United States District Court, W.D. Texas, San Antonio Division
FRANKIE D. ALBERT, AS PARENTS AND NEXT FRIEND OF JANE DOE, A MINOR; AND PHYLIS ALBERT, AS PARENTS AND NEXT FRIEND OF JANE DOE, A MINOR; Plaintiffs,
UNITED STATES DEPARTMENT OF THE ARMY, WOUNDED WARRIOR PROJECT, INC., Defendants.
ELIZABETH S. ("BETSY") CHESTNEY, UNITED STATES
the Court in the above-styled cause of action are Defendant
Wounded Warrior Project, Inc.'s Motion to Exclude Expert
Testimony of Dr. Robert Lowry [#83] and Defendant Wounded
Warrior Project, Inc.'s Motion to Exclude Expert
Testimony of Mr. William Quintanilla [#90], which were
referred to the undersigned for disposition. The Court held a
hearing on the motions on October 25, 2019, at which all
parties appeared through counsel. Having considered the
motions, the responses and replies thereto, the arguments of
counsel at the hearing, and the governing law, the Court will
grant in part Defendant's motions.
case arises out of personal injuries sustained by Plaintiff
Shyanna Albert in 2013 when she was 13 years old. According
to the Second Amended Complaint before the Court, Shyanna was
injured while riding in a U.S. Army vehicle during a
Veteran's Day Parade sponsored by the Wounded Warrior
Project, Inc. (“WWP”) when a steel bar fell on
her head and knocked her unconscious. (Second Am. Compl.
[#54] at ¶¶ 5-7.) Shyanna's parents, Frankie
and Phylis, filed this action as parents and next friends of
Shyanna, then a minor, against Defendants United States
Department of the Army (“U.S. Army”) and WWP,
alleging that their negligence caused Shyanna's injuries.
(Id. at ¶¶ 8-12.) Shyanna, upon reaching
the age of majority, was added as an additional Plaintiff in
this case. (Order [#51].) Plaintiffs' lawsuit seeks
damages related to severe and permanent head injuries Shyanna
allegedly sustained from the impact of the accident. (Second
Am. Compl. [#54] at ¶ 14.) These damages include
reasonable past and future medical care and expenses, as well
as compensation for future lost earning capacity.
designated Dr. Robert C. Lowry, M.D. and Mr. William L.
Quintanilla, M.Ed., L.P.C. as two of their expert witnesses
in this case to testify on Plaintiff's future medical
expenses and lost earning capacity, respectively. WWP now
moves the Court to exclude these individuals from testifying
as experts at trial. Although WWP originally challenged both
the experts' qualifications and the reliability of their
testimony, WWP withdrew its challenges regarding
qualifications prior to the hearing. (Advisory [#97].) The
Court addresses WWP's challenge to the reliability of the
proposed testimony of each of these experts in turn.
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).
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.
sets forth four specific factors that the trial court should
ordinarily apply when considering the reliability of
scientific evidence: (1) whether the technique can or has
been tested; (2) whether it has been subjected to peer review
or publication; (3) whether there is a known or potential
rate of error; and (4) whether the relevant scientific
community generally accepts the technique. Id. This
test of reliability, however, is “flexible, ” and
these factors “neither necessarily nor exclusively
apply to all experts or in every case.” Kumho Tire
Co., 526 U.S. at 141. “Rather, the law grants a
district court the same broad latitude when it decides how to
determine reliability as it enjoys in respect to its ultimate
reliability determination.” Id. at 142.
“The proponent need not prove that the expert's
testimony is correct, but she must prove by a preponderance
of the evidence that the testimony is reliable.”
Moore, 151 F.3d at 276.
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
Lowry is a physician specializing in diagnosing and treating
concussions in practice at the Concussion Center in San
Antonio, Texas, where he treated Shyanna for symptoms she
alleges stemmed from the injury underlying this suit. Dr.
Lowry intends to testify on Shyanna's head injury, its
causes and long-term effects, and the future costs associated
with her medical care. Dr. Lowry opines that Shyanna
sustained permanent brain damage from her injury and that her
concussion was particularly damaging because it was a second
concussion occurring close in time to a first concussion
sustained during a basketball game, meaning Shyanna suffers
from “Second Impact Syndrome.” (Case Summary
[#83-2] at 3; Suppl. Report [#83-3] at 2.) Dr. Lowry believes
Shyanna's confirmed non-epileptic seizure disorder and
its associated psychological symptoms were caused by her
brain injury and are not representative of a purely
psychological “conversion disorder.” (Suppl.
Report [#83-5] at 1-4.) According to Dr. Lowry, Shyanna's
future medical care will include physical therapy, cognitive
rehabilitation, occasional emergency treatment, counseling,
and medications. (Suppl. Report [#83-3] at 2.) Dr. Lowry
provides a “conservative estimate” of
Shyanna's future medical expenses for her seizures,
severe headaches, and other symptoms of $250, 000.
motion, WWP raises several issues regarding the reliability
of Dr. Lowry's testimony, such as his failure to
personally review Shyanna's school records. But during
the hearing, WWP narrowed its challenge to Dr. Lowry's
testimony that Shyanna's future medical expenses will be
approximately $250, 000. The Court sustains the objection:
Plaintiffs have not carried their burden to establish the
reliability of this aspect of Dr. Lowry's testimony and
he is precluded from testifying about his estimate of
Shyanna's future medical costs.
Lowry's estimate of future medical costs purports to be
based on “current reasonable and necessary medical
costs in Bexar County” and “Shyanna's history
of treatments . . ., her current [sic] condition, the
probable need for occasional emergency treatment,
counselling, and medications. (Suppl. Report [#83-3] at 2.)
Yet Dr. Lowry's opinions do not explain in sufficient
detail how he calculated this estimate, what specific
treatments he predicts being necessary, the costs of such
treatments, or the length of Shyanna's predicted recovery
period. He merely states that Shyanna's medical costs
from January 2018 to May 2018 at the Concussion Center
amounted to $24, 907.84, that this constitutes about
one-fourth of the ...