Sample Frye-Reed Motion to Exclude Expert
Below is a sample Frye-Reed (Daubert in federal court) motion we filed in Baltimore City to exclude an expert based on unsound methodology in formulating opinions. This is not a motion plaintiffs' lawyers usually file. But we need to go on the offensive if we want to win. This type of motion should be filed in many injury and malpractice cases to keep defendants honest by requiring them to proffer only experts that have a sound basis for their opinions.
JAMES EVANS *
IN THE Plaintiff *
CIRCUIT COURT v. *
FOR MONROE TRUCKING *
BALTIMORE CITY Defendants *
CASE NO. 13-C-18-117047 MM
* * * * * * * * * * * *
Sample Frye-Reed Motion to Exclude Expert
ROBERT HAMMERMILL, M.D. FROM TESTIFYING AT TRIAL PURSUANT TO MARYLAND RULE 5-702, FRYE-REED, AND FALIK V. HORNAGE
Plaintiff, by and through undersigned counsel, hereby files this Motion in Limine to Exclude Defense Expert Robert Hammermill, M.D. from Testifying at Trial Pursuant to Maryland Rule 5-702, Frye-Reed, and Falik v. Hornage and in support thereof states as follows:Introduction
This case involves an automobile collision between the Plaintiff and Defendant that occurred on September 2, 2018 in Baltimore City, Maryland. As a direct and proximate result of the collision, the Plaintiff sustained severe and permanent injuries to her neck and back. She receive the majority of her medical treatment from September 2018 until 2019 from Crawford United Healthcare
On August 16, 2019, defense expert Dr. Hammermill, M.D. performed a records review in this case and reached the conclusion that "within a reasonable degree of medical probability… at the most, two physician visits, and two weeks of physical therapy or chiropractic treatment reflect treatment that was reasonable, medically necessary, and causally related to the injury of September 23, 2018." See Exhibit 1. Dr. Hammermill based his opinions solely upon the medical records in this case.
Dr. Hammermill was deposed on September 5, 2018. During his deposition, it was clear that Dr. Hammermill lacked a sufficient factual basis for his opinions due to him using an unreliable methodology because of a bias toward Crawford United Healthcare. As a result, and for the reasons set forth more fully below, Dr. Hammermill's opinions must be excluded in this case pursuant to Maryland Rule 5-702 and Frye-Reed.Maryland Rule 5-702 and the Frye-Reed Standard
Maryland Rule 5-702 conditions the admissibility of a qualified expert's relevant testimony on a trial judge finding that "a sufficient factual basis exists to support the expert testimony." Md. Rule 5-702(3). This "is a determination that must be made by the trial court." Food Lion v. McNeill, 393 Md. 715, 735-36, 904 A.2d 464 (2006). Maryland Courts, thus, consider it "well settled that the trial judge-not the expert witness-determines where there exists an adequate factual basis for the opinion at issue." Wood v. Toyota Motor Corp., 134 Md. App. 512, 523, 760 A.2d 315 (2000).
The sufficient-factual-basis "factor includes two sub-issues: factual basis and methodology." Exxon Mobil Corp. v. Ford, 433 Md. 426, 478, 71 A.3d 105 as supplemented on denial of reconsideration, 433 Md. 493, 71 A.3d 144 (2013). The Court of Appeals holds that "sufficient facts must underlie the expert's opinions that indicate the use of 'reliable principles and methodology in support of the expert's conclusions' so that the opinion constitutes more than mere speculation or conjecture." Id. at 481. (quoting Giant Food, Inc. v. Booker, 152 Md. App. 166, 182-83, 831 A.2d 481 (2003)). "To constitute reliable methodology, 'an expert opinion must provide a sound reasoning process for inducing its conclusion from the factual data' and must have 'an adequate theory or rational explanation of how the factual data led to the expert's conclusion.'" Id. (quoting CSX Transp., Inc. v. Miller, 159 Md. App. 123, 202-03, 858 A.2d 1025 (2004). "The explanation must not be conclusory, or constitute a 'because I say so' approach." Id. (quoting Wood v. Toyota Motor Corp., 134 Md. App. 512, 525, 760 A.2d 315 (2000)).
Applying Rule 5-702(3), the Court of Appeals requires that a "[g]enerally accepted methodology… must be coupled with generally accepted analysis in order to avoid the pitfalls of an "'analytical gap.'" Blackwell v. Wyeth, 408 Md. 575, 608, 971 A.2d 235 (2009). In Blackwell, the Court approved the "analytical gap" language used by the United States Supreme Court in General Electric Co. v. Joiner, 522 U.S. 136, 146, 118 S. Ct. 512, 139, L.Ed.2d 508 (1997). "Now, under Frye-Reed, the admissibility issue is whether "the expert[s] bridged the 'analytical gap' between accepted science and [their] ultimate conclusions in [this] particular case." Burks v. Allen, 238 Md. App. 418, 453-54, 192 A.3d 847, 868 (2018) quoting Savage v. State, 455 Md. 138, 160, 166 A.3d 183 (2017).Argument
i. Dr. Hammermill's opinions are based upon insufficient facts and data and employ an unreliable methodology under Maryland Rule 5-702 and Frye-Reed
In this case, Dr. Hammermill is an orthopedic surgeon who reviewed the Plaintiff's medical records. Based upon his review of the medical records, he concluded that "Ms. Wilbur sustained a self-limited soft tissue injury of the lumbar spine on September 23, 2018." See Exhibit 1. Dr. Hammermill further concluded only two doctor's visits and two weeks of physical therapy are related to the collision on September 23, 2018. The problem is that Dr. Hammermill's opinions are based upon insufficient facts and data-one urgent care visit right after the collision-because of the methodology employed by Dr. Hammermill in evaluating the evidence.
At his deposition, Dr. Hammermill testified that he refuses to rely upon any of the physical examinations or medical records from Crawford United Healthcare, regardless of the patient involved. In fact, because of his long-held bias towards Crawford United Healthcare he doesn't even consider any of the information contained in Dr. Evans medical chart as facts in this case:
8 You indicated that you did not rely on
9 the physical examinations which were conducted by
10 the Crawford United doctors. Do you remember
11 saying that?
12 A I do.
13 Q And why do you not rely on the Crawford United doctors' physical examinations and
16 A Well, I'm going to try to say this
17 somewhat diplomatically. The doctors in that
18 practice basically for the most part see people
19 who were referred there by their lawyers and
20 their game plan, shall we say, is to generate
21 notes and make diagnoses that are supportive of a
1 case. And I've been reviewing records and seeing
2 patients for evaluations and so forth.
3 So that's the reason that I don't
4 necessarily rely on the information, the
5 conclusions of their doctors.
See Hammermill Dep. P. 100 Lines 8-21, and P. 101, Lines 1-5 attached as Exhibit 2.
Dr. Hammermill then goes on to say that his opinions regarding Crawford United are part of a long-held bias regarding that practice group that is irrespective of the Plaintiff's medical condition in this case. In fact, Dr. Hammermill admits he doesn't even know what the Plaintiff's medical condition was at the time she was evaluated by Crawford United Healthcare.
2 Q Well, Doctor, what do you mean when you
3 say they write reports and render diagnosis to
4 help the patient's civil litigation? What do you
5 mean? I need you to explain that in great detail
6 for me.
7 A Okay. I'm not talking about this case,
8 I'm talking about their general practice.
9 Q Oh, no, Doctor, we're only here about
10 this case, not about other cases.
11 A So when I was asked by Mr. Robinson why
12 I did not rely upon the physical examination of
13 those physicians, I answered that question based
14 on my experience with that practice.
15 I was not commenting upon the specific
16 examinations of Ms. Wilbur because I wasn't there
17 and I cannot discuss the specific examination of
18 Ms. Wilbur.
19 There have been other cases where I've
20 been able to examine the person or compare notes
21 of other doctors who saw the person at the same
1 time as they were also being seen at Crawford United
2 and that has led me to that
4 I didn't have the opportunity to examine
5 Ms. Wilbur in 2018 so I cannot tell you
6 specifically what she was like in 2018.
See Hammermill Dep. P. 106, Lines 2-21, P. 107, Lines 1-6 attached as Exhibit 2.
Looking at this statement a little more closely, Dr. Hammermill is actually saying that he is discarding the Plaintiff's medical treatment at Crawford United because of a long-held bias that Crawford United physicians are exaggerating medical treatment to help Plaintiff's attorneys build a case. His opinions are not based upon the Plaintiff's actual medical condition in 2018. He admits that he doesn't know what the Plaintiff's medical condition was in 2018 because he never saw her in 2018 and refused to consider the Crawford United records. He alludes to other cases where he was able to compare the examination of other doctors who saw the patient contemporaneously with United Crawford physicians. However, in this case, that situation doesn't exist. The only physicians who saw her during that time were from United Crawford. She sees some different healthcare providers later in her treatment, but those physicians were referrals from United Crawford and also exceed the two-week time frame that Dr. Hammermill considers causally related to the collision.
So this begs a fundamental question: what factual basis does Dr. Hammermill actually have for concluding that the Plaintiff's medical condition only warranted two doctors' visits and two weeks of physical therapy? If he never saw the patient, doesn't know her medical condition in 2018, and is not relying upon any of the healthcare notes from that period of time, what is he relying upon? The simple answer is nothing-except his bias toward United Crawford.
To illustrate this point more succinctly, one need only look at Dr. Hammermill's response to questions regarding that two-week period that he believes is causally related. As you can see from the exchange below, Dr. Hammermill's opinions are entirely focused on Crawford United Healthcare and are completely divorced from any facts specific to the Plaintiff in this case.
8 Q So is it true? Have you done your
9 evaluation that the first two weeks were
10 completely appropriate?
11 A What I said is that the two weeks were
12 appropriate. I didn't say that whatever
13 statement I made about Crawford United Health
14 Care didn't apply to those first two weeks.
15 Q Okay. So does your statement about
16 Crawford United apply to the first two weeks of 17 care or not?
18 A Yes.
19 Q Okay. So the first two weeks of care in
20 this case the doctors at Crawford United were
21 writing reports and rendering diagnosis as part
1 of their game plan to support the plaintiff's
2 civil litigation lawsuit?
3 A Was there a question there?
4 Q Yeah, is that true?
5 A Let me make it clear, the doctors at
6 Crawford United Health Care are, and I think I've
7 said it before, but they're seeing people
8 referred by lawyers, and part of their game plan
9 or program is to prepare reports which will be
10 helpful in the litigation. That's the way it 11 goes.
See Hammermill Dep. P 104, Lines 8-21, P. 105, Lines 1-11 attached as Exhibit 2.
Dr. Hammermill's does not have any factual support for his opinions regarding Crawford United Healthcare. As is illustrated by the deposition testimony below, Dr. Hammermill does not have any facts that Crawford United provided incorrect, inaccurate, unnecessary, exaggerated, or unreasonable healthcare to the Plaintiff in this case, or to any other patient for that matter.
16 Q Well, your testimony was that their game
17 plan was to render diagnosis and write reports to
18 advance the civil litigation -- civil litigation,
20 A I'd say that was my testimony.
21 Q Okay. And how did they do this, Doctor?
1 Tell me how they've done this, in your opinion,
2 in the past?
3 A I can't answer that question. I think
4 you'd have to ask them or you'd have to look at
5 their reports.
6 Q Well, it's the conclusions that you've
7 made, Doctor, and I want to know the basis for
8 your conclusions.
9 A Mr. Robinson asked me why I don't rely
10 on their physical examination findings and I
11 answered him with that response. Because of that
12 understanding of their motivation, I do not rely
13 upon their physical examination findings, or
14 diagnoses, or conclusions. That's all I said.
2 Q Have you ever reported and let the Board
3 of Quality Physicians aware of the opinions that
4 you have of these doctors at United Crawford?
5 A No, sir.
17 Q Well, Doctor, can you point to one
18 specific patient and describe to me in detail the
19 factual basis for your opinions that Drs. Evans,
20 Henderson and Wexler, that their game plan was to
21 render diagnosis and write reports to advance the
1 patient's civil litigation case?
2 A Unable to do that, sir.
3 Q Okay. And do you have any factual basis
4 to believe that that happened in this case?
5 A I have no factual basis to believe that
6 happened in this case because I wasn't there at
7 the time.
Hammermill Dep. P. 112, Lines 16-21, P. 113, Lines 1-14, P. 115, Lines 2-21, P. 116, Lines 1-7 attached as Exhibit 2.
The Court might be wondering: why can't Dr. Hammermill just pick and choose what evidence he finds reliable? And the Court would be correct. Experts in personal injury cases can pick and choose the evidence they find reliable. However, this does not obviate the requirement to have a reliable methodology and sufficient factual basis for their opinions to satisfy Frye-Reed and Maryland Rule 5-702. In this case, Dr. Hammermill cannot meet that burden. By completely discarding the patient's treatment at Crawford United Heathcare altogether because of bias, he has in effect eliminated any factual basis he could have for his opinions.
Consider the following example to illustrate this point. Imagine being in the market to purchase a new pickup truck. You are willing to consider any brand and model of pickup truck except a Toyota Tundra, because you have heard a lot of bad things about the Toyota Tundra from your friends. Even though you have heard bad things, you don't have any real data that there is anything wrong with a Toyota Tundra. You have never seen the actual vehicle before and you have never read any literature on its safety history or performance. You only know it by reputation. Because of this, you hold the opinion that a Toyota Tundra is a poor vehicle. Your opinion wouldn't hold up in a Maryland court because it is based upon insufficient facts and the product of an unreliable methodology.
The same can be said about Dr. Hammermill's opinions in this case. His hollow opinions are resting on a shaky platform of bias. He has: 1) never met or examined the Plaintiff; 2) doesn't know what her actual medical condition was like in 2018; and 3) reviewed her medical records but discarded as unreliable all of the medical treatment, history, complaints, tests, and referrals from Crawford United from 9/27/16 until 4/21/17. Discarding this treatment because of bias is the equivalent of denying its factual existence altogether. Without these facts, Dr. Hammermill has the Righttime Medical Urgent Care visit the day after the collision to rely upon and a visit with orthopedist Ira Gelb, M.D. on 5/31/17. The visit with Dr. Gelb could also be discounted because as Dr. Hammermill repeatedly said at his deposition, he is not considering any medical treatment after two-weeks medically necessary.
This begs another question: do board certified orthopedic surgeons offer opinions at trial in the state of Maryland about the nature and extent of a patient's medical condition without examining the patient, not know their actual medical condition during the relevant period of time, and after only reading one note from an urgent care visit the day after a collision. The simply answer to that question is "no."
In this case, Dr. Hammermill should be precluded from testifying at trial because he has an inadequate supply of facts for his opinions and an unreliable methodology clouded by bias and a hatred towards Crawford United Healthcare. Make no mistake about it, Dr. Hammermill is not saying I read the Crawford United records and I disagree with some of their findings. Rather, he is saying I have such a bias and prejudice towards Crawford United as a medical group that I am not considering any of their medical records as facts in this case, regardless of the Plaintiff's actual medical condition. Simply put, such an opinion has no place in a Maryland courtroom. It runs afoul of Maryland Rule 5-702 and Frye-Reed.
For all of these reasons, Dr. Hammermill should be precluded from offering opinions regarding the Plaintiff's medical condition and should be stricken as an expert in this case.
ii. Dr. Hammermill should also be precluded from testifying at trial and stricken as expert because he refuses to produce his financial documents pursuant to Falik v. Hornage, 413 Md. 163 (2010).
In what is perhaps a stroke of irony considering Dr. Hammermill's accusations regarding Crawford United, Dr. Hammermill also happens to be a forensic expert in this case, one who is frequently used by insurance companies to support their position.
Plaintiff incorporates by reference the substance of the Plaintiff's Opposition to Defendant's Motion to Quash Subpoena filed on November 21, 2018. See Exhibit 3. In that Opposition, Plaintiff argued that Defense expert Dr. Hammermill was subpoenaed to produce certain forensic financial documents and failed to produce them despite Plaintiff's counsel offering the necessary confidentiality required under Falik v. Hornage, 413 Md. 163 (2010).
Just to reiterate, in Falik the trial court ordered the forensic, non-treating doctor to "provide Plaintiff's counsel all of his income tax records from the last three (3) years to include all 1099 forms and W-2 forms that are related to medical employment, and any other attachments." Id. at 170. The Court of Appeals affirmed that decision, and found that disclosure and production of this evidence was proper so long as appropriate safeguards were taken to respect the confidentiality of such financial information. Id. at 186-190.
In Falik, the Court of Appeals rejected explicitly the appellant, Dr. Falik's argument that Maryland law "authorizes only verbal inquiries and does not contemplate the compellable production of documents that support the verbal answers to the permitted verbal inquiries" regarding financial income from forensic work. Id. at 187-88. The Court answered Dr. Falik's complaints on this point in three simple words: "[h]e is wrong." Id. at 188. It went on to explain that "if the inquiring party does not have access to such records, yet is permitted to inquire orally into the witness's income stream, the inquiring party will not be able to cross-examine effectively the expert witness." Id.
The Plaintiff is prejudiced in this case by Dr. Hammermill's refusal to produce this forensic financial documentation. Plaintiff will not be able to adequately cross-examine him without this information, especially given his feelings and comments towards Crawford United. Given this refusal, he should be precluded from testifying and stricken as an expert at trial.
MILLER & ZOIS, LLC
Having considered Plaintiff's Motion in Limine to Exclude Defense Expert Robert Hammermill, M.D. from Testifying at Trial Pursuant to Maryland Rule 5-702, Frye-Reed, and Falik v. Hornage, Defendant's Response, if any, and any oral arguments having been heard, it is this___ day of _____________, 2019, ORDERED by the Circuit Court of Maryland for Baltimore City, that:
- Plaintiff's Motion is hereby GRANTED; and,
- Defense Expert Robert Hammermill, M.D. will be precluded from offering expert opinions at the trial of this matter and will be stricken as an expert in this case.
Frye is a 1923 federal case that set out the stand for experts to testify. Reed is a 1978 Maryland Court of Appeals opinion that adds some additional flavor to Frye. Thus, the test is called Frye-Reed.
In 1975, Congress first enacted the Federal Rules of Evidence in 1975. There is no reference in the rule to the Frye standards "general acceptance" standard. The Supreme Court flushed out the nuances of this rule in Daubert v. Merrell Dow Pharmaceuticals. Daubert is the rule now followed for expert admissibility in federal courts and most states around the country. Maryland is certainly moving toward Daubert but has specifically not adopted the Daubert standard.More Thoughts on Frye-Reed
Under Frye-Reed, the party offer the expert witness has the burden of proving the basis of the expert's opinions are "generally accepted as reliable within the relevant scientific field."' While Frye-Reed does not require unanimity, it bars an expert opinion if a "genuine controversy exists within the relevant scientific community. If it is "unclear" whether a methodology has been generally accepted in the relevant scientific community, a Frye-Reed hearing is necessary.
Expert testimony should not be admitted unless it satisfies the following three factors: "(1) the witness qualifies as an expert on the topic about which he or she intends to testify; (2) the subject is appropriate for expert testimony; and (3) there is an adequate factual basis supporting the testimony." The third of these factors has two sub-factors: (1) The expert must have available an adequate supply of supporting data, and (2) the expert must employ a reliable methodology in analyzing that data.
Defense lawyers have been beating us over the head with Daubert. We need to take the fight to them on their expert qualifications. This sample motion above ultimately failed but we need to keep the pressure on defendants to put up experts that have actual foundations for their opinions.
 Plaintiff is aware that according to the Court's Scheduling Order Frye-Reed Motions and Motions to Exclude Expert Testimony were due on 10/12/18. However, the Plaintiff in this case did not have an opportunity to depose Dr. Hammermill until 12/03/18, and did not know the full extent of his opinions and bias until that time. For that reason, the Plaintiff requests that the Court still consider its motion. The Plaintiff will be prejudiced if it is not allowed to file this motion.