Snider v. New Hampshire Insurance Company et al

Filing 188

ORDER & REASONS granting in part and denying in part 136 Motion in Limine to Strike Attempted Medical Diagnoses of Life Care Planner, Unsupported Life Care Plan Treatments, and Vocational Rehabilitation Opinion by JWK Enterprises, Johnny Moore, Occidental Fire & Casualty Insurance Company of North Carolina. Signed by Judge Susie Morgan on 6/9/2016. (mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KANDISE SNIDER,
Plaintiff

CIVIL ACTION

VERSUS

No. 14-2132

NEW HAMPSHIRE INSURANCE
COMPANY, ET AL.,
Defendants

SECTION “E” (1)

ORDER AND REASONS
Before the Court is the motion in limine filed by Defendants JWK Enterprises Inc.,
Johnny Moore, and Occidental Fire & Casualty Company of North Carolina (collectively,
“Defendants”). 1 Defendants seek to strike the proposed testimony of Dr. Shelly N. Savant
and Joyce C. Beckwith.
BACKGROUND
This is a personal injury case arising from a car accident in St. Tammany Parish,
Louisiana. On April 19, 2016, Defendants filed a motion in limine regarding Dr. Shelly N.
Savant, Plaintiff Kandise Snider’s life care planner, and Joyce C. Beckwith, Plaintiff’s
vocational rehabilitation expert. 2 Plaintiffs filed an opposition to the motion in limine on
April 26, 2016. 3 Defendants filed a reply on May 5, 2016. 4
STANDARD OF LAW
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert
witness testimony:
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
R. Doc. 136.
Id.
3 R. Doc. 148.
4 R. Doc. 158.
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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. 5
The United States Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 6 provides the analytical framework for determining whether expert testimony is
admissible under Rule 702.
Under Daubert, courts, as “gatekeepers,” are tasked with making a preliminary
assessment of whether expert testimony is both relevant and reliable. 7 The party offering
the expert opinion must show by a preponderance of the evidence that the expert’s
testimony is reliable and relevant. 8
The reliability of expert testimony “is determined by assessing whether the
reasoning or methodology underlying the testimony is scientifically valid.” 9 In Daubert,
the Supreme Court enumerated several non-exclusive factors that courts may consider in
evaluating the reliability of expert testimony. 10 “These factors are (1) whether the expert’s
theory can or has been tested, (2) whether the theory has been subject to peer review and
publication, (3) the known or potential rate of error of a technique or theory when applied,
(4) the existence and maintenance of standards and controls, and (5) the degree to which
the technique or theory has been generally accepted in the scientific community.” 11
The Supreme Court has cautioned that the reliability analysis must remain flexible:
the Daubert factors “may or may not be pertinent in assessing reliability, depending on
FED. R. EVID. 702.
509 U.S. 579 (1993).
7 See Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243–44 (citing Daubert, 509 U.S. at 592–93).
8 Mathis v. Exxon Corp., 302 F.3d 448, 459–60 (5th Cir. 2002).
9 Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 352 (5th Cir. 2007). See also Burleson v. Texas Dep’t
of Criminal Justice, 393 F.3d 577, 584 (5th Cir. 2004); Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581,
584–85 (5th Cir. 2003).
10 Daubert, 509 U.S. at 592–96.
11 Bocanegra, 320 F.3d at 584–85 (citing Daubert, 509 U.S. at 593–94).
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the nature of the issue, the expert’s particular expertise, and the subject of his
testimony.” 12 Thus, “not every Daubert factor will be applicable in every situation . . . and
a court has discretion to consider other factors it deems relevant.” 13 The district court is
offered broad latitude in making expert testimony determinations. 14
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. 15 “Unless wholly unreliable, the data on which the expert relies goes to the
weight and not the admissibility of the expert opinion.” 16 Thus, “[v]igorous crossexamination, presentation of contrary evidence, and careful instruction on the burden of
proof are the traditional and appropriate means of attacking shaky but admissible
evidence.” 17 The Court is not concerned with whether the opinion is correct but whether
the preponderance of the evidence establishes that the opinion is reliable. 18 “It is the role
of the adversarial system, not the court, to highlight weak evidence.” 19
ANALYSIS
A. Dr. Shelly Savant
In the parties’ proposed pretrial order, Plaintiffs listed Dr. Shelly Savant as a
witness who “[w]ill testify about Kandise Snider Life Care Plan.” 20

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150 (1999).
Guy v. Crown Equip. Corp., 394 F.3d 320, 326 (5th Cir. 2004).
14 See, e.g., Kumho Tire, 526 U.S. at 151–53.
15 See Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546, 562 (5th Cir. 2004).
16 Rosiere v. Wood Towing, LLC, No. 07-1265, 2009 WL 982659, at *1 (E.D. La. Apr. 8, 2009) (citing United
States v. 14.38 Acres of Land, 80 F.3d 1074, 1077 (5th Cir. 1996)) (emphasis added); Wolfe v. McNeil-PPC,
Inc., No. 07-348, 2011 WL 1673805, at *6 (E.D. Pa. May 4, 2011).
17 Pipitone, 288 F.3d at 250 (quoting Daubert, 509 U.S. at 596) (internal quotation marks omitted).
18 See Johnson v. Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012).
19 Primrose, 382 F.3d at 562.
20 R. Doc. 174 at 83.
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In her report, Dr. Savant, also a board-certified neurologist and psychologist, gives
her “impression” that Plaintiff Kandise Snider (“Snider”) may suffer from posttraumatic
stress disorder, as well as other maladies. 21 Under her “Impression(s),” Dr. Savant lists
“Possible Posttraumatic Stress Disorder” and “Chronic Pain Syndrome.” 22
Defendants argue that Dr. Savant’s diagnoses of posttraumatic stress disorder and
chronic pain syndrome fall outside the testimony that may be provided by a life care
planner. 23 As explained at the June 6, 2016, pretrial conference, this Court allows life care
planners to testify as to future healthcare needs, predicated upon the testimony of treating
physicians as to the reasonable need for such care, and the cost of such care. Dr. Savant
will not be allowed to testify about her diagnoses of possible posttraumatic stress disorder
or chronic pain syndrome or the future medical costs related thereto, unless a treating
physician has testified to the reasonable need for and extent of such care. 24 The same is
true with respect to Dr. Savant’s testimony regarding “home care” for the remainder of
the Plaintiff’s life. Dr. Savant must specifically identify the treating physician upon whose
report or testimony she relies prior to testifying as to the need for and future costs of that
care. 25 Counsel for Plaintiffs are directed to identify and be prepared to provide the Court

R. Doc. 137-2 at 3.
Id. at 5.
23 R. Doc. 136-1 at 4–6.
24 Defendants argue that, “inasmuch as these attempted diagnoses were integrated in the life care plan of
Cornelius Gorman, the values placed on the treatments should likewise be stricken.” R. Doc. 136-1 at 6.
Cornelius Gorman, however, is not listed as a witness in the parties’ proposed pretrial order and will not
testify as a life care planner or otherwise. See R. Doc. 174 at 81–84. Joyce C. Beckwith, the Plaintiffs’
vocational rehabilitation expert, will not be allowed to rely on Dr. Savant’s diagnoses of possible
posttraumatic stress syndrome or chronic pain syndrome. Defendants also request that Dr. Savant’s report
be stricken. R. Doc. 136-1 at 5. Expert reports will not be admitted into evidence.
25 The life care plan also contains amounts for vocational rehabilitation counseling services. See R. Doc. 1373 at 5. It is unclear whether Dr. Savant will testify about the future cost of vocational rehabilitation services,
but, if she does, she may testify only to the extent Joyce C. Beckwith, Plaintiffs’ vocational rehabilitation
expert, has been allowed to testify as to the reasonable need for those services.
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with portions of reports, depositions, or other documentation upon which Dr. Savant
relies in the event objections are lodged to her testimony.
B. Joyce C. Beckwith
In the parties’ proposed pretrial order, Plaintiffs listed Joyce C. Beckwith on their
witness list and stated that Beckwith “will testify about Kandise Snider Vocational
Rehabilitation.” 26
In Defendants’ motion in limine, Defendants seek to strike Beckwith in part on the
basis that she is not a life care planner. 27 Plaintiffs do not dispute that Beckwith is not a
life care planner and stated in their opposition that they do not plan to qualify her as a life
care planner: “Mrs. Beckwith is being called to testify only as a [v]ocational
[r]ehabilitation expert.” 28 Beckwith will be allowed to testify only as to the vocational
rehabilitation of Snider.
Defendants also challenge Beckwith’s testimony that Snider is underemployed and
that her work life expectancy is “at risk.” These concerns, however, pertain to the bases
and sources of the opinions. “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’s consideration.” 29 Beckwith’s testimony will
presumably be subject to vigorous cross examination by Defendants. “It is the role of the
adversarial system, not the court, to highlight weak evidence.” 30

R. Doc. 174 at 83.
R. Doc. 136-1 at 8.
28 R. Doc. 148 at 10.
29 Primrose, 382 F.3d at 562 (quoting United States v. 14.38 Acres of Land, More or Less Situated in Leflore
County, 80 F.3d 1074, 1077 (5th Cir.1996)) (emphasis in original).
30 Id.
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CONCLUSION
For the foregoing reasons;
Defendants’ motion in limine is GRANTED IN PART and DENIED IN PART
as set forth above.
New Orleans, Louisiana, this 9th day of June, 2016.
_____________ ________ _________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

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