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Thompson v. United States

United States District Court, S.D. Georgia, Savannah Division

January 9, 2019




         This 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.)


         Plaintiffs 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.[1] (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.)

         One 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.”[2] (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.)

         On 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.)

         On 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 diagnosis. (Id.)


         I. Motion to Exclude Expert Testimony of Dr. Summers (Doc. 15)

         Dr. 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.)

         Defendant 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.)

         In 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 26. (Id.)

         In its 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.)

         A. Legal Standard

         In 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 methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702.

         The 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.

         For the 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).

         Consequently, 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 original).

         Third, 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).

         Lastly, 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.”).

         B. 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 Vertigo

         Defendant 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).

         Although 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 ...

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