26 Fla. L. Weekly Fed. D83aTop of Form
Torts -- Cruise ships -- Negligence -- Passenger brought action against cruise ship alleging defendant was negligent in alerting plaintiff about dangerous conditions of outdoor deck where she allegedly slipped and fell and injured her ankle -- Evidence -- Expert testimony -- Motion in limine to strike plaintiff's orthopedic expert and chiropractic expert on ground that experts have proffered unreliable medical opinions that are inadmissible under Daubert is denied -- Argument that omission of a differential diagnosis analysis renders experts' medical opinions unreliable and inadmissible under Daubert is unsupported, as defendant failed to cite a single case, and court finds none, where Eleventh Circuit has explicitly required this form of analysis to survive a Daubert challenge -- Argument that orthopedic expert is an unreliable medical expert under Daubert because his analysis was based on plaintiff's subjective history and not any reliable medical evidence is misleading and misses the mark as there is nothing in expert's deposition testimony that undermines the medical record that plaintiff's pain management doctor provided to expert -- Argument that orthopedic expert is an unreliable medical expert because he was unable to identify any cognizable facts in support of his medical opinions during his deposition is unpersuasive as there is a lengthy list of supporting reasons for expert's medical opinions -- Argument that expert allegedly relied on inaccurate information to reach his medical conclusion that plaintiff's symptoms from her preexisting and chronic lumbar spine condition had resolved before the cruise must fail -- Even if one of arguably twenty-one different sources of data relied on by expert was imperfect, an expert's method need not be perfect, nor need he apply it perfectly -- Argument for exclusion that medical experts relied exclusively on the chronology of plaintiff's symptoms to conclude that shipboard fall was the underlying cause of her injuries is flawed -- While a temporal proximity, alone, is insufficient to prove causation, each expert had separate underlying reasons for their medical opinions, and neither expert relied solely on a temporal relationship
ANGELA SAMPSON, Plaintiff, v. CARNIVAL CORPORATION, Defendant. U.S. District Court, Southern District of Florida. Case No. 15-24339-Civ-KING/TORRES. December 16, 2016. Edwin G. Torres, Judge. Counsel: Ben Murphey, Lawlor White & Murphey, Ft. Lauderdale, for Plaintiff. David Horr and Raul Delgado, Horr Novak & Skipp, Miami, for Defendant.
ORDER ON DEFENDANT'S DAUBERT
CHALLENGES TO PLAINTIFF'S EXPERTS
This matter is before the Court on Carnival Corporation's (“Defendant”) Daubert Motion in Limine (“Motion”) against Angela Sampson's (“Plaintiff”) experts. [D.E. 21]. More specifically, Defendant moves to challenge the admissibility of two experts' opinions that Plaintiff intends to present at trial.1 Having reviewed the Motion, Response, Reply, and relevant authority, and for the reasons discussed below, Defendant's Motion is DENIED.
On November 23, 2015, Plaintiff filed a single-count Complaint against Defendant on the basis that Defendant committed negligence while Plaintiff was onboard a cruise ship. More specifically, Plaintiff alleges that on October 24, 2014, she slipped and fell on the outdoor deck of Defendant's cruise ship and injured her ankle. Plaintiff -- along with her husband -- travelled on a four day cruise onboard the Carnival Inspiration departing from Long, Beach California to attend her son's wedding on Catalina Island. Throughout the trip, Plaintiff stayed in her penthouse suit overlooking the ship's deck and awoke early every morning before daybreak to walk around the ship to take pictures of the sunrise.
On the final day of the cruise, Plaintiff awoke at approximate 5:30 a.m. -- shortly before sunrise -- and left her penthouse cabin to go to the ship's outdoor deck. Plaintiff claims she could see crewmembers on the deck but could not determine what they were doing given the lack of light. Nonetheless, Plaintiff proceeded to walk on the deck particularly because she took a pre-dawn walk every morning and did not experience any prior injuries. Before Plaintiff's injury, she claims that she never noticed the deck being wet. After walking 15 to 20 feet from her penthouse suit, Plaintiff claims she slipped and fell, but no crewmembers on deck witnessed it. She attributed her fall to (1) water on the ship's deck, (2) poor lighting, and (3) a lack of warning cones to alert passengers about any potential safety concerns. Plaintiff further discovered -- after her fall -- that the deck was “very wet” because her flip-flops, legs, and shorts were soaked after making contact with the floor of the cruise ship deck.
Subsequently, Plaintiff returned to her cabin where her husband awoke and took her to the ship's medical center where Plaintiff completed a passenger injury statement. Approximately 90 minutes later, Plaintiff and her husband returned to the Lido deck and showed security where she fell. Plaintiff stated that while the deck was now brighter upon her return, she could see that the entire Lido deck was wet and that there were no caution cones in place to warn passengers. She claims that she saw crewmembers rolling up hoses -- which made her assume they had been deep cleaning the deck. However, Plaintiff did not personally see anyone deep cleaning the deck nor did she hear water running on the running on the deck just prior to her claimed fall. Hence, Plaintiff was unaware of whether the crew had been cleaning the deck the prior evening or the morning of her injury.
Prior to and after the fall, Plaintiff did not slip on any part of the vessel again nor did she see anyone else slip on the cruise ship. Plaintiff also contends that despite walking across the deck multiple times during the early mornings prior to her fall, Plaintiff never noticed the deck being wet. Because Defendant was negligent in alerting Plaintiff about the dangerous conditions of the outdoor deck, Plaintiff seeks (1) unspecified damages to be proven at trial, (2) the costs of suit, and (3) prejudgment interest where applicable. On October 3, 2016, Defendant filed its Daubert Motion [D.E. 21] to strike Plaintiff's experts and Plaintiff timely responded on October 24, 2016. [D.E. 31]. Because Defendant timely filed its reply on November 10, 2016, this Motion is now ripe for disposition. [D.E. 38].
II. APPLICABLE PRINCIPLES AND LAW
The decision to admit or exclude expert testimony is within the trial court's discretion and the court enjoys “considerable leeway” when determining the admissibility of this testimony. See Cook v. Sheriff of Monroe County, Fla., 402 F.3d 1092, 1103 (11th Cir. 2005) [18 Fla. L. Weekly Fed. C298a]. As explained in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), the admissibility of expert testimony is governed by Fed. R. Evid. 702.2 The party offering the expert testimony carries the burden of laying the proper foundation for its admission, and admissibility must be shown by a preponderance of the evidence. See Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999); see also United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) [17 Fla. L. Weekly Fed. C1132a] (“The burden of establishing qualification, reliability, and helpfulness rests on the proponent of the expert opinion, whether the proponent is the plaintiff or the defendant in a civil suit, or the government or the accused in a criminal case.”).
“Under Rule 702 and Daubert, district courts must act as ‘gate keepers' which admit expert testimony only if it is both reliable and relevant.” Rink v. Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir. 2005) [18 Fla. L. Weekly Fed. C255a] (citing Daubert, 509 U.S. at 589). The purpose of this role is “to ensure that speculative, unreliable expert testimony does not reach the jury.” McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002) [15 Fla. L. Weekly Fed. C839a]. Also, in its role as “gatekeeper,” its duty is not “to make ultimate conclusions as to the persuasiveness of the proffered evidence.” Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003) [16 Fla. L. Weekly Fed. C503a]
To facilitate this process, district courts engage in a three part inquiry to determine the admissibility of expert testimony:
(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.
City of Tuscaloosa, 158 F.3d 548, 562 (11th Cir. 1998) (citations omitted). The Eleventh Circuit refers to the aforementioned requirements as the “qualification,” “reliability,” and “helpfulness” prongs and while they “remain distinct concepts”; “the courts must take care not to conflate them.” Frazier, 387 F.3d at 1260 (citing Quiet Tech, 326 F.3d at 1341).
Furthermore, in determining the reliability of a scientific expert opinion, the Eleventh Circuit considers the following factors to the extent possible:
(1) whether the expert's theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error of the particular scientific technique; and (4) whether the technique is generally accepted in the scientific community. Notably, however, these factors do not exhaust the universe of considerations that may bear on the reliability of a given expert opinion, and a federal court should consider any additional factors that may advance its Rule 702 analysis.
Quiet Tech, 326 F.3d at 1341 (citations omitted). The aforementioned factors are not “a definitive checklist or test,” Daubert, 509 U.S. at 593, but are “applied in case-specific evidentiary circumstances,” United States v. Brown, 415 F.3d 1257, 1266 (11th Cir. 2005) [18 Fla. L. Weekly Fed. C700a]. While this inquiry is flexible, the Court must focus “solely on principles and methodology, not on conclusions that they generate.” Daubert, 509 U.S. at 594-95. It is also important to note that a “district court's gatekeeper role under Daubert ‘is not intended to supplant the adversary system or the role of the jury.' ” Id. at 1341 (quoting Maiz v. Virani, 253 F.3d 641, 666 (11th Cir. 2001) [14 Fla. L. Weekly Fed. C811a]). Rather, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking but admissible evidence.” Daubert, 509 U.S. at 580; see also Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1306 (11th Cir. 2014) [25 Fla. L. Weekly Fed. C416a] (“As gatekeeper for the expert evidence presented to the jury, the judge ‘must do a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.' ”) (quoting Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1335 (11th Cir. 2010) [22 Fla. L. Weekly Fed. C1322b]).
The focus of Defendant's Motion is that the two expert witnesses that Plaintiff intends to call at trial -- an orthopedic expert (Dr. Behnam Myers, D.O.)3 and a chiropractic expert (Dr. Mark Harrington, D.C.) -- have proffered unreliable medical opinions that are inadmissible under Daubert. These medical opinions are crucial to the disposition of this case because the lynchpin issue is whether Plaintiff's post-cruise medical treatment and surgery were necessary to address her pre-existing injury, or alternatively to treat an aggravation of claimed injuries. In light of this consideration, we will discuss the parties' arguments in turn.
A. Differential Diagnosis Analysis
Defendant's first argument in support of its Motion is that Dr. Myers failed to conduct a mandatory differential diagnosis analysis, which allegedly renders his opinions inadmissible as a matter of law.4 The omission is allegedly fatal because it fails to qualify the medical opinions as reliable under controlling Eleventh Circuit precedent. More specifically, Defendant argues that Dr. Myers ignored all three steps in this analysis where: “(1) the patient's condition is diagnosed, (2) all potential causes of the ailment are considered, and (3) differential etiology is determined by systematically eliminating the possible causes.” Chapman, 766 F.3d at 1308 (citing McClain v. Metabolife Int'l, Inc., 401 F.3d 1233, 1252 (11th Cir. 2005) [18 Fla. L. Weekly Fed. C281a]); see also Hendrix, 609 F.3d at 1197 (“While the first step focuses on general causation, in the second step the expert applies the facts of the patient's case to the list created in the first step in order to form an opinion about the actual cause of the patient's symptoms, i.e., to determine specific causation.”). “A reliable differential analysis ‘need not rule out all possible alternative causes,' but ‘it must at least consider other factors that could have been the sole cause of the plaintiff's injury.' ” Chapman, 766 F.3d at 1308-09 (quoting Guinn v. AstraZeneca Pharm. LP, 602 F.3d 1245, 1253 (11th Cir. 2010) [22 Fla. L. Weekly Fed. C1735a]). Because Dr. Myers failed to conduct a differential diagnosis analysis, Defendant contends that his medical opinions are inadmissible on their face.5
But, Defendant's argument is incorrect with respect to a differential diagnosis analysis being an absolute requirement to survive a Daubert challenge. Most of the authority that Defendant relies upon for this position involves toxic tort cases -- a distinguishable scenario given the facts presented. See, e.g., McClain, 401 F.3d at 1253 (“In the absence of such a foundation for a differential diagnosis analysis, a differential diagnosis generally may not serve as a reliable basis for an expert opinion on causation in a toxic tort case.”) (emphasis added); see also Chapman, 766 F.3d at 1309 (“Differential diagnosis, ‘however, will not usually overcome the fundamental failure of laying a scientific groundwork for the general toxicity of the drug and that it can cause the harm a plaintiff suffered.' ”) (quoting McClain, 401 F.3d at 1252); Hendrix, 609 F.3d at 1197.
As support for its position, Defendant relies primarily on the Eleventh Circuit's decision in Hendrix ex rel. G.P. v. Evenflo Co. But, the Eleventh Circuit reasoned in Hendrix that the differential diagnosis analysis was “a well-recognized scientific method that has been accepted by many courts as a valid basis for expert testimony” -- not an absolute requirement as Defendant contends. Hendrix, 609 F.3d at 1195 (citations omitted). The Eleventh Circuit further explained that “[w]e have previously noted that, when applied under circumstances that ensure reliability, the differential etiology method can provide a valid basis for medical causation opinions.” Hendrix, 609 F.3d at 1195 (emphasis added).6 The language in Hendrix is quite simply devoid of any language mandating that experts comply with this specific method of meeting the requirements of Daubert. Accordingly, Defendant's argument that the omission of a differential diagnosis analysis is fatal to Plaintiff's experts is unsupported as Defendant fails to cite a single case -- and the Court finds none -- where the Eleventh Circuit has explicitly required this form of analysis.
Defendant's second argument relates specifically to Dr. Myers and the contention that he is an unreliable medical expert under Daubert because his analysis was based on Plaintiff's subjective history and not any medical evidence. Dr. Myers allegedly based his understanding that Plaintiff's symptoms related to an extensive history of a preexisting medical condition that were chronic in nature and symptomatic on the information given to him by Dr. Davis -- Plaintiff's pain management doctor before the cruise line incident. But, Defendant claims that the information that Dr. Davis relied upon -- and therefore the information that Dr. Myers relied upon -- was all based on information solely from the Plaintiff. Therefore, Defendant claims that the entire basis for Dr. Myers' conclusion that Plaintiff's symptoms had resolved and that she was symptom-free prior to embarking on the Carnival Inspiration were based on Plaintiff's own statements -- not any reliable medical analysis.
Defendant's argument is misleading. Defendant's support for this argument is premised on some of the answers that Dr. Myers provided during his deposition where he was questioned about the information presented from Dr. Davis and whether it originated from Plaintiff. Defendant contends that Dr. Myers conceded that the medical information that Dr. Davis provided to him was solely from Plaintiff -- and apparently lacks any reliable medical evidence. But, Dr. Myers simply answered that the medical information that he relied upon from Dr. Davis was -- in his belief -- from Dr. Davis. As Dr. Myers testified, “I agree with you that these are the words that Dr. Davis wrote on that page.” [D.E. 21 at 6]. Defendant takes the testimony of Dr. Myers out of context to reach the conclusion that Dr. Davis merely wrote down verbatim what Plaintiff told him without incorporating his own medical expertise. But, there is no support for Defendant's position in the deposition testimony particularly because the deponent was Dr. Myers and not Dr. Davis. Therefore, Defendant's argument misses the mark as there is nothing in the deposition testimony that undermines the medical record that Dr. Davis provided to Dr. Myers.
Defendant's third argument is that Dr. Myers is an unreliable medical expert because he was unable to identify any cognizable facts in support of his medical opinions during his deposition. The inadequacy of his answers purportedly ran afoul of the Eleventh Circuit's decision of McDowell v. Brown, 392 F.3d 1283, 1300 (11th Cir. 2004), where the Court reasoned that “an expert opinion is inadmissible when the only connection between the conclusion and the existing data is the expert's own assertions . . . .” See also Rider, 295 F.3d at 1197 (citations omitted) (“[T]he Supreme Court made it clear that testimony based solely on the experience of an expert would not be admissible. The expert's conclusions must be based on sound scientific principles and the discipline itself must be a reliable one. The key consideration is whether the expert ‘employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.' ”). As support, Defendant refers the Court to an excerpt of the deposition testimony of Dr. Myers. [D.E. 21 at 10]. Because Dr. Myers could not offer any evidence whatsoever to support his medical opinions, Defendant claims that they must be properly excluded to avoid confusing the jury.
Yet, as Plaintiff points out, there is a comprehensive list of the underlying support for Dr. Myers' medical opinions in Plaintiff's medical records. [D.E. 21-5]. Among many reasons, the list includes the following: (1) Dr. Myers' clinical observations of Plaintiff, (2) his medical records related to the treatment of Ms. Sampson, (3) medical records from various healthcare professionals who treated Ms. Sampson, (4) medical literature on orthopedic spine injuries, (5) his medical training, and (6) whether the slip and fall was a plausible cause of Plaintiff's pain and need for treatment.7
And with respect to Defendant's argument that Dr. Myers could not identify any cognizable facts in support of particular opinions during his deposition, that contention is overstated and it is not at all clear that Defendant's argument holds any merit based on the excerpts that Defendant referenced. For example, when questioned about the proof underlying his medical opinion, Dr. Myers explained that “[t]he opinion is based on the fact that [Plaintiff] had a prior existing injury, and the fact that her report is that her symptoms got worse after the fall.” [D.E. 21 at 10]. Dr. Myers further explained that “it's based on the information provided as a preexisting condition, and it's based on the information provided by the patient in the history.” See id. Defendant takes this brief exchange as support that Dr. Myers cannot articulate any cognizable facts in support of his medical opinions. But, Dr. Myers explained that there was a certain level of information relied upon in addition to the information provided from Plaintiff. And Plaintiff's medical record from Dr. Myers supports this view. Accordingly, Defendant's argument is unpersuasive as there is a lengthy list of supporting reasons for Dr. Myers' medical opinions.
Defendant's fourth argument is aimed at the fact that Dr. Myers allegedly relied on inaccurate information to reach his medical conclusions. More specifically, Plaintiff purportedly represented to Dr. Harrington on October 8, 2014 that she was experiencing severe pain in her lumbar spine. Plaintiff began treatment with Dr. Harrington on October 8, 2014 and continued until October 18, 2014 -- before departing on the cruise ship on October 20, 2014. After returning from the cruise on October 24, 2014, Plaintiff reported to an UrgentMed Center on October 25th that she “was on a cruise ship when she slipped on a we surface and now [complains of] pain to her left ankle and lower bank” and “denie[d] previous injury to the aforementioned areas.” [D.E. 21 at 8]. This misrepresentation from Plaintiff is allegedly the genesis of the misinformation relied upon by Dr. Myers to conclude that Plaintiff's symptoms from her preexisting and chronic lumbar spine condition had resolved before the cruise.
But, Defendant's argument is again overstated. Dr. Myers based his medical opinions on arguably twenty one different sources of information. [D.E. 31 at 3]. Even if one source of Dr. Myers' data was imperfect, it is important to remember that an “expert's method need not be perfect, nor need he apply it perfectly.” Banta Properties, Inc. v. Arch Specialty Ins. Co., 2011 WL 13096149, at *4 (S.D. Fla. Dec. 20, 2011) (citing Pandora Jewelers 1995, Inc. v. Pandora Jewelry, LLC, 2011 WL 2295269, at *5-6 (S.D. Fla. June 8, 2011) (noting that a rebuttal expert could testify to the flaws in a report based on imperfect data or imperfect methodology). As the Eleventh Circuit previously articulated, “it is not the role of the district court to make ultimate conclusions as to the persuasiveness of the proffered evidence.” Quiet Tech, 326 F.3d at 1341. Rather than completely eradicating Dr. Myers' medical opinions, Defendant may use this potential error as “fodder for cross-examination” that “may decrease the weight and credibility of his opinion”, but Dr. Myers' method “was not so unreliable that the Court can rule as a matter of law that the jury should not hear his opinion.” Banta Properties, Inc., 2011 WL 13096149, at *4; see also Hoff v. Steiner Transocean, Ltd., 2014 WL 273075, at *4 (S.D. Fla. Jan. 24, 2014) (“As long as a reliable basis exists for the expert's opinion, it is admissible, and it is then up to the parties to vet the opinion before the jury.”). Therefore, Defendant's argument on this point must fail.
Defendant's fifth argument is that Dr. Harrington also failed to conduct a differential diagnosis analysis -- a failure which allegedly also renders his medical opinions unreliable under Daubert. More specifically, Dr. Harrington purportedly ordered x-rays of Plaintiff's lumbar spine twelve days before Plaintiff disembarked on the cruise. He also treated Plaintiff seven times for severe lumbar pain in the two weeks prior to Plaintiff's voyage. But, Defendant argues that Dr. Harrington did not perform the required analysis remotely resembling a differential diagnosis that incorporated the aforementioned information, yet he still concluded that it is more likely than not that the slipping incident caused Plaintiff's injury and the pain in her left shoulder, neck, and back. Dr. Harrington further concluded that “there was no other likely cause of [Plaintiff's] complaints and pain between the date of the incident and the day I evaluated her.” [D.E. 21-1]. Because Dr. Harrington failed to include the relevant information into any differential diagnosis analysis, Defendant argues that Dr. Harrington's medical opinions are inadmissible under Daubert.
But, Defendant's argument is again problematic for the reasons set forth above with respect to Dr. Myers. While Plaintiff admits that Dr. Harrington did not provide a differential diagnosis analysis -- which the Court has already reasoned is not required to satisfy Daubert -- Dr. Harrington considered numerous underlying facts in his methodology, including: Plaintiff's clinical presentation, her medical history, and his observations of Plaintiff during his treatment of her before arriving at his opinions. [Harrington Exp. Report, at 1-3]. Accordingly, Defendant's arguments for exclusion as a matter of law against Dr. Harrington must fail. Defendant should instead raise these challenges at trial to undermine the expert's credibility before the jury.
Defendant's final argument is that Plaintiff's medical experts relied exclusively on the chronology of Plaintiff's symptoms to conclude that the shipboard fall was the underlying cause of her injuries. And Defendant contends that temporal proximity, alone, is not a scientific methodology that satisfies the reliability requirements under Daubert. Defendant relies on the Eleventh Circuit's decision in Cooper v. Marten Transp., Ltd., where the Court explained that an expert's methodology may be unreliable if it relies exclusively on a temporal relationship:
The methodology employed by Drs. Pollydore and Kelley was unreliable, as it amounted to simple reliance on a temporal relationship. The doctors concluded that, because the Coopers did not manifest their specific injuries or need for surgery until after the 2010 collision, the 2010 collision was the cause of those injuries. Such reasoning “is a classic ‘post hoc ergo propter hoc' fallacy which ‘assumes causation from temporal sequence.'
539 F. App'x 963, 967 (11th Cir. 2013); Hendrix, 609 F.3d at 1197 (“[A] mere temporal relationship between an event and a patient's disease or symptoms does not allow an expert to place that event on a list of possible causes of the disease or symptoms.”).
But, this contention is also flawed. While Defendant is correct that a temporal relationship -- alone -- is insufficient to prove causation, neither expert here relied solely on this criteria. Rather, each of Plaintiff's experts had separate underlying reasons for their medical opinions. For example, Dr. Myers was able to correlate Plaintiff's post-fall injuries and complaints after considering her medical history and other possible causes. Dr. Myers also explained how he considered the mechanical nature of Plaintiff's back pain as part of his assessment. In short, both of Plaintiff's experts performed a thorough review of Plaintiff's medical history, observed her in a clinical setting, considered the cause of her pain, and arrived at their respective opinions. While Defendant may disagree with the conclusions of those opinions, that analysis is not for the Court's consideration on a motion in limine. Accordingly, Defendant's final argument against Plaintiff's experts must fail.
For the reasons stated above, it is hereby ORDERED AND ADJUDGED that Defendant's Motion in Limine [D.E. 22] is DENIED.
1On November 14, 2016, the Honorable James Lawrence King referred this Motion to the undersigned Magistrate Judge for disposition. [D.E. 44].
2Rule 702 states:
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.
3Dr. Myers has been an orthopedic surgeon since 2008. He is also a clinical instructor of orthopedic spine surgery at Nova Southeastern University and has purportedly testified as an expert orthopedic surgeon on many occasions.
4A differential diagnosis -- more commonly known as differential etiology -- is “ ‘the determination of which of two or more diseases with similar symptoms is the one from which the patient is suffering, by a systematic comparison and contracting of the clinical findings.' ” Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d 1183, 1195 n.5 (11th Cir. 2010) [22 Fla. L. Weekly Fed. C1025a] (quoting STEDMAN'S MEDICAL DICTIONARY, 428 (25th ed.1990)). In other words, it is a medical process of elimination whereby the possible causes of a condition are considered and ruled out one by one, leaving only one cause remaining. See Silverstein v. Procter & Gamble Mfg. Co., 700 F. Supp. 2d 1312, 1319 (S.D. Ga. 2009) (“Differential diagnosis is a patient-specific process of elimination that physicians use to identify the most likely cause of an injury from a list of possible causes.”) (citation omitted).
5Defendant argues that Dr. Myers failed to perform a differential diagnosis on Plaintiff's condition despite the fact that (1) Plaintiff's medical condition was diagnosed as early as 2012, (2) Plaintiff sought treatment from a chiropractor for lumbar pain seven times in the two weeks leading up to the cruise, (3) Plaintiff was ordered to undergo x-rays on October 8, 2014 which evidenced neural compression, and (4) Plaintiff's visit to a pain management doctor for her severe symptoms four days before embarking on the cruise. For the reasons articulated below, the aforementioned reasons are not persuasive as support that a differential diagnosis was required given Eleventh Circuit precedent.
6The Eleventh Circuit has often used “differential diagnosis” and “differential etiology” interchangeably. While many parties often use “differential diagnosis”, the more precise term is in fact “differential etiology.” Hendrix, 609 F.3d at 1195 n.5.
7This is not an exhaustive list of the underlying support -- that Plaintiff provides in her Response -- for Dr. Myers and his medical opinions.
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