude the testimony of Dr. Monroe Laborde and Dr.
Joseph Cormier.1 Plaintiff now reurges that motion in light of
facts revealed in Dr. Cormier’s deposition, which was taken on
the same day the Court issued its Order.2 For the following
reasons, plaintiff's motion is DENIED.
I. BACKGROUND
The facts underlying this litigation and the details of the
expert testimony at issue are summarized in detail in the Court’s
August 9 Order. In short, the testimony consists of (1)
calculations performed by Dr. Cormier, a biomedical engineer,
that purport to estimate, under a range of assumptions, the
maximum change in velocity that plaintiff’s wheelchair could have
experienced when it fell; and (2) the opinion of Dr. Laborde, an
orthopaedic surgeon with a degree in biomedical engineering,
1

R. Doc. 179.

2

See R. Doc. 199.

that, according to Cormier’s calculations, the accident was
unlikely to cause injury because the change in velocity was low.
II.

LEGAL STANDARD
Federal Rule of Evidence 702, which governs the

admissibility of expert witness testimony, provides:

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; (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.
Fed. R. Evid. 702. A district court has considerable discretion
to admit or exclude expert testimony under the Federal Rules of
Evidence. See General Elec. Co. v. Joiner, 522 U.S. 136, 138–39
(1997); Seatrax, Inc. v. Sonbeck Int'l, Inc., 200 F.3d 358, 371
(5th Cir. 2000).
In Daubert v. Merrell Dow Pharmaceuticals, the Supreme Court
held that Rule 702 requires the district court to act as a
gatekeeper to ensure that “any and all scientific testimony or
evidence admitted is not only relevant, but reliable.” 509 U.S.
579, 589 (1993); see also Kumho Tire Co. v. Carmichael, 526 U.S.
137, 147 (1999) (clarifying that the Daubert gatekeeping function
applies to all forms of expert testimony).

2

The Court's gatekeeping function thus involves a two-part
inquiry into reliability and relevance. First, the Court must
determine whether the proffered expert testimony is reliable. The
party offering the testimony bears the burden of establishing its
reliability by a preponderance of the evidence. See Moore v.
Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998). The
reliability inquiry requires the Court to assess whether the
reasoning or methodology underlying the expert’s testimony is
valid. See Daubert, 509 U.S. at 593. The aim is to exclude expert
testimony based merely on subjective belief or unsupported
speculation. See id. at 590. Second, the Court must determine
whether the expert's reasoning or methodology is relevant in that
it “fits” the facts of the case and will thereby assist the trier
of fact to understand the evidence. See id. at 591.
III. DISCUSSION
Plaintiff contends that the experts’ opinions are
inadmissible for several reasons. The Court will address each in
turn.
First, plaintiff argues that Dr. Cormier relied on
measurements of the "wrong" wheelchair in performing his
calculations. According to plaintiff, Dr. Cormier used
photographs and measurements of an exemplar chair and the chair
that plaintiff was sitting in during his deposition, but the
chair actually involved in the accident was different from both
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of those chairs.3 Plaintiff notes that Cormier admitted that he
was never given “measurements of the chair which actually fell on
the date of [plaintiff]’s incident,”4 and that his calculations
might be affected if “the actual chair was substantially
different in geometry.”5 The Court finds this argument baseless,
because Dr. Cormier's expert report states that he based his
calculations on photographs and measurements of the "Permobil
C500 Power Wheelchair,"6 the chair that plaintiff alleges was
involved in the accident.
Second, plaintiff notes that Dr. Cormier attached one
spreadsheet showing his calculations to his expert report and
used a "different" spreadsheet in his deposition. Defendants
explain that the spreadsheet prepared by Dr. Cormier contains
several variables that can be changed by the user, and thus will
yield different output values depending on the values assigned to
those variables. The two spreadsheets in question were different
because they contained different values for the input variables.
The Court credits this explanation, as it has already found Dr.
Cormier's basic methodology reliable in the August 9 Order.7

3

R. Doc. 199-1 at 3-4.

4

R. Doc. 199-3 at 6.

5

Id. at 5.

6

See R. Doc. 153-3 at 1-2.

7

R. Doc. 179 at 5-7.
4

Third, plaintiff contends that Dr. Cormier disclaimed having
an opinion as to the maximum change in velocity of plaintiff's
wheelchair when it fell. Defendants respond that Dr. Cormier's
calculations merely show the range of velocities that were
possible based on various factual scenarios, and that the
calculations are thus a "tool for the jury to utilize to make the
determination of change in velocity depending upon facts that
they determine."8 Again, the Court has already determined that
Dr. Cormier used a reliable methodology used in arriving at his
calculations, and this conclusion is not altered by the fact that
Dr. Cormier declined to offer an opinion as to the actual speed
that plaintiff's chair was traveling when during the accident.
Dr. Cormier simply provided a "range of possibilities of . . .
velocity" based on various initial conditions.9 The jury will
determine what initial conditions actually obtained, and then it
can use Dr. Cormier's calculations to derive conclusions from
those initial conditions.
Fourth, plaintiff complains that Dr. Cormier "utilized
measurements he did not take" and that his opinions are
unreliable for that reason.10 The Court already rejected this

8

R. Doc. 206 at 5.

9

R. Doc. 199-3 at 12-13.

10

R. Doc. 199-1 at 3.
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argument in its August 9, 2013 Order and will not revisit it
here.11
Finally, plaintiff argues that Dr. Laborde's opinion that a
change in velocity of less than five miles per hour is unlikely
to cause injury is inadmissible because Dr. Laborde relied on (1)
a change in velocity that Dr. Cormier never calculated and (2)
the expert opinions of others contained in books on biomechanics.
The Court finds no merit in either of these objections. With
regard to the first objection, because the Court has found Dr.
Cormier's calculations reliable, Dr. Laborde is entitled to plug
certain variables into those calculations and rely on the results
to opine that, under the conditions corresponding to those
variables, plaintiff was unlikely to suffer injury from the
accident. See Fed. R. Evid. 703. If the jury finds that those
conditions actually obtained, Dr. Laborde's testimony will be
helpful. With regard to the second objection, expert witnesses
are entitled to base their opinions on facts or data upon which
experts in that particular field would reasonably rely, even if
the facts or data would otherwise be inadmissible. Id. Moreover,
statements contained in treatises are not considered inadmissible
hearsay if they are relied upon by an expert and established as a
reliable authority by the expert's testimony. Fed. R. Evid.
803(18). Accordingly, Dr. Laborde is entitled to rely on
11

See R. Doc. 179 at 8.
6

biomechanics books in rendering his opinions, so long as he
establishes that they are reliable authorities. It will be for
the finder of fact to determine the weight to accord the opinions
Dr. Laborde renders based on these sources. See United State v.
14.38 Acres of Land, More or Less Situated in Leflore Cnty.,
Miss., 80 F.3d 1074, 1077 (5th Cir. 1996) ("As a general rule,
questions relating to the bases and sources of an expert's
opinion affect the weight to be assigned that opinion rather than
its admissibility and should be left for the jury.").

IV. CONCLUSION
For the foregoing reasons, plaintiff's motion is DENIED.

New Orleans, Louisiana, this 22ndday of August, 2013.
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_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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