United States District Court, S.D. Georgia, Savannah Division
STAN BAKER UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant's Motion to
Exclude Expert Testimony and for Partial Summary Judgment.
(Doc. 15.) Plaintiffs responded in opposition, (doc. 21), and
Defendant filed a Reply, (doc. 23). For the reasons and in
the manner set forth below, the Court GRANTS
Defendant's Motion to Exclude Expert Testimony and for
Partial Summary Judgment. (Doc. 15.)
brought this Federal Tort Claims Act, 28 U.S.C. §§
1346, 2671 et seq. (“FTCA”), case on
March 31, 2017, for injuries Plaintiff Helen Thompson
(“Plaintiff” or “Mrs. Thompson”)
allegedly suffered due to an accident involving a United
States Postal Service mail truck. (Doc. 1.) Plaintiffs allege
that, on November 24, 2014, a mail truck backed into Mrs.
Thompson's right side, knocking her to the ground, as she
was retrieving her mail. (Id.) An ambulance arrived
at the scene and took Mrs. Thompson to Memorial Health
University, where she principally complained of pain to her
right arm. (Doc. 15-15, p. 2; doc. 21-2, p. 2.) There she was
diagnosed with contusions of her right shoulder, knee, and
chest wall, as well as a knee abrasion; Mrs. Thompson later
determined that she also injured her head and has scarring as
a result, although at the time of the incident she did not
believe that she had hit her head. (Id.; see
also doc. 15-3.) Prior to this incident, Mrs. Thompson
had never experienced any right shoulder pain or reduced
range of motion, nor had she ever experienced any of the
difficulties with balance that she later developed. (Doc.
21-1, p. 2.)
week after the accident, Mrs. Thompson saw an orthopedist who
referred her for an MRI. (Doc. 15-15, p. 2; doc. 21-2, p. 2.)
The MRI, performed on December 12, 2014, revealed a massive
rotator cuff tear involving the supraspinatus and
infraspinatus tendons. (Id.) Dr. James Wilson, Jr.,
an orthopedic surgeon specializing in shoulders, reviewed the
MRI and determined that Mrs. Thompson, as an 81-year-old,
“likely had some degree of rotator cuff tearing in the
supraspinatus tendon but when she fell over split it
further.” (Id.; doc. 15-5, p. 5.) During
December of 2014, Mrs. Thompson also saw her primary care
physician-and challenged expert witness in this case-Dr.
Roland Summers on four different occasions. (Doc. 15-15, p.
3; doc. 21-2, p. 3.) While Dr. Summers did not personally
provide any individual treatment for Mrs. Thompson's
shoulder injury, he did ensure “she got to the right
people and got care.” (Doc. 21-2, p. 2.) He has opined
that being struck and knocked down by a mail truck
“caused or at least contributed to” Mrs.
Thompson's torn rotator cuff. (Doc. 21-1, p. 4.)
January 28, 2015, just over two months after the accident,
Plaintiff sought treatment from Dr. Summers for unsteadiness
and staggering when changing positions, which she had been
experiencing over the prior three to four weeks. (Doc. 15-5,
p. 3; doc. 21-2, p. 3.) Mrs. Thompson had not complained of
these symptoms during her four December 2014 visits with Dr.
Summers. (Id.) Dr. Summers was unclear as to the
etiology of Mrs. Thompson's symptoms, but thought she
might be suffering from a form of labyrinthine irritation, or
a cerebellar lesion, or possibly gadolinium toxicity, and he
ordered a brain MRI to further understand the cause of her
symptoms. (Id.) He also prescribed Mrs. Thompson
Antivert, a medication to help her deal with her balance
problems. (Id.) Early medical records show that Dr.
Summers initially believed she was suffering from
labyrinthitis; these records also show that Mrs.
Thompson's condition improved with continued Antivert
prescriptions. (Id.) After the MRI revealed no
significant findings, Dr. Summers referred Mrs. Thompson for
an electronystagmogram (“ENG”) on February 3,
2015, to further investigate the source of her inability to
keep her balance. (Id.) The record is unclear as to
the results of Mrs. Thompson's ENG, but following this
diagnostic test Dr. Summers had Mrs. Thompson undergo further
diagnostic testing in the form of an audiometric and
videonystagmograph (“VNG”). Like with Mrs.
Thompson's rotator cuff tear, Dr. Summers opined that her
fall caused, or at least contributed to, the balance
difficulties she began experiencing. (Doc. 21-1, p. 4.)
February 27, 2017, Mrs. Thompson underwent the VNG at St.
Joseph's/Candler, which revealed right peripheral
vestibular weakness, right posterior canal benign paroxysmal
positional vertigo (“BPPV” or
“vertigo”), and hearing loss. (Doc. 15-5, p. 3;
doc. 21-2, p. 3.) Mrs. Thompson returned to see Dr. Summers
on March 2, 2015, and he referred her to Dr. J. Robert Logan,
an otolaryngologist, for vestibular rehabilitation to treat
her BPPV. (Doc. 15-15, p. 4; doc. 21-2, p. 3.) In addition to
vestibular rehabilitation, Dr. Logan preformed an Epley
maneuver-involving manipulation of the ear and body-to flush
out microscopic particles from Mrs. Thompson's ear canal
and return the fluid there to a normal weight. (Id.)
After attending a single therapy session on March 23, 2015,
Mrs. Thompson temporarily moved from the Savannah area but
expressed that she would follow up upon her return if needed.
(Id.) However, there is no record that Mrs. Thompson
sought any further treatment related to her vertigo
Motion to Exclude Expert Testimony of Dr. Summers (Doc.
Summers is Mrs. Thompson's longtime primary care
physician, who has seen her on a regular basis approximately
every three months for the last few years. (Doc. 21-1, p. 4.)
Following the mail truck accident on November 24, 2014, Mrs.
Thompson first visited Dr. Summers on December 9, 2014. (Doc.
15-15, p. 3; doc. 21-2, p. 3.) As described above, she saw
him for several follow-up appointments thereafter regarding
treatment for her injuries. Based on his practice experience,
training, treatment of Mrs. Thompson, and the information she
offered him, Dr. Summers testified that he believes, to a
reasonable degree of medical certainty, that her being struck
and knocked down by the mail truck “caused or at least
contributed to” her torn rotator cuff and vertigo.
(Doc. 15-8, p. 26.)
argues that Dr. Summers' expert testimony on the cause of
Mrs. Thompson's rotator cuff injury and vertigo should be
excluded for two reasons: 1) Dr. Summers lacks the necessary
qualifications to opine on the cause of these conditions; and
2) Dr. Summers did not support his causation opinions as to
these conditions with reliable methodology. (Doc. 15, pp. 5-
19.) As such, Defendant contends Dr. Summers' proposed
expert testimony fails to satisfy the expert evidentiary
demands as set forth by the United States Supreme Court in
Daubert. Further, regarding the torn rotator cuff
specifically, Defendant argues Dr. Summers' testimony as
a treating physician should be excluded because he was not
retained as an expert and his opinion exceeds the scope of
his treatment. (Id. at pp. 14-15.)
response, Plaintiffs contend Dr. Summers had a sufficiently
reliable basis upon which to form an admissible opinion.
(Doc. 21-1, pp. 8-10.) Plaintiffs point to his training,
certifications, and experience with similar cases.
(Id.) Moreover, Plaintiffs argue Dr. Summers'
causation opinions were not solely based on the close
temporal relationship between the mail truck accident and
Mrs. Thompson's injuries; they contend Dr. Summers
considered his firsthand observations, the reliability and
specificity of Mrs. Thompson's statements, results of her
MRI, that she struck her head, his test of her for lateral
horizontal nystagmus, her positive response to his Antivert
prescription, and his role in referring her to other doctors.
(Id.) Plaintiffs additionally aver that Dr.
Summers' opinions were properly limited to his care and
treatment of Mrs. Thompson and thus not subject to the expert
disclosure requirements of Federal Rule of Civil Procedure
Reply, Defendant reiterates Dr. Summers' causation
opinions should be excluded for a lack of a reliable basis,
because they improperly rely on temporal proximity. (Doc. 23,
pp. 2-4.) Defendant also contends that, notwithstanding Dr.
Summers' treatment of Mrs. Thompson, his opinions as to
causation exceed the scope of permissible lay testimony and
must satisfy the demands of Daubert and Federal Rule
of Evidence 702, regardless of Federal Rule of Civil
Procedure 26. (Id. at pp. 1-2.) Defendant avers Dr.
Summers' testimony cannot meet these demands, despite
Plaintiffs' attempts to discern additional factors from
Dr. Summers' deposition in support of his causation
opinions. (Id. at pp. 2-4.)
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), the United States Supreme Court interpreted
Federal Rule of Evidence 702 (“Rule 702”), which
governs expert testimony. The Supreme Court stated that Rule
702 “compels the district courts to perform the
critical ‘gatekeeping' function concerning the
admissibility of expert scientific evidence.”
United States v. Frazier, 387 F.3d 1244,
1260 (11th Cir. 2004) (emphasis in original) (citing
Daubert, 509 U.S. at 589 n.7, 597). The Supreme
Court later held that “Daubert's general
holding-setting forth the trial judge's general
‘gatekeeping' obligation-applies not only to
testimony based on ‘scientific' knowledge, but also
to testimony based on ‘technical' and ‘other
specialized' knowledge.” Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 141 (1999) (citing Fed.R.Evid.
702). Having adopted these decisions, amended Rule 702
provides as follows:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702.
Court of Appeals for the Eleventh Circuit has established a
three-pronged inquiry encompassing the requirements of
Daubert and its progeny and Rule 702. Under this
inquiry, a court determining the admissibility of expert
testimony must consider whether:
(1) the expert is qualified to testify competently regarding
the matters he intends to address; (2) the methodology by
which the expert reaches his conclusions is sufficiently
reliable as determined by the sort of inquiry mandated in
Daubert; and (3) the testimony assists the trier of
fact, through the application of scientific, technical, or
specialized expertise, to understand the evidence or to
determine a fact in issue.
Frazier, 387 F.3d at 1260 (citations omitted). The
proponent of the expert opinion bears the burden of
establishing qualification, reliability, and helpfulness by a
preponderance of the evidence. Daubert, 509 U.S. at
592, n.10. The ultimate objective of a court's
Daubert gatekeeping function is “to make
certain that an expert, whether basing testimony upon
professional studies or personal experience, employs in the
courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant
field.” Kumho Tire, 526 U.S. at 152.
first prong, “experts may be qualified in various ways.
While scientific training or education may provide possible
means to qualify, experience in a field may offer another
path to expert status.” Frazier, 387 F.3d at
1260-61; see also Fed.R.Evid. 702 (A witness may be
qualified as an expert by “knowledge, skill,
experience, training, or education.”). In determining
qualification, courts generally look to a proposed
expert's education and experience and ask whether the
witness's intended testimony is sufficiently within his
or her area of expertise. Maiz v. Virani, 253 F.3d
641, 665 (11th Cir. 2001). However, “the unremarkable
observation that an expert may be qualified by experience
does not mean that experience, standing alone, is a
sufficient foundation rendering reliable any
conceivable opinion the expert may express.”
Frazier, 387 F.3d at 1261 (emphasis in original).
the second prong, reliability, “remains a discrete,
independent, and important requirement for
admissibility.” Id. The Supreme Court in
Daubert “set out a list of ‘general
observations' for determining whether expert testimony is
sufficiently reliable to be admitted under Rule 702.”
United States v. Brown, 415 F.3d 1257, 1267 (11th
Cir. 2005) (citation omitted). These factors or observations
inquire into the expert's “theory or
technique” and are: “(1) whether it can be (and
has been) tested; (2) whether it has been subjected to peer
review and publication; (3) what its known or potential rate
of error is, and whether standards controlling its operation
exist; and (4) whether it is generally accepted in the
field.” Id. (citation omitted).
“Sometimes the specific Daubert factors will
aid in determining reliability; sometimes other questions may
be more useful. As a result, ‘the trial judge must have
considerable leeway in deciding in a particular case how to
go about determining whether particular expert testimony is
reliable.'” Frazier, 387 F.3d at 1262
(quoting Kumho Tire, 526 U.S. at 152).
“Indeed, the Committee Note to the 2000 Amendments of
Rule 702 expressly says that, ‘[i]f the witness is
relying solely or primarily on experience, then the witness
must explain how that experience leads to the
conclusion reached, why that experience is a sufficient basis
for the opinion, and how that experience is reliably applied
to the facts.'” Id. at 1261 (emphasis in
expert opinion testimony must assist the trier of fact.
“By this requirement, expert testimony is admissible if
it concerns matters that are beyond the understanding of the
average lay person.” Id. at 1262 (citation
omitted). Proffered expert testimony generally will not help
the trier of fact when it offers nothing more than what
lawyers for the parties can argue in closing arguments.
Cook v. Sheriff of Monroe Cty., 402 F.3d 1092, 1111
(11th Cir. 2005).
treating physicians, such as Dr. Summers, must satisfy these
requirements when their testimony goes beyond discussing
their treatment and diagnosis of a patient and extends into
the fields of causation and etiology. United States v.
Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005)
(citations omitted) (treating physician's diagnosis of
jaw fracture is permissible lay opinion but statement as to
cause of fracture was expert opinion); see also Wilson v.
Taser Int'l, Inc., 303 Fed.Appx. 708, 712 (11th Cir.
2008) (“Although we agree that a treating physician may
testify as a lay witness regarding his observations and
decisions during treatment of a patient, once the treating
physician expresses an opinion unrelated to
treatment which is ‘based on scientific, technical, or
other specialized knowledge,' that witness is offering
expert testimony for which the court must perform its
essential gatekeeping function as required by
Daubert.”) (per curiam) (emphasis in
original); Rangel v. Anderson, 202 F.Supp.3d 1361,
1364 (S.D. Ga. 2016) (“Treating physicians not
disclosed as experts are limited to testimony based on
personal knowledge and may not testify beyond their treatment
of a patient.”).
Dr. Summers' Opinion That the Mail Truck Incident Caused
Mrs. Thompson's Vertigo (1) Whether Dr. Summers is
Qualified to Opine on the Cause of Mrs. Thompson's
asserts that because Dr. Summers lacks adequate training,
skill, and experience in the field of otolaryngology, he does
not have the qualifications to opine on the cause of Mrs.
Thompson's vertigo. (Doc. 15, pp. 7-8.) Plaintiffs argue
that Dr. Summers' more than forty years of professional
experience and general medical training qualify him to give
this opinion, (doc. 21-1, pp. 4, 9), but Defendant counters
that a medical degree does not qualify a doctor to opine on
causation without some degree of specialized knowledge, (doc.
15, p. 8).
the Eleventh Circuit has not held that physicians must have a
specialty in the relevant field to qualify as an expert, the
area of the witness's expertise must align with the
subject matter of the witness's testimony. See United
States v. Paul, 175 F.3d 906, 912 (11th Cir. 1999)
(excluding law professor's handwriting analysis
testimony, even though the professor had written on the
topic, because his relevant expertise as a lawyer “did
not make him any more qualified to testify as an expert on
handwriting analysis than a lay person who read the same
articles”); accord Berry v. City of Detroit,
25 F.3d 1342, 1351 (6th Cir. 1994) (“The issue with
regard to expert testimony is not the qualifications of a
witness in the abstract, but whether those qualifications
provide a foundation for a witness to answer a specific
question.”). Furthermore, general expert knowledge may
form a sufficient basis for testimony concerning related
applications. United States v. Wen Chyu Liu, 716
F.3d 159, 168-69 (5th Cir. 2013) (expert witnesses not
“strictly confined” to practice area); United
States v. Hensel, 711 F.2d 1000, 1006 (11th Cir. 1983)
(expert witness with extensive experience investigating fires
on land may testify as ...