Summary
holding that PC–Crash, as well as another computer simulation program, was “not the product of reliable principles and methods with regard to the underride accident in question, and the Court is not convinced that the witness has applied the principles and methods reliably to the facts of the case”
Summary of this case from Valente v. Textron, Inc.Opinion
CIVIL ACTION NO. 02-2219 SECTION "K"(2)
April 20, 2004
Minute Entry
Before the Court is plaintiff's Darrell Fairley's Motion in Limine to Strike Expert Witness Testimony of Franco F. Davati and Dr. J. Monroe Laborde. (Doc. 95) and defendants ASCO Logistics, L.L.C. ("ASCO"), Venture Transport, Inc. ("Venture") (referred to collectively as "defendants") and Ryan Joseph Clarke's Motion in Limine to Strike the expert testimony of Dr. Michael Molleston. On March 14, 2004, a hearing was held on these motions pursuant to the Court's gate-keeper function as set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999); however, none of the proffered experts were actually called to testify about their methods and their conclusions although the Court would have welcomed that testimony. Instead, documentary evidence and affidavits were introduced, and counsel's arguments were heard. At the conclusion of the hearing and once again during its review of the arguments and materials presented, the Court requested additional documentary evidence in an effort to understand the methods used by these experts to arrive at the opinions each party seeks to exclude. Having now reviewed the pleadings, memoranda, exhibits, affidavits, documents and the relevant law, the Court finds as follows.
The other plaintiffs, Emilia Fairley and their minor children UF and MF, have been dismissed from this matter.
Background
This case involves a rear-end impact collision between two trucks which occurred on July 31, 2001, at approximately 6:35 a.m. in Baytown, Texas, when Ryan Clarke ("Clarke"), the defendant, struck Darrell Fairley ("Fairley"). Fairley was operating a 1998 Freightliner tractor-trailer rig, which was pulling a flat-bed trailer loaded with two-by-four lumber. The combined weight of the Freightliner and its load was approximately eighty-thousand (80,000) pounds. Clarke was operating a 2000 Ford F-650 one ton flatbed truck, which was hauling off-shore supplies and a control panel.
Clarke was delivering freight to a shipyard when he claims that a white vehicle suddenly cut him off in the right lane of the I-10 west bound lane causing him to switch to the left lane to avoid hitting the white vehicle. He then allegedly passed that vehicle and returned to the right lane and drove for approximately 30 seconds until he struck Fairley. Clarke received a citation from the investigating officer for following too closely.
As a result of this incident, the trailer being pulled by the Freightliner sustained damage to the frame, the Department of Transportation (DOT) rear bumper and the two right rear tires. Clarke's truck and trailer were apparently disabled by the crash and damage was estimated in the amount of $17,054. The reason for the large amount of damage to Clarke's vehicle is that the accident was what is known as an "underride" as Clarkes' truck went "under" the flatbed of the Freightliner truck.
Plaintiff contends that as a result of this accident, he is completely disabled. He immediately reported a whiplash injury to his employer after the accident and reported the same to ambulance personnel who took him to San Jacinto Methodist Hospital. He sought treatment for neck and upper extremity pain and tingling on October 1, 2001, which treatment he contends culminated in a two-level anterior cervical fusion with plate and instrumentation performed by Dr. Michael C. Molleston on April 28, 2003. As a result, plaintiff contends that he is now totally disabled from work.
Defendants maintain that Fairley could not have suffered herniated cervical discs in the incident because the impact was not sufficiently severe to cause such injuries. As proof, defendants seek to present the testimony of Franco F. Davati of Failure Damage Analysis, Inc. and Dr. J. Monroe Laborde. plaintiff's motion seeks to exclude their testimony
It should be noted that Fairley previously injure his cervical spine in 1989, while working for ODECO and received a cervical discectomy infusion at C3-CR intervertebral level. He allegedly was released from his care to return to light duty work with restriction. On September 2, 1992, he was discharged with with a 10% permanent disability rating and allegedly advised not to engage in repetitive bending, lifting more than fifty to sixty pounds, prolonged standing, sitting or reaching. Fairley then apparently worked as a janitor then as a school bus driver. Thereafter, from 1995 until four days before Dr. Molleston performed surgery on the plaintiff, Fairley worked as along haul truck driver which is apparently considered to be medium to heavy duty work.
Plaintiffs apparently seek to introduce into evidence the testimony of Dr. Molleston to support the proposition that plaintiff is totally disabled. Defendants have filed a motion to strike that testimony.
Daubert Analysis
As this Court recently stated in Hebbler v. Turner, 2004 WL 414821 (March 1, 2004), "Trial courts have `wide discretion in deciding whether or not a particular witness qualifies as an expert under the Federal Rules of Evidence.'" (citing Hidden Oaks Limited v. City of Austin, 138 F.3d 1036, 1050 (5th Cir. 1998)). Federal Rule of Evidence 702 which governs the admissibility of expert testimony states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed.R.Evid. 702. The present rule was amended in 2000 to reflect the United States Supreme Court's decisions of Daubert, 509 U.S. 579, 113 S.Ct. 2786 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999). Daubert changed the criteria for the admissibility of expert testimony and charged trial courts to act as "gate-keepers" to ensure that the proffered testimony is both relevant and reliable. Daubert, 509 U.S. at 589, 592-93, 113 S.Ct. at 2795, 2796. Kumho Tire held that the relevant and reliable standard announced in Daubert for scientific expert testimony applied to all types of expert testimony. Id., 526 U.S. at 147, 119 S.Ct. at 1171.
Daubert provides a two-prong test for the trial judge to determine the admissibility of expert testimony. The court "must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Daubert, 509 U.S. at 592, 113 S.Ct. at 2796. Both prongs of the Daubert test must be satisfied before the proffered expert testimony may be admitted. Id. at 595, 113 S.Ct. at 2796. This analysis "entails 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." Id.
Thus, the first prong of Daubert focuses on whether the expert testimony is based on a reliable methodology. In determining an expert's reliability, the Court's focus "must be solely on principles and methodology, not on the conclusions that they generate." Id. at 595, 113 S.Ct. at 2797, 125 L.Ed.2d at 484. Several factors which maybe considered in determining the soundness of the scientific methodology include:
1) whether the theory or technique can be and has been tested;
2) whether the theory or technique has been subjected to peer review and publication;
3) the known or potential rate of error and the existence and maintenance of standards; and
4) whether the theory or technique used has been generally accepted.Id. at 593-94, 113 S.Ct. at 296-97, 125 L.Ed.2d at 482-83. These factors do not constitute a definitive checklist or test. Kuhmo Tire, 526 U.S. at 144, 119S.Q. at 1175. Instead, they compose a nonexclusive, flexible test to ascertain the validity or reliability of the methodology the expert employed. Id. The applicability of each factor depends on the particular facts of the case. Id.
The second prong, that is whether the proposed testimony will assist the trier of fact to understand or determine a fact in issue, goes primarily to the issue of relevancy. Daubert, 509 at 591. Indeed, this examination is described in Dauberi as whether expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute. hi citing United States v. Downing, 753 F.2d 1224, 1242 (3rd Cir. 1985). As noted in Cunningham v. Bienfang, 2002 WL 31553976 (N.D. Tex. Nov. 15, 2002), Fed.R.Evid. 401 defines "relevant evidence" as that which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
When expert testimony is challenged under Dauberi, the burden of proof rests with the party seeking to present the testimony. Moore v. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir. 1998). To meet this burden, defendants cannot simply rely on their expert's assurances that she has utilized generally accepted scientific methodology. Rather, some objective, independent validation of the expert's methodology is required. Id. Nonetheless, as Judge Vance stated in Scordill v. Louisville Ladder Group, L.LC, 2003 WL 22427981 (E.D.La. October 24, 2003):
The Court notes that its role as a gatekeeper does not replace the traditional adversary system and the place of the jury within the system. See Daubert, 509 U.S. at 596. As the Daubert Court noted, "[v]igorous cress-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means fo attacking shaky but admissible evidence." Id. (citing Rock v. Arkansas, 483 U.S. 44, 61, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). The Fifth Circuit has added that, in determining the admissibility of expert testimony, a district court must defer to "`the jury's role as the proper arbiter of disputes between conflicting opinions. As a general rule, questions relating to the bases and sources of an expert's opinion rather than its admissibility and should be left for the jury's consideration.'" United States v. 14.38 Acres of Land, Mor or Less Sit. in Leflore County, Miss. 80 F.3d 1074, 1077 (5th Cir. 1996) (quoting Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5lh Cir. 1987).Scordill, at *3. With these parameters in mind the Court will now term to the substantive motions.
Plaintiffs Motion to Strike Expert Testimony Mr. Franco F. Davati
Franco F. Davati ("Davati") is founding president of Failure Damage Analysis, Inc., an engineering consulting service in Houston, Texas. He received a Bachelor of Science degree in Engineering from Purdue University in 1981. He then received a Master of Science degree in Aerospace Engineering, which included mechanical engineering course work, with an emphasis in structural dynamics and failure analysis, from San Diego State University in 1984. He is a licensed Professional Engineer in the State of Texas, is a Diplomat of the American Board of Forensic Examiners, and is a member of the Society of Automotive Engineers. Thus, it is clear to the Court that he is an experienced professional engineer with a background in accident reconstruction.Davati issued a report analyzing the accident in question, the impact of the collision and an assessment of the potential for injury to Fairley. In essence Davati opines using collision analysis that Fairley experienced a maximum collision speed change in the range of 2.5 mph to 2.7 mph in the accident, and Clarke experienced a maximum forward collision speed change in the range of 7.7 mph to 8.3 mph in the accident. Davati then stated that the peak acceleration experienced in a 3.0 mph collision speed change is about 1.5 Gs where LOG is the acceleration of the earth's gravity, concluding that such a peak acceleration is less than that produced by sneezing or coughing. Davati thus concludes that acceleration of these magnitudes based on research and testing on human volunteers have shown that these types offerees can be tolerated without any adverse effects or discomfort.
In order to render this opinion, defendants opine that Davati used two "corroborating" methods. First, he used photographs of the property damage and repair appraisals of the vehicles to gather information regarding the size, shape, and dimensions of Clarkes' truck and Fairley's Freightliner. These two sources were his means to ascertain the damage and deformation caused to each vehicle by the impact. In addition, he obtained the approximate weight of each vehicle. Then, as to his second methodology, he used a computer program called WINCRASH which is based on work sponsored by the National Traffic Safety Administration which "assisted" Davati "in running complex mathematical calculations, yielding the change in speed at impact experienced by the vehicles, and the resulting forces transferred to the occupants." He also used PC-CRASH which helped him to determine "the change in speed of each vehicle post-impact, and the resulting forces on the occupants." Defendants contend that:
"[b]y taking the two analytical methods together, Mr. Davati was able to arrive at a mathematical consensus within a recognized, minimal, known rate of error for the approximate change in speed experienced by the plaintiff Mr. Fairley, and the estimated force exerted on the plaintiff Mr. Fairley's body, as expressed in delta-V and G-force measurement units respectively. After arriving at the measurements, Mr. Davati compared the delta-V and G-force to published, peer-reviewed studies regarding crash impact testing on live volunteers, and determined the maximum change in speed and resulting force experienced by the plaintiff Mr. Fairley was below the threshold for injury of all tested volunteers.
(Memorandum in Opposition, p. 14-15).
In reviewing this methodology, the Court finds fundamental flaws that lead the Court to conclude that this expert testimony will not be allowed. As to the first methodology, only photographs were used. As such, the Court is not impressed with Davati's ability to estimate the post impact speed of the vehicle based upon a review of photographs of the damage to the vehicle. Sheila Easly v. Wausau Ins. Co., C. A. No. 01-2681 (Doc. 28) (Berrigan, J.) He never inspected the vehicles or the actual damage caused. Indeed, even the photographs of the plaintiff's rear bumper were taken after the bumper had been straightened by the tow truck and do not necessarily accurately depict the actual damage. The "actual damage" to Clarke's truck used was an insurance adjuster's estimate, not invoices describing the actual damage repaired. Thus, the very basis of his calculations are questionable. Furthermore, no skid marks were used to determine the co-efficient of friction. As stated in Smithers v. CG Custom Module Hauling, 172 F. Supp.2d 765, 771 (E.D. Va. 2000), "[a] valid scientific theory misapplied because of the lack of sufficient factual foundation cannot be admitted because it does not assist and, indeed may ultimately confuse the fact finder."
Because of these infirmities, as noted, the Court requested more information in the software programs used-WINCRASH and PC-CRASH. Defendants informed the Court that ED-CRASH is the same computer program as WIN-CRASH, but produced by a separate company; both ED-CRASH and WIN-CRASH are PC versions of the CRASH3 program developed and used by the National Highway Traffic Safety Administration. In the CRASH3 Technical Manual, it states unequivocally, "Accepting the results of a particular CRASH3 run as absolute truth is plainly unwise. CRASH3 was intended as a statistical tool to identify and isolate problems in motor vehicle safety, not as a simulation program, and should be used accordingly." (emphasis added) (Crash 3 Technical Manual, U.S. Department of Transportation, National Highway Traffic Safety Administration, National Center for Statistics and Analysis, Accident Investigation Division, p. 1.5) ("Crash 3 Manual"). Moreover, the manual further states with respect to "Severe Override/Underride":
A measuring protocol has been developed for override/underride accidents. However, when the override/underride is sever, such as that produced by a vehicle contacting an overhanging structure only at hood height, the protocols cannot compensate. In these cases the crush reported even after averaging, would not yield an energy representative of that actually involved. Therefore, this type of case should not be run using CRASH.
Crash Manual, p. 1.11.3 Thus, the accident in question is not subject to a proper analysis using the computer programs employed considering the limited amount of reliable information inputted into the program and the resulting analysis. In this instance there was over $18,000 in damage to the defendant's truck which underrode the Freightliner. Indeed, the rear steel underride guard in the back right corner of the trailer to Fairley's vehicle was pushed into the rear tandem tires and cause one of the tires to rupture.
The Court has also reviewed the CRASH 5.1 manual and there is no refutation or comment that this limitation has been eradicated from the program.
Furthermore, as noted, the expert did not appear before the Court and thus, there was no opportunity for the Court to inquire about these deficiencies. In addition, the court has not been cited to any cases where the program has been accepted as reliable especially with the factual situation existing here. Thus, with respect to the Davati report, the Court finds that the defendants have failed in their burden of proof in that the Court finds that the testimony is not based on sufficient facts or data; it is not the product of reliable principles and methods with regard to the underride accident in question, and the Court is not convinced that the witness has applied the principles and methods reliably to the facts of the case. Fed.R.Evid. 702. See Reali v. Mazda Motor of America, Inc., 105 F. Supp.2d 75, 77 (D. Me. 2000)
Finally, as to Davati's conclusions that the plaintiff could not have been injured with the force that Davati computed, the Court has rejected the computations with regard to the force, so the conclusions based thereon, are inadmissable as well. Furthermore, Davati is not a bio-mechanical engineer, and is therefore, not qualified to give a medical causation opinion. In addition, the comparisons made to forces that volunteers experienced in tests performed while doing "daily activities" are unavailing. "The conclusions based on tests done in other circumstances involving other persons, are not sufficiently linked to the facts of this case to be helpfully probative." Sheila Easly v. Wausau Ins. Co., C. A. No. 01-2681 (Doc. 28) (Berrigan, J.) (decision wherein Judge Berrigan disallowed similar testimony from an expert who was at one time with an accident reconstruction group with which Davati was previously affiliated). Accordingly,
IT IS ORDERED that plaintiff's Motion in Limine (Doc. 95) is GRANTED to the extent that the testimony of Franco Davati is excluded.
Plaintiffs Motion to Strike Expert Testimony Dr. J. Monroe Laborde, Jr.
Plaintiff seeks to strike Dr. Laborde's November 19, 2003 report in which he opines that the accident neither injured the Fairley's neck nor caused the need for subsequent surgery because Davati's collision analysis revealed that Fairley experienced a maximum collision speed change of between 2.5 and 2.7 mph which is below the threshold that could cause personal injury. In addition, plaintiff seeks the exclusion of any testimony concerning "psychological problems" (April 9, 2003 Report) or "psychological factors" (April 23, 2003 Report) being the reason for Fairley's surgery.
Dr. Laborde is an orthopedic surgeon and also has a Masters in Biomedical Engineering which he received in 1976. He received his M.D. from Tulane University in 1973. He also has a teaching appointment in the Departments of Orthopedics and Biomedical Engineering at Tulane. Clearly, Dr. Laborde is qualified as an expert as an orthopaedic surgeon with a specialty in biomedical engineering. While he is not trained as a psychologist, he has apparently written a manuscript in 1992 entitled "Psychological, Social and Economic Aspects of Back Pain." From the curriculum vitae presented, it is unclear whether this document was actually published. However, an article entitled, "Cognitive Behavioral Techniques in the Treatment of Chronic Low Back Pain" was published in J. of S. Orthopaedics Assoc. v. 7, V2, p. 81-88 1998.
In his April 9, 2003 expert report, Dr. Laborde recommended against surgery of Fairley's spine and opined that Fairley had psychological problems. In his April 23, 2003 report, Dr. Laborde reviewed the cervical x-rays and MRI. He stated there that there was no objective evidence of a connection between the accident and the surgery and that the cause was simply the aging factor combined "with psychological factors." The November 19, 2003 report as noted was issued after Davati rendered his report, opines that the accident did not injure the patient's neck or cause the need for surgery. He contends that the most likely cause for the surgery would be degenerative arthritic conditions and normal activities of daily living.
Opinions with Respect to Causation
To begin, as the underlying basis for this opinion has been excluded, the opinion contained in the November 19th report must be excluded. Dr. Laborde did not conduct any independent study as to the force and his examination of the damage from photographs is simply not a sufficient basis to allow such testimony to be admitted. See Wettlaufer v. Mr. Hood RR Co., 77 F.3d 491 (9th Cir. 1996).
It must be noted that in an article penned by Dr. Laborde in the Fall of 2000 in the Journal of the Southern Orthopedic Association, he wrote:
Herniation of a degenerated disc frequently occurs without injury. Although an automobile accident is an unlikely cause of disc herniation, an automobile accident could cause herniation of a previously degenerated disc. Comparison of pre-injury and postinjury MRI can objectively determine what abnormality is due to the injury.
J.L. Monroe, "Biomechanics of Minor Automobile Accident: Treatment Implications for Associated Chronic Symptoms. Journal of Southern Orthopaedic Assoc., Vol. 9, No. (Fall 2000) at 188. As Dr. Laborde has reviewed a pre-accident and post accident MRI, he will be allowed to give his medical opinion as to objective determination as to whether any abnormalities are due to the accident.
Opinions with Respect to Psychological Factors
The Court has serious concerns with respect to Dr. Laborde's qualifications as to psychological causation. He was not allowed to testify to that end in another section of this court. Short v. Anangel Spirit Compania Naviera, S.A., 2002 WL 31740707 (E.D.La. Dec. 3, 2002) (review of curriculum vitae demonstrates not qualified to testify as an expert as to "psychiatic or psychological" opinions). However, the "opinions" are so narrow and conclusory, that the Court thinks it is the kind of testimony subject to cross-examination and within the purview of a jury to accept or reject. Therefore, the motion will be denied in that regard. Accordingly,
IT IS ORDERED that plaintiff's Motion in Limine is GRANTED to the extent that Dr. Laborde's testimony based on the Davati opinion (the Nov. 19 Report) is excluded; however, Dr. Laborde shall be allowed to testify in line with his other reports and limited thereto as more fully described above.
Defendants' Motion in Limine With Respect to Dr. Michael C Molleston
Dr. Molleston is a board certified neurosurgeon practicing neurosurgery in Hattiesburg, Mississippi. He has treated Fairley since April 8, 2003 and performed an anterior cervical discectomy at C5-6 and C6-7 on April 28, 2003. He has assigned a permanent partial impairment rating to Mr. Fairley of 22% based on the AMA guide For Impairments. He has restricted Mr. Fairley from lifting over 10 pounds, from any bending at the waist, and any overhead work. He also opines that Fairley should be permitted to lay down 2 to 3 hours each day.
Defendants object to Dr. Molleston opining at trial that Fairley is unable to return to any work whatsoever. They contend that Dr. Molleston is not qualified to testify to that end as he is not a vocational rehabilitation counselor. Plaintiff maintains that since Dr. Molleston was a Social Security disability examiner, he is so qualified. However, the Court finds that there is no evidence that Dr. Molleston knows the relevant job market at this time or is aware of the potential jobs available in the area. As such, the defendants' motion is well taken. However, Dr. Molleston can testify as to the various physical restrictions he has placed on the plaintiff and the jury can determine what effect that will have on his ability to gain future employment based on Dr. Molleston's medical testimony, the vocational rehabilitation testimony and plaintiff's testimony. Accordingly,
IT IS ORDERED that the Motion in Limine filed by defendants (Doc. 98) is GRANTED; any testimony from Dr. Molleston with respect to his inability to return to any work is excluded.