Kidd v. Candy Fleet, LLC

Filing 52

ORDER & REASON granting #28 Motion in Limine to exclude the testimony of Dr. Arch Carson. Signed by Judge Sarah S. Vance on 11/23/2016. (mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DERMORIS KIDD

CIVIL ACTION

VERSUS

NO. 16-71

CANDY FLEET, LLC

SECTION “R” (3)

ORDER AND REASONS
Defendant Candy Fleet, LLC moves to exclude the proposed testimony
of plaintiff Dermoris Kidd’s expert witness Dr. Arch Carson. In support of its
motion, Candy Fleet argues that Kidd has failed to meet his burden to show
that Dr. Carson’s opinions are reliable under Federal Rule of Evidence 702
and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
Alternatively, Candy Fleet maintains that Kidd has failed to properly disclose
Dr. Carson’s opinions under Federal Rule of Civil Procedure 26. Because the
Court finds that Dr. Carson’s proposed testimony is unreliable under Rule
702 and Daubert, the Court grants Candy Fleet’s motion.

I.

BACKGROUND
A. Injury
Plaintiff Dermoris Kidd began working as a deckhand for defendant

Candy Fleet, LLC in March, 2014. 1 On November 1, 2014 Kidd was working
aboard one of Candy Fleet’s vessels, the M/V CANDY STRIPE, under Captain
Josiah Boudreaux. 2

Boudreaux assigned Kidd the task of cleaning the

CANDY STRIPE’s engine room using Aluma Brite, a cleaning solvent. 3
Boudreaux helped clean the engine room for a period of time, and then left
Kidd, who continued cleaning on his own. 4 After several hours in the engine
room, Kidd reported to Boudreaux that he felt ill. 5
The following day, Kidd visited Urgent Care of Morgan City in Morgan
City, Louisiana. 6

A doctor at Urgent Care diagnosed Kidd with (1)

“Respiratory Conditions due to Fumes and Vapors,” (2) Asthma, and (3)
Asthma with “Acute Exacerbation.” 7 Following treatment, Kidd was cleared
to “return to work with no restrictions.” 8

1
2
3
4
5
6
7
8

R. Doc. 23-1 at 5.
Id. at 1.
Id. at 2.
Id.
Id. at 3.
Id.; R. Doc. 19-5 at 21.
R. Doc. 19-5 at 22.
Id. at 23.
2

On February 19, 2015, approximately three months after the Aluma
Brite incident, Kidd was working on the M/V CANDY MACHINE, another
Candy Fleet vessel. 9 Kidd alleges that, shortly after accidentally inhaling
diesel fumes produced by the vessel’s engine, he was instructed to pull a
rope. 10 According to Kidd, he began pulling the rope, but quickly felt weak
and unable to breathe. 11 The following day, Kidd was treated at Teche
Regional Medical Center, diagnosed with bronchospasm and bronchitis, and
prescribed albuterol, prednisone, and zithromax. 12 Two days later, Kidd was
admitted as a patient at the Emergency Department of Providence Hospital
in Mobile, Alabama. 13 Kidd was diagnosed with Asthma and Expiratory
Wheezing, and advised to continue taking albuterol and zithromax. 14
Following his treatment at Teche Regional and Providence, Candy
Fleet referred Kidd to Dr. William Schulte, a pulmonologist. 15 In his initial
report, Dr. Schulte stated:
I am not sure what is going on, whether he has asthma or not.
The inhalation injury does not sound severe enough to have
caused this problem. I cannot explain the difficulty with the rope
this far out from the inhalation injury without problems in
9
10
11
12
13
14
15

R. Doc. 23-1 at 3.
R. Doc. 23-4 at 50.
Id.
R. Doc. 19-5 at 29.
R. Doc. 19-7 at 20-25
Id. at 21-22.
R. Doc. 23-1 at 4.
3

between. The nocturnal coughing could be asthma. I have told
him I am not sure whether he has reflux or asthma or both. 16
On May 6, 2015, Dr. Schulte stated that he felt Kidd had achieved maximum
medical improvement and did not need any further treatment. 17
Sometime after receiving this diagnosis from Dr. Schulte, Kidd visited
Dr. John Hamilton, a practitioner in the field of occupational medicine. 18
Dr. Hamilton disagreed with Schulte’s diagnoses, and instead diagnosed
Kidd with reactive airway dysfunction syndrome (RADS), a form of chronic
asthma caused by Kidd’s exposure to Aluma Brite. 19
On January 7, 2016, Kidd filed this suit. 20 In his Jones Act complaint,
Kidd alleges negligence, unseaworthiness, wrongful denial of maintenance
and cure, and wrongful termination. 21 Kidd seeks damages for bodily injury
and disfigurement, pain and suffering, and medical expenses. 22 Candy Fleet
disputes that exposure to Aluma Brite caused Kidd’s symptoms, and alleges
that Kidd concealed a history of lung problems—including a childhood
diagnosis of Asthma—when he applied to work for Candy Fleet.

16
17
18
19
20
21
22

R. Doc. 19-6 at 8.
Id. at 23.
R. Doc. 23-3 at 2.
Id. at 4,8.
R. Doc. 2.
Id. at 4-5.
Id. at 6.
4

B. Opinion of Dr. Arch Carson
Two days after Dr. Schulte stated that Kidd had achieved maximum
medical improvement, Kidd met with Dr. Arch Carson. 23 Dr. Carson is a
licensed physician, a board certified medical toxicologist, and an Assistant
Professor of Occupational Medicine and Environmental Sciences at the
University of Texas School of Public Health. 24 On May 14, 2015, Dr. Carson
sent Kidd a letter memorializing their meeting. 25
In the letter, Dr. Carson summarizes Kidd’s description of his own
medical history and the Aluma Brite incident. The letter states, in part:
You were in good health until this past winter, when you were
told to clean the engine room. . . . You said that you worked [with
Aluma Brite] for a period of 6-7 hours in an unventilated
enclosed space with no respiratory protection. You began almost
immediately to experience symptoms of throat and eye irritation
and you eventually had to leave the area due to shortness of
breath and chest tightness. 26
Dr. Carson goes on to describe Kidd’s self-reported symptoms, and, based on
this history, provides a “provisional[]” diagnosis:
Given Your [sic] exposure to AlumaBrite, your past and recent
medical history and symptom presentation, we have
provisionally given you the diagnosis chemical irritant induced

23
24
25
26

R. Doc. 28-4 at 1.
R. Doc. 28-5 at 1
R. Doc. 28-4 at 1-2.
Id. at 1.
5

asthma, although this diagnosis must be confirmed by laboratory
testing and response to appropriate treatment. 27
Dr. Carson states that “[i]f the provisional diagnosis is correct” he expects
Kidd’s symptoms to gradually improve over time. 28 Finally, Dr. Carson notes
that he “need[s] to obtain [Kidd’s] medical records from pre-exposure
physicals as well as urgent care, emergency department, and pulmonology
visits.” 29
Kidd has designated Dr. Carson as a “non-retained” expert witness. 30
In his disclosure to Candy Fleet, Kidd states that Dr. Carson is expected to
testify that:
Mr. Kidd experienced significant physical injuries, impairments,
pain, emotional distress and other physical and financial
damages and to testify regarding past and future medical
treatment and reasonable and necessary medical expenses as a
result of the injuries he sustained on the job. 31
The disclosure also notes that Dr. Carson’s letter memorializing his meeting
with Kidd has previously been produced to Candy Fleet. 32
Candy Fleet now moves to exclude Dr. Carson’s proposed testimony on
two grounds. First, Candy Fleet argues that Kidd has failed to meet his

27
28
29
30
31
32

Id. at 2 (emphasis omitted).
Id.
Id.
R. Doc. 32-2 at 7.
Id.
Id.
6

burden to show that Dr. Carson’s opinions are reliable under Federal Rule of
Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579
(1993). Second, Candy Fleet maintains that, because Dr. Carson intends to
testify regarding causation, he is required to produce an expert report in
accordance with Federal Rule of Civil Procedure 26(a)(2)(B)—and that Dr.
Carson’s failure to do so is grounds for exclusion. Finally, Candy Fleet argues
that even if Dr. Carson is held only to the disclosure standard of Rule
26(a)(2)(C), the May 14 letter is inadequate and exclusion is appropriate.
In response, Kidd argues that, as a treating physician, Dr. Carson is
held to the lower standard of 26(a)(2)(C) and that the May 14 letter satisfies
this limited obligation. Kidd does not address Candy Fleet’s argument that
Dr. Carson’s testimony is unreliable.
The Court need not reach the question of which Rule 26 disclosure
regime applies to Dr. Carson’s proposed testimony. The Court finds that the
proposed testimony is unreliable under Rule 702 and Daubert, and must
therefore be excluded regardless of whether Dr. Carson is a “retained” or
“non-retained” expert.

7

II.

LEGAL STANDARD
When expert testimony offered by one party is subject to a Daubert

challenge, the Court must act as a “gatekeeper” under Federal Rule of
Evidence 702. A district court has considerable discretion to admit or
exclude expert testimony under Rule 702. See Gen. Elec. Co. v. Joiner, 522
U.S. 136, 138-39 (1997); Seatrax, Inc. v. Sonbeck Int’l, Inc., 200 F.3d 358,
371 (5th Cir. 2000). Rule 702, which governs the admissibility of expert
witness testimony, provides:
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
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.
Fed. R. Evid. 702.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court
held that Rule 702 requires the district court to act as a gatekeeper to ensure
that “any and all scientific testimony or evidence admitted is not only
relevant, but reliable.” 509 U.S. at 589; see also Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 147 (1999) (clarifying that the Daubert
gatekeeping function applies to all forms of expert testimony). The Court’s
8

gatekeeping function thus involves a two-part inquiry into reliability and
relevance.
First, the Court must determine whether the proffered expert
testimony is reliable. The party offering the testimony bears the burden of
establishing its reliability by a preponderance of the evidence. See Moore v.
Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998). The reliability inquiry
requires the Court to assess whether the reasoning or methodology
underlying the expert’s testimony is valid. See Daubert, 509 U.S. at 592-93.
The aim is to exclude expert testimony based merely on subjective belief or
unsupported speculation. See id. at 590.
The Court in Daubert articulated a flexible, non-exhaustive, five-factor
test to assess the reliability of an expert’s methodology: (1) whether the
expert’s theory can be 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.
Id. at 593-95. The Supreme Court has emphasized, however, that these
factors “do not constitute a ‘definitive checklist or test.’” Kumho, 526 U.S. at
150 (quoting Daubert, 509 U.S. at 593). Rather, district courts “must have
9

considerable leeway in deciding in a particular case how to go about
determining whether particular expert testimony is reliable.” Id. at 152.
Courts have also considered whether experts are “proposing to testify about
matters growing naturally and directly out of research they have conducted
independent of the litigation, or whether they have developed their opinions
expressly for purposes of testifying,” Daubert v. Merrell Dow Pharms., Inc.,
43 F.3d 1311, 1317 (9th Cir. 1995), whether the expert has adequately
accounted for obvious alternative explanations, see Claar v. Burlington
N.R.R., 29 F.3d 499 (9th Cir. 1994), and whether the expert “is being as
careful as he would be in his regular professional work outside his paid
litigation consulting,” Sheehan v. Daily Racing Form, Inc., 104 F.3d 940,
942 (7th Cir. 1997).
Expert testimony “must be reliable at each and every step or else it is
inadmissible. The reliability analysis applies to all aspects of an expert’s
testimony: the methodology, the facts underlying the expert’s opinion, the
link between the facts and the conclusion, et alia.” Knight v. Kirby Inland
Marine Inc., 482 F.3d 347, 355 (5th Cir. 2007) (citation omitted). “Where
the expert’s opinion is based on insufficient information, the analysis is
unreliable.” Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 388 (5th
Cir. 2009).
10

In Joiner, the Supreme Court explained that “nothing in either
Daubert or the Federal Rules of Evidence requires a district court to admit
opinion evidence that is connected to existing data only by the ipse dixit of
the expert.” 522 U.S. at 146. Rather, “[a] court may conclude that there is
simply too great an analytical gap between the data and the opinion
proffered.” Id.; see also LeBlanc v. Chevron USA, Inc., 396 F. App’x 94, 98
(5th Cir. 2010).
If the Court is satisfied that the expert’s testimony is reliable, the Court
must then determine whether the expert’s analysis is relevant. The question
here is whether the reasoning or methodology “fits” the facts of the case and
will thereby assist the trier of fact to understand the evidence. See Daubert,
509 U.S. at 591. “[F]undamentally unsupported” opinions “offer[] no expert
assistance to the [trier of fact]” and should be excluded. Guile v. United
States, 422 F.3d 221, 227 (5th Cir. 2005) (citing Viterbo, 826 F.2d at 422).

III. DISCUSSION
As noted, the parties devote the bulk of their briefing to whether Dr.
Carson, as a treating physician, is excused from the disclosure requirements
of Federal Rule of Civil Procedure 26(a)(2)(B). But while the distinction
between treating physicians and retained experts is material to disclosure, it
11

is irrelevant to determining reliability under Rule 702. “Treating physicians
are no different than any other expert for purposes of Rule 702; before
proffering expert testimony, they must withstand Daubert scrutiny like
everyone else.” Tajonera v. Black Elk Energy Offshore Operations, L.L.C.,
No. 13-0550, 2016 WL 3180776, at *7 (E.D. La. June 7, 2016) (quoting
Higgins v. Koch Dev. Corp., 794 F.3d 697, 704 (7th Cir. 2015)); see also
Seymore v. Penn Mar. Inc., 281 F. App’x 300, 301 (5th Cir. 2008) (applying
Daubert analysis to treating physician); Pipitone v. Biomatrix, Inc., 288 F.3d
239, 244-245 (5th Cir. 2002) (same).
When treating physicians are offered to testify regarding the cause of
the plaintiff’s injuries, courts demand evidence that the physician has
considered and excluded other potential causes. See Harvey v. Novartis
Pharm. Corp., 895 F. Supp. 2d 1206, 1213 (N.D. Ala. 2012) (excluding
treating physician’s testimony as to cause of plaintiff’s illness where
physician “never offered a principled reason for ruling out” alternative
causes); Deutsch v. Novartis Pharm. Corp., 768 F. Supp. 2d 420, 473
(E.D.N.Y. 2011) (excluding physician that did not perform an “independent
differential diagnosis.”). For instance, in Higgins v. Koch Dev. Corp., 794
F.3d 697 (7th Cir. 2015), the Seventh Circuit considered allegations similar
to those in this case: the plaintiff, Higgins, alleged he developed RADS after
12

a one-time exposure to harmful chemicals at an amusement park. Higgins
offered his treating physician, Dr. Haacke, as an expert on the issue of
causation.

Id. at 705.

The court found that “Dr. Haacke essentially

diagnosed Higgins after listening to his own description of his symptoms and
the events at Holiday World . . . and after looking at the results (though not
the underlying data) of the pulmonary function study conducted by another
doctor. . . .” Id. Furthermore, the court found that Higgins made no showing
that Dr. Haacke had “systematically ‘rule[d] in’ and ‘rule[d] out’ potential
causes in arriving at her ultimate conclusion.” Id. On this record, the
appellate court concluded “that it was well within the district court’s
discretion to deem Dr. Haacke unqualified to proffer expert testimony.” Id.
Here Kidd’s effort falls short of even Higgins’ inadequate showing.
Unlike Dr. Haacke, who both met with her patient and reviewed a pulmonary
function study, Dr. Carson appears to have arrived at his diagnosis of
“chemical irritant induced asthma” without the benefit of performing or
reviewing a single medical test. 33 As with Dr. Haacke, there is no evidence
that Dr. Carson considered—much less excluded—other potential causes of
Kidd’s symptoms.

33

On this record, the Court cannot conclude that Dr.

R. Doc. 32-3 at 2.
13

Carson’s “testimony is based on sufficient facts or data” to survive the
Daubert inquiry.
Supporting this conclusion is the fact that Dr. Carson himself appears
to agree that his diagnosis is not ready for primetime. In his May 14 letter,
Dr. Carson states: “we have provisionally given you the diagnosis” of
chemical induced asthma. 34 He quickly qualifies that “this diagnosis must
be confirmed by laboratory testing and response to appropriate treatment.” 35
Dr. Carson further notes that “[i]f the provisional diagnosis is correct, we
expect gradual symptom improvement over time . . . .” 36 Finally, Dr. Carson
expresses a “need to obtain [Kidd’s] medical records from pre-exposure
physicals as well as urgent care, emergency department, and pulmonology
visits,” presumably to facilitate reaching a final, non-provisional diagnosis. 37
Kidd provides no evidence that any of these tests and record-reviews,
which Dr. Carson admits are required for a reliable diagnosis, were ever
performed. And even if Dr. Carson has since taken the necessary steps to
arrive at a more robust opinion, 38 Kidd’s failure to disclose these additional

Id. (emphasis added).
Id.
36
Id. (emphasis added).
37
Id.
38
The evidence before the Court suggests this is unlikely. In Kidd’s
deposition testimony, taken approximately one year after Dr. Carson’s letter,
Kidd suggests that he has not returned to see Dr. Carson. R. Doc. 31-3 at 56
14
34
35

bases for Dr. Carson’s opinion runs afoul of even Rule 26(a)(2)(C)’s limited
requirements.

See Fed. R. Civ. P. (a)(2)(C) (requiring disclosure of “a

summary of the facts and opinions to which the witness is expected to
testify.” (emphasis added)).
Finally, to the extent Kidd intends to offer Dr. Carson’s testimony as to
Kidd’s injuries, impairments, damages, or medical expenses the Court finds
that these opinions must be excluded as well. First, any such opinion would
be grounded in Dr. Carson’s unreliable diagnosis, and therefore unreliable
by extension.

Second, the May 14 letter provides no summary of any

opinions on these topics, and Kidd has therefore failed to meet his disclosure
obligation under either Rule 26(a)(2)(B) or (C).

(“Q. And it looks like you only treated with Dr Carson on one occasion. Was
there any reason for that or?
A. Well, because -- well, because at that time
uhmm, some of my family members had just moved here -- no, excuse me -had just moved there and I was going to stay with them for a while.
Q. Okay.
A. Because they needed help. So somebody else went in my
place, so, you know, I didn't have no reason, but to come on back.”)
15

IV.

CONCLUSION

For the forgoing reasons, the Court grants Candy Fleet, LLC’s motion
to exclude the testimony of Dr. Arch Carson.

23rd
New Orleans, Louisiana, this _____ day of November, 2016.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

16