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Chaudhry v. Provident Life and Accident Insurance Co.

United States District Court, N.D. Illinois, Eastern Division

May 1, 2015

NASEEM M. CHAUDHRY, M.D., Plaintiff,


AMY J. ST. EVE, District Judge.

Defendant Provident Life and Accident Insurance Company ("Provident Life") has moved the Court to exclude the testimony, opinions and report of Plaintiff's vocational expert, Susan Entenberg, at trial. For the reasons discussed below, Defendant's motion is granted in part and denied in part.


Plaintiff Naseem M. Chaudhry, M.D., is seeking disability benefits from an insurance policy issued by Defendant Provident Life ("Policy") based on the impact of a deteriorative eye condition. Plaintiff claims that this condition has rendered him unable to perform the substantial and material duties of his occupation. Defendant Provident Life paid total disability benefits to Plaintiff under the Policy from mid-2003 to August 2011. Provident Life subsequently concluded that insufficient evidence existed to support paying continued benefits to Plaintiff, including evidence that Plaintiff continued to treat patients and Plaintiff pled guilty to engaging in a scheme to defraud Medicare. Provident Life therefore terminated Plaintiff's disability benefits on August 15, 2011. Plaintiff thereafter sued Provident Life for breach of contract, waiver, and estoppel. In advance of trial, Defendant now seeks to exclude the opinions of Plaintiff's retained vocational expert, Susan Entenberg, pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999).

Under the Policy, Residual Disability benefits apply when, due to injury or sickness, the insured (1) is not able to do one or more of his "substantial and material daily business duties" or is not able to do his "usual daily business duties for as much time as it would normally take [him] to do it, " (2) has a loss of monthly income in his occupation of at least 20%, and (3) is receiving care by a Physician which is appropriate for the condition causing the loss of monthly income. To qualify for Residual Disability benefits, the insured must suffer a loss of monthly income of at least 20% due to his disability. If the insured loses over 75% of his prior monthly income due to disability, the Policy deems the insured to have suffered a total loss of income. The Policy permits the insurer to require any proof it considers necessary to determine the insured's current and prior monthly incomes for purposes of calculating the Residual Disability benefit due, if any.

Under the Policy, the insured's "occupation" is "the occupation (or occupations, if more than one) in which [the insured is] regularly engaged at the time [he] become[s] disabled." If the insured's occupation "is limited to a recognized specialty within the scope of [his] degree or license, " the Policy deems that specialty to be his occupation. Plaintiff has disclosed Ms. Entenberg to opine on his occupation at the time he became disabled, what his duties were at time, and whether he could be restored through reasonable accommodation. Ms. Entenberg is a Vocational Rehabilitation Counselor and a Certified Rehabilitation Counselor. (R. 149-1, Entenberg Expert Report, at 4; R.149-2, Entenberg Dep., at 96-97.) Ms. Entenberg received her Bachelors of Science degree from Boston University in 1974 and her Masters in Counseling Psychology with an emphasis in rehabilitation counseling in 1975 from Northwestern University. (R.149-1, at 4.) Ms. Entenberg offers the following vocational opinion related to this case:

Based upon my review of the above-stated records and my education, training, and experience, it is my opinion that Dr. Chaudhry's occupation at the time of his disability was that of a psychiatrist, with a primary emphasis as a geriatric psychiatrist. It is also my opinion that these duties included driving as well as the need to frequently read patient charts and medical records and are precluded by his visual limitations. It is further my opinion that his occupation as a psychiatrist could not be restored to a competitive nature through reasonable accommodation.

(R. 149-1, at 3.) On April 13, 2015, the Court held a Daubert hearing on the motion. During the hearing, Ms. Entenberg testified regarding her opinions.


"A district court's decision to exclude expert testimony is governed by Federal Rules of Evidence 702 and 703, as construed by the Supreme Court in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)." Brown v. Burlington Northern Santa Fe Ry. Co., 765 F.3d 765, 771 (7th Cir. 2014); see also Lewis v. Citgo Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). Rule 702 provides, in relevant part, that "[i]f scientific, technical or other specialized knowledge will assist the trier of fact[, ]... a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion...." Id. "In short, the rule requires that the trial judge ensure that any and all expert testimony or evidence admitted "is not only relevant, but reliable." Manpower, Inc. v. Ins. Co. of Penn., 732 F.3d 796, 806 (7th Cir. 2013); see also Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 894 (7th Cir. 2011) (explaining that ultimately, the expert's opinion "must be reasoned and founded on data [and] must also utilize the methods of the relevant discipline"); Lees v. Carthage College, 714 F.3d 516, 521 (7th Cir. 2013) (explaining the current version of Rule 702 essentially codified Daubert and "remains the gold standard for evaluating the reliability of expert testimony"). The Daubert principles apply equally to scientific and non-scientific expert testimony. See Manpower, Inc., 732 F.3d at 806 (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147-49, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)).

Under the expert-testimony framework, courts perform the gatekeeping function of determining prior to admission whether the expert testimony is both relevant and reliable. See Manpower, Inc., 732 F.3d at 806; Lees, 714 F.3d at 521; United States v. Pansier, 576 F.3d 726, 737 (7th Cir. 2009) ("To determine reliability, the court should consider the proposed expert's full range of experience and training, as well as the methodology used to arrive [at] a particular conclusion."). In doing so, courts "make the following inquiries before admitting expert testimony: first, the expert must be qualified as an expert by knowledge, skill, experience, training, or education; second, the proposed expert testimony must assist the trier of fact in determining a relevant fact at issue in the case; third, the expert's testimony must be based on sufficient facts or data and reliable principles and methods; and fourth, the expert must have reliably applied the principles and methods to the facts of the case." Lees, 714 F.3d at 521-22; see also Stollings v. Ryobi Techs., Inc., 725 F.3d 753, 765 (7th Cir. 2013); Pansier, 576 F.3d at 737. In Daubert, the Supreme Court offered the following non-exclusive factors to aid courts in determining whether a particular expert opinion is grounded in a reliable scientific methodology: (1) whether the proffered theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) whether the theory has a known or potential rate of error; and (4) whether the relevant scientific community has accepted the theory. See Happel v. Walmart Stores, Inc., 602 F.3d 820, 824 (7th Cir. 2010); Winters v. Fru-Con Inc., 498 F.3d 734, 742 (7th Cir. 2007). Further, the 2000 Advisory Committee's Notes to Rule 702 list the following additional factors for gauging an expert's reliability: (1) whether the testimony relates to "matters growing naturally and directly out of research... conducted independent of the litigation"; (2) "[w]hether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion"; (3) "[w]hether the expert has adequately accounted for obvious alternative explanations"; (4) "[w]hether the expert is being as careful as he would be in his regular professional work outside paid litigation consulting"; and (5) "[w]hether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give." Id. (internal quotations omitted); see also American Honda Motor Co. v. Allen, 600 F.3d 813, 817 (7th Cir. 2010); Fuesting v. Zimmer, Inc., 421 F.3d 528, 534-35 (7th Cir. 2005), vacated in part on other grounds, 448 F.3d 936 (7th Cir. 2006). "[B]ecause there are many different kinds of experts, and many different kinds of expertise, ' the reliability analysis should be geared toward the precise sort of testimony at issue and not any fixed evaluative factors." Lees, 714 F.3d at 521, (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150, 119 S.Ct. 1167 (1999)). See also Deputy v. Lehman Bros., Inc., 345 F.3d 494, 505 (7th Cir. 2003) (noting that the Daubert analysis is flexible); Goodwin v. MTD Prods., Inc., 232 F.3d 600, 608 n.4 (7th Cir. 2000) (noting that "the Daubert Court emphasized that it did not presume to set out a definitive checklist or test, and that the district judge's inquiry should be flexible") (quotations omitted).

In assessing the admissibility of an expert's testimony, the Court's focus "must be solely on principles and methodology, not on the conclusions they generate.'" Winters, 498 F.3d at 742 (quoting Chapman v. Maytag Corp., 297 F.3d 682, 687 (7th Cir. 2002)). "The goal of Daubert is to assure that experts employ the same intellectual rigor' in their courtroom testimony as would be employed by an expert in the relevant field." Jenkins v. Bartlett, 487 F.3d 482, 489 (7th Cir. 2007) (quoting Kumho Tire, 526 U.S. at 152). A district court's evaluation of expert testimony under Daubert does not "take the place of the jury to decide ultimate issues of credibility and accuracy." Lapsley v. Xtek, Inc., 689 F.3d 802, 805 (7th Cir. 2012) (citing Daubert, 509 U.S. at 596). Once it is determined that "the proposed expert testimony meets the Daubert threshold of relevance and reliability, the accuracy of the actual evidence is to be tested before the jury with the familiar tools of vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.'" Id.

In addition, as this is a bench trial, the Seventh Circuit instructs:

Where the gatekeeper and the factfinder are one and the same - that is, the judge - the need to make such decisions prior to hearing testimony is lessened. See United States v. Brown, 415 F.3d 1257, 1268-69 (11th Cir. 2005). That is not to say that the scientific reliability requirement is lessened in such situations; the point is only that the court can hear the evidence and make its reliability determination during, rather than in advance of, trial. Thus, where the factfinder and the gatekeeper are the same, the court does not err in admitting the ...

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