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Wiseman v. Wal-Mart Stores, Inc.

United States District Court, D. Maryland

September 19, 2017

ELIZABETH WISEMAN Plaintiff,
v.
WAL-MART STORES, INC.. et al. Defendants.

          MEMORANDUM OPINION

          Stephanie A. Gallagher United States Magistrate Judge

         Plaintiff Elizabeth Wiseman ("Plaintiff) filed suit against Defendants Wal-Mart Stores, Inc. and Wal-Mart Stores East, LP (collectively, "Wal-Mart") for injuries she sustained after slipping and falling at a Wal-Mart Store in Owings Mills, Maryland. See [ECF No. 2]. Plaintiff seeks to recover damages, including medical expenses, relating to the accident. Id. Prior to the instant motion, Wal-Mart had filed a Motion in Limine seeking to exclude from evidence Plaintiffs proffered expert opinion testimony and related medical records and bills. See [ECF No. 25], In the resulting Memorandum Opinion, this Court denied Wal-Mart's request to exclude the expert opinion testimony of Dr. Chad Zooker, and granted Plaintiffs Motion for Leave to File Expert Witness Disclosure for Dr. Zooker as a hybrid fact/expert witness. See [ECF No. 35]. At the same time, this Court deferred the decision whether to exclude the testimony of Plaintiff s twelve (12) other treating physicians until the parties addressed "whether expert testimony is required as to a particular medical record or bill, and whether exclusion is warranted based on surprise and the importance of the evidence . . . ." [ECF No. 35, 8]. Accordingly, now pending before the Court is Wal-Mart's Supplement to its Motion in Limine to Exclude Plaintiffs Expert Opinion Testimony and Related Information Including Medical Records and Bills Pursuant to Fed.R.Civ.P. 37(C)(1), [ECF No. 38], Plaintiffs Opposition, [ECF No. 42], and Wal-Mart's Reply, [ECF No. 45].

         For the reasons set forth below, Wal-Mart's Motion in Limine is GRANTED in part and DENIED in part, and Plaintiffs Motion for Leave to File Expert Witness Disclosure as to the remaining twelve (12) treating physicians is DENIED.

         I. DISCUSSION

         At issue in the pending Motion is: (a) whether plaintiffs alleged injuries constitute a "complicated medical question" necessitating expert testimony; (b) the scope of Dr. Zooker's admissible testimony; and (c) whether Plaintiffs untimely Rule 26(a)(2) disclosure prevents the twelve (12) remaining treating physicians from testifying. Importantly, both parties failed to provide, as this Court requested, a specific breakdown for each "particular medical record or bill" analyzing "whether expert testimony is required . . . and whether exclusion is warranted based on surprise and the importance of the evidence . . . ." [ECF No. 35, 8]. Consequently, this Court lacks the facts necessary to rule on any particular record or bill, but finds that Dr. Zooker may testify to and introduce the records he reviewed during his actual treatment of Plaintiff, and the bills relating in some way to the services he performed.

         A. Plaintiffs Shoulder and Knee Injuries Constitute a "Complicated Medical Question" Requiring Expert Testimony.

         Maryland law requires expert testimony to prove causation between the injuries and alleged negligent act, as well as to establish the reasonableness and fairness of the medical bills as evidence of damages, when a "claim involves a 'complicated medical question' that 'falls within the province of medical experts[.]'" Galloway v. Home Concrete Const., 524 F.App'x 865, 870 (4th Cir. 2013) (citing Wilhelm v. State Traffic Safety Comm'n, 230 Md. 91, 185 A.2d 715, 719 (1962)). While establishing the presence of a "complicated medical question" requires a somewhat subjective fact-finding inquiry, Wilhelm specifies three (3) types of cases where a causal connection need not be established by expert testimony: (1) '"when the disability develops coincidentally with, or within a reasonable time after, the negligent act;" (2) ''where the causal connection is clearly apparent from the illness itself and the circumstances surrounding it;" or (3) "where the cause of the injury relates to matters of common experience, knowledge, or observation of laymen." Wilhelm, 230 Md. at 99.

         The Maryland Court of Special Appeals has stated that establishing "an alternative theory of causation may be the decisive factor that transforms a non-medically complicated question of causation, requiring no expert medical testimony, into a complicated medical question, requiring such testimony as a matter of law." Am. Airlines Corp. v. Stokes, 120 Md.App. 350, 363, 707 A.2d 412, 418-19 (1998). Relevant here, the Stokes Court noted that "reports submitted by medical experts suggesting alternative theories of causation [can be] decisive factors in creating a complicated medical question where one might not have existed" in their absence. Id. at 419.

         In addition, other jurisdictions have expressly held that personal injury claims involving multiple and/or preexisting and concurrent possible causes are medically complicated and require expert testimony "on the issue of causation." Baltimore v. B.F. Goodrich Co., 545 A.2d 1228, 1231 (D.C. 1988).[1] Expert testimony is necessary "'[t)o prevent the jury from engaging in speculation" as to whether and to what extent the allegedly unlawful acts at issue-as distinct from other potential factors-caused plaintiffs harm." Halcomb v. Woods, 610 F.Supp.2d 77, 85 (D.D.C. 2009) (quoting B.F. Goodrich Co., 545 A.2d at 1231).

         Plaintiff contends that her case falls within the first Wilhelm category because "Plaintiffs injuries developed immediately subsequent to the Occurrence." PL's Resp., [ECF No. 42, 7].

         Plaintiff explains that, almost immediately after the fall, she reported "markedly increased" shoulder and knee pain and that Dr. Jay "was concerned about a rotator cuff tear from the fall." PL's Resp., [ECF No. 42-4, 2-4]. Painting the full picture, however. Plaintiffs medical records demonstrate that she was experiencing shoulder pain "for about a year" prior to the Wal-Mart incident and had "multiple previous small injuries to the right knee . . .." Id. This, coupled with Dr. Stein's (Wal-Mart's expert) contention that Plaintiffs rotator cuff tear was '"indicative of a chronic degenerative tear' as opposed to a new injury resulting from the alleged" Wal-Mart incident prevents a clear finding (absent expert testimony) that Plaintiffs right knee and rotator cuff injuries "developed coincidentally" with the Wal-Mart fall. Def.'s Rep., [ECF No. 45, 3].

         For identical reasons, Plaintiffs prior injuries prevent the causal connection between the injuries and the fall at Wal-Mart from being "clearly apparent" or relating to "matters of common experience, knowledge, or observation of laymen." As Wal-Mart notes, Wilhelm categories are more readily applied when a Plaintiff sustains an injury that does not implicate preexisting issues which cloud causation. Def.'s Rep., [ECF No. 45, 5].[2] Thus, like in Wilhelm, while Plaintiffs facial swelling and "bruising on her right knee" fall within the common observation of a layman not requiring expert testimony, whether the rotator cuff tear was the result of "chronic degeneration, " as opposed to the Wal-Mart fall, does not. Def.'s Rep., [ECF No. 45, 6].

         Indeed, the facts and circumstances surrounding Plaintiffs injuries arc similar to Kraft v. Freedman, where the Maryland Court of Special Appeals required expert testimony to determine whether an automobile accident caused a recurrence of the plaintiffs ileitis disease. 15 Md.App. 187, 194, 289 A.2d 614, 618 (1972). In Kraft, the plaintiff was '-practically cured" of her ileitis prior to a car accident but, within four (4) months of the accident, the disease reappeared. Id. at 189. The Court held that because of "the nature of the disease of ileitis and the complicated medical question involved in determining whether its recurrence was brought about as a natural incident of the disease or from the accident, " Wilhelm required expert testimony. Id. at 194. Similarly, Plaintiffs rotator cuff tear may have developed naturally ...


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