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Piepes v. Nai Entm't Holdings LLC

United States District Court, E.D. New York.
Aug 26, 2019
394 F. Supp. 3d 315 (E.D.N.Y. 2019)

Opinion

17-CV-505-SJB

08-26-2019

Eric J. PIEPES, Plaintiff, v. NAI ENTERTAINMENT HOLDINGS LLC, National Amusements, Inc., Defendants.

Adam Richard Nichols, Michael Manoussos, Michael Manoussos & CO PLLC, Kew Gardens, NY, for Plaintiff. Richard S. Sklarin, Miranda Sambursky Slone Sklari, Elmsford, NY, for Defendants.


Adam Richard Nichols, Michael Manoussos, Michael Manoussos & CO PLLC, Kew Gardens, NY, for Plaintiff.

Richard S. Sklarin, Miranda Sambursky Slone Sklari, Elmsford, NY, for Defendants.

ORDER

SANKET J. BULSARA, United States Magistrate Judge

Plaintiff has moved in limine to exclude the testimony of Defendants' medical expert under Daubert . For the reasons indicated below, the motion is granted.

The Court has already expressed concerns over Defendants' expert—Arnold T. Berman, M.D.—because of his utterly deficient Rule 26 disclosure, which includes an inability to remember the details of cases in which he has previously testified. This is particularly problematic given that Dr. Berman has testified as an expert approximately 1.5 times per week for the last 5 years. (See Expert Disclosure, attached as Ex. 1 to Mot. to Strike, Dkt. No. 31 (listing over 400 cases between January 2014 and February 2019 in which Dr. Berman testified)). Given the patent failures of the disclosure, and upon the agreement of the parties, the Court had agreed to instruct the jury as follows:

An expert who testifies in federal court must provide a list of other cases in which he has testified as an expert. To comply with this requirement, the expert must provide the following information about those cases: the name of the parties, the court in which the case proceeded, the case number, and whether the testimony was by deposition or at trial. The purpose of providing this information is to enable opposing counsel to obtain the prior testimony of the expert. The Court has concluded that, in this instance, Defendants' expert failed to keep adequate records to provide Plaintiff with all of the required information. As a result, Plaintiff was unable to obtain Defendants' prior testimony for use at this trial.

It appears that Dr. Berman is unaware of the requirements for expert testimony in federal court, the attendant disclosure requirements, and the requirements of Daubert and Rule of Evidence 702. Although the Court agreed to give the jury the above limiting instruction, it did not agree to forgo its Daubert gatekeeping function in excluding unreliable expert testimony. Ultimately, the same inadequate expert disclosure that led to the adverse jury instruction leads this Court to strike the expert.

An expert witness may provide an opinion if such testimony "is the product of reliable principles and methods." Fed. R. Evid. 702(c). Rule 702's focus is "the scientific validity and thus the evidentiary relevance and reliability—of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate." Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 594-95, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Unsupported assertions "made without explanation or elaboration that would allow a fact finder to follow his reasoning and come to the same conclusion" are inadmissible expert opinions. 523 IP LLC v. CureMD.Com , 48 F. Supp. 3d 600, 650 (S.D.N.Y. 2014). That is, an expert who reaches a conclusion but provides no explanation for it gives the Court no insight into the reasons for his opinion or the means used to reach it. Besides making it impossible for an adversary to conduct cross-examination, such a deficiency makes it impossible for a Court to conduct a Daubert inquiry. Cf. Walsh v. Chez , 583 F.3d 990, 994 (7th Cir. 2009) (noting the purpose of Rule 26 expert reports is "to convey the substance of the expert's opinion (along with the other background information required by Rule 26(a)(2)(B)) so that the opponent will be ready to rebut, to cross-examine, and to offer a competing expert if necessary"); see also Daubert , 509 U.S. at 597, 113 S.Ct. 2786 (" Rule 702 ... assign[s] to the trial judge the task of ensuring that an expert's testimony ... rests on a reliable foundation[.]").

Even in the realm of medical experts, where "the witness is relying solely or primarily on experience, ... the witness must explain how that experience leads to the conclusion reached and how that experience is reliably applied to the facts. The trial court's gatekeeping function requires more than simply ‘taking the expert's word for it.’ " Israel v. Spring Indus., Inc. , No. 98-CV-5106, 2006 WL 3196956, at *2 (E.D.N.Y. Nov. 3, 2006) (quotations and alterations omitted) (quoting Fed. R. Evid. 702 advisory committee's note (2000)), aff'd , 2007 WL 9724896 (July 30, 2007) ; see Reyes v. Delta Dallas Alpha Corp. , No. 92-CV-4418, 2000 WL 526851, at *2 (S.D.N.Y. May 2, 2000) ("The doctor came to a medical conclusion based on a number of factors, including his care and treatment of plaintiff, and his own practical experience. Moreover, the doctor's judgments concerning the precise injury to plaintiff's intervertebral disc(s) are appropriately qualified by the doctor's inability to examine MRI scans.") (citation omitted). An unexplained opinion—because it makes it impossible to conduct any Daubert inquiry—is per se inadmissible.

Dr. Berman opines that Plaintiff's "arthroscopic procedure performed on 4/18/2016 was not in any way related to the alleged fall of 6/17/2015, but rather, was due to underlying degenerative joint disease." (Expert Report, attached as Ex. 1 to Mot. to Preclude Testimony, Dkt. No. 37 ("Berman Rep.") at 2). No explanation is given for why Dr. Berman reached this conclusion or how he did so. This is particularly important here because Dr. Berman has not examined Plaintiff, and presumably he reached this conclusion on the basis of something in Plaintiff's medical records, history, or deposition. But because no detail is provided, no one—the Court, Plaintiff's counsel, or even Defendants' counsel—can test the reliability of this conclusory ipse dixit analysis. The Court, therefore, excludes this opinion under Rule 702 and Daubert . See, e.g. , Shea v. Long Island R.R. Co. , No. 05-CV-9768, 2009 WL 1424115, at *8 (S.D.N.Y. May 21, 2009) ("Dr. Vickers's opinion that certain problems may have affected Mr. Shea before the accident is inadmissible as speculation."); Berk v. St. Vincent's Hosp. & Med. Ctr. , 380 F. Supp. 2d 334, 355 (S.D.N.Y. 2005) ("He presents no generally accepted scientific methodology, no germane medical literature, and no other evidence that would withstand adversarial scrutiny in support of his categorical statement that any synovial drainage from a post-operative knee in and of itself indicates the presence of infection."); Kuzmech v. Werner Ladder Co. , No. 10-CV-266, 2012 WL 6093898, at *7 (D. Conn. Dec. 7, 2012) ("Dr. Larson fails to identify what principles and methods he relies upon in coming to his conclusions besides his conclusory statement that such conclusions were based on a ‘reasonable degree of engineering certainty.’ ").

Other flaws render his opinions inadmissible. Dr. Berman states that he has "reviewed the surveillance footage," which he states "demonstrates no evidence of [Plaintiff's] fall." (Berman Rep. at 2). From that observation he draws the remainder of his conclusions: "if in fact [Plaintiff] fell on his right knee cap as described, he likely sustained a knee contusion at most, which has long since resolved." (Id. ). And given that he believes that "at most" "a knee contusion" was suffered, he puts forth the evidence in the record he believes supports that conclusion: "There was fluid in the knee ..., [which] certainly could be consistent with a knee contusion [.]" (Id. ). The glaring flaw in this analysis is that Plaintiff is not claiming a fall on an escalator. A fall is not what Plaintiff described or alleged. The Complaint is based upon an allegation that the sudden stop of an escalator caused Plaintiff's knee to become twisted and to buckle. (Compl., attached to Notice of Removal, Dkt. No. 1, ¶ 20 ("[W]hile at ... College Point Multiplex Cinemas, plaintiff ... was caused to sustain sudden and abrupt bodily movement at said premises, more particularly the escalator thereat, due to dangerous, unsafe, hazardous, defective, and/or trap-like condition[.]"); see also Tr. of Hr'g held Nov. 6, 2017, Dkt. No. 15, at 11:18-20 ("[T]he escalator stopped and there was a jerking and buckling of [Plaintiff's] knee, which he sustained, and he continued forward.")). The Complaint does not allege that Plaintiff suffered a fall. A supposed expert who does not even understand or appreciate the basic parameters of the alleged injuries is not competent to serve as an expert. His testimony would certainly not be helpful to the jury, since it opines about and excludes an injury, a fall, that Plaintiff has not alleged. Cf. Zwillinger v. Garfield Slope Hous. Corp. , No. 94-CV-4009, 1998 WL 623589, at *20 (E.D.N.Y. Aug. 17, 1998) ("[E]ven if Dr. Gray's general theories were supported by reliable scientific evidence, plaintiff has failed to demonstrate that those theories fit the particular facts of this case sufficiently well to warrant admitting Dr. Gray's testimony at trial."). That also renders any opinion unreliable—the conclusion that Plaintiff's symptoms are not a result of a fall does nothing to exclude twisting, jerking, pivoting, or buckling as a cause of such symptoms. "While an expert need not rule out every potential cause in order to satisfy Daubert , the expert's testimony must at least address obvious alternative causes and provide a reasonable explanation for dismissing specific alternate factors identified by the [plaintiff]." Tardif v. City of N.Y. , 344 F. Supp. 3d 579, 601 (S.D.N.Y. 2018) (quotations omitted).

The only remaining opinion in Dr. Berman's report is that "[t]he diagnostic imaging demonstrates no evidence of any acute injury or internal derangement." (Berman Rep. at 2). This opinion is as flawed as Dr. Berman's other conclusions. It has no explanation, citation, or analysis. How this opinion is "within a reasonable degree of medical certainty" is left to imagination. It reads like the other opinions that he has proffered: a single sentence conclusion that parrots the end result a lawyer or someone else has asked him to reach. Could cross-examination of Dr. Berman proceed at trial on this opinion? Yes. But with no detail, the Court cannot conduct the necessary gatekeeping function under Daubert . Cf. Meyers v. Nat'l R.R. Passenger Corp. (Amtrak) , 619 F.3d 729, 735 (7th Cir. 2010) ("As previously discussed, both doctors' reports were remarkably sparse, making it impossible to tell what the doctors might have been thinking about Meyers's injuries prior to authoring the letters. The district court therefore did not abuse its discretion in excluding the experts' testimony."); Romero v. Drummond Co. , 552 F.3d 1303, 1323 (11th Cir. 2008) (determining the district court did not abuse its discretion in excluding expert who provided single paragraph expert report). As a result, Plaintiff's motion to strike Defendants' expert is granted.

SO ORDERED.


Summaries of

Piepes v. Nai Entm't Holdings LLC

United States District Court, E.D. New York.
Aug 26, 2019
394 F. Supp. 3d 315 (E.D.N.Y. 2019)
Case details for

Piepes v. Nai Entm't Holdings LLC

Case Details

Full title:Eric J. PIEPES, Plaintiff, v. NAI ENTERTAINMENT HOLDINGS LLC, National…

Court:United States District Court, E.D. New York.

Date published: Aug 26, 2019

Citations

394 F. Supp. 3d 315 (E.D.N.Y. 2019)

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