Hollyer v. Trs. of Dartmouth Coll.
| Decision Date | 10 August 2022 |
| Docket Number | CIVIL 20-cv-954-SE,Opinion 2022 DNH 096 |
| Parties | Khia Hollyer v. Trustees of Dartmouth College |
| Court | U.S. District Court — District of New Hampshire |
Khia Hollyer brings suit against the Trustees of Dartmouth College (“Dartmouth”), asserting negligence claims arising out of injuries she allegedly suffered while weight training in
Dartmouth's facilities and under the supervision of Dartmouth employees. Dartmouth filed two motions in limine seeking to preclude some or all of the testimony of Hollyer's experts. The first seeks to limit the testimony of Dr. Douglas Goumas. Doc. no. 17. The second seeks to preclude the testimony of Thomas LeBrun in its entirety. Doc. no. 18. Hollyer objects to both motions.
Hollyer was in a car accident in December 2016, after which she suffered shoulder, neck, and back pain. She received treatment for her injuries from her physiotherapist, Nico Berg, and by June 2017 she was physically cleared to participate in Dartmouth's Field Hockey Program (“Program”) that summer. Berg wrote a letter stating that Hollyer could participate in the Program but suggested “limiting any heavy or overhead strength and conditioning for the next 4 months.” Doc no. 1, ¶ 8.
Hollyer arrived on Dartmouth's campus for the Program on August 16, 2017. A few days later, Hollyer, her mother, or both gave a copy of Berg's letter to Meredith Cockerelle Dartmouth's Athletic Trainer, and relayed the contents of the letter to Mark Kulbis, Dartmouth's Strength and Conditioning Coach for Field Hockey and Football.
In September 2017, Kulbis directed Hollyer to perform a “trap bar deadlift exercise” during a Program workout.[1] Hollyer alleges that Kulbis provided her with minimal instruction and told her to lift an excessive amount of weight (84% of her bodyweight), despite Berg's letter and her limited weightlifting experience.
Hollyer injured her back during the exercise. Over the following days, Cockerelle led Hollyer in other exercises and practices despite Hollyer's complaints of pain.
Hollyer sought medical treatment and was diagnosed with an L5-S1 disc herniation. She alleges that she has suffered and continues to suffer from various symptoms because of her injury, including right leg weakness, diminished reflexes, and urinary incontinence. She brings this action alleging several negligence claims against Dartmouth and seeking to recover damages for her injuries.
Hollyer designated two expert witnesses-Dr. Goumas and LeBrun-both of whom authored expert reports. In her expert disclosure Hollyer stated that Dr. Goumas “will testify regarding the treatment provided to Ms. Hollyer, along with the cost of such care, future medical treatment, and any long-term pain or discomfort the Plaintiff may have as a result of this accident.” Doc. no. 17-1 at 1. With regard to LeBrun, Hollyer stated that he “will testify regarding his expert knowledge of weightlift training and the mechanics of the strengthening exercise that caused the injury to Ms. Hollyer and how it relates to the same.” Id. at 2. Dartmouth challenges the admissibility of some or all of Dr. Goumas's and LeBrun's opinions on the grounds that they are irrelevant, unreliable, or not helpful to the jury.
“The touchstone for the admission of expert testimony in federal court litigation is Federal Rule of Evidence 702.” Crowe v. Marchand, 506 F.3d 13, 17 (1st Cir. 2007). “As the Supreme Court of the United States explained in Daubert v. Merrell Dow Pharmaceuticals, Inc., Federal Rule of Evidence 702 assigns a ‘gatekeeping role for the judge' to ‘ensur[e] that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.'” Lopez-Ramirez v. Toledo-Gonzalez, 32 F.4th 87, 94 (1st Cir. 2022) (quoting Daubert, 509 U.S. 579, 597 (1993)).
The party seeking to introduce expert testimony bears the burden of proving its admissibility. Daubert, 509 U.S. at 592. The burden is not especially onerous, however, because “Rule 702 has been interpreted liberally in favor of the admission of expert testimony.” Levin v. Dalva Bros., Inc., 459 F.3d 68, 78 (1st Cir. 2006). Thus, when determining whether expert testimony satisfies the relevant foundational requirements, a court must be mindful of the “important difference . . . between what is unreliable support and what a trier of fact may conclude is insufficient support for an expert's conclusion.” Martinez v. United States, 33 F.4th 20, 24 (1st Cir. 2022) (quotation omitted). “That the factual underpinning of an expert's opinion is weak is a matter affecting the weight and credibility of the testimony - a question to be resolved by the jury.” Id. (quotation omitted).
Dr. Goumas is an orthopedic surgeon who specializes in sports medicine. As mentioned above, he authored an expert report in which he offers opinions regarding the cause and extent of Hollyer's injuries, and the reasonableness of the treatment that she has received and that she may require in the future. Doc. no. 17-1.
Dartmouth challenges four parts of Dr. Goumas's opinion and argues that he should be precluded from offering them at trial. The challenged portions of the opinion are:
Dr. Goumas's report is dated June 1, 2020 and is based on Hollyer's treatment records up to April 4, 2019. Dartmouth moves to preclude Dr. Goumas from testifying about any treatment Hollyer received after April 4, 2019. Hollyer responds that she provided Dr. Goumas with subsequent medical records and that he should be allowed to offer his opinion about the reasonableness of that treatment as well.
A party is limited to expert opinions that have been disclosed to the opposing party in a written report. Fed.R.Civ.P. 26(a)(2)(B)(i). Hollyer and Dartmouth did not stipulate to a different form of expert report than that specified in Federal Rule of Civil Procedure 26(a)(2). Doc. no. 11. Unless the parties stipulate to a different form of expert report, that report must include “the facts or data considered by the witness in forming” his or her opinion. Fed.R.Civ.P. 26(a)(2)(B)(ii). If there is a material change or addition to the information included in the expert's opinion, a party must supplement the report with that information. Id. (e)(2).
Dr. Goumas's report is based on Hollyer's medical records up to April 4, 2019. To date, Hollyer has not produced a supplemental report to add Dr. Goumas's opinion based on medical records after that date. In the absence of such a report, Dr. Goumas's opinion is limited to the timeframe of the records reviewed, which is up to April 4, 2019. For that reason, Dartmouth's motion to preclude Dr. Goumas from testifying about the reasonableness and necessity of treatment Hollyer received after April 4, 2019, is granted. Should Hollyer supplement Dr. Goumas's report pursuant to Rule 26(e) prior to the deadline, testimony regarding treatment included in the supplemental report will be allowed.
In his expert report, Dr. Goumas states: “The consensus opinion from [Hollyer's] specialists is that . . . Hollyer's ongoing urinary incontinence is as a result of the S1-S2 nerve root injury/impingement that occurred from the herniated disc on 9/9/17.” Doc. no. 17-1 at 12. The report later states, “Ms. Hollyer continues to have urinary incontinence as a result of the disc herniation that occurred on 09/19/17.” Id.
Dartmouth argues that the court must preclude Dr. Goumas's testimony on the cause of Hollyer's urinary incontinence because his opinion is merely the “regurgitation of purported opinions from other providers ... .” Doc. no. 17 at 5. Dartmouth contends that Dr. Goumas does not offer any independent basis for his opinion or explain why he believes the providers' opinion is correct and that, therefore, his opinion is inadmissible.
It is true that “nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). However, the court cannot conclude at this stage that Dr. Goumas's opinion as to the cause of Hollyer's urinary incontinence is as bereft of foundational support as Dartmouth suggests. Although the report does not specifically provide the basis for Dr. Goumas's opinion about the cause of Hollyer's urinary incontinence, Dr. Goumas states in his report that his opinions are based on his review of Hollyer's medical records. Doc. no. 17-1 at 3. Dartmouth could have deposed Dr. Goumas to explore the basis of his opinions, including his opinion as to the cause of Hollyer's urinary incontinence. It chose not to do so.
At this stage, in light of the liberal interpretation courts have given to Rule 702, the court declines to preclude Dr Goumas's opinion testimony as to the cause of Hollyer's urinary incontinence. To the extent that Dartmouth seeks to attack the basis for that opinion, it may do so during trial. See Daubert, 509 U.S. at 596 (...
To continue reading
Request your trial