Barnett, Jr. v. National Continental Insurance Company et al

Filing 53

RULING denying 42 MOTION To Exclude Expert Testimony of Dr. Charles Kaufman filed by Delfin Deguzman, Sonic Express, LLC, National Continental Insurance Company. Signed by Judge John W. deGravelles on 1/8/2019. (SWE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
WAYNE BARNETT, JR.

C.A. NO.: 3:17-CV-153-JWD-EWD

VERSUS
NATIONAL CONTINENTAL INSURANCE
COMPANY, SONIC EXPRESS, LLC AND
DELFIN DEGUZMAN
RULING ON DEFENDANTS’ MOTION TO EXCLUDE
TESTIMONY OF DR. CHARLES KAUFMAN
Before the Court is Defendants’ Motion to Exclude Testimony of Dr. Charles Kaufman
(Doc. 42), by National Continental Insurance Company (“National”), Sonic Express, LLC,
(“Sonic”) and Delfin Deguzman (“Deguzman”) (“collectively “Defendants”). Plaintiff Wayne
Barnett, Jr. (“Barnett” or “Plaintiff”) opposes the motion. (Doc. 51.) For the following reasons,
the motion is denied.
BACKGROUND AND ARGUMENTS OF THE PARTIES
This case arises out of a motor vehicle collision between Plaintiff and Deguzman, who, at
the time of the collision, is alleged to have been working for Sonic. National is alleged to insure
Sonic and Deguzman. Liability and damages are contested. Pertinent to this motion is the extent
of injuries and damages suffered by Plaintiff. Plaintiff alleges that he suffered mild traumatic
brain injury (“TBI”). (Doc. 51 at 1-2.) In support of his contention, Plaintiff offers the testimony
of treating neurologist Charles Kaufman, M.D.
Defendants argue that Kaufman’s testimony should be excluded because his conclusion
that Plaintiff’s alleged brain injury was caused by the accident is not properly supported under
the principles announced in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

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Specifically, Defendants insist that his causation opinion is “unreliable, based on insufficient
facts, data and expertise.” (Doc. 42-1 at 1.)
Defendants contend that Kaufman’s conclusion that Plaintiff suffered TBI is not
sufficiently supported because, in part, it is based on an inaccurate history given by Plaintiff. (Id.
at 4.) Defendants argue that Kaufman “relied solely” on Barnett’s history that he struck his head
during the accident to support his finding that there was a “significant enough force or velocity
experienced by his body…to result in a brain injury.” (Id. at 4-5.) But, argue Defendants,
Plaintiff “did not strike his head during the accident.” (Id., at 4.)
In addition, Kaufman doesn’t know the speed of the vehicles, “admittedly has no training
in biomechanics” (Doc. 42-1 at 5) and thus, “fatal to his attempt to offer an opinion regarding
causation[,]… does not know the change in velocity required for a concussion…” (Id.) Next,
Defendant criticizes Kaufman’s testing (specifically, the NeuroTrax cognitive study and the
Diffusion Tensor Imaging (“DTI” studies) because neither can date the onset of the brain injury.
Because Barnett suffered a concussion when he was a young teenager and a collision with an
embankment in 2015, “Kaufman cannot conclusively link Mr. Barnett’s alleged traumatic brain
injury with the accident” in question. (Id., at 8.) He also questions the reliability of these
“controversial” tests. (Id., at 9.)
Plaintiff responds first by challenging Defendants’ understanding of the facts of the
accident and specifically Defendants’ “repeated false assertion…that Mr. Barnett did not strike
his head.” (Doc. 51 at 6, emphasis in original.) “Mr. Barnett specifically testified in his
deposition that he struck his head on the rearview mirror of his vehicle, knocking the mirror off
his windshield, and resulting in numerous cuts to his face.” (Id., at 6., citing Doc. 51-2 at 3-4.)
Further, argues Plaintiff, one can suffer a concussion from a “acceleration/deceleration

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movement (i.e. whiplash)” which can cause TBI. (Id., at 6-7, citing medical articles, n. 17, which
are attached as Docs. 51-9 and 51-10)
Plaintiff also defends Kaufman’s testing. DTI “has been tested and has a low error rate,
been subject[ed] to peer review and publication…and…is a generally accepted method for
detecting TBI.” Andrew v. Patterson Motor Freight, Inc., 2014 WL 5449732 (W.D. La. Oct. 23,
2014 at * 8-9) (Doherty, J) (citations omitted) (rejecting Daubert challenge to DTI related
testimony) .
More generally, Plaintiff maintains that a physician’s use of his patient’s history, clinical
findings, testing, medical literature and his experience is the normal and accepted methodology
used to support medical opinions on causation. (Doc. 51 at 8-9.) He argues that Defendants’
insistence that such an opinion must be supported by biomechanical expertise and analysis is
incorrect and unsupported by any case law. (Id., at 9.)
STANDARD
This purports to be a Daubert challenge based on the expert’s alleged failure to use an
accepted methodology as well as the opinion’s alleged lack of an adequate and correct factual
foundation. (Doc. 42 at 1-2, citing Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579,
113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993)). When Daubert is invoked, a district court may, but
is not required, to hold a hearing at which the proffered opinion may be challenged. Carlson v.
Bioremedi Therapeutic Sys., Inc., 822 F.3d 194, 201 (5th Cir. 2016). However, when no hearing
is held, “a district court must still perform its gatekeeping function by performing some type of
Daubert inquiry.” Id. “At a minimum, a district court must create a record of its Daubert inquiry
and ‘articulate its basis for admitting expert testimony.’” Id. (quoting Rodriquez v. Riddell
Sports, Inc., 242 F.3d 567, 581 (5th Cir. 2001)).

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The role of the trial court is to serve as the gatekeeper for expert testimony by making the
determination of whether the expert opinion is reliable. As the Fifth Circuit has held:
[W]hen expert testimony is offered, the trial judge must perform a screening
function to ensure that the expert's opinion is reliable and relevant to the facts at
issue in the case. Daubert went on to make “general observations” intended to
guide a district court's evaluation of scientific evidence. The nonexclusive list
includes “whether [a theory or technique] can be (and has been) tested,” whether
it “has been subjected to peer review and publication,” the “known or potential
rate of error,” and the “existence and maintenance of standards controlling the
technique's operation,” as well as “general acceptance.” The Court summarized:
The inquiry envisioned by Rule 702 is, we emphasize, a flexible
one. Its overarching subject is the scientific validity and thus the
evidentiary relevance and reliability-of the principles that underlie
a proposed submission. The focus, of course, must be solely on
principles and methodology, not on the conclusions that they
generate.
Watkins v. Telsmith, Inc., 121 F.3d 984, 988–89 (5th Cir. 1997) (citations omitted).
The cases following Daubert have expanded the factors and explained the listing is
neither all-encompassing nor is every factor required in every case. See, e.g., Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 143 (1997); Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir.
2004). Indeed, courts may look to other factors. Joiner, 522 U.S. at 146.
This Court has explained:
The admissibility of expert testimony is governed by Federal Rule of Evidence
702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., which provide that the
court serves as a gatekeeper, ensuring all scientific testimony is relevant and
reliable. This gatekeeping role extends to all expert testimony, whether scientific
or not. Under Rule 702, the court must consider three primary requirements in
determining the admissibility of expert testimony: 1) qualifications of the expert
witness; 2) relevance of the testimony; and 3) reliability of the principles and
methodology upon which the testimony is based.
Fayard v. Tire Kingdom, Inc., No. 09-171, 2010 WL 3999011, at *1, 2010 U.S. Dist. LEXIS
108845, at *2-3 (M.D. La. Oct. 12, 2010) (citations omitted) (relying on Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 1174 (1999)).
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The Court has broad discretion in deciding whether to admit expert opinion testimony.
See, e.g., Joiner, 522 U.S. at 138-39 (holding that appellate courts review a trial court's decision
to admit or exclude expert testimony under Daubert under the abuse of discretion standard);
Carlson, 822 F.3d at 199 (same); Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1050 (5th
Cir. 1998) (“Trial courts have ‘wide discretion’ in deciding whether or not a particular witness
qualifies as an expert under the Federal Rules of Evidence.”); Watkins v. Telsmith, Inc., 121 F.3d
984, 988 (5th Cir. 1997) (holding “[d]istrict courts enjoy wide latitude in determining the
admissibility of expert testimony”).
“Notwithstanding Daubert, the Court remains cognizant that ‘the rejection of expert
testimony is the exception and not the rule.’” Johnson v. Samsung Elecs. Am., Inc., 277 F.R.D.
161, 165 (E.D. La. 2011) (citing Fed. R. Evid. 702 Advisory Committee Note (2000 amend.)).
Further, as explained in Scordill v. Louisville Ladder Grp., L.L.C., No. 02-2565, 2003 WL
22427981, 2003 U.S. Dist. LEXIS 19052 (E.D. La. Oct. 24, 2003) (Vance, J.):
The Court notes that its role as a gatekeeper does not replace the traditional
adversary system and the place of the jury within the system. As the Daubert
Court noted, “[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.” The Fifth Circuit has added
that, in determining the admissibility of expert testimony, a district court must
defer to “‘the jury's role as the proper arbiter of disputes between conflicting
opinions. As a general rule, 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.’”
Id. at *3 (citations omitted) (relying on, among others, Rock v. Arkansas, 483 U.S. 44, 61, 107 S.
Ct. 2704, 97 L. Ed. 2d 37 (1987), and United States v. 14.38 Acres of Land, More or Less Sit. In
Leflore County, Miss., 80 F.3d 1074, 1077 (5th Cir. 1996) (quoting Viterbo v. Dow Chemical
Co., 826 F.2d 420, 422 (5th Cir. 1987))).

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The Supreme Court has recognized that not all expert opinion testimony can be measured
by the same exact standard. Rather, the Daubert analysis is a “flexible” one, and “the factors
identified in Daubert may or may not be pertinent in assessing reliability, depending on the
nature of the issue, the expert's particular expertise and the subject of his testimony.” Kumho,
526 U.S. at 150.
In that vein, the Fifth Circuit has concluded that “soft sciences” involve “necessarily
diminished methodological precision” when compared to other scientific disciplines like
mathematics and engineering. United States v. Simmons, 470 F.3d 1115, 1123 (5th Cir. 2006)
(citing and quoting Jenson v. Eveleth Taconite Co., 130 F.3d 1287 (8th Cir. 1997)).
In such instances, other indicia of reliability are considered under Daubert,
including professional experience, education, training, and observations. Because
there are areas of expertise, such as the “social sciences in which the research
theories and opinions cannot have the exactness of hard science methodologies”, .
. . trial judges are given broad discretion to determine “whether Daubert’s specific
factors are, or are not, reasonable measures of reliability in a particular case.”
Id. (citations omitted) (relying on Kumho Tire Co., 526 U.S. at 153 and Pipitone v. Biomatrix,
Inc., 288 F.3d 239, 247 (5th Cir. 2002)).
APPLICATION
First, Defendants do not challenge Kaufman’s expertise as a neurologist. The Court has
reviewed his curriculum vitae (Doc. 42-14) and finds him to be highly qualified. Dr. Kaufman
received his B.S. and M.D. degrees from Louisiana State University. He completed his residency
in neurology at LSU Medical Center and then finished a neurophysiology fellowship at Harvard
Medical School. Kaufman then taught at both Harvard Medical School and Brown University
after which he served as Chief of Neurology at St. Joseph’s Hospital in Providence, Rhode
Island. He then returned to private practice in Baton Rouge, La.

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The Court has carefully reviewed both the affidavit and the report of Dr. Kaufman and
find his opinions to be well supported using the standard methodology of a treating physician.
Treating doctors are routinely permitted to opine regarding the patient’s injuries and disability
that they form during the course of treatment. See, e.g., Cohen v. Lockwood, No. 02-2246, 2004
WL 763961 at *3 (D. Kan. April 8, 2004); Zanowic v. Ashcroft, No. 97 Civ. 5292, 52 Fed. R.
Serv. 3d 702, 2002 WL 373229 at *3 (S.D.N.Y. Mar. 8, 2002) (treating physician “can express
an opinion as to ‘the cause of any medical condition presented in a patient, the diagnosis, the
prognosis and the extent of any disability, if any, caused by the injury.” (quoting Shapardon v.
West Beach Estates, 172 F.R.D. 415, 416-17 (D. Haw. 1997)). See also, Maxwell v. Becker, No.
12 CV 00864, 2015 WL 4872137 at *3 (W.D.N.Y. Aug. 13, 2015); Ortega v. Chater, 933 F.
Supp. 1071, 1074-75 (S.D. Fla. 1996.) Generally, “the accepted diagnostic tool of examination
accompanied by physical history as related by the patient’ is sufficient for an expert witness
doctor to testify as to causation.” Rivera v. U.S., No. 15-cv-00021, 2017 WL 3393464 at *3
(W.D. Tex. Feb. 21, 2017) (quoting Thomas v. G&K Servs. Co., No. 01-1637, 2002 WL
34720493, at *1 (E.D. La. Aug. 16, 2002) (citing Cooper v. Carl A. Nelson & Co., 2011 F.3d
1008, 1020-21, (7th Cir. 2000).)
This is what Dr. Kaufman has done here, plus more. He utilized the patient’s history and
complaints in combination with examinations, clinical and radiologic testing, treatment, and
referrals to other specialists. In addition, he did research of medical literature and utilized his
considerable education, training and experience as a neurologist to reach his conclusions. In his
Affidavit, Dr. Kaufman explains in meticulous detail what he did and how he reached his
conclusions. (See Doc. 51-7, particularly ¶¶ 6 and 7.)

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Contrary to the suggestion by Defendants, there is no requirement that a neurologist also
have expertise in bio-mechanical engineering or accident reconstruction in order to opine as to
the nature and cause of his patient’s brain injury. Defendants have pointed this Court to no
authority for such a proposition. Dr. Kaufman says it well in his affidavit:
“A mathematical quantification of the forces experienced by a patient’s brain are
very rarely available to a medical doctor and the use of such information is not
generally accepted within the medical community as a basis for the diagnosis of a
concussion. Rather, the manner in which a patient’s brain reacts to a given event,
as described in paragraph 6 above, is the standard within the medical community
by which a concussion is diagnosed.” (Doc. 51-7 at 3, ¶ 8.)
Defendants argue that Kaufman’s opinion is tainted because he relied on Barnett’s history
of direct trauma to his head when, in fact there was no direct injury. (Doc. 42-1 at 4 (“…Mr.
Barnett did not strike his head during this accident…”).) Defendants’ contention is mystifying
and troubling in as much as Barnett clearly testified in deposition that his head and face struck
the rear-view mirror so hard that he knocked it off and suffered lacerations to the face in the
process. (Doc. 51-2 at 3-4.) Dr. Kaufman’s initial report records the facial lacerations as part of
his history taken from Barnett. (Doc. 51-3 at 1.)
Defendants complain that “Dr. Kaufman apparently ruled out two events from Mr.
Barnett’s history that could have caused his current symptoms: the concussion when he was a
young teenager, and a collision with an embankment that occurred…a year before the [subject
accident].” (Doc. 42-1 at 8.) It is clear from Dr. Kaufman’s report and affidavit that he was made
aware of these two events by Barnett and considered but rejected these in reaching his opinion
that the subject accident caused the TBI. See, e.g., Doc. 51-7 at ¶ 10.
Whether a medical causation expert reviewed a plaintiff’s medical history is important in
considering the reliability of his opinion and “failure to consider and exclude other potential
causes of [a plaintiff’s] injury before offering an opinion renders [medical causation expert]
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testimony unreliable.” McNabney v. Lab. Corp. of Am., 153 Fed. Appx. 293, 295 (5th Cir. 2005).
However, “a patient’s oral history is generally considered reliable.” Rivera v. United States., No.
15-cv-00021, 2017 WL 3393464 at *3 (W.D. Tex. Feb. 21, 2017) (quoting Viterbo v. Dow
Chem. Co., 826 F.2d 420, 423 (5th Cir. 1987). Furthermore, McNabney does not require the
expert to conduct “an exhaustive search that forces [the] expert ‘to disprove[] or discredit[] every
possible cause other than the one espoused by him’; but, an expert must be aware of the
plaintiff’s pertinent medical history.” McNabney, 54 Fed. Appx. at 295 (quoting Viterbo, 826
F.2d at 424). See also, Rivera at *4; Fos v. Wal-Mart Stores East, LP, No. 3:12cv735, 2015 WL
11117924 at *5 (S.D. Miss. June 2, 2015); Charles v. Sanchez, No.13-cv-00193, 2015 WL
808417 at *5 (W.D. Tex. Feb. 24, 2015).
Defendants argue that neither the NeuroTrax nor the DTI testing can identify the time
period when the TBI occurred and thus Dr. Kaufman has no basis upon which to tie the TBI to
the subject accident. (Doc. 42-1 at 1.) But this assumes that these two tests were the only bases
upon which Kaufman concluded that this accident caused Plaintiff’s TBI. This assumption is a
false one as is clear from Kaufman’s report and affidavit.
Defendants’ broader attack on Kaufman’s reliance on DTI is simply unsupported.
Furthermore, a host of other cases have specifically rejected Daubert challenges to the reliability
of DTI. In Andrew v. Patterson Motor Freight, Inc., No. 6:13CV814, 2014 WL 5449732 at * 9
(W.D. La. Oct. 23, 2014), the court concluded, “[i]n sum, the evidence submitted shows DTI has
been tested and has a low error rate; DTI has been subject to peer review and publication; and
DTI is a generally accepted method for detecting TBI.” (record citations omitted). See also,
Marsh v. Celebrity Cruises, Inc., No. 1:17-cv-21097, 2017 WL 6987718 at *4 (S.D. Fla. Dec. 15,
2017); Roach v. Hughes, No. 4:13-CV-00136, 2016 WL 9560306 at *3 (W.D. Ky. Mar. 9 2016);

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White v. Deere & Co., No. 13-cv-02173, 2016 WL 462960 at *4 (D. Colo. Feb. 8, 2016); Ruppel
v. Kucanin, No. 3:08 CV 591, 2011 WL 2470621 at *6-11 (N.D. Ind. June 20, 2011); Booth v.
Kit, Inc., Civ. No. 06-1219, 2009 WL 4544473 (D.N.M. Mar. 23, 2009).
CONCLUSION
In sum, the Court finds that Dr. Kaufman’s methodology in reaching his conclusions is
sound and appropriate. Accordingly, Defendants’ Motion to Exclude Testimony of Dr. Charles
Kaufman (Doc. 42) is DENIED.
Signed in Baton Rouge, Louisiana on the 8th day of January, 2019.

S

_______________________________________
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

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