Opinion
Case No. 20-22755-Civ-TORRES
2021-06-15
Noel DIAZ, Plaintiff, v. CARNIVAL CORPORATION d/b/a Carnival Cruise Line, Defendant.
Eduardo Jesus Hernandez, Eduardo J. Hernandez, LLC, Miami, FL, for Plaintiff. David James Horr, Horr Novak & Skipp, P.A., Stephanie Hurst Wylie, Sioli Alexander Pino, Valentina M. Tejera, Carnival Corporation, Miami, FL, Mitchell Issa, Barakat Law, P.A., Key Biscayne, FL, for Defendant.
Eduardo Jesus Hernandez, Eduardo J. Hernandez, LLC, Miami, FL, for Plaintiff.
David James Horr, Horr Novak & Skipp, P.A., Stephanie Hurst Wylie, Sioli Alexander Pino, Valentina M. Tejera, Carnival Corporation, Miami, FL, Mitchell Issa, Barakat Law, P.A., Key Biscayne, FL, for Defendant.
ORDER ON CARNIVAL'S DAUBERT MOTION
EDWIN G. TORRES, United States Magistrate Judge This matter is before the Court on Carnival Corporation's ("Carnival" or "Defendant") Daubert motion to exclude the opinions of Noel Diaz's ("Plaintiff") two experts, Dr. John Torregrosa ("Dr. Torregrosa") and Dr. James Arthur Voglino ("Dr. Voglino"). [D.E. 55]. Plaintiff responded to Carnival's motion on May 18, 2021 [D.E. 62] to which Carnival replied on May 25, 2021. [D.E. 66]. Therefore, Carnival's Daubert motion is now ripe for disposition. After careful consideration of the motion, response, reply, relevant authorities, and for the reasons discussed below, Carnival's Daubert motion is DENIED .
On August 17, 2020, the parties consented to the jurisdiction of the undersigned Magistrate Judge. [D.E. 12].
I. BACKGROUND
This is a maritime personal injury action where Plaintiff board Defendant's vessel on September 20, 2019. Shortly afterwards and in the area of guest services, Plaintiff suffered a strike to his right ankle and foot via a motorized scooter. Plaintiff claims that one of Carnival's female employees attempted to move the scooter out of a crowded area, but that she accelerated the scooter and struck Plaintiff in the process. Plaintiff underwent surgery for the injuries he sustained, and he has been disabled from work for over a year. As a result, Plaintiff filed a single cause of action for negligence.
II. APPLICABLE PRINCIPLES AND LAW
The decision to admit or exclude expert testimony is within the trial court's discretion and the court enjoys "considerable leeway" when determining the admissibility of this testimony. Cook v. Sheriff of Monroe County, Fla. , 402 F.3d 1092, 1103 (11th Cir. 2005). As explained in Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the admissibility of expert testimony is governed by Fed. R. Evid. 702. The party offering the expert testimony carries the burden of laying the proper foundation for its admission, and admissibility must be shown by a preponderance of the evidence. See Allison v. McGhan Med. Corp. , 184 F.3d 1300, 1306 (11th Cir. 1999) ; see also United States v. Frazier , 387 F.3d 1244, 1260 (11th Cir. 2004) ("The burden of establishing qualification, reliability, and helpfulness rests on the proponent of the expert opinion, whether the proponent is the plaintiff or the defendant in a civil suit, or the government or the accused in a criminal case.").
Rule 702 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.
Fed. R. Evid. 702.
"Under Rule 702 and Daubert , district courts must act as ‘gate keepers’ which admit expert testimony only if it is both reliable and relevant." Rink v. Cheminova, Inc. , 400 F.3d 1286, 1291 (11th Cir. 2005) (citing Daubert , 509 U.S. at 589, 113 S.Ct. 2786 ). The purpose of this role is "to ensure that speculative, unreliable expert testimony does not reach the jury." McCorvey v. Baxter Healthcare Corp. , 298 F.3d 1253, 1256 (11th Cir. 2002). Also, in its role as gatekeeper, a court's duty is not to make ultimate conclusions as to the persuasiveness of the proffered evidence. See Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd. , 326 F.3d 1333, 1341 (11th Cir. 2003).
To facilitate this process, district courts engage in a three-part inquiry to determine the admissibility of expert testimony:
(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 Chemicals, Inc. , 158 F.3d 548, 562 (11th Cir. 1998) (citations omitted). The Eleventh Circuit refers to the aforementioned requirements as the "qualification," "reliability," and "helpfulness" prongs and while they "remain distinct concepts"; "the courts must take care not to conflate them." Frazier , 387 F.3d at 1260 (citing Quiet Tech. , 326 F.3d at 1341 ).
In determining the reliability of a scientific expert opinion, the Eleventh Circuit also considers the following factors to the extent possible:
(1) whether the expert's theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error of the particular scientific technique; and (4) whether the technique is generally accepted in the scientific community. Notably, however, these factors do not exhaust the universe of considerations that may bear on the reliability of a given expert opinion, and a federal court should consider any additional factors that may advance its Rule 702 analysis.
Quiet Tech. , 326 F.3d at 1341 (citations omitted). The aforementioned factors are not "a definitive checklist or test," Daubert , 509 U.S. at 593, 113 S.Ct. 2786, but are "applied in case-specific evidentiary circumstances," United States v. Brown , 415 F.3d 1257, 1266 (11th Cir. 2005). While this inquiry is flexible, the Court must focus "solely on principles and methodology, not on conclusions that they generate." Daubert , 509 U.S. at 594-95, 113 S.Ct. 2786. It is also important to note that a "district court's gatekeeper role under Daubert ‘is not intended to supplant the adversary system or the role of the jury.’ " Quiet Tech. , 326 F.3d at 1341 (quoting Maiz v. Virani , 253 F.3d 641, 666 (11th Cir. 2001) ). Rather, "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking but admissible evidence." Daubert , 509 U.S. at 580, 113 S.Ct. 2786 ; see also Chapman v. Procter & Gamble Distrib., LLC , 766 F.3d 1296, 1306 (11th Cir. 2014) ("As gatekeeper for the expert evidence presented to the jury, the judge ‘must do a preliminary assessment 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.’ ") (quoting Kilpatrick v. Breg, Inc. , 613 F.3d 1329, 1335 (11th Cir. 2010) ).
"[T]he objective of [the gatekeeping role] is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire Co. v. Carmichael , 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The district court's role is especially significant since the expert's opinion "can be both powerful and quite misleading because of the difficulty in evaluating it." Daubert, 509 U.S. at 595, 113 S.Ct. 2786 (quoting Jack B. Weinstein, Rule 702 of the Federal Rules of Evidence is Sound; It Should Not Be Amended, 138 F.R.D. 631, 632 (1991) ).
III. ANALYSIS
Carnival seeks to strike the opinions of Drs. Torregrosa and Voglino for two independent reasons. First, Carnival says that, although the physicians rendered opinions on Plaintiff's injuries, neither considered other potential causes apart from the alleged scooter striking him onboard the cruise ship. Carnival blames Plaintiff for this shortfall because he failed to provide his experts with the necessary medical records to reflect his pre-existing conditions. Carnival sees this as a serious misstep because, eight days prior to the cruise, Plaintiff complained of heel pain that started a year beforehand. Carnival claims that the pain Plaintiff experienced was so significant that he underwent x-rays and doctors diagnosed him with a degenerative disc disease in his cervical and lumbar spine, bilateral plantar fasciitis, and epilepsy. Because Plaintiff failed to disclose this information to his experts, Carnival concludes that their opinions are fundamentally flawed.
Plaintiff first met with Dr. Voglino on October 16, 2019 but, when his medical condition did not improve, the latter referred him to Dr. Torregrosa who performed the surgery referenced above.
Second, Carnival argues that the expert opinions are inadmissible because they are too speculative in suggesting that Plaintiff might incur future medical costs. Carnival takes issue, for example, with Dr. Torregrosa's opinion because it states that Plaintiff's medical costs could increase in the future:
My estimation of the actual costs for treatment of the aforementioned injury are a minimum of $30,000 but could be substantially higher. This patient has already incurred significant medical costs when it comes to the foot and ankle which will increase substantially once surgical intervention is done in the next several weeks. Furthermore, there will be additional medical costs that he may incur beyond this initial period as he recovers and which will depend on the extent of his recovery.
[D.E. 55-2 at 2]. Carnival suggests that the same problem applies to Dr. Voglino because he found that Plaintiff's future medical costs were only "likely" to exceed a certain threshold:
His future (non-foot) care costs are likely to exceed $30,000 (injections spinal/-neuro-orthofollowup-imaging/meds/therapy etc.). If he ends up with lumbar spinal surgery for his disc herniation future non-foot care costs would likely exceed $100,000. (Since care is ongoing, I reserve the right to add to this report.).
[D.E. 55-1].
Carnival views this as inadequate because, without any methodology presented in the opinions, it is unclear how either of Plaintiff's experts are providing anything other than an educated guess. [D.E. 55 at 8 ("Neither of Plaintiff's medical experts identify any source for the information on which they rely.")]. And even if Plaintiff's experts intended to rely solely on their professional experiences, Carnival says that their opinions still fall short because there is nothing that explains how they reached their conclusions. Thus, Plaintiff asks that the Court exclude both experts because (1) there is no evidence that they have any personal knowledge of billing practices or the costs of medical care, (2) the reports rely on an incomplete set of data, and (3) the opinions lack any scientific principles. We consider each argument in turn.
Carnival does not challenge either expert's qualifications or their helpfulness to the trier of fact. Instead, Carnival seeks to exclude both experts because they fail to meet Daubert's reliability standards. Since neither the qualifications nor helpfulness prong are at issue, we limit our analysis accordingly.
A. Whether Plaintiff's Experts Should be Excluded for Causation
Carnival's first argument is that Drs. Torregrosa and Voglino should be excluded for a failure to consider other potential causes to Plaintiff's medical condition. The standard methodology for orthopedics to render a reliable opinion requires them to examine a plaintiff's medical history, perform a physical exam, monitor symptoms, and review imaging. See Buckler v. Star Fleet Trucking, Inc. , 2020 WL 4722066, at *4 (N.D. Ga. Jan. 31, 2020) ("Dr. Myers engaged in standard practice for medical doctors – he took and analyzed Plaintiff's history, performed a physical exam, monitored symptoms, and reviewed imaging."); see also Bach-Tuyet Chau v. NCL (Bah.) Ltd. , 2017 WL 3623562, at *11 (S.D. Fla. May 3, 2017) ("Examining patients, taking a medical history, reviewing x-rays and concluding that [a plaintiff's] injury was caused by her then recent fall is consistent with techniques that have been generally accepted in the proper scientific community.").
The problem here is that Plaintiff failed to provide Drs. Torregrosa and Voglino with his complete medical file prior to them issuing their opinions. Neither expert knew, for example, that Plaintiff underwent long term medical care for any heel pain or that Plaintiff sought treatment as recently as eight days prior to his cruise. That means, when both experts ruled out other potential causes, their opinions only provided a snapshot of the possible reasons for Plaintiff's medical condition. Carnival's argument is therefore not without merit because a full and complete causation analysis requires a review of the entire medical file.
The relief Carnival seeks is nonetheless inappropriate because, even though Plaintiff's experts relied on a reduced set of data in forming their opinions, absolute certainty on causation is not required:
Expert testimony is admissible which connects conditions existing later to those existing earlier provided the connection is concluded logically. Whether this logical basis has been established is within the discretion of the trial judge and the weaknesses in the underpinnings of the expert's opinion go to its weight rather than its admissibility. On cross-examination, the opposing counsel is given the opportunity to ferret out the opinion's weaknesses to ensure the jury properly evaluates the testimony's weight and credibility.
Jones v. Otis Elevator Co. , 861 F.2d 655, 662 (11th Cir. 1988).
Carnival's response is that Plaintiff's experts failed to provide any certainty on causation because neither considered the entire medical file nor is it clear what they considered in rendering their opinions. Both of those arguments are, in some respects, well taken because – in taking an independent review of the expert opinions – they only provide the bare minimum with respect to causation. The experts rule out, for example, other pre-existing conditions but neither adequately identifies what they considered or how they ruled out other possibilities.
However, given that both experts have general knowledge of their treatment relationships with Plaintiff, we cannot say for certain that the connection between Plaintiff's pre-existing medical conditions and his current medical status is so attenuated to justify their wholesale exclusion. See, e.g. , Buckler , 2020 WL 4722066, at *4 ("While Dr. Myers admittedly could not rule out every single potential cause for Plaintiff's injury, this limitation is proper for cross-examination, not exclusion.") (citing Westberry v. Gislaved Gummi AB , 178 F.3d 257, 265 (4th Cir. 1999) ("[A] medical expert's causation conclusion should not be excluded because he or she has failed to rule out every possible alternative cause of a plaintiff's illness."); Jones , 861 F.2d at 662 ("On cross-examination, the opposing counsel is given the opportunity to ferret out the opinion's weaknesses to ensure the jury properly evaluates the testimony's weight and credibility.")). The connection here is just weak and subject to extensive cross-examination. Accordingly, Carnival's motion to exclude Plaintiff's experts for causation purposes is DENIED because, although neither Drs. Torregrosa nor Voglino considered the entire medical file, they have done enough to link Plaintiff's pre-existing medical condition to his current medical status. Carnival will have every opportunity at trial to highlight the inadequacies of these opinions and to let the jury decide whether to give them any consideration.
B. Whether Plaintiff's Experts Should be Excluded on Costs
Carnival's second argument is that the opinions of Plaintiff's experts are too speculative in connection with Plaintiff's past and future medical costs. Carnival says that the opinions are inadmissible because they rely on questionable modifiers – such as "if," "anticipated," "likely," and "could be" – that make it unclear how much in costs Plaintiff has sustained in the past and what that total might look like in the future. Given the rampant speculation, Carnival reasons that any opinion on medical costs is inadmissible and should be stricken.
Starting with Plaintiff's past medical costs, Carnival complains that the two experts failed to assess the reasonableness of these expenses. [D.E. 55 at 7 ("He does not conduct any analysis of the reasonableness of the medical expenses incurred in the past.")]. This argument fails because Carnival fails to reference any authority, and the undersigned is unaware of none, that requires an expert to opine on the reasonableness of past medical expenses for an opinion to comply with Daubert . This is especially so where Plaintiff produced the actual medical expenses that he incurred in his treatments with both physicians. It is therefore unclear what more Carnival seeks in connection with Plaintiff's past medical costs because, although neither expert rendered an opinion on this subject, Carnival failed to reference a case that required them to do so.
Turning to Plaintiff's future medical costs, Carnival says that the expert opinions are too speculative to be reliable and that their "estimates are anything but scientific." Id. Carnival complains that the opinions fall short for several reasons because the physicians failed to lay a proper predicate for the conclusions that they reached, failed to identify any source of information for which they relied upon, and failed to include any information of their personal knowledge on billing practices and medical costs.
These arguments are compelling with respect to the weight that should be given to these opinions, but they are not suitable for exclusion under Daubert . Dr. Voglino opined, for example, that Plaintiff's future medical expenses are "likely to exceed $30,000," and, if lumbar spinal surgery is required, those costs "would likely exceed $100,000." [D.E. 55-1 at 2]. Similarly, Dr. Torregrosa found that Plaintiff's treatment costs will require "a minimum of $30,000 but could be substantially higher ... once surgical intervention is done in the next several weeks." [D.E. 55-2 at 2]. He also stated that "there will be additional medical costs ... beyond this initial period as [Plaintiff] recovers," and that future expenses would "depend on the extent of [Plaintiff's] recovery." Id.
Carnival takes issue with these experts because it is unclear how they formed their opinions. But, that argument is unavailing because the experts explained earlier in their reports how their experience and treatment relationships informed their opinions on Plaintiff's current and future medical condition. See, e.g. , [D.E. 55-1 at 1 ("This 49 year old male has been treatment by me since 10/16/19 (with his last visit 1/13/21)" and Plaintiff has "had extensive conservative treatment and remains currently with post-traumatic affected antalgic gait.")]; [D.E. 55-2 at 1 ("A team approach has been taken to treat this patient which includes a neurologist, an orthopedic surgeon, and my involvement as a foot and ankle surgeon.")].
Carnival's actual complaint is with the level of detail included in the expert reports. That, however, is not a sufficient basis for the exclusion of these experts because, given their individual levels of experience and their history of treating Plaintiff's symptoms, that is enough to provide an estimate of Plaintiff's future medical costs. See, e.g. , Hernandez v. Crown Equip. Corp. , 92 F. Supp. 3d 1325, 1353 (M.D. Ga. 2015) ("Having worked in the areas of vocational rehabilitation and disability case management for over forty years, Atkinson has extensive experience in assessing future life expenses for disabled individuals.") (citing Davis v. United States , 2011 WL 7053628, at *1-2 (S.D.W. Va. Sept. 16, 2011) (allowing an expert to testify as a life care planner despite lacking formal certification because she had thirty years of experience in that field)).
We are also unpersuaded with Carnival's argument that Plaintiff's experts failed to give an opinion with any certainty on the specific amount of future medical expenses. While Drs. Torregrosa and Voglino use modifiers to estimate the likelihood of future medical costs, it is unclear what more Carnival wanted them to provide given all the factors that are evaluated in determining these costs. Dr. Voglino stated, for example, that Plaintiff's costs were dependent on injections, neurological follow-up appointments, therapy, the success of surgical operations, ongoing care, and other unforeseen factors that can increase or reduce expenses. This is why he opined that Plaintiff's expenses are likely to exceed $30,000 and, dependent on other factors, could exceed $100,000. The same is true with Dr. Torregrosa's report where he states that treatment costs would cost a minimum of $30,000 and could increase further depending on the success of surgical interventions. Neither of these estimates lack certainty. If anything, they are tailored to the expenses incurred thus far and provide a reasonable estimate of future medical costs.
Absolute certainty is not a Daubert requirement because otherwise anytime an expert fails to provide a specific amount in future damages, he or she would be subject to exclusion.
Nonetheless, Carnival suggests that the opinions remain inadequate because there is insufficient information to determine precisely how each expert arrived at their respective estimate on future medical costs. That, however, is a question reserved for trial because both experts have given an overview of the information they considered and the end result. If Carnival wants a step-by-step explanation on how each expert weighed certain factors, they have every right to make that inquiry through vigorous cross-examination. See Hernandez , 92 F. Supp. 3d at 1354 ("If Crown harbors suspicions that, in its final, formal form, a life care plan for Mr. Hernandez would have been markedly different from Atkinson's conclusions, its counsel should rigorously question her about it at trial."). But, Carnival may not exclude these experts when the information they seek is already in the expert reports albeit in a reduced form. Thus, Carnival's Daubert motion is DENIED because, while it complains that the predicate for Plaintiff's future medical costs is absent, the information is presented in a reduced form. The only task left is to challenge these opinions in front of a jury as opposed to using a Daubert motion as a vehicle for exclusion.
IV. CONCLUSION
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that Carnival's Daubert motion is DENIED .
DONE AND ORDERED in Chambers at Miami, Florida, this 15th day of June, 2021.