Koenig v. Beekmans et al
ORDER DENYING 112 Motion to limit the testimony of Defendants' Expert, Dr. William Dailey. 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 LIMIT
THE TESTIMONY OF DR. WILLIAM DAILEY
Before the Court is the Motion to Limit the Testimony of Defendants’ Expert, Dr.
William Dailey [#112] filed by Plaintiff Benjamin Koenig. 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 [#112], Defendant Anthony Beekmans’ Response [#114], the relevant law, and
the pleadings, the Court DENIES the Motion to Limit the Testimony of Defendants’ Expert, Dr.
William Dailey [#112]. The Court finds that Dr. Dailey is sufficiently qualified to testify as an
expert regarding the methods for diagnosing traumatic brain injuries and other neurological
deficits and that his testimony is sufficiently reliable. The criticisms of Dr. Dailey raised in
Koenig’s motion can be addressed at trial through cross-examination 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.
Koenig designated Dr. Donald Robin to opine regarding whether he sustained a traumatic
brain injury based upon the results of a computer-based test known as “the Starry Night test.”
(See [#41], [#75]). Dr. Dailey was designated to evaluate the appropriateness of the Starry Night
test in diagnosing a traumatic brain injury and the presence of other neurological deficits. (See
Resp.) Koenig’s motion attacks Dr. Dailey’s qualifications as well as the reliability of his
opinion and testimony regarding the Starry Night test’s ability to reliably diagnose a traumatic
brain injury. Dr. Dailey’s report (see [#73]) has not been provided to the Court by either party for
review, although portions of his deposition testimony are available to the Court.
Koenig’s challenges to the admissibility of Dr. Dailey’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). 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).1 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
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
Beekmans argues that the Court should deny Koenig’s motion because it was filed four days
after the court-ordered deadline. (See Mot. at 3). In light of the Court’s role as an evidentiary
“gate-keeper,” the Court will consider the merits of the motion.
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. Dailey is qualified to provide an opinion regarding the methods for diagnosing a
traumatic brain injury and other neurological deficits, including the appropriateness of the Starry
Night test to make these diagnoses. Dr. Dailey’s opinions criticizing the Starry Night test are
Qualifications. Experts who are not qualified to testify in a particular field or on a given
subject should be excluded from testifying. Wilson v. Woods, 163 F.3d 935, 937 (5th Cir. 1999).
Rule 702 and Daubert require that district courts be “assured that the proffered witness is
qualified to testify [as an expert] by virtue of his ‘knowledge, skill, experience, training, or
education.’” Id. (quoting Fed. R. Evid. 702).
Dr. Dailey is sufficiently qualified for purposes of Rule 702 and Daubert. Dr. Dailey is a
neuropsychologist with a doctoral degree in biological psychology from the University of Texas.
(Dailey Dep. 102:17-23). He has performed neuropsychological assessments on patients,
including those who have been subjected to trauma, for over 30 years until his very recent
retirement. (Id. 102:22-103:22; 106:13- 109:22). Koenig does not dispute that Dr. Dailey is
qualified to opine regarding the methods of pencil-and-paper neurological testing, which Dr.
Dailey regularly performed in his clinical practice. (Resp. 4).
Koenig argues that Dr. Dailey is not qualified to offer opinions regarding the Starry Night
test because he has no specialized knowledge regarding this specific test. In support, Koenig
points to excerpts from Dr. Dailey’s deposition testimony in which Dr. Dailey admits he was
unfamiliar with the Starry Night test before he was retained as an expert in this case. Koenig also
points to Dr. Dailey’s concession that he reviewed only a limited amount of research along with
Dr. Robin’s deposition testimony prior to offering his critique of the clinical use of the test.
(Mot. at 4). But Dr. Dailey need not be an expert in the Starry Night test to reliably criticize its
Dr. Dailey is neuropsychologist with education and experience relevant to the diagnosis
of traumatic brain injuries. “Rule 702 does not mandate that the expert be highly qualified in
order to testify about a given issue, and the issue of qualification has been described as
presenting a ‘low threshold’ for the proponent to clear.” DiSalvatore v. Foretravel, Inc., No.
9:14–CV–00150, 2016 WL 7742824, at *10 (E.D. Tex. Jul. 20, 2016). Moreover, “[t]he standard
for qualifying expert witnesses is fairly liberal; the witness need not have specialized expertise in
the area directly pertinent to the issue in question if the witness has qualifications in the general
field related to the subject matter in question.” Guzman v. Mem’l Hermann Hosp. Sys., No.
CIV.A. H-07-3973, 2008 WL 5273713, at *15 (S.D. Tex. Dec. 17, 2008). As long as an “expert
meets liberal minimum qualifications, then the level of the expert’s expertise goes to credibility
and weight, not admissibility.” Kannankeril v. Terminix Int’l, 128 F.3d 802, 809 (3d Cir. 1997).
Here, Dr. Dailey’s qualifications in the general field related to the subject matter in question, see
Guzman, 2008 WL 5273713, at *15, satisfies the “low threshold” set by Daubert. DiSalvatore,
2016 WL 7742824, at *10.
Reliability. Dr. Dailey testified that he reviewed a number of articles pertaining to the
Starry Night test, including one drafted by Dr. Robin, Koenig’s expert and the test’s creator.
(Daily Dep. 19:13-23). Dr. Dailey’s criticisms of the Starry Night test derive from his experience
in performing neuropsychological assessments, the principles discussed in the articles on the
Starry Night test, and the explanation regarding the test provided by Dr. Robin at his deposition.
(Id. 21:1-14). Koenig’s criticisms of Dr. Dailey essentially boil down to Dr. Dailey’s lack of
prior experience with the Starry Night test and his alleged failure to conduct a comprehensive
review of the scientific literature before formulating his opinion. In support, Koenig specifically
points to a peer-reviewed article (to which Beekmans objects on hearsay grounds) that allegedly
contradicts Dr. Dailey’s opinions. These arguments, however, all relate to either the bases and
sources or correctness of Dr. Dailey’s opinions. They are not grounds for limiting Dr. Dailey’s
testimony. See 14.38 Acres of Land, 80 F.3d at 1077; Moore, 151 F.3d at 276; Wagoner v. Exxon
Mobil Corp., 813 F. Supp. 2d 771, 803 (E.D. La. 2011) (noting that “it is far from clear that an
expert must review all of the available studies simply to cross the threshold of admissibility,” and
therefore holding that “the presence of studies that cut against the expert’s opinion and that are
not accounted for by the expert is a subject for cross-examination, not a barrier to
For these reasons, the Motion to Limit the Testimony of Defendants’ Expert, Dr. William
Dailey [#112] filed by Plaintiff Benjamin Koenig is DENIED.
IT IS SO ORDERED.
SIGNED this 1st day of December, 2017.
RICHARD B. FARRER
UNITED STATES MAGISTRATE JUDGE
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