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Barcus v. The Phoenix Insurance Co.

United States District Court, D. Kansas

January 25, 2019

WILLIAM LANE BARCUS, Plaintiff,
v.
THE PHOENIX INSURANCE CO., Defendant.

          MEMORANDUM AND ORDER

          HOLLY L. TEETER UNITED STATES DISTRICT JUDGE

         Plaintiff William Lane Barcus brings this action seeking underinsured motorist benefits from his insurer, Defendant The Phoenix Insurance Co., in connection with a May 2013 motor vehicle accident. Plaintiff contends the accident caused a traumatic brain injury, resulting in vestibular symptoms and permanent cognitive deficits. Defendant disputes the nature and extent of Plaintiff s injuries and the value of Plaintiff s alleged damages.

         Before the Court are five motions to exclude expert testimony (Docs. 92, 93, 94, 95, 96). After a detailed review, the Court denies Plaintiffs motions to exclude testimony of Dr. Maria Korth, Dr. Rachel Jensen, and Dr. Keith Kobes (Docs. 92, 93, 94). The Court grants Defendant's motion to exclude testimony of Michael Dreiling (Doc. 96) and grants in part and denies in part Defendant's motion to exclude testimony of Dr. Julia Johnson (Doc. 95).

         I. STANDARD

         Federal Rule of Evidence 702 governs the admissibility of expert testimony and imposes upon the district court a “gatekeeping obligation” to ensure that expert testimony is both relevant and reliable. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999). A court's gatekeeping function, however, does not replace the traditional adversary system and the role of the jury. Cohen v. Lockwood, 2004 WL 763961, at *2 (D. Kan. 2004). Where there are questions related to the bases and sources of an expert's opinion, these issues go to the weight to be assigned to that opinion-rather than admissibility-and are for the trier of fact to determine. Id. The burden is on the party offering the expert testimony to prove its admissibility. United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009).

         II. ANALYSIS

         A. Defendant's Experts

         Defendant offers testimony from Dr. Maria Korth, Dr. Rachel Jensen, and Dr. Keith Kobes to support its position that (1) Plaintiff did not suffer a traumatic brain injury in the subject accident and (2) Plaintiff is no longer experiencing any cognitive deficits as a result of the accident. Plaintiff moves to exclude the proffered testimony. Docs. 92, 93, 94. The Court addresses Plaintiffs arguments with respect to each expert.

         1. Dr. Maria Korth (Doc. 94)

         Dr. Korth is a neuropsychologist and one of Plaintiff s primary treating providers. Plaintiff was referred to Dr. Korth for evaluation and treatment after complaining of so-called “vestibular” symptoms-such as dizziness and difficulty concentrating. Doc. 100-1 at 1-3. Dr. Korth testifies that, when she first examined Plaintiff in January 2014, she diagnosed Plaintiff with post-concussive syndrome based on subjective reports from Plaintiff and his mother, information gathered during the visit, and Plaintiffs initial test results. Doc. 100-2 at 4, 8. However, Dr. Korth further testifies that, in February 2016, Plaintiff was no longer presenting in a way that was consistent with post-concussive syndrome, and she discharged him. Id. at 4. Specifically, Dr. Korth testifies that, at the time she discharged Plaintiff, he no longer met the criteria for post-concussive syndrome. Id. at 15.

         Plaintiff challenges the admissibility of Dr. Korth's testimony primarily on the basis that it is unreliable. Doc. 94. Specifically, Plaintiff argues that Dr. Korth cannot testify regarding the extent to which Plaintiff's cognitive deficits had abated by February 2016 because her opinion is “speculative and not supported by sufficient facts or data.” Id. at 7-8. For the following reasons, the Court disagrees.

         First, Dr. Korth was Plaintiff's treating neuropsychologist. Courts in this district have recognized that because “[a] treating physician often forms an opinion about the cause of an injury or the extent to which it will persist in the future based upon his examination of a patient, ” courts “have allowed doctors to ‘testify at trial concerning any medical opinions that [they] formed during the course of . . . treatment with respect to [plaintiff's] injuries, their cause, and the extent of [plaintiff's] disability.'” Cohen, 2004 WL 763961, at *3 (internal citations omitted); see also Watson v. Taylor, 2006 WL 6901064, at *3 (D. Kan. 2006). The opinions offered by Dr. Korth in her report are based on her personal examination, treatment, and cognitive testing of Plaintiff. She is therefore qualified, as Plaintiff's treating provider, to testify to the opinions formed during her treatment regarding the extent of his injuries, the cause of those injuries, and her diagnosis. These opinions are reliable and admissible.

         Moreover-with respect to Plaintiff's argument that Dr. Korth's opinion was not offered with a sufficient degree of “probability”-a treating provider's opinion is not rendered unreliable simply because she does not testify regarding the degree of her certainty. See Randolph v. QuikTrip Corp., 2017 WL 2181120, at *2 (D. Kan. 2017) (“When the treating physician does not state with certainty the cause of the plaintiff's condition, ‘that does not render his testimony unreliable.'”). Indeed, courts in this district have found a treating provider's opinion sufficiently reliable even when not “particularly persuasive.”[1] Id. (holding that, though the treating physician's opinion as to causation “may not be particularly persuasive, it is sufficiently reliable to be admissible”). Therefore, to the extent Dr. Korth did not state with certainty that Plaintiff was no longer suffering cognitive deficits, this does not render her testimony unreliable. That issue goes to the weight and credibility that should be afforded to Dr. Korth's opinion, which is for the jury to decide.

         Second, the Court rejects Plaintiff's argument that Dr. Korth cannot opine regarding alternative explanations (i.e., other than cognitive deficits) for Plaintiff's vestibular symptoms. In her deposition, Dr. Korth testified that, during Plaintiff's last visit, she considered other explanations for his reported symptoms-including conversion disorder and depression. Doc. 100-2 at 16. Dr. Korth did not give any opinion about the certainty or probability of these causes. However, as Defendant explains, Dr. Korth's testimony is not being offered to establish causation. Plaintiff, not Defendant, bears the burden to establish with the requisite degree of certainty that his vestibular symptoms ultimately stem from the accident. See Cohen, 2004 WL 763961, at *5. Defendant is ...


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