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denying motion to exclude based on medical expert's review of medical records without physical examination
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CASE NO. 15-24410-CIV-ALTONAGA/O'Sullivan
08-26-2016
David A. GEYER, Plaintiff, v. NCL (BAHAMAS) LTD., Defendant.
Glenn J. Holzberg, Law Offices of Glenn J. Holzberg, Miami, FL, for Plaintiff. Darren Wayne Friedman, Jeffrey Eric Foreman, Foreman Friedman, PA, Geoffrey Edward Probst, Norwegian Cruise Lines Inc., Miami, FL, Jenna Francine Gushue, Foreman Friedman, PA, for Defendant.
Glenn J. Holzberg, Law Offices of Glenn J. Holzberg, Miami, FL, for Plaintiff.
Darren Wayne Friedman, Jeffrey Eric Foreman, Foreman Friedman, PA, Geoffrey Edward Probst, Norwegian Cruise Lines Inc., Miami, FL, Jenna Francine Gushue, Foreman Friedman, PA, for Defendant.
ORDER
CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE
THIS CAUSE came before the Court upon Defendant, NCL (Bahamas) LTD.'s ("Norwegian['s]") Amended Daubert Motion ... ("Motion") [ECF No. 33], filed July 6, 2016. Plaintiff, David A. Geyer ("Plaintiff") filed a Response ... ("Response") [ECF No. 45] on July 29, 2016; and Norwegian filed a Reply ... ("Reply") [ECF No. 54] on August 11, 2016. The Court has carefully considered the parties' submissions, the record, and applicable law.
This is a maritime negligence action brought by Plaintiff against Norwegian alleging he sustained a shoulder injury onboard the Norwegian Getaway when an unsupervised child collided with him at the kids' aqua park. (See generally Complaint [ECF No. 1]; Resp. 1–2). At issue is Norwegian's Daubert challenge to Plaintiff's expert, Gerard Stashak, M.D. ("Stashak"). (See generally Mot.). The Court addresses the Daubert challenge, reserving judgment on any remaining issues.
I. LEGAL STANDARD
Federal Rule of Evidence 702 governs the admission of expert evidence. See Daubert , 509 U.S. at 589, 113 S.Ct. 2786. Under Rule 702, "district courts must act as ‘gatekeepers' which admit expert testimony only if it is 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 ). An expert may testify, 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.
In assessing the admissibility of expert testimony, the Eleventh Circuit requires district courts to engage in a three-part inquiry to determine 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.
United States v. Frazier , 387 F.3d 1244, 1260 (11th Cir.2004) (citing City of Tuscaloosa v. Harcros Chems., Inc. , 158 F.3d 548, 562 (11th Cir.1998) ). "The Eleventh Circuit refers to these requirements as the ‘qualifications,’ ‘reliability,’ and ‘helpfulness' prongs, respectively." Clena Inv., Inc. v. XL Specialty Ins. Co. , 280 F.R.D. 653, 660 (S.D.Fla.2012) (citations omitted). The proponent of the expert testimony bears the burden of establishing by a preponderance of the evidence the expert's qualifications, reliability, and helpfulness. See Hendrix ex rel. G.P. v. Evenflo Co., Inc. , 609 F.3d 1183, 1194 (11th Cir.2010).
With respect to the first requirement, "experts may be qualified in various ways. While scientific training or education may provide possible means to qualify, experience in a field may offer another path to expert status." Frazier , 387 F.3d at 1260–61. For the second requirement, the Supreme Court suggested in Daubert a non-exhaustive list of several factors to consider in determining if a methodology is reliable under Rule 702 : (1) whether the methodology can and has been tested; (2) whether the methodology has been subjected to peer review and publication; (3) the known or potential rate of error and the existence and maintenance of standards controlling operation of the methodology; and (4) whether the methodology has gained general acceptance in the scientific community. 509 U.S. at 593–94, 113 S.Ct. 2786 (declining to set forth a "definitive checklist or test"); accord Kumho Tire Co. v. Carmichael , 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).
In Kumho , the Supreme Court emphasized, "the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable." 526 U.S. at 152, 119 S.Ct. 1167. Nevertheless, while the inquiry is "a flexible one," the focus "must be solely on principles and methodology, not on the conclusions that they generate." Daubert , 509 U.S. at 594–95, 113 S.Ct. 2786. "But conclusions and methodology are not entirely distinct from one another .... [N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." Gen. Elec. Co. v. Joiner , 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (alterations added).
As to the third element, whether testimony assists the trier of fact "goes primarily to relevance. Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful." Daubert , 509 U.S. at 591, 113 S.Ct. 2786 (citation and internal quotation marks omitted).
In assessing the validity of the expert's methodology, the district court may not "make ultimate conclusions as to the persuasiveness of the proffered evidence." Quiet Tech. DC – 8, Inc. v. Hurel – Dubois UK Ltd. , 326 F.3d 1333, 1341 (11th Cir.2003). "The gatekeeper role ... is not intended to supplant the adversary system or the role of the jury." Allison v. McGhan Med. Corp. , 184 F.3d 1300, 1311 (11th Cir.1999) (alteration added). Instead, "[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." Daubert , 509 U.S. at 596, 113 S.Ct. 2786 (alteration added). The court's role is limited to analyzing if the evidence is unreliable and irrelevant "because of its inability to assist in factual determinations, its potential to create confusion, and its lack of probative value." Allison , 184 F.3d at 1311–12.
II. ANALYSIS
Norwegian argues Stashak's testimony should be excluded in its entirety because: (1) Stashak's opinion is unreliable as he solely relied on Plaintiff's medical records in reaching his opinion (see Mot. 2); and (2) to the extent Stashak is allowed to testify, Stashak's new opinions, disclosed at the time of his deposition, should be stricken "for failure to comply with the disclosure requirements of Rule 26" (id. ). Plaintiff insists: (1) Stashak's testimony is admissible because it is "based upon sufficient information and meets the factors required by Daubert and ... Rule 702" (Resp. 2 (alteration added)); and (2) Stashak's new opinions should be permitted because he disclosed them at his deposition and they are based on "additional medical records obtained ... after his initial medical record review" (id. (alteration added)); thus, Plaintiff's untimely disclosure is harmless and "justified under the changing medical circumstances of the injury" (id. ).
Stashak is an orthopedic and shoulder surgeon with twenty-six years of experience. (See generally Gerald T. Stashak, M.D. Curriculum Vitae; see also Deposition of Gerald T. Stashak, M.D. ("Stashak Deposition") [ECF No. 33-2] 17:2–7, 69:6–7). He has: (1) seen "thousands" of patients with shoulder injuries (Stashak Dep. 69:12–14); (2) performed "hundreds" of shoulder surgeries (id. 69:15–18); and (3) "most often" performs the surgery Plaintiff received (id. 17:4–6). In light of Stashak's experience, he satisfies the first prong of Frazier —qualifications—because he is qualified to competently testify as an expert, see Frazier , 387 F.3d at 1260, and Norwegian does not challenge the adequacy of Stashak's credentials to testify as an expert (see generally Mot.). Norwegian's challenge focuses solely on the second prong of Frazier —reliability, see 387 F.3d at 1260 (requiring "the methodology by which the expert reaches his conclusions [to be] sufficiently reliable as determined by the sort of inquiry mandated in Daubert " (alteration added))—arguing Stashak's methodology is unreliable (see Mot. 7–20).
While Stashak did not speak to or examine Plaintiff (see Stashak Dep. 18:13–14, 18:9–10, 18:20–22); interview Plaintiff's treating physicians (see id. 20:21–23); or obtain Plaintiff's medical records that predate the cruise ship incident (see id. 20:24–21:1), Stashak did base his evaluation on Plaintiff's medical records following the cruise ship incident (see id. 18:15–19; 28:4–5 ("[A] medical record review, that's what my entire opinion is based on." (alteration added)).
"The Court accepts as a general proposition that a physician need not necessarily examine a patient, interview that patient, or speak with the patient's treating physician(s) in order to render opinions regarding diagnosis, prognosis, course of treatment and perhaps even causation. In other words, the Court does not deem it necessarily fatal that an expert medical witness has relied on medical records alone to reach a specific causation opinion." Haller v. AstraZeneca Pharm. LP , 598 F.Supp.2d 1271, 1294–95 (M.D.Fla.2009) (footnote omitted). Defendant argues Stashak's opinions are not based on facts, but are instead based on speculation because Stashak never spoke to Plaintiff. (See Mot. 7–8). But Defendant fails to cite any case law standing for the proposition medical records are not facts and reliance on these records amounts to speculation and renders a medical expert's methodology unreliable. (See generally id. ).
Relevant case law states "the fact that a physician has not examined the plaintiff does not necessitate a finding that any such expert report or testimony offered by the physician is inadmissible under Daubert. " Rafferty v. Erhard , No. 09–CV–1019, 2012 WL 2577473, at *7 (W.D.N.Y. July 3, 2012) ; see also Giladi v. Strauch , No. 94–CIV–3976–RMB–HBP, 2007 WL 415365, at *9 (S.D.N.Y. Feb. 6, 2007) (medical expert's opinions "are not mere ipse dixit pronouncements" because they are based upon his review of medical records and "his extensive experience as an orthopedic and hand surgeon"); Carroll v. Morgan , 17 F.3d 787, 790 (5th Cir.1994) (medical expert's testimony based on thirty years of experience and his review of medical records and published materials was " ‘ground[ed] in the methods and procedures of science’ and was not mere ‘unsupported speculation.’ " (alterations in original) (quoting Daubert , 509 U.S. at 590, 113 S.Ct. 2786 )).
In Rafferty , the medical expert "did not examine the plaintiff, but instead issued a report based upon his review of the various medical records and tests relating to the plaintiffs['] injuries." 2007 WL 415365, at *5 (alteration added). The court determined the medical expert's testimony was admissible because he was a qualified physician, with years of experience, and his opinion was based on reviewing medical records, which was acceptable under Daubert . See id. at *7.
Similarly, here, Stashak's testimony is admissible because it is based on his twenty-six years of experience as an orthopedic surgeon and his review of Plaintiff's medical records. (See generally Stashak Dep.); see also Kannankeril v. Terminix Int'l, Inc. , 128 F.3d 802, 809–10 (3d Cir.1997) ( "[T]he district court erred in ruling [the medical] expert['s] testimony on causation was inadmissible" even though the expert did not examine or speak to the plaintiff and relied solely on the plaintiff's medical records. (alterations added)).
Even though Stashak testified he usually examines patients before drawing conclusions, he "believe[s] that the communication between and amongst surgeons is enough for [him] to come up with an opinion with medical certainty." (See Stashak Dep. 18:23–24:15 (alterations added)). It is not detrimental that on this occasion, Stashak solely relied on medical records, even though he usually evaluates patients before rendering opinions. See Walker v. Soo Line R.R. , 208 F.3d 581, 588 (7th Cir.2000) ("Medical professionals have long been expected to rely on the opinions of other medical professionals in forming their opinions."); In re James Wilson Assocs. , 965 F.2d 160, 172 (7th Cir.1992) ("An expert is of course permitted to testify to an opinion formed on the basis of information that is handed to rather than developed by him—information of which he lacks first-hand knowledge and which might not be admissible in evidence no matter by whom presented." (citing FED. R. EVID. 703 )). Any credibility issues are for the jury to determine, and Norwegian will have the opportunity to cross-examine Stashak at trial. See Daubert , 509 U.S. at 596, 113 S.Ct. 2786 ("Vigorous 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." (citation omitted)).
Norwegian next argues Stashak's opinion Plaintiff may need additional surgeries should be excluded because Stashak did not disclose this opinion in his report. (See Mot. 3–6). In his report, Stashak opined Plaintiff "would not likely require any additional surgical procedure" (Stashak Report [ECF No. 33-1] 8), but at his deposition, Stashak opined Plaintiff may need additional surgical procedures (see Stashak Dep. 30:3–18). Stashak explained his opinion changed upon reviewing new information regarding Plaintiff's therapeutic process that had not been available when he prepared his report. (See id. 31:3–25). Stashak obtained recent medical records from Plaintiff's treating orthopedic surgeon showing Plaintiff had an exacerbation and was having ongoing symptoms. (See id. ). This information led Stashak to conclude Plaintiff may need future surgical procedures. (See id. ).
It is within the Court's discretion to determine whether to permit untimely disclosed expert testimony. See Mitchell v. Ford Motor Co. , 318 Fed.Appx. 821, 824 (11th Cir.2009). Exclusion of untimely disclosed testimony is not automatic and mandatory, as Norwegian insists. (See Mot. 3 (arguing the evidence "must" be excluded under Federal Rule of Evidence 26)). Instead, the non-disclosing party may use the evidence upon showing the failure "was substantially justified or harmless." Mitchell , 318 Fed.Appx. at 824 (citation omitted); see also FED. R. CIV. P. 37(c)(1) ("If a party fails to provide information or identify a witness as required by Rule 26(a) or (e)," the information is excluded "unless the failure was substantially justified or is harmless.").
Here, Stashak changed his opinion based on new medical records not available when he wrote his report (see Stashak Dep. 31:3–25); thus, the untimely disclosure is justified. It would be prejudicial to Plaintiff to preclude Stashak from relying on Plaintiff's complete medical records and limit Stashak's opinion to Plaintiff's medical records before Stashak's report. Additionally, admitting the new opinion is harmless because Stashak's deposition testimony was given on June 20, 2016 (see id. 1), and trial is set for the two-week trial period beginning October 3, 2016 (see Order Setting Trial ... [ECF No. 13] 1). That gives Norwegian more than three months to consult its expert regarding Stashak's new opinion and request permission from the Court to further depose Stashak on his new opinion. Although Norwegian argues it was "deprived of the ability to effectively cross-examine Stashak" (Mot. 6), Norwegian has the opportunity to cross-examine Stashak before trial and at trial. Thus, admitting the evidence is harmless.
III. CONCLUSION
For the foregoing reasons, it is
ORDERED AND ADJUDGED that the Motion [ECF No. 33] is DENIED .
DONE AND ORDERED in Miami, Florida, this 26th day of August, 2016.
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).