CLARK v. DARDEN RESTAURANTS, INC. et al

Filing 30

OPINION and ORDER that Defendant's Motion to bar introduction of evidence related to Plaintiff's eye surgeries is DENIED; the aspect of Defendant's Motion to bar evidence related to expenses associated with Plaintiff's eye surgeries has been withdrawn. Signed by Magistrate Judge Douglas E. Arpert on 3/7/2014. (mmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DARYL CLARK

:
:
Plaintiff,
:
:
v.
:
:
:
GMRI, Inc.
:
:
Defendants.
:
___________________________________ :

Civil Action No. 11-1056

OPINION
AND ORDER

This matter comes before the Court on a Motion by Defendant to bar the introduction of
evidence at trial concerning three surgical procedures performed on Plaintiff. See Defendant’s
Trial Brief, filed September 30, 2013, docket entry no. 26-1 (“Deft. Tr. Br.”).
Plaintiff has opposed Defendant’s Motion. See Plaintiff’s Trial Brief, filed October 9,
2013, docket entry no. 27-1 (“Pltf. Tr. Br.”).
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On June 24, 2009, Plaintiff was a patron at a Red Lobster restaurant owned and operated

by Defendant. A server at the restaurant dropped a plate onto the table where Plaintiff was
seated. The plate shattered and one or more glass fragments went into Plaintiff’s eyes.
Plaintiff’s eyes were examined at the Emergency Room of Robert Wood Johnson
University Hospital on the date of the incident. The examination revealed a scleral corneal
abrasion but was otherwise normal. Subsequently, Plaintiff was examined by three different eye
specialists none of whom found any evidence of any granuloma, caruncle or cataracts.
On April 30, 2010, Iftikhar M. Chaudhry, M.D. performed surgery and removed a
granuloma from Plaintiff’s left eye. On June 30, 2010, Dr. Chaudhry removed a cataract from

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Plaintiff’s left eye. On July 29, 2010, Dr. Chaudhry removed a cataract from Plaintiff’s right
eye. Dr. Chaudhry has rendered a written report dated March 15, 2012 and his de bene esse
deposition on was conducted on September 3, 2013.
Plaintiff filed his Complaint on February 25, 2011. Defendant filed an Answer on July
12, 2011. Discovery has been concluded. On August 13, 2013, the parties filed consent to
Magistrate Judge jurisdiction. The trial of this matter is currently scheduled to commence on
April 22, 2014.
II.

DEFENDANT’S MOTION
In short, Defendant maintains that evidence of the April 30, 2010 surgical excision of the

granuloma from Plaintiff’s left eye should be barred because it “was proved to be unrelated to
the incident by a pathology report.” Deft. Tr. Br. at page 4. Likewise, Defendant maintains,
evidence related to Plaintiff’s two cataract surgeries should be barred because Plaintiff has not
established a causal relationship to the incident. For the reasons that follow, Defendant’s Motion
is DENIED.
A.

The April 30, 2010 Surgery

In his report dated March 15, 2012, Dr. Chaudhry stated, Plaintiff “definitely had a
foreign body granuloma on his left caruncle.…” On April 30, 2010 Dr. Chaudhry performed a
surgical procedure during which he removed this granuloma “which was presumed to be glass.”
Pltf. Tr. Br., Exhibit A, page 2.
Dr. Chaudhry’s de bene esse deposition was conducted on September 3, 2013. With
respect to this surgery, he testified, “[t]o my palpation when I took off the granuloma, it felt like
a hard piece of glass inside.” Pltf. Tr. Br., Exhibit B, page 14.

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Defendant maintains that Dr. Chaudhry’s opinion that the surgery he performed and the
granuloma he removed on April 30, 2010 was related to the incident “is directly contradicted by
the actual medical evidence”, a post-surgical pathology report which contains no reference to
glass or other foreign material. Deft. Tr. Br. at page 5. Therefore, Defendant concludes, “[t]he
jury should not be offered evidence that has no medical basis.” Id.
Plaintiff maintains that “Dr. Chaudhry testified to a reasonable degree of medical
certainty that the granuloma was caused by the incident on June 24, 2009.” Pltf. Tr. Br. at page 6.
The details of the pathologist’s examination of the tissue are not presented, simply his conclusion
that no glass was present. At the same time, as Plaintiff notes, “[n]o one disputes that glass was
imbedded in Mr. Clark’s eye as a result of the incident.” Id. at page 7.
Under the circumstances, Defendant’s motion to bar evidence of the April 30, 2010
surgery is denied. While certainly fodder for argument, the pathology report alone is insufficient
to sustain Defendant’s Motion.
B.

The Cataract Surgeries

Dr. Chaudhry performed cataract surgery on Plaintiff’s left eye on June 30, 2010 and on
his right eye on July 29, 2011. In his report dated March 15, 2012, Dr. Chaudhry states, “the
cataracts were related to [Plaintiff’s] initial injury and were possibly traumatic in nature. I
cannot verify this since I never saw the patient prior to the injury and I do not know if there is
any pre-existing cataract formation.” Pltf. Tr. Br., Exhibit A, page 2.
Defendant maintains that Plaintiff has no evidence to support his contention that the
cataract surgeries were related to the incident. To the contrary, Defendant argues, its expert, Dr.
Stephen Ellis, testified, “there is virtually no chance that they were.” Deft. Tr. Br., Exhibit C,
page 19. Nonetheless, Plaintiff notes, Dr. Ellis confirmed that none of the physicians who

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examined Plaintiff after the incident observed the presence of cataracts. Deft. Tr. Br., Exhibit C,
page 33. The absence of any cataracts in the three months immediately following the incident
would appear to contradict the possibility of a preexisting condition and support the conclusion
of Plaintiff’s expert, that the cataracts were traumatic in nature.
Again, this is fertile ground for argument but insufficient grounds exist to preclude this
aspect of Dr. Chaudhry’s testimony.
III.

CONCLUSION
Having considered the papers submitted and the arguments of the Parties, for the reasons

stated above, Defendant’s Motion to bar introduction of evidence related to Plaintiff’s eye
surgeries is DENIED.
Defendant also moved to bar introduction of evidence related to the expenses associated
with Plaintiff’s eye surgeries. Counsel have advised the Court that the Parties have reached an
agreement on this issue. Accordingly, this aspect of Defendant’s Motion has been withdrawn.

s/ Douglas E. Arpert____________
DOUGLAS E. ARPERT, U.S.M.J.
Dated: March 7th, 2014

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