Snider v. New Hampshire Insurance Company et al, No. 2:2014cv02132 - Document 188 (E.D. La. 2016)
Court Description: ORDER & REASONS granting in part and denying in part 136 Motion in Limine to Strike Attempted Medical Diagnoses of Life Care Planner, Unsupported Life Care Plan Treatments, and Vocational Rehabilitation Opinion by JWK Enterprises, Johnny Moore, Occidental Fire & Casualty Insurance Company of North Carolina. Signed by Judge Susie Morgan on 6/9/2016. (mmm)
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Snider v. New Hampshire Insurance Company et al Doc. 188 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A KAN D ISE SN ID ER, Pla in tiff CIVIL ACTION VERSU S N o . 14 -2 13 2 N EW H AMPSH IRE IN SU RAN CE COMPAN Y, ET AL., D e fe n d an ts SECTION “E” ( 1) ORD ER AN D REAS ON S Before the Court is the m otion in lim ine filed by Defendants J WK En terprises Inc., J ohnny Moore, and Occidental Fire & Casualty Com pany of North Carolina (collectively, “Defendants”). 1 Defendants seek to strike the proposed testim ony of Dr. Shelly N. Savant and J oyce C. Beckwith. BACKGROU N D This is a personal injury case arising from a car accident in St. Tam m any Parish, Louisiana. On April 19, 20 16, Defendants filed a m otion in lim ine regarding Dr. Shelly N. Savant, Plaintiff Kandise Snider’s life care planner, and J oyce C. Beckwith, Plaintiff’s vocational rehabilitation expert. 2 Plaintiffs filed an opposition to the m otion in lim ine on April 26, 20 16. 3 Defendants filed a reply on May 5, 20 16. 4 STAN D ARD OF LAW Rule 70 2 of the Federal Rules of Eviden ce governs the adm issibility of expert witness testim ony: A witness who is qualified as an expert by knowledge, skill, experience, training, or education m ay testify in the form of an opin ion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to 1 R. Doc. 136. Id. 3 R. Doc. 148 . 4 R. Doc. 158 . 2 1 Dockets.Justia.com understand the eviden ce or to determ ine a fact in issue; (b) the testim ony is based on sufficient facts or data; (c) the testim ony is the product of reliable principles and m ethods; and (d) the expert has reliably applied the prin ciples and m ethods to the facts of the case. 5 The United States Suprem e Court’s decision in Daubert v. Merrell Dow Pharm aceuticals, Inc., 6 provides the analytical fram ework for determ ining whether expert testim ony is adm issible under Rule 70 2. Under Daubert, courts, as “gatekeepers,” are tasked with m aking a prelim inary assessm ent of whether expert testim ony is both relevant and reliable. 7 The party offering the expert opin ion m ust show by a preponderance of the eviden ce that the expert’s testim ony is reliable and relevant. 8 The reliability of expert testim ony “is determ ined by assessing whether the reasoning or m ethodology underlying the testim ony is scientifically valid.”9 In Daubert, the Suprem e Court enum erated several non-exclusive factors that courts m ay consider in evaluating the reliability of expert testim ony. 10 “These factors are (1) whether the expert’s theory can or has been tested, (2) whether the theory has been subject to peer review an d publication, (3) the known or potential rate of error of a technique or theory when applied, (4) the existence and m aintenance of standards and controls, and (5) the degree to which the technique or theory has been generally accepted in the scientific com m unity.”11 The Suprem e Court has cautioned that the reliability analysis m ust rem ain flexible: the Daubert factors “m ay or m ay not be pertinent in assessing reliability, depending on 5 F ED. R. E VID. 70 2. 50 9 U.S. 579 (1993). 7 See Pipitone v. Biom atrix, Inc., 288 F.3d 239, 243– 44 (citing Daubert, 50 9 U.S. at 592– 93). 8 Mathis v. Exxon Corp., 30 2 F.3d 448, 459– 60 (5th Cir. 20 0 2). 9 Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 352 (5th Cir. 20 0 7). See also Burleson v. Texas Dep’t of Crim inal Justice, 393 F.3d 577, 584 (5th Cir. 20 0 4); Bocanegra v. Vicm ar Servs., Inc., 320 F.3d 581, 584– 85 (5th Cir. 20 0 3). 10 Daubert, 50 9 U.S. at 592– 96. 11 Bocanegra, 320 F.3d at 58 4– 85 (citin g Daubert, 50 9 U.S. at 593– 94). 6 2 the nature of the issue, the expert’s particular expertise, and the subject of his testim ony.”12 Thus, “not every Daubert factor will be applicable in every situation . . . and a court has discretion to consider other factors it deem s relevant.”13 The district court is offered broad latitude in m aking expert testim ony determ in ations. 14 As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight of the eviden ce rather than its adm issibility and should be left for the finder of fact. 15 “Unless wholly unreliable, the data on which the expert relies goes to the weight and not the adm issibility of the expert opinion.”16 Thus, “[v]igorous crossexam ination, presentation of contrary evidence, an d careful instruction on the burden of proof are the traditional and appropriate m eans of attacking shaky but adm issible eviden ce.”17 The Court is not concerned with whether the opinion is correct but whether the preponderance of the evidence establishes that the opinion is reliable. 18 “It is the role of the adversarial system , not the court, to highlight weak eviden ce.”19 AN ALYSIS A. Dr. Shelly Savant In the parties’ proposed pretrial order, Plaintiffs listed Dr. Shelly Savant as a witness who “[w]ill testify about Kandise Snider Life Care Plan.”20 12 Kum ho Tire Co., Ltd. v. Carm ichael, 526 U.S. 137, 150 (1999). Guy v . Crow n Equip. Corp., 394 F.3d 320 , 326 (5th Cir. 20 0 4). 14 See, e.g., Kum ho Tire, 526 U.S. at 151– 53. 15 See Prim rose Operating Co. v. N at’l Am . Ins. Co., 38 2 F.3d 546, 562 (5th Cir. 20 0 4). 16 Rosiere v. W ood Tow ing, LLC, No. 0 7-1265, 20 0 9 WL 982659, at *1 (E.D. La. Apr. 8, 20 0 9) (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. McN eil-PPC, Inc., No. 0 7-348, 20 11 WL 167380 5, at *6 (E.D. Pa. May 4, 20 11). 17 Pipitone, 288 F.3d at 250 (quoting Daubert, 50 9 U.S. at 596) (internal quotation m arks om itted). 18 See Johnson v. Arkem a, In c., 685 F.3d 452, 459 (5th Cir. 20 12). 19 Prim rose, 38 2 F.3d at 562. 20 R. Doc. 174 at 83. 13 3 In her report, Dr. Savant, also a board-certified neurologist and psychologist, gives her “im pression” that Plaintiff Kandise Snider (“Snider”) m ay suffer from posttraum atic stress disorder, as well as other m aladies. 21 Under her “Im pression(s),” Dr. Savant lists “Possible Posttraum atic Stress Disorder” and “Chronic Pain Syndrom e.”22 Defendants argue that Dr. Savant’s diagnoses of posttraum atic stress disorder and chronic pain syndrom e fall outside the testim ony that m ay be provided by a life care planner. 23 As explain ed at the J une 6, 20 16, pretrial conference, this Court allows life care planners to testify as to future healthcare needs, predicated upon the testim ony of treating physicians as to the reasonable need for such care, and the cost of such care. Dr. Savant will not be allowed to testify about her diagnoses of possible posttraum atic stress disorder or chronic pain syndrom e or the future m edical costs related thereto, unless a treating physician has testified to the reasonable need for and extent of such care. 24 The sam e is true with respect to Dr. Savant’s testim ony regarding “hom e care” for the rem ain der of the Plaintiff’s life. Dr. Savant m ust specifically identify the treating physician upon whose report or testim ony she relies prior to testifying as to the need for an d future costs of that care. 25 Counsel for Plaintiffs are directed to identify and be prepared to provide the Court 21 R. Doc. 137-2 at 3. Id. at 5. 23 R. Doc. 136-1 at 4– 6. 24 Defendants argue that, “in asm uch as these attem pted diagnoses were integrated in the life care plan of Cornelius Gorm an, the values placed on the treatm ents should likewise be stricken .” R. Doc. 136-1 at 6. Cornelius Gorm an, however, is not listed as a witness in the parties’ proposed pretrial order and will not testify as a life care plann er or otherwise. See R. Doc. 174 at 81– 8 4. J oyce C. Beckwith, the Plaintiffs’ vocational rehabilitation expert, will not be allowed to rely on Dr. Savant’s diagnoses of possible posttraum atic stress syndrom e or chron ic pain syndrom e. Defendants also request that Dr. Savant’s report be stricken . R. Doc. 136-1 at 5. Expert reports will not be adm itted into evidence. 25 The life care plan also contains am ounts for vocational rehabilitation counselin g services. See R. Doc. 1373 at 5. It is unclear whether Dr. Savant will testify about the future cost of vocational rehabilitation services, but, if she does, she m ay testify only to the extent J oyce C. Beckwith, Plaintiffs’ vocational rehabilitation expert, has been allowed to testify as to the reasonable need for those services. 22 4 with portions of reports, depositions, or other docum entation upon which Dr. Savant relies in the event objections are lodged to her testim ony. B. J oyce C. Beckwith In the parties’ proposed pretrial order, Plaintiffs listed J oyce C. Beckwith on their witness list and stated that Beckwith “will testify about Kandise Snider Vocational Rehabilitation.”26 In Defendants’ m otion in lim ine, Defendants seek to strike Beckwith in part on the basis that she is not a life care planner. 27 Plaintiffs do not dispute that Beckwith is not a life care planner and stated in their opposition that they do not plan to qualify her as a life care planner: “Mrs. Beckwith is being called to testify only as a [v]ocational [r]ehabilitation expert.”28 Beckwith will be allowed to testify only as to the vocational rehabilitation of Snider. Defendants also challenge Beckwith’s testim ony that Snider is underem ployed and that her work life expectancy is “at risk.” These concerns, however, pertain to the bases and sources of the opinions. “As a gen eral rule, questions relating to the bases an d sources of an expert’s opinion affect the w eight to be assigned that opinion rather than its adm issibility and should be left for the jury’s consideration.”29 Beckwith’s testim ony will presum ably be subject to vigorous cross exam ination by Defendants. “It is the role of the adversarial system , not the court, to highlight weak eviden ce.”30 26 R. Doc. 174 at 83. R. Doc. 136-1 at 8 . 28 R. Doc. 148 at 10 . 29 Prim rose, 38 2 F.3d at 562 (quoting United States v. 14.38 Acres of Land, More or Less Situated in Leflore County , 80 F.3d 10 74, 10 77 (5th Cir.1996)) (em phasis in original). 30 Id. 27 5 CON CLU SION For the foregoing reasons; Defendants’ m otion in lim ine is GRAN TED IN PART and D EN IED IN PART as set forth above. N e w Orle a n s , Lo u is ian a, th is 9 th d ay o f Ju n e , 2 0 16 . _____________ ________ _________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 6
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