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Schlueter v. Ingram Barge Co.

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

November 18, 2019

BOBBY SCHLUETER, Plaintiff,
v.
INGRAM BARGE COMPANY, Defendant.

          MEMORANDUM AND ORDER

          ALETAA. TRAUGER UNITED STATES DISTRICT JUDGE

         Before the court is the plaintiff's Motion in Limine to Exclude Defendant's Proposed Expert Witness Testimony of Scott Giles, D.O. (Doc. No. 83), under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), on the basis that Giles does not qualify as an “expert” and that the testimony he proposes to offer is speculative and unreliable. For the reasons set forth herein, the motion will be granted.

         I. BACKGROUND

         As previously explained in the Memorandum and Order addressing five other motions in limine by both parties to exclude each other's experts, 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.) Schlueter alleges that, while working on the Sarah L. Ingram one cold and icy night, he fell, suffering injuries to his knee and lower back, and subsequently developed Complex Regional Pain Syndrome (“CRPS”). At issue in the case are questions of fault, causation, and damages.

         As relevant to the present motion, Ingram seeks to introduce the testimony of Scott Giles, a doctor of osteopathy, to refute the scope of the plaintiff's damages and to suggest to the jury that the plaintiff is magnifying his symptoms. The plaintiff seeks to exclude Dr. Giles' testimony.

         According to his deposition testimony and attached Curriculum Vitae, Dr. Giles has been an emergency room physician since approximately 1990. (Doc. No. 83-1, Giles Dep. 9;[1] Doc. No. 83-2, at 2-4.) According to his medical notes, Dr. Giles was the attending physician on duty at the Harton Regional Medical Center Emergency Department when Bobby Schlueter presented, at about 1:30 in the afternoon on March 15, 2017, with complaints of right arm pain and right leg pain. (Giles Dep. 9-10, 14-15.) The medical record indicates that Schlueter arrived via wheelchair. (Id. at 14.) Giles testified, also based on the medical record, that Schlueter stated that he had been at his chronic pain appointment that day getting a ketamine infusion when he began having difficulty moving his right arm and right leg due to pain. (Id. at 15.)

         Dr. Giles conducted a general examination of Schlueter, which included a neurological assessment. (Id. at 17-18.) In connection with the neurological examination, Dr. Giles wrote: “When testing motor strength in his legs, patient pushes down firmly with right leg to raise left leg but demonstrates no effort in his left leg when asked to raise his right leg. This finding makes his claim of weakness and lack of use of right leg very suspect for malingering.” (Id. at 18.) Dr. Giles described the test he performed to make this assessment as follows:

If you're trying to raise your leg off of a bed, you actually counter balance with the other leg. And so if you're not making an effort to raise your leg, you're not going to counter balance with the opposite leg.
So in this case, he told me he could not move his right leg. So I asked him to move his left leg and he pushed down with the right leg on my hand with the heel to lift the left leg. When I asked him to lift his right leg, he made no effort to push down with the left leg, which led me to believe that he was not being entirely truthful in his description of his condition.

(Id. at 92.) More particularly, he explained that, as the patient was lying on the examination table, Dr. Giles placed his hands under the patients' heels, so he could feel with his hands whether the patient was pressing down or lifting up with either foot. (Id. at 93.)

         Asked whether this test had a name, he stated, “I don't know that there's a specific name to that test. That is simply something that was. . . taught to us in training, ” during his osteopathy internship, sometime in the late 1980s. (Id. at 54-55; see also Id. at 11-12; Doc. No. 83-2, at 3.) He could not answer whether any peer-reviewed articles would approve the test for rebutting a finding of CRPS, again stating that he did “not know that this test has ever been given . . . any type of name.” (Id. at 56.) It was “simply a physical examination to determine whether or not [the patient] was demonstrating the symptom he complained of.” (Id. 57.) Dr. Giles later testified that he could probably find a name for the test if he were given an opportunity to research it online, noting that “there are a lot of names of things out there” that he had forgotten. (Id. at 79.)

         Dr. Giles testified that Schlueter was at the medical center for several hours and received medication. When the doctor went to reevaluate Schlueter around 5:30, he was “not in his room. Staff report he walked out. Less than 30 minutes before this he still claimed he could not move his right leg due to pain.” (Id. at 20.) Dr. Giles testified that he did not see Schlueter leave the premises that day, but he was told by a registered nurse, Brett Jackson, that “he left, he walked out.” (Giles Dep. 22.) Dr. Giles believed that the nurse meant the statement literally rather than figuratively, but he also assumed that Schlueter “did not present in his wheelchair but, instead, had been placed in a wheelchair” that belonged to the hospital, while he was at the pain center, just down the hall from the Emergency Department. (Id. at 29.) That is, Dr. Giles had no knowledge of whether Schlueter arrived in his own wheelchair and would have left the same way. (Id.) He reiterated that he did not personally observe Schlueter walk out or leave. (Id. at 30.)

         The plaintiff moves to exclude Dr. Giles' testimony, particularly any testimony regarding the results of the neurological test, his assessment of the plaintiff as possibly malingering, and the nurse's report that the plaintiff “walked out” of the Emergency Department on March 15, 2017, on the basis that Dr. Giles is not qualified to make a neurological assessment and did not personally witness the plaintiff leave the Emergency Department. (Doc. No. 83, at 5.) In its Response, Ingram contends generally that Dr. Giles was qualified by training and experience to evaluate and treat the plaintiff for complaints of arm and leg pain and weakness and that medical records “routinely contain vast amounts of hearsay.” (Doc. No. 84, at 5.)

         II. ...


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