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Sandra Salamone, Et Ux. v. Wal-Mart Stores East

July 15, 2011


The opinion of the court was delivered by: Ditter, J.


This case arises from a slip and fall at a Wal-Mart store. The plaintiff, Sandra Salamone, filed this lawsuit alleging injuries to her knee and back as a result of her fall in water pooled beside a Pepsi soda cooler located at the self-serve check-out aisle of the store. Before me is the motion of defendant, Wal-Mart Stores East, L.P., to preclude the reports and testimony of Rosette C. Biester, Ph.D. (Doc. # 30) pursuant to Federal Rule of Evidence 702. For the reasons that follow, this motion in limine is GRANTED.

The admissibility of expert testimony under Rule 702 is a question of law for the district court. I must make a preliminary determination, pursuant to Rule 104(a), as to whether the expert testimony satisfies the standard of "evidentiary reliability" established by the rule and will assist the trier of fact to understand or determine a fact in issue. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 57, 592 (1993). This gatekeeping role requires that I consider three basic requirements: (1) qualification -- whether the expert is qualified to speak with authority on a particular subject; (2) reliability -- whether the expert's methodology is sound and whether her opinion is supported by "good grounds;" and (3) fit -- whether there is a relevant "connection between the scientific research or test result to be presented and particular disputed factual issues in the case." In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741-43 (3d Cir. 1994) ("PaoliII").

First, I consider whether Dr. Biester has sufficient knowledge, skill, training, education, or experience to testify with authority on plaintiff's claim that she suffered a traumatic brain injury. This requirement is liberally construed and does not require that the expert have the most appropriate degree or training.

The defendants do not challenge Dr. Biester's qualifications as a neuropsychologist or her ability to speak with authority on traumatic brain injuries. I find that she is sufficiently qualified to testify as an expert on this subject.

Next, I consider the relevance and reliability of Dr. Biester's proposed expert testimony. To assess reliability, I consider whether her expert opinion is "based on 'methods and procedures of science' rather than on 'subjective belief or unsupported speculation.'" Paoli II, 35 F.3d at 742 (citing Daubert, 509 U.S. at 590). To evaluate whether the expert has "good grounds" for her opinion, I am guided by a number of factors, including but not limited to: (1) whether a method consists of a testable hypothesis; (2) whether the method has been subjected to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; (5) whether the technique is generally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put. Id. at 742 n.8.

In making this preliminary determination, I must engage in a limited review of Dr. Biester's conclusions "in order to determine whether they could reliably flow from the facts known to the expert and the methodology used." Heller v. Shaw Indus., Inc., 167 F.3d 146, 153 (3d Cir. 1999). I am not required to admit expert testimony "that is connected to existing data only by the ipse dixit of the expert." General Elect. Co. v. Joiner, 522 U.S. 136, 145-46 (1997). Rather, I may find that the expert's conclusions, based on the evidence presented to her and the methodology employed, are inadmissible because "there is simply too great an analytical gap between the data and the opinion proffered." Id. This is the heart of the motion before me.

I find that Dr. Biester's report is self-contradictory, fails to mention important facts, contains important and unwarranted assumptions, is deliberately misleading, and therefore is completely unreliable. In other words, her opinions do not reliably flow from the facts known to her and the methodology used, and there is too great an analytical gap between those facts and Dr. Biester's opinions.

Ms. Salamone was referred to Dr. Biester for "[a] comprehensive neuropsychological evaluation . . . to determine the presence of cognitive deficits and weaknesses following a serious fall on 4/29/09." Biester Rep. 1. As part of this task, Dr. Biester reviewed the medical reports of Ms. Salamone's various treating physicians, but only those that post-date her fall. Dr. Biester was unaware Ms. Salamone had a history of headaches, migraine headaches, difficulty sleeping, a frozen shoulder, an injured rotator cuff, an inability to exercise, and weight- related issues. Those seemingly relevant medical factors were not considered by Dr. Biester in her report nor was there any explanation of why she did not explore whether Ms. Salamone suffered from any pre-existing conditions that might impact her current condition.

The post-incident accident and medical reports are also problematic. Dr. Biester relied on Ms. Salamone's statement that she hit her head on the floor when she fell on April 29, 2009, despite no contemporaneous claim of head trauma. The incident report completed by Ms. Salamone makes no mention of her hitting her head. Her complaint makes no claim of head pain or a head injury. Her answers in interrogatories make no reference to her head or any head injury. There was one reference in Dr. Pearlstein's notes that Ms. Salamone complained of a headache four days after her fall -- but no site pain, lump, or contusion was noted and no treatment or testing was ever ordered for a head injury. Dr. Biester testified that this passing reference to a headache is Ms. Salamone's initial complaint of head trauma. I disagree: it is common knowledge that headaches can come from an almost infinite variety of sources and to select one from the hay stack without explanation is fanciful. In fact, Dr. Biester's report describes Ms. Salamone's headaches as "stress-related." Id. at4.

Dr. Biester testified that her opinion that Ms. Salamone suffers from a brain trauma is not based on Ms. Salamone's self-reporting of the circumstances of her fall, injuries, and alleged residual deficits, but on the objective testing she conducted during her examination of Ms. Salamone. A closer look at the testing results, again within the framework of an evaluator who has proceeded with no information concerning the plaintiff's medical history that pre-dates her alleged injury, is required.

Dr. Biester asserts that the "results of this evaluation are judged to be representative of Ms. Salamone's current levels of cognitive, mood, and behavioral functioning." Biester Rep. 5; 9 (emphasis added). Dr. Biester finds that the plaintiff's current intellectual level "is in the Superior range" and that her "overall intellectual capacity is indicative of an intellectually bright individual." Id. at 6.

Nonetheless, Dr. Biester finds that Ms. Salamone's "current Verbal IQ score is judged to be below her pre-injury level, estimated to be in the Superior range, based on the strong suggestion of higher abilities on the current IQ battery, her high and persistent accomplishment and achievements professionally, and her educational background, including college performance." Id. (emphasis added). From this estimated suggestion of prior abilities, absent any previously administered test results, Dr. Biester finds it "strongly indicates a significant and unfortunate decrease in certain intellectual domains due to a neurological event." Id. (emphasis added). This estimated finding based on a strong suggestion that strongly indicates the occurrence of a neurological event in certain intellectual domains, while imaginative, is so diaphanous and devoid of factual support that it defies even a pretense of scientific basis.

Indeed, the employment and educational history on which Dr. Biester relies does not support her conclusions. If anything, Ms. Salamone's test scores out-perform her employment history of clerical and retail sales experience, her management positions, her high school As and Bs, and her B average at the Hussian School of Art (which she attended over thirty-five years ago). Furthermore, Dr. Biester contradicts her own assessment of the plaintiff's pre-injury capabilities by asserting that the plaintiff's Performance IQ "better represents her actual IQ functioning than her significantly lower Verbal IQ." Despite this, Dr. Biester relies on Ms. Salamone's ...

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