26 Fla. L. Weekly Fed. D45a
ORDER DENYING DEFENDANT NCL (BAHAMAS)
LTD.’S DAUBERT MOTION TO EXCLUDE OR
LIMIT THE TESTIMONY OF PLAINTIFF’S
EXPERT JORGE HERRERA (D.E. 61)
1.Medical records of David Awerbuck, M.D.
2. Records of MRI of cervical spine by Monique Mogensen, M.D.
3. Records of MRI of the brain by Monique Mogensen, M.D.
4. Records of Peninsula Behavioral Health by Jay Schulz-Heik, Ph.D.
5. Records of Stanford Hospital by Jaime R. Lopez, M.D.
6. Records of Monterey Bay Urgent Care by Ellen McEwen, M.D.
7. Records of Stanford Hospital by Gowri Lakshminayara, M.D.
8. Records of Stanford Hospital by Peter Karzmark, Ph.D.
9. Records of Stanford Hospital by Orban Bican, M.D.
10. Records of Community Hospital of Monterey Peninsula by Paul File, M.D.
11. Records of Community Hospital of Monterey Peninsula by Anthony Filly, M.D.
12. Records of NEUROLOGY, DIAGNOSIS, & APPLIED SOLUTIONS, INC. BY Nicholas D.A. Suite, M.D.
13. Deposition transcript of Bonnie Brown (11/29/2015)
(Herrera Report, D.E. 61-1 at 6.) Dr. Herrera’s Report provides a detailed recitation of the chronology of medical services Plaintiff has received from January 5, 2014 — the day after sustaining the alleged injury at issue in this case — December 10, 2015. (Id. at 6-12.) Dr. Herrera’s Report further details the “neuropsychological diagnostic interview” he conducted with Plaintiff over the telephone on January 19, 2016. (Id. at 13-15.)
Although the origin of this disorder can possibly be traced back to her experience of serious and continued sexual abuse by her grandfather as a child, it is my opinion that she had achieved appropriate adjustment and a very adequate level of functioning prior to having been sexually assaulted and suffering a head trauma on 1/4/2014, something which at present is out of her reach. Thus, it is estimated that there is a significant contribution of this event to her present condition.
Q. Is a telephone interview a recommended diagnostic tool in the field of neuropsychology?
. . .
Q. THE WITNESS: I don’t know, but that’s the only thing I had. She wasn’t here, but yeah, we — we do that. I mean —
Q. How often, Doctor, do you diagnose patients over the telephone?
A. Not very often.
Q. In fact, have you done that at all in the past year?
Q. Have you done that at all in the last five years?
Q. Have you done that at all in the last ten years?
A. I can’t recall because I do a lot of consultations overseas. So I have had — I have conducted — no, see, diagnose? No. Conducted interviews, yes. . . .
(Id. at 44-45.) He further testified that he generally conducts neuropsychological evaluations in a controlled environment, and admitted that he did not know where Plaintiff was or who she was with when he conducted the telephonic interview. (Id. at 53.)
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.
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