United States District Court, W.D. Texas, San Antonio Division
ORDER DENYING MOTION TO EXCLUDE AND/OR LIMIT EXPERT
TESTIMONY OF JOHN S. TOOHEY, M.D.
RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE.
the Court is the Motion to Exclude and/or Limit the Testimony
of John S. Toohey, M.D., filed by Plaintiff Benjamin Koenig
[#106]. This case was assigned to the undersigned for
disposition of all pre-trial matters, pursuant to Rules CV-72
and 1(c) of Appendix C of the Local Rules of the United
States District Court for the Western District of Texas
[#115]. The Court has diversity jurisdiction over this case
pursuant to 28 U.S.C. § 1332, and the undersigned has
authority to enter this order pursuant to 28 U.S.C. §
636(b)(1)(A). See, e.g., Target Strike, Inc. v.
Marston & Marston, Inc., No. SA-10-cv-0188-OLG-NN,
2011 WL 676185, at *1 (W.D. Tex. Feb. 16, 2011) (noting
magistrate judge's § 636(b) authority to rule on
motions to exclude expert testimony, which are
non-dispositive). Having considered Plaintiff Koenig's
motion, Defendant Anthony Beekmans' response [#100], the
relevant law, and the pleadings, the Court
DENIES the Motion to Exclude and/or Limit
the Testimony of John S. Toohey, M.D. [#106]. The criticisms
of Dr. Toohey's testimony raised in Koenig's motion
can be addressed at trial through cross-examination or by
introducing rebuttal testimony from an opposing expert.
personal injury lawsuit arises from an October 2, 2013
head-on car accident involving Koenig and Beekmans. Koenig
asserts claims for negligence and negligence per se, and
seeks damages from Beekmans in excess of $1 million. It is
undisputed that, as a result of the accident, Koenig
sustained (and was treated for) a fractured sternum as well
as a compression-type fracture of the L1 disc in his spine.
(See [#106-1]). The parties, however, dispute
whether the collision also caused Koenig to suffer a
traumatic brain injury and a herniated L5-S1 disc.
designated Dr. John S. Toohey, a board-certified orthopedic
surgeon, to offer an expert opinion regarding the nature,
extent, and cause of Koenig's spinal injuries, as well as
about the necessity for and cost of future medical treatment.
(See [#50], [#106-1]). Koenig's motion does not
attack Dr. Toohey's qualifications or the relevance of
his testimony; it instead focuses solely on the issue of
Koenig's urges exclusion or limitation of Dr.
Toohey's testimony because Dr. Toohey's opinions on
the following topics are, according to Koenig, conclusory,
speculative, and unreliable:
(1) whether Koenig suffers from lumbar spondylosis that
pre-dates the accident, rather than an acute herniated disc
caused by the accident;
(2) whether future medical treatment for Koenig's alleged
L5-S1 disc injury is required; and
(3) whether the costs associated with the anterior lumbar
interbody fusion recommended by Koenig's treating
surgeon, Dr. Bruggeman, should not exceed $100, 000.
challenges to the admissibility of Dr. Toohey's expert
testimony are governed by Federal Rule of Evidence 702, along
with Daubert v. Merrell Dow Pharmaceuticals, 509
U.S. 579 (1993), and its progeny. See Black v. Food Lion,
Inc., 171 F.3d 308, 310, 314 (5th Cir.1999); Wells
v. SmithKline Beecham Corp., No. A-06-CA-126-LY, 2009 WL
564303, at *7 (W.D. Tex. Feb. 18, 2009). Rule 702 provides
that a witness “‘qualified as an expert . . . may
testify . . . in the form of an opinion . . . 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.'” Guy v.
Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004)
(quoting Fed.R.Evid. 702).
charges trial courts to act as evidentiary
“gate-keepers” to ensure that proffered expert
testimony is, among other things, sufficiently reliable.
Daubert, 509 U.S. at 589, 592-93; see Watkins v.
Telsmith, Inc., 121 F.3d 984, 989 (5th Cir. 1997).
Courts enjoy wide discretion in deciding precisely how to
make such a reliability determination in a given case.
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142
(1999). The reliability inquiry focuses “on [the
experts'] principles and methodology, not on the
conclusions that [the experts] generate.”
Daubert, 509 U.S. at 594. The proponent of expert
testimony is not required to show that the testimony is
correct, but rather-by a preponderance of the evidence-that
the testimony is sufficiently reliable. Moore v. Ashland
Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998). Whether
an expert is “basing testimony upon professional
studies or personal experience, ” a court must ensure
the expert “employs in the courtroom the same level of
intellectual rigor that characterizes the practice of an
expert in the relevant field.” Kumho Tire Co.,
526 U.S. at 152.
same time, “the trial court's role as gatekeeper is
not intended to serve as a replacement for the adversary
system.” United States v. 14.38 Acres of Land,
80 F.3d 1074, 1078 (5th Cir. 1996). “Vigorous
cross-examination, presentation of contrary evidence, and
careful instruction on burden of proof are the traditional
and appropriate means of attacking shaky but admissible
evidence.” Daubert, 509 U.S. at 596. In
general, “questions relating to the bases and sources
of an expert's opinion affect the weight to be assigned
that opinion rather than its admissibility and should be left
for the jury's consideration.” 14.38 Acres of
Land, 80 F.3d at 1077; see also Viterbo v. Dow
Chemical Co., 826 F.2d 420, 422 (5th Cir. 1987).