Chong v. STL International, Inc, et al, No. 3:2014cv00244 - Document 79 (D. Or. 2016)
Court Description: OPINION and ORDER - Plaintiffs Motion to Strike the expert reports of Dr. Jeffrey Johnson (ECF 65) is GRANTED. The Johnson Report and Johnson Supplemental Report are stricken and excluded from use at trial. Further, neither Dr. Johnson nor any other witness may testify regarding the opinions expressed in Dr. Johnson's repo1ts at trial. IT IS SO ORDERED. DATED this 10th day of August, 2016, by United States District Judge Michael H. Simon. (peg)
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Chong v. STL International, Inc, et al Doc. 79 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON JEANIE CHONG, Plaintiff, Case No. 3:14-cv-244-SI OPINION AND ORDER v. STL INTERNATIONAL, INC. and COSTCO WHOLESALE CORPORATION, Defendants. William A. Gaylord and Todd A. Bradley, GAYLORD EYERMAN BRADLEY, P.C., 1400 S.W. Montgomery Street, Portland, OR 97201. Of Attorneys for Plaintiff. Mark P. Scheer, Dennis G. Woods, and Kelsey A. Terry, SCHEER LAW GROUP LLP, 101 S.W. Main Street, Suite 1600, Pmtland, OR 97204. Of Attorneys for Defendants. Michael H. Simon, District Judge. Plaintiff purchased an inversion table manufactured by Defendant STL International, Inc. ("STL'') and sold by Defendant Costco Wholesale Corporation ("Costco") (collectively, "Defendants"). A few months later, Plaintiff was injured when she purportedly fell from the inversion table while it was fully inverted. Plaintiff alleges strict product liability based on PAGE I -OPINION AND ORDER Dockets.Justia.com defective design. Before the Comt is Plaintiffs motion to strike the expert reports of Defendants' expert, Jeffrey Johnson, MD., and to exclude evidence or testimony of Dr. Johnson's opinions from trial. For the reasons discussed below, Plaintiffs motion to strike the expert report is granted. STANDARDS The United States Court of Appeals for the Ninth Circuit has discussed the standard under which a district court should consider the admissibility of expert testimony. City of Pomona v. SQM N. Am. Co1p., 750 F.3d 1036 (9th Cir. 2014). As explained by the Ninth Circuit: Rule 702 of the Federal Rules of Evidence provides that expert opinion evidence is admissible if: (I) the witness is sufficiently qualified as an expert by knowledge, skill, experience, training, or education; (2) the scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (3) the testimony is based on sufficient facts or data; (4) the testimony is the product of reliable principles and methods; and (5) the expert has reliably applied the relevant principles and methods to the facts of the case. Fed. R. Evid. 702. Under Daubert [v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)] and its progeny, including Daubert II [Daubert v. Merrell Dow Pharms, Inc., 43 F.3d 1311 (9th Cir. 1995)], a district court's inquiry into admissibility is a flexible one. Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013). In evaluating proffered expert testimony, the trial court is "a gatekeeper, not a fact finder." Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010) (citation and quotation marks omitted). "[T]he trial comt must assure that the expert testimony 'both rests on a reliable foundation and is relevant to the task at hand."' Id. at 564 (quoting Daubert, 509 U.S. at 597). "Expert opinion testimony is relevant if the knowledge underlying it has a valid connection to the pertinent inquiry. And it is reliable ifthe knowledge underlying it has a reliable basis in the knowledge and experience of the relevant discipline." Id at 565 (citation and internal quotation marks omitted). "Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion." Id. at 564 (citation omitted). The judge is "supposed to screen the jury from unreliable nonsense opinions, but not exclude opinions merely because they PAGE 2 -OPINION AND ORDER are impeachable." Alaska Rent-A-Car, 738 F.3d at 969. Simply put, "[t]he district court is not tasked with deciding whether the expert is right or wrong, just whether his testimony has substance such that it would be helpful to a jury." Id. at 969-70. The test of reliability is flexible. Estate ofBarabin v. AstenJohnson, Inc., 740 F.3d 457, 463 (9th Cir. 2014) (en bane). The court must assess the expett's reasoning or methodology, using as appropriate criteria such as testability, publication in peerreviewed literature, known or potential error rate, and general acceptance. Id.; see also Primiano, 598 F.3d at 564. But these factors are "meant to be helpful, not definitive, and the trial court has discretion to decide how to test an expert's reliability as well as whether the testimony is reliable, based on the particular circumstances of the particular case." Primiano, 598 F.3d at 564 (citations and quotation marks omitted); see also Barabin, 740 F.3d at 463. The test "is not the correctness of the expert's conclusions but the soundness of his methodology," and when an expet1 meets the threshold established by Rule 702, the expert may testify and the fact finder decides how much weight to give that testimony. Primiano, 598 F.3d at 564-65. Challenges that go to the weight of the evidence are within the province of a fact finder, not a trial court judge. A district court should not make credibility determinations that are reserved for the jury. Id. at 1043-44 (alterations in original). The district court's role as a gatekeeper of reliable expert testimony is to independently ensure that the expe11's methods are valid. Daubert, 509 U.S. at 590 n. 9. "The trial comt's gatekeeping function requires more than simply taking the expert's word for it." Fed. R. Evid. 702, Advisory Comm. Note to 2000 Amendments (citing Daubert II, 43 F.3d at 1319). "[S]omething doesn't become 'scientific knowledge' just because it's uttered by a scientist; nor can an expert's self-serving assertion that his conclusions were 'derived by the scientific method' be deemed conclusive .... " Daubert II, 43 F.3d at 1315-16. "[T]he expert's bald assurance ofvalidity is not enough. Rather, the patty presenting the expert must show that the expert's findings are based on sound science, and this will require some objective, independent validation of the expert's methodology." Id. at 1316. PAGE 3 -OPINION AND ORDER Further, the court's "gatekeeping inquiry must be tied to the facts of a particular case." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999) (quotation marks omitted). "[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). The court may exclude expert testimony if it determines "that there is simply too great an analytical gap between the data and the opinion proffered." Id. "Rule 702 demands that expert testimony relate to scientific, technical or other specialized knowledge, which does not include unsubstantiated speculation and subjective beliefs." Cooper v. Brown, 510 F.3d 870, 942 (9th Cir. 2007) (quoting Diviero v. Uniroyal Goodrich Tire Co., 114 F.3d 851, 853 (9th Cir. 1997)); see also Daubert, 509 U.S. at 590 (noting that the trial judge must insure that the expert's opinion is based upon "more than subjective belief or unsupported speculation .... Proposed testimony must be supported by appropriate validatio n-i.e., 'good grounds,' based on what is known"). An opinion based on unsubstantiated and undocumented information "is the antithesis of the scientifically reliable expe1t opinion admissible under Daubert and Rule 702." Cabrera v. Cordis Corp., 134 F.3d 1418, 1423 (9th Cir. 1998). Many "courts have generally held that an expert's opinion 'should be excluded when it is based on assumptions which are speculative and are not supported by the record.'" Morrison v. Quest Diagnostics, Inc., et al., 2016 WL 3457725, at *4 (D. Nev. June 23, 2016) (quoting Blake v. Bell's Trucking, Inc., 168 F. Supp. 2d 529, 532 (D. Md. 2001)) (additionally citing numerous cases rejecting expert testimony based on speculation or assumptions that are inadequately supported in the record); see also McGlinchy v. Shell Chem. Co., 845 F.2d 802, 807 (9th Cir. 1988) (upholding the district court's exclusion of one expert whose testimony was found to be "speculation" that "rests on unsupported assumptions and PAGE 4-0PINIO N AND ORDER of another expert ignores distinctions crucial to arriving at a valid conclusion" and the exclusion ). whose testimony was found to be "speculation" that had "scant basis in the record" Circuit has In further recognition of the flexible nature of the Daubert inquiry, the Ninth . Lust, 89 F.3d "provided additional guidance" for evaluating the reliability of an expert' s opinion proposing to at 597. "(O]ne very significant fact to be considered is whether the experts are conducted testify about matters growing naturally and directly out of research they have ly for the independent of the litigation, or whether they have developed their opinions express New Carissa, 339 purposes of testifying." Daubert II, 43 F.3d at 1317; see also Clausen v. MIV own research, F.3d 1049, 1056 (9th Cir. 2003). Where "an expett did not conduct his or her must determine independent of the litigation, on the subject of the testimony, the district court on whether there exists any 'objective, verifiable evidence that the testimony is based 605 (9th Cir. 'scientifically valid principles."' Domingo ex rel. Domingo v. T.K, 289 F.3d 600, how such objective, 2002) (quoting Daubert II, 43 F.3d at 1317-18). The Ninth Circuit explained verifiable evidence may be shown: Experts may demonstrate the scientific validity of a theory or technique by showing that "the research and analysis supporting the proffered conclusions have been subjected to normal scientific scrutiny through peer review and publication." [Daubert II, 43 F.3d] at 1318. Alternatively, testifying experts may also show the validity of their theory by explaining "precisely how [the experts] went about reaching their conclusions and point[ing] to some objective source --a learned treatise, the policy statement of a professional association, a published atticle in a reputable scientific journal or the like-to show that they have followed the scientific method, as it is practiced by (at least) a recognized minority of scientists in their field." Id. at 1319. Clausen, 339 F .3d Id. at 605-06 (first alteration added, remaining alterations in original); see also at 1056. PAGE 5-0PIN ION AND ORDER Where expert medical testimony is at issue, it may or may not be scientific evidence like the evidence at issue in Daubert. Primiano, 598 F.3d at 565. As the Ninth Circuit explained: [M]edicine is not a science but a learned profession, deeply rooted in a number of sciences and charged with the obligation to apply them for man's benefit. Evidence-based medicine is the conscientious, explicit and judicious use of current best evidence in making decisions about the care of individual patients. Despite the importance of evidence-based medicine, much of medical decision-making relies on judgment-a process that is difficult to quantify or even to assess qualitatively. Especially when a relevant experience base is unavailable, physicians must use their knowledge and experience as a basis for weighing known factors along with the inevitable uncertainties to mak[e] a sound judgment. When considering the applicability of Daubert criteria to the patticular case before the court, the inquiry must be flexible. Peer reviewed scientific literature may be unavailable because the issue may be too particular, new, or of insufficiently broad interest, to be in the literature. Lack of certainty is not, for a qualified expert, the same thing as guesswork . •• • We have some guidance in the cases for applying Daubert to physicians' testimony. A trial court should admit medical expert testimony if physicians would accept it as useful and reliable, but it need not be conclusive because medical lmowledge is often uncertain. The human body is complex, etiology is often uncertain, and ethical concerns often prevent double-blind studies calculated to establish statistical proof. Where the foundation is sufficient, the litigant is entitled to have the jury decide upon [the expert's] credibility, rather than the judge. Id.at 565-66 (quotation marks and footnote citations omitted) (alterations in original). "It is the proponent of the expert who has the burden of proving admissibility." Lust, 89 F.3d at 598. Admissibility of the expert's proposed testimony must be established by a preponderance of the evidence. See Daubert, 509 U.S. at 592 n. 10 (citing Bourjaily v. United States, 483 U.S. 171, 175-76 (1987)). The party presenting the expert must demonstrate that the PAGE 6 -OPINION AND ORDER e of independent expert 's findings are based on sound principles and that they are capabl validation. Daubert II, 43 F.3d at 1316. BACKGROUND 5 Inversion Table Plainti ff asserts that on March 10, 2012, she used her STL lnvertAlign used it once in the ("InvertAlign") the same way she had been using it for six months. She She testified that she was morning, without incident. She used it a second time in the evening. of the ankle locking wearing lace up tennis shoes, stepped on the machine, pulled the handle away from her body mechanism as close as possible to her ankles, and then moved the handle d, counted to 60, and until she heard the locking mechanism click into place. She fully inverte before blacking out and then began counting again and reached approximately the number five testified that she slipped regaining consciousness on the ground, unable to move her legs. She the ground or were still in out of her shoes, although she does not recall whether her shoes fell to Seon Kim, who lives the ankle locking system after she fell. Her significant other, Mr. Yong lign's ankle lock with her and purchased the InvertAlign with her, testified that the InvertA system was still in the locked position after Plainti ff fell. supine under the Reports from the first responders on the scene note that Plainti ff was to move her foot herself, InvertAlign "with her foot propped up on a cross bar." She was unable her lower extremities. so the paramedics lowered her foot to the floor. She was unable to move She is now a permanent paraplegic. DISCU SSION A. Qualifications of Dr. Johnson dge and Plainti ff does not challenge the qualifications of Dr. Johnson. His knowle foundation of his opinions. experience, however, is relevant to the Court' s analysis regarding the . Accordingly, the Court briefly summarizes Dr. Johnso n's qualifications PAGE 7-0PI NION AND ORDE R nearly 26 Dr. Johnson is a neurosurgeon practicing in Portland, Oregon. Dr. Johnson has of Physicians years of experience in surgery and neurosurgery. He graduated from the College surgery at and Surgeons at Columbia University in 1990, interned for one year in general l neurology Columbia Presbyterian Medical Center, was a clinical fellow for one year in surgica Columbia at the National Institutes of Health, performed his residency in neurosurgery at He is BoardPresbyterian Medical Center, and continued in private practice in neurosurgery. Dr. Johnson has certified in neurosurgery and is a fellow in the American College of Surgeons. nt ("OPLL"), experience treating patients with Ossification of the Posterior Longitudinal Ligame l spine. He has which is which is a chronic degenerative condition, most often seen in the cervica an expert on behalf co-authored nine published articles in his field. He has previously testified as of both plaintiffs and defendants. B. Opinions of Dr. Johnson from her Dr. Johnson reviewed the Complaint in this action, Plainti ffs medical records March 2012, treatment at Oregon Health and Sciences University following the incident in Plainti ffs Plainti ffs earlier medical records from her primary care physician, reports from InvertAlign." imaging, medical literature regarding OPLL, and "information pertaining to the an opinion letter Dr. Johnson did not meet, examine, or interview Plaintiff. Dr. Johnson issued rendered several dated July 20, 2015 ("Johnson Report"). ECF 66-1. In this letter, Dr. Johnson opinions challenged by Plaintiffs. erized by The Johnson Report begins with an explanation of OPLL, a condition charact the length of the thickening and calcification of the posterior longitudinal ligament, which runs t runs along spinal column along the back of the spinal column. The anterior longitudinal ligamen spinal canal, the front of the spinal column. Behind the posterior longitudinal ligament is the are the bones at which holds the spinal cord. Also within the spinal canal are "laminae," which PAGE 8-0PIN ION AND ORDER flavum," the back of the spinal canal that form the roof of the spinal canal, and "ligamentum which is elastic tissue that runs between the laminae. ss the The ligament thickening caused by OPLL narrows the spinal canal and can compre spinal cord. OPLL can be diagnosed based on varying symptoms, including neck pain, ss, headaches, radiculopathy (nerve compression, with symptoms including pain, numbne cord tingling, or weakness in the neck, shoulder, arm, or hand), and myelopathy (spinal in the arms or compression, with symptoms including wealmess, clumsiness, numbness, tingling who have legs, or problems with bowel or bladder function). OPLL can also be present in people It can also be no symptoms and can be discovered when imaging is done for an unrelated reason. or event. seen in patients who have sudden or acute symptoms, despite no discernible injury her In his report, Dr. Johnson states that a person who falls a short distance onto his or minor head would most likely have no injury to the head, neck, or spine but would have only s, or bruising or contusion at the point of impact, aches and pains, neck stiffuess and sorenes a serious other temporary symptoms. Dr. Johnson notes, however, that it is possible to suffer injury, such as a concussion or brain contusion, or a neck fracture or dislocation, from such a fall. Dr. Johnson opines that Plaintiff did not suffer injuries that support a finding that a emergency "major impact" occurred. Dr. Johnson notes that the paramedics and doctors in the is apparently department did not describe bruising or contusions to Plainti ff s face or scalp, there no evidence that Plaintiff suffered a concussion, there was no fracture or dislocation of Plaintiffs of her cervical spine, and that Plaintiffs surgeons did not perform a fusion or stabilization spinal cord cervical spine. Dr. Johnson adds that persons who suffer catastrophic injuries to the Dr. Johnson typically exhibit obvious damage to the structure of the spine, but Plaintiff did not. PAGE 9 -OPINION AND ORDER of the bone and emphasizes that Plainti ffs surgery was a "laminectomy," which removed some cord. ligamentum flavum along the back of her spine in order to decompress the spinal was a bruise or Dr. Johnson notes that the only evidence of injury to Plainti ffs spine and head ffs spine. contusion of her spinal cord, but that there is no evidence of acute injury to Plainti ation Dr. Johnson reviewed the findings from Plainti ffs surgery that Plaintif f had calcific difficulty and thickening of the ligament um flavum to such an extent that the surgeon had narrowed removing it performing the laminectomy. Dr. Johnson notes that this likely further in patients with Plainti ffs spinal canal. Dr. Johnson also notes that this condition is often present the structure of OPLL and concludes that it probably represents a more general disturbance of Plainti ffs spine than just thickening of the posterior longitudinal ligament. e of Dr. Johnson opines that the critical factor in Plaintif fs outcome was the presenc have been OPLL and that in the absence ofOPL L, "it is certain that the result of the fall would ffs cervical either a trivial injury or no injury at all." ECF 66-1 at 3. The measurement of Plainti r is 10-12 spine after the fall was only 2 millimeters in diameter, whereas the typical diamete Johnson notes millimeters, demonstrating "extreme" narrowing of Plainti ffs spinal canal. Dr. that Plaintif f not that he has never seen such pronounced narrowing of the canal. He points out had thickening only had OPLL thickening her ligament along the cervical spine, but that she also injury occurred of the ligamentum flavum at the back of her spine and that Plainti ffs spinal cord and front. exactly at the point where her cervical spine was threatened from both the back of [Plaint iffs] Because Plainti ffs narrow canal was not a result of her fall and was "the state ffs narrow canal anatomy long before the events of that day," Dr. Johnson concludes that Plainti what would was the "factor that produced a permanent injury to [Plainti ffs] spinal cord from have otherwise been a trivial event." ECF 66-1at 3. PAGE JO-OPI NION AND ORDER Dr. Johnson notes that Plaintiff s OPLL was not known before her surgery and that there stiffness were only "minor clues" in her medical record-r eference s to neck and shoulder pain or in 2006 and 2007 and a recommendation at one point for neck exercises. Dr. Johnson clarifies, however, that at no point were neck complaints a primary reason for Plaintiff to visit a medical provider and that Plaintiff "had only minor and nonspecific symptoms." Id. Dr. Johnson opines that "[i]t is not unusual for OPLL to remain undetected until it g presents catastrophically after a minor injury." Id. at 3. Dr. Johnson cites to an article reviewin that studies involving 453 patients who presented with spinal cord injury with OPLL that noted the "majority" of those patients were not aware of their OPLL. Id. In his report, Dr. Johnson concludes: The injury that Ms. Chong suffered represents a tragic coincidence. She had an unrecognized condition of her cervical spine, the clues to which were so subtle as to be undetectable except in hindsight. She had minor, nonspecific symptoms that are extremely prevalent. The vast majority of people who have these symptoms do not have OPLL. ... When OPLL is found, it is frequently treated without surgery. Had [Plaintiff\ undergone an MRI prior to the injury the OPLL would have been found. However, in the absence of a history of symptoms or physical findings, it is not clear that surgery would have been recommended. When [Plaintiff\ fell, much like the patients in the studies referenced above, the otherwise minor trauma to her neck in the setting of a critically narrowed spinal canal produced an injury to her spinal cord that lead to all of the other consequences, including her hospitalization, surgery, neurological deficits, and her disability. The fall produced no other injuries except that to her spinal cord. This association between OPLL and paralysis with minor trauma is also frequently encountered. In the large review article the authors note that "Most of cervical SCI (spinal cord injuries) associated with OPLL were incomplete, without bone injury, and caused predominantly by low-ene rgy trauma." (emphasis added) (Chikuda). References to minor injuries producing devastating neurological outcomes appear throughout the literature (Yoo, Katoh). "Patients PAGE 11 -OPINIO N AND ORDER with ossification of the posterior longitudinal ligament (OPLL) sometimes present with acute spinal cord injury caused by only minor trauma." (Koyanagi). If [Plaintiff] had not fallen as it is alleged from the InvertAlign on 3/10/2012 it is entirely possible that Ms. Chong would have suffered the same outcome from another minor head or neck injury. Events such as minor automobile accidents, ground-level slip and falls, or minor head trauma like striking the head on a drawer could also have lead to her injury. Reports exist in the literature of patients with OPLL suffering from paralysis after neck massage (Cheong) or falling and landing on one's backside (Chikuda). It would be expected that Ms. Chong's OPLL would have continued to progress silently. The risk of sudden neurological symptoms would also increase with time. Given her relatively young age, it is reasonable to assume that the likelihood of minor trauma happening at some point was high. If she had not, as it is alleged, fallen from the InvertAlign there was a very high likelihood that this neurological outcome would have nonetheless occurred. I would not have been surprised if she had developed severe neurological deficits or paraplegia within a few years. The description of the incident by Ms. Chong also raises questions as to whether there was any trauma to the neck at all. There is also an indication that she may have had a "funny feeling" while inverted on the device prior to allegedly falling. It is possible that she was already exhibiting evidence of spinal cord compression at that point. With the precarious status of her cervical spinal canal it seems possible that even the process of getting into the InvertAlign, flexing or extending the neck, or transitioning to an inverted position may have been the trigger for her spinal cord injury. It is my opinion that the injuries suffered by Ms. Chong were due to the presence of her previously undiagnosed OPLL and that if a fall occurred it was incidental to the outcome. ECF 66-1 at 3-4. On September 28, 2015, Dr. Johnson issued a supplemental opinion letter ("Johnson Supplemental Report"). Before issuing this letter, Dr. Johnson reviewed the report of Dr. Jennifer Lawlor and the transcript of Dr. Andrew Nemecek's deposition. Dr. Lawlor cared for Plaintiff during her recovery. Dr. Johnson emphasizes that Dr. Lawlor indicates that "there PAGE 12-0PINIO N AND ORDER ng.'' 1 Dr. Johnson notes that this was no evidence of cervical spine fracture on diagnostic imagi injury from a fall or other finding is "highly significant" because in a typical traumatic neck patient presenting with acute accident one "would expect to see a fracture or dislocation in a spinal cord injury." 2 iffs Dr. Johnson also notes that Dr. Nemecek, who performed Plaint surgery, testified that was very severe there were no skeletal injuries to Plaint iffs spine and that her OPLL , with r testified that he had never compression on both sides of her spinal cord. Dr. Nemecek furthe Dr. Johnson reiterates that the seen a case as bad as Plaint iffs, with compression on both sides. narrowing of her spinal canal factor that produced Plaint iffs catastrophic injury was the severe preexisting and unknown caused by her OPLL. Dr. Johnson again concludes that "[i]fth is suffered [her] neurological condition had not also been present, Ms. Chong would not have trauma." Id. at 2, 3. injuries" and that "[t]he OPLL is the critical facto r-not the minor in addition to severe injury New in the Johnson Supplemental Report is the statement that experience neurological in patients with OPLL from minor trauma, there are patients who authority supporting this worsening without any trauma. Dr. Johnson does not cite to any statement. Specifically, Dr. Johnson states: Examples of patients developing severe and permanent neurological injury with OPLL from low-energy, seemingly minor ed trauma may be found throughout the medical literature. I provid are also examples of several references in my initial report. There ut patients who experience sudden neurological worsening witho onset any trauma. Since Ms. Chong testified to feeling the possible the of symptoms while using the device prior to finding hersel f on ped before she slipped floor, it is possible that the paralysis develo from the InvertAlign. 1 ECF 66-2 at I. 2 Id. PAGE 13-0P INIO N AND ORDER d to "feeling Id. at 2. In reaching this conclusion, Dr. Johnson notes that Plainti ff testifie device." Id. at 3. numbness and tingling in her body while she was using the InvertAlign C. Plaint ifrs Challenges to Dr. Johnson's Opinions l to a jury; Plainti ff argues that Dr. Johnso n's opinions; ( 1) are not relevant or helpfu (3) are an appeal for jury (2) are not based on any reliable foundation and are speculative; and n's opinions is nullification. Plainti ff also argues that the probative value of Dr. Johnso be excluded under Federal substantially outweighed by other factors and thus his opinions should ns must be excluded as Rule of Evidence 403. Because the Court finds that Dr. Johnso n's opinio does not reach Plaint iffs irrelevant, not helpful to the jury, speculative, and unreliable, the Court arguments regarding jury nullification and undue prejudice. 1. Relevance l to a jury because Plaintiff argues that Dr. Johnso n's opinions are not relevant or helpfu would have been "trivial," Dr. Johnson merely opines that without Plaint iffs OPLL her injuries catastrophic injury later and that because of her OPLL it is possible that she would have had a 3 is contrary to the welldue to some other "minor" head or neck injury. This, argues Plaintiff, ff as he finds her. See settled "eggshell plainti ff' doctrine, in which a defendant takes the plainti an actor's tortious Restatement (Fhird) of Torts: Phys. & Emot. Harm§ 31 (2010) ("When al or mental condition or conduct causes harm to a person that, because of a preexisting physic nt type than might other characteristics of the person, is ofa greater magnitude or differe all such harm to the reasonably be expected, the actor is nevertheless subject to liability for n.2 (9th Cir. 1987) ("The person."); see also Pierce v. S. Pac. Transp. Co., 823 F.2d 1366, 1372 as he finds him. Clearly the eggshell plainti ff rule simply means that a tortfeasor takes his victim 3 ECF 66-1 at 3, 4. PAGE 14 -OPIN ION AND ORDE R are physical."); eggshell plaintiff rule applies in cases in which the cause and effect of an injury 25, 2011) (noting Gresham v. Petro Stopping Ctrs., LP, 2011 WL 1748569, at *4 (D. Nev. Apr. extent of a that the eggshell plaintif f "rule subjects a negligent actor to liability for the full nt was in fact plaintif fs damages, no matter how fragile a plaintiff is, so long as the defenda ion from the negligent and some amount of harm was foreseeable" and reciting the illustrat 4 s shin causes Restatement (Second) of Torts§ 461 (1965), that where a slight kick to a person' the full extent of serious harm because of a latent infection, the kicker is subject to liability for the injuries). opinions Defendants respond that Plaintif f skips the causation aspect of Dr. Johnso n's Dr. Johnso n's and focuses instead on damages. This argument by Defendants relates only to that this opinion that Plaintif f may have become paralyzed before she fell. The Court agrees ed below in testimony may be relevant, but excludes this testimony as unreliable, as discuss not suffer a major Subsection C.2. The remainder of Dr. Johnso n's opinions are that Plaintif f did and because trauma to her spine, would have suffered only minor injuries were it not for OPLL, the future from of Plainti ffs OPLL she possibly would have suffered a catastrophic injury in L and explains some other minor head or neck injury. Dr. Johnson explains the condition ofOPL trauma into a why it was Plainti ffs OPLL that turned what would otherwise have been a minor a jury because tragic event. All of this information, however, is neither relevant nor helpful to susceptible to Defendants must take Plaintif f as she was, even if she was significantly more 597 (2001) greater injury than a "norma l" person. Cf Fuller v. Merten, 173 Or. App. 592, l This section, entitled "Harm Increased in Extent by Other's Unforeseeable Physica liability for harm to another although a Condition," states: "The negligent actor is subject to the actor makes physical condition of the other which is neither known nor should be known to n as a the injury greater than that which the actor as a reasonable man should have foresee probable result of his conduct." Restatement (Second) of Torts§ 461 (1965). 4 PAGE 15 -OPINI ON AND ORDER plainti ffs neck was ("From the evidence before the jury, it could have determined that (1) predisposed her to be more fractured in the collision, but (2) plaintiff 'had a bodily condition that that evidence, there was, at subject to injury than a person in normal health.' UCJI 70.08. Given jury would fail to award least, the very real potential that, notwithstanding causation-in-fact, the tibility to injury. That is, plaintiff damages for the neck fracture because of her peculiar suscep impact would not have there was the potential that jurors might decide that, because the same es for that injury. That fractured the neck of a 'norma l' person, plaintiff should not recover damag remedy."). is precisely the circumstance that UCJI 70.08 is designed to address and 5 she would only Dr. Johnso n's opinion that without Plaint iffs previously unknown OPLL, ants may not escape have suffered, at most, a minor injury is legally irrelevant because Defend have suffered catastrophic liability or seek reduced damages by arguing that Plainti ff would not condition she possibly injuries but for her unknown, preexisting OPLL or that because of her t engage in such 'it would would have become paralyzed anyway. Id. (noting that the jury "canno anywa y' denial or not have happened to a normal person ' or 'her neck was going to break WL 1748569, at *4 ("In discounting of damages" (emphasis added)); see also Gresham, 2011 femur broke upon her fall this case, Plainti ff anticipates that Dr. Huene will testify that Plainti ff's knee. But under the because of osteoporosis of her left femur and osteoarthritis in her left was foreseeable, they are Restatement, so long as Defendants were negligent and some injury injuries was not liable for the entire extent of Plainti ff's injuries even ifthe extent of those been Orego n's Uniform Civil Jury Instruction ("UCJI") 70.08 has subsequently ndant] had a bodily renumbered to UCJI 70.06 and states: "If you find that the [plaintiff/defe a person in normal health, condition that predisposed [him/her] to be more subject to injury than injuries and damage that nevertheless the [plaintiff/defendant] would be liable for any and all result of the negligence of the may have been suffered by the [plaintiffi'defendant] as the on, may have been [plaintiffi'defendant], even though those injuries, due to the prior conditi the same greater than those that would have been suffered by another person under circumstances." 5 PAGE 16-0P lNION AND ORDE R injury, but not as foreseeable. The Court will exclude the testimony as to the extent of Plainti ffs not be to causation of the fall. Evidence that a preexisting condition caused the fall will a minor trauma, excluded."). Accordingly, Dr. Johnso n's opinions that Plaintif f suffered only y would have would not have suffered significant injury were it not for her OPLL, and possibl become paralyzed at some point in the future are stricken and disallowed. 2. Reliability become Plaintif f argues that Dr. Johnso n's opinions that Plaintiff possibly may have later paralyzed before paralyzed from some other minor head or neck injury and that Plaintif f became she fell should be excluded as unreliable and speculative. The Court agrees. InvertAlign, The Johnson Report concludes that if Plaintif f had not been injured using her to some other it is possible that Plaintif f eventually would have become paralyzed anyway due ul to the jury minor head or neck injury. The Court already has found this testimony to be unhelpf also finds it to be based on the "eggshell" plaintiff rule and excludable on that basis. The Court unreasonably speculative. Plaintif f During his deposition, Dr. Johnson testified that the percentage likelihood that "non-zero," but he would have suffered a trauma to her spinal cord that resulted in paralysis was ic basis for this could not provide a more precise percentage, and he could not offer a scientif things are conclusion because it "is all speculation" and in dealing with human beings "these 6 from some other unknowable." Although it may be that Plaintif f eventually might have suffered begun exhibiting injury that might have caused paralysis, it is also possible that she might have surgery before symptoms from her OPLL, underwent diagnostic imaging, and had corrective 6 ECF 66-3 at 27 (Dr. Johnso n's deposition transcript at I 02:7-25). PAGE 17 -OPINI ON AND ORDER 7 of confidence or some other injury caused paralysis. It is not possible to know with any degree medical probability what would have happened were it not for Plainti ffs experie nce on the 8 "possible" that InvertAlign on March 10, 2012. Accordingly, Dr. Johnson's opinion that it was and Plaintiff might have become paralyzed at some point in the future is speculative insufficiently reliable, and thus inadmissible. Plaintif f Similarly, the Court finds that Dr. Johnso n's broad statements in his reports that and unreliable. In may have become paralyzed before falling from her InvertAlign is speculative "expressly for the considering this opinion by Dr. Johnson, the Court notes that it was developed treated patients purposes of testifying." Daubert II, 43 F.3d at 1317. Although Dr. Johnson has ing spontaneous with OPLL, he has not identified any study or article he was involved in discuss le evidence that paralyzation caused by OPLL. Thus, the Comt looks for "any objective, verifiab , the policy the testimony is based on scientifically valid principles," such as "a learned treatise ic statement of a professional association, a published article in a reputable scientif Court does not find journal ... ."Domi ngo, 289 F.3d at 605-06 (quotation marks omitted). The any such objective, verifiable evidence. with OPLL In his reports, Dr. Johnson discusses medical literature showing that patients 9 , however, can have devastating neurological outcomes from only minor trauma. Dr. Johnson that See, e.g., ECF 66-3 at 26 (Dr. Johnson's deposition transcript at 97:6-20) (noting a catastrophic injury). surgery would have reduced the risk of Plaintiff having 7 Although Defendants dispute that Plaintif f fell due to a defective design on the before becoming Inver!Align, they do not dispute that she was on the InvertAlign immediately ed, and was paralyzed. For example, they do not contend that she fell elsewhere, became paralyz moved and positioned onto the InvertAlign. 8 9 ECF 66-1 at 3-4; 66-2 at 2. PAGE 18-0PI NION AND ORDER ence involving does not discuss in his reports any article, study, or personal patient experi paralysis or devastating neurological outcomes from no trauma. n's Defendants argue that one article cited by Dr. Johnson supports Dr. Johnso conclusion. The relevant section of this atticle states: Spontaneous neurological deterioration was also found in patients who had not suffered any kind of trauma, although such an occurrence was rare. Among those without trauma, 16 patients whose [residual AP diameter] was less than !Omm and who had been treated conservatively, five showed spontaneous neurological deterioration mainly due to progression of OPLL itself, whereas only two out of34 patients whose [residual AP diameter] was 1Omm or more, had neurological deterioration. ogical Outcome in S. Katoh, et al., "Influence of Minor Trauma to the Neck on the Neurol ) of the Cervical Patients with Ossification of the Posterior Longitudinal Ligament (OPLL ts the fact that even without Spine," 33 PARAPLEGIA, at 330-333 (June 1995). This excerpt suppor d neurological trauma, some patients with OPLL who were conservatively treated suffere " of OPLL. It does not, deterioration without associated trauma, mainly due to the "progression y paralyzed without ever however, support a conclusion that a patient can become spontaneousl . having had any symptom of OPLL and without having suffered any trauma became During his deposition, Dr. Johnson testified that he had patients who ning clarified that they had spontaneously paralyzed without any trauma, but upon further questio identified some worsening symptoms over a period of days to weeks and that they usually incident, such as a fall, that triggered their pet'iod of decline. 10 Dr. Johnson offered no example e paralyzed from from his experience treating OPLL of a patient who instantaneously becam ng any trauma. OPLL without having shown any previous symptoms and without sufferi 10 ECF 66-3 at 33 (Dr. Johnso n's deposition transcript at 126:10-128:2). PAGE 19-0P INION AND ORDE R little evidence of trauma Defendants argue that Dr. Johns on's opinion demonstrates how r argue supports Dr. Johns on's there was from Plaint iffs alleged fall, which Defendants furthe findings by Dr. Johnson, finding that a fall may not have caused Plaint iffs injury. These ed minor, as oppos ed to major, however, are made in support of his opinion that Plaint iff suffer therefore a result of her OPLL trauma from her fall and that Plaint iffs catastrophic injury was the "eggs hell" aspect of and not a traumatic injmy from a fall. These opinions relate to resulted in catastrophic injuries Plain tiff-th at she had an unknown, preexisting condition that only trivial injurie from what in Dr. Johns on's opinion otherwise would have caused s. transcript of Further, although Dr. Johnson states that he read the deposition Supplemental Report, Dr. Johnson Dr. Nemecek, Plaint iffs surgeon, before issuing the Johnson ony that Plaint iff did have does not address in his Supplemental Report Dr. Neme cek' s testim ed that Plaint iffs spinal cord evidence of a serious injury to her spinal cord. Dr. Nemecek testifi spinal cord" ; that what was inflamed, red, and swollen, all indicating "a very injured ly injured"; and that Plaint iffs Dr. Neme cek saw in surgery was a "spinal cord that looked horrib that the swelling was "very MRI showed that her "spinal cord was extremely swollen" and 11 disputed that Plaint iffs spinal acute ... very new" and not "chronic swelling." Dr. Nemecek when the spinal cord is cord injury on her MRI was from her chronic OPLL, noting that of extreme swelling occurs and compressed chronically for long periods of time, the "opposite" the spinal cord shrinks. 12 of The Johnson Supplemental Report quotes from other portions sing Plain tiffs spinal cord Dr. Neme cek's testimony, but does not address the portions discus d not disagree" with these injury. Durin g his deposition, Dr. Johnson testified that he "woul 11 14:16-15:12, 15:19-16:3, See ECF 66-5 at 3, 4 (Dr. Neme cek's deposition transcript at 22:2-13). 12 Id. at 4 (Dr. Neme cek's deposition transcript at 22:7-11). PAGE 20 -OPIN ION AND ORDE R observations of Dr. Nemecek made at the time of surgery. 13 Dr. Johnson also testified during his deposition that Plainti ffs MRI imaging indicated an acute trauma. 14 Yet the Johnson the conclusion that Supplemental Report does not provide any basis for how Dr. Johnson reaches ed before Plaintiff did not suffer any trauma to her spinal cord and may have become paralyz g acute falling, despite this testimony by Dr. Nemecek and Plainti ffs MRI imaging showin trauma. Defendants generally argue that Dr. Johnson's knowledge and experience as a r, only "if the neurosurgeon renders his opinions reliable. An expert opinion is reliable, howeve of the relevant knowledge underlying it has a reliable basis in the knowledge and experience ion marks discipline." Pomona, 750 F.3d at 1044 (citing Primiano, 598 F.3d at 565) (quotat orted omitted). "[T]he word 'knowledge' connotes more than subjective belief or unsupp speculation." Daubert, 509 U.S. at 590. ing went During his deposition, Dr. Johnson testified that it was "possible" that someth was "probable." wrong with Plainti ffs spinal cord before her fall, although he would not say it 15 ed "I don't When asked ifhe held this opinion to a reasonable medical probability, he respond know." 16 ed Dr. Johnso n's equivocal testimony that he did not know if Plaintif f became paralyz t to his before falling and that it was only "possible" and not "probable" is in notable contras from her fall. testimony that without Plainti ffs OPLL she would have suffered only minor injury 13 ECF 66-3 at 24 (Dr. Johnson's deposition transcript at 91:16-92:2). 14 Id. at 21 (Dr. Johnso n's deposition transcript at 77: 19-78:3). 15 See id. at 18-19 (Dr. Johnson's deposition transcript at 65:19-69:4). 16 Id. at 24 (Dr. Johnson's deposition transcript at 91:8-91:12). PAGE 21-0PI NION AND ORDER Dr. Johnson responded When asked ifhe held that opinion to reasonable medical probability, "yes."11 ing neurol Dr. Johnson further testified that his only piece of evidence that someth ogical that Plainti ff stated that was happening to Plainti ff before the fall was the third-party testimony she was feeling numbness and tingling in her legs before falling. 18 Plainti ff disputes this fact, witness stated that noting that Plainti ff has denied making any such statement and that no ff had a "funny Plainti ff suffered from "numbness and tingling," but merely that Plainti feeling." 19 n provides no Assuming that Plainti ff did state that she had a "funny feeling," Dr. Johnso paralyzed after a "funny examples, however, of persons with OPLL becoming spontaneously ology or scientific basis feeling," or even feeling numbness and tingling, or any reasoned method y paralyzed from her from which he concluded that Plainti ff could have become spontaneousl ted numbness and tingling OPLL. Dr. Johnson instead testified that even absent Plaint iffs purpor don't know .... we don't it was "possible" something went wrong before her fall because "[w]e have a video. We don't have a witness. So as I say it is possible." 20 e paralyzed and Dr. Johnso n's opinion that it is "possible" Plaintiff could have becom is unreasonably then fell from her InvertAlign does not rest on sufficient facts or data, z-Brault v. Missouri speculative, and is not helpful to a jury, at least without more. See Guidro 17 See id. at 19 (Dr. Johnso n's deposition transcript at 71:3-13). 18 Id. at 18 (Dr. Johnso n's deposition transcript at 65:19-68:6). feeling before The Comt notes that in her deposition Plaintiff denied having any such n was a third party testifying that she fell and that the specific evidence reviewed by Dr. Johnso shmtly after her fall Plainti ff said she had a "funny feeling" before falling. 19 20 ECF 66-3 at 18 (Dr. Johnso n's deposition transcript at 68: I 0-14). PAGE 22 -OPIN ION AND ORDE R Pac. R. Co., 254 F.3d 825, 830-31 (9th Cir. 2001) (affirming the exclusion of expert testimony where the testimony did "was not sufficiently founded on facts"); Chilcote v. Fireman's Fund Ins. Co., 2007 WL 7724579, at *3 (D. Mont. Nov. 30, 2007) (excluding the defendant's medical expert and noting that "a medical opinion expressed in terms of 'doubt' invites speculation that would not assist the trier of fact and is not otherwise sufficiently certain to meet Rule 702 's standards for admissibility"). The only relevant facts or data relied on by Dr. Johnson is that Plaintiff had an extreme case of OPLL and purportedly had a "funny feeling" and from that he concluded that it was possible, although not probable, that Plaintiff became spontaneously paralyzed, but with the caveat that Dr. Johnson really cannot know. This is insufficient. Although 21 medical opinions need not be "conclusive," they must still have a sufficient foundation. Primiano, 598 F.3d at 566. The cases relied on by Defendants in encouraging the Court to exercise its discretion to admit Dr. Johnson's speculative opinion that it is "possible" that Plaintiff became paralyzed before she fell from her InvertAlign are either distinguishable or inapposite. First, Defendants cite Johns v. Bayer Corp., 2013 WL 1498965, at *10 (S.D. Cal. Apr. 10, 2013). Defendants quote from a portion of an expert's opinion noting that a certain supplement "potentially may" be 21 Even if Dr. Johnson could cite to medical articles or studies showing that persons with OPLL can become paralyzed without any previous symptoms or triggering trauma (minor or otherwise), his opinion still may not be relevant or helpful to a jury in this case. Without evidence that a paralyzed person could fall out of the InvertAlign, a hypothetical ability to become paralyzed from being inve1ted may not be an appropriate "fit" to the facts of the case. Daubert, 509 U.S. at 591) (noting that the expert opinion must "fit" the facts of the case and serve a "helpful" purpose to the jury). Defendants have not offered any such evidence or argument and, to the contrary, argued in their supplemental brief that Plaintiffs left leg came out of her InvertAlign and then Plaintiff"struggled to get out of the machine." ECF 75 at 11. "Struggling" to get out is inconsistent with becoming paralyzed and then falling out of the machine while immobile. Regardless, what is before the Court is Dr. Johnson's opinion that it is possible that Plaintiff became paralyzed from being inve1ted without having any previous symptoms from her OPLL and without first suffering any trauma. That opinion is not sufficiently reliable or helpful to a jury. PAGE 23 -OPINIO N AND ORDER that although toxic if consumed in large amounts and then quote a later conclusion by the court such disputes are the challenging party may disagree with the ultimate conclusions of the expert, court in Johns better attacked through rigorous cross-examination. Defendants argue that the The expert admitted the expert testimony despite the opinion being couched as a "possibility." the contrary, the testimony, however, was not challenged as being unreasonably speculative. To expert himself challenge that the court rejected as better left for cross examination was that the s on this point was: required a too-demanding burden of proof. The entirety of the court's analysi Bayer's remaining two objections are also easily dispatched. First, Bayer contends Dr. Milman 's testimony is unreliable because he demands application of a "definitive proof' standard that has no basis in the scientific community. However, contrary to Bayer's contentions, Dr. Milman 's report does not assert that definitive proof from a well-controlled randomized clinical trial ("RCT" ) is required in this case, but does, as does Dr. Blumberg (Bayer 's science expe1t), recognize the importance ofRCT s in the area of nutritional science. Thus, although Bayer may disagree with Dr. Milman 's ultimate conclusions, these findings are properly attacked through rigorous crossexamination and the presentation of contrary evidence, not exclusion. See Primiano, 598 F.3d at 564. . Id. Accordingly, this case does not support admission of Dr. Johnso n's opinion *2 (9th Cir. Defendants next rely on Huffv. Wal-Mart Stores, Inc., 1999 WL 1206845, at on of the testimony Dec. 15, 1999). In Huff, the Ninth Circuit affirmed the district court's admissi the fall that of the plaintif fs treating physician, who treated the plaintif f both before and after iary ruling allegedly caused her pain. The Ninth Circuit upheld the district court's evident "that after because the doctor had "clearly delimited his testimony" and "candidly" testified for the plaintif fs extensive differential diagnosis he could not point to an objective medical basis to reveal any pain." Id The Ninth Circuit noted that the fact that imaging and other tests "failed ] conclusions precise physiological cause of Huffs leg complaints does not reduce [the doctor's court's exercise based on that evidence to non-scientific 'specul ation."' Id Affirming the district PAGE 24 -OPIN ION AND ORDER of discretion to admit testimony from a treating physician who testified regarding a patient who did not have pain, had a fall, and then had pain but without any objective medical basis for that pain does not support admitting Dr. Johnson's testimony that it is possible Plaintiff became spontaneously paralyzed. The next case cited by Defendants is Salazar v. A&J Const. ofMont., Inc., 2012 WL 4092421, at *8-9 (D. Mont. Sept. 17, 2012). In Salazar, the defendant challenged the testimony by one of the plaintiffs experts that the defendant characterized as opining that future medical treatment "possibly" would be needed. Id. at *8. The court found, however, that the defendant had mischaracterized the relevant testimony, which the court found was testified to on a "more probable-than-not or similar basis" and thus was admissible. Id. at *9. This case is inapposite, as Dr. Johnson did not opine that it was more probable than not that Plaintiff became paralyzed before she fell. The final case relied on by Defendants is Sullivan v. U.S. Dep 't ofNavy, 365 F.3d 827 (9th Cir. 2004). In that case, the Ninth Circuit found the district court had abused its discretion in excluding the testimony of a medical expert who opined that "an abnormally long back operation substantially increased the risk of complications including wound infection and skin necrosis ... ."Id. at 833-34. The Ninth Circuit held that the testimony was reliable because it was supported by four textbooks to which the expert referred. This case does not support a finding that Dr. Johnson's testimony is reliable, because Dr. Johnson did not refer to articles, textbooks, or any other objective findings that a person can become instantaneously paralyzed from OPLL without suffering any symptoms or without first experiencing any trauma. Dr. Johnson provides no reliable basis from his experience as a neurosurgeon nor any studies or articles in the relevant medical literature supporting a finding that Plaintiff became PAGE 25 -OPINION AND ORDER instantly paralyzed merely from being inve1ted and then fell out of her InvertAlign, already paralyzed. Although the Coutt will not act as a factfinder or weigh the impeachability of an expert's conclusions, Pomona, 750 F.3d at 1044, the Court must exclude evidence that is not based on sufficient facts or data, is not helpful to a jury, or is unreasonably speculative. Fed. R. Evid. 702. Accordingly, the Court excludes Dr. Johnson's opinion that it is possible that Plaintiff became paralyzed before she fell from her InvertAlign. CONCLUSION Plaintiffs Motion to Strike the expert reports of Dr. Jeffrey Johnson (ECF 65) is GRANTED. The Johnson Report and Johnson Supplemental Report are stricken and excluded from use at trial. Further, neither Dr. Johnson nor any other witness may testify regarding the opinions expressed in Dr. Johnson's repo1ts at trial. IT IS SO ORDERED. DATED this 10th day of August, 2016. Isl Michael H. Simon Michael H. Simon United States District Judge PAGE 26-0PINION AND ORDER
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