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Feit v. Great-West Life and Annuity Insurance Co.

October 4, 2006


The opinion of the court was delivered by: Ackerman, Senior District Judge


This matter comes before the Court on a motion in limine filed by Defendant Great-West Life and Annuity Insurance Company ("Great-West"). Great-West seeks to exclude the expert reports and testimony of two experts, Dr. Duc Duong, M.D. and Dr. Arthur P. Fisch, M.D., proferred by Plaintiff Frani Feit ("Mrs. Feit" or "Plaintiff"). For the following reasons, Great-West's motion to exclude expert testimony is GRANTED IN PART and DENIED IN PART with respect to the testimony of Dr. Duong, and DENIED with respect to the testimony of Dr. Fisch.


The background facts for this motion are taken in part from the stipulated facts submitted as part of the Final Pretrial Order in this action, and in part from the papers submitted by the parties regarding Great-West's summary judgment motion, which was largely premised on a challenge to the admissibility of the reports of Plaintiff's medical experts. The deceased, Dr. David Feit ("Dr. Feit"), was a practicing dentist and a member of the American Dental Association ("ADA"). Plaintiff Frani Feit is the surviving spouse of Dr. Feit and one of two designated beneficiaries of Dr. Feit's life insurance policy. Mrs. Feit is proceeding in this action individually and as the assignee of the rights of Irwin Feit, Dr. Feit's father, the other designated beneficiary of the policy.

The ADA maintained the life insurance benefits at issue under a group term life insurance plan provided by Great-West. Dr. Feit had a $1,000,000 group term life insurance policy at the time of his death and an additional $1,000,000 accidental death benefit. Under the terms of Dr. Feit's insurance policy, in order to receive the accidental death benefit, an insured's death must be the result of a bodily injury that is caused solely by accidental means. Under the policy's terms, Great-West was obligated to pay the additional accidental death benefit only if death occurred within 90 days of an accident, was a direct result of an accident, and was unrelated to any other cause. According to the language of the policy, the accidental death benefit would not be paid if the member's death was in any way connected to a disease, illness, or physical or mental infirmity, including the medical or surgical treatment of any disease or illness.

Dr. Feit died on July 22, 2002 in Rockland County, New York. The cause of death is the central matter of dispute in this case. At the time of his death, Dr. Feit was forty-four years old, did not smoke, and had no history of cardiac disease or illness, other than an elevated cholesterol level which was controlled with medication. He regularly walked five miles four to five times per week and played basketball on Sundays.

Sometime during the morning of July 22, 2002, Dr. Feit's car drove off the southbound lane of a highway in Rockland County and crashed into and drove through the guardrail, causing damage to ten feet of the rail. The vehicle then went down a 670-foot grassy slope, struck a chain-linked fence, and stopped at the Spook Rock Industrial Park (the "Park"). The car damaged a sign and part of the fence, and parts of the vehicle were scattered throughout the car's path. The location of Dr. Feit's car was reported to police by the Park's construction manger at approximately 12:11 PM. Police were called to the scene, and upon investigation found that Dr. Feit had died in the car. Dr. Feit's body was found in the front seat area of the car, clutching his chest and biting his shirt. Dr. Feit did not appear to have worn a seat belt, and the air bags were not deployed. According to the report of the investigator for the Medical Examiner's Office for the County of Rockland, the position of Dr. Feit's body in the car upon discovery appeared as though the body had "bounced around" inside the car. (Aff. of Gina Goodreau, dated October 28, 2004 ("Goodreau Aff."), Ex. I at 2.)*fn1

The Medical Investigator for Rockland County came to the scene of the accident and prepared a report. On July 23, 2002, Dr. Marcelo Zappi, M.D., a pathologist for the Rockland County Medical Examiner's Office, performed an autopsy on Dr. Feit. The pathology report prepared by Dr. Zappi described Dr. Feit's cardiac condition as follows: "Cardiac atherosclerosis, moderate to severe. Myocardial fibrosis. Myocardial fiber fragmentation with loss of nuclei and striations. Patchy interstitial hemorrhage and lymphocytic infiltration, mild." (Goodreau Aff., Ex. G at 5. The autopsy results indicated that Dr. Feit died from a "myocardial infarction, old due to atherosclerotic obstruction of coronary arteries." (Goodreau Aff., Ex. G at 4; Ex. C.) There is no mention in the report of any examination of Dr. Feit's head or nervous system.

The beneficiaries submitted claim forms to Great-West in August 2002, seeking the full $2,000,000 in available benefits. Great-West replied by letter dated August 15, 2002, enclosing payment of the beneficiaries' respective shares under the life insurance policy, and stating that the accidental death claim was rejected because Mr. Feit's death certificate listed "natural cause," rather than accident, as the cause of death. Great-West further stated in the letter that it would reconsider the accident benefit portion of the claim if additional proof was submitted. Mrs. Feit responded to Great-West with copies of the autopsy report, accident report, EKG report from Dr. Feit's cardiologist, and correspondence from Dr. Feit's car insurance company indicating that his vehicle was totaled in the crash. Great-West submitted this information to a Great-West consulting physician, who rendered a report on October 30, 2002. The consulting physician's report reaffirmed the autopsy finding and stated that complications of the myocardial infarction caused Dr. Feit's death, and thus the consulting physician rejected any assertion of accidental death.

On October 31, 2002, Great-West's claim analyst wrote to Mrs. Feit again rejecting the accidental death claim, citing to: (1) Dr. Feit's death certificate, which stated the manner of death as "natural cause"; (2) the autopsy report, which supports the finding of death due to natural causes; (3) the autopsy report's absence of any findings of bone fractures or trauma; and (4) the accident report's citation of "heart attack" as the cause of death. (Goodreau Aff., Ex. L.)

Mrs. Feit commenced this suit on May 15, 2003 in the Superior Court of New Jersey, Passaic County. Defendant Great-West removed the action to this court in June, 2003, claiming diversity jurisdiction. During discovery, Mrs. Feit provided pictures of the crash and named two expert witnesses. Great-West deposed both experts, Dr. Arthur Fisch, M.D., a cardiologist, and Dr. Duc V. Duong, M.D., a forensic pathologist. The reports of both experts attest that, given the circumstances of the crash, the manner in which the body was found, Dr. Feit's medical history, and the findings of the autopsy reports, Dr. Feit's atherosclerotic obstruction did not contribute to his death.

Dr. Fisch, Mrs. Feit's expert cardiologist, testified that he believed that a cardiac condition did not contribute to Dr. Feit's death. (Aff. of Michael J. Zaretsky, dated January 11, 2006 ("Zaretsky Aff."), Ex. A.) Dr. Fisch based his opinion on his observations that (1) there was no evidence of myocardial infarction; (2) none of the obstructions in the coronary arteries exceeded 50%; (3) there was no thrombus or clot, which one would expect to find in the case of an acute myocardial infarction; (4) the heart was not particularly dilated; and (5) there was no history or symptoms of acute infarction or congestive heart failure. (Zaretsky Aff., Ex. A at 1.) Also, according to Dr. Fisch, Dr. Feit's past EKG reports were "within normal limits and without any evidence of a prior myocardial infarction." (Id.)

Dr. Duong, Mrs. Feit's expert pathologist, agreed with Dr. Fisch's opinion that 50% blockage in the coronary arteries does not usually cause a heart attack. (Zaretsky Aff., Ex.C at 2.) Also, in Dr. Duong's opinion, Dr. Feit's head and neck were not properly examined. (Id.)

Dr. Duong opined that "[i]n fatal cases in which no other evidence of injury can be found, consideration should be given to possible concussion of the medulla as the cause of death." (Id.) Dr. Duong concluded that Dr. Feit "died of head and neck injuries during the car accident." (Id.)


I. Standard of Review Under Daubert

The admissibility of "expert" testimony is a question of law governed by Rule 702 of the Federal Rules of Evidence and the United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). When faced with a challenge to expert testimony, a court must determine, pursuant to Rule 104(a) of the Federal Rules of Evidence, whether the testimony satisfies the standard of "evidentiary reliability" and whether it will assist the trier of fact to understand or determine a fact in issue.

Rule 702 provides that where

scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (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.

"Rule 702 imposes three distinct substantive restrictions on the admission of expert testimony: qualifications, reliability, and fit." Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000). First, the proffered witness must be a qualified expert, meaning that the witness must possess specialized expertise. Second, the testimony must be reliable. This has been interpreted to mean that an "expert's opinion must be based on the 'methods and procedures of science' rather than on 'subjective belief or unsupported speculation;' the expert must have 'good grounds' for his or her belief." In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 (3d Cir. 1994) (quoting Daubert, 509 U.S. at 590). Third, the expert's testimony must "fit," meaning that "the expert's testimony must be relevant for the purposes of the case and must assist the trier of fact." Calhoun v. Yamaha Motor Corp., U.S.A., 350 F.3d 316, 321 (3d Cir. 2003) (quoting Schneider v. Fried, 320 F.3d 396, 405 (3d Cir. 2003)).

Daubert represents the Supreme Court's definitive pronouncement on the nature of a Rule 702 inquiry. Daubert requires courts to perform a "gatekeeping function" to ensure the relevance and reliability of expert testimony, and in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court extended this gatekeeping obligation from scientific evidence to encompass all expert testimony. The Supreme Court in Daubert and the Third Circuit in Paoli announced factors for courts to consider in determining whether to admit expert testimony. These factors include:

(1) whether a method consists of a testable hypothesis; (2) whether the method has been subject to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put.

Paoli, 35 F.3d at 742 n.8. This list is "nonexclusive" and "each factor need not be applied in every case." Elcock, 233 F.3d at 746. Rather, the court must tailor its inquiry to the facts of each case and "should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of the expert testimony." Kumho Tire, 526 U.S. at 152. The proponent of expert testimony must establish the admissibility of the expert's opinion by a preponderance of the evidence. Paoli, 35 F.3d at 744.

In considering the reliability of an expert's testimony, the testimony need not be flawless for it to be reliable and admissible. As the Third Circuit has recognized,

[t]he grounds for the expert's opinion merely have to be good, they do not have to be perfect. The judge might think that there are good grounds for an expert's conclusion even if the judge thinks that there are better grounds for some alternative conclusion, and even if the judge thinks that a scientist's methodology has some flaws ...

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