Parillo et al v. New Werner Co. et a.

Filing 106

ENTRY AND ORDER DENYING MOTION FOR LEAVE 87 TO RESPOND INSTANTER TO DEFENDANTS REPLY BRIEF AND GRANTING MOTION IN LIMINE 83 TO EXCLUDE LAY WITNESS OPINION TESTIMONY REGARDING MEDICAL CAUSATION AND DIAGNOSIS. Signed by Judge Thomas M. Rose on 9-18-2017. (de)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DAVE J. PARILLO, et al.,
Plaintiffs,
v.
LOWE’S HOME CENTERS, LLC, et al.,
Defendants.

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Case No. 3:14-cv-369
Judge Thomas M. Rose

ENTRY AND ORDER DENYING MOTION FOR LEAVE (DOC. 87) TO
RESPOND INSTANTER TO DEFENDANT’S REPLY BRIEF AND GRANTING
MOTION IN LIMINE (DOC. 83) TO EXCLUDE LAY WITNESS OPINION
TESTIMONY REGARDING MEDICAL CAUSATION AND DIAGNOSIS
This case is before the Court on the Motion in Limine (Doc. 83) to Exclude Lay
Witness Opinion Testimony regarding Medical Causation and Diagnosis filed by
Defendant Lowe’s Home Centers, LLC (“Lowe’s”). Lowe’s moves to prohibit Plaintiffs
from offering lay opinion testimony as to medical causation, diagnosis, prognosis or
permanency of Plaintiff Dave Parillo’s injuries. (Doc. 83 at 1.) Plaintiffs filed an
Opposition (Doc. 85) to the Motion in Limine, in response to which Lowe’s filed a
Reply. Plaintiffs moved for leave to file a sur-reply, but the Court deems further
briefing unnecessary. (Doc. 87.)
Plaintiff argued that a sur-reply was warranted because Lowe’s attempted to
argue in its Reply that Plaintiffs’ treating physicians should not be permitted to testify.
The Court did not construe the Reply in that manner. In addition, the parties stipulated

to the testimony that Mr. Parillo’s treating physicians will be permitted to provide at
trial. (Doc. 84-1.) The Court’s consideration of the Motion in Limine (Doc. 83) does not
modify that stipulation. Accordingly, Plaintiffs’ Motion for Leave (Doc. 87) to Respond
Instanter to Defendant’s Reply Brief is DENIED.
Lowe’s expects Plaintiffs to present evidence that Mr. Parillo suffered injuries to
his left shoulder, neck and head when he fell from a ladder. The parties agreed that Mr.
Parillo’s treating physicians will testify only as fact witnesses and will not offer expert
opinions related to the “diagnosis, prognosis, causation and/or permanency” of Mr.
Parillo’s alleged injuries. (Doc. 84-1 at 1.) Lowe’s argues that it would also be improper
for Plaintiffs to present lay opinion testimony on these same issues because lay
witnesses do not have the requisite “scientific, technical or other specialized
knowledge” to do so. (Id. at 2, citing Fed. R. Evid. 701(c) and Trout, et al., v. Hershey
Medical Center, et al., 2008 U.S. Dist. LEXIS 65202 (M.D. Pa. Aug. 26, 2008).)
Under Federal Rule of Evidence 701, lay witnesses may testify in the form of an
opinion that is limited to one that is: “(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in
issue; and (c) not based on scientific, technical, or other specialized knowledge within
the scope of Rule 702 [regarding testimony by expert witnesses].”
Plaintiffs’ claims are brought under Ohio law. “Under Ohio law, a plaintiff must
present expert medical testimony to establish causation when she asserts a specific
physical injury, the cause for which is not within common knowledge.” Botnick v.
Zimmer, 484 F. Supp. 2d 715, 724 (N.D. Ohio 2007). “To prove proximate causation for
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medical conditions or illnesses allegedly caused by a defective product, a plaintiff must
show by a reasonable degree of medical certainty that the disease or injury was caused
by the defective product.” Id. Thus, lay witness opinions regarding the cause of complex
medical conditions are not only prohibited under Rule 701, they are also irrelevant in a
product liability lawsuit under Ohio law.
None of Plaintiffs’ lay witnesses was designated as an expert (obviously) or
otherwise shown to have the scientific, technical, or specialized knowledge to provide
opinion testimony regarding the medical diagnosis, prognosis, causation or
permanency of Mr. Parillo’s injuries. Mr. Parillo may be able to provide opinion
testimony, however, regarding the aspects of his injuries that are rationally based on his
perception and within the common knowledge of a lay person. For example, Mr. Parillo
may be able to opine regarding the cause of the injury to his left shoulder. This is
because Mr. Parillo personally suffered that injury and a lay person could understand
that falling onto your left shoulder from a ladder might injure that shoulder. On the
other hand, Mr. Parillo is not qualified to opine regarding the medical diagnosis,
prognosis, causation or permanency of his alleged brain injury. Only a medical expert
whose opinion meets the requirements of Daubert and Federal Rule of Evidence 702
could testify regarding the diagnosis of a traumatic brain injury and its link to Mr.
Parillo’s fall from the ladder.
In the end, it is impossible for the Court to rule definitively on the proper scope
of Plaintiffs’ lay witness testimony without more information about Mr. Parillo’s
alleged injuries. Thus, the Court GRANTS the Motion in Limine (Doc. 83) to the extent
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that Plaintiffs shall not be permitted to elicit lay opinion testimony regarding the
medical diagnosis, prognosis, causation and/or permanency of any alleged injury to
Mr. Parillo that would require “scientific, technical, or other specialized knowledge
within the scope of Rule 702.” Fed. R. Evid. 701(c).
The Court acknowledges the parties’ dispute—also referenced in their briefing
on the Motion in Limine—regarding whether Mr. Parillo may testify about treating
physicians’ statements to him. Any objections to such testimony are best addressed
under the hearsay rules. The Court generally agrees with Lowe’s, however, that
Plaintiffs should not attempt to introduce expert opinions through Mr. Parillo that are
barred by the parties’ stipulation (Doc. 84-1) regarding treating physicians’ testimony.
DONE and ORDERED in Dayton, Ohio, this Monday, September 18, 2017.
s/Thomas M. Rose
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THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

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