Parker, et al. v. NGM Insurance Company, et al, No. 2:2015cv02123 - Document 84 (E.D. La. 2016)
Court Description: ORDER AND REASONS granting 52 Motion in Limine to preclude Dr. Robert Steck from offering certain testimony at trial. Signed by Judge Susie Morgan on 6/9/2016. (lag)
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Parker, et al. v. NGM Insurance Company, et al Doc. 84 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A ROBERT PARKER, ET AL., Plain tiffs CIVIL ACTION VERSU S N O. 15 -2 12 3 N GM IN SU RAN CE COMPAN Y, ET AL., D e fe n d an ts SECTION : “E” ( 3 ) ORD ER AN D REAS ON S Before the Court is a m otion in lim ine to preclude Dr. Robert Steck from offering certain testim ony at trial. 1 The m otion is opposed. 2 For the reasons that follow, the m otion in lim ine is GRAN TED . BACKGROU N D This personal-injury case arises from a m otor-vehicle collision in New Orleans, Louisiana, on August 21, 20 14. 3 On that date, Plaintiff Robert Parker was driving his 20 12 Hyundai Sonata in a southerly direction on Tulane Avenue near its intersection with Interstate 10 (“I-10 ”) in New Orleans. Also traveling southbound on Tulane Avenue at that tim e was Defendant Edson Rivera, who was operating a 20 0 3 Ford E250 utility van owned and operated by his em ployer, Multitec, LLC. Rivera was driving directly behind Parker’s vehicle. According to Parker, he began to slow down as he approached congested traffic. It is undisputed that, as Parker slowed, he was rear-ended by the Ford van driven by Rivera. As a result, on May 13, 20 15, Parker filed suit again st Rivera, his em ployer Multitec, LLC, and NGM Insurance Com pany (“Defendants”) in the Civil District Court for the Parish of Orleans, State of Louisiana. 4 The action was rem oved to federal court on 1 R. Doc. 52. R. Doc. 58. 3 The Background Section of this Order and Reasons is taken , in part, from a prior Order and Reasons. See R. Doc. 60 at 1. 4 R. Doc. 1-1. 2 1 Dockets.Justia.com the basis of federal diversity jurisdiction on J une 16, 20 15. 5 Parker alleges, due to the collision, he “sustained serious bodily injuries, including but not lim ited to his back, neck, head, shoulders and extrem ities,” and seeks dam ages for “past and future m ental anguish and physical suffering, past and future expenses for m edical care, including expenses for travel to the physicians’ office, loss of enjoym ent of life, loss of consortium , and past an d future lost earnings, along with property dam age to his vehicle.”6 Parker’s wife, Krista Elaine Parker, also seeks dam ages for “loss of consortium , services, and society of her husband.”7 Dr. Robert Steck is a neurosurgeon who treated Robert Parker once in March of 20 13. In responding to written discovery, Plaintiffs identified Dr. Steck as one of Parker’s treating physicians prior to the accident-in -question. Upon learning of Dr. Steck’s treatm ent of Robert Parker, the Defendants obtained Parker’s m edical records from his visit with Dr. Steck. The records from Parker’s sole visit with Dr. Steck are 15 pages in total, including the certification page. 8 On April 12, 20 16, Defendants listed Dr. Steck as a witness on their witness list, describing him as a “neurosurgeon who treated plaintiff prior to the accident in question,”9 and Dr. Steck was deposed on May 2, 20 16. Dr. Steck was not retained as an expert witness, and he did not prepare a Rule 26 expert report. Plaintiffs seek to preclude Dr. Steck from offering certain testim ony at trial. 10 According to Plaintiffs, during Dr. Steck’s deposition, defense counsel “presented Dr. Steck with docum ents that [] both post-dated the one exam he perform ed and that Dr. Steck had never previously seen before: Nam ely, a m edical report dated April 25, 20 13 5 R. Doc. 1. R. Doc. 1-1 at 4. 7 R. Doc. 1-1 at 4. 8 R. Doc. 52-2. 9 R. Doc. 39 at 2. 10 See generally R. Docs. 52, 52-1. 6 2 from Dr. Sham ieh concerning Plaintiff Robert Parker and an MRI of Plaintiff’s lum bar spine from Septem ber 20 14.”11 Plaintiffs contend: “Thereafter, the defense asked Dr. Steck to render expert opinions about these docum ents. In fact, the defense asked Dr. Steck to perform a com parative analysis of a Septem ber 20 12 MRI of . . . Parker’s lum bar spine to that of the Septem ber 20 14 MRI.”12 In sum , Plaintiffs argue Dr. Steck im properly “perform ed the com parative analysis, and rendered expert opinion s on it, the Plaintiff[,] and the new m edical records.”13 Plaintiffs note that Dr. Steck is not a retained expert an d did not prepare an expert report in accordance with Federal Rule of Civil Procedure 26. 14 For that reason, Plaintiffs contend Dr. Steck should not be perm itted to testify on m atters outside the scope of his actual treatm ent of Robert Parker. 15 Stated differently, Plaintiffs argue Dr. Steck’s testim ony, as a treating physician, m ust be lim ited in scope to Robert Parker’s “m edical records, m edical history, [and] recent visits . . . not pre-selected m edical records handed to a m edical doctor as an expert witness for the first tim e m id-deposition and post-expert report deadline.”16 LAW AN D AN ALYSIS The adm issibility of expert opinion testim ony is governed by Federal Rule of Civil Procedure 26. Rule 26(a)(2)(B) provides that, “if the witness is one retained or specially em ployed to provide expert testim ony in the case,” the witness m ust prepare and sign a written expert report that includes, inter alia, a “com plete statem en t of all opinions the witness will express and the basis and reasons for them .” Rule 26 contem plates, however, that som e witnesses who offer expert testim ony, but were not specifically retained to do 11 R. Doc. 52-1 at 2. R. Doc. 52-1 at 2. 13 R. Doc. 52-1 at 2. 14 R. Doc. 52-1 at 1– 3. 15 R. Doc. 52-1 at 3. 16 R. Doc. 52-1 at 3. 12 3 so, need not prepare an expert report. This latter category of witnesses, who are often referred to as “non-retained experts,” includes treating physicians. 17 In fact, it is well accepted that “[t]reating physicians are not required to subm it an expert report under Rule 26.”18 Without having to provide an expert report, “[a] treating physician m ay testify to his opin ions about a plaintiffs injuries if his testim ony is based on knowledge acquired during the course of his treatm ent of the plaintiff.”19 However, where a physician’s testim ony “relies on sources other than those utilized in treatm ent, courts have found that the treating physician acts m ore like an expert and m ust subm it a report under Rule 26(a)(2)(B).”20 Som e courts have noted that the “relevant question” is whether the “treating physicians acquired their opinions . . . directly through their treatm ent of the plaintiff.”21 A court in the Western District of New York defined the distinction between retained experts and treating physicians as follows: Experts are retained for purposes of trial and their opinions are based on knowledge acquired or developed in anticipation of litigation or for trial. A treating physician’s testim ony, however, is based on the physician[’]s personal knowledge of the exam ination, diagnosis and treatm en t of a patient and not from inform ation acquired from outside sources. 22 17 See, e.g., Rea v. W isconsin Coach Lines, Inc., No. 12-1252, 20 14 WL 498180 3, at *2– 3 (E.D. La. Oct. 3, 20 14). 18 Butler v. Louisiana, No. 12-0 0 420 -BAJ -RLB, 20 14 WL 718 6120 , at *2 (M.D. La. Dec. 16, 20 14) (citin g F ED. R. CIV. P. 26(a)(2)(B) advisory com m ittee’s notes, 1993 am endm ent (treatin g m edical professionals m ay be “called to testify at trial without any requirem ent for a written report)). “A written report is . . . not required for a treatin g physician whose testim ony an d opinions derive from inform ation learn ed during actual treatm ent of the patient, rather than from subsequent evaluation as a specially retain ed expert.” Knorr v . Dillard’s Store Servs., Inc., No. Civ.A. 0 4-320 8, 20 0 5 WL 20 60 90 5, at *3 (E.D. La. Aug. 22, 20 0 5) (citing Gray v. Vastar Offshore, Inc., No. Civ.A. 0 4-1162, 20 0 5 WL 399396, at *1 (E.D. La. Feb. 14, 20 0 5)). 19 Knorr, 20 0 5 WL 20 60 90 5, at *3. “A num ber of courts [have] determ ined that a treating physician m ay offer testim ony as a non-retained expert if the testim ony is confined to those facts or data the physician learned durin g actual treatm ent of the plaintiff.” Rea, 20 14 WL 498180 3, at *2 (citing Morgan v. Chet Morrison Contractors, Inc., No. 0 4-2766, 20 0 8 WL 760 2163, at *2 (E.D. La. J uly 8 , 20 0 8 ); Perdom o v. United States, No. 11-2374, 20 12 WL 213810 6, at *4 (E.D. La. J un e 11, 20 12); LaShip, LLC v. Hay w ard Baker, Inc., 296 F.R.D. 475, 480 (E.D. La. 20 13); Kim v. Tim e Ins. Co., 267 F.R.D. 499, 50 2 (S.D. Tex. 20 0 8)). 20 Rea, 20 14 WL 498180 3, at *2 (citin g LaShip, 296 F.R.D. at 480 ; Fielden v. CSX Transp., Inc., 482 F.3d 866, 871 (6th Cir. 20 0 7); Goodm an v. Staples The Office Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 20 11)). See also W illiam s v. State, No. 14-0 0 154-BAJ -RLB, 20 15 WL 5438596, at *3 (M.D. La. Sept. 14, 20 15). 21 Salas v. United States, 165 F.R.D. 31, 33 (W.D.N.Y. 1995). 22 Mangla v. Univ. of Rochester, 168 F.R.D. 137, 139 (W.D.N.Y. 1996). 4 In Previto v. Ry obi N orth Am erica, Inc., a court in the Southern District of Mississippi, on facts sim ilar to the instant case, addressed the difference between appropriate treating physician testim ony, on the one hand, and expert testim ony that requires a report, on the other. 23 In Previto, the defendant m oved to strike the proposed testim ony of Dr. Gwen Cousins, one of the plaintiff’s treating physicians, on the grounds that it was not appropriate treating physician testim ony. 24 Dr. Cousins exam ined the plaintiff in J une of 20 10 and, at som e tim e thereafter, reviewed treatm ent that had been provided to the plaintiff by other physicians. 25 One of Dr. Cousins’s m edical opinions, regarding the size of an object in the plaintiff’s eye, was based on her review of other physicians’ m edical records and their treatm ent of the plaintiff. 26 The court concluded that Dr. Cousins’s opinions with respect to the size of the object were not proper treating physician testim ony: It is . . . apparent that Dr. Cousins’ opinion regarding the size of the foreign body based upon her review of the CT scan, which was taken on J une 15, 20 0 5, was not based upon her personal treatm ent of Plaintiff. Instead it was founded upon a subsequent review of treatm ent rendered to Plaintiff by other m edical providers. This is not appropriate treating physician testim ony, and is m ore akin to the testim ony of a retained expert. 27 In the present case, Dr. Steck saw Robert Parker only once, in March of 20 13. Dr. Steck was not retained as an expert witness, and he did not prepare an expert report. During Dr. Steck’s deposition, defense counsel asked Dr. Steck about his treatm ent of Robert Parker, the opinions he reached after exam ining Parker, and the m edical records generated as a result of that visit. The testim ony and opinions elicited from Dr. Steck in response to such questions are appropriate treating physician testim ony, and Dr. Steck 23 No. 1:0 8cv177-HSO-J MR, 20 10 WL 51850 55 (S.D. Miss. Dec. 16, 20 10 ). Id. at *3. 25 See id. 26 Id. 27 Id. 24 5 m ay testify with respect to those opinions at trial. However, defense counsel also asked Dr. Steck about m edical treatm ent that Robert Parker received after he visited Dr. Steck. Specifically, counsel asked Dr. Steck about (1) treatm ent that Dr. Sam er Sham ieh provided Parker in May of 20 13, approxim ately two m onths after Parker’s only visit with Dr. Steck, and (2) an MRI perform ed on Robert Parker in Septem ber of 20 14, over a year after Dr. Steck saw Parker. Counsel presented Dr. Steck with various records from Parker’s treatm ent with Dr. Sham ieh and asked him questions about those records an d the treatm ent that Dr. Sham ieh provided to Robert Parker. Defense counsel also showed Dr. Steck the Septem ber 20 14 MRI and asked Dr. Steck questions about that MRI. Dr. Steck’s responses to those questions were not in his capacity as a treating physician but, instead, were m ore akin to expert testim ony under Rule 26(a)(2)(B). Because Dr. Steck is not a retain ed expert and did not provide an expert report, Dr. Steck’s testim ony m ust be based on his personal knowledge of his exam ination, diagnosis, and treatm ent of Robert Parker, not from inform ation acquired from outside sources. As a result, Dr. Steck cannot testify with respect to Dr. Sham ieh’s treatm ent of Robert Parker in May of 20 13 or the MRI conducted in Septem ber of 20 14. CON CLU SION For the foregoing reasons, IT IS ORD ERED that the m otion in lim ine is GRAN TED . N e w Orle an s , Lo u is ian a, th is 9 th d ay o f Ju n e , 2 0 16 . _______ ________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 6
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