Opinion
CIVIL ACTION No. 99-CV-4295
July 23, 2001
MEMORANDUM
Plaintiffs move for a new trial under Rule 59(a). They argue that the jury's determination that plaintiff Marie Foltz suffered no injury as a result of defendant Hampton's negligence was contrary to the weight of the evidence. Plaintiffs also claim that they were prejudiced by the failure of defendant's expert medical witness, Dr. Mario Arena, to disclose opinions pretrial as mandated by Rule 26. For the reasons stated below, I disagree with both contentions.
"A new trial may be granted . . . in an action where there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States." Fed.R.Civ.P. 59(a). A new trial is necessary only when the record shows that the verdict resulted in a failure of justice, "the verdict is against the great weight of the evidence" or where the verdict "shocks our conscience." Valentin v. Crozer Chester Medical Center, 986 F. Supp. 292, 298 (E.D.Pa. 1997); see also Williamson v. Consolidated Rail Corp. 926 F.2d 1344, 1353 (3d Cir. 1991). To determine whether a new trial is necessary, I may weigh the evidence and consider the credibility of witnesses. Younis Bros. Co. v. CIGNA Worldwide Ins. Co., 899 F. Supp. 1385, 1398 (E.D.Pa. 1995), citing Roebuck v. Drexel Univ., 852 F.2d 715, 736 (3d Cir. 1988).
Plaintiffs argue that "where the parties disagree as to the nature and extent of the injuries, but the evidence reveals there was some injury as a result of the negligence of the defendant" a jury finding that the defendant's negligence did not result in an injury is a verdict against the weight of the evidence and "has been consistently held as necessitating a new trial." (Pls' Mot. at 3). They argue that because defendant's medical expert, Dr. Arena, conceded that Foltz "had a resolved cervical, thoracic and lumbar sprain and strain" (Pls' Mot. Ex. D at pp. 29, 73) following her August 27, 1997 motor vehicle accident, the jury should have found that defendant's negligence caused her injury. However, a review of the evidence makes it clear that there was sufficient evidence for the jury to find that defendant's conduct did not bring about plaintiff's injury.
Dr. Arena's complete diagnosis, made 2 1/2 years after the motor vehicle accident, "was that she had a resolved cervical, thoracic and lumbar sprain and strain with underlying degenerative disc disease of her cervical, thoracic and lumbar spine, without any evidence of neurologic compromise and also that she had adhesive capsulitis of her right shoulder." (Pls.' Mot. Ex. D p. 29) (emphasis added).
As plaintiffs state, Dr. Arena's initial medical evaluation states that "[t]his patient has recovered completely from injuries sustained as a result of her motor vehicle accident on 8/27/97." (Pls' Reply Mem. Ex. A). However, this statement alone is not sufficient to show that the jury's verdict is against the weight of the evidence. Defendants point out that "[a]ny reference to the car accident was based on [p]laintiff's medical history which she voluntarily gave to the doctor." (Def.'s Opp'n at p. 16). Dr. Arena's initial evaluation concludes with the statement that "[t]his patient has no physical restrictions or limitations on the basis of the motor vehicle accident of 8/27/97." (Pls' Reply Mem. Ex. A). At his deposition, following an additional examination of Foltz and a review of her MRI films, Dr. Arena testified, "I believe that the degenerative disc disease that we see on the MRI in the neck would be responsible for her symptomatology." (Pls' Mot. Ex. D p. 74). Given that plaintiff exhibited no physical limitations at the time of her initial visit, it is possible that the jury found this testimony more persuasive than Dr. Arena's initial observation that she sustained injuries as a result of the accident.
The evidence supports the jury's finding that defendant's negligence was not the proximate cause of plaintiff's injury. Foltz did not seek emergency medical care immediately following the collision, and instead drove herself home. Although she did visit her doctor later in the day following the collision, plaintiff did not seek further medical care for injuries allegedly suffered in the accident until six months later. (Pls' Mot. Ex. B at p. 92-93). She admitted in her deposition that she was not required to wear any braces, splinting or other medical devices following the accident. She was also not prescribed a special pillow or mattress. (Def.'s Opp'n Ex. E at p. 52-53). Plaintiff's doctor recommended she have an MRI on April 22, 1998, but she did not have the test performed until two months later, on June 24, 1998. (Pls' Mot. Ex. B at p. 100). Physical therapy was suggested for plaintiff in July of 1998, but she did not attend a session until March of 1999. (Pls' Mot. Ex. B at p. 108). Moreover, in 1990, seven years prior to the accident, plaintiff's doctor requested an x-ray for C-spine arthritis, a degenerative condition, after Foltz complained of symptoms indicative of spinal inflammation, showing that her back problems may have existed before the collision. (Pls' Mot. Ex. B at p. 61).
The facts in this case are similar to those of Holland v. Zelnick, 478 A.2d 885 (Pa.Super. 1984). In Holland the plaintiff sued for injuries to her neck following a rear-end motor vehicle accident and the defense expert and plaintiff's expert disagreed as to the cause of the injury. As here, the plaintiff did not seek medical treatment immediately following the accident, went for long periods without seeking treatment for her alleged injuries, and was not required to wear a neck brace or other medical device. Id. at 887. On appeal from the trial court's denial of plaintiff's motion for a new trial, the court found "that the jury's verdict was not inconsistent nor against the weight of the evidence as the record fully supports the notion that defendant was negligent in bumping plaintiff's vehicle but that the collision did not cause plaintiff's injuries." Id. at 888. Similarly, the evidence in this case sustains a jury finding that defendant's negligence was not the proximate cause of plaintiff's injury.
In Bell v. Yates, No. 341 E.D. App. 1999 (Pa.Super. 2001), plaintiff moved for a new trial when the jury found that defendant was negligent and that her negligence was a substantial factor in plaintiff's harm but awarded no damages. The Superior Court affirmed the trial court's opinion, as "the jury could have found that while the automobile accident caused symptoms of appellant's [pre-existing] tumor to flare, the accident alone, which did minimal damage to the passenger side of appellant's automobile, did not cause appellant's subsequent pain because the tumor caused the pain." Id. The evidence in this case also sustains a jury finding that plaintiff's suffering was due to the aggravation of plaintiff's pre-existing degenerative disc disease rather than an injury caused by defendants negligence.
Plaintiffs also claim they were unfairly prejudiced when defendant's medical expert testified on matters not contained in his written reports including Foltz's MRI films, her EMG report, discogram report and the distinction between diffuse and point tenderness. Rule 26(a)(2) governs the mandatory disclosure of expert testimony and provides:
"this disclosure shall, with respect to a witness who was retained or specifically employed to provide expert testimony in the case . . . be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefore; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions. . . ."
Unless the trial court's determination to admit or exclude expert testimony is "manifestly erroneous," the determination should be upheld.Waldorf v. Shuta, 142 F.3d 601, 627 (3d Cir. 1998) citing Aloe Coal Co. v. Clark Equip. Co., 816 F.2d 110, 114 (3d Cir. 1987). The "Court of Appeals for the Third Circuit has been reluctant to approve the exclusion of testimony unless a party has (1) revealed previously undisclosed evidence when trial was either imminent or in progress, or (2) acted in bad faith." DiFlorio v. Nabisco Biscuit Co., No. CIV. A. 95-0089, 1995 WL 710592 at *2 (E.D.Pa. Nov. 13, 1995). Plaintiffs do not allege that defendant acted in bad faith. The question is whether Dr. Arena's testimony contained opinions that should have been included in his reports.
His trial testimony was presented by videotaped deposition.
Dr. Arena filed two reports prior to his deposition that fall within the scope of Rule 26, an initial medical evaluation and a follow up report. (Pls' Mot. Ex. D). Although the reports do not precisely define point and diffuse tenderness, page two of the initial medical evaluation refers to diffuse tenderness as one of Foltz's physical symptoms and refers to point tenderness as a symptom she does not exhibit. The report from her follow up visit also refers to tenderness as one of her symptoms. Page three of the initial evaluation includes information about the MRI report, EMG report, EMG nerve conduction study and discogram report conducted by other physicians in the course of plaintiff's medical care. The references to this information should have notified plaintiffs that Dr. Arena had access to the reports in developing his diagnosis and might refer to them in his testimony. Plaintiffs' argument that this evidence was undisclosed prior to the deposition is unpersuasive and they cannot argue that they were surprised by Dr. Arena's testimony. "[I]n this case as in most cases tried under the Federal Rules of Civil Procedure surprise is a poor reason to exclude expert testimony . . . when Rule 26(b)(4) makes it so easy to get pretrial discovery of the other side's expert evidence." Abernathy v. Superior Hardwoods, Inc., 704 F.2d 963, 969 (7th Cir. 1983).
Copies of the reports are not paginated but can be found at the end of Pls' Mot. Ex. D.
Although Dr. Arena's report refers to the MRI report, EMG report, EMG nerve conduction study and discogram report and contains a summary of each, he does not specifically state that he reviewed them.
In Stich v. United States, 730 F.2d 115, 118 (3d Cir. 1984), plaintiffs asked to inspect a potentially damaging article published by a government expert a week prior to his scheduled testimony. The Court of Appeals upheld the district court's refusal to allow the inspection, stating there was no abuse of discretion on the ground of unfair surprise because the plaintiff was aware of several articles written by the same expert relying on the same data set, the United States had not tried to conceal the article and the court was concerned that granting plaintiff's request would delay the trial. In Abernathy v. Superior Hardwoods, Inc., 704 F.2d 963 (7th Cir. 1983), defendant could not claim surprise as the reason to exclude medical testimony regarding an EMG test because it is "a standard diagnostic test for back injuries," and therefore the defendant's lead counsel "should not have been astounded to discover" that one had been administered to the plaintiff. Finally, in Lakeman v. Otis Elevator Co., 930 F.2d 1547, 1554, (11th Cir. 1991), the court held that the district court had not abused its discretion in admitting the testimony of two expert medical witnesses. Although the court agreed with the defendant that the plaintiff had "violated Rule 26(b)(4)(A) in failing to identify the substance of the opinions to which his witnesses were expected to testify," the court found that the defendant had suffered no prejudice as a result of the violation because defendant's counsel "was capable of cross-examining both doctors effectively."Lakeman, 930 F.2d at 1554.
Plaintiffs had adequate notice that Dr. Arena might testify as to the MRI film, discogram study, EMG study and diffuse vs. point tenderness. Although his reports might have been more inclusive in their "statement of all opinions to be expressed and the basis and reasons therefore," Fed.R.Civ.P. 26(a)(2)(B), they were sufficient to meet the goal of "achiev[ing] substantial justice." Tenbarge v. Ames Taping Tool Systems, Inc., 190 F.3d 862, 865 (8th Cir. 1999).
ORDER
AND NOW, this day of July, 2001, upon consideration of plaintiffs' motion for new trial and defendants' opposition thereto, it is hereby ORDERED that plaintiffs' motion is DENIED.