JOHN W. DEGRAVELLES, District Judge.
This matter comes before the Court on the motion of codefendants in interpleader Nicholas Russell and Michelle DiBenedetto ("Children") to exclude the testimony of Bruce Bacon, rebuttal expert retained by codefendant in interpleader Beryl Franklin ("Franklin"). (Doc. 89.)
This matter arises out of a dispute over annuity benefits due under a deferred annuity contract (contract VA 297190) issued by plaintiff American General Life Insurance Company ("Plaintiff" of "AGLIC") to Robert W. Russell ("R. Russell") on October 21, 2010. (Doc. 1, at 2-3.) The dispute centers on the efficacy of a power of attorney (POA) which arguably authorized the change of beneficiaries from the Children to Franklin. On March 27, 2016, R. Russell died. (Doc. 1 at 4.)
Because of the disagreement over the proper beneficiaries to whom the annuity proceeds are owed, AGLIC filed the current Complaint for Interpleader Relief naming as defendants the Children and Franklin. (Doc. 1.) The Children contend that the effort to change the beneficiary "was part of a complex plan to divest the Children of their entire inheritance..." (Doc. 78 at 1.) Furthermore, they urge that the POA which authorized and directed AGLIC to change the beneficiary to Franklin was executed by R. Russell at a time when he was "dying in hospice from end-stage liver disease and inflicted with advanced stage hepatic encephalopathy" (Doc. 77 at 1), rendering him incompetent and legally incapable of executing the POA. Therefore, they argue the POA and the purported change of beneficiary is ineffective. Franklin disputes these allegations and specifically maintains that R. Russell was competent to give the POA and, at the time he did, "was awake, speaking with his attorney, and consciously made the choice to sign the Power of Attorney." (Doc. 76-5 at 1.)
In a previous ruling, the Court denied a Daubert challenge to the Children's expert Dr. Perry Hookman ("Hookman") but permitted Franklin to hire an expert to rebut Hookman. Dr. Bruce Bacon ("Bacon") was chosen by Franklin to provide the rebuttal testimony. (Doc. 86-5.) The Children do not question Bacon's credentials and, indeed, it appears that he is a highly qualified gastroenterologist on the faculty of St. Louis University School of Medicine. (Doc. 90 at 2-3.) Rather, the Children file the present motion seeking to exclude Bacon from testifying on the following grounds:
Franklin responds to these arguments as follows:
The Children's motion is a Daubert challenge based on Bacon's alleged failure to use an accepted methodology and his opinion's alleged lack of an adequate factual foundation. Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). When Daubert is invoked, a district court may, but is not required, to hold a hearing at which the proffered opinion may be challenged. Carlson v. Bioremedi Therapeutic Sys., Inc., 822 F.3d 194, 201 (5th Cir. 2016) (citing United States v. John, 597 F.3d 263, 274-75 (5th Cir. 2010)). However, when no hearing is held, "a district court must still perform its gatekeeping function by performing some type of Daubert inquiry." Id. (citations omitted). "At a minimum, a district court must create a record of its Daubert inquiry and `articulate its basis for admitting expert testimony.'" Id. (quoting Rodriquez v. Riddell Sports, Inc., 242 F.3d 567, 581 (5th Cir. 2001)).
The role of the trial court is to serve as the gatekeeper for expert testimony by making the determination of whether the expert opinion is reliable. As the Fifth Circuit has held:
Watkins v. Telsmith, Inc., 121 F.3d 984, 988-89 (5th Cir. 1997) (internal citations omitted).
The cases following Daubert have expanded the factors and explained the listing is neither all-encompassing nor is every factor required in every case. See, e.g., Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997); Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004). Indeed, courts may look to other factors. Joiner, 522 U.S. at 146.
This Court has explained:
Fayard v. Tire Kingdom, Inc., No. 09-171, 2010 WL 3999011, at *1, 2010 U.S. Dist. LEXIS 108845, at *2-3 (M.D. La. Oct. 12, 2010) (internal citation omitted) (citing to Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)).
This Court has broad discretion in deciding whether to admit expert opinion testimony. See, e.g., Joiner, 522 U.S. at 138-39 (holding that appellate courts review a trial court's decision to admit or exclude expert testimony under Daubert under the abuse of discretion standard); Watkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir. 1997) (holding "[d]istrict courts enjoy wide latitude in determining the admissibility of expert testimony"); Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1050 (5th Cir. 1998) ("Trial courts have `wide discretion' in deciding whether or not a particular witness qualifies as an expert under the Federal Rules of Evidence.").
"Notwithstanding Daubert, the Court remains cognizant that `the rejection of expert testimony is the exception and not the rule.'" Johnson v. Samsung Elecs. Am., Inc., 277 F.R.D. 161, 165 (E.D. La. 2011) (citing Fed. R. Evid. 702 Advisory Committee Note (2000 amend.)). Further, as explained in Scordill v. Louisville Ladder Grp., L.L.C., No. 02-2565, 2003 WL 22427981, 2003 U.S. Dist. LEXIS 19052 (E.D. La. Oct. 24, 2003) (Vance, J.):
Id. at *3 (internal citations omitted) (relying on, among others, Rock v. Arkansas, 483 U.S. 44, 61, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), and United States v. 14.38 Acres of Land, More 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 (5th Cir. 1987))).
The Supreme Court has recognized that not all expert opinion testimony can be measured by the same exact standard. Rather, the Daubert analysis is a "flexible" one, and "the factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise and the subject of his testimony." Kumho, 526 U.S. at 150, cited with approval in, e.g., Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002).
The Children first argue that Bacon "failed to either state his complete opinions or give reasons and data to support his opinions." (Doc 86-1 at 3.) The Court has carefully reviewed Bacon's expert report (Doc. 86-5) and while it may be a short report, it is "complete" in that it provides what he reviewed and relied upon in reaching his conclusions, it states his opinions in rebuttal to Dr. Hookman and explains the basis for those opinions. Furthermore, it gives the "data" upon which he used to reach his opinions. (Doc. 86-5 at 1.) Finally, the Children took a lengthy deposition of Bacon (over four hours) in which his opinions and the bases for them were explored and challenged. (Doc. 86-3.) When the report is combined with the deposition, it is clear that sufficient information has been provided regarding Bacon's opinions, data relied upon and reasons supporting it.
Next, the Children maintain that "Bacon's conclusion about Robert Russell's mental capacity is irrelevant because it is duplicative of Mr. Owens and Dr. Hayes' testimonies and should not be allowed." (Doc. 86-1 at 9.) The Children confuse and conflate two very different concepts, relevance and cumulation. The opinions are clearly relevant in that they attack the opinion of the Children's expert on the critical question, R. Russell's mental capacity to give a POA to change beneficiaries on the annuity policy. Although supportive of Owen's testimony, it is clearly not cumulative. Owen will testify as a lay witness as to what he observed of R. Russell at the time he signed the POA. Bacon gives expert testimony providing scientific and medical reasons why he believes Owen's testimony is credible. Finally, while Bacon's opinions support Hayes' conclusions, they are not cumulative of them in that they are based on his expertise as a gastroenterologist, whereas Hayes is a neuropsychologist. Moreover, this Court specifically permitted Franklin to add an expert to rebut Hookman, also a gastroenterologist. This part of the Children's motion is denied.
The Children's next argument largely mirrors the previous one, i.e. Bacons "proposed testimony will not help the trier of fact because his testimony is needlessly cumulative and a waste of time." (Id.) For the same reasons, the Court rejects this argument.
The Children next posit that Bacon "limited his testimony to what Marvin Owen, a nonphysician, saw" and therefore, the Children "are faced with trial by ambush". (Id. at 5.) The first part of this argument is similar to those made by counsel for the Children in previous briefs, goes beyond mere exaggeration and is plainly wrong as is clearly demonstrated in Bacon's report (86-5) and 142-page, four-hour deposition (Doc. 86-3). The argument that he is somehow "faced with trial by ambush" is equally mystifying given his receipt of Bacon's report and counsel's lengthy deposition of Bacon.
Next, the Children argue that Bacon's opinion regarding the credibility of witnesses is improper and inadmissible. (Doc. 86-1 at 10.) In his report Bacon concludes, "The medical records from March 12, 2016 are insufficient to confirm or refute Mr. Owen's testimony. Accordingly, it is my opinion that if Mr. Owens is telling the truth then more likely than not, Mr. Russell was competent on March 12, 2016, when he signed the Power of Attorney document. However, it is impossible to render an opinion as to Mr. Russell's competence or incompetence on March 12, 2016, based solely on the records in the hospice facility." (Doc. 86-5 at 2-3 (emphasis added).)
The Children are right that experts are not permitted to give opinions regarding whether a given witness is telling the truth. Federal Rule of Evidence 704 provides that "[a]n opinion is not objectionable just because it embraces an ultimate issue." However, the Fifth Circuit has "repeatedly held that this rule does not allow an expert to render conclusions of law." Snape-Drape, Inc. v. C.I.R., 98 F.3d 194, 198 (5th Cir. 1996); see also Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983).
"The task of separating impermissible questions which call for overbroad or legal responses from permissible questions is not a facile one." Owen, 698 F.2d at 240. In Owen, the Fifth Circuit explained:
Id.
But, here, it is clear that counsel for the Children again overstates his position. Bacon does not express an opinion regarding Owen's credibility. He merely states that the medical records from the hospice facility cannot definitely answer the question of Russell's competence nor can they rule out, as Hookman suggests, the truthfulness of Owen's testimony. "[I]f Mr. Owens is telling the truth[,] then Mr. Russell was competent on March 12, 2016, when he signed the Power of Attorney document." (Doc. 86-5 at 2-3, emphasis added.) This part of the Children's motion is denied.
The Children next argue that Bacon "failed to review Russell's medical records prior to March 8, 2016, even though he had access to them within a reasonable time to be included in his report." (Id. at 4.) Although "Bacon was provided with Robert Russell's medical records dating back to January 2016, list of medications that Mr. Russell was under on March 12, 2016, and all of the depositions from the witnesses who are testifying to Mr. Russell's mental state ..." Bacon "failed to include all of the information and records that were provided by counsel when he gave his opinions." (Id. at 6.)
In response, Franklin points to Bacon's report and 399 pages of embedded medical records and Bacon's deposition testimony to assure the Court that Bacon reviewed the medical records and the reports of the other physicians. (Doc. 90 at 3-5.)
On this issue, it is clear to the Court that Bacon reviewed Russell's medical records. (See, e.g., Doc. 86-5 at 1; Doc. 86-3 at 95.) But, even if he didn't, or didn't review them thoroughly, these are not matters that affect the admissibility of his testimony but the weight to be given to it. "As a general rule, questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury's consideration." United States v. 14.38 Acres of Land More Or Less Situated in Lefore County, Miss., 80 F.3d at 1077 (quoting Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir. 1987)); see also Imperial Trading Co. v. Travelers Property Cas. Co. of America, 2009 WL 2356292 at *3 (E.D. La. July 28, 2009). Furthermore, "[m]atters left for the jury's consideration include the alleged miscalculations, erroneous assumptions, and inconsistencies that plaintiffs object to." Imperial Trading, 2009 WL 2356292 at *3 (citing Southwire Co. v. J.P. Morgan Chase & Co., 258 F.Supp.2d 908, 935 (W.D. Wis. 2007)). Here, the Children's attack goes to the weight, not admissibility, of Bacon's testimony. This portion of the Children's motion is denied.
Finally, the Children complain that Bacon "failed to consider the psychotropic medications administered to Russell and did not consider the diagnosis of Russell's treating physicians ..." (Doc. 86-1 at 6.) Franklin responds that Bacon did not testify regarding medications because he was limited to rebutting the testimony of Dr. Hookman and "Dr. Hookman did not address how any medications might have affected the Decedent's executive function in his report either. As a rebuttal expert, Dr. Bacon can only refute items contained within Dr. Hookman's report. Thus, neither expert should be allowed to testify about the Decedent's medications. (Doc. 90 at 4.)
The Court agrees that, for reasons given in this Court's earlier ruling regarding Hookman's rebuttal report, a rebuttal report does not allow its proponent an opportunity for a redo of earlier reports of the proponent's primary experts and should be limited to rebutting the testimony of the opposing expert and not more. Furthermore, what Bacon considered and did not consider is, for the reasons previously stated, a matter for cross examination and not a reason for exclusion. This final part of the Children's motion is denied.
For the foregoing reasons,
