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Rabon v. Kimani

United States District Court, W.D. Arkansas, Texarkana Division

September 11, 2017

TERRANCE RABON and KATHLEEN RABON PLAINTIFFS
v.
JOHN K. KIMANI; TOLYN EXPRESS, LLC; and JOHN DOES 1-6 DEFENDANTS SENRTY SELECT INSURANCE CO. INTERVENOR

          ORDER

          Susan O. Hickey, United States District Judge.

         Before the Court is Defendants John K. Kimani and Tolyn Express, LLC's Motion to Limit Testimony of Habib Gennaoui, M.D. (ECF No. 38). Plaintiffs Terrance Rabon and Kathleen Rabon filed a response. (ECF No. 43). Intervenor Sentry Select Insurance Co. filed a response. (ECF No. 45). The Court finds the matter ripe for consideration.

         I. DISCUSSION

         This case arises from an automobile accident that occurred on October 26, 2013, at the Flying J Truck Stop in Texarkana, Arkansas. Plaintiff Terrance Rabon (“Mr. Rabon”) alleges that he suffers from ongoing pain because of the accident, for which he underwent and is undergoing various forms of medical treatment, including an anterior cervical decompression and fusion surgery in April 2014. The parties do not contest liability in this matter, disputing only causation and damages.

         At trial, Plaintiffs intend to offer the expert deposition testimony of Dr. Habib Gennaoui on the issue of causation. Defendants seek to limit Dr. Gennaoui's testimony in three respects. First, Defendants argue that the Court should exclude Dr. Gennaoui's causation opinions because they are premised solely on the correlation between the automobile accident and the onset of Mr. Rabon's complaints of pain. Second, Defendants argue that the Court should prohibit Dr. Gennaoui from offering any opinions not stated to a reasonable degree of medical certainty. Third, Defendants argue that the Court should prohibit Dr. Gennaoui from testifying that another doctor diagnosed Mr. Rabon with myelomalacia, [1] as this testimony would constitute inadmissible hearsay.

         The Court's starting point for analyzing expert testimony is the Federal Rules of Evidence, which provide in relevant part:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed R. Evid. 702. In Daubert, the United States Supreme Court emphasized the district court's gatekeeper role when screening expert testimony for relevance and reliability. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591-93 (1993).

         When assessing the reliability of expert testimony, Daubert suggests that the Court consider the following non-exhaustive factors: (1) whether the concept can and has been tested; (2) whether the concept has been subject to peer review; (3) what the known rate of error is; and (4) whether the concept is generally accepted by the relevant scientific community. Pestel v. Vermeer Mfg. Co., 64 F.3d 382, 384 (8th Cir. 1995). The inquiry as to the reliability and relevance of the testimony is a flexible one designed to “make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).

         Expert testimony is inadmissible if it is speculative, unsupported by sufficient facts, or contrary to the facts of the case. Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1056-57 (8th Cir. 2000). “Courts should resolve doubts regarding the usefulness of an expert's testimony in favor of admissibility.” Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 758 (8th Cir. 2006). “Only if the expert's opinion is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded.” Bonner v. ISP Techs, Inc., 259 F.3d 924, 929-30 (8th Cir. 2001) (quoting Hose v. Chi. Nw. Transp. Co., 70 F.3d 968, 974 (8th Cir. 1996)). With this in mind, the Court will now address each of Defendants' arguments.

         A. Causation Opinions

         Defendants argues that the Court should exclude Dr. Gennaoui's causation opinions because they are premised solely on the correlation between the automobile accident and the onset of Mr. Rabon's complaints of pain. Defendants argue that Dr. Gennaoui's causation testimony is a post hoc ergo prompter hoc argument, “in which one event is asserted to be the cause of a later event simply by virtue of having happened earlier, ” and thus is insufficient to establish causation and should be rejected.

         Plaintiffs argue that Dr. Gennaoui and other doctors at Dr. Gennaoui's clinic have served as Mr. Rabon's primary-care physicians for a number of years. Plaintiffs state that Dr. Gennaoui's causation opinion was based not only on onset, but also on Mr. Rabon's prior medical history, his examination and physical findings, and the results of radiographic studies. Plaintiffs state that Dr. Gennaoui testified that Mr. Rabon's reported symptoms of pain following the accident were inconsistent with his medical condition and level of functioning before the accident, as followed by Dr. Gennaoui and his partners. Plaintiffs also argue that Defendants' retained expert testified that he also considers onset of symptoms in determining whether symptoms are the result of acute trauma or long-term degeneration.

         Defendants correctly state that a post hoc ergo propter hoc argument is insufficient to establish causation. See Bussman Mfg. Co. v. Nat'l Labor Rel. Bd., 111 F.2d 783, 787 (8th Cir. 1940). Defendants argue that Dr. Gennaoui's causation opinions are based solely on a post hoc ergo propter hoc argument because he identified the correlation of the accident and the onset of Mr. Rabon's complaints of pain as a basis for his causation opinion. Upon further questioning, Dr. Gennaoui stated that there was no other basis for his causation opinion. However, Dr. Gennaoui also testified that he served as Mr. Rabon's primary-care physician for a number of years, and thus was familiar with Mr. Rabon's medical history and physical condition. He testified that Mr. Rabon's reported neck pain and associated headaches were consistent with other patients he treated who complained of suffering neck trauma. Dr. Gennaoui testified that Mr. Rabon underwent a physical examination and diagnostic tests, including an ...


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