Schlueter v. Ingram Barge Company
Filing
82
MEMORANDUM & ORDER: Defendant's Motion to Exclude Dr. Benjamin Johnson's Opinions Regarding Diagnosis of Complex Regional Pain Syndrome and Certain Elements of Future Medical Treatment ( 43 ) is GRANTED IN PART AND DENIED IN PART. It is GRA NTED to the extent that Dr. Johnson will not be allowed to testify that the plaintiff will need arthroscopic knee surgery in the future or about his future need for prescription medications that have in the past been prescribed by other practitioners for conditions unrelated to CRPS; it is DENIED in all other respects. Defendant's Motion to Exclude Jay Marsh's Opinions Regarding Past and Future Medical Expenses ( 45 ) is DENIED. Plaintiff's Motion to Exclude Earl Darst from Offeri ng Certain Expert Testimony on Behalf of the Defendant ( 47 ) is DENIED. Plaintiff's Motion in Limine to Exclude Defendant's Proposed Expert Witness Testimony of Todd Didion at Trial ( 52 ) is DENIED. Plaintiff's Motion in Limine to Ex clude Defendant's Proposed Expert Witness Testimony of George A. Barrett at Trial ( 51 ) is DENIED. Signed by District Judge Aleta A. Trauger on 11/1/19. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
BOBBY SCHLUETER,
Plaintiff,
v.
INGRAM BARGE COMPANY,
Defendant.
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Case No. 3:16-cv-02079
Judge Aleta A. Trauger
MEMORANDUM & ORDER
Before the court are five motions in limine, two filed by the defendant and three by the
plaintiff, seeking to exclude each others’ experts. Since the same basic facts and legal standards
apply to all of them, the court will provide a brief summary of the relevant facts, state the
applicable standard of review, and then address each motion separately. For the reasons stated
herein, the defendant’s Motion to Exclude Testimony of Dr. Benjamin Johnson (Doc. No. 43)
will be granted in part and denied in part. The remaining motions (Doc. Nos. 45, 47, 51, and 52)
will be denied.
I.
BACKGROUND
This case arises out of an injury suffered by plaintiff Bobby Schlueter on February 7,
2014, while he was a member of the crew of the M/V Sarah L. Ingram, a vessel owned and
operated by the defendant, Ingram Barge Company (“Ingram”). Schlueter filed the Complaint
initiating this action on August 8, 2016, asserting claims under the Jones Act, 46 U.S.C. § 30104,
and the general maritime law of the United States. (Doc. No. 1.)
Very generally, Schlueter alleges that he was working with the vessel’s second mate in
cold and icy conditions, tightening wires that connected the M/V Sarah L. Ingram to the barges it
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was towing. A winch that he was tightening gave way suddenly, causing him to slip and fall to
the deck, landing on his right knee. The plaintiff claims that the winch was iced over and that his
injuries were caused by Ingram’s negligence in failing to provide a safe work place, failing to
provide de-icer, and requiring the plaintiff to work in extremely icy and dangerous conditions.
(See Compl., Doc. No. 1 ¶ 6.) The plaintiff alleges that he suffered injuries to his knee and lower
back and subsequently developed Complex Regional Pain Syndrome. At issue in the case are
questions of fault, causation, and damages. Both parties have engaged various experts to present
their opinions on these issues.
II.
LEGAL STANDARD
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony.
It provides:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other 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 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme
Court construed Rule 702 as granting district courts, acting as “gatekeepers,” “discretion in
determining whether . . . a proposed expert’s testimony is admissible, based on whether it is both
relevant and reliable.” Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 429 (6th Cir.
2007). The Supreme Court has provided a non-exhaustive list of factors that lower courts may
consider in assessing reliability: (1) whether a theory or technique can be (and has been) tested;
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(2) whether the theory or technique has been subjected to peer review and publication; (3)
whether the technique has a high known or potential rate of error; and (4) whether the technique
enjoys general acceptance within the relevant scientific, technical, or other specialized
community. Daubert, 509 U.S. at 593–94; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147–50
(1999). The Sixth Circuit has approved the use of an additional factor: whether the expert
prepared his or her opinion “solely for purposes of litigation.” Wilden v. Laury Transp., LLC,
901 F.3d 644, 649 (6th Cir. 2018) (quoting Johnson, 484 F.3d at 434). The court’s gatekeeping
role is not limited to expert testimony based on scientific knowledge but, instead, extends to “all
‘scientific,’ ‘technical,’ or ‘other specialized’ matters” within the scope of Rule 702. Kumho
Tire, 526 U.S. at 147.
Whether the court applies any particular Daubert factor to assess the reliability of an
expert’s testimony “depend[s] on the nature of the issue, the expert’s particular expertise, and the
subject of his testimony.” Kumho Tire, 526 U.S. at 150 (citation omitted). Any weakness in the
underlying factual basis generally bears on the weight, as opposed to the admissibility, of the
evidence. In re Scrap Metal Antitrust Litig., 527 F.3d 517, 530 (6th Cir. 2008) (citations
omitted).
III.
THE MOTIONS IN LIMINE
A.
Defendant’s Motion to Exclude Testimony of Dr. Benjamin Johnson
(Doc. No. 43)
As part of his damages, the plaintiff seeks to introduce the testimony of his former
treating physician, Dr. Benjamin Johnson, to establish that the plaintiff has been diagnosed with,
and treated for, Complex Regional Pain Syndrome (“CRPS”). Dr. Johnson is also anticipated to
testify regarding the plaintiff’s need for future medical treatment. The defendant’s motion seeks
to exclude both aspects of Dr. Johnson’s proposed testimony.
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1.
The CRPS Diagnosis
Ingram seeks to exclude Dr. Johnson’s proposed testimony about the plaintiff’s CRPS
diagnosis on the basis that he arrived at that diagnosis without satisfying the diagnostic criteria in
the AMA Guides to the Evaluation of Impairment, Sixth Edition (“AMA Guides”). It argues that
Dr. Johnson has admitted that the AMA Guides are authoritative and that he did not conform to
them, specifically by failing to rule out other possible causes for the plaintiff’s symptoms,
including disuse atrophy, somatoform disorders, factitious disorder, and malingering. (Doc. No.
44, at 2.)
Dr. Johnson testified in his deposition that he is a medical doctor who has been licensed
to practice in Tennessee since 1991. (Doc. No. 43-1, at 2–3.) His curriculum vitae reflects that he
specializes in anesthesiology and pain management; he is a diplomate of the American Board of
Anesthesiology and the American Board of Pain Medicine. (Doc. No. 56-1, at 3.) He has
practiced, taught, lectured, and published extensively in the area of pain management for more
than twenty-five years. (Id. at 3–45.) Dr. Johnson testified that, when Bobby Schlueter first came
to him for treatment in July 2015, Schlueter had already been diagnosed elsewhere with CRPS.
(Id. at 5.) Dr. Johnson could not recall who had made the initial diagnosis, but he believed it was
contained within medical records for Schlueter that he would have received before he first saw
him as a patient. (Id. at 7.) Dr. Johnson testified that he agreed with the diagnosis and that he
himself concluded during the first office visit that Schlueter had CRPS. Dr. Johnson stated that
he was familiar with the AMA Guides and agreed with defense counsel’s statement that the
AMA Guides are “authoritative in the diagnosis of CRPS.” (Id. at 20.) However, he also testified
that his diagnosis was not based on the AMA Guides but, instead, on the patient’s history and
physical examination and on Dr. Johnson’s previous knowledge of the diagnostic criteria for
CRPS. (Id. at 21.)
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During Dr. Johnson’s deposition, counsel for the defendant read aloud a lengthy passage
from the AMA Guides, according to which “a subjective complaint of pain is the hallmark” of a
CRPS diagnosis and, because “all of the associated physical signs and radiologic findings” can
be the result of disuse, an extensive differential diagnosis process is necessary.” (Doc. No. 43-1,
at 25.) Dr. Johnson testified that he did not perform an extensive differential diagnosis process
when diagnosing Schlueter with CRPS and that he did not specifically rule out disuse atrophy,
somatoform disorders, factitious disorder, or malingering as a cause of the plaintiff’s pain. (Id. at
28–31.) The defendant claims that the AMA Guides establish that CRPS is difficult to diagnose
accurately and that, “when a CRPS diagnosis is made, it is probably wrong.” (Doc. No. 44, at 7.)
The defendant argues that, because the methodology by which Dr. Johnson arrived at his
diagnosis did not conform to the AMA Guides, it is unreliable and speculative and must be
excluded from evidence at trial.
In his Response to Defendant’s Motion to Exclude Dr. Benjamin Johnson’s Opinions
(Doc. No. 69), the plaintiff cross-references his prior Response to Defendant’s Motion for Leave
to File Motion for Partial Summary Judgment (Doc. No. 56).1 There, the plaintiff argued that a
video-taped interview with Dr. Johnson that the plaintiff produced as part of Dr. Johnson’s
Expert Witness Disclosure “addresses all of the points raised by Defendant, including Bobby
Schlueter’s diagnosis of CRPS Type 1, how it was reached, why, and his future care needs.”
(Doc. No. 56, at 2.) In the video interview, Dr. Johnson explained that the plaintiff had already
seen and been treated by numerous experts in various fields, who ruled out other possible
explanations for the plaintiff’s symptoms and converged upon a diagnosis of CRPS. The plaintiff
1
The court does not condone the practice of cross-referencing a prior filing instead of
actually articulating a response to the opposing party’s motion in the document designated as a
response to that motion, even if such response is redundant of other arguments made in a wholly
different context.
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further argues that the CRPS Diagnostic and Treatment Guidelines (4th ed. 2013) “expressly
approves the diagnostic scale and measures” used by Dr. Johnson to diagnose the plaintiff’s
condition and that Dr. Johnson affirmed during his deposition that, in accordance with those
Guidelines, (1) a forensic neuropsychologist’s advice is not required to make a CRPS diagnosis;
(2) Schlueter’s diagnosis had been in effect for at least a year; and (3) the diagnosis had been
verified by other practitioners and physicians. (Doc. No. 56, at 2.) The plaintiff asserts that the
defendant offers no evidence that the AMA Guides provide the sole authoritative standard for
diagnosing CRPS. Finally, he points to testimony from Dr. Thomas Rizzo, a pain specialist upon
whom the defendant relies, characterizing the AMA Guides as “a resource,” but not one to which
he referred “on a regular basis,” and that “guidelines are for everyone, and . . . they’re written so
that everyone, from a nurse practitioner to primary care physician who rarely sees these
conditions, will think of all the other possible explanations.” (Doc. No. 56-4, at 3.)
The Sixth Circuit has recognized that a treating physician is generally qualified to
“provide expert testimony regarding a patient’s illness, the appropriate diagnosis, and the cause
of the illness even if the physician is not among the world’s foremost authorities on the matters.”
Thomas v. Novartis Pharm. Corp., 443 F. App’x 58, 61 (6th Cir. 2011) (citing Gass v. Marriott
Hotel Servs., Inc., 558 F.3d 419, 426 (6th Cir. 2009)). The treating physician’s testimony,
however, “is still subject to the requirements in Daubert. Before permitting a physician to testify,
the district court must be persuaded that (1) the reasoning or methodology underlying his or her
testimony is scientifically valid; and (2) he or she has properly applied that reasoning or
methodology to the facts at issue to aid the trier of fact.” Id. “The task for the district court in
deciding whether an expert’s opinion is reliable is not to determine whether it is correct, but
rather to determine whether it rests upon a reliable foundation, as opposed to, say, unsupported
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speculation.” In re Scrap Metal Antitrust Litig., 527 F.3d 517, 529–30 (6th Cir. 2008). A medical
doctor is generally competent to testify regarding matters within his or her own professional
experience. Gass, 558 F.3d at 427–28 (citing Dickenson v. Cardiac & Thoracic Surgery of E.
Tenn., 388 F.3d 976, 982 (6th Cir. 2004)).
In this case, the defendant does not dispute Dr. Johnson’s qualifications as an expert in
the field of pain management; he simply argues that Dr. Johnson’s “methodology” for the CRPS
diagnosis is not reliable. The sole basis for this argument is that Dr. Johnson himself did not go
through a differential diagnosis process as recommended by the AMA Guides. Dr. Johnson did,
however, explain what symptoms led to the diagnosis, why he reached that diagnosis, and the
basis for his reliance on previous specialists to rule out other explanations for the plaintiff’s
symptoms. Under Daubert, experts are permitted a wide latitude in their opinions, including
those not based on firsthand knowledge, so long as “the expert’s opinion [has] a reliable basis in
the knowledge and experience of the discipline.” Daubert, 509 U.S. at 592; see also Jahn v.
Equine Servs., PSC, 233 F.3d 382, 388 (6th Cir. 2000) (“In order to be admissible on the issue of
causation, an expert’s testimony need not eliminate all other possible causes of the injury.”). The
defendant has not shown that Dr. Johnson was unreasonable in relying on other practitioners to
rule out other causes for the plaintiff’s condition. Certainly, Dr. Johnson’s failure to expressly
rule out other potential causes for the plaintiff’s symptoms and his reliance on the prior diagnosis
are issues that the defendant can explore through cross-examination at trial, but his decision not
to conduct a differential diagnosis goes to the weight of his testimony, not its admissibility.
Regardless of whether the diagnosis is correct, the defendant has not established that it is
speculative or outside the scope of matters generally within Dr. Johnson’s field of expertise.
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Dr. Johnson will be permitted to give an opinion regarding his diagnosis of the plaintiff’s
condition as CRPS.
2.
The Plaintiff’s Future Treatment
A treating physician is generally qualified to testify about a patient’s diagnosis, treatment,
and prognosis, including the future course of treatment, so long as the testimony is based on
personal knowledge and the doctor’s history, treatment and examination of the patient. See, e.g.,
St. Vincent v. Werner Enters., Inc., 267 F.R.D. 344, 345 (D. Mont. 2010); Gibson v. CSX
Transp., Inc., No. 1:07-CV-156 (FJS/RFT), 2008 WL 11355393, at *3 (N.D.N.Y. Nov. 3, 2008)
(“[P]rognosis on future medical care is one of the functions of a treating physician in the course
of the care and treatment of a patient.” (citation omitted)); Boudreaux v. J.P. Morgan Chase &
Co., No. CIV.A. 07-555, 2007 WL 4162908, at *1–3 (E.D. La. Nov. 21, 2007) (denying motion
in limine to exclude treating physician’s testimony regarding the plaintiff’s expected future
treatment, including the likelihood that she would need to undergo surgery). The Sixth Circuit
also recognizes, however, that “speculative medical testimony is not admissible in Jones Act
suits.” Mayhew v. Bell S.S. Co., 917 F.2d 961, 964 (6th Cir. 1990).
On May 29, 2018, Dr. Johnson emailed plaintiff’s counsel a list of future medical
treatment he believed the plaintiff might need. (Doc. No. 43-1, at 42, 70.) Among other
modalities, the anticipated treatments included “[s]pinal cord stimulation trial and possible
implant,” left knee arthroscopic surgery, occupational therapy, medications, and a personal care
assistant. (Id. at 70–71.) The defendant moves to exclude Dr. Johnson’s testimony that the
plaintiff will need these treatments in the future on the grounds that Dr. Johnson admitted that he
was speculating about whether the plaintiff would ever need the specified treatments or
medications in the future. (See Doc. No. 44, at 9.) In response, the plaintiff concedes that left
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knee arthroscopic surgery is not needed at this time but argues that the plaintiff’s need for the
other recommended modalities of treatment is not speculative.
In response to direct questioning from defense counsel, Dr. Johnson agreed that the
question of whether the plaintiff may need some of these treatments in the future is
“speculative.” (See, e.g., Doc. No. 43-1 at 35, 36, 40, 45.) The court is not persuaded, however,
that Dr. Johnson understood the word as a legal term of art. Considered in context, Dr. Johnson’s
testimony indicates that he has formed a medical opinion that the plaintiff will continue to need
treatment for pain management going forward indefinitely, even though the development of the
plaintiff’s symptoms and, thus, the precise form of that treatment remain uncertain. Despite that
uncertainty, Dr. Johnson is clearly qualified to provide his opinion as to Schlueter’s anticipated
course of treatment. Under the circumstances presented here, the degree of uncertainty goes to
the weight of the testimony rather than its admissibility.
The exception is that Dr. Johnson will not be permitted to testify regarding the plaintiff’s
treatment for other conditions diagnosed by other practitioners that have not been shown to be
related to the CRPS diagnosis and regarding which Dr. Johnson has no personal knowledge.2 In
addition, because the plaintiff concedes that it is not needed at this time, Dr. Johnson’s testimony
regarding the potential need for arthroscopic knee surgery will also be excluded. Subject to these
exceptions, the defendant’s motion to exclude Dr. Johnson’s testimony will be denied.
2
The list of medications compiled by Dr. Johnson may have included some medications
prescribed by other practitioners. In response to counsel’s question about whether all of those
medications were because of the CRPS or were “on here for other things like high blood pressure
and things of that nature,” Dr. Johnson responded: “Well, to some degree it depends on how you
look at it. If pain can cause high blood pressure, then it may be related.” (Doc. No. 43-1, at 44.)
In other words, he clearly had not developed an opinion that the plaintiff had high blood pressure
caused by pain. To the extent there are medications on the list that have not actually been
prescribed by Dr. Johnson to treat the plaintiff’s pain symptoms, Dr. Johnson did not indicate
that he had sufficient personal knowledge to testify about the ongoing need for those
medications.
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B.
Defendant’s Motion to Exclude Jay Marsh’s Opinions Regarding Past
and Future Medical Expenses (Doc. No. 45)
The plaintiff has retained the services of Robert E. “Jay” Marsh, an economist, to provide
an estimate of the value of past and future economic losses the plaintiff has or will suffer as a
result of the accident, including the cost of past “medical expenses” and the present value of the
cost of future “medical expenses.” In Marsh’s supplement expert report (which is in the form of
a letter to plaintiff’s counsel) dated April 2, 2019, Marsh opined that the plaintiff had incurred
past losses in that category valued at $132,113.52, and he calculated the present value of future
losses to be $687,910.02, for total “medical expenses” of $820,023.54. (Doc. No. 70-5, at 4, 12–
14 (Table 4).) Marsh explained that this figure was based on the amount of time that Schlueter’s
wife, Rebecca Schlueter, had spent since the injury providing home health services to her
husband,3 the expected number of hours of home health services Schlueter was expected to need
going forward, and the value of those services. (Id. at 4.) Marsh explained during his deposition
that he had not yet been provided figures concerning Schlueter’s other medical services and had
not included those in his calculations. (See Doc. No. 70-3, at 7 (“Q. Okay. So have you sort of
stayed out of the medical end, other than this 40 hours that Ms. Schlueter devotes to her
husband? Is that correct? A. Correct.”).) He also confirmed that he had not relied on any expert
medical testimony, medical bills, or medical evidence in preparing his report. (Doc. No. 45-1, at
4–5.)
The defendant’s motion in limine seeks to exclude Marsh’s opinion regarding the value
of the home health aide services that, in the past, have been provided to the plaintiff by his wife
and the present value of the cost of such services in the future, on the basis that the opinion is not
3
Rebecca Schlueter worked as a certified nurse’s aid for twenty years before retiring in
November 2018 to take care of her husband. (July 24, 2019 R. Schlueter Dep., Doc. No. 70-2, at
3; Oct. 24, 2017 R. Schlueter Dep., Doc. No. 70-2, at 7.)
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based on actual medical evidence. The defendant, in fact, is quibbling with Marsh’s
characterization of home health aide services as medical. The court agrees that this category of
expenses is not, strictly speaking, medical, but it appears that Marsh characterized it thus largely
as a matter of convenience. The defendant has not actually argued that this form of damages is
not recoverable in a Jones Act case. Generally, the Jones Act permits the recovery of pecuniary
losses. See, e.g., The Dutra Grp. v. Batterton, 139 S. Ct. 2275, 2285 (2019) (“The Jones Act
‘limits recovery to pecuniary loss.’” (quoting Miles v. Apex Marine Corp., 498 U.S. 19, 32
(1990)).
Because the defendant has not argued that this form of damages is not allowable under
the Jones Act or that it does not qualify as pecuniary, the motion will be denied.
C.
Plaintiff’s Motion to Exclude Earl Darst from Offering Certain Expert
Testimony (Doc. No. 47)
The plaintiff alleges that he was injured while trying to tighten a winch on one of the
barges in the tow of the M/V Sarah L. Ingram. He explains that barges being towed are
connected to each other and to the tow by steel wires. “The wires are attached to winches or
ratchets, and the system is configured such that, when the winches or the ratchets are tightened,
the wires pull the barges together so that they can be secured to one another.” (Doc. No. 48, at 2
(internal citations to the record omitted).) He describes the working of a winch as follows:
A winch consists of a drum around which the wire is wrapped. A winch wheel
turns the drum to wrap more or less wire, thereby tightening or loosening the
wire. This is accomplished by a system of gears between the drum and the winch
wheel. A winch handle is used to turn the drum to tighten the wires up to a point,
and the winches are then further tightened by the use of a pipe, called a cheater
bar. The cheater bar is used to perform the final tightening. It is placed on the
winch handle connected to the winch wheel. The operator, holding the cheater
pipe and standing beside the winch, exerts force on the pipe with their arms in a
downward motion. As they do this, the winch wheel turns, and the gears tighten.
A “dog,” which is a cog, engages the gears, thereby keeping the load from
releasing tension. Each time the dog engages, it makes an audible “clicking”
sound.
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(Id. at 3 (internal citations to the record omitted).)
The plaintiff alleges that, on the night of the accident, it was very cold and icy. (Schlueter
Dep., Doc. No. 48-3, at 3, 4.) He and his supervisor, second mate William Meek, were tightening
winches. Regarding the particular winch that gave way, causing the accident in question,
Schlueter testified that both he and Meek had cleaned the ice off of it by banging it with the
cheater bar, and both of them inspected it. (Id. at 10, 13; see also Meek Dep., Doc. No. 48-2, at
13–14 (testifying that he did not recall whether he cleaned the ice off the winch but that he would
have inspected it).) Schlueter then proceeded to try to tighten the winch. He placed the “dog” in
gear, slid the cheater bar onto the winch handle, placed both hands on the cheater bar at about
chest height, and placed pressure on it. (Doc. No. 48-3, at 13–17.) He claims that, as soon as he
did, the dog slipped out of gear, which caused the winch to give way, which caused Schlueter to
fall suddenly onto his right knee. (Id. at 17–18.) Schlueter testified that it was “[p]robably ice in
the gears” that caused the dog to slip. (Id. at 18.) Even though he and Meek had inspected the
gears and removed as much ice as they could, it was dark, and they could not see very well. (Id.)
The defendant seeks to enter into evidence the expert opinion of Earl Bruce Darst, a river
boat captain and master/pilot. Darst proffers an opinion regarding what caused the dog to slip
and, more particularly, whose responsibility it was to ensure that it remained in gear. On this
issue, his report states two opinions, based on two different possible factual scenarios. The first is
premised on Schlueter’s statement that the accident occurred because the dog slipped out of gear
due to ice in the cog. In this scenario, according to Darst,
[i]t was Mr. Schlueter’s responsibility to ensure that the cog was free of ice. He
was well aware of the risks ice in the cog presented, and if his failure to clear the
cog of ice was the cause of the incident, then he failed in his responsibility to
make sure that the cog was clear and thus failed to exercise reasonable care for his
own safety at the time of the incident.
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(Darst Report, Doc. No. 48-1, at 7–8.) In the alternative, Darst states that, if the accident was
caused instead by the dog’s “slipping because it was not firmly seated in the cog, then Mr.
Schlueter failed in his responsibility to make sure that the dog was properly seated before
attempting to tighten the winch and thus failed to exercise reasonable care for his own safety at
the time of the incident.” (Id. at 8.) During his deposition, in response to questioning by
plaintiff’s counsel, Darst further opined that Meek was not responsible for ensuring that the dog
was properly seated, since he was not the person tightening that particular winch. (Doc. No. 485, at 2–5.)
The plaintiff argues that Darst should be barred from offering the first opinion on the
ground that it does not involve specialized knowledge and will invade the province of the jury,
insofar as the “jury does not need specialized knowledge to determine any comparative fault on
Schlueter’s fault under this factual scenario.” (Doc. No. 48, at 7.) He argues that the second
opinion should be excluded because the factual scenario upon which it is premised (that
Schlueter did not ensure that the dog was properly seated in the gear) is not supported by any
evidence in the record. Finally, he argues that Darst’s deposition testimony expressing his
opinion that it was not Meek’s responsibility to clear the ice in the winch amounts to an
inadmissible conclusion of law.
For the reasons discussed below, this motion will be denied.
1.
Darst’s Opinion “if Schlueter Failed to Clear the Ice” (Doc. No.
48, at 7)
The plaintiff states that “Darst’s opinion regarding Schlueter’s failure to exercise
reasonable care for his safety if the dog slipped because he failed to clear the ice does not comply
with Rule 702(a),” because it does not involve specialized knowledge. (Doc. No. 48, at 7.) The
defendant, in response, argues that Darst’s opinion that the plaintiff was responsible for clearing
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the ice should not be excluded, because this is an arena in which the expert’s specialized
knowledge will assist the trier of fact. Specifically, he argues, “[i]t is extremely unlikely that any
juror who would be chosen to serve in this case has ever been on a barge being towed down a
river, has ever operated (or even seen) a winch on a barge, knows what a dog, cog, or cheater bar
is, or otherwise has any knowledge whatsoever of how the component parts of a winch operate in
conjunction with one another.” (Doc. No. 66, at 7.) Ingram further contends that, without expert
opinion in this arena, “the jury would be unable to make an informed decision on whether the
Plaintiff acted reasonably in connection with his inspection and operation of the winch.” (Id.)
Ingram points out that both parties have designated experienced towboat captains as
experts in this case, “to assist the jury in understanding precisely what took place at the time of
the incident at issue and in determining whether the Plaintiff’s actions constitute a failure to
comply with his responsibilities and duties as a deckhand.” (Doc. No. 66, at 7.) The plaintiff’s
own expert, Samuel Schropp, like Darst, intends to offer an opinion addressing the
reasonableness of the plaintiff’s actions, though Schropp, contrary to Darst, intends to testify that
Schlueter “was exercising reasonable care for his own safety,” that he was “perform[ing] his
duties as carefully as possible on February 7, 2014,” and that his actions were “reasonable and
prudent.” (Schropp Dep. Ex. 4 at 5–7, 9–10.) Darst proposes to offer testimony on exactly the
same issues, though he draws the opposite conclusions, but the plaintiff seeks to exclude Darst’s
opinions as being within the knowledge of the average juror.
In Salem v. U.S. Lines Co., 370 U.S. 31, 34 (1962), a Jones Act case, the Supreme Court
considered whether the district court abused its discretion in excluding expert evidence on the
issue of the shipowner’s responsibility to equip the ship with necessary and feasible safety
devices, specifically, “‘railings or other safety devices’ at the crow’s-nest platform.” The Court
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observed that:
expert testimony not only is unnecessary but indeed may properly be excluded in
the discretion of the trial judge if all the primary facts can be accurately and
intelligibly described to the jury, and if they, as men of common understanding,
are as capable of comprehending the primary facts and of drawing correct
conclusions from them as are witnesses possessed of special or peculiar training,
experience, or observation in respect of the subject under investigation.
Id. at 35 (internal quotation marks and citation omitted).
One district court applying Salem excluded expert testimony in a slip-and-fall case
regarding whether it was “reasonable and foreseeable” that the plaintiff would use a sidewalk as
unnecessary, because the proposed expert, a mechanical engineer, possessed no specialized
knowledge as to that issue, and “the jurors’ own experiences [would] permit them to draw their
own conclusions.” Garrity v. Wal-Mart Stores E., Ltd. P’ship, 288 F.R.D. 395, 401 (W.D. Ky.
2012). The court also held, however, that the same expert would be permitted to testify that the
defendant had failed to exercise reasonable care in maintaining its sidewalks in a safe condition.
Id. at 401-03. As the court stated:
trial courts routinely allow expert testimony in slip-and-fall cases when it helps
the jury understand the evidence in question. Additionally, trial courts routinely
allow experts to testify on industry standards, ordinances, and policies. In this
case, if the jury determines that Wal–Mart owed a duty to Mr. Garrity, it will be
required to evaluate the parties’ comparative fault and determine whether it was
reasonable for Wal–Mart to make no attempt at clearing the sidewalk. The Court
finds that in conducting this evaluation, the jury would be assisted by Mr. Vidal’s
testimony as to industry standards, Owensboro’s ordinances, and Wal–Mart’s
policy.
Id. at 402 (internal citations omitted).
In this case, Darst proposes to testify about industry standards and practices and the
functioning of devices in an arena with which the jury can be expected to have little familiarity.
The court finds that expert testimony offered by Darst, like that offered by the plaintiff’s
proposed expert on the same topic, will assist the trier of fact to understand matters that are
16
generally outside the knowledge of the average lay juror. The motion to exclude Darst’s
testimony on whether it was Schlueter’s responsibility to clear the ice will be denied.
2.
Darst’s Opinion if “Schlueter Failed to Seat the Dog Properly” (Doc.
No. 48, at 8)
The plaintiff argues that Darst’s opinion that, if the dog slipped because Schlueter did not
seat it properly, he failed to exercise reasonable care, should be excluded because it is not based
on sufficient facts. More specifically, he insists that the plaintiff testified that he did properly seat
the dog and that there is no evidence to the contrary. He points to Schlueter’s response to the
question of whether he thought the gears on the dog had caught:
I think the dog was in the gear, but I think there was ice or something in there, as
well, and once I put that pressure to that gear that dog wasn't far enough as it’s
supposed to be or there could have been ice coating that gear at a fine state and it
just popped it right out.
(Doc. No. 48-3, at 20.)
Ingram argues that this testimony is equivocal at best and that it amounts simply to the
plaintiff’s theory of what he believed happened. It argues that the plaintiff also testified that he
and Meek both checked for ice and cleared it, which gives rise to a possible inference that,
contrary to his own theory, there was no ice in the gear. Darst was asked to agree that there was
“no evidence that [Schlueter] didn’t seat the dog properly,” to which he responded: “There’s a lot
of evidence that he didn’t seat the dog properly. It slipped.” (Darst Dep., Doc. No. 66-2, at 8.) He
also testified that it is common for a dog to slip because it is not seated properly and that
“slippage of the dog for this reason is probably the most common cause and occurs in all types of
weather conditions and during all seasons.” (Doc. No. 66-2, at 4.)
The plaintiff’s only basis for seeking to exclude Darst’s testimony on this particular issue
is that the evidence does not support a conclusion that Schlueter failed to ensure that the dog was
seated properly in the gear. The court finds that the evidence is such that a jury could draw that
17
conclusion and that Darst’s opinion that the accident may have occurred because the plaintiff
failed to ensure that the dog was seated properly is not based on pure speculation. As stated
above, any weakness in the factual basis underlying an expert’s opinion generally bears on the
weight, as opposed to the admissibility, of the evidence. In re Scrap Metal Antitrust Litig., 527
F.3d 517, 530 (6th Cir. 2008) (quoting McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 801 (6th
Cir. 2000) (“An expert’s opinion, where based on assumed facts, must find some support for
those assumptions in the record. However, mere ‘weaknesses in the factual basis of an expert
witness' opinion . . . bear on the weight of the evidence rather than on its admissibility.’”
(quoting United States v. L.E. Cooke Co., 991 F.2d 336, 342 (6th Cir. 1993))); Cooke, 991 F.2d
at 342 (“Where an expert’s testimony amounts to ‘mere guess or speculation,’ the court should
exclude his testimony, but where the opinion has a reasonable factual basis, it should not be
excluded. Rather, it is up to opposing counsel to inquire into the expert’s factual basis.”).
Because Darst’s theory is not based on guess work or speculation, any challenge to the
factual support for it goes to its weight rather than its admissibility. The motion to exclude this
opinion will be denied as well.
3.
Darst’s Opinion that Meek Had No Responsibility to Ensure that the
Dog Was Properly Seated
Finally, the plaintiff seeks to prevent Darst from testifying to his opinion that Meek, the
plaintiff’s supervisor, had no particular responsibility to ensure that the dog was free of ice. The
plaintiff argues that this testimony must be excluded because it communicates a legal standard,
which is the court’s job.
Darst’s opinion that Meeks did not have any responsibility to ensure that the dog was free
of ice is admissible for the same reason that his testimony that Schlueter did have such a
responsibility is admissible: it will assist the jury in understanding industry practices and
18
standards in a field that will likely be unfamiliar to the jury.
Moreover, contrary to the plaintiff’s assertion, the proffered testimony does not
communicate a legal standard. The Sixth Circuit has recognized that an expert’s testimony that
conveys an opinion about what might ultimately be considered a legal issue is not objectionable
solely on that basis. Torres v. Cty. of Oakland, 758 F.2d 147, 150 (6th Cir. 1985) (quoting Fed.
R. Evid. 704). Instead, “[t]he problem with testimony containing a legal conclusion is in
conveying the witness’ unexpressed, and perhaps erroneous, legal standards to the jury. This
invade[s] the province of the court to determine the applicable law and to instruct the jury as to
that law.” Id. (internal quotation marks and citations omitted). Thus, the court determined that, in
the exercise of their discretion, the district courts are to “determine whether the terms used by the
witness have a separate, distinct and specialized meaning in the law different from that present in
the vernacular. If they do, exclusion is appropriate.” Id. at 151. The cases cited by the plaintiff
stand generally for the same proposition—that the court properly excludes expert testimony that
employs terms with specialized legal meaning. See, e.g., Shahid v. City of Detroit, 889 F.2d
1543, 1547–48 (6th Cir. 1989) (holding that the trial court did not err in excluding an expert’s
testimony that the defendants were negligent, since such a conclusion amounted to a legal
conclusion); Andrews v. Metro N. Commuter R. Co., 882 F.2d 705, 709 (2d Cir. 1989) (expert’s
testimony that “the railroad was negligent” was prejudicial and should not have been allowed,
since “negligence” is a legal conclusion); Berry v. City of Detroit, 25 F.3d 1342, 1354 (6th Cir.
1994) (expert should not have been permitted to testify that the defendant was “deliberately
indifferent” to its citizens’ welfare, because “‘deliberate indifference’ is a legal term”).
In the testimony to which the plaintiff points, Darst uses such terms as “responsibility,”
“ultimate responsibility,” “failure in his duties,” “normal operations,” “failure to take necessary
19
precautions,” and the like. (See Darst Dep. 114–17.) He does not use terms like negligence,
comparative negligence, or deliberate indifference. Because his testimony does not improperly
incorporate legal terminology, the plaintiff has not established that it is subject to exclusion
under Torres. Accord Medlin v. Clyde Sparks Wrecker Serv., Inc., 59 F. App’x 770, 771, 778
(6th Cir. 2003) (holding that the district court did not abuse its discretion by allowing the
plaintiff’s expert to testify that the defendants acted without reasonable care).
The motion to exclude Darst’s testimony on whether it was Meek’s responsibility to clear
the ice will also be denied.
D.
Plaintiff’s Motion in Limine to Exclude Defendant’s Proposed Expert
Witness Testimony of Todd Didion (Doc. No. 52)
The defendant proposes to offer the testimony of Todd Didion, licensed physical therapist
assistant (“PTA”) with STAR Physical Therapy, to testify regarding the result of his functional
capacity evaluation (“FCE”) of the plaintiff in November 2014 and his opinion that the plaintiff
is capable of performing work at the sedentary level of exertion. (See Didion Dep., Doc. No. 521, at 4.) The plaintiff’s motion in limine seeks to bar Didion from testifying that the plaintiff was
capable of performing sedentary work.
The plaintiff does not take issue with Didion’s qualifications as a PTA or dispute
Didion’s testimony that he has been a licensed PTA for over 20 years, has been performing FCEs
for 15 to 16 years, holds various FCE certifications, and is the Industrial Rehab Coordinator for
STAR Physical Therapy, in which capacity he performs FCEs himself but also supervises other
employees who perform FCEs. (Didion Dep., Doc. No. 67-1, at 2–7.)
Instead, the plaintiff argues that Didion, because he is a PTA rather than an actual
physical therapist (“PT”), cannot be deemed an “expert” and, further, that his opinions, insofar as
they are derived from the FCE, are inadmissible as a matter of law because the FCE itself was
20
“illegal.” (Doc. No. 52, at 2, 4.) The “law” upon which the plaintiff apparently relies for this
assertion is actually a rule promulgated by the Tennessee Board of Physical Therapy (the
“Physical Therapy Rules”). Physical Therapy Rule 1105-01-.02(2)(a) requires generally that a
PTA perform services only under the supervision of a licensed PT. The PT herself must perform
any initial evaluation and develop a written treatment plan, document and perform re-evaluations
and modifications of the treatment plan, supervise the PTA at a site no more than 60 miles from
the PT, perform the discharge evaluation, and write the discharge summary. Physical Therapy
Rule 1105-01-.02(2)(1)–(4). The plaintiff maintains that Didion’s FCE was “illegal” because a
licensed PT did not perform the FCE, supervise Didion as he performed the FCE, or handle the
plaintiff’s discharge. (Doc. No. 52, at 2; see also Didion Dep., Doc. No. 52-1, at 5–7, 10–12;
Schlueter Aff., Doc. No. 52-2 ¶¶ 1–4.)
Based on the assertions that Didion is not an expert and that the FCE was “illegal,” the
plaintiff argues that Didion’s opinion does not qualify as “expert” opinion and is “no different
from what a lay person or juror could have determined on [his] own”; is prima facie unreliable
because it is contrary to Tennessee law for a PTA to conduct an FCE; and lacks scientific basis.
(Doc. No. 52, at 2–3.) In addition, he argues that it should be excluded because it “assesses a
witness’s credibility and further ignores contrary proof”—specifically the findings of several
physicians, the Social Security Administration that the plaintiff is not able to work, and the
plaintiff’s CRPS diagnosis—“and, therefore, amounts to a ‘fact filter’ or selective ‘fact-finder.’”
(Id. at 3.)
In response, Ingram maintains that nothing in the Physical Therapy Rules, or any other
source of Tennessee law, requires a PT to perform an FCE, nor does the Rule dictate that Didion,
as a PTA, is unqualified to do so. It argues that Didion’s testimony and background establish that
21
he was fully qualified and capable of performing FCEs. In addition, the defendant argues that the
evidence does not establish a violation of the Physical Therapy Rules. Didion testified in his
deposition that he was supervised by PT Amy Melton, who was present at the clinic when the
FCE was performed and who signed the FCE as the supervising PT. (Doc. No. 67-1, at 12–14.)
Rule 1105-01-.02(2)(a)(3) provides that a PT may supervise a PTA as long as the PTA is
delivering services at a site no more than 60 miles or one hour from the PT, meaning that the
Rule does not require that the supervising PT be in the room or even at the clinic where the PTA
is providing services in order to provide supervision. The defendant also argues that, insofar as
the plaintiff is taking issue with the fact that a PT did not perform an initial evaluation and
develop a treatment plan, that portion of the rule did not apply under the circumstances, because
the plaintiff was referred for a one-time FCE and not for the purpose of ongoing physical therapy
treatment. Likewise, it would appear that no discharge summary would be required. In any event,
although the plaintiff questioned Didion at his deposition about a discharge summary, no
discharge summary has been introduced into the court’s record. In short, the defendant argues
that the FCE was not “illegal” under the law and that, even if there were some technical violation
of the Physical Therapy Rules, it would not invalidate the FCE or preclude Didion from
testifying about it. (Doc. No. 67, at 5–6.)
The court finds that the plaintiff has failed to establish that Didion is not qualified as an
expert under Rule 702 by virtue of his specialized knowledge, skill, experience, training, and
education. The plaintiff’s assertion that Didion’s testimony is the product of unreliable principles
and methods is based solely on his claim that the FCE was “illegal” under the Physical Therapy
Rules. Didion’s testimony establishes that it was not. He testified that he was supervised by PT
Amy Melton and that she was present in the clinic when he performed the plaintiff’s FCE.
22
Schlueter’s statement that Amy Melton did not conduct or participate in conducting the FCE is
irrelevant in light of the fact that nothing in the Physical Therapy Rules precludes a PTA from
conducting FCEs. Moreover, Schlueter is not competent to testify regarding whether Didion was
working under Melton’s supervision. Even if the plaintiff were competent to testify about that
issue, at best he raises a disputed issue of fact as to how closely Didion was supervised.
Moreover, even if the plaintiff were able to establish a technical violation of the rules, he has
cited no law to support his assertion that such a violation would invalidate the FCE.
Insofar as the plaintiff argues that Didion’s opinion should be omitted because it
contradicts and ignores contrary evidence in the record, the fact that Didion’s opinion is disputed
by other evidence in the record—including medical evidence that he is not capable of performing
work at any exertional level—goes to the weight to be accorded Didion’s testimony rather than
its admissibility. Didion’s opinion that the plaintiff is capable of sedentary work was not
premised on guesswork or speculation but upon Didion’s own evaluation of the plaintiff. See In
re Scrap Metal Antitrust Litig., 527 F.3d at 530.
The motion to exclude Didion’s testimony will be denied.
E.
Plaintiff’s Motion in Limine to Exclude Defendant’s Proposed Expert
Witness Testimony of George A. Barrett (Doc. No. 51)
George A. Barrett is a forensic economist whom the defendant intends to have testify
regarding the plaintiff’s annual earnings lost as a result of the accident. According to the
plaintiff, Barrett’s testimony “includes opinions as statements of fact, such as ‘Mr. Schlueter’s
post-injury annual earnings [would] be $21,255.00 in 2018” and that the plaintiff was “capable
of sedentary work.” (Doc. No. 51, at 1 (quoting Barrett Report, Doc. No. 51-1, at 3).) The
plaintiff argues that these opinions, “as stated,” must be excluded because they “are devoid of
any scientific, technological or specialized knowledge identified as their basis, apart from his
23
vague reference to medical experts or his unspecified and undated records or internet data . . . of
the sort easily understood by a lay juror.” (Doc. No. 51, at 1–2.) He argues that the testimony is
excludable because it (1) skews or omits facts; (2) is no different from what a lay jury could
determine; (3) assesses a witness’s credibility and ignores contrary testimony and, therefore,
amounts to a “fact filter”; (4) is unreliable, unhelpful, and lacks foundation; and (5) lacks
scientific basis. (Id. at 2–3.)
Barrett’s report, in the form of a letter to defense counsel dated May 9, 2019, identifies
the records Barrett reviewed to form his opinions, and he also states that he understands “from
the available records that medical expert opinions have been rendered which recommend that
Mr. Schlueter would be capable of working in jobs at the sedentary physical demand level.”
(Doc. No. 51-1, at 2.) Barrett took into account the plaintiff’s educational background—he has a
GED—and his past work as a manual laborer. In light of these factors, Barrett concluded that the
plaintiff has minimal transferable job skills and that his opportunities for sedentary labor would
be fairly limited. (Id.) Based on Barrett’s review of labor statistics for various occupations,
Barrett opines that, if the plaintiff had worked at a low-skill sedentary office job in 2018, his
annual income would have been approximately $21,255. (Id. at 3.)
The plaintiff’s objection is that Barrett’s economic conclusions are premised upon a
presumption that the plaintiff was capable of performing work at the sedentary level, which the
plaintiff asserts is supported only by the opinion testimony of PTA Todd Didion, which the
plaintiff also seeks to exclude. For the reasons set forth above, the court will not exclude Didion
from opining that the plaintiff is capable of sedentary work, nor is it improper for the defendant
to engage an economist to testify as to what the plaintiff’s earnings would have been if he had
actually been engaged in sedentary work in 2018. Any objection to the factual basis for Barrett’s
24
opinion goes to the weight to be accorded the evidence rather than to its admissibility. The
motion to exclude Barrett’s testimony, too, will be denied.
IV.
CONCLUSION AND ORDER
For the reasons stated above:
(1) Defendant’s Motion to Exclude Dr. Benjamin Johnson’s Opinions Regarding
Diagnosis of Complex Regional Pain Syndrome and Certain Elements of Future Medical
Treatment (Doc. No. 43) is GRANTED IN PART AND DENIED IN PART. It is GRANTED
to the extent that Dr. Johnson will not be allowed to testify that the plaintiff will need
arthroscopic knee surgery in the future or about his future need for prescription medications that
have in the past been prescribed by other practitioners for conditions unrelated to CRPS; it is
DENIED in all other respects.
(2) Defendant’s Motion to Exclude Jay Marsh’s Opinions Regarding Past and Future
Medical Expenses (Doc. No. 45) is DENIED.
(3) Plaintiff’s Motion to Exclude Earl Darst from Offering Certain Expert Testimony on
Behalf of the Defendant (Doc. No. 47) is DENIED.
(4) Plaintiff’s Motion in Limine to Exclude Defendant’s Proposed Expert Witness
Testimony of Todd Didion at Trial (Doc. No. 52) is DENIED.
(5) Plaintiff’s Motion in Limine to Exclude Defendant’s Proposed Expert Witness
Testimony of George A. Barrett at Trial (Doc. No. 51) is DENIED.
It is so ORDERED.
____________________________________
ALETA A. TRAUGER
United States District Judge
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