Owens v. Wal-Mart Stores East, L.P., No. 3:2010cv00862 - Document 54 (M.D. Pa. 2012)

Court Description: MEMORANDUM OPINION - For the foregoing reasons, the Court will grant both of Defendant's Motions in Limine. In summary, Plaintiffs physician(s) will not be permitted to opine about the cause of Plaintiffs injuries, except to the extent they are expressed unambiguously in Plaintiffs treatment records. Furthermore, Plaintiff will not be permitted to introduce lay opinion testimony regarding: her medical diagnoses, her medical prognoses, or the causation of her injuries. Aseparate Order follows.Signed by Honorable Robert D. Mariani on 10/12/12. (jfg)
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THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA DIONNE OWENS Plaintiff v. 3:10·CV-862 (JUDGE MARIANI) WAL·MART STORES EAST, LP Defendant MEMORANDUM OPINION Introduction Defendant filed two Motions in Limine with supporting briefs on September 25, 2012. (Docs. 50, 52). For the reasons that follow, the Court will grant Defendant's motion to limit Plaintiffs physician testimony to her treating records only. Plaintiffs physician(s) will not be permitted to opine about the cause of Plaintiffs injuries, except to the extent they are expressed unambiguously in Plaintiffs treatment records. Furthermore, Plaintiff will not be permitted to introduce lay opinion testimony regarding: her medical diagnoses, her medical prognoses, or the causation of her injuries. At the outset, the Court notes that each party has failed to comply with the Local Rules. Defendant did not submit Certificates of Concurrence or Non-Concurrence with its Motions in Limine, as required by Local Rule 7.1. In turn, Plaintiff has not responded to either of Defendant's Motions in Limine as required by Local Rule 7.6, which states that any party opposing a motion must "file a brief in opposition within fourteen (14) days after I ( service of the movant's brief." Defendant's motions were filed on September 25,2012, were accompanied by a Certificate of Service, and more than fourteen days have passed without a response from Plaintiff. "Any party who fails to comply with this rule shall be deemed not to oppose such motion." Id. 8ecause each side has failed to follow the Local Rules, the Court will address the merits of Defendant's motions and not deem them as unopposed by Plaintiff. Defendant's First Motion in Limine (Doc. 50) According to the final case management order in this case pertaining to Plaintiff (Doc. 38), discovery was scheduled to close on November 1, 2011. Though Plaintiffs attorney indicated that he "inten[ded] to bring in [his] medical witnesses to testify live in this matter/' (Letter dated February 14, 2012, Doc. 50, Ex. A), Defendant argues that Plaintiff never designated any experts or supplied Defendant with any expert reports as required by FED. R. CIV. P. 26(a)(2)(8). Plaintiff has not come forward with any evidence to dispute Defendant's contention. As such, to the extent that Plaintiff calls any medical witnesses at trial, those witnesses will be "limited to facts gained in their treatment of [Owens]." Allen v. Parkland Sch. Dist., 230 F. App'x 189, 194 (3d Cir. 2007) (citing United States v. 68.94 Acres of Land, 918 F.2d 389, 396 (3d Cir. 1990)). Plaintiffs physician(s) will not be permitted to opine about the cause of Plaintiffs injuries, except to the extent they are expressed unambiguously in Plaintiffs treatment records. Therefore, any medical doctors whom 2 Plaintiff may call will nQt be permitted to' "putO fQrward expert causatiQn testimQny based Qn facts that went beyQnd [their] treatment Qf [Owens]." Id. Defendant's SecQnd MQtiQn in Limine (DQc. 52) Plaintiff allegedly sustained injuries frQm her slip-and-fall at Wal-Mart in April 2008 and seeks to' shQW that Defendant's negligence was the prQximate cause Qf her injuries. It gQes withQut citatiQn that as a part Qf a tQrt actiQn the plaintiff must prove that the injury claimed to' have been sustained and fQr which recQvery is SQught was caused by the tQrtiQUS act Qr fQrce Qf the tQrtfeasQr. With regard to' claims Qf physical injury Qr impairment, expert medical testimQny is necessary to' establish the causal nexus Qf the injury to' the tQrtiQUS cQnduct in thQse cases where the cQnnectiQn is nQt QbviQus. This is due to' the cQmplicated nature Qf the medical field which is beyQnd the knQwledge Qf the average juror. KQvalev v. SQwell, 839 A.2d 359,368 (Pa. Super. Ct. 2003). In KQvalev, the plaintiff (KQvalev) and defendant (SQwell) had been invQlved in an autQmQbile accident from which KQvalev allegedly suffered "severe traumatic persQnal injuries to' his spine in [the] fQrm of multiple herniatiQns Qf the vertebral disks, injury to' his nerves and nervQUS system." Id. at 361. At trial, hQwever, KQvalev, appearing pro se, was nQt permitted to' call himself as an expert medical witness because, thQugh a medical dQctQr, he was nQt trained in "QrthQpedics, radiQIQgy, neurQlogy, Qr any medical subspecialty that WQuid have been pertinent" to' his case. Id. at 364. As such, Qnly his treating physician CQuid testify as an expert. UnfQrtunately, his treating physician did nQt appear as scheduled to' testify. Because Qf the witness's nQn-appearance, KQvalev was unable to' establish 3 proximate cause, and the trial court entered a compulsory nonsuit which the Superior Court affirmed. Id. at 368. In affirming, the Superior Court stated: In this case, the injuries alleged by Kovalev involved trauma to his spine, vertebral disks and nervous system. By their nature, such internal injuries would not be readily observable by a jury. More importantly, the connection between Sowell's arguably tortious conduct and Kovalev's claimed injuries would have been far from obvious. This is clearly a case where expert medical testimony was necessary to establish the requisite causal nexus. Id. The Complaint states that on April 28, 2008, Plaintiff slipped and fell at Defendant's Wal-Mart in Mt. Pocono, Pennsylvania, thereby suffering a"non-displaced fracture of the distal fibula; fractures of metatarsal bones in left foot; cervical sprain and strain; lumbar sprain and strain; wrist pain, damage to her nerves and nervous system, as well as various other ills and injuries." (Doc. 1, mr 8, 17). According to Plaintiffs answers to Defendant's interrogatories, "Plaintiff had a prior slip and fall accident occurring in September of 2006 in which she sustained injury to her back." (Doc. 35, Ex. A, 1f 12(A)). Medical records also show that following her second slip-and-fall in 2008, Plaintiff was involved in acar accident on October 8, 2009. (Doc. 35, Ex. C). When she sought medical treatment on October 23, 2009, she described her pain as "Lower back / Bad." (ld.). She also checked off various symptoms on a prepared list, including lower back pain, back pain, back stiffness, leg pain, arms/shoulder pain, numb hands/fingers, neck pain, and neck stiffness. (ld.). Plaintiff specified that her leg pain extended all the way through her left leg, and in the medical 4 history of her general pain questionnaire, she indicated that she had injured her left leg in the April 2008 slip-and-fall accident. (Id.). Based on Plaintiffs history of multiple injuries to her back and her lower extremities, the Court concludes that expert medical testimony is necessary at trial to establish causation between her April 2008 slip-and-fall and her allegedly resulting injuries. "By their nature, such internal injuries would not be readily observable by ajury. More importantly, the connection between [Wal-Mart's] arguably tortious conduct and [Owens's] claimed injuries would have been far from obvious," thereby neceSSitating the submission of expert evidence. See Kovalev, 839 A.2d at 368. Conclusion For the foregoing reasons, the Court will grant both of Defendant's Motions in Limine. In summary, Plaintiffs physician(s) will not be permitted to opine about the cause of Plaintiffs injuries, except to the extent they are expressed unambiguously in Plaintiffs treatment records. Furthermore, Plaintiff will not be permitted to introduce lay opinion testimony regarding: her medical diagnoses, her medical prognoses, or the causation of her injuries. Aseparate Order follows. obert D. Mariani United States District Judge 5