United States District Court, M.D. Louisiana
WAYNE BARNETT, JR.
NATIONAL CONTINENTAL INSURANCE COMPANY, SONIC EXPRESS, LLC AND DELFIN DEGUZMAN
RULING ON DEFENDANTS' MOTION TO EXCLUDE TESTIMONY
OF DR. CHARLES KAUFMAN
W. DEGRAVELLES UNITED STATES DISTRICT JUDGE.
the Court is Defendants' Motion to Exclude Testimony of
Dr. Charles Kaufman (Doc. 42), by National Continental
Insurance Company (“National”), Sonic Express,
LLC, (“Sonic”) and Delfin Deguzman
“Defendants”). Plaintiff Wayne Barnett, Jr.
(“Barnett” or “Plaintiff”) opposes
the motion. (Doc. 51.) For the following reasons, the motion
AND ARGUMENTS OF THE PARTIES
case arises out of a motor vehicle collision between
Plaintiff and Deguzman, who, at the time of the collision, is
alleged to have been working for Sonic. National is alleged
to insure Sonic and Deguzman. Liability and damages are
contested. Pertinent to this motion is the extent of injuries
and damages suffered by Plaintiff. Plaintiff alleges that he
suffered mild traumatic brain injury (“TBI”).
(Doc. 51 at 1-2.) In support of his contention, Plaintiff
offers the testimony of treating neurologist Charles Kaufman,
argue that Kaufman's testimony should be excluded because
his conclusion that Plaintiff's alleged brain injury was
caused by the accident is not properly supported under the
principles announced in Daubert v. Merrill Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Specifically, Defendants insist that his causation opinion is
“unreliable, based on insufficient facts, data and
expertise.” (Doc. 42-1 at 1.)
contend that Kaufman's conclusion that Plaintiff suffered
TBI is not sufficiently supported because, in part, it is
based on an inaccurate history given by Plaintiff.
(Id. at 4.) Defendants argue that Kaufman
“relied solely” on Barnett's history that he
struck his head during the accident to support his finding
that there was a “significant enough force or velocity
experienced by his body…to result in a brain
injury.” (Id. at 4-5.) But, argue Defendants,
Plaintiff “did not strike his head during the
accident.” (Id., at 4.)
addition, Kaufman doesn't know the speed of the vehicles,
“admittedly has no training in biomechanics”
(Doc. 42-1 at 5) and thus, “fatal to his attempt to
offer an opinion regarding causation[, ]… does not
know the change in velocity required for a
concussion…” (Id.) Next, Defendant
criticizes Kaufman's testing (specifically, the NeuroTrax
cognitive study and the Diffusion Tensor Imaging
(“DTI” studies) because neither can date the
onset of the brain injury. Because Barnett suffered a
concussion when he was a young teenager and a collision with
an embankment in 2015, “Kaufman cannot conclusively
link Mr. Barnett's alleged traumatic brain injury with
the accident” in question. (Id., at 8.) He
also questions the reliability of these
“controversial” tests. (Id., at 9.)
responds first by challenging Defendants' understanding
of the facts of the accident and specifically Defendants'
“repeated false assertion…that Mr.
Barnett did not strike his head.” (Doc. 51 at 6,
emphasis in original.) “Mr. Barnett specifically
testified in his deposition that he struck his head on the
rearview mirror of his vehicle, knocking the mirror off his
windshield, and resulting in numerous cuts to his
face.” (Id., at 6., citing Doc. 51-2 at 3-4.)
Further, argues Plaintiff, one can suffer a concussion from a
“acceleration/deceleration movement (i.e.
whiplash)” which can cause TBI. (Id., at 6-7,
citing medical articles, n. 17, which are attached as Docs.
51-9 and 51-10)
also defends Kaufman's testing. DTI “has been
tested and has a low error rate, been subject[ed] to peer
review and publication…and…is a generally
accepted method for detecting TBI.” Andrew v.
Patterson Motor Freight, Inc., 2014 WL 5449732 (W.D. La.
Oct. 23, 2014 at * 8-9) (Doherty, J) (citations omitted)
(rejecting Daubert challenge to DTI related testimony) .
generally, Plaintiff maintains that a physician's use of
his patient's history, clinical findings, testing,
medical literature and his experience is the normal and
accepted methodology used to support medical opinions on
causation. (Doc. 51 at 8-9.) He argues that Defendants'
insistence that such an opinion must be supported by
biomechanical expertise and analysis is incorrect and
unsupported by any case law. (Id., at 9.)
purports to be a Daubert challenge based on the
expert's alleged failure to use an accepted methodology
as well as the opinion's alleged lack of an adequate and
correct factual foundation. (Doc. 42 at 1-2, citing
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). However, when
no hearing is held, “a district court must still
perform its gatekeeping function by performing some type of
Daubert inquiry.” Id. “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)).
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:
[W]hen expert testimony is offered, the trial judge must
perform a screening function to ensure that the expert's
opinion is reliable and relevant to the facts at issue in the
case. Daubert went on to make “general
observations” intended to guide a district court's
evaluation of scientific evidence. The nonexclusive list
includes “whether [a theory or technique] can be (and
has been) tested, ” whether it “has been
subjected to peer review and publication, ” the
“known or potential rate of error, ” and the