Easter v. UNUM Life Insurance Company of America

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

P. BRUCE EASTER, D.D.S.,

Plaintiff,

v. Case No: 2:23-cv-52-JES-KCD

UNUM LIFE INSURANCE COMPANY

OF AMERICA,

Defendant.

OPINION & ORDER

This matter comes before the Court on Unum Life Insurance

Company of America’s (UNUM or Defendant) Daubert Motion to

Exclude the Expert Testimony of Dr. John Lawrence Merritt (Doc.

#44) filed on May 10, 2024. P. Bruce Easter, D.D.S., (Easter or

Plaintiff) filed a Response (Doc. #52) on June 7, 2024. For the

reasons set forth below, the motion is granted in part and denied

in part.

I.

The Court recently summarized this action in an Order on a

motion for partial summary judgment:

Easter filed a claim with UNUM, the issuer of his

long-term disability insurance policy, asserting he was

disabled since December 21, 2019 and unable to continue

practicing dentistry. UNUM initially determined he was

totally disabled pursuant to the policy and started to

pay him benefits. But UNUM kept evaluating the claim

and later denied Easter coverage:

Based on our review of the medical

documentation in your file, we have determined

that neither [an] injury or sickness restricts

your ability to perform the material and

substantial duties of your regular occupation to

an extent that prevents you from engaging in your

regular occupation. As such, you are no longer

disabled according to the policy as of September

30, 2022. Benefits are no longer payable and your

claim has been closed.

(Doc. #41-12, p. 88.) 1 Easter disagreed and this

breach-of-contract action followed.

(Doc. #57, p. 3.)

Easter’s only remaining disability theory is anxiety. (See

id.) The theory is advanced by a Dr. Delaney, and as Easter

himself puts it, “the posture repeatedly assumed by dentists can

cause pain which then increases [Easter]’s anxiety symptoms which

then cause[] his tremors and tics.” (Doc. #52, p. 5.) Easter

asserts that this results in his total disability under the

policy, and he is thus entitled to the policy benefits.

UNUM now moves to “exclude any testimony by . . . Dr. John

Lawrence Merritt . . . on topics included in Plaintiff’s Expert

Report or, in the alternative, . . . a Daubert hearing to

consider these matters.” (Doc. #44, p. 1.) Easter agrees to the

exclusion of Dr. Merritt’s testimony except as to two topics: Dr.

Merritt’s observation of Easter’s “shakiness/motor tics” and “as

1 UNUM labeled this exhibit as “Exhibit 1-Part 11.” However,

the exhibit appears on the Court’s CM/ECF system as Exhibit 12.

The Court will cite each exhibit herein by the numerical number

assigned to it by the Court's CM/ECF system.

to the ergonomic challenges faced by dentists which has bearing

on the symptoms suffered by [Easter].” (Doc. #52, pp. 4-5.)

II.

Admission of expert opinion evidence is governed by Fed. R.

Evid. 702, which provides:

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 proponent demonstrates to the court that it is more

likely than not that:

(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’s opinion reflects a reliable

application of the principles and methods to the facts

of the case.

Fed. R. Evid. 702 (eff. Dec. 1, 2023). In Kumho Tire Co. v.

Carmichael, 526 U.S. 137 (1999) and Daubert v. Merrell Dow

Pharms., 509 U.S. 579 (1993), the Supreme Court held that the

trial court has a “gatekeeper” function designed to ensure that

any and all expert testimony is both relevant and reliable. The

importance of this gatekeeping function “cannot be overstated.”

United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004)(en

banc).

In determining the admissibility of expert testimony under

Rule 702, the Court applies a “rigorous” three-part inquiry.

Frazier, 387 F.3d at 1260. “Expert testimony is admissible if (1)

the expert is qualified to testify on the topic at issue, (2) the

methodology used by the expert is sufficiently reliable, and (3)

the testimony will assist the trier of fact.” Club Car, Inc. v.

Club Car (Quebec) Imp., Inc., 362 F.3d 775, 780 (11th Cir. 2004),

abrogated on other grounds by Diamond Crystal Brands, Inc. v.

Food Movers Int’l, Inc., 593 F.3d 1249, 1258 n.7 (11th Cir. 2010).

In short, “the expert must be qualified; his methodology must be

reliable; and his testimony must be helpful to the trier of fact.”

Doe v. Rollins Coll., 77 F.4th 1340, 1347 (11th Cir. 2023). “The

proponent of the expert testimony bears the burden of

establishing each requirement by a preponderance of the evidence

. . . .” Id.

“Even expert testimony which satisfies these three

requirements, however, may nonetheless be excluded under Rule 403

if the probative value of the expert testimony is substantially

outweighed by its potential to confuse or mislead the jury, or

if it is cumulative or needlessly time consuming.” Frazier, 387

F.3d at 1263. The admission of expert testimony is a matter within

the discretion of the trial court. Cook ex rel. Est. of Tessier

v. Sheriff of Monroe Cnty., Fla., 402 F.3d 1092, 1103 (11th Cir.

2005); Frazier, 387 F.3d at 1258.

III.

The Court addresses both aspects of Dr. Merritt’s

anticipated testimony separately.

A. Dr. Merritt’s observations of plaintiff

Dr. Merritt’s testimony as to any shakiness/motor tics he

personally observed during his December 4, 2023, examination of

Easter is not expert testimony. The Eleventh Circuit has said

that “distinguishing between lay and expert testimony is an

important” consideration in Daubert analyses, Williams v. Mast

Biosurgery USA, Inc., 644 F.3d 1312, 1317 (11th Cir. 2011), and

this case highlights why that is so. “The ability to answer

hypothetical questions is ‘[t]he essential difference’ between

expert and lay witnesses.” Travelers Prop. Cas. Co. of Am. v.

Ocean Reef Charters LLC, 71 F.4th 894, 906 (11th Cir.

2023)(quoting United States v. Henderson, 409 F.3d 1293, 1300

(11th Cir. 2005)). While an expert can answer hypothetical

questions, “a lay witness can only speak to what he in fact

observed.” Id.

“Of course, a properly disclosed and qualified expert can

testify as both an expert and a fact witness.” Id. at 907. But

the proffered expert testimony is subject to a Daubert analysis

while lay or fact testimony is not. See United States v.

Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005); Wilson v. Taser

Int'l, Inc., 303 F. App'x 708, 712–13 (11th Cir. 2008)(“Testimony

regarding his diagnosis of the injury itself . . . would be

permissible as lay testimony without the Daubert analysis, but

[the doctor’s] statement about the cause of the injury was an

hypothesis” subject to the Daubert analysis.).2 In other words,

“[t]hese cases make clear that, when a treating physician's

testimony is based on a hypothesis, not the experience of treating

the patient, it crosses the line from lay to expert testimony,

and it must comply with the requirements of Rule 702 and the

strictures of Daubert.” Mast Biosurgery USA, Inc., 644 F.3d at

1317–18.

Here, this portion of Dr. Merritt’s testimony is being

offered only for what he observed when he examined Easter—namely,

that he observed Easter’s alleged tics/shakiness. And “a

physician's observation of a patient's injury during treatment

is permissible lay testimony (assuming it is otherwise

admissible).” Travelers Prop. Cas. Co. of Am.,71 F.4th at 907.

Thus, none of UNUM’s Daubert arguments apply to or prevent Dr.

Merritt from testifying as to what he saw while examining Easter.

There is no need for Dr. Merritt to be a psychiatrist or to have

supporting and contemporaneous medical records to recount what

he observed. Nor are UNUM’s cited social security cases analyzing

2 “Unpublished opinions are not controlling authority and

are persuasive only insofar as their legal analysis warrants.”

Bonilla v. Baker Concrete Const., Inc., 487 F.3d 1340, 1345 n.7

(11th Cir. 2007).

whether administrative law judges “improperly discounted the

opinions of” doctors applicable to Dr. Merritt’s anticipated

testimony. Adzima v. Comm'r of Soc. Sec., No. 6:09-CV-1734-ORL-

DAB, 2010 WL 5174495, at *5 (M.D. Fla. Dec. 15, 2010)(emphasis

added); see also Rosenburg v. Comm'r of Soc. Sec., No. 6:07-CV-

1510-ORL-19D, 2008 WL 4186988 (M.D. Fla. Sept. 8, 2008); Sileo

v. Comm’r of Soc. Sec., No. 8:08-CV-1235-T-TGW, 2009 WL

3055310(M.D. Fla. Sept. 24, 2009).

The Court determines that Dr. Merritt’s proffered testimony

concerning what he observed in evaluating Easter is not

prohibited by Daubert. This portion of UNUM’s motion is denied.

B. Ergonomics of a dental practice

Plaintiff seeks to have Dr. Merritt testify as an expert

witness “regarding the issue of dental ergonomics and its effect

on [Easter]’s condition.” (Doc. #52, p. 2.) UNUM contends that

this portion of Dr. Merritt’s proffered testimony fails Daubert’s

three-prong test. (Doc. #44, p. 10.)

For the first prong, Easter bears the burden of establishing

by a preponderance of the evidence that Mr. Merritt “is qualified

as an expert,” which he can do by showing Dr. Merritt “is the

type of person who should be testifying on the matter at hand.”

Moore v. Intuitive Surgical, Inc., 995 F.3d 839, 852 (11th Cir.

2021). “[E]xpert status may be based on ‘knowledge, skill,

experience, training, or education.’” Frazier, 387 F.3d at 1261

(quoting Fed. R. Evid. 702).

Nowhere in his brief does Easter directly address Dr.

Merritt’s knowledge, skill, experience, training, education, or

overall qualifications to speak on dentistry ergonomics. In the

cover of his report, Dr. Merritt asserts he is board certified

in brain injury medicine, spinal cord injury medicine, physical

medicine and rehabilitation, and in internal medicine. (Doc. #41-

14, p. 1.) But neither he nor Easter ever identify Dr. Merritt

as an ergonomics expert or explain how his various board

certifications make Dr. Merritt qualified to speak on ergonomics.

As other district courts have warned, “doctors are [not]

qualified experts on every medical subject merely because they

wear white coats.” Erickson v. Baxter Healthcare, Inc., 131 F.

Supp. 2d 995, 999 (N.D. Ill. 2001). The Court finds that Easter

fails to establish Dr. Merritt’s qualification to speak on

dentistry ergonomics.

As to the second prong, the non-exhaustive factors a court

considers in ascertaining the reliability of scientific expert

opinion are: “(1) whether the expert's theory can be and has been

tested; (2) whether the theory has been subjected to peer review

and publication; (3) the known or potential rate of error of the

particular scientific technique; and (4) whether the technique

is generally accepted in the scientific community.” Quiet Tech.

DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th

Cir. 2003)(citing McCorvey v. Baxter Healthcare Corp., 298 F.3d

1253, 1256 (11th Cir. 2002)). The “basic foundation for

admissibility” is that the expert's opinions be firmly supported

“by appropriate validation.” Frazier, 387 F.3d at 1261.

Easter seeks to establish Dr. Merritt’s reliability by

pointing out that “his report attached citations to a number of

articles pertaining to the physical loads on dentists,” including

one apparent peer-reviewed article authored by Dr. Merritt

himself in 1987. (Doc. #52, pp. 5-6)(citing Doc. #41-14, p. 28.)

But the citation of the articles alone fails to establish that

Dr. Merritt is qualified or that his methodology is reliable. For

one, Easter’s lawyers emailed these articles to Dr. Merritt

before his report was published. (See Doc. #41-15, pp. 8-10.) Dr.

Merritt then based his conclusions on the same exact articles

when he published his report days later. (Compare id. at p. 10

with, Doc. #41-14, p. 28.) Reliability is not established.

Furthermore, Easter’s brief and Dr. Merritt’s report only

illustrate his ergonomic conclusions. Neither discuss any

principles, methodologies, or ideas advanced in the articles or

otherwise, much less how they were applied by Dr. Merritt to

reach an ergonomic conclusion on Easter. And “[w]hile the inquiry

[as to the second prong] is ‘a flexible one,’ the focus ‘must be

solely on principles and methodology, not on the conclusions that

they generate.’” Chapman v. Procter & Gamble Distrib., LLC, 766

F.3d 1296, 1305 (11th Cir. 2014) (quoting Daubert, 509 U.S. at

594–95). For Dr. Merritt to be found reliable, there must be

“some rational connection between the methodology and the

opinion—something that explains how the application of the

methodology permits the conclusion(s) reached.” Doe v. Rollins

Coll., 77 F.4th 1340, 1349 (11th Cir. 2023). No application or

rational connection is offered here. Easter essentially asks the

Court to find Dr. Merritt reliable solely based on his

conclusions, something the Eleventh Circuit has made clear it

cannot do. Easter fails to establish the second prong for the

admission of expert testimony.

Assuming arguendo that Dr. Merritt is a qualified and

reliable expert on dentistry ergonomics, Easter nonetheless fails

to establish the third prong—that Dr. Merritt’s proffered

testimony helps the trier of fact. This requirement asks “whether

that reasoning or methodology properly can be applied to the

facts in issue.” Daubert, 509 U.S. at 593. Commonly referred to

as the “helpfulness” inquiry, expert testimony can properly be

applied and is helpful if it relates to any issue in the case and

if it concerns matters that are beyond the understanding of an

average lay person. Prosper v. Martin, 989 F.3d 1242, 1249 (11th

Cir. 2021).

Here, Dr. Merritt seeks “to testify regarding the issue of

dental ergonomics and its effect on [Easter]’s condition.” (Doc.

#52, p. 2.) But as Easter himself admits, he “retained Dr. John

Merritt, M.D. to determine whether there was a physical basis for

his disability” and Dr. Merritt concluded “that Plaintiff suffers

from a persistent motor tic disorder on the movement disorder

spectrum that in the nature of a neurological disorder,” a theory

that Easter himself states he withdraws. (Doc. #52, pp. 3-4.)

Easter’s current theory “maintains that the shakiness/motor tics

are a physical manifestation of a psychiatric condition which Dr.

Delaney can speak to.” (Id. at 4.) Easter fails to establish by

a preponderance of the evidence that Dr. Merritt’s testimony

would be helpful to the trier of fact, especially considering

that his theory has been withdrawn and another proposed and an

unchallenged expert—Dr. Delaney—is available to testify as to

Easter’s current theory.

Easter fails to establish any of the three Daubert

requirements by a preponderance of the evidence as to Dr.

Merritt.3 Dr. Merritt can offer lay testimony as to what he

observed when examining Easter, but no expert testimony.

3 UNUM’s alternative relief of a Daubert hearing is therefore

unnecessary. See Cook ex rel. Est. of Tessier, 402 F.3d at 1114

(“Because this is not a ‘complicated case[ ] involving multiple

expert witnesses”—Dr. [Merritt] was the only proffered expert [at

issue]—we cannot conclude that the district court abused its

discretion by not holding a Daubert hearing.” (quoting United

Accordingly, it is hereby

ORDERED:

Defendant’s Daubert Motion to Exclude the Expert Testimony

of Dr. John Lawrence Merritt (Doc. #44) is GRANTED in part and

DENIED in part. Dr. Merritt may offer lay testimony as to what

he observed when examining Easter but no expert opinion.

DONE and ORDERED at Fort Myers, Florida, this 12th day

of August, 2024.

□□ fins ©. Dp L

Nol & AKL.

JGHN E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

JUDGE

Copies:

Counsel of Record

States v. Hansen, 262 F.3d 1217, 1234 (11th Cir. 2001))).