Summary
recognizing that "treating physicians have routinely been permitted to testify to determinations that they made in the course of providing treatment regarding the cause of an injury and its severity"
Summary of this case from Perkins v. Origin Medsystems Inc.Opinion
00 Civ. 4595 (FM)
September 16, 2002
MEMORANDUM DECISION
I. Introduction
This is a diversity action brought by plaintiffs Nicola Santoro ("Santoro") and his wife, Mari Santoro (together, "Plaintiffs"), against Signature Construction, Inc. ("Signature") under Section 240(1) of the New York Labor Law, which imposes absolute liability on owners and contractors for workplace scaffold accidents. On December 19, 2001, Judge Laura Taylor Swain, to whom this case then was assigned, granted partial summary judgment against Signature on the issue of liability. Santoro v. 500 Mamaroneck Avenue Assocs., 2001 WL 1631401, at *6-*7 (S.D.N.Y. Dec. 19, 2001). Thereafter, the parties consented pursuant to 28 U.S.C. § 636 (c) to a trial before me on the sole remaining issue of damages. (Docket No. 39). That trial is presently scheduled to commence on October 7, 2002.
In anticipation of trial, Signature has moved in limine to preclude Santoro's treating physician, Dr. S. Javed Shahid, from testifying about the issue of causation because the doctor allegedly (1) failed to perform a "differential diagnosis" to exclude all other possible causes of Santoro's ailments; (2) relied on an incomplete and inaccurate medical history provided by Santoro; and (3) therefore does not meet the requirements of Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In their opposition papers, the Plaintiffs contend that this motion is untimely and frivolous, and they have cross-moved for "fees, costs and sanctions." (See Affidavit of Thomas K. Lindgren, Esq. ("Lindgren Aff."), sworn to on April 10, 2002, ¶ 2).
For the reasons stated below, the motion in limine and cross-motion both are denied.
II. Background
In her opinion, Judge Swain found that the evidence that Santoro had fallen from a ladder at his place of work on October 27, 1998 was undisputed. Santoro, 2001 WL 1631401, at *6. Judge Swain rejected Signature's contention that a triable issue as to whether the accident actually had occurred was raised by the fact that the accident was unwitnessed by any third parties, stating that Signature's assertions in that regard were mere speculation. Id. at *6-*7. The Judge also rejected Signature's contention that an issue of fact existed as to whether Santoro's injuries were proximately caused by the October 28, 1998 accident. She concluded, "on the basis of the uncontroverted evidentiary record, that the statute was violated and that the violation was, as a matter of law, the proximate cause of [Santoro's] injuries." Id. at *7. She did not indicate, however, nor did the parties' statements under Local Rule 56.1 address, what those injuries were.
B. Santoro's Injuries
On the date of his fall from the ladder, Santoro was taken to a clinic, where a gash on his forehead was stitched, his nose was x-rayed, and he was advised that he had twisted his ankle. (Santoro Dep. at 32-33). Although he asked that his buttocks also be examined, the clinic personnel advised him that additional x-rays were unnecessary. (Id.).
Thereafter, Santoro began to experience pain in his lower back. (Id. at 34). By early January 1999, Santoro consulted Dr. Shahid, who concluded that Santoro had a large piece of broken disk and a herniation at the L4-L5 level. (Shahid Dep. at 13). Shahid also diagnosed Santoro as having a degenerative disk at the L5-S1 level. (Id.). On January 13, 1999, Dr. Shahid performed surgery on Santoro, removing a portion of the herniated L4-L5 disk. (Id. at 16). A little over a month later, on February 27, 1999, Santoro underwent another operation to repair a tear in his dura, which was a complication resulting from the initial surgery. (Id. at 18-19).
Following these operations, Dr. Shahid saw Santoro periodically. (Id. at 20). In early 2001, Dr. Shahid ordered an MRI which indicated that Santoro's L4-L5 disk had herniated again. (Id. at 25). Initially, Dr. Shahid did not recommend another operation. (Id. at 34-35). Indeed, he noted on June 11, 2001, at his deposition, that Santoro had responded well to more conservative treatment. (Id.). Less than one year later, however, on April 22, 2002, Santoro underwent yet another back operation for the removal of the herniated disk at the L4-L5 level. (See Letter dated April 22, 2002 from Mr. Lindgren to the Court ("Lindgren Letter"), at 1). The trial, which was originally scheduled for April 29, 2002, therefore had to be postponed.
C. Dr. Shahid's Testimony
After completing medical school in Pakistan, Dr. Shahid had several internships in the New York City Area. (Shahid Dep. at 7). Since 1980, he has worked as a neurologist in Norwalk and Danbury, Connecticut. (Id. at 7-8). Dr. Shahid was board certified in neurological surgery in 1983 and is a member of several professional societies. (Id.).
At his deposition, Dr. Shahid described the injuries suffered by, and his treatment of, Santoro. Dr. Shahid testified that certain injuries to Santoro's L4-L5 disk were "causally related" to Santoro's work site accident. (Id. at 35). Dr. Shahid explained that Santoro had a degenerative disk condition prior to the accident, but suffered a herniation after that trauma. (Id. at 36). He testified that the L4-L5 disk that had herniated gradually began to extrude and cause severe leg pain. (Id.). As a result, Dr. Shahid performed a microdisectomy of the disk in January 1999 which appeared to be successful. (Id. at 15-17). In mid-February 1999, however, Santoro developed a lump on his back which necessitated a second surgery. (Lindgren Aff. Ex. 1 at 2).
As noted above, Santoro has also had surgery more recently to repair a re-herniation of the L4-L5 disk. It appears that Dr. Shahid will supplement his prior opinions at trial by testifying that the condition necessitating this recent surgery is also causally related to Santoro's October 1998 accident. (See Lindgren Letter at 1-2).
Dr. Shahid is also expected to testify about Santoro's ability to work after the accident. At his deposition, Dr. Shahid said that he had advised Santoro that he could no longer work in heavy construction and should obtain a more sedentary job. (Shahid Dep. at 22). He also testified that Santoro's condition is expected to be permanent. (Id. at 30-32).
III. Discussion
A. Effect of Judge Swain's Decision
In the penultimate paragraph of her decision granting Santoro's motion for partial summary judgment motion on the issue of liability, Judge Swain said: "The Court also finds, on the basis of the uncontroverted evidentiary record, that the statute was violated and the violation was, as a matter of law, the proximate cause of [Santoro's] injuries." Santoro, 2001 WL 1631401, at *7. This determination constitutes the law of this case. See, e.g., Marfia v. T.C. Ziraat Bankasi, 100 F.3d 243, 251 (2d Cir. 1996) (judge's ruling constitutes law of the case even after reassignment to second judge). The law of the case doctrine "posits that when a court decides a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983). The doctrine "is discretionary and does not limit a court's power to reconsider its own decisions prior to final judgment." Aramony v. United Way of America, 254 F.3d 403, 410 (2d Cir. 2001) (quoting In re Crysen/Montenay Energy Co., 226 F.3d 160, 165 n. 5 (2d Cir. 2000). Accordingly, a court may, in exceptional circumstances, reconsider its resolution of an issue that would otherwise be law of the case. Litton Sys., Inc. v. Honeywell, Inc., 238 F.3d 1376, 1380 (Fed. Cir. 2001). In general, however, courts "should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was `clearly erroneous and would work a manifest injustice.'" Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817, 108 S.Ct. 2166, 2178, 100 L.Ed.2d 811 (1988) (quoting Arizona, 460 U.S. at 618 n. 8, 103 S.Ct. at 1391 n. 8).
In this case, Signature has not shown any reason to set aside Judge Swain's ruling with respect to liability and causation. Accordingly, the jury will be instructed, as a matter of law, that Santoro fell from a ladder at the work site, and that Signature is liable for the injuries caused by that fall. Judge Swain's decision, however, does not specify what those injuries were. See Santoro, 2001 WL 1631401, at *1. At trial, Santoro consequently will have to convince a jury that his back problems are causally related to the accident. It appears that this is the evidentiary link that Dr. Shahid's testimony is intended to supply.
B. Admissibility of Dr. Shahid's Testimony
Dr. Shahid is not being called as an expert retained solely to provide trial testimony. Rather, he has been Santoro's treating physician for nearly four years, during which time he has operated on Santoro's back several times. As a treating physician, Dr. Shahid is not subject to Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, which requires the production of a report by any witness who is retained or specially employed to provide expert testimony in the case. See e.g., Zanowic v. Ashcroft, 2002 WL 373229 (S.D.N.Y. Mar. 8, 2002) (Pitman, Mag. J.).
As numerous cases in this Circuit and elsewhere recognize, a treating physician often forms an opinion as to the cause of an injury or the extent to which it will persist in the future based upon his examination of a patient. See, e.g., Mangla v. Univ. of Rochester, 168 F.R.D. 137, 139 (W.D.N.Y. 1996) (Feldman, Mag. J.) (forming such opinions is "a necessary part of the treatment of the patient"); Salas v. United States, 165 F.R.D. 31, 33 (W.D.N.Y. 1995) (Heckman, Mag. J.) ("As a general rule, a treating physician considers not just the plaintiff's diagnosis and prognosis, but also the cause of the plaintiff's injuries. . . . Accordingly, questioning . . . as to whether the injuries for which [the physician] treated the plaintiff can be causally related to the accident would appear to be within the scope of the patient's care and treatment."); Baker v. Taco Bell Corp., 163 F.R.D. 348, 349 (D. Colo. 1995) ("These opinions are a necessary part of the treatment of the patient.").
Recognizing this reality, even after Daubert, treating physicians have routinely been permitted to testify to determinations that they made in the course of providing treatment regarding the cause of an injury and its severity. See, e.g., Laski v. Bellwood, 132 F.3d 33 (6th Cir. 1997) (unpublished opinion) (concluding that trial court abused its discretion by not permitting treating physicians to testify about cause of plaintiff's back pain); Zanowic, 2002 WL 373229, at *2 (treating physician "can express an opinion as to `the cause of any medical condition presented in a patient, the diagnosis, the prognosis and the extent of the disability, if any, caused by the injury.'") (quoting Shapardon v. West Beach Estates, 172 F.R.D. 415, 416 (D. Haw. 1997)); Brown v. Best Foods, Division of CPC Intern., Inc., 169 F.R.D. 385, 387 (N.D. Ala. 1996) (treating physician may "state his opinions and inferences concerning the existence and cause of a diagnosed medical condition suffered by the plaintiff"). Cf. Dekerlegand v. Wal-Mart Stores, 2000 WL 1772651, at *1-*2 (E.D. La. Nov. 30, 2000) (Daubert analysis held inapplicable to factual testimony of plaintiff's treating physicians concerning controversial medical procedure).
The rules of the Sixth Circuit do not prohibit the citation of unpublished opinions. See 6th Cir.R. 28.
In its papers, Signature cites numerous reasons why a finder of fact should distrust Dr. Shahid's opinions, including his failure to perform a differential diagnosis or consider Santoro's full medical history. Such factors admittedly generate considerable doubt as to the correctness of Dr. Shahid's conclusions. Because Dr. Shahid is Santoro's treating physician, these potential shortcomings go to the weight to be accorded to his testimony, not to its admissibility. See Laski, supra.
Accordingly, Dr. Shahid will be permitted to testify at trial concerning any medical opinions that he formed during the course of his treatment with respect to Santoro's injuries, their cause, and the extent of Santoro's disability. Thereafter, Signature will have a full opportunity during cross examination to contest Dr. Shahid's exclusive reliance on Santoro's word as the basis for his conclusions. See, e.g., Herrick Co. v. Vetta Sports, Inc., No. 94 Civ. 905, 1998 WL 637468, at *3 (S.D.N.Y. Sept. 17, 1998) (Patterson, J.) (Rules 703 and 705 "place full burden of exploration of the facts and assumptions underlying the testimony of an expert witness squarely on the shoulders of opposing counsel's cross examination") (quoting Smith v. Ford Motor Co., 626 F.2d 784, 793 (10th Cir. 1980)).
C. Sanctions
The principal basis upon which Santoro seeks sanctions is that the discovery period in this action ended more than one year before Signature made its motion. (Santoro Mem. at 1-2). In fact, although Santoro's opposition papers make no mention of it, Judge Swain previously entered a scheduling order which required that all motions in limine be "served and filed by March 30, 2001, unless otherwise allowed by the Court for good cause shown." (Docket No. 8 at ¶ 4). After this case was reassigned tome, however, I entered an order on February 8, 2001, which required the parties to agree on a schedule for motions in limine, but further provided that any motion in limine must be served no later than April 8, 2002. (Docket No. 40). Santoro has not adduced any evidence that counsel subsequently agreed on a schedule. Signature's motion, which was filed on April 1, 2002, is therefore timely.
IV. Conclusion
Both Signature's motion in limine and Santoro's cross-motion for sanctions are denied. The trial of this action will commence on Monday, October 7, 2002, at 9:30 a.m., in Courtroom 11C. At the trial, Dr. Shahid will be permitted to testify about his course of treatment of Santoro and the opinions that he formed during the course of that treatment.
SO ORDERED.