Shaw v. United Airlines Inc et al
Filing
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MEMORANDUM OPINION AND ORDER GRANTING IN PART DENYING IN PART 26 First MOTION to Exclude Defendants' Experts. (Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JUDY ANN SHAW,
Plaintiff,
v.
UNITED AIRLINES, INC. and
AIR SERV CORPORATION,
Defendants.
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CIVIL ACTION H-17-267
MEMORANDUM OPINION AND ORDER
Pending before the court is plaintiff Judy Shaw’s motion to exclude the testimony of Richard
V. Baratta, Ph.D., P.E., and Richard K. Simpson Jr., M.D., Ph.D., F.A.C.S., who have both been
retained as testifying experts by defendants United Airlines, Inc. and Air Serv Corporation
(“collectively, Defendants”). Dkt. 26. Having considered the motion, response, applicable law, and
the evidence, the court is of the opinion that the motion should be GRANTED IN PART and
DENIED IN PART.
I. BACKGROUND
This is a personal injury case. Shaw alleges that she sustained injuries when she was struck
by a passenger cart while traveling between gates on a passenger cart at George Bush
Intercontinental Airport in Houston, Texas. Dkt. 1-4. The instant motion relates to whether the
court should exclude the expert testimony of Baratta, a professional engineer, and Simpson, a
neurosurgeon. Dkt. 26. Shaw objects to the testimony of both Baratta and Simpson arguing that
they are both unqualified and their testimony is unreliable. Dkt. 26. Defendants have responded.
Dkt. 31.
II. LEGAL STANDARD
The Supreme Court of the United States acknowledged in Daubert v. Merrell Dow
Pharmaceuticals that Federal Rule of Evidence 702 serves as the proper standard for determining
the admissibility of expert testimony. 509 U.S. 579, 597–98, 113 S. Ct. 2786 (1993). The party
offering expert testimony has the burden to prove by a preponderance of the evidence that the
proffered testimony satisfies the admissibility requirements of Federal Rule of Evidence 702. Mathis
v. Exxon Corp., 302 F.3d 448, 460 (5th Cir. 2002). Rule 702 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.
Fed. R. Evid. 702. Under Daubert, a trial court acts as a “gatekeeper,” making a “preliminary
assessment of whether the reasoning or methodology properly can be applied to the facts in issue.”
Daubert, 509 U.S. at 592–93; see also Kumho Tire v. Carmichael, 526 U.S. 137, 147, 119 S. Ct.
1167 (1999); Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243–44 (5th Cir. 2002). Daubert and its
principles apply to both scientific and non-scientific expert testimony. Kumho Tire, 526 U.S. at 147.
Experts need not be highly qualified to testify, and differences in expertise go to the weight of the
testimony, rather than admissibility.
Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009).
Nonetheless, courts need not admit testimony that is based purely on the ipse dixit of the expert.
Gen. Elec. Co. v. Joinder, 522 U.S. 136, 146, 118 S. Ct. 512 (1997); Moore v. Ashland Chem. Inc.,
151 F.3d 269, 276 (5th Cir. 1998).
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In addition to being qualified, an expert’s methodology for developing the basis of his or her
opinion must be reliable. Daubert, 509 U.S. at 592–93; Moore, 151 F.3d at 276. “The expert’s
assurances that he has utilized generally accepted scientific methodology is insufficient.” Moore,
151 F.3d at 276. Even if the expert is qualified and the basis of her opinion is reliable, the
underlying methodology must have also been correctly applied to the case’s particular facts in order
for her testimony to be relevant. Daubert, 509 U.S. at 593; Knight v. Kirby Inland Marine Inc., 482
F.3d 347, 352 (5th Cir. 2007). The party proffering expert testimony has the burden of establishing
by a preponderance of the evidence that the challenged expert testimony is admissible. See Fed. R.
Evid. 104(a); Moore, 151 F.3d at 276. The proponent does not have to demonstrate that the
testimony is correct, only that the expert is qualified and that the testimony is relevant and reliable.
Moore, 151 F.3d at 276.
III. ANALYSIS
A.
Baratta
1.
Qualifications
Shaw argues that Baratta’s report offers conclusions “regarding lack of bruising, the cause
of her injuries and the accelerated degeneration of her spine” which “relate to some form of medical
causation.” Dkt. 26-1 at 4. Because Baratta is a professional engineer, not a medical doctor, Shaw
argues that Baratta is not qualified to offer opinions regarding medical causation and such
conclusions should be excluded. Id. Shaw points to Layssard v. United States, where Baratta’s
qualifications to provide testimony on medical causation were challenged and the court held that
Baratta was precluded from testifying as to medical causation and “limited his testimony to the
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forces involved in the collision and whether or not these would generally lead to injury.” No. CIV.A.
06-0352, 2017 WL 4144936, at *7–8 (W.D. La. Nov. 20, 2007).
Defendants contend that Baratta’s educational degrees and experience in the field of
biomechanics establish him as an expert regarding biomechanics, injury consistency, and accident
reconstruction. Dkt. 31 at 4. Further, Defendants counter that, unlike in Layssard, Baratta is
testifying about biomechanics and not medical causation. Dkt. 31 at 5.
Additionally, Defendants contend that the present case is like McClure v. Greater San
Antonio Transp. Co., No. SA-08-CA-112-FB, 2008 WL 11335001 (W.D. Tex. Oct. 3, 2008) (slip
copy).
The court agrees.
In McClure, the plaintiffs challenged a biomechanics expert’s
qualifications “to render medical causation opinions.” Id. at *6. The McClure court denied the
challenge to exclude the expert’s testimony and held that the expert was qualified to testify on the
biomechanics of the accident at issue. Id. Additionally, the McClure court provided that “[t]o the
extent that [the expert]’s testimony might be construed to address medical causation and medical
issues, which he is not qualified to provide, objections can be raised at the time the testimony is
offered.” Id. at *7.
The court has reviewed Baratta’s curriculum vitae and finds that Baratta is qualified to testify
as a biomechanics expert but not to any issues of medical causation. See Dkt. 22-1 at 69–71.
Further, the court has reviewed Baratta’s conclusions in his expert report and finds that they are
within his realm of expertise in biomechanics.1 See Dkt. 22-1 at 4. Shaw is free to object at the time
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For example, Shaw objects to Baratta’s alleged conclusion that “Ms. Shaw should have
had bruising if the incident that is the basis of this lawsuit occurred as she describes.” Dkt.26 at
1. However, in Baratta’s expert report, Baratta concludes that “Ms. Shaw indicated that she (her
body) was struck by the other unidentified cart, and she fell on the ground. Had there been
sufficient direct interaction with the other vehicle to cause her to move, it is likely that she would
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of testimony if Baratta’s testimony addresses medical issues which he is not qualified to provide.
2.
Reliability
Shaw also argues that the entirety of Baratta’s expert testimony should be excluded because
it is unreliable for three reasons: (1) Baratta only inspected one cart; (2) Baratta’s measurements are
inadequate; and (3) Baratta’s findings are overly general and conclusory. Dkt. 26-1 at 10.
Shaw’s first argument is that Baratta’s testimony relies upon the inspection and photographs
of only one cart. Dkt. 26-1 at 9. At the time of the incident, United operated two different passenger
carts, but Baratta only inspected one. Id. at 10. Further, the cart pictured in the photographs relied
upon by Baratta is “not of either of the carts actually involved in the crash.” Id. at 9. Shaw’s second
and third arguments are that Baratta uses inadequate cart measurements and that Baratta’s opinions
are conclusory and lack analysis of facts and data. Dkt. 26-1 at 10. The court finds that all three
contentions go to the weight of the evidence, not its admissibility. Shaw may address methodology
on cross examination. See Daubert, 509 U.S. at 595 (“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.”). The court finds Baratta’s methodology is
sufficient to render his opinions reliable.
B.
Simpson
1.
Qualifications
In his report, Simpson describes Shaw as “an angry, unhappy, litigious woman.” Dkt. 22-2
at 3. Shaw argues that the quoted portion of Simpson’s opinion should be excluded because he is
have had bruising in the area of contact. She testified that she had no bruising.” Dkt. 22-1 at 4.
The court finds that this conclusion is within Baratta’s realm of expertise as a biomechanics
expert.
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not qualified to provide such testimony since he is a neurosurgeon with “no specialized knowledge
related to mental health or legal expertise”. Dkt. 26-1 at 11. Shaw also argues that any opinions
regarding Shaw’s emotional state, reasons for bringing the lawsuit, or whether she has a litigious
nature should be excluded. Dkt. 26 at 2.
Defendants counter that Simpson is qualified to describe Shaw’s emotional state because he
has reviewed Shaw’s deposition testimony and medical records and has twenty-eight years of
experience treating patients for chronic pain. Dkt. 31. Defendants retained Simpson as the
designated medical expert to provide opinions regarding medical causation. Dkt. 22. The court
finds that the quoted portion is not within Simpson’s realm of expertise. Accordingly, the quoted
portion of his opinion is excluded. Again, Shaw is free to object at the time of testimony if Simpson
addresses issues which he is not qualified to provide.
2.
Reliability
Shaw also argues that the entirety of Simpson’s testimony should be excluded because it is
unreliable and “he refuses to acknowledge or address the existence of facts and evidence that
contradict his opinions.” Dkt. 26-1 at 11. The court finds that Simpson’s opinions are based on
sufficient facts and are reliable. Again, the court finds that this contention goes to the weight of the
evidence, not its admissibility.
In sum, all of these contentions are issues that can be dealt with during cross examination and
are not sufficient reasons to completely exclude Simpson’s testimony.
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IV. CONCLUSION
Shaw’s motion to exclude Baratta and Simpson’s testimony is GRANTED IN PART and
DENIED IN PART. It is GRANTED in that Simpson’s quoted testimony is excluded. It is
otherwise DENIED.
Signed at Houston, Texas on September 13, 2018.
___________________________________
Gray H. Miller
United States District Judge
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