United States District Court, D. Arizona
Honorable John J. Tuchi United States District Judge
issue is the admissibility of expert testimony provided by
Dr. Anthony Yeung on behalf of Plaintiff Samuel Wilke. The
Court considers Defendant's Rule 702/Daubert
Motion to Preclude Dr. Yeung's Expert Opinions (Doc. 129,
Mot.), Plaintiff's Response (Doc. 137, Resp.), and
Defendant's Reply (Doc. 139, Reply). The Court finds this
matter appropriate for decision without oral argument.
See LRCiv 7.2(f).
Brief Summary of Facts
suffered a spine injury while at work on June 24, 2015 (Doc.
1, Ex. A, Compl. ¶ 7.) Defendant, the workers'
compensation insurance provider for Plaintiff's employer,
approved Plaintiff for workers' compensation benefits.
(Compl. ¶ 15.) Plaintiff had two spine surgeries for
herniated discs-the first was on March 18, 2016, and the
second was on June 16, 2016. (Doc. 87, Plaintiff's
Additional Facts Deemed Material (PSOF) ¶¶ 43, 64.)
After each surgery, Plaintiff was prescribed three
medications- oxycodone, docusate sodium, and diazepam-which
he was supposed to fill immediately. (PSOF ¶¶
44-45, 66.) Both times, Plaintiff was unable to fill his
prescriptions for docusate sodium and diazepam immediately
because Defendant initially denied coverage. (Doc. 128,
Defendant's Separate Statement of Facts (DSOF), ¶
3-4, 10, 16; PASOF ¶¶ 45, 66.) Plaintiff alleges
that Defendant's delay in approving his medications after
each surgery caused his spine to re-herniate both times.
(Compl. ¶¶ 21, 27.) Plaintiff's sole claim is
that Defendant breached its duty of good faith and fair
dealing when it delayed approval of the prescriptions,
thereby causing his re-herniations. (Compl. ¶¶
Expert Witness Dr. Anthony T. Yeung
T. Yeung, M.D., a board-certified orthopedic surgeon, wrote
two reports for Plaintiff. For his initial report (Doc. 129,
Ex. 3, Yeung Report), dated in March 2018, Dr. Yeung relied
on records from this litigation and medical records from
Plaintiff's treating surgeon, Dr. Lyle
Young. The Yeung Report concluded that Plaintiff
“was a risk patient for recurrent herniation . . .
because of the size of his initial herniation causing a
defect in the annulus that would make recurrence higher than
average to approximately 20-25% incidence.” (Yeung
Report at 57.) Since Plaintiff was a risk patient, the Yeung
Report opined that “the post-op regimen of prescription
meds [was] even more important.” (Yeung Report at 57.)
The Yeung Report noted that Plaintiff had a re-herniation in
March 2016 and a second re-herniation in June 2016. (Yeung
Report at 57.) It opined that Defendant's delay in
approving the prescription coverage was “more likely
than not a major contribution to the already-high incidence
of recurrent herniation which occurred after both the March
and June, 2016 surgeries.” (Yeung Report at 58.)
Yeung wrote a second report in August 2018 to rebut the
opinions of Defendant's expert witnesses'-Dr John M.
Trang, a pharmacologist, and Dr. Paul R. Gause, an orthopedic
surgeon. (Doc. 129, Ex. 4, Yeung Rebuttal.) Before writing
his rebuttal report, Dr. Yeung reviewed his initial report,
new medical records, and new expert witness opinions and
reports. The Yeung Rebuttal agreed with Dr. Lyle
Young's treatment and recommendations. (Yeung Rebuttal at
99.) It stated that Dr. John Trang's opinion- that the
pharmacologic effects of decussate sodium require 12-16 hours
after ingestion to take maximum effect-“does not excuse
the denial of recommended post op treatment [because] Dr.
Lyle Young is responsible [for] treat[ing] his surgical
patient without second guessing by the insurance carrier or
other professionals[.]” (Yeung Rebuttal at 99.) The
Yeung Rebuttal stated that expert witness Dr. Paul
Gause's opinion “was not critical of Dr.
Young's care, but is intended to provide a defense
opinion from a spine surgeon to support [Defendant] and the
manner in which they intervened in [P]laintiff's surgical
and post-op care[.]” (Yeung Rebuttal at 100.) The Yeung
Rebuttal opined that “[i]nsurance companies should not
dictate medical and surgical care inappropriately as medical
care will always be an art based on science.” (Yeung
Rebuttal at 100.)
Rule 702, an expert may testify on the basis of
“scientific, technical, or other specialized
knowledge” if it “will assist the trier of fact
to understand the evidence, ” provided the testimony
rests on “sufficient facts or data” and
“reliable principles and methods, ” and
“the witness has reliably applied the principles and
methods to the facts of the case.” Fed.R.Evid.
702(a)-(d). The trial judge acts as the
“gatekeeper” of expert witness testimony by
engaging in a two-part analysis. Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 589, 592 (1993).
First, the trial judge must determine that the proposed
expert witness testimony is based on scientific, technical,
or other specialized knowledge. Id.; Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 147 (1999). Second, the
trial court must ensure that the proposed testimony is
relevant-that it “will assist the trier of fact to
understand or determine a fact in issue.” Id.
“Evidence is relevant if it has any tendency to make a
fact more or less probable than it would be without the
evidence and the fact is of consequence in determining the
action.” Fed.R.Evid. 401.
inquiry envisioned by Rule 702” is “a flexible
one.” Daubert, 509 U.S. at 594. “The
focus . . . must be solely on principles and methodology, not
on the conclusions that they generate.” Id.
The advisory committee notes on the 2000 amendments to Rule
702 explain that Rule 702 (as amended in response to
Daubert) “is not intended to provide an excuse
for an automatic challenge to the testimony of every
expert.” See Kumho Tire, 526 U.S. at 152.
“Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are
the traditional and appropriate means of attacking shaky but
admissible evidence.” Daubert, 509 U.S. at 595
argues that the proposed testimony of Dr. Yeung is neither
reliable nor relevant. (Mot. at 1.) Plaintiff asserts that
Dr. Yeung is qualified to testify about medical issues and
that his testimony is relevant to the issue of medical
causation. (Resp. at 7.)
Dr. Yeung is Qualified to Opine about Medical Causation but
not the Reasonableness of ...