The opinion of the court was delivered by: Thomas M. Blewitt United States Magistrate Judge
(Magistrate Judge Blewitt)
Presently pending before this Court are two Motions in Limine of Defendant Lemoyne Sleeper Company, Inc. (Docs. 52 and 54).*fn1 Both Motions are ripe for disposition. Since the exhibits were numerous, upon request of the Court, counsel for Defendant submitted two notebooks containing hard copies of all documents, including the Motions in Limine, Briefs and Exhibits, filed relevant to each of Defendant's Motions on April 13, 2009.*fn2 The Court then heard oral argument, on the record, with respect to the Motions on April 30, 2009.
Initially, the Court notes that a Daubert Hearing*fn3 was not held since it was not specifically requested in Defendant's Motions in Limine and since it was unnecessary because the record, which included the trial deposition testimonies of Dr. Sullivan and Dr. Beck, as well as the Briefs of the parties (See Docs. 52A and 54A), was sufficient for the Court to make a proper determination. See Feit v. Great West Life and Annuity Ins. Co., 271 Fed. Appx. 246, 250, 253 -254 (3d Cir. 2008) ("it is within the discretion of the District Court to determine whether a hearing is necessary.") (citation omitted).*fn4
Since the District Court recently stated the factual background of this case in its November 20, 2008 Memorandum and Order, we quote it as follows:
Plaintiffs Antoine Gagnon and Christiane Peloquin are residents of Quebec, Canada. They bring this negligence suit for damages incurred on September 1, 2004, when Defendant's truck struck a third-party truck, then causing a second collision with Plaintiffs' vehicle while Plaintiffs were driving southbound along Interstate 81. After impact, Plaintiffs exited their vehicle to find that Defendant's driver, Mr. Hartmoyer, had died at the driver's wheel of his truck. Plaintiffs allegedly sustained multiple injuries and post-traumatic stress disorder ("PTSD") from the accident.
Since the accident, Plaintiff Peloquin has received $20,498 and Plaintiff Gagnon, $120,409, from the Canadian Government's Sociét é de l'Assurance Automobile du Quebec (SAAQ) for medical costs and lost wages. SAAQ has asserted subrogation liens against both Plaintiffs for any recovery they receive in this action. Plaintiffs seek damages to compensate them for PTSD, medical expenses, pain and suffering, and lost wages.
2008 WL 5061677, *1 (M.D. Pa.).
In its November 20, 2008 Memorandum and Order, the District Court denied Defendant's Doc. 16 Motion in limine to preclude Plaintiffs from submitting evidence relating to PTSD caused by the sight of Mr. Hartmoyer's (an employee truck driver of Defendant) dead body. The District Court stated, "The Court finds that Plaintiffs' observation of Mr. Hartmoyer's corpse directly resulted from the physical impact of the accident and will allow evidence regarding the emotional impact of seeing his corpse and as well as Dr. Beck's testimony that the sight contributed to Plaintiffs' PTSD." Id. at *2.
Jurisdiction of this Court is based on diversity pursuant to 28 U.S.C. § 1332(a). See Feit v. Great West Life and Annuity Ins. Co., 271 Fed. Appx. 246, 251 (3d Cir. 2008). The parties have not consented to proceed at trial before the undersigned pursuant to 28 U.S.C. § 636(c).
Doc. 52 Motion in Limine of Defendant to Preclude Testimony of Plaintiffs' Expert, Dr. James D. Sullivan and Doc. 54 Motion in Limine of Defendant to Preclude Testimony of Plaintiffs' Expert, Dr. Philip R. Beck In Keller v. Feasterville Family Health Care Center, 557 F. Supp. 2d 671, 675 (E.D. Pa. 2008), the Court stated:
"an experts's testimony is admissible so long as the process or technique used in formulating the opinion is reliable," Pineda, 520 F.3d at 247 (citing Paoli II, 35 F.3d at 742), and the expert's principles and methods are reliably applied to the facts of the case, Fed.R.Evid. 702 (advisory committee notes). The "expert's opinions must be based on the methods and procedures of science, rather than on subjective belief or unsupported speculation." Paoli II, 35 F.3d at 742 (citations and internal quotations omitted). Thus, "the expert must have 'good grounds' for his or her belief." Id. (quoting Daubert, 509 U.S. at 590, 113 S.Ct. 2786).
The Keller Court also stated:
Ultimately, the purpose of the reliability requirement "is to make certain an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the field." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). As such, the "focus must be solely on principles and methodology, not on the conclusions they generate." Paoli II, 35 F.3d at 744. I must examine the expert's conclusions to determine whether they reliably follow from the facts known to the expert and the methodology used. Heller v. Shaw Industries, Inc., 167 F.3d 146, 153 (3d Cir.1999). "A court may conclude that there is simply too great a gap between the data and the opinion proffered." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). "While a litigant has to make more than a prima facie showing that his expert's methodology is reliable ... 'the evidentiary requirement of reliability is lower than the merits standard of correctness.' " Pineda, 520 F.3d at 247 (quoting Paoli II, 35 F.3d at 744). I have significant latitude both in deciding "how to test an expert's reliability" and in deciding "whether or not the expert's relevant testimony is reliable." Kumho, 526 U.S. at 152, 119 S.Ct. 1167. The " 'inquiry envisioned by Rule 702 is ... a flexible one.' " Pineda, 520 F.3d at 248 (quoting Daubert, 509 U.S. at 594, 113 S.Ct. 2786).
If an expert's testimony rests on "good grounds ... it should be tested by the adversary process-competing expert testimony and active cross-examination-rather than excluded from jurors' scrutiny for fear that they will not grasp its complexities or satisfactorily weigh its inadequacies." United States v. Mitchell, 365 F.3d 215, 244 (3d Cir.2004); Robinson, 2007 WL 2571447, at *5. "A party confronted with an adverse expert witness who has sufficient, though perhaps not overwhelming, facts and assumptions as the basis for his opinion can highlight those weaknesses through effective cross-examination." Mitchell, 365 F.3d at 244 (quoting Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 414 (3d Cir.2002)). Vigorous cross-examination, as Professor Wigmore noted, is "beyond any doubt the greatest engine ever invented for discovery of truth." Watkins v. Sowders, 449 U.S. 341, 349 n. 4, 101 S.Ct. 654, 66 L.Ed.2d 549 (1981) (citing 5 J. Wigmore, Evidence § 1367, p. 32 (J. Chadbourn rev. 1974)); see also Fed.R.Evid. 702 (advisory committee notes) (citing Daubert, 509 U.S. at 595, 113 S.Ct. 2786).
Finally, "[i]n addition to the "good grounds" requirement, in a diversity case such as this, state rules on the degree of certainty required of an expert's opinion apply. In Pennsylvania, a doctor can [offer] an opinion [only] if he or she can do so with a reasonable degree of medical certainty." Heller, 167 F.3d at 153 n. 4 (citing Paoli II, 35 F.3d at 750-52)." Id.
Dr. Sullivan is the expert orthopaedic surgeon expert witness proffered by Plaintiffs for trial. He has issued an expert report and he has been deposed, in Quebec, for trial on January 13, 2009. (Doc. 52, Ex. A). He speaks, reads and understands both French and English.*fn5 Dr. Sullivan was not a treating physician of either Plaintiff. Rather, he was retained only as an expert medical witness for purposes of trial.
Defendant has objected to the testimony of Dr. Sullivan and it seeks to preclude his entire trial deposition testimony from being heard by the jury. Alternatively, Defendant seeks to preclude portions of Dr. Sullivan's trial deposition testimony it deems inadmissible under FRE 703 and 803(6). (Doc. 52).*fn6
At oral argument, Defendant contended that Dr. Sullivan's testimony (i.e. his January 13, 2009 trial deposition testimony, Doc. 52A-1) was almost verbatim from the reports of Plaintiffs' treating physicians, and that Dr. Sullivan was merely parroting the opinions of Plaintiffs' treating physicians. Defendant's counsel stated that when he tried to question Dr. Sullivan about the bases of his opinions, the doctor continually relied upon the uncertified and unauthenticated records of Plaintiffs' treating physicians. Thus, Defendant's counsel argued that since Dr. Sullivan was relying only on the uncertified and unauthenticated records of Plaintiffs' treating physicians and the opinions of the treating physicians contained therein, records which, according to Defendant, would not be admissible at trial under the hearsay business exception found at FRE 803(6), the doctor's entire testimony should be precluded. Defendant's counsel stated that Plaintiffs' expert doctor could not testify about the opinions of the Plaintiffs' treating physicians contained in their records since these records were not admissible by themselves. Defendant's counsel also argued that Dr. Sullivan (as well as Dr. Beck) could not testify to the opinions and diagnoses of Plaintiffs' treating physicians since these opinions and diagnoses contained in unauthenticated hospital records and physician records were inadmissible under FRE 803(6). Defendant's counsel stated that since Plaintiffs have decided to offer non-treating doctors, instead of their treating doctors, as experts, Plaintiffs' hospital and treating physician records are not admissible because they were not authenticated.
While Defendant's counsel agreed with the Court that under FRE 703, Dr. Sullivan could rely upon hearsay documents, if they are the type of documents normally (or reasonably) relied upon by a doctor to form an opinion, Defendant's counsel stated that Dr. Sullivan's testimony must be based on sufficient facts and data, and he cannot disclose inadmissible evidence to the jury. (Doc. 52, pp. 10-11). Defendant's counsel stated that in our case, Dr. Sullivan was given only the unauthenticated medical records of Plaintiffs' treating physicians to review and that he admitted that he was not given other necessary data such as Dr. Beck's report, photos of the accident scene and the vehicles involved, police reports, the deposition transcript of truck driver Moore (who was driving directly behind Plaintiffs' truck), and the accident reconstruction reports (both Plaintiffs' and Defendant's). (See Doc. 52, ¶ 7. and Doc. 52A-1, NT 37-38). Thus, Defendant's counsel argued that Dr. Sullivan did not have enough information to form an expert opinion and that his opinions were only based on the opinions of Plaintiffs' treating physicians and that he was only parroting the inadmissible opinions of Plaintiffs' treating physicians. Defendant's counsel contended that Dr. Sullivan did not have sufficient information to form any expert opinion regarding causation of Plaintiffs' alleged injuries. Defendant's counsel stated that the facts and data upon which Dr. Sullivan exclusively relied were the hospital records and the records of Plaintiffs' treating physicians, and counsel stated that these records were not admissible since they were not authenticated.
Moreover, Defendant's counsel argued that a physician expert witness must testify to a reasonable degree of medical certainty, i.e. the appropriate legal standard utilized in federal courts and in Pennsylvania courts. See Keller, supra. Defendant's counsel stated that Dr. Sullivan did not know the applicable legal standard required for an expert opinion in United States Courts. Defendant's counsel cited to Griffin v. Univ. of Pitts. Medical Center-Braddock Hosp., 950 A. 2d 996 (Pa. Super. 2008). (Doc. 52, ¶ 39.). Defendant's counsel stated that when he asked Dr. Sullivan what was the reasonable degree of medical certainty standard and what this standard meant to him, Dr. Sullivan replied, respectively, "more than 50%" and "something you can be sure of more than one half of the time." Defendant's counsel stated that Griffin held that an expert cannot testify based on a standard of "more than 50%," and he stated that this was precisely what Dr. Sullivan did. Defendant's counsel stated that based on Griffin, both of Dr. Sullivan's responses were insufficient, and Dr. Sullivan should be precluded from offering an opinion at trial since he cannot do so with a reasonable degree of medical certainty.
Specifically, Dr. Sullivan testified as follows with respect to his opinions of Plaintiff Gagnon: [Defendant's counsel]
Q: He [Plaintiffs' counsel] asked you if your [Dr. Sullivan's] opinion is based upon reasonable medical certainty.
Q: What do you understand "reasonable medical ...