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Chapman v. Manuhehri

United States District Court, D. Maryland

June 4, 2019

CHRISTIAN B. CHAPMAN, Plaintiff,
v.
MINA MANUHEHRI, Defendant.

          MEMORANDUM OPINION

          Stephanie A. Gallagher United States Magistrate Judge.

         Following 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.

         I. BACKGROUND

         This 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. Id.

         a. Procedural History

         On June 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 appointments. Id.

         On 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.

         In 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.

         The 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, [1]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 Plaintiff's case.

         Upon 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.

         On May 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.

         b. Dr. Thomas Garzillo's Expert Report, [2] Supplemental Letter, [3] and Daubert Testimony

         Dr. 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.

         Of the 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 ...


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