United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
RUDY LOZANO, District Judge.
This matter is before the Court on the Defendants' Motion to Prohibit Brian L. Ratigan, M.D., From Offering Expert Testimony on the Issue of Causation, filed by Defendants, InfraSource Construction, LLC f/k/a InfraSource Underground Construction, LLC ("InfraSource") and Peter L. Anthony ("Anthony"), on November 24, 2014 (DE #38). For the reasons set forth below, the motion (DE #38) is DENIED. However, DISCOVERY is HEREBY reopened for 60 days for the limited purpose of examining any additional relevant records related to the issue of causation, and for Defendants to obtain their own expert on the issue of causation (if they so wish), and make that expert available to Plaintiffs for deposition.
Plaintiffs allege Anthony was an employee of Quanta Services, Inc. (Compl., DE #1, ¶ 4.) While operating a pickup truck leased to InfraSource, Plaintiffs allege Anthony ignored, disregarded or otherwise failed to completely obey a stop sign controlling the intersection at Rose Road and Old Lincoln Highway in Plymouth, Marshall County, Indiana, and collided with Teresa Boyle's vehicle, causing her significant injuries. ( Id., ¶¶ 17-19.)
Boyle contends that the August 5, 2011 automobile accident caused her to sustain the following injuries to her right shoulder: (1) a SLAP tear, (2) a chondral defect on the humeral head, and (3) a tear of the subscapularis tendon. (Defs.' Ex. B, DE #39-2.) Since December 2011, Boyle received medical treatment from Dr. Brian L. Ratigan, M.D., an orthopedic surgeon affiliated with South Bend Orthopedics. (Defs.' Ex. C, DE #39-3, Ratigan Dep., Aug. 13, 2014, p. 8) Dr. Ratigan surgically repaired Boyle's SLAP tear, in May 2013 Dr. Ratigan resurfaced Boyle's humeral head through a second surgical procedure, and finally in May 2014 Dr. Ratigan repaired the subscapularis tear through during a third surgery. (Defs.' Ex. D, DE #39-4, Ratigan Dep. Oct. 15, 2014, pp. 75-58.)
Plaintiffs did not disclose Dr. Ratigan's name on their Rule 26(a)(2) Disclosures. (Defs.' Ex. E, DE #39-5.) During his deposition, Dr. Ratigan opined that all three of Teresa Boyle's right shoulder injuries were, in his opinion, caused by the August 2011 collision. (Defs.' Ex. C, DE #39-3, Ratigan Dep. Aug. 13, 2014, pp. 18, 19, 31, 39.)
Federal Rule of Evidence 702, which governs expert testimony, provides the following:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, 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.
F.R.E. 702. In addition, in Daubert v. Merrell Dow Pharms., Inc., the Supreme Court fashioned a two-prong test of admissibility for evidence based on the "scientific knowledge" mentioned in Rule 702. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993). To be admissible, evidence must be both relevant and reliable. Id. at 589; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999) (noting the objective of court's gatekeeping requirement is to ensure reliability and relevancy of expert testimony).
Under the reliability prong, scientific evidence must be reliable in the sense that the expert's testimony must present genuine scientific knowledge. Daubert, 509 U.S. at 592-93; Deimer v. Cincinnati Sub-Zero Prods. Inc., 58 F.3d 341, 344 (7th Cir. 1995). Generally, the expert witness must employ in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the witness's field. Kumho, 526 U.S. at 152. Specifically, a court may, but is not required to, consider a nonexclusive list of four factors in assessing reliability: (1) whether the expert's theories and techniques can be verified by the scientific method through testing; (2) whether the theories and techniques have been subjected to peer review and publication; (3) whether the theories and techniques have been evaluated for their potential rate of error; and (4) whether the theories and techniques have been generally accepted by the relevant scientific community. Daubert, 509 U.S. at 593-94.
However, it is important to note that "the measure of intellectual rigor will vary by the field of expertise and the way of demonstrating expertise will also vary." Tyus v. Urban Search Mgmt., 102 F.3d 256, 263 (7th Cir. 1996). As the Seventh Circuit pointed out in United States v. Allen, 269 F.3d 842, 846 (7th Cir. 2001), the Advisory Committee notes to Rule 702 note that "[i]n certain fields, experience is the predominant, if not the sole, basis for a great deal of reliable expert testimony." Fed.R.Evid. 702, 2000 advisory committee notes.
Under the relevance prong, the testimony must assist the trier of fact to understand the evidence in the sense that it is relevant to or "fits" the facts of the case. Daubert, 509 U.S. at 591; Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000). In other words, the testimony must be such that the jury can apply it in a meaningful way to the facts at hand. This "fit" analysis essentially represents an inquiry similar to if not indistinguishable from the basic evidentiary inquiries into whether evidence is relevant and, if so, whether its probative value is nonetheless substantially outweighed by, among others, the danger of unfair prejudice and jury confusion. See Daubert, 509 U.S. at 595; Ayers v. Robinson, 887 F.Supp. 1049, 1058-59 (N.D. Ill. 1995).
In this case, Defendants first argue that Plaintiffs waived the right to present any expert testimony from Dr. Ratigan at trial regarding causation, duration, or effect of Boyle's injuries, because they failed to disclose him as an expert pursuant to Federal Rule of Civil Procedure 26(a)(2). While it is true Dr. Ratigan was not identified in the Rule 26(a)(2)(A) disclosures, as spelled out in Plaintiffs' response, the Plaintiffs did provide: a summary expert report from Dr. Ratigan including his opinion on causation; deposition testimony disclosing Dr. Ratigan's opinions on causation; discovery answers that Dr. Ratigan's opinions would be supplemented; and electronic communications that Dr. Ratigan's deposition would establish causation. (DE #40, pp. 1-2.) Indeed, Plaintiffs provide at least 8 examples of notices of Dr. Ratigan's opinions on causation. (DE #40, pp. 2-3.) Rules 26 does provide that " [a]ll witnesses who are to give expert testimony under the Federal Rules of Evidence must be disclosed under Rule 26(a)(2)(A)." Musser v. Gentiva Health Servs., 356 F.3d 751, 756 (7th Cir. 2004) (emphasis in original). However, the purpose of providing an expert's report "is to provide adequate notice of the substance of the expert's forthcoming testimony, and to give the opposing party time to prepare for a response." Meyers v. Nat'l R.R. Passenger Corp., 619 F.3d 729, 734 (7th Cir. 2010). Plaintiffs did not follow the rule to the letter, but they did give Defendants notice that Dr. ...