Bolivar

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT CHATTANOOGA

RADHA BOLIVAR, et al., )

)

Plaintiffs, ) Case No. 1:24-cv-155

)

v. ) Judge Travis R. McDonough

)

HMD TRUCKING INC, et al., ) Magistrate Judge Michael J. Dumitru

)

Defendants. )

MEMORANDUM OPINION

Before the Court are: (1) Plaintiffs’ motion to exclude the testimony and opinions of Dr.

Joseph Schaffer (Doc. 80); and (2) Defendants’ motion to exclude the testimony and opinions of

Dr. Gregory Smith and for partial summary judgment on future damages (Doc. 77). For the

following reasons, the Court will DENY Plaintiffs’ motion to exclude (Doc. 80) and DENY

Defendants’ motion to exclude and for partial summary judgment (Doc. 77).

I. BACKGROUND

This action arises from a motor vehicle collision that occurred on March 1, 2023,

between Defendant Antonio Wortham and Plaintiff Radha Bolivar (“Bolivar”). (See Doc. 1-2, at

4.) Plaintiff Bolivar had one passenger in his vehicle, Plaintiff Angelica Goatache. (Id.)

Plaintiffs seek damages for “past, current and future economic and non-economic damages.” (Id.

at 10.)

Plaintiffs retained Dr. Gregory Smith—a medical doctor and life care planner—as an

expert. (Docs. 78-3, at 1; 78-4, at 2.) Dr. Smith provided an expert report and life care plan,

which estimates future medical costs for Bolivar. (See Doc. 78-4.) As the basis for his opinions,

Dr. Smith states he reviewed Bolivar’s medical records, which included records from his treating

physicians. (See id. at 2.) He also conducted an interview with Bolivar. (Id. at 7.)

Defendants disclosed Dr. Joseph Schaffer—an orthopedic shoulder surgeon—as an

expert. (Doc. 81, at 1.) Dr. Schaffer reviewed video footage of the accident and opines that he

does not believe the accident caused Bolivar’s shoulder injury based on his knowledge of

shoulder injuries, understanding of energy from his engineering degree, and training in sports

medicine. (Doc. 80-1, at 5–7.)

II. FEDERAL RULES OF EVIDENCE 702 AND 703

A. STANDARD OF LAW

Federal Rules of Evidence 702 and 703 govern the admissibility of testimony by expert

witnesses. Rule 702 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. According to Rule 703, an expert is permitted to base an opinion on facts or

data of which she has been made aware or has personally observed. See Fed. R. Evid. 703. The

underlying facts or data need not be admissible for the opinion to be admitted, so long as an

expert in the field would reasonably rely on them in forming an opinion on the subject. Id.

The Sixth Circuit has identified three requirements for an expert’s testimony to be

admissible under Rule 702: (1) “the witness must be qualified by knowledge, skill, experience,

training, or education”; (2) “the testimony must be relevant, meaning that it will assist the trier of

fact to understand the evidence or to determine a fact in issue”; and (3) “the testimony must be

reliable.” Burgett v. Troy-Bilt, LLC, 579 F. App’x 372, 376 (6th Cir. 2014) (quoting In re Scrap

Metal Antitrust Litig., 527 F.3d 517, 528–29 (6th Cir. 2008)) (citation modified). Reliability is

assessed by the factors set out in Rule 702: (1) whether “the testimony is based on sufficient

facts or data”; (2) whether “the testimony is the product of reliable principles and methods”; and

(3) whether the methods and principles were reliably applied to the facts of the case. Fed. R.

Evid. 702. The focus is on reliability rather than “credibility and accuracy.” Superior Prod.

P’ship v. Gordon Auto Body Parts Co., Ltd., 784 F.3d 311, 323 (6th Cir. 2015) (quoting In re

Scrap, 527 F.3d at 529). Thus, courts should focus on the methodology employed rather than the

conclusions drawn. Id.; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595

(1993).

In determining whether expert testimony “is the product of reliable principles and

methods,” Fed. R. Evid. 702(c), courts may consider whether the methods and principles have

been and are capable of being tested, whether they have been subjected to peer review and

publication, their known or potential rate of error, and whether they are generally accepted within

the relevant scientific community. See Daubert, 509 U.S. at 593–94; see also United States v.

Mallory, 902 F.3d 584, 592–93 (6th Cir. 2018) (noting that all of the factors do not necessarily

apply in every case). The inquiry, however, is flexible, and the district court may also consider

other factors that bear on the reliability of the expert’s testimony. See Kuhmo Tire Co. v.

Carmichael, 526 U.S. 137, 141, 149–50 (1999) (“[A] trial court should consider the specific

factors identified in Daubert where they are reasonable measures of the reliability of expert

testimony.”). A rebuttal expert may provide contrasting expert opinions or challenge the

methodology utilized by the opposing party’s experts in arriving at his conclusions. E.E.O.C. v.

Tepro, Inc., 133 F. Supp. 3d 1034, 1048 (E.D. Tenn. 2015).

While a court’s role is to determine whether an expert’s testimony is reliable, not whether

it is accurate or credible, a court must still determine that an expert’s opinion rests on a “reliable

foundation” rather than “unsupported speculation.” In re Scrap, 527 F.3d at 529–30. Even

expert testimony based on erroneous facts is generally permitted “when there is some support for

those facts in the record.” Id. at 530. Expert testimony based on “shaky” evidence is admissible,

so long as the testimony is not based on “guesses” or “assumptions.” See Jahn v. Equine Servs.,

PSC, 233 F.3d 382, 393 (6th Cir. 2000). However, a “court is not required to admit expert

testimony ‘that is connected to existing data only by [an assertion without proof]” and “may

conclude that there is simply too great an analytical gap between the data and the opinion

proffered.” Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 254 (6th Cir. 2001) (quoting Gen.

Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)).

“[R]ejection of expert testimony is the exception rather than the rule,” and “Rule 702

should be broadly interpreted on the basis of whether the use of expert testimony will assist the

trier of fact.” Burgett, 579 F. App’x at 376 (citation omitted) (“Daubert did not work a

seachange over federal evidence law, and the trial court’s role as a gatekeeper is not intended to

serve as a replacement for the adversary system.”).

B. ANALYSIS

1. Dr. Gregory Smith

Dr. Smith’s expert report discloses that he believes, based on Bolivar’s “clinical records

and information provided,” that Bolivar has: (1) “ongoing issues with left shoulder internal

derangement, cervical and lumbar herniated disc that will require interventional pain injunctions,

and/or surgery[;]” (2) that his “chronic pain . . . will benefit from prolonged us of a

neuromuscular stimulator[;]” and (3) that his “reported symptoms of anxiety, depression,

insomnia and fear/avoidance behaviors . . . need to be evaluated and treated.” (Doc. 78-4, at 7–

8.) Defendants argue that Dr. Smith is not qualified, that his testimony is not supported by

sufficient facts or data, and that his methods are not reliable. (Doc. 78, at 12–17.)

Dr. Smith is board-certified in occupational medicine with over 30 years of clinical

practice treating injuries. (Doc. 78-4, at 2.) His training as a doctor, along with his experience

with injuries, makes him qualified to analyze the future medical care Bolivar may need as a

result of a motor vehicle accident.

His expert report relies on sufficient facts and data. Specifically, he reviewed medical

records from several of Bolivar’s treating physicians and conducted a phone interview with

Bolivar. (Id. at 2–5.)

Defendant argues that Dr. Smith’s methods are not reliable because he does “not focus on

the specific facts of the case but rather provide[s] an average for an abstract, unspecified

individual.” (Doc. 78, at 15.) However, Dr. Smith’s report states he reviewed specific

information about Bolivar to come to his conclusions (Doc. 78-4, at 2–5), and whether his

opinions are ultimately too abstract is more appropriately determined by a jury after cross

examination. See Burgett, 579 F. App’x at 376 (holding that “rejection of expert testimony is the

exception rather than the rule”) (citation omitted).

Defendants disagree with Dr. Smith’s conclusions and claim it contradicts other

individuals’ testimonies about Bolivar’s future needs. (Doc. 78, at 15–17.) However, during Dr.

Smith’s phone interview with Bolivar, he complained to Dr. Smith that he “continues to have

ongoing mechanical left shoulder, neck[,] and low back pain that is associated with stiffness and

decreased range of motion . . . .” (Doc. 78-4, at 5.) Although Dr. Smith’s conclusions may

differ from other individuals’ opinions about the scope of Bolivar’s injuries and his future

medical needs, his conclusions have some basis in facts and data specific to Bolivar.

Defendants’ arguments go to the weight of Dr. Smith’s testimony and not the admissibility.

Accordingly, Defendant’s motion to exclude Dr. Smith pursuant to Federal Rules of Evidence

702 and 703 is DENIED.

2. Dr. Joseph Schaffer

Dr. Schaffer plans to testify on “Bolivar’s alleged injuries, complaints, and limitations

and whether or not they are causally related to the March 1, 2023 incident.” (Doc. 82, at 4.) One

of Dr. Schaffer’s opinions is that he does not believe Bolivar’s shoulder injury was caused by the

accident based on his analysis of Bolivar’s medical records and video of the accident. (Doc. 80-

1, at 1.)

Plaintiffs “do[] not challenge Dr. Schaffer’s qualifications as an orthopedic shoulder

surgeon” but argue that he is not qualified to provide an opinion: (1) regarding Bolivar’s spine

and (2) interpreting video of the accident. (Doc. 81, at 1, 4–8.) Plaintiffs argue that Dr.

Schaffer’s video analysis lacks technical foundation and may not supplant the jury’s exercise of

common sense. (Id. at 4–5.) Defendants counter that Dr. Schaffer’s clinical practice includes

evaluating patients for back pain, and that his use of the video was only one piece of information

that helped him form his opinion. (Doc. 82, at 3–7.) Defendants also state that Dr. Schaffer is

qualified in observing “injuries as they occur and evaluating whether the mechanism of an event

is consistent with the alleged injuries.” (Id. at 5.)

Dr. Schaffer’s experience and training as a medical doctor make him qualified to opine

on Bolivar’s injuries, including his alleged back injuries. Further, his use of the accident video is

not outside the scope of his expertise nor does it supplant the jury’s exercise of common sense.

Rather, Dr. Schaffer states that he formed his opinion based on the video in conjunction with his

knowledge of how shoulders work and when Bolivar’s symptoms and pain developed. (Doc. 80-

1, at 2.) During his deposition, Dr. Schaffer testified that his experience as a shoulder surgeon

and his history of observing injuries as they occur in sporting events provide him with

knowledge on how injuries may present after an accident. (Id. at 2, 6.) Dr. Schaffer’s opinion,

which is partially based on video evidence, will not supplant the jury’s exercise of common

sense, because he has specialized knowledge on shoulder injuries and how such injuries can

present. Similar to Defendants’ argument to exclude Dr. Smith, Plaintiffs’ arguments go to the

weight of Dr. Schaffer’s testimony and not its admissibility. Accordingly, Plaintiffs’ motion to

exclude Dr. Schaffer is DENIED.

III. FEDERAL RULE OF EVIDENCE 403

Defendants also argue that Dr. Smith’s opinion should be excluded because it “would

unfairly prejudice Defendants, confuse the issues, mislead the jury, and waste time.” (Doc. 78,

at 17.) Specifically, Defendants argue that Dr. Smith’s opinion is “based on averages and

generalities and not particular to Mr. Bolivar.” (Id.)

Rule 403 of the Federal Rules of Evidence states that the “[C]ourt may exclude relevant

evidence if its probative value is substantially outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting

time, or needlessly presenting cumulative evidence.”

Defendants’ argument that Dr. Smith’s opinion is not based on information particular to

Bolivar is unpersuasive. Dr. Smith’s report states that he relied on Bolivar’s medical records and

an interview with Bolivar to come to his conclusions. (Doc. 78-4, at 2–5.) Dr. Smith’s opinions

are probative to Bolivar’s claims that he is entitled to future damages and are not substantially

outweighed by the danger of unfairly prejudicing Defendants, confusing the issues, misleading

the jury, or wasting time. Therefore, Defendants’ motion to exclude Dr. Smith’s testimony

pursuant to Federal Rule of Evidence 403 is denied.

IV. SUMMARY JUDGMENT ON DAMAGES

Defendants move for partial summary judgment “as it relates to Mr. Bolivar’s claims for

future economic and non-economic damages” because Dr. Smith’s “testimony cannot create a

genuine issue of material fact.” (Doc. 78, at 18–19.)

Summary judgment is proper when “the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The Court views the evidence in the light most favorable to the nonmoving party and

makes all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co.,

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat’l Satellite Sports, Inc. v. Eliadis Inc.,

253 F.3d 900, 907 (6th Cir. 2001). The moving party bears the burden of demonstrating that

there is no genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986); Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003). The moving party may meet this

burden either by affirmatively producing evidence establishing that there is no genuine issue of

material fact or by pointing out the absence of support in the record for the nonmoving party’s

case. Celotex, 477 U.S. at 325. At summary judgment, the Court may not weigh the evidence;

its role is limited to determining whether the record contains sufficient evidence from which a

jury could reasonably find for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248–49 (1986).

Here, Defendants argue that there is no genuine issue of material fact of future damages

because Dr. Smith’s opinions contradict earlier testimony by Bolivar, medical records, and

testimonies of three other physicians. (See Doc. 78, at 19.) Although Dr. Smith’s opinions

contradict other evidence, his opinions are based on his analysis of Bolivar’s medical records and

an interview with Bolivar that occurred after the testimony cited by Defendants. (Doc. 78-4, at

2–5.) There is sufficient evidence that establishes a dispute of fact regarding Bolivar’s claims for

future damages. Accordingly, Defendants’ motion for partial summary judgment is DENIED.

V. CONCLUSION

For the reasons stated above, Plaintiffs’ motion to exclude Dr. Schaffer (Doc. 80) is

DENIED, and Defendants’ motion to exclude Dr. Smith and for partial summary judgment

(Doc. 77) is DENIED.

SO ORDERED.

/s/ Travis R. McDonough

TRAVIS R. MCDONOUGH

UNITED STATES DISTRICT JUDGE