JOSEPH H. McKINLEY, Jr., Chief District Judge.
This matter is before the Court on a motion by Plaintiffs, Beau Brooks and Tina Brooks, to preclude the entry of collateral source evidence [DN 122], to preclude reference to undocumented and unwitnessed risk assessments or hazard analyses allegedly performed on the subject roof bolting lines [DN 121], and to strike Dr. David Shraberg as a witness [DN 118]. Fully briefed, these matters are ripe for decision.
This is a product-liability case against Defendant, Caterpillar Global Mining America, LLC ("CGM"), arising out of an accident that happened in May of 2013. Plaintiff, Beau Brooks, a Western Kentucky coal miner, sustained injuries to his left hand when his hand was crushed between a rib of coal and a Caterpillar RB220 Roof Bolter. Plaintiffs allege that the injury occurred because Brooks was holding onto the operator handle of the roof bolter that extended his hand beyond the roof and outside the protective operator compartment. Plaintiffs contend that the crush injuries would not have occurred if CGM's operator handle had not been located so close to the edge of the roof bolter's operator compartment that Brooks left hand was left unprotected. Brooks and his wife sued CGM.
Plaintiffs intend to introduce at trial all medical expenses which have been incurred to date. A substantial portion of the medical expenses have been paid by Beau Brooks' workers' compensation insurance carrier. Plaintiffs seek to prohibit the introduction or reference to the workers' compensation case or the fact that workers' compensation insurance, health insurance, and any other third-party sources not related to the tortfeaser have paid wage and medical benefits relating to Beau Brooks' injuries. Plaintiffs also seek to exclude any evidence of any reduction or charged-off expenses paid by any collateral sources, including workers' compensation and private insurance. Plaintiffs also move to preclude the introduction of evidence regarding the Plaintiff's potential future Affordable Care Act benefits or the fact that his insurance company may pay benefits in the future.
Defendant does not specifically address the collateral source rule; instead, it argues that the Kentucky Workers' Compensation Act precludes the Plaintiffs from introducing evidence at trial of medical bill totals that exceed the amount paid by the Plaintiff's Workers' Compensation carrier, American Zurich Insurance Company, from the date of the accident forward. Defendant argues that Plaintiffs should be precluded from introducing evidence of the gross amount of Beau Brooks' past medical bills to the extent this total exceeds the total amount paid to him pursuant to the Workers' Compensation Act fee schedule. Thus, Defendant seeks an order limiting the amount of the Beau Brooks' past medical bills presented at trial to the amount that has been paid by American Zurich.
In support of its argument, Defendant cites KRS § 342.035(1) which provides: "Periodically, the commissioner shall promulgate administrative regulations to adopt a schedule of fees for the purpose of ensuring that all fees, charges, and reimbursements under KRS 342.020 and this section shall be fair, current, and reasonable and shall be limited to such charges as are fair, current, and reasonable for similar treatment of injured persons in the same community for like services, where treatment is paid for by general health insurers." Defendant contends that in light of the statute, any medical bills in excess of what was paid on Plaintiff's behalf in accordance with the Workers' Compensation Act fee schedule are not "fair and reasonable" under Kentucky law. As a result, Defendant maintains that at trial the only amount that the jury should be presented regarding the Plaintiff's total past medical expenses is the amount of medical bills paid by the Plaintiff's Workers' Compensation provider. Defendant does not offer any case law in support of its argument.
Kentucky's collateral source rule "precludes courts from reducing a plaintiff's medical damages based on insurance payments made for [his] care, so long as the associated premiums were paid by the plaintiff [himself] or a third party other than the tortfeasor."
For these reasons, Plaintiffs' motion in limine with respect to this issue is
The record reflects that the RB220 roof bolter was initially designed in 1990 by Simmons Rand Company. The Long-Airdox Company then acquired Simmons-Rand. The Long-Airdox Company added the operator handle to the design in 1998. Long-Airdox was acquired by DBT which was later acquired by Bucyrus International. Bucyrus was acquired by Caterpillar Inc. and Caterpillar then essentially changed Bucyrus's name to CGM. CGM continued to manufacture the RB200 as a Caterpillar product until 2015.
Plaintiffs argue that Fed. R. Evid. 602 and 701 permit a witness to testify regarding a matter if the witness has personal knowledge of the matter. Plaintiffs maintain that CGM intends to call lay witness engineers to testify as to the existence of risk assessment and/or hazard analysis documents regarding the subject roof bolting machines. Plaintiffs contend that all the witnesses admit they have no first-hand knowledge of the existence of the documents and never witnessed the specific risk assessment or hazard analysis being performed. Accordingly, Plaintiffs maintain that the Defendant should be excluded from presenting evidence that a risk assessment or hazard analysis was ever preformed on the subject roof bolting lines, and/or its predecessors by any entities at any time. CGM acknowledges that it has been unable to locate any documents which demonstrate a formal risk assessment was performed on the SR200, RB2-52A, and/or RB 220 roof bolting machines by any of the predecessor companies. Defendant objects to the motion.
Federal Rule of Evidence 602 provides that "[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony." Fed. R. Evid. 602. "`The threshold for Rule 602 is low[,]' and `[t]estimony should not be excluded for lack of personal knowledge unless no reasonable [factfinder] could believe that the witness had the ability and opportunity to perceive the event that he testifies about.'"
The record reflects that when Caterpillar acquired the existing roof bolter product line from Bucyrus, Defendant did not subject the roof bolter to the same risk assessment process that it utilizes on new products that it designs and manufactures itself. Jeff Rector, a 31-year engineer of CGM and its predecessor companies, testified that new product risk assessments are not performed on product lines acquired from predecessor companies, such as Bucyrus, if they are products proven safe over numerous years. (Rector Dep. 32.) Rector further testified that the roof bolter also experienced an engineering design change in 1998 when the operator handle was added to the machine. (Rector at 40.) Rector testified that a risk assessment on the safety of the new design would have been performed when the change was made by Long-Airdox Company. Rector testified that the Defendant has not been able to locate the archived files, including the risk assessment process, performed by Defendant's predecessor companies on the model roof bolter at issue. (Rector 51-52.)
Rector further testified from personal experience regarding the process Long Airdox engaged in during the 1998-time period when company engineers considered changes to equipment, such as adding the handhold to the roof bolter machine. According to Rector,
(Rector Dep. 42-43.) Rector indicated that he was personally familiar with the roof bolter group during the period in question and described the type of people involved in the assessments, as well as the documents generated in regard to those assessments. Rector's testimony regarding the risk assessment practice of Caterpillar and its subsidiaries such as Long Airdox and CGM is based on his personal experience and complies with the guidelines of Fed. R. Evid. 602.
Similarly, Jeff Looney, a 26-year product engineer of CGM and its predecessor companies, testified as to his own personal experience regarding his engineering position. Looney began his engineering career with Simmons Rand in 1988 and stayed with all the predecessor companies. He left Caterpillar in 2014. Looney testified that the roof bolter was originally designed by Simmons Rand in 1990 under a chief engineer, Jim Gibson. The record reflects that Gibson passed away before discovery in this case began. At that time, Looney was not on the design team for the roof bolters. He testified that he began working on the roof bolter design team a few years later. He testified that as an engineer he engaged in risk analysis on a day-to-day basis as part of his design. He also testified that MSHA had itself inspected the design of the RB220 tram canopy and handhold. (Looney Dep. at 108-109.) Finally, Looney testified that "there is evidence of risk assessments because there's — there's notice and warning tags and caution tags all over the roof bolter. So there had to have been some kind of risk . . . assessment done, or those wouldn't be there." (
The Plaintiffs are correct that Looney testified at his deposition that he heard, but did not have first-hand knowledge, that the risk assessment of the subject roof bolter was done in Bristol, Virginia in 1990 and heard that it had been documented. (Looney Dep. at 30-32). However, it does not appear from Defendant's response to the motion in limine that it intends to seek to introduce this testimony from Looney who is testifying as a lay witness. Notwithstanding, at trial, Defendant may establish the existence of the original Simmons Rand risk assessment using admissible evidence. Such evidence may include testimony from a witness who has personal knowledge of the risk assessment or may include Simmons Rand's records reviewed by a witness assuming the records are properly authenticated and a proper foundation is laid. However, it does not include testimony from a witness who lacks personal knowledge.
Kevin Klein, CGM's designated corporate representative for the Fed. R. Civ. P. 30(b)(6) deposition, testified regarding CGM's risk assessment processes during the 2010 to 2013 period including New Product Introduction ("NPI") risk assessments and utilization of integration teams that assessed the products that Bucyrus had in production at the time Caterpillar purchased the company. (Klein Dep. at 16-23.) Specifically, Klein testified that "[t]he RB220 roof bolter in its predecessor form was subjected to a risk assessment." (
In response to Plaintiffs' motion, Defendant suggests that Klein as CGM's designated corporate representative can testify at trial to matters that go beyond his personal knowledge or his personal involvement. However, the case law appears to indicate such testimony would be improper. As noted by the district court in
Finally, while the Court agrees in part with the Plaintiffs' argument that the Defendant's witnesses cannot testify to hearsay regarding the formal risk assessments or the hazard analyses performed on the SB200 roof bolter, this does not preclude general testimony about the risk assessment processes engaged in by CGM and its predecessor companies during the period of time in question. The fact that Defendant has been unable to locate archived files documenting the risk assessment processes performed on the subject roof bolter does not establish that no risk assessments were ever performed by Simmons Rand in 1990 or Long Airdox in 1998. As they did in the deposition testimony, Plaintiffs are free to question Mr. Klein and other witnesses about their inability to locate the records in question.
For these reasons, the motion is
Plaintiffs move the Court to strike Dr. David Shraberg as a witness at the trial of this matter. As a result of his accident, Beau Brooks filed and later settled a workers' compensation claim against his employer, Armstrong Coal, related to injuries he sustained on the job. Dr. Shraberg was originally retained by Beau Brooks' former employer, Armstrong Coal Company, to offer an opinion in his workers' compensation case. On August 31, 2015, Dr. Shraberg conducted an independent psychiatric evaluation of Beau Brooks to determine if he suffered any permanent psychiatric impairment from the injury that occurred at work. In a report dated September 9, 2015, Dr. Shraberg opined that Beau Brooks has an adjustment disorder of adult life with mood disorder, resolved, with full occupational and psychosocial involvement in the community. (DN 57-3, p. 7.) Dr. Shraberg also opined that Beau Brooks has a Class I level of functioning which equates to a 0% permanent psychiatric impairment. At his first deposition in this current matter, Dr. Shraberg testified that he evaluated Brooks to determine if he had any permanent psychiatric impairments related to the injury he had sustained two years earlier. Dr. Shraberg determined that Brooks did not suffer "permanent psychiatric impairments from the accident." (Shraberg January 24, 2017, Dep. at 18.) Specifically, Dr. Shraberg testified that he reached the following opinion after evaluating Mr. Brooks:
(
Plaintiffs maintain that Dr. Shraberg's psychiatric analysis and workers' compensation evaluation are not relevant to any claims or defenses raised in this case. According to Plaintiffs, Beau Brooks is not making any claim for any specific psychological impairments or specific medically diagnosed psychological problems in this case stemming from the May 2013 coal mine incident and will not offer any testimony to that effect. (Beau Brooks Aff. ¶¶ 3, 4.) Plaintiffs contend that the mental suffering he has endured relating to his physical injury is different than specific psychological impairments, injuries, and/or medically diagnosed psychological conditions for which Dr. Shraberg assessed him. Accordingly, Plaintiffs maintain that Dr. Shraberg's opinions regarding Beau Brooks' lack of psychological impairments is not relevant to any claims in this case, and Dr. Shraberg should be excluded from offering these opinions at the trial of this case.
Relevant evidence is defined in Fed. R. Evid. 401 as evidence having "any tendency to make a fact more or less probable than it would be without the evidence." Fed. R. Evid. 401. Fed. R. Evid. 402 provides that "[i]rrelevant evidence is not admissible." "Relevancy is an extremely broad concept. Both the Supreme Court and the Sixth Circuit have noted that the standard set forth in Rule 401 is a liberal one."
In light of Beau Brooks' claim of present and future mental pain and suffering, the Court finds that Dr. Shraberg's testimony is relevant. Count I of the complaint alleges negligence in the design, assembly, manufacture, marketing, and sale of the roof bolter causing Beau Brooks' serious and permanent injuries that he will endure and "continue in the future to endure physical and mental pain and suffering. . . ." (DN 1.) Additionally, medical records from Dr. Brian Cheney suggest that Beau Brooks suffers from an acute, moderate generalized anxiety disorder to which the Plaintiffs' vocational expert Leonard Matheson references in his deposition. (Matheson Dep. At 98.) Similarly, Nurse Practitioner Kristy Fleming indicated in her records that Beau Brooks experiences issues from mood affective disorder. Fleming prescribed Wellbutrin to treat the mood affective disorder. Plaintiffs have listed both Dr. Brian Chaney and nurse practitioner Kristy Fleming as witnesses and have listed the medical and billing records as exhibits. Furthermore, as noted by Defendant, both general anxiety disorder and mood disorder are both specifically recognized and defined by the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. In fact, in a second deposition noticed by Plaintiffs in this case, Dr. Shraberg indicated that he had reviewed additional medical records for Beau Brooks. The medical records included additional records from Kristy Fleming, Dr. Chaney, Vanderbilt Medical Center, Liberty Rehabilitation, and pharmacy records. Dr. Shraberg testified that the records did not affect his opinion that he does not believe that Mr. Brooks "has suffered a permanent psychiatric impairment from the accident." (Shraberg Dep. at 10, January 17, 2017, DN 118-6.)
The Court agrees with the Defendant that it is somewhat puzzling for Plaintiffs to assert that Brooks is not claiming any "specific diagnosable psychological injury" and at the same time include, among their witnesses and exhibits, providers who have diagnosed him with "specific diagnosable psychological injury" and have prescribed drugs specifically for the treatment of those psychological conditions. In cases in which a plaintiff asserts present and future mental pain and suffering, expert testimony regarding his current and future psychological or mental condition is relevant. As noted above, Dr. Shraberg specifically testified that Beau Brooks did not have an anxiety or depressive disorder in contrast to the testimony of Dr. Chaney and nurse Fleming. The Court agrees with Defendant that Dr. Shraberg's testimony is relevant because it addresses and rebuts the Chaney/Fleming evidence that suggests a causal link between plaintiff's injury and the psychological conditions that they diagnosed and for which they prescribed him medication. Accordingly, Plaintiffs' motion in limine is
For the reasons set forth above,
