2019 WL 1233613

United States District Court, W.D. Arkansas, Texarkana Division.
Marqchello JORDAN, Plaintiff
v.
Elmer ENRIQUE VENTURA, and John Does 1-3, Defendants
Case No. 4:17-cv-4011
|
Signed 03/15/2019
Attorneys and Law Firms
Frank H. Bailey, Bailey Oliver Law Firm, Mountain Home, AR, Geoff Hamby, Sach D. Oliver, Bailey Oliver Law Firm, Rogers, AR, James Andrew Robson, Pro Hac Vice, Glass Robson, Atlanta, GA, Timothy Ryan Scott, Bailey and Oliver Law Firm, Bentonville, AR, for Plaintiff.
Guy Alton Wade, Phillip M. Brick, Jr., Friday Eldredge Clark LLP, Little Rock, AR, for Defendants.

ORDER
Susan O. Hickey, Chief United States District Judge
*1 Before the Court is Plaintiff Marqchello Jordan’s Motion in Limine to Limit Portions of the Report and Testimony of Earl Peeples. (ECF No. 123). Defendant Elmer Enrique Ventura has filed a response. (ECF No. 144). The Court finds this matter ripe for consideration.

This case arises from an automobile accident that occurred on May 6, 2015, on I-30 near Prescott, Arkansas. Jordan and Ventura are both tractor-trailer drivers. Jordan claims that Ventura entered into Jordan’s travel lane and pushed his tractor-trailer into another, disabled tractor-trailer parked on the side of the interstate. Jordan alleges that he suffered injuries as a result of the accident.

Ventura plans to offer testimony from Dr. Earl Peeples as an expert witness. Dr. Peeples is expected to testify about Jordan’s health and medical treatment after he sustained injuries in the accident at issue. Jordan moves the Court to prohibit Dr. Peeples from testifying about (1) Plaintiff’s psychological issues and matters of secondary gain; (2) whether medical procedures or treatments were unnecessary; (3) irrelevant statistics of back pain generally that are not related to Jordan’s injuries; and (4) a medical examination done by Dr. D’Auria. Jordan also asks that the Court prohibit Dr. Peeples from testifying entirely because he failed to disclose a list of cases where he had previously testified as an expert witness.

A. Secondary Gain
Jordan has asked the Court to prohibit Dr. Peeples from testifying about secondary gain—the theory that patients who are involved in litigation tend to exaggerate their symptoms. Dowden v. Garcia, No. 4:05-CV-192-GTE, 2007 WL 1111256, at *1 (E.D. Ark. Apr. 13, 2007). Jordan argues that evidence of secondary gain is irrelevant and that any probative value of secondary gain is outweighed by the risk of unfair prejudice. Specifically, Jordan points to Rodgers v. CWR Const., Inc., 343 Ark. 126, 134, 33 S.W.3d 506, 511 (2000) and Dowden v. Garcia, No. 4:05-CV-192 GTE, 2007 WL 1111256, at *2 (E.D. Ark. Apr. 13, 2007) in support of these propositions.

In Rodgers, the Arkansas Supreme Court found that evidence of secondary gain was irrelevant where the expert did not opine that the plaintiff in that case was personally exaggerating his symptoms. In Dowden, the district court found that evidence of secondary gain was unfairly prejudicial where the treating physician planned to testify that the plaintiff was not recovering as well as his patients not involved in litigation.

Ventura argues that the case at bar is distinguishable from Rodgers and Dowden. Ventura points out that unlike in Rodgers, the expert in this case will be giving specific opinions about Jordan exaggerating his symptoms. Ventura further argues that this case is distinguishable from Dowden because that expert was unaware of the plaintiff’s complete medical history, whereas Dr. Peeples has reviewed Jordan’s complete medical history as well as other scholarly works on secondary gain.

Upon consideration, the Court finds that the probative value of secondary gain is outweighed by the risk of unfair prejudice. Although there are some factual distinctions between Rodgers and Dowden and the case at bar, the Court finds that evidence of secondary gain is prejudicial on its face and that such prejudice outweighs the probative value in this case. Therefore, Dr. Peeples will not be allowed to testify about secondary gain.

B. Unnecessary Medical Treatment
*2 Jordan asks the Court to prohibit Dr. Peeples from offering opinions that Jordan’s medical treatment was not clinically indicated or necessary. Jordan cites to Ponder v. Cartmell, 301 Ark. 409, 412, 784 S.W.2d 758, 761 (1990) for the proposition that where “a plaintiff proves that her need to seek medical care was precipitated by the tortfeasor’s negligence, then the expenses for the care she receives, whether or not the care is medically necessary, are recoverable.”

In response, Ventura directs the Court to Worman v. Allstate Indem. Co., No. 3:11-CV-03033, 2012 WL 5410933, at *3 (W.D. Ark. Nov. 6, 2012). In Worman, the court noted “[t]he limited holding of the Ponder case is that if a plaintiff proves that her need to seek medical care was precipitated by the tortfeasor’s negligence, then the expenses for the care she receives, whether or not the care is medically necessary, are recoverable.” Id. The court went on to state that “[t]he Ponder rule does not mean that any and all medical care sought by Plaintiff after her car accident must be 1) considered reasonable and necessary or 2) due to injuries proximately caused by the accident.” Id.

Upon consideration, the Court finds that Ponder does not bar questioning into whether medical treatment was reasonable and necessary. Moreover, Ventura is allowed to rebut Jordan’s allegations about the nature and severity of his injuries. Accordingly, Dr. Peeples will be allowed to testify about the necessity of Jordan’s medical treatment.

C. General Back Pain and Population Studies
It is well established that expert testimony must be relevant and assist the fact-finder in deciding the ultimate issue of fact. Johnson v. Mead Johnson & Co., LLC, 754 F.3d 557, 561 (8th Cir. 2014).

In the instant motion, Jordan requests that the Court prohibit Dr. Peeples from testifying to any generalized statements about back pain or bringing in any evidence of population studies because they are not relevant to the issues in this case. Jordan specifically objects to one excerpt from Dr. Peeples’ report as being overbroad. The excerpt reads as follows:
Back pain is so common that it must be considered to be a normal part of life, rather than a medical abnormality. The vast majority of presentations of low back pain are not injury-related, or otherwise associated with any general medical findings. For 85-90% of back pain cases, there is no general medical (non-psychiatric, non-psychological) diagnosis that explains the pain.
(ECF No. 124-1, p. 11). Ventura has not objected to excluding Dr. Peeples’ testimony concerning generalized statements about back pain and population studies.

Upon consideration, the Court finds that any population studies or generalized statements about back pain unrelated to Jordan’s injures are irrelevant and should be excluded. Accordingly, the Court will not allow Dr. Peeples to testify as to the above-quoted section of his report. The Court will also not allow Dr. Peeples to testify that generally back pain is very common and often has no known cause.

D. Testimony Regarding Dr. D’Auria’s Opinions
“[A]n expert may rely on otherwise inadmissible hearsay evidence in forming his opinion if the facts and data upon which he relies are of a type reasonably relied upon by experts in his field.” Arkwright Mutual Ins. Co. v. Gwinner Oil, Inc., 125 F.3d 1176, 1182 (8th Cir. 1997) (citation omitted). Consequently, “an expert [may] testify about facts and data outside of the record for the limited purpose of exposing the factual basis of the expert’s opinion.” Brennan v. Reinhart Institutional Foods, 211 F.3d 449, 451 (8th Cir. 2000). “Once expert testimony has been admitted, the rules of evidence then place the full burden of exploration of facts and assumptions underlying the testimony of an expert witness squarely on the shoulders of opposing counsel’s cross-examination.” Ratliff v. Schiber Truck Co., 150 F.3d 949, 955 (8th Cir. 1998) (internal citation and quotation marks omitted).

*3 Jordan argues that Dr. Peeples should not be allowed to testify concerning the opinions of Dr. D’Auria—a physician who examined Jordan after the tractor-trailer collision on behalf of an occupational accident insurance company. Jordan contends that Dr. D’Auira’s reports and opinions are likely to confuse the jury, would be unfairly prejudicial, and constitute inadmissible hearsay. Ventura argues that because Dr. Peeples is an expert, he is allowed to consider otherwise inadmissible evidence to form his opinions and that he is allowed to testify as to the factual basis of his opinions.

Upon consideration, the Court finds that Dr. Peeples—as an expert—may rely on otherwise inadmissible hearsay in forming his opinion. Accordingly, Dr. Peeples may rely on Dr. D’Auira’s opinions and reports and he may testify about them for the purpose of explaining the factual basis of his opinions. However, the court recognizes that introducing evidence for this purpose may be confusing to the jury. Therefore, counsel will approach the bench before introducing evidence of Dr. D’Auria’s opinions and reports. The Court will then instruct the jury that any hearsay is inadmissible as substantive evidence to prove the truth of the matter asserted.

E. Excluding Dr. Peeples’ for Failure to Comply with Disclosure Requirements
Federal Rule of Civil Procedure 26(a)(2)(B) requires a written report prepared and signed by a witness if the witness is retained and specially employed to provide expert testimony. Fed. R. Civ. P. 26(a)(2)(B)(v). “The report must contain … a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition.” Id. “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37.

Jordan argues that Dr. Peeples’ report and expected testimony should be excluded because Dr. Peeples failed to provide a list of cases where he testified as an expert witness over the last four years. In response, Ventura argues that the failure to disclose was harmless because his counsel immediately provided Jordan with Dr. Peeples’ case list when they were informed that it had not been included in Dr. Peeples’ disclosures. Ventura also argues that this is harmless error because Jordan’s counsel are familiar with Dr. Peeples as an expert witness.

Upon consideration, the Court finds that Dr. Peeples’ failure to disclose his case list is harmless. Expert disclosures in this case were due on December 1, 2017. Jordan did not raise this issue until Friday, March 1, 2019, and Ventura emailed the case list to Jordan on Tuesday, March 5, 2019. Moreover, Jordan has described Dr. Peeples as a “well-known” expert witness. Therefore, the Court finds that Jordan has not been prejudiced. Accordingly, Dr. Peeples will be allowed to testify at trial.

For the reasons stated above, the Court finds that Plaintiff’s motion (ECF No. 123) should be and hereby is GRANTED IN PART and DENIED IN PART.

IT IS SO ORDERED, this 15th day of March, 2019.

All Citations
Slip Copy, 2019 WL 1233613

2019 WL 1053633

United States District Court, W.D. Arkansas, Texarkana Division.
Marqchello JORDAN, Plaintiff
v.
Elmer Enrique VENTURA, John Doe 1, John Doe 2, and John Doe 3, Defendants
Case No. 4:17-cv-4011
|
Signed 03/05/2019
Attorneys and Law Firms
Frank H. Bailey, Bailey Oliver Law Firm, Mountain Home, AR, Geoff Hamby, Sach D. Oliver, Bailey Oliver Law Firm, Rogers, AR, James Andrew Robson, Pro Hac Vice, Glass Robson, Atlanta, GA, Timothy Ryan Scott, Bailey and Oliver Law Firm, Bentonville, AR, for Plaintiff.
Kyle Ray Wilson, Michael A. Thompson, Quinten Johnson Whiteside, Wright, Lindsey & Jennings LLP, Little Rock, AR, for Defendant Central Transport, LLC.
Guy Alton Wade, Phillip M. Brick, Jr., Friday Eldredge Clark LLP, Little Rock, AR, for Defendant Elmer Enrique Ventura.

ORDER
Susan O. Hickey, Chief United States District Judge
*1 Before the Court is Defendant Elmer Enrique Ventura’s Motion to Exclude Dr. Kamal Kabakibou. ECF No. 104. Plaintiff Marqchello Jordan has filed a response. ECF No. 111. The Court finds the matter ripe for consideration.

This case arises from an automobile accident that occurred on May 6, 2015, on I-30 near Prescott, Arkansas. Jordan and Ventura are both tractor-trailer drivers. Jordan claims that Ventura entered into Jordan’s travel lane and pushed his tractor-trailer into another, disabled tractor-trailer parked on the side of the interstate. Jordan alleges that he suffered injuries as a result of the accident.

At trial, Plaintiff intends to offer the expert testimony of Dr. Kamal Kabakibou regarding the cause of Jordan’s injuries. Dr. Kamal Kabakibou is Jordan’s treating physician. Ventura asserts that Dr. Kabakibou’s opinion that the accident caused Jordan’s injuries should be excluded because it is premised solely on the correlation between the onset of Plaintiff’s subjective complaints of pain and the accident. Jordan responds that Dr. Kabakibou has applied routine and accepted medical practices to draw a conclusion as to the cause of Plaintiff’s injuries.

The Court’s starting point for determining the admissibility of expert testimony is Federal Rule of Evidence 702, which provides a three-part test:
First, evidence based on scientific, technical, or other specialized knowledge must be useful to the finder of fact in deciding the ultimate issue of fact. This is the basic rule of relevancy. Second, the proposed witness must be qualified to assist the finder of fact. Third, the proposed evidence must be reliable or trustworthy in an evidentiary sense, so that, if the finder of fact accepts it as true, it provides the assistance the finder of fact requires.
Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001) (internal citations and quotations omitted). Rule 702 articulates three criteria for courts to use in judging the reliability of an expert’s opinion: (1) “the testimony is based on sufficient facts or data;” (2) “the testimony is the product of reliable principles and methods;” and (3) “the expert has reliably applied the principles and methods to the facts of the case.” Fed. R. Evid. 702(b)-(d). In Daubert, the United States Supreme Court emphasized the district court’s gatekeeper role when screening expert testimony for relevance and reliability. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591-93 (1993).

When assessing the reliability of expert testimony, Daubert suggests that the Court consider the following non-exhaustive factors: (1) whether the concept can and has been tested; (2) whether the concept has been subject to peer review; (3) what the known rate of error is; and (4) whether the concept is generally accepted by the relevant scientific community. Pestel v. Vermeer Mfg. Co., 64 F.3d 382, 384 (8th Cir. 1995). The inquiry as to the reliability and relevance of the testimony is a flexible one designed 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 (1999).

*2 Expert testimony is inadmissible only if it is speculative, unsupported by sufficient facts, or contrary to the facts of the case. Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1056-57 (8th Cir. 2000). When analyzing an expert’s testimony, the court must focus on the principles and methodology employed by the expert, and not on the conclusions generated by the expert. Daubert, 509 U.S. at 594. “Courts should resolve doubts regarding the usefulness of an expert’s testimony in favor of admissibility.” Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 758 (8th Cir. 2006); see also Polski v. Quigley Corp., 538 F.3d 836, 838 (8th Cir. 2008) (“Rule 702 reflects an attempt to liberalize the rules governing the admission of expert testimony. The rule clearly is one of admissibility rather than exclusion.”). “Only if the expert’s opinion is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded.” Bonner v. ISP Techs, Inc., 259 F.3d 924, 929-30 (8th Cir. 2001).

Dr. Kabakibou’s expert testimony meets the first two requirements of Rule 702. First, the testimony is relevant and can assist the jury in making a determination regarding Jordan’s injuries. Second, the Court finds that, based on his expertise and experience, Dr. Kabakibou is qualified to assist the finder of fact in making this determination.

Ventura’s primary argument is that Dr. Kabakibou’s opinion does not satisfy the third requirement under Rule 702 because it is not reliable or trustworthy. Specifically, Ventura argues that Dr. Kabakibou’s opinions are unreliable because they are premised solely on the correlation between the accident and the onset of Jordan’s complaints of pain. Ventura asserts that Dr. Kabakibou’s causation testimony is based on an impermissible post hoc ergo propter hoc argument—an argument in which one event is asserted to be the cause of a later event simply by virtue of having happened earlier, with nothing more to support it. Ventura characterizes Dr. Kabakibou’s causation opinion as follows: because the accident occurred before Jordan’s subjective complaints of back pain, the accident must have caused the pain. Ventura argues that Dr. Kabakibou has not demonstrated the scientific analysis used to arrive at this conclusion.

At his deposition, during questioning by defense counsel, Dr. Kabakibou, testified that he based his causation opinion “mainly” on Jordan’s medical history. ECF No. 104-1, pp. 6-7. Dr. Kabakibou explained that because Jordan’s back problems started immediately after the accident and Jordan had no history of back problems before the accident, the cause of Jordan’s back problems is logically related to the accident. ECF No. 104-1, p. 10. When asked by defense counsel whether the correlation between the onset of Jordan’s condition and the occurrence of the accident was the entirety of the basis of his causation opinion, Dr. Kabakibou replied that it was. ECF No. 104-1, pp. 9-10. However, Dr. Kabakibou also testified during the deposition that he relied on patient history, imaging studies, medical records from another treating physician, and a physical examination in formulating his causation opinion. ECF No. 111-3, pp. 3-5. Dr. Kabakibou further explained in an affidavit that he relied on these items to conduct a “differential diagnosis,” meaning he considered all likely scientific causes of Jordan’s injuries and pain complaints and eliminated the least likely causes until the most likely one remained. ECF No. 111-1. Dr. Kabakibou has twenty years of experience treating patients with traumatic injuries and stated that Jordan’s reported spinal injuries were consistent with other patients he treated who had suffered spinal trauma. ECF No. 111-3, pp. 23-24. Thus, it appears from the sum of the deposition testimony that Dr. Kabakibou considered more than just the temporal relationship between the accident and the onset of Jordan’s pain.

*3 Upon consideration, the Court cannot find that Dr. Kabakibou’s methodology is invalid or unreliable or that his expert opinion is speculative, unsupported by sufficient facts, or contrary to the facts of the case. Dr. Kabakibou explained that, in coming to his conclusion, he relied on Jordan’s medical history, imaging studies, medical records from another treating physician, and a physical examination, all of which he used to conduct a differential diagnosis. The Eighth Circuit has held that “a medical opinion about causation, based upon a proper differential diagnosis, is sufficiently reliable to satisfy Daubert.” Kudabeck v. Kroger Co., 338 F.3d 856, 861 (8th Cir. 2003). Ventura’s arguments attack the credibility and weight that Dr. Kabakibou’s testimony and opinions should be given, but Ventura has failed to demonstrate that Dr. Kabakibou’s opinions were reached in an unreliable manner or that his opinions are untrustworthy. Accordingly, the Court finds that Ventura’s motion (ECF No. 104) should be and hereby is DENIED.

IT IS SO ORDERED, this 5th day of March, 2019.

All Citations
Slip Copy, 2019 WL 1053633