United States District Court, D. Colorado
LEWIS T. BABCOCK, JUDGE
This matter is before me on the following motions to exclude expert testimony: 1)Motion to Exclude Certain Opinion Testimony of Mary Ann Keatley, Ph.D and Dr. Rebecca Hutchins, Pursuant to FRE 702 and FRE 403, filed by Defendant Auto-Owners Insurance, Inc. (“Auto-Owners”) [Doc #52]; and 2) Plaintiff’s Motion to Exclude Testimony of Dr. Hal Wortzel and Dr. Stephan Kalat, filed by Plaintiff Robin Dillon [Doc #72]. Neither oral arguments nor testimony from the experts would assist me in my determination of these motions. After consideration of the parties’ briefs and attachments, as well as the testimony provided on Defendant’s Motion to Exclude Certain Opinion Testimony of Janet N. Lemmon, Ph.D. on September 30 and October 1, 2015 [Docs #67 & 68], and for the reason stated, I GRANT Defendant’s motion to exclude portions of proffered testimony from Dr. Keatley and Dr. Hutchins, and I DENY Plaintiff’s request to exclude the expert testimony of Dr. Wortzel and Dr.Kalat.
On July 1, 2009, Plaintiff was stopped in traffic when she was rear-ended by a vehicle driven by Carlos Navarro. Mr. Navarro claims that he hit Plaintiff after making an abrupt lane change when another driver cut him off by pulling into his lane. After she settled her bodily injury claims with the other drivers, Plaintiff then made a claim - under the insurance policy issued by Defendant Auto-Owners on the car she was driving - for the limit of the policy’s underinsured motorist coverage (in the amount of $500, 000) on December 27, 2012. Auto-Owners conveyed a compromise/settlement offer on July 31, 2013, which was not accepted.
Thereafter, on December 30, 2013, Plaintiff filed this action against Auto-Owners in Boulder County District Court and the case was subsequently removed to this Court based on diversity jurisdiction. The claims raised by Plaintiff against Auto-Owners are for: 1) Breach of Insurance Contract; and 2) Statutory Bad Faith Breach in Violation of Colo. Rev. Stat. §10-3-1115 & §10-3-1116, based on “unreasonable delay and for lack of any reasonable basis for denying [Plaintiff’s] claim.”
On October 21, 2015, I denied Auto-Owners’ motion, filed pursuant to Fed.R.Evid. 702, challenging the opinion of Janet Lemmon Ph.D (Plaintiff’s neuropsychologist) that Plaintiff incurred a concussive injury - or mild traumatic brain injury (“MTBI”) - during the accident at issue that, in turn, has caused her permanent cognitive dysfunction. [Doc #71] Specifically, I ruled that while her conclusions were questionable, Dr. Lemmon’s scientific methodology used to come to her opinions as to causation were sufficiently reliable in order to withstand my gatekeeping role under Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
Now pending before me is Auto-Owners’ related motion seeking to exclude opinion evidence proffered by Dr. Mary Ann Keatley (Plaintiff’s speech and language pathologist) and Dr. Rebecca Hutchins (Plaintiff’s optometrist) to the extent that they have opined that Plaintiff’s cognitive issues - in the form of her speech/language and visual deficiencies - were caused by the accident. [Doc #52] As to Dr. Keatley, Auto-Owners argues that she is not qualified to opine about the cause of Plaintiff’s MTBI as she has no medical or nursing degree and she is not certified in neurology, psychiatry or psychology, and her opinion is outside of the reasonable confines of her work in speech pathology. In addition, her opinion as to general causation has no scientific basis and her opinion as to specific causation is not reliable. As to Dr. Hutchins, Auto-Owners contends that she is not sufficiently qualified to testify about the diagnosis or treatment of brain injury, as such opinion is outside the reasonable confines of the discipline of optometry. In addition, Auto-Owners contends that Dr. Hutchins’ opinion is not derived from a proper scientific methodology for either general or specific causation.
Also pending before me is Plaintiff’s motion seeking to exclude expert opinion evidence proffered by Auto-Owners, from its retained experts Dr. Stephen Kalat, a clinical neuropsychologist, and Dr. Hal S. Wortzel, an expert in the field of forensic neuropsychiatry. [Doc #72] It is Dr. Kalat’s opinion that there is insufficient evidence to conclude that Plaintiff sustained a concussion in the accident; rather, he believes that she had a stress reaction that exacerbated her pre-existing depression and anxiety. It is Dr. Wortzel’s opinion that if Plaintiff sustained an uncomplicated MTBI during the accident, it did not result in substantial and persisting neuropsychiatric impairment. Plaintiff seeks to exclude these opinions as to the cause of her injury on the basis that neither Dr. Kalat nor Dr. Wortzel opined that the accident in this case was capable of causing a particular injury in the general population (general causation).
II. RULE 702
“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.” Fed.R.Evid. 702. Rule 702 imposes three requirements for the admission of expert testimony. First, the expert must be qualified by specialized knowledge, skill, experience, training or education to testify on the subject matter of his or her testimony. Second, the testimony must be based upon sufficient facts or data, the product of reliable principles and methods, and the product of the reliable application of these principles and methods to the facts of the case. Finally, the proffered expert testimony must be relevant to an issue in the case and thereby assist the jury in its deliberations. Daubert v. Merrell Dow, supra, 509 U.S. at 592-93. This court performs an important gatekeeping function to assure that each of these prerequisites is satisfied. Id. (charging trial courts with the responsibility of acting as gatekeepers to ensure that expert testimony is both reliable and relevant); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-49, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)(clarifying that the court’s gatekeeper function applies to all expert testimony, not just testimony based in science).
The proponent of expert testimony has the burden of establishing the admissibility of the expert’s opinions under Rule 702 by a preponderance of the evidence. In re Breast Implant Litigation, 11 F.Supp.2d 1217, 1222 (D. Colo. 1998). The decision to admit or exclude expert testimony is reviewed for abuse of discretion. Truck Insurance Exchange v. MagneTek, Inc., 360 F.3d 1206, 1210 (10th Cir. 2004)(noting that the “trial court is afforded substantial deference in its application of Daubert” v. Merrell Dow, supra and “we will only disturb the trial court’s decision if we have a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances”)(citations omitted).
III. DR. KEATLEY
I first address Auto-Owners’ motion seeking to exclude the causation opinion proffered by Mary Ann Keatley, Ph.D., Plaintiff’s speech language pathologist. Plaintiff was referred to Dr. Keatley following the initial assessment of her cognitive functioning by Dr. Lemmon. On March 29, 2012, Dr. Keatley issued an initial report, after a cognitive-linguistic evaluation, containing her conclusions and her recommended course of treatment. [Doc #62-1] In that report, Dr. Keatley indicated that Plaintiff reported “difficulties across all cognitive clusters” including in the areas of memory, attention and concentration, language and communication, balance and sensory functioning, visual perception, executive functioning, financial management, safety, and emotional functioning. Dr. Keatley recommended the following treatment: cognitive-communication treatment; use of an organizational notebook; work in the area of executive functioning; language treatment to improve word retrieval, comprehension and thought formation skills; functional memory strategies and remedial memory activities; work in the areas of sequencing and logic and deductive reasoning; work in the area of abstract thinking; mental manipulation exercises; treatment in speed and capacity of information processing; attention process training; use of noise dampening ear filters; and continued vision therapy. [AR #62-1] Dr. Keatley then provided Plaintiff with cognitive linguistic therapy from March through September of 2012. [Doc #62-2]
Plaintiff proffers that Dr. Keatley will testify that it is her opinion that Plaintiff’s symptoms were caused by an MTBI she received during the car accident at issue in this case. Specifically, Plaintiff indicates in her expert disclosures under Fed.R.Civ.P. 26(a), that Dr. Keatley has “personal knowledge concerning Plaintiff’s injuries when she first treated her that were caused by the accident.” [Doc #65-3] In her deposition testimony, Dr. Keatley was asked about whether or not the accident at issue in this case specifically caused the injury for which Plaintiff sought treatment. Dr. Keatley responded that because Plaintiff did not have the cognitive symptoms before the ...