Opinion
Civil Action NO. 99-2322, Section "N".
November 30, 2000.
ORDER AND REASONS
Before the Court is defendant Wal-Mart Stores, Inc.'s Motion in Limine. For the following reasons, defendant's motion is DENIED.
BACKGROUND
Plaintiffs Darlene and Glenn Dekerlegand have brought the instant suit against defendant Wal-Mart Stores, Inc. ("Wal-Mart"), seeking damages for injuries allegedly sustained when Darlene Dekerlegand ("Dekerlegand") slipped and fell in a Wal-Mart Store in Hammond, Louisiana. Dekerlegand's physician, Dr. Larry Ferachi, diagnosed her with sacroiliac joint dysfunction and referred her to Drs. Sabrina Schrader ("Schrader") and Edna Doyle ("Doyle") for prolotherapy treatment, a procedure in which a sclerosing solution is injected into injured ligaments in order to cause a proliferation of tissue to "weld" the ligaments to the bone. Schrader and Doyle, as Dekerlegand's treating physicians, have been offered as expert medical witnesses by the plaintiff.
Defendant Wal-Mart now moves the Court to exclude from trial any testimony from Drs. Schrader and Doyle regarding prolotherapy treatment, on the grounds that it is a controversial procedure not generally accepted in the medical community.
LAW AND ANALYSIS
Federal Rule of Evidence 702 allows expert witnesses to "testify in the form of opinion or otherwise" if "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." FED. R. EVID. 702. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993), the Supreme Court held that expert testimony may be admitted into evidence if the expert is qualified to testify competently regarding the matters she intends to address; the methodology by which the expert reaches his or her conclusions is sufficiently reliable; and the testimony, through the application of scientific, technical, or specialized expertise, assists the trier of fact in understanding the evidence or determining a fact in issue.
In the case at bar, Wal-Mart argues that Daubert should be applied to exclude Schrader and Doyle's testimony on the use of prolotherapy on the plaintiff, on the grounds that prolotherapy is an experimental treatment not generally accepted in the medical community. However, the Court finds that testimony about the type of treatment performed on Dekerlegand is factual in nature and is not subject to exclusion under a Daubert analysis. See Patel v. Gayes, 984 F.2d 214, 218 (7th Cir. 1993) (holding that a doctor is not an "expert" if her testimony is based on observations during the course of treatment, if testimony was not developed in anticipation of litigation, and if the testimony is based on personal knowledge). If Wal-Mart believes prolotherapy is an invalid form of treatment, it can attempt to point out the alleged flaws on cross examination. However, the Court will not preemptively exclude factual testimony as to what treatment Dekerlegand received. Accordingly, Wal-Mart's Motion in Limine to exclude testimony about prolotherapy is DENIED.
CONCLUSION
Because the Court finds that the Daubert analysis does not apply to the factual testimony of Dekerlegand's treating physicians, Wal-Mart's Motion in Limine to exclude testimony regarding the use of prolotherapy is DENIED.