J, THOMAS RAY, Magistrate Judge.
This is a negligence action brought by Plaintiff, Kerry Hogland ("Hogland"), individually, and, as guardian ad litem, on behalf of her three minor children, against Defendant, Town & Country Grocer Of Fredericktown Missouri, Inc. ("Town & Country").
After undergoing surgery, hospitalization, and lengthy rehabilitation, Hogland was able to return to her job as an ultrasound technician. The level and extent to which she will be able to continue to perform either her current job or any future work is hotly contested by the parties.
Town & Country has admitted liability. Doc. 19 at ¶5. The case is scheduled for a jury trial, on August 10, 2015, on the only remaining issue — damages.
Town & Country has filed three separate motions seeking to exclude part or all of the testimony of three of Hogland's expert witnesses
Immediately after the accident, Hogland was taken to the Walnut Ridge ER; later moved to and stabilized at the St. Bernard's ER in Jonesboro; and then flown to the Regional Medical Center in Memphis, where she was diagnosed with: (1) bilateral fractures of the temporal bone; (2) a left subdural hematoma "which required a left frontal parietal craniectomy;" (3) intraparenchymal hemorrhage; and (4) an epidural bleed "requiring evacuation." Doc. 36-1 at 1.
On August 20, 2012, Hogland was discharged from the Regional Medical Center and admitted to the HealthSouth Rehabilitation Hospital in Jonesboro, Arkansas ("HealthSouth"). The Medical Director of HealthSouth, Dr. Terrence Braden, referred Hogland to Dr. Dan Johnson, a clinical neuropsychologist with a Ph.D. in Applied Behavioral Studies from Oklahoma State University.
On August 20, 2012, Dr. Johnson administered a battery of neuropsychological tests to Hogland.
Dr. Johnson next saw Hogland at his clinic, on December 7, 2012, where she underwent a "comprehensive out-patient neuropsych assessment." Docs. 36-2 at 54, 36-3 at 76. By that time, her attorneys had retained Dr. Johnson as an expert witness. Doc. 36-2 at 54. After the December 7, 2012 assessment, Dr. Johnson saw Hogland for "six brief follow-up exams" between January 31, 2013, and February 13, 2014. Doc. 36-3 at 78.
In an undated report, prepared sometime in July of 2014, Dr. Johnson's "impressions" were as follows:
Doc. 36-3 at 79-80.
On August 23, 2014, Dr. Johnson saw Hogland for a "comprehensive neuropsychological examination similar to the one we did two years earlier [on December 7, 2012]."
Dr. Johnson's November 25, 2014 report also states his opinion that Hogland's "current neurocognitive and psychological difficulties" were caused by the August 7, 2012 accident: "Based on the available medical records, clinical interview, neurocognitive test findings, psychological results, patient report, and behavioral observations, couched in terms of reasonable medical certainly [sic], I would consider there to be a direct and causal relationship between Ms. Hogland's current neurocognitive and psychological difficulties and the MVA which occurred on 08/07/2012." Doc. 36-3 at 74.
Dr. Johnson also gave five "recommendations" to conclude his November 25, 2014 report:
Doc. 36-3 at 74-75 (emphasis added).
These five "recommendations," along with Dr. Johnson's opinion on causation, are the subject of Town & Country's Motion in Limine and Daubert Motion to Exclude portions of Dr. Johnson's anticipated trial testimony. In its motion papers, Town & Country argues that: (1) Dr. Johnson does not state his five recommendations to the degree of certainty required under Arkansas law; (2) he is not qualified to render these recommendations or his opinion on causation; and (3) he has not provided a sufficient foundation for any of his recommendations or his opinion on causation.
The Court will first address Town & Country's arguments on whether there is a sufficient foundation for Dr. Johnson's five specific recommendations stated in his November 25, 2014 report, and whether Dr. Johnson is qualified to render those recommendations. It will then consider whether Dr. Johnson should be allowed to express an opinion on "causation."
Dr. Johnson states that "[g]iven the extent of Ms. Hogland's behavioral symptoms secondary to TBI she will likely benefit from individual cognitive behavioral therapy weekly for the [sic] at least six months (or longer depending on efficacy), twice a month for at least a year, and once a month thereafter." Doc. 36-3 at 74. In his December 18, 2014 deposition, Dr. Johnson testified that cognitive behavioral therapy involved: "talk therapy . . . discuss[ing] cognitive mind sets . . . [y]ou would also discuss some behavioral techniques, for example, decreasing anxiety, deep breathing exercises, biofeedback, systematic desensitization to things that are anxiety provoking." Doc. 36-3 at 49-50.
He recommends that Hogland undergo cognitive behavioral therapy based on "[p]redominantly [the] clinical interview, the nature of this injury, the associated sequelae of the injury, her self report, [and] the report of those around her." Doc. 36-3 at 51. According to Dr. Johnson, "cognitive behavioral therapy is very proactive and matches [Hogland's] level of cognitive functioning." Doc. 36-3 at 49. When asked whether a psychiatrist or psychologist would provide the therapy, Dr. Johnson testified that "typically" a psychologist would do so. Doc. 36-3 at 49.
Town & Country concedes that Dr. Johnson "may . . . be remotely qualified" to recommend cognitive behavioral therapy insofar as he is a neuropsychologist, but, because he "admits that he does not provide [cognitive behavioral therapy], and he would refer [Hogland] to another provider [for the therapy]," he is not qualified to make such a recommendation. Doc. 37 at 8-9. Town & Country cites no legal authority to support its argument that Dr. Johnson, a neuropsychologist, is not qualified to recommend cognitive behavioral therapy (which unquestionably is a neuropsychological treatment), simply because, as part of his neuropsychological practice, he does not provide that treatment himself.
"Rule 702 only requires that an expert possess `knowledge, skill, experience, training, or education' sufficient to `assist' the trier of fact, which is `satisfied where expert testimony advances the trier of fact's understanding to any degree.' Gaps in an expert witness's qualifications or knowledge generally go to the weight of the witness's testimony, not its admissibility." Robinson v. GEICO General Ins. Co., 447 F.3d 1096, 1000 (8th Cir. 2006) (internal citations omitted) (holding that a neurologist, despite not being an orthopedist, was qualified to testify as to the cause of the plaintiff's shoulder problems, which was "within his realm of expertise" as a neurologist and physician). Based on Dr. Johnson's education, training, and experience, the Court concludes that he is qualified to make the recommendation that Hogland "will likely benefit from individual cognitive behavioral therapy" from a qualified psychologist who provides such therapy.
In his December 18, 2014 deposition, Dr. Johnson testified that "cognitive behavioral therapy, by research, proves to be most effective." Doc. 36-3 at 49. When asked to explain the "research you're talking about," Dr. Johnson answered: "[a]n omnibus of research over the last 15 years, you kind of . . . you go to conferences and you read and you google. I'm not referencing a specific article." Doc. 36-3 at 63. Based on this answer, Town & Country argues the only foundation for Dr. Johnson's opinions are his "say-so."
In general, "[a]ttacks on the foundation for an expert's opinion, as well as the expert's conclusions, go to the weight rather than the admissibility of the expert's testimony." Sphere Drake Ins. PLC v. Trisko, 226 F.3d 951, 955 (8th Cir. 2000); see also Larson v. Kempker, 414 F.3d 936, 941 (8th Cir. 2005) ("As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.").
In his December 18, 2014 deposition, Dr. Johnson explained why he thought cognitive behavioral therapy would likely benefit Hogland. He made it clear that his recommendation for cognitive behavioral therapy was based on "[p]redominantly [the] clinical interview, the nature of this injury, the associated sequelae of the injury, her self report, [and] the report of those around her." Doc. 36-3 at 51. This record, combined with Dr. Johnson's training and experience in neuropsychology, establishes a sufficient foundation for his opinion.
Finally, Town & Country argues that Dr. Johnson does not state his recommendation for cognitive behavioral therapy to the required degree of certainty. Specifically, it argues that: (1) Dr. Johnson's opinion that Hogland would "likely benefit" from the therapy is insufficient; and (2) his opinion impermissibly lacks any "time-based limitations on the treatment."
Under Arkansas law, "[f]uture medical expenses do not require the same degree of certainty as past medical expenses." Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983). In Matthews, the appellee underwent abdominal surgery for a shotgun wound. At trial, his doctor testified that "[f]uture plastic surgery or skin grafts might be required for scar revision." Id. at 335, 457. The doctor's testimony that future surgery "might" be required, in addition to the appellee's testimony that "he still had pain in the area," was held to be sufficient to allow that testimony to go to the jury as an element of damages.
Similarly, in Willson Safety Products v. Eschenbrenner, 302 Ark. 228, 788 S.W.2d 729 (Ark. 1990), the appellee suffered a jaw injury and underwent several pre-trial surgeries with only temporary pain relief. At trial, an oral surgeon testified "that an experimental surgical procedure . . . might benefit the appellee . . . and would likely have to be repeated on an annual basis." Id. at 233, 733. The Arkansas Supreme Court held that this testimony created a "jury-submissible issue" on the possible need for the surgery as a future medical expense: "Where the doctor testifies that the injured party might need future treatment and the injured party testifies he still suffers pain, that testimony is sufficient for the consideration of the element of future medical expenses." Id.
While these cases allowed expert testimony to be admitted on a patient's need for future medical treatment, because it "might" be necessary, more recent decisions by Arkansas appellate courts have held that expert testimony about future medical treatment must establish that the need for that treatment is "likely" or "probable" in order for the testimony to be admitted into evidence. In Jacuzzi Brothers, Inc. v. Todd, 316 Ark. 785, 875 S.W.2d 67 (1994), the Court held that it was error for the trial court to allow a neurosurgeon to testify to "a thirty percent chance of requiring a future surgery" because it was not "the most likely result and therefore constitutes speculative evidence."
In E-Ton Dynamics Indus. Corp. v. Hall, 83 Ark.App. 35, 115 S.W.3d 816 (2003), the Court followed Jacuzzi Brothers and found that it was error for the trial court to allow an orthopedic surgeon to testify that a future surgery "could" be required.
Because Dr. Johnson states that Hogland will "likely benefit" from cognitive behavioral therapy, the Court concludes that his recommendation "represent[s] his professional judgment as to the most likely or probable result," i.e., Hogland "will likely benefit from individual cognitive behavioral therapy for the [sic] at least six months (or longer depending on efficacy), twice a month for at least a year, and once a month thereafter." See Jacuzzi Brothers and E-Ton Dynamics, supra.
Accordingly, Town & Country's Motion in Limine and Daubert Motion are denied as to Dr. Johnson's first recommendation in his November 25, 2014 report.
In Dr. Johnson's July 2014 report, he notes that "Hogland's persistent mix of depressive-anxious range symptoms have continued and have a strong physiological/neurological underpinning." Doc. 36-3 at 79. In his November 25, 2014 report, he states that Hogland "will likely require psychotropic medication evaluation/treatment on a monthly basis for the next year and every 2-3 months thereafter." Doc. 36-3 at 75.
When Dr. Johnson was deposed and asked about this recommendation, he explained that: "My research suggests that . . . the use of psychotropic medications, typically anti-anxiety, anti-depression medication, has the highest rate of . . . effectiveness in treatment." Doc. 36-3 at 52. He gave examples of drugs like Lexapro, Xanax, and Cymbalta as being appropriate to deal with Hogland's anxiety and depression. Id. He also made it clear that his recommendation was for Hogland to "see[] a psychiatrist or a physician who prescribes those medicines on a monthly basis to make sure that the medication prescribed is working, is effective at the dose it is working, etc." Doc. 36-3 at 52-53.
Town & Country argues that Dr. Johnson is not qualified to testify regarding Hogland's future needs for psychotropic medication because he is not a medical doctor and he cannot prescribe medication.
For her part, Hogland emphasizes Dr. Johnson's experience as a psychologist "with a wide and varied background, including in hospital settings and working with physicians," including neurologists. Doc. 38 at 11-13, 15. She contends that the "experience-based analysis should prevail[.]"
While neuropsychologists are not medical doctors and do not prescribe medication, the Arkansas legislature has defined the "practice of psychology" to include "[d]iagnosis and treatment of mental and emotional disorders, that consist of the appropriate diagnosis of mental disorders, behavior disorders, and brain dysfunctions, according to standards of the profession and the ordering or providing of treatments according to need." Ark. Code Ann. § 17-97-102(a)(2)(B)(i) (Repl. 2010). Based on Dr. Johnson's education and training, and his deposition testimony about his experience as a neuropsychologist, the Court concludes that there is a sufficient foundation to allow him to testify about his second recommendation that Hogland "likely [will] require psychotropic medication evaluation/treatment on a monthly basis for the next year and every 2-3 months thereafter."
Finally, Town & Country argues that Dr. Johnson's recommendation regarding psychotropic medication lacks the required degree of medical certainty because: "(1) it is uncertain as to necessity; and (2) is uncertain as to timing." Doc. 37 at 19. To the contrary, Dr. Johnson explicitly states that Hogland "will likely require psychotropic medication evaluation/treatment," which is sufficient to meet the standard for admissibility articulated by the Court in Jacuzzi Brothers and E-Ton Dynamics. As to timing, Dr. Johnson made it clear that Hogland would need "medication evaluation/treatment [by a psychiatrist] on a monthly basis for the next year and every 2-3 months thereafter."
Accordingly, Town & Country's Motion in Limine and Daubert Motion are denied as to Dr. Johnson's second recommendation in his November 25, 2014 report.
The third recommendation in Dr. Johnson's November 25, 2014 report is that "Hogland could benefit from cognitive therapy from [a] speech pathologist to assist in expressive speech, organization, planning, implementation, and reasoning skills — once every two weeks for 9 months and once a month thereafter." Doc. 36-3 at 75 (emphasis added). In his December 18, 2014 deposition, Dr. Johnson testified as follows when asked why he thought Hogland "could benefit" from seeing a speech pathologist:
Doc. 36-3 at 53. When asked if speech pathology was "more to keep [Hogland] at the current level rather than improvement," Dr. Johnson answered: "Theoretically. I mean, there could be improvement from that. I'm not — again neurologically she's as healed as she's gonna get." Doc. 36-3 at 54 (emphasis added).
Town & Country restates it earlier arguments that Dr. Johnson is not qualified to recommend speech pathology, because he is not a speech pathologist, and his opinion lacks a sufficient foundation. Town & Country also points to Hogland's deposition testimony that she last received speech therapy in 2012. Doc. 36-4 at 97.
In her Response, Hogland asserts that "Dr. Johnson knows that speech therapy is a key to treating executive functioning problems." Doc. 38 at 17. She also submits materials from outside of the record to support her position: printouts from various general-information websites that discuss "executive functioning," speech pathology, and neuropsychology. Doc. 38 at 39-48. In her view, those website printouts establish a "firm basis for Dr. Johnson's opinions," because "the link is clear between speech therapy and neuropsychological injury." Doc. 38 at 17.
It is widely known that traumatic brain injuries can affect speech and word recognition. As a neuropsychologist, Dr. Johnson is familiar with the sequelae of traumatic brain injuries, one of which frequently involves altered speech and poor word recognition. Dr. Johnson is not required to be a speech pathologist to express his expert opinion, as a neuropsychologist, that Hogland "could benefit" from seeing a speech pathologist. Similarly, his education, training, and experience as a neuropsychologist provides a sufficient foundation for him to make this recommendation.
The real problem with Dr. Johnson's third recommendation does not arise from his lack of qualifications to make that recommendation or an insufficient foundation to support his opinion. It arises from the equivocal language he uses in making the recommendation. According to Dr. Johnson, Hogland "could" benefit from speech therapy. In E-Ton Dynamics, the Court made it clear that, in offering testimony about "future medical expenses," "an expert's opinion must represent his professional judgment as to the most likely or probable result." See E-Ton, 115 S.W.3d at 819 (emphasis added). By opining only that Hogland "could benefit" from seeing a speech pathologist in the future, Dr. Johnson's recommendation "is speculative and therefore inadmissible."
Finally, Hogland last received speech therapy in 2012, and Dr. Johnson admits in his deposition that she is neurologically "as healed as she's gonna get." Those two facts may well explain why he chose to use the phrase "could benefit" in making his third recommendation.
Thus, Town & Country's Motion in Limine and Daubert Motion are granted and neither Dr. Johnson's third recommendation in his November 25, 2014 report nor any testimony about that recommendation will be admitted into evidence at trial.
Dr. Johnson's fourth recommendation is that Hogland undergo a vocational rehabilitation assessment because he believes, at some indefinite future date, she will be unable to perform her current job as an ultrasound technician. To place this recommendation in context, it is important to understand Hogland's vocational history.
Since September of 2001, she has worked primarily as an ultrasound technician, while also administering x-rays and other types of imaging. She has performed all of this work as an employee of what is now NEA Baptist in Jonesboro. Doc. 36-4 at 53. Before the accident, she also performed ultrasound work, on an after-hours basis, at the Five Rivers Medical Center. Id. at 54.
On February 27, 2013, seven months after the accident, Hogland returned to her job at NEA Baptist. Doc. 34-6 at 3. She began by working only one half-day (four hours one day a week) through the "first week in March 2013 . . . [before] increasing to two half days a week [8 hours], followed by 1 ½ days a week [12 hours], and three full days by September 2013 [24 hours]. In January [2014], she returned to four days per week [32 hours]." Docs. 36-4 at 57, 34-1 at 8. Since the accident, Hogland has not performed any after-hours work at Five Rivers. Doc. 36-4 at 62.
In April of 2014, Hogland took three months of family medical leave because one of her sons was diagnosed with leukemia. Docs. 36-4 at 61, 34-3 at 10. Hogland's supervisor, Beverly Gober ("Gober"), was deposed on October 15, 2014. She testified that Hogland "was off work [on family medical leave] for about three months . . . then she came back one day a week because of [her son's] treatments[.]" Doc. 34-3 at 10. Hogland resumed her four-day-a-week schedule some time in September 2014.
On May 19, 2014, Hogland was deposed. She testified that she could not work more than thirty-two hours a week due to "mental fatigue, and just my whole, I guess, thinking process . . . I just feel like a struggle through a lot of days at work." Doc. 36-4 at 70. She also described having a hard time keeping up with her schedule and staying on time, and with the "whole work process . . . the whole re-thinking everything process." Doc. 36-4 at 76-77. At the time of her deposition, Hogland was using the one day a week she did not work to drive her son to Little Rock for weekly chemotherapy treatments. Doc. 36-4 at 22. Finally, Hogland stated that, she had once planned to obtain additional ultrasound specializations or "registries," but, after the accident, she thought that she could no longer pass those tests. Doc. 39 at 53.
Dr. Jeff Mullen is a radiologist. He has worked closely with Hogland, both before and after the accident, and has "oversight over her quality of work." Doc. 39 at 60. In his deposition, he stated that, after the accident, "there's a difference in her [Hogland's] [work] abilities[.]" Doc. 39 at 59. "That specifically would be her ability with the scans themselves, but more importantly, her ability to handle stressful situations — either difficult cases or multiple cases at one time or anything that causes more stress in our day[.]" Doc. 39 at 60. Before the accident, Dr. Mullen described Hogland as being "one of the better" ultrasound techs that he had ever worked with at any time. After the accident, he testified that she struggles to be in the top half of the ten ultrasound techs that were currently working with Dr. Mullen. Doc. 39 at 69.
Dr. Mullen also noted that, since the accident, she is "flustered or stressed about things a lot easier," and has "trouble articulating[.]" Doc. 39 at 62. He "equate[d] this somewhat to like early a [sic] Alzheimer's phase, the patient's knows something's wrong and they know that they can't remember things that they should, which makes them more stressed. . . I see that sometimes with her . . . she'll get flustered about that." Doc. 39 at 63. It was Dr. Mullen's "personal opinion [that] she is capable of performing adequately on a limited basis." Doc. 39 at 65.
Gober is the radiology manager at NEA Baptist and, since January of 2014, she has been Hogland's supervisor. Doc. 34-3 at 2-3. In her deposition, Gober stated that she had no plans to downsize the number of ultrasound techs at the hospital. Doc. 34-3 at 4. If positions were eliminated, performance evaluations and seniority would be used to determine which employees would be terminated. Doc. 34-3 at 5. She admitted to hearing complaints about Hogland's performance from other staff, "just personal complaints about attitude and emotional issues . . . how emotional she is . . . she changes almost like she'll be happy one minute and yelling at you the next." Doc. 34-3 at 5. After Hogland's accident, Baptist Memorial acquired NEA. According to Gober, Hogland had trouble learning the new policies and procedures, and got very frustrated and upset. Doc. 39 at 77. Gober characterized Hogland as "an emotional wreck" on the anniversary of the accident. Doc. 39 at 79.
Gober was told by Dr. Mullen that the quality of Hogland's performance was not as good as it was pre-accident. Doc. 34-3 at 6. No one at NEA Baptist has told Gober that they want Hogland terminated, and "we've just done further training trying to help." Id. at 6. Gober thought that Hogland was "a good employee; I think she's competent to do her job." Doc. 34-3 at 8.
Don Hubbard is the "radiology business manager" at NEA Baptist who was Hogland's former supervisor. Docs. 39 at 83, 35 at 9. Once Hogland came back to work four days a week, he did not see her having problems doing her eight to ten scans a day. Doc. 34-4 at 2. However, Dr. Mullen told Hubbard that, post-accident, the quality of the scans she performs is "not what it was before the accident." Id. at 2. The only problem Hubbard had with Hogland, before the accident, was her becoming confrontational, "almost to the point of crossing the line a few times." Doc. 34-4 at 3. Since the accident, "she cries at the drop of a hat." Doc. 39 at 88. He described Hogland as a "self-starter" before the accident, and "not so much after." Doc. 39 at 84. Hubbard thought "layoffs [were] coming" to the ultrasound techs at NEA Baptist because it was running in the red. Doc. 39 at 89-91. He was informed that, if layoffs came, they will be based on performance. Doc. 39 at 91.
Chelsea Denton is an ultrasound tech at NEA Baptist and one of Hogland's co-workers. Doc. 39 at 95. According to Denton, after the accident, Hogland's personality changed, and she lacked confidence. Doc. 39 at 97. "She has a hard time finding the words," and cries often and is now upset at work more. Doc. 39 at 98-99.
Hogland's September 30, 2011 "employee evaluation" reflects that her "overall performance" "exceeds standards" and she was noted to have "[e]xceptional technical knowledge and problem solving . . . exceptional ultrasound skills, works well with little to no supervision." Doc. 34-6 at 9-10.
After the August 7, 2012 accident, Hogland's next "employee evaluation" was on July 30, 2013. This evaluation reflects that her "overall performance" "exceeds standards" and she was noted as a "top performer, excellent technical skills, definite asset to company." Doc. 34-6 at 6-7. A November 25, 2013 "employee evaluation" reflects that her "overall performance" "exceeds standards." Doc. 34-6 at 4-5. Another "employee evaluation," apparently prepared on September 24, 2014, indicates that, "during 2013," Hogland "exceeds standards" and is a "good employee, [with] excellent technical skills." Doc. 34-6 at 1-2. Hogland received hourly pay raises in both 2013 and 2014.
Suffice it so say, Hogland's consistently high scores on these post-accident "employee evaluations" are hard to square with the testimony of Dr. Mullen, Gober, Hubbard, Denton, and Hogland, herself.
In his November 25, 2014 report, Dr. Johnson opined that Hogland's "vocational prognosis following her significant traumatic brain injury is likely to be poor." In support of his opinion, he wrote the following:
Doc. 36-3 at 74 (emphasis added).
In his December 18, 2014 deposition, Town & Country's attorneys asked Dr. Johnson the following questions about his opinion as to Hogland's "vocational prognosis":
Doc. 36-3 at 42-48.
On direct, Hogland's counsel asked the following questions to Dr. Johnson about his "vocational" opinions:
Doc. 36-3 at 64-66.
In Dr. Johnson's November 25, 2014 report, he opined that: "[g]iven Ms. Hogland's fragile vocational status, vocation rehabilitation assessment is also likely indicated." Doc. 36-3 at 75. In his December 18, 2014 deposition, he offered the following testimony to support his opinion that Hogland needs to have a vocational rehabilitation assessment, in anticipation of her losing or not being able to perform her current job:
Doc. 36-3 at 55-56.
Town & Country argues that Dr. Johnson is unqualified to recommend that Hogland receive a vocational rehabilitation assessment because he admits he is not a vocational rehabilitation expert. It also argues that his recommendation lacks any foundation because: (1) Dr. Johnson admits he did not review any employment records, was not familiar with Hogland's post-accident employee evaluations, and did not personally speak with any of her colleagues at work; (2) Hogland has received favorable post-accident job evaluations; and (3) Hogland is currently employed. According to Town & Country, a "[v]ocational rehabilitation [assessment] is unnecessary, and permitting Dr. Johnson to testify that it is likely indicated is in direct contradiction to the undisputed, overwhelming evidence in this case. Doc. 37 at 11-12. Finally, Town & Country argues that this recommendation by Dr. Johnson is not "reasonably certain" and therefore inadmissible because:
Doc. 37 at 21.
Hogland defends Dr. Johnson's qualifications to express an opinion on Hogland's need for a vocational rehabilitation assessment "based on his background in neuropsychology, and dealing with clients who face difficulties in the work setting due to traumatic brain injury." Doc. 38 at 18. She goes on to argue that, if the Court will conduct a Daubert hearing:
Doc. 38 at 20. She also argues that Town & Country has mischaracterized the evidence and ignores deposition testimony from various witnesses, including Hogland and her co-workers, that symptoms of Hogland's TBI have hurt and will continue to hurt her job performance.
Based on his education, training, and experience as a neuropsychologist, Dr. Johnson clearly is qualified to opine on how the sequelae of a TBI manifest themselves in the workplace and whether those sequelae are consistent with the problems Hogland is encountering at work: (1) reduced ability to handle stress; (2) emotional lability; (3) word confusion; (4) problems in multi-tasking; (5) decreased decision making and confidence; and (6) decreased speed in "processing," sometimes requiring repetition of tasks.
Importantly, Dr. Johnson has not opined as to when Hogland will lose or quit her job. However, he believes her "vocational prognosis [in her current job] ... is likely to be poor." Doc. 36-3 at 74 (emphasis added). His opinion is supported by testimony from Hogland, Dr. Mullen, Gober, and Denton; his own personal experiences dealing with other patients who have suffered traumatic brain injuries; his review of medical literature addressing problems faced by workers with traumatic brain injury; and the specific symptoms he has observed in Hogland, which indicate her ability to perform her job is declining.
Thus, the Court concludes there is a sufficient foundation to support Dr. Johnson's opinion that Hogland's poor vocational prognosis in her current job justifies her receiving a vocational rehabilitation assessment. While Dr. Johnson cannot give a specific date when Hogland will lose her current job, he believes it is "likely" and he provides specific facts (including the testimony of Hogland and her co-workers) to support his opinion. Admittedly, there is some uncertainty surrounding if or when Hogland loses her job. However, Dr. Johnson's opinion is that the "likelihood" she loses or quits her job is sufficiently high to justify her receiving a vocational rehabilitation assessment. Thus, the Court concludes his opinion is not so "speculative" as to make it inadmissible in evidence. It will be up for the jury to resolve the many questions surrounding if or when Hogland loses her current job.
Town & Country has advanced many good arguments that undermine various aspects of Dr. Johnson's testimony, but all of those arguments go the weight to be assigned Dr. Johnson's opinion that a "vocational rehabilitation assessment" is "likely indicated" for Hogland — even though she continues to hold her job as an ultrasound technician.
Thus, Town & Country's Motion in Limine and Daubert Motion are denied as to Dr. Johnson's fourth recommendation in his November 25, 2014 report.
In Dr. Johnson's November 25, 2014 report, he states that: "By all accounts, in her post-TBI condition Ms. Hogland is increasingly struggling to meet the demands of work and home with conditions as they are currently. As her parent's or child's medical conditions worsen, she will require in-home assistance in order to manage."
In his December 18, 2014 deposition, Dr. Johnson explained that "by [Hogland's] account she's having difficulties managing her basic day-to-day home administrative tasks, things that she needs to do for her family . . . [s]he presented as an over arching type of construct, meaning, basically, across the board she's barely keeping her head above water, so to speak, and becomes very emotional when she talks about that." Doc. 36-3 at 56. Dr. Johnson also was asked whether it was his opinion that Hogland "requires in-home assistance to help manage her parents [or son] if they worsened versus she needs [in-home assistance] because of a brain injury?" Dr. Johnson answered:
Doc. 36-3 at 57.
Town & Country argues that, by recommending in-home assistance, Dr. Johnson has "suggest[ed] that Ms. Hogland is disabled" and "stepped into the shoes of a physician" beyond his qualifications. Doc. 37 at 8. Town & Country also characterizes Dr. Johnson's recommendation as "contingent on matters
Hogland argues that Dr. Johnson is qualified to recommend in-home assistance based on his "perspective as a neuropsychologist." Doc. 38 at 21. As a foundation for Dr. Johnson's opinion, Hogland cites her deposition testimony that she "[doesn't] always communicate well . . . I can't always say what I want to say or, you know, come up with the words I want to say, which gets very frustrating and it gets me upset." Doc. 36-4 at 133. According to Hogland, her brain injury has diminished her ability to deal with stress, both at work and at home. Doc. 38 at 21.
Contrary to Town & Country's argument, Dr. Johnson is not opining that Hogland is "disabled" or offering a medical opinion that she is restricted from work. As a neuropsychologist, Dr. Johnson is an expert in the area of TBI sequelae, and can testify how those sequelae impact a person's ability to respond to stress, and limit his or her ability to run a household. At trial, Town & Country can cross-examine Dr. Johnson about his opinions on the need for Hogland to have in-home assistance, based on her TBI, and whether those opinions are contingent on "unrelated matters."
Thus, Town & Country's Motion in Limine and Daubert Motion are denied as to Dr. Johnson's fifth recommendation contained in his November 25, 2014 report.
In Dr. Johnson's November 25, 2014 report, he express the following opinion on the cause of Hogland's "current neurocognitive and psychological difficulties":
Doc. 36-1 at 6.
Town & Country contends that Dr. Johnson is not qualified to opine on causation, and that his opinion lacks foundation:
Doc. 37 at 13 (emphasis in original).
Hogland responds that Dr. Johnson "will testify that he used standard neuropsychological testing batteries, and he formed his opinions from those standardized tests." Doc. 38 at 22. She also disputes Town & Country's characterization of Dr. Johnson as having no knowledge of her "pre-morbid status." Dr. Johnson's first undated report reflects Hogland's pre-accident medical history, which was essentially unremarkable.
Neither party has cited any legal authority to assist the Court in deciding if a neuropsychologist may opine on whether a traumatic brain injury was caused by an accident. While there appear to be no Arkansas or Eighth Circuit cases on point, "[o]ther jurisdictions analyzing this issue under various analogs to [Rule 702] have not required specific qualifications in determining the etiology of brain injuries before allowing psychologists or neuropsychologists to testify in this regard." Bennett v. Richmond, 960 N.E.2d 782, 790 (Ind. 2012) (citing cases); Huntoon v. TCI Cablevision, 969 P.2d 681, 690 (Colo. 1998) (rejecting a categorical rule that neuropsychologists may not opine as to causation because they are not medical doctors — "The majority of jurisdictions . . . have found that neuropsychologists may, with the proper foundation, opine on the physical cause of organic brain injury.") (citing cases); compare with Martin v. Benson, 125 N.C. App. 330, 336-37, 481 S.E.2d 292, 296 (N.C. Ct. App. 1997) (reviewing the state statutory definitions of "psychology" to conclude "that the practice of psychology does not include the diagnosis of medical causation."), rev'd on other grounds, 348 N.C. 684, 500 S.E.2d 664 (1998).
There can be no dispute that Hogland was involved in a serious motor vehicle accident on August 7, 2012; the accident was caused by Town & Country's negligence; and Hogland suffered significant brain injuries, which required hospitalization, major surgery, and rehabilitation. Dr. Johnson evaluated her, in a treating capacity, only two weeks after the accident. According to his undated report (doc. 36-3 at 70), her pre-accident medical history was unremarkable, with no reported history of any head injuries and one brief interval of taking a mild anti-depressant for symptoms of depression and anxiety. Finally, Dr. Johnson has continued to follow her in multiple examinations.
Given these facts, the Court concludes that, as a neuropsychologist, Dr. Johnson is qualified to render the opinion that "there [is] a direct and causal relationship between Ms. Hogland's current neurocognitive and psychological difficulties and the MVA [motor vehicle accident] which occurred on 08/07/2012." The Court further concludes that there is a sufficient foundation to support Dr. Johnson's opinion that Hogland's TBI and its resulting sequelae were caused by the August 7, 2012 motor vehicle accident. See Bennett, supra, 960 N.E.2d at 790; Huntoon, supra, 969 P.2d at 690.
Accordingly, Town & Country's Motion in Limine and Daubert Motion to exclude Dr. Johnson's opinion on causation are denied.
Dr. Irmo Marini has a Master of Arts, with a major in clinical psychology from Lakehead University in Canada. Doc. 40 at 56. He has a Doctor of Philosophy, with a major in rehabilitation, from Auburn University. Id. He is also a certified life care planner, a certified rehabilitation counselor, and a registered forensic vocational expert. Since 1990, Dr. Marini primarily has worked as an expert witness preparing vocational assessments or life-care plans for lawyers. Doc. 34-2 at 2. He also has been a vocational expert in more than 5,000 social security disability hearings. Doc. 34-2 at 6.
In December of 2014, Dr. Marini prepared a "Life Care Plan and Vocation[al] Analysis." Doc. 34-1. Dr. Marini's plan relies on, among other things: (1) his November 16, 2014 interview of Hogland; (2) a 72-page summary of Hogland's medical records provided by her attorneys; (3) a review of the deposition transcripts of Hogland and her co-workers and supervisors; and (4) a consultation with Dr. Johnson, and a review of Dr. Johnson's "final report . . . dated August 23, 2014."
Town & Country argues that: (1) Dr. Marini's Vocational Analysis is inadmissible because it is based on speculation; and (2) Dr. Marini's Life-Care Plan is inadmissible because he is not qualified to opine on future medical treatment. The Court will address each of Town & Country's arguments below.
In pertinent part, Dr. Marini's Vocational Analysis states the following:
Doc. 34-1 at 14-15 (emphasis added).
In Dr. Marini's "first scenario," Hogland continues to work at her current job as an ultrasound technician, 32 hours per week, until her retirement age of 67. Doc. 34-1 at 15. Under this scenario, Hogland loses $204.88 per week/$10,654 per year (based on the eight-hour difference between working forty hours a week and 32 hours a week) "throughout her work life expectancy or retirement age of 67."
Dr. Marini's "second scenario considers what I generally observe in persons with moderate brain injury such as Ms. Hogland's who perform skilled work under rigid time pressures . . . [p]ersons with moderate TBI often lose their jobs not because of a lack of skill or performance (although in her case her quality of work has been questioned), but due to emotional problems such as she continues to experience weekly." Doc. 34-1 at 15. In the "second scenario," Hogland's "available labor market will be best suited for unskilled or at best low semiskilled work that is low stress, repetitive, and routine[.]" Doc. 34-1 at 15. Dr. Marini identifies five available jobs in the Jonesboro area that Hogland "would likely be able to safely engage in from a medical standpoint through her work-life expectancy. After averaging the annual earnings from those five jobs ($22,600), and subtracting that amount from Hogland's pre-injury average annual earnings ($45,114), Hogland's estimated annual wage loss is $22,514 per year, until her retirement age of 67.
Dr. Marini's "third and final scenario . . . assumes that Ms. Hogland, due to emotional lability, will essentially be in and out of the workforce (which is typical for this type of injury), and will more often than not be unemployed throughout her work life expectancy." Doc. 34-1 at 15-16. In the "third scenario," Hogland has a complete loss of future earnings, $45,114 per year, not including fringe benefits, until her retirement age of 67.
In the final section of his report, Dr. Marini speculates that, if Hogland had not been injured, her skills would have allowed her to attain "career mobility" and she would have moved from Jonesboro to a higher paying job in Memphis or Little Rock. So beings Dr. Marini's attempt to foretell Hogland's future, if she not been injured: (1) "[O]nce Ms. Hogland's mother unfortunately passes away [from ALS], she [Hogland] may well have moved for the much higher incomes offered for her specialty in [Memphis and Little Rock] while remaining close to home;" and (2)"[I]f one considers the 90th percentile average earnings of ultrasound technicians in Little Rock and Memphis respectively, these are $76,700 per year and $74,500 per year. This factor should also be considered as a very real vocational probability for the Hogland family if not for the injury and Kerry taking care of her mother." Doc. 34-1 at 16.
In embarking on this speculative odyssey, Dr. Marini seemed utterly undeterred by the fact that nothing in the record supports the central assumption for all of his speculation, i.e., if Hogland had not been injured in the accident, she would have later moved from Jonesboro to Memphis or Little Rock to earn a higher salary.
Finally, Dr. Marini concludes his Vocational Analysis by opining that, among the future vocational scenarios, the most "vocationally probable" is that Hogland will fall somewhere between his second and third scenarios:
Doc. 34-1 at 16-17.
Town & Country argues that all of Dr. Marini's "scenarios" are inadmissible because they are speculative. As to the first scenario, based on Hogland continuing to work in her current job, thirty-two hours a week, for the remainder of her work life, Town & Country contends it is speculative because: (1) it is based on Hogland's subjective testimony about her future; (2) Dr. Marini ignores the fact that Hogland was taking her son, once a week, to Little Rock for chemotherapy treatments; (3) all evidence indicates that NEA Baptist would allow Hogland to return to full-time work if she elected to do so; and (4) no physician has restricted Hogland from working full time. According to Town & Country, Dr. Marini has "boot-strapped" his first scenario solely on Hogland's self-serving assertions, and there is no evidence to support Dr. Marini's opinion that she can only work 32 hours a week. Doc. 35 at 6-7.
Town & Country argues that Dr. Marini's second and third scenarios are speculative because: (1) all of the testimony from Hogland's supervisors and co-workers indicates that she "[is] a qualified and competent employee that [is] in no danger of losing her job;" (2) Hogland has received consistently favorable employee evaluations and pay raises after she returned to work following the accident; (3) Dr. Marini never spoke with any of Hogland's supervisors or co-workers; and (4) Dr. Marini did not know how ultrasound techs at NEA Baptist were evaluated, or how Hogland compared to other ultrasound techs. Doc. 35 at 8-11.
Finally, as to Dr. Marini's ruminations about Hogland moving to Little Rock or Memphis for a higher-paying ultrasound tech job, Town & Country points out the obvious — there is simply no evidence in the record that she ever contemplated making such a move.
In Hogland's Response, she argues that Dr. Marini's first three scenarios are supported by: (1) her own account of the various ways in which she is "not the way she was before;" (2) Dr. Mullen's testimony that she does not perform or deal with stress as well as she did before the accident, and that her performance ranking among the other ultrasound techs has fallen from being in the "top ten he had ever worked with," before the accident, to now struggling to be "in the top 5 of the 10" ultrasound techs that he currently works with; and (3) other testimony from colleagues Gober, Hubbard, and Denton, all of which supports, to varying degrees, Dr. Marini's second and third scenarios.
Hogland's attorneys also represent that, at trial, she will testify about how her ability to work has continued to decline: "Since [Hogland's deposition on May 19, 2014], her vocational situation is noticeably worsened. If a hearing is requested by the Court, Ms. Hogland can [sic] that her memory lapses and her inability to properly focus at work have gotten worse, and are now a substantial problem for her. She is lucky if she can work 32 hours a week[.]"
Under Arkansas law, loss of future earnings and loss of earning capacity must be proved to a reasonable certainty. AMI Civil 2206 (2015). "To prove loss of future earnings, with reasonable certainty, the evidence must show: (1) the amount of wages lost for some determinable period; and (2) the future period over which wages will be lost. However, [the Arkansas Supreme Court] has recognized some latitude in this area and has not insisted on the exactness of proof if it is reasonably certain that some loss has occurred." Peterrie Transp. Services, Inc. v. Thurmond, 79 Ark.App. 375, 90 S.W.3d 1 (Ark. App. 2002) (citing Dr. Pepper Bottling Co. v. Frantz, 311 Ark. 136, 842 S.W.2d 37 (1992)). In White Consol. Industries, Inc. v. Thompson, 2001 WL 419188 (Ark. App. Apr. 25, 2001) (unpublished) (internal citations omitted), the Court succinctly stated the rule governing proof of lost future earnings as follows:
In support of the admissibility of all of Dr. Marini's lost earnings scenarios, Hogland cites Robinson v. Crown Equip. Corp., 2007 WL 2819661 (E.D. Ark. Sep. 26, 2007). In that case, United States District Judge Billy Roy Wilson rejected defendant's argument that plaintiff's economist's testimony about lost earnings "was based on speculation, and is therefore, unreliable."
According to Hogland, Judge Wilson "succinctly encapsulates [her] argument" as follows:
Id. at *2-3. Hogland argues that Crown Equipment supports her position because "[i]n this case, alternative computations have been made to assist the jury with determining the economic damages claim, assuming the jury finds that [Hogland] is not capable of continuing with her current employment."
Hogland also cites Mallicoat v. Archer-Daniels-Midland Co., 2013 WL 6000097 (E.D. Mo. Nov. 12, 2013) to support her argument. In Mallicoat plaintiff's economist calculated his lost future earnings based on the assumption that his injuries limited him to performing only minimum-wage work. However, the economist did not base this assumption "on any objective facts;" did not know the extent of plaintiff's injuries; and was merely asked by plaintiff's counsel to make the assumption. Moreover, plaintiff's deposition testimony indicated that, after his injuries, he continued to perform work at more than the minimum wage, and his vocational expert concluded that he could perform more than minimum wage work. Based on these facts, the trial court granted defendant's Daubert motion because "the expert's analysis [was] unsupported by the record," and it "offer[ed] no assistance to the jury." Id. at *3.
While nothing in the court's decision in Mallicoat would seem to support any of Hogland's arguments, she explains that it is being cited to distinguish its facts from those involved in this action: "The situation before this Court is much different [than Mallicoat]: Plaintiffs' economic damages testimony completely coincides and relies upon the vocational scenarios proposed by Dr. Marini." Doc. 40 at 4.
All of Hogland's arguments beg the narrow question governing the admissibility of Dr. Marini's three scenarios: Are the assumptions relied on by Dr. Marini, as the basis for each of those scenarios, "supported by the record?" Hogland's deposition testimony can be fairly characterized as establishing that, since the accident, she believes she has: (1) reduced ability to handle stress; (2) emotional lability; (3) word confusion; (4) problems in multi-tasking; (5) decreased decision making and confidence; and (6) decreased speed in "processing," sometimes requiring repetition of tasks. Her testimony is supported by the deposition testimony of her co-workers. Additionally, her lawyers have proffered that, at trial, Hogland will testify that she is "noticeably worsened," and Dr. Mullen will testify that he would now only recommend her as an ultrasound tech with "some reservations."
Finally, Dr. Johnson, Hogland's treating neuropsychologist, has expressed his expert opinion that "Hogland's vocational prognosis following her significant traumatic brain injury is likely to be poor," and that "[a]s Ms. Hogland's current vocation struggles continue, as they have despite neurological improvement, the probability of her losing her current job increases exponentially."
Based on this record, the Court concludes that Dr. Marini can testify, as a vocational expert, and express his opinions with regard to the "three vocationally probable scenarios regarding Ms. Hogland's future ability to work, and any resulting implications in future earning capacity" set forth in his December 2014 "Vocational Assessment." To be very clear and avoid any future misunderstanding, those three scenarios are as follows:
In addition, Dr. Marini can testify about the most vocationally probable scenario for Hogland, which the Court has labeled his "hybrid" scenario.
However, because there is no evidence supporting Dr. Marini's "career mobility" theory (which is based on his guess that, at some future date, Hogland would have moved to Memphis or Little Rock for a higher paying ultrasound tech job), his testimony about that theory is far too speculative to be admitted into evidence.
Most, if not all, of the physicians, medical technicians, lawyers, bankers, engineers, school teachers, and other professionals living in the Jonesboro area would have significantly greater "earning potential" if they moved to equivalent jobs in Memphis or Little Rock. They have elected not to do so for a host of personal and professional reasons that are not related to the "much higher income" they could earn in Memphis and Little Rock. Jonesboro and the surrounding towns, including Pocahontas where Hogland lives, are thriving and have excellent public schools and active churches and other community organizations.
To the extent that Dr. Marini is making a generalized guess that most skilled professionals like Hogland inevitably choose to leave Jonesboro, for the greener pastures of Memphis or Little Rock, it certainly is not borne out by the decisions made by the overwhelming majority of professionals working in the Jonesboro area. To the extent Dr. Marini is making a specific guess as to Hogland, there is no evidence in the record to support that guess.
Incredibly, in Dr. Marini's own deposition, defense counsel asked him if he had any evidence that Hogland wanted to move to Little Rock or Memphis for a higher paying job. He answered: "No . . . I actually never even asked her the question." Doc. 35 at 11. Thus, by his own admission, his "career mobility" theory is based solely on his own speculation and appears to be designed to inflate, to the maximum extent possible, the amount of Hogland's lost future earnings.
Dr. Marini will not be allowed to offer any testimony about Hogland's lost future earnings based on the assumption that, if Hogland had not been involved in the August 7, 2012 accident, she would have moved — at some future date — to either Little Rock or Memphis "for the much higher incomes offered by her specialty in [Memphis and Little Rock] while remaining close to home."
Finally, Dr. Talbert will not be permitted to testify about Hogland's future lost earnings based on Dr. Marini's "career mobility" theory and any calculations made by Dr. Talbert, for use as trial exhibits, must be redacted so that they contain no calculations of Hogland's future lost earnings based on Dr. Marini's "career mobility" theory.
For the foregoing reasons, Town & Country's Motion in Limine and Daubert Motion are granted only as to the final section of Dr. Marini's Vocational Analysis, which assumes Hogland's "career mobility" would have led her to a higher paying job in Memphis or Little Rock. Those Motions are denied as to the other work scenarios for Hogland described in Dr. Marini's Vocational Analysis. See Doc. 34-1 at 14-15.
Dr. Marini's Life-Care Plan consists of the following items:
Doc. 34-1 at 18-24.
In Town & Country's Motion in Limine and Daubert Motion, it argues that Dr. Marini's Life-Care Plan is inadmissible because he is not a medical doctor and his Life-Care Plan is based on either his unqualified opinions or the unqualified opinions of Dr. Johnson.
Consistent with the Court's earlier rulings on the admissibility of Dr. Johnson's recommendations, it will grant Town & Country relief as to the item (5) "speech language therapy" in the "Projected Therapeutic Modalities" section of Dr. Marini's Life-Care Plan. As to the other items of care or support set forth in the sections of Dr. Marini's Life-Care Plan (captioned "Projected Evaluations," "Projected Therapeutic Modalities," "Home/Facility Care," and "Drug/Supply Needs") the Court's earlier rulings make it clear that Dr. Johnson, as a neuropsychologist, is qualified to opine on Hogland's need for those future items of care, as set forth in his November 25, 2014 report. Accordingly, there is no basis for excluding those sections of Dr. Marini's Life-Care Plan or his testimony about them.
Nonetheless, there is a serious problem with the last section of Dr. Marini's Life-Care Plan, captioned "Future Medical Care — Routine Evaluations," which projects Hogland's future needs for neurology visits and brain imaging. Dr. Marini admits that Dr. Chan, Hogland's neurologist, has not provided him with any of the pertinent information he needs to complete this section of the plan. As a result, in this section of the Life-Care Plan, Dr. Marini notes that any future neurological care and the related costs of that care are "TBD" — "to be determined."
Town & Country's argues that it was Hogland's obligation to obtain evidence from Dr. Chan to support this section of Dr. Marini's Life-Care Plan "before the discovery deadline passed." Doc. 41 at 8. Town & Country also suggests that it is probable no such evidence exists because, if it did, "it would [already] be before the Court." Id.
In Hogland's Response, she argues that:
Doc. 40 at 32. Hogland cites no legal authority to support her position, which is contrary to Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure.
It was Hogland's obligation to provide Dr. Marini with Dr. Chan's opinion on her need for "future neurology visits and brain imaging" before Dr. Marini prepared his Life-Care Plan and before the discovery cut-off deadline. Because she failed to do so, there is no medical evidence in the record to support Hogland's need for future "neurology visits" and future "MRI, CT, and/or brain x-rays." Thus, there is no evidence in the record to support the final section of Dr. Marini's Life-Care Plan relating to "Future [Neurological] Medical Care — Routine Evaluations."
Accordingly, Town & Country's Motion in Limine and Daubert Motion are granted and neither Dr. Marini nor Dr. Chan will be allowed to testify about Hogland's future need for any neurological medical care or any of the related medical costs. If Hogland's counsel intends to introduce into evidence Dr. Marini's Life-Care Plan, they must redact: (1) Item (5) "speech language therapy" from the section of the Life-Care Plan captioned "Projected Therapeutic Modalities;" and (2) everything in the final section of the Life-Care Plan, which is captioned "Future Medical Care — Routine Evaluations." The remainder of the relief sought by Town & Country's Motion in Limine and Daubert Motion on Dr. Marini's Life Care Plan, is denied.
Dr. Lonnie Talbert is Hogland's expert economist. On December 5, 2014, he prepared a "Report of Economic Damages Related To: Lost Earnings and Life Care Plan." Doc. 32-1. He later prepared an Addendum dated December 12, 2014. In those documents, Dr. Talbert projects: (1) Hogland's lost past earnings; (2) the present value of Hogland's lost future earnings; (3); the present value of Hogland's lost future fringe benefits; and (4) the present value of Dr. Marini's Life-Care Plan.
Dr. Talbert projects and calculates Hogland's loss of future earnings as follows:
Town & Country argues that all of Dr. Talbert's projections of Hogland's lost future earnings and fringe benefits are inadmissible because they are based on lost future earnings scenarios provided by Dr. Marini in his "Vocational Analysis." Consistent with the Court's earlier ruling on the admissibility of Dr. Marini's various loss of future earnings scenarios, Town & Country's Motion in Limine and Daubert Motion are granted only as to Dr. Talbert's "Exhibit F" calculations, which are based on Dr. Marini's "career mobility" theory.
Finally, Town & Country argues that Dr. Talbert's calculations on Hogland's past lost wages are inadmissible because those damages are within the jury's common knowledge and "the jury does not need an economist to tell it how to perform basic arithmetic." Doc. 33 at 18. While the math involved in computing Hogland's past lost wages may be "basic," it still would be helpful for the jury to have an economist illustrate this calculation. Thus, Town & Country's Motion In Limine and Daubert Motion to exclude Dr. Talbert's calculation of Hogland's past lost earnings are denied.
IT IS THEREFORE ORDERED THAT:
1. Town & Country's Motion in Limine and Daubert Motion to Exclude Certain Testimony of Dan Johnson, Ph.D. (doc. 36) are GRANTED, IN PART, and DENIED, IN PART. Town & Country's Motion in Limine and Daubert Motion are GRANTED only as to Dr. Johnson's third recommendation, for speech therapy, contained in his November 25, 2014 Report. The remainder of Town & Country's Motion in Limine and Daubert Motion is DENIED.
2. Town & Country's Motion in Limine and Daubert Motion to Exclude Testimony of Dr. Irmo Marini, Ph.D. (doc. 34) are GRANTED, IN PART, and DENIED, IN PART. Town & Country's Motion in Limine and Daubert Motion are GRANTED as to: (1) Dr. Marini's "career mobility" theory as a basis for calculating Hogland's future lost earnings; (2) item (5) "speech language therapy" in the section of Dr. Marini's Life-Care Plan captioned "Projected Therapeutic Modalities;" and (3) everything in the final section of Dr. Marini's Life-Care Plan captioned "Future Medical Care — Routine Evaluations." The remainder of Town & Country's Motion in Limine and Daubert Motion is DENIED.
3. Town & Country's Motion in Limine and Daubert Motion to Exclude Testimony of Dr. Lonnie Talbert, Ph.D. (doc. 32) are GRANTED, IN PART, and DENIED, IN PART. Town & Country's Motion in Limine and Daubert Motion are GRANTED as to Dr. Talbert's calculation of Hogland's future lost earnings based on Dr. Marini's "career mobility" theory. The remainder of Town & Country's Motion in Limine and Daubert Motion is DENIED.
Fed. R. Evid. 702. Under Rule 702, the Court must ensure that a proffered expert is qualified by his or her knowledge, skill, experience, training, or education before that person may testify as an expert. Additionally, the Court has a gatekeeping responsibility to ensure that expert evidence is both relevant and reliable before admitting it. Daubert, 509 U.S. at 589-91; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999).
Rule 702 requires that the proffered expert testimony relate to an issue in the case and be sufficiently tied to the facts of the case, i.e., that the expert testimony is a proper "fit" for the case. Daubert, 509 U.S. at 591, 113 S. Ct. at 2795-96. The inquiry is "flexible" and focuses on the principles and methodology that the expert uses, and not on the conclusions generated. Daubert, 509 U.S. at 594-95. Four factors guide the Court's analysis: (1) whether the theory can be or has been tested; (2) whether the theory has been subjected to peer review and publication; (3) in the case of a particular scientific technique, what the known or potential rate of error is and the existence and maintenance of standards controlling the technique's operation; and (4) whether the theory has received "general acceptance" in the relevant scientific community. Id. at 593-94.
The Court's role is not to determine whether an expert's opinion is correct. It is an expert witness's methodology, rather than his or her conclusions, that is the primary concern of Rule 702. Bonner v. ISP Techs., Inc., 259 F.3d 924, 929 (8th Cir. 2001). "`[E]ven if the judge believes there are better grounds for some alternative conclusion, and that there are some flaws in the scientist's methods, if there are good grounds for the expert's conclusion it should be admitted . . . .'" Id. (quoting Heller v. Shaw Indus., 167 F.3d 146, 152-53 (3d Cir. 1999)). "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." Daubert, 509 U.S. at 596.
"Rule 702 favors admissibility if the testimony will assist the trier of fact, and doubts regarding whether an expert's testimony will be useful should generally be resolved in favor of admissibility." Clark v. Heidrick, 150 F.3d 912, 915 (8th Cir. 1998) (citation and quotation omitted). "Only if an expert's opinion is `so fundamentally unsupported that it can offer no assistance to the jury' must such testimony be excluded." Hose v. Chicago Nw. Transp. Co., 70 F.3d 968, 974 (8th Cir. 1995) (quoting Loudermill v. Dow Chem. Co., 863 F.2d 566, 570 (8th Cir. 1988)).
Against this backdrop, many of Dr. Johnson's reports and deposition testimony contain confusing errors with respect to Hogland's examination timeline. Dr. Johnson's July 2014 report erroneously states that Hogland had her first comprehensive out-patient neuropsych assessment on "12/08/12," (doc. 36-3 at 76) and then goes on to correctly state that her first "outpatient exam was on 12/07/12" Doc. 36-3 at 77. Dr. Johnson's November 25, 2014 report repeats the earlier erroneous statement that Hogland "presented for follow-up comprehensive out-patient neuropsych assessment on 12/08/2012." Doc. 36-3 at 69.
In Dr. Johnson's December 18, 2014 deposition, there is a badly confused exchange of questions and answers in which he testifies that, on August 23, 2014, he performed a "comprehensive neurological examination similar to the one we did two years earlier on 8-7-2012 [in fact the date of the accident]." Doc. 36-3 at 6. He goes on to state that he did the August 23, 2014 "comprehensive" examination to be "very commensurate" with the "fairly comprehensive examination in August of 2012." Doc. 36-3 at 7. Dr. Johnson's November 25, 2014 report also contains the non sequitur that "[c]urrent neuropsychological testing [from August 23, 2014] suggests that [Hogland has improved across most domains] since her last comprehensive neuropsych exam on 12/08/14." Doc. 36-3 at 73 (emphasis added).
Despite Dr. Johnson's many confusing and conflicting statements, the record when viewed as a whole, reflects that his two "comprehensive" examinations of Hogland occurred on December 7, 2012, and August 23, 2014.
Cary v. United States, 2013 WL 4496362, *5 (E.D. Ark. Aug. 20, 2013).
Dr. Marini is an expert witness. His deposition was his opportunity to "fully explain his opinions and methodologies for his vocational scenarios and life care plan." It is far too late for Hogland's counsel to suggest that the Court conduct an evidentiary hearing (less than sixty days before trial) so they can try to shore up or rehabilitate any of the "opinions or methodologies" relied on by Dr. Marini in his December 11, 2014 deposition. As Hogland's counsel undoubtedly knows, the opinions and methodologies expressed or relied on by expert witnesses, are not moving targets. Absent extraordinary circumstances, the opinions and methodologies expressed or relied on by expert witnesses in their depositions are fixed through trial.
