Khia Hollyer v. Trustees of Dartmouth College

2022 DNH 096

• Court: District Court, D. New Hampshire
• Decided: August 10, 2022
• Docket: 20-cv-954-SE
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Khia Hollyer

v. Civil No. 20-cv-954-SE Opinion No. 2022 DNH 096 Trustees of Dartmouth College

O R D E R

Khia Hollyer brings suit against the Trustees of Dartmouth

College (“Dartmouth”), asserting negligence claims arising out

of injuries she allegedly suffered while weight training in

Dartmouth’s facilities and under the supervision of Dartmouth

employees. Dartmouth filed two motions in limine seeking to

preclude some or all of the testimony of Hollyer’s experts. The

first seeks to limit the testimony of Dr. Douglas Goumas. Doc.

no. 17. The second seeks to preclude the testimony of Thomas

LeBrun in its entirety. Doc. no. 18. Hollyer objects to both

motions.

Background

Hollyer was in a car accident in December 2016, after which

she suffered shoulder, neck, and back pain. She received

treatment for her injuries from her physiotherapist, Nico Berg,

and by June 2017 she was physically cleared to participate in

Dartmouth’s Field Hockey Program (“Program”) that summer. Berg wrote a letter stating that Hollyer could participate in the

Program but suggested “limiting any heavy or overhead strength

and conditioning for the next 4 months.” Doc. no. 1, ¶ 8.

Hollyer arrived on Dartmouth’s campus for the Program on

August 16, 2017. A few days later, Hollyer, her mother, or both

gave a copy of Berg’s letter to Meredith Cockerelle, Dartmouth’s

Athletic Trainer, and relayed the contents of the letter to Mark

Kulbis, Dartmouth’s Strength and Conditioning Coach for Field

Hockey and Football.

In September 2017, Kulbis directed Hollyer to perform a

“trap bar deadlift exercise” during a Program workout.1 Hollyer

alleges that Kulbis provided her with minimal instruction and

told her to lift an excessive amount of weight (84% of her

bodyweight), despite Berg’s letter and her limited weight-

lifting experience.

Hollyer injured her back during the exercise. Over the

following days, Cockerelle led Hollyer in other exercises and

practices despite Hollyer’s complaints of pain.

Hollyer sought medical treatment and was diagnosed with an

L5-S1 disc herniation. She alleges that she has suffered and

continues to suffer from various symptoms because of her injury,

1 The parties also refer to this exercise as a “hex bar deadlift.”

2 including right leg weakness, diminished reflexes, and urinary

incontinence. She brings this action alleging several negligence

claims against Dartmouth and seeking to recover damages for her

injuries.

Discussion

Hollyer designated two expert witnesses—Dr. Goumas and

LeBrun—both of whom authored expert reports. In her expert

disclosure, Hollyer stated that Dr. Goumas “will testify

regarding the treatment provided to Ms. Hollyer, along with the

cost of such care, future medical treatment, and any long-term

pain or discomfort the Plaintiff may have as a result of this

accident.” Doc. no. 17-1 at 1. With regard to LeBrun, Hollyer

stated that he “will testify regarding his expert knowledge of

weightlift training and the mechanics of the strengthening

exercise that caused the injury to Ms. Hollyer and how it

relates to the same.” Id. at 2. Dartmouth challenges the

admissibility of some or all of Dr. Goumas’s and LeBrun’s

opinions on the grounds that they are irrelevant, unreliable, or

not helpful to the jury.

“The touchstone for the admission of expert testimony in

federal court litigation is Federal Rule of Evidence 702.” Crowe

v. Marchand, 506 F.3d 13, 17 (1st Cir. 2007). “As the Supreme

3 Court of the United States explained in Daubert v. Merrell Dow

Pharmaceuticals, Inc., Federal Rule of Evidence 702 assigns a

‘gatekeeping role for the judge’ to ‘ensur[e] that an expert’s

testimony both rests on a reliable foundation and is relevant to

the task at hand.’” Lopez-Ramirez v. Toledo-Gonzalez, 32 F.4th

87, 94 (1st Cir. 2022) (quoting Daubert, 509 U.S. 579, 597

(1993)).

The party seeking to introduce expert testimony bears the

burden of proving its admissibility. Daubert, 509 U.S. at 592.

The burden is not especially onerous, however, because “Rule 702

has been interpreted liberally in favor of the admission of

expert testimony.” Levin v. Dalva Bros., Inc., 459 F.3d 68, 78

(1st Cir. 2006). Thus, when determining whether expert testimony

satisfies the relevant foundational requirements, a court must

be mindful of the “important difference . . . between what is

unreliable support and what a trier of fact may conclude is

insufficient support for an expert’s conclusion.” Martinez v.

United States, 33 F.4th 20, 24 (1st Cir. 2022) (quotation

omitted). “That the factual underpinning of an expert’s opinion

is weak is a matter affecting the weight and credibility of the

testimony — a question to be resolved by the jury.” Id.

(quotation omitted).

4 I. Motion to Preclude Dr. Goumas’s Testimony

Dr. Goumas is an orthopedic surgeon who specializes in

sports medicine. As mentioned above, he authored an expert

report in which he offers opinions regarding the cause and

extent of Hollyer’s injuries, and the reasonableness of the

treatment that she has received and that she may require in the

future. Doc. no. 17-1.

Dartmouth challenges four parts of Dr. Goumas’s opinion and

argues that he should be precluded from offering them at trial.

The challenged portions of the opinion are:

1. All of the treatment Hollyer has received has been

reasonable, necessary, and causally related to the injury

she allegedly suffered when performing a hex bar deadlift.

2. Hollyer’s urinary incontinence was caused by the injury she

allegedly suffered when performing the hex bar deadlift.

3. Hollyer has a 17% whole person impairment according to the

A.M.A. Guides to the Evaluation of Permanent Impairment,

Fifth Edition.

4. There is a “possibility” that Hollyer will require future

fusion surgery if conservative treatment options fail.

Id. at 11-13.

5 A. Treatment Related to Deadlift

Dr. Goumas’s report is dated June 1, 2020 and is based on

Hollyer’s treatment records up to April 4, 2019. Dartmouth moves

to preclude Dr. Goumas from testifying about any treatment

Hollyer received after April 4, 2019. Hollyer responds that she

provided Dr. Goumas with subsequent medical records and that he

should be allowed to offer his opinion about the reasonableness

of that treatment as well.

A party is limited to expert opinions that have been

disclosed to the opposing party in a written report. Fed. R.

Civ. P. 26(a)(2)(B)(i). Hollyer and Dartmouth did not stipulate

to a different form of expert report than that specified in

Federal Rule of Civil Procedure 26(a)(2). Doc. no. 11. Unless

the parties stipulate to a different form of expert report, that

report must include “the facts or data considered by the witness

in forming” his or her opinion. Fed. R. Civ. P. 26(a)(2)(B)(ii).

If there is a material change or addition to the information

included in the expert’s opinion, a party must supplement the

report with that information. Id. (e)(2).

Dr. Goumas’s report is based on Hollyer’s medical records

up to April 4, 2019. To date, Hollyer has not produced a

supplemental report to add Dr. Goumas’s opinion based on medical

records after that date. In the absence of such a report, Dr.

6 Goumas’s opinion is limited to the timeframe of the records

reviewed, which is up to April 4, 2019. For that reason,

Dartmouth’s motion to preclude Dr. Goumas from testifying about

the reasonableness and necessity of treatment Hollyer received

after April 4, 2019, is granted. Should Hollyer supplement Dr.

Goumas’s report pursuant to Rule 26(e) prior to the deadline,

testimony regarding treatment included in the supplemental

report will be allowed.

B. Cause of Urinary Incontinence

In his expert report, Dr. Goumas states: “The consensus

opinion from [Hollyer’s] specialists is that . . . Hollyer’s

ongoing urinary incontinence is as a result of the S1-S2 nerve

root injury/impingement that occurred from the herniated disc on

9/9/17.” Doc. no. 17-1 at 12. The report later states, “Ms.

Hollyer continues to have urinary incontinence as a result of

the disc herniation that occurred on 09/19/17.” Id.

Dartmouth argues that the court must preclude Dr. Goumas’s

testimony on the cause of Hollyer’s urinary incontinence because

his opinion is merely the “regurgitation of purported opinions

from other providers . . . .” Doc. no. 17 at 5. Dartmouth

contends that Dr. Goumas does not offer any independent basis

for his opinion or explain why he believes the providers’

7 opinion is correct and that, therefore, his opinion is

inadmissible.

It is true that “nothing in either Daubert or the Federal

Rules of Evidence requires a district court to admit opinion

evidence that is connected to existing data only by the ipse

dixit of the expert.” Gen. Elec. Co. v. Joiner, 522 U.S. 136,

146 (1997). However, the court cannot conclude at this stage

that Dr. Goumas’s opinion as to the cause of Hollyer’s urinary

incontinence is as bereft of foundational support as Dartmouth

suggests. Although the report does not specifically provide the

basis for Dr. Goumas’s opinion about the cause of Hollyer’s

urinary incontinence, Dr. Goumas states in his report that his

opinions are based on his review of Hollyer’s medical records.

Doc. no. 17-1 at 3. Dartmouth could have deposed Dr. Goumas to

explore the basis of his opinions, including his opinion as to

the cause of Hollyer’s urinary incontinence. It chose not to do

so.

At this stage, in light of the liberal interpretation

courts have given to Rule 702, the court declines to preclude

Dr. Goumas’s opinion testimony as to the cause of Hollyer’s

urinary incontinence. To the extent that Dartmouth seeks to

attack the basis for that opinion, it may do so during trial.

See Daubert, 509 U.S. at 596 (“Vigorous cross-examination,

8 presentation of contrary evidence, and careful instruction on

the burden of proof” are the “appropriate means of attacking

shaky but admissible” expert testimony.); Martinez, 33 F.4th at

24.

C. Whole Person Impairment

In his expert report, Dr. Goumas opines that Hollyer has a

permanent impairment as a result of her injury. He bases his

opinion on the AMA Guides to the Evaluation of Permanent

Impairment, Fifth Edition (“AMA Guidelines”). Using the AMA

Guidelines to evaluate Hollyer’s injury and symptoms, Dr. Goumas

opines that Hollyer has a “17% whole person impairment.” Doc.

no. 17-1 at 12.

Dartmouth argues that this portion of Dr. Goumas’s opinion

should be precluded because New Hampshire law does not permit a

jury to assess a specific percentage of permanent impairment in

a personal injury action. Dartmouth contends that, therefore,

Dr. Goumas’s testimony concerning permanent impairment and any

reference to the AMA Guidelines would likely confuse the jury

and is not permitted under New Hampshire law.

Contrary to Dartmouth’s argument, New Hampshire courts have

approved of opinion evidence regarding a percentage of permanent

impairment in negligence cases. See, e.g., Bennett v. Lembo, 145

9 N.H. 276, 278 (2000) (discussing the plaintiff’s permanent

impairment in negligence case and noting that the plaintiff’s

physician testified as to a 12% permanent impairment while the

defendant’s expert testified as to a 9% permanent impairment).

In addition, New Hampshire courts have allowed experts to use

the AMA Guidelines in reaching their opinions regarding

permanent impairment, so long as the expert is qualified to

testify about them and applied them appropriately. See Grenier

v. Enterprise Rent-A-Car of Boston, Inc., No. 03-C-0382, 2006 WL

4469483 (N.H. Super. May 19, 2006) (allowing expert to testify

in negligence action as to the permanency of the plaintiff’s

impairment using the AMA Guidelines in light of his

qualifications and familiarity with the Guidelines); cf.

Figlioli v. R.J. Moreau Companies, Inc., 151 N.H. 618, 624

(2005) (remanding personal injury case for a new trial on

damages, in part, because the plaintiff’s expert was not

qualified to use the AMA Guidelines to determine the plaintiff’s

whole person impairment when the expert stated that he had never

used the AMA Guidelines before the case, that he was “unfamiliar

with terms in the AMA Guidelines, and that he was unfamiliar

with the standards and criteria employed under the AMA

Guidelines to make impairment determinations”).

10 For these reasons, Dartmouth’s argument to preclude Dr.

Goumas’s testimony on Hollyer’s whole person impairment is

without merit. Therefore, the motion as to that portion of Dr.

Goumas’s opinion is denied without prejudice. To the extent that

Dartmouth intends to challenge Dr. Goumas’s familiarity with the

AMA Guidelines or his ability to explain adequately the concept

of whole person impairment to the jury, those arguments may be

raised at trial.

D. Possibility of Future Surgery

In his expert report, Dr. Goumas opined that it “is highly

likely that . . . Hollyer will require further treatment in the

future as a result of her L5-S1 herniated disc . . . . In

addition, there is also the possibility that she may require a

lumbar fusion in the future if conservative measures fail.”

Doc. no. 17-1 at 13. Dr. Goumas also opines on the cost of both

conservative treatment and lumbar fusion surgery. Id. Dartmouth

contends, in cursory fashion, that Dr. Goumas should be

precluded from testifying that there is a possibility that

Hollyer will need surgery in the future because that opinion is

not based on a reasonable degree of medical certainty.

Under New Hampshire law, “there can be no recovery for

future damages unless there is evidence from which it can be

found to be more probable than not that they will occur.”

11 Stachulski v. Apple New England, LLC, 171 N.H. 158, 168 (2018)

(quotation omitted). Therefore, Hollyer may only recover for the

cost of a lumbar fusion if she proves to the jury that it is

more probable than not that she will require that procedure in

the future.

Dr. Goumas’s opinion is relevant to Hollyer’s ability to

carry that burden of proof. Although the court agrees with

Dartmouth that Dr. Goumas’s opinion would not itself satisfy

Hollyer’s burden, that fact does not render the opinion

unreliable such that it must be excluded. Whether Dr. Goumas’s

testimony concerning the possibility and cost of a lumbar

procedure may be considered by the jury is a question to be

answered at trial. Therefore, Dartmouth’s motion is denied

without prejudice.

E. Summary

For these reasons, Dartmouth’s motion to preclude certain

portions of Dr. Goumas’s opinion is granted with respect to the

reasonableness and necessity of treatment Hollyer received after

April 4, 2019, provided that Hollyer does not supplement his

opinion in writing prior to the deadline to do so. The motion is

otherwise denied without prejudice to Dartmouth’s ability to

raise the arguments at trial.

12 II. Motion to Exclude LeBrun

Hollyer retained LeBrun as an expert in the field of

weightlift training. LeBrun authored an expert report that

contains his opinion “regarding his expert knowledge of

weightlifting training and the mechanics of the strengthening

relates to the same.” Doc. no. 18-1 at 2. LeBrun opines that

(1) Dartmouth should not have allowed Hollyer to perform the hex

bar deadlift in light of the restrictions in Berg’s letter, (2)

if Dartmouth did allow her to do the exercise, it should not

have let her do it with 84% of her body weight, and (3)

Dartmouth failed to provide proper instruction and training

during and after the alleged injury.

Dartmouth argues that LeBrun should be precluded from

testifying at trial because his opinions are either not

supported with reliable facts or data or are speculative and

therefore not helpful to the jury. For example, Dartmouth

contends that LeBrun does not explain the mechanics of a hex bar

deadlift or why it goes against the restriction in Berg’s letter

and that LeBrun fails to cite any guides or studies saying that

a hex bar deadlift using 84% of an individual’s bodyweight is

13 unsafe. None of Dartmouth’s objections warrants exclusion of

LeBrun’s opinion.

LeBrun’s report states that he is a Certified Personal

Trainer and MMA conditioning coach through the National Academy

of Sports Medicine, and a Certified Sports Injury Specialist

through the National Exercise & Sports Trainers Association. The

report also states that LeBrun has 50 years of experience in the

field of strength training. His opinion is based on his training

and experience, in light of his review of the relevant facts in

this case.

Dartmouth’s motion does not challenge LeBrun’s

qualifications. Dartmouth instead appears to argue that the fact

that LeBrun bases his expert opinion on his training and

experience rather than, for example, relying upon treatises or

studies, necessarily undermines the reliability of his opinion.

That argument fails. Indeed, personal knowledge and experience

are often the bases for reliable expert testimony. Kumho Tire

Co. v. Carmichael, 526 U.S. 137, 150 (1999); Warford v. Indus.

Power Sys., Inc., 553 F. Supp. 2d 28, 33 (D.N.H. 2008) (“In

certain fields, experience is the predominant, if not sole,

basis for a great deal of reliable expert testimony . . . .”

(quotation omitted)). Objections like Dartmouth’s, “which

question the factual underpinnings of an expert’s

14 investigation,” as the court finds they do here, “often go to

the weight of the proffered testimony, not to its

admissibility.” Crowe, 506 F.3d at 18.

For these reasons, Dartmouth’s motion to preclude LeBrun’s

testimony is denied.

Conclusion

For the foregoing reasons, Dartmouth’s motion to preclude

parts of Dr. Douglas Goumas’s testimony (doc. no. 17) is granted

in part and denied in part as provided in this order.

Dartmouth’s motion to preclude Thomas LeBrun’s testimony (doc.

no. 18) is denied.

SO ORDERED.

______________________________ Samantha D. Elliott United States District Judge

August 10, 2022

cc: Counsel of Record