McGee v. Dollar General Corporation
Filing
38
ORDER granting 34 Motion in Limine Signed by Honorable David C. Bramlette, III on 7/25/2016 (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
This cause is before the Court on the defendant Dolgencorp,
LLC’s Motion in Limine
(docket entry 34).
Having carefully
considered the motion, the plaintiff’s response, the memoranda of
the parties and the applicable law, the Court finds as follows:
On June 1, 2016, the Court entered an Order continuing the
trial date1 so that the plaintiff’s attorney could schedule the
deposition of plaintiff’s treating physician, Dr. Morteza Shamsnia.
The deposition took place on July 6, 2016.
On July 12, 2016, the
defendant filed its motion in limine, and attached a 50-page
transcript of the deposition as well as Dr. Shamsnia’s notes from
his September 7, 2014, consultation with the plaintiff.
On
May
16,
2016,
the
Court
entered
an
Order
granting
Dolgencorp’s Amended in limine motion to exclude and limit certain
medical evidence of the plaintiff, Delwin McGee (“McGee”)(Docket
entry 25).
This Order limited the medical expenses that McGee
could introduce into evidence at trial to the single bill of
1
The trial date was initially continued to July 18, 2016,
subsequently moved to July 20, 2016, and then suspended pending
the outcome of the motion in limine.
$7,062.00 previously produced, prohibited McGee from putting on any
evidence at trial concerning the October 3, 2015 cervical and
lumbar MRIs, and limited the testimony of Dr. Shamsnia to the 21
pages of medical records produced by McGee, among other relief.
At his July 6, 2016, deposition, Dr. Shamsnia provided no
testimony stating that any of the treatment he provided to McGee
was causally related to any injury he allegedly suffered in his
alleged fall at Dolgencorp’s store on March 4, 2014.
Furthermore,
Dr. Shamsnia provided no testimony stating that the treatment he
provided to McGee was reasonable or necessary, or that the costs
incurred for the treatment provided were reasonable and standard.
In addition, the 21 pages of medical records upon which Dr.
Shamsnia was permitted to testify contained notes from only one
office visit, September 7, 2014, which was the initial visit McGee
made to Dr. Shamsnia.
However, Dr. Shamsnia testified that as of
September 7, 2014, he had not made any determination or conclusion
regarding the nature and extent of McGee’s medical condition, nor
the cause of the conditions.
Deposition of Dr. Shamsnia, p. 43.
The opinions provided by Dr. Shamsnia concerning the cause of any
medical condition McGee has – his sleep apnea and the nerve
conditions he has in his upper extremities – indicate that these
particular conditions are unrelated to any trauma McGee may have
incurred during his alleged fall at Dollar General.
Instead, Dr.
Shamsnia testified that a contributing cause of McGee’s sleep apnea
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was his long-term use of pain medication.
Deposition, pp. 14, 41-
42. Dr. Shamsnia also testified that the likely cause of the nerve
conditions in McGee’s upper extremities is related to his diabetes.
Deposition, pp. 24-27, 41.
He further testified that there is no
connection between McGee’s sleep problems and any neck injury.
Deposition, pp. 36-37, 43-44.
Since Dr. Shamsnia did not provide any testimony stating that
the treatment he provided to McGee (addressed in the 21 pages of
medical records he was permitted to testify about) was causally
related to any injury suffered by McGee in his alleged fall at
Dollar General, his testimony and his medical records are not
admissible
at
trial.
Furthermore,
Dr.
Shamsnia
provided
no
testimony about his charges listed on the single medical bill
produced by McGee in discovery. Dr. Shamsnia provided no testimony
that these charges were reasonable, and no testimony that they were
reasonable and necessary for the treatment provided to McGee
related to injuries from the alleged fall.
bill is
Therefore, the medical
not admissible at trial.
Defendant Dolgencorp moves for entry of an Order precluding
Dr. Shamsnia’s testimony, the 21 pages of his medical records, and
the single medical bill, from evidence at trial.
Defendant Dolgencorp also shows that testimony was solicited
from Dr. Shamsnia regarding his treatment of McGee that was not
contained in the 21 pages of his medical records that he was
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permitted to testify about, including testimony concerning the
cervical and lumbar MRIs performed on McGee on October 3, 2015.
This testimony is found on the following pages of Dr. Shamsnia’s
deposition:
Page 21, L 15 to p. 24, L 14 – testimony concerning the MRIs
performed on October 3, 2015;
Page 27, L 10 to p. 29, L 10 – testimony concerning Dr. Shamsnia’s
progress notes other than the September 7, 2014 progress note;
Page 27, L 11-15 – testimony concerning the medication McGee is
currently taking;
Page 34, L 25 to p. 36, L 16 and Exhibit “1” to Dr. Shamsnia’s
deposition – testimony concerning Dr. Shamsnia’s office note from
February 3, 2016, and the note itself, attached as Exhibit “1” to
the deposition.
The Court previously ordered that Dr. Shamsnia could not
testify about any treatment of McGee that was not included in the
21 pages of his medical records, and specifically precluded him
from testifying about the cervical and lumbar MRIs done in October
2015.
Dolgencorp’s motion seeks preclusion of (1) the deposition
testimony of Dr. Shamsnia, (2) Exhibit “1” to Dr. Shamsnia’s
deposition, and (3) the single medical bill from Dr. Shamsnia.
In response, the plaintiff asserts that he is not seeking to
introduce any evidence regarding future medical treatment or cost
of any future medical treatment.
4
The plaintiff further asserts
that the deposition testimony of Dr. Shamsnia deals solely with the
information and opinions contained in the twenty-one pages of
medical records previously produced by the plaintiff.
In rebuttal, the defendant points out that McGee’s February 3,
2016, visit to Dr. Shamsnia, and the record from this visit
(Exhibit “1” to Dr. Shamsnia’s deposition) are precluded from
evidence in this case by the Court’s Order of May 16, 2016, because
they are not included in the twenty-one pages of medical records
produced by the plaintiff.
Furthermore, the Court’s Orders of May
16, 2016, and June 1, 2016, prohibit the plaintiff “from putting on
any evidence at trial concerning the October 3, 2015 cervical and
lumbar MRIs.” (Docket entry 25, p. 6; Docket entry 31, p. 2).
Finally, the defendant points out that the plaintiff has
failed to produce any evidence causally relating any treatment Dr.
Shamsnia provided to McGee (contained in the 21 pages of medical
records) to the alleged incident at the Dollar General store.
The
21 pages of Dr. Shamsnia’s medical records at issue contain one
office
visit
(September
7,
2014).
Dr.
Shamsnia
testified,
unequivocally, that at the point and time he saw McGee on September
7, 2014, he had not made any decision regarding the nature and
extent of McGee’s claimed injuries or, more importantly, the cause
of these claimed injuries.
As noted in Dr. Shamsnia’s records and deposition, McGee
previously injured his lumbar spine in 1995, had surgery, and has
5
been on Social Security disability as well as on medical pain
management for his lumbar spine since the surgery.
Furthermore,
McGee had other medical conditions – hypertension, diabetes, sleep
apnea – that were not related to any alleged injury suffered in the
incident at issue.
Shamsnia Deposition, pp. 39-44.
Since Dr. Shamsnia made it clear that he had not made any
determination of cause of any of McGee’s injuries in the 21 pages
of medical records at issue, Dr. Shamsnia’s testimony, along with
the 21 pages of medical records and the single medical bill from
Dr. Shamsnia, must be precluded from evidence at trial.
Accordingly,
IT IS HEREBY ORDERED that the defendant Dolgencorp, LLC’s
Motion in Limine (docket entry 34) is GRANTED in its entirety as
set forth herein.
SO ORDERED, this the 25th day of July, 2016.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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