United States District Court, W.D. Pennsylvania
ORDER ON DEFENDANTS' MOTION IN LIMINE (ECF NO.
RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE
Walmart Stores Inc., and Walmart Stores East, L.P.
(collectively, Walmart) has filed a motion in limine (ECF No.
66) to preclude evidence and/or testimony regarding the
Plaintiffs future medical treatment and future medical
expenses. The standard for admissibility of evidence of
future medical expenses is well-established under
An item of damage claimed by a plaintiff can properly be
submitted to the jury only where the burden of establishing
damages by proper testimony has been met. Cohen v. Albert
Einstein Medical Center, 405 Pa. Super. Ct. 392, 410,
592 A.2d 720, 729 (1991). In the context of a claim for
future medical expenses, the movant must prove, by expert
testimony, not only that future medical expenses will be
incurred, but also the reasonable estimated cost of such
services. Id. See also, Berman v. Philadelphia
Board of Education, 310 Pa. Super. Ct. 153, 161-65, 456
A.2d 545, 550-51 (1983). Because the estimated cost of future
medical services is not within the layperson's general
knowledge, the requirement of such testimony eliminates the
prospect that the jury's award will be speculative.
Cohen, 405 Pa. Super. Ct. at 410-11, 592 A.2d at
Ridolfl v. State Farm Mut. Auto. Ins. Co., 2017 WL
3198006, at *2-3 (M.D. Pa. July 27, 2017) (quoting
Mendralla v. Weaver Corp., 703 A.2d 480, 485 (Pa.
Super. Ct. 1997)).
present case, the Plaintiff has proffered the report and
deposition for use at trial of Louis T. Olegario, M.D. in
support of her claim for future medical expenses. The future
expenses claimed by the Plaintiff relate to a radiofrequency
ablation procedure, otherwise known as a
"rhizotomy." This surgical procedure involves the
severing of nerve roots in the spinal cord in an effort to
relieve chronic pain. Plaintiff has undergone radiofrequency
ablations in the past. Dr. Olegario testified at deposition
that patients like Plaintiff "usually" require the
procedure to be repeated annually (approximately every twelve
months) because the affected nerve or nerves typically grow
back in nine months to a year. (ECF No. 73, p. 13). Dr.
Olegario went on to testify regarding the estimated cost of
repeat radiofrequency ablations. (Id.). On
cross-examination, Defendant's counsel elicited Dr.
Olegario's admission that more than two years have passed
since Plaintiff had her last ablation and that some patients
do not require that the procedure be repeated or at least not
repeated at the same frequency as a typical patient.
(Id. at p.15). Defendant also notes that Dr.
Olegario did not testify regarding how far into the future
Plaintiff is likely to require ablations to be performed.
Based upon Dr. Olegario's admissions and the omission of
a projected duration for repeat procedures, Walmart asserts
that his testimony and all evidence concerning future medical
procedures and expenses should be excluded at trial.
Court is vested with broad inherent authority to manage its
cases, which carries with it the discretion and authority to
rule on motions in limine prior to trial. See Luce v.
United States, 469 U.S. 38, 41 n.4 (1984); In re
Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238,
260 (3d Cir. 1983) (rev'don other grounds sub nom.,
Matsushita Elec. Indus, Co. v. Zenith Radio Corp., 475
U.S. 574 (1986)). Courts may exercise this discretion in
order to ensure that juries are not exposed to unfairly
prejudicial, confusing or irrelevant evidence. United
States v. Romano, 849 F.2d 812, 815 (3d Cir. 1988).
Further, Courts may also do so in order to "narrow the
evidentiary issues for trial and to eliminate unnecessary
trial interruptions." Bradley v. Pittsburgh Bd. of
Educ, 913 F.2d 1064, 1069 (3d Cir. 1990) (citation
Court may grant a motion in limine to exclude evidence where
the proffered evidence is inadmissible under the Federal
Rules of Evidence. "Preliminary evidentiary rulings
under Rule 403 of the Federal Rules of Evidence are subject
to the trial judge's discretion and are therefore
reviewed only for abuse of discretion." Abrams v.
Lightolier Inc., 50 F.3d 1204, 1213 (3d Cir. 1995)
(citations omitted); see also Bernardsville Bd. of Educ.
v. J.H., 42 F.3d 149, 161 (3d Cir. 1994) (reviewing in
limine rulings for abuse of discretion). In exercising this
discretion, the court is to be "guided by certain basic
principles," including the principle that the
"Federal Rules of Evidence can aptly be characterized as
evidentiary rules of inclusion, which are designed to broadly
permit fact-finders to consider pertinent factual information
while searching for the truth." Ridolfi, 2017
WL 3198006, at *2-3. This inclusionary policy is reflected in
various rules, including Rule 401, which defines what is
relevant in an expansive fashion, stating:
"Relevant evidence" means evidence having 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.
Fed. R. Evid. 401. "Under [Rule] 401, 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.'" Frank v. County of
Hudson, 924 F.Supp. 620, 626 (D.N.J. 1996) (citing
Spain v. Gallegos, 26 F.3d 439, 452 (3d Cir. 1994))
(quotations omitted). Similarly, Rule 402 generally defines
the admissibility of relevant evidence broadly, providing
All relevant evidence is admissible, except as otherwise
provided by the Constitution of the United States, by Act of
Congress, by these rules, or by other rules prescribed by the
Supreme Court pursuant to statutory authority, Evidence which
is not relevant is not admissible.
Fed. R. Evid. 402.
same time, the trial judge, as "gatekeeper," must
ensure that expert testimony is relevant and reliable.
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
589 (1993). Daubert and its progeny have established
a three-prong test for the admissibility of expert testimony.
The proponent of the testimony must demonstrate: (1) the
expert's qualifications; (2) the reliability of the
proffered testimony; and (3) the fitness of the testimony,
that is, the connection between the opinions and the issues
in the case. In re Paoli R.R. Yard PCB Litig., 35
F.3d 717, 741-43 (3d Cir. 1994). Here, Walmart argues that
the proffered evidence is too speculative to allow its
admission. In other words, based upon the evidence, Walmart
contends the jury can only guess at an award of damages for
future medical expenses. In this regard, Walmart challenges
the reliability of the proposed expert testimony upon which
the Plaintiff bases her claim to future medical expenses.
considered "reliable," the expert must have good
grounds for his opinions. The focus is on methodology and not
on the conclusions. Credibility decisions arise after
admissibility has been determined. Kannankeril v.
Terminix Int'l, Inc., 128 F.3d 802, 806 (3d
Cir.1997). Consequently, even though there may be better
grounds or there are some flaws in the methods used, expert
testimony is admissible if the grounds are reliable. All that
is required is a "fit" between the grounds and the
conclusions in the case. Oddi v. Ford Motor Co., 234
F.3d 136, 146 (3d Cir.2000).
the methodology underlying Dr. Olegario's expert
testimony is quite simple. He opines that the nerves
subjected to the ablation procedure usually grow back or
regenerate between nine and twelve months following the
procedure, thus, requiring the procedure to be repeated
annually. His opinion is based upon his experience with other
patients upon whom he has perform ablations. He did not
examine the Plaintiff, but did review certain of her medical
records. In reviewing the sufficiency of this testimony, the
Court is mindful that under Pennsylvania law, "[e]xpert
testimony is not required to predict the exact result
anticipated, but more than a mere possibility or fear of
future consequences must be shown." Fretts v.
Pavetti, 282 Pa. Super. Ct. 166, 175, 422 A.2d 881, 885
(1980) (citing Baccare v. Mennella, 246 Pa. Super.
Ct. 53, 369 A.2d 806 (1976)). Here, however, the Court finds
that the absence of any evidence in the record concerning how
long into the future the Plaintiff can be expected to undergo
ablations would require the jury to guess in rendering any
award of damages for such future medical expenses. While Dr.
Olegario testified regarding the rate at which nerves
regenerate following the ablation procedure and the timing of
future procedures, he offered no testimony concerning how
long into the future the Plaintiff could reasonably be
expected to undergo such procedures. His testimony and the
record in general are silent concerning the efficacy or
advisability of the procedure over time, and the record is
also insufficient to allow the Court or the jury to assume
that the procedure can be performed for the balance of the
Plaintiffs life. Further, even if the record supported such
an assumption, the record includes no evidence concerning the