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Barnett v. National Continental Insurance Co.

United States District Court, M.D. Louisiana

January 8, 2019




         Before 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 (“Deguzman”) (“collectively “Defendants”). Plaintiff Wayne Barnett, Jr. (“Barnett” or “Plaintiff”) opposes the motion. (Doc. 51.) For the following reasons, the motion is denied.


         This 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, M.D.

         Defendants 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.)

         Defendants 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.)

         In 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.)

         Plaintiff 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)

         Plaintiff 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) .

         More 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.)


         This 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)).

         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:

[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 “existence ...

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