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Wilke v. Transportation Insurance Co.

United States District Court, D. Arizona

June 26, 2019

Samuel Wilke, Plaintiff,
v.
Transportation Insurance Company, Defendant.

          ORDER

          Honorable John J. Tuchi United States District Judge

         At 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).

         I. BACKGROUND

         A. Brief Summary of Facts

         Plaintiff 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. ¶¶ 42-46.)

         B. Expert Witness Dr. Anthony T. Yeung

         Anthony 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.[1] 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.)

         Dr. 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.[2] 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.)

         II. LEGAL STANDARD

         Under 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.

         “The 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 (citation omitted).

         II. ANALYSIS

         Defendant 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.)

         A. Dr. Yeung is Qualified to Opine about Medical Causation but not the Reasonableness of ...


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