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Graham v. Noeuy

United States District Court, W.D. Missouri, Central Division

October 27, 2016

SAREP NOEUY, Defendants.



         Plaintiff Sabrina Graham moves to exclude portions of the opinion of Defendant Sareap Noeuy's expert, John Krause, M.D. Doc. 120. The motion is granted in part and denied in part.

         I. Background

         Graham alleges she suffered injuries, including injuries to her left ankle, when she and Nouey had a car accident. She complains of left ankle pain, and her treating physician has recommended surgery to correct posterior tibial tendon dysfunction (PTTD).

         Dr. Krause is board-certified orthopedic surgeon who specializes in the lower extremity. He examined Graham, took a history, reviewed her medical records, and provided an opinion concerning the alleged injuries to her left ankle. Dr. Kraus identified a tear in Graham's left posterior tibial tendon. He opined that the tear was chronic and not caused by the accident, and that Graham's PTTD was a condition that pre-existed the accident. He also opined that Graham expressed some degree of “symptom magnification” during her exam, in trying to relate preexisting toe or bunion pain to her alleged ankle pain.

         Graham challenges the factual bases for Dr. Krause's opinions. First, she asks that Dr. Krause be precluded from offering testimony that she has a chronic, pre-existing condition. Specifically, she asks that Dr. Krause be precluded from testifying that her posterior tibial tendon tear was chronic rather than acute, the accident did not cause the tear, the condition pre-existed the accident, and the surgery proposed by her treating physician is to treat her preexisting condition. She also asks that Dr. Krause be precluded from opining that she displayed “symptom magnification” when he examined her.

         II. Discussion

         Under Rule 702 of the Federal Rules of Civil Procedure, the Court considers whether (1) the expert testimony is relevant in that it will be useful to the trier of fact, and (2) the expert is qualified to assist the finder of fact, and (3) the proposed evidence is reliable or trustworthy. As to trustworthiness, the Court considers whether the evidence is based upon sufficient facts or data, and is the product of reliable principles and methods, and whether the witness has applied those principles and methods reliably to the facts. Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001). These considerations are made with an eye toward the factors set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993): whether a theory or technique can or has been tested; whether it has been subjected to peer review and publication; the known or potential rate of error; and whether the theory is generally accepted. Id. at 686-87.

         The standard for admission of expert testimony is a liberal one. Johnson v. Mead Johnson & Co., LLC, 754 F.3d 557, 562 (8th Cir. 2014). “As long as the expert's ... testimony rests upon good grounds based on what is known it should be tested by the adversary process with competing expert testimony and cross-examination, rather than excluded by the court at the outset.” Id. A district court has “broad discretion” to admit or exclude expert testimony. Clark v. Hedrick, M.D., 150 F.3d 912, 915 (8th Cir. 1998). See also Wagner v. Hesston Corp., 450 F.3d 756, 758 (8th Cir. 2006) (“Under the framework developed in Daubert, trial courts must serve as gatekeepers to insure that proffered expert testimony is both relevant and reliable. Trial courts are given broad discretion in fulfilling this gatekeeping role[.]”).

         A. The expert's opinions concerning a chronic, preexisting condition

         Generally, a medical expert can testify as to the source and cause of a person's injury or pain. Williams v. Wal-Mart Stores, Inc., 922 F.2d 1357, 1361 (8th Cir. 1990). In Williams, for example, the court of appeals held the trial court abused its discretion in not permitting a medical expert to testify whether the type of injury seen in the plaintiff was caused by trauma. Id. Such testimony would have helped the jury understand the nature of the injuries. Id.

         Further, 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. Only if the expert's opinion is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded. Bonner v. ISP Techs., Inc., 259 F.3d 924, 929-30 (8th Cir. 2001) (citation omitted).

         Dr. Krause opined that Graham has a classic case of PTTD, stage II, with a chronic tear in the tendon, and that, to a reasonable degree of medical certainty, the car accident did not cause it. He testified that the posterior tibial tendon degenerates over time, can become elongated or inflamed, and can eventually tear or rupture. The condition commonly develops in persons who are 50 to 70 years old, and is more common in women than men. The condition can become painful, but people who are developing PTTD may not experience ankle pain for years, even if they have developed a chronic tear, and may not even know they have developed a tear. In contrast, he explained, when people suffer an acute tear or rupture of the posterior tibial tendon as a result of trauma, they know they have suffered one. The posterior tibial tendon is a large anatomical structure, and people cannot walk away from a traumatic tear or rupture of the tendon, due to acute and obvious pain. The trauma also typically causes observable bruising. Dr. Krause said no doctor could pinpoint when Graham's tear occurred. There were no x-rays or MRI's of the ankle before the accident, and Graham did not appear to have complained of ankle pain before the accident. But he noted that Graham is a woman in her 50's, she walked away from the accident, and nothing suggests she had ankle bruising after the accident. In addition to examining Graham and taking her history, he reviewed her medical records, including x-rays and an MRI taken after the accident, which he opined were consistent with a chronic condition and supported his conclusion that Graham had a chronic condition that pre-existed the accident.

         Graham argues that Dr. Krause should not be permitted to testify her tear was chronic because he cannot identify, to a reasonable degree of medical certainty, when the tear occurred- before or after the accident, and because he uses the words “rupture” and “tear” slightly differently than her treating physician does. He explained why the timing of the tear could not be pinpointed, and why it was not an acute one that occurred in connection with the accident. He stated his opinion in terms of a reasonable degree of medical certainty. He also explained how he was using “rupture” and “tear” in connection with his opinion. Graham's criticisms may be proper to explore on cross-examination, but are not bases for excluding the ...

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