United States District Court, S.D. Mississippi, Southern Division
ORDER DENYING PLAINTIFFS' SECOND MOTION IN LIMINE
AS TO EXPERT TESTIMONY
Guirola, Jr. U.S. District Judge
THE COURT is the Plaintiffs'  Second Motion In Limine
as to Expert Testimony. Plaintiffs seek to exclude testimony
from Defendants' medical expert, Dr. Daniel Wittersheim,
in this personal injury lawsuit. The issues have been fully
briefed. After due consideration, the Court finds that Dr.
Wittersheim's testimony meets Daubert
requirements and will be allowed. Accordingly, the
Plaintiffs' Motion is denied.
case concerns an incident in the Beau Rivage Resort in
Biloxi, Mississippi, in October 2015. Plaintiff Pamela
Neessen alleges she was injured when she was struck by a full
luggage cart being operated by a Beau Rivage employee.
Defendants have conceded liability, leaving only the issue of
damages for trial. The parties contest the extent to which
Neessen's medical treatment following the accident, and
in particular Neessen's hip replacement, was necessitated
by the accident. Defendants engaged Dr. Wittersheim, an
orthopedic surgeon specializing in total hip and knee
replacement, revision and reconstruction, to provide expert
opinion testimony about this issue. Neessen objects to the
introduction of opinion testimony from Dr. Wittersheim
pursuant to Federal Rule of Evidence 702.
Rule of Evidence 702 provides for the admission of expert
testimony that assists the trier of fact to understand the
evidence or to determine a fact in issue. A court is charged
with a “gatekeeping function” to ensure expert
testimony is both reliable and relevant. Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993).
Reliability is analyzed under Rule 702, which requires that:
(1) the testimony is based upon sufficient facts or data, (2)
the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case. Fed.R.Evid. 702.
“Expert testimony which does not relate to any issue in
the case is not relevant and, ergo, non-helpful.”
Daubert, 509 U.S. at 591.
argues that Dr. Wittersheim's testimony is not reliable
because it is not based on sufficient facts or data. Dr.
Wittersheim opined that within a reasonable degree of medical
probability Neessen “would have went on to requiring
both of her hips, or desiring to have both of her hips
replaced within probably about the same time frame.”
(Wittersheim Dep. 22, ECF No. 64-5.) He based his opinion on
the following facts: Neessen had been seeking treatment for
her hips for many years; her x-rays showed “an
arthritic hip;” she was ambulating with a cane at the
time of the incident; and emergency room records did not
indicate a traumatic injury to her hips. (Id. at
contends that Dr. Wittersheim's opinion that she
“suffered no trauma as a result of being struck with
the luggage cart is contrary to all other evidence in this
case - the surveillance footage and bruise photos, and this
alone is sufficient to discredit his opinion . . . .”
(Pl. Resp. 3-4, ECF No. 60.) Neessen argues that Dr.
Wittersheim is wrong that she did not suffer trauma from the
fall because the surveillance video shows a
“severe” fall, and the emergency room photos show
bruises on her body. She also argues that Dr. Wittersheim
does not support his conclusion that her hip surgeries would
have occurred regardless of her fall at the Beau Rivage.
Wittersheim testified that there were no emergency room
photos of bruises on Neessen's hips, only her right knee
and upper arm, indicating that there was no injury to her
hips. (Wittersheim Dep. 26-27, ECF No. 64-5.) He viewed the
surveillance video of Neessen's fall and described the
impact as not severe, but instead “a ground level
fall.” (Id. at 25.) Dr. Wittersheim also
examined Neessen's medical records, noting that
“from an orthopedic standpoint, ” Neessen
“was in unfortunate medical condition.”
(Id. at 11.) Prior to her fall at the Beau Rivage,
Neessen had bilateral total knee replacements, possibly a
shoulder replacement, severe lymphedema in her lower
extremities, suffered multiple pelvic fractures in an auto
accident, and had been treated for bilateral hip pain for a
number of years. (Id. at 11-16.) A record dated less
than one year after the fall shows Neessen had bone-on-bone
in her right hip. (Id. at 16-17.)
Dr. Wittersheim has drawn conclusions from this evidence that
differ from Neessen's contentions does not make Dr.
Wittersheim's opinion unreliable. When an expert
discloses the basis of an opinion, the jury decides the
weight of the opinion. Viterbo v. Dow Chemical Co.,
826 F.2d 420, 422 (5th Cir. 1987) (questions relating to the
bases and sources of an expert's opinion affect the
weight to be assigned that opinion rather than its
admissibility); Carter v. Massey-Ferguson, Inc., 716
F.2d 344, 350 (5th Cir. 1983) (“[The] expert based his
testimony on the plaintiff's account of the accident . .
. . He disclosed the underlying basis of his testimony . . .
. Based on this disclosure, the jury could decide how much
weight to accord the opinion testimony.”). Neessen may
explore any weakness in the way Dr. Wittersheim formed his
opinions and conclusions on cross examination at trial.
See Dearmond v. Wal-Mart La. LLC, 335 Fed.Appx. 442,
444 (5th Cir. 2009) (“Cross-examination at trial . . .
is the proper forum for discrediting testimony, and
credibility determinations are, of course, the province of
[the fact finder].”). The motion to exclude Dr.
Wittersheim's testimony will be denied.
IS THEREFORE ORDERED AND ADJUDGED that the
Plaintiffs'  Second Motion In Limine as to Expert
Testimony is DENIED.