Annese v. US Xpress Inc et al

Filing 170

MEMORANDUM OPINION AND ORDER denying 139 Motion to Exclude Testimony of Janine Smedley and 140 Motion to Limit testimony and Opinions of Dr. Stephen B. Conner. Signed by Honorable Robin J. Cauthron on 03/18/19. (wh)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ANDREA T. ANNESE,
Plaintiff,
vs.
U.S. XPRESS, INC. and
GLENN ANDERS,
Defendants.

)
)
)
)
)
)
)
)
)
)

No. CIV-17-655-C

MEMORANDUM OPINION AND ORDER
Now before the Court are Plaintiff’s Motions (1) to Exclude the Testimony of Janine
Smedley (Dkt. No. 139) and (2) to Limit the Testimony and Opinions of Dr. Stephen B.
Conner (Dkt. No. 140). Xpress has filed its responses (Dkt. Nos. 146, 147), and Plaintiff
has filed her replies (Dkt. Nos. 153, 154.) The motions are now at issue.
I. Background
This case arises from events that occurred on March 9, 2016. On that day, Plaintiff
Andrea T. Annese alleges Defendant Glenn Anders negligently drove a tractor-trailer
owned by Defendant U.S. Xpress (“Xpress”) and caused an accident which resulted in
damages to her. (See generally Second Amended Compl., Dkt. No. 109.) The parties have
been engaged in discovery, and the dispute here is whether, and to what extent, to permit
two of Xpress’s experts—Janine Smedley and Dr. Stephen B. Conner—to testify at trial.
Regarding Smedley, Plaintiff contends that her methods are unreliable, mostly because, in
Plaintiff’s view, she failed to provide an adequate definition of the term “injury.” And
regarding Dr. Conner, Plaintiff asserts that he is not qualified to render a reliable opinion

on spinal surgery because he has not performed one in approximately 15-20 years. Xpress
maintains that both proffered experts should be permitted to testify.
II. Standard
Federal Rule of Evidence 702 imposes upon the trial judge an important “gatekeeping” function regarding the admissibility of expert opinions. See generally Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); see also Kumho Tire Co., Ltd.
v. Carmichael, 526 U.S. 137 (1999). When performing this function, courts must undertake
a two-step analysis: First, courts must determine whether the purported expert is
qualified—particularly considering the expert’s “‘knowledge, skill, experience, training,
or education.’” See Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 969 (10th
Cir. 2001 (quoting Fed. R. Evid. 702). Second, “if the proposed expert is determined to be
sufficiently qualified, the court must determine whether his opinions are ‘reliable’ in the
sense required by Daubert and Kumho.” In re Williams Sec. Litig., 496 F. Supp. 2d 1195,
1231-1232 (N.D. Okla. 2007) (citing Ralston, 275 F.3d 965 at 969).
a. Qualifications
It is well-settled that a proposed expert “should not be required to satisfy an overly
narrow test of his own qualifications.” Gardner v. General Motors Corp., 507 F.2d 525,
528 (10th Cir.1974). Indeed, “[t]he issue with regard to expert testimony is not the
qualifications of a witness in the abstract, but whether those qualifications provide a
foundation for a witness to answer a specific question.” Berry v. City of Detroit, 25 F.3d
1342, 1351 (6th Cir. 1994).

Accordingly, an “expert’s qualifications must be both

(i) adequate in a general, qualitative sense (i.e., ‘knowledge, skill, experience, training or
2

education’ as required by Rule 702) and (ii) specific to the matters he proposes to address
as an expert.” Williams, 496 F.Supp.2d at 1232.
b. Reliability
Rule 702 permits an expert with the necessary qualifications in the relevant field to
present expert testimony 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. See Fed. R. Evid. 702; see also
Goebel v. Denver & Rio Grande W. R.R. Co., 346 F.3d 987, 991 (10th Cir. 2003). The
reliability examination “cannot be permitted to evolve into an assessment of the ultimate
persuasiveness of the proffered expert testimony.” Williams, 496 F.Supp.2d at 1233.
Indeed, “[v]igorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means of attacking
shaky but admissible evidence.” Daubert, at 596. Accordingly, a court’s “focus generally
should not be upon the precise conclusions reached by the expert, but on the methodology
employed in reaching those conclusions.” Bitler v. AO Smith Corp., 400 F.3d 1227, 1233
(10th Cir. 2005).
III. Discussion
a. Janine Smedley
Plaintiff alleges that Smedley’s testimony is unreliable. In support of this, she
largely relies on deposition testimony in which Plaintiff claims Smedley did not adequately
define the term “injury.” (Pl.’s Mot., Dkt. No. 139, p. 5.) In general, Smedley seeks to
testify that, based on her biomechanical review of the vehicles and other evidence, Plaintiff
3

experienced less compressive loading in the wreck than she does in her daily activities.
(See Dkt. No. 139-1, p. 39.) Smedley additionally concludes that, based on her review,
Plaintiff probably did not sustain a head, brain, or spine injury as a result of the wreck.
(Id.) Plaintiff takes issue with these conclusions because, in her view, Smedley struggled
to define an “injury” in her deposition. Plaintiff further reasons that if Smedley struggles
to define an injury, her conclusions are ultimately based on unreliable methodologies.
(Pl.’s Mot., Dkt. No. 139, p. 5.)
Plaintiff also challenges Smedley’s reliance on the Abbreviated Injury Scale
(“AIS”). (Id.) In this portion of her testimony, Smedley introduces the AIS (which scores
injuries from 0 (no injury) to 6 (maximal injury—possibly fatal)) and analyzes accident
field data collected by the National Automotive Sampling System Crashworthiness Data
System (NASS-CDS). (See Dkt. No. 139-1, p. 33-34.) Here, Smedley analyzed the data
of accidents similar to Plaintiff’s—crashes of similar impact where the occupant was
restrained by a seatbelt—and ultimately concluded that “[t]he forces acting on Ms. Annese
during the subject incident would be expected to produce, at most, transient strain (AIS =
1).” (Id.) Plaintiff takes issue with Smedley’s use of the AIS because “while she attempts
to use the AIS as some form of an injury definition, their own analysis as explained by Ms.
Smedley doesn’t allow the terms that indicate whether an injury is probable, possible
and/or ruled out.” (Pl.’s Reply, Dkt. No. 153, p. 2.)
The Court finds that Smedley’s testimony is reliable. First, the Court finds that
Plaintiff’s own definition of an injury is not deficient—she admitted it was a broad
question, but did not offer confusing testimony. (See Dkt. No. 146-2, p. 6.) Moreover, she
4

offered an adequate definition of “injury” in her affidavit. (Dkt. No. 146-3, p. 1-2.)
Nevertheless, the Court finds that a jury can generally determine the definition of an injury
for itself. Thus, Plaintiff’s purported lack of a definition is unlikely to confuse the jury.
Moreover, the Court finds that Plaintiff’s concerns about Smedley’s reliance on the
AIS are unfounded. Smedley does not seek to use this scale to measure Plaintiff’s injury—
she only uses it, along with information collected by NASS, to opine on the expected AIS
score produced by Plaintiff’s wreck. (See Dkt. No. 139-1, p. 33-34.) None of this is based
on unreliable methodologies, nor are any methodologies applied in an unreliable way.
Plaintiff is free to challenge Smedley’s methodologies in cross-examination. The Court,
however, finds that none of these arguments is sufficient to preclude Smedley’s expert
testimony.
b. Dr. Stephen Conner
Plaintiff challenges both the qualifications and the reliability of Dr. Conner’s
testimony. The core of Plaintiff’s challenge is that Dr. Conner has not performed any spinal
surgeries over the past 15-20 years, yet his proffered testimony criticizes the surgical
strategies and decisions of Plaintiff’s doctor. (Pl’s Mot., Dkt. No. 140, p. 3.) Plaintiff
contends that over the last 15-20 years, there have been a number of advancements within
the field of spinal surgery—so much so that it has become a sub-specialty within the
medical field. (Id.) Thus, Plaintiff concludes, Dr. Conner is no longer qualified to testify
regarding spinal surgeries, and, even so, any testimony is unreliable. (Id. at 3-5.)

5

Nevertheless, Xpress maintains that when he performed spinal surgeries, Dr. Conner
did so regularly for 15-20 years. (Def. Xpress’s Resp., Dkt. No. 147, p. 2.) Moreover,
Xpress points out that Dr. Conner consults with clients regarding spinal surgery, stays
current on new developments and technologies within the field, and still performs
surgeries—just not spinal surgeries. (Id. at 2-3.) In essence, Xpress objects to the notion
that Defendant is now unqualified to give reliable testimony regarding spinal surgery
simply because he stopped performing them.
The Court concludes that Dr. Conner is qualified to give expert testimony regarding
the medical and surgical decisions of Plaintiff’s doctor. Dr. Conner performed surgery for
at least 15 years, and, since then, has stayed up to date on developments in the field, as he
has advised clients who have received spinal surgery. (Id. at 2-3.) Given his past and
experience within the field, his time away from performing spinal surgery alone is
insufficient to render him unqualified on the subject.
Nor does it render his testimony unreliable. Notably, Plaintiff does not challenge
the methodology used by Dr. Conner in reaching his conclusions. The Court is satisfied
that Dr. Conner’s proffered testimony is based on sufficient facts/data, is based on reliable
principles, and reliably applies those principles to the facts. Again, Plaintiff is free to revive
these arguments to challenge the ultimate weight of Dr. Conner’s testimony, but the Court
finds that Dr. Conner will be permitted to testify as an expert.

6

CONCLUSION
For the reasons stated above, Plaintiff’s (1) Motion to Exclude the Testimony of
Janine Smedley (Dkt. No. 139) and (2) Motion to Limit the Testimony and Opinions of Dr.
Stephen B. Conner (Dkt. No. 140) are both DENIED.
IT IS SO ORDERED this 18th day of March, 2019.

7