Ashford et al v. Wal-Mart Stores East, LP
Filing
70
ORDER granting Defendant's Daubert Motion 57 to Exclude Plaintiff's Treating Physician, Dr. John McCloskey's, Expert Testimony Regarding Vocational Disability. Signed by District Judge Halil S. Ozerden on 12/21/2012 (HM)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
ROSA ASHFORD, and
OTIS ASHFORD
v.
PLAINTIFFS
Civil No. 1:11-cv-57-HSO-JMR
WAL-MART STORES, LP
DEFENDANT
ORDER GRANTING DEFENDANT’S DAUBERT MOTION TO EXCLUDE
PLAINTIFF’S TREATING PHYSICIAN, DR. JOHN MCCLOSKEY’S,
EXPERT TESTIMONY REGARDING VOCATIONAL DISABILITY
BEFORE THE COURT is Defendant Wal-Mart Stores, LP’s Daubert Motion
[57] to Exclude Plaintiff’s Treating Physician, Dr. John McCloskey’s, Expert
Testimony Regarding Vocational Disability. Plaintiff has filed a Response [63].
After considering pleadings on file, the record, and all relevant legal authorities,
the Court finds that Defendant’s Motion [57] should be granted.
I. FACTS AND PROCEDURAL HISTORY
This case arises from an alleged slip and fall, which occurred on March 15,
2009, at Defendant’s Wal-Mart store in Pascagoula, Mississippi. Plaintiff Rosa
Ashford contends that she injured her back when she slipped and fell on a puddle of
rainwater. Pl.’s Compl. [1-2] at pp. 2, 5-6. She alleges the rainwater was leaking
from a roof or air conditioning duct. Id. at p. 2. Plaintiffs have designated Ms.
Ashford’s treating neurosurgeon, Dr. John McCloskey, as an expert witness. Pls.’
Designation of Experts [6] at p. 1. On March 1, 2012, Plaintiffs filed a
Supplemental Designation of Experts [41], providing that Dr. McCloskey’s expert
testimony would encompass the following:
Dr. McCloskey will testify as to the Plaintiff’s injuries to
her back and the subsequent surgery performed due to this
incident, as outlined in his medical reports attached hereto.
Dr. McCloskey will further testify as to the medical
treatment he provided to the Plaintiff. Dr. McCloskey will
further testify that the Plaintiff’s injuries and subsequent
medical treatment were causally related to this incident.
Dr. McCloskey will further testify as to Plaintiff’s
impairment and disability rating along with any work
restrictions and future medicals. Dr. John McCloskey will
testify that Plaintiff is permanently and totally disabled
from all gainful employment and that it is a direct result of
this accident. Dr. McCloskey will further testify that the
Plaintiff has a 15% permanent partial physical impairment
to the body as a whole along with any work restrictions and
future medical needs.
Pls.’ Supp. Designation of Experts [41] at p. 1.
Dr. McCloskey stated in a December 2011 Progress Note in Ms. Ashford’s
medical records:
It was in August 2011 that I felt that she had reached
maximum medical improvement and had a 15% permanent
partial physical impairment to the body as a whole and was
permanently limited to some kind of sedentary or very light
type work. I think additionally, from the standpoint of
Social Security Disability, that she’s totally and
permanently disabled.
Dr. McCloskey’s Progress Notes [58-1], Ex. A to Def.’s Mem. [58] in Supp. of Mot. [57]
to Exclude.
Dr. McCloskey elaborated on this Progress Note at his deposition. He stated his
opinion that Ms. Ashford is “not total[ly] permanently disabled” for purposes of
workers’ compensation, but that she is totally and permanently disabled for purposes
of Social Security disability, because “she’s not going to be able to find work” within her
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physical limitations and restrictions, due to “her educational background, her pain
complaints, her weight, her – the economy, the whole thing.” Dep. of John McCloskey,
M.D. [58-3] at pp. 15-17, Ex. C to Def.’s Mem. [58] in Supp. of Mot. [57] to Exclude.
Dr. McCloskey concedes that he is not a vocational expert and that he has not
performed a search to determine whether jobs within Ms. Ashford’s physical
limitations are available. Id. at p. 17.
II. DISCUSSION
A.
Legal Standard
The court must decide any preliminary question about whether an expert
witness is qualified. FED. R. EVID. 104(a). “In so deciding, the court is not bound by
evidence rules, except those on privilege.” Id. Whether a proposed expert should be
permitted to testify is case, and fact, specific. Hodges v. Mack Trucks Inc., 474 F.3d
188, 194 (5th Cir. 2006).
The admissibility of expert evidence 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
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(d)
the expert has reliably applied the principles and
methods to the facts of the case.
FED. R. EVID. 702. The party offering the expert must prove by a preponderance of
the evidence that the proffered testimony satisfies Rule 702. Hodges, 474 F.3d at
194 (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142 (1999)).
The Court functions as a gatekeeper and ensures that an expert is properly
qualified, and that his testimony is both reliable and relevant. Curtis v. M&S
Petroleum, Inc., 174 F.3d 661, 668 (5th Cir. 1999)(relying on Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 590-93 (1993)); see United States v. McMillan, 600 F.3d
434, 456 (5th Cir. 2010). “District courts enjoy wide latitude in determining the
admissibility of expert testimony . . . .” Hodges, 474 F.3d at 194.
“A district court should refuse to allow an expert witness to testify if it finds
that the witness is not qualified to testify in a particular field or on a given subject.”
St. Martin v. Mobil Exploration & Producing U.S., Inc., 224 F.3d 402, 412 (5th Cir.
2000). “Differences in expertise bear chiefly on the weight to be assigned to the
testimony by the trier of fact, not its admissibility.” Huss v. Gayden, 571 F.3d 442,
452 (5th Cir. 2009)(citing Daubert, 509 U.S. at 596).
To be reliable, an expert opinion must be based on sufficient facts and data,
and be the product of reliable principles and methods. FED. R. EVID. 702(b) and (c).
Otherwise, it is “‘unsupported speculation or subjective belief.’” Johnson v. Arkema,
Inc., 685 F.3d 452, 459 (5th Cir. 2012)(citing Daubert, 509 U.S. at 590). “The court
should ‘make certain that an expert, whether basing testimony upon professional
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studies or personal experiences, employs in the courtroom the same level of
intellectual rigor that characterizes the practice of an expert in the relevant field.’”
Hodges, 474 F.3d at 194 (citing Kumho, 526 U.S. at 152). Courts consider the
following non-exclusive list of factors when conducting the reliability inquiry:
(1) whether the theory or technique has been tested; (2) whether the
theory or technique has been subjected to peer review and publication;
(3) the known or potential rate of error of the method used and the
existence and maintenance of standards controlling the technique’s
operation; and (4) whether the theory or method has been generally
accepted in the scientific community.
Johnson, 685 F.3d at 459 (citing Daubert, 509 U.S. at 593-94).
B.
Analysis
Defendant argues that Dr. McCloskey’s expert testimony should be excluded
to the extent that he seeks to offer his opinion that Ms. Ashford is “100%
vocationally disabled and unemployable.” Def.’s Mem. [58] in Supp. of Mot. to
Exclude [57] at p. 2. It bases its Motion upon Dr. McCloskey’s admission that he is
not a vocational expert, and that he did not perform a job search to determine
whether jobs are available within Ms. Ashford’s physical limitations. Id. at p. 9.
Defendant argues that Dr. McCloskey’s testimony in this regard is outside the
scope of his expertise, not based on sufficient facts or data, and not the product of
reliable principles and methods. Id. Defendant also submits that Dr. McCloskey’s
opinion is inconsistent with his medical opinion that Ms. Ashford has a fifteen
percent permanent partial physical impairment and is capable of performing light
sedentary work. Id. at pp. 8-9.
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Plaintiffs respond by highlighting Dr. McCloskey’s medical education and
accomplishments as a neurosurgeon. Pls.’ Resp. [63] at pp. 2-3. Plaintiffs do not
explain how Dr. McCloskey’s medical expertise qualifies him to opine that Ms.
Ashford is totally and permanently unemployable, particularly in light of his
acknowledgment that she is capable of performing “sedentary or very light type
work.” Plaintiffs do not identify the facts or data that Dr. McCloskey relied on or
the principles and methods that he used in reaching this opinion. Based upon the
deposition testimony of Dr. McCloskey that has been submitted, his opinion
appears to be based upon his general experience with patients who have been
awarded permanent total Social Security disability benefits and simultaneously
denied permanent total workers’ compensation disability benefits. Dep. of John
McCloskey, M.D. [58-3] at pp. 15-16. It also appears to be based upon his
perception that Ms. Ashford will not be able to find employment, due to “other
realities” such as her age, educational background, pain complaints, weight, and
the economy. Id. at pp. 30-31.
It is not apparent that Dr. McCloskey’s experience as a neurosurgeon
qualifies him to make Social Security and workers’ compensation disability benefit
determinations. It is even less apparent that his medical expertise qualifies him to
opine that Ms. Ashford is totally and permanently unemployable based on factors
such as her age, weight, educational background, and the economy. Dr.
McCloskey’s opinions in this regard “simply lack[] the foundation and reliability
necessary to support expert testimony.” Viterbo v. Dow Chem. Co., 826 F.2d 420,
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424 (5th Cir. 1987). “Without more than credentials and a subjective opinion, an
expert’s testimony that ‘it is so’ is not admissible.” Id. Dr. McCloskey’s conclusion
that Ms. Ashford is permanently and totally unemployable does not comport with
the reliability requirements of Fed. R. Evid. 702, and should be excluded as
impermissible ipse dixit testimony. Kumho, 526 U.S. at 157. For the same reason,
Dr. McCloskey’s opinion that Ms. Ashford will likely be awarded permanent total
Social Security disability benefits but not permanent total workers’ compensation
disability benefits should also be excluded.
III. CONCLUSION
Plaintiffs have not proven by a preponderance of the evidence that Dr.
McCloskey’s opinion that Ms. Ashford is permanently and totally unemployable
meets the reliability requirements of Fed. R. Evid. 702. They have also not proven
by a preponderance of the evidence that Dr. McCloskey’s opinion that Ms. Ashford
will likely be awarded permanent total Social Security disability benefits but not
permanent total workers’ compensation disability benefits is reliable. Dr.
McCloskey’s opinions, in this regard, should be excluded at trial.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, Defendant WalMart Stores, LP’s Daubert Motion [57] to Exclude Plaintiff’s Treating Physician, Dr.
John McCloskey’s, Expert Testimony Regarding Vocational Disability, is
GRANTED. Dr. John McCloskey’s opinion that Plaintiff Rosa Ashford is
permanently and totally unemployable will be excluded at trial. Dr. McCloskey’s
opinion that Ms. Ashford will likely be awarded permanent total Social Security
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disability benefits but not permanent total workers’ compensation disability
benefits will also be excluded at trial.
SO ORDERED AND ADJUDGED, this the 21st day of December, 2012.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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