Sample Motion Responding to Defense Motion to Strike Our Experts

EDWARD JOHNSON
- Plaintiff,

v.

WILLIAM KENNEDY
- Defendant.

Plaintiff’s Opposition to Defendant’S Motion in Limine

Plaintiff, Edward Johnson, by and through her attorneys, MILLER & ZOIS, L.L.C., hereby files his Opposition to Defendant’s Motion In Limine. For the reasons discussed herein, Defendant’s Motion must be denied.

Introduction.

Defendant has moved, in limine, to exclude the proposed testimony of Plaintiff’s medical expert, Dr. Stephen J. Sampson. Defendant argues for the exclusion of Dr. Sampson’s testimony on the basis that as a matter of law, his opinions lack “the requisite factual basis to rise to the level of a reasonable degree of medical certainty.” Defendant’s Motion at 1. Defendant’s Motion must fail for two reasons. First, Dr. Sampson’s opinions are supported by a sufficient factual predicate to be expressed within a reasonable degree of medical certainty. Second, Defendant’s Motion is untimely. Dr. Sampson’s opinions and the basis therefore were disclosed to Defendant early in discovery. Because Defendant never raised his concerns via a Motion to Compel, he cannot now argue for preclusion of Dr. Sampson’s testimony on the basis that it lacks a factual predicate Defendant never sought. Moreover, Defendant had ample opportunity to inquire as to the basis for Dr. Sampson’s opinions at his deposition, and failed to do so. For these reasons, Defendant’s Motion should be denied.

Argument
  1. Dr. Sampson’s opinions may not be excluded because they are factually supported.

Defendant seeks to exclude Dr. Sampson’s testimony that Plaintiff will need future surgery to her left knee, both shoulders, and back. In support of this argument, Defendant states that Dr. Sampson’s opinions regarding the needed surgeries are speculative because they lack sufficient factual support. A review of the facts supporting his opinions reveals that this contention is without merit.

Md. Rule 5-702 list three requirements to be considered by the court when determining the admissibility of expert testimony. First, the court should consider “whether the witness is qualified as an expert by knowledge, skill, experience, training or education.” Id. Second, the court must consider “the appropriateness of expert testimony on the particular subject.” Id. Finally, the court must determine “whether a sufficient factual basis exists to support the expert testimony.” Id. Md. Rule 5-703 provides guidance as to the types of facts which may be relied upon as the basis for expert testimony: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions of inferences upon the subject, the facts or data need not be admissible in evidence.

In summary, “the basis of an expert’s opinion may be comprised of (1) facts of which the expert has first-hand knowledge… (2) on facts related in others’ testimony; (3) on facts related to the expert in hypothetical questions; or (4) on hearsay information that the expert learned before trial, if the hearsay is of a type reasonably relied upon by experts in the field.” L. McLain, Maryland Rules of Evidence § 2.703.4 (a)(West, 1994). A review of the record reveals that all of the facts Dr. Sampson relies upon in support of his opinions are of the types contemplated by Md. Rule 5-703.

First, Dr. Sampson relies upon his personal observations. He testified at his deposition that he personally examined Plaintiff at least eight times between August, 2003 and October, 2007. Exhibit 1, p.12, l. 7-9; p.28, l.9-12; p.33-34, l. 18-1; p.36, l. 16-20; p.39-40, l. 21-2; p.42., l. 7-12; p.55, l. 7-10; p.59, l. 20. He testified in detail about the content and results of his examinations. Id.

Second, Dr. Sampson relied upon his review of various records pertaining to the accident and Plaintiff’s medical treatment. Exhibit 1, p.10, l. 9- p.11, l. 13. He reviewed the motor vehicle accident report, the emergency room reports, the records of the Advanced Center for Orthopedics, MRI reports from American Radiology, and physical therapy records from Physiotherapy Associates. Id. Dr. Sampson specifically stated that he relied on his interpretation of Plaintiff’s MRI films showing disk degeneration and bulging at C4-C6 in reaching his conclusion she needed surgery. Exhibit 1, p. 47, l. 3-19. He also specifically relied upon his review of Defendant’s expert’s report of his examination of Plaintiff. Id., p.20, l. 4-20.

Third, Dr. Sampson based at least one of his opinions, at least in part, on a hypothetical proposed by counsel. Exhibit 1, p.26, l.11-17.

Each of these sources of information is specifically of a type contemplated by the Maryland Rules as a permissible basis for expert opinion. Therefore, Defendant’s argument that Dr. Sampson’s testimony should be excluded as factually unsupported is without merit. Moreover, Defendant’s Motion should not be decided prior to trial on a Motion in Limine, because the admissibility of expert testimony should be determined by the trial court after an opportunity to hear the entire basis for Dr. Sampson’s opinions, rather than the isolated portions of testimony upon which Defendant relies.

Because Defendant never filed a Motion to Compel further disclosures of the bases of Dr. Sampson’s opinions, his Motion must be denied.

Dr. Sampson’s opinions and the basis therefore were disclosed to Defendant early in the discovery process. Plaintiff’s Notification of Expert Witnesses was filed and served upon defense counsel over one year ago, on March 2, 2007. Exhibit 2. This Notification put Defendant on notice of Plaintiff’s intent to call Dr. Sampson, the substance of his proposed testimony, and the bases of his testimony. Id. In pertinent part, Plaintiff’s Notification states:

Dr. Sampson will also opine that the Plaintiff will require periodic medical care and treatment into the future to include: shoulder surgery, neck surgery, and knee surgery all totaling approximately $51,000.00. All of the doctor’s opinions will be based upon his education in the field of orthopedic medicine, review of all of the plaintiff’s medical records, his experience in treating patients with similar injuries, and upon his personal observations of the plaintiff during the time she has been under his care. Id.

In Plaintiff’s Answers to Defendant’s Interrogatories, Plaintiff specifically referenced the Notification of Expert Witnesses, and again named Dr. Sampson as an expert. Exhibit 3. This was served on defense counsel on April 20, 2007. Id. Further, Defendant took Dr. Sampson’s discovery deposition on November 15, 2007. Exhibit 1. Defendant never sent correspondence to Plaintiff’s counsel seeking additional information regarding Dr. Sampson’s opinions, nor were there any discussions about the adequacy of the information supplied by Plaintiff in reference to Dr. Sampson’s opinions. Moreover, at Dr. Sampson’s deposition, defense counsel never asked a single question seeking any additional factual basis regarding Dr. Sampson’s opinions that future surgery would be needed, nor was any Motion to Compel filed challenging the sufficiency of any of Dr. Sampson’s responses.

“A party who answers a discovery request timely and does not receive any indication from the other party that the answers are inadequate or otherwise deficient should be able to rely, for discovery purposes, on the absence of a challenge as an indication that those answers are in compliance, and, thus not later subject to challenge as inadequate and deficient when offered at trial.” Food Lion, Inc. v. McNeill, 393 Md. 715, 477, 904 A.2d 464, 477 (2006). The facts in McNeill are strikingly similar to those in the matter at bar. There, the substance and basis of McNeill’s expert’s testimony was provided to the defense in discovery. McNeill was asked an interrogatory seeking discovery of expert opinions and a summary of the grounds for those opinions. The court summarized the information provided by McNeill in response:

McNeill answered by listing the name of Dr. Fulton and his address. In addition, he advised: “a copy of Dr, Fulton’s reports are attached. Dr. Fulton will testify as to the contents of his medical reports, and the causal relationship of the Claimant’s Carpal Tunnel Syndrome to his employment. Further records from North Arundel Hospital will be supplemented.” The appellee also attached the medical reports and Dr. Fulton’s notes regarding the appellee’s follow-up appointments. Subsequently, the appellee forwarded to the apellant’s counsel a letter, dated April 4, 2002, from Dr. Fulton, which, in its entirety, stated “It is my opinion that Mr. McNeill’s carpal tunnel and ulnar cubital tunnel problems are directly and causily [sic] related from his repetitive work as a meat cutter at Food Lion.”

Id. at 724, 904 A.2d at 470. When compared, the responses provided by Ms. Walker regarding Dr. Sampson’s prospective testimony are in much greater detail than those regarding the expert in McNeill. Defendant also took Dr. Sampson’s deposition. Here, Defendant never challenged Ms. Walker’s discovery responses or Dr. Sampson’s deposition testimony by filing a Motion to Compel, or in any other manner. Under the Court of Appeals of Maryland’s holding in McNeill, Defendant may not now attempt to exclude Dr. Sampson’s opinions by way of a Motion in Limine. Accordingly, Defendant’s Motion must be denied.

Conclusion

Defendant’s Motion in Limine must be denied. First, Dr. Sampson has supplied a sufficient factual basis for his opinions. The record shows that his opinions are based upon his personal examinations of the plaintiff, his review of his own and other provider’s medical records, and his education, training, and experience. Each of these is contemplated by Md. Rule 5-703 as a permissible basis for expert testimony. Second, the substance of and grounds for Dr. Sampson’s opinions were provided to Defendant at least three times during discovery. Defendant never sought more discovery and never filed a Motion to Compel regarding the sufficiency of the information provided. Defendant may not now attempt to exclude Dr. Sampson’s opinions by way of a Motion In Limine. Accordingly, Defendant’s Motion should be denied.

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