Tolston v. Charles Drew Health Center, Inc.
MEMORANDUM AND ORDER - IT IS ORDERED: Defendant CDHC's motion in limine (Filing No. 61 ) is denied. Ordered by Senior Judge Joseph F. Bataillon. (TCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MEMORANDUM AND ORDER
CHARLES DREW HEALTH CENTER, Inc.;
This matter is before the court on defendant Charles Drew Health Center, Inc.’s
(“CDHC”) motion to exclude the testimony of Lucile Woodard, M.D. (“Dr. Woodard”),
under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), Filing No. 61. This is an action for discrimination in employment
brought pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §
2000e, as amended; the Nebraska Fair Employment Practices Act (“NFEPA”), Neb.
Rev. Stat. § 48-1104, the Nebraska Wage Payment and Collection Act (“NWPCA”),
Neb. Rev. Stat. § 48–1228, et seq., the Emergency Medical Treatment and Active Labor
Act (“EMTALA”), 42 U.S.C. § 1395dd, and the common law and public policy of the
State of Nebraska. The plaintiff, Monique Tolston, M.D. (“Dr. Tolston”) alleges gender
discrimination; retaliation for engaging in protected activities; retaliation for reporting a
violation under the EMTALA; a retaliatory hostile environment; breach of contract and
violations of the NWPCA in connection with the termination of her employment at
CDHC. Jurisdiction is based on 28 U.S.C. § 1331.
Dr. Tolston worked as a family practice physician for CDHC from 2008 until her
termination on August 7, 2015. Plaintiff alleges that in November 2014, she reported an
unlawful medical practice to CDHC’s Medical Director and she was reprimanded for her
report, received a performance evaluation of below satisfactory, and was later
terminated without notice in contravention of her employment agreement. The plaintiff
has designated Dr. Woodard to provide expert opinion testimony regarding her
psychological conditions, aggravation of conditions, need for medications, treatment,
and potential permanency of her conditions. The defendant challenges Dr. Woodard’s
testimony, contending that Dr. Woodard lacks the specialized knowledge, education,
skill, experience, and training necessary to render an opinion on the diagnosis,
permanency, or causation of psychological conditions or aggravations of such
conditions because she is a family medicine doctor and not a psychologist or
psychiatrist. Dr. Woodard is also the plaintiff’s treating physician and is a fact witness.
The defendant concedes that Dr. Woodard may testify regarding her personal
interactions, observations, and treatment of the plaintiff.
The record shows that Dr. Lucille Woodard is who a board certified physician in
She attended medical school at the University of Nebraska and
graduated in 2005. She completed a six-week rotation in psychiatry in medical school
where she received specialized training in treating patients with mental health issues.
She completed the Clarkson Family Medicine residency and during that three-year
residency she treated patients who were diagnosed with depression and anxiety. She
has been licensed to practice medicine in the State of Nebraska since 2005.
participates in continuing medical education every year.
Dr. Woodard was employed at CDHC as a family physician from 2008 to 2011.
She was employed as a family medicine doctor from 2011 to 2016 at Nebraska
Medicine in Bellevue, Nebraska, and served as the plaintiff’s primary care physician
during that time. She treated the plaintiff at two office visits in 2015. She is now
employed at the Veterans’ Administration-Nebraska-Western Iowa as the women’s
health medical director.
She routinely treats patients with mental health issues. She estimated that 30
percent of her patients suffer from some sort of mental health disease. She also stated
that over sixty percent of mental health treatment is delivered by primary care
physicians. She testified that it is within the scope of her practice to treat patients with
mental health conditions. While she was employed at defendant CDHC she treated
psychiatric patients and CDHC billed patients for her services.
Dr. Woodard stated that her medical opinions were formed to a reasonable
degree of medical certainty. She testified that the plaintiff’s pre-existing mental health
conditions were aggravated by the protected activities she engaged in in late 2014 and
by her termination in August 2015.
District court judges “must ensure that any and all scientific testimony or
evidence admitted is not only relevant, but reliable.” Redd v. DePuy Orthopaedics, Inc.,
No. 16-3428, 2017 WL 2859536, at *2 (8th Cir. July 5, 2017) (quoting Daubert, 509 U.S.
at 589). Under Federal Rule of Evidence 702, the opinion of an expert witness is
reliable if (1) it is based on sufficient facts or data, (2) it 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. Id. An expert opinion is relevant if “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.” Fed. R. Evid. 702. “Expert
testimony assists the trier of fact when it provides information beyond the common
knowledge of the trier of fact.” Kudabeck v. Kroger Co., 338 F.3d 856, 860 (8th Cir.
2003). The rule clearly is one of admissibility rather than exclusion. Id.
“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). To the extent a party challenges the probative value of the evidence, an
attack upon the probative sufficiency of evidence relates not to admissibility but to the
weight of the evidence and is a matter for the trier of fact to resolve. United States v.
Beasley, 102 F.3d 1440, 1451 (8th Cir. 1996); see United States v. Dico, Inc., 266 F.3d
864, 871 (8th Cir. 2001) (holding “the sufficiency of the factual basis of ... [an expert's]
theory was open to any challenge [the defendant] . . . desired to mount on crossexamination, but that sufficiency was not a basis for excluding [the expert's] testimony
“[C]ases are legion that, correctly, under Daubert, call for the liberal admission of
expert testimony.” Johnson v. Mead Johnson & Co., LLC, 754 F.3d 557, 562 (8th Cir.
2014); see, e.g., United States v. Finch, 630 F.3d 1057, 1062 (8th Cir. 2011) (holding
that doubts about the usefulness of expert testimony are resolved in favor of
admissibility); Robinson v. GEICO Gen. Ins. Co., 447 F.3d 1096, 1100 (8th Cir. 2006)
(holding that expert testimony should be admitted if it “advances the trier of fact’s
understanding to any degree” (quotation omitted)); Lauzon, 270 F.3d at 686 (Rule 702
“clearly is [a rule] of admissibility rather than exclusion” (internal quotation 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.” Johnson, 754
F.3d at 564 (quoting Daubert, 509 U.S. at 590, 596).
In general, differential diagnoses are admissible under Daubert unless
scientifically invalid. Id. at 563; see Glastetter v. Novartis Pharms. Corp., 252 F.3d 986,
989 (8th Cir. 2001) (per curiam) (stating that a medical opinion about causation, based
upon a proper differential diagnosis, is sufficiently reliable to satisfy Daubert).
performing a differential diagnosis, a physician begins by ‘ruling in’ all scientifically
plausible causes of the plaintiff's injury” and “then ‘rules out’ the least plausible causes
of injury until the most likely cause remains. Glastetter, 252 F.3d at 989; see also
Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262 (4th Cir. 1999) (“A reliable
differential diagnosis typically, though not invariably, is performed after ‘physical
examinations, the taking of medical histories, and the review of clinical tests, including
laboratory tests,’ and generally is accomplished by determining the possible causes for
the patient's symptoms and then eliminating each of these potential causes until
reaching one that cannot be ruled out or determining which of those that cannot be
excluded is the most likely.”) (quoting Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802,
807 (3d Cir. 1997).
Experts are not required to rule out all possible causes when performing the
differential etiology analysis. Lauzon, 270 F.3d at 693; In re Prempro Prods. Liab. Litig.,
586 F.3d 547, 566–67 (8th Cir. 2009) (rejecting the argument that expert testimony on
the cause of plaintiff's breast cancer must be excluded because the cause of breast
cancer is generally unknown and because the plaintiff had known risk factors). Further,
“a differential expert opinion can be reliable even ‘with less than full information.’”
Johnson, 754 F.3d at 564 (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 759
(3d Cir. 1994)). Instead, such considerations go to the weight to be given the testimony
by the factfinder, not its admissibility. Id.; see also In re Prempro, 586 F.3d at 566.
The record shows that Dr. Woodard is qualified to express her expert opinion.
She relies on her examinations of the plaintiff, the plaintiff’s history, and on her own
experience treating the plaintiff and experience in diagnosing and treating mental
illness. The principles she applies are standard, accepted medical principles, and her
opinion has a sufficient basis in fact since she treated and diagnosed the plaintiff.
Causation is part of a differential diagnosis, which is generally accepted under Daubert.
The court finds that Dr. Woodard’s methodology “fits” the facts of the case and the
proffered testimony will be helpful to the jury. Any criticism of her testimony is properly
the subject of thorough cross-examination and is a reason to totally exclude the
At this time, it appears that plaintiff’s Daubert objections go more to the weight
than to the admissibility of the expert’s testimony, subject to a proper showing of
foundation and reliability. The record shows that Dr. Woodward was properly disclosed
as an expert witness as well as a fact witness and is qualified to testify to the opinions
expressed in her report. Her opinion was expressed to a degree of medical certainty
and satisfies Daubert’s reliability requirements.
The sufficiency of the opinions and the weight to be accorded them are matters
for the jury to determine. The court will properly limit the expert’s testimony to matters
that would be helpful to the jury and are within the expert’s area of medical expertise.
Accordingly, the court finds the defendant’s Daubert challenges should be rejected and
the defendant’s motion for an order in limine excluding the evidence should be denied.
IT IS ORDERED:
Defendant CDHC’s motion in limine (Filing No. 61) is denied.
Dated this 19th day of July, 2017.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge
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