# Morrow v. Brenntag Mid-South, Inc.

> District Court, M.D. Florida · December 8, 2020

URL: https://www.frixlaw.com/law-library/cases/10106475

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** December 8, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10106475. Public record. Not legal advice.