The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
EMESE SIMON and
FLORIDA REHABILITATION
ASSOCIATES, PLLC,
Plaintiffs,
v. Case No. 8:12-cv-236-VMC-AEP
HEALTHSOUTH OF SARASOTA
LIMITED PARTNERSHIP, et al.,
Defendants.
______________________________/
ORDER
This matter comes before the Court upon consideration of
Defendants Encompass Health Rehabilitation Hospital of
Sarasota, LLC, HealthSouth Real Property Holdings, LLC, and
HealthSouth Corporation’s Motion to Exclude Expert Testimony
of Dr. Darius Clarke (Doc. # 208), filed on November 17, 2020.
Plaintiffs Emese Simon and Florida Rehabilitation Associates,
PLLC, responded on December 14, 2020. (Doc. # 230). For the
reasons that follow, the Motion is granted.
I. Background
This is a False Claims Act (“FCA”) retaliation case.
Plaintiffs maintain that Defendants took adverse actions
against Dr. Simon after she engaged in alleged protected
activity, including complaining that “disuse myopathy” (DM)
was not a legitimate diagnosis to admit patients to a
rehabilitation hospital.
In support of these claims, Plaintiffs have disclosed
Dr. Darius Clarke, a former employee of a HealthSouth hospital
in Virginia, as an expert. Notably, in addition to being
disclosed as an expert in this case, Dr. Clarke was the
plaintiff in a related FCA retaliation case against
HealthSouth Corporation and Rehabilitation Hospital
Corporation of America, LLC. See Clarke v. HealthSouth
Corporation, 8:14-cv-778-VMC-AAS (M.D. Fla. 2014).
Dr. Clarke’s expert report is in the form a declaration,
including a narrative of his employment with HealthSouth
Corporation and Rehabilitation Hospital Corporation of
America, LLC in Richmond, Virginia. (Doc. # 208-1). The
declaration notes Dr. Clarke’s belief that HealthSouth
Corporation and Rehabilitation Hospital Corporation of
America, LLC engaged in fraud through their use of the DM
diagnosis and that they retaliated against him for objecting
to the alleged fraudulent use of the DM diagnosis during his
employment. (Id.).
The only clear opinion Dr. Clarke advances in his
declaration is as follows: “Based on my training and
experience as a physician, it is my opinion that disuse
myopathy is not a valid diagnosis for patients and HealthSouth
fabricated it solely for the purposes described above.” (Id.
at 3). Dr. Clarke reached this opinion as the “result of [his]
conscientious examination of the subject over a period of
time.” (Id.). He notes that “[t]here are no gold standard
medical texts or references that define, discuss, or detail
the symptoms of such a diagnosis, and there are no
standardized courses of treatment.” (Id.).
Now, Defendants move to exclude Dr. Clarke as an expert.
(Doc. # 208). Plaintiffs have responded (Doc. # 230), and the
Motion is ripe for review.
II. Discussion
A. Rule 26(a)
Under Rule 26(a)(2)(B), an expert’s report must contain
six categories of information:
(i) a complete statement of all opinions the
witness will express and the basis and reasons for
them;
(ii) the facts or data considered by the witness in
forming them;
(iii) any exhibits that will be used to summarize
or support them;
(iv) the witness’s qualifications, including a list
of all publications authored in the previous 10
years;
(v) a list of all other cases in which, during the
previous 4 years, the witness testified as an
expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for
the study and testimony in the case.
Fed. R. Civ. P. 26(a)(2)(B).
“If a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is not
allowed to use that information or witness to supply evidence
on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or is harmless.” Fed. R. Civ. P.
37(c)(1).
Defendants argue that Dr. Clarke’s report should be
excluded under Rule 37(c)(1) because it fails to include all
the information required by Rule 26(a)(2)(B). (Doc. # 208 at
6-7). The Court agrees. Dr. Clarke’s report, which is merely
styled as a declaration, fails to include the required list
of publications he has authored, exhibits he would use, a
list of cases in which he has testified as an expert, or a
statement of his compensation. (Doc. # 208-1). Additionally,
as Defendants explain (Doc. # 208 at 6-7), Dr. Clarke’s report
fails to sufficiently explain the facts and data he relied on
in his forming his opinion, as he does not identify what texts
he considered or any specific data he reviewed. See Brown v.
Bray & Gillespie III Mgmt. LLC, No. 6:06-cv-556-Orl-22GJK,
2008 WL 2397601, at *7 (M.D. Fla. June 10, 2008)(finding that
medical expert’s report, which was in the form of 2-4 page
letters, violated Rule 26(a)(2)(B) because he did “not
indicate what particular facts or circumstances in these
cases lead him to the opinions he holds” (citation omitted)).
In their response, Plaintiffs assert that Dr. Clarke’s
report completely complies with Rule 26(a). Plaintiffs insist
that no exhibits were included because Dr. Clarke “does not
intend to use any,” “he has not published anything in the
last 10 years,” “he has never testified as an expert,” and
“no statement of compensation accompanies his report because
he is not being paid for his opinion in this case.” (Doc. #
230 at 9).
This is insufficient to satisfy Rule 26(a), which
specifically requires this information be included. Dr.
Clarke was required to provide all categories of information
identified in Rule 26(a)(2)(B) in his expert report and easily
could have done so. His failure to provide this information
precludes introduction of his expert report unless the
failure “was substantially justified or is harmless.” Fed. R.
Civ. P. 37(c)(1).
Notably, Plaintiffs do not show that the failure was
either substantially justified or harmless. (Doc. # 230 at 8-
9). Thus, the Court cannot conclude that the failure was
either substantially justified or harmless. Dr. Clarke’s
report is excluded.
B. Daubert
Alternatively, the Court concludes that Dr. Clarke’s
expert report is subject to exclusion under Federal Rule of
Evidence 702.
That Rule 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 Daubert
analysis also applies to non-scientific expert testimony.
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999).
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.
Here, Defendants only challenge Dr. Clarke’s
qualifications and reliability. (Doc. # 208).
1. Qualifications
The first question under Daubert is whether the proposed
expert witness, Dr. Clarke, is qualified to testify
competently regarding the matters he intends to address. City
of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 563 (11th
Cir. 1998). An expert may be qualified “by knowledge, skill,
experience, training, or education.” Fed. R. Evid. 702.
“Determining whether a witness is qualified to testify as an
expert ‘requires the trial court to examine the credentials
of the proposed expert in light of the subject matter of the
proposed testimony.’” Clena Invs., Inc. v. XL Specialty Ins.
Co., 280 F.R.D. 653, 661 (S.D. Fla. 2012)(quoting Jack v.
Glaxo Wellcome, Inc., 239 F. Supp. 2d 1308, 1314–16 (N.D. Ga.
2002)).
“This inquiry is not stringent, and so long as the expert
is minimally qualified, objections to the level of the
expert’s expertise [go] to credibility and weight, not
admissibility.” Id. (citations and internal quotation marks
omitted). The Court is mindful that its “gatekeeper role under
Daubert ‘is not intended to supplant the adversary system or
the role of the jury.’” Maiz v. Virani, 253 F.3d 641, 666
(11th Cir. 2001)(quoting Allison v. McGhan, 184 F.3d 1300,
1311 (11th Cir. 1999)).
Defendants argue that Dr. Clarke is not qualified to
offer an opinion on DM. (Doc. # 208 at 8). According to
Defendants, Dr. Clarke’s qualifications are limited and he
“entirely fails to explain how his education and limited
experience at a HealthSouth rehabilitation hospital in
Richmond, Virginia renders him qualified to give an Opinion
regarding the validity of a diagnosis or for what purposes it
was used [at] HealthSouth Sarasota.” (Id. at 8-9).
The Court disagrees. Dr. Clarke clearly outlines his
education and experience as a physician. (Doc. # 208-1 at 2-
3). He is licensed to practice medicine in Texas, California,
and Virginia, and is “board certified by the American Board
of Physical Medicine and Rehabilitation in both Physical
Medicine & Rehabilitation and Brain Injury Medicine.” (Id.).
Furthermore, Dr. Clarke worked as a medical director for a
HealthSouth rehabilitation hospital in Virginia during 2009
and 2010, during which time he became exposed to the DM
diagnosis. (Id. at 2). His responsibilities in that position
included admission of patients to the hospital, including
reviewing summaries of patients’ cases “to determine whether
the patient was qualified for admission to the hospital.”
(Id.).
Taken together, Dr. Clarke is at least minimally
qualified to opine on the medical legitimacy of DM based on
his education and experience as a rehabilitation physician.
However, the Court agrees with Defendants that Dr.
Clarke is not qualified to render an opinion on whether
Defendants engaged in fraudulent activity. (Doc. # 208 at 9
n.5). Dr. Clarke, a rehabilitation physician, has no legal
experience or training, and so he is not able to competently
testify regarding whether conduct qualifies as fraud. See
Tindall v. H & S Homes, LLC, No. 5:10-CV-044 CAR, 2012 WL
3242128, at *6 (M.D. Ga. Aug. 7, 2012)(finding that an
accounting and finance expert did “not have any legal
experience or training that would qualify him to offer” an
opinion regarding whether an entity could be considered an
“alter ego” of a defendant). Furthermore, expert witnesses
“are prohibited from testifying as to questions of law
regarding the interpretation of a statute, the meaning of
terms in a statute, or the legality of conduct.” Dahlgren v.
Muldrow, No. 1:06–cv–65–MP–AK, 2008 WL 186641, at *5 (N.D.
Fla. Jan. 18, 2008). Instead, “[t]he determination of which
law applies and what the law means is for the Court to
decide.” Id.
Thus, Dr. Clark may not opine on whether Defendants’ use
of the DM diagnosis was fraudulent or whether Defendants
committed fraud. See Clarke v. HealthSouth Corp., No. 8:14-
cv-778-VMC-AAS, 2021 WL 129821, at *6 (M.D. Fla. Jan. 14,
2021)(“Dr. Groah’s opinion that HealthSouth acted
‘fraudulently’ or ‘made fraudulent claims’ must be
excluded.”). However, as mentioned previously, he is
qualified to offer an opinion that DM is not a legitimate
diagnosis.
2. Reliability
The next question is whether Dr. Clarke’s methodology is
reliable. “Exactly how reliability is evaluated may vary from
case to case, but what remains constant is the requirement
that the trial judge evaluate the reliability of the testimony
before allowing its admission at trial.” United States v.
Frazier, 387 F.3d 1244, 1262 (11th Cir. 2004)(citing Fed. R.
Evid. 702, Advisory Committee Notes (2000)). There are four
recognized, yet non-exhaustive, factors a district court may
consider in evaluating reliability:
(1) whether the expert’s methodology has been
tested or is capable of being tested; (2) whether
the technique has been subjected to peer review and
publication; (3) the known and potential error rate
of the methodology; and (4) whether the technique
has been generally accepted in the proper
scientific community.
Seamon v. Remington Arms Co., 813 F.3d 983, 988 (11th Cir.
2016)(citations omitted). A district court can take other
relevant factors into account as well. Id. (citations
omitted).
“If the [expert] witness is relying solely or primarily
on experience, then,” in establishing reliability, “the
witness must explain how that experience leads to the
conclusion reached, why that experience is a sufficient basis
for the opinion, and how that experience is reliably applied
to the facts.” Frazier, 387 F.3d at 1261 (citation and
internal quotation marks omitted). The Court’s analysis as to
reliability “focus[es] ‘solely on principles and methodology,
not on the conclusions that they generate.’” Seamon, 813 F.3d
at 988 (citation omitted).
Defendants challenge the reliability of Dr. Clarke’s
expert report. (Doc. # 208 at 9-12). According to Defendants,
Dr. Clarke failed “to apply any discernible, much less
reliable, methodology in reaching his conclusory opinion” and
his own deposition testimony in his FCA retaliation case
“contradicts his conclusory opinion.” (Id. at 9-10).
The Court agrees with Defendants. True, “[t]he Court is
satisfied that a practicing rehabilitation physician could
reliably form a conclusion on a disease in her field after
reading relevant literature.” Clarke, 2021 WL 129821, at *4.
But, here, Dr. Clarke fails to specifically address the
medical literature he reviewed. Cf. Id. (finding a
rehabilitation physician had established a reliable
methodology where she identified specific medical literature
in her expert report and had reviewed over 100 pages of
documents in forming her various opinions).
And, while Dr. Clarke asserts that he reached his opinion
over time through his experience as a Medical Director at a
HealthSouth hospital, he fails to identify specific
experiences or medical standards he relied on in determining
that DM is not legitimate. See Dukes v. Georgia, 428 F. Supp.
2d 1298, 1315 (N.D. Ga. 2006)(“Dr. Greifinger does not specify
what experiences or what standards he relied upon in making
any of these determinations. In order to find Dr. Greifinger’s
opinion testimony reliable and connected to scientific data,
this court would need to take a leap of faith and rely on Dr.
Greifinger’s ipse dixit and assurance that his testimony is
based on nationally accepted standards. . . . Accepting Dr.
Greifinger’s experience alone as evidence of the reliability
of his statements is tantamount to disregarding entirely the
reliability prong of the Daubert analysis.”), aff’d 212 F.
App’x 916 (11th Cir. 2006). While Dr. Clarke emphasizes that
HealthSouth encouraged doctors to use the DM diagnosis and he
opines that this was fraudulent, he does not sufficiently
provide an explanation of how his medical experience — rather
than his unpleasant employment experiences — led him to doubt
the legitimacy of DM.
In short, Dr. Clarke has failed to establish a reliable
methodology for his opinion that DM is not a legitimate
medical diagnosis in his expert report. Accordingly, his
testimony is also excluded for this reason.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
Defendants Encompass Health Rehabilitation Hospital of
Sarasota LLC, HealthSouth Real Property Holdings, LLC, and
HealthSouth Corporation’s Motion to Exclude Expert Testimony
of Dr. Darius Clarke (Doc. # 208) is GRANTED.
DONE and ORDERED in Chambers in Tampa, Florida, this
27th day of January, 2021.
ian? 9h. Hermepbey Cre
VIR IA M. HERNANDEZ’COVINGTON
UNITED STATES DISTRICT JUDGE
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