The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LORETTA MARSHALL,
Plaintiff,
v. Case No: 8:20-cv-1835-CEH-SPF
WAL-MART STORES EAST, L.P.,
Defendant.
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ORDER
This matter comes before the Court on Plaintiff’s Motion in Limine (Doc. 58),
filed on December 28, 2021. In the motion, Plaintiff requests the Court limit the
testimony of Defendant’s expert radiologist, Dr. Michael Foley, M.D. Defendant filed
a response in opposition. Doc. 77. The Court, having considered the motion and being
fully advised in the premises, will grant, in part, Plaintiff’s Motion in Limine.
DISCUSSION
This action arises out of a slip and fall incident that occurred at a Wal-Mart
store located in Tampa, Florida, in which Plaintiff, Loretta Marshall, alleges she
suffered injuries as a result of her fall. Doc. 1-1. Plaintiff sues Defendant Wal-Mart
Stores East, L.P., for past and future medical expenses, lost wages and pain and
suffering. Id. at 7. Defendant retained Tampa radiologist, Michael Foley, M.D., to
serve as an expert on behalf of the defense. Doc. 58-1 at 1. In its proposed fact and
expert witness list, Defendant identifies the substance of Dr. Foley’s testimony as
follows:
Dr. Foley is a board-certified radiologist who is expected to
testify concerning Plaintiff’s alleged injuries from the
accident of May 15, 2016; Plaintiff’s treatment; causal
connection between the accident of May 15, 2016 and
alleged injuries; prior accidents, injuries and treatment;
medical expenses; and future prognosis, including need for
any future medical treatment and extent of causal
connection to accident of May 15, 2016.
Id. at 1–2. Plaintiff moves to limit Dr. Foley’s testimony to opinions related to his
April 25, 2021 review of radiological images of Plaintiff. In that regard, Plaintiff argues
Dr. Foley is not a treating physician and did not treat Plaintiff, nor did he review any
other medical records of Plaintiff. Thus, Plaintiff posits Dr. Foley should not be
permitted to render opinions about the causal relationship between the accident and
her injuries, any other medical treatment she has received or is expected to receive, or
regarding medical expenses or future prognosis.
In response, Wal-Mart observes that Plaintiff never deposed Dr. Foley
regarding his opinions, nor did she seek any expert discovery regarding his opinions.
Additionally, although the motion makes a vague assertion that expert opinions must
be based on recognized methodology, Plaintiff does not challenge Dr. Foley’s
methodology or otherwise demonstrate it is lacking in any way. Doc. 77.
Notably, despite the representations in its proposed fact and expert witness list
as to the anticipated testimony of Dr. Foley, Wal-Mart now identifies that Dr. Foley
is “expected to testify as to whether the diagnostic films show chronic or acute
findings.” Id. ¶ 6. Wal-Mart goes on to state that Dr. Foley is “not going to give a
causal opinion, nor will he testify regarding Plaintiff’s treatment, medical expenses, or
future prognosis including the need for future medical treatment.” Id. ¶ 7. Further, Dr.
Foley will not opine as to whether Plaintiff’s alleged injuries are causally related,
within a reasonable degree of medical certainty, to the subject incident. Id. ¶ 8.
In general, a “court has the power to exclude evidence in limine only when
evidence is clearly inadmissible on all potential grounds.” Stewart v. Hooters of Am., Inc.,
No. 8:04-CV-40-EAK-MAP, 2007 WL 1752843, at *1 (M.D. Fla. June 18, 2007)
(citing Luce v. United States, 469 U.S. 38, 41 (1984)). Motions in limine present pretrial
issues of admissibility of evidence that are likely to arise at trial, and as such, “the
order, like any other interlocutory order, remains subject to reconsideration by the court
throughout the trial.” Id. (emphasis in original) (citation omitted).
Although styled as a motion in limine, Plaintiff’s motion challenges the scope of
Dr. Foley’s opinions as being beyond his expertise. As Wal-Mart notes, Plaintiff cites
to Daubert1 caselaw, but fails to challenge Dr. Foley’s credentials or methodology
under Daubert.
1 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469
(1993). In Daubert, the Supreme Court described the gatekeeping function of the district court
to “ensure that any and all scientific testimony or evidence is not only relevant, but reliable.”
Id. at 589; see also United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en banc). In
performing its gatekeeping function, the Court must consider whether:
(1) the expert is qualified to testify competently regarding the
matters he intends to address, (2) the methodology by which the
expert reaches his conclusions is sufficiently reliable as
determined by the sort of inquiry mandated in Daubert, and (3)
the testimony assists the trier of fact, through the application of
Wal-Mart submits that, as a board-certified radiologist, Dr. Foley is qualified to
testify regarding his radiologic interpretation as to whether a finding is chronic in
nature or acute. Wal-Mart explains that Dr. Foley has over 35 years of medical
radiologic experience in interpreting radiologic images and diagnosing, seeing, and
treating patients. He is triple board certified by the American Board of Radiology,
including certifications in Diagnostic Radiology, Nuclear Radiology, and Vascular
and Interventional Radiology. Id. ¶ 11. Dr. Foley has been qualified as an expert in
both State and Federal courts throughout Florida since 1987. Plaintiff’s motion does
not challenge Dr. Foley’s qualifications as a radiologist.
Wal-Mart agrees here that Dr. Foley’s opinions are limited to his radiologic
interpretation of the Plaintiff’s images he has reviewed. Thus, the Court finds the
motion is due to be granted to the extent that Dr. Foley will not be permitted to testify
as to whether the injuries were causally related to her fall, nor will he be able to testify
regarding Plaintiff’s treatment, medical expenses, or future prognosis including the
need for future medical treatment. To the extent that Dr. Foley is opining as to whether
the radiologic findings are consistent with the degenerative process as opposed to a
traumatic event, however, such opinions appear to fall within his expertise, and
Plaintiff does not demonstrate to the contrary. Dr. Foley will be permitted to provide
scientific, technical, or specialized expertise, to understand the
evidence or to determine a fact in issue.
Frazier, 387 F.3d at 1260 (quoting City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562
(11th Cir. 1998)). Thus, the three discrete inquiries to determine the admissibility of expert
testimony are qualifications, relevance, and reliability. Quiet Tech. DC-8, Inc. v. Hurel-Dubois
UK Ltd., 326 F.3d 1341 (11th Cir. 2003).
a radiologic interpretation as to whether a finding is chronic or acute. Provided the
proper foundation is laid, Dr. Foley will be permitted to offer opinion testimony at
trial regarding his radiologic interpretation of the images he reviewed.
Accordingly, it is hereby
ORDERED:
1. Plaintiffs Motion in Limine (Doc. 58) is GRANTED in part and
DENIED in part as set forth herein.
DONE AND ORDERED in Tampa, Florida on July 22, 2022.
Chakene. Aiwarda Kn FLA sl el □□
Charlene Edwards Honeywell
United States District Judge
Copies to:
Counsel of Record
Unrepresented Parties, if any