Smith et al v. Auto-Owners Insurance Company

Filing 129

MEMORANDUM OPINION AND ORDER by Magistrate Judge Stephan M. Vidmar DENYING 100 Plaintiff's Motion to Exclude Defendant's Medical Expert and for Summary Judgment (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MELVIN SMITH and STAN FOWLER,
Plaintiffs,1
v.

No. 15-cv-1153 SMV/GBW

AUTO-OWNERS INSURANCE COMPANY,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff’s Motion for Summary Judgement [sic]
for the Plaintiff and to Preclude the Opinion of Theodore Davis[,] M[.]D[.] and its Memorandum
in Support [Docs. 100, 101], filed February 13, 2017. Briefing is complete, [Docs. 105, 114],
and oral argument was held on June 19, 2017. The Court finds that Dr. Davis’s opinion is
relevant and reliable. Plaintiff’s challenges to Dr. Davis’s opinion go to the weight, not the
admissibility, of the opinion. Moreover, there are genuine issues of material fact about whether
Plaintiff’s injuries were caused by the accident.

Therefore, summary judgment is not

appropriate.
Background
Plaintiff Melvin Smith was traveling in an automobile insured by Defendant
Auto-Owners’ Insurance Company when it was struck from behind by a vehicle driven by a
State Farm insured. The collision caused Plaintiff’s vehicle to strike a third vehicle. Plaintiff
claims that the accident aggravated a pre-existing tear to his left rotator cuff, which caused him
1

Judgment was entered in favor of Plaintiff Stan Fowler on November 2, 2016, after he accepted Defendant’s offer
of judgment. [Doc. 84]. Melvin Smith is the sole remaining Plaintiff in this case.

to become completely disabled. State Farm’s driver was at fault for the accident. State Farm
adjusted the claim and ultimately contributed its $100,000 policy limits to satisfy the claims of
the various injured parties, including Plaintiff. As a result of the accident, Plaintiff received a
payment of $26,731.10 from State Farm and an additional $5,000 medical bill payment from
Defendant. Plaintiff contends, however, that his damages exceed the combined amounts he
received from State Farm and Defendant and that he is entitled to additional money under the
underinsured motorist policy with Defendant. Plaintiff initiated this lawsuit, claiming, among
other things, that Defendant’s failure to pay him the additional money constitutes Defendant’s
breach of the insurance contract.3 [Doc. 1-1].
Defendant has identified G. Theodore Davis, M.D., as a medical expert. In his report,
Dr. Davis opined to a reasonable degree of medical certainty that, as a result of the accident, at
most, Plaintiff “sustained a minor self[-]limiting neck[-]region soft tissue strain, and contusions,
from which he recovered without residuals within no more than a few weeks.” [Doc. 100-5]
at 18. Dr. Davis further opined that Plaintiff neither injured his left shoulder rotator cuff, nor
aggravated any preexisting injury to it. Id. He opined that Plaintiff did not become disabled as a
result of the accident. Id. He opined that Plaintiff’s injury and disability claims were motivated,
in part, by “psychosocial and secondary gain factors.” Id. Finally, he opined that even though

3

In Plaintiff’s Complaint for Breach of Underinsured Motorist Insurance Contract and Torts, he asserts four counts:
(I) Breach of Contract, (II) Punitive Damages under the Contract, (III) Complaint for Bad Faith, Misrepresentation,
and Fraud, and (IV) Declaratory Judgment. [Doc. 1-1] at 1–28. The Honorable Gregory B. Wormuth has bifurcated
discovery into two phases. “Phase 1 . . . address[es] Plaintiff’s contractual claims, and Phase 2 . . . address[es]
Plaintiff’s extra-contractual claims.” [Doc. 33] at 1. Phase 1 discovery concluded on December 9, 2016. [Doc. 82].

2

Plaintiff had “a long history of multiple medical conditions,” none was caused or aggravated by
the accident. Id.
In his motion, Plaintiff seeks two forms of relief.

First, he moves to exclude the

testimony of Dr. Davis based on Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 595
(1993). See [Docs. 100, 101]. Then, assuming Dr. Davis’ testimony is excluded, he moves for
summary judgment on causation. Id. Although Plaintiff’s rationale is unclear, the logic seems to
be that without Dr. Davis’ testimony, all that remains is the testimony of Plaintiff’s treating
physicians, all of whom agree that his injuries were caused by the accident. See [Doc. 100]
at 3−4. However, because I will deny the motion to exclude Dr. Davis’ testimony, Plaintiff’s
argument for summary judgment is rendered moot.
Standard
In evaluating a motion to exclude an expert, “[t]he focus, of course, must be solely on
principles and methodology, not on the conclusions that they generate.” Daubert, 509 U.S.
at 595. In demonstrating that an expert’s testimony is reliable, the party offering the expert
opinion “need not prove that the expert is undisputably correct or that the expert’s theory is
generally accepted in the scientific community.” Bitler v. A.O. Smith Corp., 400 F.3d 1227,
1233 (10th Cir. 2004) (internal quotation marks omitted). “Instead, [the party] must show that
the method employed by the expert in reaching the conclusion is scientifically sound and that the
opinion is based on facts which sufficiently satisfy Rule 702’s reliability requirements.” Id.

3

Rule 702 provides:
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
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 this case.
Fed. R. Evid. 702. Accordingly, before admitting expert testimony, the district court should
ensure that the testimony (1) has “a reliable basis in the knowledge and experience of [the
expert’s] discipline,” and (2) is “relevant to the task at hand.” Daubert, 509 U.S. at 592, 597; see
United States v. Chapman, 839 F.3d 1232, 1238 (10th Cir. 2016) (same).
Analysis
As to Dr. Davis’s qualifications to testify as a medical expert, he has extensive education
and experience in medicine. He earned his M.D. from Emory University, is board certified in
emergency medicine, and has more than 40 years’ experience in emergency medicine,
occupational medicine, disability evaluation medicine, general medicine, orthopaedic surgery,
and medical/legal analysis. [Doc. 100-5] at 2, 32–44. He is licensed to practice medicine in four
states, including New Mexico. Id. at 33. He reviewed Plaintiff’s medical and billing records, the
accident report and photographs from the accident, the Complaint filed in this case, the
4

vehicle-damage appraisal, Plaintiff’s answers to discovery, and a transcript of a statement from
the one of the people in the third vehicle. Id. at 2–7. His report explains his methodology in
detail. Id. at 1–31. Plaintiff does not challenge Dr. Davis’s qualification to testify as a medical
expert. See id. at 9–10.
Nor does Plaintiff dispute Dr. Davis’s methodology. Rather, Plaintiff disagrees with
Dr. Davis’s conclusions and, working back from there, argues that Dr. Davis must have erred.
First, Plaintiff argues that Dr. Davis ignored or failed to sufficiently credit certain evidence that
Plaintiff believes undercuts Dr. Davis’s opinions. For example, Plaintiff argues that Dr. Davis
should have considered and given more weight to the MRI (magnetic resonance imaging) taken
15 days after the accident, which evidenced a left rotator cuff tear; the report of Plaintiff’s
accident reconstructionist; evidence of the injuries to other people involved in the accident (the
adult and youth in a third vehicle as well as a passenger in Plaintiff’s vehicle); and evidence of
damage to the third vehicle. Plaintiff argues that Dr. Davis improperly focused on Plaintiff’s
neck, when the real issue was his left shoulder, and also failed to credit evidence linking
Plaintiff’s neck symptoms to the shoulder. Plaintiff argues that Dr. Davis erred in failing to
investigate the cause of Plaintiff’s shoulder problem, i.e., failed to do a differential diagnosis.
And Plaintiff argues that Dr. Davis’s opinion should be excluded because it takes into account
the damage to Plaintiff’s vehicle, which Plaintiff argues Dr. Davis was not qualified to assess.
Plaintiff argues that Dr. Davis did not consider or sufficiently weigh this evidence. “If he
had, . . . it would have changed his mind as a scientist.” [Doc. 114] at 9.

5

These challenges go to the weight of Dr. Davis’s opinions. They constitute material for
cross examination. They do not go to admissibility. Dr. Davis’s opinions are relevant and
reliable, and they should not be excluded based on the arguments presented by Plaintiff. See
United States v. Cavely, 318 F.3d 987, 997–98 (10th Cir. 2003) (concluding that, if methodology
and reliability of expert testimony was established, questions underlying its validity went to the
weight of the evidence, not its admissibility); see also Charles Alan Wright et al., 29 Fed. Prac.
& Proc. Evid. § 6262 (2d ed. 2016) (“Assuming the expert testimony has the earmarks of
reliability, the evidence is then admitted and subjected to the kind of adversarial attack that
facilitates the jury’s central functions of deciding what weight to attribute to evidence and which
witnesses to believe.”). Plaintiff is free to cast doubt on Dr. Davis’s opinions through vigorous
cross examination, rebuttal expert testimony, and presentation of contrary evidence.
As mentioned, Plaintiff’s briefing on his motion for summary judgment is less than clear.
Local Rule 56.1(b) requires the movant to file a memorandum containing a concise statement of
all the material facts to which the movant contends no genuine issue exists. Plaintiff has failed to
comply with that rule. Instead, Plaintiff has numbered every paragraph of his motion and
memorandum and sporadically (and in many instances, apparently randomly) tossed in
references to the record. See [Docs. 100, 101]. Nevertheless, the thrust of Plaintiff’s argument
seems to be that, assuming Dr. Davis’s testimony is excluded, Plaintiff is entitled to summary
judgment on causation. See [Doc. 100] at 3–4. My denial of Plaintiff’s motion to exclude
Dr. Davis’s testimony renders that argument moot. However, even if I had ruled in Plaintiff’s
favor on the motion to exclude, Plaintiff still would fail to show that there was no genuine issue
6

of fact on causation or that he was entitled to judgment on the undisputed facts. See [Doc. 105]
at 3–12. Accordingly, Plaintiff’s motion for summary judgment will be denied.
Conclusion
The Court finds that Dr. Davis’s opinion is relevant and reliable. Plaintiff’s challenges
fail because they are more appropriately directed at the weight of the testimony rather than its
admissibility. Moreover, Plaintiff fails to show that no genuine issue of material fact remains.
Therefore, he is not entitled to summary judgment.
IT IS ORDERED, ADJUDGED, AND DECREED that Plaintiff’s Motion for
Summary Judgement [sic] for the Plaintiff and to Preclude the Opinion of Theodore Davis[,]
M[.]D[.] [Doc. 100] is DENIED.
IT IS SO ORDERED.

_____________________________
STEPHAN M. VIDMAR
United States Magistrate Judge
Presiding by Consent

7