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Beal v. Allard

United States District Court, D. Kansas

November 9, 2018

RONDA BEAL, Plaintiff,
POLLY J. ALLARD, Defendant.



         This 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 defendant's motion.

         I. Background

         This 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.

         Plaintiff 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.

         Defendant 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)).

         Second, 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.

         In her 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.

         Second, 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.

         Third, 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, [1] “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.

         II. Legal Standard

         The 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)).

         Federal 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 methods; and
(d) the expert has reliably applied the principles and methods to the ...

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