Turner v. Speedway LLC
Filing
53
MEMORANDUM OPINION AND ORDER pursuant to defendant Speedway LLC's 28 MOTION for Summary Judgment; treating said motion as a motion in limine which is granted insofar as it pertains to Turner's prayer for damages compensating him for future medical expenses and the future effects of any obscure permanent injuries; and it is granted to exclude the testimony of Dr. Orphanos with respect to expert opinion linking causation and injury; the motion is otherwise denied. Signed by Judge John T. Copenhaver, Jr. on 7/15/2015. (cc: counsel of record; any unrepresented parties) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
EDDIE TURNER,
Plaintiff,
v.
Civil Action No. 2:14-9185
SPEEDWAY LLC, a foreign corporation,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending is the motion for summary judgment of
defendant Speedway LLC (“Speedway”), filed December 22, 2014.
I.
Background
Plaintiff Eddie Turner (“Turner”), a West Virginia
citizen, instituted this action by filing a complaint in the
Circuit Court of Logan County, West Virginia on December 20,
2013.
On February 10, 2014, Speedway, a limited liability
company whose sole member is a citizen of Delaware, filed a
timely notice of removal, invoking the jurisdiction of this
court on the basis of diversity of citizenship.
28 U.S.C §
1332.
Turner’s complaint alleges that on January 13, 2012,
he was injured after slipping on liquid in the parking lot of a
Speedway gas station in Wilkinson, West Virginia.
3.
Pl. Compl. ¶
He contends that Speedway was negligent in failing to keep
the parking lot “in good repair and otherwise safe for its
customers so that they would not fall.”
Id. at ¶ 4.
Turner
alleges that the fall caused injuries to his right hip, right
elbow, lower back, neck, and head.
See Def. Mem. of Law in
Supp. Mot. for Summ. J. at * 2 (citing Turner’s answers to
interrogatories and his deposition).
Turner further asserts
that the fall was the cause of, or contributed to, stroke
symptoms, a skull fracture, headaches, pain in his feet,
difficulty walking, change in eating habits due to stomach pain,
and loss of sleep.
Id.
Turner has an extensive history of medical issues
that predate the fall.
He suffered at least two work-related
injuries to his back for which he received workers’ compensation
benefits.
Id.
He underwent surgery in the 1980s to remove
several discs from his neck, which resulted in his missing work
for at least a six month period.
Id. at 2-3.
He currently
receives Social Security disability benefits (beginning in the
1990s, according to the defendant) for a heart condition, and
noted in his application for Social Security benefits that
injuries to his lower back significantly limited his ability to
engage in physical activity.
Id. at 3.
2
Other medical records
indicate that Turner has been dealing with chronic neck and back
pain for approximately 30 years, that he has an injured knee
which impairs his ability to walk, and that he has a history of
alcohol and substance abuse.
Id. at 3-4.1
The first amended scheduling order, entered on August
20, 2014, directed Turner to make expert disclosures by October
9, 2014.
The order also directed that discovery would close on
December 8, 2014.
Turner did not file any disclosures by either
date.
A pretrial conference was held on March 20, 2015.
Turner’s failure to provide expert disclosures was the primary
issue discussed during that conference.
In view of his
counsel’s misunderstanding of the applicable rules, the court
afforded Turner a second opportunity to comply with the rules by
extending the deadline for expert disclosures until April 24,
2015.
On April 27, 2015 Turner’s counsel informed the court’s
law clerk by telephone that he had spoken to his intended
expert, Dr. John Orphanos (“Dr. Orphanos”), who declined to be
Turner does not dispute this rendition of his medical history.
See Pl. Resp. to Def. Mot. for Summ. J. at * 2, 5-6 (noting that
“Plaintiff has had a long-standing history of complaints of,
among other things, neck and back pain” and conceding that “it
is true that certain of Plaintiff’s symptoms alleged in the fall
. . . were present as early as the 70’s, 80’s and 90’s” and that
“it is true, obviously, as previously conceded, that Plaintiff
had certain pre-existing conditions”).
1
3
designated an expert and declined to compile an expert report.
He further advised that no expert disclosures would be filed.
In a subsequent telephone communication with the court, Turner’s
counsel maintained that, despite not providing any expert
disclosures, he would, if given the opportunity, seek to elicit
testimony from Dr. Orphanos at trial.
See Tr. of June 10, 2015
Telephonic Conference (ECF 51).
II.
The Summary Judgment Standard
A party is entitled to summary judgment “if the
pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.”
Fed. R. Civ. P. 56(c).
Material facts are
those necessary to establish the elements of a party’s cause of
action.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
A genuine issue of material fact exists if, in viewing
the record and all reasonable inferences drawn therefrom in a
light most favorable to the non-moving party, a reasonable factfinder could return a verdict for the non-movant.
Id.
The
moving party has the initial burden of showing — “that is,
pointing out to the district court – that there is an absence of
4
evidence to support the nonmoving party’s case.”
v. Catrett, 477 U.S. 317, 325 (1986).
Celotex Corp.
If the movant satisfies
this burden, then the non-movant must set forth specific facts
as would be admissible in evidence that demonstrate the
existence of a genuine issue of fact for trial.
56(c); id. at 322-23.
Fed. R. Civ. P.
A party is entitled to summary judgment
if the record as a whole could not lead a rational trier of fact
to find in favor of the non-movant.
F.2d 820, 823 (4th Cir. 1991).
Williams v. Griffin, 952
Conversely, summary judgment is
inappropriate if the evidence is sufficient for a reasonable
fact-finder to return a verdict in favor of the non-moving
party.
Anderson, 477 U.S. at 248.
III.
Discussion
Turner contends that he fell and suffered various
injuries due to Speedway’s negligence.
West Virginia law
dictates that “in a negligence suit, a plaintiff is required to
show four basic elements: duty, breach, causation, and damages.”
Hersh v. E-T Enterprises, Ltd. P'ship, 232 W. Va. 305, 310
(2013) superseded by statute on other grounds as recognized in
Tug Valley Pharmacy, LLC v. All Plaintiffs Below In Mingo
County, --- S.E. 2d --- (W. Va. May 13, 2015).
5
Speedway does
not concede duty or breach,2 but for the purposes of this motion,
limits its arguments to the issues of causation and damages.
First, Speedway argues that given Turner’s medical
history, causation between the fall and the asserted injuries is
not obvious.
Speedway contends that without expert testimony,
Turner cannot establish causation.
Alternatively, Speedway
argues that, the necessity of an expert notwithstanding, the
evidence offered to prove causation is insufficient to sustain a
verdict in favor of Turner.
Second, Speedway argues that Turner has failed to
produce evidence that establishes any future damages to a
reasonable certainty.
Speedway again argues that expert
testimony is required to meet this evidentiary burden, and that
Turner has not produced such evidence.
To rebut both claims, Turner relies primarily on the
deposition testimony of Dr. Orphanos, one of Turner’s treating
physicians.
Turner asserts that Dr. Orphanos’s testimony
provides sufficient evidence of both causation and future
damages.
Speedway counters that Turner is precluded from
relying upon that testimony due to Turner’s failure to make the
See Def. Mem. of Law in Supp. Mot. for Summ. J. at * 1 n. 1
(“Speedway denies that it breached any duty owed to Plaintiff”).
2
6
disclosures required by Federal Rule of Civil Procedure 26.
In
response, Turner, citing this district’s local rules of civil
procedure, contends that Dr. Orphanos was not subject to Rule
26’s disclosure requirements.
Both of Speedway’s arguments for summary judgment rely
on the alleged insufficiency of the evidence proffered by
Turner.
As Turner relies heavily, though not exclusively, on
the deposition testimony of Dr. Orphanos, the court first
addresses whether Turner was required by Rule 26 to make any
disclosures pertaining to Dr. Orphanos.
A.
Rule 26 governs discovery disclosures.
It dictates
that a party must disclose the identity of any witness who could
offer expert testimony or evidence at trial.
26(a)(2)(A).
Fed. R. Civ. P.
The rule further requires the disclosure of the
potential contents of an expert’s testimony and any evidence the
expert may present in one of two forms.
Experts retained solely
for the purposes of trial are required to provide a written
report detailing the opinions the expert will offer at trial,
the basis and reasons underlying those opinions, the facts and
data considered while forming them, and a variety of other
information pertaining to the expert’s background and
7
qualifications.3
Fed. R. Civ. P. 26(a)(2)(B).
Experts who fall
outside this first category are subject to a similar, somewhat
less onerous, disclosure requirement:
(C) Witnesses Who Do Not Provide a Written Report.
Unless otherwise stipulated or ordered by the court, if
the witness is not required to provide a written report,
this disclosure must state:
(i) the subject matter on which the witness is expected
to present evidence under Federal Rule of Evidence 702,
703, or 705; and
(ii) a summary of the facts and opinions to which the
witness is expected to testify.
Fed. R. Civ. P. 26(a)(2)(C).
Rule 26 instructs parties to “make
these disclosures at the times and in the sequence that the
court orders.”
Fed. R. Civ. P. 26(a)(2)(D).
Turner argues that the local rules of this district
exempt Dr. Orphanos from Rule 26’s disclosure requirements.
Pl. Resp. in Opp’n at * 10 (citing L. R. Civ. P. 26.1(b)).
See
The
rule cited in Turner’s motion, Local Rule 26.1(b), states in
pertinent part:
The disclosures described in FR Civ P 26(a)(2)(B) shall
not be required of physicians and other medical
providers who examined or treated a party or party’s
decedent unless the examination was for the sole purpose
of providing expert testimony in the case.
L. R. Civ. P. 26.1(b).
While Turner is correct that Local Rule
Although not applicable hear, the same Rule applies to experts
“whose duties as [a] party’s employee regularly involving giving
expert testimony.”
3
8
26.1(b) exempts certain medical professionals from the
requirements of Federal Rule 26(a)(2)(B), the plain language of
the local rule reveals its purpose: to clarify which of the two
disclosure requirements – 26(a)(2)(B) or 26(a)(2)(C) – applies
to treating physicians like Dr. Orphanos.
Local Rule 26.1(b)
does not override or otherwise alter Federal Rule 26(a)(2)(A)’s
general obligation to disclose the names of experts or remove
Federal Rule 26(a)(2)(C)’s specific obligation that experts not
obligated to provide a detailed report must provide a summary of
their expected trial testimony.
Accordingly, to the extent
Turner intended to use Dr. Orphanos as an expert and elicit or
rely on his medical opinions, he was obliged by the Rules to
designate him as an expert witness and provide a summary of the
facts and opinions to which he is expected to testify.
He did
neither.
The Federal Rules provide a sanction for failing to
make a required disclosure.
Rule 37 reads in pertinent part:
Failure to Disclose or Supplement. If a party fails to
provide information or identify a witness as required by
Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion,
at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.
Fed. R. Civ. P. 37(c)(1).
The advisory committee notes
accompanying Rule 37 explain that exclusion of undisclosed
expert evidence was intended to be “strong inducement for
9
disclosure” and state that this remedy is available at the
summary judgment stage.
See Advisory Committee Notes (1993) to
Fed. R. Civ. P. 37(c), see also Contech Stormwater Solutions,
Inc. v. Baysaver Techs., Inc., 534 F.Supp.2d 616, 622–23 (D. Md.
2008)(“Evidence offered to rebut a summary judgment motion may
be excluded under Rule 37(c)(1) . . . if the non-moving party
has failed to provide the opposing party with proper disclosures
and supplements as required by Rule 26.”), aff'd, 310 F. App'x
404 (Fed. Cir. 2009).
District courts are afforded “wide
latitude . . . to issue sanctions under Rule 37(c)(1).”
Saudi
v. Northrop Grumman Corp., 427 F.3d 271, 279 (4th Cir. 2005).
Although the advisory committee notes describe Rule 37
exclusion as an “automatic sanction,” the plain language of the
rule, as noted, provides that undisclosed evidence will not be
excluded if the failure to disclose was harmless or
substantially justified.
See Advisory Committee Notes (1993) to
Fed. R. Civ. P. 37(c)(explaining that these exceptions were
included to “avoid unduly harsh penalties in a variety of
situations”).
Our Court of Appeals has articulated a five-part
test to determine if a party’s failure to disclose fits within
either exception.
Southern States Rack And Fixture, Inc. v.
Sherwin-Williams Co., 318 F.3d 592, 595 (4th Cir. 2003).
A
district court evaluating the propriety of Rule 37 exclusion
10
should consider:
1) surprise to the opposing party, 2) ability to cure
that surprise, 3) disruption of the trial or other
instance where the evidence is being relied upon, 4)
importance of the evidence, and 5) the non-disclosing
party’s explanation for its failure to disclose.
Id. at 596.
The first four elements relate to the harmlessness
of nondisclosure; the fifth to substantial justification.
at 597.
Id.
The non-disclosing party bears the burden of
establishing that his failure to disclose is covered by one of
the two exceptions.
Wilkins v. Montgomery, 751 F.3d 214, 222
(4th Cir. 2014).
Applying the Southern States factors, Turner’s failure
to disclose cannot be considered either harmless or
substantially justified.
The court begins by examining the
importance of Dr. Orphanos’s testimony.
It is clear, given
Turner’s extensive and protracted medical history, that
causation would be a major battleground issue at trial and that
Turner’s extensive and protracted medical history is highly
relevant to the inquiry into damages.
In his response in
opposition, Turner relies heavily on Dr. Orphanos’s purported
expert opinion to demonstrate the existence of disputed material
facts concerning causation and future damages.
However, the
importance of an expert’s testimony is a factor that “must be
viewed from the perspective of both parties: The fact that [an]
11
expert's testimony . . . might have been helpful to [the
plaintiff’s] case in the eyes of the jury also points out why it
should have been disclosed in a timely manner to [the
defendant].”
Southern States, 318 F.3d at 598-99 (internal
quotation marks omitted).
Dr. Orphanos’s testimony is certainly
crucial to Turner’s case, but knowing the precise contours of
his opinion – and thereby knowing what its own expert must
respond to and rebut – is similarly critical to the formulation
and structure of Speedway’s defense.
Accordingly, the
importance of the testimony, if it were admissible, is such that
the lack of disclosure cannot be regarded as harmless.
Turning to surprise, Turner argues that Speedway
cannot claim to be surprised by Dr. Orphanos’s testimony because
Speedway deposed Dr. Orphanos.
However, deposition testimony,
standing alone, is not automatically a substitute for expert
disclosures.
See Cohen v. United States, 100 Fed. Cl. 461, 471-
74 (Fed. Cl. 2011)(holding that the plaintiff had not “met his
burden to prove that his failure to disclose [the opinion of his
expert witness] . . . was substantially justified or harmless”
and precluding expert witness from testifying about a theory
discussed at his deposition but not disclosed in an expert
report), Musser v. Gentiva Health Servs., 356 F.3d 751, 757 (7th
Cir. 2004)(holding that the plaintiff’s treating physicians,
12
disclosed as fact witnesses but not identified as experts, were
precluded from offering any expert testimony at trial, even
though the defendant had “an opportunity to depose th[e]
[physicians] as to their opinions”).
Given the inherently sophisticated nature of expert
opinion and testimony, deposing an expert witness may or may not
provide the deposing party with sufficient information about the
expert’s opinion to enable adequate preparation for trial.
Without the prior disclosure of a written report or summary,
deposing counsel may focus on unimportant details or otherwise
fail to engage in an inquiry that reveals the opinion or
opinions, and the underlying bases, that the expert will offer
at trial – a possibility clearly contemplated by the Federal
Rules, which prohibit the deposition of an expert subject to
Rule 26(a)(2)(B) until after the disclosure of the expert’s
report.4
Fed. R. Civ. P. 26(b)(4)(A).
Alternatively, an expert deposition may reveal a
multiplicity of opinions and an accompanying volume of
information that makes it difficult or impossible for deposing
counsel to accurately predict which opinions or theories the
4
Although Dr. Orphanos was subject to Rule 26(a)(2)(C), not Rule
26(a)(2)(B), the rationale underlying Rule 26(b)(4)(A) remains
illustrative of the potential for confusion when a deposition is
conducted before expert disclosures have been made.
13
expert will present at trial.
Without a disclosed report or
summary to narrow his focus, diligent counsel would be forced to
prepare for all possible opinions and theories, a prospect which
greatly increases the potential that short shrift will be given
to the opinion or theory that is actually presented at trial.
Either extreme — the deposition that reveals too much,
or the one that reveals too little – could result in the
opponent being surprised, and therefore prejudiced, by an
opinion not disclosed in accordance with Rule 26.
See Contech,
534 F. Supp.2d at 625 (holding that a party is “not required to
plan a defense based on all possible documents or information
presented during depositions, but rather must be adequately
informed by the opposing party, in response to proper discovery
requests, which facts, theories, and documents will likely be
relied upon at trial.”).
The case at hand provides a concrete example of the
deposition that reveals too little: although Dr. Orphanos’s
deposition testimony touches upon subject matter in which his
expert opinion would be highly relevant, there is considerable
ambiguity as to the exact nature and scope of the opinion being
offered, and what bases he relied upon when formulating that
opinion.
Turner admits that during the deposition “Dr. Orphanos
could not definitively attribute the accident that is the
14
subject of this suit . . . to the Plaintiff’s post-incident
complaints.”
Pl. Resp. in Opp’n to Mot. Summ. J at * 5.
However, he argues that “while Dr. Orphanos . . . stated [that]
in the absence of certain record review . . . causation . . .
between the fall and the prior history could be complex, he also
later testified to, essentially, a formula wherein the picture
would become much clearer.”
Id. at * 13.
Thus, while Turner
acknowledges that at first glance Dr. Orphanos’s testimony
appears inconclusive, Turner argues that a careful parsing
reveals an opinion capable of being fully presented at trial.
A review of Dr. Orphanos’s deposition testimony serves
to reinforce the notion that Speedway could be surprised by Dr.
Orphanos’s testimony at trial.
At various points, Dr. Orphanos
responds with what is best described as an ambiguous hedge
concerning the causal link between Turner’s fall and his alleged
injuries.
Compare Dep. Test. of Dr. Orphanos at 33-35 with id.
at 42-44.5
Although at no point does Dr. Orphanos definitively
state his medical opinion concerning causation, he makes several
statements that arguably qualify as such, and he makes reference
to the facts and evidence that would allow him to more fully
enunciate such an opinion, if he has an acceptable one.
Id.
The entirety of Dr. Orphanos’s deposition testimony is attached
as “Exhibit O” to Turner’s Response in Opposition. (ECF 33-16).
5
15
Dr. Orphanos’s deposition testimony demonstrates quite clearly
why a deposition is not an adequate substitute for Rule 26
disclosures inasmuch as Speedway cannot adequately prepare to
cross-examine Dr. Orphanos about his opinions based solely on
the contents of his deposition.
See Southern States, 318 F.3d
at 598 (explaining that the “rules of expert disclosure are
designed to allow an opponent to examine an expert opinion for
flaws and to develop counter-testimony through that party's own
experts.”).
Expert disclosures are intended to facilitate trial
preparation and reduce the amount of guesswork in civil
litigation.
See Jacobsen v. Deseret Book Co., F.3d 936, 953
(10th Cir. 2002)(explaining that the purpose of Rule 26(a)
expert reports is to set forth the substance of what the expert
will say during his direct examination and thereby provide an
opposing party “a reasonable opportunity to prepare for
effective cross examination and perhaps arrange for expert
testimony from other witnesses.”), Saudi, 427 F.3d at 278 (“A
party that fails to provide [expert] disclosures unfairly
inhibits its opponent's ability to properly prepare”).
Dr.
Orphanos’s deposition does not provide the information necessary
to enable Speedway to engage in such preparation.
Moreover, it
is unclear exactly what opinion, if any, Dr. Orphanos provided
16
during his deposition.
Accordingly, there is considerable
potential that an opinion offered by Dr. Orphanos, or the basis
of such an opinion, would surprise Speedway at trial.
Finally, Turner has not offered an acceptable
explanation for his failure to meet his Rule 26 obligations.
As
noted above, Turner incorrectly asserts that he had no
obligation to make disclosures pertaining to Dr. Orphanos
because treating physicians need not be disclosed under this
district’s local rules of civil procedure.
Miscomprehension of
the rules is not a substantial justification that will excuse
total non-compliance with the requirements of Rule 26, and,
notwithstanding a second chance to do so, Turner has offered no
other explanation for his failure to disclose.
Turner has not provided expert disclosures as required
by Rule 26, even after being granted an extension of the
deadline.
He has done nothing to establish that this
noncompliance was harmless or substantially justified.
Having
failed to demonstrate the applicability of either exception, the
appropriate Rule 37 sanction for his failure to disclose is
exclusion.
Accordingly, Dr. Orphanos’s expert testimony, to the
extent it would purport to link causation and injury, is
excluded and will not aid Turner in opposing Speedway’s motion
for summary judgment.
17
B.
The court turns to the substance of Speedway’s motion
for summary judgment.
Speedway argues that Turner has not and
cannot put forth sufficient evidence to satisfy West Virginia
law concerning the causation and damages elements of a
negligence claim.
If the evidence proffered by Turner does not
meet the requirements of West Virginia law then there can be no
dispute of material fact concerning that element and summary
judgment in Speedway’s favor is appropriate.
a. Causation
When pursuing a negligence claim, the burden of
demonstrating causation falls on the plaintiff.
As the West
Virginia Supreme Court of Appeals explained in Walton v. Given:
It is an elementary principle of law that negligence
will not be imputed or presumed. The bare fact of an
injury standing alone, without supporting evidence, is
not sufficient to justify an inference of negligence.
The burden is on the plaintiff to prove by a
preponderance of the evidence that the defendant was
negligent and that such negligence was the proximate
cause of the injury.
58 W. Va. 897, 902 (1975).
Satisfying this burden requires the
plaintiff to produce evidence tending to show that a defendant’s
acts were the cause of any alleged injury; mere possibility is
not enough.
“The law is clear that a mere possibility of
18
causation is not sufficient to allow a reasonable juror to find
causation.”
Tolley v. ACF Industries, Inc., 212 W. Va. 548, 558
(2002).
West Virginia does not generally require causation to
be established by expert evidence.
See Smith v. Slack, 125
W.Va. 812 (1943)(“Direct testimony, expert or otherwise, is not
always necessary to prove the causal connection between the
negligence
. . . of a tortfeasor and the injury suffered by his
victim.”), see also Spencer v. McClure, 217 W. Va. 442, 447
(2005)(“expert testimony is not always necessary to prove
causation”).
However, West Virginia precedent recognizes that
under some circumstances, it would be difficult, if not
impossible, for a plaintiff who has suffered a physical injury
to establish causation without expert evidence.
As the West
Virginia Supreme Court of Appeals explained in Totten v.
Adongay:
In many cases the cause of injury is reasonably direct
or obvious, thereby removing the need for medical
testimony linking the negligence with the injury . . .
In other instances, medical testimony is warranted to
establish the proximate cause link between the claimed
negligence and injury.
Totten v. Adongay, 175 W. Va. 634, 640 (1985).
Outside of the context of cases involving a
professional standard of care, see e.g., Short v. Appalachian
19
OH-9, Inc., 203 W. Va. 246, 253-54 (1998)(affirming summary
judgment for the defendant in a case where the plaintiff failed
to produce any expert testimony supporting his claim that the
negligence of paramedics and other emergency service personnel
was the proximate cause of his child’s death), and those
involving products liability, see e.g., Rohrbough v. Wyeth
Labs., Inc., 916 F.2d 970, 972 (4th Cir. 1990)(applying West
Virginia law, and stating that “[a]n essential element of
plaintiffs' cause of action is proof that defendant's vaccine
caused plaintiffs' injuries, and proof of causation must be by
expert testimony.”)(citing Hicks v. Chevy, 178 W. Va. 118,
121(1987)), West Virginia precedent offers little guidance as to
what circumstances require a plaintiff to produce expert
evidence in order to prove causation.
However, the trend of
“[m]odern case law [is to] require[] expert medical testimony to
establish causation in cases where the plaintiff has suffered a
complex injury.”
Smith v. Gen. Motors Corp., 376 F. Supp. 2d
664, 667 (W.D. Va. 2005) aff'd sub nom. Estate of Smith v. Gen.
Motors Corp., 179 F. App'x 890 (4th Cir. 2006), see also
Driggers v. Sofamor, S.N.C., 44 F. Supp. 2d 760, 764 (M.D.N.C.
1998)(“ where the injury is complicated . . . expert medical
testimony on the issue of causation must be provided”)(citing
Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 167 (1980),
Guevara v. Ferrer, 247 S.W.3d 662, 665 (Tex. 2007)(describing
20
the “general rule” that “expert testimony is necessary to
establish causation as to medical conditions outside the common
knowledge and experience of jurors.”), Bushong v. Park, 837 A.2d
49, 55 (D.C. 2003)(expert medical testimony not required to
prove negligence unless a plaintiff’s injuries involve a
“complex medical question”), Reed v. County of Hillsborough, 813
A.2d 472, 473 (N.H. 2002)(“Lay testimony is probative on the
issue of physical injury and the cause of that injury only if
the cause and effect are so immediate, direct and natural to
common experience as to obviate any need for an expert medical
opinion.”)(internal quotation marks omitted).
This modern trend
was succinctly summarized in an opinion by the Supreme Court of
North Carolina, which held that:
[W]here the exact nature and probable genesis of a
particular type of injury involves complicated medical
questions far removed from the ordinary experience and
knowledge of laymen, only an expert can give competent
opinion evidence as to the cause of the injury.
Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 167 (1980).
Some of the injuries Turner claims were caused by the
fall, such as localized pain in his neck, back, elbow, and hip,
can be classified as “reasonably direct or obvious,” at least to
the extent such pain was soon experienced.
See Totten, 175 W.
Va. at 640, see also Boggavarapu v. Ponist, 518 Pa. 162, 167
(1988)(“[T]here are injuries to which human experience teaches
21
there is accompanying pain.”), Ilosky v. Michelin Tire Corp.,
172 W. Va. 435, 446 (1983)(describing the leg pain of the
injured plaintiff as an “obvious injur[y].”).
It is well within
the “ordinary experience and knowledge of laymen,” Click, 300
N.C. at 167, to conclude that a fall onto the unforgiving
surface of a parking lot could lead directly to such pain, and,
depending on the factual circumstances and the testimony
provided, to somewhat more attenuated symptoms like loss of
sleep and difficulty walking.6
Insofar as Turner seeks relief
for obvious injuries, his claims do not fail simply because they
are unsupported by expert evidence.
Still, in order to survive
Speedway’s motion, Turner must demonstrate that there is a
material dispute of fact concerning the causation of his obvious
For example, to the extent Turner testifies that he lost sleep
or has had difficulty walking because of pain in the regions of
his body which suffered the brunt of the fall’s impact, his
testimony may concern an “obvious” injury for which no expert
testimony is required. See e.g., Bitzan v. Parisi, 558 P.2d
775, 778 (Wash. 1977)(“There is no reason laymen may not testify
to their sensory perceptions . . . Physical movement by the
injured person can be seen and described by a layman with no
prior medical training or skill. Furthermore, an injured person
can testify to subjective symptoms of pain and suffering, and to
the limitations of his physical movements.”)(internal citations
omitted). In contrast, Turner would not be able to rely on his
own testimony to establish the alleged skull fracture inasmuch
as such a condition is generally beyond the ability of a
layperson to diagnose. See e.g., Roark v. Allen, 633 S.W.2d
804, 809 (Tex. 1982)(holding that “the diagnosis of skull
fractures is not within the experience of the ordinary
layman.”). Such an injury, and others like it, provide an
example of the “complex” or “complicated” medical conditions for
which causation can only be established by expert testimony.
6
22
injuries.
To do so, he must point to some evidence tending to
show that those injuries were caused by the fall at Speedway.
In his response in opposition, Turner relied heavily
on Dr. Orphanos to meet this evidentiary burden.
Pl. Resp. in Opp’n.
See generally
For the reasons already discussed, Dr.
Orphanos’s purported expert testimony linking causation and
injury cannot be relied upon.
Moreover, given that Dr. Orphanos
was not present when the accident occurred, and that it appears
from the record that he was not the treating physician who
tended to Turner’s injuries in the immediate aftermath of the
fall, Dr. Orphanos lacks the personal knowledge necessary to
provide relevant, admissible testimony that would help Turner
stave off summary judgment with respect to his obvious injuries.
However, Turner’s own recollection may suffice.
While Turner does not cite to his own deposition
testimony in his response in opposition, several relevant
portions of that deposition are attached to Speedway’s motion.
See “Turner Dep.”7
During his deposition, Turner was asked about
and discussed his medical history prior to the fall at Speedway,
and goes on to discuss the various symptoms he claims were
exacerbated by the fall or did not manifest until after the fall
The excerpts of Turner’s deposition are attached as “Exhibit B”
to Speedway’s Motion for Summary Judgment. (ECF 28-2).
7
23
occurred.
Turner Dep. at 59, 78-84.
Under the standard
articulated in Totten, this testimony, standing alone, provides
evidence, upon which a reasonable jury could rely, tending to
show that a given obvious injury sustained by Turner was caused
by the fall.
Cf Morgan v. Compugraphic Corp., 675 S.W.2d 729,
733 (Tex. 1984)(“ Generally, lay testimony establishing a
sequence of events which provides a strong, logically traceable
connection between the event and the [medical] condition is
sufficient proof of causation.”).
As noted, Turner did not cite to his deposition or
attach an affidavit to his response to Speedway’s motion.
Nevertheless, summary judgment based on the alleged
insufficiency of evidence is inappropriate if, after a review of
the record as a whole, a court determines that the moving party
“overlooked a witness who would provide relevant testimony for
the nonmoving party at trial.”
Celotex Corp., 477 U.S. at 333
(explaining that the presence of such evidence demonstrates that
the moving party has not met its “initial burden” and that when
the “moving party has not fully discharged its initial burden of
production, its motion for summary judgment must be denied”).
Speedway has offered no argument as to why Turner cannot rely on
his own testimony to establish causation with respect to any
obvious injuries.
Speedway has thus not met its burden of
24
demonstrating that the evidence concerning causation of Turner’s
obvious injuries is legally insufficient.
Accordingly, summary
judgment on that basis is not warranted.
b. Damages
In West Virginia, “a tort plaintiff is entitled to all
damages proximately caused by a wrongdoer's actions.”
Cook, 216 W. Va. 353, 357 (2004).
Cook v.
“[C]ompensatory damages for
personal injuries are composed of two broad categories.”
Flannery v. United States, 171 W. Va. 27, 29 (1982).
The first
category, “liquidated” or “pecuniary” damages, “represent some
form of expense or economic loss that can be rendered reasonably
certain monetarily by a mathematical figure or calculation.”
Id. (explaining that “medical, hospital, nursing, dental, drug
and all other similar expenses, both present and future” as well
as “lost wages and lost earning capacity” qualify as
liquidated).
The second category, “unliquidated” damages, are
those damages, like pain and suffering, for which there is “no
precise monetary calculation.”
injuries” as unliquidated.).
Id. (also identifying “permanent
These two categories can be
further subdivided into two temporal categories: those damages
that have accrued as of the time of the trial, and those that
will necessarily be incurred in the future.
Id. at n. 3.
The prayer for relief in Turner’s complaint asks for a
25
judgment against Speedway that will “fully compensate him for
his damages.”
See Pl. Compl.
In the paragraph preceding his
prayer, Turner outlines the nature of his alleged damages,
stating that as a result of the fall he sustained damages which
included:
temporary and permanent bodily injuries . . . medical
bills and related expenses, past, present, and future .
. . physical pain and suffering, past, present and
future . . . loss of enjoyment of life, past, present
and future . . . mental anguish and emotional distress,
past, present, and future . . . and inability to conduct
his normal activities[.]
Id. at ¶ 5.
With the exception of his claim for medical bills
and expenses, which fall in the liquidated class, Turner seems
to seek only unliquidated damages.
His prayer also demonstrates
that his claim encompasses both accrued and future damages.
The damages Turner has already accrued, liquidated or
unliquidated, are subject to proof by competent evidence at
trial, and are not the subject of this motion.
Law in Supp. Mot. for Summ. J. at * 15.
See Def. Mem. of
Speedway seeks summary
judgment with respect to Turner’s request for future damages,
asserting that he “does not have sufficient evidence upon which
a jury could base a future damage award in his favor.”
Id. at *
17-18.
“The general rule with regard to proof of damages is
that such proof cannot be sustained by mere speculation or
26
conjecture.”
Syl. Pt. 1 Spencer v. Steinbrecher, 152 W. Va. 490
(1968), see also Rodgers v. Bailey, 68 W. Va. 186 (1910)(“Actual
damages . . . must be proved. An amount cannot be inferred.‘In
‘civil damage cases,’ as in ordinary damage cases, the evidence
must afford data, facts and circumstances . . .
from which the
jury may find compensation for the loss suffered by reason of
the injury proved.’”)(quoting Carpenter v. Hyman, 67 W. Va. 4
(1910)).
“To ward against speculative, abstract or purely
theoretical claims, the trial court bears the responsibility for
examining the evidence in each case in order to withhold . . .
flawed claims from jury consideration.”
Cook, 216 W. Va. at
360.
West Virginia specifically requires that future
damages, including the future effect of permanent injuries, be
proven to a “reasonable certainty.”
Syl. Pt. 9 Jordan v Bero,
158 W. Va. 28 (1974)(“The permanency or future effect of any
injury must be proven with reasonable certainty in order to
permit a jury to award an injured party future damages.”).
In
Bero, the Supreme Court of Appeals explained that future damages
are:
those sums awarded to an injured party for, among other
things: (1) Residuals or those future effects of an
injury which have reduced the capability of an
individual to function as a whole man; (2) future pain
and suffering; (3) loss or impairment of earning
capacity; and (4) future medical expenses.
27
Id. at Syl. Pt. 10, see also Syl. Pt. 2 Flannery, 171 W. Va. at
27.
Discussing the nature of evidence required to prove such
damages to a “reasonable certainty,” the court said that:
Where [an] injury is of such a character as to be
obvious, the effects of which are reasonably common
knowledge, it is competent to prove either by lay
testimony from the injured litigant or others who have
viewed his injuries, or by expert testimony — medical,
forensic, actuarial, and the like —, or from both lay
and expert testimony.
Bero, 158 W. Va. at 52-53, see also id. at Syl. Pt. 11.
But the
court also held that:
On the other hand, where [an] injury is obscure, that
is, the effects of which are not readily ascertainable,
demonstrable, or subject of common knowledge, mere
subjective testimony of the injured party or other lay
witnesses does not prove the future effect of the injury
to a reasonable certainty. In such [a] situation,
medical or other expert opinion testimony is required to
establish the future effects of the injury to a
reasonable degree of certainty.
Id. (emphasis added).
Read in concert with Flannery, it is apparent that the
first two categories of future damages set forth in Bero
(residuals, and future pain and suffering) are unliquidated,
while the latter two categories (lost earning capacity and
future medical expenses) are in the liquidated category.
By
their very definition, unliquidated damages are difficult to
quantify.
There is no mathematical formula or calculation that
can be mechanically applied to determine how much money
28
sufficiently compensates an individual for his mental anguish or
his loss of enjoyment of life.
See Hewett v. Frye, 184 W. Va.
477, 480 (1990), Crum v. Ward, 146 W. Va. 421, 429 (1961).
The
subjective nature of unliquidated damages does not, however,
relieve a plaintiff of his obligation to prove future damages to
a reasonable certainty.
See e.g., Hewett, 184 W. Va. at 480.
(explaining that an award for “mental anguish” must be
“necessarily based upon a subjective evaluation by the jury of
the injured individual and the evidence he presents.”).
As
explained in Bero, when the effects of an alleged injury are
“obvious,” a plaintiff can satisfy this evidentiary burden
without resort to expert testimony.
See also Turner v. Heston,
172 W. Va. 80, 83 (1983)(per curiam) (collecting authority where
“[l]ay testimony was found competent and sufficient to support a
damage instruction for permanent injury and future pain and
suffering.”).
Given Turner’s extensive and protracted medical
history, he may have difficulty convincing a jury, solely on the
basis of lay testimony, that it is reasonably certain that he
will suffer any future unliquidated damages flowing from any
obvious injuries he may have suffered as a result of the fall.8
See analysis at pgs 22-23, supra. The court notes that the
jury’s assessment of the damage ascribable to an injury can only
come after the jury has made a positive determination of
8
29
Nevertheless, to the extent he is able to produce evidence at
trial which establishes such future damage to the necessary
degree of certainty, his lack of expert evidence will not
prevent him from obtaining recovery for damage so proved.
In contrast, proving future liquidated damages, in
this case future medical expenses, requires Turner to satisfy a
more stringent evidentiary burden.
As the West Virginia Supreme
Court of Appeals stated in Bero:
Proof of future medical expenses is insufficient as a
matter of law in the absence of any evidence as to the
necessity and cost of such future medical treatment
Syl. Pt. 16, Bero, 158 W. Va. 28.
An opinion about the
necessity of future medical treatment, and the concomitant cost
of such, cannot be offered without scientific or technical
training or other specialized knowledge and thus falls into the
realm of expert testimony.
See Fed. R. Evid. 702.
The same can
be said of Turner’s claim that any obscure injuries caused or
exacerbated by the fall are permanent – such a claim requires
expert testimony.
Given that Turner’s failure to comply with
Rule 26 precludes him from relying on Dr. Orphanos’s proffered
expert testimony, as distinguished from his testimony as a
causation: that is, the inquiry into damages comes only after
the jury has concluded that there is a causal link between the
complained-of event and the asserted injury. Syl. Pt. 12 Bero,
158 W. Va. at 28.
30
subsequent treating physician, Turner cannot provide the type of
evidence required to establish either the necessity or cost of
any future medical treatment, nor does he appear to have any
competent evidence concerning the permanence of any obscure
injuries.
IV.
Conclusion and Order
For the foregoing reasons, it is ORDERED that
Speedway’s motion for summary judgment be treated as a motion in
limine which is hereby granted insofar as it pertains to
Turner’s prayer for damages compensating him for future medical
expenses and the future effects of any obscure permanent
injuries; and it is granted to exclude the testimony of Dr.
Orphanos with respect to expert opinion linking causation and
injury.
The motion is otherwise denied.
The Clerk is directed to transmit copies of this order
to counsel of record and any unrepresented parties.
ENTER:
July 15, 2015
John T. Copenhaver Jr.
United States District Judge
31
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