Prettyman v. Apple Central KC

Filing 38

ORDER DENYING DEFENDANT'S MOTION TO STRIKE EXPERT AND PRECLUDE EXPERT TESTIMONY, 34 . Signed on 5/10/19 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
BRYAN PRETTYMAN,

)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
APPLE CENTRAL KC,
Defendant.

Case No. 18-00389-CV-W-ODS

ORDER DENYING DEFENDANT’S MOTION TO STRIKE EXPERT
AND PRECLUDE EXPERT TESTIMONY
Pending is Defendant’s Motion to Strike Plaintiff’s Retained Expert Atul Patel,
M.D., and to Preclude Expert Witness Testimony Premised on Daubert. Doc. #34. For
the following reasons, Defendant’s motion is denied.
I.

BACKGROUND

This matter stems from Plaintiff Bryan Prettyman slipping and falling at an
Applebee’s restaurant owned by Defendant Apple Central KC, LLC. Doc. #1-1. Plaintiff
alleges he “sustained significant personal injuries, aggravation of a pre-existing injury,
disfigurement, wage losses, economic losses, ongoing pain and suffering, emotional
distress, and loss of enjoyment of life.” Id. at 3. He claims his injuries are “permanent
and progressive.” Id. In January 2019, Plaintiff disclosed Atul Patel, M.D., as a retained
expert. Doc. #34-1. Defendants move to strike Dr. Patel and preclude his testimony.
II.

STANDARD

The admission of expert testimony is governed by Rule 702 of the Federal Rules
of Evidence.
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. Evid. 702. 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 in issue.” Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993). The Court uses a three-part
test when determining 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 v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001) (internal quotations and
citations omitted). “Courts should resolve doubts regarding usefulness of an expert’s
testimony in favor of admissibility.” Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 758
(8th Cir. 2006) (citations omitted).
III.

DISCUSSION

Defendant moves to exclude Dr. Patel’s testimony and opinions as to causation
because they do not meet the standards set forth in Daubert. Specifically, Defendant
argues an adequate differential diagnosis was not made in order to be legally
submissible, Dr. Patel used no methodology, and there was no technique subject to
peer review, publication, or general acceptance by the medical community. Defendant
contends “Dr. Patel’s opinions are based on nothing more than Plaintiff’s subjective
complaints.” Doc. #35, at 15.
According to his report, Dr. Patel’s opinions are based upon his clinical
experience, education, training, review of Plaintiff’s medical records, review of
radiological studies, and Plaintiff’s deposition testimony. Doc. #36-1, at 1. In his report,
Dr. Patel opined “to a reasonable degree of medical probability that Mr. Prettyman’s
problems with the back were exacerbated by his fall and are now causing him to have

2

some issues with chronic law back pain and pain into the left leg.” Id. at 3. Regarding
Plaintiff’s erectile dysfunction, Dr. Patel stated, “it is my opinion to a reasonable degree
of medical probability that [Plaintiff] is continuing to have some issues with performance
due to the pain and possibly due to medications that he may be taking for his pain. The
lack of sensation in the groin area is also likely to be contributing.” Id. at 3.
During his deposition, Dr. Patel testified that Plaintiff’s fall at the restaurant “more
likely than not” exacerbated Plaintiff’s chronic medical issues predating the fall. Doc.
#35-1, at 7, 10. Dr. Patel stated it was “extremely unlikely” that Plaintiff’s hepatic
aneurysm in 2013 contributed to his erective dysfunction; rather, he believed back pain
was the likely source of Plaintiff’s erectile dysfunction. Id. at 3, 8. While Dr. Patel ruled
out Plaintiff’s left groin, testicle, and thigh pain in July 2013 as the source of his current
medical issues, Dr Patel testified that he could not absolutely rule out “surgical issues
dealing with the hernia and the abdominal reconstruction” as causes. Id. at 8-9.
Although there are no objective signs of injuries, Dr. Patel opined Plaintiff’s current
condition was caused by the fall. Id. at 10. His opinion was based upon “[t]he
distribution of symptoms, the type of symptoms and his history of the areas where he
had had problems previously,” as well as Dr. Patel’s “clinic experience and seeing this
in other patients.” Id. at 10.
According to the Eighth Circuit, “cases are legion that, correctly, under Daubert,
call for the liberal admission of expert testimony.” Johnson v. Mead Johnson & Co., 754
F.3d 557, 562 (8th Cir. 2014) (citations omitted). “As long as the expert’s scientific
testimony rests upon ‘good grounds, based on what is known’ it should be tested by the
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). An expert’s
opinion should be excluded only if the “opinion is so fundamentally unsupported that it
can offer no assistance to the jury.” Synergetics, Inc. v. Hurst, 477 F.3d 949, 956 (8th
Cir. 2007).
Experts “are not required to rule out all possible causes when performing the
differential etiology analysis.” Johnson, 754 F.3d at 563 (citations omitted). Further,
even if a differential diagnosis is based upon “less than full information,” the Eighth
Circuit has concluded an expert’s opinion can still be reliable. Id. at 564 (citation

3

omitted). If there are flaws in the expert’s methods or another expert may reach a
different conclusion, “such considerations go to the weight to be given the testimony by
the factfinder, not its admissibility.” Id. (citation omitted). “[T]he jury, not the trial court,
should be the one to ‘decide among the conflicting views of different experts.’” Id.
(quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 153 (1999)).
Based upon the record before it, the Court finds Dr. Patel’s opinions and
testimony rest upon good grounds, are based upon what is known, are supported by
medical records and Plaintiff’s testimony, and may assist the jury. Moreover, any
doubts the Court has with regard to Dr. Patel’s opinions and testimony must be resolved
in favor of admissibility. See Johnson, 754 F.3d at 562; Marmo, 457 F.3d at 758. The
jury will consider Dr. Patel’s opinions and testimony, the factual sources of his opinions
and testimony, determine his credibility, and afford whatever weight to his opinions and
testimony as the jury sees fit. Accordingly, the Court denies Defendant’s motion.
IV.

CONCLUSION

Based upon the foregoing reasons, the Court denies Defendant’s Motion to
Strike Plaintiff’s Retained Expert Atul Patel, M.D., and to Preclude Expert Witness
Testimony Premised on Daubert.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: May 10, 2019

4