Bermudez v. Michael et al
Filing
137
ORDER granting 112 Motion in Limine. Defendants' Daubert motion is GRANTED. For the reasons set forth in the attached, the court hereby precludes the use of Dr. Guy's expert reports under Federal Rule of Civil Procedure 26 and exc ludes any testimony regarding causation and prognosis offered by Dr. Guy under Federal Rule of Evidence 702. However, Dr. Guy may testify as a fact witness consistent with the limitations set forth in the attached. Ordered by Judge Kiyo A. Matsumoto on 12/21/2018. (Mazzurco, Vincent)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------X
ROBINSON BERMUDEZ,
MEMORANDUM & ORDER
15-CV-3240 (KAM)(RLM)
Plaintiff,
-againstCITY OF NEW YORK, LIEUTENANT
MICHAEL EDMONDS, SERGEANT
JONATHAN PEYER, POLICE
OFFICER MATTHEW HYNES, POLICE
OFFICER CHRISTOPHER DISTEFANO
and POLICE OFFICER NICHOLAS
RUIZ.
Defendants.
--------------------------------X
MATSUMOTO, United States District Judge:
Plaintiff Robinson Bermudez (“Bermudez” or “plaintiff”)
filed this action against the New York City Police Department’s
102nd Precinct;
Lieutenant
Michael
Edmonds;
Sergeant
Jonathan
Peyer; and Police Officers Matthew Hynes and Christopher DiStefano
on June 1, 2015, alleging excessive use of force in effecting his
arrest on March 1, 2015. 1
(ECF No. 1, Compl.)
Plaintiff amended
his complaint substituting the City of New York for the 102nd
Precinct and adding as an individual defendant Police Officer
Nicholas
Ruiz.
(ECF
No.
36,
“Am.
Compl.”)
By
stipulation,
plaintiff voluntary dismissed his claims against Peyer on May 12,
Plaintiff initially brought this action pro se but retained counsel
some time later. (See ECF No. 27, Notice of Appearance by John Tumelty on
behalf of Robinson Bermudez.)
1
2017. (ECF Nos. 60 and 61, Stipulation of Voluntary Dismissal.)
Then, defendants City of New York, Edmonds, and Hynes successfully
moved for summary judgment, leaving Officers DiStefano and Ruiz as
the remaining defendants (“defendants”).
March 30, 2018.)
(See Docket Order dated
In anticipation of trial, the parties both filed
a number of motions in limine, including a Daubert motion by
defendants, and both parties submitted briefs outlining their
outstanding objections to offered trial exhibits.
(See generally
ECF Nos. 99-116; 119-120; 122.) The court now rules on defendants’
Daubert motion.
DISCUSSION
Defendants have moved to preclude the expert testimony
of Dr. Ali Guy, M.D., plaintiff’s retained physiatrist. (See ECF
No. 115, Daubert Mot. at 1.)
On plaintiff’s behalf, Dr. Guy
submitted two expert reports.
The first, dated June 5, 2016,
consisted of Dr. Guy’s opinion on the cause of plaintiff’s alleged
injuries
after
he
reviewed
deposition testimony.
The
second,
dated
plaintiff’s
medical
records
and
(See ECF No. 113, Ex. B (“Guy Rept.”).)
September
28,
2017,
summarized
Dr.
Guy’s
subsequent physical examination of Bermudez and stated Dr. Guy’s
causation opinion, largely consistent with his first report.
ECF No. 113, Ex. C (“Supp. Guy Rept.”).)
(See
Due to plaintiff’s
incarceration, Dr. Guy did not physically examine Bermudez in
preparing the first report.
(Guy Rept. at 1.)
2
Based on a review
of plaintiff’s medical records and deposition testimony, Dr. Guy
concluded in his first report that all of plaintiff’s alleged
injuries were causally related to the alleged trauma he sustained
on March 1, 2015, and that plaintiff’s injuries were consistent
with being physically assaulted by more than one person and were
not consistent with plaintiff having suffered a fall.
(Id. at 3.)
Dr. Guy’s opinion remained the same after completing a physical
examination of plaintiff on September 28, 2017.
(Supp. Guy Rept.
at 2 (“The patient remains still with permanent injuries as a
result of the injury of March 1, 2015.
The patient remains
temporarily totally disabled.”).)
Defendants argue that the court should preclude Dr.
Guy’s testimony because it fails the standards articulated by the
Supreme Court in Daubert v. Merrell Dow Pharms., 509 U.S. 579
(1993),
and
is
therefore
Evidence 702 (“Rule 702”).
inadmissible
under
Federal
Rule
of
According to defendants, some of the
injuries on which Dr. Guy would offer his opinion are outside the
scope of a physiatrist’s expertise, thus, Dr. Guy is not qualified
to offer such opinions.
(Daubert Mot. at 4.)
Defendants next
argue that even if Dr. Guy is qualified, his expert report and his
opinions within should be precluded for a lack of reliability.
(Id. at 7.)
Finally, defendants argue that the expert testimony
Dr. Guy is actually qualified to offer would not be helpful to the
3
jurors or relevant because the inferences plaintiff seeks may
properly be made by laypersons.
(Id. at 11.)
Plaintiff responds that Dr. Guy’s testimony should be
admitted because: (1) physiatrists are qualified to treat a variety
of injuries and disorders, (ECF No. 114, Opp. at 3); (2) Dr. Guy’s
methodology was sound, sufficient, and typical of experts in the
field, (Id. at 6); and (3) Dr. Guy’s opinion will be helpful to
jurors because the alleged injuries are sufficiently complex, (Id.
at 10).
permit
In the alternative, plaintiff requests that the court
additional
disclosures.
discovery
so
he
may
supplement
his
expert
(Id. at 12.)
I. Federal Rule of Civil Procedure 26(a)(2)(B)
Before
reaching
the
merits
of
defendants’
Daubert
challenge, the court will first address plaintiff’s compliance
with Federal Rule of Civil Procedure 26 (“Rule 26”).
Federal Rule
of Civil Procedure 26(a)(2)(B) requires retained expert witnesses
to provide a report that discloses:
(i)
a complete statement of all opinions the witness
will express and the basis and reasons for them;
(ii)
the facts or data considered by the witness in
forming them;
(iii)
any exhibits that will be used to summarize or
support them;
(iv)
the witness’s qualifications, including a list
of all publications authored in the previous 10
years;
4
(v)
(vi)
Fed.
a list of all other cases in which, during the
previous 4 years, the witness testified as an
expert at trial or by deposition; and
a statement of the compensation to be paid for
the study and testimony in the case.
R.
Civ.
P.
26(a)(2)(B).
The
Rule
“guards
against
the
presentation of sketchy and vague expert reports that provide
little guidance to the opposing party as to an expert’s testimony.”
Conte v. Newsday, Inc., No. 06-CV-4859, 2011 WL 2671216, at *4
(E.D.N.Y. July 7, 2011).
The Rule 26 expert disclosure requirement is designed to
prevent a party from raising unexpected or new evidence at trial.
Id. at *4; Harkabi v. SanDisk Corp., No. 08-CV-8203, 2012 WL
2574717, at *3 (S.D.N.Y. June 20, 2012) (“The purpose of the expert
disclosure
rules
is
to
avoid
surprise
or
trial
by
ambush.”
(internal quotation marks omitted)); Ebewo v. Martinez, 309 F.
Supp. 2d 600, 607 (S.D.N.Y. 2004).
Pursuant to Federal Rule of
Civil Procedure 37, the court may preclude expert reports “if they
are
insufficiently
26(a)(2).”
detailed
and
complete
to
satisfy
Rule
Conte, 2011 WL 2671216, at *4; see also Ebewo, 309 F.
Supp. 2d at 606-07.
Dr. Guy’s report fails to meet the standards of Rule
26(a)(2).
Plaintiff satisfies part of the Rule’s requirements by
disclosing Dr. Guy’s Curriculum Vitae, (Daubert Mot. Ex. A (“Guy
CV”)), a list of cases in which he has previously testified, (Opp.
5
Ex.
1),
and
a
statement
of
his
testifying in this case, (Id.).
anticipated
compensation
for
Although Dr. Guy’s first report
details the “facts or data” that he considered in forming an
opinion,
namely
plaintiff’s
deposition
testimony
and
medical
records, it fails to sufficiently disclose the “basis and reasons”
for that opinion.
Fed. R. Civ. P. 26(a)(2).
Instead, after
recounting plaintiff’s recent medical history and complaints in
summary fashion over two pages, Dr. Guy concludes that “all of the
[plaintiff’s]
sustained
on
diagnoses
March
1,
are
causally
2015.
The
related
to
[plaintiff’s]
the
trauma
injuries
are
consistent with being physically assaulted by more than one person,
and are not consistent with a ‘fall.’”
(Guy Rept. at 3.)
He
further concludes that the injury to plaintiff’s occipital region
is “consistent with being struck by a hard object” like “the ASP
(sic) described by [plaintiff].”
(Id.)
He also connects linear
bruises from photographs of plaintiff’s back with “being struck by
a hard object” like the asp.
(Id.)
Dr. Guy does not elaborate on
which of the several alleged injuries to the plaintiff’s head he
is referring.
Dr. Guy’s second report similarly describes the
physical examination and plaintiff’s complaints, and concludes
that plaintiff “remains with permanent injuries as a result of the
injury of March 1, 2015.”
(Supp. Guy Rept. at 2.)
Aside from connecting the use of an asp to plaintiff’s
bruises and trauma to his occipital region, neither report explains
6
how plaintiff’s myriad diagnoses are causally linked to the alleged
use of force by defendants and not to some other trauma or, in the
case of hearing loss, plaintiff’s age.
While a reader of Dr. Guy’s
report might infer that some qualities of an asp caused the
plaintiff’s bruises and unspecified occipital region injuries, Dr.
Guy does not explain why an asp in particular or the kicks and
punches
plaintiff
alleges
he
endured
would
cause
any
of
the
persisting injuries plaintiff claims.
As such, the court finds that Dr. Guy’s first and second
reports do not contain “a complete statement of all opinions [he]
will express and the basis and reasons for them” and thus the
reports
do
not
satisfy
the
requirements
26(a)(2)(B)(i) (emphasis added).
of
Rule
26.
Rule
The court therefore precludes
the admissibility of both of Dr. Guy’s reports, his testimony
regarding the causation of plaintiff’s alleged injuries, and his
opinions regarding prognosis.
See, e.g., Giladi v. Strauch, No.
94-CV-3976, 2007 WL 415365, *7 (S.D.N.Y. Feb. 6, 2007) (“Preclusion
is appropriate where an expert’s report is so inadequate that it
is impossible for [the other party] to ascertain . . . the
specifics to which [the expert] will testify or any of the bases
from which [he or she] derived their conclusions.” (citation and
internal quotation marks omitted)).
As discussed infra, Dr. Guy’s
lack of explanation compels the court to further conclude that Dr.
Guy’s underlying causation and prognosis opinions are unreliable
7
and thus inadmissible pursuant to Rule 702.
See Gen. Elec. Co. v.
Joinder, 522 U.S. 136, 146 (1997) (“Trained experts commonly
extrapolate from existing data.
But . . . a court may conclude
that there is simply too great an analytical gap between the data
and the opinion proffered.”).
II. Federal Rule of Evidence 702 and Daubert
Federal Rule of Evidence 702 governs the admissibility
of expert testimony.
Fed. R. Evid. 702.
Whereas Rule 26(a) guards
against the presentation of expert reports that provide little
guidance to the opposing party as to an expert’s testimony, Rule
702 guards against the presentation of insufficiently reliable
evidence to the finder of fact.
Conte, 2011 WL 2671216, at *4.
Rule 702 permits expert testimony where:
(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
principles and methods; and
(d)
the expert has reliably applied the principles
and methods to the facts of the case.
of
reliable
Fed. R. Evid. 702.
Under the Daubert framework, the district court serves
as the “gatekeeper” to ensure that, in accordance with Rule 702,
the “expert’s testimony both rests on a reliable foundation and is
8
relevant to the task at hand.”
United States v. Williams, 506
F.3d 151, 160 (2d Cir. 2007) (quoting Daubert, 509 U.S. at 597).
“The
district
court
has
gatekeeping function.”
broad
discretion
to
carry
out
this
In re Pfizer Inc. Sec. Litig., 819 F.3d
642, 658 (2d Cir. 2016).
The district court must “make certain
that an expert, whether basing testimony upon professional studies
or personal experience, employs in the courtroom the same level of
intellectual rigor that characterizes the practice of an expert in
the relevant field.”
152 (1999).
Kumho Tire Co. v. Carmichael, 526 U.S. 137,
The proponent of the expert testimony has the burden
of establishing the admissibility of the evidence under the Daubert
framework.
In re Pfizer, 819 F.3d at 658.
Before admitting expert testimony under Rule 702 and
Daubert,
the
district
court
should
make
the
following
determinations: (a) “whether the witness is qualified to be an
expert;” (b) “whether the opinion is based upon reliable data and
methodology;”
and
(c)
“whether
the
expert’s
particular issue will assist the trier of fact.”
testimony
on
a
Marini v. Adamo,
995 F. Supp. 2d 155, 179 (E.D.N.Y. 2014) (citing Nimely v. City of
New York, 414 F.3d 381, 396-97 (2d Cir. 2005)).
III. Admissibility of Dr. Guy’s Testimony
Defendants attack Dr. Guy’s anticipated testimony on
three grounds: (a) Dr. Guy does not possess the relevant knowledge
and
experience
such
that
he
is
9
qualified
to
proffer
expert
testimony on the nature and cause of plaintiff’s alleged injuries;
(b) Dr. Guy’s opinion is conclusory and thus unreliable; and (c)
Dr. Guy’s testimony will not assist the trier of fact.
A. Qualifications
Defendants’ argue that Dr. Guy is not qualified to
testify regarding plaintiff’s many alleged injuries because Dr.
Guy
is
a
physiatrist
and
(Daubert Mot. at 4-5.)
far
cry”
from
not
orthopedist
or
neurologist.
Physiatrists, defendants argue, are “a
experts
otolaryngologic medicine.
an
in
orthopedics,
neurology,
or
(Id. at 6.)
The court may admit expert testimony if the witness is
“qualified as an expert by knowledge, skill, experience, training,
or education.”
Fed. R. Evid. 702.
The court considers the
“totality of a witness’s background when evaluating the witness’s
qualifications to testify as an expert.”
Rosco, Inc. v. Mirror
Lite Co., 506 F. Supp. 2d 137, 144-45 (E.D.N.Y. 2007).
Expert
testimony must be limited to the “issues or subject matters that
are within [the witness’s] area of expertise.”
Marini, 995 F.
Supp. 2d at 180 (citing Stagl v. Delta Air Lines, Inc., 117 F.3d
76, 81 (2d Cir. 1997)).
The
court
agrees
with
defendants
that
Dr.
Guy’s
education, training, and experience do not qualify him to render
an opinion on many of plaintiff’s alleged injuries.
physiatrist.
(Opp. at ¶ 3.)
Dr. Guy is a
Under a section headed “Medical
10
Licenses
and
“Diplomate
Certifications,”
of
the
Rehabilitation.”
American
his
Board
(Guy CV at 1.)
Curriculum
of
Physical
lists
Vitae
Medicine
and
The American Board of Physical
Medicine and Rehabilitation’s (“ABPMR,” or the “Board”) website
states that physiatrists are “doctor[s] with training in treating
disorders or disability of the muscles, bones, and nervous system.”
ABPMR
-
About
December 21,
conditions
Us,
2018).
that
may
https://www.abpmr.org/About
The
be
Board’s
treated
website
by
a
also
(last
visited
lists
certain
physiatrist,
including
“back/neck pain,” “brain injury/concussion,” “arthritis,” “chronic
pain,” “sports injury,” “complex wounds,” “spinal cord injury,”
and “muscle/nerve disorders,” among others.
Id.
Dr. Guy’s report causally links plaintiff’s following
injuries to the alleged use of force by defendants: vertigo;
tinnitus; post-concussion syndrome with reactive post-traumatic
stress syndrome, anxiety, and depression; left hearing loss with
tinnitus;
post-traumatic
lacerations and abrasions. 2
headaches;
shoulder
trauma;
and
Plaintiff has not explained why Dr.
Guy’s qualifications as a physiatrist permit him to opine on
plaintiff’s alleged hearing loss and tinnitus, vertigo, post-
Dr. Guy's list of diagnoses also includes “4. Rule out cervical and/or
lumbar disc bulge versus herniation. 5. Rule out cervical and/or lumbar
radiculopathy 6. . . . [R]ule out rotator cuff tears. 7. Rule out right hand
carpal tunnel syndrome.” (Guy Rept. at 3.) It is unclear if this notation
indicates that the diagnosis has been ruled out, may be ruled out, or
something else entirely.
2
11
traumatic stress syndrome, anxiety, and depression.
Instead,
plaintiff only argues that Dr. Guy has 35 years of experience as
a
physician,
“has
treated
numerous
involving all sorts of accidents.”
further
argues
that
Dr.
Guy’s
injuries”
and
(Opp. at ¶ 12.)
experience
“patients
Plaintiff
treating
“various
injuries and knowledge of anatomy and physiology within the context
of
the
effects
on
the
human
body”
serves
qualification to opine on plaintiff’s injuries.
as
sufficient
(Id. at ¶ 13.)
Plaintiff does not explain what various injuries and accidents Dr.
Guy has previously treated or what other specialized training he
has completed that qualify him to render an expert opinion on all
of plaintiff’s many and varied injuries alleged in this case.
As
such, the court finds Dr. Guy unqualified to make conclusions as
to
certain
of
plaintiff’s
injuries,
specifically
vertigo,
depression, anxiety, post-traumatic stress syndrome, and hearing
loss
or
tinnitus.
conclusive
or
Although
exhaustive
ABPMR’s
website
representation
of
is
any
far
from
a
individual
physiatrist’s qualifications, plaintiff has not made an adequate
or specific showing of why Dr. Guy is qualified to opine on
plaintiff’s alleged injuries.
The court finds further support for its determination
regarding Dr. Guy’s lack of qualifications in Dr. Guy’s second
report, in which he concludes that plaintiff “will also need
referral to a psychiatrist for reactive anxiety and depression[,]
12
. . . an ear, nose and throat specialist to evaluate [his] hearing
loss[,] and will also need to see a neurologist.”
(Supp. Guy Rept.
at 2.) As a generally trained physician, Dr. Guy likely recognizes
conditions that require the expertise and training of other medical
specialists to properly diagnose and treat a patient, and has
apparently done so here with respect to plaintiff.
Dr. Guy’s
suggestion to refer treatment of plaintiff’s alleged injuries
weighs heavily against finding him qualified to determine their
cause and prognosis.
As such, the court finds Dr. Guy unqualified
to offer opinions as to these injuries, their alleged causes, and
prognoses.
Though Dr. Guy may have the necessary qualifications
and experience to offer expert testimony as to some of plaintiff’s
remaining injuries, for reasons discussed infra, the court finds
Dr. Guy’s causation opinion unreliable and thus inadmissible.
B. Reliability
Defendants
next
dispute
that
sufficiently reliable under Daubert.
Dr.
Guy’s
opinion
is
They argue that Dr. Guy’s
opinion is conclusory and unsupported.
(Daubert Mot. at 9.)
Plaintiff responds that Dr. Guy conformed to the methods of other
experts in the field because he based his opinion on his experience
and education, and a review of peer-reviewed articles, textbooks,
journals, and reliable data.
(Opp. at ¶ 21.)
Additionally,
plaintiff takes issue with the defendants’ election not to depose
Dr. Guy.
(Id. at ¶ 22.)
Had defendants done so, plaintiff argues,
13
it would have been clear that Dr. Guy’s offered testimony is
reliable, admissible, and relevant.
In
assessing
reliability,
the
court
considers
the
indicia of reliability identified in Rule 702: “(1) that the
testimony is grounded on sufficient facts or data; (2) that the
testimony is the product of reliable principles and methods; and
(3)
that
the
witness
has
applied
reliably to the facts of the case.”
the
principles
and
methods
Williams, 506 F.3d at 160
(citing Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256,
265 (2d Cir. 2002)).
The Daubert inquiry is flexible, and there
is no “definitive checklist or test” for the court to follow.
Daubert, 509 U.S. at 593; Kumho Tire Co., 526 U.S. at 151 (“The
Daubert factors do not constitute a definitive checklist or test.”
(emphasis in original)).
The court “must focus on the principles and methodology
employed by the expert, without regard to the conclusions the
expert has reached,” Amorgianos, 303 F.3d at 266, but must also be
certain
“that
there
[is]
a
sufficiently
reliable
connection
between the methodology and the expert’s conclusions for such
conclusions to be admissible,” Marini, 995 F. Supp. 2d at 180
(citing Gen. Elec. Co., 552 U.S. at 146).
Expert opinions that are “based on data, a methodology,
or studies that are simply inadequate to support the conclusions
reached” must be excluded as unreliable opinion testimony under
14
Daubert and Rule 702.
Amorgianos, 303 F.3d at 266.
As part of
their gatekeeping function, courts must exclude expert testimony
that is “speculative or conjectural.”
Estate of Jaquez v. City of
New York, 104 F. Supp. 3d 414, 427 (S.D.N.Y. 2015); see also Major
League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 311
(2d Cir. 2008).
Conclusory opinions are a form of ipse dixit,
and often provide an insufficient basis upon which to assess
reliability.
Jaquez, 104 F. Supp. 3d at 426 (citing Nimely v.
City of New York, 414 F.3d 381, 396 (2d Cir. 2005); see also Gen.
Elec. Co., 522 U.S. at 146 (“[N]othing in either Daubert or the
Federal Rules of Evidence requires a district court to admit
opinion evidence that is connected to existing data only by the
ipse dixit of the expert.”); Vale v. United States of America, 673
F. App’x 114, 117 (2d Cir. 2016) (“His testimony also lacked
reliable foundation because he provided no explanation as to how
his opinion was based on his experience or medical education.”).
The court finds Dr. Guy’s opinion contained in both
reports unreliable.
Although plaintiff and Dr. Guy identify the
materials that Dr. Guy reviewed in preparing his initial report,
neither
adequately
conclusions.
explain
how
Dr.
Guy
reached
Dr. Guy’s opinion is conclusory.
his
offered
His report skips
from plaintiff’s recent medical history related to the incident
and his then-current diagnoses to Dr. Guy’s positive causation
opinion.
Dr. Guy does not explain the bases of his conclusions,
15
nor the assumptions or foundations upon which his conclusions lie.
Although the supplemental report describes Dr. Guy’s physical
examination and some new complaints by plaintiff, Dr. Guy’s opinion
remains largely the same and, key here, still conclusory: “patient
remains still with permanent injuries as a result of the injury of
March 1, 2015.” (Supp. Guy Rept. at 2.) Moreover, and as discussed
above, Dr. Guy does not explain in either report why he ruled out
a fall, some other trauma, age-related hearing loss in the case of
plaintiff’s hearing issues, or some other cause in the case of
plaintiff’s depression and anxiety.
As such, the court cannot
adequately ascertain whether Dr. Guy applied reliable principles
and methods or determine whether Dr. Guy applied them properly to
the facts of this case.
See Williams, 506 F.3d at 160.
Thus, the
plaintiff has failed to satisfy his burden under Rule 702 and the
court must exclude Dr. Guy’s opinion as unreliable.
Though
the
apparent
“analytical
gap”
in
Dr.
Guy’s
opinion is sufficient to exclude it, there are other aspects of
Dr. Guy’s reports that undercut a finding of reliability.
Elec. Co., 522 U.S. at 146.
Gen.
First, and as discussed above, the
court has already concluded that Dr. Guy is not qualified to opine
on at least some of plaintiff’s alleged injuries, indeed the more
serious and persistent ones.
See Jaquez, 104 F. Supp. 3d at 429
(“[M]ere possession of a medical degree does not qualify one to be
an expert in all medically related fields.”)
16
The court finds Dr.
Guy’s willingness to opine on these injuries troubling.
This type
of overreach—drawing conclusions in a federal litigation without
authority or necessary expertise—calls into question Dr. Guy’s
judgment, and ultimately the reliability of the opinions he might
otherwise be qualified to make.
Second, Dr. Guy’s initial report includes a number of
apparent errors as to the dates of plaintiff’s relevant treatment.
Although the court is not inclined to penalize litigants for
occasional
confuse
typographical
the
years
of
errors,
some
of
Dr.
Guy’s
plaintiff’s
report
appears
relevant
to
medical
treatments and complaints. For instance, the first report is dated
June 5, 2016 but describes events that happened after that date,
for
example:
complaints
of
back
pain,
September
29,
2016;
complaints of vertigo and lower back pain, November 18, 2016;
restricted
from
sports
activity,
February
10,
2017;
denied
Percocet, September 19, 2016; consulted with an ear, nose, and
throat specialist, April 22, 2017. (Guy Rept. at 2.)
At the very
least, these errors make the reader guess as to what the actual
dates are and further call into question the care employed in
creating the report, and its reliability as a whole.
Finally, Dr. Guy’s opinion is undercut by the length of
time that elapsed between the alleged use of force and Dr. Guy’s
physical examination of plaintiff, as recounted in his second
report.
Dr. Guy examined plaintiff on September 28, 2017—more
17
than 30 months after the incidents giving rise to this case.
Plaintiff’s significant injuries may be so enduring that this
lengthy
period
plaintiff’s
argument.
is
not
opposition
relevant,
papers
but
offer
no
Dr.
Guy’s
support
report
for
such
and
an
For the foregoing reasons, the court finds Dr. Guy’s
opinion unreliable and thus inadmissible under Rule 702.
He may
not offer testimony regarding the contents of his first report or
his underlying opinion and, as discussed above, plaintiff is
precluded from admitting either expert report.
Dr. Guy may, however, offer testimony regarding the
contents of his second report consistent with the following.
Although Dr. Guy may not testify as a qualified expert under Rule
702, the court finds that he may testify as a fact witness akin to
plaintiff’s treating physician.
See Fed. R. Civ. P. 26, advisory
committee’s note to 1993 amendment (“A treating physician, for
example, can be deposed or called to testify at trial without any
requirement for a written report.”); see also Pierce v. City of
New York, No. 16-CV-5703, 2017 WL 2623857, at *3 (E.D.N.Y. June
16, 2017).
As such, Dr. Guy may testify as to his personal
observations and findings on his examination of plaintiff on
September 28, 2017, the conduct of that examination, plaintiff’s
condition on that day, and a treatment plan he would recommend.
(See, e.g., Supp. Guy Rept. at 1-2, sections titled “Physical
Examination” and “Plan.”)
18
C. Assistance to the Trier of Fact
The court need not reach defendants’ argument that Dr.
Guy’s
testimony
would
not
assist
the
jury
in
understanding
plaintiff’s alleged injuries as the court has already concluded
that Dr. Guy may not offer his opinion.
IV. Reopening Discovery
Plaintiff requests the court to permit him to
supplement his expert reports in the event, as here, the court
finds Dr. Guy’s report insufficient.
Plaintiff has not
demonstrated good cause as to why he should be permitted a
second chance to fulfill his obligations under Rule 26.
Moreover, given that the parties are on the eve of trial, the
court declines to reopen discovery even for this limited purpose
as it would prejudice defendants and certainly delay trial in
this case that was filed on June 1, 2015.
Finally,
supplementing the expert report will not cure fundamental issues
with Dr. Guy’s lack of required qualifications or the
reliability of his opinions.
CONCLUSION
For the reasons set forth above, the court hereby
precludes the use of Dr. Guy’s expert reports under Rule 26 and
excludes any testimony regarding causation and prognosis offered
by Dr. Guy under Federal Rule of Evidence 702, but will permit
19
Dr. Guy to testify as a fact witness limited to his personal
observations of plaintiff during his examination on September
28, 2017.
SO ORDERED.
_________/s/
_____________
KIYO A. MATSUMOTO
United States District Judge
Dated: December 21, 2018
Brooklyn, New York
20
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