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

Filing 108

ENTRY AND ORDER GRANTING MOTIONS IN LIMINE REGARDING EXPERT TESTIMONY OF DR. JERNER AND DR. BURKE. Signed by Judge Thomas M. Rose on 9-19-2017. (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 GRANTING MOTIONS IN LIMINE REGARDING
EXPERT TESTIMONY OF DR. JERNER AND DR. BURKE
This case is before the Court on the Motions in Limine made orally by counsel for
Defendant Lowe’s Home Centers, LLC (“Lowe’s”). In the morning of September 18,
2017, the Court empaneled an eight-person jury to hear Plaintiffs’ claims in this case.
The Court then recessed the jury for the afternoon so that counsel could bring any
evidentiary issues to the Court’s attention before commencing trial. Lowe’s counsel
brought three Motions in Limine, which relate to two of Plaintiffs’ experts—Dr. R. Craig
Jerner, Ph.D., a metallurgist, and Dr. John F. Burke, Jr., Ph.D., an economist.
Lowe’s moves to exclude the opinions of Dr. Jerner and Dr. Burke that were not
contained in expert reports or supplemental expert reports provided to Lowe’s in
accordance with Fed. R. Civ. P. 26(a)(2) and (e). As to Dr. Jerner, Lowe’s seeks to
exclude opinions that he provided for the first time at his deposition on August 2, 2017.
Lowe’s directed the Court to pages 105 and 106 of Dr. Jerner’s deposition (Doc. 98), in

which Lowe’s counsel asked Dr. Jerner if his opinion about a manufacturing issue
(specifically “burring”) was contained in his expert report or a letter in which he
supplemented that report. Dr. Jerner responded “No.” When Lowe’s counsel asked Dr.
Jerner if he was going to supplement his expert report, he responds that he will if
Plaintiffs’ counsel asks him to do so. In the end, Dr. Jerner never supplemented his
expert report to provide all of the information about this new opinion that is required
under Rule 26(a)(2)(B). Lowe’s would be unfairly prejudiced if Plaintiffs were permitted
to present the new opinions identified for the first time at Dr. Jerner’s deposition,
despite their failure to comply with Rule 26’s expert disclosure provisions. The Court
therefore GRANTS the Motion in Limine as to Dr. Jerner.
Lowe’s moves to exclude a supplemental expert report for Dr. Burke that
Plaintiffs first produced on September 18, 2017, the same day that the jury was
empaneled. Permitting Dr. Burke to testify on the basis of this belatedly produced
report would also unfairly prejudice Lowe’s. The Court therefore GRANTS this Motion
in Limine as to Dr. Burke’s supplemental expert report.
Lowe’s also moves to exclude any opinion from Dr. Burke regarding prospective
damages because Plaintiffs will not present any expert medical testimony to support the
allegation that Mr. Parillo’s fall from the ladder caused a permanent medical condition.
In support, Lowe’s cites Marzullo v. J.D. Pavement Maint., 975 N.E.2d 1 (Ohio Ct. App.
Dec. 8, 2011).
In Marzullo, the plaintiff employer alleged that the defendant paving company
improperly sealed the employer’s parking lot, which caused one of its employees to slip
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and fall. After a jury returned a verdict, both parties appealed. One of the issues before
the Ohio court of appeals was whether the trial court abused its discretion by
permitting Dr. Burke—the same Dr. Burke retained by Plaintiffs in this case—to testify
regarding the injured employee’s future loss of earnings and in-kind services. The court
of appeals noted longstanding Ohio law that “expert evidence as to future pain and
suffering, permanency of injuries, or lasting impairment of health is required when the
injury is subjective in character.” Id. at 9, citing Day v. Gulley, 175 Ohio St. 83, 191 N.E.2d
732 (1963). The court of appeals continued:
An injury is subjective in character when the injury alone is insufficient to
allow the jury to conclude with reasonable certainty that a plaintiff will
suffer future damages. See, e.g., Day. Accordingly, expert testimony on the
extent of a plaintiff’s subjective injury is necessary for an award of
prospective damages. Day at 86, 191 N.WE.2d 732; Powell, 27 Ohio App.2d
at 119, 272 N.E.2d 906. If the injury is an objective injury, i.e., loss of an
arm or leg, the injury itself provides the “evidentiary basis for the jury to
conclude with reasonable certainty that future damages, such as medical
expenses will probably result.” Powell at 119, 272 N.E.2d 906.
Marzullo, 975 N.E.2d at 9. The court of appeals found that the employee allegedly
suffered from a subjective medical condition, which could only be proven through
expert medical testimony. However, the plaintiffs had not presented such testimony.
As a result, Dr. Burke’s opinion regarding future lost earnings was based merely on
assumptions and should not have been permitted. Id. at 10.
Here, Dr. Burke’s opinion regarding future lost earnings and prospective
damages is premised entirely on an alleged brain injury that Mr. Parillo suffered as a
result of his fall. A brain injury is the kind of subjective medical condition that requires
expert medical testimony under Ohio law. By their own admission, Plaintiffs do not
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have any medical experts who will testify to a reasonable degree of medical certainty
regarding Mr. Parillo’s alleged brain injury, including its causation and permanency.
Therefore, Dr. Burke’s opinion in this case, like his opinion in Marzullo, is based on
unsupported assumptions and should not be permitted. The Court therefore GRANTS
the Motion in Limine to exclude Dr. Burke’s opinion testimony.
DONE and ORDERED in Dayton, Ohio, this Tuesday, September 19, 2017.
s/Thomas M. Rose
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THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

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