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Williamson v. Metropolitan Property And Casualty Insurance Co.

United States District Court, D. New Mexico

July 13, 2018



          Jerry H. Ritter, U.S. Magistrate Judge.

         This matter comes before the Court on Defendant Metropolitan Property and Casualty Company's Motion in Limine to Exclude the Testimony of Plaintiff's Expert Thomas G. Grace, M.D. (Doc. 201), filed April 19, 2018. Having considered the parties' positions and all pertinent authority, the Court will deny the Motion except as to Dr. Grace's opinion that the collision underlying this case caused Plaintiff's current symptoms.


         Plaintiff Theresa Williamson was rear-ended on April 27, 2012, by a third party. Plaintiff complained of spasms in her right arm and shoulder through her neck, denying that she had ever previously injured her shoulder and neck. After settling with the third party's insurance company for $43, 000.00, she turned to her own insurer, Defendant Metropolitan Property and Casualty Company, claiming underinsured motorist benefits. As part of the claims process, Defendant required Plaintiff to undergo an Independent Medical Examination (“IME”) with Dr. Douglas Slaughter.

         The IME took place on October 18, 2013. Plaintiff reported to Dr. Slaughter that she began experiencing neck and low back pain the day after the collision and that she had no back and neck pain symptoms prior to it. After completing the IME, Dr. Slaughter opined that the collision exacerbated a pre-existing degenerative condition in Plaintiff's cervical and lumbar spine. Dr. Slaughter further opined “that this claimant could undergo further lumbar facet blocks and potential radiofrequency ablation to assist in the pain relief from her degeneration, which reportedly she was asymptomatic from prior to the motor vehicle collision. This could also be a reasonable treatment in the cervical spine.” Defendant subsequently paid Plaintiff $10, 000.00 for medical payments pursuant to the MedPay benefits in its policy.

         On July 14, 2015, Plaintiff's counsel sent Defendant a letter notifying it of the settlement of Plaintiff's third-party claim and offering to settle her first-party underinsured motorist claim for $207, 000.00 (the remaining policy limits). Plaintiff based her offer, in part, on Dr. Slaughter's IME report, reasoning that Dr. Slaughter's recommended future medical treatment - cervical facet blocks and lumbar facet blocks - multiplied over Plaintiff's life expectancy, would exceed the underinsured motorist policy limits when coupled with Plaintiff's past medical treatment, which totaled $37, 125.00. Defendant, however, excluded future medical costs from its calculation of Plaintiff's damages. Relying on the fact that it had paid $10, 000.00 in MedPay benefits, and that Plaintiff had received $43, 000.00 from the third party, Defendant offered $1, 000.00 to settle Plaintiff's claim underinsured motorist claim. Plaintiff disputes the reasonableness of the offer and filed suit against Defendant for breach of its insurance duties.[2]

         During discovery, Plaintiff averred that she had no preexisting conditions related to her cervical or lumbar spine. However, Defendant discovered past medical records indicating that Plaintiff had back pain and sciatica on and off for years before the collision. Defendant submitted this additional information to Dr. Slaughter, who authored an affidavit on January 19, 2016. In this affidavit, Dr. Slaughter explained that his original IME was based on information Plaintiff provided; that she reported she had no symptoms in her back or neck prior to the collision; and that his subsequent review of her prior medical records suggests that Plaintiff had a long history of prior back and neck symptoms, dating at least to 2004. Based upon his review of this additional information, Dr. Slaughter now believes that Plaintiff does not need any further treatment as a result of the collision.

         Plaintiff hired an expert, Dr. Brian M. Shelley, to rebut Dr. Slaughter's affidavit. In his expert report, Dr. Shelley opined that there was no evidence that Plaintiff had continuous severe back pain and/or sciatica right before the collision; the records indicate that her baseline pattern was intermittent with the pain generally responsive to treatment. That pattern, Dr. Shelley stated, contrasts with the more severe and continuous back pain and right lower extremity symptoms after the collision for which more intensive treatment and pain management techniques were recommended.

         Defendant moved in limine to exclude Dr. Shelley's testimony. See Doc. 112. The Court, District Judge Herrera presiding, granted Defendant's Motion in part on September 28, 2017. See Doc. 144. Pertinent here, Defendant did not challenge Dr. Shelley's qualifications. Id. at 12. Instead, Defendant argued that Dr. Shelley's opinion was not reliable because he had not reviewed hundreds of pages of Plaintiff's medical records and other relevant information. Id. at 13. The Court found that Plaintiff had met her burden of showing that Dr. Shelley has specialized medical knowledge, that he based his opinion on sufficient facts and data, and that he had reliably applied the facts contained in Plaintiff's medical records to arrive at his opinion that Plaintiff had an aggravation of her low back pain due to the collision. Id. at 14. As such, the Court concluded that “Dr. Shelley's opinion would be helpful to the jury in assessing whether Metropolitan acted reasonably in its consideration of Dr. Slaughter's findings in the IME Report in making its settlement offer. Consequently the Court [found] that Plaintiff ha[d] met the threshold burden of reliability to permit Dr. Shelley to testify whether Dr. Slaughter's opinions and statements set forth in his IME Report and his Affidavit, respectively, are supported by the records upon which Dr. Slaughter relied to make them.” Id. To the extent that Dr. Shelley did not review all of Plaintiff's post-collision records and lacked other foundational information, the Court held that “[s]uch facts provide fertile grounds for cross-examination at trial, but go to the weight, not the admissibility, of Dr. Shelley's testimony.” Id. at 15. However, based partly on Plaintiff's concessions, the Court excluded Dr. Shelley's testimony concerning the causal connection between the collision and Plaintiff's current symptoms. Id. at 14-15.

         For reasons not pertinent here, the Court granted Plaintiff's Motion to substitute Dr. Thomas Grace for Dr. Shelley on February 28, 2018. Doc. 194. Defendant subsequently withdrew Dr. Slaughter as a witness. Docs. 161 (Defendant's Witness List); 214 (Pretrial Order). Then, Defendant filed the instant Motion, seeking to exclude Dr. Grace's testimony from trial on three primary grounds: (1) “Dr. Grace's perceptions regarding Dr. Slaughter's IME and subsequent Affidavit do not require any scientific, technical, or other specialized knowledge that will assist the jury”; (2) “Dr. Grace's opinion that the accident caused an aggravation of a preexisting degenerative spinal condition is not based on sufficient data to be reliable”; and, (3) Dr. Grace's testimony will unfairly prejudice Defendant and will confuse and mislead the jury. See Doc. 201 at 7, 9, 11 (capitalization omitted). Defendant concludes that “[n]one of the opinions Dr. Grace provided in his report or deposition testimony would assist the jury in understanding the evidence or any fact at issue in this case.” Id. at 13. As such, Defendant moves the Court to prohibit Dr. Grace from offering any opinion testimony at trial in this matter. Id. at 14; see Doc. 210 (Reply).

         Plaintiff's response takes a much narrower view of Dr. Grace's testimony, arguing that Defendant has created a “false issue.” Doc. 207 at 1. Quoting from her Motion to replace Dr. Shelley with Dr. Grace, Plaintiff points out that Dr. Grace was meant to merely repeat what was stated by Dr. Shelley and would “also explain to the jury what Defendant's physician stated in his IME report; in other words, Plaintiff's expert will explain all the medical language.” Id. at 2 (quoting Doc. 145 at 4). Plaintiff argues that despite this description of Dr. Grace's intended testimony, Defendant insisted on asking Dr. Grace to opine as to causation in his deposition. Id. Moreover, Plaintiff notes that Defendant is not challenging Dr. Grace's medical expertise. Id. However, taking one step further to demonstrate the harmlessness of Dr. Grace's testimony, Plaintiff summarizes the approximately 16 questions she intends to ask Dr. Grace at trial. See Id. at 3-6. Most basically, these questions ask Dr. Grace to define medical terminology, offer his opinion as to whether he thought Plaintiff's beliefs were reasonable, and validate Plaintiff's decision to lie to her personal physician about the cause of her pain. Id. In other words, Plaintiff does not intend to have Dr. Grace testify as to causation, except to the extent that he is opining that Dr. Slaughter revised or recanted his IME findings. See id.; see also Doc. 151-2 (Dr. Grace's Report).

         Defendant's Reply accuses Plaintiff of creating a moving target, arguing that Plaintiff “once again changes the scope of Dr. Grace's proffered testimony.” Doc. 210 at 1. Defendant argues that, as such, Plaintiff fails to show how Dr. Grace's testimony will assist the jury, requires specialized knowledge or training, “or has any foundation to support an opinion regarding whether the accident at issue caused an aggravation of a pre-existing condition to Plaintiff.” Id. Defendant further argues that Dr. Shelley never offered testimony or statements in his expert report regarding the medical terminology contained in the IME or on Plaintiff's decision to lie to her person physician. Id. at 3. Defendant concludes that “[b]ecause Plaintiff now appears to concede Dr. Grace will not testify regarding causation or his perceived discrepancies between Dr. Slaughter's IME report and affidavit, this Court should exclude Dr. Grace entirely.” Id.


         Federal Rule of Evidence 402 proclaims that “relevant” evidence is admissible, subject to certain exceptions. Fed.R.Evid. 402. Under Federal Rule of Evidence 401, evidence is “relevant” if “it has any tendency to make a fact more or less probable than it would be without the evidence; and the fact is of consequence in determining the action.” Fed.R.Evid. 401. The Court may only exclude relevant evidence “if its probative value is substantially outweighed by a danger of one or more of the following: ...

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