Terek et al v. Finkbiner et al

Filing 79

Order ruling on objections to the depositions. Magistrate Judge James R. Knepp, II on 9/18/15. (Attachments: # 1 Letter to Court re: Objections 9/17/15, # 2 Letter to Court re: positions on objections 15/9/06)(A,P)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Case No. 3:14 CV 1391

JEAN A. TEREK,
Plaintiff,

ORDER

v.

MAGISTRATE JUDGE JAMES R. KNEPP II

WINFIELD J. FINKBINER, et al.,
Defendants.

This matter is before the Court for purposes of ruling upon objections interposed during
the depositions of several witnesses. The parties have supplemented their positions regarding the
objections view letters to the Court.1 The Court directs, consistent with the agreement of the
parties, that the depositions by edited according to customary “housekeeping” procedure and,
further, that where an objection has been overruled, that the objection be deleted and where an
objection is sustained, that the question, objection and answer be removed.
Upon review of the pertinent depositions and the positions of the parties, the Court issues
the following rulings:
Dr. Raymond Candage
The objections on page 40 at lines 4 and 10 are overruled. In this instance, it appears that
the term “medical malpractice” is being used as shorthand for “within the applicable standard of
care”, with which Dr. Candage would be qualified to opine, and not in a legalistic sense as would
be the case for the ultimate issue in a medical malpractice trial.

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Copies of the respective correspondence are attached as appendices to this Order.

1

Thomas Engle
The objection and motion to strike on page 10 at line 2 is granted. The question should
remain, but the portion of the answer prior to the objection is stricken as non-responsive and
because it contains hearsay. The portion of the answer after the objection is not objectionable
and will be permitted to stand as the answer to the question.
Dr. Peter Gerszten
The objection on page 13 at line 22 is overruled. This is a preliminary matter seeking to
establish Dr. Gerszten’s qualifications.
The objection on page 15 at line 10 is overruled. While the question is certainly leading,
the Court will allow this question to stand under Evidence Rule 104(a) as establishing a
preliminary matter.
The objections on page 53 at line 8 and on page 78 have been withdrawn, as have the
questions on page 24 at lines 4-16, page 28 at lines 2-6, page 40 at line 24 through page 41 at
line 12, page 45 at lines 14-20, and page 43 at line 23 through page 55 at line 6.
The objections on page 62 at line 14 and page 69 at line 4 are overruled for the reasons
set forth on the record in the Court’s ruling on Plaintiff’s Motion in Limine regarding these
matters.
The objection on page 74 at line 3 is overruled. The questioning is not appreciably
cumulative.
Barbara Long
The objection on page 12 at line 7 is overruled. This observation is rationally based upon
the witness’ perception as provided in Evidence Rule 701.
The objection on page 18 at line 4 is withdrawn.

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The objection on page 18 at line 20 is overruled. These questions and answers are not
unduly cumulative.
The objection on page 23 at line 1 is overruled. The date of Plaintiff’s father’s death is
being used to establish chronological context and is not otherwise unduly prejudicial.
Michelle Mayes
The objections on page 9 are overruled. These are not medical opinions. They are
observations of what another occupant of the vehicle and resident of Plaintiff’s household saw
and heard.
The objection on page 11 at line 23 is overruled. The testimony elicited provides context
for other testimony.
The objection on page 23 at line 15 is overruled. This is an observation by a resident of
Plaintiff’s household.
The objection and motion to strike on page 26 at line 3 is sustained in part. The portion
of the answer before the objection is ordered stricken, but the portion of the answer following the
objection can stand in response to the question as an observation by a resident of Plaintiff’s
household.
The objection on page 26 at line 20 is overruled. This is not a medical opinion, but rather
a lay observation.
The objections on page 27 at lines 5 and 12 are sustained. These questions elicited
responses which are hearsay. Beginning with the question at page 26 line 24 and continuing
through page 27 line 17 is stricken.
The objections on page 28 at line 9, on page 31 at line 9 and at page 38 at line 8 are
withdrawn.

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The objection on page 30 at line 9 is sustained. This witness’ feelings are not relevant.
The objection on page 30 at line 19 is sustained. The witness’ hope for the future is not
relevant.
The objection at page 31 to the question beginning at line 11 is sustained. It seeks to
elicit medical testimony or speculation.
The objection at page 39 line 22 is overruled for the reasons set forth on the record
pertaining to the Motion in Limine on this subject matter.
Dr. Sean Nolan
The objections on page 12, line 17; page 44, line 12; page 48, line 18; page 53, line 8;
page 54, line 11; page 67, line 4; and page 78, line 23; and the questions on page 26, line 7; page
30, line 2; page 33, line 7; and page 94 line 1 are all withdrawn.
The objection at page 13 line 19 is overruled.
The objection at page 29 at line 18 is overruled.
The objection at page 39, line 3 is overruled.
The objection at page 46, line 21 is overruled.
The objections on page 49 are overruled. Dr. Nolan was available for cross examination
as to specific references in the literature.
The objection on page 52 at line 22 is sustained as leading the witness and because of its
form.
The objection on page 55 is sustained and all of Dr. Nolan’s testimony regarding the cost
of the hormone replacement therapy is ordered stricken as hearsay, speculation and lacking
foundation.
The parties jointly agree to strike page 57, lines 4-16.

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The objections to testimony on pages 66 and 70-73 are overruled.
The objection on page 77 at line 18 is overruled. Dr. Nolan accepted the definition.
The objection on page 81 is overruled. The information is challenging Dr. Nolan’s
opinions about Plaintiff’s life expectancy.
The objection on page 82 is overruled.
The objection on page 84 is overruled.
The motion to strike on page 87 is granted as to the answer beginning on line 16 with the
words “but the defendant’s” through page 88, line 20 is stricken.
The objections and motion to strike on page 90 are overruled. This information is a valid
basis for cross-examination of the expert.
Rose Witt
The Court is inclined to prohibit Ms. Witt’s testimony pertaining to the events occurring
after the accident in light of its ruling on the punitive damages claims. Thus, the Court will
permit Ms. Witt to testify beginning on page 5 though the word “vehicle” in line 13 of page 15.
Her testimony can resume on page 32 at line 12 and continue thereafter until line 23 on page 35.
Her testimony can resume on page 36 at line 19 and continue through line 21 on page 37. It can
resume on page 38 at line 25 and continue through line 18 on page 39.
As to objections in the permitted testimony, the objection on page 15 at line 1 is
overruled.
IT IS SO ORDERED.
s/James R. Knepp II
United States Magistrate Judge

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