Koenig v. Beekmans et al
ORDER DENYING 106 Motion to exclude and/or Limit the Testimony of John S. Toohey, M.D. Signed by Judge Richard B Farrer. (rg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
ORDER DENYING MOTION TO EXCLUDE AND/OR LIMIT
EXPERT TESTIMONY OF JOHN S. TOOHEY, M.D.
Before the Court is the Motion to Exclude and/or Limit the Testimony of John S. Toohey,
M.D., filed by Plaintiff Benjamin Koenig [#106]. This case was assigned to the undersigned for
disposition of all pre-trial matters, pursuant to Rules CV-72 and 1(c) of Appendix C of the Local
Rules of the United States District Court for the Western District of Texas [#115]. The Court has
diversity jurisdiction over this case pursuant to 28 U.S.C. § 1332, and the undersigned has
authority to enter this order pursuant to 28 U.S.C. § 636(b)(1)(A). See, e.g., Target Strike, Inc. v.
Marston & Marston, Inc., No. SA-10-cv-0188-OLG-NN, 2011 WL 676185, at *1 (W.D. Tex.
Feb. 16, 2011) (noting magistrate judge’s § 636(b) authority to rule on motions to exclude expert
testimony, which are non-dispositive). Having considered Plaintiff Koenig’s motion, Defendant
Anthony Beekmans’ response [#100], the relevant law, and the pleadings, the Court DENIES the
Motion to Exclude and/or Limit the Testimony of John S. Toohey, M.D. [#106]. The criticisms
of Dr. Toohey’s testimony raised in Koenig’s motion can be addressed at trial through crossexamination or by introducing rebuttal testimony from an opposing expert.
This personal injury lawsuit arises from an October 2, 2013 head-on car accident
involving Koenig and Beekmans. Koenig asserts claims for negligence and negligence per se,
and seeks damages from Beekmans in excess of $1 million. It is undisputed that, as a result of
the accident, Koenig sustained (and was treated for) a fractured sternum as well as a
compression-type fracture of the L1 disc in his spine. (See [#106-1]). The parties, however,
dispute whether the collision also caused Koenig to suffer a traumatic brain injury and a
herniated L5-S1 disc.
Beekmans designated Dr. John S. Toohey, a board-certified orthopedic surgeon, to offer
an expert opinion regarding the nature, extent, and cause of Koenig’s spinal injuries, as well as
about the necessity for and cost of future medical treatment. (See [#50], [#106-1]). Koenig’s
motion does not attack Dr. Toohey’s qualifications or the relevance of his testimony; it instead
focuses solely on the issue of reliability.
Specifically, Koenig’s urges exclusion or limitation of Dr. Toohey’s testimony because
Dr. Toohey’s opinions on the following topics are, according to Koenig, conclusory, speculative,
whether Koenig suffers from lumbar spondylosis that pre-dates the accident, rather
than an acute herniated disc caused by the accident;
whether future medical treatment for Koenig’s alleged L5-S1 disc injury is
whether the costs associated with the anterior lumbar interbody fusion
recommended by Koenig’s treating surgeon, Dr. Bruggeman, should not exceed
Koenig’s challenges to the admissibility of Dr. Toohey’s expert testimony are governed
by Federal Rule of Evidence 702, along with Daubert v. Merrell Dow Pharmaceuticals, 509 U.S.
579 (1993), and its progeny. See Black v. Food Lion, Inc., 171 F.3d 308, 310, 314 (5th Cir.1999);
Wells v. SmithKline Beecham Corp., No. A-06-CA-126-LY, 2009 WL 564303, at *7 (W.D. Tex.
Feb. 18, 2009).1 Rule 702 provides that a witness “‘qualified as an expert . . . may testify . . . in
the form of an opinion . . . if (1) the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.’” Guy v. Crown Equip. Corp., 394 F.3d
320, 325 (5th Cir. 2004) (quoting Fed. R. Evid. 702).
Daubert charges trial courts to act as evidentiary “gate-keepers” to ensure that proffered
expert testimony is, among other things, sufficiently reliable. Daubert, 509 U.S. at 589, 592-93;
see Watkins v. Telsmith, Inc., 121 F.3d 984, 989 (5th Cir. 1997). Courts enjoy wide discretion in
deciding precisely how to make such a reliability determination in a given case. Kumho Tire Co.
v. Carmichael, 526 U.S. 137, 142 (1999). The reliability inquiry focuses “on [the experts’]
principles and methodology, not on the conclusions that [the experts] generate.” Daubert, 509
U.S. at 594. The proponent of expert testimony is not required to show that the testimony is
correct, but rather—by a preponderance of the evidence—that the testimony is sufficiently
This is not to say that state substantive law could never inform issues related to expert
testimony in diversity cases. But here Koenig’s straightforward challenges to the reliability of
Dr. Toohey’s testimony on the bases that it is too conclusory and speculative are governed by
Rule 702 and the relevant federal cases. See Edwards v. Sears, Roebuck & Co., 512 F.2d 276,
292 (5th Cir. 1975) (“The propriety of admitting expert testimony in a federal trial . . . is
governed by federal law . . . .”); see also 29 Victor James Gold, Fed. Prac. & Proc. Evid. § 6263
(2d. ed. 2017) (collecting cases and noting, “[t]he starting point for analysis [of the admissibility
of expert testimony] is that the Federal Rules of Evidence usually control admissibility issues in
[diversity] cases because admissibility is generally considered procedural, rather than
substantive, in nature”).
reliable. Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998). Whether an expert is
“basing testimony upon professional studies or personal experience,” a court must ensure the
expert “employs in the courtroom the same level of intellectual rigor that characterizes the
practice of an expert in the relevant field.” Kumho Tire Co., 526 U.S. at 152.
At the same time, “the trial court’s role as gatekeeper is not intended to serve as a
replacement for the adversary system.” United States v. 14.38 Acres of Land, 80 F.3d 1074, 1078
(5th Cir. 1996). “Vigorous cross-examination, presentation of contrary evidence, and careful
instruction on burden of proof are the traditional and appropriate means of attacking shaky but
admissible evidence.” Daubert, 509 U.S. at 596. In general, “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.” 14.38 Acres of Land, 80 F.3d at
1077; see also Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir. 1987).
Dr. Toohey’s testimony is sufficiently reliable for admissibility purposes.2 Koenig’s
motion to exclude focuses on alleged internal inconsistencies in Dr. Toohey’s deposition
testimony or takes issue with the bases and sources of his opinions. (See Mot. at 5-8). These
types of complaints go to the eventual weight a jury might afford the testimony and are most
appropriately addressed at trial via cross-examination or through introduction of competing
expert testimony. See 14.38 Acres of Land, 80 F.3d at 1077; 29 Victor James Gold, Fed. Prac. &
Proc. Evid. § 6263 (“[E]ven where the trial court has concluded that expert testimony will help
Dr. Toohey’s unchallenged qualifications reflected by his curriculum vitae establish his
expertise to opine on the matters at issue. There likewise appears to be no question that Dr.
Toohey’s testimony, if deemed sufficiently reliable, will be relevant and would assist the jury.
the trier of fact and is admissible, other evidence may be admitted to show that the testimony is
unreliable and will be of little or no help.”).
Lumbar Spondylosis at the L5-S1 disc. Dr. Toohey’s conclusion that Koenig did not
suffer a herniated L5/S1 disc as a result of the accident but instead has lumbar spondylosis that
pre-dated the accident survives the motion to exclude. According to Dr. Toohey, lumbar
spondylosis is a “degeneration of the disc as evidenced on either x-ray, CT scanning or MRI
scanning.” (Toohey Dep. at 51:15-18). Dr. Toohey explained that Koenig’s February 2016 MRI,
taken over two years after the accident, reveals “typical elements” of disc degeneration,
including loss of water content in the disc, backwards bulging of the disc, and backwards
movement of the vertebra. (Id. 64:4-66:18). A degenerative disc disorder, according to Dr.
Toohey, “takes some more time to develop,” making it medically unlikely, in his professional
experience, that the collision caused an acute L5-S1 disc injury. (See Toohey Dep. at 75:6-8,
141:16-25, 143:11-17; see also Toohey Expert Rep. at 2). Supporting that conclusion, he pointed
to a lack of evidence in Koenig’s medical history of any acute (i.e., immediate) onset of disc
herniation after the collision, including complaints of leg pain or tingling. (Id. 56:1-13, 94:5-7,
133:5-21). In further support, he also pointed out that Koenig did not seek medical treatment for
back pain until two years after the accident, which is inconsistent with the acute injury alleged
and consistent with disc degeneration. (Id. 56:1-13; see also Toohey Expert Rep. at 2).
Arguing to limit or exclude Dr. Toohey’s testimony, Koenig’s motion relies primarily on
Dr. Toohey’s concession that there is no evidence dating from the day of the accident or earlier
that reflects lumbar spondylosis. (See Mot. at 6). But the absence of such evidence from before
the accident does not mean Koenig could not have suffered from lumbar spondylosis then, or that
Dr. Toohey could not reliably opine to that effect. As Dr. Toohey explained, evidence of
preexisting degenerative lumbar spondylosis could be seen, in his opinion, on the post-accident
February 2016 MRI and was reinforced by Koenig’s post-accident history.
Ultimately, Koenig’s arguments on this issue are cross-examination points. They
essentially boil down to disagreements with Dr. Toohey’s conclusions and his reliance on the
February 2016 MRI as a basis or source for his opinion. As such, the arguments go to the weight
of Dr. Toohey’s opinion, not its admissibility. See 14.38 Acres of Land, 80 F.3d at 1077.
The Need for Medical Treatment. Next is Dr. Toohey’s opinion that “there was no need
for epidural steroid injections” or “for surgical intervention.” Koenig again essentially raises
criticisms that are more appropriately addressed on cross-examination. Koenig emphasizes that
Dr. Toohey admitted that surgical intervention is “within the realm of medical appropriateness”
and acknowledged that he has in the past performed similar surgical procedures in somewhat
similar circumstances. This type of argument goes to the weight, not admissibility, of the
evidence. See id.
Dr. Toohey provided a sufficient basis for his opinion that injections or surgical
intervention would be imprudent here because Koenig does not, in Dr. Toohey’s opinion, suffer
from nerve damage. In support, Dr. Toohey pointed out that the locations of Koenig’s pain have
been inconsistent over time and that there also is no evidence of muscle atrophy in his legs.
(Toohey Dep. 133:22-136:18; 142:21-143:20). From this foundation, Dr. Toohey opined that
there is no nerve damage and that, in his medical opinion, steroid injections and surgery would
be inadvisable because they pose an unacceptably high risk and promise an uncertain outcome.
(Id. 132:9-20; 134:1-7). Although Koenig is free to disagree with these conclusions, such
disagreement is not a valid basis to limit or exclude Dr. Toohey’s testimony; Koenig may instead
take issue with Dr. Toohey’s credibility and conclusions at trial.
Costs. Koenig’s final argument addresses Dr. Toohey’s opinion on the total cost of the
surgery recommended by Koenig’s treating physician, Dr. Bruggeman, which in Dr. Toohey’s
opinion should not exceed $100,000. Dr. Toohey provided his cost opinion based directly on his
personal “knowledge of billing from all the hospitals here in town”—a topic with which he deals
on either a “daily or weekly basis.” (Id. 99:23-100:1). He explained in his deposition that he
“look[s] at all the billing from [his] office for all of our . . . spine surgeons for procedures they do
much like this.” (Id. 100:22-24). And he also “see[s] records from a number of the hospitals
around this city for similar procedures.” (Id. 100:25-101:1). He then explained that his $100,000
estimate is based on a hospital fee for two days of $60,000; a surgeon’s fee of $15,000 to
$20,000; an assistant surgeon’s fee of $3,000 to $4,000; and an anesthesia fee of $3,000. (Id.
An expert’s opinion may be based on personal experience, provided the expert “employs
in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in
the relevant field.” Kumho Tire, 526 U.S. at 152. That said, an opinion on medical costs could
benefit from as much underlying factual support as can be provided. Billing records, fee
structures, or similar matters would seem quite helpful and could, in an appropriate case, be a
necessary prerequisite to a reliable opinion. Koenig attacks Dr. Toohey’s opinion for failing to
provide such support in addition to Dr. Toohey’s personal knowledge of these billing matters.
(See Mot. at 8-9). Koenig, however, does not question Dr. Toohey’s personal experience or
qualifications in this regard.
Ultimately, the Court is reassured that Dr. Toohey’s cost estimates based on his 35 years
of personal experience with local medical billing practices for these types of procedures reflects
the same type of intellectual rigor one might expect from an expert outside the courtroom.
Notably, Dr. Toohey is not the only physician in the case to base a medical-costs opinion on
personal experience. Dr. Bruggeman, Koenig’s treating physician, employed much the same
approach in reaching competing cost estimates of $200,000 to $250,000 for facility charges and
$48,000 to $49,000 for the surgical fee. (See Bruggeman Dep. at 115:21-116:8, 119:8-22). The
disparity between these two physicians’ experience-based cost estimates would be best resolved
at trial. See Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 295 (6th Cir. 2007)
(“[W]here non-scientific expert testimony is involved, . . . the relevant reliability concerns may
focus upon personal knowledge or experience”) (internal quotation marks omitted and citing
Kumho Tire, 526 U.S. at 150).
For the reasons discussed above, the Motion to Exclude and/or Limit the Testimony of
John S. Toohey, M.D filed by Plaintiff Benjamin Koenig [#106] is DENIED.
IT IS SO ORDERED.
SIGNED this 9th day of November, 2017.
RICHARD B. FARRER
UNITED STATES MAGISTRATE JUDGE
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