Hernandez v. Leichliter et al

Filing 93

MEMORANDUM AND ORDER. Although "exclusion [of expert testimony] remains 'the exception rather than the rule,"' Vazquez v. City of New York, No. 10-CV-6277 (JMF), 2014 WL 4388497, at *12 (S.D.N.Y. Sept. 5, 2014) (quoting Floyd v. C ity of New York, 861 F. Supp. 2d 274, 287 (S.D.N.Y. 2012)), the Court finds that Dr. Pugh's testimony does not "rest[] on a reliable foundation" in light of the significant problems identified above. See Daubert, 509 U.S. at 597. For these reasons, Defendants' motion to exclude the testimony of Dr. Pugh is GRANTED. This resolves Dkt. No. 69. So ordered. Granting 69 Motion to Preclude. (Signed by Judge Alison J. Nathan on 5/18/2016) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDCSDNY
DOCUl\fENT
ELECTRONICALLY FILED
DOC#:
--DATE FILED:

Jhonatan D. Hernandez,

.

fES \

8 20'8

Plaintiff,
14-CV-5500 (AJN)

-vMEMORANDUM AND
ORDER

Norward L. Leichliter et al.,
Defendants.

ALISON J. NATHAN, District Judge:
Defendants in the above-captioned actioned moved to preclude the testimony of
Plaintiff's expert, Dr. James Pugh, pursuant to Federal Rule of Evidence 702 and Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and its progeny. See Dkt. No. 69. For
the reasons articulated below, Defendants' motion is GRANTED.

I.

BACKGROUND
This lawsuit arises out of a car accident on the George Washington Bridge. Both sides

agree that on November 15, 2013, Plaintiff Hernandez was traveling eastbound on the upper
level of the George Washington Bridge in a 2013 Honda Accord with Charlie Cruz and Rafael
Lopez. Dkt. No. 70 Ex. C. ("Pugh R.") at 6-7; id. Ex. B ("McRae R.") at 3. Defendant
Leichliter was driving a 1999 Volvo WG truck eastbound to the left of the Honda. Pugh R. at 7.
At some point, the left rear side of the Honda made contact with the right front side of the Volvo.

Id. Plaintiff alleges that Defendant Leichliter caused the accident and further alleges that he has
suffered serious physical injury as a result. Dkt. No. 1 at 10.
Defendants have procured the testimony of Dr. Calum McRae, a biomechanist who
conducted a "biomechanical injury causation analysis" to determine if the accident in question
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was sufficiently severe to have caused Plaintiff's injuries. McRae R. at 4, 14. In response,
Plaintiff seeks to introduce testimony from Dr. James Pugh on accident causation and Plaintiff's
injuries. It is Dr. Pugh's testimony that Defendants now challenge under Rule 702 and Daubert.

II.

LEGALSTANDARD
The party seeking to introduce expert testimony "bears the burden of establishing its

admissibility by a preponderance of the evidence." Baker v. Urban Outfitters, Inc., 254 F. Supp.
2d 346, 353 (S.D.N.Y. 2003). Federal Rule of Evidence 702 allows expert testimony if:
(a) the expert's ... 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.
In evaluating expert testimony under this standard, the court acts as a gatekeeper to "ensur[ e] that
an expert's testimony both rests on a reliable foundation and is relevant to the task at hand."
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993).
The reliability inquiry envisioned by Daubert is "a flexible one," id. at 594, and the
factors to be considered "depend[] upon the particular circumstances of the particular case at
issue." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150 (1999). The Second Circuit has
emphasized that courts should focus on "the indicia of reliability identified in Rule 702, namely,
(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 the principles
and methods reliably to the facts of the case."' Amorgianos v. Nat 'l R.R. Passenger Corp., 303
F.3d 256, 265 (2d Cir. 2002) (quoting Fed. R. Evid. 702). This "flexible Daubert inquiry gives
the ... court the discretion needed to ensure that the courtroom door remains closed to junk
science while admitting reliable expert testimony." Id. at 267.

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III.

DISCUSSION
Dr. Pugh's expert report opines both on the cause of the accident and whether the

accident was sufficiently severe to have caused Plaintiffs injuries. See Pugh R. at 10.
Defendants argue that both conclusions fail to satisfy Rule 702 and Daubert. The Court will
evaluate each conclusion separately.

A. Causation
In his expert report, Dr. Pugh concludes that "Defendant Leichliter caused the accident"
through "inattention and distraction" and that "Plaintiff Hernandez did not contribute to the
happening of the accident." Pugh R. at 10. In both his expert report and deposition, Dr. Pugh
indicated that he came to this conclusion by reviewing deposition testimony of the Plaintiff and
Defendant Leichliter. Id. at 6, 7, 10; Dkt. No. 70 Ex. D. ("Pugh Depo.") 39:6-25, 81:8-16.
Although Defendant Leichliter had testified that his vehicle was stopped when the accident
occurred, see Pugh Depo. 82:12-19, Dr. Pugh discounted this testimony and explained his
methodology as follows:
"[Y]ou have three people [Hernandez, Cruz, and Lopez] saying the
Honda was stopped and one who has a big blind spot who was
adamantly concluding that he was stopped when hit, which is what
truck drivers and defendants say all the time . . . . I read the
deposition and I don't believe that the defendant truck driver really
had the perception that he was stopped."

Id. at 86:8-13, 18-21.
This testimony, coupled with Dr. Pugh's failure to point to any technical or scientific
basis for his conclusion, shows that his causation determination is based not on an independent
accident reconstruction analysis, but on Plaintiffs deposition testimony. "To the extent [Dr.
Pugh] merely repeats or recasts the testimony of [Plaintiff] in order to arrive at a theory of
causation, he is not testifying as an expert witness based upon specialized knowledge, but rather
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is acting as a conduit for another witness's testimony in the guise of an expert's opinion."
Rotman v. Progressive Ins. Co., 955 F. Supp. 2d 272, 283 (D. Vt. 2013) (citing Hutchinson v.
Groskin, 927 F.2d 722, 725 (2d Cir. 1991)). Because Dr. Pugh does not offer any "quantitative
or scientifically-based testimony" for his causation determination, see Lynch v. Trek Bicycle
Corp., 374 F. App'x 204, 206 (2d Cir. 2010), but instead conducts a credibility assessment of
Plaintiff and Defendant Leichliter's deposition testimony, his causation determination is properly
excluded under Rule 702 and Daubert. See Nimely v. City ofNew York, 414 F.3d 381, 398 (2d
Cir. 2005) ("[E]xpert opinions that constitute evaluations of witness credibility ... are
inadmissible under Rule 702.").
B. Biomechanical Analysis

Both Dr. McRae and Dr. Pugh performed a biomechanical analysis to evaluate whether
Plaintiffs alleged injuries could have been caused by the accident in question. Defendants argue
that Dr. Pugh's testimony on this point should be excluded. Because the Court finds Dr. Pugh's
expert conclusions lacking on each prong of the Rule 702 analysis, the Court agrees.
1. Sufficient facts or data

As an initial matter, Dr. Pugh has provided no facts or data to support his conclusion that
the accident was of sufficient force to cause Plaintiffs injuries. During his deposition testimony,
he explained that evaluating the force or severity of the accident turned on a "[ c]rush
computation." Pugh Depo. 7:12-14. While Dr. Pugh disclosed the mathematical formula he
used, he did not provide the underlying data that he input into the formula. Id. at 7:15-25, 8:2-8.
This information is similarly absent from his expert report. See Pugh. R. at 8-10.
Dr. Pugh did indicate at his deposition that his calculations had been done on a
handwritten piece of paper. Pugh Depo. 7:9-19. After the deposition, Defendants served a

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subpoena requesting Dr. Pugh's "handwritten computations used in preparing [his] report." Dkt.
No. 70 Ex. E. at 4. In response, Plaintiff provided two pages of handwritten notes from Dr. Pugh
summarizing Plaintiff and Defendant Leichliter's deposition testimony. See id. Ex.Fat 3-4.
These notes do not contain any data or mathematical computations. Id. This point was raised by
Defendants in their Daubert motion, see Dkt. No. 71 at 8, and Plaintiff still has not provided the
data used or computations performed by Dr. Pugh. As a result, the Court finds that Plaintiff has
not met its burden of establishing that Dr. Pugh's "testimony is based on sufficient facts or data."
Fed. R. Evid. 702(b); see also Baker, 254 F. Supp. 2d at 353.

2. Reliable principles and methods
Furthermore, Dr. Pugh has not established that his methodology was reliable. The only
authority he cites in his report in support of his analysis is an article entitled "SAE Paper Number
930889." See Pugh. R. at 8. During his deposition testimony, however, he denied that this
article was an authority in the field and harshly criticized it as biased. See Pugh Depo. 52:3-4,
56:21-25, 57:2-23. Although Dr. Pugh indicated in his deposition testimony that his report
included a list of additional references, id. 70:5-18, those references were not mentioned in the
deposition, are not contained in the version of the report before the Court, and were not provided
to the Court in response to the instant motion. Because Dr. Pugh maintains that the only
reference before the Court to support his analysis is biased and not an authority in the field, the
Court finds that Plaintiff has not met its burden of establishing that Dr. Pugh's expected
testimony "is the product ofreliable principles and methods." Fed. R. Evid. 702(c); see also
Baker, 254 F. Supp. 2d at 353.

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3. Reliable application to the facts of the case at hand
Finally, the Court has serious concerns about the integrity of Dr. Pugh's analysis in this
case. As Defendants point out, Dr. Pugh's expert report refers to "plaintiff Nunez" at one point,
and refers to a "Fedex truck" in several places, while the facts of this case involve Plaintiff
Hernandez's accident with a Volvo truck. See Pugh R. at 7-8. Dr. Pugh admitted during his
deposition that he had previously performed an accident reconstruction and biomechanical
analysis for an individual named Nunez whose case involved a Fedex truck. See Pugh Depo.
44:12-45:8. In response to the Defendants' subpoena, Dkt. No. 70 Ex.Eat 4, Plaintiff provided
Dr. Pugh's full expert report from the Nunez case. See id. Ex.Fat 5-8. A side-by-side analysis
between Dr. Pugh's report in this case and his report in the Nunez case reveals disturbing
similarities between the two reports.
As an example, the language in the first three paragraphs of the "Biomechanical
Analysis" section of Dr. Pugh's report for this case, Pugh R. at 8-9, is virtually identical (except
for names and dates) to the "Biomechanical Analysis" in Dr. Pugh's report from the Nunez case.
Dkt. No. 70 Ex.Fat 7. Similarly, the language in the second half of the first paragraph and last
three paragraphs of the "Accident Reconstruction and Analysis" in Dr. Pugh's report in this case,
Pugh. R. at 7-8, is almost identical to the "Accident Reconstruction" section of Dr. Pugh's report
from the Nunez case. Dkt. No. 70 Ex. F. at 6-7. The use of identical language in the two reports
combined with the references to "plaintiff Nunez" and the "Fedex" truck in Dr. Pugh's report in
this case suggest that Dr. Pugh may have simply copied and pasted most of his analysis here
from a report in an earlier case. This seriously undermines the reliability of Dr. Pugh's
conclusions, particularly in light of Plaintiffs failure to provide the Court with the data and

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computations underlying those conclusions, and suggests that Dr. Pugh did not conduct an
independent analysis here.

IV.

CONCLUSION
Although "exclusion [of expert testimony] remains 'the exception rather than the rule,"'

Vazquez v. City ofNew York, No. 10-CV-6277 (JMF), 2014 WL 4388497, at *12 (S.D.N.Y.
Sept. 5, 2014) (quoting Floyd v. City ofNew York, 861 F. Supp. 2d 274, 287 (S.D.N.Y. 2012)),
the Court finds that Dr. Pugh's testimony does not "rest[] on a reliable foundation" in light of the
significant problems identified above. See Daubert, 509 U.S. at 597. For these reasons,
Defendants' motion to exclude the testimony of Dr. Pugh is GRANTED.
This resolves Dkt. No. 69.

SO ORDERED.

\l,

Dated: February
2016
New York, New York

United States District Judge

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