Buckalew v. Schneider National Carriers, Inc. et al

Filing 158

ORDER denying 85 Motion for Hearing; denying 122 Motion to Exclude Signed by Chief District Judge Louis Guirola, Jr on 08/21/2014 (Guirola, Louis)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
BILLY BUCKALEW, Individually and as
Personal Representative of the Heirs and
Beneficiaries of Jerry Buckalew, Deceased
v.

PLAINTIFF
CAUSE NO. 3:13CV189-LG-JCG

SCHNEIDER NATIONAL CARRIERS,
INC., and RHOAN HUDSON

DEFENDANTS

ORDER DENYING PLAINTIFF’S MOTION TO EXCLUDE EXPERT
TESTIMONY AND MOTION FOR DAUBERT HEARING
BEFORE THE COURT are the Motion [122] to Exclude Expert Testimony
of Howard T. Katz, M.D., and the Motion [85] for Daubert Hearing filed by the
plaintiff, Billy Buckalew. The defendants have filed a response in opposition to the
Motion to Exclude, and the plaintiff has filed a reply. After reviewing the
submissions of the parties and the applicable law, the Court finds that the Motion
to Exclude and the Motion for Daubert Hearing should be denied.
FACTS
On March 2, 2011, Harold Buckalew was driving a 1996 Buick Century in the
right-hand lane of Interstate 20, while traveling west. Harold’s brother, Jerry, was
riding in the front passenger seat of the Buick. A tractor-trailer driven by Rhoan
Hudson on behalf of Schneider National Carriers was also traveling west on
Interstate 20, approaching the Buckalew vehicle from behind. The tractor-trailer
and Buick were involved in a collision as Hudson attempted to pass Harold, but the
parties dispute which vehicle left its proper lane of travel and caused the accident.

Jerry Buckalew was hospitalized after the accident, and he died on October 21,
2011. The parties dispute whether his death was caused by the accident or
unrelated, preexisting conditions.
The plaintiff, Billy Buckalew, claims that Jerry’s pre-existing illnesses and
injuries were aggravated by the accident, resulting in Jerry’s death. The
defendants have designated Howard T. Katz, M.D., as an expert witness. Dr. Katz
is “a licensed and practicing medical doctor, board certified in the fields of Physical
Medicine and Rehabilitation, and in the subspecialty of Spinal Cord Injury
Medicine.” (Defs.’ Resp., Ex. D at 1, ECF No. 134-4). Dr. Katz conducted a review
of Jerry’s post-accident medical records, and he opined:
Based to [sic] a reasonable degree of medical certainty, Jerry Buckalew
had aggravation of his chronic back pain when he was involved in the
motor vehicle accident. He was about to be very ill any way. He had
pre-existing severe peripheral vascular disease. He had infectious
organisms in his body. He did not suffer any severe injuries from the
motor vehicle accident. Rather, treatment after March 2, 2011, was
related to multiple pre-existing conditions including diabetes mellitus,
peripheral vascular disease, coronary artery disease, obstructive sleep
apnea, osteoporosis, tobacco abuse, community acquired pneumonia
and gingivitis.
(Pl.’s Mot., Ex. A at 18, ECF No. 122-1). The plaintiff asks the Court to exclude Dr.
Katz’s opinions.
DISCUSSION
Rule 702 of the Federal Rules of Evidence establishes the following standards
for determining whether expert testimony is admissible:
(a) the expert’s scientific, technical, or other specialized knowledge
[must] help the trier of fact to understand the evidence or to
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determine a fact in issue;
(b) the testimony [must be] based on sufficient facts or data;
(c) the testimony [must be] the product of reliable principles and
methods; and
(d) the expert [must have] reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702. Thus, “expert testimony is admissible only if it is both relevant
and reliable.” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243 (5th Cir. 2002).
“Expert testimony which does not relate to any issue in the case is not relevant and,
ergo, non-helpful.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 591 (1993).
In order to be reliable, an expert’s opinions must be based on sufficient facts or
data, as well as the product of reliable principles and methods. Fed. R. Civ. P.
702(b), (c).
Reliability is determined by making a “preliminary assessment of whether
the reasoning or methodology underlying the testimony is . . . valid and of whether
that reasoning or methodology properly can be applied to the facts in issue.” Id. at
592-93. The district court must ensure that “an expert, whether basing testimony
upon professional studies or personal experience, employs in the courtroom the
same level of intellectual rigor that characterizes the practice of an expert in the
relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999). “Vigorous
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, 609 U.S. at 596. The proponent of expert testimony
must prove that the testimony is reliable by a preponderance of the evidence.
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Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998).
The plaintiff claims that Dr. Katz is not qualified to provide testimony and
opinions concerning Jerry’s various medical conditions, because he does not
specialize in those fields of medicine. The plaintiff also argues that Dr. Katz merely
provided unsupported conclusions, without any basis or reasoning. According to the
plaintiff, Dr. Katz also failed to explain his methodology in reaching his opinions,
and Dr. Katz’ review of Jerry’s medical records is a mere “regurgitation” that does
not qualify as expert opinion testimony. The plaintiff makes specific objections to
the following opinions:
•

“Mr. Buckalew was admitted with a A1C of 7.6 showing that his
diabetes was not well controlled.”

•

He developed a community-acquired pneumonia on March 3, 2011. To
a reasonable degree of medical probability, this was secondary to his
severe dental disease.”

•

“Mr. Buckalew had severe peripheral vascular disease and was not
well when he was admitted on March 2, 2011.”

•

“He had dental disease and it was felt that he was seeding his body
with bacteria from his gingiva and underwent all of his teeth being
extracted on May 6, 2011.”

•

“He was about to be very ill any way.”

•

“He had infectious organisms in his body. He did not suffer any severe
injuries from the motor vehicle accident. Rather, treatment after
March 2, 2011, was related to multiple pre-existing conditions
including diabetes mellitus, peripheral vascular disease, coronary
artery disease, obstructive sleep apnea, osteoporosis, tobacco abuse,
community acquired pneumonia and gingivitis.”

The plaintiff further asserts that Dr. Katz’s opinions should be excluded pursuant

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to the “eggshell plaintiff” doctrine, and he seeks a Daubert hearing regarding the
issues raised in his Motion. The Court finds that the record is sufficient to make a
determination without the necessity of a Daubert hearing.
In an affidavit, Dr. Katz has provided a detailed description of his education,
experience, and training. He testifies:
As a medical doctor, I am trained, educated and experienced in areas of
infectious disease, internal medicine, pulmonary medicine and
epidemiology. As a medical doctor, I am qualified to diagnose and
treat pneumonia. Further, the co-morbidities of individuals with
spinal cord injury include, but are not limited to, problems connected
with oral hygiene, pulmonary infectious disease, especially pneumonia,
and sepsis. Thus, as a Board Certified Physiatrist and Spinal Cord
Injury Medicine Specialist, I am qualified and recognized as an expert
in these areas by the Board of Physical Medicine and Rehabilitation.
(Defs.’ Resp., Ex. D at 2-3, ECF No. 134-4). Dr. Katz cited numerous peer-reviewed
articles supporting his opinions as well as his statements that, as a physiatrist, he
is qualified to provide the opinions at issue. (Defs.’ Resp., Ex. C to D, ECF No. 1344).
“A physician does not have to practice in, or be a specialist in, every area in
which he offers an opinion, but he must demonstrate that he is ‘sufficiently familiar
with the standards’ in that area by his ‘knowledge, skill, experience, training, or
education’ to satisfy Rule 702.” Bailey Lumber & Supply Co. v. Robinson, 98 So. 3d
986, 992 (¶15) (Miss. 2012) (quoting Troupe v. McAuley, 955 So. 2d 848, 856 (Miss.
2007)). The expert witness “must exercise the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.” Id.
Dr. Katz has demonstrated that he is qualified to provide expert opinions
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regarding Jerry’s numerous medical conditions through his education, training, and
experience. Since he is a physiatrist that specializes in physical medicine,
rehabilitation, and spinal cord injury, he is certainly qualified to testify whether
Jerry’s death and the necessity for post-accident medical treatment were caused by
the aggravation of spinal injuries suffered during the accident or other pre-existing
conditions. See Bester v. Travis, No. 4:11CV60-DPJ-FKB, 2013 WL 3243656 at *3
(S.D. Miss. June 26, 2013).
The Court further finds that Dr. Katz has adequately explained his
methodology and the reasoning behind his opinions. He has demonstrated that his
opinions are supported by peer-reviewed literature and his review of Jerry’s medical
records, as well as his training, education, and experience.
Finally, Dr. Katz’s opinions are not impermissible pursuant to the “eggshell
plaintiff” doctrine. The Mississippi Supreme Court has held, “One who injures
another suffering from a pre-existing condition is liable for the entire damage when
no apportionment can be made between the pre-existing condition and the damage
caused by the defendant – thus the defendant must take his victim as he finds
[him].” Blake v. Clein, 903 So. 2d 710, 730 (¶54) (Miss. 2005) (quoting Brake v.
Speed, 605 So. 2d 28, 33 (Miss. 1992)). Dr. Katz’s testimony that apportionment
can be made between Jerry’s pre-existing conditions and the injury he suffered in
the accident is, therefore, admissible. The determination of whether an
apportionment can actually be made must be submitted to a jury at trial.
As a result, the Court finds that the plaintiff’s Motion to Exclude Dr. Katz
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and the plaintiff’s Motion for Daubert hearing should be denied. The plaintiff will
have the opportunity to address his concerns regarding Dr. Katz’s testimony
through cross-examination at trial.
CONCLUSION
Since the defendants have demonstrated that Dr. Katz is qualified to give
opinions concerning the cause of Jerry’s medical treatment and death, as well as the
relevance and reliability of those opinions, the plaintiffs’ Motions are denied.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Motion [122]
to Exclude Expert Testimony of Howard T. Katz, M.D., and the Motion [85] for
Daubert Hearing filed by the plaintiff, Billy Buckalew are DENIED.
SO ORDERED AND ADJUDGED this the 21st day of August, 2014.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE

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