Summary
treating physician can render opinion on diagnosis, prognosis and cause of injury because these matters are encompassed in the ordinary care of a patient
Summary of this case from Pittman v. Unified Gov't of Wyandotte Cnty.Opinion
No. 99-4191-SAC.
August 16, 2001.
MEMORANDUM AND ORDER
This case comes before the court on the defendant's motion for summary judgment (Dk. 44) and the defendant's motion in limine (Dk. 47). The plaintiff opposes both motions through the timely filing of memoranda in opposition. Having reviewed the matters submitted and researched the relevant law, the court denies both motions.
In its reply brief in support of summary judgment, Wal-Mart devotes four paragraphs to arguing that the plaintiff did not timely file an opposition. Having filed its motion on October 13, 2000, the defendant insists the plaintiff's opposition filed twenty-four days later on November 6, 2000, is untimely. Wal-Mart's arguments ignore that it mailed the summary judgment motion triggering the three-day mailing rule in Fed.R.Civ.P. 6(e) and that the twenty-third day fell on Sunday triggering the next day rule in Fed.R.Civ.P. 6(a). The court commends for the defense counsels' reading the following cases: Bastian v. United States Bureau of Prisons, 216 F.3d 1086, 2000 WL 825713, at *1 (10th Cir. Jun. 26, 2000) (Fed.R.Civ.P. 6(e) applies to D. Kan. R. 7.1(b) when motion served by mail); Miller v. Maddox, 51 F. Supp.2d 1176, 1179 (Fed.R.Civ.P. 6(a) and (e) apply to summary judgment responses). The court summarily rejects Wal-Mart's arguments on the timeliness of the plaintiff's opposition.
SUMMARY JUDGMENT MOTION
The plaintiff Linda Goeken took a 1997 Chevrolet Cargo Van to the defendant Wal-Mart Stores, Inc. ("Wal-Mart") for servicing. She was paged from the store and told that her windshield wipers needed replacing. Advising that a replacement set was in her van, Ms. Goeken entered the service bay area and climbed into the van to retrieve the wipers. As she climbed out of the van, Ms. Goeken tripped and fell on her backside. Ms. Goeken brings this suit alleging the defendant did not exercise reasonable care in protecting her from injury on its premises, in warning her about the dangers in the service area, in allowing her into this dangerous and hazardous area, in keeping the area free of hazardous conditions, and in supervising, instructing, training and enforcing its rules. She alleges permanent bodily injuries and seeks actual damages for past and future medical expenses, pain and suffering, and loss of consortium.
Relying on selective excerpts of Ms. Goeken's deposition, the defendant Wal-Mart seeks summary judgment arguing the plaintiff lacks competent evidence that an unsafe condition existed in the service area that caused her to fall. Specifically, Wal-Mart cites and attaches pages 33, 36, and 37 of Ms. Goeken's deposition testimony regarding what happened when she fell. The intervening pages of 34 and 35 are not attached to nor mentioned in the defendant's brief. Based on these excerpts chosen by Wal-Mart, it is argued that the plaintiff only knows that she stepped out of her van onto the ground, lost her balance, and fell backwards and that she wasn't paying attention to what she may have tripped over. Placing such testimony in the category of conjecture and speculation, the defendant seeks summary judgment pointing to what it believes is the uncontroverted testimony of Tim Cruise, the service technician, and Fred Meek, the service manager, that they observed no obstacle on the floor for the plaintiff to trip over.
In opposing summary judgment, the plaintiff attaches the other pages of her deposition testimony omitted from the defendant's attachments. On pages 34 and 35, Ms. Goeken denied falling over the running board of the van and described her fall as occurring when she "stepped out of that van and fell over whatever was on the floor." When defense counsel argumentatively asked Ms. Goeken whether in falling backwards she had seen what was on the floor, she answered that she "didn't notice what it was until [she] . . . got up." Ms. Goeken described the item as "some type of thing that came out from underneath my van that had little prongs on it." Tim Cruise testified that he did not inspect the area to determine what may have caused Ms. Goeken to fall. Cruise did testify that he believed the lifts were still under the van because it was practice not to pull them out until all work on a vehicle had been completed. Fred Meek testified that he had not seen Ms. Goeken fall but that he had inspected the area and saw nothing laying on the floor over which Ms. Goeken could have tripped.
Though Ms. Goeken's deposition testimony is ambiguous in certain respects, it is more than sufficient to a create a genuine issue of material fact that defeats summary judgment. This is not a case where a plaintiff's testimony as to the cause of her accident or fall is mere surmise or conjecture. Ms. Goeken plainly testified that she tripped over something and that upon sitting up from her fall she saw the item which caused her to trip. The defendant's motion for summary judgment is denied.
MOTION IN LIMINE
Anticipating that the plaintiff may ask her treating physicians to testify on matters that go beyond the scope of diagnosis, treatment and prognosis, the defendant files a motion in limine to preclude these physicians from testifying about the plaintiff's future medical damages and the future or present value of those damages. The defendant argues such opinion testimony would not be based upon the physicians' personal knowledge gained through their care and treatment of the plaintiff. The defendant also contends that such testimony would be impermissible as the plaintiff has not designated any of the treating physicians as expert witnesses nor made the necessary Rule 26 disclosures regarding their opinions.
As reflected in the advisory committee's notes, certain witnesses may testify in an expert capacity and not be subject to the Rule 26(a)(2) disclosure requirements:
The requirement of a written report in paragraph (2)(B), however, applies only to those experts who are retained or specially employed to provide such testimony in the case or whose duties as an employee of a party regularly involve the giving of such testimony. A treating physician, for example, can be deposed or called to testify at trial without any requirement for a written report.
Fed.R.Civ.P. 26 advisory committee's note (1993). Unlike persons specifically retained to testify as an expert, treating physicians become involved to treat, not testify. On the other hand, this does not mean that a party may avoid Rule 26 requirements by using a treating physician to testify on matters that go beyond the care and treatment of the party. Wreath v. United States, 161 F.R.D. 448, 450 (Kan. 1995). If a treating physician is to testify on matters not based on his or her observations made during the care and treatment of the party, then compliance with Rule 26(a)(2)(B) is necessary. Washington v. Arapahoe County Dept. of Social Services, 197 F.R.D. 439, 442 (Colo. 2000).
A court must focus its inquiry on the particular opinions to be offered, the basis of the physician's knowledge, and the manner in which that knowledge was acquired. It is well established that "[a] treating physician is not considered an expert witness if he or she testifies about observations based on personal knowledge, including the treatment of the party." Davoll v. Webb, 194 F.3d 1116, 1138 (10th Cir. 1999). "A treating physician's testimony, . . ., is based on the physician's personal knowledge of the examination, diagnosis and treatment of a patient, and not on information acquired from outside sources." Brundidge v. City of Buffalo, 79 F. Supp.2d 219, 224 (W.D.N.Y. 1999) (citations omitted). As to the subjects properly within a treating physician's opinion, courts have said:
"Treating physicians commonly consider the cause of any medical condition presented in a patient, the diagnosis, the prognosis and the extent of disability, if any, caused by the condition or injury. Opinions as to these matters are encompassed in the ordinary care of a patient and do not subject the treating physician to the report requirement of Rule 26(a)(2)(B)."Riddick v. Washington Hosp. Center, 183 F.R.D. 327, 330 (D.C. 1998) (quoting Shapardon v. West Beach Estates, 172 F.R.D. 415, 416-17 (Hawaii 1997); see Kirkland v. Union Pacific Railroad, 189 F.R.D. 604, 608 (Nev. 1999) ("treating physicians can appropriately have opinions as to the degree of injury, or the extent of disability in the future. The prognosis of the patient and what tasks a patient will be able to perform are legitimate opinions. . . .") Christopher W. Dyer, Note, Treating Physicians: Fact Witnesses or Retained Expert Witnesses in Disguise? Finding a Place for Treating Physician Opinions in the Iowa Discovery Rules, 48 Drake L. Rev. 719, 727-31 (2000) ("The majority of federal courts considering the issue of whether treating physicians are subject to reporting requirements when presented to provide opinion testimony on prognosis, causation, or standard of care, have concluded treating physicians are not subject to these requirements, so long as the opinions stem from treatment").
The plaintiff takes the position that her treating physicians may give opinion testimony based on their actual knowledge gained during the course of their care and treatment of the plaintiff that goes to "the course of future medical treatment and the cost of such future medical treatment." (Dk. 50, p. 3). The court agrees that a treating physician may testify to prognosis, the extent of present and future disability, and the need for future medical treatment. So long as based on the physician's personal knowledge gained from the care and treatment of the plaintiff, such opinions are appropriate without regard to the requirements of Rule 26(a)(2). As to the cost of such future medical treatment and its present or future value, opinions on these matters go beyond the facts and ordinary course of a treating physician's care and treatment of a party. The court sustains the defendant's motion in limine on this testimony.
IT IS THEREFORE ORDERED that the defendant's motion for summary judgment (Dk. 44) is denied;
IT IS FURTHER ORDERED that the defendant's motion in limine (Dk. 47) is denied in part and granted insofar as the plaintiff's treating physicians will not be permitted to testify to the cost of future medical treatment or to the present or future value of the future medical treatment.