Bruce v. Classic Carrier, Inc. et al
Filing
85
ORDER AND OPINION agreeing with Judge Fullers Report and Recommendation 76 and denying defendants Motion for Summary Judgment 73 . The Court also denying plaintiffs Motion to Exclude Testimony 81 and orders discovery to be reopened for 60 days for the limited purpose of allowing plaintiff to depose Brown and Rizor and to conduct any related discovery. Signed by Judge Julie E. Carnes on 3/24/14. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JERRY MICHAEL BRUCE,
Plaintiff,
CIVIL ACTION NO.
v.
1:11-cv-01472-JEC
CLASSIC CARRIER, INC., and
OCCIDENTAL FIRE AND CASUALTY
INSURANCE COMPANY OF NORTH
CAROLINA,
Defendants.
ORDER & OPINION
This case is before the Court on Defendants’ Motion for Summary
Judgment
on
Magistrate’s
the
Cause
Report
and
of
Plaintiff’s
Recommendation
Neck
Surgery
[76],
and
[73],
the
Defendants’
Objections to the Magistrate’s Report and Recommendation [78].
This
case is also before the Court on Plaintiff’s Motion to Exclude
Testimony of David G. Brown and Randy F. Rizor [81].
For the reasons
explained in what follows, the Court ACCEPTS the Magistrate’s Report
and Recommendation [76] and DENIES Defendants’ Motion for Summary
Judgment on the Cause of Plaintiff’s Neck Surgery [73].
The Court
also DENIES Plaintiff’s Motion to Exclude Testimony of David G. Brown
and Randy F. Rizor [81].
AO 72A
(Rev.8/82)
BACKGROUND
I.
FACTUAL BACKGROUND
This
case
arises
out
of
injuries
Jerry
Michael
Bruce
(“plaintiff”) alleges to have suffered as a result of a June 11, 2008
automobile accident caused by one of the trucks owned and operated by
Classic Carrier, Inc. and insured by Occidental Fire and Casualty
Insurance Company of North Carolina (together, “defendants”).
The
facts relevant to matters before the Court, however, date to long
before the accident.
Plaintiff has an extensive history of spine-related ailments,
including psoriatic arthritis with spondylitis, radiculopathy of the
cervical and lumbar vertebrae, post-cervical fusion syndrome, and
post-lumbar laminectomy syndrome.
(Parris Dep. [45-4] at 5, 12;
Smith Dep. [45-5] at 3-4.) Symptoms of these conditions include pain
in the back, neck, shoulders, arms, and hands. (Smith Dep. [45-5] at
4.)
Dr. Glenn Parris (“Parris”), a rheumatologist, began treating
plaintiff
in
December
1999
for
back
and
neck
arthritis.
(Defs.’Statement of Material Facts [73-8] at ¶ 1.)
Plaintiff
underwent neck surgery in 2001 to treat intermittent numbness and
tingling down his arms and hands and stiffness in his neck.
(Parris
Dep. [45-4] at 3; Defs.’ Statement of Material Facts [73-8] at ¶ 2.)
Afterwards, Parris continued to treat plaintiff with steroidal and
2
AO 72A
(Rev.8/82)
non-steroidal
injections.
anti-inflammatory
drugs,
including
occasional
(Parris Dep. [45-4] at 3-4, 8.)
Dr. Stephanie Smith (“Smith”), a pain management specialist,
began treating plaintiff in 2005.
Facts [73-8] at ¶ 3.)
(Defs.’ Statement of Material
Plaintiff came to Smith complaining of neck
pain, tingling in his right shoulder, and pain and weakness in his
fingers and lower back.
(Smith Dep. [45-5] at 10.)
Smith initially
prescribed Fentanyl for plaintiff’s chronic pain and Darvocet for
“rescue pain.”
(Id. at 5.)
When plaintiff complained to Smith on
January 18, 2006 of increasing pain in his legs, hips, and neck,
Smith recommended cervical facet injections, which were performed on
May 23 and June 20, 2006.
(Id. at 13-14.)
After the second
injection, plaintiff reported numbness in his arm and fingers.
at 14.)
(Id.
In December 2006, Smith prescribed physical therapy for
plaintiff’s neck pain.
(Id. at 15.)
Physical therapy apparently
improved plaintiff’s condition, as he reported significantly less
pain upon the completion of therapy in June 2007. (Smith Dep. [45-5]
at 16.)
This prompted Smith to change plaintiff’s medication from
Dilaudid (which had replaced Fentanyl) to Lortab, which was then
changed back to Dilaudid in July 2007 as plaintiff’s pain once again
escalated. (Id.) In November 2007, plaintiff complained to Smith of
neck
pain
and
increased
right
shoulder
pain,
for
which
Smith
administered epidural steroid injections in December 2007 and January
3
AO 72A
(Rev.8/82)
2008.
(Id.
at
17.)
plaintiff’s pain.
(Id.)
Both
brought
about
some
improvement
in
By March 2008, plaintiff could report to
Smith a “70 percent improvement overall” in his condition.
(Id. at
18.)
On May 31, 2008, plaintiff was involved in an automobile
accident. (Defs.’ Statement of Material Facts [73-8] at ¶ 6.) While
waiting in a line of twelve cars at a stop sign, plaintiff’s car was
struck from behind by a vehicle driven by Nayan Patel (“Patel”).
(Parris Dep. [47-3] at 21-22.)
his neck.
(Id. at 21, 23.)
Plaintiff immediately felt pain in
A passenger in plaintiff’s vehicle
called for emergency personnel, who stabilized plaintiff’s neck and
transported him by ambulance to a hospital.
(Id. at 24-25.)
During
transport, plaintiff was unable to report how much of the pain he was
experiencing predated the collision.
(Id. at 25.)
At the hospital,
doctors x-rayed plaintiff, injected him with pain medication, and
advised him to rest for a few days and see his regular physician.
(Id. at 25-26.)
In the time between the collision and June 11, 2008,
plaintiff reported experiencing neck pain, but no arm or shoulder
pains.
(Parris Dep. [47-3] at 26-27.)
On June 11, 2008, plaintiff was again involved in an automobile
collision, when a tractor-trailer rear-ended a vehicle, which in turn
struck the rear of plaintiff’s car.
(Defs.’ Statement of Material
Facts [73-8] at ¶¶ 9-10.) Immediately afterwards, plaintiff reported
4
AO 72A
(Rev.8/82)
neck and arm pains.
(Parris Dep. [47-3] at 29-30.)
Plaintiff had to
be removed from the vehicle by emergency personnel, as the collision
had jammed the doors.
(Id. at 33.)
Plaintiff was again collared and
transported to a hospital, reporting intense pain in his neck, right
arm, and back while in transit.
(Id. at 32; Bruce Dep. [44-4] at 6.)
At the hospital, doctors x-rayed plaintiff, administered a painreliever injection, and prescribed further pain medication.
Plaintiff was discharged from the hospital that day.
(Id.)
(Defs.’
Statement of Material Facts [73-8] at ¶ 11.)
Meeting with Smith nine days later, plaintiff complained of pain
in his “neck, right shoulder, midback, and right hip,” and
Smith
increased the quantity and strength of plaintiff’s medications.
(Smith Dep. [45-5] at 22.)
In July 2008, plaintiff complained to
Parris of pain on his right side and numbness in his right hand.
(Parris Dep. [45-4] at 16-17.)
Parris referred plaintiff to Dr. Sean K. Keem (“Dr. Keem”), a
spinal surgeon, “for evaluation and treatment of intractable back
pain.” (Dr. Keem Dep. [45-3] at 10.)
Plaintiff complained to Dr.
Keem of “neck pain and arm pain and weakness involving the right
upper extremities” and “paraesthesia, [a] strange sensation involving
the right upper extremities.”
(Id. at 9.)
Dr. Keem understood the
symptoms plaintiff reported as having been “exacerbated” by the two
collisions, and prescribed physical therapy.
5
AO 72A
(Rev.8/82)
(Id. at 10-11.)
Eventually, based on plaintiff’s subjective reports of his
symptoms, rather than any radiographic findings, Dr. Keem determined
that surgery on plaintiff’s neck was appropriate.
(Id. at 25.)
Keem performed the surgery on November 14, 2008.
(Defs.’ Statement
of Material Facts [73-8] at ¶ 12.)
Dr.
Since the surgery, plaintiff has
continued to report neck and shoulder pain, although the pain and
numbness on his right side have disappeared.
(Parris Dep. [47-3] at
35.)
Plaintiff began seeing Dr. John P. Schulze (“Dr. Schulze”), a
doctor practicing in Corpus Christi, Texas, on February 8, 2011, and
continued seeing him through at least March 15, 2013.
Dep. [82-1] at 2.)
(Dr. Schulze
Dr. Schulze treated plaintiff for a variety of
health conditions, including bronchitis, sinus problems, and chest
and neck pain.
(Id. at 4.)
As part of his treatment of plaintiff’s
neck pain, Dr. Schulze injected him with Demerol and prescribed
Lortab.
II.
(Id. at 5; Bruce Dep. [82-2] at 2-3.)
PROCEDURAL BACKGROUND
On May 26, 2010, plaintiff filed suit against the defendants in
the State Court of DeKalb County, Georgia.
See Bruce v. Nat’l Gen.
Ins. Co., et al., Case No. 1:10-cv-01988-HLM (N.D. Ga.) at [1].
At
that time, Nayan Patel, the driver of the vehicle in the first
accident, was named as a defendant, as was Quinton Eugene Barger, the
driver of the tractor-trailer involved in the second accident.
6
AO 72A
(Rev.8/82)
Defendants removed the case to this Court on June 28, 2010, alleging
diversity of citizenship. Id. Plaintiff moved to remand [4] on the
ground that complete diversity was lacking, given the fact that both
the
plaintiff
and
defendant
Patel
were
citizens
of
Georgia.
Notwithstanding defendants’ argument that Patel had been fraudulently
joined [6], the district court granted the motion to remand on August
20, 2010.
(See Order [14].)
With the case now back in DeKalb County State Court, defendant
Patel moved to sever his case, on the ground that he was not a joint
tortfeasor with the other defendants.
(Bruce v. Classic Carrier,
Inc., et al., Case No. 1:11-cv-01472-JEC (N.D. Ga.) at [1].)
State Court granted Patel’s motion on April 11, 2011.
to Sever [1-2] at 1.)
(Id. at Order
Defendants once again filed a notice of
removal under 28 U.S.C. § 1446(b) on May 5, 2011.
[1].)
The
(Notice of Removal
At that point, jurisdiction in this Court became proper, as
there was complete diversity of parties:
defendant Occidental is a
North Carolina corporation; defendant Classic Carriers is a Tennessee
corporation; defendant Barger was a Tennessee citizen; and plaintiff
is a Georgia citizen.
exceeds $75,000.00.
(Id. at ¶¶ 8-11.)
The amount in controversy
(Id. at ¶ 12.)
The parties filed a joint motion for discovery on September 19,
2011.
(Joint Mot. for Disc. [8].)
month discovery track.
(Id. at ¶ 10.)
7
AO 72A
(Rev.8/82)
The parties agreed to a fourInitial disclosures were to
be provided by October 15, 2011.
(Id. at ¶ 8.)
Discovery was
scheduled to close on January 17, 2012. (Scheduling Order [9] at 1.)
Shortly
after
the
filing
of
plaintiff’s
initial
disclosures,
plaintiff filed for Chapter 13 bankruptcy, which imposed an automatic
stay on this case.
(Notice of Pl.’s Bankr. Pet. [12].)
The
bankruptcy case was closed on December 23, 2012, but because it
disrupted the parties’ ability to conduct discovery, they jointly
requested an extension of discovery through April 16, 2012.
Mot. to Extend Disc. [13] at ¶¶ 6-7, 9.)
(Joint
The Court issued an amended
scheduling order on January 27, 2012, granting the parties’ request.
(Am. Scheduling Order [14] at 1.)
The Court eventually permitted
discovery to be further extended to December 21, 2012.
(Order [50]
at 12.)
On June 28, 2012, defendants filed a motion for sanctions
against plaintiff, based on plaintiff’s alleged willful concealment
of a May 2011 affidavit about plaintiff’s medical condition made by
Dr. Keem, who had performed surgery on plaintiff’s neck. (Defs.’ Mot.
for Sanctions [38].)
There had been no mention of that affidavit in
plaintiff’s disclosure of Dr. Keem on April 19, 2012, and defendants
only learned of the affidavit while deposing the doctor on June 19,
2012.
(Defs.’ Br. in Support of Sanctions [38-1] at 6.)
The Court
concluded that plaintiff’s disclosure of Dr. Keem did not meet the
requirements of Rule 26(a)(2)(B), but declined to impose sanctions,
8
AO 72A
(Rev.8/82)
finding the noncompliance to be harmless.
(Order [50] at 12.)
Barger died at some point during, or just after, discovery.
A
Suggestion of Death [62] was filed on January 16, 2013, but it is not
clear from the record when exactly Barger died.
On May 17, 2013,
defendants filed a motion for summary judgment arguing that plaintiff
had failed to show that the second accident was the cause of the
plaintiff’s alleged injuries and damages.
[73].)
(Defs.’ Mot. for Summ. J.
On August 19, 2013, Magistrate Judge Fuller issued a Report
and Recommendation (“R&R”) [76] in favor of denying defendants’
motion for summary judgment. Defendants submitted objections [78] to
Judge Fuller’s Report.
On September 23, 2013, defendants disclosed David G. Brown
(“Brown”), an engineer, and Dr. Randy F. Rizor (“Rizor”), a medical
doctor, as expert witnesses.
[80].)
(Brown Disc. [79] and Rizor Disc.
On November 7, 2013, plaintiff filed a motion to exclude the
testimony of Brown and Rizor, on the grounds that the disclosures
were untimely and violated Rule 26 and Local Rule 26.2(C).
Mot. to Exclude [81].)
briefed this matter.
Both defendants and plaintiff have further
(Defs.’ Br. in Opp’n [82], Pl.’s Reply [84].)
9
AO 72A
(Rev.8/82)
(Pl.’s
DISCUSSION
I.
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
A.
Summary Judgment Standard
Summary
judgment
is
appropriate
when
the
pleadings,
the
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
movant is entitled to a judgment as a matter of law.
56(c).
A
fact’s
substantive law.
(1986).
materiality
is
determined
by
FED. R. CIV. P.
the
controlling
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
An issue is genuine when the evidence is such that a
reasonable jury could return a verdict for the nonmovant.
249-50.
Id. at
The court must decide “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it
is so one-sided that one party must prevail as a matter of law.”
Id.
at 251-52.
Summary judgment is not properly viewed as a device that the
trial court may, in its discretion, implement in lieu of a trial on
the merits. Instead, Rule 56 of the Federal Rules of Civil Procedure
mandates the entry of summary judgment against a party who fails to
make a showing sufficient to establish the existence of every element
essential to that party’s case on which that party will bear the
burden of proof at trial.
322 (1986).
Celotex Corp. V. Catrett, 477 U.S. 317,
In such a situation, there can be “‘no genuine issue as
10
AO 72A
(Rev.8/82)
to any material fact,’” as “a complete failure of proof concerning an
essential
element
of
the
non[-]moving
renders all other facts immaterial.”
party’s
case
necessarily
Id. at 322-23 (quoting FED. R.
CIV. P. 56(c)).
The movant bears the initial responsibility of asserting the
basis for his motion.
Id. at 323.
However, the movant is not
required to negate his opponent’s claim.
The movant may discharge
his burden by merely “‘showing’–that is, pointing out to the district
court–that there is an absence of evidence to support the non[]moving party’s case.”
Id. at 325.
After the movant has carried his
burden, the non-moving party is then required to “go beyond the
pleadings” and present competent evidence designating “specific facts
showing that there is a genuine issue for trial.”
Id. at 324.
While
the court is to view all evidence and factual inferences in a light
most favorable to the non-moving party, Samples v. City of Atlanta,
846 F.2d 1328, 1330 (11th Cir. 1988), “the mere existence of some
alleged factual dispute between the parties will not defeat an
otherwise
properly
supported
motion
for
summary
judgment;
the
requirement is that there be no genuine issue of material fact.”
Anderson, 477 U.S. at 247-48.
B.
Is Expert Testimony Necessary?
Judge Fuller’s R&R concludes that medical expert testimony is
not necessary in this case for plaintiff to survive the present
11
AO 72A
(Rev.8/82)
summary judgment motion, but that even if it were, plaintiff has
provided a sufficient combination of expert and non-expert testimony
to establish a triable issue as to causation.
(R&R [76] at 12, 16.)
Defendants object to this concluson, and contend that Georgia law
requires plaintiff to produce expert medical testimony in this case
in order to survive defendants’ motion for summary judgment. (Defs.’
Objs. [78] at 1-3.) Further, defendants argue that plaintiff has not
produced sufficient expert testimony to meet that standard, because
there is no explicit testimony from plaintiff’s doctors linking
plaintiff’s surgery to his newly-identified arm pain.
(Id. at 4.)
Dr. Keem, plaintiff’s surgeon, stated that he decided that surgery
was necessary based on plaintiff’s subjective reports of symptoms,
rather than radiographic evidence.
(Dr. Keem Dep. [45-3] at 9, 25.)
Thus, defendants contend, if a medical expert is unable to state
definitively, based on the objective medical evidence, that the
tractor-trailer collision caused damage to plaintiff’s neck requiring
surgery, neither could a reasonable jury.
(Defs.’ Objs. [78] at 7-
8.)
The elements of a negligence claim in Georgia “are the existence
of a legal duty; breach of that duty; a causal connection between the
defendant’s conduct and the plaintiff’s injury; and damages.” Ceasar
v. Wells Fargo Bank, N.A., 322 Ga. App. 529, 533 (2013).
As Judge
Fuller correctly noted, expert testimony is not generally required in
12
AO 72A
(Rev.8/82)
a negligence claim, except where there is a medical question about
the cause of the plaintiff’s injury.
(R&R [76] at 11.)
A medical
question arises where “the existence of a causal link between the
defendant’s conduct and the plaintiff’s injury cannot be determined
from
common
knowledge
and
experience
and
instead
requires
the
assistance of experts with specialized medical knowledge.” Cowart v.
Widener, 287 Ga. 622, 627 (2010).
As the Cowart court recognized,
the
too
term
“medical
question”
is
broad,
as
“most
‘medical
questions’ relating to causation are perfectly capable of resolution
by ordinary people using their common knowledge and experience,
without the need for expert testimony.”
Id. at 628.
The Georgia
Supreme Court thus proffered the term “specialized medical questions”
to refer to those medical issues that require expertise beyond the
lay juror’s capacity.
Id. at 629.
Whether a specialized medical question exists here turns on the
plaintiff’s theory of the injury alleged.
In a leading Georgia
Supreme Court case, a hospital patient suffering from acute leukemia
slipped on a wet floor, hit his head, and died a few hours later from
a cerebral hemorrhage.
Self v. Exec. Comm. of the Ga. Baptist
Convention of Ga., Inc., 245 Ga. 548 (1980).
When his family sued
the hospital for negligence, the hospital provided expert testimony
that purported to demonstrate that the cause of the patient’s death
was brain damage caused by the acute leukemia, not any trauma from
13
AO 72A
(Rev.8/82)
the fall.
The family provided no contrary expert evidence, and the
trial court granted summary judgment to the hospital.
The Georgia
Court of Appeals affirmed, but the Georgia Supreme Court reversed,
holding that the expert testimony was not dispositive.
Rather,
“[t]he weight given to expert testimony in such cases is for the
trier of fact, who is not required to give it controlling influence.”
Id.
In Cowart, the Georgia Supreme Court interpreted Self to hold
that:
[a] lay jury may reasonably infer a causal link between a
sharp blow to the head of a patient whose condition
appeared to be improving and his death from bleeding in his
head a few hours later.
A defense expert may create a
material issue as to whether the blow was the actual cause
of death, but in that event, the jury resolves the disputed
fact; it does not require summary judgment for the
defendant.
Cowart, 287 Ga. at 637; see also Allstate Ins. Co. v. Sutton, 290 Ga.
App. 154, 160 (2008)(“Self concerned whether a blow to the head could
cause death, a question that we have held to be within a lay person’s
knowledge.”)
Thus,
even
where
the
defendant
has
provided
an
alternative theory of the cause of plaintiff’s injury, supported by
evidence and medical expert testimony, this does not shift the burden
to the plaintiff in a summary judgment motion.
Rather, it simply
raises a factual dispute to be resolved at trial.
The specialized
medical question analysis remains focused on the plaintiff’s theory.
A
complication
emerges,
however,
14
AO 72A
(Rev.8/82)
where
the
plaintiff
has
preexisting medical ailments.
The Georgia Court of Appeals has
addressed situations where the plaintiff is seeking to recover for an
injury that is related to a preexisting medical condition, and has
held, as a general principle, that “[a] causal connection, requiring
expert medical testimony, must be established where the ‘potential
continuance of a disease’ is at issue.”
Jordan v. Smoot, 191 Ga.
App. 74 (1989)(citing Eberhart v. Morris Brown Coll., 181 Ga. App.
516, 518 (1987)).
This preexisting condition rule only applies,
however, where there is continuity in the condition; it does not
apply in situations where the preexisting condition has subsided
prior to the occurrence of the tort.
See Cox v. Rewis, 207 Ga. App.
832, 835 (1993)(jury could reasonably find that the plaintiff’s
carpal tunnel problems were aggravated by an automobile accident,
even if the plaintiff had first suffered from them years before,
because the symptoms had subsided in the intervening period).
Thus,
if there is evidence that the complained-of injury is a preexisting
condition, the plaintiff must produce medical testimony explaining
why the tortious event aggravated the prior condition to survive a
motion
for
summary
judgment.
However,
a
lay
jury
could
find
proximate cause if the injury, although present in plaintiff’s
medical history, had disappeared prior to the tortious event.
The Cox holding follows from the general principle that, where
the symptoms complained of emerge immediately or soon after the event
15
AO 72A
(Rev.8/82)
alleged to have caused them, and it is common knowledge that such an
event is one that could cause that kind of injury, a reasonable jury
could draw conclusions about proximate cause.
Hutcheson v. Daniels,
224 Ga. App. 560, 569 (1997)(“[A] lay jury could conclude from common
knowledge that a causal connection existed in light of the short
lapse between [the plaintiff’s] accident and his onset of symptoms
and receipt of medical treatment.”); Jordan, 191 Ga. App. at 74
(“[w]here, as here, there is no significant lapse of time between the
injury sustained and the onset of the physical condition for which
the injured party seeks compensation, and the injury sustained is a
matter which jurors must be credited with knowing by reason of common
knowledge, expert medical testimony is not required in order for a
plaintiff to establish a personal injury case sufficient to withstand
a defendant's motion for directed verdict.”)
In support of their position that there is a specialized medical
question, defendants urge the Court to follow a recent Northern
District of Georgia case:
See Whitley v. Yarber, 1:11-cv-00333-MHS
(N.D. Ga. Apr. 25, 2013)(Shoob, J.)(copy attached to Defs.’ Reply Br.
[75-1]).
In Whitley, the defendant was granted summary judgment
under facts similar to those in the present case. Both cases involve
injuries
suffered by a plaintiff who was involved in two successive
automobile accidents, with a relatively short interval of time
between the accidents.
Judge Shoob granted summary judgment to the
16
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(Rev.8/82)
defendant (who caused the second accident) because there had emerged
in
discovery
no
evidence
or
testimony
that
could
support
the
plaintiff’s contention that the injuries were the result of the
second accident, rather than the first one.
(Id. at 7-8.)
This Court, however, agrees with Judge Fuller that Whitley is
factually distinguishable.
In Whitley, the plaintiff complained of
the exact same pains that she had experienced prior to the second
automobile accident that she claimed necessitated her surgery.
at 23.)
(Id.
Because of this, Judge Shoob granted summary judgment for
the defendant, as there was no ground for a reasonable jury to
determine that the automobile accident caused any change in the
plaintiff’s condition.
holding of Jordan.
(Id. at 30-31.)
This is firmly within the
Here, in contrast, plaintiff claims to have
suffered injuries not present immediately before the collision with
defendants’ tractor-trailer. Specifically, plaintiff identifies arm
pain that he did not complain of after the first accident.
(Smith
Dep. [45-5] at 14-18; Parris Dep. [47-3] at 32; Bruce Dep. [44-4] at
6.)
Although plaintiff has suffered from similar arm pain in the
past, he had reported its diminishment prior to the accidents of May
and June, 2008.
This would place the present case within the Cox
exception to Jordan, and thus distinguish it from Whitley.
Since the parties submitted their briefs, there has been a new,
but unpublished, Eleventh Circuit opinion that provides a closer
17
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(Rev.8/82)
factual comparison to the present case than does Whitley. See Cooper
v. Marten Trans., Ltd., 539 Fed. App’x 963 (11th Cir. 2013).
In
Cooper, a husband and wife were involved in an accident when their
car was struck by a tractor-trailer.
accident,
and
surgeries.
Id.
complaining
They
of
both
back
had
Id. at 964.
pain,
histories
the
of
Shortly after the
couple
underwent
degenerative
back
ailments, were obese, and had been involved in another car accident
the year before. Id. at 966.
The district court granted summary
judgment to the defendants on the ground that the plaintiffs’ doctors
could not explain why they believed the injuries were caused by the
accident with the defendants, rather than the earlier accident or the
pre-existing conditions.
Id.
The Eleventh Circuit reversed, noting
that although there was
“evidence that the [plaintiffs’] injuries
may have been the result of preexisting conditions or [the prior]
collision, such evidence created a dispute of material fact that the
district court was not authorized to resolve at the summary judgment
stage.”
Cooper, 539 Fed. App’x at 968.
The Eleventh Circuit noted
that “[w]hether [plaintiffs] suffered new or aggravated back problems
shortly after a low-speed collision with a tractor trailer is the
type of question a lay jury could decide based on common knowledge.”
Id. (citing Hutcheson, 224 Ga. App. at 561).
Although Cooper is not binding precedent, it is persuasively
reasoned.
Further, it comports with this Court’s reading of the
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binding precedents of Cowart, Self, and Cox.
On the basis of these
cases, the Court concludes that medical expert testimony is not
necessary in this case for plaintiff to avoid summary judgment, as
plaintiff reported symptoms soon after the tractor-trailer accident–the arm pain--that he had not experienced for years prior to the
accident.
Defendants may raise issues relating to plaintiff’s
medical history and introduce alternative theories about the cause of
plaintiff’s injuries, but those are matters for the trier of fact to
weigh, not for this Court to decide on a motion for summary judgment.
Even
assuming,
however,
that
expert
medical
testimony
is
necessary at this stage, the Georgia Court of Appeals has held that
plaintiffs may meet the required threshold showing to survive summary
judgment
evidence.
through
a
combination
of
expert
testimony
and
other
Rodrigues v. Georgia-Pacific Corp., 290 Ga. App. 442, 446
(2008)(reversing a grant of summary judgment for a defendant where
the plaintiff’s medical expert stated only that the defendant’s
actions were a “‘possible’ cause of [the plaintiff’s] injuries,
[because] other nonexpert evidence was presented that supplemented
that
testimony.”)
In
Rodrigues,
that
supplementary
evidence
consisted of the plaintiff’s testimony that he had been in good
health before the allegedly tortious act and began suffering symptoms
immediately afterwards.
Id.
See also Nat’l Dairy Prods. Corp. v.
Durham, 115 Ga. App. 420, 423-24 (1967)(where plaintiff claimed that
19
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a collision caused an inactive tumor to become active and malignant,
a combination of expert medical testimony that established possible
causation and nonexpert testimony that “established the decedent’s
apparent good health prior to the collision and the onset of cancer
symptoms closely following the collision” was sufficient to withstand
a summary judgment motion).
Similarly, plaintiff’s description of his health prior to the
collision, supported by his doctors’ accounts of plaintiff’s medical
history,
plaintiff
are
has
sufficient
a
long
to
avoid
history
of
summary
judgment.1
ailments,
significant improvement by March 2008.
he
was
Although
reporting
(Smith Dep. [45-5] at 18.)
After the accident of June 11, 2008, he reported symptoms that were
not present in the months preceding that incident. (Parris Dep. [47-
1
Dr. Keem states in his affidavit:
Although I cannot exclude the possibility that the two
collisions combined to exacerbate [plaintiff’s] preexisting
condition and cause his pain, treatment and subsequent
surgery, in my opinion, and to a reasonable degree of
medical certainty, [plaintiff’s] pain, treatment, and
subsequent surgery were caused by the June collision
involving the tractor-trailer.
When comparing the two
collisions and the impact they had upon [plaintiff’s]
physical condition, it is more probable that [plaintiff’s]
pain, treatment and surgery were caused by the high energy
collision between a tractor trailer, Chevrolet Tahoe, and
[plaintiff’s] vehicle, which caused significant property
damage, as compared to the collision which caused minor
damage, and was neither disabled nor inoperable.
(Dr. Keem Aff. [73-6] at ¶ 13.)
20
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3] at 32; Bruce Dep. [44-4] at 6.)
This non-expert testimony,
coupled with the expert testimony from plaintiff’s doctors, falls
well within the rule of Rodrigues.
Therefore, even with defendants’
argument that Dr. Keem only raised the possibility that the surgery
was necessitated by the accident, there is sufficient non-expert
testimony in this case to warrant a denial of defendants’ motion for
summary judgment.
Based on these persuasive and binding authorities, the Court
determines that summary judgment is not warranted here.
The Court
thus agrees with Judge Fuller’s Report and Recommendation [76] and
DENIES defendants’ motion for summary judgment [73].
II.
PLAINTIFF’S MOTION TO EXCLUDE EXPERT TESTIMONY
A.
Motion to Exclude Standard
Federal Rule of Civil Procedure 26(a)(2)(D) requires parties
using the testimony of experts to “make these disclosures at the
times and in the sequence that the court orders.”
This district’s
Local Rules require that the party using the expert testimony “shall
designate the expert sufficiently early in the discovery period.” LR
26.2(C), NDGa. Timely disclosure ensures that the opposing party has
the “opportunity to depose the expert and, if desired, to name its
own expert sufficiently in advance of the close of discovery so that
a similar discovery deposition of the second expert might also be
conducted prior to the close of discovery.”
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Id.
If a court determines that the disclosure rules have been
violated, the court must then determine what, if any, sanctions are
appropriate.
Cf. OFS Fitel, LLC v. Epstein, Becker and Green, P.C.,
549 F.3d 1344, 1363 (11th Cir. 2008).
Rule 37(c)(1) provides the
enforcement mechanism for violations of Rule 26(a), and states that
“[i]f 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 a trial, unless the failure was substantially justified or is
harmless.”
FED. R. CIV. P. 37(c)(1)(emphasis added).
“The burden of
establishing that a failure to disclose was substantially justified
or harmless rests on the nondisclosing party.”
Mitchell v. Ford
Motor Co., 318 Fed. App’x 821, 824 (11th Cir. 2009)(quoting Leathers
v. Pfizer, Inc., 233 F.R.D. 687, 697 (N.D. Ga. 2006)(Evans, J.)).
In determining whether a failure to comport with Rule 26(a) is
“substantially justified” or “harmless,” some district courts have
identified five factors to consider:
(1) the surprise to the party against whom the evidence
would be offered; (2) the ability of that party to cure the
surprise; (3) the extent to which allowing the evidence
would disrupt the trial; (4) the importance of the
evidence; and (5) the nondisclosing party’s explanation for
its failure to disclose the evidence.
Cambridge Univ. Press v. Becker, Civil Action No. 1:08-CV-1425-ODE,
2010 WL 6067575, at *3 (N.D. Ga. Sept. 21, 2010)(Evans, J.)(citing
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United States ex rel. Bane v. Breathe Easy Pulmonary Servs., Inc.,
No. 8:06-CV-40-T-33MAP, 2009 WL 92826, at *3 (M.D. Fla. Jan. 14,
2009)). The Eleventh Circuit has neither accepted nor rejected those
factors.
It has employed a similar, but simpler, test in reviewing
a district court’s exclusion of the testimony of an improperly
disclosed witness, considering “(1) the importance of the testimony;
(2) the reason for the appellant’s failure to disclose the witness
earlier; and (3) the prejudice to the opposing party if the witness
had been allowed to testify.”
Bearint ex rel. Bearint v. Dorell
Juvenile Grp., Inc., 389 F.3d 1339, 1353 (11th Cir. 2004).
The Local Rules mandate that a party that fails to comply with
the disclosure requirement “shall not be permitted to offer the
testimony of the party’s expert, unless expressly authorized by court
order based upon a showing that the failure to comply was justified.”
LR 26.2(C), NDGa.
Local Rule 26.2(C) requires that the failure to
disclose was “justified” if the party is to escape sanction, and
makes no mention of whether a harmless failure to disclose is
excusable.
Some judges in this district have concluded that this
requires the court to exclude the “harmless” part of the Rule
37(c)(1) criteria.
See Durkin v. Platz, 920 F. Supp. 2d 1316, 1328
(N.D. Ga. 2013)(Batten, J.)(“[T]he standard for striking untimely
expert testimony is not whether the opposing party is prejudiced, but
whether the proffering party’s failure to comply was justified.”);
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Fedrick v. Mercedes-Benz USA, LLC, 366 F. Supp. 2d 1190, 1195 (N.D.
Ga. 2005)(Duffey, J.)(“The [local] rule clearly provides Plaintiff
must demonstrate her failure to comply was justified to avoid the
exclusion of her expert witness.”)
less certainty.
At least one judge has expressed
Cf. Vision Airlines, Inc. v. SST Air, LLC, Civil
Action No. 2:12-CV-00021-WCO, 2013 WL 6908935, at *3 n.1 (N.D. Ga.
Feb. 27, 2013)(O’Kelley, J.)(“As the court finds that the late
disclosure in this case was neither substantially justified nor
harmless, the court need not address this distinction between the
local and federal rules.”)
The Court proceeds by applying the three-part inquiry set out by
the
Eleventh
Circuit
in
Bearint:
“(1)
the
importance
of
the
testimony; (2) the reason for the appellant’s failure to disclose the
witness earlier; and (3) the prejudice to the opposing party if the
witness had been allowed to testify.”
explained
infra,
the
Court
finds
389 F.3d at 1353.
that
defendants’
Because, as
failures
to
disclose Brown and Rizor are justified, it does not need to address
the apparent discrepancy between the Local and Federal Rules.
B.
David
Testimony of David G. Brown
G.
Brown
is
a
professional
engineer
with
extensive
experience in automobile accident investigation and reconstruction.
(Brown Disc. [79-1] at 3-5.)
Defendants retained Brown “to conduct
an analysis of the alleged speed of the impact between the vehicles
24
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and to provide an opinion about whether or not certain eye witness
testimony on the speed of the defendants’ vehicle at the time of the
occurrence was consistent with the available physical evidence.”
(Brown Disc. [79] at 1-2.)
1.
Importance of the Testimony
Brown’s testimony is important, defendants contend, because of
the unfortunate death of defendant Barger, the driver of the tractortrailer, “near the end of the discovery period.”
Opp’n [82] at 1.)
(Defs.’ Br. in
Defendants were planning to have Barger himself
testify about his speed, but now, they “have no eye-witness testimony
on the pre-impact speed of the vehicle.”
(Id. at 6.)
Because the
speed of the impact is important in determining what injuries might
have
followed
from
the
collision,
this
testimony
is
vital.
Defendants contend that it will substantiate Barger’s deposition
testimony and rebut plaintiff’s and plaintiff’s witnesses’ testimony
that the tractor-trailer was traveling 40 miles per hour or more at
the time of impact.
2.
(Id. at
6-7.)
Reasons for Defendants’ Failure to Disclose Earlier
Defendants state that “[b]y the time that the defendants were
made aware of Mr. Barger’s passing it would not have been possible to
disclose Mr. Brown as an expert within the time contemplated by Local
Rule 26.2(C).”
(Id. at 2.)
January 16, 2013.
The Suggestion of Death was filed on
It is not clear from the record exactly when
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Barger died, but it seems to have been at the very end of the
scheduled
discovery
period.
For
that
reason,
defendants
were
presumably unable to disclose Brown prior to the close of discovery,
in accordance with Rule 26 and Local Rule 26.2.
3.
Prejudice to Plaintiff
Local Rule 26.2(C) is designed “to permit the opposing party the
opportunity to depose the expert and, if desired, to name its own
expert witness sufficiently in advance of the close of discovery so
that a similar discovery deposition of the second expert might also
be conducted prior to the close of discovery.”
LR 26.2(C), NDGa.
The tardy disclosure of Brown requires plaintiff to consider deposing
Brown and perhaps retain their own accident reconstruction expert.
That is, while plaintiff was aware that the speed of the tractortrailer would be an issue in this case, plaintiff has not had reason
to anticipate that there would be testimony from an engineer, as
opposed to lay eyewitnesses.
Although it is true that defendants learned of Barger’s death
approximately nine months before disclosing Brown as an expert, and
should have perhaps moved more quickly to disclose him,2 this delay
2
The Court notes that the disclosure was made shortly after
issuance of the magistrate judge’s R&R recommending denial of
defendants’ motion for summary judgment.
Presumably, defendants
thought that they might succeed on their pending summary judgment
motion on causation, thereby rendering a determination of the
tractor-trailer’s speed unnecessary.
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has not caused plaintiff any significant prejudice, as no trial date
has been set and plaintiff will have an opportunity to depose Brown
prior to trial.
C.
Testimony of Randy F. Rizor
Randy Rizor is a physician “retained by the defendants to
conduct an analysis of [plaintiff’s] reports of pain and the pain
management treatment provided to [plaintiff] both before and after
the subject occurrence.”
(Rizor Disc. [80] at 1.)
In particular,
Rizor was retained to provide testimony relating to plaintiff’s
treatment by Dr. Schulze.
Defendants expect Rizor “to opine that
there is no objective medical evidence that the symptoms reported by
[plaintiff] in his right shoulder and arm were caused by the June 11,
2008 accident.”
1.
(Id. at 1-2.)
Importance of the Testimony
The testimony of Rizor is important, as it gives defendants an
opportunity to introduce expert testimony on the issue of plaintiff’s
ongoing pain management treatment provided by Dr. Schulze.
Br. in Opp’n [82] at 11.)
(Defs.’
Testimony on this subject is pertinent to
issues that might emerge at trial, including plaintiff’s history of
pain medication use and possible abuse, and the consistency of
plaintiff’s medical treatment since the June 11, 2008 accident with
the injuries allegedly caused by the accident.
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(Id. at 12.)
2.
Reasons for Defendants’ Failure to Disclose Earlier
Plaintiff did not identify Dr. Schulze as a potential witness in
his initial disclosures of October 19, 2011, even though he had
received treatment from Dr. Schulze dating back to February, 2011.
(Id. at 9.)
Defendants were made aware that Dr. Schulze provided
some treatment to plaintiff–-one injection and one pain medication
prescription–-only in the course of plaintiff’s second deposition on
July 2, 2012.
(Id. and at Ex. 2.)
Plaintiff did not reveal, and the
records provided during discovery did not indicate, the fact that
plaintiff was continuing to receive treatment from Dr. Schulze.
By
agreement, the parties deposed Dr. Schulze after the close of
discovery, on March 19, 2013. (Id. at 10.)3 It was only at that time
that defendants learned of plaintiff’s ongoing treatment from Dr.
Schulze.
Defendants argue that it was only with the deposition of
Dr. Schulze that they were made aware of the need for expert
testimony, as, before then, there had been no indication that
plaintiff’s continuing pain management treatment was a possible issue
in the case.
3.
(Defs.’ Br. in Opp’n [82] at 11.)
Prejudice to Plaintiff
Plaintiff is in no position to complain about prejudice as it
3
Defendants further suggest that plaintiff has violated Rule
26(e) in failing to disclose Dr. Schulze as a treating physician.
(Defs.’ Br. in Opp’n [82] at 9.)
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AO 72A
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was plaintiff’s failure to disclose the continuing treatment by Dr.
Schultze that caused defendants’ delay in disclosing an expert to
discuss the significance of that treatment.4
As plaintiff caused the
problem, he clearly cannot now complain about any prejudice that he
may have suffered.
D.
Reopening Discovery
The
Court
determines
that
defendants
have
justified
their
failure to disclose Brown and Rizor as testifying experts prior to
the close of discovery.
In the interest of having all relevant
testimony presented at trial, the Court orders that discovery be
reopened for a limited period of sixty days, so that plaintiff may
depose Brown and Rizor and procure their own experts on the issues of
the speed of the tractor-trailer at the time of the collision and
plaintiff’s ongoing pain-management treatment.
CONCLUSION
For the above reasons, the Court agrees with Judge Fuller’s
Report and Recommendation [76] and DENIES defendants’ Motion for
Summary Judgment [73].
The Court also DENIES plaintiff’s Motion to
Exclude Testimony [81] and ORDERS discovery to be reopened for sixty
4
This Court had previously directed plaintiff, in the wake of
earlier discovery rules infractions, “to serve a disclosure relating
to testimony of Dr. Keem or any other treating physicians that
complies with Rule 26 within 21 days.”
(Order [50] at 1011)(emphasis added). Plaintiff did not do that with regard to Dr.
Schulze.
29
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(60) days for the limited purpose of allowing plaintiff to depose
Brown and Rizor and to conduct any related discovery.
SO ORDERED, this 24th day of MARCH, 2014.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
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