Dave Vickers, as owner of the M/V Wakesetter for exoneration from or limitation of liability

Filing 97

OPINION AND ORDER by Magistrate Judge Kimberly E. West denying 66 Motion to to Strike Claimant's Expert Witness and Expert Report for Inadequate Disclosures Pursuant to Fed R Civ P 37, and Failure to Qualify Witness as an Expert. (adw, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
IN THE MATTER OF THE COMPLAINT
AND PETITION OF DAVE VICKERS,
AS OWNER OF THE M/V WAKESETTER
FOR EXONERATION FROM OR
LIMITATION OF LIABILITY

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Case No. CIV-17-302-KEW

OPINION AND ORDER
This matter comes before the Court on Petitioner’s Motion to
Strike or Exclude Claimant’s Expert Witness and Expert Report for
Inadequate Disclosures Pursuant to Federal Rule of Civil Procedure
37 and Failure to Qualify Witness as an Expert Pursuant to Federal
Rules of Evidence 702 and 703 (Docket Entry #66).

At the Pretrial

Conference of this case, the parties were permitted to supplement
the briefing.

Petitioner seeks to preclude the testimony of

Claimant’s expert witness, Dr. Daniel Cochran, and have his expert
report stricken based upon alleged deficiencies in the description
of his testimony on the witness list filed of record and the expert
report.
Claimant’s witness list filed October 10, 2018 (Docket Entry
#58) indicated Dr. Cochran would testify as follows:
Will testify to the injuries suffered by Bryan Buchanan
in the 7-23-16 boating incident, the severity of
Claimant’s resulting disability, what future medical
action should be taken, including the estimated cost
thereof.
His detailed report will be offered as an
exhibit (copy was furnished to Petitioner’s counsel on
the day of the settlement conference).
This identification of Dr. Cochran’s anticipated testimony was
sufficient to put Petitioner on notice of the general content of

the witnesses’ intended statements.
Petitioner also challenges Dr. Cochran on several fronts under
Fed. R. Civ. P. 26(a) and the rubric for expert testimony admission
espoused in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579
(1993).

The

primary

challenges

to

Dr.

Cochran’s

testimony

addressed by Petitioner’s motion are:
<

An insufficient or incomplete curriculum vitae.

<

Questions concerning Dr. Cochran’s qualifications
to

testify

as

a

result

of

his

experience

and

education reflected on the curriculum vitae.
<

Opinions

as

to

causation

and

future

medical

treatment and cost cannot be accepted since Dr.
Cochran was a treating physician rather than a
properly qualified expert witness.
<

The basis for Dr. Cochran’s opinions are unclear or
flawed.

<

Any literature or documentation he relied upon for
his opinions is not identified.

<

His compensation was not revealed.

<

Dr. Cochran’s report - even as modified - was
insufficient to adequately disclose his opinions.

<

His qualifications and his stated basis for his
opinions

do

not

meet

the

admissibility under Daubert.

2

requirements

for

The Court should acknowledge that Dr. Cochran provided an
updated curriculum vitae which included additional information on
his licensure and background.

While his report is somewhat sparse

as compared to experts that routinely testify in court, this Court
cannot conclude that it does not reveal his medical opinion to
Petitioner

such

that

his

deposition

could

not

be

taken

and

Petitioner’s counsel could not prepare for cross-examination at
trial.

As for Dr. Cochran’s qualifications and the basis for his

opinions, it is recognized that in non-jury trials, the trial judge
as the finder of fact will consider only relevant and admissible
testimony.

Irrelevant

and

inadmissible

testimony

identified and disregarded in the final decision.

will

be

The normal

“gatekeeper function” identified in Daubert, “is not implicated.”
Johnson & Johnson Vision Care, Inc. v. CIBA Vision Corp., 616
F.Supp.2d 1250, 1256 (M.D. Fla. 2009); see also United States v.
Brown, 415 F.3d 1257, 1269 (11th Cir. 2005)(“There is less need for
the gatekeeper to keep the gate when the gatekeeper is keeping the
gate only for himself.”).

Accordingly, Dr. Cochran will be

permitted to testify at trial on all issues for which he is
qualified
Claimant.

to

render
The

an

Court

opinion
will

as

later

well

as

his

determine

treatment

issues

of

of
the

admissibility and reliability of his testimony.
IT IS THEREFORE ORDERED that Petitioner’s Motion to Strike or
Exclude Claimant’s Expert Witness and Expert Report for Inadequate

3

Disclosures Pursuant to Federal Rule of Civil Procedure 37 and
Failure to Qualify Witness as an Expert Pursuant to Federal Rules
of Evidence 702 and 703 (Docket Entry #66) is hereby DENIED,
subject

to

the

later

consideration

of

the

admissibility

and

reliability of the testimony from Dr. Cochran in the Court’s final
assessment of the evidence.
IT IS SO ORDERED this 27th day of February, 2019.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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