United States District Court, W.D. Texas, San Antonio Division
ORDER ON MOTIONS TO EXCLUDE
ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES
the Court in the above-styled cause of action are the
following four motions: Defendants' Austen Dement and
CRST Expedited, Inc.'s Motion to Exclude Expert Testimony
of Christine Vidouria, D.O., CLCP [#101]; Defendants'
Motion to Strike Plaintiff's Designation of Unidentified
Medical Providers and “Custodians of Records” as
Expert Witnesses and Exclude Any Opinion Testimony From Same
[#102]; Defendants' Motion to Strike Plaintiff's
Designation of William Davenport, M.B.A. as an Expert and
Motion to Exclude Testimony from Same [#103]; Defendants'
Motion to Exclude Testimony of Dr. Henry Small as an Expert
Witness or Limit His Opinion Testimony [#104]. The Court held
a hearing on the motions on December 13, 2019, at which
Plaintiff and Defendants appeared through counsel. After
considering the motions, the responses on file [#112, #113,
#118, #120], the arguments of counsel at the hearing, the
record, and governing law, the Court issued an oral ruling,
which it now memorializes with this written order.
personal-injury action arises out of a motor-vehicle
collision between a vehicle operated by Plaintiff Austin
Lackey and a semi-trailer truck operated by Defendant Austin
Dement and owned by Defendant CRST Expedited, Inc. Plaintiff
originally filed this action in state court, and Defendants
removed the Original Petition based on diversity
jurisdiction. The Original Petition remains the live pleading
before the Court [#1-1] and alleges various theories of
negligence under Texas law against Defendants.
Plaintiff's Original Petition alleges bodily injuries
related the accident, which include injuries to
Plaintiff's lumbar spine for which he received surgery at
AD Hospital East (“ADHE”) performed by Dr. Henry
motions currently before the Court, Defendants challenge
various experts designated by Plaintiff: (1) Dr. Christine
Vidouria, a board certified physiatrist and certified life
care planner who authored a 92-page Life Care Plan on
Plaintiff's future medical care and costs; (2)
unidentified “records custodians” for various
medical providers named in Plaintiff's expert
designation; (3) Mr. William Davenport, an economic expert
and financial analyst designated to testify on the present
value assessment of the future value of Plaintiff's
medical care; and (4) Dr. Small, a non-retained expert, a
board-certified orthopedic surgeon, and Plaintiff's
not the first pretrial dispute addressed by the undersigned.
This case has been pending since June 2017; the original
Scheduling Order expired in August of 2018. The undersigned
returned this case to the Honorable Fred Biery for a trial
date, but the parties agreed to engage in additional
discovery and depositions, so a new scheduling order was
issued and the case was returned to the undersigned for
further pretrial management. Since then, the undersigned has
issued several orders on discovery and expert disputes [#33,
#52, #67, #94]. The case was reassigned to the docket of the
Honorable Jason K. Pulliam in August 2019, and the
undersigned set this matter for a status conference when the
case was referred again by Judge Pulliam.
September status conference, the Court set a deadline to
complete all outstanding depositions and ordered all motions
to strike be filed by December 5, 2019 [#98] so that this
case can finally be set for trial. Defendants subsequently
filed the four motions addressed in this Order. The Court
held its scheduled status conference on December 13, 2019 and
addressed all four expert motions. The only matter remaining
in this case is Defendants' Motion for Reconsideration of
AD Hospital East, LLC's Motion to Quash and Motion for
Protection and the Court's Order Concerning Same [#100].
The undersigned will issue a separate order on this motion,
which is not yet ripe, and thereafter will return this case
to the District Court for a trial setting.
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