Robinson v. Suffolk County Police Department et al
Filing
102
ORDER re Defendants' objections to Plaintiff's purported expert report [DE 98]. Plaintiff is precluded from introducing Dr. Durkin as an expert witness under Rule 26 at trial. The purported "expert report" is also precluded. How ever, Dr. Durkin may testify at trial in his capacity as Plaintiff's treating physician in accordance with this Order. If Defendants' counsel intends to take the deposition of Dr. Durkin as Plaintiff's treating physician, he must do so prior to the November 14, 2011 trial date.Since the issues surrounding Dr. Durkin's testimony are now resolved, the Court finds that a conference to address this matter (see DE 99, 101) is moot and no longer necessary. However, the Court is scheduling a trial preparation conference for October 26, 2011 at noon. Both sides are required to attend in person. Defendants' counsel is directed to serve a copy of this Order upon the Plaintiff pro se forthwith and to file proof of service on ECF. SEE ATTACHED ORDER for my detailed rulings. Ordered by Magistrate Judge A. Kathleen Tomlinson on 10/17/2011. (Sofio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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RONALD S. ROBINSON,
Plaintiff,
ORDER
- against CV 08-1874 (AKT)
SUFFOLK COUNTY POLICE DEPARTMENT,
POLICE OFFICER JOHN VALENTE # 5939/510/01,
POLICE OFFICER BRIAN RATHBURN #35302/510/01,
DETECTIVE MILTON GONZALEZ #861/3150, both in
their official capacities as police officers and detective
and in their personal capacities,
Defendants.
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A. KATHLEEN TOMLINSON, Magistrate Judge:
Presently before the Court is Defendants’ objections to Plaintiff’s purported expert report
dated August 19, 2011. See DE 98. The report at issue was drafted by Plaintiff’s treating
physician, Dr. Brian Durkin, who is the current Director of the Center for Pain Management
within the Department of Anesthesiology at the Stony Brook University Medical Center.
Defendants argue that the most recent submission “is wholly inadequate and does nothing to cure
the defects of the prior attempts” by Dr. Durkin. As such, Defendants object to the purported
report and any attempt of Plaintiff to offer testimony designated to reach the conclusions
contained in the report.
I.
BACKGROUND
As reflected in the docket of this action, the Court has given the pro se Plaintiff multiple
opportunities to serve an expert report that complies with Rule 26 of the Federal Rules of Civil
Procedure. During the April 6, 2011 Status Conference, Plaintiff notified the Court of his
intention to introduce an expert witness in the case, namely, his treating physician, Dr. Durkin.
See DE 84,
¶ 3. At a subsequent Pre-Trial Conference held on June 27, 2011, Plaintiff advised
the Court that he served Defendants’ counsel with an expert report prior to the April 26, 2011
deadline. Defendants’ counsel argued, however, that the report, consisting of a one-page letter,
did not comply with Rule 26. After reviewing the purported expert report, the Court agreed with
Defendants’ counsel and found that Dr. Durkin’s report did not satisfy the requirements of Rule
26. See DE 93, ¶ 2. After providing Plaintiff with a copy of Rule 26(a)(2)(B), which lists the
information that must be addressed in the expert report, the Court went on to state the following:
In this case, it is clear from the Plaintiff’s statements that he intends
to have his treating physician testify in an expert capacity. That is
perfectly acceptable, so long as the expert complies with the
requirements of Rule 26. Here, the Court is advised by the Plaintiff
that his physician will be testifying as to causation as it relates to the
underlying incident. Specifically, the doctor presumably will be
offering an opinion, “with a reasonable degree of medical certainty”
(the standard for expert testimony), that the neck injury sustained by
the plaintiff was directly caused by the incident underlying this
lawsuit. In order to do so, the doctor must file a complete expert
report, setting forth all the required information and documentation
provided for in Rule 26, including what he relied upon in forming his
opinion (e.g., medical records, prior experience, medical treatises, the
physician’s own publications, etc.). The report should be divided by
(and address) the six categories of information stated in Rule 26.
Plaintiff is urged to give a copy of this Order to the physician to assist
him in this process.
Id. At this same Conference, the Court gave Plaintiff one final opportunity to serve Defendants’
counsel with an expert report that satisfies the requirements of Rule 26. An August 5, 2011
deadline was given for such service to be made and another conference was scheduled for
August 22, 2011.
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Subsequent to the June 27, 2011 Conference, Plaintiff submitted to the Court and
Defendants’ counsel another single-page letter from Dr. Durkin dated July 18, 2011. On August
15, 2011, Defendants’ counsel objected to this purported expert report since it failed to comply
with Rule 26 on its face and was, according to Defendants, completely speculative. See DE 95.
At the August 22, 2011 Conference, Plaintiff provided Defendants’ counsel and the Court with
additional documents from Dr. Durkin. These documents included: (1) an August 3, 2011 letter
from Dr. Durkin setting forth his deposition fee; (2) an August 19, 2011 letter which appears to
be Dr. Durkin’s most recent purported expert report; and (3) Dr. Durkin’s curriculum vitae. See
DE 96, ¶ 1. In light of this new information, the Court granted Defendants’ counsel ten (10) days
to review the materials and submit any opposition to the Court. On August 31, 2011,
Defendants’ counsel submitted his objections which is the basis for the instant dispute.
II.
DISCUSSION
The Court explicitly instructed Plaintiff during the June 27, 2011 Conference that he had
one final opportunity to cure the deficiencies contained in the previously submitted expert
reports. The purported August 19, 2011 “expert report” and the other submissions from Dr.
Durkin not only fail to rectify all the deficiencies contained in the previously submitted expert
reports but they also bring to light other serious concerns regarding Dr. Durkin’s anticipated
expert testimony. Rule 26 explicitly states that an expert report must contain the following:
(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;
(v) 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 (vi) a
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statement of the compensation to be paid for the study and testimony
in the case.
Fed. R. Civ. P. 26(a)(2)(B). Courts may strike expert reports that are incomplete and
insufficiently detailed to satisfy Rule 26(a)(2). See Conte v. Newsday, Inc., No. CV 06-4859,
2011 WL 2671216, at *4 (E.D.N.Y. July 7, 2011) (“An expert report that lacks detailed
discussion and fails to include any of the underlying conclusions on which the experts’ ultimate
opinions are based violates Rule 26(a)(2)(B) and may be excluded pursuant to Rule 37.”)
(internal quotations omitted); Smolowitz v. Sherwin-Williams Co., No. 02-CV-5940, 2008 WL
4862981, at *3 (E.D.N.Y. Nov 10, 2008) (“A party that fails to satisfy the Rule 26 disclosure
requirements without justification is precluded from offering expert witnesses at trial.”)
Putting aside the fact that the most recent proposed expert report satisfies only some of
the Rule 26 requirements when it is considered in conjunction with Dr. Durkin’s other
submissions,1 other Rule 26 requirements are either missing or inadequately addressed. For
instance, the purported expert report (or the other submissions from Dr. Durkin) fails to identify
or attach any exhibits that will be used by Dr. Durkin to support the opinions rendered in his
report. In addition, while the purported report contains Dr. Durkin’s ultimate opinion that
Plaintiff “was the recipient of some type of violence that likely led to the disc bulge at C3-C4,"
the report does not explain the basis and reasoning behind this opinion. In fact, all Dr. Durkin
states in the report is that prior cervical spine scans revealed an essentially normal C3-C4 level
and that a subsequent cervical spine scan was done on March 9, 2007. While the Court presumes
that it is Dr. Durkin’s belief that this March 9, 2007 spine scan evidences a disc bulge that was
1
For example, Dr. Durkin provides an August 3, 2011 letter stating his hourly and per
day fee.
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not present in previous spine scans, the report inadequately explains Plaintiff’s injury and the
cause of the same. Likewise, Dr. Durkin does not provide any basis or reasoning supporting his
opinion that Plaintiff “has more chronic pain now.” Therefore, in this Court’s view, Dr. Durkin’s
report does not satisfy the requirements of Rule 26(a)(2)(B) and should be excluded. See
Smolowitz, 2008 WL 4862981, at *3 (finding plaintiff’s purported expert report which failed to
explain the basis for the opinions rendered inadequate).
Separate from the issue of whether Dr. Durkin’s report was in compliance with Rule 26 is
the admissibility of the “expert” testimony which Dr. Durkin seeks to offer in this case. See
Conte, 2011 WL 2671216, at *4 (“Whereas Rule 26(a) guards against the presentation of sketchy
and vague 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.”). Federal Rule of Evidence 702, which governs the admissibility of expert
testimony, provides as follows:
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion
or otherwise, 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 witness has applied the principles and methods
reliably to the facts of the case.
Fed. R. Evid. 702; see also Nimely v. City of New York, 414 F.3d 381, 396 (2d Cir. 2005) (“Rule
702 governs the district court’s responsibility to ensure that any and all scientific testimony or
evidence admitted is not only relevant, but reliable.”) (internal quotations omitted). As a starting
point, the Court concludes that Dr. Durkin’s expert testimony is not based upon sufficient facts
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or data. Dr. Durkin opines that “Mr. Robinson was the recipient of some type of violence that
likely led to the disc bulge at C3-C4.” This opinion appears to be based from his review of
“cervical spine scans from 2005 and 2006;” the “report of the physician who cared for Mr.
Robinson;” and a March 9, 2007 cervical spine scan. However, there is no delineation as to what
specifically from the limited records identified here led to this opinion. Also, there is no
indication from Dr. Durkin that any of the pleadings or deposition transcripts from this suit were
reviewed and considered in forming his opinion.
It is also clear to the Court that Dr. Durkin’s anticipated “expert” testimony would be
unreliable since “reliability within the meaning of Rule 702 requires a sufficiently rigorous
analytical connection between [the] methodology and the expert’s conclusions.” Nimely, 414
F.3d at 396. Here, Dr. Durkin’s opinion that some type of violence likely led to the disc bulge
evidences the lack of reliability of his expected testimony. It is this Court’s view that such
assertion without further explanation or support falls far short of the “reasonable degree of
medical certainty” standard required for an expert’s testimony. In addition, there is no
amplification of the reasoning or methodology by which Dr. Durkin reaches his conclusion that
some violence led to Plaintiff’s alleged injury. Considering the testimony itself, coupled with the
lack of reasoning and methodology behind such testimony, this Court is left to conclude that
“there is simply too great an analytical gap between the data and the opinion proffered.” General
Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997); see also
Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 266 (2d Cir. 2002) (“When an expert
opinion is based on data, a methodology, or studies that are simply inadequate to support the
conclusions reached, Daubert and Rule 702 mandate the exclusion of that unreliable opinion
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testimony.” ).
Furthermore, expert testimony which “usurp[s] either the role of the trial judge in
instructing the jury as to the applicable law or the role of the jury in applying that law to the facts
before it” does not, by definition, assist the jury. United States v. Bilzerian, 926 F.2d 1285, 1294
(2d Cir. 1991). Dr. Durkin’s opinion that Plaintiff “has more chronic pain now than he would if
he was never attacked by the Suffolk County Police while in custody” does just that. While the
Court appreciates the fact that Plaintiff is appearing pro se, he “must still comport with the
procedural and substantive rules of law.” Javino v. Town of Brookhaven, No. 06-CV-1245, 2008
WL 656672, at *3 (E.D.N.Y. Mar. 4, 2008). This includes putting forth admissible expert
testimony if a plaintiff intends to present an expert. See Viscusi v. Proctor & Gamble, No. 05CV-1528, 2007 WL 2071546, at *8 (E.D.N.Y. July 16, 2007) (precluding pro se plaintiff’s
expert and expert report). As such, Plaintiff is hereby precluded from utilizing Dr. Durkin as an
expert. The one-page “expert report” is also precluded.
Notwithstanding this holding, however, Dr. Durkin is still permitted to testify in this
action. Dr. Durkin states that he has been Plaintiff’s treating physician for the past two years. A
treating physician need not serve an expert report in order to testify. See, e.g., Reilly v. Revlon,
Inc., No. 08 Civ. 205, 2009 WL 2900252, at *3 (S.D.N.Y. Sept. 9, 2009) (“Treating physicians
do not need to be designated as experts in order to testify.”); Monroe-Trice v. Unum Emp. ShortTerm Disability Plan, No. 00 Civ. 6238, 2003 WL 68033, at *1 (S.D.N.Y. Jan. 8, 2003) (“Rule
26(a)(2)(B) does not require a treating physician to provide a report as a predicate to testifying
for his patient.”). However, without properly declaring a treating physician as an expert witness,
the physician’s testimony is limited to certain parameters, including his/her care and treatment of
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the patient. See Turner v. Delta Air Lines, No. 06-CV-1010, 2008 WL 222559, at *1 (E.D.N.Y.
Jan. 25, 2008) (“[I]f the witness testifies only to the opinions formed in providing plaintiff
medical care, such opinions are considered an explanation of treatment [ ] and the physician may
properly be characterized as a fact witness.”); Monroe-Trice, 2003 WL 68033, at *2 (“The doctor
will, however, be permitted to testify about his evaluation and treatment of plaintiff, and may
express his opinions about the plaintiff’s condition and prognosis based upon his observations
while treating plaintiff.” ); Lamere v. New York State Office for the Aging, 223 F.R.D. 85, 89
(N.D.N.Y. 2004) (“It is indeed certain that a treating physician, who has not complied with the
reporting requirements of Rule 26(a)(2)(B), should not be permitted to render opinions outside
the course of treatment and beyond the reasonable reading of the medical records.”); Peck v.
Hudson City Sch. Dist., 100 F. Supp. 2d 118, 121 (N.D.N.Y. 2000) (“[T]o the extent that a
treating physician testifies only to the care and treatment of the patient, the physician is not
considered to be a ‘specially employed’ expert and is not subject to the written report
requirements of Rule 26(a)(2)(B).”).
Therefore, the key to what a treating physician can testify to without being declared an
expert is based on his personal knowledge from consultation, examination and treatment of the
Plaintiff, “not from information acquired from outside sources.” Mangla v. Univ. of Rochester,
168 F.R.D. 137, 139 (W.D.N.Y. 1996); see also Smolowitz, 2008 WL 4862981, at *4 (stating
that a treating physician’s testimony “must be based on information that he has acquired in his
role as a treating physician.”) (emphasis added); Salas v. United States, 165 F.R.D. 31, 33
(W.D.N.Y. 1995) (“The relevant question is whether these treating physicians acquired their
opinions . . . directly through their treatment of the plaintiff.”). Courts in this Circuit have
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commented that a treating physician cannot be limited to solely factual testimony. Lamere, 223
F.R.D. at 87; Byrne v. Gracious Living Indus., Inc., No. 01 Civ. 10153, 2003 WL 446474, at *2
(S.D.N.Y. Feb. 25, 2003) (“A treating physician who is called to testify to information acquired
solely in that role, as opposed to giving an opinion formulated for trial, is not an expert for
purposes of Rule 26(a)(2)(A)” and that physician may render expert opinion testimony regarding
causation even without submitting a detailed report). As the court noted in Lamare,
It is a given that there are facts to which a treating physician would
testify to in order to explain the treatment, diagnosis, and prognosis
provided to the patient. Those facts would be the patient’s on-going
medical history, the course of treatment, medication and other
prescriptions, and any other relevant facts germane to the course of
treatment. But we cannot completely limit a treating physician to
solely factual testimony. A treating physician is no less a person with
specialized knowledge and, in the scheme of her physician duties,
provides opinions of various nature in the process of treating to her
patient. In this respect, we view the doctor’s testimony as far broader
than just a mere fact witness but as an expert in that the doctor’s [ ]
scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue
[.] [A] witness qualified as an expert by knowledge, skill, experience,
training or education, may testify thereto in the form of an opinion or
otherwise, 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 witness has applied the principles and methods reliably to
the facts of the case.
Lamere, 223 F.R.D. at 87-88 (quoting Fed. R. Evid. 702). The court in Lamere concluded that
physicians are expert witnesses where testimony is governed by Rule 702 rather than 701, even
though they do not fall within the confines of experts under Rule 26. See Reilly, 2009 WL
2900252, at *3 (concluding that treating physicians may give opinion testimony about Plaintiff’s
condition and emotional damages pursuant to Fed. R. Evid. 702).
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If Dr. Durkin is to provide testimony in his own right with regard to causation, his
testimony must nonetheless be limited to and based upon the information that he has acquired in
his role as a treating physician. Smolowitz, 2008 WL 4862981, at *4. As one court has noted,
“[a] doctor’s opinions on the issue of causation are relevant, indeed, necessary, to the treatment
of the patient and therefore constitute an explanation of treatment.” Turner, 2008 WL 222559, at
*2. Accordingly, Dr. Durkin may testify as a treating physician and will be permitted to offer
opinion testimony on diagnosis, treatment, prognosis and causation, but solely as to the
information he has acquired through observation of the Plaintiff in his role as a treating physician
limited to the facts in Plaintiff’s course of treatment.
III.
CONCLUSION
In light of the foregoing findings, Plaintiff is precluded from introducing Dr. Durkin as an
expert witness under Rule 26 at trial. The purported “expert report” is also precluded. However,
Dr. Durkin may testify at trial in his capacity as Plaintiff’s treating physician in accordance with
this Order. At the time of trial, Dr. Durkin will be given an instruction from the Court, outside
the presence of the jury, regarding the parameters of his testimony. The pro se Plaintiff is free to
share this Order with Dr. Durkin in the interim. If Defendants’ counsel intends to take the
deposition of Dr. Durkin as Plaintiff’s treating physician, he must do so prior to the
November 14, 2011 trial date.
Since the issues surrounding Dr. Durkin’s testimony are now resolved, the Court finds
that a conference to address this matter (see DE 99, 101) is moot and no longer necessary.
However, the Court is scheduling a trial preparation conference for October 26, 2011 at noon.
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Both sides are required to attend in person.
Defendants’ counsel is directed to serve a copy of this Order upon the Plaintiff pro se
forthwith and to file proof of service on ECF.
SO ORDERED.
Dated: Central Islip, New York
October 17, 2011
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
U.S. Magistrate Judge
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