UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

GREG GUTHRIE,

Plaintiff,

v.

LORI ANN HOCHSTETLER, 

Defendant.

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CAUSE NO. 3:16-cv-473-MGG

OPINION AND ORDER

On March 14, 2018, Plaintiff, Greg Guthrie, filed his Motion to Exclude Expert 

Testimony asking the Court to exclude the testimony of Defendant Lori Ann 

Hochstetler’s retained expert, Ernest P. Chiodo, M.D., J.D., M.P.H., M.S., M.B.A., C.I.H., 

under Federal Rules of Evidence 403 and 702 as well as the principles set forth in 

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Hochstetler filed her 

response in opposition to Defendants’ motion on March 28, 2018. Guthrie’s motion 

became ripe on April 4, 2018, when he filed a reply brief. Jurisdiction in this Court is 

proper under 28 U.S.C. § 1332(a)(1), as Guthrie and Hochstetler are citizens of different 

states and the amount in controversy exceeds $75,000.000, exclusive of interest and 

costs. The Court issues the following opinion pursuant to the consent of the parties and 

28 U.S.C. § 636(c).
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I. RELEVANT BACKGROUND

On August 30, 2014, the parties were involved in a car collision in which 

Hochstetler rear-ended Guthrie’s car. Both cars had been stopped on a highway offramp. Guthrie began moving forward as traffic allowed but then had to stop abruptly 

when the car in front of him stopped. Hochstetler was not able to stop before colliding 

with Guthrie’s car. Guthrie’s bumper sustained minor damage and Guthrie reported no 

injuries at the scene. However, a little more than two weeks after the collision, Guthrie 

visited a doctor and was diagnosed with cervical strain requiring chiropractic treatment 

and physical therapy. Later, a neurosurgeon diagnosed him with a herniated disc in his 

neck that ultimately led to fusion surgery about fifteen months after the collision. 

On March 22, 2016, Guthrie initiated this civil action against Hochstetler alleging 

that her negligence resulted in the car collision that caused the herniated disc in his 

neck. Accordingly, Guthrie seeks judgment against Hochstetler to compensate him for 

all his losses.

On September 20, 2016, this Court issued its Rule 16(b) Preliminary Pretrial 

Scheduling Order establishing deadlines for discovery, including the disclosure of 

retained experts, and for “[a]ny evidentiary objections to another party’s expert witness, 

whether directed to the witness’s qualifications or to the foundation for the anticipated 

testimony,” among other things. [DE 8 at 2]. Specifically, the Court set July 1, 2017, as 

the deadline for evidentiary objections. The Court explicitly informed the parties that 
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“[f]ailure to file such objections is waiver of any objection to opinion testimony outlined 

in the statement filed by the witness’s proponent.” [Id.].

On July 1, 2017, Dr. Chiodo, Hochstetler’s retained expert, sent his report in the 

form of a letter to her attorney. Dr. Chiodo was retained as an expert in the field of 

biomedical1 engineering. He is a medical doctor, a lawyer, and has advanced degrees in 

public health, biomedical engineering, threat response management, and occupational 

and environmental health sciences with a specialization in industrial toxicology. Dr. 

Chiodo maintains patients as part of his medical practice, represents plaintiffs in toxic 

tort cases, and works as a forensic expert witness typically for the defense in cases 

involving low-speed collisions. 

Based upon a review of Guthrie’s medical records, a photo of the bumper of 

Guthrie’s car after the collision, Guthrie’s responses to written discovery requests, 

transcripts from depositions of three of Guthrie’s treating physicians, and the police 

crash report as well as peer reviewed medical and scientific literature and the Court’s 

own Reference Manual on Scientific Evidence, 3rd Edition, Dr. Chiodo opined in his report

that there is no causal connection between the August 2014 and Guthrie’s ill health. Dr. 

Chiodo stated also that Guthrie suffered no injury or illness due to the collision 

 1 Throughout their briefs, the parties refer to Dr. Chiodo as a “biomechanical” and a “biomedical” 

engineer without clear explanation of any distinction. The Court will use the term “biomedical engineer” 

throughout this order based on Dr. Chiodo’s degree in biomedical engineering reflected on his 

curriculum vitae.
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therefore no treatment, rehabilitation, or accommodation was required due to the 

collision. [DE 31-1 at 13].

On September 22, 2017, Guthrie deposed Dr. Chiodo. In the parties’ proposed 

pretrial order filed on October 11, 2017, Guthrie informed the Court that he 

“anticipate[d] filing a Daubert Motion challenging Dr. Earnest [sic] Chiodo from 

testifying once the deposition testimony is transcribed.” [DE 19 at 1]. For reasons 

unrelated to Guthrie’s anticipated Daubert motion, the trial was rescheduled for June 26, 

2018, through an order dated November 28, 2017. [DE 28]. After the Court denied 

Hochstetler’s motion to exclude testimony from two of Guthrie’s treating physicians for 

alleged discovery shortcomings through an order dated February 2, 2018 [DE 29], 

Guthrie filed the instant Daubert motion on March 14, 2018.

Through his motion, Guthrie challenges the reliability of Dr. Chiodo’s opinions,

as well as their helpfulness to the jury, citing Fed. R. Evid. 702. Alternatively, Guthrie 

invokes Fed. R. Evid. 403 and contends that any relevance of Dr. Chiodo’s opinions to 

this case is substantially outweighed by the danger of unfair prejudice and the risk of 

misleading the jury. Hochstetler contests each of Guthrie’s arguments.

II. ANALYSIS

A. Waiver of Evidentiary Objection

As a preliminary matter, Guthrie’s instant Daubert motion was not filed before 

the Court’s deadline for evidentiary objections of July 1, 2017. Additionally, Guthrie did 

not file a motion to extend the evidentiary objection deadline before or after the 
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deadline expired. Instead, Guthrie simply reported an anticipated Daubert motion more 

than three months after the deadline passed in a proposed pretrial order [DE 19] and 

then filed the motion without leave of court five months later. Guthrie has offered no 

explanation for the untimely motion despite being served the Court’s Preliminary 

Pretrial Scheduling Order [DE 8] in which the deadline was set and the parties’ 

proposed pretrial order, which included a footnote explicitly stating that “[t]he deadline 

for filing of all potentially dispositive motions, including Daubert motions was July 1, 

2017.” [DE 19 at 1 n.2].

Arguably, Guthrie may have waived his objection to Dr. Chiodo by failing to 

comply with the Court’s deadline. However, the Court recognizes that it would have 

been difficult for Guthrie to file a Daubert motion when Dr. Chiodo’s report was sent to 

Hochstetler’s attorney on the same date as the Court’s deadline for evidentiary 

objections. Nevertheless, the deadline passed. Under Fed. R. Civ. P. 6(b)(1)(B), the court 

may extend deadlines for good cause “on motion made after the time has expired if the 

party failed to act because of excusable neglect.” While the Court may have willingly 

extended the deadline for evidentiary objections given the timing of Dr. Chiodo’s report

if requested shortly after deadline passed or even shortly after Dr. Chiodo’s deposition, 

Guthrie never asked. Instead, Guthrie waited eight months after the deadline passed 

and filed the motion without asking the Court’s permission. Moreover, Guthrie has 

offered no explanation for why he tarried more than five months after Dr. Chiodo’s 

deposition before filing the instant motion. Thus, Guthrie has failed to demonstrate the 
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excusable neglect necessary to justify an extension of the evidentiary objection deadline 

now. Accordingly, the Court would be within its authority to deny Guthrie’s instant 

motion as untimely. Yet Guthrie’s motion also fails on the merits as discussed below.

B. Legal Standard under Daubert

Federal Rule of Evidence 702 governs the admission of expert testimony and 

states that

A witness who is qualified as an expert by knowledge, skill, experience, 

training, or education may testify in the form of an opinion or otherwise 

if:

(a) the expert’s scientific, technical, or other specialized knowledge

will help the trier of fact to understand the evidence or to 

determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the 

facts of the case.

As a threshold matter, courts must examine whether 1) the expert will “testify based on 

valid scientific, technical, or specialized knowledge, i.e., whether the expert’s testimony 

is reliable,” and 2) whether that testimony will assist the trier of fact in understanding 

or determining a fact in issue. Ruppel v. Kucanin, No. 3:08 CV 591, 2011 WL 2470621, at 

*2 (N.D. Ind. June 20, 2011) (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 

(1993)); see also Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000).

Accordingly, courts play a critical “gatekeeper” role ensuring that any expert 

testimony or evidence admitted is not only relevant but reliable. Mihailovich v. Laatsch, 

359 F.3d 892, 918 (7th Cir. 2004). To fulfill the gatekeeper role, courts must determine 
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whether an expert is qualified in the relevant field and whether the methodology 

underlying the expert’s conclusion is reliable. See Ammons v. Aramark Unif. Servs., Inc., 

368 F.3d 809, 816 (7th Cir. 2004). The judge retains “the discretionary authority . . . to 

determine reliability in light of the facts and circumstances in a particular case.” Kumho 

Tire Co., 526 U.S. at 158. 

An expert’s testimony is admissible when it provides “something more than

what is obvious to the layperson in order to be of any particular assistance to the jury.” 

Dhillion v. Crown Controls Corp., 269 F.3d 865, 871 (7th Cir. 2001). In addition, “[a]n 

expert must substantiate his opinion; providing only an ultimate conclusion with no 

analysis is meaningless.” Winters v. Fru-Con Inc., 498 F.3d 734, 743 (7th Cir. 2007)

(internal quotations omitted). Similarly, opinion evidence may be unreliable and 

worthy of exclusion if a court concludes “that there is simply too great an analytical gap 

between the data and the opinion proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 

(1997). Stated another way, an expert opinion that only consists of “subjective belief or 

unsupported speculation” should be excluded. Deimer v. Cincinnati Sub-Zero Prod., Inc., 

58 F.3d 341, 344 (7th Cir. 1995) (quoting Daubert, 509 U.S. at 590). 

However, exclusion of expert testimony should be the exception, not the rule. See 

Advisory Committee Notes to Rule 702. The jury must still be allowed to play its essential 

role as the arbiter of the weight and credibility of testimony. Stollings v. Ryobi Techs., 

Inc., 725 F.3d 753, 765 (7th Cir. 2013). The soundness of the factual underpinnings of the 

expert’s analysis and the correctness of the expert’s conclusions based on that analysis 
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remain factual matters to be determined by the jury. Id.; see also Lees v. Carthage Coll., 714 

F.3d 516, 525 (7th Cir. 2013)

B. Reliability of Dr. Chiodo’s Opinions

Guthrie does not challenge Dr. Chiodo’s qualifications as a biomedical engineer

or a physician. Similarly, Guthrie does not challenge Dr. Chiodo’s additional expertise 

arising from his board certification in occupational medicine, which requires specialized 

training in causation of injuries and diseases, his advanced training in accident 

reconstruction, and his experience lecturing on low-speed traffic accidents and resulting 

injuries. Yet Guthrie does challenge the reliability and helpfulness of Dr. Chiodo’s

opinion that the August 2014 collision did not cause Guthrie’s herniated disc and 

related symptoms at issue in this case.

In reaching his overarching opinion on causation, Dr. Chiodo first 

reviewed the photo of Guthrie’s car post-collision and calculated the G forces he 

experienced citing peer reviewed medical and scientific literature to support his 

method. Chiodo’s biomechanical analysis and calculations also led him to 

conclude that Guthrie experienced fewer G forces in the collision than would 

have been generated when he entered and sat into the motor vehicle before the 

collision. Furthermore, Dr. Chiodo demonstrated that the disc herniation Guthrie 

suffered could only have occurred with force that would have also caused bony 

injuries to the spine that Guthrie did not manifest. 
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Second, Dr. Chiodo’s report proceeded to an analysis of both general and 

specific causation based on principles and methods cited in The Reference Manual 

on Scientific Evidence, 3rd Edition. The Reference Manual was prepared for and is 

used as a resource by judges managing cases involving scientific and technical 

evidence by outlining principles and methods of science with citations. Dr. 

Chiodo cites The Reference Manual for the proposition that an expert’s opinion on 

causation must be supported by reasonable explanations about the effects of 

exposure to forces such as those involved in the collision here. 

Dr. Chiodo then advocated for his opinions about the effects of the 

collision on Guthrie over the causation opinions of Guthrie’s treating physicians 

alleging that they lacked necessary scientific explanation. In particular, Dr. 

Chiodo questioned the treating physicians’ opinions claiming they failed to 

eliminate all possible causes of Guthrie’s symptoms, besides the collision—a 

process call differential diagnosis validated in The Reference Manual. Dr. Chiodo 

then concluded that the treating physicians’ opinions reflected the post hoc ergo 

propter hoc fallacy because they were based only on the temporal relationship 

between the collision and Guthrie’s symptoms and nothing more.

Through the instant motion, Guthrie argues that 

(1) Dr. Chiodo’s opinions constitute legal conclusions that will not be

helpful to the trier of fact;

(2) insufficient information forms the basis of Dr. Chiodo’s causation 

opinion;
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(3) Dr. Chiodo did not employ reliable principles and methods in arriving 

at his conclusions; and

(4) Dr. Chiodo did not reliably apply biomechanical engineering 

principles and methods to this case. 

Guthrie rejects as unreliable Dr. Chiodo’s biomechanical analysis and 

calculations arguing that he failed to consider all the relevant evidence available 

to analyze the forces resulting from the collision and their effect on Guthrie. In 

particular, Guthrie challenges Dr. Chiodo’s contention that looking at a 

photograph of one car involved in a rear-end collision is the best evidence for 

determining the speed at impact—that review of Guthrie’s deposition testimony 

about his experience and pain before and after the collision, repair estimates for 

the vehicle, the type of bumper involved, and any damage under the vehicle is 

not required. Yet, Dr. Chiodo cites an article in the European Spine Journal, 

which is devoted to spine surgery and related disciplines including but not 

limited to biomechanics and pathophysiology, to support his application of this 

method. [DE 31-1 at 4 (citing Castro WH, et al., Do “whiplash injuries” occur in lowspeed rear impacts? EUR. SPINE J. (1997) 6:366-375)]; see also European Spine Journal, 

https://www.europeanspinejournal.org/about. Guthrie has not presented 

evidence to discredit this publication or Castro’s article. Thus, Guthrie has not 

demonstrated that Dr. Chiodo’s method is not reliable.
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Similarly, Guthrie rejects as unreliable Dr. Chiodo’s opinion that treating 

physicians should conduct differential diagnosis to eliminate causes of a patient’s 

symptoms before opining about the causation of the symptoms. Dr. Chiodo 

ultimately opined that Guthrie’s treating physicians fell prey to the post hoc ergo 

propter hoc fallacy when they relied solely on the temporal relationship between 

the collision and Guthrie’s symptoms rather than taking the additional step of 

eliminating other potential causes of those symptoms. Guthrie argues that Dr. 

Chiodo’s only foundation for this approach to causation analysis is The Reference 

Manual, which is not a source reasonably relied upon by biomedical engineers 

under Fed. R. Evid. 703. Moreover, Guthrie argues that Dr. Chiodo’s 

interpretation of The Reference Manual is a legal conclusion to which experts 

cannot testify. See United States v. Sinclair, 74 F.3d 753, 757 n. 1 (7th Cir. 1996); 

Bammerlin v. Navistar Int'l Transp. Corp., 30 F.3d 898, 900 (7th Cir. 1994).

These arguments are not compelling either. While The Reference Manual

may not be a source on every biomedical engineer’s bookshelf, it would 

reasonably appear on a forensic expert’s bookshelf. Moreover, the process of 

differential diagnosis is an application of logic that would be evident to any trier 

of fact. Thus, Dr. Chiodo’s citation merely documents what is common 

knowledge before he evaluated the opinions about causation from the medical 

records presented him for analysis.
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In the end, the instant motion reflects Guthrie’s dissatisfaction with Dr. 

Chiodo’s opinions on whether the collision caused his symptoms and injuries. 

His arguments go to the weight to be given to Dr. Chiodo’s opinion testimony 

rather than its admissibility. See Stollings, 725 F3d. 765. Therefore, Guthrie has 

not persuaded the Court that Dr. Chiodo’s opinions are unreliable such that they 

should be withheld from the trier of fact who will be charged with discerning the 

credibility of Dr. Chiodo’s opinion testimony. Moreover, Dr. Chiodo’s 

knowledge will help the trier of fact understand the effect of the collision on 

Guthrie, a key fact in this case. Accordingly, Dr. Chiodo should be allowed to 

testify.

In the final analysis, Guthrie’s objections challenge the weight to be given 

to Dr. Chiodo’s opinion, rather than its admissibility. Guthrie will have an 

opportunity to challenge the weight of Dr. Chiodo’s opinion in the crucible of 

cross-examination at trial, which will give the jury an opportunity to afford this 

evidence its proper weight. Nothing in the record demonstrates that this 

evidence is improper, prejudicial, or otherwise inadmissible; rather, the record 

demonstrates it could be helpful to the jury. In performing its role as gatekeeper, 

this Court finds that the evidentiary gate should be opened so that the jury can 

consider Dr. Chiodo’s testimony in light of other evidence in making its 

determination of causation, liability, and damages.
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III. CONCLUSION

Having determined that Dr. Chiodo retains the scientific knowledge to 

help the jury decide the critical question of causation, that Dr. Chiodo’s opinions 

are based on sufficient facts or data, and that he applied reliable principles and 

methods in reaching those opinions as required under Fed. R. Evid. 702, the 

Court DENIES Guthrie’s instant motion to exclude. [DE 30].

SO ORDERED.

Dated this 14th day of May 2018.

s/Michael G. Gotsch, Sr.

Michael G. Gotsch, Sr.

United States Magistrate Judge