United States District Court, W.D. Texas, San Antonio Division
ORDER DENYING MOTION TO LIMIT TESTIMONY OF DEFENSE
EXPERT DR. AUBER
RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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. 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
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). 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).
Auber's testimony is sufficiently reliable for
admissibility purposes. 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
Auber testified that the following spinal abnormalities
present on Koenig's October 2013 emergency room CT scan
reveal the presence of mild disc degeneration: (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). 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).
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, ...