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Robinson v. Colucci

United States District Court, S.D. Mississippi, Northern Division

May 1, 2018




         This cause is before the court on the various motions of the parties. This includes defendants Thomas Colucci and U.S. Xpress' motion in limine to strike Roger Allen as an expert; motion for partial summary judgment on certain elements of plaintiff's damages; motion in limine to exclude portions of the reports and testimony of plaintiff's experts Bruce Brawner and George Carter; motion to strike affidavit of Walter R. Shelton, M.D.; and motion to strike untimely expert disclosures and other discovery. Plaintiff Talbot Robinson has filed a motion for leave to file out of time motion for reconsideration and motion to reopen discovery as to punitive damages; a motion for leave to file out of time motion to strike defendants' expert Harry Smith, Ph.D., M.D.; and three motions in limine. With the exception of plaintiff's motions in limine, briefing on these motions is complete. The court has considered the memoranda of authorities, together with attachments, submitted by the parties, on these various motions, and now issues its rulings.

         This case involves a motor vehicle accident that occurred on August 7, 2015 in which a U.S. Xpress truck driven by defendant Thomas Colucci struck the vehicle being driven by plaintiff Talbot Robinson. Plaintiff filed this action seeking compensatory and punitive damages. Defendants have admitted that Colucci was negligent and that his negligence was the sole proximate cause of the collision. They have also admitted that Colucci was in the course and scope of his employment at the time of the collision, making U.S. Xpress vicariously liable for his negligence and any injuries proximately caused to plaintiff. Therefore, the only issue remaining is the causation, scope and nature of plaintiff's damages.

         By memorandum opinion and order entered October 30, 2017, this court granted defendants' motion for partial summary judgment on the issue of punitive damages. Defendants have now moved for partial summary judgment on several elements of compensatory damages, and they have filed various other motions challenging specific evidence sought to be offered by plaintiff regarding some of these elements of damages. The court will address the substance of defendants' partial summary judgment motion and the various interconnected motions as they relate to the types of damages at issue.

         Summary Judgment Standard

         Under Federal Rule of Civil Procedure 56(a), summary judgment is required when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). On a summary judgment motion, the moving party bears the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). If the moving party demonstrates an absence of evidence supporting the nonmoving party's case, then the burden shifts to the nonmoving party to come forward with specific facts showing that a genuine issue for trial does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). A genuine issue exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

         Future Medical Expenses/Wage Loss Re: Knee Surgery

         Plaintiff alleges that as a result of the accident, he suffered injuries to both knees, for which he has already undergone two knee surgeries and for which he will require bilateral knee replacement surgeries within the next three to five years. He seeks recovery of future medical expenses for the anticipated knee replacement surgeries and related therapy, together with lost wages he will incur as a result of time off in connection with those surgeries. Defendants have moved for summary judgment on plaintiff's claim for these damages, contending the record is void of proof that plaintiff will need knee replacement surgery and that consequently, plaintiff has no cognizable claim for future medical expenses or future lost wages relating to any such surgery.

         Defendants' primary argument in support of their motion in this regard is based on their interpretation of letter reports of plaintiff's orthopedic surgeon, Walter Shelton, M.D., dated August 12, 2016, and March 19, 2017, which they contend do not demonstrate the need for future knee surgery to a reasonable degree of medical probability. In response to the motion, plaintiff has submitted a February 5, 2018 affidavit from Dr. Shelton in which he states plaintiff “will require future bilateral knee surgery replacement [sic] in the next three (3) to five (5) years” and will miss three months of work following each surgery.

         Defendants have moved to strike Dr. Shelton's affidavit on the bases that his opinion therein regarding the need for future knee surgery (1) is inconsistent with his earlier letter opinions in which he opined (according to defendants) that future knee replacement was not necessary and (2) was not timely disclosed in plaintiff's expert designation/report. Defendants contend that by submitting Dr. Shelton's recent affidavit which sets forth a new and/or contradictory opinion, plaintiff is improperly attempting to “supplement” his expert's prior opinions to defeat the partial summary judgment motion. The court, they argue, should therefore strike the affidavit and exclude any testimony by Dr. Shelton that plaintiff will require knee replacement surgery.

         In a related vein, defendants have moved in limine to exclude portions of the reports and testimony of plaintiff's experts Bruce Brawner (certified rehabilitation counselor and life care planner) and George Carter (economist) estimating medical expenses and lost wages for time off in connection with future knee replacement surgeries.[1] Defendants submit that such opinions are not well-founded as there is no admissible expert medical evidence that plaintiff will need such future knee replacement surgery. For the reasons that follow, the court will deny all of defendants' motions to the extent they seek some form of relief based on defendant's contention that Dr. Shelton did not timely opine that plaintiff will likely need future knee replacement surgeries.

         In his August 12, 2016 letter, Dr. Shelton wrote that plaintiff “has some symptoms with patellofemoral arthritis but we are going to treat this conservatively for now. It is not bad enough to require a total knee replacement at this time.” In his March 9, 2017, letter report, Dr. Shelton stated,

I do not think any further surgery is indicated or will help him. I do not think any clean out surgery will help him and at some point he may get bad enough to require a total knee replacement, but for right now we need to treat him conservatively as long as we can and he needs to lose weight.

         Pursuant to Federal Rule of Civil Procedure 26, a party is required to disclose to the other parties the identity of any expert witness who will testify at trial and provide an expert report, setting forth the expert's proposed opinions. See Fed.R.Civ.P. 26(a)(2)(A)&(B). Under the court's local rules,

(D) A party must designate physicians and other witnesses who are not retained or specially employed to provide expert testimony but are expected to be called to offer expert opinions at trial. No. written report is required from such witnesses, but the party must disclose the subject matter on which the witness is expected to present evidence under FED. R. EVID. 702, 703 or 705, and a summary of the facts and opinions to which the witness is expected to testify.

         L.U.Civ.R. 26(a)(2)(D). Such disclosure is required to be made on or before the deadline established in the case management order. See L.U.Civ.R. 26(a)(2) (party must “make full and complete disclosure as required by Fed.R.Civ.P. 26(a) and L.U.Civ.R. 26(a)(2)(D) no later than the time specified in the case management order.”). A party is required to supplement his expert disclosures if he “learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed.R.Civ.P. 26(e)(1). Under the court's Local Rule 26(a)(5), supplemental disclosures must be made “in no event later than the discovery deadline established by the case management order.” L.U.Civ.R. 26(a)(5). The discovery deadline was January 30, 2018.

         In the court's opinion, plaintiff timely disclosed Dr. Shelton's opinion that he would likely need knee replacement surgery. On August 16, 2016, well prior to providing his plaintiff's expert designation, plaintiff's counsel wrote to defense counsel that Mr. Robinson was recently seen by Dr. Shelton. ...

Mr. Robinson is being told [by Dr. Shelton] that he needs bilateral knee replacement surgery. Dr. Shelton would like to postpone this as long as possible given Mr. Robinson's age of just turning fifty (50).

         In response to interrogatories served in January 2017, which also preceded his expert designation, plaintiff reported that “Dr. Shelton has recommended bilateral knee replacement surgery and therefore the future medicals associated with these procedures which may total one (1) to two (2) for each knee are future medical needs which the undersigned is attempting to quantify.” In response to an interrogatory specifically requesting information regarding his experts' opinions, plaintiff advised: “Dr. Shelton will testify as to the likelihood that Talbot Robinson will need bilateral total knee replacements.”

         Plaintiff served his expert designation on April 3, 2017, in which he stated, inter alia, that Dr. Shelton would provide opinions consistent with his letter reports of April 12, 2016 and March 3, 2017. Dr. Shelton's August 12, 2016 letter report addressed the potential that plaintiff would require future knee surgery stating, as defendants note, that he was treating plaintiff's patellafemora arthritis in his knees conservatively and the condition was “not bad enough to require a total knee replacement at this time.” (Emphasis added). He continued:

[I]t is not inevitable that he is going to have to have bilateral total knees but he may. ... [I]n a reasonable degree of medical certainty, there is a probability that he may need a total knee replacement in both knees but not a certainty.

         As is pertinent here, his March 19, 2017 letter merely recited that “at some point he may get bad enough to require a total knee replacement.”

         Contrary to defendants' urging, Dr. Shelton's August 12, 2016 and March 9, 2017 letter reports do not state that plaintiff will not need knee replacement surgery, and the opinion expressed in his affidavit does not contradict in any way the opinions set forth in his earlier letter opinions. In both letter opinions, he stated only that plaintiff did not need knee replacement surgery at that time; and in both, he stated that plaintiff could eventually ...

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