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Schmidt v. United States

United States District Court, W.D. Texas, Austin Division

May 10, 2019

JEROME SCHMIDT, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER

          ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES MAGISTRATE JUDGE.

         Before the Court in the above-styled cause of action are Plaintiff's Motion to Exclude Testimony of Defendant's Expert Kyle B. Boone [#44], Defendant United States of America's Second Amended Response to Plaintiff's Motion to Exclude Testimony of Defendant's Expert Kyle Boone, Ph.D. [#47], and Plaintiff's Reply to Defendant's Second Amended Response [#53]. Plaintiff's motion was referred to the undersigned on April 12, 2019 for disposition pursuant to Federal Rule of Civil Procedure 72 and 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 [#58]. The undersigned has authority to enter this order pursuant to 28 U.S.C. § 636(b)(1)(A).

         The Court held a hearing on the motion on May 3, 2019, at which both parties were present through counsel. Having considered the motion, response, reply, the record before the Court, the arguments of counsel at the hearing, and the governing law, the Court will deny the motion without prejudice to Plaintiff reasserting the arguments raised therein before the District Court.

         I. Relevant Background

         This is a case involving a motor-vehicle collision between Plaintiff Jerome Schmidt and Edward R. Saylor, a United States Marine, who Plaintiff alleges was acting in the course and scope of his employment with the United States Navy at the time of the accident. (Compl. [#1] at ¶¶ 5.1-5.17.) Plaintiff originally filed this action against Defendant the United States of America in the Austin Division of the Western District of Texas, alleging that Defendant, through the acts of its employee, was negligent in causing Plaintiff's injuries in violation of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674. The case was transferred to the San Antonio Division on February 15, 2019 due to a conflict of interest [#38].

         Plaintiff, a licensed psychologist formerly in private practice, alleges he suffered a closed-head traumatic brain injury from the head-on collision, although he did not lose consciousness or seek emergency medical care at the time of the accident. (Compl. [#1] at ¶¶ 5.11, 5.13.) As a result of the head injury, Plaintiff claims he has suffered ongoing short-term memory loss and confusion, resulting in the inability to concentrate, retrieve words, and remember names. (Id. at ¶ 5.12.) Plaintiff's treating neuropsychologist, Dr. Wayne Dees, and psychologist, Dr. Amy Duckwall, have both diagnosed him with a neurocognitive disorder, and neuropsychological testing by Plaintiff's doctors concluded that Plaintiff has delayed visual design memory and word reading speed, as well as problems with complex visual construction, fine motor dexterity on his left side, visual memory issues, and long-term verbal memory problems. (Id. at ¶ 5.12.) Due to these issues, Plaintiff alleges he had no choice but to close his private practice. (Id. at ¶ 5.13.) Plaintiff claims the injury has also exacerbated his preexisting anxiety and depression. (Id. at ¶ 5.14.) Plaintiff seeks damages in the form of past and future mental anguish, past and future emotional distress, and past and future loss of income and impairment of earning capacity. (Id. at ¶ 7.1.)

         Trial in this case will be to the bench, as there is no right to a jury trial in FTCA cases. See 28 U.S.C. § 2402; Carlson v. Green, 446 U.S. 14, 22 (1980). Plaintiff has designated Dr. Erin D. Bigler, a board-certified clinical neuropsychologist; Dr. Jeffrey Lewine, an expert in neurology and neuroscience; Dr. Robert J. Thoma, a clinical psychologist; and Dr. Travis Snyder, an expert in radiology and neuroradiology, to testify on issues related to Plaintiff's neurological injuries [#11, #31]. In response, Defendant has designated Dr. Kyle Brauer Boone, Dr. Julio A. Chalela, and Dr. Christopher M. Loftus as experts, all of whom have expertise in fields relevant to Plaintiff's alleged injuries [#13]. Plaintiff now moves to exclude Dr. Boone from testifying as an expert in this case on the basis that her opinions are not reliable under the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 589 (1993) and Rule 702 of the Federal Rules of Evidence.

         II. Legal Standard

         In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 589 (1993), the Supreme Court held that trial judges must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. Subsequent to Daubert, Rule 702 of the Federal Rules of Evidence was amended to provide 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.” See Guy v. Crown Equipment Corp., 394 F.3d 320, 325 (5th Cir. 2004) (quoting Fed.R.Evid. 702). The Rule 702 and Daubert analysis applies to all proposed expert testimony, including nonscientific “technical analysis” and other “specialized knowledge.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999).

         Under Daubert, expert testimony is admissible only if the proponent demonstrates that: (1) the expert is qualified; (2) the evidence is relevant to the suit; and (3) the evidence is reliable. See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998); Watkins v. Telsmith, Inc., 121 F.3d 984, 989 (5th Cir. 1997). The overarching focus of a Daubert inquiry is the “validity and thus evidentiary relevance and reliability of the principles that underlie a proposed submission.” Watkins, 121 F.3d at 989 (quoting Daubert, 509 U.S. at 594-96). Because the Daubert test focuses on the underlying theory upon which the opinion is based, the proponent of expert testimony need not prove the expert's testimony is correct, but rather that the testimony is reliable. Moore, 151 F.3d at 276. This determination of reliability includes a preliminary determination of “whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93.

         Notwithstanding the testing of an expert's qualification, reliability, and admissibility, “the rejection of expert testimony is the exception rather than the rule.” Fed.R.Evid. 702, Adv. Comm. Notes (2000). Daubert did not work a “seachange over federal evidence law, ” and “the trial court's role as gatekeeper is not intended to serve as a replacement for the adversary system.” Id. (quoting 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. The need for a gatekeeper is substantially less in a bench trial, where the judge serves as both factfinder and evaluator of the the evidence's reliability. See Williams v. Illinois, 567 U.S. 50, 69 (2012) (“When the judge sits as the trier of fact, it is presumed that the judge will understand the limited reason for the disclosure of the underlying inadmissible information and will not rely on that information for any improper purpose.”); Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000) (finding the standards announced in Daubert “are not as essential in a case . . . where a district judge sits as the trier of fact in place of a jury”).

         III. Analysis

         Dr. Boone should be permitted to testify, but Plaintiff has identified aspects of her testimony that are questionable in terms of reliability. Given that this is a bench trial, Plaintiff's motion to exclude is denied, but the denial is without prejudice to Plaintiff objecting during trial and arguing that all or a portion of Dr. Boone's testimony should be disregarded in its entirety as unreliable rather than merely given minimal weight. This approach makes the most sense because of the context-specific nature of Plaintiff's reliability objections and the fact that this is a bench trial.

         Dr. Boone, a licensed psychologist, intends to provide expert testimony at trial on the cognitive deficits and neuropsychological symptoms Plaintiff claims are attributable to the accident underlying this case. (Boone C.V. [#47-1]; Boone Expert Report [#47-3].) Dr. Boone's expert report reaches the following conclusions: (1) there is no evidence that Plaintiff sustained a brain injury during the motor-vehicle accident at issue, and even if he had sustained a concussion, he would have no cognitive or psychiatric residuals from that event; (2) none of the neuropsychological exams of Plaintiff adequately checked for performance validity (i.e., confirmed that Plaintiff was in fact performing to true ability) and therefore cannot be used as evidence of cognitive dysfunction; (3) even if Plaintiff does have some mild cognitive inefficiency, his sleep apnea, depression, hypertension, elevated cholesterol, lowered testosterone, vitamin B12 deficiency, small vessel vascular disease, chronic prescribed sleep medication use, and possible attention deficit disorder would more likely account for Plaintiff's symptoms; and (4) appropriate personality testing was not conducted that would have accurately assessed levels of depression, anxiety, PTSD, and other conditions such as somatoform disorder, a condition in which ...


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