Opinion
C.A. No. 09C-01-211 RRC.
Submitted: August 18, 2010.
Decided: August 30, 2010.
Upon Defendants' "Motion in Limine to Exclude [Expert Testimony of] John Postlethwaite, D.C."
GRANTED.Upon Defendants' "Motion in Limine to Exclude [Expert Testimony of] Dr. Tara Moore."
GRANTED.Upon Defendant's "Motion in Limine to Exclude Evidence of Plaintiff's Future Wage Claim."
GRANTED.Sophia Siddiqui, Esquire, Fox Rothschild LLP, Citizens Bank Center, Wilmington, Delaware.
James L. Griffith, Esquire, pro hac vice, Fox Rothschild LLP, Philadelphia, Pennsylvania, Attorneys for Plaintiffs.
Gilbert F. Shelsby, Jr., Esquire, Michael J. Logullo, Esquire, Shelsby Leoni, Stanton, Delaware, Attorney for Defendants.
Dear Counsel:
INTRODUCTION
This medical negligence action arises from a wisdom tooth extraction performed by Defendant, Bruce Fisher, D.M.D. Allegedly, during the extraction of Plaintiff's wisdom teeth, Dr. Fisher applied excessive force, thus causing (1) injury to Plaintiff's cervical spine (his neck) and (2) nerve damage within Plaintiff's mouth. Plaintiff has also brought an informed consent claim alleging that Dr. Fisher failed to inform him of all the risks necessary to make an informed decision on whether to undergo the medical procedure. Plaintiff asserts that he would not have undergone the medical procedure if he had been properly informed of the risks, and that he was injured as a result of the procedure.
Dkt 52. Jennifer Bell's only claim appears to be for a loss of consortium.
During the discovery period in this case, Plaintiff identified four expert witnesses to assist in proving medical negligence, causation, and resulting damages relating to his cervical spine injury. These witnesses were Dr. Postlethwaite, D.C., a chiropractor who would testify as to the causation of Plaintiff's neck injury; Dr. Tara Moore, a biomechanical engineer who would testify that Dr. Fisher used excessive force in removing Plaintiff's teeth; Maria Babinetz, a vocational rehabilitation expert who would testify that Plaintiff suffered lost future wages as a result of his injury; and Dr. Samuel Kursh, a specialist in economic damages, who calculated numerical values for the estimated damages. Defendant filed three motions in limine to exclude these expert witnesses.
The issue presented by the motion in limine relating to Dr. Postlethwaite's testimony is whether Dr. Postlethwaite may present an expert opinion on causation when he based that opinion on an erroneous medical history indicating that Plaintiff had no prior neck injury when, in fact, Plaintiff did have a history of prior neck pain that was not disclosed to Dr. Postlethwaite.
This Court holds that Dr. Postlethwaite may not give expert testimony in this case because his opinion lacks a proper factual foundation pursuant to D.R.E. 702.
Dr. Postlethwaite based his opinion on incomplete factual information and did not submit a supplementary report (apparently because he was not asked to) when factual information became available demonstrating that Plaintiff had recently experienced prior "chronic" neck pain. Accordingly, Defendants' "Motion in Limine to Exclude [Expert Testimony of] John Postlethwaite, D.C." is GRANTED.
Although Defendants have also argued that Dr. Postlethwaite was not qualified to render an expert opinion, this Court need not reach that issue.
FACTS
Dr. Postlethwaite was retained as an expert witness by Plaintiff to establish the cause of Plaintiff's alleged cervical injury. Dr. Postlethwaite performed a diagnostic test known as a "digital motion x-ray" and concluded that the x-ray showed evidence of "severe trauma usually involving a whiplash type of injury resulting from a violent motor vehicle accident." Dr. Postlethwaite provided Plaintiff's counsel with an expert report dated January 13, 2010 stating that "[g]iven the history of no problems prior to the procedure and Mr. Bell's sudden onset of symptoms following the dental procedure, it is my opinion, to a reasonable degree of medical certainty, that the dental procedure was the source of the excessive force. . . ."
At oral argument, Defendants' counsel stated that Defendants did not challenge the scientific reliability of this test even though counsel stated that it was a "new" test. See Trans. of Aug. 18 oral arg. at 16-17.
Op. Br. Ex. B.
At his deposition on February 18, 2010, Dr. Postlethwaite stated that Plaintiff did not have a history of prior problems with his cervical spine. Dr. Postlethwaite stated that this conclusion was based on what Plaintiff told him and his review of the medical records that he had been provided.
[Mr. Shelsby]: And I assume your opinion that you believe that the injury is a result of the extraction is based on Mr. Bell telling you that he had no problems with his neck prior to the extraction, correct?
[Dr. Postlethwaite]: Yes. That — that — that's one of them. He mentioned he had — in his previous history, there — there was no reported injuries or traumatic instances that could have caused this or would have caused this. He came to me saying he went to the dentist to have his wisdom teeth pulled out, healthy, happy, and walked — and could barely walk out afterwards; and so I don't know what happened there.
I — I have to believe that the patient — and — and I believe in the — the — some of the other paperwork, I didn't see anywhere where anybody had documented that there was any sort of injury, unless you know of one . . .
Id. at Ex. C at 99-100.
Id.
Id.
Despite Dr. Postlethwaite's belief that Plaintiff had no prior problems involving his cervical spine, Defendant's counsel obtained medical records from Plaintiff's counsel on or about March 12, 2010 of a Dr. Richard Appleby and a Dr. Hobbs indicating that Plaintiff did in fact have some history of cervical problems. Dr. Appleby had treated Plaintiff in 1999 for a lacrosse injury and again in 2005 for a neck injury that Plaintiff had incurred from using a massage chair on high speed, followed by a day of running a tractor. More significantly, Dr. Hobbs treated Plaintiff on April 26, 2006 when Plaintiff was again experiencing neck and upper back pain. Plaintiff's alleged neck injury in this case occurred approximately nine months after his examination by Dr. Hobbs.
See Aug. 18 letter.
Pl. Resp. ¶ 6.
Id.
Dr. Hobbs's records showed that Plaintiff had previous complaints of serious neck and back pain. Dr. Hobbs listed Plaintiff's pain level as an "8" on a scale of 1-10. Dr. Hobbs also wrote in his notes that Plaintiff suffered from "chronic cervical pain." Despite Dr. Hobbs's assessment of the severity of Plaintiff's pain, the records establish that Plaintiff only treated with Dr. Hobbs one time and did not return for continued treatment.
Op. Br. Ex. E.
Id.
Trans. of Aug. 18 oral arg. at 21.
After receiving the new documents obtained by Plaintiff's counsel from Dr. Hobbs and Dr. Appleby, Defendants' counsel did not re-depose Dr. Postlethwaite. Dr. Postlethwaite was apparently not asked by Plaintiff's counsel to prepare a supplemental report, and he did not do so. The only supplemental record provided by Dr. Postlethwaite comes in the form of an affidavit filed on July 16 in connection with Plaintiff's response to Defendants' motion in limine. That affidavit simply states that upon his review of the records of both Dr. Hobbs and Dr. Appleby, Dr. Postlethwaite did not change his opinion on causation. The affidavit states in pertinent part:
I do not recall specifically whether I reviewed the records of Dr. Hobbs and Dr. Appleby a the time that I drafted my original expert report. However, at the time of execution of this affidavit, I have reviewed those records, and they do not change the opinions expressed in my report.
Pl. Resp. at Ex. B at ¶ 3.
Pursuant to the trial scheduling order, Plaintiff's expert reports were due on January 15, 2010. The discovery cut-off deadline was May 9, 2010. The deadline to file motions in limine was June 8, 2009.
Dkt. 52.
Id.
Id.
Both parties agree that Dr. Postlethwaite was the only medical expert identified to testify about the causation of Plaintiff's alleged cervical neck injuries.
During a second oral argument, plaintiffs counsel, for the first time, argued that the Court should not decide these motions in limine until trial.
PARTIES' CONTENTIONS
Defendants argue that this Court must exclude the proposed testimony of Dr. Postlethwaite because Dr. Postlethwaite did not have a proper foundation when he gave his expert opinion. Defendant asserts that "[w]hen the expert's opinion is not based upon an understanding of the fundamental facts of the case . . . it can provide no assistance to the jury and such testimony must be excluded." Defendants contend that Plaintiff did have a recent prior history of cervical pain as evidenced from the records of Dr. Hobbs, and Dr. Postlethwaite's failure to evaluate such records and complaints establishes that the expert opinion lacks foundation. Finally, Defendants assert that this Court should not consider the affidavit provided in connection with this case because they say it is a "sham affidavit" and was produced after the discovery deadline.In response, Plaintiff argues that the records of Dr. Hobbs and Dr. Appleby do not indicate a prior "severe" condition necessary to evidence a lack of foundation. Plaintiff stresses that Dr. Hobbs only saw Plaintiff one time and Plaintiff did not return for continued treatment. Plaintiff concedes that Dr. Postlethwaite took a medical history of Plaintiff and that Plaintiff did not at that time disclose his prior cervical neck pain and his examinations by Drs. Hobbs and Appleby. Plaintiff asserts that "Dr. Postlethwaite did not ignore a severe pre-existing condition that would change and/or undermine his opinion." Plaintiff also submitted an affidavit from Dr. Postlethwaite demonstrating that a review of Dr. Hobbs's records would not, in fact, change Dr. Postlethwaite's opinion.
Pl. Resp. at ¶ 7-8.
Id. at ¶ 8.
Id. at 5.
Id. at ¶ 12.
Id. at Ex. B.
DISCUSSION
The issue presented by this motion in limine is whether Dr. Postlethwaite may present an expert opinion on causation when he based that opinion in part on an erroneous medical history indicating that Plaintiff had no prior neck injury when, in fact, Plaintiff did have some history of prior "chronic" neck pain."The party proffering an expert's opinion bears the burden of establishing its admissibility by a preponderance of the evidence." Pursuant to D.R.E. 702, an expert's opinion must be based upon "sufficient facts or data[.]"
Wilson v. James, 2010 WL 1107787, at * 2 (Del. Super.).
When an expert bases an opinion on erroneous or incomplete information, the opinion is not based on "sufficient facts or data" and must be excluded. Thus, in Perry v. Berkley, the Delaware Supreme Court affirmed this Court's decision to exclude an expert opinion when the expert based his opinion on the fact that the plaintiff did not have a prior history of back pain, when, in fact, the plaintiff did have such a history.
Perry v. Berkley, 996 A.2d 1262, 1269 (Del. 2010) (citing David H. Kaye, David E. Bernstein, and Jennifer L. Mnookin, The New Wigmore: Expert Evidence § 3.1 (2004)).
Perry, 996 A.2d at 1262.
In Perry, the plaintiff had retained an expert, who was not her treating physician, to testify concerning the causation of her injury. The expert issued an opinion stating:
Id. at 1265.
Given that [the plaintiff's] earlier problems were cervical and she had not had any complaints regarding her lumbar spine prior to the 2005 motor vehicle accident, in my opinion that trauma is causally related to the herniations seen thereafter. . . . [The plaintiff] does have permanent injuries to cervical and lumbar spines. The latter is entirely related to the December 2005 accident.
Id.
At his deposition, the expert in Perry testified that his knowledge about the plaintiff's medical condition "was based on the records in his possession at the time of his report and "`basically from what she ha[d] told [him].'" The expert testified that he was unaware of medical records establishing that the plaintiff had similar complaints of pain in the same region before her accident. The expert also testified that he was unaware that plaintiff was undergoing treatment for her injuries prior to the accident and had no knowledge that her treating physician had administered pain injections.
Id.
Id.
Id.
This Court subsequently precluded the plaintiff's expert on the grounds that the expert did not have sufficient facts to render an expert opinion. The Supreme Court affirmed and noted that "[t]he record in this case is unusual because [the plaintiff's] attorney never asked [the expert] for an updated opinion based upon [the plaintiff's] correct medical history. The record reflects [the expert] was never asked, either at his deposition or by way of a supplemental report, to render an expert opinion on causation based upon [the plaintiff's] pre-existing back condition and treatments for pain." The Supreme Court noted that the plaintiff's "prior medical history was pivotal to the issue of whether the car accident caused her back injuries." The Supreme Court held that the exclusion of the expert's opinion was proper because it was "based upon a completely incorrect case specific factual predicate."
Id. at 1266.
Id. at 1270.
Id. at 1271.
Id.
Here, this Court is confronted again with an expert opinion that is based on an inaccurate medical history. Dr. Postlethwaite specifically stated in his January 13, 2010 opinion that "[g]iven the history of no problems prior to the procedure and Mr. Bell's sudden onset of symptoms following the dental procedure, it is my opinion, to a reasonable degree of medical certainty, that the dental procedure was the source of the excessive force. . . ." This factual predicate is inaccurate because other medical records from Dr. Appleby and Dr. Hobbs (particularly those provided by Dr. Hobbs) show that Plaintiff did, in fact, suffer from "chronic cervical pain" as recently as nine months prior to his dental procedure.
Op. Br. Ex. B.
This Court finds the records of Dr. Hobbs more significant than the records of Dr. Appleby. Although both records do indicate prior neck pain, Dr. Hobbs's records were made closer to the time of Plaintiff's dental procedure and, notably, record "chronic cervical pain."
Plaintiff attempts to distinguish Perry because Plaintiff only treated once with Dr. Hobbs. Plaintiff asserts that Perry only applies to "severe" prior medical conditions requiring continued treatment, and that Plaintiff's one-time treatment with Dr. Hobbs was irrelevant to the diagnosis of Dr. Postlethwaite because the condition was not sufficiently severe.
Cf. Wright v. Clark, 2010 WL 2861383 (Del. Super.) (denying a motion in limine to exclude expert testimony on causation because the plaintiff was not undergoing simultaneous treatments and "[t]here [was] no apparent overlapping of medical conditions or areas of the body."). Wright is inapposite because, in the present case, Plaintiff had complained of a prior injury to the same area of the body (his neck).
Perry did not opine on the definition of a "severe" pre-existing condition. Although Perry noted that the plaintiff's medical history was "pivotal" to the decision, the Supreme Court did not expressly define which part of the plaintiff's medical history was "pivotal."
Despite Plaintiff's argument, this Court finds that, in this particular case, Plaintiff's prior cervical injury was, in fact, significant. Dr. Hobbs noted that Plaintiff suffered from "chronic cervical pain." Additionally, the pain was severe because Plaintiff described the pain as an "8" on a scale of 1-10. This Court does not find significant the fact that Plaintiff did not return to Dr. Hobbs for continued treatment. There are numerous reasons why a person may not wish to obtain continued medical treatment and this Court will not speculate as to the reason why Plaintiff did not continue treatment with Dr. Hobbs. Importantly, Plaintiff did not disclose his recent treatment with Dr. Hobbs for cervical neck pain to Dr. Postlethwaite.
Also significant to this Court's decision is that Plaintiff's counsel failed to obtain a supplementary expert report from Dr. Postlethwaite within the discovery period. Dr. Postlethwaite provided an expert opinion in January 2010. His deposition was taken in February 2010. The records from Dr. Hobbs and Dr. Appleby were not produced until about March 12, 2010. At that time, Plaintiff's counsel knew, or should have known, that Dr. Postlethwaite's expert opinion was potentially inaccurate because he had not reviewed all of Plaintiff's important medical records or known of Plaintiff's prior cervical pain. It would have been appropriate, at that time, for Plaintiff's counsel to have obtained a supplementary report from Dr. Postlethwaite stating that those records either did or did not change his opinion, with accompanying reasons. Plaintiff is the party at fault for (1) failing to have disclosed his recent prior cervical pain to Dr. Postlethwaite and (2) failing to have produced a supplemental report from Dr. Postlethwaite. Defendants then could have had the potential opportunity to re-depose Dr. Postlethwaite.
Plaintiff argues that Defendants' counsel is at fault for failing to question Dr. Postlethwaite about the medical records of Dr. Hobbs. This Court disagrees.
Trans. of Aug. 18 oral arg. at 24-25
The Court: Did[] the defendant have a duty to have raised the Appleby/Hobbs issues prior to the close of discovery?
Mr. Griffith: I believe they did, Your Honor . . . When you don't ask that specific question, and you then come up with records — and I'm not certain that the records . . . were not discovered until after Dr. Postlethwaite's deposition.
Defendants' counsel did not have the medical records of Dr. Hobbs at the time of Dr. Postlethwaite's deposition because those records were not provided until March. Additionally, it is Plaintiff's burden, as the party offering the expert opinion, to establish admissibility. Defendants, on their own initiative, had no duty to re-depose Dr. Postlethwaite concerning the records of Dr. Hobbs and Dr. Appleby. Plaintiff, as the party offering the expert opinion, had a responsibility to ensure that Dr. Postlethwaite's opinion was based on sufficient facts and data to be admissible and had a responsibility to update the expert report if it became clear that Dr. Postlethwaite may have premised his expert opinion on inaccurate or incomplete information.
Wilson v. James, 2010 WL 1107787, at * 2 (Del. Super.) (granting a motion in limine to exclude expert testimony because the expert was not qualified to testify about the applicable standard of care.).
Finally, this Court will not consider Dr. Postlethwaite's July 15, 2010 affidavit. First, the affidavit was produced outside of the discovery period. Second, the affidavit is conclusory and does not provide a basis as to why Dr. Postlethwaite's opinion had not changed. Third, this Court's necessary reliance on dates and deadlines in a trial scheduling order would be undermined if experts could submit affidavits with new, expanded or amended opinions as a part of the motion in limine briefing process, thereby potentially requiring vacation of the existing trial scheduling order, as would be the case here, and allow subsequent discovery far past the deadline for same. Allowing this affidavit would in part nullify Defendants' timely motion in limine. Plaintiff has not shown "good cause" to amend the trial scheduling order to allow a supplementary expert opinion to be produced more than two months after the discovery cut-off deadline.
See Drejka v. Hitchens Tire Serv. Inc., 2009 WL 1813761, at * 3 (Del. Super.) (stating that "[t]rial scheduling orders are one crucial means by which this [Court manages its own affairs.]).
Brewington-Carr v. University and Whist Club, 2009 WL 924533, at * 1 (Del. Super.) ("The standard for a motion to amend a scheduling order is set forth in Superior Court Civil Rule 16: `A schedule shall not be modified except by leave of the Court upon a showing of good cause.' To show `good cause,' a party must establish that he has made diligent efforts to meet the trial scheduling deadlines.").
For the reasons stated above, this Court holds that Dr. Postlethwaite's opinion is not based on sufficient facts or data pursuant to D.R.E. 702 and must be excluded. Defendant's motion in limine is GRANTED. IT IS SO ORDERED.
See Wright v. Clark, 2010 WL 2861383 (Del. Super.) (noting that plaintiffs' counsel should "(1) ensure their clients tell their doctors of prior medical issues, and, (2) most importantly, provide those prior records to their doctor witnesses and make sure their opinions factor in prior medical history, as appropriate . . . With Perry, the chances that these type of motions will be granted are great. . . .").
It follows that by granting Defendants' motion to exclude Dr. Postlethwaite, Defendants' two other motions in limine must also be granted. Dr. Postlethwaite is the only expert identified who would testify as to causation of Plaintiff's neck injuries. Dr. Moore is a biomechanical expert, who would testify about forces used in injuring Plaintiff's neck. Under Delaware law, a medical expert is required to testify about causation. See 18 Del. C. § 6852(e) (West 2010) ("No liability shall be based upon asserted negligence unless expert medical testimony is presented as to the alleged deviation from the applicable standard of care in the specific circumstances of the case and as to the causation of the alleged personal injury or death.") (emphasis added). Dr. Postlethwaite is an appropriate medical expert, but Dr. Moore is not. Dr. Moore's curriculum vitae establishes that she does not treat patients or have experience working in the medical field. Dr. Moore also provided an untimely affidavit in this case filed on July 16, 2010 that the Court will not consider. Her affidavit states:
I, Tara Moore, state under oath:
1. I am a biomechanical expert and I use case-specific information, engineering principles, and information from the scientific and biomechanical literature to determine the severity and mechanisms of injuries occurring in transportation, occupational and industrial accidents, injuries occurring in falls, and injuries to children and other scenarios.
2. I have more than ten years of experience in the area of human tolerance to mechanical loads, including traumatic and repetitive loading.
3. I am a Licensed Professional Engineer in Pennsylvania
4. I have read the foregoing motion and believe it is true and correct to the best of my information, knowledge, and belief.
Plaintiff's experts on the lost wages issue relied on the report formulated by Dr. Postlethwaite in calculating damages, including Dr. Postlethwaite's opinion that the extraction of the wisdom teeth caused the cervical injuries. Apparently, Dr. Postlethwaite is the only identified expert who placed a restriction of Plaintiff's ability to work. See Trans. of Aug. 26, 2010 teleconference. Because Plaintiff's lost wage claim is based in part on this restriction, and on the existence of cervical neck injuries, it follows that Plaintiff's lost wage claim must be excluded because Plaintiff's lost wages experts based their calculation on such a restriction.