26 Fla. L. Weekly Fed. D45a
Torts — Cruise ships — Passenger’s action for personal injuries sustained when she hit her head against television cabinet while aboard defendant’s cruise ship — Evidence — Expert testimony — Expert’s telephonic neuropsychological diagnostic interview with plaintiff coupled with his extensive review of plaintiff’s post-incident medical records is sufficiently reliable to satisfy Daubert — Expert’s diagnosis based upon an extensive review of medical records, scholarly literature and research, and a lengthy discussion with plaintiff constitutes a reliable methodology for forming an expert opinion regarding plaintiff’s injury — Expert’s failure to review plaintiff’s pre-incident medical records goes to weight the jury should give to his opinion, not to its reliability — Defendant may explore expert’s failure to consider pre-incident medical records on cross-examination — Motion to exclude or limit expert’s testimony denied
BONNIE BROWN, Plaintiff, v. NCL (BAHAMAS) LTD., Defendant. U.S. District Court. Southern District of Florida. Case No. 15-21732-CIV. June 10, 2016. Joan A. Lenard, Judge. Counsel: Ben Murphey, Lawlor White & Murphey, LLP, Fort Lauderdale and Glenn Holzberg, Holzberg Legal, Miami, for Plaintiff. Darren Friedman, Foreman & Friedman, Miami, for Defendant.
ORDER DENYING DEFENDANT NCL (BAHAMAS)
LTD.’S DAUBERT MOTION TO EXCLUDE OR
LIMIT THE TESTIMONY OF PLAINTIFF’S
EXPERT JORGE HERRERA (D.E. 61)
ORDER DENYING DEFENDANT NCL (BAHAMAS)
LTD.’S DAUBERT MOTION TO EXCLUDE OR
LIMIT THE TESTIMONY OF PLAINTIFF’S
EXPERT JORGE HERRERA (D.E. 61)
THIS CAUSE is before the Court on Defendant NCL (Bahamas) Ltd.’s Daubert Motion to Exclude or Limit the Testimony of Plaintiff’s Expert Jorge Herrera, (“Motion,” D.E. 61), filed March 17, 2016. Plaintiff, Bonnie Brown, filed a Response on April 18, 2016, (“Response,” D.E. 74), to which Defendant filed a Reply on April 18, 2016, (“Reply,” D.E. 75). Upon review of the Motion, Report, Reply, and the record, the Court finds as follows.
I. Background
This is an action for personal injuries Plaintiff Bonnie Brown sustained on or about January 4, 2014, while a guest aboard one of Defendant’s cruise ships. (See Compl., D.E. 1 ¶¶ 12-21.) The Complaint alleges that Plaintiff hit her head against a television cabinet when another guest caused her to fall. (Id. ¶ 21.)
Plaintiff hired neuropsychologist Jorge Herrera, M.D., Ph.D., to “render an opinion and testify as to the Plaintiff’s closed head injuries, post-concussion syndrome, memory, concentration and focus issues with cognitive deficits.” (Pl.’s Expert Disclosures, D.E. 61-1 at 1.)1 Dr. Herrera rendered an expert report based upon a telephone interview with Plaintiff and reviewing the following records:
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.)
Based on his review of the medical records and his own interview with Plaintiff, Dr. Herrera concluded that she suffers from “a mild traumatic brain injury caused by the impact in which her head struck a sharp piece of furniture in the cruise ship stateroom when she was sexually assaulted.” (Id. at 17.) He further opined that Plaintiff suffers from “post-traumatic stress disorder” as a result of the January 4, 2014 incident, stating:
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.
(Id.) Dr. Herrera then listed eleven scholarly articles and four books he consulted to facilitate reaching his conclusions. (Id. at 17-18.)
Dr. Herrera was deposed on February 11, 2016. (See Tr. of Herrera Dep., D.E. 61-2.) Dr. Herrera acknowledged testifying in a previous case that he does not use information provided by others to formulate his opinions, and that his opinions are based on his own examination. (Id. at 19-20.) He also acknowledged that he did not perform any neurological testing on Plaintiff in this case — indeed, that he never met Plaintiff face-to-face — and that the only examination he performed was the initial diagnostic telephonic interview. (Id. at 43-44.) The deposition also contained the following exchange:
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?
A. No.
Q. Have you done that at all in the last five years?
A. No.
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.)
Dr. Herrera also stated that there is a standard set of tests that he performs on head trauma patients, including the Benton Visual Retention Test, the Rey Complex Figure Drawing, the Wisconsin Card Sorting Test, a neuropsychological test battery, and sometimes the Minnesota Multiphasic Personality Inventory (MMPI). (Id. at 50.) However, he was unable to perform these tests on Plaintiff telephonically. (Id.)
Finally, Dr. Herrera stated that at the time he made his Report, he had no knowledge as to whether Plaintiff suffered from migraines or headaches prior to the January 4, 2014 incident. (Id. at 45.) He stated that he did not ask Plaintiff for copies of any medical records, employment records, or other records from before the incident. (Id. at 17.) He also testified that he did not discuss Plaintiff’s childhood sexual abuse with her much, (id. at 19), even though his Report states that the origin of the post-traumatic stress disorder he diagnosed her with “can possibly be traced back to her” childhood sexual abuse, (D.E. 61-1 at 17).
On March 17, 2016, Defendant filed the instant Motion to Exclude or Limit Dr. Herrera’s opinions regarding Plaintiff’s alleged post-concussion injury and post-traumatic stress disorder and their causation. (D.E. 61.) It argues that Dr. Hererra’s opinions are (1) based entirely on speculation and an unreliable methodology, (2) unhelpful to the trier of fact, and (3) inaccurate and improper. (Id. at 2.) II. Legal Standard Federal Rule of Evidence 702 provides the general rule regarding the admissibility of expert testimony. It states:
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.
Rule 702 requires federal district courts to perform a “gatekeeping” function concerning the admissibility of scientific and technical evidence. United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) [17 Fla. L. Weekly Fed. C1132a] (en banc) (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 n.7, 597 (1993)); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999)). “This function ‘inherently require[s] the trial court to conduct an exacting analysis’ of the foundations of expert opinions to ensure they meet the standards for admissibility under Rule 702.” Id. (quoting McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir. 2002) [15 Fla. L. Weekly Fed. C839a]).
When determining the admissibility of expert testimony under Rule 702, the Court engages in a three-part inquiry which considers whether:
(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.
City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998) (citing Daubert, 509 U.S. at 589). “The burden of establishing qualification, reliability, and helpfulness rests on the proponent of the expert opinion . . . .” Frazier, 387 F.3d at 1260.
District courts have broad discretion in deciding to admit or exclude expert testimony. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997). However, “[a] district court’s gatekeeper role ‘is not intended to supplant the adversary system or the role of the jury.’ ” Id. (citing Maiz v. Virani, 253 F.3d 641, 666 (11th Cir. 2001) [14 Fla. L. Weekly Fed. C811a] (quoting Allison v. McGhan, 184 F.3d 1300, 1311 (11th Cir. 1999))). “Quite the contrary, ‘[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.’ ” Id. (quoting Daubert, 509 U.S. at 596). III. Discussion
First, Defendant argues that Dr. Herrera’s opinions should be excluded because they are “not based on any standards, and fail to either utilize a reliable methodology, or properly apply a reliable methodology, thus making Plaintiff’s expert opinions speculative.” (Mot. at 3.) It argues that “[d]iagnosis by telephone is not a reliable methodology, nor one that Dr. Herrera regularly employs.” (Id. at 4.)
In Daubert, the Supreme Court listed four “noninclusive factors courts should consider in determining reliability under Rule 702: (1) whether the theory or technique can be tested; (2) whether it has been subjected to peer review; (3) whether the technique has a high known or potential rate of error; and (4) whether the theory has attained general acceptance within the scientific community.” Allison v. McGhan Med. Corp., 184 F.3d 1300, 1312 (11th Cir. 1999) (citing Daubert, 509 U.S. at 593-94). The Court’s focus “must be solely on principles and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 595. “[T]he proponent of the testimony does not have the burden of proving that it is scientifically correct, but that by a preponderance of the evidence, it is reliable.” Allison, 184 F.3d at 1312 (citing In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994)).
Plaintiff argues that Dr. Herrera’s telephonic interview, records review, literature and research review, and review of the data compiled by two other neuropsychologists “is consistent with standard psychological and neuropsychological evaluation[.]” (Resp. at 18.) She bases this argument on a “Position Paper” issued by National Academy of Neuropsychology titled: “The use, education, training and supervision of neuropsychological test technicians (psychometrists) in clinical practice[,] Official Statement of the National Academy of Neuropsychology[.]” (See D.E. 74-1.) However, that Policy Paper does not establish, or even suggest, that a telephonic interview coupled with a review of medical records, scholarly literature and research constitutes a reliable method for making a neuropsychological diagnosis. Nor does it suggest that such a methodology is generally accepted within the scientific or medical community. Rather, the Policy Paper announces that the National Academy of Neuropsychology endorses the use of non-doctoral “technicians” who have attained a certain level of education and training to administer neuropsychological tests while under the supervision of a neuropsychologist. (See id.) Thus, the Policy Paper is entirely irrelevant to the issue of whether Dr. Herrera’s methodology is reliable.
Although Plaintiff cites no case law indicating that a telephonic interview coupled with a review of medical records, scholarly literature and research constitutes a reliable methodology for forming a medical diagnosis, in In re Paoli, the Third Circuit held that “evaluation of the patient’s medical records, like performance of a physical examination, is a reliable method of concluding that a patient is ill even in the absence of a physical examination.” 35 F.3d at 762. It noted that while a doctor’s opinion based solely on a patient’s self-report of illness should be excluded, a patient’s self-report of illness coupled with a physical examination or review of medical records was sufficiently reliable. Id.
Additionally, the Eleventh Circuit has suggested that a medical expert may rely upon the opinions of colleagues in reaching a conclusion regarding causation, so long as the colleagues employed a reliable methodology. See Wilson v. Taser Int’l, Inc., 303 F. App’x 708, 714 (11th Cir. 2008). Here, Dr. Herrera appears to have based his opinion, at least in part, upon the examinations and opinions of Peter Karzmark, Ph.D and Nicholas Suite, M.D. (See Herrera Report, D.E. 61-1 at 9-10, 11-12.) Dr. Karzmark administered a “battery of neuropsychological instruments” to Plaintiff “for the assessment of orientation, learning and memory, problem-solving, mental efficiency, executive abilities, language, motor functioning, sensory perceptual abilities, and personality.” (Id. at 10.) Dr. Suite ordered an MRI of the cervical spine and an MRI of the brain.” (Id. at 12.) The diagnostic impressions from Dr. Karzmark and Dr. Suite’s tests are detailed in Dr. Herrera’s Report. (Id. at 10, 12.) Thus, to the extent that Dr. Herrera relied on the examinations and opinions of his colleagues, the Court is satisfied that the colleagues employed reliable methodologies in forming their opinions. See Wilson, 303 F. App’x at 714.
Consequently, the Court finds that Dr. Herrera’s telephonic consultation coupled with his extensive review of Plaintiff’s post-incident medical records is sufficiently reliable to satisfy Daubert. See id.
Second, Defendant argues that Dr. Herrera’s opinion was based upon incomplete records and, therefore, his opinion regarding the causation of Plaintiff’s head injuries is speculative. (Mot. at 7-11.) Specifically, it argues that Dr. Herrera failed to consider the shipboard medical records or any medical records pre-dating the January 4, 2014 incident. (See id.) It argues that without prior medical records to use as a baseline to determine how, if at all, the January 4, 2014 incident impacted her, Dr. Herrera’s opinion is entirely speculative and based on conjecture. (Id. at 8.) Plaintiff argues that Dr. Herrera’s review of Plaintiff’s post-incident medical records, coupled with his extensive experience in the field of neuropsychology, is a sufficient basis from which to form an opinion. (Resp. at 17.) She argues that “[a]t most, the arguments being made by the Defendant go to the weight to be given to Dr. Herrera’s testimony, not its admissibility.” (Id.)
The Court finds that Dr. Herrera’s failure to review Plaintiff’s pre-incident medical records goes to the weight the jury should give to his opinion, not to its reliability. See Perkins v. Origin Medsystems, Inc., 299 F. Supp. 2d 45, 62 (D. Conn. 2004). In Perkins, the defendant argued that the plaintiff’s medical expert failed to consider the plaintiff’s prior sexual or physical abuse as a cause of the plaintiff’s chronic pelvic pain. Id. at 61. The district court found that “even if the court accepts [the defendant’s] proposition that Dr. Metzger’s analysis is flawed due to her failure to consider her patient’s history of physical or sexual abuse, that flaw is not substantial enough that she lacks ‘good grounds’ for her diagnosis.” Id. at 62 (citing Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 267 (2d Cir. 2002)). Rather, “her failure to consider [the plaintiff’s] history of physical or sexual abuse before forming an opinion on causation affects the weight of her testimony, not its admissibility.” Id. See also In re TMI Litig. Cases Consol. II, 922 F. Supp. 1038, 1043-44 (M.D. Pa. 1996) (finding that a doctor’s “failure to consider certain potentially relevant data goes to the weight of the testimony”); Static Control Components, Inc. v. Lexmark Int’l, Inc., Civil Action Nos. 5:02-571, 5:04-84, 2007 WL 7083655, at *5 (E.D. Ky. 2007).
Here, too, Dr. Herrera’s diagnosis was based upon an extensive review of the medical records, literature, and research, and a lengthy discussion with Plaintiff. The Court previously found this to be a reliable methodology for forming an expert opinion regarding Plaintiff’s injury. See In re Paoli, 35 F.3d at 762. Defendant may explore Dr. Herrera’s failure to consider pre-incident medical records on cross examination. See Daubert, 509 U.S. at 596.
IV. Conclusion
IV. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that Defendant’s Motion to Exclude or Limit the Testimony of Plaintiff’s Expert Jorge Herrera is DENIED.
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1The page numbers to which the Court cites are the page numbers automatically generated by the Court’s CMECF system, not necessarily the page numbers assigned by the document’s author.
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