Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Etherton v. Owners Insurance Co.

United States District Court, D. Colorado

March 31, 2014

OWNERS INSURANCE COMPANY, a Michigan insurance company, Defendant.


PHILIP A. BRIMMER, District Judge.

This matter is before the Court on Defendant's Motion for New Trial Pursuant to F.R.C.P. 59 and Renewed Motion for F.R.C.P. 50 Judgment as a Matter of Law [Docket No. 117] filed by defendant Owners Insurance Company ("Owners").


Plaintiff Donald L. Etherton brought this case against Owners, following a motor vehicle accident on December 19, 2007. Docket No. 70 at 4, ¶ 1. Plaintiff, who was injured in the accident, settled with the at-fault driver for $250, 000. Id. at ¶ 4. Plaintiff then sought uninsured/underinsured motorist ("UIM") coverage from defendant, pursuant to an insurance policy with a $1, 000, 000 limit. Docket No. 70 at 4, ¶ 3. Defendant offered to settle the claim for $150, 000. Docket No. 70 at 2. Plaintiff requested that defendant provide an explanation for the amount of the settlement offer and requested that defendant tender the $150, 000 offer as the "undisputed" portion of his claim. Defendant refused both requests and this litigation followed. Docket No. 23 at 8.

Plaintiff filed this case in the District Court for the County of Boulder, Colorado, on March 9, 2010, alleging, inter alia, breach of contract and unreasonable delay or denial of an insurance claim in violation of Colo. Rev. Stat. §§ 10-3-1115, 1116. Docket No. 1-2 at 4-10, ¶¶ 27-80. Defendant removed the case to this Court on April 21, 2010. Docket No. 1.

On January 18, 2011, defendant filed a motion pursuant to Rule 702 of the Federal Rules of Evidence to exclude from trial the opinions of certain of the proffered experts. Docket No. 24. Defendant challenged the opinion of Joseph Ramos, M.D., that "Plaintiff's injuries, including lumbar disc protrusion, lumbar facet syndrome, lower extremity paresthesia, lumbar radiulopathy, SI joint dysfunction, myofacial hypertonicity and muscle spasm, insomnia, and myelopathy of the lower extremities, were entirely caused by the subject collision, " as well as several of Dr. Ramos' corollary opinions dependent on that opinion. Docket No. 24 at 1. Defendant objected to these opinions on the basis that "Dr. Ramos lacks the knowledge skill, expertise, training or education to express this opinion. In addition, the opinion is not the product of reliable principles and methods and is based upon insufficient facts and data." Docket No. 24 at 2.

On November 17, 2011, a hearing was held on defendant's challenge to Dr. Ramos' opinions. Docket No. 48. At the conclusion of the hearing, Judge Marcia S. Krieger[1] excluded Dr. Ramos' opinion on the basis that he did not consider "the specifics of this collision and this injury" and did not "exclud[e] on a rigorous basis other alternative causes." Id. at 91-92.

On November 22, 2011, plaintiff filed a motion for reconsideration. Docket Nos. 44 and 46. Plaintiff argued that it was erroneous to exclude Dr. Ramos' opinions given the finding that his methodology is generally accepted in the medical community. Docket No. 46 at 4. Plaintiff argued that the Rule 702 ruling "carved out a distinction, heretofore not supported by any binding precedent, between causation opinions that medical doctors form for the purposes of medical treatment versus causation opinions formed by medical doctors for the purpose of establishing legal liability." Id. On September 13, 2012, the Court granted plaintiff's motion for reconsideration to the extent it sought admission of Dr. Ramos' opinions. Docket No. 67 at 6. The Court found that testimony at the Rule 702 hearing indicated that Dr. Ramos' methodology sufficiently takes into account alternative causes in determining specific causation. Docket No. 67 at 5.

On January 14, 2013, the Court began a six-day jury trial on plaintiff's claims for breach of contract and unreasonable delay or denial of benefits under Colo. Rev. Stat. § 10-3-1116. Docket No. 100. To prevail on his claims, plaintiff had the burden of establishing, by a preponderance of the evidence, that the collision caused his back injuries. Docket No. 106-2 at 13. At trial, Dr. Ramos testified about his methodology and offered his opinion that plaintiff's injuries were caused by the collision. Docket No. 117-2 at 244-47. Counsel for defendant cross-examined Dr. Ramos regarding each step of his methodology. Docket No. 117-3 at 70-85. Plaintiff did not introduce any other evidence in support of his theory of causation. Docket No. 117 at 3; Docket No. 129 at 1-3.

At trial, defendant called Charles Edward Bain, M.D., to testify on causation issues. Dr. Bain testified that the first step of Dr. Ramos' methodology is unreliable from a biomechanical perspective because it does not take into account the magnitude and direction of force placed on an individual's spine in a particular collision. Docket No. 117-6 at 128-32. He further testified that the third step of Dr. Ramos' methodology is unreliable because it does not properly rule out an alternate cause that is "very prominent in the spine literature, " namely, degeneration. Docket No. 48 at 61; see also Docket No. 117-6 at 139-40, 145-46.

On January 24, 2013, the jury rendered a verdict in favor of plaintiff on both of his claims. Docket No. 106-1 at 2. Defendant filed the instant motion on March 6, 2013, seeking a new trial on the basis that Dr. Ramos' opinions should have been excluded as unreliable under Rule 702. Docket No. 117.


Following a jury trial, a "court may, on motion, grant a new trial on all or some of the issues-and to any party" for "any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed.R.Civ.P. 59(a)(1)(A). The erroneous admission of expert testimony may be grounds for a new trial. See Weisgram v. Marley Co., 528 U.S. 440, 445-46 (2000). A motion for judgment as a matter of law may be granted if "a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." Fed.R.Civ.P. 50(a)(1). "[A] party need not renew an objection or offer of proof to preserve a claim of error for appeal" where "the court rules definitively on the record-either before or at trial." Fed.R.Evid. 103(b).

A district court has "broad discretion" to decide "how to assess an expert's reliability, including what procedures to utilize in making that assessment, as well as in making the ultimate determination of reliability." Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir. 2003). The Tenth Circuit reviews de novo "the question of whether the district court applied the proper legal test in admitting an expert's testimony, " but reviews the "actual application of the standard" for abuse of discretion. Id. A district court abuses its discretion if its decision is "arbitrary, capricious, whimsical or manifestly unreasonable" or "exceed[s] the bounds of permissible choice in the circumstances." Id.

The Federal Rules of Evidence permit the admission of scientific evidence if:

(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 has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. In Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993), the Supreme Court explained that district courts must assess scientific evidence to ensure it is both reliable-that is, based on a scientifically valid methodology-and relevant-that is, properly applied to the facts in the case. The Court offered a non-exclusive list of factors to consider, including whether the relied upon theory or technique (1) has been or can be tested; (2) has been subject to peer review and publication; (3) has a known or potential rate of error, and (4) is generally accepted within the relevant community. Id. at 592-95; see also Goebel v. Denver & Rio Grande Western R.R. Co., 215 F.3d 1083, 1087 (10th Cir. 2000) (explaining that the gatekeeper role set forth in Daubert "requires the judge to assess the reasoning and methodology underlying the expert's opinion, and determine whether it is scientifically valid and applicable to a particular set of facts"). "[W]hether Daubert 's specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 153 (1999).

Reliability is not assessed in a vacuum. Rather, expert testimony is only admissible where it has a valid bearing on the facts of the case. See Daubert, 509 U.S. at 591 ("Fit' is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes."). Although courts "should focus on the experts' methodology rather than the conclusions that they generate, " in some cases a court "may conclude that there is simply too great an analytical gap between the data and the opinion proffered." Hollander v. Sandoz Pharm. Corp., 289 F.3d 1193, 1205 (10th Cir. 2002) (internal citations omitted).


Defendant argues that Dr. Ramos' causation opinion should have been excluded under Rule 702 because it lacks scientific validity, is not supported by credible medical literature, and is logically flawed. Docket No. 117 at 3. Plaintiff responds that Dr. Ramos' opinion is based on a methodology ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.