United States District Court, D. Maryland
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE
three years ago, Plaintiff Colonel Casmere Taylor
("Plaintiff or "Colonel Taylor") initiated
this personal injury action against Defendants Will Dehsea
Berrian, Speciali2ed Transportation, Inc., and Ryder Truck
Rental, Inc. (collectively, "Defendants") for
injuries sustained in a collision between a tractor trailer
driven by Defendant Berrian and Plaintiffs vehicle. On
November 2, 2017, Defendants filed a Motion in
Limine (ECF No. 71) outlining several motions to exclude
testimony and categories of damages, most of which this Court
ruled on by letter order dated November 16,
2017. (ECF No. 77.) Currently pending before
this Court are Defendants' motions to exclude Plaintiffs
claims related to permanent or permanent partial disability
and lost wages and exclude evidence or testimony related to
Plaintiffs expert's visit with Plaintiff on February 20,
2017. The issues have been fully briefed, and this Court has
reviewed the parties' submissions. In addition, the
motions were discussed during a teleconference conducted off
the record on November 15, 2017. For the reasons that follow,
Defendants' motions to exclude Plaintiffs claims related
to permanent or permanent partial disability and lost wages
are GRANTED and Defendants' motion to exclude evidence or
testimony related to Plaintiffs expert's visit with
Plaintiff on February 20, 2017 is GRANTED.
Rule of Civil Procedure 26 (a)(1) (A) (iii) requires that a
party disclose "a computation of each category of
damages claimed by the disclosing party-who must also make
available . . . the documents or other evidentiary material
... on which each computation is based, including materials
based on the nature and extent of injuries suffered."
Fed.R.Civ.P. 26. Generally, disclosures under this Rule must
state "the types of damages that the party seeks, must
contain a specific computation of each category, and must
include documents to support the computations."
Mayor & City Council of Baltimore v. Priceline.com
Inc., No. MJG-08-3319, 2013 WL 4507942, at *11 (D. Md.
Aug. 22, 2013) (internal citations omitted). When a party
fails to meet the requirements of Rule 26, "the party is
not allowed to use that information or witness to supply
evidence ... at a trial, unless the failure was substantially
justified or is harmless." Fed.R.Civ.P. 37(c)(1). A
district court has broad discretion to exclude evidence under
Rule 37. Southern States Rack and Fixture, Inc. v.
Sherwin-Williams Co., 318 F.3d 592 (4th Or. 2003).
Motions to exclude categories of damages
Interrogatory Answer dated May 27, 2015, Plaintiff disclosed
the following categories of damages: past medical expenses,
permanent disability, pain and suffering/loss of quality of
life, future medical and related care, and total vehicle
damage. (ECF No. 72-1 at 8.) Notably, he did not disclose
damages for lost wages, economic loss, or loss of future
earnings. (Id.) In a response to one question,
however, Plaintiff did state that he had "lost time from
employment for medical treatment of migraines."
(Id. at 11.) On October 2, 2017, Plaintiff, through
counsel, subsequently alleged damages for permanent partial
disability and lost wages. (ECF No. 76 at 3.) Defendants move
to exclude both damages figures.
move to exclude damages for lost wages on three grounds,
arguing that such damages were not properly disclosed,
Plaintiff has not provided any calculations showing how he
reached the lost wages figure, and in essence Plaintiff is
"attempt[ing] to assert an economic loss claim poorly
disguised as a claim for lost wages." (Id. at
14-15). Defendants also move to exclude damages for permanent
or permanent partial disability on two grounds, arguing that
they are categories of damages only awarded in workers'
compensation cases, and to the extent Plaintiff is attempting
to make a claim for future earnings capacity or economic
loss, such damages were not properly disclosed or otherwise
supported by evidence disclosed during discovery. (ECF No.
71-1 at 14.) In Plaintiffs Response to Defendants'
Motion, he responds to both of Defendants' arguments with
the general statement that:
Regarding Plaintiffs claims for permanent disability and lost
wages, Defendants are aware of the type of damages being
sought, as they themselves acknowledge that these claims are
for economic loss and loss of future earnings capacity.
Plaintiff has disclosed its computation of this amount, as
well as Plaintiffs earnings records, medical records, and the
impairment rating upon which the amount is based.
(ECF No. 72 at 16.) Plaintiff claims he disclosed these
computations by directing this Court to a Supplemental Answer
to an Interrogatory dated June 2, 2015, whereby Plaintiff
disclosed the amounts he reported as earned income in his
Federal Income Tax Returns for the years 2011 through 2014.
(ECF No. 72-1 at 45, 46.) He further argues that
"Plaintiffs own testimony as to the impact of his
disabling impairments provides a sufficient factual basis for
the trier of fact to consider such damages." (ECF No. 72
record shows that Plaintiff has not met his obligations under
Federal Rule of Civil Procedure 26 to present claims to the
jury for lost wages or permanent or permanent partial
disability. When Plaintiff made his initial disclosures in
this case, there was no claim for lost wages. Directing this
Court to Plaintiffs response in 2015 concerning his earned
income is insufficient to show that he produced evidence
supporting this quantifiable category of damages. Further,
Defendants assert that they have not received calculations
such as time lost from work or salary/hourly wages, ECF No.
71-1 at 14, and Plaintiff provides no evidence that he did
disclose such evidence. There is therefore no evidence
supporting how Plaintiff reached his calculation for lost
wages. As to permanent or permanent partial disability
damages, these are categories of damages awarded in
workers' compensation cases, not personal injury cases.
Md. Code Ann., Lab. & Empl. tit. 9, Subt. 6, Pt. IV,
§§ 9-625-634; 33 U.S.C. §.908(c). Plaintiffs
claim that the Defendants "are aware of the type of
damages being sought, as they themselves acknowledge that
these claims are for economic loss and loss of future
earnings capacity" does not excuse Plaintiffs failure to
disclose the proper type of damages under Rule
Further, Plaintiff has not retained an economist or otherwise
provided Defendants with any other earning figures aside from
Plaintiffs reported earned income. Accordingly, Plaintiff
will be excluded from asking the jury to award Plaintiff
damages for lost wages or permanent or permanent partial
Motion to exclude February 20, 2017 report
Plaintiffs Response to Defendants' Motion, Plaintiff
provided two reports by proffered expert Lawrence L. Rubin,
M.D, one dated November 20, 2013 which assigns Plaintiff a
15% impairment rating and one dated February 20, 2017 which
assigns Plaintiff a 20% impairment rating. (ECF No. 72-1 at
41, 42.) The discovery deadline in this case was April 13,
2017. (See Fourth Revised Schedule Order, ECF No.
Defendants assert that the latter report was never disclosed
to counsel, and the 2017 report reveals a fax date stamp of
April 19, ...