Johnny v. Bornowski et al
Filing
162
ORDER granting in part and denying in part 130 plaintiff Oscar L. Johnny, Jr.'s motion for reconsideration. Signed on 4/26/12 by Chief District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
OSCAR L. JOHNNY, JR.,
Plaintiff,
v.
LARRY BORNOWSKI and
STAMPEDE CARRIERS, LLC,
et al.,
Defendants.
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) Case No. 10-04008 -CV-FJG
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ORDER
Currently pending before the Court is Plaintiff Oscar L. Johnny, Jr.’s Motion for
Reconsideration (Doc. No. 130).
I.
Background
This is an action arising out of injuries sustained by Plaintiff Oscar Johnny
when a tractor trailer, driven by Defendant Bornowski, collided with Plaintiff’s 18wheeler in January 2008. Plaintiff’s complaint asserts negligence, negligence per se,
and aggravating circumstances warranting punitive damages.
Plaintiff seeks to admit the expert opinions of psychologist and rehabilitation
expert, Paul Deutsch, Ph.D., and forensic economist, John Ward, Ph.D.. Deutsch’s
expert opinion evaluates Plaintiff’s need for psychological treatment, future medical
treatment, work restrictions, diminished work life, and probability Plaintiff will return to
work full time or part time (Doc. No. 87 Exhibit 1). Ward’s expert opinion forecasts the
monetary loss sustained by Plaintiff based on Deutsch’s evaluations (Doc. No. 35).
On August 1, 2011, Defendants objected to Plaintiff’s use of each expert by filing
Motions to Strike Testimony and Opinions of Plaintiff’s Retained Expert Witness Paul
Deutsch (Doc. No. 72) and John Ward (Doc. No. 71). On November 10, 2011, the
Court granted Defendants’ Motions to Strike (Doc. No. 115). The Court relied on
Hartness v. Union Pacific R. Co., No. 4:07-CV-00269, 2008 WL 5429638, at *2-4 (E.D.
Ark. July 28, 2008) for the proposition that testimony of a rehabilitation expert is not
admissible if it projects how a person’s injuries may shorten his or her work life without
sufficient underlying medical support and that while the expert may rely on medical
reports in forming his opinions of Plaintiff’s employability, he may not testify as a
medical expert (Doc. No. 115). The Court ultimately ruled:
After carefully reviewing the arguments of both parties and the report of
Plaintiff’s expert, the Court finds Dr. Paul Deutsch’s testimony is
inadmissible as it relates to future medical treatments, work restrictions,
diminished work life, and probability Plaintiff will return to work full time
or part time. Deutsch’s expert testimony is only admissible as it relates
to psychological treatment. This includes psychological evaluations,
individual counseling options, and career guidance counseling. To the
extent that Dr. John Ward’s economic forecast relies on Dr. Paul
Deutsch’s testimony as to future medical treatments, work restrictions,
diminished work life, and probability Plaintiff will return to work full time
or part time, Dr. Ward’s testimony is also inadmissible.
(emphasis added) (Doc. No. 115).
Plaintiff submits the present Motion for Reconsideration requesting that the Court
reconsider its Order granting Defendants’ Motion to Strike Testimony and Opinions of
Plaintiff’s Retained Expert Witness Paul Deutsch and John Ward (Doc. No. 130).
II.
Standard of Review
Motions for reconsideration serve a limited function: to correct manifest errors of
law or fact or to present newly discovered evidence. Arnold v. ADT Sec. Services, Inc.,
627 F.3d 716 (8th Cir. 2010) citing Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414
(8th Cir. 1988). Federal Rule of Civil Procedure 60(b) states that motions for
reconsideration may be used to reconsider a final order on certain enumerated grounds
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such as (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence…; (3) fraud…,misrepresentation, or misconduct by an opposing party; (4) the
judgment is void; (5) the judgment has been satisfied, released or discharged…; or (6)
any other reason that justifies relief. Motions for Reconsideration are not to be used to
introduce new evidence that could have been adduced during pendency of the motion
at issue and are not the appropriate place to tender new legal theories for the first time.
Arnold, 627 F.3d 716, 721.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the
Supreme Court interpreted the requirements of Federal Rule of Evidence 702 as it
related to expert testimony. In United States v. Vesey, 338 F.3d 913, 916-17 (8th Cir.
2003), cert. denied, 540 U.S. 1202 (2004), the Court stated:
Rule 702 requires the trial judge to act as a “gatekeeper,” admitting
expert testimony only if it is both relevant and reliable. See Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786,
125 L.Ed.2d 469 (1993). The trial court is granted broad discretion in its
determination of reliability. Kumho Tire Co. v. Carmichael, 526 U.S.
137, 142, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The gatekeeper role
should not, however, invade the province of the jury, whose job it is to
decide issues of credibility and to determine the weight that should be
accorded evidence, see Arkwright Mut. Ins. Co. V. Gwinner Oil Co., 125
F.3d 1176, 1183 (8th Cir. 1997). Expert testimony should be admitted if
[1] it is based on sufficient facts, [2] it “ is the product of reliable
principles and methods,” and [3] “the witness has applied the principles
and methods reliably to the facts of the case.” Fed. R. Evid. 702; see
also General Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139
L.Ed.2d 508 (1997).
Vesey, 338 F.3d at 916-17.
III.
Discussion
Plaintiff submits that its present Motion for Reconsideration should be granted
because the Court’s previous Order was manifestly in error. First, Plaintiff states that
the Court’s interpretation and reliance upon Hartness was incorrect. The material facts
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in Hartness are materially dissimilar to the facts in this action. Plaintiff states that unlike
in Hartness, the facts of this action support that there is underlying medical evidence
establishing that Plaintiff is permanently physically disabled, that Plaintiff has been
given a permanent physical disability rating, and that Plaintiff has permanent physical
limitations. Furthermore, in this action, unlike in Hartness, Deutsch’s rehabilitation
opinions are based upon sufficient underlying medical and psychological support.
Hartness merely provided medical support. Second, Plaintiff states that Defendants
blatantly misrepresented Deutsch’s opinions and the underlying evidence upon which
Deutsch’s opinions are based. Plaintiff proceeds to conduct analysis of each of
Deutsch’s findings and the evidence upon which Deutsch relied. Plaintiff puts particular
emphasis on Deutsch’s recommendation of Plaintiff participating in a chronic pain
management program. Deutsch asserts that there is a psychological component
intertwined with Plaintiff’s objective physical pain that even when the objective physical
pain ceases to exist, the psychological pain may cause Plaintiff to still believe the
objective pain is still present. As such, Plaintiff claims Deutsch is supported in his
recommendation of a chronic pain management program. (Doc. No. 130).
Defendant submits that the Court’s previous Order was proper and should not be
disturbed. First, Plaintiff’s effort to distinguish Hartness is unpersuasive. Second, there
is nothing that is contained in Plaintiff’s Motion to Reconsider that was not available and
that could not have been provided to the Court at the time that Plaintiff initially filed his
response. Third, at no point did Deutsch conduct a physical evaluation of Plaintiff.
Deutsch merely performed a clinical psychological interview. This means that Deutsch
is not qualified to testify as a medical doctor. Fourth, two significant medical doctors in
this case – Dr. Lorello and Dr. Broom – did not endorse or support Deutsch’s proposed
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recommendations related to future medical treatment and care. This is an indicator that
Deutsch’s recommendations are unreliable. Fifth, Deutsch’s opinions regarding
Plaintiff’s ability to return to full time or part time work are highly speculative. Sixth,
Plaintiff has not met the high burden required for motions for reconsideration. Finally,
Plaintiff should not be permitted to expand the scope of permissible expert testimony
under the vague reference to chronic pain management. (Doc. No. 138).
After carefully reviewing the arguments of both parties and exhibits, the Court
FINDS the following:
First, the Court is not persuaded that its reliance on Hartness was manifestly in
error. The facts of the case are analogous to the above-styled action in that the case
provides guidance in circumstances where a rehabilitation expert is called to provide an
expert opinion to which the expert claims he or she relied on underlying medical
evidence in formulating that opinion. Furthermore, the underlying proposition of
Hartness - the testimony of a rehabilitation expert is not admissible if it projects how a
person’s injuries may shorten his or her work life without sufficient underlying medical
support; and while the expert may rely on medical reports in forming his opinions of
Plaintiff’s employability, he may not testify as a medical expert - is a logical extension of
the principles involved in this case and is aligned with public policy. Although this case
involves the opinions of a psychologist and rehabilitation expert, the fact that Deutsch is
a psychologist only puts forth an additional consideration that his opinions are permitted
to also be psychological in nature. The Court did not discount this and specifically
stated in its previous Order that, “Deutsch’s expert testimony is…admissible as it relates
to psychological treatment.” As such, the Court is justified in its use of the Hartness
case.
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Second, the Court PROVISIONALLY GRANTS inclusion of testimony regarding
Deutsch’s recommendation for Plaintiff’s participation in a chronic pain management
program and Deutsch’s opinions regarding Plaintiff’s diminished work life or probability
Plaintiff will return to work. However, counsel should provide the Court with segments
of Deutsch’s deposition testimony, literature relied upon, and any additional items that
Plaintiff intends to use during trial with regard to Deutsch’s testimony on this subject for
prior approval by the Court. These items are to be submitted to the Court on or before
May 25, 2012.
Finally, the Court continues to DENY inclusion of Deutsch’s recommendations
regarding future medical treatments and work restrictions. The Court still believes such
testimony is outside the bounds of Deutsch’s qualifications as a psychologist and
rehabilitation expert.
IV.
Conclusion
Plaintiff Oscar L. Johnny, Jr.’s Motion for Reconsideration (Doc. No. 130) is
PROVISIONALLY GRANTED in part and DENIED in part. Per the Court’s previous
Order, Deutsch’s expert testimony is admissible as it relates to psychological treatment
(Doc. No. 115). This includes psychological evaluations, individual counseling options,
and career guidance counseling (Doc. No. 115). Per the Court’s Order rendered today,
Deutsch’s testimony is PROVISIONALLY GRANTED to include discussion of chronic
pain management program and Plaintiff’s diminished work life or probability Plaintiff will
be able to return to work. However, Plaintiff must submit segments of Deutsch’s
deposition testimony, literature relied upon, and any additional items Plaintiff intends to
use during trial with regard to Deutsch’s testimony on this subject for prior approval by
the Court. The items are to be submitted to the Court on or before May 25, 2012.
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Inclusion of Deutsch’s recommendations regarding future medical treatments and work
restrictions is DENIED. To the extent that Dr. John Ward’s economic forecast relies on
Dr. Paul Deutsch’s testimony as to future medical treatments and work restrictions, Dr.
Ward’s testimony is also inadmissible.
IT IS SO ORDERED.
Date: April 26, 2012
Kansas City, Missouri
S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
Chief United States District Judge
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