United States District Court, D. Colorado
ORDER ON MOTIONS IN LIMINE
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
James Powers has filed two motions in limine: (1) Motion in
Limine to Exclude SPECT Brain Scan and Expert Testimony of
Dr. Gregory Hipskind [filed August 20, 2018; ECF No.
145]; and (2) Motion in Limine to Exclude the Accident
and Visibility Simulations of Knott Laboratory [filed
August 20, 2018; ECF No. 146]. I address each in turn.
Motion in Limine to Exclude SPECT Brain Scan and Expert
Powers first moves to exclude evidence of the SPECT brain
scan conducted on Plaintiff Lupita Lewis, together with the
expert testimony of S. Gregory Hipskind, M.D., PhD.
See ECF No. 145. Plaintiff has filed a Response in
Opposition (ECF No. 159), and Defendant Powers has filed a
Reply Brief (ECF No. 167). Because I find that the concerns
raised by Defendant Powers go to credibility and not
admissibility, the Motion in Limine is
claims that she suffered a traumatic brain injury
(“TBI”) after being struck by a vehicle driven by
Defendant Powers on December 12, 2013. She has endorsed Dr,
Hipskind as an expert. During a visit with Dr. Hipskind on
April 6 and 8, 2016, Plaintiff underwent a Single Photon
Emission Computed Tomography (“SPECT”) scan of
her brain. Dr. Hipskind's “CereScan Brain SPECT and
Assessment Report” dated April 8, 2018, is attached to
the Motion in Limine at ECF No. 145-3, and the brain scan
itself is attached at ECF No. 145-4. Plaintiff has listed
both the CereScan Report and the SPECT Imaging on her exhibit
list. See ECF No. 196-2 at 2.
Powers argues that Dr. Hipskind's testimony should be
excluded at trial under Federal Rules of Evidence 402, 403,
and 702 for three reasons: (1) the SPECT scan would not help
the jury understand Plaintiff's uniquely complicated and
overlapping pre- and post-accident medical and
neuropsychiatric history; (2) any attempt to link the SPECT
scan to a TBI caused by the accident at the center of this
lawsuit would be “unscientific speculation”; and
(3) “the danger of unfair prejudice, confusion of the
issues, and/or misleading the jury substantially outweighs
any remote probative value otherwise attributable to such
evidence.” Mot. in Limine 2. Defendant has engaged his
own expert, Hal S. Wortzel, M.D., who evaluated Plaintiff
under Federal Rule of Civil Procedure 35 and examined her
pre- and post-accident medical records. Dr. Wortzel's
report dated May 19, 2018, is attached to the Motion in
Limine at ECF No. 145-1. His report contains an extensive
criticism of cerebral SPECT imaging and critiques Dr.
Hipskind's qualifications and findings. See Id.
at 26-38. Dr. Wortzel opines that evidence of the SPECT scan
would be misleading to the jury. See Mot. in Limine
4-5 (listing Dr. Wortzel's concerns).
Honorable R. Brooke Jackson considered another car-accident
defendant's motion to exclude expert testimony of Dr.
Hipskind in Blotcher v. Stewart, 45 F.Supp.3d 1274
(D. Colo. 2014). The defendant in that case advanced a
similar argument as Defendant Powers-namely, that “the
brain SPECT scan testimony . . . does not address whether the
alleged abnormality in [the plaintiff's] brain was caused
by the subject accident or by her subsequent accident or by
something else entirely, ” id. at 1279.
Likewise, the defendant in Blotcher engaged Dr.
Wortzel as his own expert. Judge Jackson's order contains
an in-depth analysis of the relevance and reliability of
SPECT brain scans, see Id. at 1278-83, which I
incorporate by reference here in the interest of judicial
first to the relevance of SPECT brain scans, Judge Jackson
explained that establishing causation “isn't the
point of this evidence.” Id. at 1279. Rather,
SPECT scan results are helpful both to clinicians (who
consider them with other available information to determine a
diagnosis of the injury and perhaps its cause) and to lay
jurors (who are “dependent upon expert opinions in
determining whether someone has sustained a traumatic brain
injury”). Id. Judge Jackson then stated,
“The undisputed fact that brain SPECT scan evidence
does not address causation goes to its weight (and can be
emphasized on cross-examination), not to its
admissibility.” Id. Judge Jackson next
addressed the reliability of SPECT brain scans, applying the
factors listed in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 594-95 (1993). He expressly found
that “Dr. Hipskind is qualified to interpret brain
SPECT scan images, ” 45 F.Supp.3d at 1279, and he
affirmed “the scientific validity of SPECT as a
technique, ” id. at 1280. To supplement Judge
Jackson's findings regarding Dr. Hipskind's
experience, I note that Dr. Hipskind's curriculum vitae
lists 128 separate engagements for deposition and trial
testimony from 2006 to the present. See ECF No.
145-5 at 10-20.
end, Judge Jackson took issue only with Dr. Hipskind's
statement that the abnormalities present in the
plaintiff's brain scan were “most
consistent with the literature pertaining to” TBI. The
use of the word “most” troubled him because it
gave too much credence to SPECT imaging as a diagnostic
technique. See 45 F.Supp.3d at 1281. Still, Judge
Jackson validated Dr. Hipskind's ability to testify
“about brain SPECT imaging in general, the testing that
was performed on [the plaintiff], the resulting images, his
opinion that the images reveal areas of . . . abnormalities,
and, importantly, that the abnormalities are
‘consistent with' (as opposed to ‘most
consistent with') a traumatic brain injury.”
Id. at 1282. Such testimony, he found, “would
meet all requirements for admissibility under Rule
702.” Id. In so ruling, Judge Jackson made
clear that “other alleged shortcomings of Dr.
Hipskind's opinions” could be explored on
cross-examination and through the testimony of the
defendants' own experts. Id. Those alleged
shortcomings-“for example, that not all scientists and
doctors view SPECT imaging as valuable even today, that Dr.
Hipskind did not know or consider alternative explanations of
the abnormalities, that the images were obtained some four
and a half years after the subject accident, that even if she
has sustained a mild traumatic brain injury it might have
been caused by [a different accident], etc.”-went
“to the weight and not the admissibility of the
Hipskind and his SPECT imaging studies have been the focus of
repeated unsuccessful challenges before this district court
and others. Judge Jackson chronicles those cases, see
Id. at 1280-81, noting that Dr. Hipskind's testimony
was not excluded in any of them while recognizing that the
district judge in one of the earlier cases characterized his
testimony as “shaky but admissible.” See
Id. (quoting Searcy v. Hamburger, No.
02-cv-2260-ZLW-MJW, 2005 WL 6047271, at *5 (D. Colo. June 3,
2005)). My research has uncovered yet another case with an
outcome similar to that in Blotcher. In Lompe v.
Sunridge Partners, LLC, No. 12-cv-88-J, 2013 WL
11841489, at *1 (D. Wyo. Nov. 7, 2013), the district court
denied a motion to exclude evidence and testimony relating to
the results of a SPECT scan (which was performed by a
different doctor), stating:
Defendants may explore Dr. Hipskind's expert testimony
and his reliance on and use of the SPECT scans on
cross-examination. The issues raised in this motion go to
weight of the evidence and credibility of the witness. If
unanticipated questions arise concerning Dr. Hipskind's
testimony, they may be revisited out of the presence of the
jury at sidebar.
Id.; see also Ellis v. Liberty Life Assurance
Co., ___ F.Supp.3d ___, 2018 WL 4467197, at *2, 9, (D.
Colo. 2018 (considering Dr. Hipskind's report on a
plaintiff's SPECT brain scans in the ERISA context).
Powers has proffered no reason for me to depart from the
well-reasoned precedent set forth above. Furthermore, Dr.
Hipskind's report in the instant case contains
significant limiting language. It acknowledges, for instance,
that the scan was performed as part of a “blind
review” and twice states that “[c]lose
correlation with the patient's entire medical [or
clinical] history is advised.” ECF No. 145-3 at 5. It
also explicitly recognizes that “the utilization of
SPECT for the evaluation of psychiatric disorders is still
considered an emerging science and therefore in the
investigational stage, ” such that SPECT-based
“findings are not considered stand alone or diagnostic
per se and should always be considered in conjunction with
the patient's clinical condition.” Id.
(italics omitted). It further cautions: “These data
should only be used as additional information to add to the
clinician's diagnostic impression.” Id.
(italics omitted). In my opinion, this limiting language
assuages Defendant Powers's concern that the SPECT brain
scan will confuse or mislead the jury-particularly because
his own expert, Dr. Wortzel, will be able to espouse his
contrary position that a SPECT brain scan is of limited value
in assessing an accident victim with a pre- and post-accident
medical and neuropsychiatric history that is as complicated
as Plaintiff's. Accordingly, the first motion in limine
Motion in Limine to Exclude Accident and ...