Opinion
Civil No. 2:02-CV-161TC
April 20, 2004
ORDER
This matter is before the court on the Defendants Shauna Mackey's and Michelle McLaughlin's ("the Utah Defendants") Motion to Exclude Lay Witness Opinions, Testimony and Exhibits, and Defendant Chris Bertram's Motion in Limine to Exclude any Testimony Regarding Increased Seizures or Decreased Cognitive Ability of the Plaintiff.
For the reasons discussed below, the court grants the motions.
Discussion
The factual background of this lawsuit has been recounted in previous orders and will not be repeated here except when necessary.
The Defendants contend that the evidence Plaintiff Tyler Tweed will seek to admit at trial from lay witnesses (his wife and parents)-that following the July 7, 2000 incident, Mr. Tweed has suffered an increase in the number of and severity of his seizures and related cognitive difficulties-is inadmissible. According to the Defendants, through this lay testimony (and documentary evidence proposed to be admitted through these witnesses) Mr. Tweed is seeking to circumvent the court's July 28, 2003 Order. In that Order, the court concluded that Mr. Tweed's proposed expert, Dr. Mark Spitz, could not testify that it was his opinion that the July 7, 2000 incident was the cause of the apparent worsening of Mr. Tweed's seizure disorder. (July 28, 2003, Hearing Tr. at 104-107.) Mr. Tweed argues that because he does not intend to have his lay witnesses express an opinion regarding the cause of Mr. Tweed's medical problems, but testify only regarding their personal observations (presumably, the witnesses would testify that Mr. Tweed has had more frequent and more severe seizures since the incident), this testimony is admissible. Further, Mr. Tweed maintains that Dr. Spitz should be allowed to express his expert opinion that the changes in Mr. Tweed's seizure condition are not the normal progression of the disease, Mr. Tweed also argues that Dr. Spitz can properly give his opinion that Mr. Tweed's cognitive abilities have suffered since the incident.
In sum, Mr. Tweed contends that the challenged evidence is admissible because the witnesses will testify only regarding their personal observations of the marked change in Mr. Tweed's condition following the incident. The necessary "medical link" between the incident and Mr. Tweed's increased seizure activity would come from the testimony of Dr. Spitz, who would give his opinion that the change in Mr. Tweed's seizure disorder "is highly unusual and does not fit the pattern of the natural progression of epilepsy. The jury can conclude from the evidence that the beating caused plaintiff's change in condition." (Pl.'s Supp. Mem. in Supp. of Motion to Admit Test. Pursuant to Rule 702 and in Opp. to Def.s' Mot. in Limine at 2.)
But there is no question that even though Mr. Tweed's lay witnesses would not actually express their opinion that Mr. Tweed's medical condition was caused by the incident, their testimony is being offered to show a causal connection between the incident and Mr. Tweed's claim that his medical condition was aggravated by the blows he allegedly received during the incident. Therefore, this proposed testimony is not simply a matter of a witness testifying about his or her personal observations, as Mr. Tweed argues. Because their testimony would be used to establish the causation link between the incident and Mr. Tweed's increase in seizures, the court must decide whether it is proper to allow the jury to hear this evidence with only Dr. Spitz's testimony to give some medical context to the evidence.
The court has examined cases from several jurisdictions and concludes that the rule expressed several years ago by the Tenth Circuit inFranklin v. Shelton, 250 F.2d 92 (10th Cir. 1957), is still the controlling law. The Franklin Court stated:
It is uniformly held that where injuries complained of are of such character as to require skilled and professional persons to determine the cause and extent thereof, they must be proved by the testimony of medical experts, but, that a lay witness is competent to testify concerning those physical injuries and conditions which are susceptible to observation by an ordinary person.Franklin, 250 F.2d at 97.
The plaintiffs in Franklin, members of the Shelton family, were injured in an automobile accident in Oklahoma. A jury had found in favor of the plaintiffs and awarded them a large verdict. One of the issues raised by the defendant on appeal was whether the trial court committed error when it allowed one of the plaintiffs, Venera Shelton, to testify regarding the physical injuries suffered by various family members. The Tenth Circuit held that most of Mrs. Shelton's testimony was admissible, evidence such as "scars, bumps and obvious physical impairments suffered by her children from the accident."Id. 96. But the court held that Mrs. Shelton's testimony that since the accident she was having vision problems and "certain female disorders" should not have been admitted. Id. 98. The court explained that "[t]he conditions complained of were of a nature requiring competent medical testimony to establish their cause, and their cause could not by laymen be definitely attributed to the accident absent expert medical testimony to that effect." Id.
In Beard v. K-Mart, 12 P.3d 1015 (Utah Ct.App. 2000), the Utah Court of Appeals held that the plaintiff had failed to establish that the defendant's negligence was the cause of her damages. The court explained:
In this case, the question is not whether the accident at K-Mart caused Beard [the plaintiff] injury, but rather whether injuries sustained as a result of the accident at K-Mart required the neurological surgeries performed on Beard's neck and wrists. Beard was properly permitted to testify that the accident in the store caused pain and injury. The question as to whether such pain and injury resulted from the blow is within the common knowledge and experience of lay witnesses and could properly be submitted to the jury. What is missing in the evidence, however, is the link between the injuries suffered and the necessity of the surgeries. In Utah, in all but the most obvious cases, testimony of lay witnesses regarding the need for specific medical treatment is inadequate to the submit the issue to the jury. Certainly whether the need for complex neurological surgery was a result of the accident at K-Mart is not within the common experience of laypersons.Beard, 12 P.3d at 1019 (citations omitted). The court went on to explain that because the claimed injury involved "obscure medical factors which are beyond an ordinary lay persons's knowledge, necessitating speculation in making a finding, there must be expert testimony that the negligent act probably caused the injury."Id.
The court in DeSanto v. Rowan University, 224 F. Supp.2d 819 (D. N.J. 2002), was faced with the question whether in an action where the plaintiff alleged that his employer, Rowan University, had unlawfully discriminated against him on the basis of age, race, gender and national origin, plaintiff's proposed expert, Dr. F. Jeffrey Friedlin, should be allowed to testify regarding plaintiff's medical conditions. The court held initially that because plaintiffs had failed to identify Dr. Friedlin as an expert witness, he could not give an opinion regarding the causation of plaintiff's medical problems. DeSanto, 224 F. Supp.2d at 830. Significant to Mr. Tweed's contentions, the court also held that Dr. Friedlin could not testify as a fact witness regarding plaintiff's medical conditions. The court noted that a while treating physician, such as Dr. Friedlin, can ordinarily testify as a fact witness, in that case it would not be appropriate:
Therefore, it would be permissible for DeSanto [the plaintiff] to call Dr. Friedlin as a fact witness and to introduce the letter from Dr. Friedlin listing DeSanto's conditions. DeSanto, however, has failed to identify any qualified expert who can establish that Defendants' conduct proximately caused DeSanto's medical problems. Without such expert testimony to demonstrate the link between Defendant's conduct and DeSanto's medical condition, the mere fact of DeSanto's medical condition is not relevant and, may not be admitted into evidence.Id. (citations omitted).
Here, the court has previously held that Mr. Tweed's proposed expert on causation, Dr. Spitz, cannot give an expert opinion that the incident was the cause of Mr. Tweed's increased seizure activity. Therefore, Mr. Tweed finds himself in the same position as the plaintiffs in Desanto and Beard — he has no "qualified expert who can establish that Defendants' conduct proximately caused [Tweed's] medical problems." Accordingly, the testimony of Tweed's proposed witnesses who would testify regarding Mr. Tweed's increased seizure activity, his loss of cognitive ability, is not relevant and is not admissible. To allow witnesses simply to testify regarding their observations of increased seizures and loss of cognitive ability, without an expert to establish the causation link, would allow the jury to impermissibly speculate about causation. Similarly, the proposed testimony of Dr. Spitz that an increase in seizure activity is not the natural progression of the disease and that Mr. Tweed has suffered cognitive loss is not admissible because it is not relevant.
This ruling does not bar Mr. Tweed or his witnesses from testifying about injuries Mr. Tweed may have suffered that are clearly linked to the incident without need of expert testimony, such as bruises, cuts, or lost teeth. Nor does this ruling address the issue of whether Dr. Spitz can testify in rebuttal regarding the efficiency of tests, or lack thereof, used to determine whether Mr. Tweed had suffered a closed head injury.
For the above reasons, the Defendants' Motions are GRANTED.
SO ORDERED.