Annese v. U.S. Xpress Inc.

          MEMORANDUM OPINION AND ORDER

          ROBIN J. CAUTHRON UNITED STATES DISTRICT JUDGE.

         Now 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.

         I. Background

         This 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.

         II. Standard

         Federal 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 969).

         a. Qualifications

         It is 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.

         b. Reliability

         Rule 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).

         III. Discussion

         a. Janine Smedley

         Plaintiff 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.)

         Plaintiff 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 as ...