United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the court on defendant Charles Drew Health
Center, Inc.'s (“CDHC”) motion to exclude the
testimony of Lucile Woodard, M.D. (“Dr.
Woodard”), under Federal Rule of Evidence 702 and
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), Filing No. 61. This is an action for
discrimination in employment brought pursuant to Title VII of
the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e, as amended; the Nebraska Fair
Employment Practices Act (“NFEPA”), Neb. Rev.
Stat. § 48-1104, the Nebraska Wage Payment and
Collection Act (“NWPCA”), Neb. Rev. Stat. §
48-1228, et seq., the Emergency Medical Treatment
and Active Labor Act (“EMTALA”), 42 U.S.C. §
1395dd, and the common law and public policy of the State of
Nebraska. The plaintiff, Monique Tolston, M.D. (“Dr.
Tolston”) alleges gender discrimination; retaliation
for engaging in protected activities; retaliation for
reporting a violation under the EMTALA; a retaliatory hostile
environment; breach of contract and violations of the NWPCA
in connection with the termination of her employment at CDHC.
Jurisdiction is based on 28 U.S.C. § 1331.
Tolston worked as a family practice physician for CDHC from
2008 until her termination on August 7, 2015. Plaintiff
alleges that in November 2014, she reported an unlawful
medical practice to CDHC's Medical Director and she was
reprimanded for her report, received a performance evaluation
of below satisfactory, and was later terminated without
notice in contravention of her employment agreement. The
plaintiff has designated Dr. Woodard to provide expert
opinion testimony regarding her psychological conditions,
aggravation of conditions, need for medications, treatment,
and potential permanency of her conditions. The defendant
challenges Dr. Woodard's testimony, contending that Dr.
Woodard lacks the specialized knowledge, education, skill,
experience, and training necessary to render an opinion on
the diagnosis, permanency, or causation of psychological
conditions or aggravations of such conditions because she is
a family medicine doctor and not a psychologist or
psychiatrist. Dr. Woodard is also the plaintiff's
treating physician and is a fact witness. The defendant
concedes that Dr. Woodard may testify regarding her personal
interactions, observations, and treatment of the plaintiff.
record shows that Dr. Lucille Woodard is who a board
certified physician in family medicine. She attended medical
school at the University of Nebraska and graduated in 2005.
She completed a six-week rotation in psychiatry in medical
school where she received specialized training in treating
patients with mental health issues. She completed the
Clarkson Family Medicine residency and during that three-year
residency she treated patients who were diagnosed with
depression and anxiety. She has been licensed to practice
medicine in the State of Nebraska since 2005. She
participates in continuing medical education every year.
Woodard was employed at CDHC as a family physician from 2008
to 2011. She was employed as a family medicine doctor from
2011 to 2016 at Nebraska Medicine in Bellevue, Nebraska, and
served as the plaintiff's primary care physician during
that time. She treated the plaintiff at two office visits in
2015. She is now employed at the Veterans'
Administration-Nebraska-Western Iowa as the women's
health medical director.
routinely treats patients with mental health issues. She
estimated that 30 percent of her patients suffer from some
sort of mental health disease. She also stated that over
sixty percent of mental health treatment is delivered by
primary care physicians. She testified that it is within the
scope of her practice to treat patients with mental health
conditions. While she was employed at defendant CDHC she
treated psychiatric patients and CDHC billed patients for her
Woodard stated that her medical opinions were formed to a
reasonable degree of medical certainty. She testified that
the plaintiff's pre-existing mental health conditions
were aggravated by the protected activities she engaged in in
late 2014 and by her termination in August 2015.
court judges “must ensure that any and all scientific
testimony or evidence admitted is not only relevant, but
reliable.” Redd v. DePuy Orthopaedics, Inc.,
No. 16-3428, 2017 WL 2859536, at *2 (8th Cir. July 5, 2017)
(quoting Daubert, 509 U.S. at 589). Under Federal
Rule of Evidence 702, the opinion of an expert witness is
reliable if (1) it is based on sufficient facts or data, (2)
it is the product of reliable principles and methods, and (3)
the expert has reliably applied the principles and methods to
the facts of the case. Id. An expert opinion is
relevant if “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.” Fed.R.Evid. 702. “Expert testimony
assists the trier of fact when it provides information beyond
the common knowledge of the trier of fact.”
Kudabeck v. Kroger Co., 338 F.3d 856, 860 (8th Cir.
2003). The rule clearly is one of admissibility rather than
proponent of the expert testimony must prove its
admissibility by a preponderance of the evidence.”
Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th
Cir. 2001). To the extent a party challenges the probative
value of the evidence, an attack upon the probative
sufficiency of evidence relates not to admissibility but to
the weight of the evidence and is a matter for the trier of
fact to resolve. United States v. Beasley, 102 F.3d
1440, 1451 (8th Cir. 1996); see United States v.
Dico, Inc., 266 F.3d 864, 871 (8th Cir. 2001) (holding
“the sufficiency of the factual basis of ... [an
expert's] theory was open to any challenge [the
defendant] . . . desired to mount on cross-examination, but
that sufficiency was not a basis for excluding [the
expert's] testimony altogether”)).
are legion that, correctly, under Daubert, call for
the liberal admission of expert testimony.” Johnson
v. Mead Johnson & Co., LLC, 754 F.3d 557, 562 (8th
Cir. 2014); see, e.g., United States v.
Finch, 630 F.3d 1057, 1062 (8th Cir. 2011) (holding that
doubts about the usefulness of expert testimony are resolved
in favor of admissibility); Robinson v. GEICO Gen. Ins.
Co., 447 F.3d 1096, 1100 (8th Cir. 2006) (holding that
expert testimony should be admitted if it “advances the
trier of fact's understanding to any degree”
(quotation omitted)); Lauzon, 270 F.3d at 686 (Rule
702 “clearly is [a rule] of admissibility rather than
exclusion” (internal quotation omitted)). “As
long as the expert's scientific testimony rests upon
‘good grounds, based on what is known' it should be
tested by the adversary process with competing expert
testimony and cross-examination, rather than excluded by the
court at the outset.” Johnson, 754 F.3d at 564
(quoting Daubert, 509 U.S. at 590, 596).
general, differential diagnoses are admissible under
Daubert unless scientifically invalid. Id.
at 563; seeGlastetter v. Novartis Pharms.
Corp., 252 F.3d 986, 989 (8th Cir. 2001) (per curiam)
(stating that a medical opinion about causation, based upon a
proper differential diagnosis, is sufficiently reliable to
satisfy Daubert). “In performing a
differential diagnosis, a physician begins by ‘ruling
in' all scientifically plausible causes of the
plaintiff's injury” and “then ‘rules
out' the least plausible causes of injury until the most
likely cause remains. Glastetter, 252 F.3d at 989;
see also Westberry v. Gislaved Gummi AB, 178 F.3d
257, 262 (4th Cir. 1999) (“A reliable differential
diagnosis typically, though not invariably, is performed
after ‘physical examinations, the taking of medical
histories, and the review of clinical tests, including
laboratory tests, ' and generally is accomplished by
determining the possible causes for the patient's