Orthopedic Surgery Expert’s Opinions About an Aggravation of Pre-Existing Degenerative Disc Disease Admitted
Posted on June 2, 2025 by Expert Witness Profiler
Plaintiff Myles Childress brought his claims against Defendant Wal-Mart Stores East I, LP. after he allegedly sustained injuries while delivering goods to a Walmart store in Bridgeton, Missouri.
Plaintiff raised claims against both Defendant Walmart and Walmart’s employee, an unknown Doe Defendant.
Dr. Richard Kube is an orthopedic spine surgeon practicing in Peoria, Illinois. Defendant argued that Kube’s conclusions regarding causation are deficient because Kube relied on Plaintiff’s inaccurate representation of his medical history.
Orthopedic Surgery Expert Witness
Richard A. Kube II, MD, FACSS, FAAOS, CIME is a fellowship trained spine surgeon and Founder/Owner of Prairie Spine & Pain Institute, in Peoria, Illinois. He also founded and owns Prairie Surgicare, an AAAHC certified surgical facility. He holds Board Certifications from the American Board of Spine Surgery, American Board of Orthopaedic Surgery and American Board of Independent Medical Examiners.
Discussion by the Court
While there is no dispute that Plaintiff’s medical records indicate that he had degenerative back problems before the alleged injury occurred, Kube specifically testified that the alleged incident aggravated Plaintiff’s degenerative spine condition, causing it to become symptomatic when it was previously asymptomatic. Kube further testified that surgical intervention was necessary to treat this aggravated condition. Kube also testified that the injuries to Plaintiff’s spine are consistent with the way Plaintiff describes being knocked to the ground by the pallet.
Defendant’s Arguments
Defendant contended that the incident cannot be the “but for” or the proximate cause of Plaintiff’s back injuries because Plaintiff already had records of degenerative changes in his spine before the incident occurred. Essentially Defendant argued that Plaintiff’s degenerative injuries were always present and were not a result of acute trauma, and therefore any treatment he received from Kube was going to occur anyway.
Defendant also raised a side argument regarding whether Plaintiff properly disclosed Kube as an expert witness under Rule 26, and therefore questioned whether Kube can even testify in this matter as an expert.
Defendant contended that (1) to establish causation in this case, Plaintiff must present expert testimony; (2) Kube provides the only causation testimony in this case; and (3) Plaintiff’s failure to properly disclose Kube as an expert within the timeframe permitted by the Court’s case management order precludes the use of his testimony in defeating the Defendant’s motion for summary judgment.
Plaintiff’s Response
Plaintiff contended that Defendant has not filed a motion to exclude Kube’s testimony, and therefore its assertion that there is no record evidence that could establish causation is futile.
Plaintiff stated that Kube is a treating physician and not a retained expert witness, so Plaintiff had no duty to supply a written expert report. Moreover, Defendant’s counsel waived his right to a discovery deposition of Kube.
Analysis
The Court found that Defendant has had sufficient notice of Kube’s opinions regarding causation and has not been prejudiced by Plaintiff’s alleged failure to timely disclose him. The Court has reviewed the email exchange between the parties’ counsel from before the disclosure deadline regarding (1) whether Kube was required to produce an expert report, and (2) what will be the purpose of his deposition.
These emails indicate that Defendant knew as early as July 24, 2024, that Kube was going to testify in this case and that, prior to Kube’s deposition, Defendant stated he was not taking the deposition as a “discovery” deposition.
Kube’s deposition occurred on September 30, 2024, before the deadline for Plaintiff to make his experts available for deposition.
At this stage in the case and on this record, the Court found that Defendant was at least on notice that Kube would be testifying in this case before the deadline for expert witness disclosure and that Defendant’s argument in the motion for summary judgment are not sufficient to exclude Kube from offering his causation testimony at trial without some additional showing of prejudice.
Held
Because Kube’s causation testimony was sufficient to create a genuine issue of material fact that must proceed to trial, so the Court denied Defendant’s motion for summary judgment.
Key Takeaway:
Defendant’s only argument is that Plaintiff did not properly disclose Kube as an expert witness before the deadline set to disclose experts under the Court’s case management order.
The Court found that Defendant has had sufficient notice of Kube’s opinions regarding causation and has not been prejudiced by Plaintiff’s alleged failure to timely disclose him.
Case Details:
| Case Caption: | Childress V. Wal-Mart Stores East I, LP |
| Docket Number: | 4:24cv580 |
| Court Name: | United States District Court, Missouri Eastern |
| Order Date: | May 30, 2025 |
