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Koenig v. Beekmans

United States District Court, W.D. Texas, San Antonio Division

November 9, 2017

BENJAMIN KOENIG, Plaintiff,
v.
ANTHONY BEEKMANS, Defendant.

          ORDER DENYING MOTION TO EXCLUDE AND/OR LIMIT EXPERT TESTIMONY OF JOHN S. TOOHEY, M.D.

          RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE.

         Before 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.

         I. Background

         This 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.

         Beekmans 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 reliability.

         Specifically, 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.

         II. Legal Standards

         Koenig's 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).[1] 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).

         Daubert 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.

         At the 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).

         III. ...


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