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Lackey v. Dement

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

December 16, 2019

AUSTEN LACKEY, Plaintiff,
v.
AUSTIN DEMENT, CRST EXPEDITED, INC., Defendants.

          ORDER ON MOTIONS TO EXCLUDE

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

         Before 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.

         I. Background

         This 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 Small.

         By the 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 treating surgeon.

         This is 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.

         At the 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.

         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. Analysis

         A. ...


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