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McElveen v. Wal-Mart Stores, Inc.

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

February 14, 2019

EVAN MCELVEEN, et al. PLAINTIFFS
v.
WAL-MART STORES, INC., et al. DEFENDANTS

          ORDER

          KEITH STARRETT UNITED STATES DISTRICT JUDGE.

         For the reasons provided below, the Court finds as follows:

• The Court grants Defendant's Motion in Limine [121] regarding medical testimony by lay witnesses.
• The Court grants in part and denies in part Defendant's Motion in Limine [122] regarding future medical procedures and costs.
• The Court grants Defendant's Motion in Limine [123] regarding “conscience of the community” and “golden rule” arguments.
• The Court grants Defendant's Motion in Limine [124] to exclude the hearsay statements by Gladys Johnson.
• The Court grants Defendant's Motion in Limine [125] as to Ms. McElveen's lost retirement benefits.
• The Court denies Defendant's Motion in Limine [126] as to medical expert testimony outside the scope of the medical records without prejudice to Defendant's right to raise the issue again at trial.

         A. Expert Medical Testimony [121]

         First, Defendant argues that the Court should exclude all testimony from Plaintiff or any other lay witness “concerning evidence of an expert nature and/or opinions of medical causation, medical certainty, medical probability or the relation of any cost, treatment, or procedure - past or future - to the incident in question.” In response, Plaintiffs represent that they only “intend to offer fact testimony by Plaintiffs or other lay witnesses.”

         Of course, neither Plaintiffs nor any other lay witness may provide expert medical testimony, which includes testimony regarding medical causation, medical probability, or the likelihood and cost of future medical procedures. Fed.R.Evid. 701(c), 702; see also Patterson v. Radioshack Corp., 268 Fed.Appx. 298, 302 (5th Cir. 2008). Therefore, the Court grants Defendant's Motion in Limine [121] to exclude expert medical testimony by Plaintiffs or other lay witnesses.

         B. Future Medical Costs [122]

         Next, Defendant argues that the Court should exclude any evidence or argument regarding Plaintiffs' future medical treatment and costs. Specifically, Defendant objects to the admission of testimony from Plaintiffs or Mr. McElveen's treating physician, Dr. Mohammed Elkersh, related to potential future radiofrequency ablation procedures or a shoulder replacement. Defendant argues that Plaintiffs provided no expert report from Dr. Elkersh, and that his records contain no mention of any future procedures, their frequency, or their cost. Plaintiffs offered no substantive response to this argument, noting only that they had designated Elkersh as an expert and provided a summary of his expected testimony.

         Rule 26 requires parties to disclose the identity of any person who will provide expert testimony at trial. Fed.R.Civ.P. 26(a)(2)(A). “[I]f the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony, ” the proponent of the expert testimony must provide a written report prepared and signed by the witness. Fed.R.Civ.P. 26(a)(2)(B). But if the expert witness is not required to provide a written report, the designation must provide the subject matter of the expert's testimony, and a summary of the facts and opinions to which she is expected to testify. Fed.R.Civ.P. 26(a)(2)(C). “A number of courts agree that a treating physician may testify as a non-retained expert witness B and therefore need not provide an expert report . . . .” Kim v. Time Ins. Co., 267 F.R.D. 499, 502 (S.D. Tex. 2008) (collecting cases); see also Fed. R. Civ. P. 26(a)(2)(B).

         But if a treating physician “does not provide an expert report, his testimony must remain confined to facts disclosed during care and treatment of the patient, including his diagnosis, the causation of a plaintiff's injuries, and the patient's prognosis, as long as the doctor formed those opinions based on his personal knowledge and observations obtained during the course of care and treatment.” Barnett v. Deere, No. 2:15-CV-2-KS-MTP, 2016 U.S. Dist. LEXIS 123114, at *3 (S.D.Miss. Sept. 11, 2016). “Conversely, where a treating physician has prepared his opinions in anticipation of litigation or relies on sources other than those utilized in treatment, courts have found that the treating physician acts more like a retained expert and must comply with Rule 26(a)(2)(B).” Id. [1] Therefore, if a treating physician's expected testimony B whether fact or opinion B is not in the medical records from his or her treatment of the plaintiff, the plaintiff is required to produce an expert report in compliance with Rule 26(a)(2)(B).

         Plaintiffs did not produce an expert report from Dr. Elkersh. Defendant represents - and Plaintiffs have not disputed - that Elkersh's records do not include any information regarding Mr. McElveen's future treatment or its cost. Therefore, any opinions or other testimony from Elkersh related to future treatment were not properly disclosed.

         A party's failure to properly disclose an expected expert's testimony is “grounds for prohibiting introduction of that evidence at trial.@ L.U.Civ.R. 26(a)(2). Rule 37 provides: “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). When determining whether to strike ...


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