Mendoza v. Lafarge North America, Inc. et al
Filing
35
ORDER & REASONS: denying 16 Motion in Limine to Exclude the Medical Record Review and Trial Testimony of David W. Aiken, Jr., M.D. Signed by Judge Carl Barbier on 1/13/16. (sek)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KELLY MENDOZA
CIVIL ACTION
VERSUS
NO: 15-1257
LAFARGE NORTH AMERICA,
INC. ET AL.
SECTION: “J”(4)
ORDER & REASONS
Before the Court is a Motion in Limine to Exclude the Medical
Record Review and Trial Testimony of David W. Aiken, Jr., M.D.
(Rec. Doc. 16) filed by Plaintiff, Kelly Mendoza, and an opposition
thereto (Rec. Doc. 21) filed by Defendants, Lafarge North America
Inc. and National Union Fire Insurance Company of Pittsburgh, PA.
Having considered the motion and legal memoranda, the record, and
the applicable law, the Court finds that the motion should be
DENIED.
FACTS AND PROCEDURAL BACKGROUND
This litigation derives from an automobile accident that
occurred on October 24, 2014. (Rec. Doc. 1, at 2-3.) The accident
was between an automobile driven by Plaintiff and a cement-mixing
truck driven by a Lafarge employee. Id. at 2. The cement-mixing
truck was owned by Lafarge and insured by National Union. Id. at
3.
Following
the
accident,
Plaintiff
was
seen
by
three
neurosurgeons 1: Dr. Rand Voorhies, Dr. Andrew Todd, and Dr. Manish
Singh. (Rec. Doc. 16-1, at 3.) Ultimately, Dr. Singh performed
surgery on Plaintiff’s neck on April 16, 2015. (Rec. Doc. 16-3, at
3.)
On April 21, 2015, Plaintiff filed suit against Lafarge and
National
Union,
claiming
that
she
suffered
severe
personal
injuries as a result of the collision. (Rec. Doc. 1, at 4-5.) The
Complaint
alleges
that
the
Defendants’
negligence
caused
Plaintiff’s injuries. Id. at 3-4. The parties entered a stipulation
that Defendants are liable to Plaintiff for causing the accident.
(Rec. Doc. 9.)
Defendants engaged Dr. David W. Aiken, Jr., an orthopedic
surgeon, to review Plaintiff’s medical records and provide an
opinion on Plaintiff’s medical condition as well as whether the
accident in question caused the need for Plaintiff’s neck surgery.
(Rec. Doc. 21, at 2.) Dr. Aiken reviewed the medical records
related
to
Plaintiff’s
injuries
allegedly
sustained
in
the
accident on October 24, 2014, as well as medical records dating
back to an injury she allegedly sustained at work in 2009. Id. On
December 7, 2015, after reviewing Plaintiff’s medical records, Dr.
Aiken authored a “Medical Record Review.”
(Rec. Doc. 16-2.) In
his record review, Dr. Aiken concluded that Plaintiff’s neck
1
Defendants note that Dr. Todd is not a neurosurgeon but rather an orthopedic
surgeon. For purposes of the instant motion, this distinction is irrelevant.
2
surgery was not related to the accident caused by Defendants on
October 24. Id. at 7.
Plaintiff filed the instant Motion in Limine to Exclude the
Medical Record Review and Trial Testimony of David W. Aiken, Jr.,
M.D. (Rec. Doc. 16) on December 29, 2015. Defendants opposed the
motion on January 5, 2016. Although Plaintiff requested oral
argument, the motion is now before the Court on the briefs, as the
Court determined that oral argument was unnecessary.
PARTIES’ ARGUMENTS
Plaintiff contends that the opinions set forth in Dr. Aiken’s
“Medical Record Review” and any testimony arising from that record
review that might be offered at trial should be excluded under
Rules 403 and 702 of the Federal Rules of Evidence. (Rec. Doc. 161, at 1.) Plaintiff argues that Dr. Aiken’s opinions are based
exclusively on a defense-biased record review and are not only
prejudicial, but also unreliable because they are not founded upon
a
medically
sufficient
evaluation
of
Plaintiff’s
medical
condition. Id. First, Plaintiff claims that Dr. Aiken’s opinions
“fall squarely within the scope of Rule 403 because, being based
upon
shockingly
partial
information,
they
will
cause
unfair
prejudice, and they will also confuse and mislead the jury.” Id.
at 3. Next, Plaintiff argues that Dr. Aiken’s opinions should be
excluded because “the paucity of their underlying information
makes them unreliable.” Id. at 4. Plaintiff asserts that Dr.
3
Aiken’s exclusive reliance on written records, and his failure to
review any relevant X-rays, CT scans, or MRI images, or physically
examine
Plaintiff,
is
a
scientifically
and
medically
invalid
methodology. Id. at 4. In short, Plaintiff contends that Dr.
Aiken’s opinions, without having physically examined the Plaintiff
or reviewed her imagery, amount to unreliable, biased assumptions.
Id. at 7.
In opposition, Defendants contend that Dr. Aiken is highly
qualified to provide an opinion on Plaintiff’s medical condition
and
whether
the
accident
in
question
caused
the
need
for
Plaintiff’s neck surgery. (Rec. Doc. 21, at 11.) Defendants argue
that the record review performed by Dr. Aiken to formulate his
opinions and conclusions is proper, valid, and reliable. Id. at 5,
11. According to Defendants, the methodology of physicians relying
upon the medical records of other physicians in rendering their
opinions is sound and well accepted in the scientific community.
Id. at 5. Defendants claim that Plaintiff’s motion merely attacks
the factual merit of Dr. Aiken’s opinions. Id. at 4. Defendants
argue that the fact that Dr. Aiken did not physically examine
Plaintiff or view Plaintiff’s imagery himself is a topic for crossexamination, not a basis for exclusion. Id. at 10.
Moreover, Defendants contend that they were deprived of the
opportunity for an independent medical examination that would have
allowed for a physical examination of Plaintiff prior to her
4
surgery because Plaintiff did not file the instant lawsuit until
five days after she underwent surgery. Id. at 2. Defendants argue
that a post-surgery physical examination would not have provided
sufficient information about the cause of Plaintiff’s injury. Id.
at 3. Thus, Defendants maintain that their sole option was to have
a medical doctor review Plaintiff’s medical records. Id.
LEGAL STANDARD
“Relevant evidence is admissible unless [the Constitution, a
federal
statute,
the
Federal
Rules
of
Evidence,
or
a
rule
prescribed by the Supreme Court] provides otherwise.” Fed. R. Evid.
402. Rule 403 serves as an exception to the admissibility of
relevant evidence. It provides that “[t]he court may exclude
relevant
evidence
if
its
probative
value
is
substantially
outweighed by a danger of . . . unfair prejudice, confusing the
issues,
misleading
the
jury,
undue
delay,
wasting
time,
or
needlessly presenting cumulative evidence.” Fed. R. Evid. 403. A
district court “has broad discretion to weigh the relevance,
probative value, and prejudice of the evidence in determining its
admissibility under Rule 403.” French v. Allstate Indem. Co., 637
F.3d 571, 578 (5th Cir. 2011) (quoting United States v. Allard,
464 F.3d 529, 534 (5th Cir. 2006)).
Federal Rule of Evidence 702 imposes a special “gatekeeping”
obligation upon a trial judge to ensure that expert testimony or
evidence is both relevant and reliable. Under Rule 702, a witness
5
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).
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
6
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.”).
DISCUSSION
The issue the Court must determine is whether Dr. Aiken’s
reliance on written medical records, without reviewing diagnostic
imagery or physically examining Plaintiff, is a scientifically
valid methodology. It is well accepted that an expert witness may
offer opinions “that are not based on firsthand knowledge or
observation.” Daubert, 509 U.S. at 592. For example, a physician
bases his diagnosis on information from numerous sources and of
considerable variety, including reports and opinions from other
doctors. Fed. R. Evid. 703 advisory committee’s note to 1972
7
proposed rules. Thus, expert witnesses may base their opinions on
written medical records.
In
the
instant
case,
Dr.
Aiken’s
methodology
is
scientifically valid. Numerous courts have held that an expert
witness need not personally examine a plaintiff in rendering his
opinion. See, e.g., Carroll v. Morgan, 17 F.3d 787, 790 (5th Cir.
1994) (holding that doctor was qualified under Daubert to give an
expert opinion as to causation based on his review of plaintiff's
medical records, the coroner's records, and a broad spectrum of
published materials); Walker v. Soo Line R. Co., 208 F.3d 581, 591
(7th Cir. 2000) (admitting opinion testimony from a physician who
performed a records review without an examination, noting that
“[t]he
lack
physician’s]
of
an
examination
testimony
.
.
inadmissible”);
.
does
not
Sementilli
render
v.
[the
Trinidad
Corp., 155 F.3d 1130, 1134 (9th Cir. 1998) (admitting expert
testimony
of
physician
who
had
not
personally
examined
the
plaintiff, noting that the physician’s opinions and inferences
“were based on his review of [the plaintiff’s] medical records, as
well as his knowledge, experience, training and education.”);
Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 807 (3d Cir.
1997) (explaining that in the context of medical testimony, “it is
perfectly acceptable, in arriving at a diagnosis, for a physician
to rely on examinations and tests performed by other medical
practitioners” and the fact that the physician did not himself
8
perform a physical examination does not necessarily diminish his
opinion); Woods v. Abrams, No. 06-757, 2008 WL 4950149, at *1 (W.D.
Pa. Nov. 17, 2008) (“The case law is clear that an expert witness
need not personally examine a plaintiff, and that an examination
of the pertinent medical records is ‘perfectly acceptable.’”).
Furthermore,
similar
arguments
against
Dr.
Aiken’s
methodology have been rejected by other courts. For example, in
Breitenbach v. Stroud, the Louisiana First Circuit Court of Appeal
held that Dr. Aiken’s testimony was admissible under Daubert even
though he did not physically examine the plaintiff. 959 So. 2d
926, 936 (La. App. 1 Cir. 2007). In Breitenbach, Dr. Aiken was
called by the defendants to offer his expert medical opinion
regarding the plaintiff’s injuries and their relationship, if any,
to a motor vehicle accident based on his review of the plaintiff’s
medical records. Id. In concluding that Dr. Aiken’s testimony was
“clearly admissible,” the court noted that the jury was aware that
Dr. Aiken did not examine the plaintiff and that Dr. Aiken did not
have the benefit of one of the plaintiff’s MRI scans or the report
of a physician who saw the plaintiff. Id. Further, Dr. Aiken was
subjected
to
rigorous
cross-examination
on
his
testimony
by
counsel for the plaintiff. Id. Therefore, the court found no error
in allowing the jury to evaluate Dr. Aiken’s testimony, determine
the weight to be given to it, and to thereby accept or reject Dr.
9
Aiken’s opinions. Id. The same reasoning applies in the instant
case.
Dr. Aiken’s testimony is reliable. He is a board-certified
orthopedic surgeon, and as such, possesses expertise in the area
of physical injuries. Although he did not physically examine the
Plaintiff, he did review Plaintiff’s medical records pertaining to
her neck dating back to 2009. Dr. Aiken’s examination of the
pertinent medical records is an acceptable methodology; the lack
of a physical examination does not render Dr. Aiken’s testimony
inadmissible.
Plaintiff is free to challenge Dr. Aiken’s testimony on crossexamination. See United States v. Wen Chyu Liu, 716 F.3d 159, 168
(5th Cir. 2013) (“[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.”).
Plaintiff’s
argument
that
her
three
treating neurosurgeons disagree with Dr. Aiken’s opinion as to the
relationship between Plaintiff’s neck surgery and the October 2014
accident does not disqualify Dr. Aiken as an expert; conflict among
expert testimony is “grist for the jury.” Carroll, 17 F.3d at 790.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion in Limine to
Exclude the Medical Record Review and Trial Testimony of David W.
10
Aiken, Jr., M.D. (Rec. Doc. 16) is DENIED.
New Orleans, Louisiana, this 13th day of January, 2016.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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