Morrow v. Brenntag Mid-South, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

RICHARD MORROW,

Plaintiff,

v. Case No. 8:19-cv-3190-T-33AEP

BRENNTAG MID-SOUTH, INC.,

Defendant.

______________________________/

ORDER

Before this Court is Defendant Brenntag Mid-South Inc.’s

Motion to Exclude the Testimony of Plaintiff Richard Morrow’s

Proposed Expert Jeffrey S. Walker, M.D. (Doc. # 40), filed on

September 15, 2020. Morrow responded in opposition on October

5, 2020. (Doc. # 45). For the reasons below, the Motion is

granted.

I. Background

Morrow initiated this action in state court on November

27, 2019, alleging that on February 16, 2018, he was involved

in an automobile accident with a vehicle owned by Brenntag.

(Doc. # 1-1 at ¶ 6). Brenntag removed the action to federal

court on December 30, 2019. (Doc. # 1).

Morrow claims that as a result of the accident, he

sustained injuries to his jaw, left arm, mid-back, and head.

(Doc. # 40-9 at 3). Morrow describes his pain as “chronic,

constant headaches; sharp stabbing neck pain; [and] severe

jaw pain (clicking crunching sound in the jaw joint, slipping

of the jaw out of position).” (Id.).

Approximately eight months after the accident, Morrow

sought treatment for his neck pain from Dr. Walker. (Doc. #

40-2 at 4). Dr. Walker assessed Morrow and found disc bulges,

foraminal narrowing, and disc herniation. (Doc. # 40-11 at

30-31). Dr. Walker performed several treatments, including

steroid injections and nerve block injections in February of

2019. (Id. at 23, 27). When Morrow continued to report pain,

Dr. Walker performed a full disc replacement surgery in

Morrow’s neck in October 2019. (Id. at 1-3).

Morrow seeks to have Dr. Walker testify as both a

“factual witness who has treated [Morrow] and can discuss in

detail the treatment regimen,” and as an expert witness who

can opine on the causation of Morrow’s injuries. (Doc. # 45

at 1-2). Specifically, Dr. Walker has opined (1) that Morrow’s

injuries “required initially conservative treatment and later

surgery,” and (2) that the “injuries necessitating the

treatment are directly attributable to the February 16, 2018

accident.” (Id.).

Brenntag now moves to exclude Dr. Walker’s expert

opinion on medical causation. (Doc. # 40). Brenntag argues

that Dr. Walker failed to examine Morrow’s prior medical

history when formulating his opinion, therefore his opinion

“is not based on any semblance of a sufficient factual basis

and is not the product of the application of reliable

principles and methods.” (Id. at 2). Morrow has responded

(Doc. # 45), and the Motion is ripe for review.

II. Discussion

Federal Rule of Evidence 702 states:

A witness who is qualified as an expert by

knowledge, skill, experience, 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) 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.

Fed. R. Evid. 702.

Implementing Rule 702, Daubert v. Merrell Dow Pharms.,

Inc., 509 U.S. 579 (1993), requires district courts to ensure

that any and all scientific testimony or evidence admitted is

both relevant and reliable. See Id. at 589–90. The Eleventh

Circuit has applied this standard to physicians offering

causation testimony. While

[a] treating physician may testify as a lay witness

regarding his observations and decisions during

treatment of a patient, once the treating physician

expresses an opinion unrelated to treatment which

is “based on scientific, technical, or other

specialized knowledge,” that witness is offering

expert testimony for which the court must perform

its essential gatekeeping function as required by

Daubert.

Wilson v. Taser Int’l, Inc., 303 F. App’x 708, 712 (11th Cir.

2008) (citing United States v. Henderson, 409 F.3d 1293, 1300

(11th Cir. 2005)).

District courts must conduct this gatekeeping function

“to ensure that speculative, unreliable expert testimony does

not reach the jury under the mantle of reliability that

accompanies the appellation ‘expert testimony.’” Rink v.

Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir. 2005).

The Eleventh Circuit “requires trial courts acting as

gatekeepers to engage in a ‘rigorous three-part inquiry.’”

Hendrix v. Evenflo Co., 609 F.3d 1183, 1194 (11th Cir. 2010).

The district court must assess whether:

(1) the expert is qualified to testify competently

regarding the matters he intends to address; (2)

the methodology by which the expert reaches his

conclusions is sufficiently reliable as determined

by the sort of inquiry mandated in Daubert; and (3)

the testimony assists the trier of fact, through

the application of scientific, technical, or

specialized expertise, to understand the evidence

or to determine a fact in issue.

Id. The proponent of the expert testimony bears the burden of

showing, by a preponderance of the evidence, that the

testimony satisfies each of these requirements. Id.

Brenntag does not challenge Dr. Walker’s qualifications,

nor does it dispute that Dr. Walker’s testimony would be

helpful to the trier of fact. Brenntag solely attacks Dr.

Walker’s reliability, arguing that his testimony lacks an

adequate factual basis and a reliable method.

Federal Rule of Evidence 702(b) requires an expert’s

testimony to be based on “sufficient facts or data.” Fed. R.

Evid. 702(b). Furthermore, experts relying on experience must

explain “how that experience is reliably applied to the

facts.’” United States v. Frazier, 387 F.3d 1244, 1261 (11th

Cir. 2004) (citations omitted).

When expert testimony’s factual basis is called into

question, “the Court’s inquiry focuses not on whether the

expert is correct, but whether the proponent of expert

testimony has established by a preponderance of the evidence

that the testimony is reliable in the context of the

methodologies or techniques applied within the appropriate

field.” In re Polypropylene Carpet Antitrust Litig., 93 F.

Supp. 2d 1348, 1352–53 (N.D. Ga. 2000). However, “nothing in

either Daubert or the Federal Rules of Evidence requires a

district court to admit opinion evidence that is connected to

existing data only by the ipse dixit of the expert. A court

may conclude that there is simply too great an analytical gap

between the data and the opinion proffered.” Gen. Elec. Co.

v. Joiner, 522 U.S. 136, 146 (1997).

Brenntag argues that Dr. Walker’s opinion on causation

lacks an adequate factual basis because Dr. Walker never

reviewed any of Morrow’s prior medical history or treatment

records. (Doc. # 40 at 1). Instead, Dr. Walker primarily

relied on allegedly inaccurate statements from Morrow and

Morrow’s counsel to formulate his conclusions. (Id. at 10).

Morrow responds that Dr. Walker is a well-credentialed

expert who has spent the last ten years treating post-

traumatic spine injuries. (Doc. # 45 at 2). Dr. Walker based

his opinion on “a variety of sources of information,” namely

(1) his extensive experience; (2) a physical examination of

Morrow after the December 2018 accident; (3) a review of MRIs

from 2015; and (4) a review of MRIs from 2019, taken after

the 2018 accident. (Id. at 1-2, 4). According to Morrow, this

was “clearly sufficient data” to form an opinion, therefore

Brenntag’s arguments are more fitting for cross-examination.

(Id. at 4-5).

The Court agrees with Brenntag that Morrow has not shown

by a preponderance of the evidence that Dr. Walker’s testimony

on causation is reliable. Dr. Walker testified that he did

not review any of Morrow’s prior medical records when forming

his initial opinion on the origin of Morrow’s injuries. (Doc.

# 40-5 at 7, 12-13, 17). Rather, Dr. Walker based his initial

opinion on Morrow’s representation that he “had no previous

accidents, problems, or treatments to his neck.” (Doc. # 40-

11 at 30). When asked if he relied on any other source of

information to verify this statement, Dr. Walker responded

that he took Morrow at his word, stating: “I don’t verify

anything. I’m not a lie detector. I just believe what people

tell me.” (Doc. # 40-5 at 8).

However, the record reflects that Morrow had been

involved in a car accident in December 2014. (Doc. # 40-2 at

2-3). That accident resulted in neck pain, for which Morrow

sought treatment from orthopedic surgeon Paul Zak, M.D.

(Id.). In late 2015, Dr. Zak recommended a “total disc

replacement” surgery — the same surgery ultimately performed

by Dr. Walker. (Doc. # 40-10 at 6, 8). Dr. Walker formed his

initial opinion on causation without any knowledge of this

accident, or Dr. Zak’s recommendations for treatment, despite

admitting that the existence of prior neck pain could have

changed his opinion about the causation of the injury. (Doc.

# 40-5 at 12, 17-18).

Sometime after Dr. Walker formed this initial opinion,

Morrow’s counsel contacted Dr. Walker and informed him of the

prior accident. (Doc. # 40-11 at 7). However, Dr. Walker still

did not request or review Morrow’s treatment records from Dr.

Zak, or even discuss the accident with Morrow. (Doc. # 40-5

at 16-19). Dr. Walker examined one MRI report from 2015, taken

after the 2014 accident, and concluded that the 2014 accident

had “no material impact on [his] opinions regarding the

causation of the C4-5 disc herniation . . . or the need for

surgery.” (Doc. # 40-11 at 6). In his report, Dr. Walker

reaffirmed that in his opinion, Morrow’s disc herniation was

“causally related” to the 2018 accident. (Id. at 5).

Dr. Walker testified that the main basis for this second,

corroboratory opinion was a representation from Morrow’s

counsel that Dr. Zak “never recommended any conservative

treatment,” and that Morrow “had actually improved and was

pain free for years predating his February 16, 2018 motor

vehicle accident.” (Id. at 7; Doc. # 40-5 at 12-14, 17).

However, Dr. Zak’s records indicate he did in fact

recommend conservative treatment after the 2014 accident.

(Doc. # 40-10). Furthermore, Morrow actually underwent a year

of conservative treatment with Lorraine Thorpe, D.C. (Doc. #

40-6). Dr. Thorpe testified that she treated Morrow forty-

three times throughout 2015, and at the end of the year gave

him a “poor” prognosis. (Id. at 2). Dr. Walker formed his

second opinion on causation without knowledge of this past

treatment, and without reviewing any of Dr. Thorpe’s or Dr.

Zak’s prior treatment records. (Doc. # 40-5 at 16-17).

Other courts have held that the reliance of doctors on

“inadequate and unreliable histories renders the entire

diagnosis and accompanying testimony inadmissible.” In re

Silica Prod. Liab. Litig., 398 F. Supp. 2d 563, 638 (S.D.

Tex. 2005) (citing Curtis v. M & S Petroleum, Inc., 174 F.3d

661, 670–71 (5th Cir. 1999)). Furthermore, the Eleventh

Circuit has held that “[r]elevant expert testimony is

admissible only if an expert knows of facts which enable him

to express a reasonably accurate conclusion. Opinions derived

from erroneous data are appropriately excluded.” United

States v. City of Miami, Fla., 115 F.3d 870, 873 (11th Cir.

1997) (internal citations omitted).

Here, Dr. Walker formed an opinion on medical causation

without reviewing any of the prior treatment providers’

records; indeed he was unaware Morrow even underwent

conservative treatment with Dr. Thorpe. (Doc. # 40-5 at 16).

Therefore, the Court agrees with Brenntag that Dr. Walker’s

“superficial analysis” of Morrow’s injuries is insufficient

to satisfy Daubert. See North v. Ford Motor Co., 505 F. Supp.

2d 1113, 1119 (D. Utah 2007) (excluding testimony where the

expert relied on an incomplete medical history and did not

include pre-existing conditions, including a second car

accident involving a plaintiff). Dr. Walker lacked a

sufficient factual basis to form a reliable opinion on the

causation of Morrow’s injuries, therefore his expert

testimony on causation is excluded. See Carmody v. State Farm

Mut. Auto. Ins. Co., No. 6:14-cv-830-Orl-37, 2015 WL 5542534,

at *3 (M.D. Fla. Sept. 18, 2015) (excluding physician

testimony on causation where doctor only examined the

plaintiff once, did not review the plaintiff’s prior medical

reports or history, did not communicate with the plaintiff’s

prior doctors before forming causation opinion, and was

unaware about prior injuries the plaintiff sustained in

accidents); In re Paoli R.R. Yard PCB Litig., 35 F.3d 717,

756 (3d Cir. 1994) (upholding exclusion of expert testimony

on causation where the physician took a limited medical

history of each plaintiff, but “did not even look at medical

records of the plaintiffs much less examine them,” and failed

to consider alternative causes).

Even if the Court agreed with Morrow that Dr. Walker’s

factual basis was adequate, Dr. Walker does not establish

that he used a reliable method to examine the cited data.

Beside the representation from counsel that Morrow had been

pain-free for several years before the 2018 accident, Dr.

Walker only cites one factual basis for his opinion that

Morrow’s injuries were directly attributable to the 2018

accident, rather than the 2014 accident. Dr. Walker explains

that a small rupture, or extrusion, in Morrow’s C4-5 herniated

disc appeared on the third MRI scan taken in July 2019, but

was not present on the 2015 MRI scan. (Doc. # 40-11 at 5-6;

Doc. # 40-5 at 13). Therefore, Dr. Walker concludes, the

rupture (and in turn Morrow’s injuries) must be attributable

to the 2018 accident, rather than the 2014 accident.

The Court is not convinced this is a reliable method of

determining causation. During deposition, Dr. Walker states

the extrusion was not clearly visible on an MRI scan taken

only a few months earlier in May 2019. (Doc. # 40-5 at 13).

Dr. Walker explains “previous scans [including the May 2019

scans] were really not very good, and that’s why we kept

repeating them until we could get a good one.” (Id.). The

July 2019 MRI was of a much higher quality than the scans

taken in May 2019, which is why the rupture appeared so

clearly. (Id.).

The Eleventh Circuit has held that a medical expert “need

not rule out every possible alternative in order to form an

opinion on causation,” but

expert opinion testimony is properly excluded as

unreliable if the doctor “engaged in very few

standard diagnostic techniques by which doctors

normally rule out alternative causes and the doctor

offered no good explanation as to why his or her

conclusion remained reliable” or if “the defendants

pointed to some likely cause of the plaintiff’s

illness other than the defendants’ action and [the

doctor] offered no reasonable explanation as to why

he or she still believed that the defendants’

actions were a substantial factor in bringing about

that illness.”

Wilson, 303 F. App’x at 714 (citing Wheat v. Sofamor, S.N.C.,

46 F. Supp. 2d 1351, 1358 (N.D. Ga. 1999)). Here, Dr. Walker’s

testimony on causation does not sufficiently address the

possibility that Morrow’s injuries were caused by the 2014

accident. Dr. Walker forms his conclusion without addressing

the possibility that the small rupture missed in the May 2019

scan may have also been present, but missed, in the 2015 MRI

scans. (Doc. # 40-11 at 5-6). Nor does he acknowledge the

possibility that the “C4-5 broad-based disk protrusion-type

herniation” he observed in the 2015 MRI could have contributed

to the extrusion seen in the July 2019 MRI. (Doc. # 40-5 at

15-16). Instead, Dr. Walker asserts that he saw the rupture

for the first time in the July 2019 MRI, therefore he

considered it “a permanent injury directly related to the

February 16th, 2018, motor vehicle accident.” (Id. at 13;

Doc. # 40-11 at 6).

Daubert does not require the Court to accept an expert’s

speculation without a showing of a reliable method. Gen. Elec.

Co., 522 U.S. at 146. There is “simply too great an analytical

gap” between Dr. Walker’s source material and his conclusion

that the 2018 accident was the sole cause of Morrow’s

injuries, despite a similar accident in 2014 causing almost

identical injuries. Id.; see also Wilson, 303 F. App’x at 714

(excluding expert testimony in part because an expert failed

to rule out alternative mechanisms of injury); Myers v.

Illinois Cent. R. Co., 629 F.3d 639, 645 (7th Cir. 2010)

(upholding exclusion of causation testimony where the expert

was unaware of a prior back injury and did not “rule in” or

“rule out” any potential causes of injury, but “simply treated

[the plaintiff] and assumed his injuries stemmed from his

work”).

Notwithstanding this exclusion, Dr. Walker may testify

as a lay witness on his treatment of Morrow. See United States

v. Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005) (“A

treating physician is not considered an expert witness if he

or she testifies about observations based on personal

knowledge, including the treatment of the party.” (citing

Davoll v. Webb, 194 F.3d 1116, 1138 (10th Cir. 1999)).

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

(1) Defendant Brenntag Mid-South Inc.’s Motion to Exclude

the Testimony of Plaintiff Richard Morrow’s Proposed

Expert Jeffrey S. Walker, M.D. (Doc. # 40) is GRANTED.

(2) Dr. Walker may not opine as an expert on the causation

of Morrow’s injuries.

(3) Dr. Walker may provide lay testimony on the treatment he

provided Morrow.

DONE and ORDERED in Chambers, in Tampa, Florida, this

8th day of December, 2020.

VIRGINIA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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