United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
H. Ritter, U.S. Magistrate Judge.
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.
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.
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.
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.
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.
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.
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.
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).
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).
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
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