Physical Medicine & Rehabilitation Expert Witness’ Testimony Indicating a History of Post-Concussive Syndrome Deemed Speculative
Posted on December 13, 2024 by Expert Witness Profiler
The Plaintiff, Kimberly Allcorn, brought this action seeking the recovery of damages for injuries she allegedly sustained in a collision between an automobile she was driving and a tractor trailer being driven by the Defendant Pamela Kay Beach while in the course and scope of her employment with the Defendant Western Flyer Express, LLC.
The Defendants designated Michael Winklemann, MD as a medical expert who would offer opinions — based on his review of the Plaintiff’s medical records and his independent medical examination (IME) of the Plaintiff to be conducted subject to the Plaintiff’s availability — as to the Plaintiff’s pre-existing conditions, her injuries allegedly sustained in the accident and the treatment thereof.
Winklemann’s Testimony
After Winklemann conducted his IME of the Plaintiff, the Defendants provided the Plaintiff with Winklemann’s signed, written report identifying the medical records he reviewed, describing in detail the IME he performed and concluding that the Plaintiff does have very clear evidence of residual central cord symptomatology with good overall compensation. A history
of previous post-concussive syndrome is very plausible, but not well documented.
A few days later, the Defendants provided the Plaintiff with a written “Addendum” to Winklemann’s report. The addendum stated that the patient does not need any assistive devices at this point, although she has some weakness in her toe extensors and is recommended to wear supportive footwear which would not require a particular orthosis.
The Plaintiff sought to exclude Winklemann’s testimony at trial, arguing that his written report is inadequate under Federal Rule of Civil Procedure 26(a)(2)(B), and that his opinions are inadmissible under Federal Rule of Evidence 702.
Physical Medicine & Rehabilitation Expert Witness
Michael Winklemann is a physician with NewSouth NeuroSpine. He is Board Certified in Physical Medicine and Rehabilitation. He has held a medical license since 1993.
Discussion by the Court
Federal Rule of Civil Procedure 26(a)(2)(B)
Defendants argue that the Plaintiff’s challenge should be deemed waived under the local rule
Local Uniform Civil Rule 26(a)(3) states, “Challenges as to inadequate disclosure of expert witness(es) must be made no later than thirty days before the discovery deadline or will be deemed waived.” Because the Plaintiff did not file her motion until November 1, 2024 — two weeks after the October 18, 2024 discovery deadline – the Defendants argue that her challenge should be deemed waived under the local rule. However, as the Defendants acknowledge, they did not provide the Plaintiff with Winklemann’s report and addendum until less than 30 days remained in the discovery period. As such, the Plaintiff could not possibly have met the local rule’s deadline for challenging the adequacy of Winklemenn’s report, and the Court will not penalize her for that.
The Plaintiff filed her motion within 30 days after receiving Winklemann’s addendum and before the deadline for dispositive and Daubert-type motions passed. Under the circumstances, the court will decline to find that the Plaintiff waived her challenge. For the most part, however, the Court finds that her challenge fails on its merits.
Plaintiff argues that Winklemann’s report is inadequate
As to the adequacy of Winklemann’s report, Federal Rule of Civil Procedure 26(a)(2)(B) requires that the report contain, among other information, a complete statement of all opinions the witness will express and the basis and reasons for them; the facts or data considered by the witness in forming them; and any exhibits that will be used to summarize or support them.
The Plaintiff argues that Winklemann’s report lacks sufficient detail in these regards and does not clearly state Winklemann’s opinions or the bases for them. The Court disagrees.
The report identifies the documents — including the medical records — that Winklemann reviewed, and it describes in detail the Plaintiff’s history of present illness, past surgical history, current medications, social history, family medical history, pain level, and review of systems. It also states in detail the results of Winklemann’s physical examination of the Plaintiff, including tests performed. The report contains his impression of the Plaintiff’s medical history, as well as his diagnosis of residual central cord symptomatology with good overall compensation. The report’s addendum states Winklemann’s opinions as to the Plaintiff’s current and future treatment needs.
The Court has little difficulty discerning what Winklemann’s opinions are, the bases for them, and the facts or data he considered in forming them. Although the report does not include exhibits, Rule 26(a)(2)(B) does not require the inclusion of exhibits unless the expert will use exhibits to summarize or support his opinions. If an expert’s report contains no exhibits, this means that the expert may not use exhibits to summarize or support his opinions at trial – it does not mean that the expert may not testify at trial.
Federal Rule of Civil Procedure 702
In her motion challenging the admissibility of Winklemann’s testimony, the Plaintiff does not challenge Winklemann’s qualifications or the reliability of Winklemann’s methodology or the facts underlying his opinions. Rather, the Plaintiff argues that Winklemann’s opinions are not relevant to the issues of liability or damages in this case and will not assist the trier of fact. Of course, the Defendants dispute this contention, and the Court struggles to see how, in a personal injury case in which the Plaintiff’s medical conditions and treatment needs are at issue, a medical expert’s testimony as to the Plaintiff’s medical conditions and treatment needs are irrelevant.
The Court declined to find that Winklemann’s testimony is irrelevant and inadmissible at this time. The Plaintiff may raise her relevancy objection at trial, during which the Court will be in a better position to assess the relevance of the particular testimony to which she objects based upon the specific issues then before the court. Notwithstanding the above discussion, the Court is persuaded by the Plaintiff’s challenge as to one aspect of Winklemann’s report and expected testimony – his statement, “A history of post-concussive syndrome is very plausible, but not well documented.” The Court agreed with the Plaintiff’s contention that this statement is vague, speculative, and will not help the trier of fact to understand the evidence or to determine a fact in issue.
Held
The Court granted in part and denied in part the Plaintiff’s motion to exclude testimony of Michael Winklemann.
Key Takeaway:
In a personal injury case, a medical expert’s testimony as to the Plaintiff’s medical conditions is relevant especially when the Plaintiff’s treatment needs constitute the core issue. However, Winklemann’s testimony indicating a history of post-concussive syndrome failed to persuade the Court.
Case Details:
| Case Caption: | Allcorn V. Beach Et Al |
| Docket Number: | 1:23cv121 |
| Court: | United States District Court, Mississippi Northern |
| Order Date: | December 12, 2024 |
