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Brugler v. Unum Group

United States District Court, M.D. Pennsylvania

September 17, 2019

DR. ROBERT BRUGLER, Plaintiff,
v.
UNUM GROUP and PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, Defendants.

          MEMORANDUM OPINION

          Matthew W. Brann United States District Judge.

         I. INTRODUCTION

         Plaintiff Dr. Robert Brugler, a dentist, bought a long-term disability policy from Defendants. This policy provided Dr. Brugler with monthly benefits were he to become disabled and unable to practice dentistry. Dr. Brugler was diagnosed with a retinal detachment in his right eye, and received surgery from Dr. Steven Marks, an ophthalmologist. Soon thereafter, Dr. Brugler filed a claim for disability benefits under his policy.

         Defendants paid Dr. Brugler benefits for a number of months. They then sought to determine whether Dr. Brugler's condition had improved following his surgery. Dr. Michael Schaffer, a neuro-ophthalmologist and pediatric ophthalmologist, conducted an independent medical examination on Dr. Brugler. Dr. Schaffer found that Dr. Brugler was not disabled and could return to his work. Defendants then stopped paying Dr. Brugler benefits under the policy.

         In May 2015, Dr. Brugler filed a five-count complaint against Defendants, claiming he should receive disability benefits under the policy. Dr. Brugler stipulated to the dismissal of one count, and on November 2, 2018, this Court dismissed three other counts at summary judgment. The lone remaining claim is breach of contract, with Dr. Brugler asserting that Defendants breached the terms of the policy by refusing to pay him his entitled benefits.

         A date certain jury trial has been set for October 7, 2019, and both parties have filed timely motions in limine. This opinion decides, at least in part, all the parties' motions.[1]

. Defendants have moved to preclude Dr. Marks from offering an opinion that Dr. Brugler is unable to perform the material and substantial duties of his occupation.[2] This motion is granted.
. Defendants have moved to preclude Dr. James Vander, a professor of ophthalmology and surgeon who evaluated Dr. Brugler in support of his claim, from offering an opinion that Dr. Brugler is unable to perform the material and substantial duties of his occupation.[3] This motion is granted.
. Defendants have moved to preclude Dr. Brugler from testifying as to his personal belief about Defendants' intentions in handling his claim, and as to Defendants' history of claim handling.[4] This motion is granted.
. As part of his independent medical evaluation, Dr. Schaffer tested Dr. Brugler's depth perception using a procedure called the Titmus test. Defendants have moved to preclude Dr. Brugler from submitting evidence that challenges the reasonableness of this testing.[5] This motion is granted.
. Dr. Brugler has moved to preclude Defendants from submitting testimony from Dr. Schaffer and from Dr. Thomas Friberg, a professor of ophthalmology who reviewed Dr. Brugler's records on Defendants' behalf.[6] This motion is granted in part and denied in part with respect to Dr. Friberg and certain subjects of Dr. Schaffer's testimony. The Court requires more development of the factual record with respect to Dr. Schaffer.

         II. FACTUAL BACKGROUND

         A. Dr. Brugler's Work as a Dentist

         Before his retinal detachment, Dr. Brugler worked as a general dentist in State College, Pennsylvania.[7] He had a varied portfolio of duties, including restorative procedures, extractions, root canals, implant surgeries, orthodontics, cosmetic work, teeth whitening, and X-rays and impressions.[8] When doing cosmetic work, implant surgery and other such procedures, Dr. Brugler needed to be able to visualize an area of less than one-tenth of a millimeter.[9]

         B. Dr. Brugler's Retinal Detachment, Consultation with Dr. Steven Marks, Ensuing Surgery and Disability Claim

         After suffering flashing in his right eye and other symptoms, Dr. Brugler was diagnosed in July 2012 with a retinal detachment.[10] Seeking to remedy the situation, Dr. Brugler consulted with Dr. Steven Marks, an ophthalmologist practicing at Geisinger Medical Center in Danville, Pennsylvania.[11]

         Dr. Marks attended medical school at Hahnemann Medical College, and then went into a residency program for general ophthalmology.[12] Following that, he participated in two eye-related fellowships at Tulane University.[13] Dr. Marks specializes in issues of the retina and often performs surgery on the retina.[14]

         To treat Dr. Brugler's detachment, Dr. Marks performed a surgery on July 2, 2012 known as a pneumatic retinopexy.[15] This involves introducing a gas bubble into the affected eye and pushing the bubble against the retinal detachment so that the detachment flattens out.[16]

         On July 18, 2012, Dr. Brugler filed a claim with Defendants for long-term disability benefits under his policy.[17] Dr. Brugler attested that “I can do limited driving and very little reading. I do not have depth perception and fine binocular vision for any activity. I do not expect to return to work, ” as “I can no longer perform any duties of my occupation as a dentist.”[18] Dr. Brugler described his work duties as those of a “general dentist”: “all facets of general dentistry including restorative procedures, extractions, root canals, implant placement, TMJ[19] treatments, etc.”[20] He recounted that he spent 28 hours a week “chairside” working with patients, and an additional 12 hours a week on administrative duties.[21] Per Dr. Brugler, his alleged disability prevented him from working chairside, which “requires me to be seated for hours at a time, ranging from 11/2 to 6 hours. It requires that I have excellent binocular vision. I routinely use lo[u]pe magnification and supplemental lighting. Without fine binocular vision I am unable to perform any chairside duties.”[22]

         The parties dispute whether Dr. Brugler can practice dentistry after his retinal detachment and surgery. As this dispute has progressed, each side has enlisted multiple doctors to provide expert reports and testimony on its behalf.

         C. Dr. Marks

         Dr. Marks provided two expert reports on Dr. Brugler's behalf: one dated August 30, 2012, and one dated February 25, 2014.

         1. Dr. Marks' August 30, 2012 Report

         On August 30, 2012, Dr. Marks reported that Dr. Brugler had “a retinal detachment that involved the macula, ” and that “the fovea, the center responsible for fine vision was detached.” Per Dr. Marks, Dr. Brugler's “visual acuity at his last exam on August 21 is 20/50 in the right eye.”

         Dr. Marks then moves to assessing Dr. Brugler's prospects of practicing dentistry. Dr. Marks reports that Dr. Brugler “will have a permanent deficit with his fine binocular vision and depth perception. Because of this he is unable to perform his occupation adequately which is fine detail within the mouth as a dentist. [Dr. Brugler] needs to do work in the mouth that is quite precise to 1/10 of a millimeter with magnifying loops. This will not be possible with his current visual deficit.”[23]

         2. Dr. Marks' February 25, 2014 Report

         On February 25, 2014, Dr. Marks submitted another expert report, which appears to respond to Dr. Schaffer's independent medical examination. Dr. Marks reports that the “cause of Dr. Brugler's visual problems” was the fact that the macula was off in his right eye's retina.[24] Per Dr. Marks, Dr. Brugler's “most problematic symptom is the lack of normal binocular vision”-“there is a chance that several surgeries might improve his vision, [but] he would still be left with altered depth perception from the macula-off nature of the retinal detachment.”[25]

         As in his first report, Dr. Marks assesses that Dr. Brugler could not practice dentistry: “[T]here is no way that [Dr. Brugler] could perform to the level that is required with the altered depth perception that he has been left with permanently because of the macula-off retinal detachment of the right eye.”[26] In this report, Dr. Marks points out that Dr. Brugler “is not a general dentist.”[27]

. “I am acutely aware of the difference between a general dentist and a specialist because my father did very similar work to Dr. Brugler. Dr. Brugler works in extremely small pockets within the mouth including but not limited to implant surgery, in which case he sometimes works with measurements that are less than tenths of a millimeter.”[28]
. “[W]hen my father was involved with implant surgery, I often heard at the dinner table the discussions of the very small spaces and the extremely small margin of error.”[29]

         3. Dr. Marks' Knowledge and Process of Forming his Opinions

         Dr. Marks testified that he “really [didn't] know much about general dentistry.”[30] Indeed, Dr. Marks only expressed a “clear understanding” of one aspect of Dr. Brugler's duties: Dr. Brugler's “working inside the mouth . . . in a very small space.”[31] And yet this “clear understanding” was based on Dr. Marks “making the assumption” that general dentistry involved “hav[ing] to work in a very small space ”[32] Dr. Marks was “not sure” which exact duties Dr. Brugler could not perform that would “require him to . . . look in a small space ”[33] Neither did Dr. Marks know what types of tools Dr. Brugler used in his day-to-day practice.[34] Casting new light on his two reports, Dr. Marks ultimately testified that he did not have the experience or the background to be able to testify within a reasonable degree of medical certainty that Dr. Brugler could not return to perform any of his occupational duties.[35]

         Dr. Marks testified that he wrote his February 25, 2014 report on the same day that Dr. Brugler visited him to talk about Dr. Brugler's disability case.[36] Dr. Marks did not examine Dr. Brugler during this visit.[37]

         In both of his reports, Dr. Marks wrote that Dr. Brugler would have to visualize a space less than one-tenth of a millimeter in performing his duties as a dentist. Dr. Marks was pressed on this during his deposition. He testified that he could not remember how he came about this fact, and that he might have been relying on Dr. Brugler.[38]

         After doing the pneumatic retinopexy surgery on Dr. Brugler in July 2012, Dr. Marks did not test the extent of Dr. Brugler's issues with depth perception.[39]And, even if Dr. Marks was so inclined, he could not have done this testing. For, though Dr. Marks understood that it was possible to quantify depth perception by degree, he was not familiar with that testing and had never been taught it.[40]

         D. Dr. Vander

         1. Dr. Vander's Background

         Dr. Vander holds the position of Professor of Ophthalmology at Thomas Jefferson University in Philadelphia and serves as an attending surgeon at Wills Eye Hospital, also in Philadelphia. He graduated from the University of Michigan's medical school. He served a residency in ophthalmology at the University of Michigan and a fellowship at Wills Eye.[41]

         Dr. Vander has authored four editions on a book on ophthalmology, which includes a section on the various options for repair of a retinal detachment.[42] He has also written textbook chapters that involve retinal detachments.[43] Dr. Vander has assisted in the peer review process for numerous journals on ophthalmology, and he has performed the pneumatic retinopexy surgery on hundreds of patients suffering from Dr. Brugler's variety of retinal detachment.[44]

         2. Dr. Vander's July 31, 2017 Report

         Dr. Vander provided one report on Dr. Brugler's behalf, dated July 31, 2017. This letter contains general discourse on “the structure of the eye and how injury to the retina and macula may impact vision, ” as well as a summary of Dr. Brugler's treatment history and his current diagnoses, and general statements about patients with Dr. Brugler's variety of retina detachment.[45] But Dr. Vander makes clear that this report is meant to “offer my professional opinion as to whether Dr. Brugler has or may in the future be able to perform the important duties of his occupation.” Dr. Vander concludes that “Dr. Brugler cannot perform these functions.”[46]

         Dr. Vander describes Dr. Brugler's practice as “focused . . . on restorative procedures, extractions, root canals, implant placement and TMJ treatment, as well as all other aspects of general dentistry, as needed.” Dr. Vander notes that “Dr. Brugler's practice required that he work in confined spaces in the mouth, thus mandating that he have excellent binocular vision and fine vision. Dr. Brugler's surgical and restorative procedures routinely required him to visualize work at less than tenths of millimeters.”[47]

         Dr. Vander also attests of surgeons in general:

Typical surgeons, be they dental or otherwise, have not only ‘normal' vision, but almost invariably have exceptional vision. [A] modest reduction in depth perception and visual acuity is very likely to render a treating doctor's ability to perform procedures very difficult if not impossible. Furthermore, it is very difficult to quantify the impact of these effects. . . . In my experience, the distortion and impairment of vision created after a retinal detachment is a very common result, but very difficult to measure.[48]

         According to Dr. Vander, (1) “the distortion and impairment of vision created after a retinal detachment, ” combined with (2) Dr. Brugler's “epiretinal membrane, ” (3) his “considerable vitreous capacities, ” and his (4) “early cataracts, ” meant that “the events surrounding [Dr. Brugler's] retinal detachment in 2012 and subsequent changes within the retina as well as elsewhere in the eye rendered him incapable of this particular aspect of his occupation.”[49] Dr. Vander's final conclusion is that Dr. Brugler's variety of retinal detachment “and resultant loss of fine vision and depth perception and visual distortion, loss of resolution, and vitreous matter floating in his axis of vision is a permanent visual defect, as Dr. Marks reported, preventing [Dr. Brugler] from safely treating patients.”[50] As with Dr. Marks' second letter, Dr. Vander also claims that Dr. Schaffer was mistaken, arguing that, as Dr. Schaffer was not a retinal physician but rather a neuro-ophthalmologist, he “looks at this from a different perspective”-one that “misses the point.”[51]

         3. Dr. Vander's Knowledge and Process for Forming his Opinions

         Dr. Vander understood Dr. Brugler's job duties to only involve implant dentistry.[52] But then Dr. Vander showed a lack of understanding of what implant dentistry involved, the consequences of reduced visual acuity in implant dentistry, and Dr. Brugler's duties as a general dentist outside of implant dentistry.

         Dr. Vander described Dr. Brugler's “field” as “implant dentistry, ” but then disclaimed that “I'm not an expert in implant dentistry.”[53] Dr. Vander did not “know the consequences of reduced [visual] ability in that field, ” and did not know “implant dentistry enough to know if [these consequences were] something that could be monitored and assessed by someone who's an expert in the field.[54]According to Dr. Vander, if a surgeon specializing in implant dentistry had “vision good enough for [them] to believe that they can work, and an objective observer who's an expert in that field [could] verify the quality of work, I would not object.” But Dr. Vander admitted that “I don't know whether that's possible.”[55]

         Dr. Vander stated that, in his understanding, the only key visual requirement for Dr. Brugler to perform the important duties of his profession was “the ability with great confidence to perceive differences in depths to a precision less than a millimeter, fractions of a millimeter.”[56] In keeping, Dr. Vander expressly stated that his letter was not based on him “know[ing] what it takes to be a dentist, ” and that his letter was limited to assessing the areas of Dr. Brugler's work where he was “work[ing] in spaces that are [a] fraction of a millimeter where the margin for error requires that level of acuity.”[57]

         Aside from the need to work in areas a fraction of a millimeter, Dr. Vander was not aware of any of Dr. Brugler's other relevant duties.[58] And Dr. Vander did not know what percentage of Dr. Brugler's practice involved implant dentistry, [59] or even whether there were other aspects of Dr. Brugler's practice at all.[60] Dr. Vander did not know what Dr. Brugler's day-to-day duties were, [61] the level of precision required by the work Dr. Brugler had to perform on a day-to-day basis, [62] or whether Dr. Brugler had the ability to take a patient's x-rays, fill a cavity, or pull a tooth.[63] Dr. Vander disclaimed that he was “not sophisticated enough in the nuances of general dentistry to know whether there's any aspect of general dentistry that requires that same level of acuity [as implant dentistry.]”[64]

         In his deposition, Dr. Vander stated that his opinion that Dr. Brugler could not return to performing the important duties of his profession was based on two objective facts. First: that “the retinal anatomy in his eye is not normal . . . documented by [a particular eye test known as the] OCT.”[65] And second: that Dr. Brugler's “stereoacuity is less than average when I will expect a surgeon doing that level of detailed work to have better than average acuity.”[66]

         But Dr. Vander also stated that his knowledge of what was required visually of Dr. Brugler to perform the important duties of his profession came from Dr. Marks' reports and their statement about Dr. Brugler's work “routinely requir[ing] him to visualize work at less than 10 millimeters.”[67] Dr. Vander never inquired as to whether Dr. Marks had the expertise or knowledge to make that statement.[68] In preparing his report, Dr. Vander neither spoke to Dr. Brugler's staff to gain an understanding of Dr. Brugler's duties, nor spoke to a dentist in general to get assistance and guidance on what these duties might entail.[69]

         E. Dr. Schaffer and the Titmus Testing

         1. Dr. Schaffer's Background

         Dr. Schaffer is a board-certified, fellowship-trained ophthalmologist, specializing in neuro-opthalmology and pediatric ophthalmology.[70] He specializes in eye issues related to the optic nerve, neurological diseases (including stroke and brain tumors), double vision, strabismus and eye disease in children.[71] He studied medicine at Jefferson Medical College in Philadelphia.[72] He then attended ophthalmology residency at the University of Pennsylvania, and served a fellowship in neuro-ophthalmology at the Montefiore Medical Center, Albert Einstein College of Medicine in New York, and a fellowship in pediatric ophthalmology at the University of Pennsylvania.[73] He currently works at Delray Eye Associates in Delray Beach, Florida.[74]

         2. The Independent Medical Examination

         Defendants, in investigating Dr. Brugler's medical condition following his surgery, referred Dr. Brugler to Dr. Schaffer for an independent medical examination. Dr. Schaffer conducted this examination on February 6, 2014. The examination entailed several tests of Dr. Brugler's eye and its visual acuity. These tests included a depth perception test known as the Titmus test.[75]

         3. The Titmus Test

         Testing a patient's “stereoacuity” (the smallest detectable depth difference that can be seen in binocular vision)[76] is the most prevalent method of testing a patient's depth perception.[77] The Titmus test (also known as Titmus fly testing or contour testing)[78] is the most common way to test a patient's stereoacuity.[79] It operates by showing the patient a picture of a fly with disparities in depth around the edges of the fly. The patient is tasked with determining whether they can make out a three-dimensional picture at the tested level of depth disparity.[80] Pediatric ophthalmologists and neuro-ophthalmologists, such as Dr. Schaffer, generally conduct Titmus tests.[81]

         During discovery, each side provided expert testimony on the Titmus test.

. Dr. Marks testified he understood why the Titmus test was included in the independent medical examination, as it was an independent objective measure of Dr. Brugler's depth perception.[82]
. Before Dr. Vander started his residency, he needed to take a Titmus test to measure his stereoacuity.[83]
. For several years, Dr. Vander used the Titmus test to measure the depth perception of applicants looking for a training position in his retinal practice. If the applicant did not receive a certain score (“nine out of nine”), then the applicant would not receive an offer.[84]
. Dr. Vander relied “on the fact that [Dr. Brugler's] stereoacuity [measured by Titmus test] was less than average” in reaching his opinion that Dr. Brugler could not perform the important duties of his profession.[85] Dr. Vander also considered “the measured abnormality in [Dr. Brugler's] stereoacuity testing” to be objective medical evidence of Dr. Brugler's “distortion post-surgery.”[86]
. Dr. Friberg testified that there were probably journal articles stating that the Titmus test was unreliable, but that he had not read those articles.[87]
. Dr. Friberg testified that he was “sure somebody would say [the Titmus test was] unreliable, ” but he implied that the Titmus test was more reliable than other tests of stereoacuity.[88]

         Dr. Brugler also submitted several journal articles that discuss the Titmus test and its reliability. First, Dr. Brugler submitted a 2018 article from the journal Clinical and Experimental Optometry entitled “Stereopsis: are we assessing it in enough depth?”[89] This article makes several summary statements about the efficacy of stereoacuity tests in general, asserting that “[c]urrent tests are limited in the aspects of stereoacuity they assess and their ability to precisely measure stereopsis [depth perception]. . . . Current clinical tests are limited in their presentation, and are poor in detecting/measuring stereoacuity in those with limited stereopsis.”[90] The article reports of the Titmus test specifically that it is “commonly used in vision labs and clinics around the world, ” but “it is easy to guess the response due to monocular cues and familiarity with objects.”[91] The article concludes that “[c]urrent clinical assessments of stereoacuity are effective at detecting good levels of stereoacuity, with data available to evaluate whether the response is normal, or represents a change in the clinical condition. However, they do not accurately reflect a person's perception of stereopsis in real life, in particular due to the small, flat, static nature of the stimuli.”[92]

         Dr. Brugler also submitted an abstract of a 2014 journal article from the journal American Orthoptic Journal entitled “Modification of the titmus fly test to improve accuracy.” The abstract states that “[i]n spite of its well-known flaws, the Titmus test is still the most commonly available and frequently utilized stereotest worldwide.” It presents “an alternative method of presentation designed to decrease the [test's] false positive rate, ” concluding that this method, under certain circumstances, would “improve accuracy and precision of results.”[93]

         Finally, Dr. Brugler submitted the summary of a 2015 journal article from the Journal of American Association for Pediatric Ophthalmology and Strabismus entitled “An Evaluation of the Agreement Between Contour-Based Circles and Random Dot-Based Near Stereoacuity Tests.” This article relates an experiment to compare the Titmus test with another stereoacuity test, the “Randot circles” test. The experiment found that in patients with “a history of anomalous binocular vision, ” “better stereoacuity scores were acquired using [the Titmus test] than [the Randot test].”[94]

         During his deposition, Dr. Vander testified that he had no reason to dispute Dr. Schaffer's calculations or the way that Dr. Schaffer conducted the Titmus test.[95] Likewise, Dr. Marks during his deposition also could not dispute Dr. Schaffer's findings or the calculations that Dr. Schaffer made when performing the Titmus test.[96]

         4. Dr. Schaffer's February 11, 2014 Report

         On February 11, 2014, Dr. Schaffer submitted a report to Defendants based on the independent medical examination that he conducted on February 6, as well as on his review of the records associated with Dr. Brugler's insurance claim and Dr. Brugler's medical history.[97] The report makes factual findings on (a) Dr. Brugler's medical history; (b) Dr. Brugler's reported symptoms; (c) the results of the medical tests that Dr. Schaffer performed; (d) Dr. Schaffer's analysis as to the condition of Dr. Brugler's eye; and (e) Dr. Schaffer's assessment of whether Dr. Brugler could practice dentistry.

         Dr. Schaffer reports that “Titmus testing revealed 7 out of 9 graded circles correctly identified, indicating 60 arcseconds of stereoacuity (40 arcseconds generally considered normal).”[98] He gives the following high-level summary of the results of his examination and the condition of Dr. Brugler's eye.

Dr. Brug[l]er's neuro-opthalmic examination demonstrates a mild loss of acuity and ganglion cell damages following macula-off retinal detachment. He has slightly diminished stereoacuity and no evidence of significant ocular misalignment to coincide with the severity of his complaints regarding depth perception, specifically those such as pouring his coffee and parking his car. Some of his symptoms at near could be due to presbyopia, which is a normal finding of aging and would likely improve with a stronger prescription where the reading add is concerned.[99]

         Dr. Schaffer finishes his opinion by assessing Dr. Brugler's ability to perform his work. Dr. Schaffer states that he “believe[s] magnifying loops, perhaps with base-in prism, would be quite helpful in regard to [Dr. Brugler's] near work in the office. As to [Dr. Brugler's] inability to perform non-microscopic dental surgery, I cannot relate a loss of 20 arcseconds of stereoacuity to complete disability (this equates to approximately 5/100 of a degree).”[100]

         F. Dr. Friberg

         1. Dr. Friberg's Background

         Dr. Friberg is a professor of ophthalmology at the University of Pittsburgh School of Medicine.[101] He has over forty years of experience in retinal surgery.[102]He attended medical school at the University of Minnesota. He then participated in an ophthalmology residency at Stanford University, a retina fellowship at the Massachusetts Eye & Ear Infirmary, and a vitreous fellowship at the Duke Eye Center.[103]

         2. Dr. Friberg's November 30, 2017 Report

         On November 30, 2017, Dr. Friberg submitted a report based on his “independent review” of Dr. Brugler's records. The report has three principal topics: (1) the condition of Dr. Brugler's right eye, (2) the visual prognosis of the type of retinal detachment that Dr. Brugler suffered, and (3) whether Dr. Brugler could practice dentistry. Dr. Friberg's findings on the condition of Dr. Brugler's right eye are largely recapitulations of previous doctor's reports and medical records.

         Dr. Friberg offers that “the visual prognosis of [Dr. Brugler's variety of] retinal detachment is not uniformly poor.” Dr. Friberg states that “I have operated upon surgeons, artists and many other individuals whose employment requires fine manipulation who have had macular off detachments who returned to their professions after surgery.”[104] According to Dr. Friberg, because “the fovea was not totally detached in Dr. Brugler's right eye, ” “better visual function and a good prognosis would be expected in such a case.”[105]

         Dr. Friberg finds it “an exaggeration” to say that “since Dr. Brugler had a macula-off detachment, he would be unable to conduct the fine motor tasks of dentistry.” Dr. Friberg then reports Dr. Schaffer's Titmus test reading, finding that “within the normal range for a man in his sixties, ” before concluding that [b]ased on my review of the records, along with my training and experience, it is my opinion that Dr. Brugler's detachment was successfully repaired and that he should not be precluded from returning to his dental practice.”[106]

         3. Dr. Friberg's Knowledge and Process for Forming his Opinions

         Dr. Friberg stated that he reviewed a significant number of medical records and a significant amount of deposition testimony in rendering his expert opinions.[107] In making his finding that Dr. Brugler was not disabled, Dr. Friberg relied on the results of Dr. Brugler's visual acuity tests, the results of Dr. Schaffer's Titmus testing, his “experience after retinal detachment surgery of successful repair, ” the fact that there was no “scarring underneath the sensory retina, ” and the fact that, in Dr. Brugler's case, his retina was not “grossly wrinkled”-Dr. Brugler lacked “gross findings that often are apparent when someone has distortion, for instance, such as retinal folds.”[108]

         Dr. Friberg reviewed the results of the Titmus test conducted by Dr. Schaffer, as well as the results of a Titmus test that another physician, Dr. Harvey Hanlen, had conducted.[109] Dr. Friberg testified that he was knowledgeable about stereoacuity testing and had previously personally performed Titmus testing on patients, though this was a “very tiny amount” of his practice.[110] Dr. Friberg relied upon the Titmus test to measure his patients' stereoacuity.[111] He did not research whether the specific protocols that Dr. Schaffer used for his Titmus test were reliable.[112] He had not encountered any peer-reviewed articles indicating that the Titmus test was considered to be unreliable and should be avoided.[113]

         Dr. Friberg had a very basic knowledge of a dentist's duties. He understood that generally a dentist works in the mouth.[114] He also knew that general dentistry involves filling cavities, making crowns, reading X-rays, and pulling teeth.[115] But Dr. Friberg had not studied or spoken to anyone about the level of depth perception that a dentist needed to possess in order to perform an implant procedure or implant dentistry, [116] or to prepare impressions or deliver and fill veneers.[117] For this, Dr. Friberg appeared to be relying on the statements in Dr. Marks' reports, and echoed by Dr. Vander, that precision of a tenth of a millimeter was required for this kind of dental work.[118]

         III. LAW

         Both parties have presented motions in limine for the Court's consideration. Motions in limine are threshold motions, those through which courts will typically deny and defer a ruling until the time of trial (outside of the presence of the jury), unless the evidence is clearly inadmissible prior to trial. Determinations on motions in limine are preliminary rulings, those which the Court may adjust after the evidence has been developed at trial. Although neither the Federal Rules of Evidence nor the Federal Rules of Civil Procedure expressly acknowledge motions in limine or provide for their use, “the practice has developed pursuant to the district court's inherent authority to manage the course of trials.”[119]

         Defendants' motions targeting Dr. Marks and Dr. Vander, and Dr. Brugler's motion, all proceed by challenging the admissibility of expert testimony. Federal Rules of Evidence 702 and 703 govern.

Rule 702. Testimony by Expert Witnesses
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.[120]
Rule 703. Bases of an Expert's Opinion Testimony
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.[121]

         In 1993, the Supreme Court of the United States set out the standard for admissibility of expert testimony in federal court in Daubert v. Merrell Dow Pharm., Inc.[122] The Court in Daubert delegated to district courts a “gatekeeping responsibility” under Rule 702, which requires them to “determine at the outset” whether an expert witness can “testify to (1) scientific knowledge that (2) will assist the trier of fact.”[123] That gate-keeping function demands an assessment of “whether the reasoning or methodology underlying the testimony is scientifically valid” as well as “whether that reasoning or methodology properly can be applied to the facts in issue.”[124] Daubert also clarified that the proponents of the expert must establish admissibility by a preponderance of the evidence.[125]

         Though it recognized that “many factors” are relevant to this inquiry and that “a definitive checklist or test” does not exist, the Daubert Court enumerated four relevant questions for district courts to consider when making the Rule 702 determination: (1) whether the disputed methodology is testable; (2) whether the disputed methodology has been peer-reviewed; (3) the methodology's known or potential rate of error; and (4) whether the methodology is generally accepted in the relevant scientific community.[126]

         Daubert explained that district courts should conduct this inquiry in addition to that already mandated by Federal Rules of Evidence 703, which governs admission of expert testimony using data reasonably relied upon by experts in a particular field, and Federal Rule of Evidence 403, which permits exclusion of relevant evidence whose “probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”[127] A district court “exercises more control over experts than over lay witnesses, ” the Supreme Court observed, since “[e]xpert evidence can be both powerful and quite misleading because of the difficulty in evaluating it.”[128] Six years later, in Kumho Tire Co. v. Carmichael, the Supreme Court extended Daubert's holding as well as the district court's gate-keeping role beyond scientific expert testimony to all expert testimony based on “technical” or “other specialized knowledge.”[129]

         In 1994, the United States Court of Appeals for the Third Circuit issued its interpretation of Daubert in In re Paoli R.R. Yard PCB Litig., a decision known as Paoli II.[130] Paoli II cast the expert admissibility determination in light of three requirements: (1) qualification; (2) reliability; and (3) fit.[131] The qualification prong demands that the proffered expert possess sufficient “specialized knowledge” to testify as an expert.[132] The Third Circuit has interpreted this requirement broadly.[133] In this Court's view, the requirement that does the most work is naturally that of reliability. To satisfy the reliability prong, an expert's opinion “must be based on the ‘methods and procedures of science' rather than on ‘subjective belief or unsupported speculation.'”[134] Paoli II set forth an additional four factors to those provided in Daubert. That list of factors, which “a district court should take into account, ” reads as follows:

(1) whether a method consists of a testable hypothesis; (2) whether the method has been subject 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 method 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.[135]

         With regard to the third prong, fit, the Paoli II Court explained that admissibility “depends . . . on ‘the proffered connection between the scientific research or test result . . . and [the] particular disputed factual issues.'”[136] In recognition then of Paoli II's interpretation of Daubert, Third Circuit courts confronting expert witness issues have recognized that admissibility requires a proffered expert to surpass “a trilogy of restrictions”: qualification, reliability and fit.[137]

         Defendants' motion seeking to preclude Dr. Brugler from challenging the reasonableness of the Titmus test, and their motion seeking to preclude Dr. Brugler from testifying about Defendants' intentions in handling the claim and history of claim handling, each argue that the targeted topic of testimony is irrelevant to Plaintiff's remaining breach of contract, and even if relevant, its probative value would be ...


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