J.B. v. Missouri Baptist Hospital of Sullivan et al

Filing 84

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendant Missouri Baptist Hospital of Sullivan's Motion to Exclude Expert Testimony and Report of Dr. John Hughes as to Plaintiff's Purported Functional Capacity 46 and Defendants Dr. A mini and BC Missouri Emergency Physicians LLPs Motion to Strike Testimony and Opinions of Dr. John Hughes 54 are GRANTED, in part, and DENIED, in part. IT IS FURTHER ORDERED that Defendant Missouri Baptist Hospital of Sullivan's Motion to E xclude Expert Testimony and Report of Delores Gonzalez 48 and Defendants Dr. Amini and BC Missouri Emergency Physicians LLP's Motion to Strike Testimony and Opinions of Delores Gonzalez 52 are DENIED. IT IS FURTHER ORDERED that Defendant Missouri Baptist Hospital of Sullivan's Motion to Exclude Expert Testimony and Report of Brooke Liggett 50 and Defendants Dr. Amini and BC Missouri Emergency Physicians LLPs Motion to Strike Testimony and Opinions of Brooke Liggett 56 are DENIED. Signed by District Judge E. Richard Webber on January 12, 2018. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

J.B., a minor, by and through his
Next Friend, R ICKY BULLOCK,
Plaintiff,
vs.
MISSOURI BAPTIST HOSPITAL
OF SULLIVAN, et al.,
Defendants.

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Case No. 4:16CV01394 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on three Motions to Exclude filed by Defendant
Missouri Baptist Hospital of Sullivan [46, 48, 50] and three Motions to Strike filed by
Defendants Dr. Shamim X. Amini and BC Missouri Emergency Physicians, LLP [52, 54, 56].
These motions are substantially similar and seek to exclude certain testimony and reports of three
expert witnesses retained by Plaintiff: (1) Dr. John Hughes, (2) Delores Gonzalez, and (3)
Brooke Liggett.
I.

BACKGROUND
On August 30, 2016, Plaintiff J.B., a minor, filed this medical malpractice suit by and

through his Next Friend, Ricky Bullock, against Defendants Missouri Baptist Hospital of
Sullivan (“MBHS”), BC Missouri Emergency Physicians, LLP, and Shamim X. Amini, M.D.
(“Dr. Amini”). Plaintiff alleges Defendants failed to appropriately treat Plaintiff’s left leg wound
in the MBHS Emergency Department, which resulted in Plaintiff sustaining further injuries.

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Plaintiff disclosed the following three experts to Defendants: Dr. Hughes, an
occupational medicine doctor; Dolores Gonzalez, a vocational expert; and Brooke Liggett, an
economic expert. On December 15, 2017, Defendant MBHS filed three motions relating to
Plaintiff’s proffered experts: (1) Motion to Exclude Expert Testimony and Report of Dr. John
Hughes as to Plaintiff’s Purported Functional Capacity [46], (2) Motion to Exclude Expert
Testimony and Report of Delores Gonzalez [48]; and (3) Motion to Exclude Expert Testimony
and Report of Brooke Liggett [50]. Defendants Dr. Amini and BC Missouri Emergency
Physicians, LLP, filed three motions which are nearly identical to those filed by Defendant
MBHS: (1) Motion to Strike Testimony and Opinions of Dr. John Hughes [54], Motion to Strike
Testimony and Opinions of Delores Gonzalez [52], and Motion to Strike Testimony and
Opinions of Brooke Liggett [56]. Because the Defendants filed substantially similar motions, this
Court will concurrently address the motions with respect to each proffered expert.
A. Motions to Exclude Testimony and Reports of Dr. Hughes [46, 54]
Defendants ask this Court to exclude Dr. Hughes’ testimony as to Plaintiff’s purported
functional capacity for standing or walking as a result of his alleged injuries. Specifically, both
motions cite language from Dr. Hughes’ report alleging Plaintiff’s ability to stand or walk was
reduced to “perhaps as much as a maximum of four hours per day.” Defendants state this
language is vague and speculative and is not reliable or admissible under Rule 702 and Daubert.
They argue Dr. Hughes has admitted he did not perform the functional capacity testing which
they allege is required for an expert to arrive at a reliable opinion regarding Plaintiff’s functional
capacity.
In his response to these motions, Plaintiff stresses Dr. Hughes is merely approximating
and is not attempting to give a precise figure. Plaintiff argues testimony is not rendered
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inadmissible simply because it is inexact and that Defendants’ arguments concerning the
imprecise nature of the four-hour estimation should go to the credibility, and not admissibility, of
the testimony.
B. Motions to Exclude Testimony and Reports of Delores Gonzalez [48, 52]
Defendants ask this Court to exclude the entirety of Ms. Gonzalez’s opinion concerning
the vocational capacity of Plaintiff because it is speculative, unreliable, not based on sufficient
facts or evidence, and not helpful to the jury. They allege Ms. Gonzalez bases her opinion on the
report by Dr. Hughes, specifically relying on his estimation that Plaintiff now has a four-hour
capacity to stand or walk. Plaintiffs argue this estimation is inadmissible for the reasons
contained in their motions to exclude testimony of Dr. Hughes, and as a result, Ms. Gonzalez’s
opinion must be excluded.
In his response, Plaintiff reasserts his argument that the estimation contained in Dr.
Hughes’ testimony is admissible and states Ms. Gonzalez is permitted to rely on the admissible
evidence of a medical doctor to form her opinion as a vocational expert. During oral argument on
the motion, Plaintiff further argued experts are permitted to rely on information not otherwise
admissible. Plaintiff’s response also states Defendants misrepresent the basis for Ms. Gonzalez’s
opinion and argue Ms. Gonzalez performed an extensive evaluation based on numerous sources
which could allow her to independently reach the same opinion.
C. Motions to Exclude Testimony and Reports of Brooke Liggett [50, 56]
Defendants ask this Court to strike the entirety of Ms. Liggett’s opinion because she
relied on the opinions of Ms. Gonzalez who relied on the report of Dr. Hughes. Defendants
reassert the arguments contained in the motions to exclude the testimony and reports of Ms.
Gonzalez and Dr. Hughes and state Ms. Liggert’s opinion is based on “two levels of speculation
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by other expert witnesses, thus failing to meet the standard for admissibility under Rule 702 and
Daubert.”
In his response, Plaintiff reincorporates his response to the motions to exclude the
testimony and reports of Ms. Gonzalez and Dr. Hughes, stating Defendants’ analyses in those
motions provide the sole basis for this motion and because the arguments contained in those
motions fail, this motion also fails.
III.

LEGAL STANDARD
Federal Rule of Evidence 702 provides that a court may permit opinion testimony from a

witness qualified as an expert 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 upon 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. The Eighth Circuit has summarized Rule
702 as a three-part test:
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.
Johnson v. Mead Johnson & Co., LLC, 754 F.3d 557, 561 (8th Cir. 2014) (quoting Polski v.
Quigley Corp., 538 F.3d 836, 839 (8th Cir. 2008)). “The proponent of the expert testimony must
prove its admissibility by a preponderance of the evidence.” Lauzon v. Senco Prods., Inc., 270
F.3d 681, 686 (8th Cir. 2001) (citing Daubert v. Merrell Dow Pharm., 509 U.S. 579, 592
(1993)).
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Under Rule 702, district courts act as gatekeepers, ensuring that expert testimony is “not
only relevant, but reliable.” Daubert, 509 U.S. at 589; see also Kumho Tire Co. v. Carmichael,
526 U.S. 137, 141 (1999) (quoting Daubert, 509 U.S. at 597). In Daubert, the Supreme Court
outlined four non-exclusive factors that the district court may look to in evaluating the reliability
of expert testimony: (1) whether the scientific technique can be or has been tested; (2) whether
the theory or technique has been subjected to peer review or publication; (3) the known rate of
error for the technique or theory and the applicable standards for operation; and (4) whether the
technique is generally accepted. Johnson, 754 F.3d at 562 (citing Daubert, 509 U.S. at 593–94).
Daubert’s progeny provide 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. As the Supreme Court
explained in Kumho Tire Company, “the test of reliability is ‘flexible,’ and Daubert’s list of
specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather,
the law grants a district court the same broad latitude when it decides how to determine
reliability as it enjoys in respect to its ultimate reliability determination.” 526 U.S. at 141–42.
The Eighth Circuit has described the standard in Daubert as calling for the “liberal admission” of
expert testimony. Johnson, 754 F.3d at 562.
“Regardless of what factors are evaluated, the main inquiry is whether the proffered
expert’s testimony is sufficiently reliable.” First Union Nat. Bank v. Benham, 423 F.3d 855, 861
(8th Cir. 2005). The Eighth Circuit has admonished district courts “not to weigh or assess the
correctness of competing expert opinions.” Johnson, 754 F.3d at 562. As long as the expert’s
testimony “rests upon ‘good grounds, based on what is known’ it should be tested by the
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adversary process with competing expert testimony and cross-examination, rather than excluded
by the court at the outset.” Id. (quoting Daubert, 509 U.S. at 590, 596. “Only if the expert’s
opinion is so fundamentally unsupported that it can offer no assistance to the jury must such
testimony be excluded.” Benham, 523 F.3d at 862. “Doubts regarding ‘whether an expert’s
testimony will be useful should generally be resolved in favor of admissibility.’” Clark v.
Hendrick, 150 F.3d 912, 915 (8th Cir. 1998)) (quoting Larabee v. MM & L Int’l Corp., 896 F.2d
1112, 1116 n.6 (8th Cir. 1990)).
IV.

ANALYSIS
In all six of Defendants’ pending Daubert motions, Defendants challenge the

admissibility of the following statements made by Dr. Hughes, in full:
In addition to permanent impairment, [Plaintiff] has sustained a permanent
decrement of his physical capabilities as a result of his injuries. His tolerances for
standing and walking are reduced to a significant degree, perhaps as much as a
maximum of four hours per day.
Defendants argue Dr. Hughes’ four-hour estimation is not the product of reliable testing and thus
“any opinion he may offer on the topic would be speculative” and inadmissible. They state the
entirety of Ms. Gonzalez and Ms. Liggett’s opinions should be excluded because they are based
on these statements made by Dr. Hughes.
This Court agrees that Dr. Hughes’ four-hour estimation relating to Plaintiff’s ability to
stand and walk is based on subjective speculation and does not meet the reliability standard
provided in Rule 702. During deposition, Dr. Hughes admitted the four-hour figure was a “rough
estimate” and in order to provide an accurate quantification as to Plaintiff’s functional capacity,
he would have to conduct a functional capacity evaluation or have him undergo a series of
rehabilitative and testing sessions. Neither Dr. Hughes nor Plaintiff has articulated any reason as
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to why Dr. Hughes failed to conduct either of these tests and instead provided a conclusion based
merely on speculation. Accordingly, this proposed evidence is not reliable and cannot be helpful
to the jury. See Fed. R. Evid. 702; Presley v. Lakewood Eng’g & Mfg. Co., 553 F.3d 638, 646-47
(8th Cir. 2009); Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1057 (8th Cir. 2000)
(““Expert testimony that is speculative is not competent proof and contributes ‘nothing to a
legally sufficient evidentiary basis’”) (quoting Weisgram v. Marley Co., 528 U.S. 440, 454
(2000)).
Plaintiff states Dr. Hughes’ estimation is a “‘yardstick’ estimate on order of magnitude”
concerning the injuries sustained by Plaintiff as a result of Defendant’s negligence. Indeed, some
speculation among experts is “inevitable” and permissible. Group Health Plan, Inc. v. Philip
Morris USA, Inc., 344 F.3d 753, 760 (8th Cir. 2003). In assessing how much speculation is
permissible, district courts should hold experts testifying in court to “the same standards of
intellectual rigor that are demanded in their professional work.” Id. Here, this Court finds Dr.
Hughes failed to meet this standard when he provided an untested four-hour estimation
concerning Plaintiff’s functional capacity to stand or walk, and any testimony concerning that
estimation is excluded. However, this Court will not exclude all testimony by Dr. Hughes
regarding Plaintiff’s functional capacity simply because he improperly included an untested and
unreliable estimation in his report. See Presley, 553 F.3d at 646 (8th Cir. 2009) (holding district
courts are obligated to “separate[] expert opinion evidence based on ‘good grounds’ from
subjective speculation that masquerades as scientific knowledge”). Thus, should either party seek
to submit Dr. Hughes’ report to the jury at trial, it must redact the prepositional phrase, “perhaps
as much as a maximum of four hours per day,” but this Court does not now make any finding of
inadmissibility concerning the other statements provided in the report by Dr. Hughes.
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Similarly, this Court will not exclude the testimony by Ms. Gonzalez and Ms. Liggett
simply because Dr. Hughes provided the four-hour estimation in his report. Even if Dr. Hughes’
report provided some basis for Ms. Gonzalez’s findings, it is clear not all of his statements
regarding Plaintiff’s functional capacity to stand or walk were unreliable. Further, Ms. Gonzalez
stated the conclusions made in her report were based, in part, on statements made by Plaintiff
during her interview with him concerning his own experience with standing or walking since the
date of the alleged negligence. Plaintiff relayed to Ms. Gonzalez he was “having problems
standing for long periods of time and cannot stand for longer than two hours at a stretch.”
Further, Ms. Gonzalez examined Plaintiff’s medical records, educational achievement test
results, and medical history. Ms. Gonzalez’s opinion is thus supported by sufficient facts and
data, and it will not be excluded. Likewise, Ms. Liggett’s testimony, which was supported by
Ms. Gonzalez’s opinion, will not be excluded.
Accordingly,
IT IS HEREBY ORDERED that Defendant Missouri Baptist Hospital of Sullivan’s
Motion to Exclude Expert Testimony and Report of Dr. John Hughes as to Plaintiff’s Purported
Functional Capacity [46] and Defendants Dr. Amini and BC Missouri Emergency Physicians
LLP’s Motion to Strike Testimony and Opinions of Dr. John Hughes [54] are GRANTED, in
part, and DENIED, in part.
IT IS FURTHER ORDERED that Defendant Missouri Baptist Hospital of Sullivan’s
Motion to Exclude Expert Testimony and Report of Delores Gonzalez [48] and Defendants Dr.
Amini and BC Missouri Emergency Physicians LLP’s Motion to Strike Testimony and Opinions
of Delores Gonzalez [52] are DENIED.

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IT IS FURTHER ORDERED that Defendant Missouri Baptist Hospital of Sullivan’s
Motion to Exclude Expert Testimony and Report of Brooke Liggett [50] and Defendants Dr.
Amini and BC Missouri Emergency Physicians LLP’s Motion to Strike Testimony and Opinions
of Brooke Liggett [56] are DENIED.
So Ordered this 12th Day of January, 2018.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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