Grussing v. Orthopedic and Sports Medicine, Inc. et al

Filing 79

MEMORANDUM AND ORDER - This matter came before the Court for a final pretrial conference on January 19, 2017, in preparation for trial commencing on January 30, 2017. In accordance with the rulings announced from the bench,....{see Order for compl ete details}...... IT IS FURTHER ORDERED that the Case Management Order is modified to the extent that no pretrial conference will be held on January 26, 2017. [Doc. 20] The parties shall be prepared to begin trial of this matter on Mo nday, January 30, 2017, at 9:30 a.m. in Courtroom 3-North. re: 72 MOTION to Amend/Correct 44 Amended Complaint filed by Plaintiff Leslie Grussing, 61 MOTION in Limine filed by Defendant Corey Solamn, Jr., M.D., Defendant Orthopedic and Sports Medicine, Inc., 67 MOTION in Limine filed by Plaintiff Leslie Grussing ( Jury Trial set for 1/30/2017 09:30 AM in Courtroom 3N before District Judge Charles A. Shaw.). Signed by District Judge Charles A. Shaw on 1/20/2017. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

LESLIE GRUSSING,
Plaintiff,
v.
ORTHOPEDIC AND SPORTS MEDICINE,
INC., et al.,
Defendants.

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No. 4:15-CV-1333 CAS

MEMORANDUM AND ORDER
This matter came before the Court for a final pretrial conference on January 19, 2017, in
preparation for trial commencing on January 30, 2017. In accordance with the rulings announced
from the bench,
IT IS HEREBY ORDERED that plaintiff’s motion for leave to file a third amended
complaint is DENIED for the following reasons. [Doc. 72]
Where a party seeks leave to amend outside the time established by the Case Management
Order (“CMO”), the good cause standard of Rule 16(b), Federal Rules of Civil Procedure, applies.
Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716 (8th Cir. 2008). Plaintiff was therefore
required to show cause why she should be granted leave to file an amended complaint eight months
beyond the CMO’s deadline and eleven days prior to trial. In support of her motion, plaintiff argued
that defendants could not be surprised or prejudiced by the proposed amendment because their
expert, as well as plaintiff’s expert, testified she would need future knee surgery. Plaintiff also
argued that the Second Amended Complaint adequately seeks future medical expenses as pleaded.

The primary measure of good cause under Rule 16(b) is the plaintiff’s diligence in
attempting to meet the CMO’s requirements. Sherman, 532 F.3d at 716-717. The Eighth Circuit
has instructed that prejudice generally should not be considered if the moving party has not been
diligent in meeting the CMO’s deadlines, as the focus “in the first instance (and usually solely)” is
on the diligence of the party seeking modification. Id. at 717. In Sherman, the Eighth Circuit held
the district court erred in permitting the defendant to amend its answer to allege a preemption
defense more than seventeen months after the established deadline for amending pleadings, where
the defendant was not diligent and had knowledge of the defense long before it sought leave but did
not consider the defense before the summary judgment stage of the litigation. The instant case
presents a similar situation to Sherman because plaintiff admits she knew from the time of Dr.
Solman’s deposition that she would need one or more knee replacement surgeries in the future, but
took no action to amend her complaint to seek damages for future medical expenses or surgeries
until the defendants filed a motion in limine seeking to exclude evidence of future medical expenses.
Plaintiff was therefore not diligent in meeting the CMO’s deadline or in promptly seeking leave of
Court to amend, and the Court finds she does not show good cause to amend.
The Court also finds that the Second Amended Complaint does not allege future medical
expenses or the need for additional procedures. It states only that plaintiff “suffered injuries . . .
which caused her to incur medical and other expenses associated with treatment,” (Doc. 44, ¶ 23),
and that as a result of Dr. Solman’s negligence plaintiff “suffered pecuniary losses including but not
limited to medical expenses and lost income.” (Id., ¶ 24). There is nothing in the Second Amended
Complaint that arguably refers to future medical expenses or surgeries.

IT IS FURTHER ORDERED that, as a result of the foregoing ruling, plaintiff cannot
present any testimony or evidence concerning future medical expenses and there will be no line on
the verdict form for future medical expenses, but plaintiff may present testimony or evidence that
she will have problems with her knee in the future and will need additional procedures.
IT IS FURTHER ORDERED that plaintiff’s motion in limine No. 1, to exclude any
testimony as to what defendants’ expert witness Dr. Matava would have personally done had
defendant Dr. Solman consulted with him about plaintiff’s case, and what defendant or his expert
witness have done with other patients they assert are similarly situated, is GRANTED. [Doc. 67]
IT IS FURTHER ORDERED that plaintiff’s motion in limine No. 4, to exclude as
inadmissible hearsay any medical references or literature where the witness did not rely on these to
form opinions or provide background for their opinions, they were not authored by the witness, or
where an inadequate foundation has been laid for their use, is GRANTED. However, plaintiff may
utilize on cross-examination of defendants’ witnesses the medical reference materials those
witnesses testified in deposition were reliable sources. [Doc. 67]
IT IS FURTHER ORDERED that plaintiff’s motion in limine No. 6, to preclude any
testimony that defendant Dr. Solman is generally a good physician or a compassionate physician or
thorough or competent or caring, or other statements of good character, under Federal Rule of
Evidence 404(a), is GRANTED. Defendants may argue in closing argument, however, that Dr.
Solman did what a good, competent physician would do under the circumstances. [Doc. 67]
IT IS FURTHER ORDERED that plaintiff’s motion in limine No. 7, to preclude any
testimony that plaintiff is trying to “convict” the defendants of malpractice, references to finding the
defendants “guilty” of malpractice, or that the effect on defendant Dr. Solman’s career, reputation,

privileges, or medical license should be considered, as such language is inflammatory and
misleading, is GRANTED. [Doc. 67]
IT IS FURTHER ORDERED that plaintiff’s motion in limine No. 15, to preclude any
testimony or exhibits regarding the history or background of defendant Dr. Solman or his witnesses
that are not related to their education, experience, or qualifications as medical experts, such as
family members, community involvement, charitable organizations or memberships, etc., as
irrelevant, immaterial, and impermissible character evidence, is GRANTED. Defendants may,
however, introduce testimony or evidence that Dr. Solman is or has been a team physician for school
athletic teams. [Doc. 67]
IT IS FURTHER ORDERED that plaintiff’s motion in limine No. 19, to exclude argument
or evidence of the personal practice of defendant Dr. Solman and his expert witness Dr. Matava, and
specifically any testimony by Dr. Matava as to his recent experiences that are allegedly similar to
plaintiff’s presentation to defendant Solman, is GRANTED. [Doc. 67]
IT IS FURTHER ORDERED that plaintiff’s motion in limine No. 22, to prohibit any
testimony, evidence, argument, comment or inference that defendant Dr. Solman used his “best
judgment” or inferring that so doing is merely a mistake in judgment and thus not negligence, is
DENIED. “An honest error of judgment in making a diagnosis is insufficient to support liability
unless that mistake constitutes negligence. Dotson v. Hammerman, 932 S.W.2d 880, 884 (Mo. App.
1996). The patient must first show an incorrect diagnosis and, second, that the incorrect diagnosis
was a result of the physician's negligence. Id.” Boehm v. Pernoud, 24 S.W.3d 759, 761 (Mo. Ct.
App. 2000). [Doc. 67]
IT IS FURTHER ORDERED that plaintiff’s motion in limine No. 25, to prohibit any
testimony or reference to the effect or possible effect of this lawsuit and/or a verdict on defendant

Dr. Solman’s professional reputation or standing, and/or defendant’s ability to render hospital,
medical, nursing and or therapy case in the future, as irrelevant and highly prejudicial, is
GRANTED. [Doc. 67]
IT IS FURTHER ORDERED that defendants’ motion in limine No. 3, to preclude
plaintiff’s expert Dr. Bal from offering any standard of care opinions regarding the conduct of Dr.
Solman’s physician assistant, Jason Gay, is GRANTED as to any standard of care regarding Mr.
Gay, but plaintiff may introduce evidence that Dr. Solman should have taken action after reviewing
Mr. Gay’s records of plaintiff’s July 9, 2014 post-surgery visit. [Doc. 61]
IT IS FURTHER ORDERED that defendants’ motion in limine No. 4, to preclude plaintiff
from offering any evidence of future medical expenses as it is beyond the scope of damages pled in
plaintiff’s Second Amended Complaint, is GRANTED. [Doc. 61]
IT IS FURTHER ORDERED that the parties’ Notice of Stipulation [Doc. 75] concerning
the remaining motions in limine filed by plaintiff [Doc. 67] and defendants [Doc. 61] is
incorporated herein by this reference.
IT IS FURTHER ORDERED that the Case Management Order is modified to the extent
that no pretrial conference will be held on January 26, 2017. [Doc. 20] The parties shall be
prepared to begin trial of this matter on Monday, January 30, 2017, at 9:30 a.m. in Courtroom 3North.

__________________________________
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 20th day of January, 2017.