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Schlueter v. Ingram Barge Co.

United States District Court, M.D. Tennessee, Nashville Division

November 1, 2019




         Before the court are five motions in limine, two filed by the defendant and three by the plaintiff, seeking to exclude each others' experts. Since the same basic facts and legal standards apply to all of them, the court will provide a brief summary of the relevant facts, state the applicable standard of review, and then address each motion separately. For the reasons stated herein, the defendant's Motion to Exclude Testimony of Dr. Benjamin Johnson (Doc. No. 43) will be granted in part and denied in part. The remaining motions (Doc. Nos. 45, 47, 51, and 52) will be denied.

         I. BACKGROUND

         This case arises out of an injury suffered by plaintiff Bobby Schlueter on February 7, 2014, while he was a member of the crew of the M/V Sarah L. Ingram, a vessel owned and operated by the defendant, Ingram Barge Company (“Ingram”). Schlueter filed the Complaint initiating this action on August 8, 2016, asserting claims under the Jones Act, 46 U.S.C. § 30104, and the general maritime law of the United States. (Doc. No. 1.)

         Very generally, Schlueter alleges that he was working with the vessel's second mate in cold and icy conditions, tightening wires that connected the M/V Sarah L. Ingram to the barges it was towing. A winch that he was tightening gave way suddenly, causing him to slip and fall to the deck, landing on his right knee. The plaintiff claims that the winch was iced over and that his injuries were caused by Ingram's negligence in failing to provide a safe work place, failing to provide de-icer, and requiring the plaintiff to work in extremely icy and dangerous conditions. (See Compl., Doc. No. 1 ¶ 6.) The plaintiff alleges that he suffered injuries to his knee and lower back and subsequently developed Complex Regional Pain Syndrome. At issue in the case are questions of fault, causation, and damages. Both parties have engaged various experts to present their opinions on these issues.


         Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony.

         It 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.

         In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court construed Rule 702 as granting district courts, acting as “gatekeepers, ” “discretion in determining whether . . . a proposed expert's testimony is admissible, based on whether it is both relevant and reliable.” Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 429 (6th Cir. 2007). The Supreme Court has provided a non-exhaustive list of factors that lower courts may consider in assessing reliability: (1) whether a theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether the technique has a high known or potential rate of error; and (4) whether the technique enjoys general acceptance within the relevant scientific, technical, or other specialized community. Daubert, 509 U.S. at 593-94; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-50 (1999). The Sixth Circuit has approved the use of an additional factor: whether the expert prepared his or her opinion “solely for purposes of litigation.” Wilden v. Laury Transp., LLC, 901 F.3d 644, 649 (6th Cir. 2018) (quoting Johnson, 484 F.3d at 434). The court's gatekeeping role is not limited to expert testimony based on scientific knowledge but, instead, extends to “all ‘scientific,' ‘technical,' or ‘other specialized' matters” within the scope of Rule 702. Kumho Tire, 526 U.S. at 147.

         Whether the court applies any particular Daubert factor to assess the reliability of an expert's testimony “depend[s] on the nature of the issue, the expert's particular expertise, and the subject of his testimony.” Kumho Tire, 526 U.S. at 150 (citation omitted). Any weakness in the underlying factual basis generally bears on the weight, as opposed to the admissibility, of the evidence. In re Scrap Metal Antitrust Litig., 527 F.3d 517, 530 (6th Cir. 2008) (citations omitted).


         A. Defendant's Motion to Exclude Testimony of Dr. Benjamin Johnson (Doc. No. 43)

         As part of his damages, the plaintiff seeks to introduce the testimony of his former treating physician, Dr. Benjamin Johnson, to establish that the plaintiff has been diagnosed with, and treated for, Complex Regional Pain Syndrome (“CRPS”). Dr. Johnson is also anticipated to testify regarding the plaintiff's need for future medical treatment. The defendant's motion seeks to exclude both aspects of Dr. Johnson's proposed testimony.

         1. The CRPS Diagnosis

         Ingram seeks to exclude Dr. Johnson's proposed testimony about the plaintiff's CRPS diagnosis on the basis that he arrived at that diagnosis without satisfying the diagnostic criteria in the AMA Guides to the Evaluation of Impairment, Sixth Edition (“AMA Guides”). It argues that Dr. Johnson has admitted that the AMA Guides are authoritative and that he did not conform to them, specifically by failing to rule out other possible causes for the plaintiff's symptoms, including disuse atrophy, somatoform disorders, factitious disorder, and malingering. (Doc. No. 44, at 2.)

         Dr. Johnson testified in his deposition that he is a medical doctor who has been licensed to practice in Tennessee since 1991. (Doc. No. 43-1, at 2-3.) His curriculum vitae reflects that he specializes in anesthesiology and pain management; he is a diplomate of the American Board of Anesthesiology and the American Board of Pain Medicine. (Doc. No. 56-1, at 3.) He has practiced, taught, lectured, and published extensively in the area of pain management for more than twenty-five years. (Id. at 3-45.) Dr. Johnson testified that, when Bobby Schlueter first came to him for treatment in July 2015, Schlueter had already been diagnosed elsewhere with CRPS. (Id. at 5.) Dr. Johnson could not recall who had made the initial diagnosis, but he believed it was contained within medical records for Schlueter that he would have received before he first saw him as a patient. (Id. at 7.) Dr. Johnson testified that he agreed with the diagnosis and that he himself concluded during the first office visit that Schlueter had CRPS. Dr. Johnson stated that he was familiar with the AMA Guides and agreed with defense counsel's statement that the AMA Guides are “authoritative in the diagnosis of CRPS.” (Id. at 20.) However, he also testified that his diagnosis was not based on the AMA Guides but, instead, on the patient's history and physical examination and on Dr. Johnson's previous knowledge of the diagnostic criteria for CRPS. (Id. at 21.)

         During Dr. Johnson's deposition, counsel for the defendant read aloud a lengthy passage from the AMA Guides, according to which “a subjective complaint of pain is the hallmark” of a CRPS diagnosis and, because “all of the associated physical signs and radiologic findings” can be the result of disuse, an extensive differential diagnosis process is necessary.” (Doc. No. 43-1, at 25.) Dr. Johnson testified that he did not perform an extensive differential diagnosis process when diagnosing Schlueter with CRPS and that he did not specifically rule out disuse atrophy, somatoform disorders, factitious disorder, or malingering as a cause of the plaintiff's pain. (Id. at 28-31.) The defendant claims that the AMA Guides establish that CRPS is difficult to diagnose accurately and that, “when a CRPS diagnosis is made, it is probably wrong.” (Doc. No. 44, at 7.) The defendant argues that, because the methodology by which Dr. Johnson arrived at his diagnosis did not conform to the AMA Guides, it is unreliable and speculative and must be excluded from evidence at trial.

         In his Response to Defendant's Motion to Exclude Dr. Benjamin Johnson's Opinions (Doc. No. 69), the plaintiff cross-references his prior Response to Defendant's Motion for Leave to File Motion for Partial Summary Judgment (Doc. No. 56).[1] There, the plaintiff argued that a video-taped interview with Dr. Johnson that the plaintiff produced as part of Dr. Johnson's Expert Witness Disclosure “addresses all of the points raised by Defendant, including Bobby Schlueter's diagnosis of CRPS Type 1, how it was reached, why, and his future care needs.” (Doc. No. 56, at 2.) In the video interview, Dr. Johnson explained that the plaintiff had already seen and been treated by numerous experts in various fields, who ruled out other possible explanations for the plaintiff's symptoms and converged upon a diagnosis of CRPS. The plaintiff further argues that the CRPS Diagnostic and Treatment Guidelines (4th ed. 2013) “expressly approves the diagnostic scale and measures” used by Dr. Johnson to diagnose the plaintiff's condition and that Dr. Johnson affirmed during his deposition that, in accordance with those Guidelines, (1) a forensic neuropsychologist's advice is not required to make a CRPS diagnosis; (2) Schlueter's diagnosis had been in effect for at least a year; and (3) the diagnosis had been verified by other practitioners and physicians. (Doc. No. 56, at 2.) The plaintiff asserts that the defendant offers no evidence that the AMA Guides provide the sole authoritative standard for diagnosing CRPS. Finally, he points to testimony from Dr. Thomas Rizzo, a pain specialist upon whom the defendant relies, characterizing the AMA Guides as “a resource, ” but not one to which he referred “on a regular basis, ” and that “guidelines are for everyone, and . . . they're written so that everyone, from a nurse practitioner to primary care physician who rarely sees these conditions, will think of all the other possible explanations.” (Doc. No. 56-4, at 3.)

         The Sixth Circuit has recognized that a treating physician is generally qualified to “provide expert testimony regarding a patient's illness, the appropriate diagnosis, and the cause of the illness even if the physician is not among the world's foremost authorities on the matters.” Thomas v. Novartis Pharm. Corp., 443 Fed.Appx. 58, 61 (6th Cir. 2011) (citing Gass v. Marriott Hotel Servs., Inc., 558 F.3d 419, 426 (6th Cir. 2009)). The treating physician's testimony, however, “is still subject to the requirements in Daubert. Before permitting a physician to testify, the district court must be persuaded that (1) the reasoning or methodology underlying his or her testimony is scientifically valid; and (2) he or she has properly applied that reasoning or methodology to the facts at issue to aid the trier of fact.” Id. “The task for the district court in deciding whether an expert's opinion is reliable is not to determine whether it is correct, but rather to determine whether it rests upon a reliable foundation, as opposed to, say, unsupported speculation.” In re Scrap Metal Antitrust Litig., 527 F.3d 517, 529-30 (6th Cir. 2008). A medical doctor is generally competent to testify regarding matters within his or her own professional experience. Gass, 558 F.3d at 427-28 (citing Dickenson v. Cardiac & Thoracic Surgery of E. Tenn., 388 F.3d 976, 982 (6th Cir. 2004)).

         In this case, the defendant does not dispute Dr. Johnson's qualifications as an expert in the field of pain management; he simply argues that Dr. Johnson's “methodology” for the CRPS diagnosis is not reliable. The sole basis for this argument is that Dr. Johnson himself did not go through a differential diagnosis process as recommended by the AMA Guides. Dr. Johnson did, however, explain what symptoms led to the diagnosis, why he reached that diagnosis, and the basis for his reliance on previous specialists to rule out other explanations for the plaintiff's symptoms. Under Daubert, experts are permitted a wide latitude in their opinions, including those not based on firsthand knowledge, so long as “the expert's opinion [has] a reliable basis in the knowledge and experience of the discipline.” Daubert, 509 U.S. at 592; see also Jahn v. Equine Servs., PSC, 233 F.3d 382, 388 (6th Cir. 2000) (“In order to be admissible on the issue of causation, an expert's testimony need not eliminate all other possible causes of the injury.”). The defendant has not shown that Dr. Johnson was unreasonable in relying on other practitioners to rule out other causes for the plaintiff's condition. Certainly, Dr. Johnson's failure to expressly rule out other potential causes for the plaintiff's symptoms and his reliance on the prior diagnosis are issues that the defendant can explore through cross-examination at trial, but his decision not to conduct a differential diagnosis goes to the weight of his testimony, not its admissibility. Regardless of whether the diagnosis is correct, the defendant has not established that it is speculative or outside the scope of matters generally within Dr. Johnson's field of expertise.

         Dr. Johnson will be permitted to give an opinion regarding his diagnosis of the plaintiff's condition as CRPS.

         2. The Plaintiff's Future Treatment

         A treating physician is generally qualified to testify about a patient's diagnosis, treatment, and prognosis, including the future course of treatment, so long as the testimony is based on personal knowledge and the doctor's history, treatment and examination of the patient. See, e.g., St. Vincent v. Werner Enters., Inc., 267 F.R.D. 344, 345 (D. Mont. 2010); Gibson v. CSX Transp., Inc., No. 1:07-CV-156 (FJS/RFT), 2008 WL 11355393, at *3 (N.D.N.Y. Nov. 3, 2008) (“[P]rognosis on future medical care is one of the functions of a treating physician in the course of the care and treatment of a patient.” (citation omitted)); Boudreaux v. J.P. Morgan Chase & Co., No. CIV.A. 07-555, 2007 WL 4162908, at *1-3 (E.D. La. Nov. 21, 2007) (denying motion in limine to exclude treating physician's testimony regarding the plaintiff's expected future treatment, including the likelihood that she would need to undergo surgery). The Sixth Circuit also recognizes, however, that “speculative medical testimony is not admissible in Jones Act suits.” Mayhew v. Bell S.S. Co., 917 F.2d 961, 964 (6th Cir. 1990).

         On May 29, 2018, Dr. Johnson emailed plaintiff's counsel a list of future medical treatment he believed the plaintiff might need. (Doc. No. 43-1, at 42, 70.) Among other modalities, the anticipated treatments included “[s]pinal cord stimulation trial and possible implant, ” left knee arthroscopic surgery, occupational therapy, medications, and a personal care assistant. (Id. at 70-71.) The defendant moves to exclude Dr. Johnson's testimony that the plaintiff will need these treatments in the future on the grounds that Dr. Johnson admitted that he was speculating about whether the plaintiff would ever need the specified treatments or medications in the future. (See Doc. No. 44, at 9.) In response, ...

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