Court: United States District Court for Western District of Texas, San Antonio Division
Case Name: Onofre vs. C.R. England
Citation: 2017 U.S. Dist. LEXIS 155741
In this case involving a tractor-trailer accident that caused major neurological injuries, the court excluded the plaintiff’s neurosurgery expert witness for failing to consider the plaintiff’s past medical records. It was determined that based on Rule 702, the expert’s testimony lacked the foundation and reliability necessary to support testimony on injury causation.
The plaintiff and her two children were occupants of a parked 2012 Jeep Liberty that was struck by a commercial tractor-trailer. The trailer was driven by the defendant, Paul Johnson, who was driving for C.R. England, a family-owned trucking company. The accident occurred as Johnson attempted to park his tractor-trailer in a gas station parking lot. The truck hit the open rear door of the plaintiff’s parked vehicle causing her to suffer severe and permanent bodily injuries to her head, neck, back, and other parts of her body. The plaintiff filed suit against Johnson and C.R. England seeking compensation for past and future medical expenses, damages for physical pain, suffering, physical impairment, disability, mental anguish, and physical disfigurement.
The Neurosurgery Expert
The plaintiff called one of her treating physicians, a neurosurgeon, as an expert witness. The expert received his M.D. from New York University School of Medicine in 1994 and subsequently completed a one-year general surgery internship followed by a neurosurgery residency and a spine surgery fellowship.
In his deposition testimony, the neurosurgery expert stated that based on a reasonable degree of medical probability, the accident caused the plaintiff’s cervical injury. The expert based that opinion primarily on the plaintiff’s report of the temporal onset of symptoms following the accident, which he characterized as a “telling indication of what caused the symptoms.”
The neurosurgery expert did not speak to or even know who the plaintiff’s treating physician was prior to the accident. The expert also did not obtain any of the plaintiff’s prior medical records to form the basis of his opinion. The expert never verified the plaintiff’s account or considered other possible causes of injury, but rather “took her at her word.”
The defendants moved to exclude the expert’s testimony and records regarding the plaintiff’s surgical candidacy, the reasonableness of the plaintiff’s lumbar treatment, the reasonableness of the charges, and injury causation.
At issue was not whether the expert was qualified as a neurosurgery and spinal injuries expert, but rather, whether the expert’s testimony should be excluded because he lacked an adequate foundation on which to form his opinion on causation.
The defendants objected to the expert’s testimony that the accident was the cause of the plaintiff’s injury on the basis that it was “unreliable, unverified, and could not assist the trier of fact.” Specifically, the defendants argued that the expert’s opinion relied solely on the plaintiff’s subjective account. The expert was not familiar with the field of accident dynamics or accident reconstruction, and he was unable to point to medical literature that supported his opinion. The plaintiff argued that given the expert’s extensive experience in orthopedic surgery, he was qualified to offer his opinion regarding causation. The plaintiff further asserted that the expert’s testimony should not be excluded on the basis that it relied on the plaintiff’s self-reported account.
Two Fifth Circuit cases provided valuable guidance here. In Viterbo, the Fifth Circuit considered the admissibility of a doctor’s expert opinion where that opinion relied upon a patient’s oral medical history. While the court reasoned, “a patient’s oral history is generally considered reliable,” it held that the district court properly excluded the doctor’s opinion because the history he used was “incomplete in a critical area”—the history omitted the fact that the patient’s family had a history of some of the same symptoms for which she was claiming damages. Similarly, the Fifth Circuit in a non-precedential opinion held that a medical causation expert’s opinion was properly excluded because the doctor did not consider the patient’s past medical history and failed to consider and exclude other potential causes before offering an opinion.
Like the opinions held to be unreliable in Viterbo and McNabney, in this case, the neurosurgery expert’s opinion, which relied on the plaintiff’s oral history, failed to consider the plaintiff’s past medical records. Therefore, it was determined that the expert’s testimony lacked the foundation and reliability necessary under Rule 702 to support his claims regarding injury causation. Accordingly, the court excluded the neurosurgery expert’s testimony and opinion on whether the accident caused the plaintiff’s cervical injury.