Grant v. Target Corporation

Filing 74

ORDERED that all parties objections are OVERRULED except for Grants first objection to the Allen deposition re 69 which the Court SUSTAINS. Signed by Magistrate Judge G. R. Smith on 2/19/2016. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
CHARITY GRANT,
Plaintiff,
v.
Case No. CV414-132
TARGET CORPORATION, a foreign
corporation,
Defendant.

ORDER
Before the Court in this slip-and-fall case are the parties’ trial
objections to portions of the depositions of Dr. Joseph Hegarty, one of
plaintiff Charity Grant’s treating physicians, and Dr. Stephen Allen, an
examining expert for defendant Target (sued by Grant after she slipped
and fell in one of its stores). Doc. 56 (defendant’s objections); doc. 69
(plaintiff’s objections).

A. Target’s Objections to the Allen Deposition
Grant’s counsel asked Allen, an orthopedic specialist hired by
Target to evaluate plaintiff, if “the independent medical examination[s]

that [he does] are . . . done primarily for corporations?” Doc. 50 at 51 . 1
Allen testified that “a lot of it is automobile insurance stuff. Is
automobile insurance a corporation? They are, and so some of them are
from the insurance company. I guess most of them are.” Id. at 51-52.
Target objects “on the grounds it interjects insurance into this case and
should therefore not be permitted.” Doc. 56 at 2. Plaintiff points to Fed.
R. Evid. 411’s prohibition on liability insurance evidence, which is plainly

not what Allen referenced in his answer, in arguing that the deposition
“should remain undisturbed.” Doc. 68 at 1.
Plaintiff is correct. Allen answered a legitimate question about
who typically hires him to perform independent medical examinations. A
doctor -- not a lawyer -- Allen simply attempted to fully answer the
question posed to the best of his abilities. His answers to subsequent
questions bear out that his insurance company answer did not reference
material prohibited by Rule 411 or relevancy standards. See, e.g. , doc. 50
at 52 (“Q: Have you ever done an independent medical exam at the
request of the patient themselves? A: Yes.”). Target’s objection, then, is

OVERRULED .
1

All citations are to the document and page numbers imprinted by the Court’s
docketing software. They may not match a documents’ original pagination.

B. Target’s Objections to the Hegarty Deposition
Objection No. 1
Discussing why plaintiff was sent by a surgeon to see Hegarty, a
rehabilitation specialist, Grant’s counsel (Steven Scheer) asked Hegarty
if “anything in [his] diagnosis cause[d him] to believe that [a fall] was not
indeed her origin of the pain?” Doc. 51 at 34. Hegarty answered that
“[i]n the history and present illness we ask the patient questions and
take down their history as it’s presented to us.” Id. Target objects “on
the grounds it calls for Dr. Hegarty to speculate about the origin of
plaintiff’s pain,” and asked “a question that assumed facts not in
evidence -- that plaintiff fell.” Doc. 56 at 2. Grant, on the other hand,
sees the question as (1) “simply seek[ing] Dr. Hegarty’s personal opinion
as to whether Ms. Grant’s provided history correlated with his diagnosis
and his observation of her pain complaints,” and (2) building “upon the
previous question wherein Dr. Hegarty testified he related Ms. Grant’s
pain complaints to a fall.” Doc. 68 at 2.
The question called for no improper speculation. Scheer, in
essence, asked Hegarty whether his observation of Grant matched her

3

reported history. See doc. 51 at 33-34. That calls for an expert opinion,
not speculation. Target’s objection, then, is OVERRULED .

Objection No. 2
Target also objects to Scheer asking Hegarty if a back injury could
cause knee pain. Doc. 56 at 3. It claims that calls for Hegarty, a
rehabilitation specialist, to speculate and render an orthopedic opinion.

Id. Not so. His experience in rehabilitation necessarily includes
understanding what causes pain and how to treat it, and rendering a
professional opinion on whether back injuries can cause knee pain
involves no speculation

whatsoever. This objection, too, is

OVERRULED .2

2

Regardless of its substantive merits, Target’s objection is an attack on Hegarty’s
expert qualifications. See Fed. R. Evid. 702; Seamon v. Remington Arms Co. , ___
F.3d ___, 2016 WL 624520 at * 4 (11th Cir. Feb. 17, 2016) (in performing their
‘gatekeeping’ role pursuant to Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579
(1993), “[c]ourts must consider whether: (1) the expert is qualified to testify
competently regarding the matters he intends to address.”); id. (“As to the first
prong -- qualifications -- ‘experts may be qualified in various ways,’ including by
scientific training, education, and experience.”). The deadline for Daubert motions
expired on December 17, 2014 , see doc. 9 (original, never amended, Scheduling
Order); doc. 39 at 3 (plaintiff’s amended proposed pre-trial order, filed October 13,
2015, acknowledging that discovery ended November 17, 2014), though Hegarty’s
deposition occurred in March 2015. See doc. 51. Target’s objection, made just one
week prior to trial, is plainly too late.
2

Objection No. 3
At one point in Hegarty’s deposition, Scheer asked if there was any
“indication that [Grant] was not being continuously treated for the failed
back syndrome.” Doc. 51 at 9. Hegarty responded that “her diagnosis
was consistently failed back surgery syndrome. Each of these other
things mentioned were things that were brought up by [Grant].”

Id.

Target “objects to th[at] question on grounds it assumes facts not in
evidence and misstates prior testimony. It also requires Dr. Hegarty to
speculate as he did not continuously treat plaintiff for her back
condition.” Doc. 56 at 4. The Court OVERRULES Target’s objection
because it never identifies what facts it contends the question assumed;
never identifies the allegedly misstated prior testimony; and cites no
record evidence for the proposition that Hegarty did not continuously
treat Grant for her back condition.

Objection No. 4
Shortly after he asked Hegarty about Grant’s continuous treatment
for failed back surgery syndrome, Scheer asked whether, “[b]ased on
your experience on failed back syndrome will the patient ever completely
recover?” Doc. 51 at 39. Hegarty responded that

5

We hope for the best and prepare for the worst. I tell people that
they can get better. A lot of it is how much they put in, how much
the, you know, they really work at it. It can get better but at this
point it most likely will continue to bother her indefinitely.

Id. at 39-40. Target, once again, believes the question called for
speculation. Doc. 56 at 4. Once again, not so. Hegarty offered his
opinion, based on his treatment of Grant and how she responded, on
whether he thought she would ever completely recover. That’s a medical
opinion, not speculation, and if Target wishes to rebut it with additional
evidence of Grant’s recovery after her treatment by Hegarty, it may. But
it’s objection is meritless and thus OVERRULED .

C. Plaintiff’s Objections to the Allen Deposition
Objection No. 1
During Allen’s deposition, Target counsel Stephen Dermer asked
him if during his examination of Grant he “had in mind the history that
she had given . . . versus what [he was] seeing in the clinic; is that true?”
Doc. 50 at 21. At the deposition, Scheer interjected by stating that he
had “been very lenient about leading but . . . would ask that you let the
doctor testify as opposed to you.” Id. Grant, unsurprisingly, now objects
to Dermer’s question as leading. Doc. 69 at 1 (citing Fed. R. Evid. 611).
Target believes that’s “not a proper objection” because Scheer’s
11

statement only referred to leading questions moving forward and did not
“signal[] or require[] defense counsel to rephrase the question.” Doc. 71
at 1.
Under Fed. R. Civ. P. 32(d)(3)(B), objections to the form of a
question -- including to leading questions -- are “waived if . . . not timely
made during the deposition.” Scheer timely objected, however. His
response, if not in precisely the verbiage Target desired, left little to
guess about -- he asked that Dermer “let the doctor testify as opposed to
you.” Doc. 50 at 21. That phraseology, lest the clause that preceded it -“I’ve been very lenient about leading” -- lose import, was not aimed
solely at prospective questions. Indeed, it was served on a platter of
civility. Scheer thus timely objected. And since the question
unambiguously led Allen and was not necessary to develop his testimony,
Fed. R. Civ. P. 611 forbids it. Plaintiff’s objection is SUSTAINED .

Objection No. 2
Dermer also asked Allen if, based on Grant’s “description of the
incident at Target . . . [his] review of the records, [his] interview of the
patient, [his] examination of Ms. Grant, did [he] develop any opinion
regarding whether Ms. Grant’s complaints of back pain and other pain,

7

any other pain . . . were related to the incident at Target.” Doc. 50 at 32.
Grant believes that calls for “pure speculation.” Id.
It does not. It calls for an expert to render his expert opinion on a
subject matter -- orthopedic injuries -- within his field of expertise.
Indeed, if Dermer’s question constitutes improper speculation,
examining experts like Allen serve little purpose. Plaintiff’s objection is

OVERRULED .
Objection No. 3
Grant’s final objection also involves alleged speculation. Dermer
asked Allen whether, based on his review of her medical records, he
thought Grant’s “preexisting history [could be] a potential source of back
pain that can result in a surgery of the type that Charity Grant had?”
Doc. 50 at 68. Scheer objected based on form (speculative), and Dermer
then specifically asked Allen not to speculate if he did not have an
opinion based on a review of the record. Id. Allen opined that Grant’s
back pain long predated her ankle fracture, but that he did not know
how much the ankle “would contribute to preexisting back pain. Doesn’t
say it’s any worse or any better.” Id.

8

As with Grant’s previous objection, Dermer’s question called for
Allen’s medical opinion, not speculation. Her objection, then, is

OVERRULED .
To summarize: all the parties’ objections are OVERRULED
except for Grant’s first objection to the Allen deposition ( see doc. 69 at 1),
which the Court SUSTAINS .

SO ORDERED, this 19th day of February, 2016.
- - -=

-F

LilcilED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

01