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Stephen K. Bieber and Karen Bieber v. David J. Nace and Eastern Industries

March 6, 2012

STEPHEN K. BIEBER AND KAREN BIEBER, PLAINTIFFS
v.
DAVID J. NACE AND EASTERN INDUSTRIES, INC., DEFENDANTS



The opinion of the court was delivered by: (Judge Conner)

MEMORANDUM

Presently before the court are four motions in limine (Docs. 75, 77, 79, 88) to preclude evidence and testimony at the trial in the above-captioned matter set to commence tomorrow, Wednesday, March 7, 2012. Defendant Eastern Industries, Inc. ("EII") filed three of the four motions, (see Docs. 75, 77, 79),*fn1 and plaintiffs Stephen and Karen Bieber ("the Biebers") filed the fourth motion. (Doc. 88). The final brief on these issues was filed at 2:55 p.m. yesterday. For the reasons that follow, the court will grant in part and deny in part the motions.

I. Background

The Biebers bring this diversity action against David Nace ("Nace") and EII, stemming from a June 2, 2008, motor vehicle accident. Mr. Bieber alleges that, on June 2, 2008, on Route 274 outside of Elliotsburg in Perry County, road construction workers for EII negligently and prematurely removed warning signs of a construction zone for approaching traffic and failed to yield the right of way to traffic when driving a construction truck out onto the highway. Mr. Bieber claims that the workers' negligent conduct combined with Nace's negligent operation of his motor vehicle caused Nace to swerve into oncoming traffic and strike Mr. Bieber, who was riding a motorcycle. Mr. Bieber alleges that, as a result of the accident, he sustained serious permanent injuries including the amputation of his left leg. EII claims that Nace was the sole cause of the accident.

On February 21, 2012, EII filed motions in limine to preclude portions of the trial testimony of plaintiffs' experts Edward A. Perez, M.D. and Francis Camillo, M.D. (Docs. 77, 79), as well as a motion in limine to preclude any reference that EII employees put flags on temporary road construction signs after the June 2, 2008, accident at issue in this case. (Doc. 75). On February 29, 2012, per court order, the Biebers filed briefs in opposition to EII's motions, and in addition, filed their own motion in limine to preclude any reference by defendants to (1) the Pennsylvania Fair Share Act, (2) the risks inherent to motorcycling and (3) proximate causation as noted by EII's expert Joseph P. Tarris. (Doc. 88). The motions have been briefed and are ripe for disposition.

II. Discussion

A. EII's Motions in Limine

The court will first address EII's motions to preclude portions of the trial testimony of Edward A. Perez, M.D. ("Dr. Perez") and Francis Camillo, M.D ("Dr. Camillo"). (Docs. 77, 79). EII contends that, in contravention of Federal Rule of Civil Procedure 26(a)(2)(B) and 26(e), the Biebers failed to disclose prior to the trial depositions of Dr. Perez and Dr. Camillo, that Mr. Bieber was being considered for implantation of a spinal cord stimulator and that Mr. Bieber suffered from chronic pain. This information stems from a December 15, 2011, office note of Dr. Camillo. EII asserts that it is prejudiced by counsel's failure to provide the office note prior to the deposition because it prevented EII from preparing cross-examination on the issues. EII thus moves to preclude all testimony from Dr. Camillo and Dr. Perez on the issues of a spinal cord stimulator and chronic pain.

Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure sets forth the requirements of an expert witness' written report. An expert report must contain a complete statement of, and the basis and reasons for, all opinions the expert is to express, all data and information considered by the expert in forming the opinions, and any exhibits to be used to summarize or support the opinions expressed. FED. R. CIV. P. 26(a)(2)(B)(i)-(iii). Counsel has a duty to supplement the information in the report and the information given during the expert's deposition whenever there are any additions or changes to the information, no later than the time the parties' pretrial disclosures are due. FED. R. CIV. P. 26(e). When a party fails to supplement the information, as required in Rule 26(a) and (e), "the party is not allowed to use that information . . . to supply evidence . . . at a trial, unless the failure was substantially justified or is harmless." FED. R. CIV. P. 37(c)(1). In determining whether the exclusion of evidence is appropriate, the court must consider: (1) prejudice or surprise to the party against whom the evidence would be admitted; (2) ability of that party to cure the prejudice; (3) the extent to which the orderly and efficient trial of the case or other cases before the court would be disrupted by allowing the evidence; and (4) the bad faith or willfulness of the party failing to comply. Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 148 (3d Cir. 2000) (citing Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 719 (3d Cir. 1997)).

The Biebers contend that they complied with their duty to supplement the information in their experts' reports and depositions under Rule 26(e). Counsel for the Biebers avers that he received Mr. Bieber's updated medical records from Dr. Camillo's office on January 3, 2012-the day of the depositions of Dr. Camillo and Dr. Perez-and that he provided the records to counsel for EII before the depositions began. (Doc. 91, at 2; Doc. 92, at 2-3). Among the records was the December 15 office note concerning Mr. Bieber's visit approximately two weeks prior, in which Dr. Camillo noted Mr. Bieber's chronic back pain and discussed Mr. Bieber's candidacy for a pain stimulator. (See Doc. 79-2, at 35). The Biebers contend that Mr. Bieber's medical treatment and prognosis have evolved throughout this litigation, and it was well-known and expected that Mr. Bieber's medical care would continue to evolve until the time of trial. (Doc. 91, at 2-4; Doc. 92, at 3-5). Thus, the new recommendation that Mr. Bieber consider a spinal cord stimulator, they contend, is simply the next step in Mr. Bieber's continuing treatment.*fn2 Finally, the Biebers assert that EII cannot demonstrate any cognizable prejudice from Dr. Camillo's and Dr. Perez's testimony on a spinal cord stimulator and chronic pain, stemming from the December 15, 2011 office note. (Doc. 91, at 5; Doc. 92, at 5).*fn3

The court finds that the Biebers satisfied their duty to supplement and that EII will not be prejudiced by the testimony of Dr. Camillo and Dr. Perez concerning the spinal cord stimulator. Upon receiving the updated medical records, including the December 15 office note, counsel for the Biebers promptly provided the records to counsel for EII. Both parties received the record on the same day, the day of the trial depositions, and the record concerned a very recent event: a doctor's appointment from a mere two and one half weeks prior. The court finds no basis for exclusion here. To the extent that EII was surprised by the testimony regarding the spinal cord stimulator, the prejudice is minimal. It is no surprise to either party that Mr. Bieber will require continued treatment and therapy. (See Doc. 79-2, at 39 (stating that Mr. Bieber "will need to participate in physical therapy throughout his life time as well as receive various injections. He may even require surgery if he gets other fractures or develops more severe kyphosis")); Kiss v. Kmart Corp., No. Civ. A. 97-7090, 2001 WL 568974, at *6 (E.D. Pa. May 22, 2001) (rejecting plaintiff's argument that she suffered prejudice by the admission of testimony not contained in experts' original reports, and stating that "the testimony was clearly within the scope of the subject matter on which the experts opined and within their expertise. It is fundamental that any treatment of an alleged injury is within the scope of expert testimony regarding the injury"). Further, EII may consult with its expert regarding the spinal cord stimulator and address the issue at trial. The orderly and efficient trial of the case will not be disrupted by admitting the testimony of Dr. Camillo and Dr. Perez regarding the spinal cord stimulator as they were already slated to testify about Mr. Bieber's treatment and condition. Finally, the court can discern no delay, willfulness or bad faith on the part of the Biebers with regard to disclosing the December 15 office note; counsel for each of the parties received the records on the same day. EII's motion in limine to preclude the testimony of Dr. Camillo and Dr. Perez concerning the spinal cord stimulator will be denied.

EII's motion in limine will also be denied with respect to Dr. Camillo's testimony on Mr. Bieber's chronic back pain. Although the first time the word "chronic" is used to describe Mr. Bieber's back pain is in the December 15, 2011 office note, Dr. Camillo's May 2011 report clearly stated that "Mr. Bieber continues to have pain in his back. . . . I think that Mr. Bieber although he has done well, will probably always have some pain from his back from these fractures. He will probably need therapy, continue with the injections." (Doc. 79-2, at 39). The medical definitions of "chronic" are: "a health-related state, lasting a long time," "exposure, prolonged or long-term, sometimes meaning also low intensity," and a condition persisting 3 months or longer." STEDMAN'S MEDICAL DICTIONARY 376 (28th ed. 2006). Dr. Camillo's December 15 office note in which he refers to Mr. Bieber's back pain as chronic-by any definition of chronic-is consistent with Dr. Camillo's May 2011 report that Mr. Bieber will always have some back pain. The court will therefore permit the jury to hear the testimony.

EII further moves to preclude the redirect examination of Dr. Camillo, alleging that it exceeds the scope of cross-examination and is repetitive of direct examination. (Doc. 79 ¶ 17). EII claims that its cross-exam of Dr. Camillo was retrospective, focusing on the basis for Dr. Camillo's opinion on Mr. Bieber's back pain and his opinion in his May 18, 2011, report. EII contends that plaintiffs' redirect was prospective, focusing on the possibility that Mr. Bieber will need surgery in the future. (Id. ¶ 19). The Biebers counter that redirect of Dr. Camillo focused on the very report that counsel for EII referred to on cross-examination, and that all the questions focused on the post-accident condition of Mr. Bieber, which was the essence of counsel's cross-examination. (Doc. 92, at 12-14).

Generally, federal courts limit the scope of redirect examination to the subject matter of the cross-examination. Marks v. Marina Dist. Dev. Co., LLC, 213 Fed. App'x 147, 152 (3d Cir. 2007) (citing United States v. Riggi, 951 F.2d 1368, 1375 (3d Cir. 1971)). However, the scope of a redirect examination is within the district court's discretion. Id. (citing Government of Virgin Islands v. Martinez, 847 F.2d 125, 130 (3d Cir. 1988)).

A review of the transcript reveals that counsel for EII focused his cross-examination of Dr. Camillo on three points: (1) Dr. Camillo's attribution of Mr. Bieber's back pain to the June 2008 accident, (2) that all Mr. Bieber's spinal fractures sustained from the accident have healed or "united," and (3) Dr. Camillo's opinion in his May 2011 report that Mr. Bieber has done well but will probably always have some back pain. (See Doc. 79-2, at 18-19). Counsel for the Biebers began redirect examination by focusing Dr. Camillo on his May 2011 report, specifically the paragraph in the report preceding his opinion about Mr. Bieber's progress, in which Dr. Camillo stated that Mr. Bieber may need surgery in the future. (Id. at 19). Redirect continued to focus on the potential need for back surgery depending on if or how Mr. Bieber's back condition and pain progressed in the future. (Id. at 19-21). Although admittedly a close call, the court finds the redirect to be within the scope of cross-examination. Cross-examination refers to Mr. Bieber's post-accident condition and redirect refers to the potential need for future surgical treatment if the post-accident condition alters or worsens. The court will exercise its discretion and permit the jury to hear the redirect examination of Dr. Camillo. EII's motion in limine to preclude the redirect is therefore denied.

Finally, in EII's third motion in limine, EII moves to preclude any reference to EII employees placing flags on temporary road construction signs after the June 2, 2008 accident. EII asserts that reference to such conduct is irrelevant to the instant action and inadmissible as a ...


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