The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO: CV-10-646
ROBERT A. WORTHLEY STATE OF f1Ndi"·IE
Cumber!~r d. sJ, Cli~r'i'.3 Offic2
Plaintiff
V. REt..:1::rv::r,
LESLIE ARSENAULT, et al. ORDER
Defendants
Before the court is the defendant's motion in limine to exclude Michael J.
Festino's expert opinion that the defendant sustained permanent post-concussive
syndrome and/ or mild traumatic brain injury as a result of the accident at issue. 1
BACKGROUND
This case arises from a car accident occurring on February 27, 2010 on
Route 1 in Wells. The Plaintiff, Robert Worthley, alleges that the Defendant,
Leslie Arsenault, operated her vehicle negligently and caused him injuries,
including personal physical injury. The Plaintiff also asserts a claim against
Patriot Insurance Company, his uninsured motorist insurance carrier. The case
has been settled as to Arsenault but the claim against Patriot Insurance Company
remains.
DISCUSSION
The Defendant seeks to exclude the opinion testimony of Dr.
Festino, which states that the Plaintiff's ongoing cognitive complaints are caused
1
At the motiori hearing, Defendant's coun sel argued that the motion seeks to
preclude testim ony concerning the diagnosis of mild traumatic brain injury and
the permanency of this condition. At this stage of the proceedings, the analysis is
the same for both areas of testimony.
1
by the mild traumatic brain injury or post-concussion syndrome suffered as a
result of the accident. The Defendant's brief states: "Here, Dr. Brown and Dr.
Kolk.in both concede that Mr. Worthley suffered post-concussion syndrome (Dr.
Brown) or, a mild traumatic brain injury (Dr. Kolkin). " 2 (Def. Br. 7.) Dr. Kolkin
also writes that there is no medical link between this kind of injury and a
persistence of post-concussion symptoms for longer than 6 months. (See Def. Br.
Ex. F. attachments.) In contrast, Dr. Festino opines that the Plaintiff's symptoms
of headaches, forgetfulness, and concentration issues, continuing for more than 6
months from the date of the accident, are caused by the injuries suffered during
the accident. The Defendant's argument appears to be largely premised on the
fact that Dr. Brown identified several other pre-existing conditions that could
also potentially be the cause of the Plaintiff's "ongoing cognitive complaints."
(Def. Mot. 6.) Thus as the two expert's conflicting opinions demonstrate, the
critical issue in this case is causation.
The Defendant argues that Dr. Festino is not a neurologist and, therefore,
lacks experience in the fields of neurology and neurosurgery, that his opinion is
based solely on the literature review he conducted on post-concussion syndrome
and mild traumatic brain injury, and that his opinion is not reliable because the
articles on which he relied do not support his opinion.
Maine Rule of Evidence 702 establishes the standard for the admission of
expert testimony. It states:
2
Dr. Brown is the neurology specialist to w hom D;r. Festino referred Mr. Worthley for
examination. He has also been listed as an expert witness for the Plainti.££. Dr. Kolkin is
the Defendant's expert witness. Dr. Kol.kin's report does not exactly concede that Mr.
Worthley suffered a mild 'l1·aumatic brain injury. It states "At most, according to Dr.
Brown's history 3 months later, Mr. vVorthley suffered a mild traumatic brain injury."
It's a slight difference but it seems as though the Defendant is not going to ultimately
concede that a mild traumatic brain injury was suffered .
2
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of
an opinion or otherwise.
"A proponent of expert testimony must establish that (1) the testimony is
relevant pursuant to M.R. Evid. 401, and (2) it will assist the trier of fact in
understanding the evidence or determining a fact in issue." Searles v. Fleetwood
Homes of Pa., Inc., 2005 ME 94, <JI 21, 878 A.2d 509 (citing State v. Williams, 388
A.2d 500,504 (Me. 1978)). The proposed testimony must also meet a threshold
level of reliability. Id. at <JI 22. The arguments that the Defendant offers for
exclusion relate to the qualification of Dr. Festino and the reliability of his
proposed testimony.
a. Knowledge and Training as a Neurologist
A witness does not need to be a board-certified neurologist or
neurosurgeon in order to give expert opinion testimony regarding the neurology
specialty. See Hanson v. Baker, 534 A.2d 665 (Me. 1987). However, in Hanson, the
trial court excluded testimony of the plaintiff's medical expert, a general
practitioner with experience as an emergency room physician, regarding the
"time specific progression of bruises and bleeding in the brain" but allowed the
same expert's testimony regarding the standard of care and whether the conduct
met that standard. Id. at 667. The Law Court affirmed, not because the expert
was not board certified but because he lacked education and experience in the
field of neurology. The court said, "Moreover, the [trial] court stated that Dr.
Brinker's emergency medicine and autopsy experience was no substitute for
experience in the distinct fields of neurology and neurosurgery." Id.
)
3
This case is distinct because Dr. Festino is not proposing to testify
regarding the standard of care that should have been exercised nor offer the
conclusion that a different course of care would have resulted in a different
outcome for the patient. Instead, he is proposing to testify as to his own
diagnosis of the patient. Neither party has offered any testimony regarding Dr.
Festivo's experience and/ or training in the neurology field. The Plaintiff's
attorney, in the opposition to the motion, states that Dr. Festino has explained the
overlap in training between internists and neurologists (Pl. Br. 4) and that he is
qualified to make this type of diagnosis (Pl. Br. 5) but does not provide citations
to Dr. Festino's deposition for support. 3 It appears that there is a distinction
between the training of an internist and that of a general practitioner such that
Hanson is distinguishable. However, without evidence of how much experience
and training Dr. Festino has with the neurology specialty, it is difficult to
determine at this stage of the proceedings whether his opinion is sufficiently
reliable.
b. Literature Review
The Defendant also argues that Dr. Festino' s testimony fails to qualify as
expert testimony because it is based only on information that he read in medical
articles. The Defendant cites to several cases supporting this argument. In
United States v. Paul, 175 F.3d 906 (11th Cir. 1999), a lawyer was not permitted to
testify as an expert on handwriting analysis where his only training was
"reviewing the literature in the field of document examination." Id. at 912. In
Winner Brothers, LLC v. Seitz Electric Inc., 912 N.E.2d 1180 (Ohio App. 2009), the
3
The court will not search the record for citations and references. It is up to
counsel to properly provide record citations for a party's assertions.
4
court did not permit expert testimony that was entirely based on specific
statements made in the literature and was "a conduit for the out-of-court
statements of others." Id. at 1196-97. And, in Boehmer v. North Branch Food
Lockers, Inc., 2007 Mich. App. LEXIS 2303, the court held that an expert's
testimony regarding safety at a slaughterhouse was improperly allowed when
the expertise was only gained from reading articles and the individual had had
almost no interaction with cattle in the previous fifty years. Id. at *3.
This case is different from the three cases cited by the Defendant. In each
of those cases the expert had no experience in the field in which they were
offering opinions and so their literature review did not provide them any more
expertise than a layperson. In this case, Dr. Festino has expertise beyond that of
a layperson because he is a doctor. He also suggests that there is significant
overlap between the training of an internist and a neurologist. (Pl. Opp. 3.)
When Dr. Festino read the literature on mild traumatic brain injury and post
concussion syndrome he was able to incorporate that knowledge into his other
medical knowledge to form an expert medical opinion. Therefore, the literature
review is really only one component of his knowledge and not the entire basis of
the opinion. The Plaintiff has not suggested that Dr. Festino will seek to
introduce specific statements from the literature such that he would be a
"conduit" for hearsay statements and the court will not permit this.
c. General Reliability
The Defendant argues that Dr. Festino's opinion is not reliable because it
is inconsistent with generally accepted theories in the field: that is, Dr. Festino
has made a diagnosis of post-concussion syndrome where the evidence is that
5
Mr. Worthley never lost consciousness and the generally accepted theory is that
without loss of consciousness there is no concussion. The Defendant cites to an
article that Dr. Festino used in making his diagnosis, attached as Exhibit G to its
brief, and states that Dr. Festino's opinion is inconsistent with the "most
commonly accepted definition of concussion." (Def. Br. 9.) However, the second
paragraph of this article states:
There is uncertainty about the definitions of mild traumatic brain
injury and concussion. There is further uncertainty about the
definition of post-concussion syndrome and the cause and
treatment of PCS.
(Def. Br. Ex. G.) Whether or not loss of consciousness or reduced mental state are
necessarily symptoms of mild traumatic brain injury or post-concussion
syndrome does not appear to have been conclusively determined by the medical
literature. Therefore, Dr. Festino's diagnosis of these conditions, even without
evidence of loss of consciousness of Mr. Worthley, is not automatically
unreliable.
Furthermore, the fact that an expert seeks to introduce an alternative to an
excepted scientific theory, does not make it inherently unreliable. State v.
Boutilier, 426 A.2d 876, 879 ("We do not intimate that 'general scientific
acceptance' is a sine qua non of a proposed method of determining facts; what we
do regard as requisite to the admissibility of proffered expert testimony is a
showing of sufficient reliability to satisfy the evidentiary requirements of
relevance and helpfulness, and of avoidance of prejudice to the defendant or
confusion of the fact-finder."). Dr. Festino's opinion is also supported by Dr.
Brown's opinion that Mr. Worthly's symptoms are "consistent with" post
concussive syndrome although the persistence of the symptoms is "atypical."
(See Def.'s Mot Ex E.) Regardless, ultimately whether Dr. Festino's testimony is
6
admissible will tum on his testimony at voir dire concerning his education and
experience in neurology. The court cannot determine the extent of Dr. Festivo's
qualifications, the extent of his permissible testimony and any limitations that
may ultimately placed upon his testimony until these issues are flushed out at
trial.
CONCLUSION
The motion in limine to exclude Dr. Festino's opinion is denied, but may
be renewed at trial.
DATE: January 5, 2012
o ce A. Wheeler
tice, Superior Court
7
STATE OF MAINE SUPERIOR COURT
CU"tvIBERLAND, ss. CIVIL ACTION
DOCKET NO: CV-19-t46 /
U P,.,.,J ·· I....{ r(l , 3j 2 2. ;i.o /7
ROBERT A. WORTHLEY
Plaintiff,
V.
LESLIE ARSENAULT and
PA TRIOT INSURANCE COMPANY
Defendants,
ORDER ON DEFENDANT'S MOTION TO DISMISS
Defendant Leslie Arsenault moves for an order dismissing the Plaintiff,
Robert Worthley's claim against her, pursuant to 1v1.R. Civ. P. 41(a)(2).
Defendant, Patriot Insurance Company filed a timely objection to Arsenault's
motion to dismiss and the Plaintiff filed a response to Patriot's objection.
BACKGROUND
This case arises from a vehicle collision that occurred in February 2010
between vehicles operated by Worthley and Arsenault. At the time of the
accident Mr. Worthley was covered by an underinsured motorist policy issued
by defendant Patriot Insurance Company ("Patriot") and Arsenault was covered
by a State Farm policy with a $50,000 limit. The plaintiff, Mr. Worthley, brought
this action against Arsenault alleging negligence and against Patriot on an
uninsured motorist claim. Mr. Worthley has settled his claim against Ms.
Arsenault for $35,000 and now she seeks to be dismissed from the case.
1
DISCUSSION
Patriot does not object to the dismissal of Arsenault based on the
settlement between the Plaintiff and Arsenault. The basis of its objection is as to
this case proceeding solely in its own name where the question at trial will be the
liability of Arsenault. 1 Patriot requests that the case proceed with Arsenault
being the sole named defendant because of the policy against introducing
evidence of insurance in negligence cases.
There is a strong policy in Maine that "insurance in negligence cases is
immaterial, prejudicial, and not admissible." Deschaine v. Deschaine, 153 Me. 401,
407, 140 A.2d 746 (1958). M.R. Civ. P. 17(a) creates an exception to the rule
requiring a claim to be prosecuted in the name of the real party in interest when
an insurer is subrogated to a claim of an assured. Furthermore, the Maine Rules
of Evidence make the fact of liability insurance inadmissible to prove that person
acted negligently or wrongly. M.R. Evid. 411. However, the Law Court has
explicitly authorized insured people to bring an action directly against their
insurance company in an uninsured motorist claim without first having to obtain
a judgment against the uninsured. Greenvall v. Maine 1\iutual Fire Ins. Co., 1998
ME 204, 9I 8, 715 A.2d 949. Unlike a typical insurance defense, where the insurer
has a contractual obligation to defend the insured, in an uninsured motorist
claim the insurer no longer is hidden behind the veil of the allegedly at-fault
driver.
1
The parties also raise the question of whether Patriot should be entitled to a $50,000
credit (Arsenault's policy limit) or a $35,000 credit (the amount of the settlement) against
any jury award in favor of the Plaintiff. This issue, although discussed by the parties, is
not before the court on Defendant Arsenault's motion to dismiss and is not addressed
herein.
2
Although Patriot's liability is dependent upon Arsenault's liability, Patriot
is a named defendant under a claim separate and independent from the
negligence claim being dismissed. The court sees no reason to hide the fact that
there an uninsured motorist claim against the only remaining defendant.
The entry is:
Defendant Arsenault's Motion to Dismiss Plaintiff's claim against her
is GRANTED. This case will proceed against Defendant Patriot Insurance
Company as the sole remaining named defendant.
The Clerk is directed to incorporate this Order into the docket by
pursuant to M.R. Civ. P. 79(a).
DATE:
Joy~e . Wheeler
Ju~, Superior Court
3
Plaintiff Robert A Worthley- Peter Clifford
Esq
Defendant Arsenault-J William Druary Esq
Defendant Pat.riot Insurance --Jonathan Brogan
Esq