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Frost v. Teco Barge Line

February 15, 2007


The opinion of the court was delivered by: Herndon, District Judge



Before the Court are two Motions in Limine, filed by Defendant (Docs. 63 & 67). The first (Doc. 63) seeks to exclude testimony and opinions of Plaintiff's expert, Dr. Barry Feinberg. The latter (Doc. 67) seeks to exclude the testimony and opinions of Dr. Moacir Schnapp. This suit was brought by plaintiff Betty Frost pursuant to the Jones Act, for personal injuries she alleges to have sustained to her lower back during her employ as a cook aboard a tow boat belonging to defendant, TECO Barge Lines, Inc. For this reason, Plaintiff has sued Defendant for damages, claiming Defendant was negligent in failing to provide a safe work environment and seaworthy vessel.

Plaintiff has retained Dr. Barry Feinberg, M.D., as an expert witness. Part of his testimony Plaintiff intends to elicit is whether Plaintiff can return to work as a cook aboard a tow boat. Defendant anticipates Plaintiff may go so far as to elicit expert testimony from Dr. Feinberg regarding Plaintiff's future employability (ability or inability to secure employment), which Defendant contends the doctor is not qualified to render. Similarly, Dr. Moacir Schnapp is one of Plaintiff's treating physicians. During his deposition, Dr. Schnapp opined as to whether Plaintiff could return back to work as a cook aboard Defendant's tow boat and also whether the alleged fall is the root cause of her pain. Apparently, Plaintiff will attempt to admit this deposition testimony during trial in lieu of Dr. Schnapp's live testimony. Defendant moves to exclude such testimony (Doc. 67) based upon the argument that Dr. Schnapp based his opinions on the incorrect assumption that Plaintiff had no complaints of back pain prior to her alleged fall on Defendant's tow boat in January, 2004.

For the following reasons, the Court DENIES Defendant's Motion in Limine (Doc. 63) regarding Dr. Feinberg and GRANTS IN PART AND DENIES IN PART Defendant's Motion in Limine (Doc. 67) regarding Dr. Schnapp.


1. Legal Standard

Rule 702 of the Federal Rules of Evidencerequires that a district court ensure admitted scientific evidence is reliable and also relevant to the trier of fact (pursuant to Rule 402 of the Federal Rules of Evidence). See also, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993).In short, scientific evidence is reliable if it is "well-grounded in methods and procedures of science." Chapman v. Maytag Corp., 297 F.3d 682, 687 (7th Cir. 2002)(citing Bourelle v. Crown Equip. Corp., 220 F.3d 532, 536 (7th Cir. 2000)).As such, the focus must be on the theory, principles and methodology of the evidence or scientific testimony, and not merely the conclusions generated. Id. (citing Cummins v. Lyle Indus., 93 F.3d 362, 368 (7th Cir. 1996)).Daubert set out a nonexclusive list of factors or guidelines for a district court to consider when analyzing the reliability of scientific evidence: (1) whether the theory can be and has been verified by the scientific method through testing; (2) whether the theory has been subjected to peer review; (3) the known or potential rate of error; and (4) the general acceptance of the theory in the scientific community. Cummins, 93 F.3d at 368. Rule 702 speaks of testimony qualified on the basis of whether (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

The test under Daubert is flexible, and there is "no requirement that an expert's testimony satisfy each of the listed factors." Chapman, 297 F.3d at 687. Considering whether such evidence is relevant, it is crucial that the expert "'testify to something more than what is 'obvious to the layperson' in order to be of any particular assistance to the jury.'" Dhillon v. Crown Controls Corp., 269 F.3d 865, 871 (7th Cir. 2001)(citing Ancho v. Penteck Corp., 157 F.3d 512, 519 (7th Cir. 1998)).A district court, therefore, plays the role of "gatekeeper" when determining whether to allow scientific evidence and/or expert testimony to be admitted at trial. Cummins, 93 F.3d at 370.

2. Dr. Barry I. Feinberg, M.D.

In its Motion in Limine regarding Dr. Feinberg and supporting memorandum (Docs. 63 & 66), Defendant concedes that Dr. Feinberg may be qualified, as a licensed medical doctor, "to render opinions on certain medical issues" (Doc. 66, p. 4). However, Defendant patently opposes any opinions Dr. Feinberg may offer during trial as Plaintiff's expert witness, concerning whether Plaintiff can return to work in the same or similar capacity as prior to her alleged injury. In support, Defendant cites to transcript excerpts of Dr. Feinberg's deposition, where he admits he is neither a vocational rehabilitationist nor an occupational therapist (Id., Ex. A. - Feinberg Dep.). Dr. Feinberg further stated, during his deposition, that he had no opinion, one way or another, whether or not Plaintiff could return to work (Id.). By way of Dr. Feinberg's own testimony, Defendant argues that he is clearly not qualified to render opinions concerning Plaintiff's future employability. Additionally, Defendant asserts that such expert testimony would amount to pure speculation and therefore would not meet the reliability threshold under Federal Rule of Evidence 702 and Daubert (Id. at 5).

In Response (Doc. 69), Plaintiff first clarifies that she does not "intend to elicit vocational testimony from Dr. Feinberg concerning what range of jobs are currently available to Plaintiff in the labor market or what they pay." Yet, this does not nullify Defendant's concerns, as Plaintiff states that she "does intend to elicit Dr. Feinberg's opinions concerning Plaintiff's physical restrictions and limitations and whether those limitations or restrictions preclude her from returning to work as a cook aboard a tow boat, as well as any other physically demanding job that would exceed those restrictions and limitations" (Id. at 1). Plaintiff argues Dr. Feinberg, although not a vocational rehabilitation expert, is completely qualified to render such opinions due to his expertise as a medical doctor.

Reviewing Dr. Feinberg's opinions, as provided by Plaintiff in her Response (Doc. 69), it appears Defendant's argument is not well-taken. It is clear that Dr. Feinberg's opinions regarding whether Plaintiff can return to work are based upon his observations and diagnoses of her current physical conditions and limitations. This, in turn, is based upon Dr. Feinberg's review of Plaintiff's medical history, her medical records, the results of his physical examination of Plaintiff, her functional capacity evaluation results and various test reports. As a qualified medical doctor, upon a review of this compilation of data, Dr. Feinberg may then properly deduce the nature of Plaintiff's current disability in order to prescribe treatment and outline various restrictions she should heed concerning her daily activities. When the restrictions are then compared with the physical demands of any type of activity, including one's employment, a medical doctor can then determine whether such activities exceed one's restricted physical abilities. See e.g., Sulentich v. Interlake S.S. Co., 257 F.2d 316, 319 (7th Cir. 1958)(as implied by jury instruction regarding the ...

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