Clark v PHI, Inc et al
Filing
124
ORDER AND REASONS denying 79 Motion in Limine. Signed by Judge Helen G. Berrigan on 10/17/2013. (kac, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
FERRIS CLARK SR.,
CIVIL ACTION
VERSUS
NO. 12-411
PHI, INC., ET AL.
SECTION: C (5)
ORDER AND REASONS
Before the Court is the plaintiffʹs motion in limine to exclude the testimony of
defendant PHI, Inc.ʹs biomechanical engineering expert, Dr. Robert Banks. Rec. Doc. 79.
Plaintiff argues that Dr. Banksʹs potential testimony is totally irrelevant, given the law
applicable to his case. Further, he contends that the doctorʹs testimony is inadmissible
under Fed. R. Evid. 702. Having reviewed the record, the memoranda of counsel and
the law, the Court denies the plaintiffʹs motion for the following reasons.
I. Relevance
Plaintiff first argues that Dr. Banksʹs anticipated testimony could not be relevant
to this Courtʹs determination of causation and damages under Louisianaʹs Housley
doctrine.
In Housley v. Cerise, the Louisiana Supreme Court held that the finder of fact in a
tort action may presume a causal relationship between an incident and an injury, if the
plaintiff proves the following: (1) that before the incident, he was in good health; (2) that
after the incident symptoms of the injury appeared and continuously manifested
themselves; and (3) that based on medical evidence, circumstantial evidence, or
common knowledge, there is a reasonable possibility of causation between the incident
and the injury. Housley v. Cerise, 579 So. 2d 973, 980 (La. 1991) (quoting Lukas v. Insurance
Company of North America, 342 So.2d 591 (La. 1977)).
Regardless of whether the Housley presumption applies or is satisfied on the
plaintiffʹs showing, Dr. Banksʹs testimony is relevant to this Courtʹs determination of
causation and injury. If called, Dr. Banks would testify in part that the plaintiffʹs spine
injuries could have been caused by the plaintiffʹs fall off his porch on April 23, 2011.
The defense in a tort action may always introduce evidence to show that the injuries
complained of were caused by some separate incident. The Housley presumption, if
operative, simply reallocates the final burden of persuasion to the defendant on the
issue of causation. See Gober v. Walgreen Louisiana Co., Inc., 46,730 (La. App. 2 Cir.
11/2/11), 80 So. 3d 9, 12, rehʹg denied (Dec. 8, 2011) (when the plaintiff satisfies the
Housley presumption, ʺthe burden of proof shifts to the defendant to prove some other
particular incident could have caused the injury complained of.ʺ), writ denied, 2011‐2837
(La. 3/2/12), 84 So. 3d 531.
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However, insofar as Dr. Banks will testify that injuries sustained during the
accident would not have been as severe but for a chronic degenerative disease, such
testimony alone will not defeat causation. ʺLouisiana courts have consistently held that
ʹ[w]hen the defendantʹs tortious conduct aggravates a pre‐existing condition, the
defendant must compensate the victim for the full extent of the aggravation.ʹʺ Dahlen v.
Gulf Crews, Inc., 281 F.3d 487, 495 (5th Cir. 2002) (quoting Lasha v. Olin Corp., 625 So.2d
1002, 1006 (La.1993); collecting cases). The Fifth Circuit has in turn observed this rule in
the exercise of maritime jurisdiction. Dahlen, 281 F.3d at 495.
II. Rule 702
Plaintiff also agues that Dr. Banksʹs methods and proposed testimony do not
satisfy the requirements of Rule 702 of the Federal Rules of Evidence.
Rule 702 governs the admissibility of expert opinion testimony. Testimony thus
offered will be admissible if it is based upon sufficient facts or data, is the product of
reliable principles and methods, and results from reliable application of those principles
and methods to the facts of the case. Fed. R. Civ. P. 702. The Supreme Courtʹs decision
in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) ʺprovides the analytical
framework for determining whether expert testimony is admissible under Rule 702.ʺ
Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243 (5th Cir. 2002). According to Daubert, factors
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relevant to assessing reliability of an expertʹs methods include, (1) testing, (2) peer
review and publication, (3) potential error rate, (4) standards controlling the methodʹs
operation, and (5) general acceptance in the relevant scientific community. Burleson v.
Texas Depʹt of Criminal Justice, 393 F.3d 577, 584 (5th Cir. 2004) (citing Daubert, 509 U.S. at
593‐94). However, the Daubert factors ʺmay or may not be pertinent in assessing
reliability, depending on the nature of the issue, the expertʹs particular expertise, and
the subject of his testimony.ʺ Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 138, 119 S.
Ct. 1167, 1170, 143 L. Ed. 2d 238 (1999). Ultimately, ʺ[w]hether an expertʹs testimony is
reliable is a fact‐specific inquiry. ʺ Burleson, 393 F.3d at 584. Finally, to be admissible
under Rule 702, expert testimony need ʺassist the trier of fact to understand or
determineʺ such an issue. Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir.
2003).
The plaintiff argues that Dr. Banksʹs methods would not allow him to opine
reliably on the cause of the plaintiffʹs injuries. Specifically, he challenges Dr. Banksʹs
ability to understand the forces operating on the plaintiff during the accident using only
two‐dimensional photographs, depositions, and statements. He cites numerous factors
omitted in Dr. Banksʹs analysis. He attacks the doctorʹs failure to quantify the basis for
his opinion in any of his reports. Last, he argues that Dr. Banks lacks appropriate
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medical specialization to assess cause of injury.
Dr. Banksʹs claimed areas of expertise ‐ physics, kinematics, biomechanical
engineering, and general medicine ‐ are trusted scientific disciplines with
well‐established forensic applications. The plaintiffʹs criticisms do not show that Dr.
Banks substantially deviated from approved methods of analysis in those fields. There
is nothing inherently unreliable about the use of photographs and witness accounts to
estimate the velocity of an object at a particular time. The vulnerabilities addressed in
this motion speak to the weight to be given Dr. Banksʹs testimony, not its overall
unreliability or uselessness to the trier of fact. They are thus the proper subject of
ʺ[v]igorous cross‐examinationʺ and ʺpresentation of contrary evidence.ʺ Daubert, 509
U.S. at 596. Total exclusion of the evidence in question is unwarranted, particularly in a
matter such as this that is set for bench trial. Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir.
2000) (ʺMost of the safeguards provided for in Daubert are not as essential in a case such
as this where a district judge sits as the trier of fact in place of a jury.ʺ).
Accordingly, IT IS ORDERED that the plaintiffʹs motion in limine is DENIED.
Rec. Doc. 79.
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New Orleans, Louisiana, this 17th day of October, 2013.
________________________________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE
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