United States District Court, W.D. Oklahoma
ANDREA T. ANNESE, Plaintiff,
U.S. XPRESS, INC. and GLENN ANDERS, Defendants.
MEMORANDUM OPINION AND ORDER
J. CAUTHRON UNITED STATES DISTRICT JUDGE.
before the Court are Plaintiff's Motions (1) to Exclude
the Testimony of Janine Smedley (Dkt. No. 139) and (2) to
Limit the Testimony and Opinions of Dr. Stephen B. Conner
(Dkt. No. 140). Xpress has filed its responses (Dkt. Nos.
146, 147), and Plaintiff has filed her replies (Dkt. Nos.
153, 154.) The motions are now at issue.
case arises from events that occurred on March 9, 2016. On
that day, Plaintiff Andrea T. Annese alleges Defendant Glenn
Anders negligently drove a tractor-trailer owned by Defendant
U.S. Xpress (“Xpress”) and caused an accident
which resulted in damages to her. (See generally
Second Amended Compl., Dkt. No. 109.) The parties have been
engaged in discovery, and the dispute here is whether, and to
what extent, to permit two of Xpress's experts-Janine
Smedley and Dr. Stephen B. Conner-to testify at trial.
Regarding Smedley, Plaintiff contends that her methods are
unreliable, mostly because, in Plaintiff's view, she
failed to provide an adequate definition of the term
“injury.” And regarding Dr. Conner, Plaintiff
asserts that he is not qualified to render a reliable opinion
on spinal surgery because he has not performed one in
approximately 15-20 years. Xpress maintains that both
proffered experts should be permitted to testify.
Rule of Evidence 702 imposes upon the trial judge an
important “gate-keeping” function regarding the
admissibility of expert opinions. See generally Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993); see also Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137 (1999). When performing this function, courts
must undertake a two-step analysis: First, courts must
determine whether the purported expert is
qualified-particularly considering the expert's
“‘knowledge, skill, experience, training, or
education.'” See Ralston v. Smith & Nephew
Richards, Inc., 275 F.3d 965, 969 (10th Cir. 2001
(quoting Fed.R.Evid. 702). Second, “if the
proposed expert is determined to be sufficiently qualified,
the court must determine whether his opinions are
‘reliable' in the sense required by
Daubert and Kumho.” In re
Williams Sec. Litig., 496 F.Supp.2d 1195, 1231-1232
(N.D. Okla. 2007) (citing Ralston, 275 F.3d 965 at
well-settled that a proposed expert “should not be
required to satisfy an overly narrow test of his own
qualifications.” Gardner v. General Motors
Corp., 507 F.2d 525, 528 (10th Cir.1974). Indeed,
“[t]he issue with regard to expert testimony is not the
qualifications of a witness in the abstract, but whether
those qualifications provide a foundation for a witness to
answer a specific question.” Berry v. City of
Detroit, 25 F.3d 1342, 1351 (6th Cir. 1994).
Accordingly, an “expert's qualifications must be
both (i) adequate in a general, qualitative sense
(i.e., ‘knowledge, skill, experience, training
or education' as required by Rule 702) and (ii) specific
to the matters he proposes to address as an expert.”
Williams, 496 F.Supp.2d at 1232.
702 permits an expert with the necessary qualifications in
the relevant field to present expert testimony if: (1) the
testimony is based upon sufficient facts or data; (2) the
testimony is the product of reliable principles and methods;
and (3) the witness has applied the principles and methods
reliably to the facts of the case. See Fed.R.Evid.
702; see also Goebel v. Denver & Rio Grande
W. R.R. Co., 346 F.3d 987, 991 (10th Cir. 2003). The
reliability examination “cannot be permitted to evolve
into an assessment of the ultimate persuasiveness of the
proffered expert testimony.” Williams, 496
F.Supp.2d at 1233. Indeed, “[v]igorous
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, at 596.
Accordingly, a court's “focus generally should not
be upon the precise conclusions reached by the expert, but on
the methodology employed in reaching those
conclusions.” Bitler v. AO Smith Corp., 400
F.3d 1227, 1233 (10th Cir. 2005).
alleges that Smedley's testimony is unreliable. In
support of this, she largely relies on deposition testimony
in which Plaintiff claims Smedley did not adequately define
the term “injury.” (Pl.'s Mot., Dkt. No. 139,
p. 5.) In general, Smedley seeks to testify that, based on
her biomechanical review of the vehicles and other evidence,
Plaintiff experienced less compressive loading in the wreck
than she does in her daily activities. (See Dkt. No.
139-1, p. 39.) Smedley additionally concludes that, based on
her review, Plaintiff probably did not sustain a head, brain,
or spine injury as a result of the wreck. (Id.)
Plaintiff takes issue with these conclusions because, in her
view, Smedley struggled to define an “injury” in
her deposition. Plaintiff further reasons that if Smedley
struggles to define an injury, her conclusions are ultimately
based on unreliable methodologies. (Pl.'s Mot., Dkt. No.
139, p. 5.)
also challenges Smedley's reliance on the Abbreviated
Injury Scale (“AIS”). (Id.) In this
portion of her testimony, Smedley introduces the AIS (which
scores injuries from 0 (no injury) to 6 (maximal
injury-possibly fatal)) and analyzes accident field data
collected by the National Automotive Sampling System
Crashworthiness Data System (NASS-CDS). (See Dkt.
No. 139-1, p. 33-34.) Here, Smedley analyzed the data of
accidents similar to Plaintiff's-crashes of similar
impact where the occupant was restrained by a seatbelt-and
ultimately concluded that “[t]he forces acting on Ms.
Annese during the subject incident would be expected to
produce, at most, transient strain (AIS = 1).”
(Id.) Plaintiff takes issue with Smedley's use
of the AIS because “while she attempts to use the AIS