ORBER et al v. JAIN et al

Filing 52

OPINION & ORDER denying 34 Motion in Limine; granting w/out prejudice 35 Motion in Limine; denying 36 Motion in Limine; granting w/out prejudice 37 Motion in Limine; granting, in part, w/out prejudice 39 Motion in Limine. Signed by Judge Renee Marie Bumb on 4/30/2012. (drw)

[Docket Nos. 34, 35, 36, 37, and 39]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

JAYNE ORBER and MARC ORBER,
husband and wife, individually,
Plaintiffs,
Civil No. 10-1674 (RMB/JS)
v.
RAJESH K. JAIN, M.D.,
RECONSTRUCTIVE ORTHOPEDICS,
P.A.,

OPINION AND ORDER

Defendants.

Plaintiffs have made five motions in limine to preclude the
introduction of certain evidence.

They are:

(1)

to bar Defendants’ expert Dr. Michael Sananman from
certain conclusions and opinions;

(2)

to strike portions of defense expert Dr. Austin’s
report and to exclude Dr. Austin from referencing
Plaintiff’s re-scheduling or cancelling post-operative
appointments;

(3)

to exclude evidence that Plaintiff missed physical
therapy sessions;

(4)

to exclude the August 6, 2010 letter of Dr. Deshpande
and certain other related evidence; and

(5)

to strike certain conclusions and testimony of
Defendants’ expert Dr. Michael Dougherty.

For the reasons that follow, those motions are:
(1) denied;

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(2) granted without prejudice;
(3)
(4)

granted, without prejudice.

(5)
I.

denied.

granted, in part, without prejudice.

Background
Plaintiffs Jayne and Marc Orber allege that Plaintiff Jayne

Orber (“Mrs. Orber”) was damaged as the result of the medical
negligence of Defendant Dr. Rajesh K. Jain.

They have moved to

exclude the Defendants, Dr. Jain, and the practice out of which
he operates, Reconstructive Orthopedics, P.A., from introducing
certain evidence at trial.

That evidence largely revolves around

claims by the Defendants that Mrs. Orber failed to attend
physical therapy sessions as instructed and canceled certain
post-operative doctor’s appointments.
II.

Standard
Plaintiffs’ motions implicate two evidentiary issues.

First, they implicate the standard admissibility question of
whether the proffered evidence is more probative than it is
prejudicial.

If it is not, the Court must exclude it under Rule

403 of the Federal Rules of Evidence.
403.

Federal Rule of Evidence

Second, they implicate the standard for the admissibility

of expert testimony under Federal Rule of Evidence 702.

It

provides that:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or
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to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based on sufficient facts
or data, (2) the testimony 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.
Federal Rule of Evidence 702.
In order for an expert’s opinion to be reliable, the expert
must have “good grounds” for his or her belief. The opinion, to
be reliable, must be based on the “methods and procedures of
science” and not merely on “subjective belief or unsupported
speculation.” In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742
(3d Cir. 1994)(quotation and citation omitted).

In the specific

context of medical negligence, a medical doctor’s expert opinion
must be stated with reasonable medical certainty.

Ayala v.

Terhune, 195 F. App’x 87, 92 (3d Cir. 2006).
III. Analysis
The Court addresses each of Plaintiffs’ five motions in
turn.
A.

Plaintiffs’ Motion To Bar Defendants’ Expert Dr.
Michael Sananman From Certain Conclusions And Opinions

Plaintiffs object to the portion of Dr. Sananman’s opinion
in which he opines that Plaintiff’s failure to pursue physical
therapy was responsible for Plaintiff’s current physical
limitations. Plaintiff makes two principal objections to this
testimony.
Plaintiffs’ first objection to this proposed testimony is
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that Dr. Sananman, as a neurologist, is not qualified to offer
expert opinion on how much physical therapy Mrs. Orber should
have had or that she Plaintiff did not have sufficient physical
therapy.

However, on the former point, Dr. Sananman does not

purport to opine as to a specific amount of physical therapy Mrs.
Orber should have had.

Dr. Sananman himself acknowledged that

that type of opinion was more appropriately the province of
orthopedic or vascular surgeons.

On the latter, Dr. Sananman’s

opinion was that: (1) based on his review of the medical evidence
and his own examination, and utilizing his neurological
expertise, an expertise Plaintiffs do not challenge, nerve damage
was not responsible for Mrs. Orber’s physical limitations; (2)
that these could be addressed by physical therapy; (3) it was Dr.
Sananman’s understanding that Mrs. Orber had not attended the
prescribed physical therapy sessions; and (4) that failure was
therefore the cause of Mrs. Orber’s physical limitations.

This

type of opinion is within the expertise of a neurologist.

Dr.

Sananman’s lack of specialized background in rehabilitative
medicine goes to the weight of his testimony, not its
admissibility, and may be attacked through vigorous crossexamination and presentation of contrary evidence. United States
v. Lee, 339 F. App’x 153, 160 (3d Cir. 2009).
Plaintiffs’ second objection is to the reliability of Dr.
Sananman’s process in coming to his conclusion.

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However, Dr.

Sananman listed in detail the information and methodology he
utilized to come to his conclusions.

Dr. Sananman reviewed

extensive medical records, relevant depositions of fact and
expert witnesses in this case, and other pertinent records.
also conducted his own examination of Mrs. Orber.

He

Dr. Sananman’s

expert reports recounted the facts from all of these sources and
explained how they formed the basis for his conclusion.

In

essence, Dr. Sananman found that much of Mrs. Orber’s limitations
were inconsistent with his neurological findings, but would be
consistent with a failure to seek appropriate physical therapy.
Dr. Sananman.

This opinion was reliably grounded in the detailed

recitation of the facts Dr. Sananman reviewed in making it.
Again, any limitations in this testimony can be appropriately
brought out by cross-examination and presentation of contrary
evidence.

Id.

Accordingly, Plaintiffs’ motion to exclude this

testimony is DENIED.
B.

Plaintiffs’ Motion To Strike Portions Of Defense Expert
Dr. Austin’s Report And To Exclude Dr. Austin From
Referencing Plaintiff’s Re-scheduling Or Cancelling
Post-operative Appointments With Dr. Jain And His
Office

Plaintiffs assert that these missed appointments are
irrelevant and unduly prejudicial as it would paint Mrs. Orber as
an uncooperative or bad patient.

Defendants argue that this

evidence is relevant to illustrate Defendants’ appropriate care
of Mrs. Orber following her surgery.

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Defendants’ post-operative

treatment of Mrs. Orber, however, is not at issue in this case
and Plaintiffs have proffered that they will not present evidence
as to this issue.1

Therefore, it is irrelevant.

therefore GRANTS this motion, without prejudice.

The Court
If Plaintiffs

present evidence regarding the post-operative care of Defendants,
the Court may revisit this issue at that time.
C.

Plaintiffs’ Motion To Exclude Evidence That Plaintiff
Missed Physical Therapy Sessions

Plaintiff contends that this evidence should be excluded on
two grounds.

First, while Plaintiffs do not dispute the

potential relevancy of such evidence (See D’Aries v. Schell, 274
N.J.Super. 349, 362 (N.J.App.Div. 1994)(holding that the
patient’s post-treatment negligence is relevant to the issue of
damages)), they argue that Defendants have not offered
appropriate expert evidence linking the evidence to Mrs. Orber’s
present condition.

As discussed above, however, Defendants have

done so in the form of Dr. Sananman’s testimony.

In addition,

Plaintiff’s own neurology expert, Dr. Edgar Kenton, and
orthopedics expert, Dr. Harvey S. Sicherman, testified at
deposition and at trial respectively that physical therapy could
play a role in Mrs. Orber’s recovery.

And, in any event, even

without expert testimony, it would properly be within the

1

Defendants have not argued that Plaintiff’s failure to
keep her office appointments (unlike her failure to attend
physical therapy sessions) contributed to her damages.
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province of the jury to assess whether the failure to attend
physical therapy sessions, given that it was prescribed, could
have mitigated her injuries.
Second, Plaintiffs argue that this evidence is more
prejudicial, as it could portray Mrs. Orber as a “bad patient,”
than probative and should therefore be excluded on this basis.
This Court disagrees.
unfair prejudice.

The proffered testimony would not impose

It is not characterized by unnecessarily

prejudicial invective or ad hominem attack as to whether Mrs.
Orber was a bad patient.

Rather, it is simply that Mrs. Orber

did not pursue physical therapy as instructed and that failure
contributed to her present condition.

The evidence is highly

relevant to Plaintiff’s mitigation of damages.
testimony is more probative than prejudicial.

Therefore, the
Plaintiffs’ motion

to exclude this evidence is DENIED.
D.

Plaintiffs’ Motion To Exclude The August 6, 2010 Letter
Of Dr. Deshpande And Certain Other Related Evidence

Defendants concede that this evidence is not relevant at
this time.

The Court therefore will GRANT this motion without

prejudice.

The Court may revisit this issue if this evidence

becomes relevant.
E.

Plaintiffs’ Motion To Strike Certain Conclusions And
Testimony Of Defendants’ Expert Dr. Michael Dougherty

Plaintiffs submit that Dr. Dougherty should be excluded from
testifying that Mrs. Orber’s failure to attend physical therapy

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sessions contributed to her present condition because he could
not give this opinion with the reasonable medical certainty
required.

This Court agrees.

Dr. Dougherty testified that it

was “not clear” in this case that this failure contributed to
Mrs. Orber’s condition and that he could not say that it did with
“medical certainty.”
part.

As such, Plaintiffs’ motion is GRANTED, in

Dr. Dougherty may not testify that there is a link between

Mrs. Orber’s failure to pursue physical therapy is causally
related to her present condition.

Ayala, 195 F. App’x at 92

(holding that expert medical opinion must be stated with
reasonable medical certainty”).

However, Dr. Dougherty may

testify on direct that Mrs. Orber’s injuries were not a
consequence of her vascular surgery, which he testified was
“clear” from the evidence.2
IV.

Conclusion
For all these reasons, Plaintiffs’ motions in limine are

granted and denied as described above.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated: April 30, 2012

2

In the event Plaintiff opens the door on crossexamination, the Court may permit Dr. Dougherty to testify as to
Plaintiff’s failure to attend physical therapy sessions.
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