WILLIS v. WELLS FARGO BANK CBRE (2023)

OMNIBUS ORDER ON DAUBERT MOTIONS

THIS CAUSE is before the Court on Defendant Wells Fargo Bank, N.A. (“Defendant”)’s Daubert Motion to Exclude Testimony of Plaintiff's Expert, Christopher Zimmerman [DE 89] and Plaintiff Melissa Willis (“Plaintiff”)’s Daubert Motion to Exclude Testimony of Dr. Gaetano Scuderi, M.D. [DE 86]. The Court has carefully considered the Motions, the Responses, and the record herein. The Court is otherwise fully advised in the premises.

A. Legal Standard

As explained by Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and its progeny, Rule 702 ¹ governs the admissibility of expert testimony. Rink v. Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir. 2005). In Daubert, the Court described the gatekeeping function of the district court to “ensure that any and all scientific testimony or evidence is not only relevant, but reliable.” Daubert, 509 U.S. at 589, 113 S.Ct. 2786. As stated in the Advisory Committee Notes accompanying Rule 702 of the Federal Rules of Evidence, “[a] review of the case law after Daubert shows that the rejection of expert testimony is the exception rather than the rule.” See Advisory Committee Notes to the 2000 Amendment to Rule 702. In addition, the trial judge is afforded broad discretion in deciding Daubert issues. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). “The qualification standard for expert testimony is ‘not stringent,’ and ‘so long as the expert is minimally qualified, objections to the level of the expert's expertise [go] to credibility and weight, not admissibility.’ ” Kilpatrick v. Breg, Inc., No. 08-10052-CIV, 2009 WL 2058384, at *3 (S.D. Fla. June 25, 2009) (quoting Hendrix v. Evenflo Co., 255 F.R.D. 568, 585 (N.D. Fla. 2009)).

In Rink v. Cheminova, Inc., 400 F.3d 1286 (11th Cir. 2005), the Eleventh Circuit set forth a three-pronged approach to qualifying expert witnesses: To fulfill their obligation under Daubert, district courts must engage in a rigorous inquiry to determine whether: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue. Id. at 1291–1292 (internal citations omitted). The party offering an expert has the burden of satisfying each of these elements by a preponderance of the evidence. See Id. at 1292; see also Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999).

B. Discussion

1. Christopher Zimmerman

Christopher Zimmerman (“Zimmerman”) is a Florida Licensed Building Inspector and Florida Licensed Plan Examiner, with certifications as a Walkway Auditor, Accessibility Building Inspector and Plans Examiner, and a Fire Safety Inspector. Zimmerman also maintains memberships with the International Code Council (ICC), the Building Officials Association of Florida (BOAF) and the American Society for Testing and Materials (ASTM). Zimmerman has worked for/with various governmental entities, including Village of Wellington (Building and Zoning Dept.), St. Lucie County (Building and Zoning Dept.), Florida Dept. of Insurance (Fraud Division). Plaintiff offers Zimmerman as an expert to provide opinions with respect to the preservation of public safety, through the application of building codes, regulations and ordinances. Zimmerman will opine as to the alleged multiple violations that occurred by allowing the outside entranceway area and accessible parking space to remain in the condition as alleged by Plaintiff at the time of the accident at issue, whereby Plaintiff claims that she slipped and fell on mud in the subject parking lot.

Defendant moves to exclude Zimmerman from testifying at trial under Daubert and Rule 702. It argues that Zimmerman is not qualified in the relevant area because he is not an engineer or an architect. Defendant also argues that Zimmerman's testimony regarding the slip resistance of the area on which Plaintiff claims to have slipped and fallen appears to be speculative and outside the scope of his practice. Having carefully considered the parties’ arguments for and against the exclusion at trial of Zimmerman's proffered opinions, the Court denies the Daubert motion. Zimmerman is sufficiently qualified to offer the proffered opinions and will be able to provide helpful, relevant testimony that will likely assist the jury in understanding these matters, which are “beyond the understanding of the average lay person.” See U.S. v. Frazier, 387 F.3d 1244, 1262 (11th Cir. 2004). Moreover, the Court finds that the proffered expert testimony will have a tendency not to confuse the jury, but rather to “logically advance[ ] material aspect[s] of the case.’ ” See Coral Way, L.L.C. v. Jones, No. 05-21934-CIV, 2006 WL 5249734, at *2 (S.D. Fla. Oct. 17, 2006) (quoting McDowell v. Brown, 392 F.3d 1283, 1299 (11th Cir. 2004)). Defendant's criticisms of Zimmerman's opinion may form the basis for “[v]igorous cross-examination and “presentation of contrary evidence” at trial. See Maiz v. Virani, 253 F.3d 641, 666 (11th Cir. 2001); see also Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190, 1193 (11th Cir. 2011).

2. Dr. Gaetano Scuderi, M.D.

Dr. Gaetano Scuderi, M.D. (“Dr. Scuderi”) is an orthopedic surgeon retained by Defendant in this matter to present his opinions as to reasonableness of Plaintiff's medical treatment, which included four surgical procedures related to her injuries, and the medical billing related to the same. In his practice as an orthopedic specialist, Dr. Scuderi routinely performs a variety of orthopedic surgical procedures similar to those which Plaintiff underwent as a result of this incident. In addition to being an orthopedic surgeon, Dr. Scuderi reviewed Plaintiff's medical billing records related to her treatment at the Spine and Orthopedic Specialists, and specifically, for her injections and surgeries related to her treatment with two orthopedic specialists.

Plaintiff seeks to exclude Dr. Scuderi's opinions related to the reasonableness of the Plaintiff's medical billing records related to those surgical operations, arguing that he will not assist the jury, but rather will confuse the jury, on the grounds that medical billing practices and whether a medical provider's CPT coding was proper is not relevant to whether the charges for medical treatment were reasonable, usual, and customary. Plaintiff asserts that (presumably only) the medical providers who ordered the treatments can inform the jury as to the reasonableness of the medical treatments and medical billing.

Having carefully considered the parties’ arguments, the Court denies Plaintiff's Daubert motion to exclude Dr. Scuderi's expert opinion and testimony. Dr. Scuderi is sufficiently qualified in terms of his training and experience as an orthopedic surgeon who routinely performs a variety of orthopedic surgical procedures similar to those which Plaintiff underwent as a result of this incident to provide helpful, relevant testimony that will likely assist the jury in understanding these matters, which are “beyond the understanding of the average lay person.” See Frazier, 387 F.3d at 1262. Moreover, the Court finds that the proffered expert testimony will have a tendency not to confuse the jury, but rather to “logically advance[ ] material aspect[s] of the case.’ ” See Coral Way, 2006 WL 5249734, at *2 (quoting McDowell, 392 F.3d at 1299). Finally, “[t]he qualification standard for expert testimony is ‘not stringent,’ and ‘so long as the expert is minimally qualified, objections to the level of the expert's expertise [go] to credibility and weight, not admissibility.’ ” Kilpatrick, 2009 WL 2058384, at *3 (quoting Hendrix., 255 F.R.D. at 585). Defendant's criticisms of Dr. Scuderi's experience, methodology, and opinion may form the basis for “[v]igorous cross-examination and “presentation of contrary evidence” at trial. See Maiz, 253 F.3d at 666; see also Rosenfeld, 654 F.3d at 1193.

C. Conclusion

Based on the foregoing, it is hereby ORDERED AND ADJUDGED as follows:

1. Defendant's Daubert Motion to Exclude Testimony of Plaintiff's Expert, Christopher Zimmerman [DE 89] and Plaintiff's Daubert Motion to Exclude Testimony of Gaetano Scuderi, M.D. [DE 86] are DENIED.

2. The Court's rulings herein denying the motions to exclude these experts under Rule 702 of the Federal Rules of Evidence and Daubert and its progeny are without prejudice to the opposing side objecting at trial to individual questions asked of the experts and/or to answers provided by the experts, where the Court will have the opportunity to see the experts’ testimony in perspective with other evidence in the trial.

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida this 18th day of April, 2023.

FOOTNOTES

1.   Rule 702 provides as follows: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.Fed. R. Evid. 702.

WILLIAM P. DIMITROULEAS, United States District Judge