Howard v. Offshore Liftboats, LLC et al, No. 2:2013cv04811 - Document 808 (E.D. La. 2016)
Court Description: ORDER AND REASONS re Dr. Cornelius E. Gorman. Signed by Judge Susie Morgan on 2/9/2016.(Reference: All Cases)(bwn)
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Howard v. Offshore Liftboats, LLC et al Doc. 808 U N ITED STATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A CALVIN H OW ARD , ET AL. CIVIL ACTION VERSU S N O. 13 -4 8 11 c/ w 13 -6 4 0 7 an d 14 -118 8 OFFSH ORE LIFTBOATS, LLC, ET AL. SECTION "E" ( 5 ) ORD ER AN D REASON S Plaintiffs Calvin Howard an d Raym ond Howard retained Dr. Cornelius E. Gorm an , II as a vocational rehabilitation expert to prepare life-care plans. Defen dan t Offsh ore Liftboats, LLC (“OLB”), objects to Dr. Gorm an’s proposed testim on y because it lacks an adequ ate foundation. OLB argues, specifically, that Dr. Gorm an’s opinions are n ot based on in form ation supplied by the Plaintiffs’ treating physicians. OLB “does not dispute that Dr. Gorm an is a qu alified life care planner, who is qualified to offer opin ion s regardin g th e cost of future m edical treatm ent, where the proper foundation is laid for him to do so.”1 In stead, OLB “contends th at in this particular case, and at this particular poin t in trial, there is a lack of foun dational evidence for Dr. Gorm an’s testim on y to ben efit th e ju ry.”2 LAW AN D AN ALYSIS Federal Rule of Evidence 70 2 perm its an expert witn ess with “scien tific, tech nical or oth er specialized knowledge” to testify if such testim ony “will help the trier of fact to un derstan d the evidence or to determ ine a fact in issu e,” so long as “the testim ony is based upon su fficient facts or data,” “th e testim ony is the product of reliable principles and m eth ods,” an d “the expert has reliably applied the principles and m eth ods to the facts of 1 2 R. Doc. 80 6 at 2. R. Doc. 80 6 at 2. 1 Dockets.Justia.com th e case.”3 Furtherm ore, Federal Rule of Eviden ce 70 3 provides: “An expert m ay base an opinion on facts or data in th e case th at th e expert h as been m ade aware of or person ally observed.”4 Rule 70 3 continues: If experts in the particular field would reasonably rely on those kin ds of facts or data in form in g an opin ion on the subject, they need not be adm issible for th e opinion to be admitted. But if the facts or data would oth erwise be in adm issible, th e propon en t of the opinion m ay disclose them to th e jury on ly if their probative valu e in helping the jury evaluate the opinion su bstantially outweighs th eir prejudicial effect. 5 As a gen eral rule, question s relating to the bases and sources of an expert’s opinion affect th e weight of the evidence rath er th an its adm issibility, and should be left for th e fin der of fact. 6 “Unless wholly unreliable, the data on which the expert relies goes to the weigh t an d not th e admissibility of the expert opinion.”7 Thus, “[v]igorous crossexam in ation , presen tation of con trary evidence, and careful instruction on the burden of proof are the traditional and appropriate m ean s of attackin g sh aky but adm issible eviden ce.”8 The Court is not concerned with whether the opinion is correct, bu t whether th e preponderance of the eviden ce establishes that the opinion is reliable. 9 “It is the role of th e adversarial system , n ot the court, to h ighlight weak eviden ce.”10 In the presen t case, the Court will allow Dr. Gorm an to testify regardin g h is lifecare plan s for both Plaintiffs, bu t h is opinions must be those expressed in his expert reports th at were provided to the Defendants prior to the deadline established in the F ED. R. E VID. 70 2. F ED. R. E VID. 70 3. 5 Id. 6 See Prim rose Operating Co. v . Nat’l Am . Ins. Co., 382 F.3d 546, 562 (5th Cir. 200 4). 7 Rosiere v . W ood Tow ing, LLC, No. 0 7-1265, 200 9 WL 982659, at *1 (E.D. La. Apr. 8, 20 09) (citing United States v . 14.38 Acres of Land, 80 F.3d 10 74, 10 77 (5th Cir. 1996)) (em phasis added); W olfe v . McNeil-PPC, Inc., No. 0 7-348, 20 11 WL 167380 5, at *6 (E.D. Pa. May 4, 20 11). 8 Pipitone, 288 F.3d at 250 (quoting Daubert, 50 9 U.S. at 596) (internal quotation m arks om itted). 9 See Johnson v . Arkem a, Inc., 685 F.3d 452, 459 (5th Cir. 20 12). 10 Prim rose, 382 F.3d at 562. 2 3 4 Court’s Sch edu ling Order. 11 And, as th e Court has instructed in prior orders, Dr. Gorm an m ust affirm atively state the basis of each of his opinions prior to offerin g testim ony with respect to that opinion.12 Moreover, if in form ulating h is opinion s Dr. Gorm an relied on m edical records, expert reports, or th e testim ony of oth er experts, Dr. Gorm an m u st specifically identify those sou rces prior to testifying. 13 Dr. Gorm an will be allowed to rely on Dr. Savant’s reports only to th e extent she iden tified the treatin g physicians an d oth er facts an d data on which she relied for th e basis of h er opinions an d on ly to the exten t th at in form ation was provided to Dr. Gorm an prior to th e date of his reports. N e w Orle an s , Lo u is ian a , th is 9 th d ay o f Fe bru ary, 2 0 16 . ________________________________ SU SIE MORGAN U N ITED STATES D ISTRICT J U D GE The deadline for Plaintiffs’ expert reports was J uly 20 , 20 15. See R. Doc. 272. OLB did not object to certain of Dr. Gorm an’s opinions with respect to Raymond Howard, acknowledging those opinions are founded on proper bases. OLB concedes the following bases of Dr. Gorm an’s opinions with respect to Raym ond are proper: (1) Health and Strength Maintenance – Wellness Center Fees; (2) Vocational Rehabilitation; and (3) Psychiatrist. See R. Doc. 80 6. 13 Considering the disputes in this case regarding the basis of Dr. Gorm an’s opinions, counsel for Plaintiffs are directed to identify and be prepared to provide the Court with portions of reports, depositions, or other docum entation upon which Dr. Gorm an or Dr. Savant relies. 3 11 12
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