Arnold v. Canal Barge Company, Inc.

Filing 74

ORDER AND REASONS - IT IS ORDERED that Defendant's Daubert challenge to Dr. Shellito's testimony is DENIED. Signed by Judge Susie Morgan.(bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANTHONY ARNOLD, JR.,

CIVIL ACTION

Plaintiff
NO. 13-4966
VERSUS
CANAL BARGE COMPANY, INC.

SECTION "E"

Defendant
ORDER AND REASONS
The Court previously issued an order granting in part and denying in part
Defendant's motion to strike the testimony of Dr. Judd Shellito, an expert witness
retained by Plaintiff.1

Pursuant to that order, the Court restricted Dr. Shellito's

testimony to the four corners of his three timely letters and ordered Plaintiff to produce
the elements missing from Dr. Shellito's Rule 26 disclosures.2 After Plaintiff failed to
comply, the Court held a status conference at which the Court continued the trial and
granted Defendant's oral motion for a Daubert hearing regarding Dr. Shellito.3 The
Court then held a two-day Daubert hearing and heard testimony from and crossexamination of Dr. Shellito regarding his opinions in this case and his diagnosis of
Plaintiff. In light of the testimony at that hearing, the post-hearing briefing, and the
applicable law, the Court concludes that Dr. Shellito may testify at trial, subject to the
previously imposed restriction to the contents of his June 27, 2013, August 8, 2013, and
February 19, 2014 letters.
The Federal Rules of Evidence permit an expert witness with “scientific, technical
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R. Doc. 50.
Id. at 5-6.
R. Doc. 57.

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or other specialized knowledge” to testify if such testimony “will help the trier of fact to
understand the evidence or to determine a fact in issue,” so long as “the testimony is
based upon 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.” Fed. R. Evid. 702. Courts, as “gatekeepers,” are tasked with making a
preliminary assessment whether expert testimony is both reliable and relevant. See
Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243-44 (citing Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 592-93 (1993)). The party offering the expert opinion must
show by a preponderance of the evidence that the expert’s testimony satisfies Rule 702.
Mathis v. Exxon Corp., 302 F.3d 448, 459-60 (5th Cir. 2002).
As a general rule, questions relating to the bases and sources of an expert’s
opinion affect the weight of the evidence rather than its admissibility, and should be left
for the finder of fact. See Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546,
562 (5th Cir. 2004). Thus, "'[v]igorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.'" Pipitone, 288 F.3d at
250 (quoting Daubert, 509 U.S. at 596). The Court is not concerned with whether the
opinion is correct, but whether the preponderance of the evidence establishes that the
opinion is reliable. See Johnson v. Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012). "It
is the role of the adversarial system, not the court, to highlight weak evidence."
Primrose, 382 F.3d at 562.
The Court heard Dr. Shellito's testimony at the Daubert hearing and is satisfied at
this time that his methodology is sufficiently reliable to pass muster under Rule 702.
Defendant's criticisms, though significant, go to the weight of Dr. Shellito's opinions and
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are better addressed through vigorous cross-examination regarding the accuracy of the
patient history on which he based his diagnosis and presentation of contrary opinion
testimony.

With the benefit of context at trial, including testimony regarding the

underlying facts and the expected testimony from Plaintiff's air modeling expert and
toxicologist, the Court will be in a better position to limit the scope of Dr. Shellito's
testimony, if necessary.4
The Court also concludes that the facts of the Sigler case are substantially
different from Plaintiff's allegations in this case. Dr. Shellito's exclusion from that case
has no bearing on the relevance and admissibility of his opinions in this case. E.g.,
McDowell v. Atlantic Sounding Co., 2012 WL 1656262, at *3 n.6 (E.D. La. May 10,
2012) (assessing admissibility of an expert opinion "on a case by case basis" without
reference to the expert's "record").
For the foregoing reasons, IT IS ORDERED that Defendant's Daubert challenge
to Dr. Shellito's testimony is DENIED.
New Orleans, Louisiana, this 21st day of July, 2014

___________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

Defendant also reiterates its contention that it has been prejudiced by the course of disclosure of
materials underlying Dr. Shellito's opinions and that his testimony should be excluded pursuant to Rule
37. The Court first notes that Defendant did not depose Dr. Shellito until after the final pretrial
conference; thus, any dissatisfaction with the state of Dr. Shellito's disclosures falls at least in part on
Defendant's doorstep. And having conducted the Daubert hearing, the Court has no doubt that Defendant
has not been significantly prejudiced and will be able to cross-examine Dr. Shellito effectively. The
motion to strike on the basis of Rule 37 is denied.
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