Albert et al v. United States Department of the Army et al

Filing 102

ORDER GRANTING IN PART 83 Motion to exclude; GRANTING IN PART 90 Motion to Strike; Dr. Lowry may not testify at trial that Shyannas future medical expenses will be $250,000. Mr. Quintanilla may not testify at trial that Shyanna would have obtained a Bachelors Degree but for her injury. IT IS FURTHER ORDERED that the Courts ruling as to Dr. Lowry is without prejudice to Plaintiff moving to reconsider the ruling if Dr. Lowrys testimony at trial lays a sufficient foundation to enable him to testify as to his estimate Shyannas future medical expenses. IT IS FINALLY ORDERED that in all other respects, the Motions [#83, #90] are DENIED. Signed by Judge Elizabeth S. Chestney. (rg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
FRANKIE D. ALBERT, AS PARENTS
AND NEXT FRIEND OF JANE DOE, A
MINOR; AND PHYLIS ALBERT, AS
PARENTS AND NEXT FRIEND OF
JANE DOE, A MINOR;
Plaintiffs,
vs.
UNITED STATES DEPARTMENT OF
THE ARMY, WOUNDED WARRIOR
PROJECT, INC.,
Defendants.

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SA-17-CV-00703-JKP

ORDER
Before the Court in the above-styled cause of action are Defendant Wounded Warrior
Project, Inc.’s Motion to Exclude Expert Testimony of Dr. Robert Lowry [#83] and Defendant
Wounded Warrior Project, Inc.’s Motion to Exclude Expert Testimony of Mr. William
Quintanilla [#90], which were referred to the undersigned for disposition. The Court held a
hearing on the motions on October 25, 2019, at which all parties appeared through counsel.
Having considered the motions, the responses and replies thereto, the arguments of counsel at the
hearing, and the governing law, the Court will grant in part Defendant’s motions.
I. Background
This case arises out of personal injuries sustained by Plaintiff Shyanna Albert in 2013
when she was 13 years old. According to the Second Amended Complaint before the Court,
Shyanna was injured while riding in a U.S. Army vehicle during a Veteran’s Day Parade
sponsored by the Wounded Warrior Project, Inc. (“WWP”) when a steel bar fell on her head and
knocked her unconscious. (Second Am. Compl. [#54] at ¶¶ 5–7.) Shyanna’s parents, Frankie
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and Phylis, filed this action as parents and next friends of Shyanna, then a minor, against
Defendants United States Department of the Army (“U.S. Army”) and WWP, alleging that their
negligence caused Shyanna’s injuries. (Id. at ¶¶ 8–12.) Shyanna, upon reaching the age of
majority, was added as an additional Plaintiff in this case. (Order [#51].) Plaintiffs’ lawsuit
seeks damages related to severe and permanent head injuries Shyanna allegedly sustained from
the impact of the accident. (Second Am. Compl. [#54] at ¶ 14.) These damages include
reasonable past and future medical care and expenses, as well as compensation for future lost
earning capacity. (Id.)
Plaintiffs designated Dr. Robert C. Lowry, M.D. and Mr. William L. Quintanilla, M.Ed.,
L.P.C. as two of their expert witnesses in this case to testify on Plaintiff’s future medical
expenses and lost earning capacity, respectively. WWP now moves the Court to exclude these
individuals from testifying as experts at trial. Although WWP originally challenged both the
experts’ qualifications and the reliability of their testimony, WWP withdrew its challenges
regarding qualifications prior to the hearing. (Advisory [#97].) The Court addresses WWP’s
challenge to the reliability of the proposed testimony of each of these experts in turn.
II. Legal Standard
In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 589 (1993), the Supreme
Court held that trial judges must ensure that any and all scientific testimony or evidence admitted
is not only relevant, but reliable. Subsequent to Daubert, Rule 702 of the Federal Rules of
Evidence was amended to provide 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.” See Guy v. Crown Equipment Corp.,

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394 F.3d 320, 325 (5th Cir. 2004) (quoting Fed. R. Evid. 702). The Rule 702 and Daubert
analysis applies to all proposed expert testimony, including nonscientific “technical analysis”
and other “specialized knowledge.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141
(1999).
Under Daubert, expert testimony is admissible only if the proponent demonstrates that:
(1) the expert is qualified; (2) the evidence is relevant to the suit; and (3) the evidence is reliable.
See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998); Watkins v. Telsmith, Inc.,
121 F.3d 984, 989 (5th Cir. 1997). The overarching focus of a Daubert inquiry is the “validity
and thus evidentiary relevance and reliability of the principles that underlie a proposed
submission.” Watkins, 121 F.3d at 989 (quoting Daubert, 509 U.S. at 594–96). Because the
Daubert test focuses on the underlying theory upon which the opinion is based, the proponent of
expert testimony need not prove the expert’s testimony is correct, but rather that the testimony is
reliable. Moore, 151 F.3d at 276. This determination of reliability includes a preliminary
determination of “whether the reasoning or methodology underlying the testimony is
scientifically valid and of whether that reasoning or methodology properly can be applied to the
facts in issue.” Daubert, 509 U.S. at 592–93.
Daubert sets forth four specific factors that the trial court should ordinarily apply when
considering the reliability of scientific evidence: (1) whether the technique can or has been
tested; (2) whether it has been subjected to peer review or publication; (3) whether there is a
known or potential rate of error; and (4) whether the relevant scientific community generally
accepts the technique. Id. This test of reliability, however, is “flexible,” and these factors
“neither necessarily nor exclusively apply to all experts or in every case.” Kumho Tire Co., 526
U.S. at 141. “Rather, the law grants a district court the same broad latitude when it decides how

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to determine reliability as it enjoys in respect to its ultimate reliability determination.” Id. at 142.
“The proponent need not prove that the expert’s testimony is correct, but she must prove by a
preponderance of the evidence that the testimony is reliable.” Moore, 151 F.3d at 276.
Notwithstanding the testing of an expert’s qualification, reliability, and admissibility,
“the rejection of expert testimony is the exception rather than the rule.” Fed. R. Evid. 702, Adv.
Comm. Notes (2000). Daubert did not work a “seachange over federal evidence law,” and “the
trial court’s role as gatekeeper is not intended to serve as a replacement for the adversary
system.” Id. (quoting 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.
III. Dr. Lowry
Dr. Lowry is a physician specializing in diagnosing and treating concussions in practice
at the Concussion Center in San Antonio, Texas, where he treated Shyanna for symptoms she
alleges stemmed from the injury underlying this suit. Dr. Lowry intends to testify on Shyanna’s
head injury, its causes and long-term effects, and the future costs associated with her medical
care. Dr. Lowry opines that Shyanna sustained permanent brain damage from her injury and that
her concussion was particularly damaging because it was a second concussion occurring close in
time to a first concussion sustained during a basketball game, meaning Shyanna suffers from
“Second Impact Syndrome.” (Case Summary [#83-2] at 3; Suppl. Report [#83-3] at 2.) Dr.
Lowry believes Shyanna’s confirmed non-epileptic seizure disorder and its associated
psychological symptoms were caused by her brain injury and are not representative of a purely
psychological “conversion disorder.” (Suppl. Report [#83-5] at 1–4.) According to Dr. Lowry,

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Shyanna’s future medical care will include physical therapy, cognitive rehabilitation, occasional
emergency treatment, counseling, and medications. (Suppl. Report [#83-3] at 2.) Dr. Lowry
provides a “conservative estimate” of Shyanna’s future medical expenses for her seizures, severe
headaches, and other symptoms of $250,000. (Id.)
In its motion, WWP raises several issues regarding the reliability of Dr. Lowry’s
testimony, such as his failure to personally review Shyanna’s school records. But during the
hearing, WWP narrowed its challenge to Dr. Lowry’s testimony that Shyanna’s future medical
expenses will be approximately $250,000. The Court sustains the objection: Plaintiffs have not
carried their burden to establish the reliability of this aspect of Dr. Lowry’s testimony and he is
precluded from testifying about his estimate of Shyanna’s future medical costs.
Dr. Lowry’s estimate of future medical costs purports to be based on “current reasonable
and necessary medical costs in Bexar County” and “Shyanna’s history of treatments . . ., her
current [sic] condition, the probable need for occasional emergency treatment, counselling, and
medications. (Suppl. Report [#83-3] at 2.) Yet Dr. Lowry’s opinions do not explain in sufficient
detail how he calculated this estimate, what specific treatments he predicts being necessary, the
costs of such treatments, or the length of Shyanna’s predicted recovery period. He merely states
that Shyanna’s medical costs from January 2018 to May 2018 at the Concussion Center
amounted to $24,907.84, that this constitutes about one-fourth of the anticipated treatment for
Shyanna (not just by him, but by other medical providers), and that his “extensive experience
and knowledge” give him the ability to predict her additional expenses at $250,000.

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In response to WWP’s reliability challenge and the filing of its motion to exclude, Dr.
Lowry executed a declaration with some additional information to support his calculation.1
(Lowry Decl. [#96] at 7.) The declaration does provide some explanation for his $250,000
estimate, in that Dr. Lowry opines that Shyanna will need permanent care and could live to 2070
or 2080 or beyond; that the cost of treatment would be $70,000.00 annually in the private
medical field; and that Dr. Lowry believes her actual cost will be approximately $10,000
annually, which amounts to $250,000 over a period of 25 years. (Id. at 9–10.) Yet this
testimony still fails to establish a sufficient foundation for Dr. Lowry’s opinion on the cost of
Shyanna’s medical care by identifying all the various types of treatments Shyanna will likely
receive in the future, their associated costs, and their frequency. Nor does it give adequate
foundation for the source of Dr. Lowry’s knowledge and estimates. Dr. Lowry treats concussion
disorders but his testimony goes beyond his treatments and the costs associated with them. To
the extent that he is relying on published or other sources regarding costs associated with other
treatments he anticipates Shyanna may need, he does not identify them. Accordingly, Plaintiffs
have not, so far, established by the preponderance of the evidence that Dr. Lowry’s $250,000
estimate of future medical care is based upon sufficient facts or data so as to be sufficiently
reliable under Daubert and Rule 702. See Guy, 394 F.3d at 325.
Dr. Lowry may testify, however, on all other opinions and conclusions contained in his
various reports, including the extent of Shyanna’s post-concussive disorder. Additionally, Dr.
Lowry may testify to the types of future medical care Shyanna will require, and, if it is within his

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WWP objected to this supplemental declaration on the basis that it was executed after
the deadline for designating experts. The Court overrules the objection. The declaration was
submitted to the Court in lieu of Dr. Lowry appearing live to testify at the Court’s Daubert
hearing. There is nothing permissible in the Court’s consideration of these additional statements
by Dr. Lowry in ruling on WWP’s motion.
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knowledge and expertise, the costs of these various treatments and their predicted frequency. If
Dr. Lowry is able lay a better foundation during trial and provide more detailed testimony on
these matters, the Court may revisit this ruling and may permit Dr. Lowry to testify as to the
estimated cost of all future medical care for Shyanna. Therefore, the Court’s ruling limiting Dr.
Lowry’s testimony will be without prejudice to Plaintiffs approaching the bench during trial after
they believe they have laid the proper foundation and asking the presiding judge to admit Dr.
Lowry’s testimony on his estimate of Shyanna’s total future medical expenses.
IV. Mr. Quintanilla
Mr. Quintanilla is a vocational rehabilitation counselor who interviewed Shyanna in
conjunction with this litigation and intends to testify on her vocational limitations and lost
earning capacity due to her head injury. Based on his review of the medical evidence in this case
and his interview with Shyanna, Mr. Quintanilla opines that Shyanna would have been capable
of achieving a Bachelor’s Degree if not for her injury but instead can hope at best to obtain an
Associate’s Degree and may possibly not even obtain her high-school diploma. (Addendum
Report [#90-3] at 3–4.) Mr. Quintanilla bases his opinions as to Shyanna’s lost earning capacity
on these conclusions. (Id.) WWP contends Mr. Quintanilla’s testimony is unreliable because it
is not based on reliable principles and methods, but rather unsupported assumptions not based on
any scientific or specialized expertise. The Court agrees.
Plaintiffs have failed to demonstrate that Mr. Quintanilla’s testimony is the product of a
reliable methodology. Mr. Quintanilla did not perform any evaluative tests on Shyanna; he does
not cite to any scholarly articles or journals; and he admits he had to “Google” several terms in
reviewing Shyanna’s case, such as post-concussive syndrome, traumatic brain injury, and mild
traumatic brain injury. (Quintanilla Dep. [#90-1] at 66:1–25.) Mr. Quintanilla testified in his

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deposition that his opinion was based solely on a review of Shyanna’s school records and grades
and her parents’ academic achievements (Shyanna’s father is in the process of obtaining a
Bachelor’s Degree, and her mother obtained an Associate’s Degree). (Id. at 75:8–76:25.)
Yet Mr. Quintanilla could not identify how he reached this conclusion, other than citing
generally to “stated research” that Shyanna had a “70% chance of completing a Bachelor
Degree” due to the educational history of her parents. (Addendum Report [#90-3] at 3.) Mr.
Quintanilla’s opinion that Shyanna would have strived to obtain a Bachelor’s Degree may be a
reasonable assumption, but it is not one that is supported by any articulated methodology and
therefore cannot be tested or reproduced. See Elcock v. Kmart Corp., 233 F.3d 734, 748 (3d Cir.
2000) (concluding that vocational rehabilitation expert’s testimony was “subjective and
unreproducible” under Daubert and therefore unreliable because the expert could not identify his
methodology). In order to be admissible, an expert’s testimony must assist the trier of fact
because the expert has some knowledge and expertise beyond lay knowledge and commonsense
inferences and assumptions. See Daubert, 509 U.S. at 589–90 (emphasizing that the touchstone
of admissibility of expert testimony is whether the expert’s “scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue”) (citing Fed. R. Evid. 702).
Because Mr. Quintanilla could not describe his methodology, the Court is unable to
evaluate whether the methodology was reliably applied in this case. In fact, Mr. Quintanilla’s
testimony appears to be an ipse dixit: he will tell the fact finder that his opinions are true because
he says they are. Daubert requires more than a black box. Accordingly, the Court will prohibit
Mr. Quintanilla from testifying that Shyanna was not able to pursue a Bachelor’s Degree due to
her head injury. Nothing in this order prevents Mr. Quintanilla from testifying on the average

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earnings of individuals with a high school diploma versus an Associate’s Degree or a Bachelor’s
Degree or any other opinion contained in his expert report.
IT IS THEREFORE ORDERED that Defendant Wounded Warrior Project, Inc.’s
Motion to Exclude Expert Testimony of Dr. Robert Lowry [#83] and Defendant Wounded
Warrior Project, Inc.’s Motion to Exclude Expert Testimony of Mr. William Quintanilla [#90]
are both GRANTED IN PART as follows:
•

Dr. Lowry may not testify at trial that Shyanna’s future medical expenses will be
$250,000.

•

Mr. Quintanilla may not testify at trial that Shyanna would have obtained a Bachelor’s
Degree but for her injury.
IT IS FURTHER ORDERED that the Court’s ruling as to Dr. Lowry is without

prejudice to Plaintiff moving to reconsider the ruling if Dr. Lowry’s testimony at trial lays a
sufficient foundation to enable him to testify as to his estimate Shyanna’s future medical
expenses.
IT IS FINALLY ORDERED that in all other respects, the Motions [#83, #90] are
DENIED.
SIGNED this 5th day of November, 2019.

ELIZABETH S. ("BETSY") CHESTNEY
UNITED STATES MAGISTRATE JUDGE

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