In January 2017, Plaintiff entered his cabin’s bathroom, steeped in water that allegedly was present on the tile floor due to a leaking pipe, and slipped. He claims that he suffered neck and head injuries as a result.
United States Magistrate Judge Edwin G. Torres wrote that Plaintiff and Defendant moved to challenge the admission of the other party’s proffered expert witnesses, utilizing what could “generously be called a ‘splat-everything-against-the-wall-and-see-what-sticks’ approach.”
After addressing the Plaintiff’s “scattershot, include-every-argument-under-the-sun tactics for challenging the cruise line’s witnesses, Judge Torres said that the cruise line “throws caution to the wind and takes a metaphorical howitzer to each report in the hopes that one of the arguments hits home.”
As one can imagine after hearing that, none of the arguments was successful.
Defendant cruise line first broadly challenged any expert’s reliance on an MRI report prepared by Plaintiff’s expert radiologist. The report utilized diffusion tensor imaging (“DTI”) data, which the cruise line described as a “relatively new MRI-based analysis technique.” The cruise line then proceeded to argue that DTI data shouldn’t be used in legal proceedings for “mild traumatic brain injuries,” which it alleges is the extent of Plaintiff’s injury.
Ignoring the fact that Defendant argued that Plaintiff only suffered a “mild” traumatic brain injury “—which on its face not only appears to be an oxymoron, but is also not a conceded fact —” Judge Torres found Defendant’s arguments wholly without merit. As the cruise line conceded in its motion, “some courts throughout the country…have admitted DTI MRI testimony.” Some would be an understatement, the judge held. He note that “a basic Westlaw search on the subject shows that numerous courts, facing challenges identical to the arguments set forth in Defendant’s motion, found DTI data to be reliable, helpful, and admissible.”
Judge Torres found it curious that Defendant would submit a brief to the Court without acknowledging that DTI data can and has been found to be admissible and an accepted methodology upon which an expert could base his or her opinion. The failure to disclose these cases (or otherwise address them) was, at best, a significant oversight, and at worst, a violation of Defendant’s duty of candor to the court, the judge held. The specter of impropriety was raised when one considers the fact that another court in the District, dealing with the exact type of challenge to DTI data raised in an almost identical case, made this same point to another cruise line when it failed to disclose a multitude of cases where such data was deemed admissible. And this type of “hide the ball” tactic appeared all the more troublesome, the judge said, when, later in its motion, the cruise line directed Judge Torres’ attention to several cases in which one of Plaintiff’s experts had been precluded from testifying at trial. “What is good for the goose is apparently not also good for the gander,” the judge explained.
The judge would not preclude any of Plaintiff’s experts from testifying based on Defendant’s arguments related to the DTI data. Judge Torres also rejected Defendant’s argument that the radiologist’s MRI report should be precluded from reaching the jury for his failure to produce an expert report. The record made clear that the doctor was a treating physician—no report is required of such a witness. There was also no indication that Plaintiff intended to call the expert radiologist at trial as a live witness.
As such, Judge Torres found no basis to preclude the radiologist’s MRI report from being admitted into evidence, and the motion as to its introduction was denied.
The cruise line also argued that two of Plaintiff’s other experts should not be allowed to testify as experts because each bases their opinion “on temporal proximity.” Defendant was correct that temporal proximity “is generally not a reliable indicator of a causal relationship.” And, standing alone, Judge Torres agreed that the mere fact that a plaintiff’s symptoms occur relatively close to a specific underlying incident would be grounds for exclusion.
The judge cited a 1999 Fifth Circuit case that held using temporal proximity to establish causation “is not an exercise in scientific logic but in the fallacy of post-hoc proper-hoc reasoning, which is as unacceptable in science as in law.” Thus, temporal proximity is generally not a reliable indicator of a causal relationship.
The cruise line’s argument still missed the mark, the judge held. The record showed that the expert physicians didn’t base their opinions solely on temporal proximity, despite Defendant’s arguments to the contrary. Both doctors’ causation testimony was significantly more developed than one would be led to believe by the cruise line’s motion, and the arguments contained in the motion to strike were based “more on a selective reading of each expert’s deposition rather than some flaw in the doctors’ methodology,” the judge found.
In its challenge to one of the doctors based on its temporal proximity argument, the cruise line asserted that her opinions were improper because the doctor didn’t have “any pre-incident data [that] could serve as a ‘baseline’ for Plaintiff’s pre-incident cognitive functioning.” Ignoring the fact that such a challenge goes to weight, not admissibility, the expert provided a simple explanation for why this would be the case, testifying that it would be “very rare” for someone to undergo pre-incident cognitive testing without cause to do so!
Further, the doctor stated that the tests she administered to Plaintiff during his evaluation would be “fairly good indicators” of his pre-morbid level of cognitive functioning. The doctor made clear that an absence of cognitive functioning isn’t abnormal, and that the tests she administered could reliably provide information on Plaintiff’s pre-incident cognitive function. Thus, any assertion that this expert based her opinions solely on “temporal proximity” was flatly contradicted in the record before the Court.
Judge Torres said the same was true for the other doctor. A review of his deposition showed that his opinion as to the cause of Plaintiff’s alleged condition had not been based solely on the temporal proximity to the underlying incident. The expert testified he relied on MRI studies performed on Plaintiff’s brain after the incident, in addition to medical records that pre-dated his fall, before rendering any opinions in this case. Once again, Defendant’s claims were undermined by the clarifying testimony this doctor provided in his deposition. In addition, the judge said that even if this were not the case, the arguments raised were much better-suited for cross examination.
Thus, the motions were denied.
Ward v. Carnival Corp., 2019 U.S. Dist. LEXIS 41022 (S.D. Fla. March 14, 2019)