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Beal v. Allard

United States District Court, D. Kansas

November 9, 2018

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

          MEMORANDUM AND ORDER

          DANIEL D. CRABTREE UNITED STATES DISTRICT JUDGE.

         This matter is before the court on plaintiff Ronda Beal's Motion to Exclude Testimony of Dr. Van Den Berghe (Doc. 82), whom defendant Polly J. Allard disclosed as a non-retained expert witness. The court is scheduled to begin trial in this case on November 14, 2018. For reasons explained below, the court grants plaintiff's motion in part and denies it in part.

         At this stage, the court addresses only whether the testimony the parties discuss in their filings should be excluded. The court does not address the admissibility of the evidence it declines to exclude in this order because it cannot evaluate the relevance of that evidence.

         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. This filing concedes defendant's “legal liability” for the collision. Doc. 50. Plaintiff claims that the collision caused her to sustain physical injuries requiring 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 seeks to exclude portions of Dr. Gregory Van Den Berghe's testimony as a non-retained expert witness. 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. Van Den Berghe. Dr. Van Den Berghe, plaintiff 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.

         Defendant designated Dr. Van Den Berghe as a non-retained expert. At his deposition on January 15, 2018, Dr. Van Den Berghe testified that plaintiff did not inform him that her shoulder was injured during a vehicle collision, and that he had insufficient information to opine about the cause of plaintiff's shoulder injury. Plaintiff does not object to the portions of Dr. Van Den Berghe's testimony that discuss his treatment of plaintiff; she also does not challenge Dr. Van Den Berghe's qualifications. But plaintiff asks the court to exclude the portions of Dr. Van Den Berghe's testimony where defense counsel introduced “records and information unknown to [Dr. Van Den Berghe] prior to the deposition and outside the scope of his care and treatment of Plaintiff.” Docs. 82 at 3, 119 at 1.[1] The court understands the challenged records and information to include:

(1) an article titled, “Principles of Orthopaedic Practice, ” authored by a physician whom Dr. Van Den Berghe testified he recognized as a prominent scholar on shoulder issues; (2) a book titled, “The Shoulder, Second Edition” by Rockwood and Matsen, which defendant's counsel located in the library of the clinic where Dr. Van Den Berghe practices medicine and was deposed; (3) a book titled, “Priniciples of Orthopaedic Practice, ” which Dr. Van Den Berghe testified is a recognized text in the orthopedic field; (4) studies of cadavers over the age of 60 that indicate the prevalence of rotator cuff tears in the shoulder; (5) a police report from the collision between plaintiff and defendant's vehicles; (6) plaintiff's records from Dr. Robert Moore, the chiropractor plaintiff visited after the collision; and (7) plaintiff's records from the Headache and Pain Center.

         In response to several questions from plaintiff and defendant's counsel, Dr. Van Den Berghe testified that he could not “say with any certainty whether or not an accident that occurred on April 1, 2015, had any role in producing any of [plaintiff's] complaints” about her left shoulder. Doc. 82-2 at 39-40, 43-44.

         Plaintiff bases her Motion to Exclude on three arguments. She first argues that Dr. Van Den Berghe, as a non-retained expert witness, cannot offer opinions “outside the scope of his . . . treatment of a patient.” Doc. 82 at 6. Plaintiff asserts that treating physicians like Dr. Van Den Berghe “are limited to testifying about [information] learned through their actual treatment . . . based on [their] personal knowledge of the examination, diagnosis and treatment.” Id. at 7. Second, plaintiff contends that because Dr. Van Den Berghe could not opine about the cause of her injury, his testimony fails to meet the requirements for expert witness testimony under Federal Rule of Evidence 702-that is, his testimony “does not assist the trier of fact who is tasked with determining the issue of proximate cause.” Id. at 12; see also Fed. R. Evid. 702 (“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 . . . the expert's . . . knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”). Last, plaintiff argues that Dr. Van Den Berghe's testimony is irrelevant under Federal Rule of Evidence 401 because “he has nothing to offer to the jury regarding causation.” Doc. 82 at 12-13.

         Defendant responds with three arguments of her own. First, defendant argues that her counsel introduced plaintiff's medical records from earlier treatments to “reinforce[] [plaintiff's] failure to provide [Dr. Van Den Berghe with] an accurate medical history.” Doc. 119 at 4-5. Defendant contends that testimony about the challenged records would “assist the jury through Dr. Van Den Berghe's testimony since [he] was able to contrast [plaintiff's] behavior in the prior records to her conduct during his exam.” Id. at 5. Defendant represents that the parties have stipulated to these records' foundational requirements under Federal Rule of Evidence 803's exception for records of regularly conducted activities.

         Second, defendant contends that Dr. Van Den Berghe testified simply about “general medical [principles]” and “agreed with medical literature located in the doctor's own office” that discussed the prevalence and causes of shoulder injuries. Id. at 7. Defendant asserts that Dr. Van Den Berghe, after reviewing records from his examination of plaintiff, testified that plaintiff did not “advis[e] him that her injuries to the left shoulder were caused by a motor vehicle accident.” Id. at 8. Defendant also contends that Dr. Van Den Berghe based his opinion testimony-really, the absence of an opinion, i.e., that he could not draw a conclusion about the cause of plaintiff's injuries-on his own records from examining plaintiff and his memory.

         Third, defendant argues that Dr. Van Den Berghe's deposition testimony imposed no unfair surprise on plaintiff, and that defendant did not seek his testimony in bad faith. Defendant asserts that plaintiff has had sufficient time to “address any concerns about medical literature or records from other health care providers.” Id. at 9. And defendant represents that her counsel provided plaintiff “relevant medical literature [she] hoped to use” during Dr. Van Den Berghe's deposition-and plaintiff never registered an objection to them. Id. at 11. Defendant argues that she is “entitled to introduce any evidence that tends to make plaintiff's theory that the accident was the cause of her left shoulder [injury] less likely to be true.” Id. at 13. Defendant asserts that Dr. Van Den Berghe's inability to formulate an opinion about the cause of plaintiff's shoulder injuries is relevant because it “tends to make plaintiff's case of causation less likely to be true.” Id.

         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, when deciding whether to admit expert testimony, 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 ...

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