McGowan v. S. Methodist Univ.

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KELLY MCGOWAN, Plaintiffs, v. SOUTHERN METHODIST UNIVERSITY, Defendant.

Civil Action No. 3:18-CV-00141-N

United States District Court, N.D. Texas, Dallas Division

March 4, 2024

MEMORANDUM OPINION AND ORDER

David C. Godbey, Chief United States District Judge

This Order addresses Defendant Southern Methodist University's (“SMU”) motion to strike expert testimony [109] SMU's motion to exclude expert testimony [111], and Plaintiff Kelly McGowan's motion to exclude expert testimony [107]. For the reasons set forth below, the Court grants in part and denies in part all three motions.

I. The Parties' Dispute

At the time of filing, Plaintiffs were nine former SMU student athletes who brought suit against Defendant SMU after suffering hip injuries incurred while Plaintiffs were members of SMU's women-only rowing team. Pls.' Second Am Compl. 2 [33]. Plaintiffs alleged that SMU discriminated against female athletes in the way it allocated its funding and resources, in violation of Title IX (20 U.S.C. § 1681). Pls.' Second Am. Compl. 5152. Plaintiffs further claimed that SMU was negligent because it provided inferior resources to its female rowers, including incompetent coaching, substandard medical treatment, and limited access to qualified training personnel. Pls.' Second Am. Compl. 52-54. Plaintiffs alleged that such inadequate treatment and incompetent coaching caused Plaintiffs to suffer the same type of hip injury.

The Court previously granted SMU's motion for summary judgment on all claims brought by Plaintiffs Jessica Clouse, Lindsay Heyman, Meghan Klein, Sydney Severson, Rebekah Tate, Marissa Jennings, Lauren Moore, and Laura Kade, as well as remaining Plaintiff Kelly McGowan's claims for pain and suffering, emotional and psychological harm, and loss of quality of life under Title IX (20 U.S.C. § 1681). See Order (February 5, 2024) [174]. Plaintiff McGowan's negligence claim and Title IX claim for compensatory damages for medical expenses for physical injury and loss of educational opportunities and benefits remain. Now, SMU seeks to strike portions of the expert report and exclude some testimony of Plaintiff's expert witness, Dr. Volker Nolte, and exclude the expert testimony of Plaintiff's expert witness, Dr. Donna Lopiano. Plaintiff seeks to strike the expert report and exclude the testimony of SMU's expert witness, Tim O'Brien.

II. Legal Standard

Under Federal Rule of Evidence 702 a witness must be qualified as an expert by “knowledge, skill, experience, training, or education.” FED. R. EVID. 702. A qualified expert may testify if the expert's specialized knowledge will aid the trier of fact and “(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.” Id. District courts must determine that expert testimony “is not only relevant but reliable,” and make “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid” and “can be applied to the facts in issue.” Daubert v. Merrell Dow Pharm., 509 U.S. 579, 589, 592-93 (1993); see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150 (1999) (making the Daubert principles applicable to all expert testimony). The focus, however, “must be solely on the principles and methodology, not on the conclusions that they generate.” Daubert, 526 U.S. at 595.

District courts have broad discretion to determine the admissibility of expert testimony. Sims v. Kia Motors of Am., 839 F.3d 393, 400 (5th Cir. 2016). But the rejection of expert testimony is the exception, not the rule. In re DePuy Orthopaedics, Inc. Pinnacle Hip Implant Prod. Liab. Litig., 2016 WL 9560113, at *2-3 (N.D. Tex. Oct. 3, 2016) (citations omitted). The Daubert inquiry may not replace the adversarial system. Pipitone v. Biomatrix, Inc., 288 F.3d 239, 249-50 (5th Cir. 2002). “[V]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Id. at 250 (citing Daubert, 526 U.S. at 596). Indeed, “while exercising its role as a gate-keeper, a trial court must take care not to transform a Daubert hearing into a trial on the merits.” Pipitone, 288 F.3d at 250.

III. The Court Grants In Part the Motion to Strike Portions of Dr. Volker Nolte's Expert Report And Testimony

Volker Nolte, Ph.D., was retained by Plaintiffs to testify regarding “rowing, including the biomechanics of the sport and effect on the human body, training and coaching of collegiate rowers and the risk and occurrence of injuries. Specifically, . . . to provide opinions related to the incidence of hip injuries suffered by [SMU's] rowers.”

Nolte Report at Def.'s App. 2 [110]. SMU moves to strike and exclude portions of Nolte's expert report and testimony on the following bases: (1) Nolte is unqualified to provide expert testimony regarding medical causation and assessment, the standard of care for strength and conditioning coaching, athletic training, and women's rowing coaching at United States universities, respectively; and (2) Nolte's opinions with respect to the factors that allegedly led to a high frequency of hip injuries on the SMU rowing team, and that the frequency evidenced a “systemic problem” are unreliable. Def.'s Mot. to Strike 2 [109]. The Court agrees in part. Accordingly, SMU's motion to strike is granted in part - the Court strikes and will not allow testimony from Nolte regarding the cause of Plaintiff's specific injury, medical opinions, or the standard of care for athletic trainers - but is otherwise denied in all respects.

A. Nolte is Not Qualified to Testify Regarding the Cause of Plaintiff's Specific Injury or the Standard of Care for Athletic Trainers

SMU first asserts that Nolte's expertise in biomechanics does not qualify him to offer opinions as to what generally leads to hip labral tears, Plaintiff's or other SMU rowers' specific hip injuries, or the timing of medical assessments, and his testimony should therefore be limited to the “general impact of forces on the body and the types of injuries those forces may generate.” Def.'s Mot. to Strike 4-5 (citing Hernandez v. Groendyke Transp., Inc., 2022 WL 2872493, at *5 (N.D. Tex. July 21, 2022)). The parties do not dispute that Nolte is an expert on rowing and biomechanics. Nolte's expertise in biomechanics qualifies him to testify as to “the forces generated by events or accidents and the probable effect of such forces on the human body.” Hernandez, 2022 WL 2872493, at *5; see also Vazquez v. Aguilera, 2022 WL 2292888, at *5 (S.D. Tex. Mar. 25, 2022). However, given that Nolte has no medical qualifications, he is unqualified to opine about the cause of Plaintiff's specific injury. See Gonzalez v. Inter Mexicana De Transporte S.A. de C.V., 2021 WL 3816337, at *2 (S.D. Tex. July 22, 2021); Ramirez v. Escajeda, 2021 WL 1131721 (W.D. Tex. Mar. 24, 2021).

Plaintiff argues that Nolte does not opine on the specific causation of each Plaintiff's injury, rather “that the factors outlined in his report generally would be expected to cause injuries consistent with those experienced by Plaintiffs and other women in the SMU rowing program.” Pl.'s Resp. 3 [143]. However, SMU points out that Nolte's report states that several factors “lead to the unprecedented high number of hip labral tears” in the SMU Women's Rowing Team, rather than factors that “could lead to a labral tear in a hypothetical rower.” Def.'s Mot. to Strike 3-4 (emphasis in original). Biomechanical engineers are qualified to testify to the “general type of injury the forces produced [] would generate in a typical person . . .,” Gonzalez, 2021 WL 3816337, at *2, but not “that those specific diagnosed injuries on [plaintiff] were caused or caused in part by the energy, forces, and motions involved [in a particular accident].” Ramirez, 2021 WL 1131721, at *12; see also Okanovic v. Hayes, 2019 WL 5692754, at *4 (M.D. Pa. 2019). Accordingly, the Court determines that Nolte is qualified to testify as to whether the forces generated by rowing generally lead to certain kinds of injuries but not regarding the medical causation or the specific causes of Plaintiff or other SMU rower's injuries. Nolte will not be permitted to offer such testimony at trial and, to the extent Nolte's report contains specific medical causation opinions, those opinions are stricken from his report. Goodman v. Harris Cty., 571 F.3d 388, 399 (5th Cir. 2009) (citing First United Fin. Corp. v. U.S. Fid. & Guar. Co., 96 F.3d 135, 136 (5th Cir. 1996)) (“Nor, may an expert go beyond the scope of his expertise in giving his opinion.”).

SMU next asserts that Nolte is not qualified to testify as to the standard of care for athletic trainers. Nolte has never served as an athletic trainer or obtained a qualification or certification in athletic training. Nolte Depo. at Def.'s App. 56-57. Plaintiffs contend that Nolte does not opine on the standard of care for athletic trainers, rather he offers testimony “that the way the athletic trainers responded, or didn't respond,” to reports of pain and failure to supervise rowers during strength training “contributed to the inordinate amount of hip injuries experienced by SMU female rowers.” Pl.'s Resp. 4-5. Even if Nolte were permitted to opine as to causation of the specific injuries of the SMU rowers, in order to testify regarding any relationship between the care and supervision of SMU's athletic trainers and injuries, one must be able to opine on the standard of care for athletic trainers. Because Nolte lacks the requisite knowledge, skill, or experience to...