McGee v. Dollar General Corporation
Filing
25
ORDER granting 23 Motion in Limine Signed by Honorable David C. Bramlette, III on 5/16/2016 (ECW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
DELWIN McGEE
PLAINTIFF
VS.
CIVIL ACTION NO. 5:14-cv-90(DCB)(MTP)
DOLGENCORP, LLC
DEFENDANT
ORDER GRANTING
MOTION IN LIMINE
This cause is before the Court on the defendant Dolgencorp,
LLC (“Dolgencorp”)’s Amended Motion in Limine (docket entry 23) to
exclude from evidence at trial certain medical evidence, and to
limit the introduction of medical evidence by the plaintiff Delwin
McGee (“McGee”).
Having carefully considered the motion (to which
there has been no response by the plaintiff) and the applicable
law, the Court finds as follows:
In the instant action, the plaintiff alleges injuries from a
slip-and-fall in a Dollar General Store located in Pike County,
Mississippi.
Specifically, McGee alleges that the fall aggravated
a pre-existing back injury.
On December 18, 2015, Dolgencorp filed its first Motion in
Limine to Exclude from Evidence at trial Certain Medical Evidence
and to Limit the Introduction of Medical Evidence by McGee.
(Docket entry 18).
On January 7, 2016, McGee filed a Motion for
Leave to take a de bene esse or trial deposition of Dr. Morteza
Shamsnia.
(Docket entry 19).
On January 13, 2016 a pretrial
conference was held before Magistrate Judge Michael T. Parker.
Judge Parker heard argument from counsel on the parties’ motions,
and entered an Order on January 15, 2016.
(Docket entry 21).
Order provided, in part:
The issue currently before the Court is whether to
afford the Plaintiff an extension of time to conduct the
trial deposition of Dr. Shamsnia. Pursuant to the Case
Management Order [5], Plaintiff’s deadline to designate
experts expired June 1, 2015, and the discovery deadline
expired September 1, 2015. Although Plaintiff originally
designated Dr. Shamsnia as an expert, he did not provide
However, Plaintiff recently
an expert report. fn1
produced additional medical records to the Defendant, and
asserts that Dr. Shamsnia can offer new, additional
testimony regarding the Plaintiff’s injuries based upon
an MRI performed on October 3, 2015, and an office visit
that took place on November 4, 2015. See Motion [19].
Plaintiff raises this issue only weeks before trial,
which was set to begin in February 2016.
See Case
Management Order [5] at 3.
fn1 Pursuant to L. U. Civ. R. 26(a)(2)(D), a treating physician may
not have to provide an expert report, but the opinions and facts to
which the witness may testify must be disclosed. At the pretrial
conference in this matter, Plaintiff’s counsel represented that the
doctor’s deposition and/or his opinions may not be limited to the
treatment records or to the opinions previously disclosed in light
of the most recent treatment. Moreover, certain records from this
doctor, including MRI film, have not been produced.
The Defendant does not object to the deposition taking
place; rather, the Defendant objects to the admissibility
of the testimony at trial, arguing that Plaintiff’s
motion [19] requesting the out-of-time deposition of Dr.
Shamsnia is untimely and without justification and should
not be allowed to cover areas not previously disclosed.
See Motion in Limine [18] and Response [20].
Though the motion requests an out-of-time deposition,
the thrust of the Plaintiff’s request is that he be
allowed to supplement his expert disclosures out of time.
The analysis of this issue is governed by the framework
set forth in Geiserman v. MacDonald, which directs the
court to consider: “(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
2
The
cure such prejudice.” 893 F.2d 787, 791 (5th Cir. 1990).
The Court having balanced the aforesaid factors finds
that the deposition of Dr. Shamsnia should be allowed to
preserve his testimony, and that the trial set in this
matter should be continued.
In regard to the first factor, the Plaintiff provides
scant explanation for the untimely deposition. Although
the Plaintiff states that he was not aware of the new
testimony until a November 4, 2015 office visit, over two
months passed before he filed the motion [19] to conduct
the deposition. In addition, the Plaintiff was under the
obligation to provide information regarding his injuries
long ago. The timing of the motion is also substantially
prejudicial to the Defendant, as it has designated no
expert to testify to the extent and nature of the
Plaintiff’s injuries, and if the existing trial date
remains, they will have no opportunity to procure an
expert to counter Dr. Shamsnia’s testimony.
These
factors weigh in favor of the Defendant.
However, the other two factors weigh heavily in favor
of the Plaintiff. Dr. Shamsnia’s testimony regarding the
Plaintiff’s injuries addresses one of the central issues
in this action. Moreover, any prejudice to the Defendant
can be cured by continuing the trial and allowing the
Defendant time to designate an expert of its own.
Accordingly, the Court orders as follows:
1. That the trial currently set in this matter is hereby
continued;
2. That Plaintiff may supplement his expert designation
to include any new opinions of Dr. Shamsnia;
3.
That
Plaintiff
shall
supplement
his
expert
designations on or before January 29, 2016.
The
supplementation must include the information required by
the Federal Rules of Civil Procedure and the Local
Uniform Civil Rules;
4. That Defendant may designate an expert in response to
Dr. Shamsnia’s testimony, if it desires, on or before
February 29, 2016;
5. That the pretrial conference in this matter is set for
May 17-19, 2016, before the undersigned in Natchez, MS;
3
6. That this matter is set for trial during a three-week
trial calender beginning June 6, 2016, and ending June
24, 2016, before Senior District Judge David Bramlette in
Natchez, MS;
7. That the Plaintiff’s Motion for Leave to Take De Bene
Esse Deposition [19] is denied without prejudice as moot;
and
8. The parties are permitted to depose the experts
designated, if they so choose. The depositions held
should be completed by March 7, 2016.
Order of January 15, 2016.
On April 28, 2016, the pretrial conference was rescheduled for
May 10, 2016.
offered
no
At the pretrial conference, plaintiff’s counsel
explanation
for
his
failure
to
supplement
expert
designations (due by January 29, 2016), nor did he move for
additional time to do so.
McGee has not made any disclosures of
any new opinions of Dr. Shamsnia, nor produced any additional
medical information from Dr. Shamsnia. Specifically, McGee has not
produced the films or reports from the MRIs performed on McGee’s
cervical and lumbar spines on October 3, 2015, which Dr. Shamsnia
commented on in his November 13, 2015 office note.
(See docket
entry 19, ¶ 12). Furthermore, the plaintiff has not designated any
additional medical experts, nor made any additional expert witness
disclosures.
medical
McGee has made no disclosures concerning any future
treatment
physician.
recommended
by
Dr.
Shamsnia
or
any
other
(See docket entry 19, ¶¶ 14-15).
Since McGee has not made any additional disclosures concerning
4
Dr.
Shamsnia,
including
no
information
regarding
any
future
treatment that he may need, the defendant contends that McGee
should be prohibited from putting on any evidence whatsoever at
trial regarding future medical treatment and/or the cost of any
future medical treatment.
The Court agrees with the defendant,
especially in light of the plaintiff’s complete silence on the
issue.
McGee previously produced a single medical bill in the amount
of $7,062.00. (Docket entry 19, ¶¶ 20-22 and Exhibit 6 thereto).
Since the plaintiff has not produced any additional medical records
or bills regarding past medical treatment, the defendant seeks a
ruling limiting the plaintiff’s evidence regarding past medical
expenses to the single bill for $7,062.00 previously produced. The
plaintiff does not object, and the Court shall grant the relief
requested.
McGee also previously produced 21 pages of medical records of
Dr. Shamnsia, and disclosed the purported opinions of Dr. Shamsnia.
The records make no mention of the treatment Dr. Shamsnia provided
to McGee, nor do they contain any evidence to support many of the
opinions contained in the Designation of Experts McGee served on
June 1, 2015.
(See Exhibit 7 to docket entry 19).
Since McGee has
made no additional disclosures of any opinions of Dr. Shamsnia, nor
provided any additional medical records or information from Dr.
Shamsnia, especially the films and reports from the MRIs performed
5
on October 3, 2015, the plaintiff shall be prohibited from putting
on any evidence at trial concerning the October 3, 2015 cervical
and lumbar MRIs, and Dr. Shamsnia’s testimony at trial shall be
limited to the information and opinions, if any, contained in the
21 pages of medical records previously produced by McGee.
ACCORDINGLY,
IT IS HEREBY ORDERED that the defendant Dolgencorp, LLC’s
Amended Motion in Limine (docket entry 23) to exclude from evidence
at trial certain medical evidence, and to limit the introduction of
medical evidence by the plaintiff Delwin McGee, is GRANTED as
follows:
(1) The plaintiff is prohibited from putting on any evidence
whatsoever at trial regarding future medical treatment and/or the
cost of any future medical treatment;
(2) The plaintiff’s evidence regarding past medical expenses
is limited to the single bill for $7,062.00 previously produced;
(3) The plaintiff is prohibited from putting on any evidence
at trial concerning the October 3, 2015 cervical and lumbar MRIs,
and Dr. Shamsnia’s testimony at trial shall be limited to the
information and opinions, if any, contained in the 21 pages of
medical records previously produced by McGee.
SO ORDERED, this the 16th day of May, 2016.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?