Cameron et al v. Bartel Truck Line LLC et al
Filing
58
ORDER denying 54 Motion for Reconsideration of Order re Treating Doctor Testimony filed by Tamara Cameron, as more fully set out. Signed by Honorable David L. Russell on 12/2/14. (jw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(1) TAMARA CAMERON;
(2) KAYSEE KERBO; and
(3) MICHAEL S. ABSHIRE,
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Plaintiffs,
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v.
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(1) BARTEL TRUCK LINE, L.L.C.; )
(2) and LYNN WAYNE
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UPDEGROVE,
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Defendants.
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Case No. CIV-14-553-R
ORDER
Before the Court is Plaintiff Tamara Cameron’s Motion to Reconsider the Court’s
Order of October 20, 2014. Doc. No. 54. In that Order [Doc. No. 35], the Court granted
Defendants’ Motion to Strike Plaintiffs’ Experts, but ruled that “Plaintiffs may still have
their physicians and medical care providers testify as lay witnesses, with their testimony
limited to observations based on their own personal knowledge, including their treatment
of Plaintiffs.” Doc. No. 35, at 4. In her motion to reconsider, Plaintiff Cameron asks the
Court to modify its Order to expressly permit Dr. Robert M. Tibbs, Jr., a neurosurgeon
and one of Cameron’s treating physicians, to testify about the cause of Cameron’s
injuries without filing an expert report. Defendants respond that any such testimony
“would be expert testimony beyond that which was incidental to Cameron’s personal care
and treatment.” Doc. No. 55, at 5.
Under Federal Rule of Evidence 701, a lay witness may offer an opinion 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.” Rule 701 ‘does
not permit a lay witness to express an opinion as to matters which are beyond the realm
of common experience and which require the special skill and knowledge of an expert
witness.” James River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1214 (10th Cir.
2011) (quoting Randolph v. Collectramatic, Inc., 590 F.2d 844, 846 (10th Cir. 1979)).
In Weese v. Schukman, 98 F.3d 542, 550 (10th Cir. 1996), the Tenth Circuit held
that the trial court did not err in admitting a treating physician’s lay witness testimony
regarding the standard of care and causation. In that medical malpractice case, “the
causation question was whether Schukman’s [the treating physician’s] failure to provide
[particular] treatment was a substantial factor in bringing about Weese’s injuries.” Weese
v. Schukman, No. 91-1481-MLB, 1994 WL 326660, at *2 (D. Kan. June 23, 1994).
In contrast, in Parker v. Cent. Kansas Med. Ctr., 57 F. App’x 401, 404 (10th Cir.
2003) (unpublished), the Tenth Circuit upheld the district court’s decision to strike a
treating physician’s affidavit because in that case, “the affidavit related to the standard of
care regarding another physician’s refusal to treat and to the causation of complications
allegedly resulting from delay in treatment” (emphasis added). The Court distinguished
Weese by noting that in Weese, Dr. Schukman “testified as to the standard of care and
causation regarding his treatment of the plaintiff.” Id.
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The Court finds that the proposed testimony of Dr. Tibbs is more closely aligned
to the testimony excluded in Parker. Unlike Weese, Plaintiff Cameron does not seek to
have Dr. Tibbs testify to any alleged injury that he caused. Rather, Dr. Tibbs seeks to
testify regarding what other individual(s) caused Cameron’s injuries. Just as the treating
physician in Parker could not testify to the causation of plaintiff’s injuries resulting from
another physician’s delay in treatment, Dr. Tibbs may not testify as a lay witness
regarding the causation of plaintiff’s injuries resulting from events outside the scope of
his treatment of Plaintiff, because this testimony would be beyond his own personal
observations. See Wright v. Encore Orthopedics, Inc, No. CIV-08-1378-C, 2010 WL
3420663, at *1 (W.D. Okla. Aug. 25, 2010) (“Opinions as to causation and/or the
propriety of other physicians’ actions relating to [the plaintiff’s] injuries or treatment is
beyond the scope of permissible treating physician testimony.” (citing Parker, 57 F.
App’x at 404)).
In accordance with the foregoing, Plaintiff Tamara Cameron’s Motion to
Reconsider [Doc. No. 54] is DENIED. In addition, after a hearing on this matter, the
Court has continued this case and ordered the parties to submit to the Court a proposed
new scheduling order and a proposed order directing Plaintiff Cameron to pay the
reasonable costs that Defendants have incurred or will incur as a result of Plaintiff’s
failure to file a timely expert report of Dr. Tibbs.
IT IS SO ORDERED this 2nd day of December, 2014.
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