Wagner et al v. H.H. Knoebel Sons, Inc. et al

Filing 94

MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Matthew W. Brann on 1/19/17. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CHRISTINE WAGNER,

:
:
Plaintiffs,
:
:
v.
:
:
H.H. KNOEBEL SONS, INC.,
:
KNOEBEL REALTY L.P., and
:
KNOEBEL REALTY MANAGERS, :
LLC,
:
:
Defendants.
:

Case No. 4:14-CV-00576
(Judge Brann)

MEMORANDUM
January 19, 2017
Before the Court are the objections of Plaintiff and Defendants regarding
certain questions and answers in the trial depositions of three witnesses. As
explained below, certain objections will be sustained and portions of the
depositions stricken, while other objections will be overruled.
I.

BACKGROUND
On March 26, 2014, Plaintiffs Christine Wagner and Robert Wagner, her

husband, filed a Complaint1 against Defendants H.H. Knoebel Sons, Inc., Knoebel
Realty L.P., Knoebel Realty Managers, LLC, and Knoebels Three Ponds, Inc.

1

ECF No. 1.

1

(“Defendants”).2 Within this Complaint, Plaintiffs alleged both a negligence and
loss of consortium claim against Defendants.3
The instant dispute stems from a family visit to Knoebels Amusement
Resort, in Elysburg, Northumberland County, Pennsylvania.4 The Wagners, along
with their three grandchildren, visited the Park on June 27, 2012.5 While Ms.
Wagner was walking on a path located between the Go-Karts and the Fandango
rides, she suffered a fall after allegedly tripping over a tree root on the path.6 As a
result, Ms. Wagner sustained a right knee sprain with bone contusion, right knee
joint effusion, bone edema of the anterolateral tibial plateau of the right knee,
aggravation of a pre-existing asymptomatic arthritic condition of the right knee, a
laceration, cellulitis, and infection of the laceration to the right knee, and various
other abrasions to her arms and left hand.7 Following the completion of discovery

2

Knoebels Three Ponds, Inc. was dismissed as a Defendant by Stipulation on September 5,
2014. See ECF No. 21.
3

See generally Complaint (ECF No. 1). By Stipulation dated January 13, 2017, the parties
agreed to voluntary removal of Robert Wagner as a defendant and the dismissal of his loss of
consortium claim.
4

ECF No. 1 ¶ 14.

5

Id. at ¶¶ 14–15.

6

Id. ¶ 15.

7

Id. ¶ 22.

2

and the disposition of Defendants’ Motion for Summary Judgment, the Court
scheduled trial to commence on January 23, 2017.8
At the upcoming trial, Plaintiff intends to use the videotaped depositions of
medical expert Lawrence Wiesner, D.O., and Plaintiff’s now deceased husband,
Robert Wagner, in lieu of live testimony.9 Defendants, in turn, will utilize the
videotaped deposition of their medical expert David Rubenstein, M.D. in lieu of
live testimony.10 Objections to certain questions and answers were lodged during
these depositions, and will be disposed of as follows.
II.

DISCUSSION
On January 18, 2017, Plaintiff’s counsel filed a letter with the Court in

which both he and Defense counsel withdrew a number of objections raised during
the three trial depositions. This opinion addresses the remaining unresolved
objections.
A. Deposition of Lawrence Wiesner, D.O.
a. Defendants’ Objections
Defendants’ first objection occurs at the beginning of Dr. Wiesner’s

8

Order (ECF No. 67).

9

ECF Nos. 86 & 87.

10

ECF No. 92.

3

deposition and concerns Dr. Wiesner’s Addendum Report.11 Defendants have filed
a Motion in limine concerning the issue which the parties have since fully briefed.
Because I am issuing a simultaneous Memorandum Opinion of this same date
dispositive of this issue, I will not address it at length herein.
Defendant’s second objection occurs at page 51, line 23. This objection was
lodged because the exhibit being discussed at that point was not listed in his report
as one reviewed beforehand and thus was “outside the scope of the report.”12 This
objection is overruled. First, in response, Dr. Wiesner stated that, in the course of
compiling a written report, he reviews “hundreds and hundreds of pages,” and his
list of documents reviewed only serves to “highlight the ones that are pertinent.”13
Second, to extent that testimony concerning this document is outside the scope of
his report, I note “testimony of an expert on matters within the expert's expertise
but outside of the expert's report is not only permissible at trial, but the exclusion
of such testimony may be reversible error.”14
Defendants’ third objection occurred during the following exchange between
Michael Briechle, Esquire, counsel for Plaintiff, and Dr. Wiesner:
11

ECF No. 87 at 4:3.

12

Id. at 52:1-2.

13

Id. at 52:10-13.

14

Quelette v. Coty US, LLC, Civil Action No. 3:14-CV-00712, 2016 WL 1650775, at *1 (Apr.
25, 2016)(Mariani, J.)(citing Bowersfield v. Suzuki Motor Corp., 151 F. Supp.2d 625, 631
(E.D.Pa. 2001)).

4

Q.
Thank you. Have you formulated an opinion as to whether Mrs.
Wagner has been capable of will be capable of returning to work as a result
of the injuries she suffered on June 27, 2012?
A.
Well, she was a nurse manager, and I had discussions with her that her
job entailed her walking long distances in the hospital and up and down
stairs and in and out of chairs. And she has told me she’s unable to continue
that – that job. She could probably do some other – other type jobs. But her
job as the one she reported to me, she was unable to continue with.
Q.

Okay. And do you continue to hold that opinion as of today?
Mr. Grego: Objection. That’s not what the answer was and I’ll just
enter an objection on that basis.15

While somewhat cryptic, this objection appears to suggest that Mr.
Briechle’s question in some way attempted to re-characterize Dr. Wiesner’s prior
answer or his report. To that end, the objection is overruled for two reasons. First,
Mr. Briechle’s answer does not appear to re-characterize or in any way summarize
Dr. Wiesner’s prior answer. Second, this conclusion appears to be the same as that
presented in Dr. Wiesner’s May 16, 2015 Report in which he stated “[t]his [injury]
has restricted her in her ability to perform her duties as a nurse manager as this
requires significant activity during the course of a workday.”16
Defendants’ final objection17 occurred during Redirect Examination at page

15

ECF No. 87 at 56:1-16.

16

Narrative Report of Dr. Lawrence Wiesner, D.O. (ECF No. 82-1), Exhibit A, at 4.

17

Defendants also objected at 125:3-8 and 126:25-127:1. Both questions, however, were
reformed to address Defendants’ concerns prior to Dr. Wiesner’s answer. The Court will
therefore not address these objections.

5

126, line 2:
Q.
Okay. And I don’t believe the record of September 29, 2015, was
reviewed with you and opposing counsel. Can you just turn to that date?
A.

September –

Q.

Um-hum.

A.

-- of ’15?

Q.

September 29, 2015, yes.

A.

Let’s see.
Mr. Grego: That wasn’t reviewed. I’ll object as outside of the scope of
cross but go ahead.18

This objection arose because the exhibit being discussed during that exchange was
not listed in Dr. Wiesner’s report as one reviewed beforehand and thus was outside
the scope of the report. I will overrule this objection, and again note that the
“testimony of an expert on matters within the expert's expertise but outside of the
expert's report is not only permissible at trial, but the exclusion of such testimony
may be reversible error.”19
b. Plaintiff’s Objections
Plaintiff’s remaining objections begin on page 114 and continue through

18

ECF No. 87, at 126:2-12.

19

Quelette, 2016 WL 1650775, at *1 (citing Bowersfield, 151 F. Supp.2d at 631).

6

page 115.20 These objections relate to questions concerning Dr. Wiesner’s
knowledge of an October 18, 2012 motor vehicle accident involving Plaintiff, his
review of records relating to her treatment for injuries sustained, and his
knowledge of whether Mrs. Wagner missed work following this accident.
Federal Rule of Evidence 401 provides that evidence is relevant if it has “any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.”21 The United States Court of Appeals for the Third Circuit
has noted, “Rule 401 does not raise a high standard.”22 As these questions both
relate to Dr. Wiesner’s knowledge of treatment for a car accident which occurred
following the June 27, 2012 incident, I find that they meet this low bar and are
relevant as to both the persuasiveness and completeness of his report.
A. Deposition of David Rubenstein, M.D.
a. Plaintiff’s Objections
During the trial deposition of Dr. Rubenstein, Plaintiff raised the following
three objections.
First, Plaintiff objected on page 16 at line 12 to the instant exchange:
20

Specifically, these objections occur at 114:9, 114:22, 115: 2.

21

Fed.R.Evid. 401.

22

Hurley v. Atl. City Police Dep't, 174 F.3d 95, 109–10 (3d Cir.1999) (citing In re Paoli R.R.
Yard PCB Litig., 35 F.3d 717, 782–83 (3d Cir.1994)).

7

Q.

Why don’t you start out by telling us the first step in that evaluation.

A.
The first step in evaluation is me reviewing records actually with her.
The first thing I do is look for anything referable to her right knee that may
have occurred prior to this injury. Clearly, there was a history of some
things, but the most significant was when she was younger, 16 or 17, having
the removal of her medial meniscus. For someone who is middle aged, 50,
60, that is very significant because we know that you have to develop
arthritis. It is a certainty.
We also reviewed records that indicated she appeared to be doing
pretty well. For example, there may have been a history back in 2003 of a
knee contusion, but no records that, follow that, and in 2007, she actually
hurt her left knee, so I would say that --23
Plaintiff specifically argued that this information was irrelevant as it pertained to
her left knee, which is not the subject of the instant litigation. As noted above, the
Third Circuit has stated that, concerning relevance, “Rule 401 does not raise a high
standard.”24 Based on this instruction, I find that the instant disputed testimony
meets that low bar. In the answer at issue, Dr. Rubenstein is opining as to the
records he reviewed to prepare his report and their influence on his findings. This
passing reference to the Plaintiff’s left knee in furtherance of that discussion is
therefore relevant as to the comprehensiveness of this review, and will not be
stricken from the record.
Plaintiff’s second objection occurs on page 38 at line 16 and directly
concerns any testimony of Dr. Rubenstein related to the November 29, 2016
23

ECF No. 92, at 15:17-16:11.

24

Hurley v. Atl. City Police Dep't, 174 F.3d 95, 109–10 (3d Cir.1999) (citing In re Paoli R.R.
Yard PCB Litig., 35 F.3d 717, 782–83 (3d Cir.1994)).

8

Addendum Report of Dr. Wiesner. As discussed more fully in a Memorandum
Opinion of this same date, I have denied Defendants’ Motion in Limine to preclude
this Addendum Report and any related testimony of Dr. Wiesner. In so doing,
however, I opined that Defendants were able to correct any minimal prejudice
resulting from this report’s late production through both the Wiesner’s deposition
and the deposition of its own expert, Dr. Rubenstein. Having reviewed the
testimony at issue, I find this line of inquiry appropriate to serve that purpose.
Plaintiff’s objection will therefore be overruled.
b. Defendants’ Objections
Defendants did not raise any objections during the cross-examination of Dr.
Rubenstein.
B. Deposition of Robert Wagner
a. Defendants’ Objections
Defendants’ first objection during the deposition of Robert Wagner came on
page 12 at line 12 and was made in response to the following question.
Q.

Can you tell me about how high the tree root appeared?25

Defendants argue that this question calls for speculation concerning a subject
which has never been revealed during discovery.26 This objection will be
25

ECF No. 86, at 12:12.

26

Id. at 12:14-12:18.

9

overruled. Federal Rule of Evidence 701 states that opinion testimony by lay
witnesses is admissible provided it is “(a) rationally based on the perception of the
witness, (b) helpful to a clear understanding of the witness' testimony or the
determination of a fact in issue, and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.”27 Here, the question calls
for an opinion which, in my view, is rationally based on Mr. Wagner’s perception
as an attendee of the Park on the day of the incident. Based on this conclusion, the
objection will be overruled.28
Defendants next objected at 12:24 to the following question:
Q.
Okay. And can you tell us what kind of walkway surrounded the tree
29
root?
The Court need not resolve this objection, however, because the parties agreed
upon an acceptable re-phrasing of the question off the record.30
On page 18 at line 8, Defendants next objected to the following question:
Q.
Okay. Do you recall if your wife ever called Knoebels to advise them
that she had fallen?31
27

Holman v. Trammell Crow Co., Civil Action No. 03-CV-3603, 2005 WL 562738, at *1
(E.D.Pa. March 7, 2005)(citing United States v. Joy, 192 F.3d 761, 767 (7th Cir. 1999)).
28

It should be noted, however, that Mr. Wagner was unable to answer the question. Therefore,
it is left to the parties’ discretion whether to remove this question and its brief answer.
29

ECF No. 86 at 12:24.

30

Id. at 13:6-13:15.

31

Id. at 18:8.

10

This objection continued and extended to the following exchange:
Q.
Mr. Wagner, do you recall if your wife ever called Knoebels to inform
them that she had fallen?
A.

Yes, she had told me.

Q.

Okay. And what did she say that – what did she tell you about that?

A.

I don’t remember.32

Defendants’ objections specifically relate to the relevance of this testimony.33 As
previously noted, Federal Rule of Evidence 401 provides that evidence is relevant
if it has “any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be
without the evidence.”34 I again recite that the Third Circuit has noted,
“Rule 401 does not raise a high standard.”35 The line of questioning here,
however, fails to meet that low bar, and the objection is therefore sustained. In this
brief line of questioning, Plaintiff’s counsel fails to establish how any continuing
interactions with Defendants following the fall is relevant to underlying cause of
action. This line of questioning is stricken.
32

Id. at 19:2-19:7.

33

Id. at 18:16-19.

34

Fed.R.Evid. 401.

35

Hurley v. Atl. City Police Dep't, 174 F.3d 95, 109–10 (3d Cir.1999) (citing In re Paoli R.R.
Yard PCB Litig., 35 F.3d 717, 782–83 (3d Cir.1994)).

11

Defendant’s final objection occurs on page 20 at line 19 in response to the
following query:
Q.

Okay. But can she do less now than she could then?36

Upon consideration of this question and Defendants’ objection concerning its
“leading” nature, the question will be stricken from the record. “Leading
questions should not be used on the direct examination of a witness except as may
be necessary to develop the witness' testimony.”37 Here, this question, occurring
during direct examination, is “leading” because its construction suggests the
desired answer to Mr. Wagner.38 Furthermore, I note that, pursuant to a January 13,
2017 Stipulation of parties, Mr. Wagner’s loss of consortium claim has been
dropped. This question is therefore also irrelevant as it speaks to a now dismissed
claim.
b. Plaintiff’s Objections
Plaintiff’s remaining objection during Mr. Wagner’s videotaped deposition
occurred at page 27, line 14 to the following question:
Q.
Okay. So can you explain, sir, how that got into the official records of
this accident?39
36

ECF No. 86 at 20:17-18.

37

Fed.R.Evid. 611(c).

38

Fattman v. Bear, 249 F.App’x. 956, 958 (3d Cir. 2007)(quoting Black's Law Dictionary 906
(8th ed.2004)).
39

ECF No. 86 at 27:12-13.

12

This question specifically refers to a paramedic’s statement that Plaintiff corrected
Mr. Wagner’s description of the accident and affirmatively stated that someone
pushed her.40 As previously explained, Federal Rule of Evidence 701 states that
opinion testimony by lay witnesses is admissible provided it is “(a) rationally
based on the perception of the witness, (b) helpful to a clear understanding of the
witness' testimony or the determination of a fact in issue, and (c) not based on
scientific, technical, or other specialized knowledge within the scope of Rule 702.”
Here, I find that this question concerning how a particular statement made it into a
record of the accident attempts to ascertain the extent of Mr. Wagner’s possible
knowledge, or a proper opinion concerning this inclusion. Once Mr. Wagner
indicates that he lacks such knowledge, this line of questioning terminates prior to
the offering of improper lay opinion. As such, I will overrule the instant objection.
III.

CONCLUSION

For the foregoing reasons, Plaintiffs’ objections are sustained in part and
overruled in part. Defendants’ objections are likewise sustained in part and
overruled in part. The parties are directed to have the trial deposition videos
modified to reflect both these evidentiary rulings and the previously reached
agreements of both parties memorialized in their January 17, 2017 letter.

40

Id. at 27:4-7.

13

A separate Order will issue.

BY THE COURT:

s/Matthew W. Brann
Matthew W. Brann
United States District Judge

14