Neessen et al v. Beau Rivage Resorts, LLC et al
ORDER denying 59 Second Motion in Limine as to Expert Testimony. Signed by District Judge Louis Guirola, Jr on 10/8/19. (Whitsitt, K)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
PAMELA NEESSEN AND PAUL NEESSEN
CAUSE NO. 1:18CV134 LG-RHW
BEAU RIVAGE RESORTS, LLC, ET AL.
ORDER DENYING PLAINTIFFS’ SECOND MOTION
IN LIMINE AS TO EXPERT TESTIMONY
BEFORE THE COURT is the Plaintiffs’  Second Motion In Limine as to
Expert Testimony. Plaintiffs seek to exclude testimony from Defendants’ medical
expert, Dr. Daniel Wittersheim, in this personal injury lawsuit. The issues have
been fully briefed. After due consideration, the Court finds that Dr. Wittersheim’s
testimony meets Daubert requirements and will be allowed. Accordingly, the
Plaintiffs’ Motion is denied.
This case concerns an incident in the Beau Rivage Resort in Biloxi,
Mississippi, in October 2015. Plaintiff Pamela Neessen alleges she was injured
when she was struck by a full luggage cart being operated by a Beau Rivage
employee. Defendants have conceded liability, leaving only the issue of damages
for trial. The parties contest the extent to which Neessen’s medical treatment
following the accident, and in particular Neessen’s hip replacement, was
necessitated by the accident. Defendants engaged Dr. Wittersheim, an orthopedic
surgeon specializing in total hip and knee replacement, revision and reconstruction,
to provide expert opinion testimony about this issue. Neessen objects to the
introduction of opinion testimony from Dr. Wittersheim pursuant to Federal Rule of
Federal Rule of Evidence 702 provides for the admission of expert testimony
that assists the trier of fact to understand the evidence or to determine a fact in
issue. A court is charged with a Agatekeeping function@ to ensure expert testimony
is both reliable and relevant. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
597 (1993). Reliability is analyzed under Rule 702, which requires that: (1) the
testimony is based upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case. FED. R. EVID. 702. “Expert testimony
which does not relate to any issue in the case is not relevant and, ergo, non-helpful.”
Daubert, 509 U.S. at 591.
Neessen argues that Dr. Wittersheim’s testimony is not reliable because it is
not based on sufficient facts or data. Dr. Wittersheim opined that within a
reasonable degree of medical probability Neessen “would have went on to requiring
both of her hips, or desiring to have both of her hips replaced within probably about
the same time frame.” ( Wittersheim Dep. 22, ECF No. 64-5.) He based his
opinion on the following facts: Neessen had been seeking treatment for her hips for
many years; her x-rays showed “an arthritic hip;” she was ambulating with a cane
at the time of the incident; and emergency room records did not indicate a
traumatic injury to her hips. (Id. at 22-23.)
Neessen contends that Dr. Wittersheim’s opinion that she “suffered no
trauma as a result of being struck with the luggage cart is contrary to all other
evidence in this case – the surveillance footage and bruise photos, and this alone is
sufficient to discredit his opinion . . . .” (Pl. Resp. 3-4, ECF No. 60.) Neessen
argues that Dr. Wittersheim is wrong that she did not suffer trauma from the fall
because the surveillance video shows a “severe” fall, and the emergency room photos
show bruises on her body. She also argues that Dr. Wittersheim does not support
his conclusion that her hip surgeries would have occurred regardless of her fall at
the Beau Rivage.
Dr. Wittersheim testified that there were no emergency room photos of
bruises on Neessen’s hips, only her right knee and upper arm, indicating that there
was no injury to her hips. (Wittersheim Dep. 26-27, ECF No. 64-5.) He viewed
the surveillance video of Neessen’s fall and described the impact as not severe, but
instead “a ground level fall.” (Id. at 25.) Dr. Wittersheim also examined
Neessen’s medical records, noting that “from an orthopedic standpoint,” Neessen
“was in unfortunate medical condition.” (Id. at 11.) Prior to her fall at the Beau
Rivage, Neessen had bilateral total knee replacements, possibly a shoulder
replacement, severe lymphedema in her lower extremities, suffered multiple pelvic
fractures in an auto accident, and had been treated for bilateral hip pain for a
number of years. (Id. at 11-16.) A record dated less than one year after the fall
shows Neessen had bone-on-bone in her right hip. (Id. at 16-17.)
That Dr. Wittersheim has drawn conclusions from this evidence that differ
from Neessen’s contentions does not make Dr. Wittersheim’s opinion unreliable.
When an expert discloses the basis of an opinion, the jury decides the weight of the
opinion. Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir. 1987) (questions
relating to the bases and sources of an expert’s opinion affect the weight to be
assigned that opinion rather than its admissibility); Carter v. Massey-Ferguson,
Inc., 716 F.2d 344, 350 (5th Cir. 1983) (“[The] expert based his testimony on the
plaintiff’s account of the accident . . . . He disclosed the underlying basis of his
testimony . . . . Based on this disclosure, the jury could decide how much weight to
accord the opinion testimony.”). Neessen may explore any weakness in the way Dr.
Wittersheim formed his opinions and conclusions on cross examination at trial.
See Dearmond v. Wal-Mart La. LLC, 335 F. App’x 442, 444 (5th Cir. 2009)
(“Cross-examination at trial . . . is the proper forum for discrediting testimony, and
credibility determinations are, of course, the province of [the fact finder].”). The
motion to exclude Dr. Wittersheim’s testimony will be denied.
IT IS THEREFORE ORDERED AND ADJUDGED that the Plaintiffs’
 Second Motion In Limine as to Expert Testimony is DENIED.
SO ORDERED AND ADJUDGED this the 8th day of October 2019.
Louis Guirola, Jr.
Louis Guirola, Jr.
U.S. District Judge
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