Berman v. Unimin Corp.

DALE BERMAN, BENJAMIN DAVIDSON and LYNNE INGRAM, Plaintiffs, v. UNIMIN CORPORATION, Defendant.

No. 15-1255

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE EASTERN DIVISION

December 14, 2016

ORDER ON DEFENDANT'S MOTIONS IN LIMINE

Before the Court are two motions in limine filed on October 1, 2016, by the Defendant, Unimin Corporation ("Unimin"). (Docket Entry ("D.E.") 26-27.) According to the complaint, Plaintiff Dale Berman¹ was performing his duties as an engineer on a CSX Transportation ("CSX") train running in the area of an industrial plant operated by the Defendant near Camden, Tennessee, on October 26, 2014. The property, on which Unimin produced nonmetallic industrial materials, contained a retention pond protected by a levee. As the train passed by, the levee suddenly gave way, causing water to rush out and derail the train. Berman seeks damages based on Unimin's negligence.

In its first motion in limine (D.E. 26), Unimin requests exclusion or limitation of certain testimony by Dr. Gary Lee, a psychologist who treated Berman beginning in January 2016 and diagnosed him with Post-Traumatic Stress Disorder (PTSD). According to the evidence presented, when the train derailed, the windshield broke and Plaintiff was pinned underneath water and dirt that entered the cab. He climbed out of the locomotive's side window and sat atopthe train, which was then resting on its side, until he was rescued and taken to a hospital. Thereafter, he made several unsuccessful attempts to return to work on a train but was too anxious to continue. Berman eventually obtained a commercial driver's license (CDL) and took a job driving a dump truck and operating heavy equipment, which paid less than what he made as a train engineer.

On June 3, 2016, Dr. Lee spoke with Plaintiff's attorney by telephone. The psychologist recalled they talked about his contact and involvement with Berman, as well as a tentative prognosis based on the three sessions he had conducted up to that time with the Plaintiff. Dr. Lee stated in his deposition that "I had only seen him three times to that point, and so there was not a lot of information I could provide about, you know, is he going to get better, is he -- is he -- is he going to get worse, that type of thing." (D.E. 31-1 at PageID 350.)

The Plaintiff's expert disclosure with respect to Dr. Lee, dated June 17, 2016, stated as follows:

Dr. Gary Lee is a psychologist in private practice in Hendersonville, Tennessee. Dr. Lee holds a doctorate in clinical psychology from the Illinois School of Professional Psychology in Chicago, Illinois, and a bachelor of arts in psychology from the University of Mississippi in Oxford, Mississippi. Dr. Lee is a licensed psychologist in Tennessee. . . .

Dr. Lee is a treating psychologist for Mr. Berman, and was not retained or specially employed to provide expert testimony in the case. Dr. Lee is expected to testify consistently with the records from his evaluations and treatment of Mr. Berman. Dr. Lee is expected to testify that Mr. Berman has suffered a mental health injury caused by the train derailment on October 26, 2014. Mr. Berman's mental health injury is permanent, though Mr. Berman would more likely than not benefit from continuing therapy including Eye Movement Desensitization and Reprocessing (EMDR). Even with additional treatment, however, it is more likely than not that this injury will prevent Mr. Berman from working as an engineer on a train again.

Dr. Lee holds these opinions to a reasonable degree of professional certainty.

* * *

Dr. Lee may also testify regarding opinions offered by any expert witness called by Defendant and may address any additional fact testimony relevant or [sic] other evidence presented subsequent to this expert disclosure. . . .

(D.E. 26-2 at PageID 90-91.)

In his deposition taken September 7, 2016, Dr. Lee recalled that Berman shared with him his experiences in attempting to return to work on trains after the accident, stating that "[h]e indicated that he had tried on several occasions, I think one occasion where he threw up either on the way or when he got there to the yard and was trying to get on the train. And I think he actually did get on the train at one point and experienced significant anxiety." (D.E. 31-1 at PageID 292.) During the course of his counseling, Dr. Lee spoke with the Plaintiff about the EMDR technique, used to assist patients in reprocessing trauma to lessen its effects. The psychologist performed the procedure on one occasion -- July 7, 2016, which Berman reported was helpful.

When questioned concerning the likelihood that his patient could return to work on a moving train, he offered the following testimony:

. . . I think that the -- the difficulties that he has experienced anytime he is -- has come near a train and tried to attempt to go near a train. I think there is also a time period -- he experienced difficulties, anxiety, kind of panic.

And I think there was -- a couple of months ago I think he tried to go near a train that he saw, like, in Gallatin[, Tennessee], I think. It was stopped in one of the -- the yards. And he tried to go and see what -- what kind of experience he would have.

And as he got near it, he just said he just couldn't do it. And so that -- I think that would probably be one of the more difficult ones to -- to subside. And I think that that would take repeated exposure over time of him doing that, but I -- I -- I don't see that as likely.

(Id. at PageID 312-13.) It was Dr. Lee's expressed opinion in his deposition that, had the derailment never occurred, he could see Berman continuing to work as a train engineer but, afterthe accident, his prospects of returning to that job were "highly unlikely" as a result of his PTSD. (Id. at PageID 311-12.)

Dr. Lee confirmed that, in progress notes reflecting the course of his treatment of Plaintiff, he recorded no opinions concerning his ability to return to work on a moving train. Nor did he report any work restrictions or disability. He conceded that vocational testing was not his area and acknowledged he had never investigated the types of jobs available on a moving train.

The psychologist testified that it was his experience that patients achieved progress from ongoing EMDR sessions. He further stated that he could develop a plan for desensitization that would allow Berman to return to his old job but had not done so because he had been concentrating on other stressors in his patient's life, including his marriage, stepchildren and imminent divorce. At the time of his deposition, the psychologist had not concluded that Berman had reached the level of maximum medical improvement, had not completed treatment and had not discharged Plaintiff from his care.

It is the position of the Defendant that Dr. Lee's testimony concerning Berman's future employment prospects with the railroad provides an insufficient basis for admission at trial. The proponent of expert testimony has the burden of showing that the evidence is admissible. Fed. R. Evid. 104(a); E.E.O.C. v. Tepro, Inc., 133 F. Supp. 3d 1034, 1040 (E.D. Tenn. Sept. 28, 2015), recons. denied 2015 WL 12658237 (E.D. Tenn. Oct. 21, 2015). Such evidence is governed by Rule 702 of the Federal Rules of Evidence, which provides that

[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if[] (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

In addition, the court has the authority under Fed. R. Evid. 403 to "exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues[ or] misleading the jury[.]"

The court's determination of whether expert testimony is admissible under the rule proceeds in three steps: (1) "the witness must be qualified," (2) "the testimony must be relevant," and (3) "the testimony must be reliable." United States v. Rios, 830 F.3d 403, 413 (6th Cir. 2016), reh'g en banc denied (Sept. 27, 2016). The Defendant does not appear to challenge Dr. Lee's qualification to testify as a treating physician with respect to Plaintiff's treatment and the relevance of that testimony, or his diagnosis of PTSD caused by the accident. Rather, as noted above, Unimin objects to his opinion concerning Plaintiff's "vocational employment possibilities," specifically, the unlikelihood that Berman can return to work on a moving train, which Defendant argues is beyond his area of expertise. Therefore, it avers, this testimony is unreliable.

The district court is granted "considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable, provided that the gatekeeping mandate of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993)[], is followed to ensure the reliability and relevancy of expert testimony." Rios, 830 F.3d at 413 (internal quotation marks omitted). The reliability inquiry focuses on the principles and methodology that underlie the evidence more than the conclusions it generates. Vaughn v. Konecranes, Inc., 642 F. App'x 568, 577 (6th Cir. 2016).

In Daubert, the Court identified a nonexhaustive list of factors to assist courts in assessing the reliability of an expert opinion, including (1) "whether a theory or technique can be (and has been) tested," (2) "whether the theory has been subjected to peer review andpublication," (3) whether the technique has "a high known or potential rate of error," and (4) "whether the theory or technique enjoys 'general acceptance' within a 'relevant scientific community.'"...