This case arises out of injuries sustained by Brandon Jensen on his bicycle when he collided with a semi-truck who made a left turn through his lane of travel. The semi-truck was driven by Defendant Michael Beale. Beale was working for Crete Carrier at the time of the accident.
The Plaintiffs planned to introduce the testimony of Dr. Zachary L. McCormick, their medical expert, who will opine that Jensen’s future medical expenses will cost approximately $777,955.
McCormick bases his estimates on the “historical cost of care available to me from the University of Utah.” The Defendants argued that the Court should exclude McCormick’s report.
Physical Medicine And Rehabilitation Expert Witness
Dr. Zachary Lennon McCormick, MD is a board-certified specialist in both Pain Medicine and Physical Medicine & Rehabilitation (PM&R).
He received his MD at the University of Pennsylvania, completed a PM&R residency and fellowship at Northwestern University (The Rehabilitation Institute of Chicago). Following training, he served as a faculty member at the University of California San Francisco. McCormick currently serves as a Professor and Vice Chair of PM&R, Ambulatory Chief Value Officer, Chief of the Division of Spine and Musculoskeletal Medicine, Co-Director of the Endoscopic and Percutaneous Spine (EPS) Destination Care Program, and the Founding Director of the Interventional Spine and Musculoskeletal Research (INSPIRE) program. He founded the Interventional Spine and Musculoskeletal Medicine (ISMM) Fellowship Program at the University of Utah and previously directed this program for 6 years.
Just over a week ago, the Utah Supreme Court issued a decision holding that special damages for past medical expenses should be measured by the negotiated—not the gross—charge for services. The Defendants argued that the Court should exclude McCormick’s report for failure to comply with the Utah Supreme Court’s opinion.
Although McCormick’s report focused on future, not past, medical expenses, the Defendants argued that the same logic applies and that any estimates for future services based on gross charges are inadmissible. The Defendants also maintained that McCormick’s report lacks foundation due to his failure to explain whether his estimates are based on gross charges or other rates.
The Court held that the Plaintiffs may introduce the expert testimony of McCormick to the extent that his report presents evidence of gross charges for future medical expenses. But the Defendants may present evidence of the standard discount available to self-pay patients for those charges. In addition, the Defendants may raise questions about the foundation for McCormick’s testimony to the extent that his report is based on other measures of future medical expenses.
Held
The Court declines to exclude the expert testimony of Dr. Zachary McCormick but clarified that the Defendants may introduce evidence concerning typical medical billing discounts for self-pay or uninsured individuals.
Key Takeaway:
The Court assumes that McCormick’s expert report is based on gross charges. The Court denied without prejudice the Defendants’ challenge to his report to the extent that their challenge is based on the lack of foundation about whether the figures represent gross charges or payer-negotiated charges. The Court will question McCormick about the source of his figures before determining the admissibility of his testimony.
Case Details:
Case Caption:
Jensen V. Crete Carrier Corporation
Docket Number:
1:23cv105
Court Name:
United States District Court for the District of Utah, Northern Division
Order Date:
November 10, 2025
Please refer to the blog previously published about this case:
This case relates to the incarceration of Plaintiff, Nocomie Tomia Moore, in the Spokane County Jail, as well as medical care and treatment she received from Registered Nurse Tsubasa Bruce, Physician Assistant Denae Paul, and NaphCare, Inc.
Moore brought claims for violations of Washington State’s Medical Malpractice statute. Defendants sought to exclude Plaintiff’s expert witness, Jonathan Pasma, D.O., as not meeting the required standards to offer such testimony.
Defendants argued that Pasma should be excluded for a number of reasons: (1) his disclosure is incomplete as he does not specifically reference any Defendant or describe in detail data or facts considered in rendering his decision; (2) his report and testimony is improperly offered as a matter of Washington law; and (3) his report and testimony do not satisfy Federal Rule of Evidence 702 or Daubert.
Physical Medicine And RehabilitationExpert Witness
Jonathan Pasma received his Doctorate of Osteopathy from Pacific Northwest University of Health Sciences in 2012, and he is currently a licensed, board certified physician in Physical Medicine & Rehabilitation.
Exclusion pursuant to Washington State Medical Malpractice Law
In Washington, an expert must articulate what a reasonable medical professional would or would not have done, and then specify how a Defendant failed to act in that manner and show that this failure was the cause of injury.
The Court held that Pasma’s report did not contain any sort of standard on which he based his opinion. He did not analogize the present case with any hypothetical situation, study on which he had reviewed, or real past treatment in which a patient presenting with a similar injury to Plaintiff received a different standard of care than what was provided. He offered nothing by way of his perspective in the practice of medicine that established how a specific member of the medical team at the Spokane County Jail should have reacted; he instead drew cursory conclusions.
Exclusion based on Federal Rule of Evidence 702 and Daubert
Defendants contended that Pasma’s report and testimony is neither reliable nor relevant, as his opinion is based on an inaccurate review of the record, he lacks the specialized knowledge of treatment of patients in a corrections setting, and he does not apply the higher degree of analysis typically found in an expert report.
First of all, Pasma is a physiatrist and testified as his deposition that he has no experience working in an urgent care, emergency room, or corrections setting, and has not independently diagnosed a hip fracture since residency.
Second, the Court found Pasma’s account of the factual background of the events of this case scant and arguably incorrect.
Basically, Pasma’s report did not contain any analysis of a standard of care and any Defendant’s specific breach. He provided a generalized conclusion that “Ms. Moore’s care, specifically timely triage, was improperly delayed 2 days, which of course implies that unnecessary pain/suffering occurred,” but offered nothing to support why this contention was true from his expert position as a physician. Moreover, he stated in his deposition that he was not asserting any violation of a standard of care by a nurse involved, nor did he want to provide a “label,” for the level of care provided by the physician’s assistant in this case.
Held
The Court excluded the testimony of Plaintiff’s expert witness, Jonathan Pasma.
Key Takeaway:
Even if the Court could look beyond the lack of reliability offered by Pasma’s report, the opinions he offers also lack the requisite relevancy such that offering them to a factfinder would be helpful. Rule 702 requires that an expert witness be vested with “scientific, technical, or other specialized knowledge” that “will assist the trier of fact” in their understanding of the evidence. If satisfied, “a witness qualified as an expert . . . may testify thereto in the form of an opinion.”
This case stems from a rear-end, chain-reaction accident. Plaintiffs alleged that, on or about June 16, 2019, Plaintiff Miranda Allen was driving northbound on Interstate 5 in Skagit County, Washington, with Plaintiff J.M. as a passenger in her vehicle.
While Plaintiff Allen’s vehicle was stopped in traffic, Defendant Martin Barratt, also driving northbound on Interstate 5, rear-ended Plaintiff Allen’s vehicle, “caus[ing] Plaintiff Allen’s vehicle to crash into the rear of the vehicle directly in front of them.” As a result of the accident, Plaintiff Allen allegedly sustained substantial and permanent injuries.
On February 3, 2025, the Parties timely filed respective motions to exclude expert testimony. First, Plaintiffs filed a motion to exclude the expert testimony of Dr. Michael Hatzakis, Defendants’ physiatrist expert. Later that day, Defendants filed a motion to exclude the expert testimony of Dr. Leah Keylard, Plaintiffs’ audiologist expert.
Physical Medicine And RehabilitationExpert Witness
Dr. Michael Hatzakis has been board certified in Physical Medicine and Rehabilitation for the last 20 years.
Hatzakis worked as an engineer for almost a decade before entering medical school at Stanford University School of Medicine in California. While attending medical school, he also worked in the department of Electrical Engineering at Stanford, Neurosurgery and Interventional Radiology. Among other projects, he developed neural prosthetic devices under a joint program between Stanford medical school and the Department of Electrical Engineering. He did his residency training in Physical Medicine and Rehabilitation at Thomas Jefferson University Hospital in Philadelphia, PA.
Over the last five years, through his leadership in the American Academy of Physical Medicine and Rehabilitation (AAPM&R), he has spearheaded one of the most ambitious “big- data” projects to improve the quality of care for individuals with low back pain, and, with neurological disorders.
She has a strong background in diagnostic and rehabilitative audiologic techniques. She holds a Doctor of Audiology (Au.D.) from the Arizona School of Health Sciences.
Plaintiffs sought to exclude the expert testimony of Michael Hatzakis as insufficient under Federal Rule of Evidence 702.
Plaintiffs represented that Hatzakis produced an initial expert report in November 2023 where he opined, inter alia, that Plaintiff Allen’s injuries had been proximately caused by the motor vehicle collision at issue in this case.
According to Plaintiffs, Hatzakis’ opinions in the November 2023 report concurred with other expert testimony in the case: Hatzakis agreed that Allen suffered from the injuries and damages the other expert and independent medical examiners had found.” On November 26, 2024, however, Hatzakis provided Plaintiffs with an addendum to his original report. In the addendum, Hatzakis diverged from his original findings, opining that “none of Allen’s injuries or damages were caused by the collision, in direct contrast to his first report.”
Plaintiffs’ Grounds for Exclusion
First, Plaintiffs asserted that “Hatzakis has rendered opinions and conclusions which are contrary to scientifically accepted principles, and are based upon inaccurate and incomplete information.” Second, Plaintiffs asserted that Hatzakis’ opinions and conclusions “are . . . in direct contrast to the one other matter [Plaintiffs’ counsel] could find.”
a. Opinions “Contrary to Scientifically Accepted Principles”
Opinions and conclusions are intellectual constructs that are dissimilar from, and incomparable to, scientific principles. In and of itself, an opinion or conclusion cannot contradict a scientific principle, unless it is an opinion or conclusion that specifically addresses the merits of that principle.
A sum, for example, cannot be “contrary” to, say, arithmetic; an x-ray impression cannot be “contrary” to radiology. To the extent that Plaintiffs intended to assert that Hatzakis’ opinions and conclusions are based on or derived from non-scientific principles—or, alternatively, are incorrectly based on or improperly derived from scientific principles—Plaintiffs do not sufficiently demonstrate that this is so. The Court held that the Plaintiffs relied on conclusory statements and did not connect their lengthy recitation of the rules of evidence to their cursory discussion of how Hatzakis’ testimony transgresses those rules.
Moreover, Plaintiffs’ argument that Hatzakis’ opinions and conclusions are based upon inaccurate and incomplete information also failed. Plaintiffs did not provide any indication that Hatzakis reviewed any data that were factually wrong or otherwise erroneous. Plaintiffs suggested that Hatzakis might have based his opinions on an incomplete set of records, but not that those records were, however scant, faulty. According to the Court, the fact that an expert might have based their opinion on incomplete records is not sufficient grounds for exclusion under the Daubert standard. Rather, such a critique “goes to the weight of his opinions rather than their admissibility.”
b. Opinions “in Direct Contrast” with Other Opinions
As to Plaintiffs’ second basis for excluding Hatzakis’ testimony, it simply did not make sense. Plaintiffs asserted that Hatzakis’ opinions and conclusions are “in direct contrast to the one other matter [Plaintiffs’ counsel] could find, absent providing an adequate testimony list.” Taking Plaintiffs’ argument at face value, the Court is at a loss to see how Hatzakis’ opinions in an unrelated case have anything to do with his opinions in this one. Unless the facts, circumstances, and damages that were the subject of Hatzakis’ opinions in the other matter are directly comparable to Plaintiff Allen’s injuries and damages here—and Plaintiff does not provide any evidence indicating that they were—then it is not clear how those opinions and conclusions could logically be “in direct contrast” to the opinions and conclusions at issue in this case.
To the extent Plaintiffs asserted that Defendants should have provided more robust disclosure with respect to Hatzakis’ testimony either before or after his deposition, the Court noted that Plaintiffs had Hatzakis’ list of testimony as early as November 20, 2023, yet waited more than a year—until December 5, 2024, one day after discovery motions were due and just 11 days before Hatzakis’ scheduled deposition on December 16, 2024—to raise the issue of the adequacy of the list of testimony.
c. Opinions Based on “Erroneous Assumptions”
Finally, as to Plaintiffs’ third basis for excluding Hatzakis’ testimony, Plaintiffs did not identify any of the purported “erroneous assumptions” not in the record upon which Hatzakis’ opinions are based. As discussed above, it appears that Plaintiffs objected to the size of the body of evidence that Hatzakis reviewed when forming his opinions, not the evidence itself. The Court ruled that such a deficiency can be borne out in cross examination and need not form the basis for exclusion.
Leah Keylard
Plaintiffs chose to list Dr. Leah Keylard, an audiologist, as a retained expert witness under Rule 26(a)(2)(B), meaning she was required to provide a written report.
Defendants sought to exclude the testimony of Keylard. Keylard opined on Plaintiff Allen’s alleged injuries. Unlike Plaintiffs’ other expert reports disclosed under Rule 26(a)(2)(B), Keylard’s report is captioned as a “chart note,” not an expert report, and it is only three pages long.
Although Keylard’s report refers to a “[r]eview of medical records as well as described history of noise provided by the patient,” the report does not discuss any specific documents or medical records that informed Keylard’s opinion and provides only a cursory summary of the results of three diagnostic tests. Indeed, the “report” reads much like it is labeled: as a healthcare provider’s note prepared subsequent to a patient encounter, not a studied synthesis and analysis of diagnoses and data from multiple sources. Defendants argued that the brevity of Keylard’s report, as well as its lack of specific detail, particularly with respect to the sources upon which Keylard has based her conclusions, leaves the report short of the requirements that Rule 26(a)(2)(B) prescribes for an expert report.
Defendants’ Grounds for Exclusion
a. Rule 26(a)(2)(B)
As Defendants pointed out, Keylard’s report is a “‘chart note’ and not a full report.” The Court held that a “chart note” is not a proper expert report under Rule 26(a)(2).
Indeed, when presented with expert reports similar to that of Keylard, courts have excluded the testimony as having been insufficiently disclosed under Rule 26(a)(2)(B).
Keylard’s report refers to “records relating to [her] independent medical evaluation but d[oes] not provide records of that evaluation,” leaving Defendants “[without] the necessary records to counter-designate a rebuttal expert.”
For their part, Plaintiffs argued, inappositely, that Keylard’s Rule 26(a)(2)(B) report was sufficient because “Defendant[s] had an opportunity to depose Keylard and chose not to.” This is beside the point. The relative sufficiency of a Rule 26(a)(2)(B) report is not enhanced by the opposing party’s decision not to depose its author—in fact, the rule contemplates the exact opposite relationship between disclosures and depositions.
b.Rule 37(c)(1)
Plaintiffs argued that Keylard’s testimony should not be excluded, because “[e]xclusionary sanction based on discovery violations are [sic] generally improper absent undue prejudice to the opposing side.”
This misstates the law, which provides that “information may be introduced if the parties’ failure to disclose the required information was substantially justified or harmless.”
Plaintiffs relied on “Defendant[s’] fail[ure] to depose Keylard” as demonstrative that the deficiencies in Keylard’s report were substantially justified or harmless.
As discussed above, this is not a germane argument with respect to violations under Rule 26 and exclusion under Rule 37. As the Seventh Circuit has held, “the [expert] report must be complete such that opposing counsel is not forced to depose an expert in order to avoid ambush at trial; and moreover the report must be sufficiently complete so as to shorten or decrease the need for expert depositions and thus to conserve resources.”
The Court thus found that Plaintiff’s deficient Rule 26(a)(2)(B) disclosure with respect to Keylard was neither substantially justified nor harmless. Moreover, given that discovery is closed, the deadline for dispositive motions has lapsed, and trial begins in approximately two months, the deficiencies cannot be easily remedied without radically reworking this case’s longstanding schedule.
Held
The Court denied Plaintiff’s motion to exclude defense expert Michael Hatzakis.
The Court granted Defendants’ motion to exclude Dr. Leah Keylard.
Key Takeaways:
Opinions and conclusions are intellectual constructs that are dissimilar from, and incomparable to, scientific principles. In and of itself, an opinion or conclusion cannot contradict a scientific principle, unless it is an opinion or conclusion that specifically addresses the merits of that principle.
Plaintiffs had plenty of time between the issuance of the most recent scheduling order and the lapsing of deadline for discovery motions to try to resolve the issue with Defendants and, if necessary, file an appropriate motion with the Court to obtain any needed information prior to Hatzakis’ deposition.
Plaintiff Manuel G. Milan commenced this action against New Jersey Transit Rail Operations, Inc. seeking damages for injuries sustained to his ankle and low back under the Federal Employers’ Liability Act.
Defendant challenged the expert medical opinions of Dr. Aaron Bellew, DPM and Dr. Jason Smith, M.D. Bellew and Smith offered testimony as to the Plaintiff’s disability, permanency of injuries and limitations.
Podiatry Expert Witness
Aaron Bellew holds a Bachelor’s degree from St. Francis College and a medical degree from the New York College of Podiatric Medicine. He completed a four-year residency in Foot & Ankle Trauma/Reconstructive Surgery at New York Hospital, Queens, and has advanced training in various surgical techniques from New York-Presbyterian/Columbia University Medical Center. He is a member of the American College of Foot & Ankle Surgeons and the American Podiatric Medical Association.
Dr. Jason Smith is board-certified in physical medicine and rehabilitation. He earned his medical degree from UMDNJ-New Jersey Medical School, completed a physiatry residency at JFK-Johnson Rehabilitation Institute (serving as chief resident), and a fellowship in interventional spine and sports medicine at Coordinated Health in Bethlehem, PA. He practices at Atlantic Medical Group, emphasizing patient-centered care.
The Defendant moved to dismiss the Plaintiff’s case, arguing their experts’ opinions were inadmissible. The Plaintiff countered that expert testimony wasn’t even needed, but if it was, one expert (Bellew) was qualified. The Court, noting the Plaintiff’s burden to prove admissibility, found the parties’ arguments regarding Bellew insufficient for a ruling. Therefore, the Defendant’s motion was denied without prejudice on that point, allowing them to re-argue Bellew’s admissibility and address the qualification, reliability and fit prongs later. However, the Plaintiff conceded the inadmissibility of the other expert’s (Smith) causation opinion, so the Court granted the Defendant’s motion regarding Smith.
Because the Defendant failed to adequately brief the Daubert issues, the Court is not in a position to evaluate the Plaintiff’s ability to prove medical causation.
Held
The Court granted in part Defendant’s motion with respect to excluding Dr. Jason Smith’s opinion.
Key Takeaway:
While the Court excluded one expert’s opinion (Smith) due to the Plaintiff’s concession, it deferred ruling on the admissibility of another expert’s opinion (Bellew) due to the Defendant’s inadequate legal arguments, specifically regarding the Daubert standards. Furthermore, the Court was unable to rule on medical causation due to the Defendant’s improper briefing of the Daubert issues. This emphasizes the importance of proper legal briefing, especially regarding expert testimony, and the Court’s adherence to Daubert standards for admissibility.
Case Details:
Case Caption:
Milan V. New Jersey Transit Rail Operations, Inc.
Docket Number:
2:18cv13735
Court:
United States District Court for the District of New Jersey
William Harrison Sims was injured when his BMW’s airbag deployed improperly, sending shrapnel into his face. He sued BMW, alleging negligence and strict liability. To prove the extent of his injuries and future medical needs, Sims presented expert testimony from Dr. Craig Lichtblau, a board-certified physician specializing in physical medicine and rehabilitation and brain injury medicine.
Physical Medicine & Rehabilitation Expert Witness
Craig Lichtblau is board certified in physical medicine & rehabilitation and board certified in brain injury medicine through the American Academy of Physical Medicine & Rehabilitation. He has a robust clinical practice, maintains staff privileges at five hospitals, and has impressive credentials in both leadership and academic roles.
The Defendants launched two main challenges, both substantive and procedural, aiming to exclude Lichtblau’s crucial evidence:
Substantive Challenge:
BMW argued Lichtblau’s report merely “parroted” the opinions of other experts, particularly regarding future medical needs. They pointed to a chart in his report that referenced other doctors’ recommendations. Their argument was that Lichtblau was simply compiling and repeating the opinions of these other experts, rather than providing his own independent medical assessment.
Plaintiff emphasized that life care planners, like Lichtblau, routinely rely on physicians’ recommendations to project future medical needs. Excluding such reliance would make the expert’s opinion unreliable.
They highlighted that Lichtblau’s report was based on a comprehensive rehabilitation evaluation, including physical examinations, medical record reviews, and detailed analyses, demonstrating independent judgment.
The Court found BMW’s arguments underdeveloped and lacking in relevant legal support. It acknowledged that experts in this field legitimately rely on other medical professionals. The Court reviewed the extensive work done by Lichtblau and determined that his opinions were well grounded, and not simply parroted.
Procedural Challenge:
BMW also objected to Lichtblau’s testimony on the grounds that he failed to appear for a scheduled deposition. This objection was a procedural one, arguing that the expert had not cooperated with the discovery process, potentially prejudicing the defense’s ability to prepare its case.
Sims’ team responded that the scheduled deposition was set after the discovery deadline. They pointed out that BMW had not made any attempt to compel the deposition before the deadline. They argued that BMW was attempting to use a procedural technicality to exclude valid expert testimony.
The Court emphasized that BMW failed to adhere to procedural rules by scheduling a deposition after the discovery deadline and not seeking to compel the deposition earlier.
The Court stated that they would not allow the Defendant to seek sanctions for a deposition that they scheduled outside of the discovery window.
Held
The Court denied the Defendants’ motion to exclude the testimony of Dr. Craig Lichtblau or, in the alternative, for sanctions regarding Plaintiff’s failure to present Lichtblau for deposition.
Key Takeaways:
Experts, particularly in fields like life care planning, are often allowed to rely on the opinions and findings of other experts (like treating physicians) as a foundation for their own analyses.
Parties must adhere to procedural rules, such as discovery deadlines, when seeking to challenge expert testimony. Failure to follow these rules can result in the Court rejecting objections.
Please refer to the blogs previously published about this case:
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.
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.
The Plaintiff, Kimberly Allcorn, brought this action seeking the recovery of damages for injuries she allegedly sustained in a collision between an automobile she was driving and a tractor trailer being driven by the Defendant Pamela Kay Beach while in the course and scope of her employment with the Defendant Western Flyer Express, LLC.
The Defendants designated Michael Winklemann, MD as a medical expert who would offer opinions — based on his review of the Plaintiff’s medical records and his independent medical examination (IME) of the Plaintiff to be conducted subject to the Plaintiff’s availability — as to the Plaintiff’s pre-existing conditions, her injuries allegedly sustained in the accident and the treatment thereof.
Winklemann’s Testimony
After Winklemann conducted his IME of the Plaintiff, the Defendants provided the Plaintiff with Winklemann’s signed, written report identifying the medical records he reviewed, describing in detail the IME he performed and concluding that the Plaintiff does have very clear evidence of residual central cord symptomatology with good overall compensation. A history of previous post-concussive syndrome is very plausible, but not well documented.
A few days later, the Defendants provided the Plaintiff with a written “Addendum” to Winklemann’s report. The addendum stated that the patient does not need any assistive devices at this point, although she has some weakness in her toe extensors and is recommended to wear supportive footwear which would not require a particular orthosis.
Michael Winklemann is a physician with NewSouth NeuroSpine. He is Board Certified in Physical Medicine and Rehabilitation. He has held a medical license since 1993.
Defendants argue that the Plaintiff’s challenge should be deemed waived under the local rule
Local Uniform Civil Rule 26(a)(3) states, “Challenges as to inadequate disclosure of expert witness(es) must be made no later than thirty days before the discovery deadline or will be deemed waived.” Because the Plaintiff did not file her motion until November 1, 2024 — two weeks after the October 18, 2024 discovery deadline – the Defendants argue that her challenge should be deemed waived under the local rule. However, as the Defendants acknowledge, they did not provide the Plaintiff with Winklemann’s report and addendum until less than 30 days remained in the discovery period. As such, the Plaintiff could not possibly have met the local rule’s deadline for challenging the adequacy of Winklemenn’s report, and the Court will not penalize her for that.
The Plaintiff filed her motion within 30 days after receiving Winklemann’s addendum and before the deadline for dispositive and Daubert-type motions passed. Under the circumstances, the court will decline to find that the Plaintiff waived her challenge. For the most part, however, the Court finds that her challenge fails on its merits.
Plaintiff argues that Winklemann’s report is inadequate
As to the adequacy of Winklemann’s report, Federal Rule of Civil Procedure 26(a)(2)(B) requires that the report contain, among other information, a complete statement of all opinions the witness will express and the basis and reasons for them; the facts or data considered by the witness in forming them; and any exhibits that will be used to summarize or support them.
The Plaintiff argues that Winklemann’s report lacks sufficient detail in these regards and does not clearly state Winklemann’s opinions or the bases for them. The Court disagrees.
The report identifies the documents — including the medical records — that Winklemann reviewed, and it describes in detail the Plaintiff’s history of present illness, past surgical history, current medications, social history, family medical history, pain level, and review of systems. It also states in detail the results of Winklemann’s physical examination of the Plaintiff, including tests performed. The report contains his impression of the Plaintiff’s medical history, as well as his diagnosis of residual central cord symptomatology with good overall compensation. The report’s addendum states Winklemann’s opinions as to the Plaintiff’s current and future treatment needs.
The Court has little difficulty discerning what Winklemann’s opinions are, the bases for them, and the facts or data he considered in forming them. Although the report does not include exhibits, Rule 26(a)(2)(B) does not require the inclusion of exhibits unless the expert will use exhibits to summarize or support his opinions. If an expert’s report contains no exhibits, this means that the expert may not use exhibits to summarize or support his opinions at trial – it does not mean that the expert may not testify at trial.
Federal Rule of Civil Procedure 702
In her motion challenging the admissibility of Winklemann’s testimony, the Plaintiff does not challenge Winklemann’s qualifications or the reliability of Winklemann’s methodology or the facts underlying his opinions. Rather, the Plaintiff argues that Winklemann’s opinions are not relevant to the issues of liability or damages in this case and will not assist the trier of fact. Of course, the Defendants dispute this contention, and the Court struggles to see how, in a personal injury case in which the Plaintiff’s medical conditions and treatment needs are at issue, a medical expert’s testimony as to the Plaintiff’s medical conditions and treatment needs are irrelevant.
The Court declined to find that Winklemann’s testimony is irrelevant and inadmissible at this time. The Plaintiff may raise her relevancy objection at trial, during which the Court will be in a better position to assess the relevance of the particular testimony to which she objects based upon the specific issues then before the court. Notwithstanding the above discussion, the Court is persuaded by the Plaintiff’s challenge as to one aspect of Winklemann’s report and expected testimony – his statement, “A history of post-concussive syndrome is very plausible, but not well documented.” The Court agreed with the Plaintiff’s contention that this statement is vague, speculative, and will not help the trier of fact to understand the evidence or to determine a fact in issue.
Held
The Court granted in part and denied in part the Plaintiff’s motion to exclude testimony of Michael Winklemann.
Key Takeaway:
In a personal injury case, a medical expert’s testimony as to the Plaintiff’s medical conditions is relevant especially when the Plaintiff’s treatment needs constitute the core issue. However, Winklemann’s testimony indicating a history of post-concussive syndrome failed to persuade the Court.
Case Details:
Case Caption:
Allcorn V. Beach Et Al
Docket Number:
1:23cv121
Court:
United States District Court, Mississippi Northern
Plaintiff Towanda R. Futrell filed this personal injury action on August 28, 2023. The action arises from a motor vehicle accident on Interstate 64 on December 16, 2022, when a tractor-trailer owned by AV Leasing, LLC, leased by Triton Logistics, Inc., and driven by Daniel Cramer, collided with a bus on which Futrell was a passenger.
Pursuant to Rule 26(a)(2) of the Federal Rules of Civil Procedure, on May 28, 2024, Futrell disclosed Dallas Lea, II, M.D. (“Dr. Lea”), as an expert witness in the field of orthopedic surgery who may be called to testify at trial. Futrell disclosed that Lea was expected to testify to: (a) Futrell’s injuries, including a broken right ankle, sprained left ankle, broken eye socket, and broken left jaw; (b) Futrell’s ankle surgeries; (c) Futrell’s “extensive physical medicine and rehabilitation”; and (d) his opinion that Futrell’s injuries, medical treatment, hospitalizations, “past and future pain and suffering, past and future medical expenses and medical costs and life care medical costs, and economic or non-economic related damages” are “a proximate cause of Defendant Daniel Cramer’s negligence.”
Futrell provided Defendants with a copy of Lea’s curriculum vitae. On or before July 9, 2024, Futrell also provided Defendants with Lea’s expert report-a life care plan for Futrell. The life care plan outlines Futrell’s treatment following the accident, Lea’s opinion that Futrell “will have chronic symptoms and residual disabilities resulting from the accident,” and a table containing Lea’s recommendations for Futrell’s “current and future care needs.”
On September 17, 2024, Defendants filed the pending motion in limine to exclude Lea’s opinion because he was not properly designated as an expert in life care planning and the opinions in his life care plan lack the requisite foundation.
Lea was not properly designated as an expert in life care planning
First, the Defendants asserted that Lea was not properly designated as an expert in life care planning. The Defendants noted that Lea was designated as an expert in orthopedic surgery who was expected to testify about Futrell’s injuries, Futrell’s treatment, and his opinion that Futrell’s injuries, treatment, past and future pain and suffering, past and future medical expenses, and life care costs were proximately caused by Defendant Daniel Cramer’s negligence.
Lea’s opinions lack the proper foundation and are speculative
Next, Defendants argued that Lea’s opinions lacked the proper foundation and were speculative. Lea never treated Futrell and did not interview her or her treating physicians prior to developing the life care plan. The life care plan was drafted based on Lea’s review of Futrell’s medical records.
Physical Medicine & Rehabilitation Expert Witness
Dallas Alexander Lea, II M.D. is an internationally recognized spinal cord injury physician, fellowship-trained, and double-boarded in Physical Medicine and Rehabilitation (PM&R) and Spinal Cord Injury (SCI) Medicine.
Errors in the Rule 26(a)(2) disclosure are harmless as Dr. Lea’s CV, life care plan, and deposition clarify his expertise and outline his proposed expert testimony
Futrell asserted that Defendants were provided with a copy of Lea’s CV, which put them on notice that Lea was a life care planner, board certified in physical medicine and rehabilitation, and Defendants were provided with his life care plan on July 5, 2024. During Lea’s deposition, Futrell’s counsel clarified that the designation of Lea as an orthopedic surgeon was due to a “typographical error.” Lea testified that he was not an orthopedic surgeon, but a specialist in spinal cord injury and in physical medicine and rehabilitation. Lea explained that he would not be testifying about causation or negligence, rather he would testify to Futrell’s “injuries and future care and needs,” and that he was asked to “review records, review the case, and produce a life care plan.”
The Court found that Futrell’s failure to identify Lea as an expert to testify about Futrell’s life care plan in the Rule 26(a)(2) disclosure served on May 28, 2024, was harmless. The Rule 26(a)(2) disclosure was inaccurate. Futrell’s explanation for the inaccurate disclosure—that it was a “typographical error”—is less than satisfactory.The inaccuracy also goes beyond simply misstating that Lea is an orthopedic surgeon, by wrongfully disclosing that Lea will testify about the cause of Futrell’s injuries. The disclosure did, however, include Lea’s expected testimony about Plaintiffs future medical care and expected costs over her lifetime. The provision of Lea’s CV and life care plan clarified his expertise and proposed testimony and Defendants were further able to clarify this with his deposition taken September 6, 2024.
Lea’s proposed testimony concerning Futrell’s life care plan is based on his medical expertise and will be helpful to a jury
Defendants also challenged several of the line items in Lea’s life care plan table, specifically house cleaning, ophthalmologist evaluations, an ear, nose, and throat evaluation, yearly visits to her primary care physician, and psychological counseling.
Defendants argued Lea did not know whether Futrell has familial support to take care of house cleaning or to what extent she has suffered emotional injuries and needs counseling. They concluded that the life care plan is speculative and not tailored to Futrell’s unique needs, and Futrell “provides no indication why Lea’s life care plan is more plausible than other possibilities of what she will require in the future.”
Lea explained that: (1) Futrell’s chronic symptoms and residual disabilities “were evident” in her medical records (2) the monthly housecleaning expense is for deep cleaning (3) the ophthalmologist evaluation and ear, nose, and throat evaluation were a precaution due to her jaw fracture and broken eye socket (4) the yearly visit to her primary care physician would be in addition to a routine yearly physical and would be necessary for pain management and pain management medications and (5) psychological counseling was included because of the mention of Futrell’s anxiety in the medical record.
The Court held that Lea reviewed and summarized Futrell’s past treatment, current treatment regimen, and future treatment recommended by her physicians. Lea then developed a life care plan projecting Futrell’s future costs based on this review. A certain amount of speculation is inherent in a life care plan that projects what will be needed in the future and hinges on future events. Permitting cross-examination regarding the facts and data Lea relied on to arrive at the future costs will allow the fact finder to determine the appropriate weight to assign to Lea’s testimony.
Held
The Court held that permitting Lea to testify about the life care plan he outlined for Futrell would not disrupt the trial. Lea, however, will not be permitted to testify about the cause of Futrell’s injuries and his testimony will be limited to the opinions outlined in his life care plan.
The Court found that Lea is qualified to testify as an expert witness and he is proposing to testify to relevant medical knowledge that will assist the trier of fact in understanding a fact in issue. Nor does the Court find that the probative value of such testimony is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. The Court found that Defendants’ concerns about the reliability of Lea’s testimony may be properly raised during cross-examination, but they are insufficient to persuade the Court to exclude Lea.
The Court denied Defendants’ motion in limine to exclude the expert opinions of Dallas Lea, II, M.D.
Key Takeaways:
The Rule 26(a)(2) disclosure was inaccurate. Futrell’s explanation for the inaccurate disclosure—that it was a “typographical error”—is less than satisfactory.The inaccuracy also goes beyond simply misstating that Lea is an orthopedic surgeon, by wrongfully disclosing that Lea will testify about the cause of Futrell’s injuries.
A certain amount of speculation is inherent in a life care plan that projects what will be needed in the future and hinges on future events.
Case Details:
Case Caption:
Futtrell V. Av Leasing, LLC
Docket Number:
4:23cv118
Court:
United States District Court for the Eastern District of Virginia, Newport News Division
Easter filed a claim with UNUM, the issuer of his long-term disability insurance policy, asserting he was disabled since December 21, 2019 and unable to continue practicing dentistry. UNUM initially determined he was totally disabled pursuant to the policy and started to pay him benefits. But his claim was later closed after UNUM determined that neither [an] injury or sickness restricted his ability to perform the material and substantial duties of his regular occupation. Easter disagreed and this breach-of-contract action followed.
Easter’s only remaining disability theory is anxiety. The theory is advanced by a Dr. Delaney, and as Easter himself puts it, “the posture repeatedly assumed by dentists can cause pain which then increases [Easter]’s anxiety symptoms which then cause[] his tremors and tics.” Easter asserts that this results in his total disability under the policy, and he is thus entitled to the policy benefits.
UNUM filed a Daubert motion to exclude any testimony by Dr. John Lawrence Merritt and Easter agreed to the exclusion of Merritt’s testimony except as to two topics: Merritt’s observation of Easter’s “shakiness/motor tics” and “as to the ergonomic challenges faced by dentists which has bearing on the symptoms suffered by [Easter].”
Physical Medicine & Rehabilitation Expert Witness
John Lawrence Merritt has over 40 years of experience as clinician, teacher and researcher, and as an expert witness in complex, high profile cases for spinal cord injury, brain injury, catastrophic injuries; plaintiff and defense. His expertise lies in developing & reviewing Life Care Plans. He is board certified in brain injury medicine, spinal cord injury medicine, physical medicine and rehabilitation, and in internal medicine.
Regarding Merritt’s testimony as to any shakiness/motor tics he personally observed during his December 4, 2023, examination of Easter, the Court held that this portion of Merritt’s testimony is being offered only for what he observed when he examined Easter—namely, that he observed Easter’s alleged tics/shakiness. And “a physician’s observation of a patient’s injury during treatment is permissible lay testimony (assuming it is otherwise admissible).”
Thus, none of UNUM’s Daubert arguments apply to or prevent Merritt from testifying as to what he saw while examining Easter. There is no need for Merritt to be a psychiatrist or to have supporting and contemporaneous medical records to recount what he observed. Nor are UNUM’s cited social security cases analyzing whether administrative law judges “improperly discounted the opinions of” doctors applicable to Merritt’s anticipated testimony.
Ergonomics of a dental practice
Plaintiff sought to have Merritt testify as an expert witness “regarding the issue of dental ergonomics and its effect on [Easter]’s condition.” UNUM contended that this portion of Merritt’s proffered testimony failed Daubert’s three-prong test.
Merritt lacks the qualification to speak on dentistry ergonomics
For the first prong, Easter never identified Merritt as an ergonomics expert or explained how his various board certifications in brain injury medicine, spinal cord injury medicine, physical medicine and rehabilitation, and in internal medicine make Merritt qualified to speak on ergonomics.
The Court found that Easter failed to establish Merritt’s qualification to speak on dentistry ergonomics.
Merritt’s reliability is not established
As to the second prong, Easter sought to establish Merritt’s reliability by pointing out that “his report attached citations to a number of articles pertaining to the physical loads on dentists,” including one apparent peer-reviewed article authored by Merritt himself in 1987.
The Court held that the citation of the articles alone fails to establish that Merritt is qualified or that his methodology is reliable.
Furthermore, Easter’s brief and Merritt’s report only illustrate his ergonomic conclusions. Neither discuss any principles, methodologies, or ideas advanced in the articles or otherwise, much less how they were applied by Merritt to reach an ergonomic conclusion on Easter.
Merritt’s proffered testimony does not help the trier of fact
Merritt sought “to testify regarding the issue of dental ergonomics and its effect on [Easter]’s condition.” But as Easter himself admitted, he “retained John Merritt, M.D. to determine whether there was a physical basis for his disability” and Merritt concluded “that Plaintiff suffers from a persistent motor tic disorder on the movement disorder spectrum that in the nature of a neurological disorder,” a theory that Easter himself states he withdraws.
Easter’s current theory “maintains that the shakiness/motor tics are a physical manifestation of a psychiatric condition which Dr. Delaney can speak to.” The Court held that Easter failed to establish by a preponderance of the evidence that Merritt’s testimony would be helpful to the trier of fact, especially considering that his theory has been withdrawn and another proposed.
Held
The Court granted in part and denied in part Defendant’s Daubert motion to exclude the expert testimony of Dr. John Lawrence Merritt.
Key Takeaway:
Easter essentially asked the Court to find Merritt reliable solely based on his conclusions, something the Eleventh Circuit has made clear it cannot do. For Merritt to be found reliable, there must be “some rational connection between the methodology and the opinion—something that explains how the application of the methodology permits the conclusion(s) reached.” Easter, in this case, failed to offer the required application or rational connection.
