Robinson v. Colucci et al
Filing
179
Memorandum Opinion and Order denying as moot 135 MOTION in Limine to Strike Roger Allen as an Expert; granting in part, denying in part 136 MOTION for Partial Summary Judgment on Certain Elements of Plaintiff's Damages; denying 138 MOTION in Limine to Exclude Portions of the Reports and Testimony of Plaintiff's Experts Brawner and Carter; denying 150 MOTION to Strike Affidavit of Walter R. Shelton, M.D. [Doc. 145-3 and 147-3]; granting in part, denying in part 155 MOTION to Strike Untimely Expert Disclosures and Other Discovery; denying 165 MOTION for Leave to File out of Time Motion for Reconsideration and for Motion to Reopen Discovery as to Punitive Damages and for Other Relief; denying 172 MOTION for Leave to File out of Time Motion to Strike Defendants' expert Harry Smith, Ph.D., M.D., as set out herein. Signed by District Judge Tom S. Lee on 5/1/18 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
TALBOT ROBINSON
PLAINTIFF
VS.
CIVIL ACTION NO. 3:16CV687TSL-RHW
THOMAS COLUCCI, INDIVIDUALLY AND AS
EMPLOYEE OF U.S. XPRESS, INC., U.S. XPRESS,
INC.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This cause is before the court on the various motions of the
parties.
This includes defendants Thomas Colucci and U.S. Xpress’
motion in limine to strike Roger Allen as an expert; motion for
partial summary judgment on certain elements of plaintiff’s
damages; motion in limine to exclude portions of the reports and
testimony of plaintiff’s experts Bruce Brawner and George Carter;
motion to strike affidavit of Walter R. Shelton, M.D.; and motion
to strike untimely expert disclosures and other discovery.
Plaintiff Talbot Robinson has filed a motion for leave to file out
of time motion for reconsideration and motion to reopen discovery
as to punitive damages; a motion for leave to file out of time
motion to strike defendants' expert Harry Smith, Ph.D., M.D.; and
three motions in limine.
With the exception of plaintiff’s
motions in limine, briefing on these motions is complete.
The
court has considered the memoranda of authorities, together with
attachments, submitted by the parties, on these various motions,
and now issues its rulings.
This case involves a motor vehicle accident that occurred on
August 7, 2015 in which a U.S. Xpress truck driven by defendant
Thomas Colucci struck the vehicle being driven by plaintiff Talbot
Robinson.
Plaintiff filed this action seeking compensatory and
punitive damages.
Defendants have admitted that Colucci was
negligent and that his negligence was the sole proximate cause of
the collision.
They have also admitted that Colucci was in the
course and scope of his employment at the time of the collision,
making U.S. Xpress vicariously liable for his negligence and any
injuries proximately caused to plaintiff.
Therefore, the only
issue remaining is the causation, scope and nature of plaintiff’s
damages.
By memorandum opinion and order entered October 30, 2017,
this court granted defendants’ motion for partial summary judgment
on the issue of punitive damages.
Defendants have now moved for
partial summary judgment on several elements of compensatory
damages, and they have filed various other motions challenging
specific evidence sought to be offered by plaintiff regarding some
of these elements of damages.
The court will address the
substance of defendants’ partial summary judgment motion and the
various interconnected motions as they relate to the types of
damages at issue.
2
Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(a), summary judgment
is required when “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).
On a summary
judgment motion, the moving party bears the initial burden of
showing the absence of a genuine issue of material fact.
Celotex
Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552, 91 L.
Ed. 2d 265 (1986).
If the moving party demonstrates an absence of
evidence supporting the nonmoving party's case, then the burden
shifts to the nonmoving party to come forward with specific facts
showing that a genuine issue for trial does exist.
Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.
Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986).
A genuine issue exists
“if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”
Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202
(1986).
Future Medical Expenses/Wage Loss Re: Knee Surgery
Plaintiff alleges that as a result of the accident, he
suffered injuries to both knees, for which he has already
undergone two knee surgeries and for which he will require
bilateral knee replacement surgeries within the next three to five
years.
He seeks recovery of future medical expenses for the
3
anticipated knee replacement surgeries and related therapy,
together with lost wages he will incur as a result of time off in
connection with those surgeries.
Defendants have moved for
summary judgment on plaintiff’s claim for these damages,
contending the record is void of proof that plaintiff will need
knee replacement surgery and that consequently, plaintiff has no
cognizable claim for future medical expenses or future lost wages
relating to any such surgery.
Defendants’ primary argument in support of their motion in
this regard is based on their interpretation of letter reports of
plaintiff’s orthopedic surgeon, Walter Shelton, M.D., dated August
12, 2016, and March 19, 2017, which they contend do not
demonstrate the need for future knee surgery to a reasonable
degree of medical probability.
In response to the motion,
plaintiff has submitted a February 5, 2018 affidavit from Dr.
Shelton in which he states plaintiff “will require future
bilateral knee surgery replacement [sic] in the next three (3) to
five (5) years” and will miss three months of work following each
surgery.
Defendants have moved to strike Dr. Shelton’s affidavit on
the bases that his opinion therein regarding the need for future
knee surgery (1) is inconsistent with his earlier letter opinions
in which he opined (according to defendants) that future knee
replacement was not necessary and (2) was not timely disclosed in
4
plaintiff’s expert designation/report.
Defendants contend that by
submitting Dr. Shelton’s recent affidavit which sets forth a new
and/or contradictory opinion, plaintiff is improperly attempting
to “supplement” his expert’s prior opinions to defeat the partial
summary judgment motion.
The court, they argue, should therefore
strike the affidavit and exclude any testimony by Dr. Shelton that
plaintiff will require knee replacement surgery.
In a related vein, defendants have moved in limine to exclude
portions of the reports and testimony of plaintiff's experts Bruce
Brawner (certified rehabilitation counselor and life care planner)
and George Carter (economist) estimating medical expenses and lost
wages for time off in connection with future knee replacement
surgeries.1
Defendants submit that such opinions are not well-
founded as there is no admissible expert medical evidence that
plaintiff will need such future knee replacement surgery.
For the
reasons that follow, the court will deny all of defendants’
motions to the extent they seek some form of relief based on
1
Bruce Brawner has prepared a life care plan which
includes an estimate of $37,597.40 to $92,535.00 for plaintiff to
have knee replacement surgery on both knees and to thereafter
undergo related physical therapy. Brawner states that he included
expenses for knee replacement surgery based on the August 12, 2016
report from Dr. Shelton which Brawner purportedly interpreted as
“indicat[ing] that Mr. Robinson will require a total knee
replacement in both knees.” In turn, based on Brawner’s report,
George Carter, plaintiff’s economist, has prepared estimates of
future lost wages for time plaintiff will be off work in
connection with future knee replacement surgeries.
5
defendant’s contention that Dr. Shelton did not timely opine that
plaintiff will likely need future knee replacement surgeries.
In his August 12, 2016 letter, Dr. Shelton wrote that
plaintiff “has some symptoms with patellofemoral arthritis but we
are going to treat this conservatively for now.
It is not bad
enough to require a total knee replacement at this time.”
In his
March 9, 2017, letter report, Dr. Shelton stated,
I do not think any further surgery is indicated or will help
him. I do not think any clean out surgery will help him and
at some point he may get bad enough to require a total knee
replacement, but for right now we need to treat him
conservatively as long as we can and he needs to lose weight.
Pursuant to Federal Rule of Civil Procedure 26, a party is
required to disclose to the other parties the identity of any
expert witness who will testify at trial and provide an expert
report, setting forth the expert’s proposed opinions.
Civ. P. 26(a)(2)(A)&(B).
See Fed. R.
Under the court’s local rules,
(D) A party must designate physicians and other
witnesses who are not retained or specially employed to
provide expert testimony but are expected to be called
to offer expert opinions at trial. No written report is
required from such witnesses, but the party must
disclose the subject matter on which the witness is
expected to present evidence under FED. R. EVID. 702,
703 or 705, and a summary of the facts and opinions to
which the witness is expected to testify.
L.U.Civ.R. 26(a)(2)(D).
Such disclosure is required to be made on
or before the deadline established in the case management order.
See L.U.Civ.R. 26(a)(2) (party must “make full and complete
disclosure as required by Fed. R. Civ. P. 26(a) and L.U.Civ.R.
6
26(a)(2)(D) no later than the time specified in the case
management order.”).
A party is required to supplement his expert
disclosures if he “learns that in some material respect the
information disclosed is incomplete or incorrect and if the
additional or corrective information has not otherwise been made
known to the other parties during the discovery process or in
writing.”
Fed. R. Civ. P. 26(e)(1).
Under the court’s Local Rule
26(a)(5), supplemental disclosures must be made “in no event later
than the discovery deadline established by the case management
order.”
L.U.Civ.R. 26(a)(5).
The discovery deadline was January
30, 2018.
In the court’s opinion, plaintiff timely disclosed Dr.
Shelton’s opinion that he would likely need knee replacement
surgery.
On August 16, 2016, well prior to providing his
plaintiff’s expert designation, plaintiff’s counsel wrote to
defense counsel that
Mr. Robinson was recently seen by Dr. Shelton. ... Mr.
Robinson is being told [by Dr. Shelton] that he needs
bilateral knee replacement surgery. Dr. Shelton would like
to postpone this as long as possible given Mr. Robinson’s age
of just turning fifty (50).
In response to interrogatories served in January 2017, which also
preceded his expert designation, plaintiff reported that “Dr.
Shelton has recommended bilateral knee replacement surgery and
therefore the future medicals associated with these procedures
which may total one (1) to two (2) for each knee are future
7
medical needs which the undersigned is attempting to quantify.”
In response to an interrogatory specifically requesting
information regarding his experts’ opinions, plaintiff advised:
“Dr. Shelton will testify as to the likelihood that Talbot
Robinson will need bilateral total knee replacements.”
Plaintiff served his expert designation on April 3, 2017, in
which he stated, inter alia, that Dr. Shelton would provide
opinions consistent with his letter reports of April 12, 2016 and
March 3, 2017.
Dr. Shelton’s August 12, 2016 letter report
addressed the potential that plaintiff would require future knee
surgery stating, as defendants note, that he was treating
plaintiff’s patellafemora arthritis in his knees conservatively
and the condition was “not bad enough to require a total knee
replacement at this time.” (Emphasis added).
He continued:
[I]t is not inevitable that he is going to have to have
bilateral total knees but he may. ... [I]n a reasonable
degree of medical certainty, there is a probability that he
may need a total knee replacement in both knees but not a
certainty.
As is pertinent here, his March 19, 2017 letter merely recited
that “at some point he may get bad enough to require a total knee
replacement.”
Contrary to defendants’ urging, Dr. Shelton’s August 12, 2016
and March 9, 2017 letter reports do not state that plaintiff will
not need knee replacement surgery, and the opinion expressed in
his affidavit does not contradict in any way the opinions set
8
forth in his earlier letter opinions.
In both letter opinions, he
stated only that plaintiff did not need knee replacement surgery
at that time; and in both, he stated that plaintiff could
eventually require knee replacement surgery.
The statement in Dr.
Shelton’s affidavit is fully consistent with those earlier
statements.
Moreover, the opinion that plaintiff will likely need knee
replacement surgery cannot fairly be characterized as a new
opinion which was not previously disclosed.
Dr. Shelton’s letter
opinion of August 2016 may have been somewhat ambiguous on this
point, reciting, as it did, that while it was not “a certainty”
that plaintiff will require knee replacement surgery, “there is a
probability that he may need a total knee replacement in both
knees....”
However, in response to interrogatories specifically
requesting the substance of plaintiff’s experts’ opinions,
plaintiff made clear that Dr. Shelton would testify that plaintiff
would likely need bilateral knee replacement surgery.
The rules
require supplementation of an incomplete or incorrect statement of
an expert’s opinion unless additional or corrective information
was otherwise made known to the other parties “during the
discovery process or in writing.”
Here, plaintiff provided the
correct information during the discovery process and in writing.
For all of these reasons, defendants’ objections to Dr. Shelton’s
opinion that plaintiff will require future knee replacement
9
surgery are not well-founded.
Dr. Shelton’s affidavit will be
allowed, as will Bruce Brawner’s and George Carter’s opinions as
to future medical expenses.2
The court also rejects defendants’ contention that since
there is no proof that plaintiff will need future surgery,
Brawner’s and Carter’s opinions as to future lost wages should be
excluded.
Plaintiff seeks future lost wages for the six months
Dr. Shelton has said he will be required to be off work for knee
replacement surgeries (three months per surgery).3
As to the
amount of such loss, Carter, plaintiff’s expert economist,
initially opined in a March 2017 Economic Analysis that plaintiff
would have a discounted wage loss of $13,956 for time off related
to future knee replacement surgeries.4
Carter based this
calculation on Bruce Brawner’s Vocational Rehabilitation
2
It follows that to the extent that defendants’ motion to
strike untimely expert disclosure and other discovery seeks to
strike demonstrative exhibits for use during the testimony of Dr.
Shelton, it will be denied.
3
Defendants argued in their motion in limine to exclude
certain testimony of Brawner and Carter that Carter’s opinion on
future wage loss should be excluded as unreliable as there was no
evidence that plaintiff would “ever lose any wages” as a result of
the subject accident. However, to the extent plaintiff is
claiming wage loss associated with being off work for knee
surgery, he has a cognizable claim for future lost wages.
4
Defendants point out that the sole opinion Brawner has
offered regarding wage loss is that plaintiff’s total earnings,
based on his tax returns, went down from $107,914.00 in 2014 to
$102,810.00 in 2015. It does not appear that Brawner has offered
an opinion as to the amount of any future wage loss. Rather, that
opinion has come from Carter.
10
Evaluation, which stated that plaintiff would likely be off work
three weeks for each of two future knee replacement surgeries; so,
using plaintiff’s 2014 base income of $107,914, Carter calculated
a six week loss of income.5
More recently, on February 16, 2018,
Carter prepared a letter report/opinion in which he has
recalculated plaintiff’s future wage loss resulting from time off
for the knee replacement surgeries based on information from Dr.
Shelton that plaintiff will have to be off work for three months,
not weeks, following each surgery.
Using the same methodology as
before but assuming three months off work instead of three weeks,
Carter has opined that plaintiff will have a future wage loss of
$19,873 (assuming the surgeries are done in year three) and
$19,481 (assuming they are done in year five).
Defendants have moved to exclude Carter’s February 2018
opinion regarding lost wages in connection with future knee
replacement surgery on the basis that this is a new opinion that
5
Quoting Brawner’s report, Carter’s initial report
explained:
“It is anticipated that Mr. Robinson will be off
for 6 weeks in the future due to testimony concerning
future treatment to his knee and knee replacement."
Hon. Baskin L. Jones, e-mail dated March 30, 2017.
6 weeks is 6/52 = 0.1154 year. Mr. Robinson's base
income prior to the accident was $107,914. Bruce
Brawner, M.Ed., CRC, CCM, LPC, Vocational Rehabilitation
Evaluation dated March 29, 2017, page 20.
Thus,
the value of the 6 weeks is 0.1154 x $107,914 =
$12,453.
11
was not timely disclosed.
However, as Carter’s supplemental
opinion merely adjusts the figures in his original calculation to
account for evidence that plaintiff will require three months, not
three weeks, off work following knee replacement surgery, the
court will deny defendant’s motion to strike as to this part of
Carter’s February 2018 letter/opinion.
Past Lost Wages
Plaintiff claims that as a result of the injuries he
sustained in the accident and resulting medical treatment,
including surgeries, he was required to be off work, and as a
consequence suffered a loss of wages, for which he seeks recovery.
Defendants have moved for summary judgment on plaintiff’s claim
for past lost wages, arguing “[t]here is no proof that Robinson
has lost wages as a result of the accident which is the subject of
his complaint....”
Plaintiff declares in response that defendants
are ”wrong” and he points out that he has both testified by
deposition that he “missed a lot of work” as a result of the
injuries he sustained in the accident and has provided
supplemental interrogatory responses clarifying/explaining the
dates he was absent from work on account of his injuries,
specifically, from August 10, 2015 to September 14, 2015 and from
November 4, 2105 to March 16, 2016.6
6
Defendants’ position,
In his original interrogatory response, plaintiff stated
that he was off work following the accident until April or May of
2016, and that he “missed altogether 8 or more months of work.”
12
however, does not appear to be that plaintiff did not miss any
work due to the accident but rather that plaintiff has failed to
come forward with evidence to prove that he actually lost any
wages as a result of being off work.
misses the point of the motion.
Thus, plaintiff’s response
The issue is not how many days of
work he missed but whether he lost income as a result of missing
work due to injuries from the accident.
Under Mississippi law, it is the plaintiff’s burden at trial
to prove his damages by a preponderance of the evidence, both as
to their cause and amount.
See Patterson v. Liberty Assoc., L.P.,
910 So.2d 1014, 1020 (Miss. 2004) (“The burden of proving damages
rests upon the plaintiffs.”).
Thus, to avoid summary judgment on
defendants’ motion on his claim for lost wages, plaintiff must
present sufficient evidence as would allow a reasonable jury to
find he suffered a loss of wages as a proximate result of the
accident.
To create an issue of fact on the question of proximate
cause, a plaintiff must produce evidence “which affords a
reasonable basis for the conclusion that it is more likely than
In a supplemental response, executed February 9, 2018, plaintiff
states he was off work initially from August 10 to September 14,
2015, and then was off from November 4, 2015 to March 14, 2016.
Defendants have moved to strike the February 9 and 12, 2018
supplemental responses, arguing that they represent new
information which was not timely supplemented. To the extent that
plaintiff has added the specific dates he missed work, the motion
to strike will be denied as moot, given the court’s conclusion,
infra at p. 16, that summary judgment on past lost wages is in
order as plaintiff has not demonstrated that he suffered a loss of
wages from being off work for any period of time.
13
not that the conduct of the defendant was a cause in fact of the
result.
A mere possibility of such causation is not enough.”
Burnham v. Tabb, 508 So. 2d 1072, 1074 (Miss. 1987) (citing W.
Keeton, Prosser & Keeton on Torts § 41 (5th ed. 1984).
In the
case at bar, defendants admit that Colucci’s negligence was the
proximate cause of the accident, and they do not dispute that
plaintiff sustained some injury as a proximate result of the
accident.
Moreover, plaintiff has obviously presented evidence
from which a jury could reasonably find that he missed
approximately five and a half months of work as a result of
injuries he suffered in the accident.
What plaintiff has failed
to do is come forward with any evidence to show that he lost any
income as a result of this absence from work.
The evidence does
show that plaintiff’s income in 2015 was $5,104 less than his
income for 2014; but plaintiff has offered no evidence to tie that
decrease in income to his time off work.
It is tempting to assume
from these facts that this decrease in earnings was on account of
plaintiff’s missing work.
But the evidence also shows that in
2016, plaintiff’s earnings actually increased, to $108,173,
notwithstanding that he was off work for the first two and a half
months of the year.
In a motion in limine filed March 29, 2018, plaintiff moved
to exclude any reference to his total taxable earnings from 2015
to present.
In that motion, after stating that his tax returns
14
for 2015, 2016 and 2017 show his income as $102,541, $108,173 and
$113,475, respectively, he goes on to explain that he “used
vacation time, was paid temporary disability coverage payments and
worked overtime to supplement his past lost wages from his medical
leave.”
He elaborates, stating,
The reason Mr. Robinson was able to show earnings,
albeit $5,000.00 less, in 2016 [sic] is because of his
built up personal time off. He had to use forty (40)
hours of personal time until his temporary disability
payments kicked in. These disability payments (discussed
supra, paragraph 26) supplemented his income. Additionally,
Mr. Robinson worked overtime upon his return in 2016 and 2017
to make up for the time missed for his medical appointments.
The Plaintiff’s claim for past lost wages and future lost
wages are well documented. For the Defendant to argue that
Plaintiff made a similar amount of money in subsequent years
would waste the Court’s time and confuse the jury and paint
Plaintiff in a false light.
Plaintiff thus argues in his motion in limine that “[d]efendants
should be prohibited from suggesting he did not incur a loss
merely because he was able to make up some of the difference in
pay.”
Defendants filed their motion for partial summary judgment on
January 29, 2018; plaintiff filed his response on February 19.
In
that response, he did not so much as mention, much less submit
evidence of receiving disability benefits or using leave time or
working overtime to make up for income he would otherwise have
lost due to being off work on account of injuries received in the
accident.
Assuming plaintiff has evidence to support the
assertions in his motion in limine, the time to have come forward
15
with such evidence was in response to defendants’ partial summary
judgment motion.
He did not do so (and in fact, to date, still
has not presented any such proof).7
Consequently, the record is
void of any proof that plaintiff suffered a past wage loss as a
proximate result of the accident, making summary judgment proper
on plaintiff’s claim for past lost wages.8
Loss of Wage Earning Capacity
7
Plaintiff should be in a position to know how he was
compensated, whether by personal leave, disability payments or
overtime work, and as such, he could have submitted an affidavit
attesting to these matters in response to defendants’ partial
summary judgment motion. He did not do this. Later, on March 22,
2018, more than a month after briefing on the summary judgment
motion was complete, plaintiff filed a response to defendants’
motion to strike untimely disclosures in which he reported he was
having difficulty timely obtaining evidence from plaintiff’s
employer to substantiate his lost wages. See Dkt. 164 (filed Mar.
22, 2018) (stating, “It is indeed the Defendants’ right to demand
strict proof of lost wages. However, accessing this information
has been a challenge and a slow process.”). If that was the case,
then plaintiff could have requested a continuance under Rule
56(d), but once again, he did not do so.
8
Based on the difference in income from 2014 to 2015,
George Carter opined in his March 2017 Economic Analysis and again
in a February 15, 2018 letter to plaintiff’s counsel that
plaintiff suffered a $4,086 after-tax loss of wages. But on
February 21, 2018, at the instance of plaintiff’s counsel, he
issued another letter calculating plaintiff’s after-tax lost wages
as $36,895 (plaintiff’s 2014 base income multiplied by the
percentage of each year plaintiff was off work, .0958 in 2015 and
.3313 in 2016, less applicable taxes). Defendants have moved in
limine to exclude Carter’s February 21, 2018 opinion as untimely.
While this is an entirely new opinion that the court would
exclude, the court will instead deny this part of defendants’
motion in limine as moot based on its conclusion that defendants
are entitled to summary judgment on plaintiff’s claim for past
lost wages.
16
Defendants have moved for partial summary judgment on
plaintiff’s claim for damages for loss of wage earning capacity
contending he has not shown that his injuries from the accident
have had or will have any affect on his future employment or
employment prospects.
In support, they point out that since the
accident, Robinson has continued to work at his same job and
further note that ”[n]o doctor has testified or stated that
Robinson must stop work now” or identified any restrictions that
would limit his ability to perform his current job or other
similar jobs.
They note, for example, that the only limitations
Dr. Shelton has identified are that plaintiff “can stand 4 hours
out of an 8 hour day,” squatting and bending should be limited to
occasionally, and he should not lift over 20 pounds.
Dr. Howard
Katz opined that due to the condition of plaintiff’s knees, he
“would do better if he did not have to walk on concrete all day”
and “if he could stand and walk frequently as opposed to
constantly.”
Also, Brawner, in his Vocational Rehabilitation
Evaluation, observed that Robinson’s “employer is currently
allowing him to work in his old position with modifications ...
and it is recommended that he continue to work in this position as
long as he can.”
Brawner found that “based on the recent opinions
of Dr. Walter Shelton and Dr. Howard Katz, Robinson continues to
be able to work in the light classification of work as defined by
the U.S. Department of Labor,” and that his “vocational prognosis
17
for future employment in a variety of sedentary and light
positions is very good.”
None of this precludes his recovery for
loss of wage earning capacity.
Under Mississippi law, a plaintiff “‘may recover for loss of
earning capacity even where he continues to work at the pre-injury
rate of pay.’”
Coleman v. Swift Transp. Co. of Arizona, LLC, No.
3:13-CV-0003-DMB-SAA, 2014 WL 3533322, at *6 (N.D. Miss. July 16,
2014) (quoting Johnny C. Parker, Mississippi Law on Damages § 35:4
(3d ed. 2013)).
However, to recover such damages, he must put
forth evidence that his injuries have resulted in a decrease in
his wage earning capacity, and that his injuries adversely affect
his employability or earning potential.
Law on Damages § 35.4).
Id. (citing Mississippi
See Walters v. Gilbert, 248 Miss. 77, 93,
158 So. 2d 43, 50 (1963) (“[t]he extent of the physical
impairment, together with the duration thereof, determines the
amount of loss of earning capacity.”).
Here, plaintiff has presented medical records to establish
the nature and extent of his injuries from the accident, and has
provided his own testimony and that of coworkers describing the
effect of his injuries on his ability to fully perform his job.
He testified, for example, that his job, as he performed it prior
to the accident, involved near constant standing and walking,
which he is no longer able to do.
It also involved frequent
bending, squatting and kneeling, which he cannot now do owing to
18
the injuries to his knees.
He states that he has been able to
maintain his position with his company, but only because his
employer thus far has been willing to make accommodations.
He
testified, however, that as he can no longer perform the job at
the same level as before, his post-accident performance
evaluations have garnered him ratings of “meets” expectations
instead of the “exceeds” expectation ratings he received prior to
the accident.
He expressed concern about the effect of his
performance on his future in his current position with the
company, both from the standpoint of his ability to continue to
perform the job long term and of his employer’s willingness to
maintain him in the position.
Plaintiff testified that because of
these concerns, he has had discussions with one of his superiors
about moving to a less physically demanding, yet lower paying
position.
The medical evidence and plaintiff’s testimony is
plainly sufficient to create a jury issue on his claim for loss of
wage earning capacity.
See Coleman, 2014 WL 3533322, at *6
(finding similar proof sufficient).
Therefore, defendants’ motion
for summary judgment on plaintiff’s claim for recovery for loss of
wage earning capacity will be denied.
While it is apparent in view of plaintiff’s medical records
and deposition testimony that defendants are not entitled to
summary judgment as to this element of damage, defendants have
objected to, and moved to strike, certain evidence bearing on
19
plaintiff’s claimed damages for loss of earning capacity.
Specifically, they have moved to strike as untimely
(1) supplemental interrogatory responses served by plaintiff on
February 9 and 12, 2018;9 and (2) letter opinions from George
Carter to plaintiff’s counsel dated February 16 and 23, 2018, and
a Corrected Supplemental Life Plan Valuation of Carter, produced
February 20, 2018.
In his February 16 and 23, 2018 letters, Carter undertook to
respond to specific requests by plaintiff’s counsel to calculate
the present value of a loss of wage earning capacity under
alternate scenarios.
He was asked to assume, first, that
plaintiff would suffer a $40,000 per year loss of wage earning
capacity following knee replacement surgery and based on that
assumption to calculate a loss of wage earning capacity beginning
in three years and five years, respectively; and he was asked to
then make the same calculation assuming a 100% loss of wage
earning capacity following knee surgery.
Carter opined that with
a $40,000 loss of wage earning capacity, the present value of the
loss of wage earning capacity would be $305,880 (year three) or
9
Plaintiff’s supplemental interrogatory responses include
information regarding plaintiff’s claimed limitations on his
ability to perform his job. As the court has noted, defendants
have moved to strike the supplemental responses as untimely.
However, the court does not consider that the information therein
regarding his limitations is new information. Rather, it is more
in the nature of a summary of existing information. Accordingly,
the court will deny the motion to strike plaintiff’s supplemental
responses.
20
$247,217 (year five); and he opined that with a 100% loss of wage
earning capacity, the amounts would be $825,217 (three years) and
$667,027 (year five).
Plaintiff asserts that this is a “seasonable supplementation”
which should not be stricken.
However, plaintiff’s protestation
notwithstanding, these are clearly new opinions from Carter which
were not timely disclosed.
Carter has not at any time prior to
his February 12, 2018 letter offered any opinion or calculation of
plaintiff’s loss of future wage earning capacity.
In determining
whether to exclude experts or expert opinions not properly
designated, the court considers four factors: “(1) the explanation
for the failure to identify the witness; (2) the importance of the
testimony; (3) potential prejudice in allowing the testimony; and
(4) the availability of a continuance to cure such prejudice.”
Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 883
(5th Cir. 2004).
Here, plaintiff offers no valid reason for not
timely disclosing these opinions from Carter.10
10
Further, while
He suggests that this “supplementation” is offered in
light of testimony from Phil Ferguson, one of plaintiff’s
coworkers, that
Plaintiff’s job responsibilities require [him] to
hop over and onto various conveyor belt(s) at the
Siemens plant. Often times since the crash, Talbot
has fallen. If Talbot falls, conditions may worsen.
He can be immediately laid off or fired. These
contingencies boiled down into two scenarios were
taken into account via a modification of Dr. Carter’s
reports.
The court is dubious of this explanation. First, Ferguson was
deposed in October 2017, more than three months before this new
letter opinion from Carter. Further, plaintiff himself would know
21
plaintiff suggests on the one hand that Carter’s opinions are
essential, he at the same time asserts that Carter is merely
providing calculations based on the record evidence.11
Particularly since Carter will offer testimony on other matters,
which whill include evidence of plaintiff’s work life expectancy,
tax rates and discounting to present value, it is not essential to
plaintiff’s case that he provide a calculation of loss of wage
earning capacity.
These are computations that juries are more
than capable of performing themselves, with proper instruction.
Accordingly, they will be stricken.12
Emotional Distress/Cognitive Impairment/Pre-Judgment Interest
if he had fallen on the job and could have timely supplied that
information.
11
It does not appear to the court that there is an
evidentiary basis for these new calculations. The suggestion that
plaintiff may have a $40,000 per year or 100% loss of wage earning
capacity because at some point in the future he may fall again,
and if that happens his condition may worsen, and if his condition
worsens, he may be laid off or get fired, is speculative, to say
the least. Furthermore, despite what plaintiff says, it is
obvious this is not the scenario Carter was asked to account for
in his “supplemental” opinion; rather, his “supplemental” opinion
is based on the assumption that plaintiff’s future knee
replacement surgeries may cause him to suffer a $40,000 per year
loss of income or render him altogether unable to work. The court
is unaware of any basis for such assumptions.
Indeed, the notion
that surgery would not improve but rather significantly worsen his
condition would raise the question whether it was reasonable to
undergo knee replacement surgery at all.
12
The same observations and conclusion apply to
defendants’ motion to strike Carter’s Corrected Supplemental Life
Plan Valuation, by which Carter, for the first time, adds a
“scenario 3" to his computation of life care costs.
22
Defendants have moved for partial summary judgment on any
claim for damages for emotional distress, cognitive impairment and
pre-judgment interest.
Plaintiff concedes he cannot recover pre-
judgment interest and states that he does not seek damages for
cognitive impairment, making summary judgment proper as to these
elements of damage.
However, plaintiff opposes defendants’ motion
as it pertains to his claim for emotional distress damages.
The
court has considered the parties’ arguments and finds that
defendants’ motion should be denied insofar as it seeks to
foreclose plaintiff from recovering emotional distress damages.
“Emotional distress is a reasonably foreseeable injury to a
car-accident participant.”
213, 218 (Miss. 2013).
Estate of Miles v. Burcham, 127 So. 3d
See also Choctaw Maid Farms, Inc. v.
Hailey, 822 So. 2d 911, 928 (Miss. 2002) (plaintiff in personal
injury action “may recover for past, present and future physical
pain and suffering as well as resulting mental anguish where
proven by a preponderance of the evidence”) (citations omitted).
Defendants argue that plaintiff’s evidence of emotional distress
damages is inadequate as he has “no proof from any source that
Plaintiff has sought medical or psychological treatment for
emotional distress” or “that any doctor has prescribed medicine or
treatment for any such claim.”
However, no such proof is required
where emotional distress is sought as an element of damages based
on physical injury.
See Estate of Miles, 127 So. 3d at 218.
23
In
the court’s opinion, plaintiff has clearly presented sufficient
evidence to support jury consideration of his claim for emotional
distress damages.
Therefore, this part of defendants’ motion for
partial summary judgment will be denied.
Motion to Strike Roger Allen
Defendants’ motion to strike Roger Allen will be denied as
moot.
Plaintiff states that he did not designate Roger Allen as
an expert because he does not intend to use him as an expert.
Plaintiff’s Request to File Motion for Reconsideration
Plaintiff has filed a motion for leave to file an out of time
motion for reconsideration of this court’s October 30, 2017,
memorandum opinion and order granting defendants’ motion for
summary judgment on plaintiff’s claim for punitive damages.
Plaintiff argues that since the court’s ruling, he has deposed
defendant Colucci’s co-driver, Earl Allen, Jr., and according to
plaintiff, Allen provided testimony which plaintiff believes
establishes a basis for his recovery of punitive damages.
Plaintiff further states that he “seeks to amend his response
to comply with the Court’s Order stating a Rule 56(d) affidavit
should have been attached to their response [DOC 116]
seeking additional time as discovery had not been completed.”
While much more could be said about plaintiff’s motion, and
particularly about plaintiff’s intimation that the court directed
or even suggested that he should take steps to comply with Rule
24
56(d), the court instead will state simply that plaintiff’s motion
for leave to seek reconsideration should be denied for reasons set
forth in defendants’ response to the motion.
Motion to File Out of Time Motion to Strike Defendants’
Expert, Harry Smith, Ph.D. and M.D.
Plaintiff has filed a motion to file an out of time motion to
strike opinions of defense expert, Harry Smith, Ph.D./M.D.
In his
proposed motion, plaintiff first states that he has “questions
regarding Dr. Smith’s credentials and in particular his
certifications as an engineer and licensing as an engineer as well
as his experience and background in being able to offer evidence
of the existence or causation relating to Plaintiff’s orthopedic
injuries.”
He goes on to identify three areas of concern,
(1) relating to Dr. Smith’s opinion that plaintiff had a preexisting knee condition which first manifested itself immediately
following the subject accident, (2) challenging the reliability of
the methodology used by Dr. Smith, as a biomechanical engineer, in
calculating the force of impact during the crash, and (3) relating
to alleged inconsistencies in computer simulations and Dr. Smith’s
unproduced hand calculations.
Plaintiff states that the court
should “examine Dr. Smith’s opinion and determine whether they are
reliable and relevant opinions under the standards of Fed. R.
Evid. 104(a) and 702(b) and (c).
In his motion to file his motion to strike out of time,
plaintiff gives two reasons for not filing this motion by the
25
January 30, 2018 motion deadline established by the magistrate
judge’s August 30, 2017 text order extending the discovery and
motion deadlines.
First, he asserts he
“misinterpreted” the
magistrate judge’s text only order to mean that January 30, 2018
was the deadline for dispositive motions only.
Second, he claims
that although he asserts in his motion that some or all of Dr.
Smith’s opinions should be excluded because they are unreliable,
nevertheless, he “believed his Motion to Exclude Harry Smith was
properly characterized as a Motion in Limine” and not a Daubert
motion.
He thus asks that the court either allow him to file the
motion as an out of time Daubert motion or, alternatively, that
the court treat the motion “as a motion in limine as to certain
testimony.”
In the court’s opinion, plaintiff’s motion to file an
out of time motion to strike Dr. Smith’s opinions (or some of his
opinions) should be denied.
Plaintiff’s counsel could not
reasonably have interpreted the magistrate judge’s text order to
apply only to dispositive motions and not to Daubert motions.
Local Rule 7(b)(D) states, “Unless otherwise ordered by the Case
Management Order, all case dispositive motions and motions
challenging an opposing party’s expert must be filed no later than
fourteen calendar days after the discovery deadline.”
7(b)(D).
L.U.Civ.R.
At the parties’ request, the magistrate judge extended
the discovery deadline to January 6, 2018; he contemporaneously
extended the motion deadline to fourteen days later, January 30,
26
2018.
Furthermore, plaintiff could not reasonably have
interpreted his proposed motion as anything other than a Daubert
motion.
The motion challenges the qualifications of Dr. Smith and
the reliability of his opinions, which is the precise purpose of a
Daubert motion.
See Kumho Tire Co. v. Carmichael, 526 U.S. 137,
152, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999) (purpose of Daubert
analysis “is to ensure the reliability and relevancy of expert
testimony”); Queen Trucking, Inc. v. GM Corp., No. 06–052, 2007 WL
4458919, *2 (N.D. Tex. June 8, 2007) (“A Daubert motion allows a
party to challenge the opposing party's expert witnesses on
several grounds.
First, a Daubert challenge allows a party to
challenge an expert's qualifications.
Further, an opposing party
may attack the reliability of an expert's testimony.”).
Accordingly, the court, in its discretion, will deny plaintiff’s
motion to file an untimely Daubert challenge to Dr. Smith.
See
Koch Foods, Inc. v. Pate Dawson Co., Inc., No. 3:16-CV-355-DCBMTP, 2018 WL 651371, at *3 (S.D. Miss. Jan. 31, 2018) (court need
not consider untimely-filed Daubert challenges) (citing Queen
Trucking, 2007 WL 4458919, at *2).13
13
The court did review plaintiff’s proposed motion to
strike, primarily to ascertain whether it was in substance a
Daubert motion. Based on its perusal of the motion, it does not
seem the motion has merit so it is unlikely it would be granted
even if allowed to be filed. And of course, plaintiff is free to
cross examine Dr. Smith at trial. But at this point, the court
will not exclude his testimony.
27
Conclusion
Based on the foregoing, it is ordered as follows:
(1) defendants’ motion to strike Roger Allen as an expert
(docket no. 135) is denied as moot;
(2) defendants’ motion for partial summary judgment on
certain elements of plaintiff’s damages (docket no. 136) is
granted in part and denied in part as set forth herein;
(3) defendants’ motion in limine to exclude the reports and
testimony of plaintiff’s experts Brawner and Carter is denied;
(4) defendants’ motion to strike affidavit of Walter R.
Shelton, M.D. (docket no. 150) is denied;
(5) defendants’ motion to strike untimely expert disclosures
and other discovery (docket no. 155) is denied as moot to the
supplemetation of plaintiff’s interrogatory responses and as to
Carter’s supplementation, is granted in part and denied in part,
as set forth herein;
(6) plaintiff’s motion for leave to file out of time motion
for reconsideration and for motion to reopen discovery as to
punitive damages and for other relief is denied; and
(7) plaintiff’s motion for leave to file out of time motion
to strike defendants’ expert Harry Smith, Ph.D., M.D. (docket no.
172) is denied.
SO ORDERED this the 1st day of May, 2018.
/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE
28
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