MEMORANDUM OPINION AND ORDER – PAGE 1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CHARLES KALLASSY, §

§

Plaintiff, §

§

v. § Civil Action No. 3:04-CV-0727-N

§

CIRRUS DESIGN CORPORATION, §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant’s Motion for Summary Judgement, filed June 24, 2005.

Because Plaintiff does not produce the evidence required to prove either defect or causation

for his product liability claims, the Court grants the motion for summary judgement.

I. BACKGROUND

A. Procedural History

Plaintiff Charles Kallassy owned and flew a Cirrus SR22 aircraft (the “SR22”)

between June 2001 and March 2003. Defendant Cirrus Design Corporation (“Cirrus”)

produced the SR22 and sold it to Kallassy. Kallassy alleges that the SR22 was defective.

He claims that the SR22 vibrated severely while being flown and that, as a result of his

operation of the SR22, he developed neurological injury to his hands and feet. Kallassy sued

Cirrus in state court for product liability based on either design defect, manufacturing defect,

or negligence. Cirrus properly removed the action to this Court. 

 

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1

Specifically, at the hearing the Court stated: “I’m going to deny the motion. I will

say, as I indicated before, I will limit these witnesses at trial, if they are ever called, to what

I think is proper under the rule for that kind of designation.” The Court went on to remark,

“I also wonder what plaintiff is going to do if the defendants file a motion for summary

judgement with an affidavit saying there’s no design defect and no manufacturing defect.

I guess there’s also the issue about the – the defendant’s haven’t designated experts, either.

I don’t know what would happen with that.

“But if, say, hypothetically, they did file such a motion for summary judgement, I just

don’t know what the plaintiff would do at that point. I guess I can wait and see if that

happens. I don’t need to decide that today. 

“So this is, I guess, a long-winded way of saying you’ve chosen a trial strategy with

regard to expert designations and I’m going to let you live with that trial strategy. But you

will end up stuck with the consequences at some point. Maybe they’ll be just fine and dandy

and perhaps they won’t.”

Today the consequences of Kallassy’s trial strategy become clear.

MEMORANDUM OPINION AND ORDER – PAGE 2

Kallassy filed his designation of experts on April 1, 2005, in which he neither

designated any retained or specifically employed experts nor provided any expert reports.

Cirrus then moved to strike Kallassy’s designation of experts. At the hearing on the motion

to strike, the Court denied the request to strike the designation of experts, but instead ruled

that the Court would limit any testimony offered by Kallassy to the type of designation that

Kallassy made.1

 The Court confirmed this ruling in a written order issued June 14, 2005.

Cirrus now moves for summary judgement based on insufficient evidence.

B. Summary Judgement Standard

Summary judgement is proper when the pleadings and evidence demonstrate that no

genuine issue of material fact exists and the movant is entitled to judgement as a matter of

law. FED. R. CIV. P. 56(c). A genuine issue of material fact exists “if the evidence is such

that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the initial burden of showing there

 

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MEMORANDUM OPINION AND ORDER – PAGE 3

is no genuine issue of material fact, and can meet that burden by pointing to the absence of

evidence to support one or more essential elements of the nonmoving party’s claim. See

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 

Once a proper motion has been made, the nonmoving party may not rest upon mere

allegations or denials in the pleadings, but instead must present affirmative evidence, setting

forth specific facts to show the existence of a genuine issue for trial. Id. at 324. All the

evidence must be construed in the light most favorable to the nonmoving party. See Williams

v. Time Warner Operation, 98 F.3d 179, 181 (5th Cir. 1996). The failure of the nonmoving

party to make a showing sufficient to establish any of the elements on which they bear the

burden of proof at trial requires the granting of summary judgment. See Nebraska v.

Wyoming, 507 U.S. 584, 590 (1993); Celotex, 477 U.S. at 322.

C. The Requirements of Expert Testimony

Federal Rule of Civil Procedure 26(a)(2) requires that parties disclose the identity of

any experts who may be used to present evidence at trial. FED.R.CIV.P. 26(a)(2)(A). It also

requires the accompaniment of the disclosure with a report for any witness “retained or

specifically employed to provide expert testimony.” FED. R. CIV. P. 26(a)(2)(B). Further,

Rule 37(c)(1) makes clear that a party who fails to comply with these rules is generally

precluded from using “as evidence at a trial, at a hearing, or on a motion any witness or

information not so disclosed.” FED. R. CIV. P. 37(c)(1). 

Federal Rule of Evidence 702 permits experts to testify as to “scientific, technical, or

other specialized knowledge [that] will assist the trier of fact” if those opinions are deemed

 

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Specifically, the rule tests reliability via a three factor test: “(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. 

3

Particularly instructive is the parenthetical “noting that ‘there is no good reason to

allow what is essentially surprise expert testimony.’ [sic] and that ‘the Court should be

vigilant to preclude manipulative conduct designed to thwart the expert disclosure and

discovery process[.]’” FED.R.EVID. 701 advisory committee’s notes, 2000 amends. (citing

MEMORANDUM OPINION AND ORDER – PAGE 4

sufficiently reliable by the court as part of its gatekeeper role. See FED. R. EVID. 702;

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).2

 Rule 701(c) reinforces this

requirement by precluding witnesses not testifying as experts from giving any testimony

“based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”

FED. R. EVID. 701.

The requirements of expert testimony in the Federal Rules of Civil Procedure and the

Federal Rules of Evidence work in concert. See, e.g., McKnight v. Purdue Pharma Co., __

F. Supp. 2d __, 2006 WL 784838, *1 (E.D. Tex., March 21, 2006) (“An expert’s report

prepared in accordance with the requirements of Rule 26(a)(2), should also serve a purpose

which may not have been contemplated when the rule was adopted, namely, permitting the

court to evaluate the expert’s testimony under Fed. R. Evid. 702 and the Daubert-Kumho Tire

line of cases.”) (citing Daubert and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)).

The Advisory Committee’s comments to the 2000 Amendments of Rule 701 make clear that

paragraph (c) was added “to eliminate the risk that the reliability requirements set forth in

702 will be evaded through the simple expedient of proffering an expert in lay witness

clothing.”3

 FED. R. EVID. 701 advisory committee’s notes, 2000 amends. 

 

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Joseph, Emerging Expert Issues Under the 1993 Disclosure Amendments to the Federal

Rules of Civil Procedure, 164 F.R.D. 97, 108 (1996)).

4

Kallassy does not contend that he should now be allowed to submit expert testimony;

accordingly, the Court need not undertake Fifth Circuit’s four part test to determine the

appropriateness of exclusion. See Campbell v. Keystone Aerial Surveys, Inc., 138 F.3d 996,

1000 (5th Cir. 1998).

MEMORANDUM OPINION AND ORDER – PAGE 5

In this case, these evidentiary and procedural rules constrain the evidence presented

by the parties’ witnesses. By way of amended scheduling order issued January 4, 2005, the

Court provided for the plaintiff’s designation of experts 150 days before trial, then set for

August 29, 2005. On April 1, 2005, Kallassy submitted his designation of experts without

identifying any as retained or specifically employed to provide expert testimony or

submitting any accompanying reports. Subsequently, Cirrus also allowed the Court’s

deadline to pass without designating any experts to provide expert testimony. Whether done

as a trial strategy, a cost saving measure, or for some other purpose, Kallassy’s failure to

designate witnesses to provide expert testimony now means that he has only very limited, if

any, expert testimony available as evidence to support his position in the summary judgement

motion.4

 

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MEMORANDUM OPINION AND ORDER – PAGE 6

IV. KALLASSY CANNOT MEET HIS BURDEN 

WITHOUT EXPERT TESTIMONY

A. Elements of Product Liability and Negligence

Kallassy asserts claims for strict products liability and negligence. Texas has adopted

section 402A of the Restatement (Second) of Torts providing strict liability for the sale of

defective products. See McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787, 788-789 (Tex.

1967). “Basically, Section 402A subjects to liability the seller or manufacturer of a product

sold ‘in a defective condition unreasonably dangerous’ to an ultimate user or consumer

whose person or property is physically harmed by the product.” Reyes v. Wyeth Labs., 498

F.2d 1264, 1272 (5th Cir. 1974); see also Syrie v. Knoll Int’l, 748 F.2d 304, 306 (5th Cir.

1984) (“To make out a strict liability cause of action, a party must establish that: (1) a

product is defective; (2) the defect rendered the product unreasonably dangerous; (3) the

product reached the consumer without substantial change in its condition from the time of

original sale; and (4) the defective product was the producing cause of the injury to the

user.”); Parsons v. Ford Motor Co., 85 S.W.3d 323, 329 (Tex. App. – Austin 2002, pet.

denied) (same).

“A negligence cause of action requires a different showing from a strict liability claim,

even when the action is against the manufacturer.” Syrie, 748 F.2d at 307 (citing Gonzales

v. Caterpillar Tractor Co., 571 S.W.2d 867, 871 (Tex. 1978)). 

The care taken by the supplier of a product in its preparation, manufacture, or

sale is not a consideration in strict liability; this is, however, the ultimate

question in a negligence action. Strict liability looks at the product itself and

determines if it is defective. Negligence looks at the act of the manufacturer

and determines if it exercised ordinary care in design and production. 

 

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MEMORANDUM OPINION AND ORDER – PAGE 7

Id. (quoting Gonzales, 571 S.W.2d at 871.) Both negligent manufacturing and negligent

design require a showing of dangerous product. See RESTATEMENT (SECOND) OF TORTS

§ 395 (negligent manufacture requires product involving “unreasonable risk of causing

physical harm”; id. § 398 (negligent design “makes it dangerous”); see also Gonzales, 571

S.W.2d at 871-872 (Texas adopts Restatement).

B. Without Expert Testimony Kallassy Cannot 

Show Evidence of Defect as Required

Sitting in diversity, the Court is guided by Texas law in determining whether expert

testimony is required to show defect in this case. In the context of judgment as a matter of

law, the Fifth Circuit has noted: “[W]e apply federal standards of review to assess the

sufficiency or insufficiency of the evidence in relation to the verdict, but in doing so we refer

to state law for the kind of evidence that must be produced to support a verdict.” Hamburger

v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 884 (5th Cir. 2004) (internal quotation

marks and citations omitted). 

Texas courts have held that highly technical matters of design and engineering require

scientific, technical, and/or specialized knowledge. Rangel v. Lapin, 177 S.W.3d 17, 22

(Tex. App. – Houston [1st Dist.] 2005, pet. denied); see also Sipes v. General Motors Corp.,

946 S.W.2d 143, 154 (Tex. App. – Texarkana 1997, pet. denied) (“Issues may arise on

technical matters of design and engineering that would be beyond evidence that lay witnesses

with no expertise in these fields could offer.”). More specifically, Texas courts have required

expert testimony to prove defect where the defect involves technical matters beyond the

general experience of the jury. See TEX. R. EVID. 702; see also Nissan Motor Co. Ltd. v.

 

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MEMORANDUM OPINION AND ORDER – PAGE 8

Armstrong, 145 S.W.3d 131, 137 (Tex. 2004) (requiring “competent expert testimony and

objective proof that a defect caused the acceleration” in case involving unintended vehicle

acceleration); Henderson v. Ford Motor Co., 519 S.W.2d 87, 93-94 (Tex. 1974) (reversing

judgment against car manufacturer because no expert testified that defect had been caused

by unreasonably dangerous design or that alternative would have prevented the accident).

As part of his overall claims, Kallassy alleges that the excessive vibration causing his

injury resulted from a design or manufacturing defect in the SR22. In order for a product to

be defective it must be “unreasonably dangerous.” Syrie, 748 F.2d at 306-307. The level at

which aircraft vibration becomes sufficiently excessive as to constitute an unreasonably

dangerous defect is a technical matter beyond the common experience of jurors. See, e.g.,

Turbines, Inc. v. Dardis, 1 S.W.3d 726, 734 (Tex. App. – Amarillo 1999, pet. denied)

(holding that the proper mechanical operation and repair of airplane engines are not with the

experience of laymen); Hager v. Romines, 913 S.W.2d 733, 734-35 (Tex. App. – Fort Worth

1995, no writ) (holding that operation of an aircraft is not within the experience of the

layman); Walker v. Messerschmitt Bolkow Blohm GmBH, 844 F.2d 237, 244 (5th Cir. 1988)

(relying on testimony of experts to hold that jury had sufficient evidence to find improper

design of helicopter’s hydraulic systems); see also, e.g., Nichols Const. Corp. v. Cessna

Aircraft Co., 808 F.2d 340, 347 (5th Cir. 1985) (finding that the only evidentiary support for

theory of causation of airplane crash, the testimony of an expert witness, was purely

speculative and thus insufficient to present question to jury). Here, however, Kallassy

 

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Kallassy does offer testimony from witnesses he designated as nonretained experts.

However, testimony from witnesses designated as experts does not necessarily make for

expert testimony. These witnesses offer largely factual testimony as to their experience with

the SR22, not expert testimony as to the unreasonably dangerous nature of the vibrations or

the existence of a defect. 

Further, testimony that a particular product is the “worst” among similar products by

itself does nothing to establish defect. It is a truism that in any group of imperfect items, one

among them is always going to be the “worst.” Certainly, one among any group is not

always defective.

MEMORANDUM OPINION AND ORDER – PAGE 9

presents no expert testimony to assist a jury.5

 Without expert testimony, Kallassy cannot

prove the existence of defect, an element essential to his strict product liability claims. 

Kallassy’s inability to prove defect prevents recovery on his claim for the negligence

cause of action as well.

Although a negligence claim requires a different showing from a strict liability

claim, it is not logical for a manufacturer to be held liable for failing to

exercise ordinary care when producing a product that is not defective because:

(1) if a product is not unreasonably dangerous because of the way it was

manufactured, it was not negligent to manufacture it that way; and (2) even if

the manufacturer was somehow negligent in the design or production of the

product, that negligence cannot have caused the plaintiff's injury because the

negligence did not render the product “unreasonably dangerous.” Garrett v.

Hamilton Standard Controls, Inc., 850 F.2d 253, 257 (5th Cir. 1988). This

analysis applies when a defective product theory encompasses and subsumes

a negligence theory, that is, when the allegations and evidence are directed to

whether the product is “unreasonably dangerous” and no other potentially

negligent conduct is alleged or the subject of evidence. See id. & n. 8. In such

a case, whether a plaintiff seeks recovery because of negligence or a theory of

strict liability in tort, the burden is on the plaintiff to prove that the injury

resulted from a defect in the product. Simms v. Southwest Tex. Methodist

Hosp., 535 S.W.2d 192, 197 (Tex. App. – San Antonio 1976, writ ref'd n.r.e.).

 

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Technically, strict liability requires a showing of producing cause and negligence

requires a showing of proximate cause, but the distinction between the two is not significant

here. See Flock v. Scripto-Tokai Corp., 319 F.3d 231, 238 (5th Cir. 2003) (“In Texas, a

showing of producing cause is necessary for recovery in a products liability case.”); IHS

Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798-99 (Tex. 2003)

(establishing a negligence cause of action includes showing damages proximately caused by

the breach of duty.)

7

As was the case above with defect, Texas law again guides the Court in determining

whether expert testimony is required to show causation in this case. See Hamburger, 361

F.3d at 884.

MEMORANDUM OPINION AND ORDER – PAGE 10

Ford Motor Co. v. Miles, 141 S.W.3d 309, 315 (Tex. App. – Dallas 2004, pet. denied). Here,

Kallassy alleges no other potentially negligent conduct beyond the defect alleged to have

caused excessive vibration in the airplane. 

C. Without Expert Testimony Kallassy Cannot 

Show Evidence of Causation as Required

Under either negligence or strict liability theories, plaintiffs are required to prove

causation.6

 Horak v. Pullman, Inc., 764 F.2d 1092, 1095 (5th Cir. 1985). Under Texas law,

“[l]ay testimony is adequate to prove causation in those cases in which general experience

and common sense will enable a layman to determine, with reasonable probability, the causal

relationship between the event and the condition.” Morgan v. Compugraphic Corp., 675

S.W.2d 729, 733 (Tex. 1984).7

 Correspondingly, “when the causal link is beyond the jury’s

common understanding, expert testimony is necessary.” Alexander v. Turtur & Assocs., Inc.,

146 S.W.3d 113, 119-120 (Tex. 2004) (citing Arce v. Burrow, 958 S.W.2d 239, 252 (Tex.

App. – Houston [14th Dist.] 1997), aff’d in part, rev’d in part on other grounds, 997 S.W.2d

229, (Tex. 1999)); see also, e.g., Texarkana Mem’l Hosp., Inc. v. Murdock, 946 S.W.2d 836,

 

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MEMORANDUM OPINION AND ORDER – PAGE 11

841 (Tex. 1997) (remanding to the trial court because, without expert testimony on medical

expenses, the plaintiffs had presented no evidence in support of the trial court's judgment);

Haddock v. Arnspiger, 793 S.W.2d 948, 954 (Tex. 1990) (expert needed because the use of

a flexible colonoscope for a proctological examination was beyond the “common knowledge

of laymen”). “Therefore, in determining whether lay testimony is sufficient to prove

causation, Texas courts look at the nature of the lay testimony and the nature of the injury.”

Hamburger, 361 F.3d at 884.

Texas courts have addressed the need for expert testimony to establish medical

causation on multiple occasions. This Court recently reviewed the Fifth Circuit’s survey of

Texas case law on medical causation, stating that the Fifth Circuit 

held that medical expert testimony was not required to prove causation of neck

injuries suffered in a car wreck. Hamburger, 361 F.3d at 884-86. It cited

other Texas cases in which the plaintiff had immediate subjective awareness

of injury at or about the time of the causative event and in which the causal

relationship was obvious or could be inferred. See Morgan v. Compugraphic,

675 S.W.2d at 733 (plaintiff experienced respiration problems and swelling

immediately after exposure to fumes); Blankenship v. Mirick, 984 S.W.2d 771,

776 (Tex. App. – Waco 1999, pet. denied) (plaintiff experienced pain in knees

after collision shoved knees into dashboard); Dawson v. Briggs, 107 S.W.3d

739, 754 (Tex. App. – Fort Worth 2003, no pet.) (plaintiff experienced pain in

jaw following auto accident); Fidelity & Guaranty Ins. Underwriters, Inc. v.

La Rochelle, 587 S.W.2d 493, 494-96 (Tex. App. – Dallas 1979, writ dism'd)

(plaintiff experienced back pain shortly after ping pong game that aggravated

preexisting back injury). As the Hamburger court observed, “[i]n cases

involving other types of injuries, Texas courts have refused to find lay

testimony sufficient to prove causation.” Hamburger, 361 F.3d at 885 (citing

Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497 (Tex. 1995) (frostbite);

Smith v. Southwestern Bell Tel. Co., 101 S.W.3d 698, 702 (Tex. App. – Fort

Worth 2003, no pet.) (fibromyalgia); Coastal Tankships, U.S.A., Inc. v.

Anderson, 87 S.W.3d 591, 603 (Tex. App. – Houston [1st Dist.] 2002, pet.

denied) (bronchiolitis obliterans organizing pneumonia)).

 

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The argument that expert testimony is required for both causation and defect is

presented in Cirrus’s Motion for Summary Judgement. Kallassy does not appear to dispute

that position as it does not address the question of whether experts are necessary, but rather

only directs the Court to evidence that they argue raises a genuine issue of material fact as

to either causation or defect.

MEMORANDUM OPINION AND ORDER – PAGE 12

Qualls v. State Farm Lloyds, 226 F.R.D. 551, 556-57 (N.D. Tex. 2005); see also Anderson

v. Siemens Corp., 335 F.3d 466, 474 (5th Cir. 2003) (“Ordinarily, expert testimony is needed

to satisfy the reasonable medical probability standard for establishing a causal link.”); In re

Norplant Contraceptive Prods. Liab. Litig., 215 F. Supp. 2d 795, 829 (E.D. Tex. 2002)

(stating that expert testimony satisfying Daubert requirements is required to show causation).

Here, neither the conditions leading to the development of Kallassy’s neurological

injury, nor the alleged condition of neuropathy itself is within the layperson’s average

experience. Accordingly, expert testimony is required to establish that the alleged excessive

vibration caused Kallassy’s injury.8

Kallassy points to the affidavit of James A. Baker, M.D. (the “Baker Affidavit”) and

the letter of Richard C. Johnston, M.D. (the “Johnston Letter”) as presenting sufficient

evidence to create a genuine issue of material fact. Dr. Baker avers, “[b]ased upon the

clinical history given to me by my patient, test results, and my observations and treatment

of Mr. Kallassy for these injuries, it is my opinion, that yes, the chronic vibration neuropathy

that he developed was, in reasonable medical probability, caused by the vibration that he

sustained in piloting the airplane.” (Baker Affidavit ¶ 4). Dr. Baker clearly relies on his

expertise in making this assessment.

 

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No further information is provided to the Court about the data which was given to Dr.

Baker. It is precisely this sort information that expert reports routinely unveil.

MEMORANDUM OPINION AND ORDER – PAGE 13

The Court disallows Dr. Baker’s affidavit testimony as to causation as improper expert

testimony. In his affidavit, Dr. Baker states that he has been “asked to address whether in

my medical opinion . . . the neuropathy afflicting Mr. Kallassy . . . was proximately caused

by vibration that he experienced in piloting his airplane” and that he used “clinical history

given to me by the plaintiff” in making his determination.9

 (Baker Affidavit ¶ 3-4). It

appears to this Court that Dr. Baker has made his medical determination based on

information provided by the plaintiff and in response to a request made in preparation for

litigation. See, e.g., Kiser v. Gen. Motors Corp., 2000 WL 1006239, *2 (E.D. La. Jul. 19,

2000) (finding that an expert was retained or specifically employed under Federal Rule of

Civil Procedure 26(b)(4)(B) and that “[i]t is of no moment that [expert] has not been assigned

to work exclusively on this litigation or that he did not receive additional compensation for

work on this case,” where counsel arranged for observations and data necessary for expert

opinion). Accordingly, the Court concludes that Baker is a retained or specially employed

expert under Federal Rule of Civil Procedure 26(a)(2)(B). As Kallassy did not provide a

report, the Court excludes Baker’s Affidavit from consideration for summary judgement

under Federal Rule of Civil Procedure 37(c)(1).

The Court also holds that Dr. Baker is not a “treating physician” exempt from Rule

26(a)(2)(B). The Advisory Committee Notes to Federal Rule of Civil Procedure 26(a)(2)

 

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MEMORANDUM OPINION AND ORDER – PAGE 14

give the example of a treating physician as a party not subject to the reporting requirement.

FED. R. CIV. P. 26 advisory committee’s notes, 1993 amends., subdiv. (a), para. (2).

Thus, to the extent that a treating physician testifies only to the care and

treatment of the patient, the physician is not considered to be a “specially

employed” expert and is not subject to the written report requirements of Rule

26(a)(2)(B), “notwithstanding that the witness may offer opinion testimony

under [the Federal Rules of Evidence].” Wreath v. United States, 161 F.R.D.

448, 450 (D. Kan. 1995). However, when the doctor's opinion testimony

extends beyond the facts disclosed during care and treatment of the patient and

the doctor is specifically retained to develop opinion testimony, he or she is

subject to the provisions of Rule 26(a)(2)(B). 

Salas v. United States, 165 F.R.D. 31, 33 (W.D.N.Y. 1995). A treating physician cannot be

asked to answer questions about medical issues not involved in his diagnosis and treatment.

Young v. United States, 181 F.R.D. 344, 346-347 (W.D. Tex. 1997). While it is possible for

a doctor to testify regarding cause within his or her role as treating physician, here the Court

believes that Dr. Baker’s determination on legal, proximate cause using medical information

provided by Kallassy exceeds the limits of that role. See Salas, 165 F.R.D. at 33. 

Dr. Johnson’s letter also fails to raise a genuine issue of material fact regarding

causation. First, Dr. Johnston’s unsworn, unverified letter is not competent summary

judgement evidence. See FED.R.CIV.P. 56 (e); Watts v. Kroger Co., 170 F.3d 505, 509 (5th

Cir. 1999). Second, Dr. Johnston’s letter is not proper expert evidence under Rule 702

because the letter does not appear to rely on Dr. Johnston’s expertise. The diagnosis process

seems to have occurred largely outside Dr. Johnson’s care. Dr. Johnson says his own exam

was “unremarkable” and then he referred Kallassy to a neurologist to for “further testing.”

(Johnston Letter ¶ 2). From this Dr. Johnston concludes that it is his “feeling that [Kallassy]

 

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MEMORANDUM OPINION AND ORDER – PAGE 15

had [sic] peripheral neuropathy in a stocking-glove distribution due to prolonged vibratory

insult to the peripheral nerves.” (Johnston Letter ¶ 2). Aside from his conclusion, Dr.

Johnston recites only facts and makes no reference to “scientific, technical, or other

specialized knowledge.” FED. R. EVID. 702. Accordingly, the Dr. Johnston’s letter is not

competent expert testimony under Rule 702. 

Alternatively, the Court finds that both Dr. Baker’s and Dr. Johnston’s testimony fail

the reliability requirements of Federal Rule of Evidence 702. Specifically, Dr. Baker’s

assertion that he based his opinion upon “clinical history . . . , test results, and my

observations and treatment of Mr. Kallassy,” Baker Affidavit ¶ 4, does not by itself establish

that “(1) the testimony is based upon sufficient facts or data, or (2) the testimony is the

product of reliable principles and methods.” FED.R. EVID. 702; see also Daubert, 509 U.S.

579 (1993). Additionally, Dr. Baker describes his own expertise as an orthopedic surgeon

having extensive experience with sport related injuries. A doctor does not qualify as an

expert in all medicine just because the doctor qualifies as an expert in one medical field.

Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex. 2003); Christophersen v. Allied-Signal

Corp., 939 F.2d 1106, 1113 (5th Cir. 1991) (per curiam), overruled on other grounds by

Daubert, 509 U.S. at 587 n.5; Hucker v. City of Beaumont, 147 F. Supp. 2d 565, 569 (E.D.

Tex. 2001). Here, it is not at all evident that Dr. Baker’s knowledge in orthopedics (i.e.,

bones) qualifies him to determine the cause of Kallassy’s neuropathy (i.e., a nervous system

disorder). Without the required assurances as to reliability, this Court will not allow Dr.

Baker’s affidavit as testimony on causation.

 

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MEMORANDUM OPINION AND ORDER – PAGE 16

The Johnston Letter is similarly unreliable. First, Dr. Johnston omits any explicit

basis for his conclusion, instead describing only a broad history of treatment, the significant

parts of which were preformed by another unnamed physician. Dr. Johnston’s conclusion

also lends little confidence as he states only his “feeling” as to what Kallassy “had.”

(Johnston Letter ¶ 2). Finally, Dr. Johnston professes no expertise in neuropathy. His own

specialty is internal medicine, having referred Kallassy elsewhere for further examination.

(Johnston Letter ¶ 2). 

Kallassy offers only the Baker Affidavit and Johnston Letter as expert testimony that

the SR22 caused his alleged injuries. Accordingly, Kallassy cannot make the required

evidentiary showing to support the causation element within either the strict liability or

negligence causes of action. Due to this and the above discussed insufficiency of expert

evidence necessary to prove product defect, the Court grants Cirrus’s Motion for Summary

Judgement.

Signed May 30, 2006.

_________________________________

David C. Godbey

United States District Judge

 

 Case 3:04-cv-00727-N Document 56 Filed 05/30/06 Page 16 of 16 PageID 1365