Stanley v. Wifa

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

TIANA STANLEY, )

)

Plaintiff, )

)

-vs- ) Case No. CIV-22-159-F

)

HENRY NENIEBARI WIFA and )

HALLIBURTON ENERGY )

SERVICES, INC., )

)

Defendants. )

ORDER

Defendants’ post-trial motions are before the court. They consist of

defendants’ Rule 50(b) motion for judgment as a matter of law (doc. no. 150) and

their Rule 59(a) motion for new trial (doc. no. 151). Both motions have been fully

briefed and are ripe for decision.

I. The Rule 50(b) motion for judgment as a matter of law

This case arises from a car-truck accident that occurred on a rural Oklahoma

road in September, 2019. Plaintiff was seriously injured in the accident. The claims

that were submitted to the jury were claims of primary negligence on the part of the

driver, Henry Wifa, and negligent entrustment on the part of the corporate defendant,

Halliburton Energy Services, Inc. At the summary judgment stage, the court granted

Halliburton’s motion for summary judgment on plaintiff’s negligent hiring claim but

denied the motion for summary judgment as to the negligent entrustment claim. The

court also declined, at the summary judgment stage, to grant summary judgment as

to recoverability of punitive damages. Doc. no. 115. At trial, the court declined to

submit punitive damages but did submit the claims of primary negligence (e.g., the

driver’s negligence) and negligent entrustment which remained for trial after

consideration of the motion for summary judgment.

As an initial matter, it should be borne in mind that a motion for judgment as

a matter of law in a case triable to a jury must be assessed on a stringent standard,

favoring the non-movant. The motion should be granted only if the evidence points

but one way and is susceptible to no reasonable inferences which may support the

opposing party’s position. Finley v. United States, 82 F.3d 966, 968 (10th Cir.

1996). The non-movant gets the benefit of “all reasonable inferences.” Id. Thus,

bearing that stringent standard in mind, it makes no difference that, as in this case,

the verdicts of the judge would likely have been different than the verdicts reached

by the jury. (As the undersigned observed at trial, this was not a compelling case of

negligent entrustment.)

Another preliminary matter should be addressed. Halliburton accurately,

albeit a bit selectively, quotes the court’s brief comments when Halliburton’s motion

for judgment as a matter of law was denied at the end of the trial. Doc. no. 150, at

4. In so ruling, the court focused on Mr. Wifa’s driving record. From this,

Halliburton extrapolates that the court applied the wrong standard because it “did

not consider or sufficiently consider” the issue of Halliburton’s knowledge of Mr.

Wifa’s driving record. Id. at 14. The complete version of the court’s ruling on the

submissibility of the negligent entrustment claim is as follows:

I address first the negligent entrustment claim. I have carefully listened

to, evaluated, and considered the evidence in support of the negligent

entrustment claim. Obviously, as counsel on both sides are well aware,

I also carefully considered that evidence as it was then presented at the

summary judgment stage. I adhere to my summary judgment ruling. I

conclude that there is a fact issue under the Oklahoma cases defining

the scope of liability and the prerequisites to liability for negligent

entrustment. In my view, it is not a compelling case of negligent

entrustment, but I do find and conclude that it is a submissible case of

negligent entrustment. So both negligent entrustment and, if you will,

primary negligence of the driver will be submitted to the jury.

Doc. no. 150-2, at 3 (transcript p. 215) (emphasis added).

As was made clear at the summary judgment stage, the court was well aware

of the elements of negligent entrustment under Oklahoma law:

Liability for negligent entrustment of a motor vehicle may be imposed

only when the following elements are shown: (1) a person who owns

or has possession and control of a motor vehicle allowed another driver

to operate the motor vehicle; (2) the person knew or reasonably should

have known that the other driver was careless, reckless and

incompetent; and (3) an injury was caused by the careless and reckless

driving of the motor vehicle. Green v. Harris, 70 P.3d 866, 871 (Okla.

2003); see also, Sheffer v. Carolina Forge Co, LLC, 306 P.3d 544, 548

(Okla. 2013) (“Negligent entrustment of an automobile occurs when

the automobile is supplied, directly or through a third person, for the

use of another whom the supplier knows, or shown [sic] know, because

of youth, inexperience, or otherwise, is likely to use it in a manner

involving unreasonable risk of bodily harm to others, with liability for

the harm caused thereby.”) (citing Green, 70 P.3d at 868 n. 5); Fox v.

Mize, 428 P.3d 314, 320 (Okla. 2018) (“Negligent entrustment requires

proof that ‘an individual supplies a chattel for the use of another whom

the supplier knows or should know is likely to use the chattel in a way

dangerous and likely to cause harm to others.’”) (quoting Pierce v.

Okla. Prop. & Cas. Ins. Co., 901 P.2d 819, 823 (Okla. 1995)).

Doc. no. 115 (summary judgment order), at 4 (emphasis added).

When Halliburton entrusted the truck to Mr. Wifa, it was obviously

chargeable with knowledge of Mr. Wifa’s driving record, as reflected in

Halliburton’s personnel file for Mr. Wifa. When evaluating a negligent entrustment

claim, whether as a matter of law or in weighing conflicting evidence, it is logical,

of course, to consider the seriousness of the previous incidents, the remoteness in

time of those incidents, and the similarity of those incidents to the accident being

litigated. And the previous incidents are irrelevant if the employer had no

knowledge of them (or was not otherwise chargeable with that knowledge).

Aside from speeding violations, which the court is content to ignore for

present purposes, Halliburton’s personnel file for Mr. Wifa reflected (i) a failure to

yield, resulting in an accident in November, 2007, (ii) a failure to control speed

resulting in an accident in February, 2014, (iii) a citation for unsafe speed resulting

in loss of control on a Texas highway, including “derailing,” in 2016, (iv) a U-turn

incident on a two-lane highway in 2018 (16 months before the accident in this case),

found by Halliburton to have amounted to “unacceptable performance,” putting “not

only your own safety at risk, but also the lives and safety of others,” and resulting in

a three-day suspension, and (v) deficiencies noted by Halliburton in several areas in

2017, including problems in the categories of “does not hit nearby vehicles or

stationary objects” and “keeps right and in own lane,” resulting in recommendation

of a driving mentor. Doc. no. 159 (plaintiff’s trial exhibit no. 6), at HESI 107, 118,

204, 226, 256, 297; doc. no. 158-2, at ECF 6 (transcript p. 65).

This record, assuredly, is not sufficient to subject Mr. Wifa or Halliburton to

eternal damnation, but it is, in the court’s view, sufficient to make the negligent

entrustment claim submissible to the jury. The point here is that the egregiousness

of the facts underlying the negligent entrustment claim can be argued either way–

and that is precisely what makes the claim submissible to the jury. The court

accordingly concludes that Halliburton’s renewed motion for judgment as a matter

of law, doc. no. 150, should be denied.

II. The Rule 59(a) motion for new trial

A. Introduction

Defendants move for a new trial under Rule 59(a), arguing that the court

allowed plaintiff’s treating physician, Dr. Scott de la Garza, to cover more ground

in his trial testimony than should have been permitted from a treating physician and

that the defendants were thereby prejudiced. An understanding of what happened,

and why, requires a review of relevant events before and during the May, 2023 trial.

B. The sequence of events through trial

1. Plaintiff’s witness list

Plaintiff filed her final witness list on January 10, 2023. Unsurprisingly, she

listed Dr. de la Garza as a witness. The witness list described his anticipated

testimony as follows: “Scope of Plaintiff’s injuries and treatment from subject

accident; pre-accident medical history to affected parts of Plaintiff’s body;

prospective medical treatment and estimated cost thereof.” Doc. no. 45.

2. The March 17 order re: scope of Dr. de la Garza’s testimony

On February 1, defendants filed a motion in limine seeking to restrict the

scope of Dr. de la Garza’s testimony, arguing that, since his “expert opinions and

testimony” had not been disclosed as required by Rule 26(a), the court should

“exclude or preemptively preclude the presentation of improper expert opinions at

the trial in this matter.” Doc. no. 53, at 7. Thus, the motion presented the

oft-recurring (and often vexing) problem of how far a treating physician–obviously

an expert–should be permitted to go in testifying about matters relating to the

patient’s injuries. On March 17, the court entered an order on the motion in limine,

effectively granting the motion in part, defining the limits of Dr. de la Garza’s

testimony. As relevant here, that order said:

Dr. de la Garza has not been disclosed as an expert witness pursuant to

Rule 26(a)(2)(A), Fed. R. Civ. P. Consistent with that, Dr. de la Garza

has not rendered an expert report pursuant to Rule 26(a)(2)(B), and no

Rule 26(a)(2)(C) summary disclosure has been made. Consequently,

Dr. de la Garza will not be available to plaintiff as a source of Rule 702

expert testimony. The court must accordingly determine, within that

constraint, the permissible scope of Dr. de la Garza’s trial testimony.

Doc. no. 83, at 1-2.

After discussing Rules 701 and 702 of the Federal Rules of Evidence and Rule

26 of the civil rules, the court discussed the treatment of this issue by Judge

Browning of the District of New Mexico:

[T]he court does note the exhaustive treatment given this problem by

Judge Browning, of the District of New Mexico, in Walker v. Spina,

2019 WL 145626 (D.N.M. Jan. 9, 2019). As might be expected, the

court’s beginning point in Walker was the proposition that “[i]f a

treating physician testifies as an expert witness, the testimony’s

proponent must disclose the treating physician as an expert and produce

an expert report, or a summary of the expert’s subject matter and the

proposed testimony.” Id. at *17 (citing Rule 26(a)(2)(B) and (C)). But

“[a]fter the 2000 amendments, a treating physician still acts as a lay

witness when testifying to his treating or caring for a patient.” Id. at

*19. Further treatment of this issue (treatment with which the

undersigned agrees) appears in the Walker v. Spina decision at *21, et

seq.

* * *

Taking into account the language of Rules 701 and 702, as applied to

treating physician testimony in various contexts, it remains true that in

situations in which no Rule 26(a)(2)(B) expert report has been rendered

and no Rule 26(a)(2)(C) summary disclosure has been made, the line

between permissible and impermissible testimony from a treating

physician will sometimes be difficult to draw.

* * *

Bearing all of these matters in mind, the court concludes, on the basis

of the facts presented by this motion, that it will be permissible for Dr.

de la Garza to testify as to: (i) his clinical observations as to the nature

and extent of plaintiff’s injuries (both initially and as her condition

evolved over time), (ii) the history given by Ms. Stanley (including her

version of causation), (iii) the treatment he provided, (iv) the reasons

for the treatment he provided, (v) the pain or physical limitations

reported by Ms. Stanley or clinically observed by Dr. de la Garza at

various stages of his treatment of her, (vi) future treatment he has

actually recommended, and (vii) other objectively observable facts,

even if Dr. de la Garza’s medical expertise helps make his description

more understandable.

Off limits, for lack of a Rule 26(a)(2)(B) expert report or a Rule

26(a)(2)(C) summary disclosure, will be testimony as to prospective

medical treatment that Dr. de la Garza has not actually recommended

and his estimate of the cost of future medical treatment (whether or not

he has recommended it).

Id. at 2-4 (emphasis added).

Defendants never took issue with this delineation of the permissible scope of

Dr. de la Garza’s testimony. In fact, they have acknowledged that “those seven

topics [quoted above] are consistent with precedent.” Doc. no. 151, at 19, n. 8.1

After the court entered its March 17 order, and as a precautionary measure,

lest Dr. de la Garza’s knowledge (and resulting trial testimony) be tainted with

foreknowledge of the anticipated testimony of defendants’ medical expert, Dr.

Alexander L’Heureux, plaintiff’s counsel retrieved from Dr. de la Garza, before he

had reviewed them, the “report and exhibits” generated by Dr. L’Heureux. Doc. no.

129-1. As is common with testimony from treating physicians, the trial testimony

of Dr. de la Garza was presented via a video trial deposition. He gave his deposition

testimony on April 28. That testimony was presented at trial on May 10 (one of nine

witnesses to testify that day). Doc. no. 139.

3. The challenged testimony

As required by chambers rules, where a party intends to present deposition

testimony at trial, the parties designated and counter-designated Dr. de la Garza’s

proposed trial testimony and lodged their objections to the opposing parties’

designations. Defendants’ brief in support of their motion for new trial complains

of “improper admission of opinion testimony from Dr. de la Garza,” doc. no. 151, at

2, consisting of four questions and four answers as to which their objections to Dr.

1 In light of the important matters encompassed by these seven topics, it seems odd that defendants

suggested, in their brief for a new trial, that it “seemed doubtful” that Dr. de la Garza would even

be called to testify. Doc. no. 151, at 5.

de la Garza’s testimony were overruled. Id. at 1, 8-9. Those four questions and

answers were:

Q And what was the nature of the injury that were [sic] causing her

symptoms?

A Well, the nature of the injury, and I believe you are alluding to

causation, is she had not had any of these symptoms before the motor

vehicle accident. She had all of these symptoms after the motor vehicle

accident.2

______________________________________

Q Okay. All right. And just to ensure that we have got your – your

opinions very clear for our jury, Doctor, what do you – what do you

believe, within a reasonable degree of actual medical certainty, what

the cause was for Tiana Stanley’s chronic neck and radicular pain into

her right arm by the time she got to you?

A I think causation was very clear that she had a singular incident that

was the etiology of her right radicular symptoms.3

______________________________________

Q And do I recollect your earlier testimony, in response to Ms.

Hopper’s questions, that would be consistent with a high-impact

collision?

A That would be consistent with an injury, very much so, those

radiographs, in my opinion.

Q Would that type of injury be consistent with a very low-speed

impact?

MS. HOPPER: Objection, leading.

THE WITNESS: It wouldn’t be typical.4,5

2 Doc. no. 151-2, at 30, lines 5-11.

3 Id., at 51, line 19 through pg. 52, line 3.

4 Id., at 83, line 24 through pg. 84, line 7.

5 In their brief for a new trial, defendants state that “during the trial, Defendants objected to the

admission and publication of [Dr. de la Garza’s] testimony.” Doc. no. 151, at 19. Actually, what

defendants did was “reurge our motion to strike Dr. de la Garza for the reasons previously set forth

in our motion to strike.” Doc. no. 151-5, at 150. That motion to strike, filed shortly after the

The centerpiece of defendants’ argument for a new trial on the basis of the

court’s admission of these questions and answers is their contention that “[t]he jury

heard Dr. de la Garza, under a guise of neutrality, testify that [plaintiff’s] claimed

damages were solely and singularly caused by the subject accident, and consistent

‘with a high-impact collision.’” Doc. no. 151, at 9. Defendants’ point was that the

plaintiff had been in other accidents, raising a question as to the extent to which

plaintiff’s spinal injury was caused by the 2019 collision with the Halliburton truck.

Doc. no. 151, at 6. For that reason, it should be borne carefully in mind that,

elsewhere in his testimony, Dr. de la Garza readily acknowledged that, in evaluating

the effect of an unrelated collision, he would “unequivocally” need “more

information about that collision.” Doc. no. 151-2, at 77. This would include

knowledge as to “what type of a collision we’re talking about.” Id. at 71. And as to

a 2021 collision that defendants emphasized at trial, Dr. de la Garza agreed that he

would “absolutely say, yes, I would need some more information” to evaluate

whether that collision could “impact [his] opinions with regard to medical

causation.” Doc. no. 129-2, at 75. In other words, defendants’ trial advocacy was

not just aided by the testimony of Dr. L’Heureux–the last witness the jury heard

from–to the effect that the collision with the Halliburton truck was the sole cause of

plaintiff’s injury, it had the benefit of Dr. de la Garza’s repeated acknowledgement

that he would have to have more information before he could definitively weigh in

on the issue of whether the accident being litigated was the sole cause.

4. The trial

The jury trial began on May 9 and went to verdict on May 12. The court

submitted the negligence and negligent entrustment claims to the jury, but declined

completion of Dr. de la Garza’s video trial deposition, raised only the relatively narrow issue of

whether Dr. de la Garza should be excluded altogether as a witness because he had received

information about the plaintiff, and the case in general, from her lawyer. Doc. no. 129, at 3-4.

to submit punitive damages. The verdict in favor of the plaintiff apportioned 85

percent of the fault for the accident to the defendants and fifteen percent to the

plaintiff.

C. The legal standard

Defendants argue that the court erred (i) by permitting Dr. de la Garza to give

the testimony quoted above and (ii) in not performing its Daubert gatekeeping

function with respect to Dr. de la Garza’s testimony.

As for the standard governing the admission of Dr. de la Garza’s testimony,

defendants state:

Decisions on the admissibility of evidence generally stand unless there

is a “definite and firm conviction that the [ ] court made a clear error

of judgment or exceeded the bounds of permissible choice in the

circumstances.” Stroup v. United Airlines, Inc., 26 F.4th 1147, 1168

(10th Cir. 2022) (citation omitted) (emphasis added). A clear error of

judgment justifies a new trial if it “prejudicially affects a substantial

right of a party.” Weaver v. Blake, 454 F.3d 1087, 1091 (10th Cir.

2006) (quoting Hinds v. Gen. Motor [sic] Corp., 988 F.2d 1039 (10th

Cir. 1993)). See also Bridges v. Wilson, 996 F.3d 1094, 1099 (10th

Cir. 2021) (“[a]n error affecting a substantial right of a party is an error

which had a substantial influence or which leaves one in grave doubt as

to whether it had such an effect on the outcome”) (quoting Hill v. J.B.

Hunt Transp., Inc., 815 F.3d 651 (10th Cir. 2016)). “Evidence admitted

in error can only be prejudicial if it can be reasonably concluded that

with or without such evidence, there would have been a contrary

result.” Id. (citation omitted).

Doc. no. 151, at 2-3 (footnotes omitted).

The court has no reason to quibble with that articulation of the standard (nor

does plaintiff), so no further discussion is needed.

As for the Daubert issue, the court, likewise, does not take issue with

defendants’ contention that the gatekeeping duty is mandatory if the issue really is a

Daubert/Rule 702 issue and the request for Daubert scrutiny is timely made.

D. Conclusion as to the motion for new trial

1. Admission of the testimony at issue

Defendants’ complaint about the admission of the testimony at issue is based

on asserted violations of Rule 37 and the court’s March 17 order (quoted at length

on pp. 5-7, above). See, doc. no. 151, at 15 (citing “Fed. R. Civ. P. 37 and the

Order”).

Defendants did not invoke the preclusive sanction of Rule 37(c) (or, for that

matter, any other subdivision of Rule 37) in their motion in limine, doc. no. 53, in

their motion to strike, doc. no. 129, or at trial. That said, in the present context, the

Rule 37(c) harmlessness standard (focusing on the harmlessness of a litigant’s

failure to disclose) focuses on the same underlying issues, and entails a standard no

more demanding, than the up-or-down question of whether the court should have

admitted the challenged testimony at all. The court will accordingly address the

issues as to the admission of the testimony in question under the “clear error of

judgment” standard quoted (with some elaboration) above.

To review how we got here, the relevant part of the March 17 order permitted

testimony from Dr. de la Garza as to the following matters that are especially

relevant now:

 His “clinical observations as to the nature and extent of plaintiff’s

injuries (both initially and as her condition evolved over time).”

 The “history given by Ms. Stanley (including her version of

causation).”

 “[O]ther objectively observable facts, even if Dr. de la Garza’s medical

expertise helps make his description more understandable.”

See, p. 6, above.

And as has been noted, defendants did not take issue with the limits specified

in the March 17 order when it was entered, nor do they now. Doc. no. 151, at 19,

n. 8.

The first question and answer

The only substantive testimony given by Dr. de la Garza in response to the

first question was: “she [plaintiff] had not had any of these symptoms before the

motor vehicle accident. She had all of these symptoms after the motor vehicle

accident.”6

To be sure, this answer from plaintiff’s treating physician was clearly at odds

with defendants’ theory of the case. And the factual account given to the physician

by the patient in a clinical setting may or may not have been accurate. But there is

nothing remarkable about allowing a treating physician to recount his patient’s

presenting symptoms–including her version of why she had those symptoms. More

to the present point, this statement, though consistent with plaintiff’s theory of

causation, and though coming from a physician, is not an expression of expert

opinion.

The second question and answer

The second question went directly to the medical cause of the pain in

plaintiff’s neck and right arm. The treating physician’s answer: “I think causation

was very clear that she had a singular incident that was the etiology of her right

radicular symptoms.”7 Two points are important here. First, this was direct

examination. As has been noted (p. 9, above), defendants very effectively elicited,

on cross-examination, Dr. de la Garza’s forthright acknowledgement that he would

need more information about plaintiff’s other collisions before he could really say

whether this accident was the sole cause of plaintiff’s injury. Second, it is clear, in

the context of the rest of Dr. de la Garza’s testimony on direct, that this was his

clinical observation, well within the bounds of the March 17 order (“observations as

to the nature and extent of plaintiff’s injuries,” and “history given by Ms. Stanley

6 See p. 8, above.

7 Id.

(including her version of causation).” A narrower reading of the March 17 order

would also have been permissible. But the court is satisfied that this judgment call–

overruling an objection to this question–did not “exceed[] the bounds of permissible

choice in the circumstances” and did not “prejudicially affect[] a substantial right

of” defendants (p. 10, above). The jury was in an excellent position, with the benefit

of defendants’ array of experts on the issue of causation (including a biomechanical

expert, an accident reconstructionist, and Dr. L’Heureux), to reach its conclusion

on the issue of causation, all with a full understanding of defendants’ theory and the

factual as well as the technical bases for that theory.8

The third and fourth questions and answers

In responding to the third and fourth questions, Dr. de la Garza confirmed that

plaintiff’s injury was consistent with a high-impact collision (“very much so,” based

on the radiographs) and would not be typical of a “very low-speed impact.”9 Two

things are dispositive of defendants’ complaint here. First, Dr. de la Garza did not

present himself as an accident reconstructionist, which is to say that he did not testify

that this was a high-impact collision. He went no further than to say that plaintiff’s

injury and the resultant neck pain was consistent with a high-impact collision. For

his part, Dr. L’Heureux, defendants’ medical expert, said plaintiff’s pain was more

likely due to pre-existing problems, but even he didn’t go so far as to say that

plaintiff’s injury–which he described as possibly “a mild to moderate strain of the

8 Defendants complain repeatedly about plaintiff’s counsel’s description of Dr. de la Garza as a

“rock star.” Doc. no. 151, at 14, 15; doc. no. 162, at 2, 5, 8. Regardless of whether a witness is

an expert, his credibility is at least potentially in play. Plaintiff’s counsel was perfectly entitled to

argue, with colorful rhetoric or otherwise, that Dr. de la Garza was worthy of belief. To the extent

that the “rock star” description might be regarded more narrowly as an attempt to bolster the

doctor’s expertise, his expertise was potentially at issue even as to matters unquestionably within

bounds for the testimony of a treating physician.

9 See p. 8, above.

cervical musculature in her neck10–couldn’t have been caused by a high-impact

collision. Second, Dr. de la Garza’s “consistent with a high-impact” characterization

was, by any reasonable standard, within the realm of “his clinical observations as to

the nature and extent of plaintiff’s injuries,” the “history given by Ms. Stanley

(including her version of causation),” and “other objectively observable facts, even

if Dr. de la Garza’s medical expertise helps make his description more

understandable.”

______________________________________

Finally on this subject, and in fairness to the defendants, it might also be

appropriate to look at the collective effect of these four questions and answers rather

than parsing them one-by-one. Collectively, they would contribute to an inference

by the trier of fact–subject to argument pro or con, like any other inference–that it

was the collision with the Halliburton truck that caused plaintiff’s spinal injury. But,

in the court’s view, Dr. de la Garza did nothing more than provide the treating

physician’s piece of that puzzle.11 That is what car and truck wreck litigation is

usually all about.

Calling balls and strikes on Dr. de la Garza’s testimony required some

judgment calls. The court is not critical of defendants for arguing (unsuccessfully)

that the court allowed Dr. de la Garza to say too much.12 But it is telling that if Dr.

de la Garza’s testimony made a difference at all (even after he acknowledged on

10 Doc. no. 146-2, at transcript p. 421. Dr. L’Heureux also acknowledged that this collision caused

shoulder bruising, an abrasion from the lap belt, and a bruise on plaintiff’s right ankle. Id.

11 The court also cannot but note that if defendants wanted to find out what plaintiff’s treating

physician had to say about that piece of the puzzle, they could have taken his deposition long

before plaintiff took his testimony by video trial deposition a few days before the trial began. As

a practical matter, the fact that defendants didn’t take the treating physician’s deposition has a lot

to do with why this whole set of issues is even before the court.

12 On pp. 2 and 5 of plaintiff’s response, doc. no. 160, she cites and quotes from district court cases

addressing the permissible scope of treating physician testimony. The court generally agrees with

those decisions, but it is not necessary to get into an analysis of them here.

cross examination that he would need more information to definitively speak to

causation), it made that difference in the face of an array of experts (as noted, an

accident reconstructionist, a biomechanical expert and an orthopedic surgeon), all

lined up in opposition to plaintiff’s theory of causation. The point here is that

defendants plainly availed themselves of the opportunity to mount an all-out contest

in front of the jury on the issue of causation. The court is well-satisfied that this case

went the way it did because the jury was persuaded by plaintiff’s account of the basic

underlying facts, and not because of the effect, if any, of four answers to four

questions. “Prejudice,” in this context, consists of the denial of a fair opportunity to

litigate an issue. Defendants were not prejudiced.

2. Lack of evaluation of Dr. de la Garza’s testimony under Daubert

Defendants’ last argument is that the court erred in failing to subject Dr. de la

Garza’s testimony to scrutiny under Daubert and Rule 701. Doc. no. 151, at 20-22.

Defendants’ argument is that the court abandoned its gatekeeping function

altogether. Id. at 20. The problem here is that defendants never sought Daubert

scrutiny from the court.

The court is not critical of defendants for not having filed a Daubert

challenge. Relying on the court’s March 17 order, they had no reason to do

so. Correspondingly, the real issue here does not arise from the fact that the court

did not rule on a Daubert challenge that was never filed. That said, it should be

noted that Dr. de la Garza’s qualifications are unchallenged (and, indeed, are

acknowledged by defendants, doc. no. 151, at 7). Dr. de la Garza is an extremely

experienced orthopedic surgeon. Save for some very general information he had

about plaintiff’s other accidents, his trial testimony was rooted in his clinical

observations as plaintiff’s treating physician and was well within the realm of his

uncontested expertise. Daubert screening can be performed post-trial if necessary.

Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1087 (10th Cir. 2000).

It is tempting to do that now, but, in light of (1) the absence of a request for Daubert

scrutiny before trial, and (ii) the court’s conclusions on other dispositive aspects of

defendants’ motion, it is not necessary to do so.

CONCLUSION

For the reasons stated above, the defendants’ Rule 50(b) motion for judgment

as a matter of law (doc. no. 150) and their Rule 59(a) motion for new trial (doc. no.

151) are DENIED.

IT IS SO ORDERED this 29" day of September, 2023.

Ak bruit

UNITED STATES DISTRICT JUDGE

22-0159p03 1.docx

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