Plaintiff Ellen Thomas brought this action against Defendant Smith’s Food & Drug Centers alleging negligence relating to a slip and fall in December 2020.
Defendant filed a motion to strike the testimony of Plaintiff’s expert, Dr. James J. Lynch, regarding future possible medical treatment and the cause thereof.
Plaintiff saw Lynch, at Swift Institute, on March 8, 2023, for low back pain, right lower extremity pain, and right knee pain. Because Plaintiff had failed conservative treatment measures, Lynch recommended a lumbar surgery to treat Plaintiff’s low back pain. Surgery was originally scheduled for April 27, 2023.
On October 5, 2023, the Court entered a discovery plan and scheduling order which set the expert disclosure deadline for January 4, 2024, the rebuttal expert disclosure deadline for February 5, 2024, and the discovery cutoff for March 4, 2024. On January 5, 2024, Plaintiff served her non-retained expert witness disclosure that included Lynch.
After the close of discovery, Defendant moved to exclude any evidence of future damages. The Court specifically denied Defendant’s motion to exclude future back surgery, finding Plaintiff’s failure to formally disclose Lynch as a witness harmless under the circumstances. Pursuant to that holding, the Court allowed a limited re-opening of discovery so that Defendant could depose and review the records and testimony of Lynch.
During his deposition, Lynch testified that Plaintiff’s low back pain was caused by the December 2020 slip and fall, which necessitated surgery. Defendant subsequently filed a motion to strike evidence, testimony, and opinions of Lynch. After Defendant filed the motion to strike, the Court ruled that because Lynch is a treating doctor who was disclosed as a non-retained expert, he did not need to be disclosed as a retained expert.
Neurosurgery Expert Witness
James J. Lynch, MD, FACS, FAANS is a board-certified neurosurgeon with 30 years of experience specializing in complex spine surgery, cervical disorders, degenerative spine, spinal deformities, trauma, tumor infection, and minimally invasive spine surgery. He is also proficient in endoscopic spine surgery techniques.
He earned his medical degree from Trinity College in Dublin, Ireland, followed by a Mayo Clinic residency in Rochester, MN.
Discussion by the Court
While the Defendant did not challenge Lynch’s qualifications as a medical expert, it filed a motion to strike his testimony on the grounds that it: (1) lacks a sufficient basis in facts and data, (2) is not the product of reliable principles and methods; and (3) is internally inconsistent and contradicts both Plaintiff’s testimony and her medical records.
Helpfulness to the Jury
The Court must consider whether Plaintiff has shown that Lynch’s medical expertise regarding low back pain and analysis of Plaintiff’s lumbar pathology will help the jury understand the evidence.
Lynch knows clinical guidelines for treating low back pain; he understands how to interpret medical records and imaging; and he personally treated Plaintiff for her low back pain. Assessing Plaintiff’s damages in this negligence case will require the jury to assess which of Plaintiff’s injuries were caused by the slip and fall. It will also require the jury to understand what future medical treatment is needed. Lynch’s specialized knowledge will be useful to the jury, and Plaintiff has met her burden to show as much.
Sufficient Facts or Data
Defendant argued that Lynch “based his opinions on the recommended surgery on Plaintiff’s statement that ‘she relates that her back pain and leg pain and knee pain began after the fall in December 2020.’”
Lynch has used sufficient facts and data to reach his conclusions regarding Plaintiff’s need for surgery and the cause of her low back pain. He used Plaintiff’s relevant medical records, which showed that Plaintiff had failed conservative treatment methods, as well as medical imaging, to reach his conclusions. Lynch also relied on his medical knowledge and experience.
These sources together form an appropriate basis for Lynch’s opinions. The Court thus held that Plaintiff has shown that Lynch has used sufficient data and facts to survive a motion to strike evidence, opinions, and testimony regarding future possible medical treatment and the cause thereof.
Reliable Principles and Methods
Defendant claimed that the record is “lacking in testing to confirm Lynch’s theories” such as neurological examinations or nerve studies to “determine the source of radiculopathy that Plaintiff alleged was from back pain caused from the incident;” or “review of prior medical records or films to determine when the actual cyst appeared in Plaintiff’s lower back that is the origin of her pain complaints.”
Plaintiff argued that Lynch conducted a differential diagnosis regarding causation of Plaintiff’s back injury after “taking her medical history, physically examining her as her treating physician, and reviewing her MRI and medical history.”
Lynch testified that, based on Plaintiff’s Magnetic Resonance Imaging (MRI) scan and X-rays, he recommended a particular lumbar surgery, that a majority of physicians would recommend for similar pathology. Based on those imaging tests, his appointment with Plaintiff, and a review of Plaintiff’s medical history, Lynch testified that he believed, to a reasonable degree of medical probability, that Plaintiff’s low back pain was caused by the December 2020 slip and fall.
Lynch also considered whether the low back pain was caused by something other than the slip and fall but found that even if Plaintiff had a lumbar disc bulge or cyst prior to the fall, it became symptomatic only after the fall. To the extent that Lynch did not adequately rule out alternative causes for Plaintiff’s injuries, this is a “credibility determination that goes to the weight of his opinions, not their admissibility.” The Court therefore found that Lynch’s testimony used reliable methods and principles.
Discrepancies Regarding Lynch’s Testimony
Defendant centers much of its motion to strike on alleged inconsistencies in Lynch’s deposition testimony, particularly focusing on his answers to questions regarding the cause of certain pathology seen in Plaintiff’s vertebrae.
Defendant contrasts Lynch’s testimony that he could not render an opinion, to a reasonable degree of medical certainty, as to when Plaintiff’s synovial cyst, disc bulge, and disc slippage first occurred, but did render such an opinion as to what caused Plaintiff’s low back pain, noting that issues like cysts and disc bulges could be asymptomatic, until an injury, like the one at Smith’s, precipitated symptoms.
Similarly, Defendant argued that Lynch’s testimony regarding the cause of Plaintiff’s low back pain contradicts both Plaintiff’s own testimony and her medical records, which, according to Defendant, indicate that her low back pain did not become a primary concern until 2022.
However, Lynch testified that her low back pain was not well-documented and may have worsened over time, ultimately resulting in her appointment with him in 2023.
Defendant failed to explain how these answers are irreconcilable and further neglects to cite to any case law standing for the proposition that such discrepancy is sufficient ground to strike evidence, testimony, and opinions of an expert.
The Court declined to strike Lynch’s testimony regarding future possible medical treatment and the cause thereof.
Held
The Court denied the Defendant’s motion to strike the testimony Plaintiff’s expert James Lynch, M.D.
Key Takeaway:
The mere possibility that an expert may be impeached is not a ground for exclusion. The Defendant failed to cite any case law supporting the proposition that such a discrepancy is sufficient to strike an expert’s evidence, testimony, or opinions.
Case Details:
| Case Caption: | Thomas V. Smith’s Food & Drug Centers, Inc. |
| Docket Number: | 3:23cv439 |
| Court Name: | United States District Court, Nevada |
| Order Date: | September 12, 2025 |
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