Brown et al v. Regions Insurance, Inc. et al
Filing
66
ORDER & REASONS. It is ORDERED that Plaintiff's Motion to Exclude the Testimony of Dr. Lars Reinhart (Rec. Doc. 54 ) is GRANTED. It is FURTHER ORDERED that Plaintiffs' Motion to Exclude Evidence of Prior Arrests and Convictions (Rec. Doc. 52 ) is GRANTED, as stated within document. Signed by Judge Carl Barbier on 9/7/2016.(gec)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ALAN BROWN, ET AL.
CIVIL ACTION
VERSUS
NO: 14-813
REGIONS INSURANCE, INC.,
ET AL.
SECTION: “J”(5)
ORDER & REASONS
Before the Court are two motions. First is a Motion to Exclude
the
Testimony
of
Dr.
Lar
Reinhart
(Rec.
Doc.
54)
filed
by
Plaintiffs and an opposition thereto (Rec. Doc. 57) filed by
Defendants. Second is a Motion to Exclude Testimony of Prior
Arrests and Convictions (Rec. Doc. 52) and an opposition thereto
filed by Defendants (Rec. Doc. 58.) Having considered the motions
and legal memoranda, the record, and the applicable law, the Court
finds that the motions should be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
This litigation arises from a car collision that occurred on
April 30, 2013. Defendant Robert Bird was driving an eighteenwheeler when he collided with Plaintiffs’ vehicle. Plaintiffs
allege that the accident caused injuries which required them to
undergo spinal surgeries. On August 9, 2016, Plaintiffs filed the
motions now before the Court. (Rec. Docs. 52, 54.) Plaintiffs ask
this Court to exclude the testimony of Defendants’ “accident
reconstruction expert” Dr. Lars Reinhart. (Rec. Doc. 54.) Further,
Plaintiffs ask this Court to prevent Defendants from presenting
any evidence of Plaintiffs’ prior arrests or criminal convictions.
(Rec. Doc. 52.) The motions are now before the Court on the briefs
and without oral argument.
PARTIES’ ARGUMENTS
1. Dr. Lars Reinhart
Plaintiffs
argue
that
the
Court
should
exclude
the
testimony of Dr. Lars Reinhart. (Rec. Docs. 54, 63.) Plaintiffs
argue
that
Dr.
Reinhart’s
testimony
is
unreliable,
based
on
insufficient facts and data, and will only serve to confuse the
jury. (Rec. Doc. 54 at 2.) Finally, Plaintiffs argue that any
medical opinions offered by Dr. Reinhart are cumulative, because
Defendants
will
present
testimony
from
Dr.
Najeeb
Thomas,
a
neurosurgeon who performed an independent medical examination of
the Plaintiffs and will testify as to causation.
Defendants seek to present evidence from Dr. Reinhart to
“assist the factfinder in determining whether the Plaintiffs could
have been injured so severely” in the accident at issue. (Rec.
Doc. 57 at 2.) Defendants argue that as a certified Accident
Reconstructionist
and
a
licensed
physician,
Dr.
Reinhart
is
qualified to render an opinion as to the cause of Plaintiffs’
injuries. Id. at 5. Defendants argue that the methodology by which
Dr. Reinhart reached his conclusion as to Plaintiffs’ injuries is
reliable.
Id.
at
7-15.
Finally,
2
Defendants
argue
that
Dr.
Reinhart’s testimony is not cumulative and will assist the factfinder in determining whether the impact of the collision was
capable of causing Plaintiffs’ injuries. Id. at 13-14.
2. Evidence of Prior Arrests or Convictions
Plaintiffs seek to exclude any evidence of their prior arrests
or convictions from being presented as impeachment evidence at
trial. (Rec. Doc. 52.) Plaintiffs argue that the arrests and
convictions are not relevant to this case. Further, Plaintiffs
argue
that
the
evidence’s
prejudicial
effect
outweighs
any
potential probative value. Finally, Plaintiffs argue that many of
the
convictions
Defendants
seek
to
introduce
are
not
felony
convictions and others occurred more than ten years ago.
Defendants
argue
that
evidence
of
Plaintiffs’
prior
convictions is relevant and admissible. Specifically, Defendants
argue
that
Plaintiffs
were
untruthful
in
their
deposition
testimony when asked if they had been convicted or arrested in the
past.
Defendants
now
seek
to
use
this
untruthful
deposition
testimony to impeach Plaintiffs’ credibility. (Rec. Doc. 58 at 2.)
LEGAL STANDARD
1.
Federal Rule of Evidence 702
Louisiana Code of Evidence Article 702 mirrors Federal Rule of
Evidence Rule 702’s provisions on the admissibility of expert
witness testimony. La. Code Evid. Ann. Art. 702, Official Comment
3
B; Fed. R. Evid. 702; see also U.S. v. Hitt, 473 F.3d 146, 158
(5th Cir. 2006). Federal Rule of Evidence 702 provides that a
witness who is qualified as an expert may testify if: (1) the
expert’s “specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue”; (2) the
expert’s testimony “is based on sufficient facts or data”; (3) the
expert’s testimony “is the product of reliable principles and
methods”; and (4) the principles and methods employed by the expert
have been reliably applied to the facts of the case. Fed. R. Evid.
702. The United States Supreme Court’s decision in Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), provides
the analytical framework for determining whether expert testimony
is admissible under Rule 702. Both scientific and nonscientific
expert testimony are subject to the Daubert framework, which
requires trial courts to make a preliminary assessment of “whether
the expert testimony is both reliable and relevant.” Burleson v.
Tex. Dep't of Criminal Justice, 393 F.3d 577, 584 (5th Cir. 2004);
see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999).
When expert testimony is challenged under Daubert, the party
offering the expert’s testimony bears the burden of proving its
reliability and relevance by a preponderance of the evidence. Moore
v. Ashland Chem. Co., 151 F.3d 269, 276 (5th Cir. 1998).
4
The
reliability
of
expert
testimony
“is
determined
by
assessing whether the reasoning or methodology underlying the
testimony is scientifically valid.” Knight v. Kirby Inland Marine
Inc., 482 F.3d 347, 352 (5th Cir. 2007). A number of nonexclusive
factors may be relevant to the reliability analysis, including:
(1) whether the technique at issue has been tested; (2) whether
the technique has been subjected to peer review and publication;
(3) the potential error rate; (4) the existence and maintenance of
standards controlling the technique's operation; and (5) whether
the technique is generally accepted in the relevant scientific
community. Burleson, 393 F.3d at 584. The reliability inquiry must
remain flexible, however, as “not every Daubert factor will be
applicable in every situation; and a court has discretion to
consider other factors it deems relevant.” Guy v. Crown Equip.
Corp., 394 F.3d 320, 325 (5th Cir. 2004); see also Runnels v. Tex.
Children's Hosp. Select Plan, 167 F. App'x 377, 381 (5th Cir. 2006)
(“[A] trial judge has considerable leeway in determining how to
test an expert’s reliability.”).
With respect to the relevancy prong, the proposed expert
testimony must be relevant “not simply in the way all testimony
must be relevant [pursuant to Rule 402], but also in the sense
that the expert’s proposed opinion would assist the trier of fact
to understand or determine a fact in issue.”
Bocanegra v. Vicmar
Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003). Ultimately, a
5
court should not allow its “gatekeeper” role to supersede the
traditional adversary system or the jury’s place within that
system.
Scordill v. Louisville Ladder Group, L.L.C., No. 02-2565,
2003 WL 22427981 at *3 (E.D. La. Oct. 24, 2003). As the Supreme
Court has
noted,
“vigorous
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.”
Daubert,
509
U.S.
at
596.
Generally,
questions relating to the basis and sources of an expert’s opinion
rather
than
its
admissibility
should
be
left
for
the
jury’s
consideration. United States v. 14.38 Acres of Land, 80 F.3d 1074,
1077 (5th Cir. 1996) (citing Viterbo v. Dow Chemical Co., 826 F.2d
420, 422 (5th Cir. 1987)).
2. Federal Rule of Evidence 609
Federal Rule of Evidence 609 governs the use of prior criminal
convictions for impeachment purposes. See Fed. R. Evid. 609. Rule
609(a)(1) of the Federal Rules of Evidence provides that a criminal
conviction may be used to impeach the truthfulness of a witness’
character, subject to Rule 403, if the crime was punishable by
more than one year imprisonment. Rule 609(a)(2) provides that any
criminal conviction may be used to impeach the truthfulness of a
witness’
character
“if
it
readily
can
be
determined
that
establishing the elements of the crime required proof or admission
of an act of dishonest or false statement by the witness.” Fed. R.
6
Evid. 609(a)(2). Crimes involving dishonesty or false statements
include crimes such as perjury, criminal fraud, embezzlement, or
any
other
offense
involving
some
element
of
deceit,
untruthfulness, or falsification. Fed. R. Evid. 609, advisory
committee’s note to 1974 enactment.
Rule 609(b) limits the use of prior criminal convictions “if
more than 10 years have passed since the witness’s conviction or
release from confinement for it, whichever is later.” Fed. R. Evid.
609(b).
If
conviction
supported
more
is
by
than
only
10
years
admissible
specific
facts
have
if:
and
passed,
(1)
its
evidence
probative
circumstances,
of
the
value,
substantially
outweighs its prejudicial effect; and (2) the proponent gives an
adverse party reasonable written notice of the intent to use it so
that the party has a fair opportunity to contest it. Fed. R. Evid.
609(b)(1)-(2). For convictions more than 10 years old, “[t]he
general rule is inadmissibility.” United States v. Hamilton, 48
F.3d 149, 154 (5th Cir. 1995) (citing United States v. Estes, 994
F.2d 147, 149 (5th Cir. 1993)). The Fifth Circuit has interpreted
Rule 609(b) to mean that “the probative value of a conviction more
than 10 years old is by definition outweighed by its prejudicial
effect.” Id. “Convictions should be admitted under Rule 609(b)
‘very rarely and only in exceptional circumstances.’” Jordan v.
Ensco Offshore Co., No. 15-1226, 2016 WL 2864380, at *1 (E.D. La.
7
May 16, 2016) (quoting McIntyre v. Bud’s Boat Rentals, LLC, No.
02-1623, 2003 WL 22174236, at *3 (E.D. La. Sept. 9, 2003)).
DISCUSSION
1.
Upon
Dr. Lars Reinhart
review
of
the
reports,
qualifications,
and
stated
methodologies of Dr. Reinhart, and in light of the applicable law,
the
Court
is
not
satisfied
that
Dr.
Reinhart’s
testimony
is
sufficiently reliable for him to properly opine on the nature of
the collision in this case. Specifically, Dr. Reinhart’s expert
testimony as to the nature of the collision is inadmissible,
because it is unreliable, based on insufficient facts and data,
and unhelpful to the trier of fact. Dr. Reinhart did not inspect
the vehicles involved in this accident and relied upon prior
testing and studies that were performed on different model vehicles
that were involved in a different accident than in that in this
case. Further, Dr. Reinhart admits that the methodology by which
he reached his conclusion was not peer-reviewed. (Rec. Doc. 54-2
at 94.) Moreover, Dr. Reinhart’s opinion will not assist the trier
of fact, but rather will likely confuse the jury or cloud its
common sense fact-finding role. See U.S. v. Wiley, 57 F.3d 1374,
1389 (5th Cir. 1999); Scineaux v. Empire Fire and Marine Ins. Co.,
No. 03-2947, 2005 WL 2050281, at *2 (E.D. La. Aug. 9, 2005).
Consequently, Dr. Reinhart is not permitted to provide testimony
as to the nature of the collision in this case. See Oaks v.
8
Westfield Ins. Co., No. 13-1637, 2014 WL 198161, at *2 (E.D. La.
Jan. 16, 2014) (excluding biomechanical expert where expert failed
to reconstruct the exact accident at issue).
The Court also finds that Dr. Reinhart’s proposed medical
causation
testimony
is
unreliable,
because
it
is
based
upon
insufficient facts and data. Despite rendering a medical causation
opinion, Dr. Reinhart did not review any of the Plaintiff’s imaging
studies to see if the imaging corroborated the radiologist reports
or the Plaintiffs’ doctor’s opinions. (Rec. Doc. 54-2 at 4.) In
fact, Dr. Reinhart admits that “there were some implications made
by the radiologist’s reading that were potentially suggestive of
injuries. . . .” Id. at 6. Further, Dr. Reinhart did not perform
a physical examination on any of the Plaintiffs in this case. Thus,
Dr.
Reinhart
proposes
to
offer
contrary
testimony
to
the
radiologist who has reviewed the medical imaging when he himself
has
not
reviewed
the
imaging
nor
physically
examined
the
Plaintiffs. Id. at 5. Consequently, this Court is not satisfied
that Dr. Reinhart’s proposed testimony is based on sufficient facts
or data nor the product of reliable principles or methods. See
Oaks, 2014 WL 198161, at *2 (finding medical causation opinion
unreliable because, inter alia, expert did not personally examine
the plaintiff). Accordingly, Dr. Reinhart is not permitted to
testify as to the medical causation of Plaintiffs’ injuries.
9
2.
Evidence of Prior Arrests or Convictions
a.
Gerard Hines
Mr. Hines has been convicted of three felonies within the
last twenty-one years. In 1995, and again in 2003, Mr. Hines was
convicted of possession of cocaine. Most recently, Mr. Hines was
convicted in 2015 of possession of heroin with the intent to
distribute. Mr. Hines has also been convicted of two misdemeanors,
once in 2013 and another in 2015. Plaintiffs argue that Defendants
are not permitted to present evidence of Mr. Hines’ 1995 and 2003
felony convictions nor his misdemeanor convictions. (Rec. Doc. 62
at 1.) As to Mr. Hines’ 2015 felony conviction, Plaintiffs have
unilaterally agreed to stipulate that they will not seek the costs
associated
with
Mr.
Hines’
future
medical
care
if
the
Court
prohibits Defendants from producing evidence of his conviction and
sentence. (Rec. Doc. 62 at 3.) Plaintiffs also argue that Mr.
Hines’ traffic tickets and crimes for which he was not convicted
must be excluded. Defendants argue that Mr. Hines’ 1995 and 2003
felony convictions are admissible, because when asked if he had
been previously convicted of a crime, Mr. Hines denied that he had
been previously convicted. (Rec. Doc. 58 at 5.) Further, Defendants
argue that Mr. Hines’ more recent conviction is admissible under
Rule 609 and relevant for Plaintiffs’ future medical needs because
he will be incarcerated for the next ten years. Id. at 6.
10
For convictions more than 10 years old, “[t]he general rule
is inadmissibility.” Hamilton, 48 F.3d at 154. “Convictions should
be admitted under Rule 609(b) ‘very rarely and only in exceptional
circumstances.’” Jordan, 2016 WL 2864380, at *1 (quoting McIntyre,
2003 WL 22174236, at *3). As to Mr. Hines’ 1995, 2003, and 2015
felony
convictions
and
previous
misdemeanor
convictions,
Defendants have not shown that “exceptional circumstances” exist
in
this
case.
The
probative
value
of
these
convictions
is
substantially outweighed by their prejudicial effect. Fed. R.
Evid. 609(b)(1); see Tate v. Union Oil Co. of California, 968 F.
Supp. 308 (E.D. La. 1997). However, Plaintiff has unilaterally
stipulated that it will not present any evidence of Mr. Hines’
future medical care costs if Defendant is prohibited from producing
evidence of Mr. Hines’ 2015 conviction. (Rec. Doc. 62 at 3.)
Accordingly,
Defendants
aforementioned
may
convictions
not
and
present
Plaintiff
any
may
evidence
not
as
present
to
any
evidence as to Mr. Hines’ future medical care costs. 1
b.
Alan Brown
Mr. Brown has pleaded guilty to four crimes over the past
twenty-six years. (Rec. Doc. 52-1 at 3.) These crimes include
possession of stolen property, theft of goods under $100, illegal
1
Plaintiffs also seek to exclude evidence of Mr. Hines’ traffic tickets.
Defendants did not respond to this argument, nor have Defendants suggested that
they intend to present such evidence. Accordingly, Defendants may not present
any evidence of Mr. Hines’ traffic tickets.
11
use of a weapon, and simple burglary of a vehicle. Id. Plaintiffs
do not provide whether any of the crimes were felony convictions.
However, none of the convictions occurred within the last ten
years. Defendants argue that when asked how many times he had been
convicted in the past, Mr. Brown answered untruthfully.
(Rec.
Doc. 58 at 7.) Defendants argue that because Mr. Brown did not
answer truthfully that this meets the “exceptional circumstances”
which merit the admission of Mr. Brown’s prior convictions to
attack his credibility. Defendants do not cite to any cases in
support of this argument. Defendants have not shown “exceptional
circumstances” exist in this case to overcome the presumption that
convictions more than 10 years old are inadmissible. Hamilton, 48
F.3d at 154. Further, the potential probative value of presenting
evidence of these convictions is substantially outweighed by their
prejudicial
effect.
Fed.
R.
Evid.
609(b)(1).
Accordingly,
Defendants are not permitted to present evidence as to Mr. Brown’s
prior convictions. Moreover, to the extent that Defendants attempt
to introduce evidence of Mr. Brown’s prior arrests which did not
result
in
a
conviction,
this
evidence
is
also
excluded.
See
Bergeron v. Great West Casualty Co., 2015 WL 3505091, at *5 (E.D.
La. June 3, 2015).
c.
Jennifer Jordan
Defendants seek to introduce two misdemeanor offenses—a 2003
guilty plea to theft of goods less than $100 and a 2014 guilty
12
plea to the unlawful sale of alcohol to a minor. (Rec. Doc. 58 at
7.) Defendants argue that Ms. Jordan was asked if she had ever
been convicted of a criminal offense and responded, “No, sir.” Id.
Defendants again argue that this untruthful statement constitutes
“exceptional circumstances” which permits Defendant to attack Ms.
Jordan’s credibility. Ms. Jordan’s 2014 misdemeanor is not a felony
conviction under Rule 609(a)(1) and does not involve dishonesty or
false statements under Rule 609(a)(2). Accordingly, Defendants are
not
permitted
to
introduce
evidence
as
to
Ms.
Jordan’s
2014
misdemeanor. Further, Ms. Jordan’s 2003 misdemeanor occurred over
10 years ago. Defendants have not shown that its probative value
outweighs it prejudicial effect. Therefore, Defendants are not
permitted
to
introduce
evidence
misdemeanor.
13
as
to
Ms.
Jordan’s
2003
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Exclude the
Testimony of Dr. Lars Reinhart (Rec. Doc. 54) is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Exclude
Evidence
of
Prior
Arrests
and
Convictions
(Rec.
Doc.
52)
GRANTED, as stated more fully above.
New Orleans, Louisiana, this 7th day of September, 2016.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
14
is
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