Kimble v. Ngiraingas et al
Filing
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MEMORANDUM OPINION AND ORDER granting in part 47 MOTION Motion to Exclude or Limit Testimony of Plaintiff's Experts filed by Steven Wayne Camp, Refrigerated Specialist, Inc., 48 MOTION for Joinder in Defendants' Motion to Exclude or Limit Testimony of Plaintiff's Experts filed by Eldukl A Ngiraingas. Signed by District Judge Amos L. Mazzant, III on 10/7/2021. (daj, )
United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
JAMES KIMBLE,
Plaintiff,
v.
ELDUKL A. NGIRAINGAS, STEVEN
WAYNE CAMP, and REFRIGERATED
SPECIALIST, INC.,
Defendants.
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Civil Action No. 4:20-cv-560
Judge Mazzant
MEMORANDUM OPINION AND ORDER
Pending before the Court are Defendants Steven Wayne Camp and Refrigerated Specialist,
Inc.’s Motion to Exclude or Limit Testimony of Plaintiff’s Experts (Dkt. #47) and Defendant
Eldukl Ngiraingas’ Notice of Joinder in Defendants’ Motion to Exclude or Limit Expert Testimony
(Dkt. #48). Having considered the motions and the relevant pleadings, the Court finds that the
motions should be GRANTED IN PART.
BACKGROUND
On July 7, 2020, Plaintiff James Kimble (“Kimble”) sued Defendants Eldukl Ngiraingas
(“Ngiraingas”), Steven Wayne Camp (“Camp”), and Refrigerated Specialist, Inc.’s (“Refrigerated
Specialist”) for personal injuries arising out of a car accident that occurred on July 30, 2018
(Dkt. #1 ¶¶7–10). Kimble alleges the collision caused him to suffer back injuries and tinnitus, a
condition that results in constant ringing in the ears (Dkt. #15 at p. 2). On February 26, 2021,
Kimble designated Dr. David A. West (“West”) and Dr. D. Scott Fortune (“Fortune”) as his
testifying medical experts (Dkt. #47 Ex. 1 at pp. 1, 3). West is anticipated to testify regarding
Kimble’s diagnosis, past medical treatment, and future treatment related to Kimble’s tinnitus (Dkt.
#47 Ex. 1 at pp. 1–2). Fortune is one of Kimble’s treating doctors (Dkt. #47 Ex. 1 at p. 3).
On July 13, 2021, Camp and Refrigerated Specialist moved to exclude or limit any
testimony West or Fortune may give regarding the cause of Kimble’s tinnitus (Dkt. #47 at pp. 1–
2). On July 14, 2021, Ngiraingas moved to join Camp and Refrigerated Specialist’s motion (Dkt.
#48). Kimble has not responded.
LEGAL STANDARD
Federal Rule of Evidence 702 provides for the admission of expert testimony that assists
the trier of fact to understand the evidence or to determine a fact in issue. FED. R. EVID. 702. In
Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court instructed courts to function
as gatekeepers, and determine whether expert testimony should be presented to the jury. 509 U.S.
579, 590-93 (1993). Courts act as gatekeepers of expert testimony “to make certain that an expert,
whether basing testimony upon professional studies or personal experience, employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an expert in the
relevant field.” Kuhmo Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 152 (1999).
The party offering the expert’s testimony has the burden to prove by a preponderance of
the evidence that: (1) the expert is qualified; (2) the testimony is relevant to an issue in the case;
and (3) the testimony is reliable. Daubert, 509 U.S. at 590–91. A proffered expert witness is
qualified to testify by virtue of his or her “knowledge, skill, experience, training, or education.”
FED. R. EVID. 702. Moreover, in order to be admissible, expert testimony must be “not only
relevant, but reliable.” Daubert, 509 U.S. at 589. “This gate-keeping obligation applies to all
types of expert testimony, not just scientific testimony.” Pipitone v. Biomatrix, Inc., 288 F.3d 239,
244 (5th Cir. 2002) (citing Kuhmo, 526 U.S. at 147).
In deciding whether to admit or exclude expert testimony, the Court should consider
numerous factors. See Daubert, 509 U.S. at 594. In Daubert, the Supreme Court offered the
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following, non-exclusive list of factors that courts may use when evaluating the reliability of expert
testimony: (1) whether the expert’s theory or technique can be or has been tested; (2) whether the
theory or technique has been subjected to peer review and publication; (3) the known or potential
rate of error of the challenged method; and (4) whether the theory or technique is generally
accepted in the relevant scientific community. Id. at 593–94; Pipitone, 288 F.3d at 244. When
evaluating Daubert challenges, courts focus “on [the experts’] principles and methodology, not on
the conclusions that [the experts] generate.” Daubert, 509 U.S. at 594.
The Daubert factors are not “a definitive checklist or test.” Daubert, 509 U.S. at 593. As
the Court has emphasized, the Daubert framework is “a flexible one.” Id. at 594. The test for
determining reliability can adapt to the particular circumstances underlying the testimony at issue.
Kuhmo, 526 U.S. at 151. Accordingly, the decision to allow or exclude experts from testifying
under Daubert is committed to the sound discretion of the district court. St. Martin v. Mobil
Exploration & Producing U.S., Inc., 224 F.3d 402, 405 (5th Cir. 2000) (citation omitted).
Rule 403 dictates that a court “may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” FED. R. EVID. 403. Furthermore, the Fifth Circuit has consistently held that an expert
may not render conclusions of law. See Snap-Drape, Inc. v. C.I.R., 98 F.3d 194, 198 (5th Cir.
1996); see also Goodman v. Harris Cnty., 571 F.3d 388, 399 (5th Cir. 2009) (“an expert may never
render conclusions of law.”); Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983)
(“allowing an expert to give his opinion on legal conclusions to be drawn from the evidence both
invades the court’s province and is irrelevant.”)
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ANALYSIS
I.
Dr. West
Defendants argue West’s opinions on causation of tinnitus should be excluded because
West is not qualified and because West’s opinions are not reliable due to an absence of scientific
methodology and reliable foundational data (Dkt. #47 at p.3).
Defendants characterize West as an orthopedic surgeon (Dkt. #47 at p. 3). While a true
statement, Defendants omitted West’s fifteen years on the Medical Impairment Rating Registry1
and that West was asked to evaluate Kimble for his future impairment (Dkt. #47 Ex. 1-A; 1-B).
Nevertheless, the Court agrees West is not qualified to give an opinion on the cause of the tinnitus.
The court must verify that an expert has expertise concerning the actual subject about
which they offer opinions. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 719 (Tex.
1998). “Credentials alone are not determinative; the expert must be qualified to give an opinion
on a particular subject.” Barnett v. Procom Heating, Inc., No. 4:17-CV-380, 2018 WL 1597406
at *1 (N.D. Tex. 2018) (citing Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1112-13 (5th
Cir. 1991)). While West is an experienced orthopedic surgeon who is likely qualified to assess
Kimble’s impairment rating, there is nothing to suggest West has knowledge, experience, or
training in tinnitus and its causes.
Therefore, the Court finds West’s causation opinion as to tinnitus inadmissible. The Court
need not address Defendants’ contentions regarding inadmissibility based on methodology and
foundation.
The Medical Impairment Rating Registry is a Bureau of Workers’ Compensation-maintained listing of qualified
and approved physicians who are specially trained to conduct impairment rating medical evaluation. DEPARTMENT
OF LABOR & WORKFORCE DEVELOPMENT, (Sept. 15, 2021), https://www.tn.gov/workforce/injuries-at-work/bureauservices/bureau-services/medical-programs-redirect/mir-registry.html.
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II.
Dr. Fortune
Defendants argue Fortune’s opinions on causation of tinnitus should be excluded because
there is no analytical data to support future testimony on causation (Dkt. #47 at p. 5). Fortune is
an Ear Nose and Throat doctor (Dkt. #47 Ex. 1-D). He received his doctorate in medicine from
Vanderbilt University School of Medicine in 1993 and completed his residency in 1999 (Dkt. #47
Ex. 1-D). Fortune co-authored an article on the evaluation and management of tinnitus. D. Scott
Fortune, David S. Hayes, & Jay W. Hall III, Tinnitus: Current Evaluation and Management, in 83
MEDICAL CLINICS OF NORTH AMERICA 153 (1999). Defendants have not challenged Fortune’s
qualifications as an expert on tinnitus. However, Defendants argue there is no objective data to
support Fortune’s anticipated conclusion that the collision caused Kimble’s tinnitus (Dkt. #47 at
p. 5). The Court disagrees.
A doctor may use their technical or specialized knowledge to diagnose a patient based on
their physical assessment of the patient and based on the patient’s reported symptoms before and
after the alleged injury causing accident. Perez v. Boecken, No. 19-CV-475, 2020 WL 3074420
at *7 (W.D. Tex. 2020) (citing FED. R. EVID 702(a)(b)). The Court has no reason to believe Fortune
did not, or would not, follow these most basic steps. While Defendants allege Fortune failed to
consider hearing tests performed on Kimble from 2011 and 2012 (Dkt. #47 at p. 5), there is no
evidence to support that contention. Further, “[a]s a general rule, questions relating to the bases
and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its
admissibility and should be left for the jury's consideration.” Viterbo v. Dow Chemical Co., 826
F.2d 420, 422 (5th Cir. 1987). Therefore, the Court finds Fortune’s causation opinion admissible
under Rule 702 and Daubert.
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CONCLUSION
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It is therefore ORDERED that Defendants Motion to Exclude or Limit Expert Testimony
is hereby GRANTED IN PART. Dr. David A. West’s opinion on the cause of Plaintiff’s tinnitus
shall be excluded.
IT IS SO ORDERED.
SIGNED this 7th day of October, 2021.
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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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