Smith v. Dolgencorp LLC

Filing 64

ORDER denying 41 Motion to Exclude; denying 44 Motion to Exclude; finding as moot 53 Motion to Strike. Signed by Judge James M. Moody on 12/20/11. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
BETTY J. SMITH
V.

PLAINTIFF
CASE NO. 4:10CV01534 JMM

DOLGENCORP, LLC, d/b/a
DOLLAR GENERAL

DEFENDANT
ORDER

Pending are Defendant’s motion to exclude the causation opinions of Plaintiff’s treating
physicians and motion for summary judgment, docket # 41, Defendant’s motion to strike the
Plaintiff’s statement of facts, docket # 53 and Plaintiff’s motion to exclude the testimony of
Raymond Earl Peeples, M.D., docket # 44.
Defendant challenges the testimony of Plaintiff’s treating physicians on the issue of
whether Plaintiff developed Complex Regional Pain Syndrome (“CRPS”) as a result of her fall.
Defendant argues that the Court should exclude the testimony of Plaintiff’s treating physicians
because Plaintiff failed to properly disclose the causation opinions as required by the Federal
Rules of Civil Procedure. If the Court grants Defendant’s motion to exclude, Defendant argues
that Plaintiff has no expert testimony that CRPS was proximately caused by the Defendant’s
negligence, therefore, it is entitled to summary judgment.
The Court denies the motion to exclude the testimony of Plaintiff’s treating physicians.
Although Plaintiff failed to strictly comply with Fed. R. Civ. P. 26, by providing a written report
of her treating physicians’ opinions regarding causation, Plaintiff did identify the physicians as
experts and referred to her medical records which contained the facts learned and the opinions
formed in the course of treatment. Defendant has been afforded the opportunity to depose each

witness. Further, Defendant will not be prejudiced by the testimony of these physicians as the
Court allowed Defendant to obtain an independent medical examination by Dr. Earl Peeples and
Dr. Peeples will be allowed to testify as to his findings and opinions at trial, infra.
Plaintiff challenges the testimony of Defendant’s expert witness Dr. Peeples on the issue
of CRPS pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The
Court finds Dr. Peeples qualified to render expert testimony on issue of CRPS and finds that his
opinions are relevant and based on scientifically reliable methodology. Plaintiff may present her
criticisms of Dr. Peeples’ opinions and the basis for those opinions by way of cross examination.
Accordingly, Defendant’s motion to exclude the causation opinions of Plaintiff’s treating
physicians and motion for summary judgment, docket # 41 is DENIED. Plaintiff’s motion to
exclude the testimony of Dr. Peeples, docket # 44 is DENIED. Defendant’s motion to strike,
docket # 53 is DENIED AS MOOT.
IT IS SO ORDERED this 20 day of December, 2011.

______________________________
James M. Moody
United States District Judge

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