Hunter v. Kennedy

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MARGARET T. HUNTER, and : Civil No. 3:17-CV-00007

JOHN P. HUNTER, wife & husband, :

:

Plaintiffs, :

:

v. :

:

RICHARD P. KENNEDY, M.D., et al., :

:

Defendants. : Judge Jennifer P. Wilson

MEMORANDUM

Before the court are four motions in limine filed by Defendants Pocono

Medical Center, Peter Obeng, M.D., Family Care Center, Inc., t/d/b/a PMC

Physician Associates and PMC Immediate Care Center (collectively, “PMC

Defendants” or “Defendants”) seeking to preclude Plaintiffs from producing

certain evidence at trial. (Docs. 141, 142, 144, 145.) For the reasons that follow,

the motions will be denied.

FACTUAL BACKGROUND1

On May 16, 2016, Plaintiff Margaret T. Hunter (“Plaintiff”) 2 fell from a

ladder at her place of employment and injured her left foot. Plaintiff’s ankle

1 The facts set forth in this brief background section are not in controversy. Therefore, citations

to the record have been omitted.

2 Two plaintiffs are involved in this case, Margaret and John Hunter. The main claim for

medical negligence belongs to Margaret Hunter, whereas John Hunter has a derivative loss of

consortium claim. For the sake of convenience, and because she has the principal claim, the

court will refer only to Plaintiff Margaret Hunter in this memorandum.

swelled, and she complained of extreme pain. Her employer sent her to Defendant

PMC Immediate Care Center in Bartonsville, Pennsylvania, where Defendant Peter

Obeng, M.D. (“Dr. Obeng”) examined her. Dr. Obeng ordered x-rays of Plaintiff’s

ankle, which were read by Defendant Richard P. Kennedy, M.D of Defendant

Monroe Radiology Imaging, P.C. Plaintiff alleges that Defendants were negligent

in their examination and treatment of her injury in not recognizing that she had a

calcaneal fracture, that is a heel fracture.3 Her complaint seeks damages for pain

and suffering, loss of earnings, and loss of earning capacity. The PMC Defendants

filed four motions in limine, which have either been fully briefed or the time to

oppose the motions has expired. (Docs. 141, 142, 144, 145, 192, 193, 194, 208.)

The court will address each motion in turn.

STANDARD OF REVIEW

Prior to trial, courts may rule on motions in limine involving the

admissibility of evidence. Such motions “narrow the evidentiary issues for trial

and . . . eliminate unnecessary trial interruptions.” Bradley v. Pittsburgh Bd. of

Educ., 913 F.3d 1064, 1069 (3d Cir. 1990).

Generally, relevant evidence is admissible at trial. Fed. R. Evid. 402.

Evidence is relevant if: “(a) it has any tendency to make a fact more or less

3 Plaintiff had fractured her calcaneus or heel bone. (Doc. 32, ¶ 38). The parties, at times refer

to it as a fracture or break of the ankle, but this representation appears to be factually inaccurate.

probable than it would be without the evidence; and (b) the fact is of consequence

in determining the action.” Fed. R. Evid. 401. The court, however, may preclude

relevant evidence from trial where its “probative value is substantially outweighed

by a danger of one or more of the following: unfair prejudice, confusing the

issues, misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.” Fed. R. Evid. 403. “The Federal Rules of Evidence embody

a strong and undeniable preference for admitting any evidence having some

potential for assisting the trier of fact.” Holbrook v. Lykes Bros. Steamship Co.,

Inc., 80 F.3d 777, 780 (3d Cir. 1996) (internal quotation marks and citation

omitted).

Bearing these standards in mind, the court turns to the PMC Defendant’s

motions in limine, which the court will discuss in the order in which they were

filed.

DISCUSSION

A. Motion in limine to preclude testimony of Carl Hasselman, M.D.

(Doc. 141)4

Plaintiff has submitted the curriculum vitae and expert report of Carl

Hasselman, M.D. (“Dr. Hasselman”), in support of her cause of action. (Docs.

181-1, 181-2.) Dr. Hasselman opines as to the timeframe Plaintiff would have

4 The remaining defendants, Richard P. Kennedy, M.D. (“Dr. Kennedy”) and Monroe Radiology

Imaging, P.C., have moved to join in this motion. (Doc. 180). The joinder motion will be

granted.

recovered and returned to work had she elected to have surgery. (Doc. 181-2, p.

4.)5 The Defendants argue that Dr. Hasselman has not rendered his opinion with

the degree of certainty required of an expert medical witness. (Doc. 141, pp. 22–

24.) Thus, they move to preclude Dr. Hasselman’s testimony. (Id.) After careful

review, the court will deny the Defendants’ motion.

Rule 702 of the Federal Rules of Evidence provides that “a witness qualified

as an expert by knowledge, skill, experience, training, or education” may provide

opinion testimony “if (1) the testimony is based upon sufficient facts or data, (2)

the testimony is the product of reliable principles and methods, and (3) the witness

has applied the principles and methods reliably to the facts of the case.” Fed. R.

Evid. 702. Courts have described the function of the district court in determining

whether to admit expert testimony as a “gatekeeping” one. The trial judge has “the

task of ensuring that an expert’s testimony both rests on a reliable foundation and

is relevant to the task at hand.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S.

579, 597 (1993). Thus, “[t]he objective of that requirement is to ensure the

reliability and relevancy of expert testimony.” Kumho Tire Co., Ltd. v.

Carmichael, 526 U.S. 137, 152 (1999). Further, “[i]t is to make certain that an

expert, whether basing testimony upon professional studies or personal experience,

5 For ease of reference, the court utilizes the page number from the CM/ECF header.

employs in the courtroom the same level of intellectual rigor that characterizes the

practice of an expert in a particular field.” Id. Generally, medical experts must

testify to a reasonable degree of medical certainty. See Holbrook, 80 F.3d at 785.

Defendants claim that Dr. Hasselman’s testimony should be precluded

because he does not provide an opinion with the requisite degree of certainty, that

is, to a reasonable degree of medical certainty as opposed to mere speculation.

(Doc. 141, pp. 22–24.) The court disagrees.

First, the court notes that several reports were drafted by Dr. Hasselman. In

the main report he drafted in January 2018, he specifically states: “[I]t is my

opinion within a reasonable degree of medical certainty, that the “standard of

care” was not met in the care and treatment of [Plaintiff’s] calcaneus fracture on

the left foot.” (Doc. 141, p. 17) (emphasis in original). Further at the end of the

report, Dr. Hasselman notes: “I state all of the above within a reasonable degree of

medical certainty.” (Id. at 18.) Defendants do not object to this main report.

Rather, Dr. Hasselman drafted a short supplemental report in November 2018

which they find objectionable. This supplement provides as follows:

Assuming the surgery was performed in a timely fashion, she would be

off work from the day of the fracture and for 3 months after the surgery.

She would be non-weight bearing on that leg with strict elevation from

the day of the fracture and for 2 months following surgery. At two

months after the surgery I would allow her to full weight bear and begin

Physical Therapy. My usual patient would be allowed to return to work

in a light duty fashion then for 2 months and then resume medium to

heavy manual labor.

(Doc. 181-2, p. 4.)

The court finds no reason to preclude Dr. Hassleman’s testimony. The

doctor’s opinion with regard to breaching the standard of care, as set forth in the

main report, is explicitly provided “within a reasonable degree of medical

certainty.” (Doc. 193-1, p. 3.) The report at issue is merely a supplement to the

original report. While, the supplement does not explicitly state a degree of

certainty, the court may infer that this supplement to the original report is provided

with the same degree of certainty as the original report. Moreover, the parties may

question the witness regarding the degree of certainty at trial. Therefore, based

upon Dr. Hasselman’s opinion as a whole, and the fact that the Defendants merely

challenge a short supplemental report, the court will deny the motion in limine and

Dr. Hasselman will not be precluded from testifying at trial.

B. Motion in limine to preclude testimony of Paul Medrek, M.D. (Doc.

142)6

In support of her lawsuit, Plaintiff also submitted the curriculum vitae and

expert reports of Paul Medrek, M.D. (“Dr. Medrek”). (Doc. 181-4.) The

Defendants seek to preclude Dr. Medrek’s testimony. Defendants set forth three

arguments: (1) Dr. Medrek’s opinions are based on a “negligent documentation”

cause of action which is not recognized in Pennsylvania; (2) Dr. Medrek provides

6 The remaining Defendants, Richard P. Kennedy, M.D. and Monroe Radiology Imaging, P.C.,

have moved to join in this motion. (Doc. 179). The joinder motion will be granted.

speculative opinions; and (3) Dr. Medrek inappropriately adopted Kelly Ann

Smith, D.P.M.’s expert opinions. (Doc. 142, pp. 89–93.) The court finds no merit

to Defendants’ arguments.

First, Defendants argue that Dr. Medrek’s testimony advances or supports a

“negligent documentation” theory of medical malpractice, which is not cognizable

under Pennsylvania law.7 (Doc. 142, pp. 89–91.) Neither the PMC Defendants’

motion, nor their brief, provides any citation to law for this proposition. (See Doc.

142.) Even if Defendants’ statement of the law regarding “negligent

documentation” claim is correct, the court finds that this assertion does not justify

precluding the evidence. Failure to properly document the treatment of the patient,

even if it is not a cause of action in and of itself, may certainly go toward

establishing a breach of the relevant standard of care. See, e.g., Green v. Dolsky,

685 A.2d 110, 118 (Pa. 1996) (indicating that failure to maintain proper medical

records is a permissible medical malpractice claim).

Second, the PMC Defendants argue that Dr. Medrek’s opinions are

speculative. (Doc. 142, pp. 91–92.) The court again disagrees. A review of the

record and Dr. Medrek’s reports reveal that he has provided sufficient certainty for

7 It is unclear, and appears doubtful, that Plaintiffs are seeking to proceed solely on a “negligent

documentation” theory. Rather, the failure to properly document is only a part of the facts that

make up the medical malpractice claim. Regardless, whether a cause of action exists under

Pennsylvania law is not an evidentiary issue. It is a legal issue, which is an inappropriate topic

for a motion in limine.

his opinions. He indicates that he reviewed the medical records and has provided

his opinions “to a reasonable degree of medical certainty.” (Doc. 181-4.) If at trial

he does not testify as to a reasonable degree of medical certainty, Defendants may

object. However, no cause exists for precluding the evidence at this point. Dr.

Medrek’s opinions may best be challenged through vigorous cross examination or

presenting counter-evidence.

Lastly, the PMC Defendants complain that Dr. Medrek improperly relies

upon the opinion of another doctor, Dr. Kelly Smith (“Dr. Smith). The court finds

no merit to this position. Dr. Smith was one of Plaintiff’s treating physicians and

Defendants have cited no authority to establish that it is objectionable that Dr.

Medrek relied on her records for the factual background of Plaintiff’s treatment.

The court finds no merit to any of the Defendant’s arguments regarding the

testimony of Dr. Medrek. Accordingly, the motion in limine to preclude him from

testifying at trial will be denied.

C. Motion in limine to preclude testimony of Guido A. LaPorta, DPM

(Doc. 144)

Plaintiff has further produced the curriculum vitae of Guido A. LaPorta

(“Dr. LaPorta”), Doctor of Podiatric Medicine. (Doc. 181-14.) Dr. LaPorta

provides opinions on the medical standard of care and causation. (Doc. 181-15.)

Defendants contend that the issue in this case relates to emergency medical care

and Dr. LaPorta, as a podiatrist, is not qualified to render opinions as to emergency

care. (Doc. 144, pp. 20–21.)

The PMC Defendants rely on Pennsylvania’s Medical Care Availability and

Reduction of Error Act (“MCARE”) for the proposition that an expert must be

board-certified in the “same or similar approved board” as the defendant. See 40

Pa. Stat. § 1303.512(c)(3). Here, Defendant Obeng specializes in Occupational

Medicine, and evidently provided emergency care on the day in question, whereas

Plaintiff’s proposed expert, Dr. LaPorta, is a podiatrist. The court is not convinced

by the PMC Defendants’ argument. MCARE explicitly permits an expert to testify

against a doctor of a different subspecialty if the two subspecialties have a “similar

standard of care for the specific care at issue.” 40 Pa. Stat. § 1303.512(c)(2). The

issue of this case involves care of Plaintiff’s foot. The PMC Defendants have

presented no evidence that the standard of care with regard to Plaintiff’s foot

would be different for Defendant Obeng or a podiatrist, and, in fact, such a finding

would be counterintuitive. Moreover, the PMC Defendants have presented their

own podiatric experts, Joseph Daley, D.P.M. (“Dr. Daley”) and Dr. Keith Wapner,

M.D. (“Dr. Wapner”). According to Plaintiff, Dr. LaPorta is listed merely as a

rebuttal witness to these two doctors.

The court finds no reason to preclude Dr. LaPorta’s testimony. He is a

podiatrist and he opines that Defendants Obeng and Kennedy misdiagnosed

Plaintiff and provided improper treatment with regard to her foot, which is clearly

within his area of expertise. (Doc. 181-15.) Dr. LaPorta also indicates that he

disagrees with, and can possibly rebut, defense experts Dr. Daley and Dr. Wapner,

who will testify as to podiatric care. Accordingly, the court will deny this motion

in limine.

D. Motion in limine to preclude cumulative opinions of the Plaintiff’s

experts (Doc. 145)

In discovery, Plaintiff presented reports from two podiatrists, Dr. LaPorta

and Dr. Smith. (Doc. 181-15; Doc. 181-6.) The PMC Defendants seek to preclude

one of these experts from testifying, as the evidence provided would be

unnecessarily cumulative. The law provides that the court may preclude relevant

evidence if its probative value is substantially outweighed by “needlessly

presenting cumulative evidence.” Fed. R. Evid. 403.

Plaintiff has not filed a brief in opposition to this motion. A review of

Plaintiff’s pretrial brief, however, reveals that there is a difference between the

testimonies of Dr. LaPorta and Dr. Smith. Dr. Smith was Plaintiff’s treating

podiatrist. (Doc. 181, p. 10.) Dr. LaPorta is a retained expert who Plaintiff might

use to rebut the testimony of two of Defendants’ expert witnesses. (Id. at 16.)

Due to the different status of these witnesses, one a treating expert witness and one

a retained expert to be used for rebuttal, the court finds that this evidence will not

be merely cumulative evidence, and the court will deny this motion in limine.

CONCLUSION

For the reasons stated herein, the PMC Defendants have not provided any

reason to preclude the evidence that Plaintiff seeks to present at trial. Accordingly,

their motions in limine will be denied. An appropriate order will issue.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Court Judge

Middle District of Pennsylvania

Dated: July 14, 2020