Anderson v. Logiflex, Inc. et al

Filing 54

ORDER AND REASONS denying 47 Motion in Limine to partially exclude the expert report and testimony of Dr. Everett G. Robert. Signed by Judge Sarah S. Vance on 5/15/2018. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KELLY ANDERSON

CIVIL ACTION

VERSUS

NO. 16-16679

LOGIFLEX, INC., ET AL.

SECTION “R” (1)

ORDER AND REASONS
Before the Court is plaintiff’s motion in limine to partially exclude the
expert report and testimony of Dr. Everett G. Robert. 1 For the following
reasons, the Court denies the motion.
I.

BACKGROUND
This case arises out of a motor vehicle accident in St. Tammany Parish,

Louisiana on December 15, 2015.2 According to the complaint, Plaintiff Kelly
Anderson was driving in the right lane of the I-12 highway when her car was
struck by a truck driven by Defendant Gabriel Gutierrez.3 Plaintiff asserts
that Gutierrez is at fault for the collision because he entered the right lane
without yielding to the vehicles already traveling in that lane. 4 Plaintiff
allegedly suffered serious bodily injuries as a result of the accident.5

1
2
3
4
5

R. Doc. 47.
R. Doc. 1 at 3 ¶ 9.
Id. at 3 ¶¶ 9-11.
Id. at 3 ¶¶ 11-12.
Id. at 4 ¶ 13.

On November 29, 2016, plaintiff filed suit against defendants
Gutierrez, Logiflex, Inc., and American Inter-Fidelity Exchange (AIFE). 6
The complaint asserts that Gutierrez was acting within the course and scope
of his employment with Logiflex at the time of the accident. 7 AIFE is the
alleged insurer of Gutierrez and Logiflex. 8 This matter is set for a jury trial
to begin on June 11, 2018. 9 Plaintiff now moves to partially exclude the
independent medical exam report and testimony of defendants’ medical
expert, Dr. Everett G. Robert.10
II.

LEGAL STANDARD
Federal Rule of Evidence 702 provides that a witness “qualified as an

expert by knowledge, skill, experience, training, or education” may provide
opinion testimony when “scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue.” Fed. R. Evid. 702. To be admissible, Rule 702
requires that (1) the testimony be based on sufficient facts or data, (2) the

6
7
8
9
10

Id. at 1.
Id. at 4 ¶ 14.
Id. at 2 ¶ 5.
R. Doc. 28 at 3.
R. Doc. 47.
2

testimony be the product of reliable principles and methods, and (3) the
witness apply the principles and methods reliably to the facts of the case. Id.
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. 579, 589 (1993); see also Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147-48 (1999) (clarifying that the Daubert
gatekeeping obligation applies to all forms of expert testimony). The Court’s
gatekeeping function involves a two-part inquiry. First, the Court must
determine whether the expert testimony is reliable. The party offering the
testimony has the burden to establish reliability by a preponderance of the
evidence. See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir.
1998).

The Court must assess whether the reasoning or methodology

underlying the expert’s testimony is valid. See Daubert, 509 U.S. at 590. The
aim is to exclude expert testimony based merely on subjective belief or
unsupported speculation. See id. The Court’s inquiry into the reliability of
expert testimony is flexible and necessarily fact-specific. See Seatrax, Inc. v.
Sonbeck Int’l, Inc., 200 F.3d 358, 372 (5th Cir. 2000).
Second, the Court must determine whether the expert’s reasoning or
methodology “fits” the facts of the case and whether it will assist the trier of
3

fact to understand the evidence. See Daubert at 591. This is primarily an
inquiry into the relevance of the expert testimony.

See id; see also

Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003). Expert
testimony is unnecessary if the court finds that “the jury could adeptly assess
[the] situation using only their common experience and knowledge.” Peters
v. Five Star Marine Serv., 898 F.2d 448, 450 (5th Cir. 1990).
III. DISCUSSION
Dr. Robert is a board-certified neurosurgeon.11 On March 14, 2018, he
conducted an independent medical examination of plaintiff. 12 Dr. Robert
also reviewed plaintiff’s medical records, including x-ray and MRI images of
her spine. 13 In his report, Dr. Robert notes that the cervical spine MRI image
is of poor quality, and that he is “unable to visualize the neural foramen on
the standard T2 imaging.”14 Dr. Robert further states that “[i]t is difficult to
tell from suboptimal imaging whether or not any of this pathology causes any
neuroforaminal stenosis. However, it certainly does not cause any spinal

11
12
13
14

R. Doc. 51-1 at 1.
R. Doc. 47-4 at 1.
Id. at 3.
Id.
4

canal stenosis. Additionally, there are no acute findings on the cervical spine
MRI to suggest that there has been any recent trauma.”15
Plaintiff does not challenge Dr. Robert’s qualifications. She instead
seeks to exclude his opinion related to neuroforaminal stenosis as unreliable
because it is based on an MRI image of insufficient quality.16 But defendants
represent that the image at issue is an MRI that plaintiff’s treating physicians
requested and relied on over the course of plaintiff’s treatment.17 In general,
“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.” United States v. 14.38 Acres of Land,
More or Less Situated in Lefore County, Mississippi, 80 F.3d 1074, 1077 (5th
Cir. 1996). That Dr. Robert acknowledges the shortcomings of the MRI
image and limits his conclusions accordingly does not render his opinion
unreliable and inadmissible.

To the extent that plaintiff questions the

reliability of Dr. Robert’s opinion in light of suboptimal imaging, she may
raise those issues on cross-examination.
Plaintiff further argues that Dr. Robert’s testimony should be excluded
under Federal Rule of Evidence 403 because his opinion on neuroforaminal

15
16
17

Id. at 3-4.
R. Doc. 47-2 at 2-4, 6.
R. Doc. 51 at 1-2.
5

stenosis is ambiguous and its probative value is outweighed by the danger of
unfair prejudice, confusing the issues, and misleading the jury. 18

But

plaintiff does not identify any specific unfair prejudice beyond her
unsubstantiated assertion that Dr. Robert’s opinions are based on a partisan
and defense-biased review of the records.19

Plaintiff put her physical

condition in controversy by asserting that her injuries were caused by the
December 15, 2015 collision. See Schlagenhauf v. Holder, 379 U.S. 104, 119
(1964); see also Fed. R. Civ. P. 35(a). Defendants are entitled to present
evidence from their independent medical examination to contest plaintiff’s
assertions regarding her injuries. Further, plaintiff has made no showing
that Dr. Robert’s testimony is likely to confuse the issues or mislead the jury.
Accordingly, plaintiff’s motion is denied.
IV.

CONCLUSION
For the foregoing reasons, plaintiff’s motion in limine is DENIED.
15th
New Orleans, Louisiana, this _____ day of May, 2018.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
18
19

R. Doc. 47-2 at 4.
Id. at 1.
6