Thomas v. Barnett et al
Filing
192
ORDER denying Defendant's 125 Motion to Exclude the proposed expert testimony of Dr. Philip Blount. Defendant may reassert this motion at trial in the event Plaintiff attempts to introduce any testimony from Blount that has not been disclosed by designation or are outside the scope of the testimony or opinions provided at his deposition. Signed by District Judge Keith Starrett on September 11, 2016 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
RICKY BARNETT
PLAINTIFF
V.
CIVIL ACTION NO. 2:15-CV-2-KS-MTP
DEERE & COMPANY
DEFENDANT
MEMORANDUM OPINION AND ORDER
This is a product liability case. The Court discussed its factual background in
previous opinions. See Memorandum Opinion and Order at 1-2, No. 2:15-CV-2-KS-MTP
(S.D. Miss. May 15, 2015), ECF No. 26; Barnett v. Deere & Co., No. 2:15-CV-2-KS-MTP,
2016 U.S. Dist. LEXIS 117312, at *1-*2 (S.D. Miss. Aug. 31, 2016). For the reasons
below, the Court denies Defendant’s Motion to Exclude [125] the proposed expert
testimony of Dr. Philip Blount.
A.
Insufficient Designation/Disclosure
Defendant argues that Plaintiff failed to comply with his disclosure obligations
with respect to a portion of the proposed expert testimony of Plaintiff’s treating
physician, Dr. Philip Blount. Specifically, Defendant contends that Plaintiff was
required to provide an expert report from Dr. Blount with respect to his opinions
regarding Plaintiff’s future medical needs and the life care plan created by one of
Plaintiff’s retained experts.
Rule 26 requires parties to disclose the identity of any person who will provide
expert testimony at trial. FED. R. CIV. P. 26(a)(2)(A). “[I]f the witness is one retained
or specially employed to provide expert testimony in the case or one whose duties as
the party’s employee regularly involve giving expert testimony,” the proponent of the
expert testimony must provide a written report prepared and signed by the witness.
FED. R. CIV. P. 26(a)(2)(B). If the expert witness is not required to provide a written
report, the designation must provide the subject matter of the expert’s testimony, and
a summary of the facts and opinions to which she is expected to testify. FED. R. CIV. P.
26(a)(2)(C). These disclosures must be made and supplemented in the time and
sequence ordered by the Court. FED. R. CIV. P. 26(a)(2)(D)-(E). A party’s failure to do
so is “grounds for prohibiting introduction of that evidence at trial.” L.U.Civ.R. 26(a)(2).
Rule 26(a)(2)(A)’s designation requirement applies to all testifying experts,
including treating physicians. Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d
875, 882-83 (5th Cir. 2004). However, “[a] number of courts agree that a treating
physician may testify as a non-retained expert witness – and therefore need not
provide an expert report . . . .” Kim v. Time Ins. Co., 267 F.R.D. 499, 502 (S.D. Tex.
2008) (collecting cases); see also FED. R. CIV. P. 26(a)(2)(B). But if the physician does
not provide an expert report, his testimony must remain “confined to facts disclosed
during care and treatment of the patient,” including his diagnosis, the causation of a
plaintiff’s injuries, and the plaintiff’s prognosis, “as long as the doctor formed those
opinions based on [his] personal knowledge and observations obtained during the
course of care and treatment.” Kim, 267 F.R.D. at 502. “Conversely, where a treating
physician has prepared his opinions in anticipation of litigation or relies on sources
other than those utilized in treatment, courts have found that the treating physician
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acts more like a retained expert and must comply with Rule 26(a)(2)(B).” Id.1
Dr. Blount’s proposed expert testimony includes both opinions “formed . . . based
on his personal knowledge and observations . . . during the course of care and
treatment” of Plaintiff, and opinions “prepared . . . in anticipation of litigation . . . .”
Kim, 267 F.R.D. at 502. Plaintiff’s designation provided, in relevant part:
[Dr. Blount h]as knowledge of the reasonableness and necessity of the
medical bills and care of Plaintiff due to the injuries he incurred on June
17, 2013, his damages, the nature and extent of his injuries, as well as to
matters set forth in their records, reports, and/or deposition, if any. It is
anticipated he will testify that Plaintiff is permanently impaired and that
the cause of same was his riding mower rollover. It is anticipated he will
testify that he reviewed and approved the life care plan in this case. It is
anticipated he will testify to the reasonableness and necessity of
Plaintiff’s medical bills resulting from the accident at issue.
Exhibit C to Motion to Exclude at 3, Barnett v. Deere & Co., No. 2:15-CV-2-KS-MTP
(S.D. Miss. June 15, 2016), ECF No. 126-2. Blount’s proposed testimony regarding
Plaintiff’s life care plan was indisputably prepared specifically for this litigation.
Therefore, with respect to that portion of Blount’s testimony, Plaintiff was required to
provide Defendant with an expert report as required by Rule 26(a)(2)(B). Kim, 267
F.R.D. at 502. He failed to do so at the time of the designation, violating Rule
1
See also Previto v. Ryobi N. Am., Inc., No. 1:08-CV-177-HSO-JMR, 2010 U.S.
Dist. LEXIS 133344, at *9-*10 (S.D. Miss. Dec. 16, 2010); Cooper v. Wal-Mart
Transp. LLC, No. H-08-0085, 2009 U.S. Dist. LEXIS 8706, at *3-*4 (S.D. Tex. Feb.
5, 2009); Lee v. Valdez, No. 3:07-CV-1298-D, 2008 U.S. Dist. LEXIS 70979, at *9-*10
(N.D. Tex. Sept. 18, 2008); Boudreaux v. J.P. Morgan Chase & Co., No. 07-555, 2007
U.S. Dist. LEXIS 86686, at *6-*7 (E.D. La. Nov. 21, 2007); Duke v. Lowe’s Home
Ctrs., Inc., No. 1:06-CV-207-P-D, 2007 U.S. Dist. LEXIS 80415, at *3-*4 (N.D. Miss.
Oct. 19, 2007); Robbins v. Ryan’s Family Steak Houses E., Inc., 223 F.R.D. 448, 453
(S.D. Miss. Sept. 16, 2004); Lowery v. Spa Crafters, Inc., No. SA-03-CA-0073-XR,
2004 U.S. Dist. LEXIS 16072, at *4-*5 (W.D. Tex. Aug. 16, 2004).
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26(a)(2)(B), and he has not provided a supplemental report, violating Rule 26(e).2
“If a party fails to provide information or identify a witness as required by Rule
26(a) or (e), the party is not allowed to use that information or witness to supply
evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
justified or is harmless.” FED. R. CIV. P. 37(c)(1). When applying Rule 37 and
considering sanctions for discovery violations, the Court considers the following factors:
(1) the explanation for the failure to disclose the evidence; (2) the importance of the
evidence; (3) the potential prejudice in allowing the evidence; and (4) the availability
of a continuance to cure such prejudice. Hamburger, 361 F.3d at 883. The Court
“should impose only that sanction which is the least severe way to effect compliance
with the court’s discovery orders,” United States v. Garza, 448 F.3d 294, 300 (5th Cir.
2006), and it has “broad discretion” in formulating such sanctions. Barrett v. Atlantic
Richfield Co., 95 F.3d 375, 380 (5th Cir. 1996).
Here, Plaintiff has not provided any explanation for failing to provide a report
2
Even if Plaintiff were not required to provide a report concerning Blount’s
opinions concerning the life care plan, he was still required to disclose the subject
matter of Blount’s testimony and “a summary of the facts and opinions to which
[Blount] is expected to testify.” FED. R. CIV. P. 26(a)(2)(C). Plaintiff’s meager
disclosure that Blount “reviewed and approved the life care plan in this case” is
insufficient to provide Defendant with notice of Blount’s opinions regarding the life
care plan and the facts underlying them. The current version of the plan contains
dozens of individual elements across nineteen pages, and it comprises a substantial
portion of Plaintiff’s alleged damages. In fact, when asked whether he believed that
Plaintiff would likely need each element of the life care plan, Blount testified that
he had to address each element “item by item.” Exhibit D to Motion to Exclude at 7,
Barnett v. Deere & Co., No. 2:15-CV-2-KS-MTP (S.D. Miss. June 15, 2016), ECF No.
126-3.
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of Blount’s opinions concerning the life care plan in compliance with Rule 26(a)(2)(B).3
Therefore, the first factor weighs in favor of excluding the testimony.
As for the second factor, the testimony’s importance is somewhat mitigated by
the fact that Plaintiff designated another expert, Molly Struble, to provide testimony
regarding his future medical needs. See Exhibit C to Response at 21, Barnett v. Deere
& Co., No. 2:15-CV-2-KS-MTP (S.D. Miss. July 25, 2016), ECF No. 174-3. Struble
drafted the life care plan at issue. However, as Plaintiff’s treating physician, Blount’s
assessment of the life care plan is particularly probative, given his knowledge of
Plaintiff’s injuries. Cf. Barbosa v. County of El Paso, No. 97-51098, 1998 U.S. App.
LEXIS 39641, at *9 (5th Cir. Sept. 8, 1998) (although evidence was cumulative, it was
still valuable to corroborate other testimony). This factor weighs against exclusion.
As for the third factor, the Court finds that Defendant was prejudiced by
Plaintiff’s failure to provide a report. As noted above, Plaintiff’s designation was
woefully insufficient. The most current version of the life care plan contains dozens of
elements across nineteen pages. Plaintiff’s disclosure that Blount “reviewed and
approved the life care plan in this case” provides no substantive information about
Blount’s opinions regarding the life care plan, or the basis of his opinions.
However, the Court also finds that Defendant already received an adequate
cure. Defendant deposed Blount after production of the most current life care plan. At
the time of the deposition, Defendant was fully aware of the plan’s contents, and it had
3
In fact, Plaintiff did not address any of the four Hamburger factors in
briefing.
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an opportunity to question Blount about his opinions. Accordingly, the third and fourth
factors, considered in tandem, weigh against exclusion.
In conclusion, the Court finds that Plaintiff failed to meet his discovery
obligations under Rules 26(a)(2)(B) and (e) by failing to provide an expert report with
respect to Dr. Blount’s opinions regarding Plaintiff’s life care plan. However, the Court
also finds that Defendant has been provided an adequate opportunity to cure whatever
prejudice might accrue as a result of Plaintiff’s failure insofar as it deposed Blount
after it had received the most current version of the life care plan. Defendant will also
have the opportunity at trial to cross-examine Blount with regard to his opinions
regarding the life care plan. In the Court’s opinion, the Hamburger factors weigh
against excluding Blount’s testimony, and the Court notes that Defendant did not
request any intermediate sanctions. However, Defendant may reassert this motion at
trial in the event Plaintiff attempts to introduce any testimony or opinions from Blount
that have not been disclosed by designation or are outside the scope of testimony
provided at his deposition.
B.
Reliability of Blount’s Testimony
Federal Rule of Evidence 702 provides:
A witness who is qualified as an expert . . . 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;
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(c)
the testimony is the product of reliable principles and methods;
and
(d)
the expert has reliably applied the principles and methods to the
facts of the case.
FED. R. EVID. 702. Therefore, “when 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.” Watkins v. Telsmith, Inc., 121 F.3d 984, 988-89 (5th
Cir. 1997).
In Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.
Ed. 2d 469 (1993), the Supreme Court provided a nonexclusive list of “general
observations intended to guide a district court’s evaluation of scientific evidence,”
including: “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.” Watkins, 121 F.3d at 989 (punctuation omitted).
Not every guidepost outlined in Daubert will necessarily apply to expert
testimony based on engineering principles and practical experience, but
the district court’s preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid and of
whether that reasoning or methodology properly can be applied to the
facts in issue is no less important.
Id. at 990-91 (punctuation omitted).
“Overall, the trial court must strive to ensure that the expert, whether basing
testimony on professional studies or personal experience, employs in the courtroom the
same level of intellectual rigor that characterizes the practice of an expert in the
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relevant field.” Id. The testimony must be supported by “more than subjective belief
or unsupported speculation.” Paz v. Brush Eng’red Materials, Inc., 555 F.3d 383, 388
(5th Cir. 2009). However, the Court’s rule as gatekeeper is not meant to supplant the
adversary system because “[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.” Daubert, 509 U.S. at
596. While the Court should focus solely on the proposed expert’s “principles and
methodology, not on the conclusions that they generate,” id. at 595, “nothing in either
Daubert or the Federal Rules of Evidence requires a district court to admit opinion
evidence which is connected to existing data only by the ipse dixit of the expert.” GE
v. Joiner, 522 U.S. 136, 146, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997).
“The proponent of expert testimony . . . has the burden of showing that the
testimony is reliable,” United States v. Hicks, 389 F.3d 514, 525 (5th Cir. 2004), and
must establish the admissibility requirements “by a preponderance of the evidence.”
United States v. Fullwood, 342 F.3d 409, 412 (5th Cir. 2003).
The life care plan prepared by Plaintiff’s retained expert includes 11 days of
unplanned hospitalizations for every remaining year of Plaintiff’s life. Dr. Blount,
Plaintiff’s treating physician, apparently intends to provide opinion testimony
regarding the anticipated frequency of such future hospitalizations. Defendant argues
that Blount’s opinion regarding future unplanned hospitalizations is unreliable
because 1) Blount purportedly contradicted his own testimony at deposition, 2) the
opinion is not supported by sufficient facts, 3) the opinion does not meet any of the
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reliability factors from Daubert, and 4) Blount’s opinion contradicts Plaintiff’s medical
history. For the reasons provided below, the Court concludes that Blount’s testimony
is sufficiently reliable to pass muster under Rule 702 and Daubert.
First, Blount did not contradict his own testimony, as Defendant argues. Blount
consistently testified that he “can’t tell you that he’ll be in the hospital for 11 days per
year,” and that he was “not able to say, with a reasonable degree of medical probability,
that it will be 11 days per year every year for the rest of his life . . . .” Exhibit E to
Response to Motion to Exclude at 12-13, Barnett v. Deere & Co., No. 2:15-CV-2-KSMTP (S.D. Miss. July 25, 2016), ECF No. 174-6. But he also consistently testified that
“rehospitalization is an item that, unfortunately, I would wager will occur, and . . . I
felt that this was reasonable to include in his plan as a possibility, and likely a
probability, for his future of his life.” Id. at 12. He further stated: “I don’t predict that
he will be in the hospital 11 days per year. I do predict he will have hospitalizations at
an increased rate and frequency compared to the normal population due to his spinal
cord injury, and that this figure may represent an average of over a lifetime.” Id. at 13.
In summary, Blount testified that Plaintiff “is at an increased risk of rehospitalization
due to his spinal cord injury. I am not able to say with a reasonable degree of medical
probability, that it will be 11 days per year every year for the rest of his life, and I’ll
have to leave it at that.” Id.
Next, Blount admitted that he did not have any “knowledge of any medical data
on lengths of stay in the hospital for spinal cord survivors for the rest of their life,” id.
at 13, and he was unfamiliar with a study mentioned by Defendant’s counsel. Id. at 139
14. However, Blount testified that he based his opinion on his own “[c]linical
experience of caring for spinal cord patients, training in physical medicine and
rehabilitation, [and] the medical literature that does support that patients with spinal
cord injury have up to a three or four times higher likelihood of unexpected
hospitalizations.” Id. at 19. He also testified that he was familiar with two
articles/studies listed in the life care plan. Id. at 13. In the Court’s opinion, this is a
sufficient basis for his opinion regarding the likelihood of Plaintiff’s future
hospitalizations.
As for Daubert’s list of indicia of reliability, the Fifth Circuit has explicitly held
that “every guidepost outlined in Daubert will [not] necessarily apply to expert
testimony based on . . . practical experience . . . .” Watkins, 121 F.3d at 990-91. Here,
Blount believes that it Plaintiff is at an increased risk of hospitalization for the rest of
his life. Although he can not certainly predict how often Plaintiff will be hospitalized,
he believes that Struble’s prediction of eleven days per year is a reasonably probable
prediction, based on his years of clinical experience with spinal cord injuries, Exhibit
E [174-6], at 19, medical literature indicating that patients with spinal cord injuries
have a higher likelihood of unexpected hospitalizations, id., Plaintiff’s obesity, id. at
9, and the increased rate of hospitalization within generally less healthy populations
when compared to healthier populations. Id. at 19. The purpose of Daubert and Rule
702 are to ensure that the proposed expert’s “reasoning or methodology properly can
be applied to the facts in issue . . . .” Watkins, 121 F.3d at 991. Blount’s reasoning and
the factual basis underlying his opinion provide sufficient indicia of reliability, given
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the limited and relatively uncertain nature of his testimony on this issue.
Finally, Defendant notes that Plaintiff’s proposed life care expert, Molly Struble,
testified that Plaintiff had not been hospitalized since the accident in June 2013.
Therefore, Defendant argues that Blount’s opinion regarding the likelihood of
Plaintiff’s hospitalization is contrary to Plaintiff’s medical history. The Court disagrees.
Blount testified: “What I see is rehospitalization, lifetime, frequency is 11 days per
year, to treat medical conditions related to a spinal cord injury. The way I interpret
that frequency is average. . . . What I interpreted with this plan was it may be that this
is an average . . . .” Exhibit E [174-6], at 12. Accordingly, Plaintiff’s medical history
does not contradict Blount’s opinion.
For all the reasons above, the Court finds that Blount’s testimony is sufficiently
reliable to pass muster under Rule 702 and Daubert. Blount’s opinions are based upon
more than his subjective belief or unsupported speculation, Paz, 555 F.3d at 388, and
the “reasoning or methodology” he articulated to support his opinions “properly can be
applied to the facts in issue . . . .” Watkins, 121 F.3d at 991. “Vigorous crossexamination, presentation of contrary evidence, and careful instruction on the burden
of proof are the traditional and appropriate means of attacking shaky but admissible
evidence,” Daubert, 509 U.S. at 596, and Defendant will have the opportunity to crossexamine Blount at trial.
C.
Conclusion
For the reasons provided above, the Court denies Defendant’s Motion to
Exclude [125] the proposed expert testimony of Dr. Philip Blount. However, Defendant
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may reassert this motion at trial in the event Plaintiff attempts to introduce any
testimony from Blount that have not been disclosed by designation or are outside the
scope of the testimony or opinions provided at his deposition.
SO ORDERED AND ADJUDGED this 11th day of September, 2016.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
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