FORREST v. BELOIT CORPORATION (E.D.Pa. 2003)

PAUL R. FORREST v. BELOIT CORPORATION

CIVIL ACTION NO. 00-CV-5032United States District Court, E.D. Pennsylvania.
October 9, 2003

MEMORANDUM AND ORDER
BRUCE KAUFFMAN, District Judge

Plaintiff Paul R. Forrest (“Forrest”) brings this product liability diversity action against Defendant Beloit Corporation (“Beloit”).[1]
Now before the Court is Forrest’s Motion in Limine to Exclude Expert Testimony of David S. Wander, D.P.M., and Peter R. McCombs, M.D. (docket no. 55). For the reasons set forth below, the motion will be denied.

I. Background

On November 29, 1999, Forrest’s left arm was caught in a gloss calender machine that had been designed, manufactured, and sold by Beloit. He sustained massive injuries that resulted in the amputation of his arm on December 5, 1999. Both parties agree that the gloss calender machine caused the amputation. (Wander Rpt. at ¶ 2; Parsons Rpt. at ¶ 4). The parties also agree that Forrest’s right leg was injured at the same time and that he was still receiving medical care for that injury in January 2002. (McCombs Rpt. at ¶¶ 2-3; Parsons Rpt. at ¶ 6).

The parties disagree, however, about the events that took place during the first few

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months of 2002. Forrest claims that his foot and leg never properly healed after the accident and that he developed a severe infection that required amputation of his right leg. (Parsons Rpt. at ¶ 6-7).

Beloit argues that in January 2002, Forrest developed a pressure ulcer on his right heel that became gangrenous due to extraordinarily negligent medical care by the doctors who were treating his injuries. (Defendant’s Reply to Plaintiff’s Motion at ¶ 13). According to Beloit’s experts, the amputation would not have been necessary if Forrest’s doctors had acted more aggressively to reduce the pressure on his foot and to treat the pressure ulcer. (Wander Rpt. at ¶ 4; McCombs Rpt. at ¶ 5). Beloit claims that the health care providers’ extraordinary negligence was a superseding cause and seeks to introduce testimony by Dr. Wander and Dr. McCombs stating their opinion that the leg amputation would not have been necessary if Forrest had received competent medical care.

Forrest argues that the expert testimony describing the nature of the medical treatment he received in 2002 is irrelevant because Beloit is liable for all injuries arising out of the accident even if the medical treatment was negligent.

II. Relevance

Restatement (Second) of Torts § 457 states the general rule that “if the negligent actor is liable for another’s bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the other’s injury reasonably requires,” even if the assistance is negligent. Restatement (Second) of Torts § 457. This rule applies when the negligent aid consists of inadequate medical treatment. See

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Restatement (Second) of Torts § 457, cmt. b; Kemper Natl. P CCos, v. Smith, 615 A.2d 372, 376 (Pa.Super. 1992).

An exception to § 457 exists when the subsequent negligence is so extraordinary as to constitute a superseding cause.[2] Corbett v.Weisband, 551 A.2d 1059, 1073 (Pa.Super. 1988). An intervening act of negligence is not necessarily a superseding cause if:

a) the actor at the time of his negligent conduct should have realized that a third person might so act, or
b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or
c) the intervening act is a normal consequence of a situation created by the actor’s conduct and the manner in which it is done is not extraordinarily negligent.

Restatement (Second) of Torts § 447; see also Corbett at 1073-74.

Reasonable minds could differ as to whether acts taken by Forrest’s medical providers were superseding causes.[3] Both parties’ experts agree that Forrest lost sensation in his foot as a

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result of the initial accident. A reasonable fact finder might determine from this that any negligence by Forrest’s doctors in early 2002 was a normal consequence of the calender machine accident. Nonetheless, testimony by Dr. Wander and Dr. McCombs might convince a reasonable fact finder that Forrest’s doctors acted extraordinarily negligently. Because reasonable minds could differ as to whether the medical treatment constitutes a superseding cause, the question is one for the finder of fact. Accordingly, the expert testimony is relevant.[4]

III. Rule 26(a)(2)(B)

Forrest asks the Court to exclude the expert testimony under Fed.R.Civ.P. 37 for failure to comply with Fed.R.Civ.P. 26(a)(2)(B). He argues that the experts’ reports are too brief, rest on inadequate factual bases, and fail to reference supporting exhibits. He criticizes Dr. Wander and Dr. McCombs for failing to examine him prior to writing their opinions. In addition, Forrest points out that Beloit has failed to provide information either about the experts’ testimony in prior cases or about their compensation in this case.[5]

The arguments regarding the reports’ brevity and factual bases are without merit. Both

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Dr. Wander and Dr. McCombs provide analytically sufficient explanations for their opinions regarding Forrest’s injuries. Dr. Wander’s report includes a list of documents supporting his opinion, including hospital records and doctors’ reports. Dr. McCombs’ report refers more generally to “the voluminous records pertinent” to the case, but Defendant’s Reply to Plaintiff’s Motion in Limine includes as an attachment a more detailed list of the documents consulted by Dr. McCombs, including a number of hospital and other health care records. Rule 703 of the Federal Rules of Evidence allows experts to base their opinions on sources beyond the experts’ personal knowledge, including reports prepared by others. See
Fed.R. Ev. 703 advisory committee’s note. Given the extensive documentation on which the experts based their opinions, their failure personally to examine Forrest does not per se render their testimony inadmissible.[6]

Forrest correctly states that Rule 26(a)(2) requires that an expert report include “any exhibits to be used as a summary of or support for the opinions” and “the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.” Under Rule 37(c)(1), a party who without substantial justification fails to make a disclosure required under 26(a)(2) may not use the undisclosed information as evidence at trial. Forrest argues that the expert testimony should be excluded on these grounds.

This argument ignores Local Rule 26.1(f), which calls on the parties to make reasonable efforts to settle discovery disputes before asking for the Court’s intervention:

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No motion or other application pursuant to the Federal Rules of Civil Procedure governing discovery or pursuant to this rule shall be made unless it contains a certification of counsel that the parties, after reasonable effort, are unable to resolve the dispute.

Local R. Civ. P. 26.1(f). Forrest has made no such certification. In fact, Beloit’s response explains the reasonable efforts that Beloit is taking to comply with Rule 26.

IV. Conclusion

For the reasons set forth above, Plaintiff’s Motion in Limine to Exclude Expert Testimony of David S. Wander, D.P.M., and Peter R. McCombs, M.D. will be denied. An appropriate Order follows.

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ORDER AND NOW, this day of October, 2003, upon consideration of Plaintiff’s Motion in Limine to Exclude Expert Testimony of David S. Wander, D.P.M., and Peter R. McCombs, M.D. (docket no. 55) and Defendant’s Reply (docket no. 67), IT IS ORDERED that Plaintiff’s Motion is DENIED.

[1] Forrest’s Complaint also named Harnischfeger Industries, Inc. (“HII”) as a defendant. In a Memorandum and Order dated August 20, 2003, this Court granted HII’s Motion for Summary Judgment. Accordingly, HII no longer is a party to this case.
[2] A superseding cause is defined as “an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.” Restatement (Second) of Torts § 440; see also Corbett at 1073.
[3] What Beloit should have realized, what a reasonable person would view as highly extraordinary, and whether an intervening act is a normal consequence of a particular situation are questions of fact to be determined at trial. Estate of Flickinger v. Ritsky, 305 A.2d 40, 43
(Pa. 1973); see also Corbett at 1073. Provided that reasonable minds could differ, evidence that will assist the fact finder in determining these issues is relevant. Estate of Flickinger at 43.
[4] Forrest makes the additional argument that the expert testimony should be excluded under Fed.R. Ev. 403 because its probative value is outweighed by the danger of unfair prejudice and confusion. The Court finds, however, that the proffered testimony is highly relevant because it directly bears on the issue of whether the doctors’ negligence was a superseding cause. Furthermore, it is not apparent how the testimony would unfairly prejudice, confuse, or mislead a jury. Accordingly, the evidence will not be excluded under Rule 403.
[5] Forrest also argues that Dr. McCombs’ testimony should be excluded because his report was submitted one day after the deadline set by the Scheduling Order. In this instance, because Forrest has failed to demonstrate that the one day delay will prejudice his claim, the Court finds that the delay is harmless. Accordingly, the Court will not sanction Beloit for failing to meet the deadline. (Fed.R.Civ.P. 37(b)(2), (c)(1))
[6] Furthermore, any post-amputation examination by Dr. Wander or Dr. McCombs would have been of little use in determining whether treatment of Forrest’s foot was a superseding cause.

It should be noted that Forrest’s Motion in Limine does not attack the experts’ qualifications.