United States District Court, D. Kansas
MEMORANDUM AND ORDER
L. TEETER UNITED STATES DISTRICT JUDGE
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
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).
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).
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
Dr. Maria Korth (Doc. 94)
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.
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.
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.
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.” 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.
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 ...