Hinson et al v. Dorel Juvenile Group, Inc.

Filing 150

MEMORANDUM ORDER. Signed by Magistrate Judge Roy S. Payne on 06/09/2016. (nkl, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
NICOLE HINSON, Individually and as
Next Friend of C.H., a Minor,
Plaintiffs,
v.
DOREL JUVENILE GROUP, INC.,
Defendant.

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Case No. 2:15-cv-713-JRG-RSP

MEMORANDUM ORDER
Pending before the Court are the following Motions filed by Defendant Dorel Juvenile
Group, Inc.:
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Dorel’s Motion to Strike Supplemental Report of Dr. David J. Altman (Dkt. No. 44);

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Dorel’s Motion to Exclude Testimony of Dr. Arthur Joyce (Dkt. No. 61);

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Dorel’s Motion to Exclude Brain Injury Opinions of Dr. David J. Altman (Dkt. No. 64);
and

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Dorel’s Motion to Exclude Brain Injury Related Opinions of Dr. Amy Mackenzie, Dr.
Ralph Scott and Dr. Rodney Isom (Dkt. No. 65).

Collectively these Motions seek to exclude expert opinions about a traumatic brain injury
(“TBI”) allegedly suffered by the minor plaintiff.
For the reasons set forth in this Order, the Motions are denied.

I. LAW
A. Rule 702
Rule 702 provides that an expert witness may offer opinion testimony 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. Fed. R. Evid. 702.
“The inquiry envisioned by Rule 702 is . . . a flexible one,” but, in Daubert, the Supreme
Court held that the Rules also “assign to the trial judge the task of ensuring that an expert’s
testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert v.
Merrell Dow Pharms. Inc., 509 U.S. 579, 594, 597 (1993).
“The relevance prong [of Daubert] requires the proponent [of the expert testimony] to
demonstrate that the expert’s ‘reasoning or methodology can be properly applied to the facts in
issue.’” Johnson v. Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012) (quoting Curtis v. M & S
Petroleum, Inc., 174 F.3d 661, 668 (5th Cir. 1999)). “The reliability prong [of Daubert] mandates
that expert opinion ‘be grounded in the methods and procedures of science and . . . be more than
unsupported speculation or subjective belief.’” Johnson, 685 F.3d at 459 (quoting Curtis, 174 F.3d
at 668).
In assessing the “reliability” of an expert’s opinion, the trial court may consider a list of
factors including: “whether a theory or technique . . . can be (and has been) tested,” “whether the
theory or technique has been subjected to peer review and publication,” “the known or potential
rate of error,” “the existence and maintenance of standards,” and “general acceptance” of a theory
in the “relevant scientific community.” Daubert, 509 U.S. at 593–94; see also Kumho Tire Co.,

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Ltd. v. Carmichael, 526 U.S. 137, 150 (1999) (“Daubert makes clear that the factors it mentions do
not constitute a ‘definitive checklist or test.’”); U.S. v. Valencia, 600 F.3d 389, 424 (5th Cir. 2010).
It is not proper to use Rule 702 as a vehicle to usurp the fact-finding role of the jury, nor is
exclusion under Rule 702 an appropriate substitute for the Court’s power to grant summary
judgment or judgment as a matter of law when such relief is warranted:
[R]espondent seems to us to be overly pessimistic about the capabilities of the jury
and of the adversary system generally. Vigorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of proof are the traditional
and appropriate means of attacking shaky but admissible evidence. Additionally, in
the event the trial court concludes that the scintilla of evidence presented supporting
a position is insufficient to allow a reasonable juror to conclude that the position
more likely than not is true, the court remains free to direct a judgment, Fed. Rule
Civ. Proc. 50(a), and likewise to grant summary judgment, Fed. Rule Civ. Proc. 56.
Daubert, 509 U.S. at 596. “The proponent need not prove to the judge that the expert’s testimony
is correct, but she must prove by a preponderance of the evidence that the testimony is reliable.”
Johnson, 685 F.3d at 459 (quoting Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir.
1998) (en banc)).
B. Timeliness
A party must disclose the opinions of its experts “at the times and in the sequence that the
court orders.” Fed. R. Civ. P. 26(a)(2)(D). A party who fails to timely disclose bears the burden of
proving that such failure is harmless. See Heidtman v. County of El Paso, 171 F.3d 1038, 1040 (5th
Cir. Tex. 1999). The Court considers four factors to determine whether a Rule 26 violation is
harmless: “(1) [the party’s] explanation for its failure to disclose the evidence, (2) the importance
of the evidence, (3) the potential prejudice to [the opposing party] in allowing the evidence, and
(4) the availability of a continuance.” CQ, Inc. v. TXU Min. Co., L.P., 565 F.3d 268, 280 (5th Cir.
2009).

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II. ANALYSIS
A. Motion to Strike Supplemental Report of Dr. Altman (Dkt. 44)
Dr. David Altman, M.D. is a medical expert for Plaintiffs. He timely served his opening
expert report in this case February 5, 2016. (Dkt. No. 44-3; “Original Report”). In that Original
Report, Dr. Altman states: “Impressions: . . . Acquired brain injury related to the MVA [motor
vehicle accident] on 05/15/2013.” Id. at 11. Dr. Altman provides approximately twelve pages of
opinions relating to the traumatic brain injury, including a summary of Dr. Joyce’s opinions that
C.H.’s performance in neuropsychological tests is consistent with a TBI (id. at 7), a “general
discussion” of the literature related to TBIs (id. at 11–17), and a projection of C.H.’s specific care
needs related to the TBI (id. at 38–40).
On February 25, 2016 Defendant sent a letter to Plaintiff:
Before this week it was my belief from reading your expert reports that Dr. Altman
was solely relying on Dr. Joyce’s report/opinions for his recommendations
regarding treatment for C.H.’s alleged traumatic brain injury (TBI). However, after
the depositions this week, that is not clear to me now. If Dr. Altman is going to give
independent opinions/bases for a TBI diagnosis, I need to depose him and hereby
request dates for that deposition.
(Dkt. No. 44-4). Plaintiff responded March 2, 2016:
To follow up on your February 25th letter, I believe you will want to depose Dr.
Altman, as he does have opinions regarding C.H.’s TBI. We are checking on
available dates for the deposition and should have those soon. Also, Dr. Altman will
provide a brief supplement to his report next week.
(Dkt. No. 44-5).
On March 9, 2016 Dr. Altman served a two-page supplemental report. (Dkt. No. 44-7;
“Supplement”). The Supplement states that “[C.H.] most likely sustained an acquired brain injury
as a result of the motor vehicle accident on 05/15/2013” and provides a list of specific evidence
upon which Dr. Altman bases this opinion. Id. Defendant deposed Dr. Altman on March 11, 2016.

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(Dkt. No. 44-8).
Defendant moves to strike the Supplement as late, arguing that the Supplement is the first
disclosure of a new “affirmative opinion that C.H. suffered a brain injury in the May 15, 2013
accident” and that this new opinion “completely changes Dr. Altman’s role in the case.” (Dkt. No.
44 at 2).
Defendant’s premise—that the Supplement discloses new opinions—is questionable.
Defendant’s position is based on the idea that Dr. Altman did not “affirmatively opine that C.H.
suffered a brain injury” in his Original Report, but instead “relies on Dr. Joyce for the TBI opinion,
and merely provides the possible medical outcomes of such a condition.” (Dkt. No. 44 at 3).
However, Dr. Altman also affirmatively opines in his Original Report that C.H. suffered an
“[a]cquired brain injury related to the MVA.” 1 (Dkt. No. 44-3 at 11). More to the point, by relying
on Dr. Joyce’s opinions Dr. Altman necessarily adopted them as his own; the distinction between
relying on another expert’s opinions versus expressing an “affirmative” opinion is largely without
difference. The rules contemplate that experts will assess the validity of the opinions they rely on
and adopt them as their own. Cf. In re TMI Litig., 193 F.3d 613, 716 (3d Cir. 1999) (An expert’s
“failure to assess the validity of the opinions of the experts he relied upon together with his
unblinking reliance on those experts’ opinions, demonstrates that the methodology he used to
formulate his opinion was flawed under Daubert as it was not calculated to produce reliable
results.”). Dr. Altman’s supplement does not disclose a new opinion.
However, Dr. Altman’s Supplement does disclose additional evidence supporting his
previously-disclosed opinion that C.H. suffered a TBI as a result of the accident. Some of this
evidence was disclosed in Dr. Altman’s Original Report (e.g. Dr. Joyce’s tests), but some of it was
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Dr. Altman described his Supplement as “a clarification of what had already been stated in my
original report.” (Dkt. No. 44-8 at 16:4–9).

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not cited in his Original Report. To the extent this constitutes a disclosure of an untimely new
opinion, the Court finds the late disclosure to be harmless. See CQ, 565 F.3d at 280.
Explanation for the failure to timely disclose—Plaintiff served the Supplement in response
to a letter from Dorel requesting clarification whether “Dr. Altman is going to give independent
opinions/bases for a TBI diagnosis” and requesting a deposition. The Supplement directly
addressed Defendant’s request. Plaintiffs also complied with Defendant’s deposition notice, and
Defendant questioned Dr. Altman about his TBI opinions at length. See, e.g. (Dkt. No. 44-8 at 10–
28). In light of the limited nature of the additional disclosures in the Supplement, the Court finds
this explanation satisfactory and finds that this factor favors allowing supplementation.
Importance of the evidence—as indicated by Defendant’s motions to strike the TBI
opinions in this case, the evidence contained in Dr. Altman’s Supplement is important. Defendant
concedes this point, representing that the evidence is “critically important” and “goes to the heart
of the entire damages case for Plaintiffs.” (Dkt. No. 44 at 6). Accordingly, this factor favors
allowing supplementation. See Betzel v. State Farm Lloyds, 480 F.3d 704, 708 (5th Cir. 2007)
(holding that importance disfavors exclusion of testimony).
Potential prejudice to Defendant—Defendant calls the prejudice it would suffer
“enormous” and argues the “trial would need to be postponed for months,” but Defendant fails to
substantiate these objections. (Dkt. No. 44 at 6–7). Dr. Altman’s Opening Report disclosed his
opinion that C.H. suffered a TBI and his Supplement was served prior to both his deposition and
the deadline for serving rebuttal reports. Defendant had the opportunity to test and rebut any new
material in the supplemental report—Defendant’s counsel questioned Dr. Altman about his
Supplement in detail on a paragraph-by-paragraph basis. See (Dkt. No. 44-8 at 45:14–74:12).
Defendant does not identify any specific opinion or piece of evidence in the Supplement that came

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as a surprise. Indeed, most of the “new” evidence in the Supplement was previously disclosed and
relied upon by Dr. Joyce to arrive at the same conclusions as Dr. Altman. See, e.g. (Dkt. No. 61-5
at 20) (noting evaluations by Smith, Bryan, and Bell). Accordingly, the Court does not find any
significant prejudice. This factor weighs in favor of supplementation.
Availability of a continuance—a continuance is not available at this late stage of the case,
and Defendant does not request one.
For the foregoing reasons, the Motion to Strike Supplemental Report of Dr. Altman (Dkt.
No. 44) is DENIED.
B. Motion to Exclude Testimony of Dr. Joyce (Dkt. 61)
Defendant moves to strike the expert testimony of Plaintiff’s neuropsychologist Dr. Arthur
Joyce under Rule 702 and Daubert. (Dkt. No. 61). Defendant asks the Court to exclude Dr. Joyce’s
opinions that C.H. suffered a traumatic brain injury because they are “unsupported” and “directly
at odds with the evidence in this case.” (Id. at 1). Specifically, Defendant argues: (1) Dr. Joyce’s
opinions contradict those of medical professionals who treated C.H. after the accident; (2) Dr.
Joyce misapplied or misinterpreted diagnostic tests including the Pediatric Glasgow Coma Score
(PGCS) and the Vineland test; (3) Dr. Joyce failed to consider the depositions of C.H.’s family
members in forming his opinions; (4) Dr. Joyce ignored prior deposition testimony of Dr. Altman;
and (5) Dr. Joyce failed to establish that C.H.’s symptoms were caused by the accident as opposed
to other sources of trauma or mental illness.
Rule 702 and Daubert require the Court to assess whether an expert’s opinions are relevant
and reliable, not whether they are persuasive or correct. See Johnson, 685 F.3d at 459 (“The
proponent need not prove to the judge that the expert’s testimony is correct, but she must prove by
a preponderance of the evidence that the testimony is reliable.”). The Daubert opinion and its

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progeny cite factors such as “falsifiability” “refutability” and “testability” as the hallmarks of the
reliability inquiry. 509 U.S. at 593. Focusing on these types of criteria has the salutary effect of
dissuading the Court from usurping the role of the factfinder who is ultimately charged with
weighing the credibility of witnesses. See id. at 596 (“Vigorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate
means of attacking shaky but admissible evidence.”). If an opinion is falsifiable, testable, and
conforms to the standards of the relevant scientific community, the opposing party has all the tools
it needs to challenge and attempt to rebut that opinion at trial. When an opinion is opaque,
conclusory, pseudoscientific, or contrary to law, the Court must act as gatekeeper and exclude it.
Defendant’s first argument, that Dr. Joyce’s opinions are contradicted by other medical
professionals who treated C.H. shortly after the auto accident, goes to weight and not admissibility.
In virtually every case, an expert’s opinions will be contradicted by at least one other expert. It is
the jury’s task to weigh credibility and determine who to believe. Moreover, Defendant has not
necessarily identified any contradictions. Defendant’s argument is based on the fact that none of
the physicians who treated C.H. after the accident diagnosed him with a brain injury. The absence
of a diagnosis does not necessarily establish the absence of an injury, and Plaintiff argues that a
hospitalist note at Baylor Medical suggests a psychological evaluation was never performed on
C.H. See (Dkt. No. 78-7 at 2) (no box checked next to “Psych”). The diagnoses (or lack thereof)
rendered by C.H.’s other physicians may provide a useful means to challenge Dr. Joyce’s opinions
at trial but they do not establish that his opinions are unreliable.
Second, Defendant argues Dr. Joyce misapplied the PGCS, which scores a patient’s
neurological status after an accident in terms of eye, verbal, and motor responses. (Dkt. No. 61 at
7). Dr. Joyce’s report criticizes the EMT responders’ use of an adult GCS on C.H. rather than a

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pediatric GCS, and Dr. Joyce attempts to extrapolate a PGCS score from available data. See (Dkt.
No. 61-5 at 3). Defendant likewise argues that Dr. Joyce failed to give proper weight to the
Vineland Adaptive Behavior Scales, which is a test based on a “semi-structured” interview with
the caregiver (C.H.’s mother). See (Id. at 10–11). Dr. Joyce’s report identifies the tests he used,
identifies the facts and data he relied upon, and shows the scores he arrived at in each category.
Whether Dr. Joyce’s conclusions are right or wrong they are eminently testable, falsifiable, and
rely on accepted standards in the relevant field of expertise. Defendant has the information
necessary to cross, rebut, and attempt to falsify Dr. Joyce’s opinions; they are admissible.
Defendant contends Dr. Joyce should have considered the deposition testimony of C.H.’s
mother, father, and grandmother. C.H.’s mother, for instance, reports that he is “smart”,” “sharp,”
and likely to attend college. See, e.g. (Dkt. No. 61-9 at 104:19–105:3) (C.H. is described as both
“smart” and “very hyperactive” with “some trouble focusing”). Although Dr. Joyce does not rely
on the deposition testimony of C.H.’s family, he does rely on interviews he conducted with C.H.’s
mother and grandmother. (Dkt. No. 61-5 at 2). Defendant does not explain why Dr. Joyce’s
opinions are rendered unreliable by a failure to rely on deposition testimony in addition to these
interviews.
Defendant also identifies the deposition testimony of Dr. Altman in a prior case against
Wal-Mart involving the same accident. Dr. Altman served an expert report in that case that listed a
“[p]ossible acquired brain injury” among C.H.’s injuries but did not provide further detail on the
subject. (Dkt. No. 44-1 at 8). In his subsequent deposition in the Wal-Mart case, Dr. Altman
testified that C.H. “should be able to live a full and complete life.” (Dkt. No. 61-10 at 62:25-63:1).
Defendant contends this statement contradicts Dr. Joyce’s subsequent diagnosis of a TBI. The
contradiction is not apparent from the deposition, in which Dr. Altman also points out that he “did

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not see that [C.H.] underwent any formal diagnostic testing for an acquired brain injury.” (Id. at
35:22–24). Dr. Altman has apparently revised his views in light of Dr. Joyce’s subsequent
diagnostic testing, as evidenced by Dr. Altman’s reports in the present litigation. Daubert does not
inherently preclude an expert from changing his opinions. The scientific method could be
described as the process of assiduously updating one’s views in light of new evidence. To the
extent Defendant identifies a contradiction, this is fertile ground for cross examination. And, as
discussed supra, Rule 702 does not render an expert’s opinions unreliable merely because they
disagree with another expert’s opinions.
Finally, Defendant argues Dr. Joyce cannot show a causal link between the recentlydiagnosed TBI and the car accident. Defendant notes that no psychological or neurological
evaluation was performed on C.H. before the accident and that C.H.’s symptoms could be
attributable to other causes such as mental illness or subsequent trauma. Defendant contends “Dr.
Joyce’s tests of C.H. should be given less weight than the overwhelming objective, medical
evidence that contradicts Dr. Joyce’s opinions.” (Dkt. No. 61 at 13). Defendant is correct that these
issues go to weight and not admissibility. Dr. Joyce examined evidence of C.H.’s behaviors and
symptoms at and near the time of the accident and concluded that these were consistent with TBI.
See, e.g. (Dkt. No. 61-5 at 3–4) (estimating PGCS score at the time of accident; noting C.H. was
“sleeping all the time, not walking, not moving, just staring at the TV” after the accident). Dr.
Joyce also performed tests on C.H., the results of which he compared to statistical samples of the
general population. (Id. at 7–12) (indicating several scores in the bottom 1% or 2% of the sample).
The results of these tests tend to show causation. 2 The tests are well-documented in Dr. Joyce’s
report and can be tested and challenged by Defendant on cross-examination or rebuttal.
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The Court does not comment on whether this evidence is sufficient to prove causation at trial,
only that the evidence is admissible as relevant and reliable under Rule 702.

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Accordingly, the Court finds that Dr. Joyce’s opinions meet the standards of Rule 702.
Defendant’s Motion to Exclude Testimony of Dr. Joyce (Dkt. No. 61) is DENIED.
C. Motion to Exclude Brain Injury Opinions of Dr. Altman (Dkt. 64)
Defendant’s Motion to Strike Dr. Altman’s opinions urges the same arguments as
Defendant’s Motion to Exclude Dr. Joyce. In particular, Defendant argues: (1) Dr. Altman’s
opinions contradict those of medical professionals who treated C.H. after the accident; (2) Dr.
Altman did not review depositions of C.H.’s family; (3) Dr. Altman’s opinions in this case
contradict the opinions he expressed in his Wal-Mart deposition; (4) Dr. Altman misapplies the
GCS test. (Dkt. No. 64).
For the same reasons set forth supra, the Court in its role as gatekeeper finds that these
issues go to the weight of Dr. Altman’s testimony rather than its admissibility. Defendant’s Motion
to Exclude Brain Injury Opinions of Dr. Altman (Dkt. No. 64) is DENIED.
D. Motion to Exclude Dr. Mackenzie, Dr. Scott, and Dr. Isom (Dkt. 65)
Defendant moves to exclude the damages opinions of Dr. Mackenzie, Dr. Scott, and Dr.
Isom pertaining to C.H.’s alleged brain injury. (Dkt. No. 65). This Motion is entirely premised on
Defendant’s Motions to Exclude Dr. Arthur Joyce and Dr. David J. Altman and raises no
additional arguments.
Because the Court has denied those Motions, Defendant’s Motion to Exclude Dr.
Mackenzie, Dr. Scott, and Dr. Isom (Dkt. No. 65) is also DENIED.
III. CONCLUSION
For the foregoing reasons, Defendant’s Motion to Strike Supplemental Report of Dr. David
J. Altman (Dkt. No. 44) is DENIED. Defendant’s Motion to Exclude Testimony of Dr. Arthur
Joyce (Dkt. No. 61) is DENIED. Defendant’s Motion to Exclude Brain Injury Opinions of Dr.

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David J. Altman (Dkt. No. 64) is DENIED. Defendant’s Motion to Exclude Brain Injury Related
Opinions of Dr. Amy Mackenzie, Dr. Ralph Scott and Dr. Rodney Isom (Dkt. No. 65) is DENIED.

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