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Wagner v. H.H. Knoebel Sons, Inc.

United States District Court, M.D. Pennsylvania

January 19, 2017

CHRISTINE WAGNER, Plaintiffs,
v.
H.H. KNOEBEL SONS, INC., KNOEBEL REALTY L.P., and KNOEBEL REALTY MANAGERS, LLC, Defendants.

          MEMORANDUM

          Matthew W. Brann United States District Judge

         Before the Court are the objections of Plaintiff and Defendants regarding certain questions and answers in the trial depositions of three witnesses. As explained below, certain objections will be sustained and portions of the depositions stricken, while other objections will be overruled.

         I. BACKGROUND

         On March 26, 2014, Plaintiffs Christine Wagner and Robert Wagner, her husband, filed a Complaint[1] against Defendants H.H. Knoebel Sons, Inc., Knoebel Realty L.P., Knoebel Realty Managers, LLC, and Knoebels Three Ponds, Inc. (“Defendants”).[2] Within this Complaint, Plaintiffs alleged both a negligence and loss of consortium claim against Defendants.[3]

         The instant dispute stems from a family visit to Knoebels Amusement Resort, in Elysburg, Northumberland County, Pennsylvania.[4] The Wagners, along with their three grandchildren, visited the Park on June 27, 2012.[5] While Ms. Wagner was walking on a path located between the Go-Karts and the Fandango rides, she suffered a fall after allegedly tripping over a tree root on the path.[6] As a result, Ms. Wagner sustained a right knee sprain with bone contusion, right knee joint effusion, bone edema of the anterolateral tibial plateau of the right knee, aggravation of a pre-existing asymptomatic arthritic condition of the right knee, a laceration, cellulitis, and infection of the laceration to the right knee, and various other abrasions to her arms and left hand.[7] Following the completion of discovery and the disposition of Defendants' Motion for Summary Judgment, the Court scheduled trial to commence on January 23, 2017.[8]

         At the upcoming trial, Plaintiff intends to use the videotaped depositions of medical expert Lawrence Wiesner, D.O., and Plaintiff's now deceased husband, Robert Wagner, in lieu of live testimony.[9] Defendants, in turn, will utilize the videotaped deposition of their medical expert David Rubenstein, M.D. in lieu of live testimony.[10] Objections to certain questions and answers were lodged during these depositions, and will be disposed of as follows.

         II. DISCUSSION

         On January 18, 2017, Plaintiff's counsel filed a letter with the Court in which both he and Defense counsel withdrew a number of objections raised during the three trial depositions. This opinion addresses the remaining unresolved objections.

         A. Deposition of Lawrence Wiesner, D.O.

         a. Defendants' Objections

         Defendants' first objection occurs at the beginning of Dr. Wiesner's deposition and concerns Dr. Wiesner's Addendum Report.[11] Defendants have filed a Motion in limine concerning the issue which the parties have since fully briefed. Because I am issuing a simultaneous Memorandum Opinion of this same date dispositive of this issue, I will not address it at length herein.

         Defendant's second objection occurs at page 51, line 23. This objection was lodged because the exhibit being discussed at that point was not listed in his report as one reviewed beforehand and thus was “outside the scope of the report.”[12] This objection is overruled. First, in response, Dr. Wiesner stated that, in the course of compiling a written report, he reviews “hundreds and hundreds of pages, ” and his list of documents reviewed only serves to “highlight the ones that are pertinent.”[13]Second, to extent that testimony concerning this document is outside the scope of his report, I note “testimony of an expert on matters within the expert's expertise but outside of the expert's report is not only permissible at trial, but the exclusion of such testimony may be reversible error.”[14]

         Defendants' third objection occurred during the following exchange between Michael Briechle, Esquire, counsel for Plaintiff, and Dr. Wiesner:

Q. Thank you. Have you formulated an opinion as to whether Mrs. Wagner has been capable of will be capable of returning to work as a result of the injuries she suffered on June 27, 2012?
A. Well, she was a nurse manager, and I had discussions with her that her job entailed her walking long distances in the hospital and up and down stairs and in and out of chairs. And she has told me she's unable to continue that - that job. She could probably do some other - other type jobs. But her job as the one she reported to me, she was unable to continue with.
Q. Okay. And do you continue to hold that opinion as of today?
Mr. Grego: Objection. That's not what the answer was and I'll just enter an objection on that basis.[15]

         While somewhat cryptic, this objection appears to suggest that Mr. Briechle's question in some way attempted to re-characterize Dr. Wiesner's prior answer or his report. To that end, the objection is overruled for two reasons. First, Mr. Briechle's answer does not appear to re-characterize or in any way summarize Dr. Wiesner's prior answer. Second, this conclusion appears to be the same as that presented in Dr. Wiesner's May 16, 2015 Report in which he stated “[t]his [injury] has restricted her in her ability to perform her duties as a nurse manager as this requires significant activity during the course of a workday.”[16]

         Defendants' final objection[17] occurred during Redirect Examination at page 126, line 2:

Q. Okay. And I don't believe the record of September 29, 2015, was reviewed with you and opposing counsel. Can you just turn to that date?
A. September -
Q. Um-hum.
A. -- of '15?
Q. September 29, 2015, yes.
A. Let's see.

         Mr. Grego: That wasn't reviewed. I'll object as outside of the scope of cross but go ahead.[18]

         This objection arose because the exhibit being discussed during that exchange was not listed in Dr. Wiesner's report as one reviewed beforehand and thus was outside the scope of the report. I will overrule this objection, and again note that the “testimony of an expert on matters within the expert's expertise but outside of the expert's report is not only permissible at trial, but the exclusion of such testimony may be reversible error.”[19]

         b. Plaintiff's Objections

         Plaintiff's remaining objections begin on page 114 and continue through page 115.[20] These objections relate to questions concerning Dr. Wiesner's knowledge of an October 18, 2012 motor vehicle accident involving Plaintiff, his review of records relating to her treatment for injuries sustained, and his knowledge of whether Mrs. Wagner missed work following this accident. Federal Rule of Evidence 401 provides that evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”[21] The United States Court of Appeals for the Third Circuit has noted, “Rule 401 does not raise a high standard.”[22] As these questions both relate to Dr. Wiesner's knowledge of treatment for a car accident which occurred following the June 27, 2012 incident, I find that they meet this low bar and are relevant as to both the persuasiveness and completeness of his report.

         A. Deposition of David Rubenstein, M.D.

         a. Plaintiff&# ...


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