Chong v. STL International, Inc, et al
Filing
79
OPINION and ORDER - Plaintiffs Motion to Strike the expert reports of Dr. Jeffrey Johnson (ECF 65) is GRANTED. The Johnson Report and Johnson Supplemental Report are stricken and excluded from use at trial. Further, neither Dr. Johnson nor any other witness may testify regarding the opinions expressed in Dr. Johnson's repo1ts at trial. IT IS SO ORDERED. DATED this 10th day of August, 2016, by United States District Judge Michael H. Simon. (peg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JEANIE CHONG,
Plaintiff,
Case No. 3:14-cv-244-SI
OPINION AND ORDER
v.
STL INTERNATIONAL, INC. and
COSTCO WHOLESALE
CORPORATION,
Defendants.
William A. Gaylord and Todd A. Bradley, GAYLORD EYERMAN BRADLEY, P.C., 1400 S.W.
Montgomery Street, Portland, OR 97201. Of Attorneys for Plaintiff.
Mark P. Scheer, Dennis G. Woods, and Kelsey A. Terry, SCHEER LAW GROUP LLP, 101 S.W.
Main Street, Suite 1600, Pmtland, OR 97204. Of Attorneys for Defendants.
Michael H. Simon, District Judge.
Plaintiff purchased an inversion table manufactured by Defendant STL International, Inc.
("STL'') and sold by Defendant Costco Wholesale Corporation ("Costco") (collectively,
"Defendants"). A few months later, Plaintiff was injured when she purportedly fell from the
inversion table while it was fully inverted. Plaintiff alleges strict product liability based on
PAGE I -OPINION AND ORDER
defective design. Before the Comt is Plaintiffs motion to strike the expert reports of Defendants'
expert, Jeffrey Johnson, MD., and to exclude evidence or testimony of Dr. Johnson's opinions
from trial. For the reasons discussed below, Plaintiffs motion to strike the expert report is
granted.
STANDARDS
The United States Court of Appeals for the Ninth Circuit has discussed the standard
under which a district court should consider the admissibility of expert testimony. City of
Pomona v. SQM N. Am. Co1p., 750 F.3d 1036 (9th Cir. 2014). As explained by the Ninth Circuit:
Rule 702 of the Federal Rules of Evidence provides that expert
opinion evidence is admissible if: (I) the witness is sufficiently
qualified as an expert by knowledge, skill, experience, training, or
education; (2) the scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or
to determine a fact in issue; (3) the testimony is based on sufficient
facts or data; (4) the testimony is the product of reliable principles
and methods; and (5) the expert has reliably applied the relevant
principles and methods to the facts of the case. Fed. R. Evid. 702.
Under Daubert [v. Merrell Dow Pharm., Inc., 509 U.S. 579
(1993)] and its progeny, including Daubert II [Daubert v. Merrell
Dow Pharms, Inc., 43 F.3d 1311 (9th Cir. 1995)], a district court's
inquiry into admissibility is a flexible one. Alaska Rent-A-Car, Inc.
v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013). In
evaluating proffered expert testimony, the trial court is "a
gatekeeper, not a fact finder." Primiano v. Cook, 598 F.3d 558,
565 (9th Cir. 2010) (citation and quotation marks omitted).
"[T]he trial comt must assure that the expert testimony 'both rests
on a reliable foundation and is relevant to the task at hand."' Id.
at 564 (quoting Daubert, 509 U.S. at 597). "Expert opinion
testimony is relevant if the knowledge underlying it has a valid
connection to the pertinent inquiry. And it is reliable ifthe
knowledge underlying it has a reliable basis in the knowledge and
experience of the relevant discipline." Id at 565 (citation and
internal quotation marks omitted). "Shaky but admissible evidence
is to be attacked by cross examination, contrary evidence, and
attention to the burden of proof, not exclusion." Id. at 564 (citation
omitted). The judge is "supposed to screen the jury from unreliable
nonsense opinions, but not exclude opinions merely because they
PAGE 2 -OPINION AND ORDER
are impeachable." Alaska Rent-A-Car, 738 F.3d at 969. Simply
put, "[t]he district court is not tasked with deciding whether the
expert is right or wrong, just whether his testimony has substance
such that it would be helpful to a jury." Id. at 969-70.
The test of reliability is flexible. Estate ofBarabin v.
AstenJohnson, Inc., 740 F.3d 457, 463 (9th Cir. 2014) (en bane).
The court must assess the expett's reasoning or methodology,
using as appropriate criteria such as testability, publication in peerreviewed literature, known or potential error rate, and general
acceptance. Id.; see also Primiano, 598 F.3d at 564. But these
factors are "meant to be helpful, not definitive, and the trial court
has discretion to decide how to test an expert's reliability as well as
whether the testimony is reliable, based on the particular
circumstances of the particular case." Primiano, 598 F.3d at 564
(citations and quotation marks omitted); see also Barabin, 740
F.3d at 463. The test "is not the correctness of the expert's
conclusions but the soundness of his methodology," and when an
expet1 meets the threshold established by Rule 702, the expert may
testify and the fact finder decides how much weight to give that
testimony. Primiano, 598 F.3d at 564-65. Challenges that go to the
weight of the evidence are within the province of a fact finder, not
a trial court judge. A district court should not make credibility
determinations that are reserved for the jury.
Id. at 1043-44 (alterations in original).
The district court's role as a gatekeeper of reliable expert testimony is to independently
ensure that the expe11's methods are valid. Daubert, 509 U.S. at 590 n. 9. "The trial comt's gatekeeping function requires more than simply taking the expert's word for it." Fed. R. Evid. 702,
Advisory Comm. Note to 2000 Amendments (citing Daubert II, 43 F.3d at 1319). "[S]omething
doesn't become 'scientific knowledge' just because it's uttered by a scientist; nor can an expert's
self-serving assertion that his conclusions were 'derived by the scientific method' be deemed
conclusive .... " Daubert II, 43 F.3d at 1315-16. "[T]he expert's bald assurance ofvalidity is not
enough. Rather, the patty presenting the expert must show that the expert's findings are based on
sound science, and this will require some objective, independent validation of the expert's
methodology." Id. at 1316.
PAGE 3 -OPINION AND ORDER
Further, the court's "gatekeeping inquiry must be tied to the facts of a particular case."
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999) (quotation marks omitted). "[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." Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 146 (1997). The court may exclude expert testimony if it determines "that
there is simply too great an analytical gap between the data and the opinion proffered." Id.
"Rule 702 demands that expert testimony relate to scientific, technical or other
specialized knowledge, which does not include unsubstantiated speculation and subjective
beliefs." Cooper v. Brown, 510 F.3d 870, 942 (9th Cir. 2007) (quoting Diviero v. Uniroyal
Goodrich Tire Co., 114 F.3d 851, 853 (9th Cir. 1997)); see also Daubert, 509 U.S. at 590 (noting
that the trial judge must insure that the expert's opinion is based upon "more than subjective
belief or unsupported speculation .... Proposed testimony must be supported by appropriate
validatio n-i.e., 'good grounds,' based on what is known"). An opinion based on
unsubstantiated and undocumented information "is the antithesis of the scientifically reliable
expe1t opinion admissible under Daubert and Rule 702." Cabrera v. Cordis Corp., 134 F.3d
1418, 1423 (9th Cir. 1998). Many "courts have generally held that an expert's opinion 'should be
excluded when it is based on assumptions which are speculative and are not supported by the
record.'" Morrison v. Quest Diagnostics, Inc., et al., 2016 WL 3457725, at *4 (D. Nev. June 23,
2016) (quoting Blake v. Bell's Trucking, Inc., 168 F. Supp. 2d 529, 532 (D. Md. 2001))
(additionally citing numerous cases rejecting expert testimony based on speculation or
assumptions that are inadequately supported in the record); see also McGlinchy v. Shell Chem.
Co., 845 F.2d 802, 807 (9th Cir. 1988) (upholding the district court's exclusion of one expert
whose testimony was found to be "speculation" that "rests on unsupported assumptions and
PAGE 4-0PINIO N AND ORDER
of another expert
ignores distinctions crucial to arriving at a valid conclusion" and the exclusion
).
whose testimony was found to be "speculation" that had "scant basis in the record"
Circuit has
In further recognition of the flexible nature of the Daubert inquiry, the Ninth
. Lust, 89 F.3d
"provided additional guidance" for evaluating the reliability of an expert' s opinion
proposing to
at 597. "(O]ne very significant fact to be considered is whether the experts are
conducted
testify about matters growing naturally and directly out of research they have
ly for the
independent of the litigation, or whether they have developed their opinions express
New Carissa, 339
purposes of testifying." Daubert II, 43 F.3d at 1317; see also Clausen v. MIV
own research,
F.3d 1049, 1056 (9th Cir. 2003). Where "an expett did not conduct his or her
must determine
independent of the litigation, on the subject of the testimony, the district court
on
whether there exists any 'objective, verifiable evidence that the testimony is based
605 (9th Cir.
'scientifically valid principles."' Domingo ex rel. Domingo v. T.K, 289 F.3d 600,
how such objective,
2002) (quoting Daubert II, 43 F.3d at 1317-18). The Ninth Circuit explained
verifiable evidence may be shown:
Experts may demonstrate the scientific validity of a theory or
technique by showing that "the research and analysis supporting
the proffered conclusions have been subjected to normal scientific
scrutiny through peer review and publication." [Daubert II, 43
F.3d] at 1318. Alternatively, testifying experts may also show the
validity of their theory by explaining "precisely how [the experts]
went about reaching their conclusions and point[ing] to some
objective source --a learned treatise, the policy statement of a
professional association, a published atticle in a reputable
scientific journal or the like-to show that they have followed the
scientific method, as it is practiced by (at least) a recognized
minority of scientists in their field." Id. at 1319.
Clausen, 339 F .3d
Id. at 605-06 (first alteration added, remaining alterations in original); see also
at 1056.
PAGE 5-0PIN ION AND ORDER
Where expert medical testimony is at issue, it may or may not be scientific evidence like
the evidence at issue in Daubert. Primiano, 598 F.3d at 565. As the Ninth Circuit explained:
[M]edicine is not a science but a learned profession, deeply rooted
in a number of sciences and charged with the obligation to apply
them for man's benefit. Evidence-based medicine is the
conscientious, explicit and judicious use of current best evidence in
making decisions about the care of individual patients. Despite the
importance of evidence-based medicine, much of medical
decision-making relies on judgment-a process that is difficult to
quantify or even to assess qualitatively. Especially when a relevant
experience base is unavailable, physicians must use their
knowledge and experience as a basis for weighing known factors
along with the inevitable uncertainties to mak[e] a sound judgment.
When considering the applicability of Daubert criteria to the
patticular case before the court, the inquiry must be flexible. Peer
reviewed scientific literature may be unavailable because the issue
may be too particular, new, or of insufficiently broad interest, to be
in the literature. Lack of certainty is not, for a qualified expert, the
same thing as guesswork .
•• •
We have some guidance in the cases for applying Daubert to
physicians' testimony. A trial court should admit medical expert
testimony if physicians would accept it as useful and reliable, but it
need not be conclusive because medical lmowledge is often
uncertain. The human body is complex, etiology is often uncertain,
and ethical concerns often prevent double-blind studies calculated
to establish statistical proof. Where the foundation is sufficient, the
litigant is entitled to have the jury decide upon [the expert's]
credibility, rather than the judge.
Id.at 565-66 (quotation marks and footnote citations omitted) (alterations in original).
"It is the proponent of the expert who has the burden of proving admissibility." Lust, 89
F.3d at 598. Admissibility of the expert's proposed testimony must be established by a
preponderance of the evidence. See Daubert, 509 U.S. at 592 n. 10 (citing Bourjaily v. United
States, 483 U.S. 171, 175-76 (1987)). The party presenting the expert must demonstrate that the
PAGE 6 -OPINION AND ORDER
e of independent
expert 's findings are based on sound principles and that they are capabl
validation. Daubert II, 43 F.3d at 1316.
BACKGROUND
5 Inversion Table
Plainti ff asserts that on March 10, 2012, she used her STL lnvertAlign
used it once in the
("InvertAlign") the same way she had been using it for six months. She
She testified that she was
morning, without incident. She used it a second time in the evening.
of the ankle locking
wearing lace up tennis shoes, stepped on the machine, pulled the handle
away from her body
mechanism as close as possible to her ankles, and then moved the handle
d, counted to 60, and
until she heard the locking mechanism click into place. She fully inverte
before blacking out and
then began counting again and reached approximately the number five
testified that she slipped
regaining consciousness on the ground, unable to move her legs. She
the ground or were still in
out of her shoes, although she does not recall whether her shoes fell to
Seon Kim, who lives
the ankle locking system after she fell. Her significant other, Mr. Yong
lign's ankle lock
with her and purchased the InvertAlign with her, testified that the InvertA
system was still in the locked position after Plainti ff fell.
supine under the
Reports from the first responders on the scene note that Plainti ff was
to move her foot herself,
InvertAlign "with her foot propped up on a cross bar." She was unable
her lower extremities.
so the paramedics lowered her foot to the floor. She was unable to move
She is now a permanent paraplegic.
DISCU SSION
A. Qualifications of Dr. Johnson
dge and
Plainti ff does not challenge the qualifications of Dr. Johnson. His knowle
foundation of his opinions.
experience, however, is relevant to the Court' s analysis regarding the
.
Accordingly, the Court briefly summarizes Dr. Johnso n's qualifications
PAGE 7-0PI NION AND ORDE R
nearly 26
Dr. Johnson is a neurosurgeon practicing in Portland, Oregon. Dr. Johnson has
of Physicians
years of experience in surgery and neurosurgery. He graduated from the College
surgery at
and Surgeons at Columbia University in 1990, interned for one year in general
l neurology
Columbia Presbyterian Medical Center, was a clinical fellow for one year in surgica
Columbia
at the National Institutes of Health, performed his residency in neurosurgery at
He is BoardPresbyterian Medical Center, and continued in private practice in neurosurgery.
Dr. Johnson has
certified in neurosurgery and is a fellow in the American College of Surgeons.
nt ("OPLL"),
experience treating patients with Ossification of the Posterior Longitudinal Ligame
l spine. He has
which is which is a chronic degenerative condition, most often seen in the cervica
an expert on behalf
co-authored nine published articles in his field. He has previously testified as
of both plaintiffs and defendants.
B. Opinions of Dr. Johnson
from her
Dr. Johnson reviewed the Complaint in this action, Plainti ffs medical records
March 2012,
treatment at Oregon Health and Sciences University following the incident in
Plainti ffs
Plainti ffs earlier medical records from her primary care physician, reports from
InvertAlign."
imaging, medical literature regarding OPLL, and "information pertaining to the
an opinion letter
Dr. Johnson did not meet, examine, or interview Plaintiff. Dr. Johnson issued
rendered several
dated July 20, 2015 ("Johnson Report"). ECF 66-1. In this letter, Dr. Johnson
opinions challenged by Plaintiffs.
erized by
The Johnson Report begins with an explanation of OPLL, a condition charact
the length of the
thickening and calcification of the posterior longitudinal ligament, which runs
ligament runs along
spinal column along the back of the spinal column. The anterior longitudinal
spinal canal,
the front of the spinal column. Behind the posterior longitudinal ligament is the
are the bones at
which holds the spinal cord. Also within the spinal canal are "laminae," which
PAGE 8-0PIN ION AND ORDER
flavum,"
the back of the spinal canal that form the roof of the spinal canal, and "ligamentum
which is elastic tissue that runs between the laminae.
ss the
The ligament thickening caused by OPLL narrows the spinal canal and can compre
spinal cord. OPLL can be diagnosed based on varying symptoms, including neck pain,
ss,
headaches, radiculopathy (nerve compression, with symptoms including pain, numbne
cord
tingling, or weakness in the neck, shoulder, arm, or hand), and myelopathy (spinal
in the arms or
compression, with symptoms including wealmess, clumsiness, numbness, tingling
who have
legs, or problems with bowel or bladder function). OPLL can also be present in people
It can also be
no symptoms and can be discovered when imaging is done for an unrelated reason.
or event.
seen in patients who have sudden or acute symptoms, despite no discernible injury
her
In his report, Dr. Johnson states that a person who falls a short distance onto his or
minor
head would most likely have no injury to the head, neck, or spine but would have only
s, or
bruising or contusion at the point of impact, aches and pains, neck stiffuess and sorenes
a serious
other temporary symptoms. Dr. Johnson notes, however, that it is possible to suffer
injury, such as a concussion or brain contusion, or a neck fracture or dislocation, from
such a
fall.
Dr. Johnson opines that Plaintiff did not suffer injuries that support a finding that a
emergency
"major impact" occurred. Dr. Johnson notes that the paramedics and doctors in the
is apparently
department did not describe bruising or contusions to Plainti ff s face or scalp, there
no evidence that Plaintiff suffered a concussion, there was no fracture or dislocation
of Plaintiffs
of her
cervical spine, and that Plaintiffs surgeons did not perform a fusion or stabilization
spinal cord
cervical spine. Dr. Johnson adds that persons who suffer catastrophic injuries to the
Dr. Johnson
typically exhibit obvious damage to the structure of the spine, but Plaintiff did not.
PAGE 9 -OPINION AND ORDER
of the bone and
emphasizes that Plainti ffs surgery was a "laminectomy," which removed some
cord.
ligamentum flavum along the back of her spine in order to decompress the spinal
was a bruise or
Dr. Johnson notes that the only evidence of injury to Plainti ffs spine and head
ffs spine.
contusion of her spinal cord, but that there is no evidence of acute injury to Plainti
ation
Dr. Johnson reviewed the findings from Plainti ffs surgery that Plaintif f had calcific
difficulty
and thickening of the ligament um flavum to such an extent that the surgeon had
narrowed
removing it performing the laminectomy. Dr. Johnson notes that this likely further
in patients with
Plainti ffs spinal canal. Dr. Johnson also notes that this condition is often present
the structure of
OPLL and concludes that it probably represents a more general disturbance of
Plainti ffs spine than just thickening of the posterior longitudinal ligament.
e of
Dr. Johnson opines that the critical factor in Plaintif fs outcome was the presenc
have been
OPLL and that in the absence ofOPL L, "it is certain that the result of the fall would
ffs cervical
either a trivial injury or no injury at all." ECF 66-1 at 3. The measurement of Plainti
r is 10-12
spine after the fall was only 2 millimeters in diameter, whereas the typical diamete
Johnson notes
millimeters, demonstrating "extreme" narrowing of Plainti ffs spinal canal. Dr.
that Plaintif f not
that he has never seen such pronounced narrowing of the canal. He points out
had thickening
only had OPLL thickening her ligament along the cervical spine, but that she also
injury occurred
of the ligamentum flavum at the back of her spine and that Plainti ffs spinal cord
and front.
exactly at the point where her cervical spine was threatened from both the back
of [Plaint iffs]
Because Plainti ffs narrow canal was not a result of her fall and was "the state
ffs narrow canal
anatomy long before the events of that day," Dr. Johnson concludes that Plainti
what would
was the "factor that produced a permanent injury to [Plainti ffs] spinal cord from
have otherwise been a trivial event." ECF 66-1at 3.
PAGE JO-OPI NION AND ORDER
Dr. Johnson notes that Plaintiff s OPLL was not known before her surgery and that there
stiffness
were only "minor clues" in her medical record-r eference s to neck and shoulder pain or
in 2006 and 2007 and a recommendation at one point for neck exercises. Dr. Johnson clarifies,
however, that at no point were neck complaints a primary reason for Plaintiff to visit a medical
provider and that Plaintiff "had only minor and nonspecific symptoms." Id.
Dr. Johnson opines that "[i]t is not unusual for OPLL to remain undetected until it
g
presents catastrophically after a minor injury." Id. at 3. Dr. Johnson cites to an article reviewin
that
studies involving 453 patients who presented with spinal cord injury with OPLL that noted
the "majority" of those patients were not aware of their OPLL. Id.
In his report, Dr. Johnson concludes:
The injury that Ms. Chong suffered represents a tragic coincidence.
She had an unrecognized condition of her cervical spine, the clues
to which were so subtle as to be undetectable except in hindsight.
She had minor, nonspecific symptoms that are extremely prevalent.
The vast majority of people who have these symptoms do not have
OPLL. ... When OPLL is found, it is frequently treated without
surgery. Had [Plaintiff\ undergone an MRI prior to the injury the
OPLL would have been found. However, in the absence of a
history of symptoms or physical findings, it is not clear that
surgery would have been recommended.
When [Plaintiff\ fell, much like the patients in the studies
referenced above, the otherwise minor trauma to her neck in the
setting of a critically narrowed spinal canal produced an injury to
her spinal cord that lead to all of the other consequences, including
her hospitalization, surgery, neurological deficits, and her
disability. The fall produced no other injuries except that to her
spinal cord. This association between OPLL and paralysis with
minor trauma is also frequently encountered. In the large review
article the authors note that "Most of cervical SCI (spinal cord
injuries) associated with OPLL were incomplete, without bone
injury, and caused predominantly by low-ene rgy trauma."
(emphasis added) (Chikuda).
References to minor injuries producing devastating neurological
outcomes appear throughout the literature (Yoo, Katoh). "Patients
PAGE 11 -OPINIO N AND ORDER
with ossification of the posterior longitudinal ligament (OPLL)
sometimes present with acute spinal cord injury caused by only
minor trauma." (Koyanagi). If [Plaintiff] had not fallen as it is
alleged from the InvertAlign on 3/10/2012 it is entirely possible
that Ms. Chong would have suffered the same outcome from
another minor head or neck injury. Events such as minor
automobile accidents, ground-level slip and falls, or minor head
trauma like striking the head on a drawer could also have lead to
her injury. Reports exist in the literature of patients with OPLL
suffering from paralysis after neck massage (Cheong) or falling
and landing on one's backside (Chikuda).
It would be expected that Ms. Chong's OPLL would have
continued to progress silently. The risk of sudden neurological
symptoms would also increase with time. Given her relatively
young age, it is reasonable to assume that the likelihood of minor
trauma happening at some point was high. If she had not, as it is
alleged, fallen from the InvertAlign there was a very high
likelihood that this neurological outcome would have nonetheless
occurred. I would not have been surprised if she had developed
severe neurological deficits or paraplegia within a few years.
The description of the incident by Ms. Chong also raises questions
as to whether there was any trauma to the neck at all. There is also
an indication that she may have had a "funny feeling" while
inverted on the device prior to allegedly falling. It is possible that
she was already exhibiting evidence of spinal cord compression at
that point. With the precarious status of her cervical spinal canal it
seems possible that even the process of getting into the
InvertAlign, flexing or extending the neck, or transitioning to an
inverted position may have been the trigger for her spinal cord
injury.
It is my opinion that the injuries suffered by Ms. Chong were due
to the presence of her previously undiagnosed OPLL and that if a
fall occurred it was incidental to the outcome.
ECF 66-1 at 3-4.
On September 28, 2015, Dr. Johnson issued a supplemental opinion letter ("Johnson
Supplemental Report"). Before issuing this letter, Dr. Johnson reviewed the report of
Dr. Jennifer Lawlor and the transcript of Dr. Andrew Nemecek's deposition. Dr. Lawlor cared
for Plaintiff during her recovery. Dr. Johnson emphasizes that Dr. Lawlor indicates that "there
PAGE 12-0PINIO N AND ORDER
ng.'' 1 Dr. Johnson notes that this
was no evidence of cervical spine fracture on diagnostic imagi
injury from a fall or other
finding is "highly significant" because in a typical traumatic neck
patient presenting with acute
accident one "would expect to see a fracture or dislocation in a
spinal cord injury."
2
iffs
Dr. Johnson also notes that Dr. Nemecek, who performed Plaint
surgery, testified that
was very severe
there were no skeletal injuries to Plaint iffs spine and that her OPLL
, with
r testified that he had never
compression on both sides of her spinal cord. Dr. Nemecek furthe
Dr. Johnson reiterates that the
seen a case as bad as Plaint iffs, with compression on both sides.
narrowing of her spinal canal
factor that produced Plaint iffs catastrophic injury was the severe
preexisting and unknown
caused by her OPLL. Dr. Johnson again concludes that "[i]fth is
suffered [her] neurological
condition had not also been present, Ms. Chong would not have
trauma." Id. at 2, 3.
injuries" and that "[t]he OPLL is the critical facto r-not the minor
in addition to severe injury
New in the Johnson Supplemental Report is the statement that
experience neurological
in patients with OPLL from minor trauma, there are patients who
authority supporting this
worsening without any trauma. Dr. Johnson does not cite to any
statement. Specifically, Dr. Johnson states:
Examples of patients developing severe and permanent
neurological injury with OPLL from low-energy, seemingly minor
ed
trauma may be found throughout the medical literature. I provid
are also examples of
several references in my initial report. There
ut
patients who experience sudden neurological worsening witho
onset
any trauma. Since Ms. Chong testified to feeling the possible
the
of symptoms while using the device prior to finding hersel f on
ped before she slipped
floor, it is possible that the paralysis develo
from the InvertAlign.
1
ECF 66-2 at I.
2 Id.
PAGE 13-0P INIO N AND ORDER
d to "feeling
Id. at 2. In reaching this conclusion, Dr. Johnson notes that Plainti ff testifie
device." Id. at 3.
numbness and tingling in her body while she was using the InvertAlign
C. Plaint ifrs Challenges to Dr. Johnson's Opinions
l to a jury;
Plainti ff argues that Dr. Johnso n's opinions; ( 1) are not relevant or helpfu
(3) are an appeal for jury
(2) are not based on any reliable foundation and are speculative; and
n's opinions is
nullification. Plainti ff also argues that the probative value of Dr. Johnso
be excluded under Federal
substantially outweighed by other factors and thus his opinions should
ns must be excluded as
Rule of Evidence 403. Because the Court finds that Dr. Johnso n's opinio
does not reach Plaint iffs
irrelevant, not helpful to the jury, speculative, and unreliable, the Court
arguments regarding jury nullification and undue prejudice.
1. Relevance
l to a jury because
Plaintiff argues that Dr. Johnso n's opinions are not relevant or helpfu
would have been "trivial,"
Dr. Johnson merely opines that without Plaint iffs OPLL her injuries
catastrophic injury later
and that because of her OPLL it is possible that she would have had a
3
is contrary to the welldue to some other "minor" head or neck injury. This, argues Plaintiff,
ff as he finds her. See
settled "eggshell plainti ff' doctrine, in which a defendant takes the plainti
an actor's tortious
Restatement (Fhird) of Torts: Phys. & Emot. Harm§ 31 (2010) ("When
al or mental condition or
conduct causes harm to a person that, because of a preexisting physic
nt type than might
other characteristics of the person, is ofa greater magnitude or differe
all such harm to the
reasonably be expected, the actor is nevertheless subject to liability for
n.2 (9th Cir. 1987) ("The
person."); see also Pierce v. S. Pac. Transp. Co., 823 F.2d 1366, 1372
as he finds him. Clearly the
eggshell plainti ff rule simply means that a tortfeasor takes his victim
3
ECF 66-1 at 3, 4.
PAGE 14 -OPIN ION AND ORDE R
are physical.");
eggshell plaintiff rule applies in cases in which the cause and effect of an injury
25, 2011) (noting
Gresham v. Petro Stopping Ctrs., LP, 2011 WL 1748569, at *4 (D. Nev. Apr.
extent of a
that the eggshell plaintif f "rule subjects a negligent actor to liability for the full
nt was in fact
plaintif fs damages, no matter how fragile a plaintiff is, so long as the defenda
ion from the
negligent and some amount of harm was foreseeable" and reciting the illustrat
4
s shin causes
Restatement (Second) of Torts§ 461 (1965), that where a slight kick to a person'
the full extent of
serious harm because of a latent infection, the kicker is subject to liability for
the injuries).
opinions
Defendants respond that Plaintif f skips the causation aspect of Dr. Johnso n's
Dr. Johnso n's
and focuses instead on damages. This argument by Defendants relates only to
that this
opinion that Plaintif f may have become paralyzed before she fell. The Court agrees
ed below in
testimony may be relevant, but excludes this testimony as unreliable, as discuss
not suffer a major
Subsection C.2. The remainder of Dr. Johnso n's opinions are that Plaintif f did
and because
trauma to her spine, would have suffered only minor injuries were it not for OPLL,
the future from
of Plainti ffs OPLL she possibly would have suffered a catastrophic injury in
L and explains
some other minor head or neck injury. Dr. Johnson explains the condition ofOPL
trauma into a
why it was Plainti ffs OPLL that turned what would otherwise have been a minor
a jury because
tragic event. All of this information, however, is neither relevant nor helpful to
susceptible to
Defendants must take Plaintif f as she was, even if she was significantly more
597 (2001)
greater injury than a "norma l" person. Cf Fuller v. Merten, 173 Or. App. 592,
l
This section, entitled "Harm Increased in Extent by Other's Unforeseeable Physica
liability for harm to another although a
Condition," states: "The negligent actor is subject to
the actor makes
physical condition of the other which is neither known nor should be known to
n as a
the injury greater than that which the actor as a reasonable man should have foresee
probable result of his conduct." Restatement (Second) of Torts§ 461 (1965).
4
PAGE 15 -OPINI ON AND ORDER
plainti ffs neck was
("From the evidence before the jury, it could have determined that (1)
predisposed her to be more
fractured in the collision, but (2) plaintiff 'had a bodily condition that
that evidence, there was, at
subject to injury than a person in normal health.' UCJI 70.08. Given
jury would fail to award
least, the very real potential that, notwithstanding causation-in-fact, the
tibility to injury. That is,
plaintiff damages for the neck fracture because of her peculiar suscep
impact would not have
there was the potential that jurors might decide that, because the same
es for that injury. That
fractured the neck of a 'norma l' person, plaintiff should not recover damag
remedy.").
is precisely the circumstance that UCJI 70.08 is designed to address and
5
she would only
Dr. Johnso n's opinion that without Plaint iffs previously unknown OPLL,
ants may not escape
have suffered, at most, a minor injury is legally irrelevant because Defend
have suffered catastrophic
liability or seek reduced damages by arguing that Plainti ff would not
condition she possibly
injuries but for her unknown, preexisting OPLL or that because of her
t engage in such 'it would
would have become paralyzed anyway. Id. (noting that the jury "canno
anywa y' denial or
not have happened to a normal person ' or 'her neck was going to break
WL 1748569, at *4 ("In
discounting of damages" (emphasis added)); see also Gresham, 2011
femur broke upon her fall
this case, Plainti ff anticipates that Dr. Huene will testify that Plainti ff's
knee. But under the
because of osteoporosis of her left femur and osteoarthritis in her left
was foreseeable, they are
Restatement, so long as Defendants were negligent and some injury
injuries was not
liable for the entire extent of Plainti ff's injuries even ifthe extent of those
been
Orego n's Uniform Civil Jury Instruction ("UCJI") 70.08 has subsequently
ndant] had a bodily
renumbered to UCJI 70.06 and states: "If you find that the [plaintiff/defe
a person in normal health,
condition that predisposed [him/her] to be more subject to injury than
injuries and damage that
nevertheless the [plaintiff/defendant] would be liable for any and all
result of the negligence of the
may have been suffered by the [plaintiffi'defendant] as the
on, may have been
[plaintiffi'defendant], even though those injuries, due to the prior conditi
the same
greater than those that would have been suffered by another person under
circumstances."
5
PAGE 16-0P lNION AND ORDE R
injury, but not as
foreseeable. The Court will exclude the testimony as to the extent of Plainti ffs
not be
to causation of the fall. Evidence that a preexisting condition caused the fall will
a minor trauma,
excluded."). Accordingly, Dr. Johnso n's opinions that Plaintif f suffered only
y would have
would not have suffered significant injury were it not for her OPLL, and possibl
become paralyzed at some point in the future are stricken and disallowed.
2. Reliability
become
Plaintif f argues that Dr. Johnso n's opinions that Plaintiff possibly may have later
paralyzed before
paralyzed from some other minor head or neck injury and that Plaintif f became
she fell should be excluded as unreliable and speculative. The Court agrees.
InvertAlign,
The Johnson Report concludes that if Plaintif f had not been injured using her
to some other
it is possible that Plaintif f eventually would have become paralyzed anyway due
ul to the jury
minor head or neck injury. The Court already has found this testimony to be unhelpf
also finds it to be
based on the "eggshell" plaintiff rule and excludable on that basis. The Court
unreasonably speculative.
Plaintif f
During his deposition, Dr. Johnson testified that the percentage likelihood that
"non-zero," but he
would have suffered a trauma to her spinal cord that resulted in paralysis was
ic basis for this
could not provide a more precise percentage, and he could not offer a scientif
things are
conclusion because it "is all speculation" and in dealing with human beings "these
6
from some other
unknowable." Although it may be that Plaintif f eventually might have suffered
begun exhibiting
injury that might have caused paralysis, it is also possible that she might have
surgery before
symptoms from her OPLL, underwent diagnostic imaging, and had corrective
6
ECF 66-3 at 27 (Dr. Johnso n's deposition transcript at I 02:7-25).
PAGE 17 -OPINI ON AND ORDER
7
of confidence or
some other injury caused paralysis. It is not possible to know with any degree
medical probability what would have happened were it not for Plainti ffs experie
nce on the
8
"possible" that
InvertAlign on March 10, 2012. Accordingly, Dr. Johnson's opinion that it was
and
Plaintiff might have become paralyzed at some point in the future is speculative
insufficiently reliable, and thus inadmissible.
Plaintif f
Similarly, the Court finds that Dr. Johnso n's broad statements in his reports that
and unreliable. In
may have become paralyzed before falling from her InvertAlign is speculative
"expressly for the
considering this opinion by Dr. Johnson, the Court notes that it was developed
treated patients
purposes of testifying." Daubert II, 43 F.3d at 1317. Although Dr. Johnson has
ing spontaneous
with OPLL, he has not identified any study or article he was involved in discuss
le evidence that
paralyzation caused by OPLL. Thus, the Comt looks for "any objective, verifiab
, the policy
the testimony is based on scientifically valid principles," such as "a learned treatise
ic
statement of a professional association, a published article in a reputable scientif
Court does not find
journal ... ."Domi ngo, 289 F.3d at 605-06 (quotation marks omitted). The
any such objective, verifiable evidence.
with OPLL
In his reports, Dr. Johnson discusses medical literature showing that patients
9
, however,
can have devastating neurological outcomes from only minor trauma. Dr. Johnson
that
See, e.g., ECF 66-3 at 26 (Dr. Johnson's deposition transcript at 97:6-20) (noting
a catastrophic injury).
surgery would have reduced the risk of Plaintiff having
7
Although Defendants dispute that Plaintif f fell due to a defective design on the
before becoming
Inver!Align, they do not dispute that she was on the InvertAlign immediately
ed, and was
paralyzed. For example, they do not contend that she fell elsewhere, became paralyz
moved and positioned onto the InvertAlign.
8
9
ECF 66-1 at 3-4; 66-2 at 2.
PAGE 18-0PI NION AND ORDER
ence involving
does not discuss in his reports any article, study, or personal patient experi
paralysis or devastating neurological outcomes from no trauma.
n's
Defendants argue that one article cited by Dr. Johnson supports Dr. Johnso
conclusion. The relevant section of this atticle states:
Spontaneous neurological deterioration was also found in patients
who had not suffered any kind of trauma, although such an
occurrence was rare. Among those without trauma, 16 patients
whose [residual AP diameter] was less than !Omm and who had
been treated conservatively, five showed spontaneous neurological
deterioration mainly due to progression of OPLL itself, whereas
only two out of34 patients whose [residual AP diameter] was
1Omm or more, had neurological deterioration.
ogical Outcome in
S. Katoh, et al., "Influence of Minor Trauma to the Neck on the Neurol
) of the Cervical
Patients with Ossification of the Posterior Longitudinal Ligament (OPLL
ts the fact that even without
Spine," 33 PARAPLEGIA, at 330-333 (June 1995). This excerpt suppor
d neurological
trauma, some patients with OPLL who were conservatively treated suffere
" of OPLL. It does not,
deterioration without associated trauma, mainly due to the "progression
y paralyzed without ever
however, support a conclusion that a patient can become spontaneousl
.
having had any symptom of OPLL and without having suffered any trauma
became
During his deposition, Dr. Johnson testified that he had patients who
ning clarified that they had
spontaneously paralyzed without any trauma, but upon further questio
identified some
worsening symptoms over a period of days to weeks and that they usually
incident, such as a fall, that triggered their pet'iod of decline.
10
Dr. Johnson offered no example
e paralyzed from
from his experience treating OPLL of a patient who instantaneously becam
ng any trauma.
OPLL without having shown any previous symptoms and without sufferi
10
ECF 66-3 at 33 (Dr. Johnso n's deposition transcript at 126:10-128:2).
PAGE 19-0P INION AND ORDE R
little evidence of trauma
Defendants argue that Dr. Johns on's opinion demonstrates how
r argue supports Dr. Johns on's
there was from Plaint iffs alleged fall, which Defendants furthe
findings by Dr. Johnson,
finding that a fall may not have caused Plaint iffs injury. These
ed minor, as oppos ed to major,
however, are made in support of his opinion that Plaint iff suffer
therefore a result of her OPLL
trauma from her fall and that Plaint iffs catastrophic injury was
the "eggs hell" aspect of
and not a traumatic injmy from a fall. These opinions relate to
resulted in catastrophic injuries
Plain tiff-th at she had an unknown, preexisting condition that
only trivial injurie
from what in Dr. Johns on's opinion otherwise would have caused
s.
transcript of
Further, although Dr. Johnson states that he read the deposition
Supplemental Report, Dr. Johnson
Dr. Nemecek, Plaint iffs surgeon, before issuing the Johnson
ony that Plaint iff did have
does not address in his Supplemental Report Dr. Neme cek' s testim
ed that Plaint iffs spinal cord
evidence of a serious injury to her spinal cord. Dr. Nemecek testifi
spinal cord" ; that what
was inflamed, red, and swollen, all indicating "a very injured
ly injured"; and that Plaint iffs
Dr. Neme cek saw in surgery was a "spinal cord that looked horrib
that the swelling was "very
MRI showed that her "spinal cord was extremely swollen" and
11
disputed that Plaint iffs spinal
acute ... very new" and not "chronic swelling." Dr. Nemecek
when the spinal cord is
cord injury on her MRI was from her chronic OPLL, noting that
of extreme swelling occurs and
compressed chronically for long periods of time, the "opposite"
the spinal cord shrinks.
12
of
The Johnson Supplemental Report quotes from other portions
sing Plain tiffs spinal cord
Dr. Neme cek's testimony, but does not address the portions discus
d not disagree" with these
injury. Durin g his deposition, Dr. Johnson testified that he "woul
11
14:16-15:12, 15:19-16:3,
See ECF 66-5 at 3, 4 (Dr. Neme cek's deposition transcript at
22:2-13).
12
Id. at 4 (Dr. Neme cek's deposition transcript at 22:7-11).
PAGE 20 -OPIN ION AND ORDE R
observations of Dr. Nemecek made at the time of surgery.
13
Dr. Johnson also testified during his
deposition that Plainti ffs MRI imaging indicated an acute trauma.
14
Yet the Johnson
the conclusion that
Supplemental Report does not provide any basis for how Dr. Johnson reaches
ed before
Plaintiff did not suffer any trauma to her spinal cord and may have become paralyz
g acute
falling, despite this testimony by Dr. Nemecek and Plainti ffs MRI imaging showin
trauma.
Defendants generally argue that Dr. Johnson's knowledge and experience as a
r, only "if the
neurosurgeon renders his opinions reliable. An expert opinion is reliable, howeve
of the relevant
knowledge underlying it has a reliable basis in the knowledge and experience
ion marks
discipline." Pomona, 750 F.3d at 1044 (citing Primiano, 598 F.3d at 565) (quotat
orted
omitted). "[T]he word 'knowledge' connotes more than subjective belief or unsupp
speculation." Daubert, 509 U.S. at 590.
ing went
During his deposition, Dr. Johnson testified that it was "possible" that someth
was "probable."
wrong with Plainti ffs spinal cord before her fall, although he would not say it
15
ed "I don't
When asked ifhe held this opinion to a reasonable medical probability, he respond
know."
16
ed
Dr. Johnso n's equivocal testimony that he did not know if Plaintif f became paralyz
t to his
before falling and that it was only "possible" and not "probable" is in notable contras
from her fall.
testimony that without Plainti ffs OPLL she would have suffered only minor injury
13
ECF 66-3 at 24 (Dr. Johnson's deposition transcript at 91:16-92:2).
14
Id. at 21 (Dr. Johnso n's deposition transcript at 77: 19-78:3).
15
See id. at 18-19 (Dr. Johnson's deposition transcript at 65:19-69:4).
16
Id. at 24 (Dr. Johnson's deposition transcript at 91:8-91:12).
PAGE 21-0PI NION AND ORDER
Dr. Johnson responded
When asked ifhe held that opinion to reasonable medical probability,
"yes."11
ing neurol
Dr. Johnson further testified that his only piece of evidence that someth
ogical
that Plainti ff stated that
was happening to Plainti ff before the fall was the third-party testimony
she was feeling numbness and tingling in her legs before falling.
18
Plainti ff disputes this fact,
witness stated that
noting that Plainti ff has denied making any such statement and that no
ff had a "funny
Plainti ff suffered from "numbness and tingling," but merely that Plainti
feeling."
19
n provides no
Assuming that Plainti ff did state that she had a "funny feeling," Dr. Johnso
paralyzed after a "funny
examples, however, of persons with OPLL becoming spontaneously
ology or scientific basis
feeling," or even feeling numbness and tingling, or any reasoned method
y paralyzed from her
from which he concluded that Plainti ff could have become spontaneousl
ted numbness and tingling
OPLL. Dr. Johnson instead testified that even absent Plaint iffs purpor
don't know .... we don't
it was "possible" something went wrong before her fall because "[w]e
have a video. We don't have a witness. So as I say it is possible."
20
e paralyzed and
Dr. Johnso n's opinion that it is "possible" Plaintiff could have becom
is unreasonably
then fell from her InvertAlign does not rest on sufficient facts or data,
z-Brault v. Missouri
speculative, and is not helpful to a jury, at least without more. See Guidro
17
See id. at 19 (Dr. Johnso n's deposition transcript at 71:3-13).
18
Id. at 18 (Dr. Johnso n's deposition transcript at 65:19-68:6).
feeling before
The Comt notes that in her deposition Plaintiff denied having any such
n was a third party testifying that
she fell and that the specific evidence reviewed by Dr. Johnso
shmtly after her fall Plainti ff said she had a "funny feeling" before falling.
19
20
ECF 66-3 at 18 (Dr. Johnso n's deposition transcript at 68: I 0-14).
PAGE 22 -OPIN ION AND ORDE R
Pac. R. Co., 254 F.3d 825, 830-31 (9th Cir. 2001) (affirming the exclusion of expert testimony
where the testimony did "was not sufficiently founded on facts"); Chilcote v. Fireman's Fund
Ins. Co., 2007 WL 7724579, at *3 (D. Mont. Nov. 30, 2007) (excluding the defendant's medical
expert and noting that "a medical opinion expressed in terms of 'doubt' invites speculation that
would not assist the trier of fact and is not otherwise sufficiently certain to meet Rule 702 's
standards for admissibility"). The only relevant facts or data relied on by Dr. Johnson is that
Plaintiff had an extreme case of OPLL and purportedly had a "funny feeling" and from that he
concluded that it was possible, although not probable, that Plaintiff became spontaneously
paralyzed, but with the caveat that Dr. Johnson really cannot know. This is insufficient. Although
21
medical opinions need not be "conclusive," they must still have a sufficient foundation.
Primiano, 598 F.3d at 566.
The cases relied on by Defendants in encouraging the Court to exercise its discretion to
admit Dr. Johnson's speculative opinion that it is "possible" that Plaintiff became paralyzed
before she fell from her InvertAlign are either distinguishable or inapposite. First, Defendants
cite Johns v. Bayer Corp., 2013 WL 1498965, at *10 (S.D. Cal. Apr. 10, 2013). Defendants
quote from a portion of an expert's opinion noting that a certain supplement "potentially may" be
21 Even if Dr. Johnson could cite to medical articles or studies showing that persons with
OPLL can become paralyzed without any previous symptoms or triggering trauma (minor or
otherwise), his opinion still may not be relevant or helpful to a jury in this case. Without
evidence that a paralyzed person could fall out of the InvertAlign, a hypothetical ability to
become paralyzed from being inve1ted may not be an appropriate "fit" to the facts of the case.
Daubert, 509 U.S. at 591) (noting that the expert opinion must "fit" the facts of the case and
serve a "helpful" purpose to the jury). Defendants have not offered any such evidence or
argument and, to the contrary, argued in their supplemental brief that Plaintiffs left leg came out
of her InvertAlign and then Plaintiff"struggled to get out of the machine." ECF 75 at 11.
"Struggling" to get out is inconsistent with becoming paralyzed and then falling out of the
machine while immobile. Regardless, what is before the Court is Dr. Johnson's opinion that it is
possible that Plaintiff became paralyzed from being inve1ted without having any previous
symptoms from her OPLL and without first suffering any trauma. That opinion is not sufficiently
reliable or helpful to a jury.
PAGE 23 -OPINIO N AND ORDER
that although
toxic if consumed in large amounts and then quote a later conclusion by the court
such disputes are
the challenging party may disagree with the ultimate conclusions of the expert,
court in Johns
better attacked through rigorous cross-examination. Defendants argue that the
The expert
admitted the expert testimony despite the opinion being couched as a "possibility."
the contrary, the
testimony, however, was not challenged as being unreasonably speculative. To
expert himself
challenge that the court rejected as better left for cross examination was that the
s on this point was:
required a too-demanding burden of proof. The entirety of the court's analysi
Bayer's remaining two objections are also easily dispatched. First,
Bayer contends Dr. Milman 's testimony is unreliable because he
demands application of a "definitive proof' standard that has no
basis in the scientific community. However, contrary to Bayer's
contentions, Dr. Milman 's report does not assert that definitive
proof from a well-controlled randomized clinical trial ("RCT" ) is
required in this case, but does, as does Dr. Blumberg (Bayer 's
science expe1t), recognize the importance ofRCT s in the area of
nutritional science. Thus, although Bayer may disagree with
Dr. Milman 's ultimate conclusions, these findings are properly
attacked through rigorous crossexamination and the presentation of
contrary evidence, not exclusion. See Primiano, 598 F.3d at 564.
.
Id. Accordingly, this case does not support admission of Dr. Johnso n's opinion
*2 (9th Cir.
Defendants next rely on Huffv. Wal-Mart Stores, Inc., 1999 WL 1206845, at
on of the testimony
Dec. 15, 1999). In Huff, the Ninth Circuit affirmed the district court's admissi
the fall that
of the plaintif fs treating physician, who treated the plaintif f both before and after
iary ruling
allegedly caused her pain. The Ninth Circuit upheld the district court's evident
"that after
because the doctor had "clearly delimited his testimony" and "candidly" testified
for the plaintif fs
extensive differential diagnosis he could not point to an objective medical basis
to reveal any
pain." Id The Ninth Circuit noted that the fact that imaging and other tests "failed
] conclusions
precise physiological cause of Huffs leg complaints does not reduce [the doctor's
court's exercise
based on that evidence to non-scientific 'specul ation."' Id Affirming the district
PAGE 24 -OPIN ION AND ORDER
of discretion to admit testimony from a treating physician who testified regarding a patient who
did not have pain, had a fall, and then had pain but without any objective medical basis for that
pain does not support admitting Dr. Johnson's testimony that it is possible Plaintiff became
spontaneously paralyzed.
The next case cited by Defendants is Salazar v. A&J Const. ofMont., Inc., 2012
WL 4092421, at *8-9 (D. Mont. Sept. 17, 2012). In Salazar, the defendant challenged the
testimony by one of the plaintiffs experts that the defendant characterized as opining that future
medical treatment "possibly" would be needed. Id. at *8. The court found, however, that the
defendant had mischaracterized the relevant testimony, which the court found was testified to on
a "more probable-than-not or similar basis" and thus was admissible. Id. at *9. This case is
inapposite, as Dr. Johnson did not opine that it was more probable than not that Plaintiff became
paralyzed before she fell.
The final case relied on by Defendants is Sullivan v. U.S. Dep 't ofNavy, 365 F.3d 827
(9th Cir. 2004). In that case, the Ninth Circuit found the district court had abused its discretion in
excluding the testimony of a medical expert who opined that "an abnormally long back operation
substantially increased the risk of complications including wound infection and skin
necrosis ... ."Id. at 833-34. The Ninth Circuit held that the testimony was reliable because it
was supported by four textbooks to which the expert referred. This case does not support a
finding that Dr. Johnson's testimony is reliable, because Dr. Johnson did not refer to articles,
textbooks, or any other objective findings that a person can become instantaneously paralyzed
from OPLL without suffering any symptoms or without first experiencing any trauma.
Dr. Johnson provides no reliable basis from his experience as a neurosurgeon nor any
studies or articles in the relevant medical literature supporting a finding that Plaintiff became
PAGE 25 -OPINION AND ORDER
instantly paralyzed merely from being inve1ted and then fell out of her InvertAlign, already
paralyzed. Although the Coutt will not act as a factfinder or weigh the impeachability of an
expert's conclusions, Pomona, 750 F.3d at 1044, the Court must exclude evidence that is not
based on sufficient facts or data, is not helpful to a jury, or is unreasonably speculative. Fed. R.
Evid. 702. Accordingly, the Court excludes Dr. Johnson's opinion that it is possible that Plaintiff
became paralyzed before she fell from her InvertAlign.
CONCLUSION
Plaintiffs Motion to Strike the expert reports of Dr. Jeffrey Johnson (ECF 65) is
GRANTED. The Johnson Report and Johnson Supplemental Report are stricken and excluded
from use at trial. Further, neither Dr. Johnson nor any other witness may testify regarding the
opinions expressed in Dr. Johnson's repo1ts at trial.
IT IS SO ORDERED.
DATED this 10th day of August, 2016.
Isl Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 26-0PINION AND ORDER
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