Espinoza v. Harrelson et al

Filing 69

ORDER granting in part and denying in part 63 Motion Regarding Dr. Marc Brodsky. The Clerk is DIRECTED to STRIKE Plaintiff's Notice of Opposition to Defendant's Daubert Motion Regarding Dr. Mark Brodsky (Doc. 68) as an untimely response. Signed by Judge Roy B. Dalton, Jr. on 3/29/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
LEOVIGILDO ESPINOZA,
Plaintiff,
v.

Case No. 6:15-cv-1923-Orl-37GJK

BOBBY HARRELSON,
Defendant.
_____________________________________
ORDER
On March 3, 2017, Defendant moved to exclude the opinions of Dr. Marc. Brodsky
(“Dr. Brodsky”) pursuant to the principles set forth in Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579 (1993). (Doc. 63 (“Daubert Motion”).) Plaintiff’s response to the Daubert
Motion was due on or before Friday, March 17, 2017. See Local Rule 3.01(b) (allotting
fourteen days in which a party opposing a motion may respond). Ignoring this deadline,
Plaintiff responded to the Daubert Motion on March 28, 2017. (Doc. 68 (“Response”).) At
no time did Plaintiff seek leave to file a late response or provide any explanation for his
failure to adhere to the Local Rules. As such, the Court finds that the Response is due to
be stricken, thus rendering the Daubert Motion unopposed.
Turning now to the Daubert Motion, Plaintiff previously disclosed Dr. Brodsky as
a non-retained expert witness. (Doc. 57, p. 7.) In this disclosure, Plaintiff revealed that
Dr. Brodsky’s expected testimony concerns injuries that Plaintiff sustained from gunshot
wounds. (Id.) Specifically, Dr. Brodksy intends to testify: (1) that Plaintiff sustained
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permanent injuries to his neck, left shoulder, right hand, and face; (2) as to the cause of
such injuries; (3) that Plaintiff will need extensive occupational therapy and splinting;
(4) that he treated Plaintiff’s neck injury with cervical facet injections, which provided
relief from some pain; and (5) as to the cost of Plaintiffs’ future medical needs, including
right hand surgery, left shoulder arthroscopy, and full open surgery. (Id. at 7.)
Defendant seeks to exclude such testimony on the ground that these opinions are
unreliable under Daubert. (Doc. 63, p. 6.) In particular, Defendant points out that:
(1) Dr. Brodksy has no recollection of personally treating Plaintiff; (2) Dr. Brodsky was
unaware of whether Plaintiff has any surgery scheduled or any future treatment
scheduled with any physician in Dr. Brodsky’s practice group; (3) Dr. Brodsky “does not
render the care that he opines Plaintiff could require”; (4) Dr. Brodsky’s “bases for his
cost estimates are what he has heard over the years of seeing these same patients over
and over and water-cooler talk”; and (5) Dr. Brodsky was unable to affirmatively state
whether anything about Plaintiff’s candidacy for surgery had changed since Plaintiff’s
July 11, 2012 visit to Dr. Brodsky’s former practice group. (Id.) Based on the foregoing,
Defendant argues that Dr. Brodsky’s testimony is outside the scope of a non-retained
treating physician and that his trial testimony would “amount to simply reciting the
contents of medical records,” and “providing inadequately-supported hearsay-based
cost estimates of Plaintiff’s possible future medical treatment.” (Id. at 7.)
Upon consideration, the Court agrees with Defendant that Dr. Brodsky “should
not be permitted to testify in the form of opinion regarding any matter outside that which
[he] can affirmatively testify was drawn from his own, personal evaluation and treatment
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of Plaintiff.” (See id. at 8.) Hence the Court will limit Dr. Brodsky’s testimony to that of a
percipient witness. As such, Dr. Brodsky may testify as to opinions (1), (2), and (4) but
not (3) or (5).
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

The Clerk is DIRECTED to STRIKE Plaintiff’s Notice of Opposition to
Defendant’s Daubert Motion Regarding Dr. Mark Brodsky (Doc. 68) as an
untimely response.

2.

Defendant Bobby Harrelson’s Daubert Motion Regarding Dr. Marc Brodsky
and Incorporated Memorandum of Law (Doc. 63) is GRANTED IN PART
AND DENIED IN PART.
a.

Dr. Brodsky may testify as a percipient witness as described
herein.

b.

In all other respects, the Motion is GRANTED as unopposed.

DONE AND ORDERED in Chambers in Orlando, Florida, on March 29, 2017.

Copies to:
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Counsel of Record

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