Roberts v. Lombardi et al

Filing 210

MEMORANDUM AND ORDER re: 167 MOTION to Exclude the Expert Written Report and Opinions of Dr. Andrew Martine filed by Defendant Gregory Pernoud, 165 MOTION to Exclude Opinion and Report of Plaintiff's Rebuttal Exper t Witness Dr. Andrew Martine filed by Defendant Corizon, LLC, Defendant Ricky D. Jones, Defendant Ernest Jackson, Defendant Ernest W. Jackson, DMD, Institutional Dental Services, P.C., Defendant Stephanie Novak; motions are DENIED. Signed by District Judge Stephen N. Limbaugh, Jr on 5/29/15. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

KYLE A. ROBERTS,
Plaintiff,
vs.
GEORGE A. LOMBARDI, et al.,
Defendants.

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Case No. 1:12-CV-134-SNLJ

MEMORANDUM and ORDER
This matter is before the Court defendants Corizon, LLC, and Jackson Institutional
Dental Services, P.C., (“JIDS”), Dr. Ernest Jackson, Dr. Rick Jones, Stephanie Novak,
and Dr. Gregory Pernoud, D.D.S.’s motions to exclude the expert written report and
opinions of Dr. Andrew Martine (#165, #167).
Plaintiff identified Dr. Martine as a rebuttal expert witness in response to
defendant Dr. Pernoud’s expert witness, Dr. Hosch. Dr. Martine is a radiologist retained
to rebut Dr. Hosch’s testimony that plaintiff’s jaw was “well healed” and to testify
regarding matters including plaintiff’s jaw deformity, including interpretation of x-rays of
plaintiff’s jaw. The report does not include any opinion regarding the treatment provided
to plaintiff, the results of that treatment, or the functionality of plaintiff’s jaw.
Federal Rule of Evidence 702 provides as follows:
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

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other specialized knowledge will help the trier of fact to
understand the evidence or 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 (d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed.R.Evid. 702. “Under Rule 702, it is the trial judge, in admitting expert testimony,
who has the gatekeeping responsibility to ensure than an expert’s testimony both rests on
a reliable foundation and is relevant to the task at hand. First Union Nat. Bank v.
Benham, 423 F.3d 855, 861 (8th Cir.2005) (citing Kumho Tire Co. v. Carmichael, 526
U.S. 137, 141 (1999).
The “function of rebuttal is to explain, repel, counteract or disprove evidence of
the adverse party.” United States v. Luschen, 614 F.2d 1164, 1170 (8th Cir. 1980).
Rebuttal testimony may be offered “solely to contradict or rebut evidence on the same
subject matter identified by another party under Rule 26(a)(2)(B).” Fed. R. Civ. P.
26(a)(2)(C). In the Eighth Circuit, “rebuttal evidence may be used to challenge the
evidence or theory of an opponent and not to establish a case-in-chief.” Marmo v. Tyson
Fresh Meats, Inc., 457 F.3d 748, 759 (8th Cir. 2006).
Defendants contend that Dr. Martine’s opinions should be excluded because he
has no training in oral and maxillofacial surgery and is not qualified to rebut the opinions
of Dr. Hosch, who is an oral and maxillofacial surgeon. Defendants further state that Dr.
Martine does not explain, repel, counteract, or disprove the opinions offered by Dr.
Hosch. Defendants also point out that Dr. Martine’s opinion was based on insufficient

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data or facts because he prefaced his opinion and report with the observation that the
images examined were of “significantly limited quality.”
Dr. Hosch’s opinion was that plaintiff’s jaw is “well-healed.” In contrast, Dr.
Martine opined that plaintiff’s jaw is over 100% displaced and significantly deformed.
First, plaintiff points out that Dr. Martine is fully qualified to interpret x-rays as a boardcertified radiologist. Defendants do not appear to dispute that Dr. Martine offers his
opinions by using his specialized scientific and technical knowledge and training to
interpret highly technical x-rays that cannot be interpreted by a lay person. There is
further no dispute that his opinion is based on his expertise and the x-rays of plaintiff’s
jaw. Defendants do not dispute that Dr. Martine is a qualified radiologist or dispute the
reliability of his methods. The fact that he is not an oral and maxillofacial surgeon does
not make him unqualified to rebut the testimony that plaintiff’s jaw is “well-healed.” The
fact that Dr. Martine --- who is undeniably an expert at interpreting x-rays of jaw bones -- found that plaintiff’s jaw is displaced and deformed does refute Dr. Hosch’s opinion
that the jaw is “well-healed.”
As for defendant’s contention that Dr. Martine’s testimony is improper as rebuttal
and more suited for plaintiff’s case-in-chief, “the Eighth Circuit has stated, ‘The fact that
testimony would have been more proper for the case-in-chief does not preclude the
testimony if it is proper both in the case-in-chief and in the rebuttal.’” Mason v. Safeco
Ins. Co. of Am., No. 4:09-CV-1081 CAS, 2010 WL 5070723, at *7 (E.D. Mo. Dec. 6,
2010) (quoting Luschen, 614 F.2d at 1170).

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Finally, the x-ray images interpreted by Dr. Martine are the only versions of the xrays at issue that were produced by defendant Corizon in response to plaintiff’s request
for his x-rays. Plaintiff requested the originals, but counsel for Corizon represented that
they could not locate them. (Plaintiff notes that he reserves the right to file an
appropriate motion for sanctions based on apparent destruction of the originals.)
Regardless, despite acknowledging the condition of the copies, Dr. Martine was able to
give his opinion with confidence, as he explained in his deposition. Although the x-ray
copies were of “significantly limited quality,” there is no evidence they were insufficient
for Dr. Martine to read.
Notably, defendants have not filed reply memoranda in support of their motion to
exclude Dr. Martine’s testimony. “Expert testimony is admissible if it is reliable and will
help the jury understand the evidence or decide a fact in issue.” Archer Daniels Midland
Co. v. Aon Risk Servs., Inc. of Minnesota, 356 F.3d 850, 858 (8th Cir. 2004) (internal
quotation omitted); see also Fed. R. Evid. 702. Furthermore, “an expert need not have an
opinion on an ultimate issue of fact in order for the testimony to be admissible.” Id.
(citing Bonner v. ISP Techs., Inc., 259 F.3d 924, 929 (8th Cir. 2001).). “An expert’s
opinion must be excluded only if it ‘is so fundamentally unsupported that it can offer no
assistance to the jury.’” Id. (internal quotation omitted). Dr. Martine’s opinion is reliable
and will help the jury understand the facts of this case. The motion will be denied.

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Accordingly,
IT IS HEREBY ORDERED that defendants’ motions to exclude the expert
written report and opinions of Dr. Andrew Martine (#165, #167) are DENIED.
Dated this 29th day of May, 2015.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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