# Horton v. Fisher

> District Court, M.D. Louisiana · September 17, 2021

URL: https://www.frixlaw.com/law-library/cases/10192015

## Case

- **Court:** District Court, M.D. Louisiana
- **Decided:** September 17, 2021
- **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 LOUISIANA

DWIGHT HORTON
CIVIL ACTION
VERSUS
NO. 19-272-JWD-EWD
RICKEY DEAN FISHER, ET AL.

RULING ON PLAINTIFF’S DAUBERT MOTION IN LIMINE TO
EXCLUDE DR. CHARLES BAIN
Before the Court is the Daubert Motion in Limine to Exclude Dr. Charles Bain (Doc. 67)
(“Motion”) brought by plaintiff Dwight Horton (“Plaintiff” or “Horton”). Defendants Transport
Risk Solutions Risk Retention Group, Inc. (“Transport Risk”) and KLLM Transport Services,
LLC (“KLLM”) (collectively, “Defendants”) oppose the Motion. (Doc. 71.) Plaintiff filed a reply
brief. (Doc. 77.) The Court has carefully considered the law, the facts in the record, and the
arguments and submissions of the parties and is prepared to rule. For the following reasons, the
Motion is denied in part and deferred in part for hearing to be set by the Court.
I. BACKGROUND
This case arises out of a motor vehicle accident which occurred on December 7, 2017.
(Doc. 1-4.) According to Plaintiff, defendant Rickey Dean Fisher, driving a KLLM truck,1 made
a wide left turn from the right-hand lane forcing Plaintiff off the road where he crashed into a
tree stump. (Id. at 3, ¶ 6.) According to Defendants, “[t]his is a minor impact motor vehicle
accident”, and “Defendants contest the nature and extent of damages claimed by plaintiff . . . .”
(Doc. 66-1 at 1; see also Doc. 16 at 2.)

1 For reasons which are unclear, defendant Rickey Dean Fisher, the driver of the KLLM truck, (Doc. 78 at 3,
Established Fact 4; Doc. 71 at 1), which allegedly caused the accident, did not join in Defendants’ opposition to this
Motion.
Plaintiff and Defendants each hired an expert to analyze the collision and the impact
forces involved. Defendants hired Charles E. Bain, M.D. (“Bain”) in the area of “vehicle
dynamics, occupant kinematics, biomechanics, and medicine.” (Doc. 71 at 2.) He estimated the
vehicle’s speed to be between 3.5 and 4.7 mph and the delta-v at between 4.7 and 6.4 mph. (Doc.

71-1 at 6–7.) As to Plaintiff’s injuries, Bain opined:
Mr. Horton was involved in very low severity frontal motor vehicle
collision. He was not subjected to forces or accelerations that would
cause injury. Mr. Horton may have been startled by the event and/or
suddenly braced resulting in reflexive muscle strains. Any
symptoms that he had would have abated within days regardless of
medical treatment rendered. None of Mr. Horton’s medical care was
causally related to the subject accident.

(Id. at 13.) Plaintiff’s “low back was not subjected to any appreciable lumbar accelerations or
forces. As such, there was no mechanism to injure his low back structure in this event.” (Id. at 8.)
Plaintiff hired Dr. Jack Leifer (“Leifer”), a mechanical engineering professor, to provide
opinions “regarding both [the] collision between a Chevrolet Express Van and a large tree stump,
as well as the methods and conclusions of a report . . . authored by Defense Consultant Charles
E. Bain, B. Eng., M.D. . . . .” (Doc. 69-5 at 1.) Both sides have filed Daubert motions
challenging the other’s expert. (Doc. 66 and Doc. 67.)
II. SUMMARY OF ARGUMENTS OF THE PARTIES
Plaintiff challenges Bain’s opinions on three main grounds. First, he argues that Bain
lacks the qualifications necessary to render his opinions. (Doc. 67-1 at 1–2; id. at 3–4). Second,
Plaintiff maintains that Bain “does not rely on reliable expert methodology”, (id. at 3), and third,
relying primarily on his own expert’s criticism of Bain’s report, attacks Bain for making errors in
reaching his conclusions, rendering the foundation for and reliability of his opinions insufficient,
(id. at 4–8).
Defendants respond that Bain is well qualified, holding a nuclear engineering degree, a
medical degree and certification by the Accreditation Committee for Traffic Accident
Reconstruction. (Doc. 71 at 2, 4–6.) They also emphasize Bain’s eight years as a family
medicine practitioner and seventeen years performing accident reconstruction. (Id. at 5.) As to

his methodology and foundation, Defendants address the merits of Plaintiff’s (and Leifer’s)
criticism, (id. at 6–12), but, in any event, maintain that “Plaintiff’s criticism of Dr. Bain’s
technique goes to the weight of Dr. Bain’s testimony, and is not grounds for exclusion”, (id. at
7). In support of their position, Defendants attach a number of rulings in which courts denied
Daubert challenges to Bain’s testimony. (Doc. 71-1 at 79 et seq.)
In his reply, Plaintiff repeats many of his original arguments but also points the Court to
cases allegedly demonstrating “Bain’s history of being excluded for lack of qualification,
employing unreliable methods, and relying on insufficient facts and data.” (Doc. 77 at 2, 3–6
(citations omitted).)
III. STANDARD REGARDING EXPERT TESTIMONY

Pursuant to Federal Rule of Evidence 702, “[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 the rule's preconditions are met. As this Court has explained:
The admissibility of expert testimony is governed by Federal Rule
of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals,
Inc., which provide that the court serves as a gatekeeper, ensuring
all scientific testimony is relevant and reliable. This gatekeeping
role extends to all expert testimony, whether scientific or not. Under
Rule 702, the court must consider three primary requirements in
determining the admissibility of expert testimony: 1) qualifications
of the expert witness; 2) relevance of the testimony; and 3) reliability
of the principles and methodology upon which the testimony is
based.
Fayard v. Tire Kingdom, Inc., No. 09-171-BAJ-SCR, 2010 WL 3999011, at *1 (M.D. La. Oct.
12, 2010) (citing, inter alia, Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999)).
This Court has broad discretion in deciding whether to admit expert opinion
testimony. See, e.g., Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138–39 (1997) (appellate courts

review a trial court's decision to admit or exclude expert testimony under Daubert under the
abuse of discretion standard); Watkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir. 1997)
(“District courts enjoy wide latitude in determining the admissibility of expert
testimony.”); Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1050 (5th Cir. 1998) (“Trial
courts have ‘wide discretion’ in deciding whether or not a particular witness qualifies as an
expert under the Federal Rules of Evidence.” (internal citations omitted)).
Defendants’ motion is a Daubert challenge. Daubert v. Merrell Dow Pharms., Inc., 509
U.S. 579 (1993). When Daubert is invoked, a district court may, but is not required to, hold a
hearing at which the proffered opinion may be challenged. Carlson v. Bioremedi Therapeutic
Sys., Inc., 822 F.3d 194, 201 (5th Cir. 2016). However, when no hearing is held, “a district court

must still perform its gatekeeping function by performing some type of Daubert inquiry.” Id. “At
a minimum, a district court must create a record of its Daubert inquiry and ‘articulate its basis
for admitting expert testimony.’ ” Id. (quoting Rodriguez v. Riddell Sports, Inc., 242 F.3d 567,
581 (5th Cir. 2001)).
The role of the trial court is to serve as the gatekeeper for expert testimony by making the
determination of whether the expert opinion is sufficiently reliable. As the Fifth Circuit has held:
[W]hen expert testimony is offered, the trial judge must perform a
screening function to ensure that the expert's opinion is reliable and
relevant to the facts at issue in the case. Daubert went on to make
“general observations” intended to guide a district court's evaluation
of scientific evidence. The nonexclusive list includes “whether [a
theory or technique] can be (and has been) tested,” whether it “has
been subjected to peer review and publication,” the “known or
potential rate of error,” and the “existence and maintenance of
standards controlling the technique's operation,” as well as “general
acceptance.” The [Supreme] Court summarized:

The inquiry envisioned by Rule 702 is, we
emphasize, a flexible one. Its overarching subject is
the scientific validity and thus the evidentiary
relevance and reliability–of the principles that
underlie a proposed submission. The focus, of
course, must be solely on principles and
methodology, not on the conclusions that they
generate.

Watkins, 121 F.3d at 988–89 (internal citations omitted).
The Supreme Court has recognized that not all expert opinion testimony can be measured
by the same exact standard. Rather, the Daubert analysis is a “flexible” one, and “the factors
identified in Daubert may or may not be pertinent in assessing reliability, depending on the
nature of the issue, the expert's particular expertise, and the subject of his testimony.” Kumho,
526 U.S. at 150, cited with approval in Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir.
2002).
Cases following Daubert have expanded upon its original factors and explained
that Daubert’s listing is neither all-encompassing nor is every factor required in every case. See,
e.g., Joiner, 522 U.S. 136, 142 (1997); Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir.
2004). Indeed, courts may look to other factors. Joiner, 522 U.S. at 146.
“Notwithstanding Daubert, the Court remains cognizant that ‘the rejection of expert
testimony is the exception and not the rule.’ ” Johnson v. Samsung Elecs. Am., Inc., 277 F.R.D.
161, 165 (E.D. La. 2011) (citing Fed. R. Evid. 702 advisory committee note to 2000
amendment). Further, as explained in Scordill v. Louisville Ladder Group.:
The Court notes that its role as a gatekeeper does not replace the
traditional adversary system and the place of the jury within the
system. As the Daubert Court noted, “[v]igorous 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.” The Fifth
Circuit has added that, in determining the admissibility of expert
testimony, a district court must defer to “the jury's role as the proper
arbiter of disputes between conflicting opinions. As a general rule,
questions relating to the bases and sources of an expert's opinion
affect the weight to be assigned that opinion rather than its
admissibility and should be left for the jury's consideration.”

No. 02-2565, 2003 WL 22427981, at *3 (E.D. La. Oct. 24, 2003) (Vance, J.) (relying on, among
others, Rock v. Arkansas, 483 U.S. 44, 61 (1987), and United States v. 14.38 Acres of Land,
More or Less Situated in Leflore Cnty., Miss., 80 F.3d 1074, 1077 (5th Cir. 1996)).
IV. DISCUSSION
A. Qualifications
Like Defendants’ attack on Leifer’s qualifications, the Court finds that Plaintiff’s attack
on Bain’s qualifications is not a serious one. Plaintiff complains that Bain’s engineering degree
is in the unrelated fields of chemistry and nuclear science, that he isn’t a licensed professional
engineer and that he hasn’t treated patients in many years. (Doc. 67-1 at 1–2; see also Doc. 77 at
6–7.) These are not grounds for disqualification but rather go to the weight of his testimony.
“Rule 702 does not mandate that an expert be highly qualified in order to testify about a given
issue. Differences in expertise bear chiefly on the weight to be assigned to the testimony by the
trier of fact, not its admissibility.” Carlson v. Bioremedi Therapeutic Sys., Inc., 822 F.3d 194,
199 (5th Cir. 2016) (quoting Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009) The Court has
carefully reviewed Bain’s qualifications and finds they are sufficient.
B. Methodology, Foundation and Reliability
Plaintiff complains about Bain’s methodology, but he concedes Bain uses “the well
accepted damage-based methodology to calculate speeds associated with the subject collision”,
(Doc. 67-1 at 4), and, for his opinions regarding injury severity and causation, principles of
Injury Cause Analysis (ICA), (id. at 7). Plaintiff’s attack does not question the reliability of these
two methodologies but rather, argues that significant errors in his application of same render the
opinions unreliable. (Id. at 4–8.)

“As a general rule, questions relating to the bases and sources of an
expert's opinion affect the weight to be assigned that opinion rather
than its admissibility and should be left for the jury's consideration.”
United States v. 14.38 Acres of Land More Or Less Situated in
Lefore County, Miss., 80 F.3d at 1077 (quoting Viterbo v. Dow
Chemical Co., 826 F.2d 420, 422 (5th Cir. 1987)); see also Imperial
Trading Co. v. Travelers Property Cas. Co. of America, 2009 WL
2356292 at *3 (E.D. La. July 28, 2009). Furthermore, “[m]atters left
for the jury's consideration include the alleged miscalculations,
erroneous assumptions, and inconsistencies that plaintiffs object to.”
Imperial Trading, 2009 WL 2356292 at *3 (citing Southwire Co. v.
J.P. Morgan Chase & Co., [528] F. Supp. 2d 908, 935 (W.D. Wis.
2007)).

Byrd v. Allstate Prop. & Cas. Ins. Co., No. 16-563-JWD-EWD, 2018 WL 4693812, at *5 (M.D.
La. Oct. 1, 2018).
As to the alleged errors in Bain’s calculation of speed and force of impact, the Court
finds these go to the weight and not the admissibility of the evidence and are best left for jury.
Plaintiff of course may challenge these opinions on cross examination and with the testimony of
his own expert. The Court therefore denies Plaintiff’s motion as to these opinions.
There is one group of Bain’s opinions, however, that require closer attention: those which
deal with the alleged lack of injury suffered by Plaintiff. In addition to Plaintiff’s specific attacks
on Bain’s opinions regarding speed and force of impact, Plaintiff argues that a critical piece of
information was lacking in order for Bain to reach a valid injury/causation conclusion based on
the ICA: the position of Plaintiff’s body at the time of impact. “We have no idea exactly how Mr.
Horton was sitting in his vehicle [a]s it swerved (on a slick roadway) to avoid the semi-tractor –
before driving into the tree stump.” (Doc. 67-1 at 8 (emphasis removed).) According to Plaintiff,
that information is required to complete step 2 of the ICA (occupant kinematics) and is necessary
according to Bain’s own supporting literature. (Id.)
Defendants respond by pointing the Court to Bain’s affidavit wherein he maintains,

without citation or reference, that although “knowing the seated position (driver vs passenger),
seatbelt positioning, body positioning with respect to being out of position (i.e. leaning forward,
feet on top of the dash, seatback laid back to sleep) are important to know” in “serious
collisions”, body position is “not important” in low speed collisions “because forces are low and
will not make a difference from an injury potential perspective whether they are sitting upright,
slouched, leaning with their elbows or armrests, etc.” (Doc. 71-1 at 76–77.) Furthermore,
Defendants state that Bain spoke to Plaintiff by telephone who described his position to him:
“Horton stated that he had steered to the left, his right foot was on the brake and that he had
braced for the impact.” (Id. at 77; see also id. at 64.)
The Court notes that Bain’s one-line description of Horton’s “position” based on his
“more than thirty minute[]” telephone call with Plaintiff2 doesn’t describe his position, i.e., was

he upright leaning back against the seat, upright leaning forward, leaning to the right or left? This
dearth of information is consistent with Plaintiff’s statement that “[w]e have no idea exactly how
Mr. Horton was sitting in his vehicle . . . ” (Doc. 67-1 at 8.) In a letter to Defendants’ counsel
describing Bain’s conversation with Horton, Bain adds, “[Horton] usually drives with two hands
on the steering wheel,” (Doc. 71-1 at 64), suggesting Horton wasn’t sure where his hands were at
the time of the collision.

2 Doc. 71-1 at 64. Neither Plaintiff nor Defendants state whether a transcript was made of the conversation. One was
not provided to the Court.
This is not the first time Bain’s opinions have been challenged in a low-speed motor
vehicle collision case based, in part at least, on his lack of knowledge about the occupant’s
position inside the vehicle. The Louisiana Supreme Court recently reversed the court of appeal
and reinstated the district court's ruling to exclude Bain's testimony. Blair v. Coney, 2019-00795

(La. 4/3/20), --- So. 3d ----, 2020 WL 1675992, reh'g denied, 2019-00795 (La. 7/9/20), 298 So.
3d 168 (mem). In Blair, like in the present case, Bain opined:
[A] low speed rear-end motor vehicle collision [ ] subjected [plaintiff] to minimal
forces and accelerations. He was not subjected to forces and acceleration that would
cause serious or long-lasting injuries. Diagnoses and subsequent investigations and
treatments related to [Plaintiff's] degenerative cervical spine pathologies are not
causally related to the subject event.

Blair v. Coney, 2020 WL 1675992, at *2.
In upholding the district court’s exclusion of Bain, the court reviewed other state and
federal court cases in Louisiana which had ruled on similar challenges to Bain’s expert
testimony.
The Third Circuit Court of Appeal addressed the admissibility of Dr.
Bain's testimony in Godchaux v. Peerless Ins. Co., 2013-1083 (La.
App. 3 Cir. 6/4/14), 140 So. 3d 817, a case wherein plaintiffs argued
that the jury failed to provide sufficient damage awards and that such
failure was related to the district court's error in admitting Dr. Bain's
testimony. Id. at 1. In Godchaux, Dr. Bain was introduced as an
expert in biomechanics and injury causation analysis. Id. at 3. The
court noted that Dr. Bain never spoke to plaintiff, never contacted
plaintiff's physicians, never visited the accident scene, never
inspected plaintiff's vehicle, never spoke with a damage appraiser,
did not know the body position of the plaintiff at the time of the
accident, did not consider the angle of impact or the dimensions of
the vehicular head rack that struck plaintiff's vehicle, and failed to
conduct an analysis of force using the same type of vehicle involved
in the collision. Id. at 8.
The court of appeal in Godchaux reversed the district court's ruling
admitting Dr. Bain's testimony, finding that although Dr. Bain likely
qualified as an expert in biomechanics and injury causation analysis,
his opinions and methods were nonetheless unreliable. Id. at 4.
Considering that Dr. Bain did not recreate the actual accident and
only relied on a crash analysis of a different make and model to
assess the force asserted on the plaintiff's vehicle, the Godchaux
court concluded Dr. Bain's findings were “inherently suspect”
without evidence of support from the scientific community. Id. at 8.
Since Dr. Bain did not testify as to the reliability or potential errors
in the crash analysis, the court found the comparative data on which
he relied was also “inherently suspect.” Id. Moreover, the court held
that Dr. Bain's testimony did not assist the jury in determining a fact
in issue, reasoning that force-of-impact testimony cannot be used to
disprove causation. See id. at 9.10 Accordingly, the court of appeal
in Godchaux found that the trial court abused its discretion in
permitting Dr. Bain to testify. Id. at 10. A writ application was filed
with this Court, which we denied. Godchaux v. Peerless Ins. Co.,
2014-1411 (La. 10/3/14), 149 So. 3d 801.
The federal district courts in Louisiana have both excluded and
admitted Dr. Bain's testimony on force of impact and injury
causation. See e.g., Parker v. NGM Ins. Co., 2016 WL 3546325
(E.D. La. 2016) (finding Dr. Bain was qualified to testify as to
accident reconstruction but that his methods were unreliable and
further finding Dr. Bain was not qualified to testify as to medical
causation because he was not board certified in a relevant specialty
of medicine); Breaud v. Werner, 2006 WL 8432363 (M.D. La.
2006) (finding Dr. Bain's testimony was based on insufficient facts
where Dr. Bain himself admitted there were dents in the vehicle he
could not see in the black and white photographs he reviewed); cf.
Burgo v. Davis, 2016 WL 3257589 (E.D. La. 2016) (expressing
doubt as to whether Dr. Bain is qualified to opine on the relationship
of the seriousness of the impact and plaintiff's spinal injuries in light
of his lack of specialized expertise but nevertheless finding “[t]he
fact Dr. Bain is not a neurologist, neurosurgeon, or orthopedic
surgeon ultimately relates to his credibility, not the admissibility of
his testimony.”); White v. Great West Cas. Co., 2009 WL 2747795
(W.D. La. 2009) (also finding Dr. Bain's medical experience relates
to admissibility rather than credibility and concluding Dr. Bain's
opinions were “sufficiently sound and based on facts sufficient to
satisfy [FED. R. EVID. 702]’s reliability requirement.”).
Ultimately, the decision in each case is fact specific, turning on the
areas of expertise in which Dr. Bain is attempting to testify, the
evidence on which he relied, and the specific methodology
employed by Dr. Bain in reaching his conclusions.
Blair v. Coney, 2020 WL 1675992, at *5–6.
In his opposition, Defendant points to cases where Daubert challenges to Bain’s opinions
were rejected and Bain was allowed to testify without limitation. (Doc. 71 at 5, 11–12; Doc. 71-1
at 79 et seq.) While both sets of cases are instructive, they are certainly not determinative. The

question for this Court is whether Bain’s opinions in this case have sufficient reliability to pass
Daubert muster. With respect to his opinions regarding injury severity and injury causation,
Plaintiff has raised serious and legitimate concerns. However, the Court is unable based on the
record before it to grant or deny the motion. Therefore, the Court will set a hearing to receive
additional evidence from both Plaintiff and Defendants that informs the question of the reliability
of Bain’s opinions regarding injury severity (or lack thereof) and injury causation. The Court
expects, at a minimum, to hear testimony from Dr. Bain on these issues. Plaintiff will be allowed
to offer evidence relevant to these issues.
V. CONCLUSION
For the foregoing reasons, the Court denies in part and defers in part Plaintiff’s the

Daubert Motion in Limine to Exclude Dr. Charles Bain (Doc. 67). The Court will issue an order
setting the hearing date.
Signed in Baton Rouge, Louisiana, on September 17, 2021.

S

JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10192015. Public record. Not legal advice.