Walker et al v. Target Corporation

Filing 155

MEMORANDUM OPINION AND ORDER granting in part, denying in part, and deferring ruling in part 81 Motion to Strike the testimony of Lacy Sapp and George Carter. Signed by District Judge Keith Starrett on 7/7/17. (cb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION

DR. DEBRA L. WALKER, et al.
V.

PLAINTIFFS
CIVIL ACTION NO. 2:16-CV-42-KS-MTP

TARGET CORPORATION

DEFENDANT

MEMORANDUM OPINION AND ORDER
For the reasons provided below, the Court grants in part, denies in part, and
defers ruling in part on Defendant’s Motion to Strike [81] certain opinions of
Plaintiffs’ proposed experts, Lacy Sapp and George Carter. Specifically:
•

The Court grants the motion as to Sapp’s untimely affidavit [1085] for the same reasons provided in a previous opinion. The
affidavit is excluded from both trial and the Court’s consideration
when addressing the parties’ dispositive motions. Any fact or
opinion testimony contained therein is excluded from trial, unless
it was previously disclosed in Sapp’s reports or deposition.

•

The Court grants the motion as to any opinions from Sapp
regarding Plaintiff’s wage-earning or vocational capacity.

•

The Court grants the motion as to any opinions from Sapp
regarding the cost to replace a spinal cord stimulator.

•

The Court grants the motion as to any entries in Sapp’s life care
plan related to a spinal cord stimulator or radiofrequency ablation.
To the extent Defendant seeks exclusion of any other entries in the
life care plan, the Court defers ruling until trial when the parties
can address the issue with greater specificity.

•

The Court denies the motion as to the testimony of George Carter.

A.

Sapp’s Affidavit [108-5]
Defendant argues that the Court should exclude the affidavit1 of Lacy Sapp,

Plaintiffs’ life care expert, because it was not timely disclosed. The Court already
addressed this issue in a previous order. See Memorandum Opinion and Order at 7-11,
Walker v. Target Corp., No. 2:16-CV-42-KS-MTP (S.D. Miss. July 7, 2017), ECF No.
154. Sapp’s affidavit is excluded from both trial and the Court’s consideration when
addressing the parties’ motions. Sapp may not provide any testimony – whether fact
or opinion – contained in the affidavit at trial, unless it was previously disclosed in her
reports2 or deposition.3
B.

Wage-Earning Capacity / Vocational Assessment
Next, Defendant argues that the Court should exclude any opinions from Sapp

regarding Mrs. Walker’s wage-earning capacity and/or vocational assessment. Among
other things, Defendant argued that Plaintiffs failed to properly disclose Sapp’s
opinions on these topics. The Court agrees.
Plaintiffs’ initial designation4 and supplemental designation5 only provided that

1

See Exhibit 5 to Response, Walker v. Target Corp., No. 2:16-CV-42-KS-MTP
(S.D. Miss. May 18, 2017), ECF No. 108-5.
2

See Exhibit 1 to Response, Walker v. Target Corp., No. 2:16-CV-42-KS-MTP
(S.D. Miss. May 18, 2017), ECF No. 108-1; Exhibhit 2 to Response, Walker v. Target
Corp., No. 2:16-CV-42-KS-MTP (S.D. Miss. May 18, 2017), ECF No. 108-2.
3

See, e.g. Exhibits A-E to Motion to Strike, Walker v. Target Corp., No. 2:16CV-42-KS-MTP (S.D. Miss. Apr. 20, 2017), ECF Nos. 81-1, 81-2, 81-3, 81-4, 81-5.
4

Plaintiffs’ counsel apparently intended for correspondence to opposing
counsel sent on October 11, 2016, to function as an initial designation of expert
2

Stokes and Associates – the firm which employs Sapp – had “been retained to provide
a life care plan.” Sapp’s initial life care plan includes the following paragraph:
Dr. Walker reported that in June and July of 2014, she took off work
under the Family Medical Leave Act due to her mother having health
issues. Dr. Walker indicated that she intended to return to work following
her family medical leave, but was unable to do so due to her injuries. Her
position was eventually terminated in December of 2014, as she was not
able to return to work post injury. She has not returned to work in any
capacity since her injury and is experiencing a complete loss of expected
earnings and earning capacity as a result.
Exhibit 1 [108-1], at 5. It also includes a brief section addressing “vocational test
results.” Id. at 7.
Despite these matters being referred to in the life care plan, Sapp specifically
testified that she had not performed any vocational assessment to determine Mrs.
Walker’s alleged loss of wage-earning capacity, and that she had not produced any
opinion with regard to Mrs. Walker’s vocational capacity or any matters besides future
medical costs. Exhibit B to Motion to Strike at 2, Walker v. Target Corp., No. 2:16-CV42-KS-MTP (S.D. Miss. Apr. 20, 2017), ECF No. 81-2; Exhibit C to Motion to Strike at
2, Walker v. Target Corp., No. 2:16-CV-42-KS-MTP (S.D. Miss. Apr. 20, 2017), ECF No.
81-3. Moreover, Sapp represented in her report that she had been retained “for the
purpose of conducting a medical cost analysis,” Exhibit 1 [108-1], at 1, and she

witnesses. See Exhibit A to Motion to Strike, Walker v. Target Corp., No. 2:16-CV42-KS-MTP (S.D. Miss. Apr. 20, 2017), ECF No. 90-1.
5

Plaintiffs’ counsel apparently intended for Plaintiffs’ supplemental answers
to Defendant’s interrogatories to function as a supplement to Plaintiffs’
designations. See Exhibit B to Motion to Strike, Walker v. Target Corp., No. 2:16CV-42-KS-MTP (S.D. Miss. Apr. 20, 2017), ECF No. 90-2.
3

reiterated during her deposition that she “was asked to do an assessment of Dr.
Walker’s future medical needs.” Exhibit A to Motion to Strike at 2, Walker v. Target
Corp., No. 2:16-CV-42-KS-MTP (S.D. Miss. Apr. 20, 2017), ECF No. 81-1.
Vocational assessments and wage-earning capacity have nothing to do with
future medical needs, and they are not typical elements of a life care plan. Plaintiffs’
designations only disclosed that Sapp would provide a life care plan, and Sapp
expressly disclaimed having formed any opinions on topics outside of future medical
costs. In fact, she admitted that she performed no vocational assessments or produced
any opinions with regard to wage-earning or vocational capacity. Accordingly, the
Court finds that Plaintiffs failed to provide sufficient notice that Sapp intended to
express opinions regarding Mrs. Walker’s wage-earning capacity and vocational
capacity, despite such matters being briefly referred to in the life-care plan. The Court
excludes those portions of the life care plan referring to vocational capacity and wageearning capacity, and Sapp may not express any opinion on these topics at trial.
C.

Spinal Cord Stimulator Replacement
Defendant argues that Sapp’s opinion as to the cost to replace a spinal cord

stimulator is unreliable and should be excluded. The Court granted Defendant’s motion
for partial summary judgment as to whether the subject slip-and-fall caused Mrs.
Walker to require a spinal cord stimulator. See Memorandum Opinion and Order [154],
at 11. Therefore, any evidence regarding the cost to replace a spinal cord stimulator is
irrelevant to the issues for trial, and the Court grants this aspect of Defendant’s
motion.
4

D.

Future Medical Costs
Sapp included certain future medical costs in the Life Care Plan which were

derived from questionnaires filled out by Mrs. Walker’s treating physicians. In a
previous order, the Court excluded the questionnaires from Todd Stitzman, Jennifer
Stewart, and Stephen Lambert because Plaintiffs failed to produce them in a timely
manner. See Walker v. Target Corp., No. 2:16-CV-42-KS-MTP, 2017 U.S. Dist. LEXIS
104182, at *11-*13 (S.D. Miss. July 6, 2017). Defendant argues that each entry in the
life care plan derived from Lambert’s questionnaire should be excluded from trial
because Plaintiffs failed to produce the questionnaire in a timely manner. Defendant
also argues that there is insufficient evidence to support the inclusion of certain
elements of the life care plan, including costs related to the spinal cord stimulator and
radiofrequency ablation.
An expert’s opinion may be admitted at trial even though the data or
information upon which the expert relied has been excluded. Cf. FED. R. EVID. 703
(expert allowed to rely on inadmissible data if of the sort reasonably relied upon in her
field); Marcel v. Placid Oil Co., 11 F.3d 563, 567 (5th Cir. 1994). Moreover, the Court
should “defer to the expert’s opinion of what data they find reasonably reliable.” Peteet
v. Dow Chemical Co., 868 F.2d 1428, 1432 (5th Cir. 1989). Therefore, Sapp’s opinions
derived from Lambert’s questionnaire may be admissible even if the questionnaire
itself is not due to Plaintiffs’ failure to timely disclose it.
However, while “[a] medical degree is not a prerequisite for expert testimony

5

relating to medicine,” a proposed expert must have some expertise “in a field of
research ancillary to the fields of medicine,” such as alternative medicine or the
biological sciences before providing expert medical testimony. Carlson v. Bioremedi
Therapeutic Sys., 822 F.3d 194, 200 (5th Cir. 2016). Moreover, the expert’s ancillary
expertise must align with her proposed testimony. Id. Absent other relevant and
specialized training, knowledge, or experience, a life-care planner is generally not
qualified to provide medical opinions, such as whether a plaintiff will need certain
medical treatments and/or services in the future. See Barnett v. Deere & Co., No. 2:15CV-2-KS-MTP, 2016 U.S. Dist. LEXIS 128003, at *3-*6 (S.D. Miss. Sept. 20, 2016).
Accordingly, the inclusion of future medical treatments and/or services in a life care
plan must be supported by the opinion of a qualified medical expert. Id. at *5.
The Court has already granted summary judgment as to whether the subject
slip-and-fall caused Mrs. Walker to require a spinal cord stimulator and/or
radiofrequency ablation. See Memorandum Opinion and Order [154], at 11. Therefore,
the Court grants Defendant’s motion to the extent it seeks exclusion of those
treatments/services from Sapp’s life care plan.
However, the Court can not assess the admissibility of the remaining entries in
the abstract, without specific reference to the medical opinions upon which Sapp relied.
The questionnaires are not in the record, and the Court would also benefit from
directly questioning Sapp about the basis for her inclusion of any disputed entries in
the life care plan. Therefore, to the extent Defendant seeks the exclusion of any other

6

entries in the life care plan, the Court defers ruling until trial, when the parties can
address the issue with greater specificity.
E.

Carter’s Economic Analysis
Defendant argues that the Court must exclude the opinions of George Carter

because they are based on the faulty assumption that Mrs. Walker is permanently
disabled and, therefore, unreliable. Defendant repeated the same arguments advanced
in its Motion for Partial Summary Judgment [85] as to damages.
The Court denied Defendant’s motion with respect to Mrs. Walker’s alleged lost
wages and earning capacity. See Memorandum Opinion and Order [154], at 5. The
Court specifically found that Plaintiffs had presented sufficient evidence to create a
genuine dispute of material fact as to whether Mrs. Walker is disabled or has lost
wage-earning capacity. Id. at 3-5. Therefore, the degree of Mrs. Walker’s alleged
incapacity is a question for the jury, and Carter’s testimony would aid them in
rendering a verdict in the event they found any loss of wage-earning capacity.
Defendant, of course, disagrees with the assumption underlying Carter’s testimony –
that Mrs. Walker is permanently and totally disabled. But “[v]igorous crossexamination, presentation of contrary evidence, and careful instruction on the burden
of proof are the traditional and appropriate means of attacking shaky but admissible
evidence.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596, 113 S. Ct. 2786,
125 L. Ed. 2d 469 (1993). The Court denies Defendant’s motion to exclude Carter’s
testimony.
SO ORDERED AND ADJUDGED, on this, the 7th day of July, 2017.
7

/s Keith Starrett
KEITH STARRETT
UNITED STATES DISTRICT JUDGE

8