Pickens et al v. Dowdy et al
ORDER granting in part and denying in part 41 Motion in Limine. Signed by Magistrate Judge Tu M. Pham on 8/2/2018. (Pham, Tu)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
JOHN M. PICKENS,
AMY BETH DOWDY,
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO
Before the court is plaintiff John Pickens’s Motion in Limine
to Exclude Various Opinions and Testimony of Defendant’s Expert
James Rodney Feild, M.D., filed on July 20, 2018.
(ECF No. 41.)
Defendant Amy Beth Dowdy filed a response on July 25, 2018, and a
supplemental response on July 31, 2018.
filed a reply on July 31, 2018.
(ECF No. 45, 53.) Pickens
(ECF No. 55.)
The court held a
pretrial conference at which it heard oral argument on this and
other motions on July 30, 2018, and August 1, 2018.
(ECF No. 52,
For the following reasons, Pickens’s motion is GRANTED in
part and DENIED in part.
FINDINGS OF FACT
On November 16, 2017, Dowdy disclosed to Pickens that she
intended to call Dr. Feild as an expert witness.
(ECF No. 45-1 at
She described the scope of his possible testimony as follows:
The subject matter upon which Dr. Feild is expected
to testify includes all issues pertaining to the
injuries and conditions allegedly sustained by Plaintiff
in the automobile accident which forms the basis of this
suit. This would include, but is not limited to, all
issues of Plaintiff’s health and physical condition
before the subject automobile accident, the injuries
alleged to have been sustained during and as a result of
the subject automobile accident, medical treatment
received by Plaintiff before and after the subject
automobile accident, as well as his current condition.
Dr. Feild may also testify as to any opinion offered by
(Id. at 1–2.) In addition to this description, Dowdy provided
Pickens with a report by Dr. Feild in which he listed the
explained that his opinions on the matter were as follows:
Based on my analysis of these records, my
opinion is that the motor vehicle accident that Mr.
Pickens was involved in on March 14, 2015, should
have caused him neck and arm pain as described in
the records for 4 weeks or so. The surgery that he
had on his neck on 2 occasions is unrelated to the
degenerative joints in his neck. The duration of
time between the MVA and surgery is medically too
long to connect the two incidents. The MVA did not
cause the arthritis for which surgery was done.
impairment as related to the neck resulting from
the MVA on March 14, 2015.
(Id. at 4–5.)
On March 29, 2018, the parties deposed Dr. Feild.
(Dr. Feild Dep, ECF No. 41-2.)
Pickens moves to exclude excerpts
from this deposition that he claims are 1) not mentioned in Dr.
questions, and/or 3) unreliable.
CONCLUSIONS OF LAW
Testimony on Matters not Included in Dr. Feild’s Report
Federal Rule of Civil Procedure 26 requires a party to
supplement an expert report “if the party learns that in some
material respect the [report] is incomplete or incorrect, and if
the additional or corrective information has not otherwise been
made known to the other parties during the discovery process or in
Fed. R. Civ. P. 26(e)(1)(A).
“[A] ‘report must be
complete such that opposing counsel is not forced to depose an
expert in order to avoid an ambush at trial; and moreover the
report must be sufficiently complete so as to shorten or decrease
the need for expert depositions and thus to conserve resources.’”
R.C. Olmstead, Inc., v. CU Interface, LLC, 606 F.3d 262, 271 (6th
Cir. 2010) (quoting Salgado v. Gen. Motors Corp., 150 F.3d 735,
742 n.6 (7th Cir. 1998)).
The duty to supplement extends not only
to information included in an expert's report, but also “to
information given during the expert's deposition.”
Fed. R. Civ.
“[C]hanges in the opinions expressed by the expert
whether in the report or at a subsequent deposition are subject to
a duty of supplemental disclosure under subdivision (e)(1).”
R. Civ. P. 26 advisory committee’s note to 1993 amendment.
that fails to provide such supplementation “is not allowed to use
that information . . . to supply evidence on a motion, at a hearing,
or at a trial, unless the failure was substantially justified or
Fed. R. Civ. P. 37(c)(1).
When determining whether
an omitted or late disclosure was substantially justified or
harmless, courts consider the following factors:
(1) the surprise to the party against whom the evidence
would be offered; (2) the ability of that party to cure
the surprise; (3) the extent to which allowing the
evidence would disrupt the trial; (4) the importance of
the evidence; and (5) the non-disclosing party's
explanation for its failure to disclose the evidence.
Abrams v. Nucor Steel Marion, Inc., 694 F. App'x 974, 982 (6th
Cir. 2017) (quoting Howe v. City of Akron, 801 F.3d 718, 748 (6th
Pickens argues that Dr. Feild failed to include in
his report any mention of Pickens’s myasthenia gravis diagnosis,
screenshots of Pickens’s 2010 and 2015 MRIs, the chosen course of
treatment by Pickens’s treating physician, Jason Weaver, M.D., or
the average recovery rates for individuals injured in motor vehicle
During his deposition, Dr. Feild discussed myasthenia gravis
He described the condition and opined on the
symptoms that led to Pickens’s diagnosis.
20, 11:25–12:2, 67:17–69:14.)
(Dr. Feild Dep. 11:15–
Because Dr. Feild did not mention
myasthenia gravis in his report or supplement his report to clarify
his position on this matter,
Pickens seeks exclusion of all
deposition are admissible because the testimony is being offered
to rebut portions of Dr. Weaver’s deposition testimony that Dowdy
elicited from Dr. Weaver while cross examining him.
The court finds that all references to myasthenia gravis
should be excluded from Dr. Feild’s deposition.
arguments about the rebuttal purpose of the deposition, she has
not cited to any case law to support her argument.
parties retain their disclosure obligations even when they present
evidence solely to rebut another party’s evidence.
Civ. P. 26(a)(2)(D)(ii).
See Fed. R.
Thus, the court finds that the five-
factor test weighs in favor of exclusion.
The first factor weighs
toward exclusion — Pickens experienced unfair surprise during the
deposition because Dr. Feild’s report made no mention of myasthenia
That Dowdy brought the matter to Dr. Weaver’s attention
does not eliminate the surprise because the cross examination of
Dr. Weaver did not put Pickens on notice that Dr. Feild also
intended to testify about myasthenia gravis.
The second factor
weighs toward exclusion — the opportunity to cross examine Dr.
Feild did not cure the surprise because Pickens did not have
adequate time to prepare to cross examine Dr. Feild on this topic.
The third factor weighs against exclusion — considering that Dr.
Weaver’s testimony on myasthenia gravis is admissible, it is
unlikely that discussion of the matter would seriously disrupt the
The fourth factor weighs toward exclusion — it is unclear
how the contested testimony could be of value to the defendant’s
case given that Dr. Feild does not opine that myasthenia gravis
was an alternate reason for the treatment Pickens received.
fifth factor weighs toward exclusion — Dowdy’s explanation for her
failure to disclose, that there were only ten days between Dr.
satisfactory because Dowdy does not explain why that was too little
Beyond Dr. Feild’s failure to discuss myasthenia gravis in
First, the irrelevance of this testimony, touched on
in the preceding fourth-factor analysis, is on its own a sufficient
reason for excluding the testimony.
Dr. Feild never opined that
Pickens’s myasthenia gravis caused him to receive the medical
treatment at issue in this.
Instead, he testified that Pickens
was starting to feel the effects of the myasthenia gravis around
the time of his surgery.
(Dr. Feild Dep. 68:19–23.)
good portion of Dr. Feild’s discussion of myasthenia gravis has no
reliable scientific basis.
See Fed. R. Evid. 702 (“A witness who
is qualified as an expert . . . may testify if: . . . the testimony
is the product of reliable principles and methods . . .”); Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993) (requiring
Indicators of reliability include evidence that a theory has been
tested, subject to peer review, and is generally accepted by the
See Daubert, 509 U.S. at 593–94.
supported his opinion that Pickens was already feeling the effects
of myasthenia gravis at the time of his surgery by testifying as
The radiologist describes a uvula, which the thing
that hangs down in the back of your throat, was really
low. And it was dropped down toward the larynx. And
usually it's high and so forth. And he complained that
he had a grape in his throat. And I suspect if someone,
or maybe somebody already has, someone took 100
myasthenia patients and if you had X-rays on them you
probably would see some of them that had the uvula
dropped down. And that may be a finding that would alert
you to the problem.
This testimony has none of the indicators of reliability.
these reasons, the court GRANTS this part of Pickens’s motion and
finds that the excerpts of Dr. Feild’s testimony located at 11:15–
should be excluded.
screenshots that he took from 2010 and 2015 MRIs of Pickens.
Feild Dep. 21:16–25:23, 52:11–53:25.)
Pickens argues that this
testimony should be excluded because Dr. Feild did not indicate in
his report that he would be relying on screenshots from these MRIs.
Dowdy argues that Dr. Feild’s report stated he had reviewed records
from the facilities responsible for requesting and completing the
The court finds that this testimony is admissible because
Pickens was well aware of the existence of the MRIs.
court DENIES this part of Pickens’s motion.
Dr. Weaver’s Treatment of Pickens
During his deposition, Dr. Feild testified at great length
about treatment decisions by Dr. Weaver that he would not have
treatments, and possible medical consequences from the treatment
(Dr. Feild Dep. 55:4–63:6.)
Pickens asks the
court to exclude this testimony on the grounds that Dr. Feild’s
report did not indicate he would discuss these issues.
argues that the court should allow this testimony because all of
alternatively, she elicited the testimony to rebut Dr. Weaver’s
The court finds that the generalized description in Dowdy’s
initial disclosure about the issues Dr. Feild might discuss is not
a satisfactory substitute for the detailed report that Fed. R.
Civ. P. 26(2)(B) requires of expert witnesses.
arguments on this point do not aid her.
With certain exceptions
treatment, the alternative treatments available, and the costs of
these treatments is material information that should have been
included in his report.
Applying the five-factor test, the court
finds that, for many of the same reasons that the omission of
myasthenia gravis was not harmless or substantially justified,
neither was the omission of this information.
Furthermore, the court notes that the use for which Dowdy
offers this testimony, to show that Pickens’s failed to mitigate
damages, presents several reliability issues.
One issue is that
Dr. Feild has not demonstrated that he knows the customary charges
for the treatment Pickens received.
S.W.3d 431, 438 (Tenn. 2017).
See Dedmon v. Steelman, 535
Another issue is that Dr. Feild did
not provide a reliable basis for his opinion that the alternative
treatment he discussed is less expensive than the one that Pickens
Nonetheless, the court finds that one excerpt from this
contested section of the testimony is admissible.
located at 56:7–57:24 is admissible because it focuses entirely on
performed on Pickens — topics that Dr. Feild is qualified to
discuss and were adequately mentioned in Dr. Feild’s report.
Therefore, the court GRANTS this portion of Pickens’s motion in
part and finds that the excerpts of Dr. Feild’s testimony located
at 54:25–56:71 and 57:25–63:6 on the deposition transcript should
Average Recovery Rates for Individuals Injured in Motor
In response to a question about the basis for the statement
in his report that Pickens should have recovered from the motor
vehicle accident in four weeks, Dr. Feild testified,
Well, you see people that are involved in rear-end
collisions. You know, I was right down the street here,
somebody hit me in the back . . . Anyway, hit me in the
back, and they have Volvo, the company Volvo introduced
these pads that go on the back of your head to keep you
from having flexion, extension injuries. So if it hits
you in the back and you go back like that. But you hit
the pad so you don’t have what used to be called
And then if you hit something then your neck goes
forward. So there wasn’t — it wasn’t a very serious,
looking at the pictures, my analysis of the truck, it
wasn’t — a bumper was dislodged. But you know, that’s
why it’s there. So and there was nothing broken. And
for — he walks in the emergency room and says I have an
achy pain. And then two months, three months go by he
doesn’t have any pain. You just can’t say ah, that’s
the cause of everything that happens to him for the rest
of his life is this wreck. You give it time.
Take the wreck out of it and take a football player
that’s, or a person that slips down and hurts themselves,
and they are 70 years old and they have pain in their
back. You treat it conservatively without operating on
it, in about 60 to 90 days it’s gone. And that’s, the
body heals it. And the body takes care of the problem.
Unless they fracture something and that’s where he is.
He was in a minor wreck, minor damage.
talked about his not going to the emergency room.
reduce jury confusion, the court has expanded the length of
the exclusion slightly beyond what Pickens requests.
Immediately walks in the emergency room, he stays an
hour and a half or so, walks out. And then, you know,
and nothing is broken. In about 60 to 90 days it’s over.
That’s out of the picture.
(Dr. Feild Dep. 65:8–10, 65:16–22.)
In addition to arguing for
exclusion due to failure to disclose, Pickens also argues that
this testimony is not responsive and not reliable because it is
not grounded in science and includes analysis of issues outside of
Dr. Feild’s specialization.
Dowdy has stated that she intends to
exclude the portions of the testimony about Dr. Feild’s personal
experience with a motor vehicle accident located at 65:9–20.
This testimony contains several material statements that were
not raised in Dr. Feild’s report.
For instance, Dr. Feild’s
opinion that Pickens should have recovered in sixty to ninety days
differs greatly from his report that the recovery time should have
lasted for four weeks.
Applying the five-factor test, the court
finds that, for many of the same reasons that the omission of
myasthenia gravis was not harmless or substantially justified,
consisting almost entirely of assertions of fact that lack any
Finally, the testimony is both nonresponsive
Therefore, the court GRANTS this part of Pickens’s
motion and finds that the excerpt of Dr. Feild’s testimony located
at 65:4–67:16 on the deposition transcript should be excluded.
Testimony Resulting from Leading Questions
Pickens claims that the deposition testimony found at 25:12–
25:23, 44:20–24, and 54:1 should be stricken as the result of
leading questions. The court DENIES this part of Pickens’s motion.
As mentioned above, expert testimony must be relevant and
reliable. See Fed. R. Evid. 702; Daubert, 509 U.S. at 589. Pickens
argues that excerpts from Dr. Feild’s testimony discussing typical
treatment approaches and recovery rates for individuals injured in
motor vehicle accidents, the evidence substantiating Pickens’s
complaints of pain, and possible factors exacerbating Pickens’s
symptoms are unreliable and should be excluded.
33:19–34:15, 35:17–36:3, 50:1–51:17.)
(Dr. Feild Dep.
Dowdy argues that these
excerpts are reliable because “there can be no doubt but that Dr.
Feild’s testimony is based upon his review of records and his own
(ECF No. 45 at 8.)
Typical Treatment Approaches to Individuals Injured in
Motor Vehicle Accidents
In response to a question about what one expects to see in
the medical records of an individual who suffered a disk injury in
a car accident, Dr. Feild gave the following answer:
Well, if somebody is in a wreck and they think they
are hurt, they don't wait five days to go to the
emergency room. They are in the emergency room. And,
you know, they complain of neck pain at the scene. And
the fire department puts them in a neck brace and lifts
them onto the stretcher and carries them to the emergency
room. And they have an X-ray made, and examined very
carefully until they rule out the fracture of the neck.
And they don't come in complaining of an achy pain
five days later. But they, if they have it right out
here, you know, nothing, if they block traffic, you can
do everything and get them in there and carry them to
the emergency room.
(Dr. Feild Dep. 33:22–34:10.)
Dr. Feild’s fifty-seven years of experience do not endow his
entire testimony with reliability.
The individual opinions he
expressed must be supported with indicators of reliability, see
Daubert, 509 U.S. at 593–94, and such indicators are lacking from
this section of his testimony.
Therefore, the court GRANTS this
part of Pickens’s motion and finds that the excerpt of Dr. Feild’s
testimony located at 33:19–34:15 on the deposition transcript
should be excluded.
Evidence Supporting Pickens’s Complaints of Pain
Much of the debate surrounding Dr. Feild’s testimony about
the evidence supporting Pickens’s complaints of pain has already
Dowdy has agreed to strike portions of testimony
beginning with the words “It’s what” on 35:17 and ending at 36:1.
The remaining testimony at issue is Dr. Feild’s statement, “That’s
(Dr. Feild Dep. 36:2–3.)
This testimony is the
conclusion for preceding testimony located at 35:11–17 to which
Pickens does not object.
As the preceding testimony is reliable,
this conclusion is also reliable.
Therefore, the court DENIES
this part of Pickens’s motion.
Possible Factors Exacerbating Pickens’s Symptoms
In this contested excerpt of testimony, the attorney asked
Dr. Feild a series of questions about the factors contributing to
Pickens’s neck pain and numbness.
(Dr. Feild Dep. 50:1–51:17.)
The standard of certainty upon which the attorney relied appeared
At times the attorney asked “what kinds of things could
have caused” the symptoms and at times asked whether Pickens
“[k]eeping his neck in a flexed position, is something that within
a reasonable degree of medical certainty” caused the symptoms.
(Dr. Feild Dep. 50:1, 51:9–11.) Dr. Feild responded that arthritis
would have caused these symptoms and that flexion could have
exacerbated the arthritis.
(Dr. Feild Dep. 50:12, 51:15–17.)
Pickens argues that the court should exclude this testimony
because it lacks indicators of reliability, and alternatively,
testimony located at 50:19–51:2, but this does not resolve any of
the issues that Pickens has raised.
Regarding Pickens’s first
argument, the court finds that many aspects of this testimony
indicate its reliability.
In the preceding testimony, Dr. Feild
spent a great deal of time describing Pickens’s symptoms and
various ways that the medical records indicated Pickens eased and
exacerbated those symptoms.
(Dr. Feild Dep. 36:15–49:25.)
theories about additional factors causing or exacerbating these
symptoms build upon this prior testimony and are well within the
issues that he raised in his report and his area of medical
(ECF No. 41-1.)
relies on several cases from Tennessee state courts, placing
special emphasis on Hunter v. Ura, 163 S.W.3d 686, 703–04 (Tenn.
In Hunter, the Tennessee Supreme Court approved the
exclusion of excerpts of testimony by a defendant’s expert witness
that focused on “‘possible’ theories or causes” instead of probable
Id. at 704.
The Court held that such testimony is
unreliable because testimony that something is “possible” is too
speculative to substantially assist the trier of fact.
Pickens points to the multiple uses of the word “could” in the
questions and answers as proof that the testimony is speculative.
However, while the Sixth Circuit agrees that “an expert opinion
possibility,” it also notes that “there is no ‘magic words’ test”
and merely using “the phrase [‘with a reasonable degree of medical
certainty’] . . . does not make a causation opinion admissible.”
Johnson v. Memphis Light Gas & Water Div., 695 F. App'x 131, 136–
37 (6th Cir. 2017) (alteration in original) (quoting Thompson v.
Underwood, 407 F.2d 994, 997 (6th Cir. 1969); Tamraz v. Lincoln
Elec. Co., 620 F.3d 665, 671 (6th Cir. 2010)).
Regardless of the precise words used, an expert witness’s
testimony is not speculative if it communicates that the expert’s
“conclusion is more likely than not true.”
Id. at 137.
court finds that, taken in context with the preceding testimony,
Dr. Feild’s answer at 50:8–14, “We saw the films of his arthritis
in his neck.
And so that would be the suspect right there, the
Unless something else happened,” indicates that he was
testifying about a cause of Pickens’s pain that he believed more
likely than not to be the true cause.
In addition, Dr. Feild’s
testimony at 51:15–17 is not an opinion on the actual cause of
Pickens’s pain but rather a permissible response to a hypothetical.
For these reasons, the court DENIES this part of Pickens’s motion.
For the foregoing reasons, the Pickens’s motion to exclude is
GRANTED in part and DENIED in part.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
United States Magistrate Judge
August 2, 2018
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