United States District Court, M.D. Pennsylvania
M. MUNLEY, JUDGE UNITED STATES DISTRICT COURT.
the court for disposition are motions in limine filed by the
plaintiff and the defendants. The parties have briefed their
respective positions, and the matter is ripe for disposition.
October 15, 2014, Plaintiff Leonard Zawicki suffered personal
injuries in an automobile accident. The accident occurred on
Interstate 81 in Dunmore, Pennsylvania. A commercial tractor
trailer operated by Defendant Merwin Armstrong struck
plaintiff's vehicle from behind. Defendant Armstrong
worked for Defendant Barney Trucking, which is owned and
operated by Defendant Joel Thomas Barney. The company is
headquartered in Tully, New York.
alleges that due to the accident he suffered significant
injuries to his neck, back, left arm, right foot and right
ankle. Additionally, he sustained a rotator cuff tear to his
left shoulder which required surgery. Plaintiff filed a
two-count complaint to recover damages from the defendants.
The complaint includes the following two causes of action:
Count I, negligence against Merwin Armstrong regarding his
operation of the vehicle; and Count II, negligent entrustment
against Joel Thomas Barney, individually and d/b/a Barney
Trucking and Barney Trucking. (Doc. 1, Compl.). Plaintiff
seeks compensatory damages as well as punitive damages.
conclusion of discovery, defendants moved for partial summary
judgment, which we denied. We scheduled a pretrial
conference, and in compliance with the court's rule, the
parties have filed several motions in limine and a motion to
bifurcate. We will address these motions seriatim
beginning with the plaintiff's motions in limine.
Plaintiff's motions in limine
has filed four motions in limine. He seeks to preclude the
following: the testimony of Robert Grob, D.O.; evidence of
medical treatment plaintiff received prior to September 2,
2016; evidence of prior car accidents; and medical reports of
Defendant Armstrong. The court will address each motion in
Dr. Grob (Doc. 26)
Grob, Doctor of Osteopathic Medicine, (hereinafter “Dr.
Grob”) examined plaintiff at the request of
plaintiff's workers' compensation carrier. He issued
a report regarding plaintiff's injuries and his ability
to return to work. Defendants intend to call Dr. Grob at
trial, and other defense experts in the case relied on Dr.
Grob's report. Plaintiff seeks to exclude Dr. Grob's
testimony on the basis that the defendants did not timely
reveal that Dr. Grob was to be a witness.
of the Federal Rules of Civil Procedure provides as follows:
“A party must, without awaiting a discovery request,
reveal its expert witnesses to the other parties.”
Fed.R.Civ.P. 26(a)(2)(A). The parties are also under the duty
to supplement these disclosures. Fed.R.Civ.P. 26(e). If a
party fails to make such a disclosure, then that party is not
allowed to use that witness at trial “unless the
failure was substantially justified or is harmless.”
argues that Dr. Grob should be precluded because defendant
did not disclose their intention to call him as a witness
until July 2017, nine months after discovery closed.
Additionally, the doctor's opinions are inadmissible
hearsay and allowing experts to rely on his opinion would be
improperly allowing in Dr. Grob's opinion. After a
careful review, we disagree with the plaintiff.
expert discovery closed, defendants produced Dr. Grob's
reports and other records - other experts reports- explicitly
referencing Dr. Grob. Defendants turned over this material in
in August 2016 and October 2016. (Doc. 55-4, Doc. 55-5).
Plaintiff cross-examined Dr. Grob (Doc. 55-10) and plaintiff
discussed Dr. Grob's findings with his own expert. (Doc.
upon all of this evidence, we find that defendants did not
attempt to conceal Dr. Grob or act in bad faith. It appears
that the defendants inadvertently failed to disclose the name
of Dr. Grob as a potential witness. Plaintiff has suffered no
prejudice from this failure and the failure to disclose was
harmless. Therefore, we will deny the motion in limine and
not preclude the defendants from using Dr. Grob's
testimony at trial.
Preclude evidence that any of plaintiff's medical
treatment before September 2, 2016 is not causally related to
the crash (Doc. 28)
defendants retained two medical examiners who offered
opinions on plaintiff's injuries. Neither opined that
plaintiff's injuries and medical bills were not causally
related to the crash at hand. Plaintiff's expert will
testify that his injuries and bills are causally related to
the crash. A defense expert examined plaintiff on September
2, 2016 and found him to be fully recovered as of that point.
Plaintiff argues that defendants do not have any expert
testimony regarding causation of the bills and injury before
September 2, 2016, thus no evidence suggesting otherwise
should be admitted.
argue that reports of their medical experts, Dr. Sexton and
Dr. Cohen, challenged the medical treatment rendered from the
date of the accident to September 2, 2017. Defendants opine
that plaintiff's motion in limine ignores the conclusions
of these witnesses. Without going into great detail, we note
that the defendants' brief cites to the expert reports
and the dates that various doctors found that the
plaintiff's injuries had healed. (Doc. 54-2, Defs'.
Br. at 1-3). Thus, we find that this issue is not one of
admission of evidence, but a matter of examination of the
witnesses, interpretation of the evidence, and argument to
the jury. Accordingly, the motion in limine will be denied.
Prior car accidents
had several car accidents prior to the one at issue. However,
he was uninjured in these crashes and received no medical
treatment due to them. In their interrogatories, the
defendants asked: “Aside from the accidents or
incidents mentioned above, have you been involved in any
other accidents or incidents in which you sustained damages
and/or injuries? If so, state the nature of the incident, the
place and date on which it occurred, the names and addresses
of all persons involved, the injuries and impairments
sustained by you and the Court term and number of any lawsuit
commenced as a result thereof.” (Doc. 56-1 at 2).
Plaintiff responded with “none that I recall.”
(Id.) At his deposition, one month later, defendants
asked: “Sir, have you ever been involved in any other
motor-vehicle accidents besides this one?”
(Id.) To this question, plaintiff indicated
argues that none of these other crashes should be admitted
because no evidence links them to plaintiff's injuries at
issue here. Defendant argues that the evidence should come in
to impeach the plaintiff and to establish that he is not
credible. A review of the questions, ...