MATTHEW W. BRANN, District Judge.
Currently pending before the Court are Plaintiffs' and Defendants' objections regarding certain questions and answers in videotaped depositions of three witnesses. (ECF Nos. 105-09). As explained below, certain objections will be sustained and portions of the depositions stricken, while other objections are overruled.
On July 31, 2012, Plaintiffs Shaul Feld and Ada Feld filed a Complaint against Defendant Primus Technologies Corporation ("Primus") and John Doe. (ECF No. 1). This Complaint was subsequently amended on February 6, 2014 to name Defendant Vince Klarsch. (ECF No. 42). Plaintiffs allege negligence and loss of consortium against both defendants.
On June 9, 2011, Mr. Feld was working as an employee of Orbotech, Inc. and was present at Primus' facility for the installation of a Sprint 100 industrial printing machine.
During the course of discovery, on July 15, 2013, a deposition was conducted of Nissim Moshenissimov. (ECF No. 106, Ex. A). Thereafter, on April 23, 2015, Saechin Kim, M.D., Plaintiffs' medical expert, was deposed. (ECF No. 107, Ex. E). Finally, on May 1, 2015, Defendants' medical expert, Robert R. Dahmus, M.D., was deposed. (ECF No. 105, Ex. B). All three videotape depositions will be offered at trial in lieu of live testimony. Objections were timely lodged to certain questions and answers during the course of the depositions.
Primarily, the Defendants object to the testimony of Dr. Kim regarding Mr. Feld's shoulder injury, and any testimony related to Mr. Feld's "employability, wage loss, or earning capacity." (ECF No. 107). Specifically, Defendants argue that Plaintiffs failed to provide adequate notice of the expert testimony as required under the Federal Rules of Civil Procedure.
The Federal Rules of Civil Procedure provide that witnesses who are "retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony" must provide the opposing party with expert reports. Fed. R. Civ. P. 26(a)(2)(B). However, "treating physicians are not subject to the reporting requirements of Rule 26(a)(2)(B) if they form their opinion on causation or prognosis as part of the ordinary care of a patient."
Where expert witnesses are not required to provide a written report, they must provide a disclosure which: (1) notifies the opposing party of the subject matter of their testimony, and (2) provides a summary of the fact and the opinions to which the witness is expected to testify. Fed. R. Civ. P. 26(a)(2)(C). "If a party fails to provide information or identify a witness [in the manner required by the Court under Rule 26], the party is not allowed to use that information or witness . . . at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1).
Although the Rules allow a court to disallow testimony based on lack of notice, the "exclusion of critical evidence is an `extreme' sanction" which ordinarily should not be employed where any resulting prejudice is minimal.
Dr. Kim's testimony regarding Mr. Feld's shoulder injury will not be stricken from the deposition materials. As an initial matter, Plaintiffs provided sufficient notice of Dr. Kim's testimony in accordance with this Court's previous Scheduling Order. (ECF No. 67). In their Pretrial Memorandum, Plaintiffs informed the Defendants that Dr. Kim would provide expert testimony. (ECF No. 78). In that Memorandum, the Plaintiffs stated that Dr. Kim would be expected to testify, inter alia, "to the nature of the injuries Plaintiff Shaul Feld sustained as a result of the June 9, 2011 incident[.]"
In their Amended Complaint, the Plaintiffs allege that "[a]s a result of the . .. June 9, 2011 accident, Plaintiff Shaul Feld suffered serious, permanent and disabling injuries including . . . a left shoulder tear . . ." (ECF No. 42, ¶ 17). Although broadly worded, the language used in the Pretrial Memorandum was sufficient to place the Defendants on notice that Dr. Kim would testify regarding Mr. Feld's shoulder injury. Because the Amended Complaint makes clear that Plaintiffs assert Mr. Feld suffered a shoulder injury in the June 9, 2011 incident, it necessarily follows that any testimony relating to the injuries sustained during that incident would include testimony relating to the shoulder injury. Plaintiffs have therefore provided sufficient notice to the Defendants, and Defendants objection will be overruled in that regard.
Even if the Court were to consider the notice insufficient, striking the testimony would be overly harsh given the relatively insignificant prejudice that occurred due to the lack of notice. First, based on the Amended Complaint, Defendants knew that Mr. Feld's shoulder injury would be an issue at trial, and would therefore have known of the need to prepare a defense to any shoulder injury issues. Second, Plaintiffs identified Dr. Kim as an expert witness prior to the court-imposed deadline, and "thus the defendants knew that he was going to testify."
Next, Defendants argue that any testimony from Dr. Kim relating to "employability, wage loss, or earning capacity" should be stricken from the deposition due to lack of notice. (ECF No. 107). First, Plaintiffs provided notice of the intent to have Dr. Kim testify "as to the relatedness of Mr. Feld's injuries to his inability to return to his pre-injury job." (ECF No. 78). Because Plaintiffs provided clear, unambiguous notice of such testimony, any line of questioning related to Mr. Feld's ability to perform his previous work will not be stricken from the deposition.
Relatedly, although Plaintiffs did not give notice as to Dr. Kim's testimony relating to Mr. Feld's ability to maintain other types of employment, any prejudice arising from this testimony is minimal. Defendants were on notice that Dr. Kim would testify as to the impact Mr. Feld's injuries would have on his ability to return to his previous employment. (ECF No. 107). Such testimony would necessarily include a discussion of Mr. Feld's functional limitations; therefore, Defendants had notice of the need to defend against such testimony.
Dr. Kim's testimony related to other types of employment relied solely on Mr. Feld's functional limitations. When asked about the injury's impact on future employment, Dr. Kim stated that "because [Mr. Feld] had limited sitting and lifting and standing restrictions, he would have significant limitations on [sic] obtaining gainful employment." (ECF No. 107, Ex. E, pp. 59:24-60:3). Dr. Kim later iterated that Mr. Feld's injuries "affected his ability to do any kind of lifting or any kind of work where he would have to reach for things above the shoulder."
This testimony related exclusively to functional limitations, and the related and logical discussion of how those functional limitations impacted Mr. Feld's ability to work. The discussion did not stray beyond Dr. Kim's area of expertise or beyond testimony that Defendants should reasonable have expected. Although Dr. Kim testified that Mr. Feld would have physical limitations that would impact his ability to work, Dr. Kim did not exclude all work.
The single identifiable exception was Dr. Kim's statement that Mr. Feld "would have significant limitations on [sic] obtaining gainful employment."
Finally, because Dr. Kim did not exclude Mr. Feld from all work, his testimony did not stray into the realm of lost wages or loss of earning capacity. While the testimony excluded Mr. Feld from performing his past work, he may still perform other forms of work, and therefore Dr. Kim's testimony did not establish a loss of earning capacity. Thus, while the Court would agree that Dr. Kim may not offer testimony related to lost wages or loss of earning capacity, no such testimony occurred in the deposition, and Defendants' objection is overruled.
Defendants objected to the following exchange between Plaintiffs' counsel and Dr. Kim:
(ECF No. 107, Ex. E, p. 41:17-41:24). Defendants assert that the answer is non-responsive.
The Court finds that this answer was responsive. Although Dr. Kim did not answer as concisely or clearly as possible, his answer essentially boiled down to "I don't know and couldn't know unless I performed a follow-up examination." Because the answer was responsive, the question and answer shall remain, and the objection and subsequent discussion (
Plaintiffs' attorney later objected to Defendants' counsel's line of questioning regarding Dr. Kim's retention as an expert witness.
Questions regarding expert witness fees are proper because they potentially impact the witness' credibility.
Finally, Plaintiffs objected to a line of questioning regarding Mr. Feld's receipt of disability benefits. The following exchange took place:
(ECF No. 107, Ex. E, pp. 90:10-91:19).
During this series of questions, Plaintiffs' counsel objected on the grounds that the questions were beyond the scope of direct-examination and were irrelevant.
Second, the questions related to disability payments are relevant to this case. Such questions are relevant to Mr. Feld's credibility, as the payments may establish that Mr. Feld has motive to claim disabling injuries in order to continue receiving disability benefits.
In the deposition of Robert R. Dahmus, M.D., Plaintiffs lodged three separate objections. First, Defendants' attorney asked Dr. Dahmus whether he believed Mr. Feld's injuries were caused by the alleged accident on the day of June 9, 2011; Dr. Dahmus stated the he did not believe the incident caused Mr. Feld' injuries. (ECF No. 105, Ex. B, p. 16:1-16:13). Dr. Dahmus went on to elaborate that:
In order for an expert witness to testify, he must be "qualified" to offer testimony.
Dr. Dahmus' testimony will be allowed. First, the testimony offered by Dr. Dahmus is consistent with testimony that physicians may generally offer, and extended beyond that which a biomechanical engineer could offer. This is so because "biomechanics are qualified to determine what injury causation forces are in general and can tell how a hypothetical person's body will respond to those forces, but are not qualified to render medical opinions regarding the precise cause of a specific injury."
Second, Dr. Dahmus adequately set forth his qualifications to render such an opinion. Dr. Dahmus first stated that, based on his experience, he often must determine the cause of an injury and "[i]f someone comes in and tells me that [they] tripped and [] twisted [their] knee, I can almost guarantee what they have even before I examine them" and "I can look at [someone's] fracture and I can tell them wh[ere] their arm was when they hit the ground." (ECF No. 105, Ex. B, p. 13:19-13:25). Dr. Dahmus later stated that, in order to treat a patient, he is required to determine whether the patient's description of an accident matches the injuries sustained.
In short, Dr. Dahmus laid forth sufficient qualifications and specialized knowledge in this area to qualify as an expert. He has the experience necessary to offer an opinion as to the likelihood that the incident on June 9, 2011 caused Mr. Feld's injuries, and Plaintiffs' objection is therefore overruled.
Next, Plaintiffs objected to questions relating to Dr. Kim's opinion that Mr. Feld's low back pain complaints in February 2011 were insignificant.
The Court agrees that the supplemental answer was speculative. The very language employed by Dr. Dahmus, consistently speaking in the first person, indicates the speculative nature of the testimony. Dr. Dahmus stated that he would be worried about the chest pain, and he would not inform the hospital that he had back pain.
Finally, Plaintiffs objected to the following testimony as speculative and non-responsive:
(ECF No. 105, Ex. B, pp. 49:20-50:2). The first line of Dr. Dahmus' answer was responsive to the question and was not speculative, and therefore will remain in the deposition. However, the remainder of Dr. Dahmus' answer, beginning with "So he may also" and ending in "I don't know" was non-responsive to the question asked and was entirely speculative. Therefore, that portion of the answer will be stricken from the deposition.
Defendants object to the following question posed by Plaintiffs' attorney, and Mr. Moshenissimov's subsequent answer:
(ECF No. 106, Ex. A, p. 59:23-60:4). Defendants object on the grounds that Mr. Moshenissimov was not present at the time of the incident, has no personal knowledge of the incident, and any answer was "sheer speculation" that amounts only to an improper comment on Mr. Feld's credibility. (ECF No. 106).
Mr. Moshenissimov's answer was not based on personal knowledge as required by Rule 602 of the Federal Rules of Evidence. Mr. Moshenissimov admitted that he was not present at the Primus facility on June 9, 2011, and therefore could not have witnessed the incident. (ECF No. 106, Ex. A, p. 60:5-60:13). Furthermore, Mr. Moshenissimov's comment was not rationally based on his perceptions as required by Rule 701 of the Federal Rules of Evidence. The statement exists solely to bolster Mr. Feld's credibility. Neither the phrasing of the question, nor the posture of the case would allow for such bolstering; therefore the question and answer were improper and will be stricken from the deposition.
Finally, during the May 22, 2015 conference call with the parties, counsel for the Defendants represented that Plaintiffs' subsequent objections were related to cross-examination that was conducted as a result of Plaintiffs' question to Mr. Moshenissimov. Therefore, counsel for the Defendants did not oppose sustaining the Plaintiffs' objections in the event that the Court ruled in Defendants' favor on their objection. Consequently, the Court will sustain Plaintiffs' objections and strike the relevant portions of the deposition (ECF No. 106, Ex. A, pp. 61:9-62:10; 62:21-63:12).
Prior to raising objections with the Court, the parties addressed several outstanding objections and agreed to redact several portions of the depositions. In accordance with the parties' representations to the Court, the following portions of the transcripts will be stricken:
From Dr. Kim's deposition: pages 21:16-22:3; 33:17-33:24; 34:1-34:5; 73:21-73:24; 74:11-74:12; 74:18-76:13; 86:14-86:30; 87:12-87:14; 93:15-93:17; 94:8-95:4; and 106:16-106:17.
From Dr. Dahmus' deposition: page 50:4.
From Mr. Moshenissimov's deposition: pages 57:18-57:22 and 60:2-60:3.
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.
A separate Order will issue.
