This a personal injury case in which the Plaintiff, Morgan Fitch, sought damages for injuries allegedly suffered while working as a conductor for Defendant BNSF Railway Company (BNSF) under the Federal Employers’ Liability Act (FELA). Fitch contends she was injured on February 28, 2020, while part of a train crew operating a BNSF train between Minot and Rugby in North Dakota. In her complaint, Fitch alleges the train went into an emergency stop which caused her to be thrown down and injure her right arm and shoulder. Fitch has alleged that she sustained neurological and cognitive injuries, including a traumatic brain injury. On November 20, 2024, Fitch disclosed medical records documenting a new symptom that was not previously disclosed.
She alleges left homonymous hemianopia (i.e. a loss of vision on the left side) was caused by the February 28, 2020, incident. Fitch has repeatedly taken a vision test with varying results. She failed several tests, which resulted in a determination that she cannot drive. However, she has passed the last test taken which allows her to legally drive. On December 27, 2024, Fitch disclosed the seventh report of Dr. Steven Lockman, her retained medical expert. Lockman’s supplement report offers opinions regarding Fitch’s visual field defect and a new diagnosis of Complex Regional Pain Syndrome (“CRPS”).
BNSF contended any evidence, documents, or testimony regarding the newly discovered medical symptoms alleged by Fitch should be excluded. Specifically, BNSF sought to exclude evidence that: 1) Fitch has lost portions of her field of vision, 2) Fitch cannot drive due to vision loss; and 3) Fitch has been diagnosed with CRPS. Fitch filed a response in opposition to the motions on January 6, 2025.
Physical Medicine & Rehabilitation Expert Witness
Steven David Lockman is triple board certified in Brain Injury Medicine, Physical Medicine & Rehabilitation (PM&R), and Electrodiagnostic Medicine (EMGs and nerve conduction studies). He has over 25 years of experience providing care for individuals with brain injuries and complex neurorehabilitation conditions.
Discussion by the Court
The deadlines to disclose amended and rebuttal reports were July 19, 2024, and September 13, 2024, respectively; however, the Plaintiff disclosed Lockman’s supplemental expert report on December 27, 2024.
Additionally, the supplemental expert report was served months after the discovery deadline, which was October 15, 2024. According to the newly disclosed report, Lockman saw Fitch on December 11, 2024, yet did not date his report until December 23, 2024. The Plaintiff waited until December 27, 2024, to serve the report.
The Plaintiff’s alleged vision loss and inability to drive was disclosed approximately two months prior to trial, and the Complex Regional Pain Syndrome diagnosis was disclosed less than one month before trial. The Court held that the late disclosures arguably deprive BNSF of the opportunity to fully conduct discovery and consult with experts on the newly alleged symptoms prior to trial.
The incident that caused Fitch’s injuries occurred on February 28, 2020. This action has been pending for over three years and trial has been continued previously. The new medical conditions were disclosed more than four (4) years after the incident. The admission of evidence regarding the Plaintiff’s diagnosis of CRPS, her alleged loss of vision, and her inability to drive would prejudice BNSF since trial is less than one month away. During a telephone status conference with the parties on January 7, 2025, counsel for the Plaintiff stated they would not be introducing any evidence at trial concerning the Plaintiff’s inability to drive so that subject matter is a non-issue, and such evidence is prohibited at trial.
Analysis
As to the condition of CRPS, the Plaintiff is precluded from presenting evidence at trial of her recent CRPS diagnosis. In Lockman’s report dated December 23, 2024, he opined that it was his “impression” that Fitch “met the Budapest criteria for the diagnosis of Complex Regional Pain Syndrome (CRPS).” As recognized by Lockman, this is a “new diagnosis” that warrants more aggressive treatment for pain management. The diagnosis appears to be a progression of the patient’s brachial plexopathy condition.
It is undisputed that Fitch has been diagnosed with a right brachial plexopathy. Lockman can opine on his observations concerning Fitch’s brachial plexus injuries, consistent with the medical records he has reviewed, combined with his own medical records, his expert reports, disclosures, and deposition testimony. Lockman can also opine on the diagnosis, prognosis, and the care and treatment needed to address the brachial plexus injuries, as well as the other medical conditions he has diagnosed, treated, and addressed to date.
None of that information is a surprise nor is it prejudicial. Lockman’s medical records and reports, and his depositions disclose that diagnosis, treatment, and prognosis. BNSF has retained expert witnesses to rebut the diagnosis. However, Lockman will be precluded from presenting specific testimony on the “new diagnosis” of CRPS made on December 23, 2024, as discussed in his most recent report. As a practical matter, neither party is prejudiced by this very limited preclusion of testimony. The reality is that the care, treatment, and pain management for a brachial plexopathy condition differs very little from the care, treatment, and pain management of CRPS.
Held
The Court granted in part the Defendant’s motion to exclude the testimony of Steven Lockman.
Key Takeaway:
Parties have a continuing duty to supplement expert opinions under Rule 26(e) of the Federal Rules of Civil Procedure. The failure to timely disclose new medical conditions is certainly not harmless as it may significantly alter the scope of damages in any case.
Case Details:
| Case Caption: | Fitch V. BNSF Railway Company |
| Docket Number: | 1:21cv181 |
| Court: | United States District Court, North Dakota |
| Order Date: | January 10, 2025 |
Leave a Reply