United States District Court, D. Maryland
CHRISTIAN B. CHAPMAN, Plaintiff,
MINA MANUHEHRI, Defendant.
Stephanie A. Gallagher United States Magistrate Judge.
an auto-pedestrian accident, Plaintiff Christian B. Chapman
filed this lawsuit against Defendant Mina Manuhehri, alleging
negligence. ECF 4. On May 8, 2019, Defendant filed a Motion
in Limine to exclude Plaintiff's designated expert, Dr.
Thomas Garzillo, from testifying regarding Plaintiff's
future medical expense and future lost wage claims. ECF 83.
After the May 13, 2019 Pretrial Conference, the Court
indicated its intent to hold a Daubert hearing as to
the reliability and sufficiency of Dr. Garzillo's
testimony. ECF 88. On May 17, 2019, Defendant filed another
Motion in Limine to Exclude Opinion Testimony of Thomas
Garzillo. ECF 98. On May 20, 2019, the Court held a
Daubert hearing to determine the admissibility of
Dr. Garzillo's testimony. ECF 104. After the hearing, the
Court granted Defendant's May 8, 2019 Motion in Limine,
ECF 83, excluding Dr. Garzillo from testifying at trial as an
expert witness. This Opinion explains the basis for that
ruling. Also, for the reasons stated below, the Court denies
as untimely Defendant's May 17, 2019 Motion to Exclude
Opinion Testimony of Thomas Garzillo, ECF 98.
case arises from an auto-pedestrian accident on February 8,
2017 in Montgomery Village, Maryland, where Defendant's
vehicle struck Plaintiff, a pedestrian. ECF 4. On November
28, 2018, Defendant admitted that she was negligent and that
her negligence was the sole cause of the accident. ECF 66.
The case proceeded to trial on the issue of damages only.
26, 2018, the case was referred to this Court for all
proceedings, by consent of the parties. ECF 54, 57, 63. The
Court held a telephone status conference on December 21,
2018, setting April 25, 2019 as the deadline for submitting
the pretrial order, motions in limine, proposed voir dire
questions, jury instructions, and special verdict forms, and
confirming a May 13, 2019 Pretrial Conference date and a May
20, 2019 trial date. ECF 69. Plaintiff submitted his pretrial
documents two weeks before the deadline, on April 11, 2019.
ECF 70, 71, 72, 73. On April 18, 2019, Plaintiff requested a
conference, seeking a continuance of the May 20, 2019 trial
date because Plaintiff's counsel had not had “the
opportunity to fully investigate the medical nature of
[Plaintiff's] ongoing left knee pain.” ECF 74
¶¶ 11, 12. To determine whether a continuance of
the May 20, 2019 trial date was necessary, the Court held a
status conference on April 24, 2019. ECF 75. As a result of
that conference, the Court directed Plaintiff's counsel
to provide a written status update within 48 hours of
Plaintiff's upcoming appointment with his new physician
the following week, and to advise of any referrals made by
the physician and the date of any future medical
April 26, 2019, Plaintiff submitted a status report, noting
that Plaintiff's primary care physician had referred him
for a neurology consult. ECF 76. On April 30, 2019, the Court
ordered Plaintiff's counsel to provide a written update
by May 3, 2019, with the date of Plaintiff's neurologist
appointment. ECF 77. On the same day, Plaintiff submitted a
notice that his neurologist appointment was May 3, 2019. ECF
78. After the appointment, Plaintiff submitted a notice that
he was seen by “Onasanya, Olukayoda, M.D., ” who
ordered an EMG for further diagnosis. ECF 79. Subsequently,
on May 3, 2019, the Court ordered Plaintiff's counsel to
provide a written update on May 6, 2019, with the date of
Plaintiff's EMG appointment. ECF 80. The Court also
revised the deadline for Defendant's pretrial order,
motions in limine, proposed voir dire questions, proposed
jury instructions, and proposed verdict forms to May 8, 2019.
Id. On May 6, 2019, Plaintiff provided the
neurologist's report, but did not yet have a scheduled
date for Plaintiff's EMG appointment. ECF 81. The
neurologist's report reflected a neurological examination
that was “normal without any objective motor or sensory
dysfunction in the left leg as compared to the right
leg.” ECF 81-1 at 6.
light of the new information, the Court held another
conference call on May 7, 2019, confirming that the two-day
jury trial set for May 20, 2019 would remain as scheduled.
ECF 82. The Court also noted that counsel for Plaintiff would
be permitted to attend the Pretrial Conference scheduled for
May 13, 2019, by telephone. Id. On the due date of
May 8, 2019, pursuant to the Court's May 3, 2019 Order,
ECF 80, Defendant submitted her Motion in Limine to preclude
from evidence any testimony from Dr. Garzillo on
Plaintiff's future medical expense and future lost wage
claim. ECF 83.
Court held the Pretrial Conference on May 13, 2019, with
Plaintiff's counsel attending by telephone. The Pretrial
Conference resolved some of the issues raised in
Defendant's Motion, but a dispute remained as to whether Dr.
Garzillo was qualified to provide an opinion at trial
regarding Plaintiff's future medical expenses. The Court
advised the parties of its intent to conduct a
Daubert hearing before trial on May 20, 2019, to
determine the reliability and sufficiency of Dr.
Garzillo's testimony. Following the Pretrial Conference,
counsel first provided the Court with a copy of Dr.
Garzillo's March 9, 2018 Report, along with the
underlying records Dr. Garzillo had reviewed concerning
review of those items, the Court submitted a letter to the
parties on May 13, 2019, expressing concern about the
methodology Dr. Garzillo had used to determine
Plaintiff's future medical expenses, and the overall
reliability and sufficiency of Dr. Garzillo's testimony
as an expert in this case. ECF 88. The Court “wanted to
share its tentative views in advance, because of the expense
involved in bringing Garzillo from Texas to Maryland for the
proceedings.” Id. at 3. The Court also noted
its continued willingness to consider a written submission
from Plaintiff as to the admissibility of the testimony, or
to hold a Daubert hearing as planned. Id.
17, 2019, Plaintiff submitted a letter to the Court, prepared
and signed by Dr. Garzillo, responding to the Court's May
13, 2019 letter, and appending the exhibits he had relied
upon in his expert report. ECF 95, 96. The Court responded
with a letter confirming the pretrial and trial procedures,
noting that it remained willing to hold a Daubert
hearing to permit Plaintiff an opportunity to address the
Court's concerns regarding Dr. Garzillo's testimony.
ECF 97. The same day, Defendant filed another Motion in
Limine to preclude Dr. Garzillo's testimony regarding
both past medical expenses and any future damages. ECF 98.
Later that day, Plaintiff filed an Emergency Motion
Withdrawing Consent to Vacate Referral to Magistrate and to
Stay Proceedings to allow review by the United States
District Judge. ECF 99. On May 20, 2019, United States
District Judge George L. Russell III held a hearing on
Plaintiff's Emergency Motion. ECF 103. Judge Russell
denied Plaintiff's Motion, and directed the parties to
proceed with trial before this Court. ECF 102. The same day,
this Court held a Daubert hearing, during which Dr.
Garzillo testified as to the bases for his opinions. ECF 104.
After the hearing, the Court issued its ruling, excluding Dr.
Garzillo's testimony. Id.; Daubert Tr. at 56-59.
The two-day jury trial concluded on May 21, 2019, with the
jury finding in favor of Plaintiff and awarding $3, 000 in
non-economic damages. ECF 106, 112, 113.
Dr. Thomas Garzillo's Expert Report,
Supplemental Letter,  and
Garzillo is a licensed Doctor of Chiropractic in Texas, and
is also a Certified Life Care Planner. Exhibit A at 2.
Plaintiff retained Dr. Garzillo as an expert “to
present the reasonable medical probability for a ‘jury
charge of consideration of future medical expenses as well as
associated costs and losses' in ligitation on behalf
of” Plaintiff. Id. (emphasis removed). Dr.
Garzillo's expert report, “Plan of Anticipated
Future Medical Expenses along with a Narrative Report of
Prognosis for Christian Chapman, ” includes a prognosis
for Plaintiff's injury and an “accounting of his
anticipated future care and costs.” Id. In his
report, Dr. Garzillo states that he relied on medical and/or
billing records obtained from: Gabriel Gluck, MD; Johns
Hopkins Medicine/Suburban Hospital; Montgomery County Fire
and Rescue; and Piedmont Physical Therapy. Id. at 3.
sixteen pages that make up his report, Dr. Garzillo devotes
roughly only three pages to actual analysis of
Plaintiff's condition, while the remainder of the report
provides pages of references to the Texas Rules of Evidence,
as well as a list of scholarly articles on pain, ranging in
date from 1971 to 2014. Exhibit A. Dr. Garzillo provides two
Tables, Table A, summarizing the cost of anticipated future
care for chronic pain, and Table B, summarizing the
anticipated future care and diagnostic testing for chronic
pain. Id. at 8-9. Table A provides an anticipated
cost of $4, 500 per year for Plaintiff's future care, a
number derived from a 2011 study funded by the National
Institutes of Health, titled “Relieving Pain in
America: A Blueprint for Transforming Prevention, Care,
Education, and Research” (“the NIH Study”).
Id. at 8. Based on a life expectancy of 49 years
from age 27 to age 76, Table A calculates an anticipated
total cost of $220, 500 for Plaintiff's future care.
Id. at 2, 8. Table B provides a list of twelve types
of possible future treatment for Plaintiff's pain, from
massage therapy to MRI or CT scans, but Dr. Garzillo notes
that he believes Plaintiff's “future care will
include some but may not include all of the care listed, and
his future care may not be limited to only ...