Court Partially Guts Expert Testimony in Student Athlete’s Negligence Lawsuit Against Dartmouth

Sep 23, 2022

A federal judge has dealt a blow to the claim of a student athlete, who alleges that Dartmouth College was negligent when the school’s Athletic Trainer and its Strength and Conditioning Coach for Field Hockey and Football permitted, or encouraged, the student athlete to do weight training exercises that could exacerbate injuries she had suffered eight months earlier in a car accident.

Specifically, the court denied Dartmouth’s motion to preclude the testimony of one of the plaintiff’s experts, while partially granting a motion to preclude the testimony of another one of her experts.

By way of background, plaintiff Khia Hollyer was in a car accident in December 2016. Afterwards, 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 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,” according to the letter.

Hollyer arrived on Dartmouth’s campus for the Program on August 16, 2017. A few days later, Hollyer, her mother, or both, allegedly 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. 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.

Consequently, 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,” according to the complaint.

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, including right leg weakness, diminished reflexes, and urinary incontinence.

Regarding the instant decision, Hollyer designated two expert witnesses— Dr. Douglas Goumas and Thomas 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.” 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.”

Dartmouth challenged 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 court noted that Federal Rule of Evidence 702 applies in the instant dispute and that, specifically, the U.S. Supreme Court case Daubert v. Merrell Dow Pharmaceuticals proscribes a gatekeeping role for the judge to make rulings about the admissibility of expert testimony. In recent years, case law suggests that the courts have interpreted Rule 702 “liberally in favor of the admission of expert testimony.” Levin v. Dalva Bros., Inc., 459 F.3d 68, 78 (1st Cir. 2006).

The court first considered Dr. Goumas’s testimony. Dartmouth challenged the following four parts of Dr. Goumas’s opinion: (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, and (4) there is a “possibility” that Hollyer will require future fusion surgery if conservative treatment options fail.

On the first part, the court ruled Dr. Goumas’s testimony inadmissible because it was “limited to the timeframe of the records reviewed.” In other words, his testimonyit was incomplete.

Regarding the second part, the court deferred to the plaintiff, noting the “liberal interpretation courts have given to Rule 702,” and suggested if Dartmouth wanted to challenge that it could do so “at trial.”

Turning to the third part, the court noted that New Hampshire courts have approved of opinion evidence regarding a percentage of permanent impairment in negligence cases, and thus denied Dartmouth’s challenge.

Finally on the last part, the court wrote “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.”

Regarding LeBrun, Hollyer retained him 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 exercise that caused the injury to Ms. Hollyer and how it relates to the same.”

LeBrun opined 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 challenged this, arguing 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 argued 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 unsafe. However, none of Dartmouth’s objections warranted exclusion of LeBrun’s opinion.

According to the court, “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.”

Therefore, the court concluded, “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.”

Hollyer v. Trs. of Dartmouth Coll.; D.N.H.; Civil No. 20-cv-954-SE; 8/10/22