Braxton et al v. DKMZ Trucking, Inc. et al.
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants Joint Motion to Bar Testimony and Opinions of Plaintiffs Neuropsychologist, Thomas Martin, (ECF No. 69), is DENIED. IT IS FURTHER ORDERED that Plaintiff Hattie Braxtons Motion to Exclude Exper t Testimony and Opinions of C. Brian Tanner, P.E., (ECF No. 68), is GRANTED IN PART, and Tanner will not be permitted to testify as to the specific medical causation of Braxtons injuries. 69 68 Signed by District Judge Jean C. Hamilton on 2/13/15. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
DKMZ TRUCKING , INC.,
FEDEX GROUND PACKAGE SYSTEM, INC,
and KENT BIVENS
Cause No. 4:13-cv-1335-JCH
MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Joint Motion to Bar Testimony and
Opinions of Plaintiff’s Neuropsychologist, Thomas Martin, (ECF No. 69), and Plaintiff Hattie
Braxton’s Motion to Exclude Expert Testimony and Opinions of C. Brian Tanner, P.E. (ECF No.
68). The motions have been fully briefed and are ready for disposition.
Braxton initiated this action by filing a Complaint on July 12, 2013. (Complaint, ECF No.
1). She later filed an Amended Complaint, which alleges that Braxton was struck by a tractortrailer while driving on a Missouri freeway. (Amended Complaint, ECF No. 5, ¶¶ 1, 15). The
tractor-trailer was driven by Defendant Kent Bivens, who “was, at all times, acting as an
employee and/or agent for Defendant DKMZ and Defendant FedEx.” Id. ¶¶ 16, 18. Both Braxton
and Defendants wish to introduce expert testimony at trial to support aspects of their cases.
Braxton proffers as an expert witness Dr. Thomas Martin, a neuropsychologist retained by
Braxton to “identify her current neuropsychological status” following the crash. (Martin Report,
ECF No. 69-1, at 1). Defendants wish to introduce as an expert witness C. Brian Tanner, P.E.
(Braxton Motion, ECF No. 68, at 1). Tanner is a biomechanical engineer retained to testify
regarding the causation of Braxton’s injuries. (Tanner Aff., ECF No. 72-1, ¶¶ 1-9, 15-17). In
their motions, the parties seek to exclude or limit the testimony of each other’s expert witness.
EXPERT ADMISSIBILITY STANDARD
“‘Decisions concerning the admission of expert testimony lie within the broad discretion
of the trial court . . . .’” Anderson v. Raymond Corp., 340 F.3d 520, 523 (8th Cir. 2003) (quoting
Peitzmeier v. Hennessy Indus., Inc., 97 F.3d 293, 296 (8th Cir. 1996)). “The proponent of the
expert testimony must prove its admissibility by a preponderance of the evidence.” Lauzon v.
Senco Products, Inc., 270 F.3d 681, 686 (8th Cir. 2001). The starting point for analyzing the
admissibility of expert testimony is Federal Rule of Evidence 702, which has been interpreted to
require district courts “to perform a ‘gatekeeping’ function and insure that proffered expert
testimony is both relevant and reliable.” Dancy v. Hyster Co., 127 F.3d 649, 651-52 (8th Cir.
1997); see also Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 141 (1999); Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993).
The Eighth Circuit has identified three prerequisites, based on the language of Rule 702,
for the admissibility of expert testimony:
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. This is the basic rule of relevancy. Second, the proposed witness
must be qualified to assist the finder of fact. 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 . . . .
Lauzon, 270 F.3d at 686 (internal quotation marks and citations omitted). This standard must be
applied in light of the fact that “Rule 702 reflects an attempt to liberalize the rules governing the
admission of expert testimony[,]” and “[t]he rule clearly is one of admissibility rather than
exclusion.” Lauzon, 270 F.3d at 686 (internal quotation marks omitted).
I. Defendants’ Motion to Exclude Testimony of Dr. Thomas Martin
Defendants seek “to exclude the expert testimony of Thomas Martin, Plaintiff’s expert
neuropsychologist, because the testimony and test results fail to meet the reliability requirements
set forth in Daubert, and its progeny.” (Defendant Motion, ECF No. 69, at 1). Defendants
contend that Dr. Martin could not reliably have made his psychiatric diagnoses of PostTraumatic Stress Disorder (“PTSD”) and depression not otherwise specified (“DNOS”) because
he relied primarily on a “neuropsychological battery of tests” and a brief interview of Braxton,
during which Braxton’s boyfriend was present. Id. at 3-5. Because the neuropsychological tests
could not have been the basis for these psychiatric conclusions, Dr. Martin’s diagnoses rest
primarily on his interview with Braxton, which was insufficient. Id. at 8.
Braxton responds that Defendants’ “arguments do not go to the admissibility of Dr.
Martin’s opinions, but to the weight of his opinions and testimony.” (Braxton Response, ECF
No. 71, at 1 (emphasis in original)). Braxton contends that neuropsychologists often make
diagnoses of a psychiatric nature, and that the line Defendants draw between the two disciplines
is unfounded. Id. at 3-5. Braxton also cites Dr. Martin’s report and deposition to show that he
relied on the standard methods and diagnoses listed in the Diagnostic and Statistical Manual of
Mental Disorders (“DSM”). Id. at 3-4. According to Braxton, the DSM is generally relied on “to
diagnose patients’ mental conditions and disorders[,]” and Dr. Martin’s diagnostic methods are
therefore reliable. Id. at 4.
Daubert introduced four non-exclusive factors that district courts may examine to
determine the reliability of an expert’s testimony: “(1) whether the theory or technique ‘can be
(and has been) tested’; (2) ‘whether the theory or technique has been subjected to peer review
and publication’; (3) ‘the known or potential rate of error’; and (4) whether the theory has been
generally accepted.” Peitzmeier, 97 F.3d at 297 (quoting Daubert, 509 U.S. at 593-94).
“Daubert’s progeny provides additional factors such as: whether the expertise was developed for
litigation or naturally flowed from the expert's research; whether the proposed expert ruled out
other alternative explanations; and whether the proposed expert sufficiently connected the
proposed testimony with the facts of the case.” Lauzon, 270 F.3d at 687. The application of these
factors, along with others that might bear on the reliability analysis, should be flexible, in
accordance with the liberalizing purpose of Rule 702. See Daubert, 509 U.S. at 594.
Dr. Martin indicated in his deposition that he relied on the fourth edition of the DSM in
performing his evaluation of Braxton. (Martin Deposition, ECF No. 71-2, at 7, p. 37). This is
corroborated in his report, in which he makes use of three “axes” in his diagnosis that correspond
to the diagnostic categories used in the various editions of the DSM. See Am. Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders 27 (4th ed., Text Revision 2000) (“DSMIV-TR”); (Martin Report, ECF No. 71-3, at 5-6). As Braxton notes in her Response, the DSM
“‘is the standard classification of mental disorders used by mental health professionals in the
United States. It is intended to be applicable in a wide array of contexts and used by clinicians
and researchers of many different orientations (e.g., biological, psychodynamic, cognitive,
behavioral, interpersonal, family/systems).’” (Braxton Response at 4 (quoting Am. Psychiatric
Ass’n, http://www.psychiatry.org/practice/dsm (last visited Feb. 5, 2015))). Dr. Martin also
indicated during his deposition that the methods he used to diagnose Braxton for purposes of this
litigation are substantially the same methods he would have used in a non-litigation setting.
(Martin Deposition at 4, p. 18). These two factors, the use of established diagnostic criteria in a
manner not specific to the litigation context, are sufficient to establish the reliability of Dr.
Martin’s testimony.1 Dr. Martin will therefore be permitted to testify as an expert, and
Defendants are free to test any perceived inadequacy on cross-examination.
Defendants’ reference to Discepolo v. Gorgone, 399 F. Supp. 2d 123 (D. Conn. 2005), is
unhelpful. In Discepolo, the defendants sought to exclude the testimony of Dr. Anne Pratt, a
psychologist who was to testify regarding the plaintiff’s PTSD, in part on the ground that the
method she used in diagnosing the plaintiff was unreliable. Id. at 124, 126. The court noted that
Dr. Pratt took the following steps in making her diagnosis:
Dr. Pratt interviewed plaintiff over the course of two days for a total of
approximately six hours, and interviewed plaintiff’s current boyfriend and
two of plaintiff’s childhood friends. Dr. Pratt also administered three
psychological tests: the Personality Asessment Inventory (“PAI”); the
Trauma Symptom Inventory (“TSI”); and the Detailed Assessment of
Posttraumatic Stress (“DAPS”). In addition, Dr. Pratt reviewed medical,
counseling, and psychotherapy records, school records, and the deposition
transcripts of plaintiff, plaintiff’s mother and father, defendant, and Dr.
Colleen Keller Dreyfus, Ph.D., who treated plaintiff.
Id. at 125 (internal citations omitted). Based on Dr. Pratt’s use of these steps and other factors,
the Discepolo court concluded “that the methodology for the PTSD diagnosis and the scope of
Dr. Pratt’s opinion are not excludable as unscientific or unreliable.” Id. at 129.
Defendants contend that because Dr. Martin did not take these steps in diagnosing
Braxton with PTSD, his testimony should be barred under Daubert. (Defendant Motion at 5-7).
The problem with Defendants’ contention is that it mistakes sufficiency with necessity. While
the Discepolo court found that Dr. Pratt’s testing was reliable under Daubert, it did not hold or
Even variations from DSM diagnostic criteria have been found to be within the range of expert
testimony that is most appropriately tested by cross-examination. E.g., S.M. v. J.K., 262 F.3d 914, 921-22
(9th Cir. 2001).
otherwise indicate that a deviation from those steps would mean the testing was unreliable. Nor
did it give any indication of what the boundaries of reliability might be. Discepolo therefore
provides little guidance as to whether Dr. Martin used reliable methods for diagnosing Braxton
II. Braxton’s Motion to Exclude Testimony of C. Brian Tanner, P.E.
Braxton seeks to exclude or limit the testimony of C. Brian Tanner, P.E., who has been
retained by Defendants to testify as to the cause of Braxton’s injuries, because “Mr. Tanner has
no formal medical training, he is not a medical doctor, nor is he qualified by training, experience
or skill to render opinions regarding the medical causation of Ms. Braxton’s injuries.” (Braxton
Motion at 2). While Braxton seems in her Motion to be seeking the complete exclusion of
Tanner’s testimony, she makes clear in her Reply that she objects only to Tanner’s testimony
regarding specific causation. (Braxton Reply, ECF No. 73, at 3). Braxton would therefore allow
Tanner “to testify as to the forces exerted in the collision based on his evaluation, and the types
of injuries that may result from exposure to those forces, but he may not offer opinions as to
whether the forces exerted in this accident specifically caused Mr. [sic] Braxton’s injuries . . . .”
Defendants respond that “Tanner does not attempt to offer any opinions concerning the
diagnosis of [Braxton], and he does not offer any testimony concerning course of treatment, or
prognosis. Rather, Tanner provides biomechanical opinions, which he is qualified to do through
his training and education.” (Defendants’ Response, ECF No. 72, at 4). Defendants support this
assertion with specific references to Tanner’s education and experience. Id. at 4-5. They then
explain the methods Tanner used in reaching his conclusion and that those methods are ones
typically used in the field of biomechanical engineering. Id. at 6-8.
There is no meaningful disagreement between the parties regarding the permissible scope
of Tanner’s testimony. Braxton contends that Tanner may testify only to general, rather than
specific, causation. Defendants assert that they do not intend for Tanner to testify regarding
specific medical causation. Moreover, the limitation Braxton has requested is appropriate under
Daubert. See, e.g., Smelser v. Norfolk Southern Ry. Co., 105 F.3d 299, 301 (6th Cir. 1997),
abrogated on other grounds by Morales v. Am. Honda Motor Co., 151 F.3d 500, 515 (6th Cir.
1998). Tanner will therefore be permitted to testify as to general causation insofar as it is within
his competency as a biomechanical engineer, but he will not be permitted to testify as to the
specific medical causes of Braxton’s injuries.
IT IS HEREBY ORDERED that Defendants’ Joint Motion to Bar Testimony and
Opinions of Plaintiff’s Neuropsychologist, Thomas Martin, (ECF No. 69), is DENIED.
IT IS FURTHER ORDERED that Plaintiff Hattie Braxton’s Motion to Exclude Expert
Testimony and Opinions of C. Brian Tanner, P.E., (ECF No. 68), is GRANTED IN PART, and
Tanner will not be permitted to testify as to the specific medical causation of Braxton’s injuries.
Dated this 13th Day of February, 2015.
/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE
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