Orthopedic Surgery Expert’s Testimony will Assist the Court in Determining Questions of Causation
Posted on March 27, 2025 by Expert Witness Profiler
Following the May 3, 2017 motor vehicle accident that is the basis of this legal action, the Plaintiff presented to the emergency department of Robert Wood Johnson University Hospital with complaints of neck, back, shoulder, and left knee pain.
He was then referred to orthopedist Dr. Steven L. Nehmer for evaluation and treatment of his shoulder and knee injuries, and Nehmer saw him four times.
Nehmer prepared two reports concerning the injuries claimed by Plaintiff in this action. His April 8, 2018 report noted Plaintiff presented with “complaints of pains at his neck, both shoulders, low back, and left knee.” According to the report, Nehmer conducted a physical examination of Plaintiff’s shoulders and knee during his first visit to the office on September 28, 2017, and thereafter saw Plaintiff twice more.
The report also stated that Nehmer reviewed MRI studies of Plaintiff’s shoulder, left knee, and cervical and lumbar spine, from imaging performed by Ironbound MRI on August 3, 2017. Based on the foregoing, Nehmer determined Plaintiff suffered from cervical disc herniations with multiple bulges, a lumbar disc herniation with bulges, a right shoulder partial rotator cuff and posttraumatic impingement syndrome, and left knee medial meniscal tear. He concluded, based on his overall evaluation, that these injuries “are causally related to the motor vehicle accident of May 3, 2017.” Later, after Plaintiff returned to see Nehmer in 2019 for continuing pain, Nehmer issued his May 30, 2019 report, which stated, in relevant part, that the opinions expressed in the April 8, 2018 report have not changed.
Late Designation
Nehmer, though providing reports as the Plaintiff’s treating physician outlining his findings and conclusions, was not identified as an expert witness in this action until 2024, just before the Final Pretrial Order before trial. This belated designation stemmed from the procedural circumstances of the case, where the Plaintiff proceeded pro se for the majority of the pretrial period, including the resolution of summary judgment motions. Pro bono counsel was appointed by the Court to represent the Plaintiff only when the case was ready for trial, at which point expert discovery had already concluded. However, newly appointed counsel determined that expert testimony was necessary to establish the extent and nature of the injuries the Plaintiff allegedly sustained in the accident.
The Defendant consented to the Plaintiff’s designation of Nehmer as an expert, recognizing his prior involvement and the fact that his records had already been produced during discovery. In preparation for the damages phase of trial, Nehmer participated in a de bene esse deposition on July 25, 2024. During this deposition, the Defendants cross-examined him regarding his opinions, specifically the causal relationship between the accident and the Plaintiff’s injuries. In the current motion, the Defendants seek to exclude any portion of Nehmer’s expert opinion concerning the diagnosis, prognosis, and causation of the Plaintiff’s injuries to his cervical spine and lumbar spine.
Orthopedic Surgery Expert Witness
Steven L. Nehmer is a board-certified orthopedic surgeon licensed to practice in New Jersey. He has over 35 years of experience.
Discussion by the Court
Rule 702
The Defendants argued that Nehmer’s opinion regarding the Plaintiff’s spinal injuries should be excluded because it relied solely on MRI reviews, without his own physical examination of the Plaintiff’s cervical and lumbar spine in the course of treatment. They contended this lack of direct examination made his spinal injury opinions inadmissible. The Plaintiff countered that under Rule 702 and Third Circuit precedent, medical experts can base opinions on medical records, making Nehmer’s testimony, including his opinion about Plaintiff’s neck and back injuries, admissible.
The Defendants challenged Nehmer’s expert testimony on the Plaintiff’s cervical and lumbar spine injuries, arguing it lacked reliability and fit under Rule 702. They asserted his opinion was unreliable as it was based on the doctor’s review of Plaintiff’s medical records, not his own examination or treatment of those areas. Furthermore, they claimed these records were inadmissible hearsay, further undermining the opinion’s reliability and justifying the exclusion of Nehmer’s causation testimony regarding the Plaintiff’s back and neck injuries.
The Court found that Nehmer’s opinion, as presented in his April 8, 2018 report, met the minimal reliability standard of Rule 702. His conclusions were based on the Plaintiff’s reported symptoms and the accident, along with Nehmer’s review of medical records, including imaging of the Plaintiff’s cervical and lumbar spines taken shortly after the accident. Additionally, Nehmer evaluated the Plaintiff’s shoulder and left knee injuries, performing an examination of those areas. While a physical examination of the Plaintiff’s neck and back would have strengthened his opinion on those injuries, its absence affects the weight, not the admissibility, of his expert testimony under the totality of the circumstances and Rule 702.
Rule 703
The Defendants also argued against Nehmer’s opinion as to Plaintiff’s cervical and lumbar spine injuries, claiming it improperly relied on hearsay evidence – the studies of MRI films performed by a radiologist. They asserted the Plaintiff couldn’t introduce the non-testifying radiologist’s inadmissible hearsay statements through Nehmer’s testimony. The Court rejected this argument, citing Federal Rule of Evidence 703, which allows experts to rely on facts or data reasonably relied upon experts in the particular field, even if the facts or data are not admissible in evidence. In this case, hearsay consists of medical records and films are the type of data doctors typically use for diagnosis and treatment.
The Court concluded that Nehmer’s opinion relates to the Plaintiff’s alleged injuries from the May 3 accident and will help the Court determine causation, the nature of the injuries, and their extent.
Held
The Court denied the Defendants’ motion to strike a portion of the testimony of Plaintiff’s orthopedic expert Dr. Steven Nehmer.
Key Takeaway:
- Nehmer’s testimony is relevant for the purposes of the case because his opinion pertains to the injuries Plaintiff allegedly suffered as a result of the May 3 accident and will assist the Court in determining questions of causation, the nature of the injuries, and the extent to which Plaintiff was allegedly injured.
- While a physical examination of Plaintiff’s neck and back would have strengthened Nehmer’s opinion as to those alleged injuries, the absence of such a diagnostic tool goes to the weight of the expert testimony. In view of the totality of the circumstances, it does not render his opinion unreliable under Rule 702.
Case Details:
| Case Caption: | Lorenzo-Noda V. Kazak Et Al |
| Docket Number: | 2:18cv13414 |
| Court Name: | United States District Court, New Jersey |
| Order Date: | March 24, 2025 |
