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Koenig v. Beekmans

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

November 30, 2017




         Before the Court is the Opposed Motion to Limit the Testimony of Defense Expert Andrew E. Auber, M.D. [#116] filed by Plaintiff Benjamin Koenig. 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 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 [#108], the relevant law, and the pleadings, the Court DENIES the Motion to Limit the Testimony of Defense Expert Andrew E. Auber, M.D. [#116]. The criticisms of Dr. Auber'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 stems 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 and a compression-type fracture of the L1 disc in his spine. (See [#108-3]). 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. Andrew E. Auber, a board-certified neuroradiologist, to evaluate Koenig's radiological care and interpret his radiologic studies performed on and after the date of the accident. (See [#73], [#108-3]). Koenig's motion does not attack Dr. Auber's qualifications or the relevance of his testimony; it focuses only on the issue of reliability.

         Koenig urges either exclusion of Dr. Auber as an expert or limitation of his testimony because, according to Koenig, Dr. Auber's second opinion is conclusory, speculative, and unreliable in concluding that Koenig suffers from mild degeneration at the L5-S1 disc that predates the accident rather than a herniated disc caused by the accident.[1] Koenig does not take issue with the reliability or helpfulness to the jury of Dr. Auber's other two opinions regarding (1) the extent and nature of Koenig's sternal and L1 fractures and (2) whether the MEG imaging of Koenig's brain reveals the presence of a mild traumatic brain injury. Accordingly, this order addresses only Koenig's arguments attacking the reliability of Dr. Auber's second opinion concerning Koenig's L5-S1 disc condition.

         II. Legal Standards

         Koenig's challenges to the admissibility of Dr. Auber'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).[2] 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. Analysis

         Dr. Auber's testimony is sufficiently reliable for admissibility purposes.[3] Koenig's motion to exclude takes issue with the bases and sources of his opinions and the fact that Dr. Auber's opinion conflicts with the opinion of Beekmans' other retained expert, Dr. Toohey. (See Mot. at 5-8). These types of complaints go to the eventual weight a jury might afford the testimony and are most appropriately addressed at trial via cross-examination or through introduction of competing expert testimony. See 14.38 Acres of Land, 80 F.3d at 1077; 29 Victor James Gold, Fed. Prac. & Proc. Evid. § 6263 (“[E]ven where the trial court has concluded that expert testimony will help the trier of fact and is admissible, other evidence may be admitted to show that the testimony is unreliable and will be of little or no help.”).

         Dr. Auber testified that the following spinal abnormalities present on Koenig's October 2013 emergency room CT scan reveal the presence of mild disc degeneration:[4] (1) the posterior position of the vertebral bone indicating the presence of mild retrolisthesis (Auber Dep. 60:7-10); (2) mild degeneration of the left and right facet joints (Id. 65:9-13); and (3) “heaped-up” bone jutted into the back side of the neuroforamen, impinging the nerve (Id. 67:10-25). According to Dr. Auber, this degeneration must have pre-existed the collision because it takes more than several hours from the time of trauma for these degenerative findings to appear. (Id. 42:10-15). In further support of this conclusion, Dr. Auber observed that these same degenerative findings appear unchanged on Koenig's 2016 MRI. (Id. 26:5-9; 37:11-13; 42:6-22). With respect to the L1-S5 disc itself, Dr. Auber testified that both the CT scan and MRI reveal the same small disc protrusion. (Id. 64:17-65:11; 68:7-17).[5] Because most traumatically altered discs typically change acutely in a two-and-a-half year period and because this disc protrusion appears in conjunction with the other above-listed degenerative findings, Dr. Auber ultimately opines that Koenig's L5-S1 disc protrusion is also likely degenerative in nature and not caused by the accident. (Id. 42:2-22; 69:17).

         Arguing to limit or exclude Dr. Auber's testimony, Koenig emphasizes Dr. Auber's reliance on the October 2013 emergency room CT scan, which focuses on Koenig's abdomen and pelvis rather than on his lumbar spine. (Mot. at 6). Koenig also invokes Dr. Auber's admission that an MRI is a better diagnostic tool than a CT scan. Id. But Koenig concedes, however, that here the CT scan “picked up the L1 and L5 levels.” Id. And Koenig also does not criticize the validity of Dr. Auber's methodology in interpreting the CT scan or discredit Dr. Auber's explanation that “disc injury can be well evaluated on a CT and better evaluated on [an] MRI.” (Auber Dep. 38:12-18). Ultimately, the quality of the imaging upon which Dr. Auber bases his opinion goes to the weight of his testimony rather than its admissibility. See 14.38 Acres of Land, 80 F.3d at 1077. Similarly, that Beekmans' other retained expert, Dr. Toohey, ...

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