The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CHRISTIAN OZUNA CIVIL ACTION
VERSUS
22-915-SDD-RLB
VICTOR PENA, ET AL.
OMNIBUS RULING
Before the Court are Defendants’ Motion in Limine to Exclude Expert Testimony
from Officer Joshua Dunaway,1 Motion in Limine to Exclude Future Medical Care
Evidence,2 Motion in Limine to Exclude Causation Opinion of Dr. Sean Graham,3 and
Motion in Limine to Exclude Evidence of Future Earnings Loss.4 The Plaintiff opposes5
all the Motions in Limine and Defendants have filed replies.6
I. LEGAL STANDARD: EVALUATION AND ADMISSION OF OPINION TESTIMONY
Opinion testimony is admissible under the Federal Rules of Evidence (“FRE”), if
(1) the witness is qualified as an expert by knowledge, skill, experience, training, or
education, (2) the expert’s reasoning or methodology underlying the testimony is
sufficiently reliable, and (3) the testimony is relevant.7 The party offering expert testimony
is not required to establish the correctness of the opinion but the proponent of the opinion
testimony bears the burden of establishing “by a preponderance of the evidence that the
1 Rec. Doc. 29.
2 Rec. Doc. 30.
3 Rec. Doc. 31.
4 Rec. Doc. 32.
5 Rec. Docs. 36, 34, 33, and 35.
6 Rec. Docs. 45, 44, and 43.
7 Fed. R. Evid. 702; Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
testimony is reliable.”8 “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 FRE 702.”9
The proponent of expert opinion testimony has the burden of establishing that the
pertinent admissibility requirements are met by a preponderance of the evidence.10 The
trial judge in all cases of proffered expert testimony must determine its reliability. An
opinion must be properly grounded, well-reasoned, and not speculative before it can be
admitted.11 The expert's “reasoning or methodology [must fit] the facts of the case.”12
“[O]pinions based on experience are not inherently unreliable” but an expert must “show
how his experience or expertise led to his conclusions.”13
FRE 702 was amended in 2023 in two respects. First, to emphasize that 702
factors must be demonstrated by a preponderance of the evidence. The official comments
explain that this “was made necessary by the courts that have failed to apply correctly the
reliability standard of th[e] rule“14 Second, Rule 702(d) was amended to emphasize that
an expert’s opinion “must stay within the bounds of what can be concluded from a reliable
application of the expert’s basis and methodology.”15
8 Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir.1998), cert. denied, 526 U.S. 1064 (1999).
9 Munoz v. Orr, 200 F.3d 291, 301 (5th Cir. 2000); Ricks v. City of Alexandria, 2014 WL 4274144, at *8
(W.D.La., 2014).
10 Bourjaily v. United States, 483 U.S. 171 (1987).
11 Lewis v. Cain, 605 F. Supp. 3d 858, 861 (M.D. La. 2022).
12 Burst v. Shell Oil Co., 120 F. Supp. 3d 547, 551 (E.D. La. 2015); see also Burleson v. Texas Dep't of Crim.
Just., 393 F.3d 577, 584-85 (5th Cir. 2004) (“Trial courts must make ‘a preliminary assessment of whether
the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning
or methodology properly can be applied to the facts in issue.” (citing Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579, 592–93 (1993)).
13 Fields v. QBE Specialty Ins. Co., 2022 WL 2067835, at *2 (5th Cir. June 8, 2022).
14 Fed. R. Evid. 702 (2023 Amendments).
15 Id.
In opposition to the Defendants’ motion to exclude future medical and future
earnings loss opinions, the Plaintiff argues that questions relating to the bases and
sources of the opinions affect the weight that should be assigned to the opinion, “rather
than its admissibility, and should be left for the jury’s consideration.”16 Punting the
reliability requirements of Rule 702 to the jury is inconsistent with this Court’s gatekeeping
function.
II. Motion to Exclude Expert Testimony from Officer Joshua Dunaway (Rec.
Doc. 29)
Officer Joshua Dunaway of the Gonzales Police Department investigated the
automobile accident made the subject of this suit and prepared the Uniform Motor Vehicle
Crash Report (the “Crash Report”).17 This lawsuit arises out of an auto accident that
occurred in Ascension Parish on September 12, 2021, involving a vehicle operated by
plaintiff, Christian Ozuna (“Plaintiff”), and a vehicle operated by defendant, Victor Pena.18
According to Officer Dunaway’s investigation, the Defendant driver was at fault in causing
the accident. Defendant seeks to exclude the opinion of Officer Dunaway. Defendants
argue that “police officers, who are not otherwise qualified as an expert in a relevant field,
may not offer testimony as to causation of a traffic accident.”19 Defendants further argue
that under FRE 701 “[a]n officer’s lay-witness testimony is limited to personal
observations made at the scene.”20 This is an accurate statement of law.
16 Rec. Doc. 35, p. 6 (citing Scordill v. Louisville Ladder Grp., L.L.C., 2003 WL 22427981, at *3 (E.D. La.
2003).
17 Rec. Doc. 36-1.
18 Powerline Services, Inc., Defendant Pena’s employer, and Arch Insurance Company, Powerline Services,
Inc.’s insurance company are also named defendants.
19 Rec. Doc. 29-1, p. 2, citing Smith v. Progressive Cty. Mut. Ins. Co., et al., (E.D. La. 3/1/12) 2012 WL
702061, at *2 (citing Duhon v. Marceaux, 2002 WL 432383, at *4 (5th Cir. 2002).
20 Rec. Doc. 29-1, pp. 2–3.
Plaintiff counters that Officer Dunaway is qualified as an accident reconstruction
expert, having “completed formal training in Crash Investigation, Vehicle Dynamics
Reconstruction, Pedestrian Reconstruction and Drone Reconstruction through
Northwestern University in Chicago, Illinois.”21 Plaintiff further argues that Officer
Dunaway may alternatively provide lay opinion testimony as to matters within his personal
knowledge based upon his "rational perception of the facts and recollections pertaining
to the scene of the accident."22
The Defendants rely principally on Iglinsky v. Player,23 which the Plaintiff contends
is distinguishable. In Iglinsky, the court granted a motion in limine as to causation opinion
testimony of the investigating officer. The court in Iglinsky held that a non-expert
investigating officer who investigated the underlying auto accident would be “permitted to
testify as to other facts and circumstances surrounding the subject accident that he
personally observed (such as where the vehicle was located when he arrived and any
damage to the vehicle),” but would “not be permitted to testify as to his opinions
concerning the cause of the accident in question.”24 In particular, the trooper was
prohibited from “testify[ing] about crucial fact determinations concerning the accident's
cause and liability, such as whether [the defendant driver] was acting carelessly or
inattentively at the time of the accident.” 25
21 Rec. Doc. 36, p. 2.
22 Rec. Doc. 36, p. 4 (citing State v. LeBlanc, 2005-0885 (La. App. 1 Cir. 2/10/06), 928 So.2d 599, 603).
23 2010 WL 4925000, at *4 (M.D. La. July 16, 2010), Adopting Report and Recommendation, 2010 WL
4905984 (M.D. La. Nov. 24, 2010).
24 Report and Recommendation, Id.
25 Id.
In opposition the Plaintiff points out that in this case, Officer Dunaway is a qualified
accident reconstructionist. Plaintiff submits that “if the proper foundation can be laid for
his expert qualification, he should be permitted to testify within the scope of FRE 701.”26
In reply Defendants argue that Officer Dunaway has never testified in court as an
expert in accident reconstruction. However, Defendants concede that the officer’s ACTAR
certification is common among reconstructionists who testify as experts in court.27
ACTAR offers an independent credentialing examination that objectively
assesses a candidate’s comprehension and application of minimum training
standards of a forensic specialist in the field of motor vehicle accident
investigation and reconstruction. An individual possessing the ACTAR
certification is recognized as having demonstrated competence with respect
to the requisite training standards for accident reconstruction established by
the National Traffic Safety Administration (NHTSA).28
Although conceding Officer Dunaway’s qualifications, Defendants argue that his
causation opinion is not a permissive legal opinion. The Court disagrees. Causation is a
fact question for the jury29 and one of the FRE 702 inquiries is whether the proposed
opinion testimony would assist to the trier of fact.
The Court will refer the Motion in Limine to the merits. The Motion to Exclude
Expert Testimony of Officer Joshua Dunaway pretrial30 is hereby DENIED without
prejudice, all objections are reserved to trial.
III. Motion in Limine to Exclude Future-Care Evidence (Rec. Doc. 30)
The Defendants move to exclude opinion testimony from two physicians regarding
anticipated medical treatment that the Plaintiff may require for the remainder of his life
26 Rec. Doc. 36, p. 5.
27 Rec. Doc. 45, p. 2.
28 Id.
29 Stevens v. Energy XXI GOM, LLC, 2013 WL 4051036, at *4 (M.D. La. Aug. 9, 2013).
30 Rec. Doc. 29.
expectancy (47 years). Specifically, Defendants move to exclude opinion testimony from
Dr. Whatley regarding future care for the Plaintiff’s right knee and testimony from Dr.
Oberlander regarding future lumbar spine surgeries in the next 25 years.31
1. Dr. Whatley
The Plaintiff suffered a right closed tibia/fibula fracture in the accident. He was
treated for this injury at Our Lady of the Lake Hospital by Dr. Marshall Whatley, an
orthopedic surgeon, board certified in orthopedic trauma.32 On September 12, 2021 Dr
Whatley performed “intramedullary nailing for his right distal tibial shaft fracture.”33 Dr.
Whatley continued to treat the Plaintiff post-operatively. Plaintiff represents that he will
undergo hardware removal from his lower right leg. However, Dr. Whatley “wasn’t
anticipating anything like hardware removal.”34 Following the accident and tibia surgery
the Plaintiff developed right knee pain. The Plaintiff treated with Dr. Sean Graham for right
leg and knee pain management. In February 2022, two months after the tibia surgery, Dr.
Whatley released the Plaintiff without restrictions.35 In April 2023, the Plaintiff returned to
Dr. Whatley complaining of right knee pain. Dr. Whatley recommended treatment with an
over-the-counter anti-inflammatory.36 Most recently, Dr. Whatley gave the Plaintiff a
steroid injection in the right knee. In November 2023, the Plaintiff reported continuing pain
in his right knee.
31 Rec. Doc. 30.
32 Rec. Doc. 30-3, pp. 5–6.
33 Rec. Doc. 30-3, p. 16. A metal rod is “[inserted] inside the marrow cavity of the tibia”, is fixated by screws
at both ends, which “holds the alignment of the tibia and allows the tibia to heal and in good alignment.” Dr.
Whatley deposition, Rec. Doc. 30-3, p. 16.
34 Rec. Doc. 30-3, p. 53.
35 Rec. Doc. 30-3, pp. 30–32.
36 Rec. Doc. 30-3, p. 51.
A treating physician is generally qualified to testify about a patient's past and
expected future treatment, provided the foundational admissibility requirements of Rule
702°’ are satisfied. Defendants argue that Dr. Whatley’s future care opinions are based
on unsupported speculation and subjective belief and are therefore unreliable and must
be excluded under FRE 702.
Dr. Whatley’s opinion that are the subject of the instant Motion in Limine are:
e Plaintiff will require two to four intra-articular steroid injections in the right knee
each year for remainder of life (i.e., 95 to 191 future knee injections for his life
expectancy of 47 years);
e Plaintiff will require two to four orthopedic office visits every year for remainder of life
(.e., 95 to 191 future office visits over next 47 years);
e Plaintiff will require annual x-rays of the right Knee for the next 47 years;
e Plaintiff will require one daily tablet of Meloxicam, 15mg, for life (i.e., 17,155 tablets
of Meloxicam over the next 47 years).
Dr. Whatley estimates that the total cost for this future care will be between
$59,163.75 and $93,937.00.
Dr. Whatley testified that “it's more likely that he’s going to need further treatment
for his knee than it is unlikely.”°> However, as for the need for future office visits and
injections, Dr. Whatley conceded that he could not say that more probably than not the
Plaintiff would require two to four injections per year in the future.°° Dr. Whatley explained
that he “can’t say” more likely than not that the Plaintiff will need office visits or injections
two to four times a year in the future “because he’s only seen me . . . once in the past two
37 Federal Rules of Evidence (“FRE”).
38 Rec. Doc. 30-3, p. 56.
39 Q: “[I]t sounds like you can't say more likely than not, that he's going to need two to four injections per
year?
A: | can't.” Rec. Doc. 34-3, Dr. Whatley Deposition Transcript 45:14—-17.
Page 7 of 13
years.”40 The Plaintiff had only one office visit in 2022 and one office visit in 2023 and the
Plaintiff has had only one steroid injection to his knee since the accident.41 The Court
finds that there are insufficient facts or data from which Dr. Whatley could reliably
conclude that the Plaintiff will, more likely than not, require two to four injections per year
for the duration of his life. Dr. Whatley will not be permitted to give opinion testimony
regarding the duration and frequency of possible right knee injections in the future.
As for the need for annual x-rays for the rest of the Plaintiff’s life, Dr. Whatley
testified that the need for future x-rays was wholly dependent on whether the Plaintiff
presented for clinical exams in the future. Dr. Whatley explained that “if he sees me and
his x-rays are more than a year old, we are probably going to get some x-rays of his
knee.”42 Dr. Whatley may testify to the clinical need for updated x-rays if the Plaintiff
continues to treat for knee pain. But the Court finds that there is insufficient facts or data
from which Dr. Whatley could reliably conclude that the Plaintiff will, more likely than not,
require annual x-rays for the remainder of his life. Dr. Whatley will not be permitted to
testify to the frequency of anticipated future x-rays.
As for the Plaintiff’s lifetime need for the prescription anti-inflammatory, Meloxicam,
the Court finds that there is insufficient facts or data from which Dr. Whatley could reliably
conclude that the Plaintiff will, more likely than not, require daily prescription anti-
inflammatory for the rest of his life. As of Dr. Whatley’s deposition on October 13, 2023
Dr. Whatley recommended over-the-counter NSAID as needed and Dr. Whatley’s chart
40 Rec. Doc. 30-3, p. 48.
41 Rec. Doc. 30-3, pp. 33, 38 and 48.
42 Rec. Doc. 30-3, p. 49.
did not reflect any recent prescription for Meloxicam.43 The Motion in Limine as to the
need for long-term future Meloxicam therapy shall be granted.
2. Dr. Oberlander
Dr. Eric Oberlander, a board-certified Neurosurgeon clinically evaluated Plaintiff a
single time on May 5, 2023. Since the accident the Plaintiff has treated with Dr. Graham,
a pain management specialist for lower back pain.44 The Defendants do not dispute Dr.
Graham’s opinion recommending that the Plaintiff undergo five years of future lumbar
epidural steroid injections (ESI’s) at L4-S1, with associated office visits, physical therapy,
diagnostic scans and medication.45 Defendants argue that Dr. Oberlander’s opinions of
the need for future lumbar surgeries are unsupported, speculative and unreliable. Dr.
Oberlander testified that surgery is not recommended unless and until the patient fails
conservative therapies and that the aim of the epidural steroid injections is to avoid
surgery.46 Dr. Oberlander supports his opinion that the Plaintiff will require two future
lumbar surgeries47 based on the Plaintiff’s “radiology findings and the fact that these
issues in his back usually they just typically get worse. The degenerative changes he has
usually get worse as the years go by.”48 He explained that “overweight folks with bad
backs end -- end up typically not doing well over time.”49 Dr. Oberlander reiterated
43 Rec. Doc. 30-3, p. 51.
44 According to Dr. Oberlander, Dr. Graham is recognized as “the top trained pain management doctor in
Louisiana. He's done a two-year fellowship at the Cleveland Clinic, which is -- is by most standards is top
pain management fellowship. . . he's especially well thought of and well-trained.” Rec. Doc. 30-2, pp. 23–
24.
45 Rec. Doc. 30-1, p. 1.
46 Rec. Doc. 30-2, pp. 22–23.
47 According to Dr. Oberlander, “[A]fter the two-level fusion [at L4-5} 25 years later he'll need an adjacent
level fusion at L3-4.” Rec. Doc. 30-2, p. 28.
48 Rec. Doc. 30-2, p. 24.
49 Rec. Doc. 30-2, p. 25.
throughout his deposition, that the Plaintiff will more probably than not require a future
lumbar fusion.50
The Court finds Dr. Oberlander’s opinions regarding the need for future lumbar
surgeries to be unsubstantiated by the current facts of the case. The Plaintiff is still
treating conservatively. There is no present indication that the efficacy of this conservative
treatment is waning or likely to fail. On the current record Dr. Oberlander’s opinions are
unreliable speculative predictions. The Court GRANTS the Motion in Limine to exclude
opinion testimony of Dr. Oberlander (Rec. Doc. 30) as to the need for future back surgery,
without prejudice.
For the foregoing reasons the Motion to Exclude opinion testimony from Dr.
Whatley is GRANTED and the Motion to Exclude opinion testimony from Dr. Oberlander
is GRANTED, without prejudice.
The Court GRANTS the Motion to exclude corresponding testimony regarding the
costs of future medical care which have been excluded by this Ruling.
IV. Motion in Limine to Exclude Causation Opinion of Dr. Sean Graham (Rec.
Doc. 31)
Defendants move to exclude opinion testimony from Dr. Graham, the Plaintiff’s
treating pain management doctor, that the Plaintiff’s injuries were caused by the subject
accident. Defendant brings this Motion in anticipation that Dr. Graham will offer opinion
testimony that “the mechanics of force from [the subject] car accident could [have] likely
caused Plaintiff’s disc herniations he observed in Plaintiff’s MRI study.”51 In opposition the
Plaintiff argues that “Defendants misrepresent Dr. Graham’s opinion by claiming the
50 Rec. Doc. 30-2, pp. 18, 25.
51 Rec. Doc. 31-5, p. 6.
‘central premise’ to his theory on causation is that the mechanics of force from a car
accident could likely cause Ozuna’s herniations” and that “Dr. Graham does not seek to
testify concerning the mechanics and severity of impact forces, nor their anticipated effect
on the human body.”52 Trial is a dynamic process. The Court declines to make a pretrial
evidentiary decision based on what the movant supposes Dr. Graham will say. As the
Court reads his deposition, Dr. Graham is of the view that as between Physical Therapy
and the subject car accident, he thought it more likely that the subject car accident caused
the Plaintiff’s lumbar disc injuries. Whether Dr. Graham is asked to opine on the relative
forces of physical therapy versus this car accident is best left for objection at trial.
The Motion in Limine53 is DENIED. Objections are reserved to the trial on the
merits.
V. Motion in Limine to Exclude Evidence of Future Earnings Loss (Rec. Doc.
32)
Defendant moves to exclude opinion testimony from Plaintiff’s retained life care
planner, Elizabeth Peralta and Economist, Dr. Randy Rice regarding future wage loss.
The gravamen of the Motion is that the evidence of future medical care, which includes
one and possibly two lumbar surgeries is too speculative and tenuous to support evidence
of future wage loss. Defendants argue that Plaintiff has continued to work in his pre-injury
occupation and has not completed the full course of ESI’s recommended by Dr. Graham,
which if effective would alleviate the need for a future back surgery. Following Dr.
Oberlander’s evaluation and opinion, the Plaintiff obtained a revised assessment of lost
future earnings. On the assumption that the Plaintiff will continue to work in his current
52 Rec. Doc. 33, p. 6.
53 Rec. Doc. 31.
position for five years, but thereafter be limited to a light duty post-lumbar surgery,
Plaintiff’s economic experts conclude that Plaintiff will sustain $976,460 over a remaining
work-life expectancy of 29.07 years.54
Work restrictions resulting from future lumbar surgery may affect the Plaintiff’s
ability to continue in his occupation. However, the Court finds that without a
preponderance of evidence that conservative treatment will fail Dr. Oberlander’s opinions
about the need for future back surgery are inadmissible unreliable speculative predictions.
The surgical opinion which underlie the life care plan and future wage loss calculations
are tenuous, conditional and speculative.
Plaintiff urges the Court to let the jury sort it out, advancing the argument that “[a]s
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.”55 The official committee notes accompanying the 2023 revisions
to FRE 702 make clear that courts “[holding] that the critical questions of the sufficiency
of an expert’s bases (sic) and . . . methodology, are questions of weight and not
admissibility . . . are an incorrect application of Rules 702 and 104(a).”56 An opinion that
rests upon insufficient facts (facts not supported by a preponderance of evidence) is
unreliable, and the reliability of an expert's opinion may not be left to juror comprehension.
The Plaintiff has not demonstrated a preponderance of evidence that supports Dr.
Oberlander’s assumptions which resulted in his opinions about the need for future back
54 Rec. Doc. 32-5.
55 Rec. Doc. 35, citing United States v. 14.38 Acres of Land, 80 F.3d 1074, 1077 (5th Cir. 1996) (quoting
Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987)); see also Imperial Trading Co. v. Travelers
Prop. Cas. Co. of Am., No. 06-4262, 2009 WL 2356292, at *3 (E.D. La. July 28, 2009).
56 Fed. R. Evid. 702 (2023 Amendments).
pay. The opinions regarding future wage loss which rest on the unreliable speculative
prediction of future surgery are likewise inadmissible. The Defendants’ Motion to Exclude
Future Wage Loss Opinions57 is hereby GRANTED.
IT IS SO ORDERED.
Baton Rouge, Louisiana, this _1_2_th day of June, 2024.
S
________________________________
SHELLY D. DICK
CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA
57 Rec. Doc. 32.