Greenberg v. Board of Supervisors of Louisiana University and Agricultural and Mechanical College

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ERIC GREENBERG CIVIL ACTION

VERSUS No. 19-137

BOARD OF SUPERVISORS OF LOUISIANA SECTION I

UNIVERSITY AND AGRICULTURAL

AND MECHANICAL COLLEGE

ORDER & REASONS

Before the Court are three motions1 in limine by defendant, the Board of

Supervisors of Louisiana University and Agricultural and Mechanical College (“LSU

Board”), to exclude or, in the alternative, limit the testimony of plaintiff Eric

Greenberg’s (“Greenberg”) proposed experts, Julie Sherriff (“Sherriff”), Dr. Stan V.

Smith (“Dr. Smith”), and Dr. Karen Jubanyik (“Dr. Jubanyik”). For the following

reasons, the motions are granted in part and denied in part.

I.

Greenberg has filed claims of retaliation and hostile work environment based

on religion against the LSU Board, pursuant to Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq., in connection with his termination from the

Emergency Medicine Residency Program at Louisiana State University Health

Sciences Center – New Orleans (“LSUHSC-NO”). In support of his claims, Greenberg

has retained three experts—Sherriff, Dr. Smith, and Dr. Jubanyik—each of whom

1 R. Doc. Nos. 50, 51, & 52.

the LSU Board challenges under Federal Rule of Evidence 702 and Daubert. The

Court will address the admissibility of each proposed expert’s testimony in turn.

II.

Federal Rule of Evidence 702 governs the admissibility of expert witness

testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588 (1993); United

States v. Hitt, 473 F.3d 146, 148 (5th Cir. 2006). Rule 702 provides that 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.

“To qualify as an expert, ‘the witness must have such knowledge or experience

in [his] field or calling as to make it appear that his opinion or inference will probably

aid the trier in his search for truth.’” United States v. Hicks, 389 F.3d 514, 524 (5th

Cir. 2004) (quoting United States v. Bourgeois, 950 F.2d 980, 987 (5th Cir. 1992)); see

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999) (discussing witnesses

whose expertise is based purely on experience). “A district court should refuse to

allow an expert witness to testify if it finds that the witness is not qualified to testify

in a particular field or on a given subject.” Huss v. Gayden, 571 F.3d 442, 452 (5th

Cir. 2009) (quoting Wilson v. Woods, 163 F.3d 935, 937 (5th Cir. 1999)). However,

“Rule 702 does not mandate that an expert be highly qualified in order to testify about

a given issue.” Id. “Differences in expertise bear chiefly on the weight to be assigned

to the testimony by the trier of fact, not its admissibility.” Id.; see also Daubert, 509

U.S. at 596.

Daubert “provides the analytical framework for determining whether expert

testimony is admissible under Rule 702.” Pipitone v. Biomatrix, Inc., 288 F.3d 239,

243 (5th Cir. 2002). Both scientific and nonscientific expert testimony is subject to

the Daubert framework, which requires a trial court to conduct a preliminary

assessment to “determine whether the expert testimony is both reliable and

relevant.” Burleson v. Tex. Dep’t of Criminal Justice, 393 F.3d 577, 584 (5th Cir.

2004); see also Kumho Tire, 526 U.S. at 147.

“[T]he expert’s testimony must be reliable at each and every step or else it is

inadmissible.” Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 355 (5th Cir. 2007).

All aspects of an expert’s testimony are subject to the reliability analysis, including

the methodology, the facts underlying the expert’s opinion, and the link between the

facts and the conclusion. Id. The court may use a number of nonexclusive factors to

evaluate the reliability of expert testimony, including: (1) whether the technique has

been tested, (2) whether the technique has been subjected to peer review and

publication, (3) the technique’s potential error rate, (4) the existence and

maintenance of standards controlling the technique’s operation, and (5) whether the

technique is generally accepted in the relevant scientific community. Curtis v. M&S

Petroleum, Inc., 174 F.3d 661, 669 (5th Cir. 1999) (citing Daubert, 509 U.S. at 593–

94). The reliability inquiry must remain flexible, however, as “not every Daubert

factor will be applicable in every situation; and a court has discretion to consider

other factors it deems relevant.” Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th

Cir. 2004); see also Munoz v. Orr, 200 F.3d 291, 301 (5th Cir. 2000) (“Both the

determination of reliability itself and the factors taken into account are left to the

discretion of the district court consistent with its gatekeeping function under [Rule]

702.”).

With respect to determining the relevancy of an expert’s testimony pursuant

to Rule 702 and Daubert, the proposed testimony must be relevant “not simply in the

way all testimony must be relevant [pursuant to Federal Rule of Evidence 402], but

also in the sense that the expert’s proposed opinion would assist the trier of fact to

understand or determine a fact in issue.” Bocanegra v. Vicmar Servs., Inc., 320 F.3d

581, 584 (5th Cir. 2003).

There is no more certain test for determining when experts may be used

than the common sense inquiry whether the untrained layman would be

qualified to determine intelligently and to the best degree the particular

issue without enlightenment from those having a specialized

understanding of the subject involved in the dispute.

Vogler v. Blackmore, 352 F.3d 150, 156 n.5 (5th Cir. 2003) (quoting Fed. R. Evid. 702

advisory committee’s note). In other words, expert testimony is wholly unnecessary

where a jury can “adeptly assess this situation using only their common experience

and knowledge.” Peters v. Five Star Marine Serv., 898 F.2d 448, 449 (5th Cir. 1990).

The Court applies a preponderance of the evidence standard when performing

its gatekeeping function under Daubert. See Daubert, 509 U.S. at 592 n.10. When

expert testimony is challenged under Rule 702 and Daubert, the burden of proof rests

with the party seeking to present the testimony. Moore v. Ashland Chemical, Inc.,

151 F.3d 269, 276 (5th Cir. 1998).

III.

A. Julie Sherriff

Greenberg has retained Sherriff as a proposed expert to testify to Greenberg’s

ability to become board-certified, his future job prospects including the market

demand for emergency medicine physicians, the average age of retirement of

emergency medicine physicians, and the salary differences between emergency

medicine and urgent care physicians.2 The LSU Board moves to exclude Sherriff’s

opinions, arguing that they are unreliable pursuant to Federal Rule of Evidence 702

and Daubert.3

Sherriff has worked in the physician recruitment and placement industry since

1983.4 She founded and currently serves as the president of Sherriff & Associates,

Inc., a company that specializes in placing physicians and advanced practitioners in

positions with medical groups, hospitals, and other healthcare organizations.5

Sherriff has recruited and placed physicians in a variety of practice settings, such as

2 See R. Doc. No. 50-3.

3 R. Doc. No. 50-1, at 1.

4 R. Doc. No. 50-3, at 1.

5 Id.

in medical groups, solo practices and partnerships, hospitals, universities, academic

centers, and national clinics providing specialty services to the public.6 Sherriff is also

involved with several trade associations in the physician recruitment industry and

has served in various leadership roles for those associations.7

Sherriff’s expert report offers four general conclusions: (1) as a result of

Greenberg’s dismissal from the residency program at LSUHSC-NO, he is unlikely to

be able to obtain a position in another emergency medicine residency program; (2)

Greenberg’s dismissal from LSUHSC-NO “was career-ending in terms of him

becoming an emergency medicine physician in most hospitals” and Greenberg would

have been in high demand as a board-certified emergency medicine physician; (3) it

is common for emergency medicine physicians to practice beyond the age of sixty;8

and (4) the average salaries of emergency medicine physicians, who generally must

be board-certified, are significantly higher than the average salaries of urgent care

physicians, who generally need not be board-certified.9 Sherriff also provides the

average range of salaries of emergency medicine physicians compared to urgent care

physicians and a chart detailing the wage growth of emergency medicine and urgent

care physicians.10 The Court will consider the reliability and relevance of each of

Sherriff’s conclusions in turn.

6 Id. at 2.

7 Id.

8 R. Doc. No. 50-3, at 14.

9 Id. at 9–12.

10 Id.

i.

Sherriff, based on her experience in the field of physician recruiting and

placement, concludes that because of the competition for specialty emergency

medicine residencies and Greenberg’s dismissal from LSUHSC-NO’s residency

program, “it would be unlikely that Dr. Greenberg would be seen as a top contender

and able to obtain another Emergency Medicine residency if he chose to apply.”11

To reach this conclusion, Sherriff relies on her experience in the physician

recruitment business, specifically that she has “never worked with a physician who

was dismissed from a residency program for cause, and subsequently went on to

enter, and successfully complete, residency training in the same or even a different

medical specialty.”12 Sherriff notes that although Greenberg could apply to another

11 Id. at 19.

12 Id. at 18. It is unclear to the Court whether Sherriff’s statement means that she

has never worked with any physician who was dismissed from a residency program

for cause, or that she has worked with such a physician but was unable to place him

or her in any medical specialty as a full-time physician. Greenberg argues that the

LSU Board’s statement that Sherriff “‘has never placed a physician that is simply

board eligible let alone one that is not board certified’ mischaracterizes the testimony

and improperly suggests that Ms. Sherriff has never attempted to place a physician

that has not yet been board-certified.” R. Doc. No. 57, at 9 (quoting R. Doc. No. 50-1,

at 7). However, the portion of Sherriff’s deposition testimony that Greenberg relies

upon is her statement that she would place physicians without board-certification if

she could, but that “the problem is finding a hospital that would—whose medical staff

bylaws will allow that.” Id. at 9–10 (quoting R. Doc. No. 57-1, at 22). It thus remains

unclear whether Sherriff has worked with physicians who were dismissed from

residency programs for cause. However, regardless of whether Sherriff has worked

with such a physician and attempted to find him or her employment as a full-time

practicing physician, she still does not have any experience placing a physician in a

residency program after he or she has been dismissed from another residency

program for cause. As Sherriff testified in her deposition, she has no experience

placing physicians in residencies because all physicians seeking residencies must “go

through the [electronic] match . . . process.” R. Doc. No. 57-1, at 22.

emergency residency program to complete his residency, “competition is historically

keenly fierce for program year one (PGY-1) residency positions if he must start his

residency over,” because “there are historically not enough first year residency

openings for the number of registrants available, and there are a very limited number

of slots available at the second to fourth year level, as those openings occur only if the

slot has been vacated by another resident.”13 In addition to her experience, Sherriff

also relies on the Association of American Medical Colleges’s 2019 Match Summary

report of April 2019 (“Match Summary report”), which indicates that 44,608

individuals applied for all medical residency specialties, only 32,194 available

residency positions were available, and only 2,458 residency positions were available

in the specialty of emergency medicine.14

The LSU Board argues that Sherriff is not qualified to render her opinion as

to whether Greenberg could transfer to another residency program because she has

never been involved with the selection and ranking of residency applicants.15 In

Sherriff’s deposition, she stated that she has “never been involved in [ranking

potential residents],” but that “[her company and employees] are knowledgeable—

somewhat knowledgeable of the process[.]”16 Sherriff also clarified that she has never

worked in human resources in either an academic or medical institution.17

13 R. Doc. No. 50-3, at 18.

14 Id. at 19.

15 R. Doc. No. 50-1, at 9–10.

16 R. Doc. No. 50-4, at 2.

17 Id. at 2–3.

Greenberg does not specifically address the LSU Board’s argument that

Sherriff is not qualified to testify that Greenberg would likely not be able to secure

another residency position in an emergency medicine program, but rather argues that

“Sherriff’s testimony is reliable because the scope of her expertise is properly aligned

with the scope of the opinion she has rendered.”18

The Court finds that Sherriff is not qualified to testify as an expert on

Greenberg’s inability to find another position in an emergency medicine residency

program. First, Greenberg has not satisfied his burden of proof with respect to his

attempt to qualify Sherriff as an expert in emergency medicine resident placement or

recruitment in emergency medicine residency programs. Greenberg has not

demonstrated that Sherriff has sufficient knowledge, training, education, or skill to

offer an expert opinion with respect to Greenberg’s chances of being accepted into

another emergency medicine residency after having been dismissed from a prior

emergency medicine residency.19

Sherriff’s first conclusion that Greenberg will be unable to obtain a position in

another emergency medicine program is also unreliable. The only facts that Sherriff

relies on to support her conclusion is the Match Summary report, which indicates

that an emergency medicine residency position is competitive. 20 Sherriff cannot opine

on Greenberg’s inability to obtain another emergency medicine residency position,

18 R. Doc. No. 57, at 8.

19 Further, Greenberg does not provide any cases in which Sherriff has been accepted

as an expert in medical residency placement.

20 R. Doc. No. 50-3, at 18–19.

after being terminated from LSUHSC-NO’s residency program, based on the bare fact

that emergency medicine residency positions are competitive for medical students

seeking residency positions immediately out of medical school. Sherriff has no

research, or experience with such research, to support her conclusion that because

Greenberg was dismissed from one emergency residency program, it is highly

unlikely that he could obtain an emergency medicine residency position in another

program.21

ii.

Sherriff next opines that Greenberg’s dismissal from LSUHSC-NO “was

career-ending in terms of him becoming an emergency medicine physician in most

hospitals, due to his lack of residency training completion and his ineligibility to sit

for his board exams,” and that had he completed his residency and become board-

certified, he would have been in high demand as an emergency medicine physician.22

Greenberg specifically relies on Sherriff’s testimony to show that (1) Greenberg

will likely be unable to obtain a position as an emergency medicine physician because

he will never be board-certified, and (2) there is a high demand for emergency

21 The LSU Board further argues that Sherriff’s opinions are unreliable because she

did not “review crucial details regarding [Greenberg’s] discharge” and did nothing “to

actually vet whether [Greenberg] actually applied to the other [thirty-two] residency

programs” that he claims rejected him subsequent to his termination from LSUHSC-

NO’s residency program. R. Doc. No. 50-1, at 10–11. The Court does not exclude

Sherriff’s opinion on these grounds because they go to the weight of Sherriff’s opinion

rather than to its admissibility.

22 R. Doc. No. 50-3, at 12, 18 (“The demand for Emergency Medicine physicians

continues to climb annually and for years, abundant positions have been available

nationwide for [emergency medicine] physicians to consider.”).

medicine physicians, but most, if not all, of these positions require board certification.

Absent Sherriff’s testimony, Greenberg would allegedly not be able to prove that he

fulfilled his duty to mitigate damages by using reasonable diligence to obtain

substantially equivalent employment.23

The LSU Board does not dispute that the only way Greenberg may become

board-eligible or -certified in emergency medicine is by successfully completing an

emergency medicine residency.24 Rather, the LSU Board argues that Sherriff is

unqualified to render an expert opinion to the effect that it is impossible for

Greenberg to obtain a position as an emergency medicine physician in most hospitals

without being board-eligible or -certified and that there is a high demand for board-

certified emergency medicine physicians.25 The LSU Board contends that Sherriff’s

opinion with respect to the qualifications emergency medicine physicians must

23 Greenberg offers Sherriff’s testimony to support his argument that he used

reasonable diligence to obtain “substantially equivalent employment” as an urgent

care physician, and that he could not have obtained a higher-salaried emergency

medicine physician position because he is not board-eligible or -certified. R. Doc. No.

57, at 5–6. Title VII claimants have a duty to mitigate their damages. See Sellers v.

Delgado Coll., 902 F.2d 1189, 1193 (5th Cir. 1990). Employers meet their burden of

establishing a failure to mitigate by showing that substantially equivalent work was

available and that the claimant did not exercise reasonable diligence to obtain it. Id.

“Substantially equivalent employment” is “employment which affords virtually

identical promotional opportunities, compensation, job responsibilities, working

conditions, and status as the position” that the Title VII claimant held before

termination. Id.

24 The LSU Board argues that Sherriff erroneously assumes that Greenberg could

have successfully completed his residency, passed his boards to become board-

certifiied, and progressed long-term as an emergency medicine physician, had he not

been terminated from LSUHSC-NO’s residency program. R. Doc. No. 50-1, at 3. Such

arguments are properly addressed through cross-examination and argument at trial.

25 R. Doc. No. 50-1, at 8–9.

possess to practice emergency medicine is irrelevant and would be confusing to the

jury because in her report “she emphasizes that board certification is a de facto

requirement to obtaining employment as an emergency physician,” but concedes in

her deposition testimony that certification is not a prerequisite to practicing

emergency medicine in all hospitals.26

In order to be qualified as an expert, the proponent must demonstrate that the

expert possesses a higher degree of knowledge, skill, experience, training, or

education than an ordinary person. See Fed. R. Evid. 702. “Rule 702 does not

mandate that an expert be highly qualified in order to testify about a given

issue.” Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009). “Generally, if there is some

reasonable indication of qualifications, the court may admit the expert's testimony

and then leave to the jury the extent of those qualifications.” Jones v. Blue Cross Blue

Shield of Louisiana, No. 16-340, 2018 WL 585543, at *4 (M.D. La. Jan. 29, 2018)

(citing Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 506 (5th Cir.

1999), superseded by statute on other grounds). “Differences in expertise bear chiefly

on the weight to be assigned to the testimony by the trier of fact, not its

admissibility.” Huss, 571 F.3d at 452.

26 R. Doc. No. 71, at 5–6. The LSU Board also asserts that Sherriff’s deposition

testimony shows that “she is not knowledgeable about rudimentary job placement

requirements in the field of emergency medicine,” because she “[does] not even know

if the state of Michigan – the state where Greenberg currently resides with his family

– requires emergency medicine physicians to be board certified.” Id. at 9. However,

the question actually posed to Sherriff was whether she knew where Greenberg had

gotten the information that “to work in . . . any Michigan ER, you had to be board-

certified[.]” R. Doc. No. 57-1, at 42.

The record supports a finding that Sherriff is qualified to offer her opinions

that most hospitals require emergency medicine physicians to be board-certified and

that there is a high demand for emergency medicine physicians. Sherriff has worked

in the physician recruiting and placement industry for thirty-six years and owns her

own physician recruiting and placement company that places physicians throughout

the United States. She offers perspective regarding the physician recruitment and

placement process. Sherriff is also involved in her field and connected with other

industry members through a number of organizations in which she has served,

including the National Association of Physician Recruiters (NAPR) and First Choice,

Inc.27 Sherriff was a founding member of NAPR, the national trade association for

the industry, and she has served as the organization’s president, vice president,

secretary, and on its board of directors, among other positions.28 See Sentinel Integrity

Solutions, Inc. v. Mistras Group, Inc., No. 10-1576, 2011 WL 13258115, at *5 (S.D.

Tex. Sept. 1, 2011) (finding it relevant, when determining that the witness was

qualified to testify as an expert in his field, that he had worked in the industry for

forty-two years and had served on numerous committees for industry trade

associations).

These facts are sufficient to show that Sherriff has professional experience and

personal knowledge in the physician recruitment and placement field exceeding that

of an ordinary person. See Rideau v. Lafayette Health Ventrues, Inc., No. 18-473, 2019

27 R. Doc. No. 50-3, at 2.

28 Id.

WL 1923380, at *3–4 (finding a physician recruiter qualified to testify as an expert

in physician job placement who had twenty-five years of experience in the industry

and had previously owned his own physician recruitment company); Crankshaw v.

City of Elgin, No. 1:18-75, 2019 WL 3883564, at *5 (W.D. Tex. May 8, 2019) (holding

that working in the recruiting industry for at least thirteen years and owning a

boutique recruiting firm were sufficient qualifications to show that the expert witness

had experience and knowledge exceeding that of an ordinary person).

The LSU Board’s challenges to Sherriff’s qualifications and lack of

specialization go to the weight and credibility of her opinions rather than their

admissibility. See e.g., United States v. Wen Chyu Liu, 716 F.3d 159, 168–69 (5th Cir.

2013), cert. denied, 124 S. Ct. 1011 (2014) (holding that “an expert witness is not

strictly confined to his area of practice, but may testify concerning related

applications”). If the LSU Board believes that Sherriff's opinion is entitled to less

weight due to the fact that the majority of her experience has been in major

metropolitan areas,29 she has a lack of experience placing emergency medicine

physicians,30 or she has wavered in her opinion as to whether Greenberg is foreclosed

29 See R. Doc. No. 50-1, at 7.

30 See id. Sherriff asserts that she has placed “hundreds of physicians in medical

practices located throughout the United States” in practice areas “across the board,”

but she testified in her deposition that she could not recall how many emergency

medicine physicians she has placed. Id. at 35. When Sherriff’s company has received

requests for emergency medicine physicians, they have been for physicians that are

board-certified, but Sherriff agreed with counsel for the LSU Board in her deposition

that “[t]here may be some [companies]” that are “placing ER physicians who are not

board-certified” because “[t]here are not enough [emergency medicine] board certified

physicians to fill every [emergency room physician] position.” Id. The LSU Board can

from practicing emergency medicine because he will never be board eligible,31 the

LSU Board can make that case to the jury at trial. See Daubert, 509 U.S. at

596 (“Vigorous cross-examination, presentation of contrary evidence, and careful

instruction on the burden of proof are the traditional and appropriate means of

attacking shaky but admissible evidence.”).

Sherriff’s experience qualifies her to testify to the demand of emergency

medicine physicians and the qualifications that hospitals typically require for

emergency medicine physicians. See Sentinel, 2011 WL 13258115, at *5. Sherriff may

also use her internet research to support her conclusions at trial, as explained below,

if experts in her field would reasonably rely upon those kinds of facts or data in

forming an opinion on the subject. See Fed. R. Ev. 703. Sherriff relies on 18,000

emergency medicine job advertisements “on a variety of physician and career job

boards” to conclude that most hospitals require emergency medicine physicians to be

board-certified.32

The LSU Board argues that Sherriff’s research is unreliable because she

clarified in her deposition that she and her assistant reviewed, at most, only three to

five-hundred of the job postings, and most of the postings did not list job

requirements.33 However, when the postings did list job requirements, they included

elicit this testimony at trial to rebut Sherriff’s conclusion that most hospitals require

emergency medicine physicians to be board-certified.

31 R. Doc. No. 71, at 5–6.

32 R. Doc. No. 50-3, at 12.

33 R. Doc. No. 50-1, at 8; R. Doc. No. 50-4, at 13.

completion of an emergency medicine residency and board certification or eligibility.34

The LSU Board also highlights Sherriff’s note in her report that “the same job opening

may be listed on more than one jobsite, which would result in an additional ‘count’ of

some jobs,”35 to support the argument that her research is thereby unreliable.36

Greenberg contends that “there is no requirement that an expert must review

every piece of paper in existence that could conceivably relate to her testimony in

order for her testimony to be reliable,” and that Sherriff was not required to review

all 18,000 job postings “to support [her] opinion that the job market is open and

competitive for board-certified Emergency Room physicians.”37

As a recruiter, Sherriff is familiar with the demand for physicians and the

typical requirements that hospitals demand from applicants. Generally, challenges

to the sources that inform an expert's opinion affect the weight of an expert's

testimony rather than its admissibility. See Viterbo, 826 F.2d at 422. Thus, an

appropriate way for the LSU Board to challenge Sherriff’s opinion and internet

research is through cross-examination and the presentation of evidence. See

Crankshaw v. City of Elgin, No. 1:18-75, 2019 WL 3883564, at *5 (W.D. Tex. May 8,

2019) (permitting an expert witness to rely on his research of the job market which

was based on job postings on Indeed.com and Glassdoor.com because “searching for

employment is not an exact science”). Further, Sherriff noted the limitations of her

34 R. Doc. No. 50-3, at 12–13.

35 Id. at 12.

36 R. Doc. No. 50-1, at 8.

37 R. Doc. No. 57, at 10.

research in her report, but adequately explained how she arrived at her conclusions.

See id. Sherriff’s searches for the availability of emergency medicine physician

positions and the qualifications hospitals typically seek when hiring emergency

medicine physicians are proper areas of inquiry.

iii.

The Court rejects the attempt by Greenberg to have Sherriff testify as to her

third conclusion, that emergency medicine physicians typically retire past the age of

sixty.38 Sherriff states in her report that “[i]n [her company’s] experience, it is

common for emergency medicine physicians to practice beyond the age of sixty,” and

that her company “continues to receive job inquiries regarding fulltime, part-time,

and locum tenens positions from emergency medicine physicians who are in their

[sixties].”39 Sherriff also relies on a 2018 report from the Association of American

Medical Colleges that found that in 2017, 65.4% of practicing emergency medicine

physicians were under the age of fifty-five, 34.6% were over the age of fifty-five, and

the median age of retirement for all physicians in all specialties is sixty-five.40

Sherriff provides no indication of how many inquiries she has received for

emergency medicine physician placements, much less how many she has received for

physicians over the age of sixty. Furthermore, the report Sherriff relies upon does not

conclude that it is common for emergency medicine physicians to practice beyond the

age of sixty, just that a little over one-third of emergency medicine physicians are

38 R. Doc. No. 50-3, at 14.

39 Id.

40 Id.

above the age of fifty-five. The report found that the median age of retirement for all

physicians in all specialties is sixty-five, not that the median age of retirement for

emergency medicine physicians specifically is sixty-five.41 Sherriff’s anecdotal

evidence that some emergency medicine physicians retire past the age of sixty is “of

such little weight that the jury should not be permitted to receive [her] opinion.” Fair

v. Allen, 669 F.3d 601, 607 (5th Cir. 2012). Sherriff’s opinion, as supported solely by

anecdotal evidence, is not only unreliable, but it “would not actually assist the jury

in arriving at an intelligent and sound verdict,” and it is therefore inadmissible at

trial. Id.

iv.

Sherriff next concludes that the average salaries of emergency medicine

physicians, who generally must be board-certified, are significantly lower than the

average salaries of urgent care physicians, who generally need not be board-certified.

Sherriff also provides the average range of salaries of emergency medicine physicians

compared to urgent care physicians and a chart detailing the trend for compensation

of emergency medicine and urgent care physicians.42 Sherriff pulls her data from the

Medical Group Management Association (MGMA), American Medical Group

Association (AMGA), American College of Emergency Physicians (ACEP), and Merrit

Hawkins & Associates (MHA).43

41 Id.

42 See id. at 9–12.

43 R. Doc. No. 50-3, at 9–11.

The LSU Board argues that the surveys Sherriff relies upon for the salaries of

emergency medicine physicians and urgent care physicians are unreliable because

she cannot account for the methods used in compiling these surveys.44 The LSU Board

further asserts that Sherriff failed to verify whether the emergency medicine

physicians who responded to the surveys were board-certified and her conclusions as

to the average salaries for emergency medicine physicians will only serve to confuse

the jury by suggesting certain compensation figures are not available to Greenberg

when they may well be.45 Accordingly, the LSU Board argues, if Sherriff’s reported

salaries for emergency medicine physicians are available to physicians who are not

board-certified, like Greenberg, the surveys are unreliable and of no assistance to the

trier of fact in demonstrating how Greenberg’s inability to complete his residency and

become board eligible equated to a financial loss.46

The compensation figures for emergency medicine physicians Sherriff cites in

her report, such as the ACEP 2018–19 Compensation Report for Emergency

Physicians that Dr. Stan V. Smith references in his report, are only relevant if they

reflect the compensation of board-certified emergency medicine physicians.

Otherwise, as the LSU Board points out, they do not reflect Greenberg’s potential

financial loss because the data could include salaries of emergency medicine

physicians who are not board-certified, and Greenberg could obtain these types of

positions with similar salaries. Although MGMA reports have been held to be reliable

44 R. Doc. No. 71, at 2.

45 Id. at 4.

46 Id. at 4–6.

under Daubert and recognized as the industry standard for physician compensation

by at least one federal court, there was no dispute in that case that the salary

information available applied to the plaintiff-physician. Rideau, 2019 WL 1923380,

at *5. Sherriff’s compensation data will not “assist the trier of fact to understand or

determine a fact in issue” unless she can establish that the reported salaries are only

for board-certified emergency medicine physicians. Bocanegra, 320 F.3d at

(citing Daubert, 509 U.S. at 591-92).

Sherriff testified in her deposition that there is “[n]o way of knowing” whether

the reported salaries of emergency medicine physicians in the MGMA data included

only board-certified physicians or also non-board-certified physicians.47 The MGMA

data is therefore inadmissible. Sherriff may rely upon the emergency medicine

physician salary data from AMGA, ACEP, or MHA, however, if she can establish at

trial that such data only includes the reported salaries of board-certified emergency

medicine physicians.

B. Dr. Stan V. Smith

i.

Greenberg has retained Dr. Smith as a proposed expert to establish the value

of Greenberg’s “loss of wages subsequent to his alleged wrongful termination” from

the residency program.48 The LSU Board argues, however, that Dr. Smith’s wage loss

calculations are based on “unreliable methodologies that lack a proper factual

47 R. Doc. No. 50-4, at 12.

48 R. Doc. No. 56, at 2.

foundation.”49 Specifically, the LSU Board contends that Dr. Smith’s calculations rest

on several faulty assumptions—most significantly, that Greenberg would have

obtained a job as an emergency medicine physician in Texas after completing his

residency program and that he would be employed at a pay rate specified in one of

the two sample employment agreements that Greenberg provided.50

In support of Dr. Smith’s proposed expert testimony, Greenberg asserts that

Dr. Smith’s expert opinion as to Greenberg’s net wage loss is reliable and that the

LSU Board’s challenges to his conclusions “go to the weight of Dr. Smith’s testimony

rather than its admissibility.”51

ii.

Dr. Smith divides his net wage loss calculation into two scenarios, using figures

from two employment agreements that Greenberg alleges he received. He also applies

a wage offset based on Greenberg’s reported 2018 earnings and projected wage

growth using averages for urgent care physicians from the AMGA survey, the MGMA

49 R. Doc. No. 52-1, at 8.

50 See R. Doc. No. 52-1, at 10. In addition, the LSU Board asserts that Dr. Smith’s

reliance on a report that Sherriff prepared is improper because Dr. Smith did not

independently examine the methodologies or underlying data that Sherriff used to

develop her report. See id. As discussed herein, the LSU Board has also moved to

exclude Sherriff’s testimony, arguing that it is unreliable and irrelevant, see R. Doc.

No. 50, and asserting that the alleged unreliability of Sherriff’s testimony will thereby

“impute” to the testimony of Dr. Smith. R. Doc. No. 72, at 2. Because the Court finds

that Sherriff’s use of certain compensation rates is improper due to their failure to

distinguish between non-board- and board-certified positions, Dr. Smith’s use of these

compensation rates in his conclusions is also improper.

51 R. Doc. No. 56, at 9.

survey, and the MHA survey.52 Scenario one is based on employment at St. David’s

South Austin Medical Center Facility (“St. David’s”) in Austin, Texas, which provides

for 50% of Greenberg’s work time to be spent at St. David’s and 50% of his time to be

spent at Metroplex Adventist Hospital (“Metroplex”), also in Austin.53 Under scenario

one, Dr. Smith calculated Greenberg’s total compensation to be $16,065,495.00 and

net wage loss to be $5,667,119.00, assuming that Greenberg would work until age

sixty-seven.54 Scenario two is based on full-time employment at Metroplex.55 Under

scenario two, Dr. Smith calculated Greenberg’s total compensation to be

$14,413,250.00 and net wage loss to be $4,014,874.00, again assuming that

Greenberg would work until age sixty-seven.56

The LSU Board argues that Dr. Smith’s testimony is inadmissible because it

is based on unreliable methodologies and unsupported factual assertions. According

52 See R. Doc. No. 52-4, at 6. As discussed in the Court’s evaluation of Sherriff’s

proposed expert testimony, the Court finds that Sherriff’s use of the MGMA

compensation data was improper because the survey does not distinguish between

non-board-certified and board-certified positions. Dr. Smith’s use of the MGMA

survey data also undermines the reliability of his conclusions to the extent that his

calculations did not account for such distinction. The Court also notes that Sherriff

and Dr. Smith may rely on the data from the AMGA and MHA surveys if it is

established at trial that their use of such data accounted for the distinction between

non-board-certified and board-certified physicians.

53 Id. at 3; R. Doc. No. 52-9, at 8.

54 R. Doc. No. 52-4, at 8. The “Summary of Losses for Eric Greenberg” chart that Dr.

Smith provides in his report delineates the projected net wage loss at age sixty-seven.

Id. However, Greenberg has not asserted that he intends to work as an emergency

medicine physician until age sixty-seven, and Dr. Smith has not explained why this

conclusory chart only states the estimated net wage loss for the age of sixty-seven,

even though Dr. Smith’s report includes Greenberg’s projected wage loss for ages

thirty to seventy-eight. See id. at 10–17.

55 Id. at 8.

56 Id.

to an analysis prepared by the LSU Board’s “expert economists,” Ed Comeaux

(“Comeaux”) and Charles Theriot (“Theriot”),57 Dr. Smith incorrectly calculated the

projected wages in scenario one because he “exclusively applied the St. David’s pay,

which is higher than the Metroplex pay” to the contract, even though Greenberg’s

time would be split evenly between the two institutions.58 This error results in an

overstatement of Greenberg’s projected wage loss in scenario one by approximately

$500,000.00.59

The LSU Board also disputes whether these two agreements represent actual

post-residency employment offers made to Greenberg, rather than merely “sample”

contracts. Although Greenberg stated in a declaration that he received these offers

from St. David’s and Metroplex before he was terminated from the residency

program,60 the LSU Board contends that “subpoenas to these hospitals provided no

confirming evidence that [Greenberg] ever received an employment offer.”61 The LSU

Board also notes that the copies of these agreements that Greenberg provided in

discovery bear a “SAMPLE” watermark on each page.62

With respect to whether these agreements are actual employment contracts

that Greenberg received, the Court finds Greenberg’s response to be less than

57 R. Doc. No. 52-1, at 11. The LSU Board has provided the report that Comeaux and

Theriot prepared. See R. Doc. No. 52-12, at 42–68. Greenberg has not challenged the

expertise of Comeaux or Theriot.

58 R. Doc. No. 52-1, at 11.

59 R. Doc. No. 52-12, at 8.

60 R. Doc. No. 58-3, at 11.

61 R. Doc. No. 52-1, at 4.

62 Id. at 3.

satisfactory, as Greenberg simply states that he “will testify at trial and will have an

opportunity to establish at that time that he received the documents from these

institutions.”63 Greenberg then asserts that “the parties will have the opportunity to

establish the authenticity of all of these documents at trial.”64 Notably, Greenberg

has not provided any further evidence to support the legitimacy of these “sample”

agreements as post-residency job offers that would have been available to him had he

not been terminated from the residency program at LSUHSC-NO.

Greenberg’s position with respect to the authenticity of these agreements as

legitimate job offers is troubling because the agreements provide foundational figures

for Dr. Smith’s wage loss calculations. As Greenberg acknowledges, Dr. Smith based

his projections on the assumption that if Greenberg had been able to complete his

residency, Greenberg would have worked at either St. David’s or Metroplex in

accordance with the terms set forth in either one of these two agreements, including

compensation at the wage rates set forth therein.65 If these “sample” agreements do

not reflect true employment offers made to Greenberg, they do not serve as relevant

bases for Dr. Smith’s calculations. Dr. Smith has also not explained why his exclusive

use of the wage rates provided for in these agreements—rather than regionally- or

63 R. Doc. No. 56, at 13. At a pretrial conference with both parties, Greenberg’s counsel

was unable to provide additional evidence that the agreements were, in fact,

employment contracts that Greenberg received as offers of employment.

64 Id.

65 See id. at 3–4. As Dr. Smith stated in his deposition, “I only assumed and I will

inform the jury that my work is based on him working under these two contracts.” R.

Doc. No. 52-5, at 58–59. Dr. Smith also candidly stated, “I have no idea nor do I care”

whether the two agreements that Greenberg provided to him “were legally executed”

as employment contracts. Id. at 58.

nationally-representative figures—is a reliable method to determine Greenberg’s

projected wage loss.

Notably, neither Dr. Smith nor Greenberg has established whether the terms

of these agreements are representative of the wages that an emergency medicine

physician would receive and whether they would depend on board certification.66

Moreover, in his report, Dr. Smith notes his review of the average annual

compensation rates for emergency physicians in the Southeast and Southwest

regions, which include Louisiana and Texas, respectively, but he nevertheless uses

the wage rates set forth in the St. David’s and Metroplex agreements.67 It is evident

to the Court that Greenberg’s annual compensation under the St. David’s agreement,

as calculated by Dr. Smith, is higher than the average annual compensation for both

regions.68 However, Dr. Smith has not explained why the wage rates he used in his

66 The LSU Board raised a similar objection to Sherriff’s expert testimony.

67 Dr. Smith indicates that he obtained the average compensation rates for both

regions from Sherriff’s report, which in turn relied on the “2018–2019 Compensation

Report for Emergency Physicians.” See R. Doc. No. 52-4, at 3–4. As stated previously,

the LSU Board argues that Dr. Smith’s reliance on Sherriff’s report is improper. The

Court includes this portion of Dr. Smith’s analysis to demonstrate its overall

unreliability; the Court does not express an opinion as to the reliability of the 2018–

2019 Compensation Report for Emergency Physicians.

68 Dr. Smith states that the average annual compensation for emergency medicine

physicians in the Southeast and Southwest regions are $416,000.00 and $389,000.00,

respectively. Id. at 3–4. Dr. Smith calculated Greenberg’s annual compensation under

the St. David’s agreement to be $422,329.00. Id. at 4. Dr. Smith’s calculation for

Greenberg’s annual compensation under the Metroplex agreement—$378,000.00—is

closer to the reported averages for the Southeast and Southwest regions. Id.

As an additional matter, and as stated previously, Dr. Smith appears to have

incorrectly applied the wage rates provided for in the St. David’s agreement by

exclusively using the higher St. David’s pay, rather than considering the split-time

provision with Metroplex.

calculations should be relied upon in lieu of the regional averages he cited in his

report. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (“[N]othing 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.”).

Because Greenberg has not yet established whether these two agreements

constitute actual employment offers that he received, Dr. Smith may not be able to

testify as to Greenberg’s projected earnings based on the compensation rates set forth

in these agreements. However, if Greenberg is able to close the “analytical gap” and

properly establish at trial the validity of these agreements as employment offers

made to him, Dr. Smith may be able to offer his expert testimony with respect to the

compensation that Greenberg would have earned under the Metroplex agreement.69

The LSU Board also objects to Dr. Smith’s reliance on salary figures for

physicians in Texas, rather than other regions such as Michigan. According to the

LSU Board, because physician salaries are comparatively higher in Texas than in

Michigan, the use of Texas figures may overestimate Greenberg’s projected wage

loss.70 Greenberg has not directly explained why Dr. Smith’s wage loss projections

69 Dr. Smith’s calculation of the projected compensation under scenario one, which he

asserts is based on the St. David’s agreement, is unreliable and inadmissible because

it fails to account for the division of time between St. David’s and Metroplex and the

differing wage rates of each institution.

70 See R. Doc. No. 52-1, at 13. According to a survey cited by Sherriff, the

compensation for an emergency room physician is 24% higher in Texas than

Michigan. Id.

are based on Texas compensation rates although, presumably, Dr. Smith’s

calculations use Texas figures because the “sample” employment agreements are

from Texas medical institutions. However, neither Greenberg nor Dr. Smith has

provided the Court with a specific reason for wage projections based on Texas

compensation rates rather than Michigan, where Greenberg currently works, or any

other geographic region. In fact, Dr. Smith testified in his deposition that he did not

make any effort to investigate “where [Greenberg] was qualified to work” because it

would be a “waste of time and client money.”71

The LSU Board further disputes the methodology that Dr. Smith used to

calculate Greenberg’s projected wage loss and wage offset, and it highlights Dr.

Smith’s failure to validate the data he used. According to the LSU Board, Dr. Smith

“ignores surveys by [Greenberg’s] physician recruiter that show the earnings of

urgent care physicians as being higher, both regionally and nationally, than the wage

base he uses.”72 In addition, by calculating Greenberg’s wage offset projection based

on compensation trends for someone who works as an “employee of another,” rather

than a person in Greenberg’s current employment situation, i.e., working as a

physician who owns his own business, Dr. Smith allegedly understates Greenberg’s

offset earnings and overstates Greenberg’s net wage loss.73 Greenberg has not

71 Id. at 14.

72 Id. at 12.

73 Id. at 13. Dr. Smith explains that he used Greenberg’s 2018 earnings as the base

for his wage offset projections, which are calculated according to data from the

MGMA, AMGA, and MHA surveys for urgent care physicians. See R. Doc. No. 52-4,

at 6.

explained why Dr. Smith’s calculation of the wage offset, which is not based on the

nature of Greenberg’s current occupation as the provider and owner of an urgent care

clinic in Michigan, is relevant and reliable.

Furthermore, according to the LSU Board, Dr. Smith “admitted that he had no

idea how many hours [Greenberg] worked in his first year of urgent care practice, or

even if [Greenberg] worked full time during his first year.”74 In Dr. Smith’s

deposition, when asked whether the wage base he used was “representative of a full-

time urgent care provider,” Dr. Smith responded, “I don’t know who else earns that,”

and “what other people in this profession, how many hours they work, I don’t know.”75

Dr. Smith’s failure to provide factual support for the assumptions underlying his

wage loss calculations undermine the reliability of his conclusions.76 See Hathaway

v. Bazany, 507 F.3d 312, 318–19 (5th Cir. 2007) (affirming district court’s decision to

The LSU Board further argues that in calculating the wage offset, Dr. Smith failed

to account for Greenberg’s future plan to pursue a position as a medical director or

administrator, which, as Dr. Smith acknowledges, “could have a very, very significant

increase in pay over that of a—of a—of the career that—for which the contracts

represent his earnings.” R. Doc. No. 52-5, at 65. However, because Greenberg’s future

career plan appears speculative at this stage of the proceedings, the Court will not

assess whether Dr. Smith should have accounted for Greenberg’s intention to pursue

a different career path after working as an emergency medicine physician.

74 R. Doc. No. 72, at 9.

75 R. Doc. No. 72-1, at 21.

76 As an additional matter, the LSU Board highlights Dr. Smith ‘s failure to account

for the possibility that Greenberg “suffered no loss whatsoever,” since Greenberg has

decided to open an urgent care facility in Michigan and has not demonstrated that he

would not be able to obtain employment in emergency medicine. R. Doc. No. 52, at 13.

The evidence as to Greenberg’s alternative employment prospects are discussed

herein in the Court’s analysis of Sherriff’s proposed expert testimony. If Dr. Smith

does testify at trial, pending the establishment of a proper foundation, the LSU Board

will have the opportunity to cross-examine Dr. Smith on this alleged deficiency in his

conclusions.

exclude testimony of expert who did not “offer any specific factual support for the

reliability of his initial assumptions”).

iii.

“Expert testimony that relies on ‘completely unsubstantiated factual

assertions’ is inadmissible.” Moore v. Int’l Paint, L.L.C., 547 F. App’x 513, 515 (5th

Cir. 2013) (quoting Hathaway, 507 F.3d at 318); see Mac Sales, Inc. v. E.I. du Pont de

Nemours & Co., 24 F.3d 747, 752 (5th Cir. 1994) (“In the exercise of its discretion a

district court may exclude expert testimony that lacks an adequate foundation.”).

Greenberg has not provided the Court with sufficient supporting evidence that would

permit a finding that Dr. Smith’s calculations were based on substantiated wage and

hour figures for Greenberg’s projected wage loss as a result of his termination from

the residency program at LSUHSC-NO, or that Dr. Smith used appropriate

compensation and offset rates in his overall calculations. Accordingly, absent the

establishment of a proper evidentiary foundation at trial, Dr. Smith may not testify

as to Greenberg’s net loss of wages because his testimony “has neither the sufficient

facts nor the reliable methodology that would warrant its inclusion as evidence.”

Hathaway, 507 F.3d at 319.77

77 As stated previously, if Greenberg is able to establish at trial that the Metroplex

agreement was a valid employment offer made to him pending his completion of the

LSUHSC-NO residency program, then Dr. Smith may testify as to the compensation

that Greenberg would have received under the Metroplex agreement in scenario two.

However, he may not testify as to his calculation of the projected compensation under

scenario one because Dr. Smith incorrectly applied the wage rates set forth in the St.

David’s agreement. In addition, Dr. Smith may not testify with respect to Greenberg’s

wage offset or Greenberg’s overall net loss of wages because his conclusions as to

those matters are unreliable and lack adequate factual support.

C. Dr. Karen Jubanyik

Greenberg has retained Dr. Jubanyik as a proposed expert to testify to the

adequacy of the feedback and documentation provided by LSUHSC-NO, the

appropriate standard of care for placing a central line in a crashing patient, and the

professionalism of communications between Greenberg and a supervising

physician.78 The LSU Board moves to exclude Sherriff’s opinions, arguing they are

unreliable pursuant to Federal Rule of Evidence 702 and Daubert.79

Dr. Jubanyik is a board-certified emergency medicine physician and practices

emergency medicine in an academic hospital setting.80 Dr. Jubanyik has been an

associate residency program director, an interim residency program director, and a

medical student clerkship director, and she is currently an academic advisor for

students at Yale Medical School.81 Dr. Jubanyik also teaches professionalism and

communication skills to medical students, works and teaches during clinical shifts

with the Yale-New Haven Hospital emergency medicine residents, and serves on the

Yale Emergency Medicine Residency Education Committee.82

The Court notes that Dr. Smith has been rejected as an expert on lost wages in a

previous case that also involved a plaintiff in the medical profession. See Castrillon

v. St. Vincent Hosp. & Health Care Ctr., Inc., No. 1:11-CV-430-WTL-DML, 2015 WL

3448947 (S.D. Ind. May 29, 2015). In that case, the district court found that his

assumption with respect to the plaintiff’s current earning capacity was

“demonstrably incorrect” and that there was “no evidentiary basis for his assumption”

that the plaintiff “would have had a career in critical care medicine rather than

internal medicine.” Id. at *3.

78 See R. Doc. No. 51-3.

79 R. Doc. No. 51-1, at 1.

80 R. Doc. No. 51-3, at 1.

81 Id.

82 Id.

Although not always expressly stated, Dr. Jubanyik’s expert report appears to

offer four general conclusions: (1) there was “an overall lack of documentation of Dr.

Greenberg’s performance in his first year (PGY1) of residency” and LSUHSC-NO did

not provide Greenberg with proper feedback;83 (2) Greenberg complied with the

standard of care when he did not administer local anesthesia to a crashing patient

before he placed a central line;84 (3) Dr. Suau’s emails and texts to Greenberg were

“unprofessional in tone and content for communications from a residency program

director with a resident”;85 and (4) “it does not seem that [LSUHSC-NO] provided” an

environment “free of . . . religious bias[.]”86 The Court will consider the reliability and

relevance of each of Dr. Jubanyik’s conclusions in turn.

i.

Dr. Jubanyik first concludes that there was “an overall lack of documentation

of Dr. Greenberg’s performance in his first year (PGY1) of residency” and that

LSUHSC-NO did not provide Greenberg with “[d]etailed, summative feedback” that

was “focused on specific observed behaviors and not interpretations of motives or

behaviors.”87 In her report, Dr. Jubanyik analyzes the documented feedback

Greenberg was given during his time at LSUHSC-NO, and she explains why such

feedback would not have been helpful to Greenberg and was otherwise improper and

inadequate.

83 Id. at 1–2.

84 Id. at 2.

85 Id. at 3.

86 Id.

87 Id. at 1.

The LSU Board argues that Dr. Jubanyik’s opinion as to the sufficiency of

LSUHSC-NO’s documentation is unreliable because “she merely assesses the

program speaking from her anecdotal career experience within emergency medicine

(a career entirely limited to one university in the state of Connecticut),” which is “not

falsifiable” or based on any actual research.88 The LSU Board further asserts that Dr.

Jubanyik’s opinion as to the adequacy of Greenberg’s feedback is merely a

“[c]onclusory opinion[] . . . [that] lack[s] the evidentiary reliability mandated by Rule

702 because [it] fail[s] to set forth a discernable methodology.”89 The LSU Board

points out that Dr. Jubanyik failed to review materials readily available to her on

LSU Medical School’s website regarding its residency program and resources, and

that she did not refer to any national materials such as documents from the Counsel

of Residency Directors or the Residency Review Committee.90

Greenberg argues in response that “[t]here is no ‘scientific’ testing that could

have been performed to determine whether [Dr. Greenberg’s] alleged deficiencies

[are] . . . shortcomings experienced by typical, competent residents or are indicative

of a problem resident,”91 and that Dr. Jubanyik “possesses the practical experience

necessary to opine on whether alleged deficiencies on the part of a resident are typical

or would justify termination[.]”92

88 R. Doc. No. 51-1, at 7–8.

89 Id. at 8–9 (quoting General Star Indem., Co. v. Sherry Brooke Revocable Trust, No.

SA-99-CA-105-HG, 2001 WL 34063890, at *10 (W.D. Tex. Mar. 16, 2001).

90 R. Doc. No. 51-1, at 9.

91 R. Doc. No. 55, at 10.

92 R. Doc. No. 55, at 7. Even if LSUHSC-NO unjustifiably terminated Greenberg’s

residency, it would only be actionable under Title VII if his residency was terminated

Dr. Jubanyik is intimately familiar with Yale’s Emergency Residency Program

(“Yale’s Program”) and the feedback and documentation she would expect to be

generated in connection with a resident in Yale’s Program. However, her experience

working for a single residency program does not provide her with the requisite

expertise to opine as to a national standard for documentation and feedback by all

emergency medicine residency programs. Dr. Jubanyik does not reference a national

standard for emergency medicine residency programs in her report, or provide any

other information or data which suggests that she has surveyed or extensively

researched various emergency medicine residency programs to determine best

practices. If Greenberg argues at trial that the proffered reasons for his termination

were pretextual, the jury will be capable of evaluating the evidence and determining,

on its own, whether the reasons given were valid. See Shawler v. Ergon Asphalt &

Emulsions, Inc., No. 15-2500, 2016 WL 1019121, at *11 (E.D. La. Mar. 15, 2016)

(Africk, J.) (citation omitted) (holding that “expert testimony on matters in which a

jury is capable of understanding and deciding without an expert’s help” should be

excluded).

ii.

Dr. Jubanyik next concludes that Greenberg complied with the standard of

care when he did not administer local anesthesia to a crashing patient before placing

for an unlawful reason. See Bryant v. Compass Group USA, Inc., 413 F.3d 471, 478

(5th Cir. 2005) (“[E]vidence that the employer’s investigation merely came to an

incorrect conclusion does not establish a racial motivation behind an adverse

employment decision. Management does not have to make proper decisions, only non-

discriminatory ones.”) (citations omitted).

a central line.93 One reason LSUHSC-NO provided for Greenberg’s dismissal was

that Greenberg placed a central line in a mentally challenged patient without any

form of analgesia.94

The LSU Board argues that Dr. Jubanyik’s opinion should be excluded because

she was provided with inaccurate information to reach her conclusion, and her

opinion is analogous to the testimony that was excluded in Viterbo.95 According to the

LSU Board and another witness, the patient was not crashing when Greenberg

placed a central line without anesthesia, which is confirmed by the patient’s medical

chart.96

The Fifth Circuit recognizes that “as a general rule, questions relating to the

bases and sources of an expert’s opinion affect the weight to be assigned to the opinion

rather than its admissibility.” Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d

546, 563 (5th Cir. 2004) (internal quotations and citation omitted); Pipitone, 288 F.3d

at 250 (“The fact-finder is entitled to hear [the expert witness’s] testimony and decide

whether it should accept or reject that testimony after considering all factors that

weigh on credibility, including whether the predicate facts on which [the expert

witness] relied are accurate.”); In re M&M Wireline & Offshore Servs., LLC, No. 15-

4999, 2017 WL 480603, at *6 (E.D. La. Feb. 3, 2017) (Brown, J.) (denying a motion to

93 R. Doc. No. 51-3, at 2.

94 R. Doc. No. 51-7, at 2.

95 R. Doc. No. 51-1, at 10–11.

96 Id. at 10.

exclude expert testimony in which the movant argued that the expert’s conclusions

were unfounded).

The LSU Board may present evidence through other witnesses that nothing in

the patient’s records indicated that he or she was crashing at the time Greenberg

placed the central line. It may also cross-examine Dr. Jubanyik with respect to

whether her opinion would change if the patient had not been crashing. This case is

distinguishable from Viterbo because Dr. Jubanyik did not provide a completely

unsupported opinion—Dr. Jubanyik’s opinion as to whether Greenberg complied with

the proper standard of care is based upon the medical information provided to her,

and the LSU Board can contest the factual accuracy and completeness of such

information at trial.

iii.

Dr. Jubanyik opines that Dr. Suau’s emails and texts to Greenberg were

“unprofessional in tone and content for communications from a residency program

director with a resident.”97

Expert testimony is wholly unnecessary where a jury can “adeptly assess [the]

situation using only their common experience and knowledge.” Peters, 898 F.2d at

449; see also Shawler, 2016 WL 1019121, at *11. The jury will be capable of

determining, on its own, whether Dr. Suau’s communications to Greenberg were

unprofessional or inappropriate. Dr. Jubanyik will not be permitted to testify as to

the professionalism of Dr. Suau’s emails and texts at trial.

97 R. Doc. No. 51-3, at 3.

iv.

Finally, Dr. Jubanyik broadly concludes, that “from the records provided to

[her], it does not seem that [LSUHSC-NO] provided” an environment “free of .. .

religious bias[.]’98 Counsel for Greenberg indicated to the Court at the pretrial

conference on November 14, 2019 that such testimony would not be elicited from Dr.

Jubanyik at trial. The proposed testimony would be otherwise inadmissible because

it offers a legal opinion and it would not assist the trier of fact. Shawler v. Ergon

Asphalt & Emulsions, Inc, No. 15-2599, 2016 WL 1019121, at *10 (E.D. La. Mar. 15,

2016) (Africk, J.) (citing Estate of Sowell v. United States of America, 198 F.3d 169,

171 (5th Cir. 1999) and Askanase v. Fatjo, 130 F.3d 657, 669 (5th Cir. 1997)); see also

Bocanegra, 320 F.3d at 584.

Il.

Accordingly,

IT IS ORDERED that the LSU Board’s motions in limine are GRANTED IN

PART and DENIED IN PART as set forth herein.

New Orleans, Louisiana, November 26, 2019.

hn__

UNITED STATAS DISTRICT JUDGE

98 Td.

36