The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge
The parties have consented to have this case heard to judgment by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and the District Judge has referred the case to me. Now before the Court is the Defendant's motion in limine (Doc. #64) asking the Court to bar the testimony of Dr. Richard Flacco.
Defendant moves to preclude Plaintiff from offering any testimony from Dr. Flacco regarding the diagnosis or treatment of or the prognosis for CRPS, asserting that he is not qualified to do so.
The Federal Rules of Evidence govern the admissibility of opinion testimony, as follows: 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.
Rule 702 requires the district court to perform a "gatekeeping" function before admitting expert scientific testimony in order to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See, Gayton v. McCoy 593 F.3d 610, 616 (7th Cir. 2010); Happel v. Walmart St ores Inc., 602 F.3d 820 (7th Cir. 2010).
In determining reliability, Daubert set out a non-exhaustive list of factors that can be considered, including whether a scientific theory has been or can be tested; whether it has been subjected to peer review and publication; and whether the theory is generally accepted in scientific community. 509 U.S. at 593-94. The Court should also consider the proposed expert's full range of experience and training in the subject area, as well as the methodology used to arrive at a particular conclusion. Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000). The Advisory Committee's Notes to Rule 702 suggest other factors relating to reliability determinations, including whether opinions were developed expressly for purposes of testifying, whether other explanations have been accounted for, and whether the field of expertise claimed is known to reach reliable results for the type of opinion given. Fed.R.Evid. 702 Advisory Committee Notes (2000 Amendments).
The Seventh Circuit has emphasized that determinations of admissibility of expert testimony should not "supplant the adversarial process." Gayton, 593 F.3d at 616. Even "shaky" expert testimony may be admissible, assailable through cross examination. Id., citing Daubert, 509 U.S. at 596.
The Daubert analysis applies even to a non-retained expert such as a treating physician. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 151 (1999)(Daubert applies even when the expert's opinion relies on experience based observation). See, e.g. Turner v. Iowa Fire Equipment Co., 229 F.3d 1202 (8th Cir. 2000)(applying Kumho, supra, to treating physician).
Dr. Flacco has been Plaintiff's primary treating physician for 30 years. He is a Board Certified Family Practitioner, in practice for 40 years. He has served as an Associate Professor of Medicine at Presbyterian St. Luke's Hospital and as a Clinical Instruction in Family Practice at the University of Illinois College of Medicine in Peoria. He has been the Chief of the Department of Medicine and a member of the Executive Committee for both Cottage Hospital and St. Mary's Hospital in Galesburg, Illinois. In his practice, he has treated 20 to 50 patients for CRPS, and is familiar with the criteria for diagnosing CRPS.
During the course of Dr. Flacco's treatment of Plaintiff, he has observed him on numerous occasions, treated him for numerous maladies, injuries and conditions, and has referred him to specialists for more specialized care. Prior to the injury at issue in this case, Plaintiff had been treated for plantar fasciitis and left knee pain from a tear of the medial meniscus. At the time of his deposition, Dr. Flacco was treating Plaintiff for CRPS, restless leg syndrome, peripheral arterial disease, a major depressive disorder, and fatigue. He has not complained of either the plantar fasciitis or the left knee pain since the workplace injury that led to this litigation. In the years since the underlying injury occurred, Dr. Flacco has seen Plaintiff on a regular basis, usually about once a month.
Plaintiff disclosed Dr. Flacco to testify regarding "causation, permanency, prognosis, and future medical care," based on his "examination of the Plaintiff, his training, knowledge and experience."
Dr. Flacco testified that he is not a specialist in CRPS and that he relied on other physicians' diagnosis of CRPS rather than making the diagnosis himself. (Def's Response, Exh. B p.59-62). He also testified, however, that he was familiar with the symptoms of CRPS. Consistent with that testimony, Plaintiff did not disclose Dr. Flacco as a witness who would testify about the diagnosis of CRPS. Despite that, in Plaintiff's response to this motion, however, there are multiple references to Dr. Flacco's "diagnosis" of CRPS.
In light of Dr. Flacco's own testimony, Daubert precludes him from testifying that he made the diagnosis of CRPS as to Plaintiff. Moreover, Plaintiff's failure to disclose Dr. Flacco as a witness who would testify about this diagnosis bars him from adding that opinion at this late stage of the case. Fed.R.Civ.P. 37. To the extent this motion seeks ...