Siems et al v. Bumbo International Trust et al

Filing 87

ORDER AND OPINION DENYING DEFENDANTS' MOTION TO EXCLUDE OPINIONS OF PLAINTIFFS' MEDICAL EXPERTS 61 . Signed on 11/7/14 by District Judge Ortrie D. Smith. (Matthes, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

JESSICA and JESSIE SIEMS,
Individually and as next Friends of
J.S., a Minor
Plaintiffs,
vs.
BUMBO INTERNATIONAL TRUST,
f/k/a Jonibach Management
Trust and TARGET CORPORATION,
Defendants.

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Case No.: 13-0796-CV-W-ODS

ORDER AND OPINION DENYING DEFENDANTS’
MOTION TO EXCLUDE OPINIONS OF PLAINTIFFS’ MEDICAL EXPERTS
Defendants Bumbo International Trust and Target Corporation move to strike the
opinions of Plaintiffs’ Medical Experts (Doc. #61). The Motion is denied.
I.

Background

At issue are two medical expert reports: one rendered by Dr. Brian Woodruff
(“Woodruff”) and one rendered by Dr. Peter Stavinoha (“Stavinoha”). On October 2,
2014, the Court entered an Order deferring judgment on Defendants’ Motion pending a
Daubert Hearing (Doc. # 84). On November 4, 2014, the hearing was held to determine
the following issues: (1) whether Woodruff would testify that the terms “closed heard
injury,” “concussion,” and “mild traumatic brain injury” are synonymous; (2) if Woodruff
would not testify that the aforementioned terms are synonymous, what his basis for mild
traumatic brain injury is; and (3) the extent to which Stavinoha relied on Dr. Woodruff’s
opinion of mild traumatic brain injury.

II.

Legal Standard

The district court must make a “preliminary assessment of whether the reasoning
or methodology underlying the testimony is scientifically valid and of whether that
reasoning or methodology can be applied to the facts at issue.” Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 592-93 (1993). In determining the admissibility of expert
testimony, the Eighth Circuit uses 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.
Lauzon v. Senco Products, Inc., 270 F.3d 681, 686 (8 th Cir. 2001) (internal quotations
and citations omitted). The third requirement is based on Federal Rule of Evidence
702, which permits expert opinions at trial if, “(1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable principles and methods, and (3)
the expert has reliably applied the principles and methods to the facts of the case.”
Further, in “its attempt to determine whether proffered scientific evidence is scientifically
valid, a trial court should ordinarily consider, among other factors, the following: (1)
whether the underlying theory or technique can be or has been tested; (2) whether the
theory or technique has been subjected to peer review and publication; (3) whether the
technique has a known or knowable rate of error; (4) whether the theory or technique is
generally accepted in the relevant community.” Jaurequi v. Carter Mfg. Co., 173 F.3d
1076, 1082 (8th Cir. 1999). “This list of factors is not exclusive, and the trial court is left
with great flexibility in adapting its analysis to fit the facts of each case.” Id.
III.

Dr. Brian Woodruff

The Court determined in its October 2, 2014, Order (Doc. #84) that Woodruff was
qualified to testify as an expert in neurology and Woodruff’s failure to personally
examine J.S. addressed the weight of his testimony, rather than its admissibility. The
Court will not further discuss these issues.
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A. Opinion Regarding J.S. Suffering a Mild Traumatic Brain Injury
Defendants cite several reasons why Woodruff’s opinion that J.S. suffered a mild
traumatic brain injury should be excluded. Defendants argue Woodruff’s opinion is
based on just one report of drowsiness. However, Woodruff does not rely on a single
report of drowsiness to support his opinion. In his report, Woodruff explicitly states his
opinion is “based on data from [J.S.’s] mother’s deposition and discharge diagnosis.”
(Doc. # 61-4, Pg. 3). At the Daubert hearing, Woodruff testified he primarily relied on
three items in forming his opinion: (1) the mechanism of the injury, (2) the discharge
diagnosis of “closed head injury,” and (3) the mother’s reports about J.S.’s behavior.1
Woodruff testified that in his understanding and education a diagnosis of “closed
head injury” would include mild, moderate and severe traumatic brain injury; and that a
closed head injury necessarily includes a traumatic brain injury of some sort. Woodruff
also testified that the specific data from the mother’s deposition on which he relied were
the mother’s reports of J.S.’s drowsiness immediately following the injury and the
mother’s reports that J.S. was not herself and out of sorts for several months after the
injury. Woodruff stated a report of drowsiness or lethargy is significant because it is a
“core” symptom of mild traumatic brain injury. Woodruff noted a child experiencing
drowsiness after a fall is a concerning sign and changes the direction of his “work up.”
Moreover, Woodruff testified a 2003 CDC report conceptually defines mild traumatic
brain injury as blunt trauma to the head that results in irritability and/or lethargy in
infants. Therefore, the Court finds Woodruff has a sufficient basis for his opinion that
J.S. suffered a mild traumatic brain injury.
Next, Defendants state, “Woodruff has not sufficiently ‘ruled in’ a traumatic brain
injury as the cause of the drowsiness as compared to other possible explanations for
drowsiness.” The Eighth Circuit has “consistently ruled that experts are not required to
rule out all possible causes.” Johnson v. Mead Johnson & Co., LLC, No. 13-1685, 2014
WL 2535324, at *5 (8th Cir. June 6, 2014). In Johnson, the Eighth Circuit held that
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In their Reply Brief, Defendants argue Plaintiffs attempt to expand the basis of Woodruff’s opinion in
contravention of Federal Rule of Civil Procedure 26(a)(2)(B)(i). However, Woodruff’s testimony at the
Daubert hearing confirms that, as stated in his report, his opinion is based on information from J.S.’s
mother’s deposition and on J.S.’s discharge diagnosis.

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because “[n]o one disputes that Enfamil can be and has been a source of C. Sak,” an
expert had properly “ruled in” Enfamil as a possible source of the plaintiff’s C. Sak. Id.
Here, no one disputes that drowsiness can and has been a symptom of mild traumatic
brain injury. Woodruff has sufficiently “ruled in” a traumatic brain injury as a possible
cause of J.S.’s drowsiness.
Finally, Defendants argue Woodruff’s opinion should be excluded because J.S.
has not experienced any symptoms or concerns related to mild traumatic brain injury
since the incident occurred. At the Daubert hearing, Woodruff testified it can be more
difficult to determine if young children are having issues related to mild traumatic brain
injury because of their inability to communicate. Woodruff further testified that the
repertoire of what children can do expands each year as they get older, and thus
symptoms of mild traumatic brain injury may not crop up until a child is older.
For the foregoing reasons, the Court finds Woodruff’s opinion regarding J.S.
suffering a mild traumatic brain injury sufficiently reliable.
B. Opinion Regarding Future Concerns with J.S.
Defendants contend Dr. Woodruff’s statement that “[c]hildren with a…mild
traumatic brain injury are at increased risk of cognitive and behavioral difficulties” is
unreliable, because Missouri law requires a reasonable certainty of future medical
issues. However, this rule of law determines whether a party may recover damages – it
does not determine whether a piece of evidence is admissible. In Lesch v. U.S.,
doctors testified about the plaintiff’s future care and treatment needs, even though some
of those future medical needs only “may” have been necessary. 612 F.3d 975, 982 (8th
Cir. 2010). Additionally, at the Daubert hearing, Woodruff testified that it is a medical
certainty that J.S. is at an increased risk for future difficulties.
In any event, Woodruff is reasonably certain J.S. has an increased risk of future
concerns and that this increased risk requires certain medical treatment or diagnosis.
The increased risk need not equate to a greater than 50% likelihood of the additional
effects actually occurring. Consequently, the Court finds Woodruff’s opinion regarding
future concerns with J.S. sufficiently reliable.

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IV.

Dr. Peter Stavinoha

The Court determined in its October 2, 2014, Order (Doc. #84) that Stavinoha
was qualified to testify as an expert in neuropsychology but as a neuropsychologist, he
could not render a medical opinion as to whether J.S. suffered a mild traumatic brain
injury. No further discussion of these issues is necessary.
Defendants provide several reasons why Stavinoha’s opinion regarding the need
for future testing of J.S. should be excluded. First, Defendants maintain Stavinoha’s
opinion should be excluded because it is based on Woodruff’s unreliable diagnosis of
mild traumatic brain injury. As discussed in Section III.A, the Court finds Woodruff’s
opinion sufficiently reliable. Additionally, at the Daubert hearing, Stavinoha testified that
in his practice as a neuropsychologist, he routinely relies on referrals from neurologists,
such as Woodruff’s diagnosis.
Next, Defendants argue Stavinoha’s opinion should be excluded because he has
not met or evaluated J.S. While Stavinoha may not have met or evaluated J.S., the law
does not require him to do so. Rather, Federal Rule of Evidence 703 states, “an expert
may base an opinion on facts or data in the case that the expert has been made aware
of or personally observed.” Defendants’ argument addresses the weight of Stavinoha’s
testimony, not its admissibility.
Further, Defendants contend Stavinoha’s opinion should be excluded because
J.S. has not experienced any symptoms or concerns related to mild traumatic brain
injury since the incident occurred. In his report, Stavinoha maintains neurocognitive and
neurodevelopment difficulties may not manifest until later in a child’s life. For example,
Stavinoha stated in his report and confirmed at the Daubert hearing “that cognitive
functions such as executive functions do not mature until well into adolescence.” (Doc.
#61-5, Pg. 3).
Finally, Defendants assert Stavinoha’s opinion should be excluded because he
has not established J.S. is reasonably certain to have future neurological issues. As
discussed in Section III.B, the Court finds this argument unpersuasive.

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For these reasons, the Court will not exclude Stavinoha’s opinion that J.S.
requires future testing.
V.

Conclusion

For the foregoing reasons, the Motion to Strike the Opinions of Plaintiffs’ Medical
Experts is denied.

IT IS SO ORDERED.

/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: November 6, 2013

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