United States District Court, W.D. Missouri, Western Division
ORDER DENYING DEFENDANT'S MOTION TO STRIKE EXPERT
AND PRECLUDE EXPERT TESTIMONY
D. SMITH, SENIOR JUDGE
is Defendant's Motion to Strike Plaintiff's Retained
Expert Atul Patel, M.D., and to Preclude Expert Witness
Testimony Premised on Daubert. Doc. #34. For the
following reasons, Defendant's motion is denied.
matter stems from Plaintiff Bryan Prettyman slipping and
falling at an Applebee's restaurant owned by Defendant
Apple Central KC, LLC. Doc. #1-1. Plaintiff alleges he
“sustained significant personal injuries, aggravation
of a pre-existing injury, disfigurement, wage losses,
economic losses, ongoing pain and suffering, emotional
distress, and loss of enjoyment of life.” Id.
at 3. He claims his injuries are “permanent and
progressive.” Id. In January 2019, Plaintiff
disclosed Atul Patel, M.D., as a retained expert. Doc. #34-1.
Defendants move to strike Dr. Patel and preclude his
admission of expert testimony is governed by Rule 702 of the
Federal Rules of Evidence.
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if: (a) the expert's scientific,
technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts or
data; (c) the testimony is the product of reliable principles
and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
Evid. 702. The district court must make a “preliminary
assessment of whether the reasoning or methodology underlying
the testimony is scientifically valid and of whether that
reasoning or methodology can be applied to the facts in
issue.” Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579, 592-93 (1993). The Court uses a three-part test
when determining the admissibility of expert testimony:
First, evidence based on scientific, technical, or other
specialized knowledge must be useful to the finder of fact in
deciding the ultimate issue of fact. This is the basic rule
of relevancy. Second, the proposed witness must be qualified
to assist the finder of fact. Third, the proposed evidence
must be reliable or trustworthy in an evidentiary sense, so
that, if the finder of fact accepts it as true, it provides
the assistance the finder of fact requires.
Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th
Cir. 2001) (internal quotations and citations omitted).
“Courts should resolve doubts regarding usefulness of
an expert's testimony in favor of admissibility.”
Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 758
(8th Cir. 2006) (citations omitted).
moves to exclude Dr. Patel's testimony and opinions as to
causation because they do not meet the standards set forth in
Daubert. Specifically, Defendant argues an adequate
differential diagnosis was not made in order to be legally
submissible, Dr. Patel used no methodology, and there was no
technique subject to peer review, publication, or general
acceptance by the medical community. Defendant contends
“Dr. Patel's opinions are based on nothing more
than Plaintiff's subjective complaints.” Doc. #35,
to his report, Dr. Patel's opinions are based upon his
clinical experience, education, training, review of
Plaintiff's medical records, review of radiological
studies, and Plaintiff's deposition testimony. Doc.
#36-1, at 1. In his report, Dr. Patel opined “to a
reasonable degree of medical probability that Mr.
Prettyman's problems with the back were exacerbated by
his fall and are now causing him to have some issues with
chronic law back pain and pain into the left leg.”
Id. at 3. Regarding Plaintiff's erectile
dysfunction, Dr. Patel stated, “it is my opinion to a
reasonable degree of medical probability that [Plaintiff] is
continuing to have some issues with performance due to the
pain and possibly due to medications that he may be taking
for his pain. The lack of sensation in the groin area is also
likely to be contributing.” Id. at 3.
his deposition, Dr. Patel testified that Plaintiff's fall
at the restaurant “more likely than not”
exacerbated Plaintiff's chronic medical issues predating
the fall. Doc. #35-1, at 7, 10. Dr. Patel stated it was
“extremely unlikely” that Plaintiff's hepatic
aneurysm in 2013 contributed to his erective dysfunction;
rather, he believed back pain was the likely source of
Plaintiff's erectile dysfunction. Id. at 3, 8.
While Dr. Patel ruled out Plaintiff's left groin,
testicle, and thigh pain in July 2013 as the source of his
current medical issues, Dr Patel testified that he could not
absolutely rule out “surgical issues dealing with the
hernia and the abdominal reconstruction” as causes.
Id. at 8-9. Although there are no objective signs of
injuries, Dr. Patel opined Plaintiff's current condition
was caused by the fall. Id. at 10. His opinion was