Trinity Medical Services, LLC et al v. Merge Healthcare Solutions, Inc.

Filing 145

RULING denying 83 Merge Healthcare Solutions, Inc's Motion in Limine to Exclude Opinions and Testimony of Plaintiffs' Expert Harold Asher brought by defendant, Merge Healthcare Solutions, Inc. Signed by Judge John W. deGravelles on 03/19/2020. (KDC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TRINITY MEDICAL SERVICES,
L.L.C., ET AL
CIVIL ACTION
VERSUS
NO. 17-CV-592-JWD-EWD
MERGE HEALTHCARE SOLUTIONS,
INC.
RULING
Before the Court is Merge Healthcare Solutions, Inc.’s Motion in Limine to Exclude
Opinions and Testimony of Plaintiffs’ Expert Harold Asher brought by defendant Merge
Healthcare Solutions, Inc. (“Defendant” or “Merge”). (Doc. 83.) It is opposed by plaintiffs
Trinity Medical Services, L.L.C. (“Trinity”), Performance Labs, L.L.C. (“Performance Labs”),
and Prestige Worldwide Leasing, L.L.C. (“Prestige”) (collectively, “Plaintiffs”). (Doc. 96.)
Defendant also filed a reply brief in support of its motion. (Doc. 131.) For the following reasons,
the motion is DENIED.
BACKGROUND
Trinity is a Louisiana holding company and the sole owner of Performance Labs and
Prestige. Performance Labs was a laboratory located in Mandeville, Louisiana that performed
toxicology tests. Prestige provided employee leasing and laboratory management services to
Performance Labs and other labs, including Pathway Diagnostics, LLC (“Pathway”). Blake
Bourque is the only owner of all three Plaintiff companies. Pathway, which is not a party to this
suit, is a laboratory owned by insiders of Trinity that performs toxicology tests and is located in
Mississippi.
Merge is a developer and manufacturer of clinical laboratory software systems, including
the Merge LISTM software (“Merge LIS Software”) at issue in this case.
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As a toxicology laboratory, Performance Labs was subject to the Clinical Laboratory
Improvement Act (“CLIA”). To be able to run tests on live patient samples, Performance Labs
needed to be certified by the Centers for Medicare and Medicaid Services (“CMS”). CMS’s
certification was based on compliance with regulatory and statutory mandates to ensure patient
health and safety. In June 2015, Performance Labs failed an inspection by the Louisiana Health
and Hospitals Department (“LHHD”) and CMS. The state and federal regulators found
“condition-level noncompliance” that “posed an immediate jeopardy to patients.” (July 31, 2015
Letter from CMS to Performance Labs at 4, Doc. 77-7.) As a result of Performance Lab’s
noncompliance, it was required to submit plans of correction to state and federal regulators and
agreed to cease testing patients on two sets of equipment. (Id. at 5.) During an on-site visit in the
fall of 2015, state and federal regulators again concluded that Performance Labs “demonstrated
continued systemic and pervasive problems through the laboratory which has led to findings of
continued immediate jeopardy.” (December 23, 2015 Letter from CMS to Performance at 4,
Doc. 77-9 at 4.)
Due to these findings, Performance Labs was sanctioned by the state and federal
regulators and as a result:
(a) barred from accepting live patient samples (Doc. 77, December 30, 2015 Emails from
CMS at 3);
(b) precluded from accepting payments from Medicare and Medicaid (Id.);
(c) required to notify all clients who ordered patient testing that the results were not accurate
or reliable (Doc. 77, January 12, 2016 Plan of Correction at 20, 46); and
(d) had their CLIA certificate suspended, prohibiting Performance Labs from performing
patient testing. (Doc. 77, January 14, 2016 Email from CMS to Performance Labs.)
Facing this pressure from federal and state regulators and hoping to get Performance
Labs back into compliance, Trinity negotiated with and on January 11, 2016, signed a Sale Order
with Merge to lease the Merge LIS Software to use at Performance Labs and Pathway. As a

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result of the sanctions, Performance Labs also reduced their equipment and personnel to a
barebones operation, employing only a technical supervisor and a lab technician (M. Spruill
Dep., at 117:17-19, Doc. 77-16.)
Also, in January 2016, Blake Bourque’s brother in law, Kyle Mouton, along with
Trinity’s in-house counsel, Phil Martinez, opened Pathway in Mississippi. (K. Mouton Dep., at
17:19-22, 18:22-20:3, Doc. 77-22.) Pathway is not owned by Trinity. (K. Mouton Dep., at 18:2419:7, Doc. 95-19; B. Bourque Dep., at 127-28, Doc. 95-12.) Most of Performance Lab’s staff and
equipment was moved to Pathway. (Mouton Dep. at 120:3-15, 30:9-10, 91:2-12, Doc. 77-22.)
Trinity provided Pathway with start-up capital to pay expenses as well as management and IT
services. (Id. at 106:12-19, 87:9-88:3.) Trinity allowed Pathway to use the Merge LIS Software.
(Id.) In June 2016, Pathway began testing patient samples and billing clients using the Merge
LIS Software. (M. Spruill Dep., at 154:23-155:5, 217:11-15, Doc 77-16.)
However, to prove compliance and become recertified under the CLIA, Performance
Labs only performed validation and establishment studies until August 24, 2016, when CMS
allowed Performance Labs to begin doing screening tests. (August 24, 2016 Email from CMS to
Performance Labs, Doc. 77-28.) During this time, it was under heightened scrutiny from federal
and state regulators. (C. Howell Dep., at 188:10-189:2, Doc. 95-5.) Performance Labs began
with a small panel of tests and had an agreement with Pathway to reference any tests not offered
for $85/sample. (B. Bourque Dep., at 150:20-21, 203:18-204:11, 406:5-6, Doc. 95-12; R. Poe
Dep., 125:12-22, 144:2-145:21, Doc. 95-2.) On January 17, 2017, CMS permitted Performance
to start conducing confirmatory testing. (October 14, 2016 Email from CMS to Performance
Labs, Doc 77-29.) On January 20, 2017, Performance Labs began accepting patient samples
from one clinic. (M. Spruill Dep. at 189:8-19, Doc. 77-16.)

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In February 2017, Performance Labs identified an issue with the tracking of quality
control data in the Merge LIS Software and voluntarily ceased patient testing. (March 6, 2017
Correspondence from Performance Labs to CMS, Doc. 77-32.) Performance Labs formulated a
“work around” for the issue and indicated to CMS that the issue did not cause Performance Labs
or Pathway to submit any incorrect testing results. (Id.) In March 2017, Performance Labs also
reported other issues with the Merge LIS Software to CMS. (March 17, 2017 Email from CMS
to Performance Labs, Doc. 77-33.) Despite these reported issues with the Merge LIS Software, in
August 2017, Performance Labs’ suspension was lifted, it was recertified under the CLIA, and
could bill Medicare and Medicaid following a successful onsite inspection in June 2017 by state
regulators. (January 24, 2017 Email between CMS and Performance Labs, Doc. 77-30; August 9,
2017 Correspondence from CMS, Doc. 77-34.)
Plaintiffs allege that the Merge LIS Software contained numerous defects but focus on
two alleged defects, the Duplicate Container Defect and the Trojan Horse Defect. The Duplicate
Container Defect allegedly resulted in the Merge LIS Software creating duplicate container
numbers for patients. Therefore, Plaintiffs maintain that when the Duplicate Container Defect
occurred, the software created duplicate records for a single toxicology test, which eventually
could result in the software deleting both entries in error. Plaintiffs claim that this compromised
laboratory reliability and testing accuracy because it increased the risk that the testing laboratory
would fail to perform the requested toxicology test. The Trojan Horse Defect resulted in
passwords and other security information being discoverable on Google. As such, Plaintiffs
assert that the evidence shows that Plaintiffs were not able to use the Merge LIS Software and be
HIPAA compliant. Defendant’s expert witness testimony controverts that the alleged defects
were present in the Merge LIS Software installed at Performance Labs.

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Plaintiffs allege that “Performance Labs worked with Merge for months to get these
defects resolved but they remained unresolved until 2018. These defects prevented Performance
Labs from reopening its laboratory given the level of regulatory scrutiny Performance Labs was
under. Ultimately, Performance Labs was unable to resume full testing operations and service its
debts, and in mid-2017 the entity closed.” (Doc. 96 at 2.) Plaintiffs hired Harold Asher “to
calculate the losses suffered due to their inability to resume operations and the loss of the
business caused by the problems inherent in Merge’s software.” (Id.)
SUMMARY OF ARGUMENTS OF THE PARTIES
Defendants complain that Asher “assum[es] without any analysis that [Defendant] caused
all of plaintiffs’ purported damages” (Doc. 83 at 1); he “does not consider whether there were
any defects in the Merge LIS” that caused Plaintiffs’ damages or whether any of Plaintiffs’
damages were “caused by anything Merge did or did not do.” (Doc. 83-1 at 4.) He “blindly
relies on unsupported information from plaintiffs and the unreliable opinions of plaintiffs’ other
experts…”1 (Doc. 83 at 1.) He fails to independently verify the data provided by Plaintiffs and
Plaintiffs’ other experts. (Doc. 83-1 at 1.) In sum, Asher “fails to employ a reliable
methodology.” (Doc. 83-1 at 2.)
Plaintiffs respond that Asher’s “ ‘methodology’ [for calculating lost profits] is well
accepted within the field of damages calculation and was accepted by the Louisiana Supreme
Court just last year and cited in the very book on which Merge’s expert relies.” (Doc. 96 at 1.)
Asher “examined Performance Labs’ actual financial performance in 2015” and “applied a
discounted cash flow (‘DCF’) model to calculate the profits Performance Labs would have
generated had it been able to resume testing in October 2016.” (Id. at 2.) The DCF model is,

Defendant filed separate Daubert motions challenging the opinions and testimony of Plaintiffs’ other experts Larry
Small (Doc. 81) and Chris Harol (Doc. 82).
1

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argue Plaintiffs, “a widely-accepted method of valuation. (Id. at 6, citing River House Partners,
LLC v. Grandbridge Real Estate Capital LLC, No. 15-00058, 2017 WL 4269838 at *3 (M.D. La.
Sept. 26, 2017) vacated upon settlement, No. 15-00058, 2018 WL 813903 (M.D. La. Feb. 9,
2018).)
In gathering his data, Asher “worked with” and “relied on other experts with specific
experience in the toxicology industry—Larry Small and Chris Harol—to certify the revenues and
expenses that Performance Labs could have achieved from 2016 forward.” (Id. at 3.) He
“performed extensive due diligence including: detailed analysis of Performance Labs’ general
ledgers and bank statements containing historical expenses, revenue and samples tested on a
monthly basis” as well as having “lengthy” and “extensive” discussions with Small and Harol.
(Id. at 8.) “Merge’s remaining challenges,” contend Plaintiffs, “are at best cross-examination
material, and are not a basis to exclude” Asher’s testimony. (Id. at 1.)
In its reply, Defendant argues that “it is undisputed that Asher’s opinions regarding
Performance Labs’ projected profits are largely based on the opinions of Larry Small and Chris
Harol” and Defendant disputes that Asher worked closely with these experts. (Doc. 131 at 1.)
Defendant reiterates that Asher failed to review Small’s and Harol’s figures to confirm their
accuracy and, “because he ‘failed to conduct any independent research to determine the
reliability of his assumptions,” his testimony should be excluded. (Id. at 2, quoting JRL Enters.,
Inc. v. Procorp Assocs., Inc., No. 01-2893, 2003 WL 21284020 at *8 (E.D. La. June 3, 2003)). It
insists that Asher’s “failure independently to verify the data and opinions—i.e. his blind reliance
—renders his methodology unreliable.” (Id. at 3) (emphasis in original). With respect to Asher’s
opinion that Merge caused these damages, Defendant maintains that this is merely an assumption
for which Asher provides no support and therefore it must be excluded. (Id. at 4.)

6

STANDARD
Pursuant to Federal Rule of Evidence 702, “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 the rule’s preconditions are met. Defendant’s motion is a Daubert challenge based
principally on Asher’s failure to use an accepted methodology, and his opinions’ alleged lack of
an adequate factual foundation. See Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579
(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 Rodriguez v. Riddell Sports, Inc., 242 F.3d 567, 581
(5th Cir. 2001)).
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 sufficiently 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 [Supreme] 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) (internal citations omitted).
7

Cases following Daubert have expanded upon these factors and explained that Daubert’s
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, 142 (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.
As 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-BAJ-SCR, 2010 WL 3999011 at *1 (M.D. La. Oct.
12, 2010) (internal citations omitted) (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
147 (1999)).
This Court has broad discretion in deciding whether to admit expert opinion testimony.
See, e.g., Joiner, 522 U.S. at 138-39 (appellate courts review a trial court’s decision to admit or
exclude expert testimony under Daubert under the abuse of discretion standard); Watkins, 121
F.3d at 988 (“District courts enjoy wide latitude in determining the admissibility of expert
testimony.”); 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.”).
“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.:
8

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.’”
No. Civ. 02-2565, 2003 WL 22427981 at *3 (E.D. La. Oct. 24, 2003) (Vance, J.) (internal
citations omitted) (relying on, among others, Rock v. Arkansas, 483 U.S. 44, 61 (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)).
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, cited with approval in Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir.
2002).
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)
(quoting Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1297 (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. (internal citations omitted) (relying on Pipitone, 288 F.3d at 247).
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ANALYSIS
Asher’s Qualifications
Defendant does not challenge Asher’s qualifications. His qualifications are set forth at
Doc. 83-17 at 24-26 and the Court finds that he is well qualified in the area tendered.
Methodology
While Defendant couches his concern in terms of Asher’s methodology, it is really
complaining about the sufficiency of the facts and data utilized and relied upon by Asher.
General Elec. Capital Business Asset Funding Corp. v. S.A.S.E. Military, Ltd., No. 03-CA-189,
2004 WL 5495590 * 5 (W.D. Tex. Oct. 21, 2004). (“Courts should not [be] lured by arguments
disguised as Daubert challenges that actually attack the weight of the expert testimony, not its
admissibility.”); In re Katrina Canal Breaches Consolidated Litigation, No. 05-4182, 10-866,
2012 WL 4328354 (E.D. La. Sept. 20, 2012) (Motions “predominantly based on attacks
concerning the underlying facts upon which each opinion s based … [are] not contemplated
under a Daubert challenge.”)
As Plaintiffs point out, Asher “examined Performance Labs’ actual financial performance
in 2015” and “applied a discounted cash flow (‘DCF’) model to calculate the profits Performance
Labs would have generated had it been able to resume testing in October 2016.” (Doc. 96 at 2-3.)
The Court agrees with Plaintiffs that the DCF model is “a widely accepted method of valuation.”
River House Partners, LLC v. Grandbridge Real Estate Capital LLC, No. 15-00058, 2017 WL
4269838 at *3 (M.D. La. Sept. 26, 2017) vacated upon settlement, No. 15-00058, 2018 WL
813903 (M.D. La. Feb. 9, 2018) (citing Nerco Oil & Gas, Inc. v. Otto Candies, Inc., 74 F.3d
667, 669-70 (5th Cir. 1996); see also, Hunters Run Gun Club v. Baker, No. 17-176, 2019 WL
2357365 at *3 (M.D. La. June 4, 2019).

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In its reply, Defendant does not address Plaintiffs’ argument regarding Asher’s use of the
DCL model but instead returns to its real concern, what it terms as “Asher’s failure
independently to verify the data and opinions, i.e. his blind reliance” on the data and opinions
provided by Performance Labs, Small and Harol. (Doc. 131 at 3, emphasis in original.) The
Court finds that Asher’s methodology, i.e. his use of the discounted cash flow model, is an
acceptable methodology. The issue of the sufficiency and reliability of the underlying data relied
upon by Asher is addressed in the next section.
The Sufficiency of Facts and Data Relied Upon
Defendant’s criticism of Asher’s analysis focuses on what it terms the unreliable,
unsupported and speculative assumptions which support Asher’s calculations and conclusions.
The Court disagrees. As this Court said in Nkansah v. Martinez,
[E]xperts are not prohibited from relying on assumptions when reaching their
opinions. Barnes v. Commerce & Industry Insurance Company, No. 11-0041, 2013
WL 6145309 at *2, (W.D. La. Nov. 21, 2013) (citing Daubert, 509 U.S. at 589;
Kuhmo Tire, 526 U.S. at 153-54; Nova Consulting Grp., Inc. v. End'g Consulting
Servs., Ltd., 290 Fed.Appx. 727, 732-33 (5th Cir. 2008)(holding that an expert's
opinion was not rendered unreliable merely because he made a number of
assumptions)). Indeed, experts frequently make assumptions upon which their
opinions rest. “As a general rule, questions related to the bases and sources of an
expert's opinions affect the weight to be assigned that opinion rather than its
admissibility and should be left for the jury's consideration.” United States v. 14.3
Acres of Land More Or Less Situated in Lefore County, Ms., 80 F.3d 1074, 1077
(5th Cir. 1996) (quoting Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir.
1987)); see also Tyler v. Union Oil Co. of Cal., 304 F.3d 379, 392-93 (5th Cir. 2002
(holding that a party's objection that the expert's self-created database was
unreliable did not affect admissibility)); Naquin v. Elevating Boats, LLC, No. 104320, 2012 WL 1664257, at *4 (E.D. La. May 11, 2012); St Joseph Abbey v.
Castille, No. 10-2717, 2011 WL 2182046, at *1 (E.D. La. June 3, 2011) (“ ‘The
reliability of data underlying an expert's opinion goes to the weight of this evidence,
but should not serve as a basis for its exclusion.”) (quoting Gen. Elec. Capital Bus.
Asset Funding Corp. v. S.A.S.E. Military, Ltd., No. 03-189, 2004 WL 5495590, at
*4 (W.D. Tex. Oct. 21, 2004)); Imperial Trading Co. v. Travelers Property and
Casualty Co. of America, No. 06-4262, 2009 WL 2356292, *3 (E.D. La. July 28,
2009); Southwire Co. v. J.P. Morgan Chase & Co., 258 F. Supp. 2d 908, 935 (W.D.
Wis. 2007) (“the alleged errors and inconsistencies are grounds for impeaching the
credibility of the experts and the reliability of their ultimate finding; however,
11

mistakes and miscalculations are not grounds for excluding evidence.” (citing
Daubert, 509 U.S. at 596)).
The most appropriate place to challenge the assumptions made by an expert is at
trial on cross-examination and with countervailing expert testimony.
No. 15-CV-00646, 2017 WL 2798520 *4 (M.D. La. June 28, 2017).
While Defendant complains that the data relied on by Asher is insufficient, “[a]s 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.” United States v. 14.38 Acres of Land More Or Less Situated in Lefore County,
Miss., 80 F.3d at 1077 (quoting Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir.
1987)); see also Imperial Trading Co. v. Travelers Property Cas. Co. of America, No. 06-4262,
2009 WL 2356292 at *3 (E.D. La. July 28, 2009). Furthermore, “[m]atters left for the jury’s
consideration include the alleged miscalculations, erroneous assumptions, and inconsistencies
that plaintiffs object to.” Imperial Trading, 2009 WL 2356292 at *3 (citing Southwire Co. v. J.P.
Morgan Chase & Co., 258 F. Supp.2d 908, 935 (W.D. Wis. 2007) (“the alleged errors and
inconsistencies are grounds for impeaching the credibility of the experts and the reliability of
their ultimate findings; however, mistakes and miscalculations are not grounds for excluding
evidence.” (citing Daubert, 509 U.S. at 596)).
In terms of the sufficiency of data needed to survive challenge, “[t]he word ‘sufficient’
signifies that the expert may properly base her opinion on something less than all the pertinent
facts or data.” 29 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 6268 (b) (2d ed. 1987) “As one Court of Appeals has stated, trial judges are gatekeepers, not
armed guards.” Id. at § 6268.2 (citing Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling Co.,
161 F.3d 77, 86 (1st Cir. 1998); see also, Guild v. General Motors Corp., 53 F. Supp. 2d 363
(W.D. N.Y. 1999) (“[T]rial judges acting as gatekeepers under Daubert must not assume ‘the
12

role of St. Peter at the gates of heaven, performing a searching inquiry into the depth of an expert
witness's soul’ and thereby usurp ‘the ageless role of the jury’ in evaluating witness credibility
and weight of the evidence.”) (quoting McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1045 (2d
Cir. 1995)). As the Court in General Elec. stated, “Experts should be excluded only if their
testimony is so fundamentally unsupported that it cannot possibly help the factfinder.” 2004 WL
5495590 at *5, citing Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir. 1987).
Defendant urges that Asher relies, in large part, on data provided by Plaintiffs’ other two
experts and that Asher did not independently verify the accuracy of the data provided. (Doc. 82-1
at 9.)2 As this Court said in National Union Fire Insurance Co. v. Smith Tank & Steel, Inc:
Consultation with other experts is entirely permissible under Rule 703. Callidus
Techs., 2003 WL 26118097, at *2 (citing Janopoulos v. Harvey L. Walner &
Assocs., Ltd., 866 F.Supp. 1086, 1095 (N.D.Ill.1994)) (stating that Rule 703
“allows an expert to rely on information that would otherwise not be admissible
including hearsay evidence”); see also id. (citing Janopoulos, 866 F.Supp. at 1095)
(“An expert may even rely on information supplied by another expert witness.”).
An expert can rely upon otherwise inadmissible evidence as long as it is of a type
“reasonably relied upon by experts in the particular field.” Fed.R.Evid. 703. See
also, Monsanto Co. v. David, 516 F.3d 1009, 1015–1016 (5th Cir.2008) (finding
that expert could rely upon a report prepared by someone else). The purpose of
allowing experts to rely on another expert's opinions is that “an expert cannot be an
expert in all fields, and it is reasonable to expect that experts will rely on the opinion
of experts in other fields as background material for arriving at an opinion.”
Concerned Area Residents for the Environ. v. Southview Farm, 834 F.Supp. 1422,
1436 (W.D.N.Y.1993).
“It is common in technical fields for an expert to base an opinion in part on what a
different expert believes on the basis of expert knowledge not possessed by the first
expert.' “ In re: Genetically Modified Rice Litigation, 666 F.Supp.2d 1004, 1033
(E.D.Mo.2009) (quoting Dura Auto. Sys. Of Ind., Inc. v. CTS Corp., 285 F.3d 609,
613 (7th Cir.2002).
An expert may rely on any facts or data “of a type reasonably relied upon by experts
in the particular field,” including facts, data, and opinions that are otherwise
inadmissible. Fed.R.Evid. 703. The modern view recognizes that experts often rely
Defendant filed separate Daubert motions challenging Small’s opinions. (Doc. 81) and those of Harol (Doc. 83.) In
separate rulings, the Court denied those motions. (Docs. 143 and 144.)
2

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on facts and data supplied by third parties. See, Gussack Realty Co. v. Xerox Co.,
224 F.3d 85, 94 (2d. Cir.2000). This includes relying on analyses performed by
one's assistants. See, e.g., McReynolds v. Sodexho, 349 F.Supp.2d 30, 36–37
(D.D.C.2004) (admitting expert's opinions based on statistical analyses run by
assistants who wrote and understood the computer programming); Derrickson v.
Circuit City Stores, Inc., No. 95–3296, 1999 WL 1456538, at *20 (D.Md. Mar. 19
1999) (same).
The term “data” also is intended to encompass the reliable opinions of other experts.
Fed.R.Evid. 702 Advisory Committee Notes to 2000 Amendments; see also, Mason
v. Safeco Ins. Co., No. 4:09–cv–1081, 2010 WL 3341582 at *8 (E.D.Mo. Aug. 23,
2010) (“[a]n expert may rely on the reliable opinion of another expert in forming
his own opinion”). Courts recognize that an expert may rely on the conclusions and
opinions reached by another expert who performed forensic testing. See Johnson,
277 F.R.D. at 166 (permitting expert to rely on conclusions from forensic testing
conducted by other experts in products liability case).
No. 3:11-00830, 2014 WL 5794952 at *4 (M.D. La. Nov. 6, 2014).
Defendant relies on JRL Enters., Inc. v. Procorp. Assocs., Inc., No. 01-2893, 2003 WL
21284020 (E.D. La. June 3, 2003) for the proposition that an expert’s opinion should be
prohibited from testifying where the expert “failed to conduct any independent research to
determine the reliability of his assumptions.” (Doc. 82-1 at 8.) This is a gross overreading of the
JRL case. In distinguishing JRL, the court in Legier and Matherne, APAC v. Great Plains
Software, Inc., No. 03-278, 2004 WL 1488597 (E.D. La. June 30, 2004), stated:
This Court finds the facts of JRL Enterprises distinguishable from those presented
here. JRL Enterprises does not support defendant’s theory that an expert cannot
rely on his client’s self-serving projects. Rather, Judge Fallon’s ruling holds that an
expert should not blindly rely on the projections of a third party when that third
party disavows the reliability of those projections himself.
2004 WL 1488597 at *3; see also Hunters Run Gun Club v. Baker, No. 17-176, 2019 WL
2357365 (M.D. La. June 4, 2019).
As in Legier, JRL is distinguishable here. The data Defendant complains about (the
general ledger for Performance Labs for 2015 and an Excel spreadsheet reflecting Performance

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Lab’s profits and loss data on an accrual basis for 2015), which came from the CPA firm Asher
and Myers, LLC., was not disavowed by Performance Labs or the CPA firm.
Furthermore, both Small and Harol are experts in a field different than Asher. As stated
earlier, “an expert cannot be an expert in all fields, and it is reasonable to expect that experts will
rely on the opinion of experts in other fields as background material for arriving at an opinion.”
Concerned Area Residents for the Environ. v. Southview Farm, 834 F.Supp. 1422, 1436
(W.D.N.Y.1993). While Defendant and its expert may disagree with and challenge the data, this
is a matter of weight rather than admissibility and is more appropriately addressed at trial.
Nor can Defendant take comfort from Hunt v. McNeil Consumer Healthcare, 297 F.R.D.
268, 275 (E.D. La. 2014) (“[E]xpert testimony based solely or primarily on the opinions of other
experts is inherently unreliable.”) Here, Asher clearly did his own extensive review of records
and financial information of both Performance Labs and Trinity Management as well as various
depositions, pleadings and correspondence, some 20 items. (Doc. 83-17 at p. 2-3.) He did a
comparison of data generated by other experts with Performance Labs’ financial data for 2015.
(Id. at ¶ 17-18.) He and/or members of his firm reviewed data with Plaintiff’s other expert Chris
Harol in the preparation of his opinions. (See, e.g. Doc. 83-20 at 41:2-46:10, 53:12-54:13.) In
short, the record belies Defendant’s claim that Asher “relied blindly” on Plaintiffs’ other experts.
Defendant takes issue with Asher’s assumption that the damages he calculates were
caused “as a result of the improper actions of…Merge in this matter” (Doc. 83-1 at 12 (quoting
Doc. 83-17 at 6); see also Doc. 83-20 at 10:19-14:3, and 89:23-90:25), since Asher did no
independent assessment of causation. Here, the Court agrees with Judge Dick in Hunters Run
Gun Club v. Baker, where she states:
Defendants argue that causation is a necessary prerequisite for damages and Asher
“performed no independent investigation into the factual assertion provided by
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Duplessis and failed to establish a causal connection between Defendants’ action
and the Plaintiffs’ alleged damages.” Asher explained in his deposition that
“causation is an assumption of mine that it does exist. Causation is not required in
the calculation.” Causation is a question of fact for the trier of fact to determine. If
the trier of fact finds causation lacking, the question of damages is not reached.
Merely assuming causation for purposes of reaching the damages calculation does
not render the calculation unreliable.
2019 WL 2357365 at * 3.
Here also, the issue of causation will be decided by the jury. Asher does not purport to
opine relative to the Merge LIS software and what role, if any, it had in causing Plaintiffs’
damages, nor will he be allowed to. But, as in Hunters Run Club, the fact that Asher assumed
causation for purposes of his calculations “does not render the calculation unreliable.” (Id.)
CONCLUSION
For the foregoing reasons, is Merge Healthcare Solutions, Inc.’s Motion in Limine to
Exclude Opinions and Testimony of Plaintiffs’ Expert Harold Asher (Doc. 83) brought by
defendant, Merge Healthcare Solutions, Inc., is DENIED.
Signed in Baton Rouge, Louisiana, on March 19, 2020.

S
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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