Expert Witness Blog
Plaintiff sued Defendant after an accident between their two vehicles allegedly caused Plaintiff’s pre-existing injuries to become exacerbated. Plaintiff hired an orthopedic surgery expert witness and a rheumatology expert witness to assist in her case. The Defendant filed a motion to exclude these experts and the court granted the motion.
Facts: This case (Maryann Alberts v. Bueford Davis Bumgardener, et al. – United States District Court – District of New Jersey – August 25th, 2017) involves an accident between a truck driven by the Defendant (but owned by Crete Carrier Corp.) and a car driven by the Plaintiff. The Plaintiff claims that as a result of the accident, she exacerbated preexisting injuries to various parts of her body including her hands, wrists, back, shoulders and knees. She filed suit alleging negligence and recklessness against the Defendants as well as against Crete. The Plaintiff hired two experts to assist in her case: Dr. William VonRoth, Jr., M.D (orthopedic surgery expert witness) and Dr. Jeff Chung, M.D. (rheumatology expert witness). The Defendants filed a motion to exclude the testimony of these witnesses.
Discussion: The Defendants argue that the experts reports are not admissible because they contain inadmissible net opinions. They allege that Drs. VonRoth and Chung did not perform a comparative analysis of the Plaintiff’s old vs. new injuries. Therefore, they argue, the reports will not help the trier of fact in calculating the extent of the Plaintiff’s damages.
The Plaintiff counter that this case is one of non-verbal threshold and as such, does not require a comparative analysis. In addition, the Plaintiff states that the report issued by the experts are not net opinions and that they relied on reliable medical evaluations to come to the conclusions in their reports.
The court opined that under a case with a pre-existing condition, the Plaintiff must show that the Defendant’s negligence caused an aggravation of the pre-existing condition. In the present case, the court opined that the Plaintiff’s argument that a comparative analysis is not needed in non-verbal threshold cases is unpersuasive. Thus, the court opined, the relevant question here is whether the experts conducted a proper comparative analysis.
The court concluded that the experts did not conduct a proper comparative analysis in this case. For example, Dr. Vonroth does not discuss what medical records he inspected or when he examined them. Also, he does not discuss the severity of the Plaintiff’s prior injuries or how those injuries were exacerbated by the accident. Thus, Dr. Vonroth’s report will not assist the factfinder in quantifying the extend of the Plaintiff’s injuries and will be excluded from testifying in this case.
In addition, Dr. Chung’s report does not show whether he reviewed any of the Plaintiff’s prior medical records or if he personally examined the Plaintiff. The report does not quantify the degree of the pre-existing injuries and the degree afterwards. Thus, Dr. Chung’s expert witness testimony will not assist the factfinder in this case and his testimony will be excluded as well.
Conclusion: The motions to exclude the expert witness testimony of Dr. William VonRoth, Jr., M.D and Dr. Jeff Chung, M.D. is granted.