Salgado v. Elec. Ins. Co.

• Decision Date: 29 October 2020
• Docket Number: CIVIL ACTION NO. 18-00522-JWD-EWD
• Parties: JAMES SALGADO v. ELECTRIC INSURANCE COMPANY, ET AL
• Court: U.S. District Court — Middle District of Louisiana

JAMES SALGADO v. ELECTRIC INSURANCE COMPANY, ET AL

CIVIL ACTION NO. 18-00522-JWD-EWD

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

October 29, 2020

RULING ON ELECTRIC INSURANCE COMPANY'S DAUBERT MOTION IN LIMINE

Before the Court is Electric Insurance Company's ("Defendant" or "Electric") Daubert Motion in Limine. (Doc. 42.) It is opposed by plaintiff Jamie Salgado ("Plaintiff" or "Salgado"). (Doc. 47.) Defendant filed a reply brief. (Doc. 50.) The Court has carefully reviewed the motion and associated memoranda, and, for the following reasons, the motion is denied.

I. BACKGROUND

This suit for personal injury damages arises out of an automobile accident which occurred on June 6, 2017, on Interstate 10 in St. Martin Parish. (Doc. 42-1 at 2.) The facts of this accident are not important for purposes of this motion. Plaintiff claims injuries to his right wrist as well as his cervical and lumbar spine. He sought and received medical treatment from Dr. Charles Schlosser ("Schlosser"), a pain management specialist with Louisiana Medical Clinic ("LMC"). Plaintiff hired Robert Gisclair ("Gisclair"), to develop a life care plan ("Lifecare Plan") to establish the cost of Plaintiff's future medical care. Dr. G. Randolph Rice, economist, was hired to calculate the present value of those future medical costs.

In preparing his report, Gisclair reviewed and evaluated Plaintiff's medical records. In addition, according to Defendant, Gisclair interviewed Plaintiff, interviewed Dr. Joseph Pritchett ("Pritchett"), a chiropractor with LMC who treated plaintiff, and interviewed Schlosser. (Doc. 42-1 at 5.) Gisclair issued his report on March 26, 2020. (Doc. 42-2 at 1-23.) He issued a supplemental report on May 4, 2020 which did not change his conclusions. (Doc. 42-2 at 24-25.) Gisclair's Lifecare Plan was given to Rice who, on March 27, 2020, using the future medical costs reported by Gisclair, issued his own report calculating the present value of the Lifecare Plan. (Doc. 42-3.) Following the filing of this motion, Schlosser submitted an amended opinion in the form of a declaration regarding Salgado's need for future medical care. (Doc 47 at 7 (citing Doc. 47-2).) The updated opinion was conveyed to Gisclair which prompted updated reports from Gisclair and Rice. (Id. (citing Doc. 47-8).)

A central issue in this motion concerns Schlosser's opinion that Salgado will need periodic radiofrequency ablations ("RFAs"), pain management office visits and over-the-counter medication, for the rest of his life to manage the effects of the injury suffered in the accident in question. While Schlosser modified his opinion to reduce the estimated time for future RFAs to once every two years for the next ten years (Doc. 47 at 6-8 (citing Doc. 47-2)), Defendant persists in its challenge. (Doc. 50.)

II. ARGUMENTS OF THE PARTIES

In its motion, Electric moves to "limit the opinions" of Rice, Gisclair and Schlosser "relating to the future medical expenses of plaintiff... that Dr. Schlosser contends [Plaintiff] will require for his lifetime, or 35 years into the future..." (Doc. 42 at 1.)

Electric contends that much of the Lifecare Plan and Dr. Schlosser's opinions regarding Mr. Salgado's future lifetime medical care on which the Lifecare Plan is based are speculative at best, by no means inevitable or necessary and are not supported by any scientific or medical research, or any other evidence sufficient to meet the standards for expert opinion under Daubert and Kumho Tire, or required by F. R. E. Rule 702. More particularly, there is no scientific support for Dr. Schlosser's opinions that Mr. Salgado will undergo bilateral cervical and lumbar RFAs every year for the rest of his life at a total cost of $2,791,799.00, using Dr. Rice's adjustment for present value. Additionally, there is no evidentiary support for the projected need for the cost of quarterly pain management office visits, the use of ibuprofen or the use of Biofreeze for life as is also contained in the Lifecare Plan...

(Doc. 42-1 at 6 (citations omitted).)

In terms of the standard by which this Court should measure the sufficiency of a medical expert's opinions, Electric argues that "Rule 702... contemplates that medical expert opinion enjoy some level of certainty." (Doc. 42-1 at 9 (citing Black v. Food Lion, Inc. 171 F.3d 308 (5th Cir. 1999)) (emphasis added).) Additionally, Electric argues "[L]ike Texas, Louisiana also requires the plaintiff to prove that the expenses will be necessary and inevitable and the expenses must be established 'with some degree of certainty.'" (Id. (citing and quoting Mosbey v. Jefferson Par. Sheriff's Office, 18-69 (La. App. 5 Cir. 6/27/18), 250 So. 3d 1110 (emphasis added)).)

Schlosser's opinions, argues Electric, fall short of that standard. "... Dr. Schlosser was incapable of forecasting with greater than 50% medical certainty the number of RFAs Mr. Salgado would actually need in the future. Stated another way, Dr. Schlosser could not testify with medical certainty more likely than not how many RFA procedures would be required in Mr. Salgado's future." (Id. at 12.) Because the opinions of Gisclair and Rice are ultimately founded on Dr. Schlosser's defective opinion, Electric maintains that these opinions are unsound and should be precluded at trial.

Relying primarily on Brandner v. State Farm Mut. Auto Ins. Co., CV 18-982, 2019 WL 636423 at *8-9 (E.D. La. Feb. 14, 2018), Electric contends that Schlosser's opinion regarding Salgado's need for long term and repeated RFAs lacks sufficient scientific testing and support to pass Daubert muster. (Id. at 12-14.) In addition, Electric argues that the Lifecare Plan's inclusion of periodic pain management visits and over-the-counter medications Ibuprofen and Biofreeze are similarly unsupported. (Id. at 15-16.) Finally, scattered throughout the memorandum in support of its motion, Electric attacks the validity of some of Schlosser's assumptions. (See, e.g., Doc. 42-1 at 15 (questioning Schlosser's opinion that Salgado wouldneed to return for follow-up appointments since the medication being suggested, Biofreeze, does not require a prescription).)

Plaintiff counters that Electric's "argument is factually inaccurate and articulates a higher standard that that required by Daubert and the Federal Rules of Evidence." (Doc. 47 at 3.) Plaintiff emphasizes that the Daubert analysis is a "'flexible' one and 'the factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise and the subject of his testimony.'" (Id. at 4 (citing and quoting this Court's opinion in Pike v. Office of Alcohol and Tobacco Control of the La. Dep. of Revenue, No. 3:14-cv-511, (M.D. La. Jun. 15, 2016) Doc. 85 at 39 attached as Doc. 47-1).)

Plaintiff emphasizes that Schlosser is well qualified to give the opinions rendered on Plaintiff's future medical needs and, in support of this contention, attaches his declaration (Doc. 47-2) and his curriculum vitae (Doc. 47-3). They show that Schlosser graduated cum laude from the Virginia Commonwealth University where he earned a dual BS degree in Biology and Psychology, and a Master of Science degree in Exercise Science. (Doc. 47-3.) He thereafter got his medical degree from LSU Health Science Center. (Id.) He also completed his residency in Physical Medicine and Rehabilitation there. (Id.) In 2008, he completed a Fellowship at the LSU Health Science Center in Interventional Pain Management. This included specialized training in radiofrequency ablations. (Id.) Schlosser has a double board certification in Pain Management and Physical Medicine and Rehabilitation. (Id.) He is an Associate Professor at the LSU Health Science Center/Touro Infirmary. (Id.)

Plaintiff maintains that the "science behind RFAs is generally accepted and reliable" (Doc. 47 at 10) and is supported not only by Schlosser's testimony but by "scientific and peer-reviewed literature." (Id. at 12.) In support of his contention, he attaches Schlosser's Declaration(Doc. 47-2); The International Spine Intervention Society Practice Guidelines for Spinal Diagnostic and Treatment Procedures, 2nd Edition (Doc. 47-9); a pamphlet about the Spine Intervention Society ("SIS") (Doc. 47-10); excerpts from Schlosser's deposition (Doc. 47-11); and a 2010 article entitled The Efficacy of Repeated Radiofrequency Medial Branch Neurotomy for Lumbar Facet Syndrome published in the Journal of Korean Neurosurgery (Doc. 47-12).

Plaintiff argues that since the time of Electric's motion, Schlosser's opinions have been modified to reflect Plaintiff's improving medical condition. As a result, Schlosser has reduced his estimates for future left sided RFAs to once every two years for the next 10 years, and Gisclair prepared an amended Lifecare Plan to reflect this change. (Doc 47 at 7 (citing to Doc. 47-8).) Rice also updated his report. (Id.)

In its reply, Electric contends that Gisclair's updated report "is no more credible or admissible than the original version." (Doc. 50 at 2.) "The timing of the amended Lifecare Plan is as questionable as its contents." (Id.) Electric points out alleged inconsistencies between Gisclair's amended Lifecare Plan and a timeline created by Electric. (Id. at 2-3.)

Electric repeats its contention that "Louisiana state law recognizes that an award of future medical expenses is always somewhat speculative in nature so that plaintiff is required to prove that the expenses will be necessary and inevitable, and the expenses must be established 'with some degree of medical certainty.'" (Id. at 4 (emphasis in original) (again citing Mosbey v. Jefferson Par. Sheriff's Office, 18-69 (La. App. 5 Cir. 6/27/18), 250 So. 3d 1110).)

As to the medical literature attached by Plaintiff to his opposition, "Electric questions whether it was properly presented and whether it should be considered by the Court at all, and more importantly, Electric...