Chapter 13 - § 13.8 • CHALLENGES TO EXPERTS UNDER RULE 702

• Jurisdiction: Colorado

§ 13.8 • CHALLENGES TO EXPERTS UNDER RULE 702

Etherton v. Owners Insurance Co, 829 F.3d 1209 (10th Cir. 2016), was a bad faith case arising out of a UIM claim. The jury found in favor of the plaintiff (Etherton) on his claims for breach of contract and statutory bad faith. The Tenth Circuit affirmed the judgment in Etherton's favor.

On December 19, 2007, Etherton's vehicle was rear-ended by a driver whose liability insurance limits were $250,000. Etherton was insured by Owners under a policy with UM/UIM coverage limits of $1,000,000. Etherton alleged he sustained a low back injury due to the collision, necessitating several low back surgeries, and demanded payment of the UIM policy limits of $750,000. Owners responded with an offer of $150,000 based upon its concern about "serious questions of causation." 829 F.3d at 1215. Following the jury's determination that Etherton's damages resulting from the accident were $1,382,000 and that Owners had unreasonably delayed or denied payment of his UIM benefits, the district court entered judgment for Etherton in the amount of $2,250,000, which represented the UIM policy limit of $750,000 plus a statutory penalty of $1,500,000. Owners appealed the district court's order denying its motion for a new trial on the ground that the court had erroneously allowed Dr. Joseph Ramos to provide opinion testimony about injury causation under FRE 702. Owners also appealed the district court's denial of its motion for judgment as a matter of law on Etherton's statutory bad faith claim and its order awarding Etherton a statutory penalty of two times the amount of the UIM policy limit. Id. at 1216.

Owners' principal argument on appeal was that the district court had erred in applying the standard for admission of expert opinion testimony under FRE 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). After a hearing to determine whether Dr. Ramos's causation opinions were admissible under FRE 702, Judge Krieger, who was originally assigned to the case, "ruled from the bench that Dr. Ramos's methodology was unreliable and excluded his testimony." 829 F.3d at 1219.

Dr. Ramos's methodology involved several steps, including obtaining a medical history; conducting a physical examination; reviewing diagnostic studies; reviewing records, including any records of pre-existing injury; determining whether the accident was a plausible mechanism of injury; determining whether a temporal relationship existed between the accident and the patient's pain complaints; and determining whether there was a more likely cause of the patient's pain complaints. As applied to this case, Dr. Ramos's methodology involved three steps: (1) Determining whether the collision was a plausible cause of Etherton's back injury, a step which Dr. Ramos said was easily satisfied, because a lot of literature shows that rear-end collisions cause back injuries; (2) determining that the collision occurred just before the back pain commenced (note: the medical records indicated that Etherton first complained of back pain about two weeks after the accident); and (3) considering whether there were any more likely causes (note: Owners' contention was that Etherton's complaints were the product of pre-existing degenerative conditions, not the low speed collision that gave rise to the case). 829 F.3d at 1218-19.

In June 2012, Judge Krieger recused herself from the case and Etherton filed a motion to reconsider her order. In September 2012, Judge Brimmer, to whom the case had been reassigned, "concluded Dr. Ramos's methodology is well accepted in the medical community for medical treatment purposes, and the methodology was reliably applied in this case, including that Dr. Ramos accounted for alternative explanations for the cause of Mr. Etherton's injury." 829 F.3d at 1219.

In analyzing these issues, the Tenth Circuit first rejected Owners' argument that academic literature Dr. Ramos cited did not support his contention that the accident was a plausible mechanism of injury. The court noted that Dr. Ramos had testified at the Rule 702 hearing that "'the medical literature is rampant with evidence that rear-end impact motor vehicle crashes can lead to lumbar spine injury. That peer-reviewed literature clears that plausibility hurdle . . . .'" Id. at 1220. In addition, the court pointed out that Dr. Ramos testified that he had been an instructor at the Spine Research Institute in San Diego, where they conducted research on occupants of vehicles involved in collisions at different speeds. Id. Thus, as to this issue, the Tenth Circuit concluded: "In light of Dr. Ramos's reliance on medical literature and his own experience studying spinal injuries from live crash-testing, we disagree with Owners that the first step of his methodology is based on an unsupported assumption." Id. The Tenth Circuit reached this conclusion despite the fact that Dr. Ramos never identified any specific literature upon which he was relying as a basis for his plausibility opinion.

The Tenth Circuit also rejected Owners' contention that Dr. Ramos "mistakenly attempted to establish causation only by identifying correlation between Mr. Etherton's collision and injury." Id. Owners asserted that Dr. Ramos was erroneously relying solely on the temporal relationship between the accident and the onset of Etherton's pain complaints to establish causation. The court recognized that "[a]lthough correlation alone may be insufficient to establish causation . . . [t]he temporal relationship between an injury and a purported cause can be a relevant factor in a broader causation determination." Id. at 1220-21. Here, the court found that "Dr. Ramos's consideration of the temporal relationship between Mr. Etherton's injury and the collision was an appropriate part of his broader analysis." Id. at 1221.

Next, the Tenth Circuit...