ROBERT H. JACOBVITZ, Bankruptcy Judge.
Before the Court are the following motions: 1) Defendant Quorum Health Resources, LLC's Motion to Preclude the Testimony of Plaintiffs' Economist, M. Brian McDonald, Ph.D., on the Issue of Hedonic Damages or in the Alternative, to Limit his Opinions to a General Description of Hedonic Damages, Excluding Opinions as to Specific Values or Ranges of Values ("Motion to Preclude or Limit Expert Testimony on Hedonic Damages") (Docket No. 641); 2) Defendant Quorum Health Resources, LLC's Motion to Preclude the Speculative Opinions of Plaintiffs' Life Care Planner, Angelo Romagosa, M.D. ("Motion to Preclude Testimony of Dr. Romagosa") (Docket No. 642); and 3) Defendant Quorum Health Resources, LLC's Daubert Motion to Preclude Speculative Opinions Concerning Alleged Injuries from PMMA ("Motion to Preclude Testimony of Dr. Harvie and Dr. Rashbaum") (Docket No. 643) (together, the "Daubert Motions"). Quorum Health Resources ("QHR") contends that certain expert testimony United Tort Claimants ("UTC") intend to offer in the upcoming damages trials fails to meet the admissibility standard for scientific evidence under Federal Rule of Evidence 702 established by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). UTC oppose the Daubert Motions.
After considering counsel's arguments and the relevant case law, the Court will exercise its sound discretion to allow the expert testimony of Dr. Romagosa regarding future medical needs and costs, and the expert testimony of Dr. Harvie and Dr. Rashbaum regarding alleged injuries from the injection of polymethylmethacralate ("PMMA") during the surgical procedures (the "PDA procedures") at issue in these adversary proceedings. The Court will also allow Dr. McDonald to provide limited testimony regarding the concept and meaning of hedonic damages. Accordingly, the Court will deny the Motion to Preclude Testimony of Dr. Romagosa, deny the Motion to Preclude Testimony of Dr. Harvie and Dr. Rashbaum, and grant, in part, the Motion to Preclude or Limit Expert Testimony on Hedonic Damages.
Standards for Admission of Expert Scientific Testimony
Federal Rule of Evidence 702, made applicable adversary proceedings in bankruptcy cases by Fed. R. Bankr. P. 9017, governs expert testimony. It provides:
The first requirement for the Court to consider under Rule 702 is the proposed expert's qualifications. Assuming the expert is qualified to give expert testimony, "Rule 702 imposes a gatekeeping function on district courts to ensure expert testimony is admitted only if it is relevant and reliable." Etherton v. Owners Ins. Co., 829 F.3d 1209, 1217 (10
Expert testimony is "relevant" if it will help the factfinder to understand the evidence or determine a fact issue. See Daubert, 509 U.S. at 591 (explaining that Rule 702's condition that the evidence or testimony "`assist the trier of fact to understand the evidence or to determine a fact in issue'. . . . goes primarily to relevance.") (quoting Rule 702); Etherton, 829 F.3d at 1217 ("The `help the trier of fact' language of Rule 702 is a relevance test for expert testimony. . . . the expert testimony must `fit'— it must relate to a disputed issue in the case.") (citing Daubert, 509 U.S. at 591-92).
Expert testimony is "reliable" under Rule 702 if it is "based on sufficient facts or data," "is the product of reliable principles and methods," and is the result of the expert witness's reliable application of "the principles and methods to the facts of the case." Fed. R. Evid. 702(b), (c), and (d). In testing reliability, courts also apply, to the extent applicable, the four nonexclusive factors identified in Daubert: "(1) whether the opinion at issue is susceptible to testing and has been subjected to such testing; (2) whether the opinion has been subjected to peer review; (3) whether there is a known or potential rate of error associated with the methodology used and whether there are standards controlling the technique's operation; and (4) whether the theory has been accepted in the scientific community." Dodge v. Cotter Corp., 328 F.3d 1212, 1222 (10
The applicability of any of these factors largely depends upon the particular facts and circumstances of the case. Kumho Tire, 526 U.S. at 150 (concluding "that we can neither rule out, nor rule in, for all cases and for all time the applicability of the factors mentioned in Daubert. . . . Too much depends upon the particular circumstances of the particular case at issue."). Ultimately, the Court's inquiry under Rule 702 is "a flexible one." Daubert, 509 U.S. at 594. The Court has "broad discretion . . . in deciding how to assess an expert's reliability, including what procedures to utilize in making that assessment, as well as in making the ultimate determination of reliability." Dodge, 328 F.3d at 1223 (citing Kumho Tire, 526 U.S. at 152) (remaining citation omitted)). See also, Kumho Tire, 526 U.S. at 152 ("the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable").
When the Court is the fact finder, it has greater leeway to admit expert testimony and later discount its persuasive value as it deems appropriate. See Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 780 (10
With these standards in mind, the Court will consider each of QHR's Daubert Motions to determine whether the proffered expert witness testimony should be admitted at the damages trials.
Expert Testimony of Life Care Planner Regarding Future Medical Needs and Costs
QHR seeks to preclude the expert testimony of Angelo Romagosa, M.D. regarding UTC's future medical needs and associated costs resulting from the surgical procedures at issue in these proceedings. For each UTC Plaintiff in these adversary proceedings, Dr. Romagosa prepared a life care plan and life care plan update. A life care plan provides an estimate of the anticipated medical costs necessitated by the injury.
QHR does not contest Dr. Romagosa's qualifications. As a board certified medical doctor who has served as a life care planner for more than ten years, he is qualified to complete both the assessment of plaintiffs' future medical needs and the life care plans estimating those associated anticipated costs. QHR asserts that Dr. Romagosa's proffered testimony fails to meet the reliability requirement of Rule 702 and Daubert. "Under Daubert, `any step that renders the analysis unreliable . . . renders the expert testimony inadmissible. This is true whether the step completely changes a reliable methodology or merely misapplies that methodology.'" Dodge, 328 F.3d at 1222 (quoting Mitchell v. Gencorp Inc., 165 F.3d 778, 782 (10
QHR contends that Dr. Romagosa's testimony is unreliable because it is speculative by failing to separate the costs associated with any pre-existing conditions from those arising from the PDA procedure. In his deposition, Dr. Romagosa testified as follows: "I don't know of a pathologist, and I don't know of a spine surgeon that can actually tease that apart to say PMMA caused this, and a pre-existing condition caused this." Deposition Transcript of Dr. Romagosa, 48:18-25. Plaintiffs each had some back problem or condition for which they sought treatment before they received the PDA procedure. QHR argues that plaintiffs must prove damages that compensate for the aggravation or worsening of the pre-existing condition caused by the PDA procedure.
UTC argues that these adversary proceedings are not "aggravation of injuries" cases, and that the Court needs to hear the testimony of other witnesses to put Dr. Romagosa's testimony in context and to assess its import. UTC's argues further that QHR's objections really go to the weight of the testimony and not to admissibility. This Court agrees with this latter argument.
"[R]ejection of expert testimony is the exception rather than the rule." Advisory Committee Notes to Rule 702 (2000 Amendments). QHR will have an opportunity to attack UTC's expert testimony through cross-examination and through presentation of its own expert testimony. See Daubert, 509 U.S. at 596 ("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.") (citation omitted). The Court will qualify Dr. Angelo Romagosa as an expert to give life care planning testimony. After hearing the testimony of Dr. Romagosa and all other witnesses at the damages trials, the Court will determine whether or to what extent this is an aggravation of pre-exiting injuries case and what weight, if any, to give to Dr. Angelo Romagosa's expert testimony.
Expert Testimony Regarding Injuries from PMMA
QHR also seeks to exclude the testimony of Dr. Keith Harvie and Dr. Ralph Rashbaum. Again, QHR does not contest their qualifications as experts. Similar to its arguments regarding the admissibility of Dr. Romagosa's testimony, QHR complains that the proffered testimony of Dr. Harvie and Dr. Rashbaum regarding injuries from PMMA fails to account for damage suffered as the result of pre-existing conditions. QHR asserts that Drs. Harvie and Rashbaum have not considered alternative explanations for the harms plaintiffs have suffered, give opinions not supported by the literature, and fail to adequately explain the basis for their opinions or to take into account the actual effects of PMMA on UTC members on an individualized basis.
The Court will qualify Drs. Harvie and Rashbaum as experts to give testimony concerning injuries caused by PMMA. Such testimony satisfies the relevance and reliability requirements of Rule 702 and is admissible. Testimony regarding the effects of PMMA is relevant because it relates to the procedures at issue in these adversary proceedings and will assist the Court in understanding the nature of the alleged injuries. The proffered testimony is reliable because it is based on these witnesses' experience, expertise, and training, as applied to their review of each of the plaintiffs' medical information. Dr. Harvie spoke to each of the plaintiffs by phone before issuing his report. Dr. Rashbaum reviewed updated medical information for each of the plaintiffs since they underwent the PDA procedure. QHR complains that the testimony of Drs. Harvie and Rashbaum fail to account for other possible explanations for the plaintiffs' current medical conditions, and that testimony about what potential injuries can result from the use of PMMA in the procedures performed on the plaintiffs cannot be relied upon to determine what actually happened to any particular plaintiff. But these potential shortcomings affect the persuasiveness of the testimony rather than its admissibility.
The weight given such testimony is a separate issue. See McCoy v. Whirlpool Corp., 287 Fed.Appx. 669, 679 (10
Expert Testimony Regarding Hedonic Damages
UTC seek to offer the expert testimony of Dr. Brian McDonald, an economist with a Ph.D. in economics from the University of Pennsylvania, and a Bachelor of Arts in economics from Georgetown University, on the issue of hedonic damages. Hedonic damages, which provide compensation for the loss of enjoyment of life, are recoverable under New Mexico law. See Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1246 (10
In Smith v. Ingersoll-Rand Co., 214 F.3d 1235 (10
QHR does not contest Dr. McDonald's qualifications. At oral argument, QHR and UTC agreed further that, to the extent Dr. McDonald is allowed to testify, he may only provide testimony regarding hedonic damages consistent with Ingersoll-Rand.
QHR's remaining argument is relevance. QHR contends that Dr. McDonald's testimony is unnecessary because the Court is already aware of what hedonic damages are. If the testimony is unnecessary, it fails to meet the relevance requirement because it will not aid the Court. This Court disagrees. The bankruptcy court is a specialized court. Unlike state courts, federal bankruptcy courts only occasionally conduct personal injury damages trials. Expert testimony regarding the nature of hedonic damages as a component of the damages that may be awarded to compensate UTC for their injuries will assist the Court in its role as trier of fact.
Consistent with Ingersoll-Rand, and the parties' agreement, the Court will allow Dr. McDonald to give expert testimony regarding the concept of hedonic damages, how they differ from other types of damages, and the kinds of human experiences that the Court should consider when fixing damages for the loss of enjoyment of life. The Court will exclude any testimony regarding the amount or computation of hedonic damages. Permitted conceptual testimony regarding hedonic damages may include the following:
Dr. McDonald is precluded from giving any testimony regarding economic research on the value of a statistical life, the value of a statistical life, or any other testimony that places a dollar figure on hedonic damages, whether in the abstract or with respect to a particular plaintiff, or that describes a numeric range or formula, benchmark figure, or guidelines for calculating hedonic damages.
Based on the foregoing, the Court will deny the Motion to Preclude Testimony of Dr. Romagosa and deny the Motion to Preclude Testimony of Dr. Harvie and Dr. Rashbaum. Drs. Romagosa, Harvie and Rashbaum are qualified experts and the subject matter of their expert testimony meets the relevancy and reliability requirements of Rule 702. The Court will grant the Motion to Preclude or Limit Expert Testimony on Hedonic Damages, in part, to limit Dr. McDonald's expert testimony to the nature of hedonic damages and the general areas of human experience that should be considered when awarding damages for the loss of enjoyment of life. After considering the expert testimony, the Court will give it whatever weight it deems appropriate, including disregarding some or all of the proffered testimony in its entirety. The Court will enter separate orders consistent with this Memorandum Opinion.