Fabre v. Mega Transportation Services, LLC et al

Filing 105

RULING granting in part and denying in part 70 Motion in Limine to Exclude Expert Testimony. Signed by Judge James J. Brady on 07/23/2013. (SMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
BOBBY FABRE
CIVIL ACTION
VERSUS
NO. 11-800-JJB
ROYAL FREIGHT, LP AND MEGA
TRANSPORTATION SERVICES, LLC
RULING ON PLAINTIFF’S MOTION TO EXCLUDE EXPERT TESTIMONY
This matter is before the Court on a motion to exclude expert testimony filed by Plaintiff
Bobby Fabre (“Fabre”). (Doc. 70). Defendants Royal Freight, L.P. and Mega Transportation
Services, L.L.C. (collectively referred to as “Defendants”) filed an opposition. (Doc. 74). Fabre
filed a supplemental memorandum in support (Doc. 85) and a unilateral stipulation (Doc. 86)
indicating that he would not present evidence concerning carpal tunnel and/or double crush
syndrome. Defendants filed an opposition to the stipulation. (Doc. 95). This Court entertained
oral argument on July 23, 2013. The Court has jurisdiction pursuant to 28 U.S.C. § 1332. For the
reasons herein, the Court DENIES Plaintiff’s Motion in part and GRANTS Plaintiff’s Motion in
Part. (Doc. 70).
I.
Fabre filed this action for personal injuries sustained when Defendants’ employee,
Bennie Wilder1, while acting in the scope of his employment, rear-ended Fabre on Interstate 10
on or about August 7, 2011. (Doc. 1). The facts are undisputed and Defendants have stipulated to
liability in this matter. (Doc. 49). The only issues remaining for trial are damages and causation.
After the accident, Fabre began medical treatment with an orthopedic surgeon, Dr. David Wyatt.
In November of 2011, Dr. Wyatt diagnosed Fabre with L5-S1 and C6-7 disc bulges. (Doc. 70,
1

Wilder is not a party to this action.

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Ex. 7). On March 9, 2012, Fabre informed Defendants that Dr. Wyatt recommended disk
decompression surgery for Fabre. (Doc. 74, Ex. A). In April 2012, Fabre agreed to an
independent medical evaluation (“IME”), which was arranged by the Defendants to be
performed by neurosurgeon Dr. Kelly Scrantz. (Doc. 70, Ex. A). Fabre agreed on the condition
that Defendants would “stipulate not to subject Mr. Fabre to an orthopedic IME at a later date.”
(Id.). After Dr. Scrantz performed the IME, on May 21, 2012, Fabre had the recommended disk
decompression surgery. (Doc. 74).
On December 5, 2012, Dr. Wyatt diagnosed Fabre with “double crush syndrome in the
right upper extremity” and recommended carpal tunnel surgery. (Doc. 74, Ex. B). On December
12, 2012, Fabre informed Defendants that Dr. Wyatt recommended this surgery and indicated
that Fabre would “be happy to cooperate if you desire any additional presurgery evaluation
regarding his carpal tunnel surgery” on the condition that it would not interfere with the surgery.
(Doc. 74, Ex. C). At some point, Defendants informed Fabre that they had arranged an IME with
Dr. Meredith Warner, an orthopedic surgeon. On January 23, 2013, Fabre questioned why
Defendants wished to conduct this orthopedic IME, reminding Defendants that Fabre agreed to
see Dr. Scrantz on the condition that he would not be required to see an orthopedic surgeon at
Defendants’ request. (Doc. 70, Ex. C). However, Fabre asked what Dr. Warner intended to
evaluate so that Fabre could advise whether or not he would attend. (Id.). On January 24, 2013,
Defendants indicated that they had asked Dr. Warner to evaluate Fabre’s double crush syndrome
and the recommended carpal tunnel surgery. (Doc. 70, Ex. D). In response, Fabre indicated that
he would undergo the evaluation on January 25, 2013, on the grounds that Dr. Warner’s
evaluation would be limited in scope to just the double crush syndrome and the recommended
surgery. (Doc. 70, Ex. E).

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After Dr. Warner performed her evaluation, Dr. Warner submitted a 21-page report,
consisting of a records review, the history of the present illness, including past medical history,
medications, family history, social history, and an analysis of the examination performed, with
her assessment/opinion. (Doc. 70, Ex. F). Dr. Warner determined that Fabre has “multiple
biopsychosocial factors,” including the present litigation, long-term use of narcotics, social and
financial stressors, a “relatively lower education level,” depression, tobacco use, anxiety, and
“hypogonadism presumably from medications and/or depression.” (Id. at 18). Dr. Warner
concluded that these factors “reduce[] the chance of success with treatment and worse the
perception of pain.” (Id.). Dr. Warner also noted that there “has been no valid attempt to return
him to work despite the fact that this would be therapeutic for him . .. [and] his total
deconditioning began immediately after the injury and has continued to this date.” (Id.).
With respect to the double crush syndrome and the need for the surgery, Dr. Warner
noted that his symptoms “are extremely variable in nature, geography and intensity” to be able to
determine that these symptoms “all relate to one or two nerve roots suffering compromise in the
spine.” (Id. at 19). Dr. Warner further stated that carpal tunnel syndrome “rarely results from
trauma . . . [but if it did result] it is usually due to a compartment syndrome or fracture fragment
compressing the median nerve and immediate surgical intervention is warranted.” (Id.). Because
Fabre did not complain of these carpal tunnel symptoms for a significant period of time after the
accident, in Dr. Warner’s opinion, the accident was not likely to have caused the carpal tunnel.
With respect to double crush syndrome, Dr. Warner explained that “the double crush syndrome
is likely inappropriate for use regarding any sensory disturbances in carpal tunnel syndrome[.]”
(Id. at 20).

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Ultimately, Dr. Warner concluded that Fabre had “non-specific pain of a chronic nature
with significant biopsychosocial issues[,]” and that because his previous treatments have been
unsuccessful, this is “a strong predictor for his future potential outcomes from further
intervention such as a carpal tunnel release surgery.” (Id. at 20-21). Dr. Warner recommended a
return to work program instead of medications and surgeries.
II.
Admissibility of expert testimony is governed by Federal Rule of Evidence 702, which
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. Under Rule 702, the trial court functions as a gatekeeper and must determine
whether “an expert’s testimony both rests on a reliable foundation and is relevant[.]” Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993).
Fabre seeks to exclude the majority of Dr. Warner’s report and testimony on the grounds
that Dr. Warner is not qualified to testify as to Fabre’s mental/psychological state or his familial,
financial, or work conditions that Dr. Warner characterizes as “biopsychosocial issues.” Fabre
argues that because Dr. Warner is an orthopedic surgeon, she is not qualified to render an
opinion outside the scope of her expertise, but the majority of her report focuses on issues
unrelated to orthopedic surgery.
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Additionally, Fabre argues that her report should be limited just to her evaluation of the
double crush syndrome and the recommended double carpal tunnel syndrome release surgery for
two reasons. First, Fabre asserts that the parties agreed that Dr. Warner would only evaluate
these two issues. Second, Fabre objects to Dr. Warner’s review and summary of previous
medical opinions rendered by other physicians as needlessly cumulative and urges the Court to
exclude them under Federal Rules of Evidence 403. Because Fabre has already been evaluated
by numerous other doctors, Dr. Warner’s evaluation is cumulative and unnecessary.
Finally, Fabre argues that any evidence concerning his psychological state or his
financial, familial, and work situation is irrelevant and highly prejudicial, and should be excluded
pursuant to Federal Rules of Evidence 401 and 403. Fabre asserts that other experts, including a
rehabilitation counselor and a psychologist, have already assessed these issues, and Dr. Warner’s
report would confuse and unfairly prejudice the jury.
In opposition, Defendants argue that Dr. Warner’s testimony is relevant and reliable for
several reasons. First, Defendants contend that while the parties agreed that Dr. Warner’s IME
was to be limited to the double crush syndrome and carpal tunnel release surgery, physicians
need to consider a patient’s medical and social history in order to render a complete assessment.
(Doc. 74). Defendants assert that Dr. Warner needed to establish a foundation prior to forming
her opinions. Additionally, Defendants note that Fabre did not receive the present diagnosis until
fifteen months after the accident, and it would be unreasonable to expect Dr. Warner to “ignore
the fifteen months of medical treatment Fabre received from the time of the accident, and be
expected to provide an opinion as to the causation of his new diagnosis.” (Doc. 74, at 5).
Defendants argue that Dr. Warner should be allowed to explain how her IME was performed and
provide the jury with the path she took in forming her opinions.

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Defendants further argue that Dr. Warner’s testimony is not needlessly cumulative
because while Fabre had other examinations, Dr. Warner’s examination was the only one that
“independently address[ed] Fabre’s new diagnosis and surgical recommendation.” (Id. at 6).
Defendants contend that Dr. Warner’s testimony will assist the jury in understanding the
diagnosis and the need for the surgery, two issues that were not addressed by any other
physician.
Finally, Defendants argue that Dr. Warner considered multiple factors in formulating her
opinion and concluded that these “biopsychosocial issues” will affect “a patient’s perception of
pain and chances of successful treatment.” (Id. at 7). Defendants assert that these factors helped
form the bases of her opinion, and pursuant to Federal Rule of Evidence 703, an expert “may be
an opinion on facts or data . . . that the expert has been made aware of or personally observed.”
Fed. R. Evid. 703. “If experts in the particular field would reasonably rely on those kinds of facts
or data in forming an opinion on the subject, they need not be admissible for the opinion to be
admitted.” Id. See also Bauman v. Centex Corp., 611 F.2d 115, 1120 (5th Cir. 1980) (finding that
“the pertinent inquiry under Rule 703 is whether the facts are of a type reasonably relied on by
experts in the particular field.”).
III.
The Court finds that Dr. Warner’s report and testimony is permissible only to the extent
that she testifies specifically about the matters for which she was retained to examine – the
double crush syndrome and carpal tunnel. With respect to her opinions about the biopsychosocial
factors, the Court finds that this is unduly prejudicial and not relevant. Thus, the parties are
precluded from introducing her opinions as to anything that is not related to double crush
syndrome and carpal tunnel and the parties will be required to produce a redacted report.

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With respect to the Plaintiff’s unilateral stipulation that he will not present evidence
concerning double crush and/or carpal tunnel injury, the Court finds that this is not necessary in
light of this ruling. The jury should be permitted to hear the competing opinions concerning
double crush and/or carpal tunnel injury, and thus, Dr. Warner’s testimony is permitted only as to
these diagnoses.
Accordingly, Plaintiff’s Motion in Limine is DENIED in part and GRANTED in part.
(Doc. 70).

Signed in Baton Rouge, Louisiana on July 23rd, 2013.

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

JAMES J. BRADY, DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA
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