Johnny v. Bornowski et al

Filing 112

ORDER denying 74 Plaintiff's Motion in Limine to Exclude all Testimony from Defense Expert Dr. Andrew Pavlovich. Signed on 10/31/11 by Chief District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
OSCAR L. JOHNNY, JR.,
Plaintiff,
vs.
LARRY BORNOWSKI and
STAMPEDE CARRIERS, LLC,
et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

No. 10-04008 -CV-FJG

ORDER
Currently pending before the Court is Plaintiff Oscar Johnny’s Motion in
Limine to Exclude all Testimony from Defense Expert Dr. Andrew Pavlovich (Doc.
No. 74).
I.

Background
This is an action arising out of injuries sustained by Plaintiff Oscar Johnny

when a tractor trailer, driven by Defendant Bornowski, collided with Plaintiff’s 18wheeler in January 2008. Plaintiff’s complaint asserts negligence, negligence per se,
and aggravating circumstances warranting punitive damages.
Defendant seeks to admit the expert opinion of Dr. Andrew Pavlovich - ear,
nose, and throat specialist. The expert’s opinion evaluates a hearing test that was
administered to Plaintiff to determine whether Plaintiff lost his hearing as a result of
the accident (Doc. No. 64). Plaintiff objects to Defendant’s use of the expert in its
present Motion in Limine to Exclude all Testimony from Defense Expert Dr. Pavlovich
(Doc. No. 74).

II.

Standard of Review
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the

Supreme Court interpreted the requirements of Federal Rule of Evidence 702 as it
related to expert testimony. In United States v. Vesey, 338 F.3d 913, 916-17 (8th Cir.
2003), cert. denied, 540 U.S. 1202 (2004), the Court stated:
Rule 702 requires the trial judge to act as a “gatekeeper,” admitting
expert testimony only if it is both relevant and reliable. See Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct.
2786, 125 L.Ed.2d 469 (1993). The trial court is granted broad
discretion in its determination of reliability. Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 142, 119 S.Ct. 1167, 143 L.Ed.2d 238
(1999). The gatekeeper role should not, however, invade the
province of the jury, whose job it is to decide issues of credibility and
to determine the weight that should be accorded evidence, see
Arkwright Mut. Ins. Co. V. Gwinner Oil Co., 125 F.3d 1176, 1183 (8th
Cir. 1997). Expert testimony should be admitted if [1] it is based on
sufficient facts, [2] it “ is the product of reliable principles and
methods,” and [3] “the witness has applied the principles and
methods reliably to the facts of the case.” Fed. R. Evid. 702; see
also General Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512,
139 L.Ed.2d 508 (1997).
Vesey, 338 F.3d at 916-17. “The inquiry envisioned by Rule 702 is, we
emphasize, a flexible one” Daubert, 509 U.S. at 594-595. “It is only if an expert’s
opinion is so fundamentally unsupported that it can offer no assistance to the jury
must such testimony be excluded.” Larson v. Kempker, 414 F.3d 936, 941 (8th
Cir. 2005).
III.

Analysis
Defendant’s expert opines three fundamental assertions. First, a hearing test

has many parts to it and some of the parts are designed to give the audiologist a
certain amount of confidence in the accuracy of the test. There were inconsistent
responses given by Plaintiff in the hearing tests administered after the accident that
are suggestive of invalid or exaggerated responses that call into question the validity
of the tests. Second, when inconsistent responses are provided during a hearing
test, the appropriate course is to repeat the test, which was not done with respect to
Plaintiff. Finally, if the responses are deemed consistent, the expert concludes to a

reasonable degree of medical certainty that the reported results of the hearing tests
after the accident are no worse than the reported results of the hearing tests before
the accident. Defendant asserts that the expert’s opinion is based on his objective
analysis of the hearing tests at issue and the information that is communicated by the
imbedded parts of the test designed to determine whether the test is scientifically
valid. The scientific validity of the hearing tests is relevant to the jury’s ability to
understand what these tests mean and is critical to assisting the jury in determining
Plaintiff’s hearing loss claim. (Doc. No. 86).
Plaintiff submits that Defendant’s expert should be excluded for several
reasons.

First, Defendant failed to comply with the Court’s scheduling order

regarding timing of expert disclosures. Second, the expert’s report is not a medical
opinion that will help the jury decide if Plaintiff sustained any loss of hearing. The
expert’s opinion is merely an assertion that the technological validity of the testing
equipment is not as reliable as his own interpretation of the results. Technological
challenges are best suited for audiologists. Third, the expert is not willing to offer his
opinions with a degree of medical certainty. Finally, the closest the expert’s opinions
come to assisting the jury is the opinion that the post-accident test results were no
worse than the pre-injury test results. This opinion fails the reliability standards set
forth in Rule 702 because the expert has already opined that the post-accident test
results were, in his view, invalid. (Doc. No. 74).
After carefully reviewing the arguments of both parties and affidavit of
Defendant’s expert, the Court finds that the expert’s testimony was timely and the
arguments presented by Plaintiff go to the weight of the testimony, and not the
admissibility.

Plaintiff’s arguments are more properly the subject of cross-

examination, not the striking of the testimony.

IV.

Conclusion
For the foregoing reasons, Plaintiff’s Motion in Limine to Exclude all Testimony

from Defense Expert Dr. Andrew Pavlovich (Doc. No. 74) is DENIED

Date: October 31, 2011
Kansas City, Missouri

S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
Chief United States District Judge