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Petersen v. Union Pacific Railroad Co.

July 8, 2008

MARIE PETERSEN N/K/A MARIE CIMAGLIA, SPECIAL ADMINISTRATOR OF THE ESTATE OF JANE ANN MCGRATH, DECEASED, AND MOLLY MORGAN, DECEASED MINOR; JON PETERSEN AS NEXT FRIEND OF KATIE PETERSEN, A MINOR; STEVEN M. WALTERS AND GAYLA J. WALTERS, PLAINTIFFS,
v.
UNION PACIFIC RAILROAD COMPANY, A DELAWARE CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge

OPINION

This matter comes before the Court on Defendant Union Pacific Railroad Company's (Union Pacific) Motion to Bar the Expert Opinion Testimony of Craig Lichtblau and Anthony Gamboa (d/e 318). This case arose from an incident (Collision) in which a car was hit by a train at a railroad grade crossing in Carlinville, Illinois, identified as the Cisco Crossing or Cisco Steel Road Crossing (Crossing). The accident occurred on July 22, 2004. Notice of Removal (d/e 1), Exhibit 1, Complaint at Law, ¶¶ 1-9. Plaintiff Katie Petersen was injured in the Collision. She was 15 years old at the time. The Plaintiffs intend to use Craig Lichtblau, M.D., as an expert witness to opine on the future impairment that Katie Petersen will suffer as a result of the Collision and her future medical expenses. The Plaintiffs intend to use Anthony Gamboa, Ph.D., to opine on the present value of Katie Petersen's lost income as a result of her future impairments from the injuries suffered in the Collision and the present value of the future medical expenses. Gamboa relies on Lichtblau's opinions regarding Katie Petersen's expected condition and her future medical expenses to reach his conclusions. Union Pacific argues that Lichtblau's opinion is inadmissible and Gamboa's is inadmissible because he relies on Lichtblau. Union Pacific asks the Court to bar this testimony as improper expert testimony.

After careful review of the materials and arguments submitted by the parties, the Court concludes that the Motion should be allowed in part. Lichtblau may testify to the opinions stated in his report except for his opinions regarding medical expenses that he has marked as "p.r.n.", and his opinions as to the possible cost of 24 hour care of Katie Petersen after she reaches the age of 65. Gamboa may express his opinions as to the present value of Katie Petersen's lost earnings and her medical expenses except for opinions that are based on Lichtblau's opinions that are barred. Gamboa also must revise his opinion regarding the present value of anticipated steroid injections. Lichtblau limited those to nine injections over Katie Petersen's lifetime, but Gamboa assumed twenty-seven injections in his present value opinion based on this issue.

Expert testimony is governed by Federal Rule of Evidence 702, which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (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.

Fed. R. Evid. 702. This Court is required to perform a gate-keeping function to determine whether a party's proposed expert is qualified and whether his opinions have a proper basis and will assist the trier of fact. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593 (1993). The Court will address Lichtblau's opinions first since Gamboa's opinions are based on Lichtblau's opinions.

Katie Petersen was thrown from the automobile at the time of the Collision. She was unconscious and suffered a collapsed lung, seven broken ribs and a traumatic brain injury. She was taken to the local hospital in Carlinville, Illinois, then air-lifted to St. John's Hospital in Springfield, Illinois. She was placed into a drug-induced coma for two days. She was on a ventilator for five days. She was in St. John's Hospital for three weeks. She was then transferred to the Rehabilitation Institute of Chicago for one week of in-patient care and therapy. She then went home and continued out-patient therapy. She returned to high school in the tenth grade on a part-time basis that fall. She went back to school full-time in January 2005. She successfully completed high school in 2007 and entered college in the fall of 2007, majoring in nursing. She is not currently under the care of any physician for her injuries.

Plaintiffs' counsel contacted Lichtblau to evaluate Katie Petersen. Lichtblau is a physiatrist with over 15 years experience in treating trauma injuries and brain injuries.*fn1 Lichtblau reviewed Katie Petersen's medical records. He came to Katie Petersen's home and met with her and her mother to interview them and to observe her. He then requested a neuropsychometric study of Katie Petersen.

Steven Rothke, M.D., performed the neuropsychometric study. He concluded:

She displays intact cognitive abilities in many areas (verbal and visuospatial intellectual functioning, abstract reasoning and problem solving, many aspects of verbal and nonverbal memory) with mild impairments noted in list learning (new learning of non-related, non-contextual material) along with an increased need for practice but limited benefit from practice in her learning, most likely related to her [traumatic brain injury]. She also displays borderline impaired arithmetical reasoning. Her self-reported obsessive thinking about each day's events and her continued emotional reaction to her injury appear to be impacting her sleep, which may be exacerbating the concentration and short-term memory difficulties she reports and which are corroborated by some of the test findings.

Plaintiffs' Response to Motion to Bar the Expert Opinions of Dr. Craig Lichtblau and Dr. Anthony Gamboa (d/e 357) (Plaintiffs' Response), Exhibit M, Report of Dr. Steven Rothke, M.D., at 7.

Based on this information, Lichtblau formulated his opinions. He opined that Katie Petersen "is not going to be able to maintain gainful employment in the competitive open labor market, or in a sheltered environment with a benevolent employer in any type of vocation that will require multi-tasking and is associated with time pressure during her job." Memorandum of Law in Support of Defendant's Motion to Bar Expert Opinion Testimony of Craig Lichtblau and Anthony Gamboa (d/e 319) (Defendant's Memorandum), Exhibit A, Lichtblau Report, Vocational Position Statement. He clarified that she will be able to work in the competitive labor market, but not at jobs that will place her in a high-pressure situation where she will be required to do many things at once. Defendant's Memorandum, Exhibit B, Deposition of Craig Lichtblau (Lichtblau Deposition), at 73-74.

He also opined that she had a one to fourteen percent permanent partial impairment of the whole person as a result of her injuries. He used the American Medical Association Guide to the Evaluation ...


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