Hill v. Fikes Truck Line, LLC et al

Filing 42

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that defendants motion to exclude the expert testimony of Dr. Garth Russell is GRANTED in part and DENIED in part. Consistent with the Courts Memorandum and Order, the motion is GRANTED to the exte nt that Dr. Russell shall be precluded from offering his opinion that plaintiff suffered from posttraumatic stress syndrome. In all other respects, the motion is DENIED. [Doc. 27]. IT IS FURTHER ORDERED that defendants motion to limit the val ue of plaintiffs medical treatment is GRANTED. Consistent with the Courts Memorandum and Order, the value of plaintiffs medical treatment is limited to the amount necessary to satisfy the financial obligations to the health care providers. [Doc. 24]. Signed by District Judge Charles A. Shaw on 10/24/2012. (KSM)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
VIGGIE HILL,
Plaintiff,
v.
FIKES TRUCK LINE, LLC, et al.,
Defendants.

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No. 4:11-CV-816 CAS

MEMORANDUM AND ORDER
This matter is before the Court on defendants’ motion to exclude the testimony of plaintiff’s
medical expert, Garth Russell, M.D. Plaintiff opposes the motion, and it is fully briefed and ripe for
review. In a separate motion, defendants move that the Court make a determination regarding the
value of plaintiff’s medical treatment pursuant to Mo. Rev. Stat. § 490.715. In response, plaintiff
argues the motion is moot because she is not seeking the cost of her medical expenses as
compensatory damages. For the following reasons, the Court will grant defendants’ motion to
exclude expert testimony, in part, and the Court will grant defendants’ motion to determine the value
of plaintiff’s medical treatment.
Background
Plaintiff Viggie Hill was injured in a motor vehicle crash on March 26, 2006. Plaintiff, who
was driving a Nissan Pathfinder, was stopped in traffic on Interstate 55 when she was struck from
behind by a tractor-trailer truck driven by defendant Darwin Nightingale, who was working for
defendant Fikes Truck Line, LLC, at the time. Plaintiff claims that she suffered injuries and
damages as a result of the crash, including emotional distress damages, and that she will continue
to suffer damages in the future. Plaintiff filed a two-count complaint against defendants asserting

claims under Missouri law. This Court has diversity jurisdiction over the case pursuant to 28 U.S.C.
§ 1332.
Discussion
I.

DEFENDANTS’ MOTION TO EXCLUDE EXPERT TESTIMONY

Defendants move to preclude Garth Russell, M.D., from offering an opinion about plaintiff’s
psychological and psychiatric condition and treatment following the motor vehicle accident at issue
in this case. Dr. Russell, an orthopedic surgeon, was hired by plaintiff to be an expert. He is not one
of plaintiff’s treating physicians. In her Rule 26(a) disclosures, plaintiff disclosed that Dr. Russell
“will testify on the subjects of the nature and extent of [plaintiff]’s injuries, the reasonableness,
relatedness, and necessity of the medical care she has received, the reasonableness, relatedness, and
necessity of the medical bills she has incurred, and the future medical needs of [plaintiff].” Doc. 281 at 1.
According to the expert report, plaintiff was examined by Dr. Russell on July 12, 2011.
Following the examination and after reviewing plaintiff’s medical records, Dr. Russell opined that
plaintiff suffered from, among other things, “[p]osttraumatic stress syndrome severe with reactive
depression and anxiety moderate to severe chronic.” Doc. 28-2 at 13. Dr. Russell also opined in
his deposition that plaintiff suffered from depression. In their motion, defendants argue Dr. Russell
should be precluded from testifying regarding plaintiff’s psychological and psychiatric condition
and treatment following the accident because he is not qualified to offer an opinion in this area of
expertise, and he is merely parroting the opinion of another expert. Defendants assert that Dr.
Russell’s opinions regarding plaintiff’s psychological and psychiatric condition and treatment do
not meet the standards for admissibility set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc.,

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509 U.S. 579 (1993) and its prodigy. Plaintiff opposes the motion. The parties have submitted an
extensive evidentiary record, which includes a deposition transcript and expert reports. The Court
finds that it can make a proper Daubert determination without the need for an evidentiary hearing
or oral argument.
A.

Legal Standard

The admission of expert testimony in federal court is governed by Federal Rule of Evidence
702. Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001). Rule 702 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
(d)
the expert has reliably applied the principles and methods to the facts
of the case.
Fed. R. Civ. P. 702. In construing Rule 702, the Eighth Circuit requires that the proposed expert
testimony must meet three prerequisites in order to be admissible. First, evidence based on
scientific, technical, or other specialized knowledge must be useful to the finder of fact in deciding
the ultimate issue of fact. In other words, the evidence must be relevant. Lauzon, 270 F.3d at 686
(citing 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 702.02[3]
(2001)). Second, “the proposed witness must be qualified to assist the finder of fact.” Id. Third,
“the proposed evidence must be reliable or trustworthy in an evidentiary sense, so that, if the finder
of fact accepts it as true, it provides the assistance the finder of fact requires.” Id. See also

Barrett v. Rhodia, Inc., 606 F.3d 975, 980 (8th Cir. 2010); Khoury v. Philips Med. Sys., 614 F.3d

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888 (8th Cir. 2010). According to the Eighth Circuit, Rule 702 “favors admissibility if the testimony
will assist the trier of fact.” Clark v. Heidrick, 150 F.3d 912, 915 (8th Cir. 1998). Doubt regarding
“whether an expert’s testimony will be useful should generally be resolved in favor of
admissibility.” Id. (citation and internal quotation omitted).
B.

Medical Testimony

There are two opinions from Dr. Russell that defendants seek to have excluded: (1) that
plaintiff suffered from posttraumatic stress syndrome; and (2) that plaintiff suffered from depression.
The subject matter of these two opinions falls outside the scope of Dr. Russell’s specialty, which is
orthopedic surgery. In the area of medical testimony, the Eighth Circuit has held that a medical
expert can be qualified to testify under Rule 702 regarding medical issues that are outside his or her
specialty. Robinson v. GEICO Gen. Ins. Co., 447 F.3d 1096, 1100-01 (8th Cir. 2006). In other
words, a medical expert need not be a specialist in the area of the his or her testimony. Id. The
Eighth Circuit noted that “[m]ost courts have held that a physician with general knowledge may
testify regarding medical issues that a specialist might treat in a clinical setting.” Id. 1101 (citing
Lauria v. National R.R. Passenger Corp., 145 F.3d 593, 598 (3d Cir. 1998)). That said, Rule 702
does require that “the area of the witness’s competence matches the subject matter of the witness’s
testimony.” Id. at 1100. Rule 702 requires that an expert “possess ‘knowledge, skill, experience,
training, or education’ sufficient to ‘assist’ the trier of fact, which is ‘satisfied where expert
testimony advances the trier of fact’s understanding to any degree.’” Id. (citing 29 Charles Alan
Wright & Victor James Gold, Federal Practice & Procedure: Evidence § 6265 (1997)).

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1.

Dr. Russell’s opinion regarding posttraumatic stress syndrome should
be excluded.

Dr. Russell’s opinion regarding posttraumatic stress syndrome should be excluded because
it does not meet the standard of admissibility under Rule 702 for two reasons. First, Dr. Russell is
not qualified to make the opinion. Dr. Russell admitted during his deposition that he is not qualified
to make a posttraumatic stress syndrome diagnosis, and he does not even know the criteria for
diagnosing the disorder. During his deposition the following colloquy took place:
Q:
A:
Q:
A:
Q:
A:

[W]ould you consider yourself a psychologist?
No.
Are you a neuropsychologist?
No.
Are you competent to diagnose neuropsychological diagnoses?
Yes and no. I have had psychiatric training. I have had psychological
training. And I’m aware of what the diagnosis means and what it is. But when it
comes down to the legal part, I always make the statement that I defer to the
neuropsychologist or neuropsychiatrist.

Russell Dep. at 20-21.
Q:
A:
Q:
A:

[Posttraumatic stress syndrome], that’s a neuropsychological
diagnosis, correct?
Correct.
Are you competent to make a neuropsychological diagnosis?
No, because it should be made based upon testing. And that diagnosis
was made based upon a review of the records, and the records of the
neuropsychologist, psychiatrist.

...
Q:
A:
Q:
A:

Do you know what the criteria are to diagnose posttraumatic stress syndrome?
No, I do not.
Would it be fair to say that you can’t give this jury this diagnosis
number three?
As I said, my opinion of that diagnosis was based upon the diagnosis
being made by the psychiatrist and the neuropsychologist throughout
her record over the past five years.

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Id. at 46-47.
Second, Dr. Russell’s proposed testimony about posttraumatic stress syndrome should be
excluded because it is not an independent opinion he formed after examining facts or data. Dr.
Russell’s opinion regarding posttraumatic stress syndrome was the opinion of another expert who,
it would appear, will not testify. Dr. Russell stated under oath that he did not do any testing, but
rather he relied solely on the opinion of the neuropsychologist or neuropsychiatrist in the case:
Q:
can
A:
Q:
A:
Q:
A:

But I guess what I’m saying is, you cannot as an expert give that opinion
you? It’s not your opinion; you’re just parroting an opinion that was found
in the record?
That’s correct. I am putting down the opinion that the experts in that area
made, and I had no reason to disagree. ...
I think you said for a clinician or an expert to make the posttraumatic stress
disorder diagnosis, you really do have to do neuropsychological testing.
That’s correct.
And you’ve seen reports of that, but you’ve not done any neuropsychological
testing, correct?
Correct.

Id. at 48-9.
Under Rule 703,1 “an expert may rely on otherwise in admissible hearsay evidence in
forming his [or her] opinion if the facts and data upon which he [or she] relies are of a type
reasonably relied upon by experts in [the expert’s] field.” Arkwright Mut. Ins., Co. v. Gwinner Oil,
Inc., 125 F.3d 1176, 1182 (8th Cir. 1997) (citing Fed. R. Evid. 703; South Cent. Petroleum, Inc. v.

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Federal Rule of Evidence 703 states: “[t]he facts or data in the particular case upon which
an expert bases an opinion or inference may be those perceived by or made known to the expert at
or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming
opinions or inferences upon the subject, the facts or data need not be admissible in evidence.” Fed.
R. Evid. 703.

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Long Bros. Oil Co., 974 F.2d 1015, 1019 (8th Cir.1992)). But this is not the case of an expert
relying on data or facts collected by another expert and he using that information to form an opinion.
Dr. Russell did not form his own opinion. He admitted he was not qualified to do so. Dr. Russell
adopted wholesale the opinion of another expert. Dr. Russell’s proffered opinion regarding
posttraumatic stress syndrome is not based on his own expert analysis. An expert’s opinion must
be based upon his or her own application of principles within his her expertise to the facts of the
case. Quiles v. Bradford-White Corp., 2012 WL 1355262, at *7 (N.D. N.Y. Apr. 18, 2012). “To
allow otherwise would deprive the opposing party of the opportunity to cross examine the expert
on the basis for the nontestifying expert’s opinion.” Id. See also Malletier v. Dooney & Bourke,
Inc., 525 F.Supp.2d 558, 666 (S.D. N.Y. 2007) (“It is true that under Rule 703, experts can rely on
hearsay in reaching their own opinions. But a party cannot call an expert simply as a conduit for
introducing hearsay under the guise that the testifying expert used the hearsay as the basis of his
testimony.”).
Here, Dr. Russell cannot even testify that he independently agrees with the opinion of the
other doctor. Dr. Russell did not perform his own testing, and is not clear whether Dr. Russell
reviewed the testing data. But even if he had, Dr. Russell does not know the criteria for
posttraumatic stress syndrome. He admitted he was not qualified to make the diagnosis. Based on
the record in this case, the Court finds Dr. Russell’s opinion regarding posttraumatic stress syndrome
is not admissible because Dr. Russell is not qualified to make this opinion, and the opinion is
entirely that of another expert. See Dura Auto. Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609, 613
(7th Cir. 2002); Tokio Marine & Fire Ins. Co. v. Norfolk & W. Ry. Co., 1999 WL 12931, at *4 (4th
Cir. Jan. 14, 1999)(“one expert may not give the opinion of another expert who does not testify”);

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Deutz Corp. v. City Light & Power, Inc., 2009 WL 2986415, at *6 (N.D. Ga. Mar. 21, 2009)
(“While Rule 703 permits an expert to rely on “facts or data” that are not otherwise admissible into
evidence in forming his opinion, it does not permit an expert to simply parrot the opinions of other
experts.”); Eberli v. Cirrus Design Corp., 615 F.Supp.2d 1357 (S.D. Fla. 2009) (“expert must make
some findings and not merely regurgitate another expert’s opinion”); United States Gypsum Co. v.
Lafarge N. Am., Inc., 670 F.Supp.2d 748, 758 (N.D. Ill. 2009) (where expert testimony “is just
parroting the opinion of another expert,” such testimony must be excluded.). Cf. Brennan v.
Reinhart Institutional Foods, 1998 WL 2017925, at *5 (D. S.D. Sept. 17, 1998), aff’d 211 F.3d 449
(8th Cir. 2000) (“[Expert witness] was not used to convey the opinion of the doctors or the contents
of the report. Instead [the expert] testified as to his own opinion in the area in which he is expert,
vocational rehabilitation. His testimony regarding the [p]laintiff’s disability rating and her
functional capacity evaluation was for purposes of allowing the jury to hear the basis upon which
he came to his opinion in his area of expertise. He did not offer a medical opinion as to the
plaintiff’s condition; he offered an opinion as a vocational specialist relying upon medical
records.”).
2.

Dr. Russell may testified regarding his opinion that plaintiff suffered
from depression.

Whether Dr. Russell should be precluded from testifying that plaintiff suffered from
depression is a closer call. Unlike posttraumatic stress syndrome, Dr. Russell testified that as an
orthopedic surgeon he often does diagnose depression. See Russell Dep. at 53. He also testified that
he has had some psychiatric and psychological training. What is more, in diagnosing plaintiff with
depression, he reviewed plaintiff’s medical records, he interviewed plaintiff, and he observed her
demeanor. He did not merely rely on the diagnosis of another doctor.
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Defendants argue in their motion that Dr. Russell’s opinion that plaintiff suffered from
depression should be excluded because he did not conduct testing to make the diagnosis. Unlike
diagnosing posttraumatic stress syndrome, there is nothing in the record to suggest that testing is
required to make a diagnosis of depression. Although they criticize Dr. Russell for not performing
tests in diagnosing plaintiff with depression, defendants do not identify in their motion what tests
he should have performed. The Court will not exclude Dr. Russell’s opinion on depression on the
grounds that he did not perform some unspecified testing, especially when there is nothing to
suggest that testing is required to make a diagnosis of depression. Under Eight Circuit law, doubt
regarding “whether an expert’s testimony will be useful should generally be resolved in favor of
admissibility,” Clark, 150 F.3d at 915. Based on the record before it, the Court cannot conclude that
Dr. Russell is unqualified to make a diagnosis of depression, or that his opinion is unreliable such
that it should be excluded under Rule 702. Robinson, 447 F.3d at 1100-01 (in general,“a physician
with general knowledge may testify regarding medical issues that a specialist might treat in a clinical
setting.”) The Court will allow Dr. Russell to testify regarding his opinion that plaintiff suffered
from depression, and defendants’ motion is denied in this respect. Defendants may cross-examine
Dr. Russell as to how he arrived at his diagnosis of depression, and whether he should have
conducted some testing. Daubert, 509 U.S. at 595.
II.

DEFENDANTS’ MOTION TO LIMIT VALUE OF PLAINTIFF’S
MEDICAL TREATMENT

Defendants argue, in a separate motion, that the value of plaintiff’s medical treatment should
be limited, pursuant to Mo. Rev. Stat. § 490.715, to the dollar amount necessary to satisfy the
financial obligations to the health care providers. Plaintiff responds that defendants’ motion is moot
because she is not seeking the cost of her medical expenses as compensatory damages. Defendants
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reply that the motion is not moot because the cost of her medical treatment may be relevant to other
damage calculations.
Section 490.715 of Missouri Revised Statutes modifies the collateral source rule. Missouri
lawmakers passed the statute as part of tort reform legislation. The law creates a rebuttable
presumption that the dollar amount necessary to satisfy a plaintiff’s financial obligation to his or her
health care provider constitutes the value of the medical treatment rendered. Deck v. Teasley, 322
S.W.3d 536, 541 (Mo. 2010).
Although plaintiff has stipulated that she is not seeking the costs of her medical expenses as
compensatory damages, the Court finds that the value of plaintiff’s medical expenses may still be
at issue in this case. To the extend that the medical expenses are an issue, the Court finds they shall
be limited under Mo. Rev. Stat. § 490.715 to the dollar amount necessary to satisfy the financial
obligations to the health care providers. Under Mo. Rev. Stat. § 490.715 there is a rebuttable
presumption that what was paid represents the value of the medical treatment rendered. A plaintiff
can attempt to rebut this presumption by presenting “substantial evidence” that the value of medical
treatment rendered is an amount different from the dollar amount necessary to satisfy the financial
obligations to health care providers. Deck, 322 S.W.3d at 541. Plaintiff, however, has not attempted
to rebut this presumption. If the presumption is not rebutted, “then the only evidence of the value
of medical treatment rendered is the dollar amount necessary to satisfy the financial obligation to
the health care providers.” Id. Therefore, to the extent that the value of plaintiff’s medical treatment
is relevant and at issue in this case, it shall limited to the dollar amount that the necessary to satisfy
the financial obligations to plaintiff’s health care providers.

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Conclusion
In sum, the Court finds defendant’s motion to preclude plaintiff’s expert, Garth Russell,
M.D., from testifying about plaintiff’s psychological and psychiatric condition and treatment
following the motor vehicle accident is granted in part and denied in part. Dr. Russell may testify
that it is his opinion plaintiff suffered from depression. Dr. Russell may not, however, offer the
opinion that plaintiff suffered from posttraumatic stress syndrome. Based on the record before it,
the Court finds Dr. Russell is not qualified to make this opinion, and he was merely repeating the
opinion of another doctor who will not testify. As for defendants’ motion to limit the value of
plaintiff’s medical treatment, the Court finds plaintiff has not attempted to rebut the presumption that
the value of her medical treatment is limited to the amount necessary to satisfy her financial
obligations to the health care providers. Therefore, to the extent the value of plaintiff’s medical
treatment is at issue in this case, it shall be limited to what was paid the providers.
Accordingly,
IT IS HEREBY ORDERED that defendants’ motion to exclude the expert testimony of Dr.
Garth Russell is GRANTED in part and DENIED in part. Consistent with the Court’s
Memorandum and Order, the motion is GRANTED to the extent that Dr. Russell shall be precluded
from offering his opinion that plaintiff suffered from posttraumatic stress syndrome. In all other
respects, the motion is DENIED. [Doc. 27]

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IT IS FURTHER ORDERED that defendants’ motion to limit the value of plaintiff’s
medical treatment is GRANTED. Consistent with the Court’s Memorandum and Order, the value
of plaintiff’s medical treatment is limited to the amount necessary to satisfy the financial obligations
to the health care providers. [Doc. 24]

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 24th day of October, 2012.

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