United States District Court, W.D. Arkansas, Texarkana Division
O. HICKEY, CHIEF UNITED STATES DISTRICT JUDGE
the Court is Defendant Elmer Enrique Ventura's Motion to
Exclude Dr. Kamal Kabakibou. ECF No. 104. Plaintiff
Marqchello Jordan has filed a response. ECF No. 111. The
Court finds the matter ripe for consideration.
case arises from an automobile accident that occurred on May
6, 2015, on I-30 near Prescott, Arkansas. Jordan and Ventura
are both tractor-trailer drivers. Jordan claims that Ventura
entered into Jordan's travel lane and pushed his
tractor-trailer into another, disabled tractor-trailer parked
on the side of the interstate. Jordan alleges that he
suffered injuries as a result of the accident.
trial, Plaintiff intends to offer the expert testimony of Dr.
Kamal Kabakibou regarding the cause of Jordan's injuries.
Dr. Kamal Kabakibou is Jordan's treating physician.
Ventura asserts that Dr. Kabakibou's opinion that the
accident caused Jordan's injuries should be excluded
because it is premised solely on the correlation between the
onset of Plaintiff's subjective complaints of pain and
the accident. Jordan responds that Dr. Kabakibou has applied
routine and accepted medical practices to draw a conclusion
as to the cause of Plaintiff's injuries.
Court's starting point for determining the admissibility
of expert testimony is Federal Rule of Evidence 702, which
provides a three-part test:
First, evidence based on scientific, technical, or other
specialized knowledge must be useful to the finder of fact in
deciding the ultimate issue of fact. This is the basic rule
of relevancy. Second, the proposed witness must be qualified
to assist the finder of fact. Third, the proposed evidence
must be reliable or trustworthy in an evidentiary sense, so
that, if the finder of fact accepts it as true, it provides
the assistance the finder of fact requires.
Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th
Cir. 2001) (internal citations and quotations omitted). Rule
702 articulates three criteria for courts to use in judging
the reliability of an expert's opinion: (1) “the
testimony is based on sufficient facts or data;” (2)
“the testimony is the product of reliable principles
and methods;” and (3) “the expert has reliably
applied the principles and methods to the facts of the
case.” Fed.R.Evid. 702(b)-(d). 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).
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).
testimony is inadmissible only 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). When analyzing an
expert's testimony, the court must focus on the
principles and methodology employed by the expert, and not on
the conclusions generated by the expert. Daubert,
509 U.S. at 594. “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); see
also Polski v. Quigley Corp., 538 F.3d 836, 838 (8th
Cir. 2008) (“Rule 702 reflects an attempt to liberalize
the rules governing the admission of expert testimony. The
rule clearly is one of admissibility rather than
exclusion.”). “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).
Kabakibou's expert testimony meets the first two
requirements of Rule 702. First, the testimony is relevant
and can assist the jury in making a determination regarding
Jordan's injuries. Second, the Court finds that, based on
his expertise and experience, Dr. Kabakibou is qualified to
assist the finder of fact in making this determination.
primary argument is that Dr. Kabakibou's opinion does not
satisfy the third requirement under Rule 702 because it is
not reliable or trustworthy. Specifically, Ventura argues
that Dr. Kabakibou's opinions are unreliable because they
are premised solely on the correlation between the accident
and the onset of Jordan's complaints of pain. Ventura
asserts that Dr. Kabakibou's causation testimony is based
on an impermissible post hoc ergo propter hoc
argument-an argument in which one event is asserted to be the
cause of a later event simply by virtue of having happened
earlier, with nothing more to support it. Ventura
characterizes Dr. Kabakibou's causation opinion as
follows: because the accident occurred before Jordan's
subjective complaints of back pain, the accident must have
caused the pain. Ventura argues that Dr. Kabakibou has not
demonstrated the scientific analysis used to arrive at this
deposition, during questioning by defense counsel, Dr.
Kabakibou, testified that he based his causation opinion
“mainly” on Jordan's medical history. ECF No.
104-1, pp. 6-7. Dr. Kabakibou explained that because
Jordan's back problems started immediately after the
accident and Jordan had no history of back problems before
the accident, the cause of Jordan's back problems is
logically related to the accident. ECF No. 104-1, p. 10. When
asked by defense counsel whether the correlation between the
onset of Jordan's condition and the occurrence of the
accident was the entirety of the basis of his causation
opinion, Dr. Kabakibou replied that it was. ECF No. 104-1,
pp. 9-10. However, Dr. Kabakibou also testified during the
deposition that he relied on patient history, imaging
studies, medical records from another treating physician, and
a physical examination in formulating his causation opinion.
ECF No. 111-3, pp. 3-5. Dr. Kabakibou further explained in an
affidavit that he relied on these items to conduct a
“differential diagnosis, ” meaning he considered
all likely scientific causes of Jordan's injuries and
pain complaints and eliminated the least likely causes until
the most likely one remained. ECF No. 111-1. Dr. Kabakibou
has twenty years of experience treating patients with
traumatic injuries and stated that Jordan's reported
spinal injuries were consistent with other patients he
treated who had suffered spinal trauma. ECF No. 111-3, pp.
23-24. Thus, it appears from the sum of the deposition
testimony that Dr. Kabakibou considered more than just the
temporal relationship between the accident and the onset of
consideration, the Court cannot find that Dr. Kabakibou's
methodology is invalid or unreliable or that his expert
opinion is speculative, unsupported by sufficient facts, or
contrary to the facts of the case. Dr. Kabakibou explained
that, in coming to his conclusion, he relied on Jordan's
medical history, imaging studies, medical records from
another treating physician, and a physical examination, all
of which he used to conduct a differential diagnosis. The
Eighth Circuit has held that “a medical opinion about
causation, based upon a proper differential diagnosis, is
sufficiently reliable to satisfy Daubert.”
Kudabeck v. Kroger Co., 338 F.3d 856, 861 (8th Cir.
2003). Ventura's arguments attack the credibility and
weight that Dr. Kabakibou's testimony and opinions should
be given, but Ventura has failed to demonstrate that Dr.
Kabakibou's opinions were reached in an unreliable manner
or that his opinions are untrustworthy. Accordingly, the
Court finds that Ventura's motion (ECF No. 104) should be
and hereby is DENIED.