# Barragan v. United States > District Court, E.D. California · December 4, 2023 URL: https://www.frixlaw.com/law-library/cases/10057468 ## Case - **Court:** District Court, E.D. California - **Decided:** December 4, 2023 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10057468 ## Opinion text 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARYSOL BARRAGAN, Case No. 1:21-cv-0895-JLT-BAM 12 Plaintiff, ORDER FOR DAUBERT HEARING REGARDING TREATING MEDICAL 13 v. PROVIDERS WHO SUBMITTED DECLARATIONS IN SUPPORT OF 14 UNITED STATES OF AMERICA, OPPOSITION TO SUMMARY ADJUDICATION 15 Defendants. (Doc. 46) 16 17 Marysol Barragan brings this personal injury action against the United States under the 18 Federal Tort Claims Act (FTCA), 28 U.S.C. § 2674, alleging she sustained injuries after being 19 involved in a low-speed accident with a U.S. Army vehicle in a shopping center parking lot on 20 August 23, 2017. (Doc. 1.) Before the Court for decision is the government’s motion for summary 21 adjudication of some of Plaintiff’s damages claims. (Doc. 46.) Primarily, the government argues 22 Plaintiff cannot carry her burden to establish entitlement to damages for past medical care (with 23 the exception of some initial chiropractic care that concluded in September 2017), any future 24 medical care, or any non-economic damages (e.g., pain and suffering). (Doc. 46-1 at 18-23.) The 25 government contends that Plaintiff cannot establish a prima facie case of causation to support 26 these damages claims given that (a) she was involved in a subsequent, more serious motor vehicle 27 accident and (b) has not disclosed ay retained experts regarding causation. (Id.) The government 28 also argues that Plaintiff has not provided any evidence to support a claim for past lost wages or 1 property damage. (Id. at 20–21.) Plaintiff concedes that she has no basis to demand property 2 damage or lost earnings as damages but opposes the other aspects of the government’s motion. 3 (Doc. 49.) Attached to Plaintiff’s opposition are three declarations from treating medical 4 providers and excerpts from Plaintiff’s medical records produced in discovery. (Docs. 52–53.) 5 Defendant filed a reply (Doc. 54), and the matter was taken under submission on the papers (Doc. 6 47). 7 The remaining disputes turn on the content and admissibility of the treating physicians’ 8 declarations, which are the only evidence Plaintiff offers in opposition to summary adjudication 9 to demonstrate that the August 2017 accident caused the disputed damages. (See Doc. 49.) It is 10 undisputed that Plaintiff did not disclose any experts of any kind (Doc. 48 (Plaintiff’s Statement 11 of Genuine Issues of Material Fact (PSDF)) #16), though she identified them in her initial 12 disclosures. After denying Plaintiff’s request to modify the scheduling order to allow the late- 13 disclosure of the treating doctors as experts, the Court precluded any of Plaintiff’s treating 14 physicians from testifying to matters “beyond information learned or acquired, or opinions 15 reached, as a result of the treating relationship.” (Doc. 41 at 5 (quoting Ruiz v. Paradigmworks 16 Grp., Inc., No. 16-CV-2993-CAB-BGS, 2020 WL 133905, at *2 (S.D. Cal. Jan. 13, 2020).) 17 Nonetheless, in this Circuit, a “treating physician may be allowed to opine even as to causation if 18 there is sufficient evidence that the opinion was formed during the course of providing treatment, 19 regardless of submission of an expert report.” Hair v. Fed. Exp. Corp., No. 11-CV-0209-TOR, 20 2012 WL 4846999, at *11 (E.D. Wash. Oct. 11, 2012) (citing Goodman v. Staples The Office 21 Superstore, LLC, 644 F.3d 817, 825–26 (9th Cir. 2011)). Though such evidence is not subject to 22 the requirement of an expert report, opinions regarding causation that require the application of 23 specialized “knowledge, skill, experience, training, or education” as defined by Federal Rule of 24 Evidence 702 are still subject to the Court’s gatekeeping functions under Daubert v. Merrell Dow 25 Pharm., Inc., 509 U.S. 579, 588 (1993). See Hair, 2012 WL 4846999, at *12 (analyzing treating 26 physician “course of treatment” causation evidence under Daubert); Scolaro v. Vons Cos., Inc., 27 No. 2:17-CV-01979-JAD-VCF, 2019 WL 7284738, at *8 (D. Nev. Dec. 27, 2019) (applying 28 Daubert to treating physician’s causation testimony even though that physician was not 1 designated as an expert because even though arguably formed during the course of treatment, the 2 causation opinion required specialized knowledge and was therefore “expert-like”); see also 3 Medcalf v. Uzzell, No. CV-20-00997-PHX-ESW, 2021 WL 5370707, at *3 (D. Ariz. Nov. 18, 4 2021) (“[I]t [is] ‘clearly is incorrect’ to assert that because a witness is a treating physician, not a 5 specially retained expert, the witness’ opinions are not subject to Daubert.”). 6 Here, each of the treating physicians applied his or her specialized training and expertise 7 to information purportedly learned during the course of treatment to determine that the August 17, 8 2017 accident caused Plaintiff’s various injuries. For example, Dr. Ali Najafi, MD, a 9 neurosurgeon who treated Plaintiff from March through August 2019, states: 10 Ms. Barragan came to my office for treatment related to an automobile accident which occurred on August 23, 2017. As part of 11 my initial evaluation of her, I and my staff performed an extensive personal history from Ms. Barragan and inquired both verbally 12 from her and referred to her written report regarding her injury history and any possible pre-existing issues and/or causative issues 13 related to her complaints of pain upon presentation. 14 After conducting the personal history and examining Ms. Barragan, I came to the differential diagnosis that the August 23, 2017 motor 15 vehicle accident that she was involved in caused her Cervical stenosis with spondylosis at C5-C6. The opinions were based upon 16 my education, training, experience, and my personal involvement in the care and treatment of this patient. 17 (Doc. 51 at ¶¶ 3–4.) Similar language was included in the Declarations of Jaime Reyna, DC, who 18 provided chiropractic care to Plaintiff in 2017, (Doc. 52 at ¶¶ 3–4), and Reza Shakeri, DC, who 19 provided chiropractic care to Plaintiff from June 2018 to January 2019, (Doc. 53 at ¶¶ 3–4). 20 In reply, the government, having seen the treating physician’s declarations for the first 21 time in Plaintiff’s opposition filing, argues that the declarations go beyond the scope of treatment 22 and do not provide admissible expert opinion evidence. (Doc. 54 at 3-4.) Of note, none of the 23 declarations suggest that the treating physicians knew of or considered Plaintiff’s later, arguably 24 more serious, automobile accident.1 (See Docs. 51–53.) This raises a classic Daubert question: 25 26 1 It is undisputed that at some point after August 23, 2017, Plaintiff was involved in an unrelated motor vehicle 27 accident that occurred on the highway. (PSDF #5.) Plaintiff described the accident as a “hit and run” and explained that the collision caused her vehicle to “sp[i]n out.” (Id.) Plaintiff indicated that a police report was created after that 28 accident, but she could not recall the date or even the year of the accident. (Doc. 46-1 at 15–16.) ene ne NI EE EI IO OIE IO 1 | whether the reasoning underlying the physician’s opinions that the August 23, 2017 accident 2 | caused Plaintiff's injuries are based on sufficient facts or data. Fed. R. Evid. 702(b).” Given that 3 | Plaintiff's entire causation case rests on these declarations and the fact that the reliability issue 4 | was legitimately raised for the first time in reply, the Court concludes that further exploration of 5 | the reliability of the treating physician’s declarations is required before it can resolve the pending 6 | motions. 7 Accordingly, within 14 days of the date of this order, the parties SHALL contact the 8 | Courtroom Deputy Clerk to ascertain the Court’s availability for a Daubert hearing as to the 9 | treating physician declarations. The Court is cognizant that the pretrial conference is currently 10 | scheduled for January 16, 2024, and the Court Trial for March 19, 2024. The Court’s preference 11 | is to determine the Daubert issues without delay, but it will entertain a reasonable stipulation 12 | regarding the case schedule that is designed to allow this case to expeditiously proceed. 13 4 IT IS SO ORDERED. 15 Dated: _ December 2, 2023 Charis [Tourn TED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 oH 2 Under Federal Rule of Evidence 702, “A witness who is qualified as an expert by knowledge, skill, experience, 27 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) 28 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.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10057468. Public record. Not legal advice.