This lawsuit involves an alleged slip and fall in the Petco Store. Plaintiff, Lisa Brune alleged multiple injuries caused by the slip and fall and sought damages for same.
Plaintiff complained that Petco failed to adhere to this Court’s Order. Then Plaintiff complained that the testimonies, opinions, and/or reports of David C. Randolph, M.D., Ph.D., and M.P.H. and Stacie Nunez did not meet the requirements under Federal Rule of Evidence 702 and Daubert.
Plaintiff filed a motion to exclude the testimony of Defendant’s experts David C. Randolph, M.D., Ph.D., and M.P.H. and Stacie Nunez. Alternatively, Plaintiff moved to limit their testimony. Plaintiff complains that Defendant, Petco Health & Wellness, Inc. (“Petco”) failed to timely identify and provide expert reports for these witnesses.
Occupational Medicine Expert Witness
David C. Randolph M.D., Ph.D, M.P.H is an active occupational medicine physician in Cincinnati, Ohio, in practice for 25 years. He is the former president of the American Academy of Disability Evaluating Physicians.
His doctoral degree is in Epidemiology at the University Of Cincinnati College of Medicine.
Vocational Rehabilitation Expert Witness
Stacie Nunez is a licensed vocational rehabilitation counselor/ life care planner. She works at an established Louisiana rehabilitation counseling firm.
Discussion by the Court
Timeliness of Reports
Plaintiff suggested that the Court clearly indicated that “Petco could provide a single report from an IME physician relating to Brune’s recommended neck surgery, not multiple reports from other unidentified experts.”
This Court expressly stated that “the Court will grant an extension as to Defendant’s expert report deadline until August 30, 2024.”
Plaintiff informed the Court that on August 30, 2024, at 7:55 p.m., Petco provided additional reports from David C. Randolph and Stacie Nunez but complained that these two experts were not previously identified, and their expert report opinions are outside the limited purpose of the expert opinions to address Plaintiff’s neck complaints.
Petco has hired Randolph as an expert in the field of occupational medicine, and Stacie Nunez as a vocational therapist. Randolph’s opinion and analysis rests on the totality of Plaintiff’s medical condition and Nunez’s report opines on a life care plan. It appeared logical to the Court, considering Plaintiff’s numerous complaints of injuries, that these two experts could not provide relevant reports until after Petco was able to address Wolf’s recommended surgical treatment. Also, Plaintiff has ample time to depose these witnesses and prepare for trial considering these experts’ reports were provided on August 30, 20124, and the trial of this matter is November 18, 2024.
Plaintiff also complained that Petco has provided no dates for her to depose Randolph and Nunez. However, the Court noted that Plaintiff has not filed a motion to compel the deposition of these witnesses. The Court found no basis to strike Petco’s experts based on Plaintiff’s complaints herein.
Qualifications
Plaintiff complained of Randolph’s qualifications in the field of occupational medicine. Specifically, Plaintiff argued that Randolph did not have the expertise to opine that Plaintiff’s fall did not cause her bilateral patellar fractures.
Plaintiff challenged Randolph’s expertise in Epidemiology and argued that Plaintiff’s trip and fall is not associated with the distribution and determinates of diseases or disorders within groups of people.
Randolph noted that he provided multiple, peer-reviewed medical references that apply specifically to Plaintiff’s clinical presentation. Randolph explained that he personally reviewed the totality of Plaintiff’s submitted medical records, and notes that a fractured patella is extremely painful that would preclude the ability to walk.
Randolph’s review of Plaintiff’s medical records reflects a history of multiple joint complaints as well as multilevel degenerative changed in her neck and low back that dated back several years.
The Court has reviewed Randolph’s curriculum vitae and notes that he has vast experiences in the medical field and finds that he is more than qualified to opine, provide testimony and issue a report as to the causation of the subject incident.
Plaintiff also moved to strike the opinion, testimony, and report of Stacie Nunez as to Plaintiff’s alleged knee injury. Nunez relied on the opinions of Randolph. Plaintiff argued that should the Court entertain Plaintiff’s request to strike Randolph’s report and opinions, then likewise, Nunez’s report, opinions, and testimony should be stricken. The Court found no basis to strike Nunez’s opinion, testimony, and report.
Limitations
Alternatively, Plaintiff moved to limit Randolph’s testimony, report and opinions to exclude any issues regarding safety engineering, fall prevention, pedestrian safety, workplace safety, premises safety, human factors, ergonomics, post-accident evaluations, and/or any opinion as to whether the condition at issue that caused Plaintiff’s fall presented a hazardous condition.
The Court notes that Randolph has experience in areas of acute injury, incident, safety guidelines as well as other related areas of medicine. However, it appeared that Randolph’s report did not include a majority of these areas. As such, the Court will deny and defer ruling until after traversal at the trial of this matter.
Held
The Court denied Plaintiff’s motion to exclude untimely identified and/or unqualified expert witnesses, David C. Randolph and Stacie Nunez, or alternatively, to limit their testimony.
Key Takeaway:
Plaintiff argued, without explanation, that Randolph is not qualified to opine as to safety engineering, fall prevention, pedestrian safety, workplace safety, premises safety, human factors, ergonomics, or post-accident evaluations, and as such moved to exclude Randolph’s opinions that are allegedly based on subjective interpretations and assumptions. The Court has reviewed Randolph’s curriculum vitae and noted that he has vast experiences in the medical field and found that he is more than qualified to opine, provide testimony and issue a report as to the causation of the subject incident.
Case Details:
| Case Caption: | Brune V. Petco Animal Supplies Inc |
| Docket Number: | 2:22cv6082 |
| Court: | United States District Court, Louisiana Western |
| Order Date: | October 10, 2024 |
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