Plaintiff Sheli D. Milam Sams and Dr. Bradley Sams had Safeco Policy No. F335202 (“the Policy”) that included underinsured motorists (“UIM”) coverage. On February 13, 2021, Plaintiff was involved in an automobile accident in Colorado. The other driver, Semega Mahamadou, was at fault, and Mahamadou’s vehicle had an Allstate policy. Mahamadou’s Allstate policy had liability limits of $25,000 per person, and Allstate paid Plaintiff $25,000. Plaintiff’s sole formal doctor’s visit involved an x-ray in 2021. Dr. Charles Menendez interpreted the x-ray as showing a nondisplaced sternal fracture. Plaintiff’s husband provided treatment to her over the course of her recovery.
Defendant Safeco Insurance Company of Illinois (“Safeco”) sought to exclude or limit Sams’ designated experts, Dr. Charles Menendez and Plaintiff’s husband, Dr. Bradley Sams. Plaintiff argued that they acted as treating physicians.
Radiology Expert Witness
Charles Menendez is a board-certified radiologist who specializes in the general practice of radiology.
Bradley C. Sams received his medical degree and completed his residency training in obstetrics and gynecology at Louisiana State University Health Science Center. Sams is a member of the Mississippi Medical Association, the American College of Phlebology, and the American Association of Bariatric Physicians.
The parties contest whether Plaintiff properly disclosed her designated experts as treating physicians.
Plaintiff designated Menendez as a treating physician, so he was not required to provide a written report. But if a treating physician does not provide a written report, the physician’s testimony will be limited to opinions acquired based on the physician’s personal knowledge of the examination, diagnosis and treatment of a patient and not from information acquired from outside sources.
Menendez did not provide a written report, so any testimony he offers will be limited to be personal knowledge contained in his medical records and cannot come from information acquired from outside sources.
In contrast to Menendez, Sams’ disclosure as a treating physician did not satisfy Rule 26. A Plaintiff must provide more information than the treating physician’s facts, data, and symptoms he observed in his patients during treatment. Plaintiff provided no medical records from Sams which contain his expected testimony or a written report for that matter.
Alternatively, the Court determined that Sams admitted that he rendered no formal medical treatment to Plaintiff; this admission took Sams outside the scope of testifying as a treating physician, so he cannot satisfy Rule 26(a)(2)(C).
Held
The Court granted in part and denied in part Defendant Safeco Insurance Company of Illinois’ motion to exclude or limit the testimony of Charles Menendez and Bradley Sams.
Key Takeaway
A court considers the importance of the witnesses’ testimony. Because Sams did not render formal medical treatment to Plaintiff, his alleged expert testimony is not important. Besides, failure to properly disclose an expected expert’s testimony is grounds for prohibiting introduction of that evidence at trial.
Case Details:
Case Caption:
Sams V. Safeco Insurance Company Of Illinois
Docket Number:
1:24cv337
Court Name:
United States District Court, Mississippi Southern
Plaintiff Sabrina Solomon was involved in a motor vehicle accident (“MVA”) in April 2021 that left her with “a permanent injury to the body as a whole” leading to this underinsured motorist benefits and loss of consortium case.
One of Defendant’s expert witnesses, Dr. Richard A. Ofstein, emphasized that Plaintiff Sabrina Solomon’s brain imaging was “most consistent with, if not diagnostic for, an incidental cavernous angioma,” rather than a TBI. As for her spine and shoulder injuries, Ofstein opined these were consistent with aging or “degenerative” changes or disease, rather than an acute trauma.
In reaching the opinions outlined in his report, Ofstein consulted the medical records for Plaintiff Sabrina Solomon that were provided to him, including numerous diagnostic images (MRIs and angiograms).
Plaintiffs filed a motion to exclude Ofstein from testifying at trial. According to them, “ Ofstein is not qualified to give such opinions,” “his opinions are not based on sufficient facts and data,” and “his opinions are not based on a reliable scientific methodology.”
Radiology Expert Witness
Richard Alan Ofstein is a radiologist with over forty years of experience. He is board certified in Diagnostic Radiology and has a Certificate of Added Qualifications in Neuroradiology. He is currently an Adjunct Assistant Professor of Radiology at the University of Utah and previously worked as an Assistant Clinical Professor of Radiology at the UCLA School of Medicine. Additionally, Ofstein worked in private practice for most of his career.
Plaintiffs argued that Ofstein is not qualified to give the opinions from his report. According to them, “although Ofstein might be qualified to give radiology opinions, i.e., what he sees on Plaintiff’s diagnostic imaging, he is not qualified to give opinion testimony on the specific causation of injury that might arise as a result of a motor vehicle accident, nor the appropriateness or relatedness of any treatment incurred or to be incurred by Plaintiff Sabrina Solomon.”
The Court disagreed. A radiologist may opine on the likely cause of an injury observed in radiological imaging, such as whether an injury results from an acute trauma or degeneration. Furthermore, Ofstein made clear in his deposition that he was not opining on the medical appropriateness of Plaintiff Sabrina Solomon’s spinal and shoulder surgeries. Rather, Ofstein clarified that he was “addressing the relationship of the need for surgery and the accident at issue.”
In other words, Ofstein’s opinion on the surgeries was appropriately limited to the fact that the injuries addressed by those surgeries were not caused by the motor vehicle accident. This opinion falls within the expertise of a radiologist.
Methodology
According to Plaintiffs, Ofstein’s methodology in reaching his opinions was unreliable. They complained that “Ofstein’s opinions are not founded on any established scientific method” because “he solely relies on the deposition of the Plaintiff in performing his clinical correlation and coming to his opinions.” Plaintiffs also contended that Ofstein’s “opinions are not based on sufficient facts or data”: “Ofstein’s deposition testimony shows that his opinions on causation and relatedness or appropriateness of treatment were based only on him looking at the radiological studies and medical records from [Plaintiff Sabrina Solomon’s] treating providers after the subject accident.” Thus, in Plaintiffs’ view, “Ofstein’s opinion in this case lacks the proper informational foundation to opine on causation and relatedness or appropriateness of medical treatment.”
Again, the Court disagreed. Ofstein used a trustworthy methodology in reviewing Plaintiff Sabrina Solomon’s radiological images in reaching his conclusions.
The fact that Ofstein “did not review any of Plaintiff’s medical records outside of the radiology reports produced by Plaintiff’s treating physicians” did not render his methodology unreliable. Ofstein’s review of the radiological imaging, the radiology reports from Plaintiff Sabrina Solomon’s treating physicians, as well as the police report from the accident and Plaintiff Sabrina Solomon’s deposition, supports that he applied a sufficiently trustworthy methodology in reaching his opinions.
Held
The Court denied the Plaintiffs Sabrina and Stanford Solomon’s Daubert motion to exclude causation and appropriateness of treatment opinions of Defendant’s expert, Dr. Richard Ofstein.
Key Takeaway:
The methodology used by Ofstein is standard and consistent with the literature and methodology used by radiologists in the United States. The fact that the expert radiologist did not review Plaintiff’s complete medical records did not render his methodology unreliable. In fact, it is consistent with the way that radiologists interpret films every day.
Case Details:
Case Caption:
Solomon Et Al V. Aig Property Casualty Company
Docket Number:
8:24cv2650
Court Name:
United States District Court for the Middle District of Florida, Tampa Division
This automotive product liability case arises from a rear-end collision involving a 2020 Honda Odyssey (“subject vehicle”) that resulted in serious injuries to Plaintiff James Assey. On June 16, 2021, Plaintiffs James and Joan Assey were traveling in the subject vehicle on Interstate 26 near Columbia, South Carolina, at approximately 55 miles per hour when the subject vehicle was rear ended by a 2018 Dodge Charger traveling approximately 101-108 miles per hour at impact (the “subject accident”).
Plaintiffs contended that the subject vehicle contained defects that caused or contributed to Assey’s injuries. Specifically, the subject vehicle’s occupant restraint and protection systems, including, but not limited to, its seating system, airbag system, seat belt and head restraint, failed to provide safe and reasonable protection in an allegedly foreseeable rear end collision.
Plaintiffs originally asserted claims for strict liability (design and manufacturing defect), negligence (design and manufacturing defect), negligent failure to warn, and loss of consortium.
Michael Markushewski has extensive experience in crashworthiness, occupant crash protection, emergency escape, crash safety and survival, and life support engineering. His career has focused on the research, design, testing and evaluation of vehicular and aircraft seating systems, seat belt restraint systems, inflatable restraints, ejection seats, crashworthy seating systems and protective devices.
He is co-inventor of two (2) patents addressing occupant crash protection devices and seat design.
Over his career Markushewski has been lead investigator and crash reconstructionist in the evaluation of occupant protection system performance in military and civilian aircraft and automotive ground vehicle mishaps to determine the mechanisms of injury. He has worked with the U.S. Army in the development of advanced seating and restraint systems to protect soldiers from mine-blast related injuries. He has also worked with the National Hockey League to research, develop and test designs to improve player safety.
Bruce Distell is a board-certified diagnostic radiologist with fellowship training in body, spine, and orthopedic imaging. He graduated from Muhlenberg College in 1982 with a B.S. degree and from the University of Pennsylvania School of Medicine in 1986. He completed his radiology residency and fellowships at Duke University and is currently the Section Chief of the Department of Radiology at Cape Fear Valley Health Systems and the Academic Department Chair of the Methodist University Cape Fear Valley Medical School. Distell is also an assistant professor at the Campbell University School of Osteopathic Medicine. According to Distell’s report, 90% of his time is spent on clinical work, such as reading x-rays, CTs, MRIs, and other imaging modalities, and 10% of his time is dedicated to teaching and administrative duties.
Motion to Exclude the Expert Testimony of Michael Markushewski
Defendant argued that Markushewski’s opinions failed to meet the reliability requirements of Rule 702 because he relied on data about seat belt performance during 35-mile-per-hour frontal impact barrier crash tests using a fifteenth percentile dummy, and the accident was a rear-impact collision involving a larger than fiftieth percentile driver.
According to Defendant, these “substantial differences render Markuskewski’s opinions speculative and unreliable.”
The Court concluded that the issues Defendant raises regarding Markushewski’s methodology are fodder for cross examination and did not render Markushewski’s opinions unreliable.
Motion to Exclude the Expert Testimony of Bruce Distell, M.D. Regarding Biomechanics
Defendant contended that Distell’s report is an improper rebuttal opinion under Rule 26(a)(2)(D)(ii) of the Federal Rules of Civil Procedure and, furthermore, argued alternatively that Distell is not qualified to give expert opinions related to biomechanics.
Regarding the timeline, despite a July 12, 2024 deadline for identifying expert witnesses, the Plaintiffs identified Distell on September 18, 2024. In contrast, Defendant’s expert had reviewed Assey’s medical imaging and concluded that Assey had pre-existing conditions that placed him at an increased risk of spinal injury and that there was no evidence of a hyperextension injury to the deep flexor muscles of his upper thoracic spine. However, Distell rebutted these conclusions by opining that Assey’s underlying spinal morphology would not have placed him in a higher risk category to suffer this type of injury, and also opined that Assey would not have sustained injuries but for his lower thoracic spine being positioned above the top of the seat back.
Defendant argued that because he is a diagnostic radiologist trained in interpreting medical images, Distell is not qualified as a biomechanic to testify regarding the causal impact of Assey’s position within the Subject Vehicle.
As a result, the Court concluded that Distell’s opinion that Assey would not have been injured but for his lower thoracic spine being positioned above the top of the seat back is an improper rebuttal opinion. Moreover, even if this improper rebuttal opinion was not prejudicial to Defendant, as Plaintiffs argue, the Court agreed with Defendant that Plaintiffs have not shown that Distell is qualified to offer an opinion on biomechanics.
Furthermore, beyond the conclusory argument that Distell’s training as a diagnostic radiologist qualifies him to testify as to causation, Plaintiffs have not shown that Distell has the knowledge, skill, experience, training, or education to provide opinions in biomechanics.
Held
The Court denied Defendant’s motion to exclude the testimony of Michael Markushewski.
The Court granted Defendant’s motion to exclude the testimony of Bruce Distell.
Key Takeaways:
First, Distell is not a biomechanic, and furthermore does not have experience in designing a motor vehicle. Therefore, Plaintiffs have not shown that Distell has the knowledge, skill, experience, training, or education to provide opinions in biomechanics.
Markushewski’s testimony should “be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.”
On November 18, 2021, Plaintiff was driving his vehicle on LA 21 in St. Tammany, Louisiana, when he alleged that Reginald Mitchell (Defendant), attempted to merge into the left lane while operating a tractor-trailer, causing a collision. As a result of this collision, Plaintiff sustained injuries. Defendants retained Dr. Ryan T. Fitzgerald, a radiologist, and Dr. Everett G. Robert, a neurosurgeon, to testify as expert witnesses.
Robert opined that he would not recommend surgery and that Plaintiff’s injuries were not related to the automobile collision. Fitzgerald reviewed Plaintiff’s diagnostic imaging and he is expected to testify that the imaging “of the cervical and thoracic spine obtained post-Accident on February 19, 2022 revealed no objective findings of trauma but rather, exhibited chronic multilevel degenerative disease and numerous potential degenerative pain generators unrelated to the Accident.”
As a result, the Plaintiff filed a Daubert motion in limine to exclude or limit Ryan T. Fitzgerald’s testimony.
Radiology Expert Witness
Ryan T. Fitzgerald earned his medical degree from the University of Arkansas for Medical Sciences (UAMS) College of Medicine. Hespecializes in neuroradiology. Fitzgerald joined Radiology Consultants in July of 2017 and is a member of the Radiology Support Communication and Alignment Network (R-SCAN) committee.
Plaintiff claimed that Fitzgerald’s testimony should be excluded because it was cumulative of Robert’s testimony. According to Plaintiff, allowing Fitzgerald to testify would confuse the jury, waste time, and present repetitive evidence, which could unfairly prejudice Plaintiff. Alternatively, Plaintiff requested that Fitzgerald’s testimony be limited to avoid redundancy with Robert’s testimony.
Defendants asserted Fitzgerald’s testimony would benefit the jury by adding clarity and fostering the jury’s understanding of the complex imaging presented to them at trial. They pointed out that Plaintiff did not raise a Daubert challenge to Fitzgerald’s testimony. Since Fitzgerald and Robert have different specialties, Defendants asserted that they formed their respective opinions based on different vantage points.
A review of Robert and Fitzgerald’s expert reports reveals that their separate specialties led the doctors to approach their analyses of Plaintiff’s medical conditions from different vantage points. Robert is a neurosurgeon who performed an independent medical examination of Plaintiff. Fitzgerald is a radiologist, whose review was limited to the diagnostic imaging. Although Robert also referenced the diagnostic imaging, Fitzgerald has specific expertise in that area as a radiologist. Therefore, while there may be some overlap in their testimony, the Court held that the reports of Robert and Fitzgerald are not cumulative of each other.
Coming to the same conclusion does not make the reports duplicative. Any objection to Robert and Fitzgerald’s conclusions are best addressed on cross examination. Considering that exclusion of evidence under Rule 403 should occur only sparingly, the Court will allow Defendants to call both experts. However, testimony at trial may be limited to the extent that it is cumulative and causes undue delay.
Held
The Court denied Plaintiff Shaun E. Howard’s Daubert motion in limine to exclude or limit the testimony of Ryan T. Fitzgerald.
Key Takeaway:
Robert is a neurosurgeon who performed an independent medical examination of Plaintiff. Fitzgerald is a radiologist, whose review was limited to the diagnostic imaging. Although Robert also referenced the diagnostic imaging, Fitzgerald has specific expertise in that area as a radiologist. Therefore, while there may be some overlap in their testimony, the Court held that the reports of Robert and Fitzgerald are not cumulative of each other.
Please refer to the blog previously published about this case:
On December 9, 2021, Plaintiff Darryl Everson was driving in Montz, Louisiana, when he claimed that Defendant David Rugg (“Rugg”) negligently felled a tree along the roadway. The Plaintiff contended that the tree landed on his car, causing injuries to his back and neck. Additionally, Plaintiff alleged that Rugg was employed by Defendant Romesberg Trucking Inc. (“RTI”), which was covered by Nautilus Insurance Company. He asserted that RTI and Rugg failed to exercise reasonable care in their tree-cutting activities near an active roadway. Specifically, Plaintiff claimed that they did not provide warnings, did not monitor approaching vehicles, inadequately trained Rugg, and created a dangerous situation.
Defendants retained Robert Morris to read and interpret MRI images of Plaintiff’s spine area, specifically his L1 through S5 disc spaces.
Morris opined that all the disc spaces he reviewed were “unremarkable” except for the L4-L5 disc space, which Morris found to show a “small disc bulge with moderate central disc protrusion, resulting in moderate bilateral recess stenosis.” Overall, Morris opined that “the exact age of the disc bulge and protrusion at L4-L5 is indeterminate from this single exam.” He also found that “aside from the disc bulge and protrusion at L4-L5, the other levels appear normal.”
Plaintiff filed a motion to exclude the expert testimony of Dr. Robert Morris, Defendants’ expert radiologist.
Radiology Expert Witness
Robert W. Morris attended medical school at the University of Mississippi School of Medicine. This was followed by radiology residency and a musculoskeletal radiology fellowship at the University of Alabama at Birmingham. After fellowship, he worked in private practice radiology for several years before joining the faculty at UMMC in February 2016.
Plaintiff contended that Morris’ testimony should be excluded because (1) Defendants failed to comply with 26(a)(2)(B) and (2) Morris’ methodology is not reliable.
Defendant’s violation of Rule 26(a)(2)(B) can be rendered harmless by the recent continuance in this matter
Defendants argued that they complied with Rule 26(a)(2)(B) by including Morris on their witness list. Moreover, they contended that Plaintiff could have obtained the information by deposing Morris. The Court held that these arguments are meritless because Rule 26(a)(2)(B) squarely puts the burden on the party presenting the experts to summarize ‘the facts and opinions,’ not on the opposing party to figure it out.
Although the Court finds that Defendant’s violation of Rule 26 is not “substantially justified,” the Court concludes that the violation is “harmless.” This case has recently been continued, and Plaintiff now has several more months to review Defendants’ disclosures.
Morris’ testimony is sufficiently reliable
Prohibiting the jury from hearing about Morris’ opinions would increase the jury’s confusion
Plaintiff argued that allowing Morris to testify would be duplicative and confusing to the jury because Defendant has engaged another medical expert to opine on causation. The Court disagreed. Even if the Court prohibited Morris from testifying, the Defendant’s medical expert might still refer to Morris’ report at trial. Accordingly, prohibiting the jury from hearing about Morris’ opinions from Morris himself would increase, rather than decrease, the jury’s confusion about the separate specialties and opinions of Morris and the medical expert retained to opine on causation.
Morris will only be allowed to testify as to opinions expressed in his report
Defendants mentioned various uses for Morris’ testimony such as proving that Plaintiff had a pre-existing condition, that his weight caused his injuries, and that there is a consensus in the medical community that middle aged people have cervical and lumbar abnormalities. While Defendants may feel that Morris’ two listed opinions support those propositions, the Court noted that Morris does not actually offer any of these opinions in his report. If, at trial, Defendants ask Morris to opine outside of the scope of the opinions listed in his report, the Court will sustain an objection at that time.
To be clear, Morris will only be allowed to testify as to opinions expressed in his report including the specific “findings” as to each disc and the two opinions he provides: (1) “the exact age of the disc bulge and protrusion at L4-L5 is indeterminate from this single exam” and (2) “aside from the disc bulge and protrusion at L4-5, the other levels appear normal.”
Although the Court allowed Morris to testify, the Court granted Plaintiff’s request that Morris’ testimony be limited to the opinions expressed in his report.
Held
The Court denied the Plaintiff’s motion in limine to exclude Dr. Robert Morris.
Key Takeaway:
The Court found that Morris’ testimony is sufficiently reliable. Given the nature of the radiological practice—analysis of discrete images—courts routinely allow expert radiologists to testify even where they have not reviewed the Plaintiff’s medical records or examined the Plaintiff.
Please refer to the blog previously published about this case:
Plaintiff, Wendy Marie Henshaw alleged that she slipped and fell on a liquid substance on Defendant Wal-Mart’s premises on October 28, 2021.
Henshaw filed a motion to strike Defendant’s expert witness Dr. Marc Fredric Glickstein. Henshaw noted that Defendant timely served its expert witness disclosure and listed Glickstein as an expert in diagnostic radiology; however, Defendant did not provide Plaintiff with Glickstein’s report.
Defendant contended that Glickstein has not yet prepared a report. Since Defendant is in the process of obtaining records and diagnostic studies for his review, the report will be provided to Plaintiff once it is completed.
Radiology Expert Witness
Marc Glickstein, MD, FACR, is a partner in a large private practice radiology group, on the senior medical staff of 8 area hospitals, and an assistant clinical professor of Radiology at University of CT School of Medicine. He has over 27 years of active clinical involvement in Neuroradiology, as well as General Radiology including MRI, Mammography, CT, and Ultrasound.
Rule 26 clearly states that, “Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness.” Rule 37 makes it clear that the party that failed to comply with Rule 26(a) bears the burden of establishing that its non-disclosure was either substantially justified or harmless.
The Court held that Defendant has both failed to comply with Rule 26(a) and failed to show that its non-disclosure was either substantially justified or harmless. Consequently, Defendant will be prohibited from using Glickstein to supply evidence on a motion, at a hearing, or at trial.
Held
The Court granted Plaintiff Wendy Marie Henshaw’s motion to strike Defendant’s expert, Dr. Marc Frederic Glickstein. Consequently, Glickstein was stricken from Defendant’s expert witness disclosure.
Key Takeaway:
Despite timely serving its expert witness disclosure, Defendant did not provide Plaintiff with Glickstein’s report. Defendant also failed to show that its non-disclosure was either substantially justified or harmless.
