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Albert v. United States Department of Army

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

November 5, 2019

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,
v.
UNITED STATES DEPARTMENT OF THE ARMY, WOUNDED WARRIOR PROJECT, INC., Defendants.

          ORDER

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

         Before 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.

         I. Background

         This 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. (Id.)

         Plaintiffs 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.

         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.

         Daubert 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.

         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.

         III. Dr. Lowry

         Dr. 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. (Id.)

         In its 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.

         Dr. 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 ...


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