Hinson v. United States of America

Filing 43

ORDER: Defendant United States of America's Motion in Limine (Doc. # 41) is DENIED WITHOUT PREJUDICE. Defendant United States of America's Motion for Partial Summary Judgment (Doc. # 39) is DENIED. Signed by Judge Virginia M. Hernandez Covington on 7/3/2019. (DLB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
THOMAS HINSON,
Plaintiff,
v.

Case No. 8:18-cv-1499-T-33AAS

UNITED STATES OF AMERICA,
Defendant.
/
ORDER
This matter comes before the Court upon consideration of
Defendant

United

States

of

America’s

Motion

for

Partial

Summary Judgment (Doc. # 39) and Motion in Limine (Doc. #
41). Plaintiff Thomas Hinson responded in opposition to the
Motions. (Doc. ## 40, 42). For the reasons that follow, the
Motions are denied.
I.

Background
Hinson initiated this Federal Tort Claims Act (FTCA)

case against the United States on June 21, 2018. (Doc. # 1).
This case involves a car accident between Hinson and a U.S.
Postal Service vehicle in 2016, in which Hinson was allegedly
injured. (Id.). The United States filed its Answer on August
27, 2018. (Doc. # 11).

1

The case proceeded through discovery. On February 21,
2019, the United States moved to strike Hinson’s expert
disclosures, including those relating to three of Hinson’s
treating physicians: Dr. Heldreth, Dr. Bansal, and Dr. Weber.
(Doc. # 30). After the motion to strike was filed, Hinson
served his amended expert disclosures. (Doc. # 39-4). But the
United States still maintained these amended disclosures were
insufficient. (Doc. # 34).
On April 18, 2019, the Magistrate Judge granted the
United States’ motion to strike. (Doc. # 36). The Magistrate
Judge gave Hinson an opportunity to amend his disclosures for
the various treating physicians. The Order specified that
Hinson “should clarify whether each non-retained treating
expert will testify only on opinions formed during their
treatment of [] Hinson. If these physicians will testify based
on facts learned outside their treatment relationship with []
Hinson, then [] Hinson must provide the information required
under Rule 26(a)(2)(b).” (Id. at 8). The Order stated that
“Hinson’s amended disclosures provide adequate detail as to
Dr. Bansal’s and Dr. Weber’s opinions and supporting facts”
but also directed Hinson to “clarify that Dr. Bansal and Dr.
Weber will testify only on opinions formed during their
treatment of [] Hinson.” (Id. at 7). Regarding Dr. Heldreth,

2

the Order explained that Hinson’s amended disclosures “failed
to provide an adequate summary of the specific facts and
opinions

to

which

Dr.

Heldreth

.

.

.

[is]

expected

to

testify.” (Id.).
Hinson turned over his second amended disclosures on
April 25, 2019. (Doc. # 39-5). Hinson disclosed that he
intends for three treating physicians — Dr. Heldreth, Dr.
Bansal, and Dr. Weber — to offer opinions about the causation
of his injuries. Specifically, regarding Dr. Heldreth, the
second amended disclosures state in relevant part: “It is
anticipated

that,

based

only

upon

his

examination

and

treatment of [Hinson], Dr. Heldreth will opine that the care
and treatment provided at Total Vitality Medical Group for
those injuries was reasonable, necessary and related to the
motor vehicle collision.” (Id. at 3).
Regarding Dr. Bansal, the second amended disclosures
state in relevant part: “It is anticipated that, based only
upon his examination and treatment of [Hinson], Dr. Bansal
will opine that: [Hinson] suffered personal injuries to his
right shoulder and right knee as a direct result of the
subject

incident;

[Hinson]

suffered

aggravation

of

pre-

existing medical arthritic condition of his right knee as a
direct result of the subject incident; . . . [and] the care

3

and treatment [Hinson] received by Dr. Bansal for those
injuries
related

and
to

aggravations

the

injuries

were

reasonable,

sustained

in

the

necessary
motor

and

vehicle

collision.” (Id. at 5-6). Finally, regarding Dr. Weber, the
second amended disclosures state in relevant part: “It is
anticipated

that,

based

only

upon

his

examination

and

treatment of [Hinson], Dr. Weber will opine that: [Hinson]
suffered personal injuries to his cervical spine and lumbar
spine as a direct result of the subject incident, including
but not limited to cervical myelopathy and is at risk for a
devastating neurologic injury; . . . [and] the care and
treatment [Hinson] received by Dr. Weber for those injuries
were reasonable, necessary and related to the spinal injuries
sustained in the motor vehicle collision.” (Id. at 8-9).
Now,

the

United

States

moves

for

partial

summary

judgment on the issue of whether Hinson’s injuries were caused
by the car accident. (Doc. # 39). In support, the United
States contends that Hinson’s second amended disclosures are
insufficient to allow his treating physicians to opine on
causation and that Hinson has no other evidence in support of
causation. (Id.). The United States has also filed a Motion
in Limine, seeking to prevent Dr. Heldreth, Dr. Bansal, and
Dr. Weber “from providing expert testimony that [Hinson’s]

4

injuries are causally related to the motor vehicle accident
. . . and to prevent any of [Hinson’s] treating physician
experts from offering any testimony which is based upon
information provided to them in anticipation of litigation or
trial.” (Doc. # 41 at 1).
Hinson has responded to both Motions (Doc. ## 40, 42),
and the Motions are ripe for review.
II.

Legal Standard
A.
“A

Motion in Limine
motion

in

limine

presents

a

pretrial

issue

of

admissibility of evidence that is likely to arise at trial,
and as such, the order, like any other interlocutory order,
remains subject to reconsideration by the court throughout
the trial.” In re Seroquel Prods. Liab. Litig., Nos. 6:06–
md–1769–Orl–22DAB, 6:07–cv–15733–Orl–22DAB, 2009 WL 260989,
at *1 (M.D. Fla. Feb. 4, 2009). “The real purpose of a motion
in limine is to give the trial judge notice of the movant’s
position so as to avoid the introduction of damaging evidence
which may irretrievably effect the fairness of the trial.”
Id. (internal quotation marks omitted). “A court has the power
to exclude evidence in limine only when evidence is clearly
inadmissible

on

all

potential

quotation marks omitted).

5

grounds.”

Id.

(internal

“A motion in limine is not the proper vehicle to resolve
substantive issues, to test issues of law, or to address or
narrow the issues to be tried.” LSQ Funding Grp. v. EDS Field
Servs., 879 F. Supp. 2d 1320, 1337 (M.D. Fla. 2012)(citing
Royal Indem. Co. v. Liberty Mut. Fire Ins. Co., No. 07–80172–
CIV, 2008 WL 2323900, at *1 (S.D. Fla. June 5, 2008)). “Denial
of a motion in limine does not necessarily mean that all
evidence contemplated by the motion will be admitted at
trial.” In re Seroquel, 2009 WL 260989, at *1 (internal
quotation marks omitted). “Instead, denial of the motion
means the court cannot determine whether the evidence in
question should be excluded outside the trial context.” Id.
“The court will entertain objections on individual proffers
as they arise at trial, even though the proffer falls within
the scope of a denied motion in limine.” Id.
The district court has broad discretion to determine the
admissibility of evidence, and the appellate court will not
disturb

this

Court’s

judgment

absent

a

clear

abuse

of

discretion. United States v. McLean, 138 F.3d 1398, 1403 (11th
Cir. 1998); see also United States v. Jernigan, 341 F.3d 1273,
1285 (11th Cir. 2003)(“Inherent in this standard is the firm
recognition that there are difficult evidentiary rulings that
turn on matters uniquely within the purview of the district

6

court, which has first-hand access to documentary evidence
and is physically proximate to testifying witnesses and the
jury.”).
B.

Summary Judgment

Summary judgment is appropriate “if 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). A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude
a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996)(citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if
it may affect the outcome of the suit under the governing
law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997). The moving party bears the initial burden of showing
the Court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260

7

(11th Cir. 2004)(citing Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)).
“When a moving party has discharged its burden, the nonmoving party must then ‘go beyond the pleadings,’ and by its
own

affidavits,

or

by

‘depositions,

answers

to

interrogatories, and admissions on file,’ designate specific
facts showing that there is a genuine issue for trial.”
Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th
Cir. 1995)(quoting Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to
be true and all reasonable inferences must be drawn in the
non-moving party’s favor. Shotz v. City of Plantation, 344
F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder
evaluating the evidence could draw more than one inference
from the facts, and if that inference introduces a genuine
issue of material fact, the Court should not grant summary
judgment. Samples ex rel. Samples v. City of Atlanta, 846
F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s
response consists of nothing “more than a repetition of his
conclusional

allegations,”

summary

judgment

is

not

only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981).

8

III. Analysis
A.

Rule 26 Disclosures

“A treating physician may testify as either a lay witness
or an expert witness; however, in order to testify as an
expert

witness,

disclosures

the

under

either

26(a)(2)(C).”

Sweat

17JSS,

WL

2015

physician

v.

Rule

United

8270434,

must

at

provide

the

26(a)(2)(B)

States,
*2

No.

(M.D.

required
or

Rule

8:14-cv-888-TFla.

Dec.

8,

2015)(citations omitted). Typically, treating physicians are
only

required

to

satisfy

the

lower

standard

of

Rule

26(a)(2)(C). See Bostick v. State Farm Mut. Auto. Ins. Co.,
No. 8:16-cv-1400-T-33AAS, 2017 WL 2869967, at *2 (M.D. Fla.
July 5, 2017)(“ Under the plain language of Rule 26(a)(2)(B),
[the plaintiff’s] treating physicians were not required to
provide written reports because they were not retained or
specially employed to provide expert testimony.”).
Pursuant to Rule 26(a)(2)(C), a party must submit an
expert disclosure for any expert witness not required to
submit an expert report. That expert disclosure must state
“the subject matter on which the witness is expected to
present evidence under Federal Rule of Evidence 702, 703, or
705” and “a summary of the facts and opinions to which the
witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C).

9

“This disclosure is considerably less extensive than the
report required by Rule 26(a)(2)(B)” and “[c]ourts must take
care against requiring undue detail, keeping in mind that
these witnesses have not been specially retained and may not
be as responsive to counsel as those who have.” Id. (Advisory
Committee Notes to 2010 Amendment).
As the Magistrate Judge already explained in this case,
“[b]ecause

a

treating

physician

considers

not

only

the

plaintiff’s diagnosis and prognosis, opinions as to the cause
of injuries do not require a written report if based on the
examination and treatment of the patient.” (Doc. # 36 at
4)(citation omitted). Indeed, “[t]estimony as to causation of
an injury is not ‘expert testimony’ that requires expert
disclosure under Rule 26.” Baratta v. City of Largo, No. 8:01cv-1894-T-EAJ, 2003 WL 25686843, at *2 (M.D. Fla. Mar. 18,
2003). “Treating physicians commonly consider the cause of
any medical condition presented in a patient, the diagnosis,
the prognosis and the extent of disability, if any, caused by
the condition or injury.” Id.
The United States argues the second amended disclosures
for Dr. Heldreth, Dr. Bansal, and Dr. Weber are insufficient
and, thus, these treating physicians should be precluded from
testifying about the cause of Hinson’s injuries. (Doc. # 39

10

at 6-9; Doc. # 41 at 1-2). Specifically, the United States
argues that the disclosures for Dr. Heldreth, Dr. Bansal, and
Dr. Weber fail to sufficiently provide “a summary of the facts
and opinions to which the witness is expected to testify”
under Rule 26(a)(2)(C). (Doc. # 39 at 7-8).
Regarding Dr. Heldreth, the United States argues that
Hinson “has offered no facts at all that would support Dr.
Heldreth’s purported causation opinion, in violation of Rule
26(a)(2)(C)(ii).” (Id. at 7). The United States points out
that “Dr. Heldreth did not treat [Hinson] at any point prior
to the November 7, 2016 accident, nor did Dr. Heldreth review
any of [Hinson]’s medical records or MRI studies from prior
to November 7, 2016.” (Id.).
And, regarding Dr. Bansal and Dr. Weber, the United
States contends Hinson’s “disclosure includes no facts that
could form the basis of [Dr. Bansal and Dr. Weber’s] opinions,
in violation of Rule 26.” (Id. at 8). The United States
emphasizes that “[n]either Dr. Weber nor Dr. Bansal ever
treated [Hinson] prior to the November 7, 2016 accident, nor
did they review any of [Hinson]’s prior medical records or
MRI studies from before the accident during the course of
their treatment of [Hinson].” (Id.). Thus, the United States
concludes “[b]ecause these physicians have no knowledge or

11

information regarding [Hinson]’s physical condition prior to
the accident, there is no basis by which either Dr. Weber or
Dr. Bansal could opine that [Hinson]’s alleged injuries were
caused or aggravated by the accident (nor do [Hinson]’s
disclosures identify what facts these experts considered that
would support such causation opinions).” (Id. at 8-9).
But the United States cites no authority to support its
contention that only treating physicians who have treated a
patient before the patient’s injury at issue may opine as to
the cause of the patient’s injury. And the Court is not
persuaded that Dr. Heldreth, Dr. Bansal, and Dr. Weber could
not have formed opinions as to causation of Hinson’s injuries
during the course of their treatment just because they did
not treat him before the car accident.
Indeed, upon review of the summary of facts and opinions
for each physician, the Court believes that the second amended
disclosures are sufficient for Dr. Heldreth, Dr. Weber, and
Dr. Bansal. This is not a situation in which the disclosure
merely contains broad, general information on the treating
physician and his planned testimony. See, e.g.,
Tex.

Roadhouse,

3757762,

at

26(a)(2)(C)

*1

Pugliese v.

Inc.,

No.

5:17-cv-392-Oc-PRL,

(M.D.

Fla.

Aug.

disclosure

inadequate

12

8,

2018

2018)(finding

because

it

WL
Rule

“provide[d]

little more than the name and address for each provider,
together with general statements such as that the witness is
a ‘board certified orthopedic surgeon,’ and ‘testimony will
relate to his treatment of Plaintiff’s injuries after the
subject

accident,

resulting

medical

his

diagnosis

bills

and

and

prognosis,

charges’”);

Jones

and
v.

the

Royal

Caribbean Cruises, Ltd., No. 12-20322-CIV, 2013 WL 8695361,
at *4 (S.D. Fla. Apr. 4, 2013)(“Plaintiff’s expert witness
disclosures simply lists the names of his treating physicians
. . . . It is therefore clear that Plaintiff did not comply
with Rule 26(a)(2)(C). Indeed, the reader of Plaintiff’s
disclosures has no idea what opinion the doctors will offer
or on what facts the doctors will base those opinions.”).
Rather,

the

descriptions

in

Hinson’s

second

amended

disclosures are thorough and provide a clear picture of the
treatment

each

physician

provided,

what

materials

each

physician reviewed, and the opinions each physician plans to
offer at trial. (Doc. # 39-5 at 2-11).
Furthermore, in so ruling, the Court is mindful that the
Rule 26(a)(2)(C) disclosure requirement is “considerably less
extensive than the report required by Rule 26(a)(2)(B)” and
that the Court should not require “undue detail” for such
disclosures. Fed. R. Civ. P. 26 (Advisory Committee Notes to

13

2010 Amendment). Thus, the United States’ Motion in Limine is
due to be denied. 1 However, denial of the Motion in Limine is
without prejudice, and the United States is not foreclosed
from challenging Hinson’s experts during trial.
B.

Causation

“Under the FTCA, the law of the state where the alleged
negligent act or omission occurred governs the rights and
liabilities of the parties.” Abrisch v. United States, 359 F.
Supp. 2d 1214, 1226 (M.D. Fla. 2004). Because the accident at
issue occurred in Florida, Florida law applies.
“Under Florida law, the Plaintiff in general bears the
burden of proving causation.” Rementer v. United States, No.
8:14-cv-642-T-17MAP, 2015 WL 5934522, at *2 (M.D. Fla. Oct.
9, 2015). So, Hinson “must come forward with admissible
evidence

on

the

issue

of

medical

causation

in

order

to

demonstrate that there is a material issue of fact that should
preclude summary judgment.” Id. “In the negligence context
under Florida law, ‘lay testimony is legally insufficient to
support a finding of causation where the medical condition

To the extent the United States’ Motion in Limine can be
interpreted as a Daubert motion, the Motion is due to be
denied as untimely. The Amended Case Management and
Scheduling Order set a May 1, 2019, deadline for Daubert
motions. (Doc. # 29). But the Motion in Limine was not filed
until June 5, 2019. (Doc. # 41).
1

14

involved is not readily observable.’” Id. (citation omitted).
And “Florida courts have held that a plaintiff’s back pain
and other soft tissue injuries are not ‘readily observable’
medical conditions.” Id. Thus, expert medical testimony is
required.
The United States argues that, because the treating
physicians’ anticipated testimony about causation should be
excluded, Hinson cannot present any evidence on causation.
(Doc. # 39 at 9-12). Thus, the United States seeks entry of
partial

summary

judgment

in

its

favor

on

the

issue

of

causation. (Id. at 11-12).
But, as discussed above, Hinson’s treating physicians
may testify as to causation and their opinion that Hinson’s
injuries were caused by — or at least aggravated by — the car
accident at issue. So, there is a genuine issue of material
fact as to causation. Therefore, the United States’ Motion
for Partial Summary Judgment is denied.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant United States of America’s Motion in Limine
(Doc. # 41) is DENIED WITHOUT PREJUDICE.

(2)

Defendant United States of America’s Motion for Partial
Summary Judgment (Doc. # 39) is DENIED.

15

DONE and ORDERED in Chambers in Tampa, Florida, this 3rd
day of July, 2019.

16