Nassri et al v. Inland Dredging Company

Filing 168

ORDER AND OPINION DENIED IN PART AND GRANTED IN PART 102 Motion in Limine to Exclude the Testimony and Report of Dr. Curtis Partington filed on behalf of defendant Inland Dredging Company. Signed by Judge Stanwood Duval, Jr on 1/23/2013. (swd)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

FAYEZ NASSRI & JAMES MORRIS

CIVIL ACTION

VERSUS

NO. 11-853

INLAND DREDGING COMPANY

SECTION “K”(1)

ORDER AND OPINION

Before the Court is the “Motion in Limine to Exclude the Testimony and Report of Dr.
Curtis Partington” filed on behalf of defendant Inland Dredging Company (Doc. 102). Having
reviewed the pleadings, memoranda, and relevant law, the Court, for the reasons assigned, denies
the motion in part and grants it in part.
Dr. Curtis Partington is a board certified neuroradiologist. Defendant seeks to exclude
portions of Dr. Partington’s testimony contending that to the extent that he interprets CT scans
and MRIs of Mr. Nassri’s brain the same as other radiologists or neuroradiologists, his testimony
is cumulative. Additionally, relying on Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), defendant seeks to exclude those portions of Dr.
Partington’s report and testimony which express his conclusions as to medical causation as being
outside the scope of his expertise.
The case at bar is a bench trial. As Judge Barbier noted in Thompson v. Rowan
Companies, Inc., 2007 WL 724646 (E.D. La. March 6, 2007):
. . . the purpose of [a] Daubert motion is “to ensure that only
reliable and relevant expert testimony is presented to the jury.”
Rushing v. Kansas City Southern Ry. Co,, 185 F.3d 496, 506 (5th
Cir. 1999) (superseded by rule on other grounds), citing Daubert v.
Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 590-93, 113

S.Ct. 2786, 125 L.Ed.2d 469 (1993). Thus, “[m]ost of the
safeguards provided for in Daubert are not as essential in a case
such as this where the district judge sits as the trier of fact in place
of a jury.” Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000).
“Daubert requires a binary choice- admit or exclude-and a judge
in a bench trial should have discretion to admit questionable
technical evidence, though of course he must not give it more
weight than it deserves.” SmithKline Beecham Corp. v. Apotex
Corp., 237 F.Supp. 2d 1011, 1042 (N.D. Ill. 2003).
Thus, because this is a bench trial, the objectives of Daubert are no longer implicated.
“Furthermore, ‘vigorous 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.’” Deville v. Comar Marine Corp., 2009 WL 1870896 (E.D. La. June
25, 2009), quoting Daubert, 509 U.S. at 596.
Based on the foregoing case law and the fact that the Court is not persuaded that Dr.
Partington’s testimony concerning medical causation of Mr. Nassri’s claimed injuries is outside
the scope of Dr. Partington’s expertise because he does not treat patients, the Court DENIES the
motion to the extent that it seeks to exclude Dr. Partington’s testimony under Daubert.
Nor at this time does the Court find that Dr. Partington’s testimony is cumulative.
Because the precise testimony offered by plaintiff to establish his claimed injuries and the
causation of those injuries is not yet known, the Court cannot conclude that Dr. Partington’s
testimony is cumulative.
The Court does however conclude that, absent a stipulation by the parties, the report of
Dr. Partington is not admissible. Accordingly, defendant’s motion in limine is denied in part

and granted in part.

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New Orleans, Louisiana, this 23rd day of January, 2013.

STANWOOD R. DUVAL, JR.
UNITED STATES DISTRICT JUDGE

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