Riley v. Union Pacific Railroad Company, No. 6:2009cv00155 - Document 86 (E.D. Okla. 2010)
Court Description: OPINION AND ORDER by Mag. Judge Kimberly E. West granting in part and denying in part 55 Defendant's Daubert Motion Regarding William O. Hopkins, M.D. (neh, Deputy Clerk)
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JF1IIlLJEIQ) IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA ROBERT M. RILEY, JR., WILLIAM B. GUTHRIE ) ) ) ) v. Clerk. er. ) Plaintiff, MAY 1/1 2010 u.s. Dlstr1ct Court D8paay cterk Case No. CIV-09-155-KEW ) UNION PACIFIC RAILROAD COMPANY, a corporation, ) ) ) ) Defendant. OPINION AND ORDER This matter comes before the Court on Defendant's Daubert Motion Regarding William O. (Docket Entry #55). Defendant replied. Hopkins, Plaintiff M.D. filed April 19, responded to the Motion 2010 and Addi tionally, this Court conducted a hearing to receive the testimony of Dr. Hopkins on May 7, 2010. Counsel of record for Plaintiff as well as Dr. Hopkins were present. Mr. Rob Hart and Mr. Jeffrey Fields represented Defendant at the hearing. Defendant seeks to exclude the opinion proffered witness, William O. Hopkins, M.D. of Plaintiff's ("Dr. Hopkins"). Dr. Hopkins is a board certified orthopedic surgeon, currently licensed to practice medicine in Missouri and Kansas. He stopped his active surgical practice. a clinical at Columbia professor at the He currently acts as University of orthopedic spine clinic. Missouri associate in their He now only sees the occasional person as a courtesy. Approximately 90 percent of Dr. Hopkins consists performing examinations of independent medical practice 1 for attorneys. Dr. Hopkins began seeing Plaintiff on September 13 2007 and 1 states that he has continued to see Plaintiff "many times" since that first visi t. Dr. Hopkins was unsure the avenue by which Plaintiff first came to him after the accident forming the subject matter of this action. Dr. Hopkins primarily receives new patients only through his association with the University of Missouri but Plaintiff was not referred to him in this manner. Upon examining Plaintiff Dr. Hopkins sent him for further l diagnostic procedures and directed his treatment. Dr. reviewed Plaintiff/s physicians' reports. He was not Plaintiff's operating physician since he had x-rays and other discontinued his surgical practice. attending In his deposition l Hopkins Plaintiff did not consider Dr. Hopkins as a treating physician, testifying Dr. Hopkins diagnosed more than treated him. Defendant challenges whether Plaintiff s "treating physician." def ini tion of Plaintiff was first the Hopkins constituted Neither party provides authority 1 on the Dr. term. referred Despi te to 2 him, the Dr. manner in which Hopkins rendered diagnostic and medical assistance services which went beyond that which might be expected from a mere expert witness. Court considers physicians. him to have been one of As such, this Plaintiff's treating He will, therefore, be permitted to render opinions on Plaintiff's prognosis of future recovery and ability to perform physical functions based upon his treatment. Even if contends Dr. his Plaintiff's Hopkins opinions other is are a treating cumulative treating physicians. physician, of those Normally, Defendant rendered by evidence is cumulative "if its probative effect is already achieved by other evidence in the record; that is, \ if the small increment of probability it adds may not warrant the time spent in introducing it." Jewell v. Life Ins. Co. of North America, 508 F.3d 1303, 1314 (10th Cir. 2007) (citations omitted). In reviewing Dr. Hopkins' testimony, both live at the hearing and in his deposition, this Court finds his testimony contains some non-cumulative evidence regarding his diagnostic orthopedic observations and opinions. Hopkins will, Defendant's supported physicians therefore, concerns by are those be about permitted whether rendered matters which Dr. to testify Hopkins' by Plaintiff's may be 3 ferreted at trial. opinions other out Dr. are treating on cross- examination. Dr. Hopkins also renders opinions which delve into the realm normally occupied by an expert witness. Dr. Hopkins' primary opinion challenged by Defendant concerns his views of the effects of vibration upon Plaintiff's medical condition. Generally, expert testimony is permitted [i) f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a wi tness qualified as an expert by knowledge! skill! experience! training or education may testify thereto in the form of an opinion or otherwise! 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. Fed.R. Evid. 702. The court acts as a gatekeeper as to any such testimony by making "a preliminary assessment 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." 509 U.S. 579! testimony. 593 Daubert v. Merrell Dow Pharmaceuticals, Inc.! (1993). This analysis applies to all expert Kuhmo Tire Co., Ltd. v. Carmichael! 526 U. S. 137 (1999) . Dr. Hopkins opined during his deposition that "I don!t perceive [Plaintiff] to be a competent railroad engineer because of his multiple physical problems and their impact on him in regards 4 to not his only his physical abilities to concentrate and - abilities! If Plaintiff's neck! to his potential and perform a job that requires constant concentration and at tent ion . problems but entail his Dr. Hopkins low back, identif ied and left shoulder. At the hearing! vibration Dr. associated Hopkins with specifically stated that being a locomotive engineer the would exacerbate Plaintiff's back problems and render him physically incapable fo operating a train "in the public domain. Dr. Hopkins If possesses no specialized knowledge of the vibration caused by a He has not measured the vibration forces associated locomotive. with the engineer position in the particular working environment Plaintiff would occupy in his employment. Dr. Hopkins identified several studies, from both domestic and international authorities, concerning vibration in general and the effects upon the spine. None of the studies he identified! however! were specific to the vibration forces on a locomotive in general or a locomotive engineer utilizing the equipment available to Plaintiff in the engine, such as the seating used in locomotives - even though such specific studies were counsel at the hearing. available He did not, identified by Defendant! s Dr. Hopkins stated he was following the "general majority consensus spine. and lf that vibration can cause damage to the however! relate such a consensus to the particular circumstance in the workplace to which Plaintiff would 5 be subjected. Dr. Hopkins did not demonstrate knowledge of the methodology for measuring vibration. He did not show a familiarity with the standards by which safe and unsafe vibration are established. He did not conduct or rely upon any peer reviewed studies of the forces involved in the operation of a locomotive train - findings which would be imperative to the conclusion he reached on the effects of vibrations upon Plaintiff's spine and back. Dr. Hopkins did studies not participate in any whole body vibration to ascertain the effects of vibration at the level experienced in locomoti ve engines. Al though Dr. Hopkins testif ied he treated locomotive engineers in the past, he did not relate that treatment to vibration problems associated with a locomotive engine. Hopkins' qualification as an orthopedic surgeon and Dr. treating physician does not equate with a qualification to render an opinion on the effects of vibration from a locomotive engine, encompassed by ergonomics. Allowing such testimony at trial would permit Dr. Hopkins to other engage speculation" in disciplines the speci fically such nsubjective dissuaded in as a subject biomechanics belief Daubert. or and unsupported Mi tchell v. Gencorp, Inc., 165 F.3d 778, 780 (10th Cir. 1999) citing Daubert, 509 U.S. at 590. Moreover, Dr. Hopkins' opinions on the general effects of vibration upon the spine does little to assist the jury. 6 The triers of fact are fully capable of drawing such patently obvious conclusions as offered by Dr. Hopkins in this regard so as to obviate the need for his testimony on vibration. One of the most important components to the gatekeeper function performed by this Court is whether the proposed expert testimony will serve as an assistance to the jury or whether it interferes with the factual finding which any reasonable jury would be capable and competent to assess for itself. Thompson v. State Farm Fire and Casualty Co., 34 F.3d 932, 941 (lOth Cir. 1994). not be permitted vibration upon to testify Plaintiff's as As a result, Dr. Hopkins will to medical the predicted conditions in effects of any future Daubert Motion employment with Defendant. IT IS THEREFORE Regarding William ORDERED that Defendant's o. Hopkins, M.D. filed April 19, 2010 (Docket Entry #55) is hereby GRANTED, in part, in that Dr. Hopkins will not be permitted to testify concerning the effects of vibration upon Plaintiff. However, the Motion is DENIED, in that Dr. Hopkins may testify concerning his diagnosis, treatment, and prognosis Plaintiff. IT IS SO ORDERED this /I~ day of May, 2010. ( JUDGE 7 for
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