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Zawicki v. Armstrong

United States District Court, M.D. Pennsylvania

December 8, 2017

LEONARD ZAWICKI, Plaintiff
v.
MERWIN ARMSTRONG, JOEL THOMAS BARNEY, individually and d/b/a BARNEY TRUCKING and BARNEY TRUCKING, Defendants

          MEMORANDUM

          JAMES M. MUNLEY, JUDGE UNITED STATES DISTRICT COURT.

         Before 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.

         Background[1]

         On 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.

         Plaintiff 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. (Id.)

         At the 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.

         I. Plaintiff's motions in limine

         Plaintiff 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 turn.

         A. Dr. Grob (Doc. 26)

         Robert 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.

         Rule 26 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.” Fed.R.Civ.P. 37(e).

         Plaintiff 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.

         Before 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. 55-11).

         Based 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.

         B. Preclude evidence that any of plaintiff's medical treatment before September 2, 2016 is not causally related to the crash (Doc. 28)

         The 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.

         Defendants 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.

         C. Prior car accidents

         Plaintiff 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 “yes”. (Id.)

         Plaintiff 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, ...


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