United States District Court, D. Arizona
ORDER
Honorable John J. Tuchi United States District Judge
At
issue is Plaintiff Christine Cameron's Motion to Preclude
Testimony from Defense Expert M. Eric Gershwin, M.D. (Doc.
156, Mot.), to which Defendant Lowe's Home Centers, LLC
filed a Response (Doc. 164, Resp.), and Plaintiff filed a
Reply (Doc. 170, Reply). The Court finds this matter
appropriate for decision without oral argument. See
LRCiv 7.2(f).
I.
LEGAL STANDARD
Rule
702 of the Federal Rules of Evidence tasks the trial court
with ensuring that any expert testimony provided is relevant
and reliable. Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 589 (1999). “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 trial
court must first assess whether the testimony is valid and
whether the reasoning or methodology can properly be applied
to the facts in issue. Daubert, 509 U.S. at 592-93.
Factors to consider in this assessment include: whether the
methodology can be tested; whether the methodology has been
subjected to peer review; whether the methodology has a known
or potential rate of error; and whether the methodology has
been generally accepted within the relevant professional
community. Id. at 593-94. “The inquiry
envisioned by Rule 702” is “a flexible
one.” Id. at 594. “The focus . . . must
be solely on principles and methodology, not on the
conclusions that they generate.” Id.
The
Daubert analysis is applicable to testimony
concerning non-scientific areas of specialized knowledge.
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
141 (1999). However, the Daubert factors may not
apply to testimony that depends the on knowledge and
experience of the expert, rather than a particular
methodology. United States v. Hankey, 203 F.3d 1160,
1169 (9th Cir. 2000) (citation omitted) (finding that
Daubert factors do not apply to police officer's
testimony based on 21 years of experience working undercover
with gangs). An expert qualified by experience may testify in
the form of opinion if his or her experiential knowledge will
help the trier of fact to understand evidence or determine a
fact in issue, as long as the testimony is based on
sufficient data, is the product of reliable principles, and
the expert has reliably applied the principles to the facts
of the case. See Fed. R. Evid. 702;
Daubert, 509 U.S. at 579.
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 Co., 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
Plaintiff
contends that Defendant's expert, Dr. Gershwin, has
failed to prove he has the necessary education and background
to opine on complex regional pain syndrome (CRPS). (Mot. at
6.) She argues that Dr. Gershwin is a “Rheumatologist
with expertise in Immunology” but that his testimony
provides no opinion in regard to rheumatology. (Mot. 4.)
Moreover, Plaintiff asserts that Dr. Gershwin's testimony
is not relevant or reliable because it contains no medical
analysis specifically tied to Plaintiff's CRPS. (Mot. 5,
6; Reply 2.) In response, Defendant argues that Dr. Gershwin
is a renowned rheumatologist with a “unique perspective
on CRPS” that qualifies him to make “the
connection between CRPS and autoimmunity, ” and that
this connection will help the jury understand pain syndromes
and the diagnosis and treatment of patients with pain. (Resp.
at 2-4.)
A.
Whether Dr. Gershwin is Qualified as an Expert to Opine on
CRPS
Plaintiff
argues that Dr. Gershwin's report “does not
establish [his] knowledge or treatment of patients who suffer
from CRPS” and that he failed to provide “any of
his own expertise in his report related to the specific
medical condition of CRPS.” (Mot. at 5.) Conversely,
Defendant contends that Dr. Gershwin does, in fact, have
“specialized knowledge” about CRPS and, in
support, offers three scholarly publications he participated
in writing regarding CRPS. (Resp. at 3.)
After
reviewing Dr. Gershwin's 25-page report, 134-page CV, and
three CRPS articles, the Court finds that he is qualified to
offer opinions regarding CRPS. Under Rule 702, “[a]
witness who is qualified as an expert by knowledge . . . may
testify in the form of an opinion.” In preliminarily
assessing the validity of a purported expert, a consideration
that bears on the inquiry is “whether it has been
subjected to peer review and publication.”
Daubert, 509 U.S. at 580. Although he may be an
immunologist, Dr. Gershwin has co-written several articles on
CRPS, at least one of which has been cited by over 100
“peer review publications.” (Resp. at 3.) His
knowledge meets the standards prescribed under Rule 702.
Therefore, the Court will allow Dr. Gershwin to opine on
CRPS.
B.
Reliability of Dr. Gershwin's Opinions Regarding
Plaintiff
Plaintiff
also argues Dr. Gershwin's report “is not tied to
the facts of the case” and “cannot assist the
trier of fact” because he “does not explain with
any specificity . . . how any of the summarized medical
journals or articles in his report are tied to the facts of
this case.” (Reply at 2.) In response, Defendant
contends that Dr. Gershwin's “citations to medical
literature show his opinions on CRPS are based on sound
scientific facts and data” and that his testimony
“will be helpful to [the jury] in determining issues of
plaintiff's past and future economic and non-economic
damages should [they] find any liability” along with
providing “the trier of fact [with] the history and
understanding of how CRPS began.” (Resp. at 4-5.)
Although
Dr. Gershwin may be qualified to opine on CRPS, the Court
finds portions of his testimony unreliable. He concludes that
Plaintiff “should be treated with a rigorous program of
physical therapy and [submits] that she will have an
excellent response and become fully functional and without
pain in 6 months” by citing to the report of an
examining and treating physician, Dr. Williams. (Doc. 156,
Ex. 1, Gershwin Report at 20.) Because a review of Dr.
Gershwin's report does not reveal evidence that he has
ever treated a patient suffering from CRPS or that he
examined Plaintiff himself, the Court does not find Dr.
Gershwin's conclusion reliable. Dr. Williams can testify
himself as to what his examination of Plaintiff revealed and
what course of treatment is appropriate, as can other
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