Virginia Lawyers Weekly VA Lawyers Weekly
Where an expert neurosurgeon did not review any of the plaintiff’s pre-accident medical records, she could not opine about the woman’s “significant prior medical history” or whether any pre-accident hypertension caused her headaches.
Background
This case arises from a serious motor vehicle accident between Yvette Norman and Julian J. Kaczor, who was operating a semitruck owned by Leonard’s Express Inc. Leonard’s Express has disclosed two physicians it intends to offer as expert witnesses: (1) Isabelle Richmond MD, a neurosurgeon and (2) Jonathan DeRight PhD, a neuropsychologist. Norman seeks to limit the scope of Dr. Richmond’s anticipated testimony on five grounds.
Records
As a threshold matter, the parties dispute whether all of Norman’s discoverable pre-accident medical records were produced to Leonard’s Express or made available to Dr. Richmond in advance of her preliminary report or supplemental report. Dr. Richmond repeatedly claims that she was unable to review these records, citing “multiple subpoenas” for them that purportedly went unanswered.
Whether or not Norman fully and timely complied with her document-production obligations — discovery is closed. Despite having ample time to seek leave of court to cure these perceived deficiencies prior to the discovery cut-off, or even promptly upon learning of them, Leonard’s Express took no action. The court will not reopen discovery on the verge of trial for things that should have been the subject of timely motions practice.
Accordingly, Dr. Richmond will be permitted to testify only about the records that she reviewed in making her report. And in response to Dr. O’Shanick’s anticipated testimony that Norman’s headaches were caused by the accident, she may testify — as she explains in her report — that it is impossible for her to determine the cause of those headaches.
But she will not be permitted to testify or imply that there were (or are) relevant medical records, deposition transcripts, or the like that were not made available to her or the defense, that Norman withheld any such records or that it is impossible for her to testify about the cause of Norman’s headaches because she did not have access to all relevant records necessary to do so. The probative value of any such testimony would be substantially outweighed by the risk of undue prejudice, because it would unfairly suggest that Norman is hiding something damaging in her medical records when the defendant had procedural avenues to rectify any perceived discovery abuses, and the records at issue simply do not support such a claim.
Medical history
Dr. Richmond explained that “none of Ms. Norman’s prior medical records have been made available” and that she did not review Norman’s deposition transcript. Indeed, she expressly prefaced these objected-to opinions by conceding that she did not review any pre-accident medical records. Despite this, she then went on to opine that Norman has “significant prior medical history” and “ongoing hypertension.” Because Dr. Richmond has not laid an adequate foundation in her report for her opinion that Norman has “significant medical history,” she may not speculate about it.
Dr. Richmond has laid an adequate foundation for her opinion that Norman has “ongoing hypertension,” but only post-accident ongoing hypertension. But since she did not opine that Norman’s hypertension — and certainly not any pre-accident hypertension — caused her headaches, and therefore failed to draw a causal nexus between them, she will be excluded from testifying to that effect at trial.
Vision problems
Dr. Richmond’s report allows the reasonable inference that her opinion is that Norman also did not suffer vision problems as a result of the motor vehicle accident. Although her reasoning is thin on this point, the court believes that this part of her opinion (barely) passes muster under 702.
Credibility
Dr. Richmond may not testify about Norman’s credibility — an area outside her expertise — by couching it as expert medical opinion. Dr. Richmond will, however, be permitted to testify about “the medical evidence, or lack of medical evidence, supporting [or undermining Norman’s] physical complaints in this case.”
Dr. DeRight
It will not be unduly cumulative for Dr. Richmond to discuss Dr. DeRight’s report to explain how and why she relied, in part, on the results of his examination and attendant report in rendering her own opinion because each expert witness will be offering “a distinct insight into the question.” But Dr. Richmond will not be able to regurgitate Dr. DeRight’s opinions in their entirety or beyond the bounds set by Rule 403 prohibiting unduly cumulative testimony.
Plaintiff’s motion in limine granted in part, denied in part.
Norman v. Leonard’s Express Inc., Case No. 7:22-cv-00096, May 4, 2023. WDVA at Roanoke (Cullen). VLW 023-3-235. 14 pp.
