Thomas v. Smith's Food & Drug Centers, Inc.

• Court: District Court, D. Nevada
• Decided: September 12, 2025
• Docket: 3:23-cv-00439
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 ELLEN THOMAS Case No. 3:23-cv-00439-ART-CSD Plaintiff, 4 v. ORDER

5 SMITH’S FOOD & DRUG CENTERS, INC. 6 Defendant. 7 8 Plaintiff Ellen Thomas brings this action against Defendant Smith’s Food 9 & Drug Centers alleging negligence relating to a slip and fall in December 2020. 10 (ECF No. 1-1.) Defendant moved to strike evidence, testimony, and opinions of 11 Plaintiff’s expert, Dr. James Lynch, regarding future possible medical treatment 12 and the cause thereof. (ECF No. 25.) Because Plaintiff has shown by a 13 preponderance of the evidence that Dr. Lynch meets the requirements of Fed. R. 14 Evid. 702, the Court denies Defendant’s Motion to Strike Evidence, Testimony, 15 and Opinions of Dr. Lynch. 16 I. FACTUAL BACKGROUND 17 On December 27, 2020, Plaintiff and her husband were grocery shopping 18 at the Smith’s at 750 S. Meadows Parkway, in Reno, Nevada. (ECF Nos. 1-1 at 9.) 19 As Plaintiff was walking up to the cash register, at 12:16 p.m., she slipped and 20 fell on a liquid substance on the floor. (Id.) 21 Plaintiff saw Dr. Lynch, at Swift Institute, on March 8, 2023, for low back 22 pain, right lower extremity pain, and right knee pain. (ECF No. 25-7 at 295–97.) 23 Because Plaintiff had failed conservative treatment measures, Dr. Lynch 24 recommended a lumbar surgery to treat Plaintiff’s low back pain. (Id. at 297.) 25 Surgery was originally scheduled for April 27, 2023. (ECF No. 25-8 at 12.) 26 On October 5, 2023, the court entered a discovery plan and scheduling 27 order which set the expert disclosure deadline for January 4, 2024, the rebuttal 28 expert disclosure deadline for February 5, 2024, and the discovery cutoff for 1 March 4, 2024. (ECF No. 10). On January 5, 2024, Plaintiff served her non- 2 retained expert witness disclosure that included Dr. Lynch. (ECF No. 25-6 at 3.) 3 After the close of discovery, Defendant moved to exclude any evidence of 4 future damages. (ECF No. 13.) Magistrate Judge Denney specifically denied 5 Defendant’s motion to exclude future back surgery, finding Plaintiff’s failure to 6 formally disclose Dr. Lynch as a witness harmless under the circumstances. (ECF 7 No. 21 at 11.) Pursuant to that holding, Judge Denney allowed a limited re- 8 opening of discovery so that Defendant could depose and review the records and 9 testimony of Dr. Lynch. (Id. at 15.) 10 During his deposition, Dr. Lynch testified that Plaintiff’s low back pain was 11 caused by the December 2020 slip and fall, which necessitated surgery. (ECF No. 12 28-1 at 56–7.) Defendant subsequently moved to strike evidence, testimony, and 13 opinions of Dr. Lynch. (ECF No. 25.) After Defendant filed the motion to strike, 14 Judge Denney ruled that because Dr. Lynch is a treating doctor who was 15 disclosed as a non-retained expert, he did not need to be disclosed as a retained 16 expert. (ECF No. 39 at 31.) 17 II. MOTION TO STRIKE EVIDENCE, TESTIMONY, AND OPINIONS OF 18 PLAINTIFF’S EXPERT JAMES LYNCH, M.D. 19 While Defendant does not challenge Dr. Lynch’s qualifications as a medical 20 expert, it moves to strike his testimony on the grounds that it: (1) lacks a 21 sufficient basis in facts and data, (2) is not the product of reliable principles and 22 methods; and (3) is internally inconsistent and contradicts both Plaintiff’s 23 testimony and her medical records. (ECF No. 25.) The Court addresses each issue 24 in turn. 25 A. Legal Standard 26 The party seeking to admit an expert witness must show by a 27 preponderance that (1) the proposed expert is qualified “by knowledge, skill, 28 experience, training, or education;” (2) the expert's scientific, technical, or other 1 specialized knowledge will help the trier of fact understand the evidence or to 2 determine a fact in issue; (3) the testimony is based on sufficient facts or data; 3 (4) the testimony is the product of reliable principles and methods; and (5) the 4 expert’s opinion reflects a reliable application of the principles and methods to 5 the facts of the case. FED. R. EVID. 702; see id., advisory committee’s note to 2023 6 amendment. Rule 702 assigns to the Court “the task of ensuring that an expert’s 7 testimony both rests on a reliable foundation and is relevant to the task at hand.” 8 Daubert v. Merrell Dow Pharms., 509 U.S. 579, 597 (1993). This “basic 9 gatekeeping obligation” applies to any type of expert testimony. Kumho Tire Co., 10 Ltd. v. Carmichael, 526 U.S. 137, 147 (1999). “The Ninth Circuit has placed great 11 emphasis on Daubert’s admonition that a district court should conduct this 12 analysis ‘with a liberal thrust favoring admission.’” In re Roundup Prods. Liab. 13 Litig., 390 F. Supp. 3d 1102, 1112 (N.D. Cal. 2018) (quoting Messick v. Novartis 14 Pharms. Corp., 747 F.3d 1193, 1196 (9th Cir. 2014)). “Vigorous cross- 15 examination, presentation of contrary evidence, and careful instruction on the 16 burden of proof are the traditional and appropriate means of attacking shaky but 17 admissible evidence.” Daubert, 509 U.S. at 596. 18 B. Analysis 19 1. Dr. Lynch Satisfies the Rule 702 Factors

20 a. Qualified by Knowledge, Skill, Experience, or 21 Training The Court must consider whether Dr. Lynch is qualified by knowledge, 22 23 skill, experience, and training to opine on this case. FED. R. EVID. 702. Defendant does not contest that Dr. Lynch is qualified to render opinions “regarding the 24 human body” as a result of his education and training. (ECF No. 25 at 14.) 25 Accordingly, the Court finds that Dr. Lynch is sufficiently qualified to render 26 opinions in this case. 27

28 1 b. Helpfulness to the Jury 2 The Court must consider whether Plaintiff has shown that Dr. Lynch’s 3 medical expertise regarding low back pain and analysis of Plaintiff’s lumbar 4 pathology will help the jury understand the evidence. FED. R. EVID. 702(a). Rule 5 702 requires that the evidence or testimony “assist the trier of fact to understand 6 the evidence or to determine a fact in issue.” Daubert, 509 U.S. at 591. This factor 7 goes primarily to relevance or “fit.” Id. 8 Dr. Lynch knows clinical guidelines for treating low back pain; he 9 understands how to interpret medical records and imaging; and he personally 10 treated Plaintiff for her low back pain. (See ECF No. 28-1.) Assessing Plaintiff’s 11 damages in this negligence case will require the jury to assess which of Plaintiff’s 12 injuries were caused by the slip and fall. It will also require the jury to understand 13 what future medical treatment is needed. Dr. Lynch’s specialized knowledge will 14 be useful to the jury, and Plaintiff has met her burden to show as much. 15 c. Sufficient Facts or Data 16 The Court must consider whether Dr. Lynch based his testimony on 17 sufficient facts or data. FED. R. EVID. 702(b). Defendant argues that Dr. Lynch 18 “based his opinions on the recommended surgery on Plaintiff’s statement that 19 ‘she relates that her back pain and leg pain and knee pain began after the fall in 20 December 2020.’” (ECF No. 25 at 15) (citation omitted). 21 Dr. Lynch has used sufficient facts and data to reach his conclusions 22 regarding Plaintiff’s need for surgery and the cause of her low back pain. (ECF 23 No. 28-1 at 14–18.) He used Plaintiff’s relevant medical records, which showed 24 that Plaintiff had failed conservative treatment methods, as well as medical 25 imaging, to reach his conclusions. (Id.) Dr. Lynch also relied on his medical 26 knowledge and experience. See Primiano v. Cook, 598 F.3d 558, 567 (9th Cir. 27 2010) (admitting expert physician’s testimony with “sufficient basis in education 28 and experience”); Engilis v. Monsanto Co., No. 23-4201, 2025 WL 2315898, at *9 1 (9th Cir. Aug. 12, 2025) (“[K]knowledge and experience can. . . serve as the 2 requisite facts or data on which [experts] render an opinion.” (quotation marks 3 omitted)). These sources together form an appropriate basis for Dr. Lynch’s 4 opinions. The Court thus finds that Plaintiff has shown that Dr. Lynch has used 5 sufficient data and facts to survive a motion to strike evidence, opinions, and 6 testimony regarding future possible medical treatment and the cause thereof. 7 d. Reliable Principles and Methods 8 The Court must consider whether Plaintiff has shown that Dr. Lynch’s 9 testimony is the product of reliable principles and methods. FED. R. EVID. 702(c). 10 Defendant claims that the record is “lacking in testing to confirm [Dr. Lynch’s] 11 theories” such as neurological examinations or nerve studies to “determine the 12 source of radiculopathy that Plaintiff alleged was from back pain caused from the 13 incident;” or “review of prior medical records or films to determine when the 14 actual cyst appeared in Plaintiff’s lower back that is the origin of her pain 15 complaints.” (ECF No. 25 at 15.) Plaintiff argues that Dr. Lynch conducted a 16 differential diagnosis regarding causation of Plaintiff’s back injury after “taking 17 her medical history, physically examining her as her treating physician, and 18 reviewing her MRI and medical history.” (ECF No. 28 at 6.) 19 The Ninth Circuit has held that medical expert testimony should be 20 admitted “‘if physicians would accept it as useful and reliable,’ but it need not be 21 conclusive because ‘medical knowledge is often uncertain.’” Primiano, 598 F.3d 22 at 565 (quoting U.S. v. Sandoval-Mendoza, 472 F.3d 645, 655 (9th Cir. 2006)). 23 “The human body is complex” and “etiology is often uncertain,” but where the 24 foundation is sufficient, a litigant is “entitled to have the jury decide upon the 25 expert’s credibility, rather than the judge.” Id. at 565–66 (citation omitted). 26 Differential diagnosis is a “standard scientific technique of identifying the 27 cause of a medical problem” by eliminating likely causes until the most probable 28 one is isolated. Messick, 747 F.3d at 1197–98 (9th Cir. 2014) (quoting Hardyman 1 v. Norfolk & W. Ry. Co., 243 F.3d 255, 260 (6th Cir. 2001)). “A reliable differential 2 diagnosis typically, though not invariably, is performed after ‘physical 3 examinations, the taking of medical histories, and the review of clinical tests, 4 including laboratory tests,” and is generally recognized as admissible under 5 Daubert. Clausen v. M/V NEW CARISSA, 339 F.3d 1049, 1057 (9th Cir. 2003). A 6 court is “justified in excluding evidence if an expert ‘utterly fails. . . to offer an 7 explanation for why the proffered alternative cause’ was ruled out.” Id. at 1058 8 (quoting Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 202 (4th Cir. 2001)). 9 Here, Dr. Lynch testified that, based on Plaintiff’s Magnetic Resonance 10 Imaging (MRI) scan and X-rays, he recommended a particular lumbar surgery, 11 that a majority of physicians would recommend for similar pathology. (ECF No. 12 28-1 at 14.) Based on those imaging tests, his appointment with Plaintiff, and a 13 review of Plaintiff’s medical history, Dr. Lynch testified that he believed, to a 14 reasonable degree of medical probability, that Plaintiff’s low back pain was 15 caused by the December 2020 slip and fall. (Id. at 14–17.) 16 Dr. Lynch also considered whether the low back pain was caused by 17 something other than the slip and fall but found that even if Plaintiff had a 18 lumbar disc bulge or cyst prior to the fall, it became symptomatic only after the 19 fall. (Id.) To the extent that Dr. Lynch did not adequately rule out alternative 20 causes for Plaintiff’s injuries, this is a “credibility determination that goes to the 21 weight of his opinions, not their admissibility.” Rosales v. Rollag, No. CV-22- 22 01581-PHX-DJH, 2024 WL 4290758, at *5 (D. Ariz. Sept. 25, 2024). The Court 23 therefore finds that Dr. Lynch’s testimony used reliable methods and principles. 24 e. Reliable Methods Applied to Relevant Facts 25 The Court finds that Plaintiff has shown that Dr. Lynch’s opinion reflects 26 an application of reliable principles and methods to the facts of the case. FED. R. 27 EVID. 702(d). As discussed above, Dr. Lynch applied his extensive medical 28 knowledge and commonly accepted diagnostic methodology to his interactions 1 with Plaintiff, as well as to medical history and imaging relevant to the case. (See 2 ECF Nos. 28-1.) 3 2. Discrepancies Regarding Dr. Lynch’s Testimony 4 Defendant centers much of its motion to strike on alleged inconsistencies 5 in Dr. Lynch’s deposition testimony (ECF No. 25 at 6–13, 16–17), particularly 6 focusing on his answers to questions regarding the cause of certain pathology 7 seen in Plaintiff’s vertebrae. (Id. at 6–7.) Defendant contrasts Dr. Lynch’s 8 testimony that he could not render an opinion, to a reasonable degree of medical 9 certainty, as to when Plaintiff’s synovial cyst, disc bulge, and disc slippage first 10 occurred (ECF No. 28-1 at 15), but did render such an opinion as to what caused 11 Plaintiff’s low back pain, noting that issues like cysts and disc bulges could be 12 asymptomatic, until an injury, like the one at Smith’s, precipitated symptoms. 13 (Id. at 16–17.) 14 Similarly, Defendant argues that Dr. Lynch’s testimony regarding the cause 15 of Plaintiff’s low back pain contradicts both Plaintiff’s own testimony and her 16 medical records, which, according to Defendant, indicate that her low back pain 17 did not become a primary concern until 2022. (ECF No. 25 at 9–13.) However, Dr. 18 Lynch testified that her low back pain was not well-documented and may have 19 worsened over time, ultimately resulting in her appointment with him in 2023. 20 (ECF No. 28-1 at 16–17.) 21 Defendant fails to explain how these answers are irreconcilable and further 22 neglects to cite to any case law standing for the proposition that such discrepancy 23 is sufficient ground to strike evidence, testimony, and opinions of an expert. The 24 mere possibility that an expert may be impeached is not grounds for exclusion. 25 See Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir. 26 2013) (holding that “the judge is supposed to screen the jury from unreliable 27 nonsense opinions, but not exclude opinions merely because they are 28 impeachable”). 1 The Court declines to strike Dr. Lynch’s testimony regarding future 2 || possible medical treatment and the cause thereof. To the extent there are 3 || discrepancies in Dr. Lynch’s testimony, Defendant will have at trial the 4 || opportunity to probe them. 5 || Il. CONCLUSION 6 It is therefore ordered that Defendant’s Motion to Strike Evidence, Testimony, 7 || and Opinions of Plaintiff's Expert James Lynch, M.D. is DENIED. (ECF No. 25.) 8 9 DATED THIS 12th day of September 2025. 10 i dun 11 Gs }

12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28