United States District Court, W.D. Texas, San Antonio Division
ORDER DENYING MOTION TO LIMIT THE TESTIMONY OF DR.
RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE
the Court is the Motion to Limit the Testimony of
Defendants' Expert, Dr.William Dailey [#112] 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 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 [#112], Defendant
Anthony Beekmans' Response [#114], the relevant law, and
the pleadings, the Court DENIES the Motion
to Limit the Testimony of Defendants' Expert, Dr.William
Dailey [#112]. The Court finds that Dr. Dailey is
sufficiently qualified to testify as an expert regarding the
methods for diagnosing traumatic brain injuries and other
neurological deficits and that his testimony is sufficiently
reliable. The criticisms of Dr. Dailey 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. Donald Robin to opine regarding whether he
sustained a traumatic brain injury based upon the results of
a computer-based test known as “the Starry Night
test.” (See [#41], [#75]). Dr. Dailey was
designated to evaluate the appropriateness of the Starry
Night test in diagnosing a traumatic brain injury and the
presence of other neurological deficits. (See Resp.)
Koenig's motion attacks Dr. Dailey's qualifications
as well as the reliability of his opinion and testimony
regarding the Starry Night test's ability to reliably
diagnose a traumatic brain injury. Dr. Dailey's report
(see [#73]) has not been provided to the Court by
either party for review, although portions of his deposition
testimony are available to the Court.
challenges to the admissibility of Dr. Dailey'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).
Dailey is qualified to provide an opinion regarding the
methods for diagnosing a traumatic brain injury and other
neurological deficits, including the appropriateness of the
Starry Night test to make these diagnoses. Dr. Dailey's
opinions criticizing the Starry Night test are sufficiently
Experts who are not qualified to testify in a particular
field or on a given subject should be excluded from
testifying. Wilson v. Woods, 163 F.3d 935, 937 (5th
Cir. 1999). Rule 702 and Daubert require that
district courts be “assured that the proffered witness
is qualified to testify [as an expert] by virtue of his
‘knowledge, skill, experience, training, or
education.'” Id. (quoting Fed.R.Evid.
Dailey is sufficiently qualified for purposes of Rule 702 and
Daubert. Dr. Dailey is a neuropsychologist with a
doctoral degree in biological psychology from the University
of Texas. (Dailey Dep. 102:17-23). He has performed
neuropsychological assessments on patients, including those
who have been subjected to trauma, for over 30 years until
his very recent retirement. (Id. 102:22-103:22;
106:13- 109:22). Koenig does not dispute that Dr. Dailey is
qualified to opine regarding the methods of pencil-and-paper
neurological testing, which Dr. Dailey regularly performed in
his clinical practice. (Resp. 4).
argues that Dr. Dailey is not qualified to offer opinions
regarding the Starry Night test because he has no specialized
knowledge regarding this specific test. In support, Koenig
points to excerpts from Dr. Dailey's deposition testimony
in which Dr. Dailey admits he was unfamiliar with the Starry
Night test before he was retained as an expert in this case.
Koenig also points to Dr. Dailey's concession that he
reviewed only a limited amount of research along with Dr.
Robin's deposition testimony prior to offering his