United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE.
matter is before the court on defendant Polly J. Allard's
Motion to Strike or in the Alternative, Motion in Limine
Regarding Testimony of Dr. Larry Frevert (Doc. 121). The
court is scheduled to begin trial in this case on November
14, 2018. For reasons explained below, the court denies
case arises from a collision between plaintiff and
defendant's vehicles on April 1, 2015. Defendant filed a
Notice of Stipulation of Admission of Fault that concedes
“legal liability” for the collision. Doc. 50.
Plaintiff argues that the collision caused her to sustain
physical injuries that required surgery and rehabilitation.
Docs. 82, 1. This case thus centers on causation and damages
issues that the parties seek to resolve, at least in part, by
using expert witness testimony.
asserts that, in the week after the collision, she
“complained of shoulder pain and disability” to a
chiropractor, Dr. Robert Moore, who suggested she visit an
orthopedic specialist. Doc. 82 at 2. Plaintiff represents
that she then visited her primary care physician, who ordered
an MRI and referred her to Dr. Gregory Van Den Berghe. Dr.
Van Den Berghe, she says, “examined her, reviewed the
MRI and referred her to an orthopedic oncologist over concern
of a potential malignancy in [plaintiff's] shoulder,
which turned out benign.” Id. Plaintiff
represents that she then “developed adhesive
capsulitis, ” a condition that prompted her to schedule
an appointment with Dr. Larry Frevert, an orthopedic surgeon.
Id. Plaintiff asserts that Dr. Frevert encouraged
her to attempt physical therapy but eventually operated on
plaintiff's shoulder in December 2015. Doc. 124 at 1.
seeks to strike the entirety of Dr. Frevert's testimony
as a non-retained expert witness. Plaintiff deposed Dr.
Frevert on August 23, 2018. First, defendant asserts that the
court should strike Dr. Frevert's testimony because it is
cumulative of the testimony of Dr. Anne Rosenthal,
plaintiff's retained expert witness. In support,
defendant only contends that Dr. Frevert's testimony,
“on its face, ” is “nearly that” of
Dr. Rosenthal's testimony. Doc. 121 at 4. But defendant
provides the court with little additional argument beyond
asserting that the court has discretion under the Federal
Rules of Civil Procedure to “limit the number of
experts on the grounds that the testimony of the experts is
cumulative.” Id. (first citing Fed.R.Civ.P.
16(c)(4); then citing Coal Res., Inc. v. Gulf & W.
Indus., Inc., 865 F.2d 761, 769 (6th Cir. 1989)).
defendant contends that plaintiff provided Dr. Frevert with
documents such as medical records and public records falling
outside the scope of Dr. Frevert's treatment of
plaintiff. Defendant asserts that, at the deposition, she
learned that Dr. Frevert had reviewed these documents.
Defendant also asserts that plaintiff produced at the
deposition, for the first time, a letter dated March 30,
2017, which listed these external documents and the people or
entities who provided them to Dr. Frevert. Defendant
represents that the March 30 letter was not produced in
response to defendant's discovery requests seeking
“any [of plaintiff's] communications with [her]
intended experts.” Doc. 121 at 2. Defendant also
asserts that neither the March 30 letter nor the documents it
describes were produced in response to defendant's
subpoena of Dr. Frevert's medical records. She directs
the court to Dr. Frevert's testimony that, although
plaintiff's counsel provided him with plaintiff's
prior medical records, he could not recall which records he
had reviewed, and he had not saved those records in his
office's electronic medical records system. Docs. 121 at
4-5, 124-2 at 9-10. Defendant represents that plaintiff
offered to compensate Dr. Frevert for his time devoted to
reviewing the records at issue. Defendant also asserts that
Dr. Frevert's response to plaintiff's counsel's
letter included a list of other cases where he had
testified-a disclosure defendant describes as “an
obvious effort to comply with the Federal Rules concerning
proper disclosure of retained experts.” Doc. 121 at 5.
Taken together, defendant argues, Dr. Frevert's testimony
and his communication with plaintiff's counsel
demonstrate that Dr. Frevert is designated improperly as a
non-retained expert witness and is testifying outside the
scope of his designation.
Response, plaintiff asserts three main arguments opposing
defendant's motion. First, she argues that defendant has
failed to show how Dr. Frevert and Dr. Rosenthal's
testimony are cumulative. Plaintiff contends that Dr.
Rosenthal “addresses injury Plaintiff sustained to
other parts of the body and corresponding treatment and
medical expense not addressed by Dr. Frevert.” Doc. 124
at 3. Plaintiff also asserts that because Dr. Frevert
operated on plaintiff, “only [he] can testify firsthand
what he saw when he opened up Plaintiff's shoulder:
‘a very angry reddened joint' caused by acute
adhesive capsulitis.” Id. Plaintiff emphasizes
that Dr. Rosenthal did not treat plaintiff and relies only on
medical records and other witnesses' testimony.
plaintiff contends that Dr. Frevert's opinion testimony
is derived only from “his own records, his knowledge of
Plaintiff and the patient history he took.”
Id. at 4 (citing Doc. 124-2 at 13-14 (Frevert Dep.
49:3-13) (“Q. And when you wrote your letter outlining
your opinions on either occasion, whether it was April 3,
2017, or later, November 10, 2017, you don't reference
any findings in any of these other records; correct? A. No.
What she told me was she was doing well and able to do
everything she wanted to do prior to the accident. I
don't know that I'm interested in something that
happened ten years before. I'm interested in what
happened in the last six to eight months before this
injury.”)). Plaintiff argues that any outside records
plaintiff's counsel showed Dr. Frevert-i.e.,
“prior chiropractic records, a very remote prior
shoulder MRI, a copy of the police report and photos of the
rear of Plaintiff's vehicle”-did not help Dr.
Frevert draw conclusions or form opinions. Id. at
4-5. Rather, the records “allowed [Dr. Frevert] to
decline to offer a causation opinion if he felt [these
records] caused him doubt.” Id. at 5.
plaintiff argues that defendant failed to give plaintiff
notice of defendant's challenge to Dr. Frevert's
expert designation and disclosures under the deadlines
established by the parties' Scheduling Order (Doc. 16).
Specifically, the Scheduling Order requires the parties to
make objections to expert disclosures within 14 days after
service of those disclosures. Doc. 16 at 5. Plaintiff asserts
that, although Dr. Frevert's disclosure did not
explicitly state that he had reviewed records outside his own
chart from his treatment of plaintiff,  “Defendant
should not have presumed [Dr. Frevert's] review was
confined to his own records.” Doc. 124 at 5. Plaintiff
also contends that defendant had a second opportunity to
object to Dr. Frevert's expert disclosures. In response
to her subpoena sent to Dr. Frevert's orthopedic
practice, plaintiff argues, defendant received Dr.
Frevert's November 10, 2017, letter to plaintiff's
counsel on February 12, 2018, stating that Dr. Frevert
reviewed “some outside medical records” to form
his opinions. Doc. 124-4 at 1-3; see also Id. at 4
(receipt for production of Dr. Frevert's letter).
Plaintiff asserts that because Dr. Frevert's letter
explains that he reviewed outside records, defendant should
have objected to Dr. Frevert's disclosure as a
non-retained expert witness in a timely manner after
receiving that letter.
court has a “gatekeeping obligation” to determine
the admissibility of expert testimony. Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147 (1999) (citing Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)).
When performing this gatekeeping role, the court has broad
discretion. Kieffer v. Weston Land, Inc., 90 F.3d
1496, 1499 (10th Cir. 1996) (quoting Orth v. Emerson
Elec. Co., 980 F.2d 632, 637 (10th Cir. 1992)).
Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the ...