The opinion of the court was delivered by: GEORGE HOWARD JR., District Judge
Plaintiffs filed this action alleging that defendant Young was
negligent in the operation of his tractor trailer resulting in a
traffic accident in which plaintiffs were injured. Plaintiffs
also sue Young's employer, alleging that it is vicariously liable
for Young' negligence. Defendants have answered and
counterclaimed, asserting that plaintiffs were negligent and that
they are liable for damages to defendants' vehicle.
Pending before the Court are supplemental motions in limine of
plaintiffs and defendants. Plaintiffs ask that defendants be
precluded from introducing evidence that plaintiff James Spencer
had been drinking, had five unopened beers in his vehicle, and
did not have his headlights on.
This is the exact motion filed by plaintiffs on February 5,
2005, and addressed by the Court in its May 5, 2005, Order. At
the time the Court could not find that the evidence plaintiffs
seek to exclude is not relevant. Plaintiffs have not presented
any new law or evidence for the Court to change its ruling of May
5, 2005. Thus, plaintiffs' supplemental motion in limine is
Defendants seek to preclude plaintiff James Spencer's treating
physician, Dr. Charles Schultz, from testifying about James
Spencer alleged permanent impairment. Defendants contend that
Schultz, in his deposition, did not establish the impairment to a
reasonable degree of medical certainty and thus, his opinion,
amounts to speculation. Initially, the Court denied the motion
without prejudice to renew as defendants had not submitted the
deposition testimony. Schultz is a neurologist who treated Spencer as a result of the
injuries Spencer suffered on January 31, 2004.
Defendants have now submitted the deposition testimony.
Defendants rely on page 36 of the deposition wherein Schultz
states that Spencer had permanent impairment in multiple areas
but was unable to give or assess an impairment rating in the
Spencer was referred to Schultz by Dr. Jason Merrick. Schultz
was asked to evaluate the injuries form the motor vehicle
accident. Schultz saw Spencer on June 11, 2004, and found that
Spencer had mild deficits in attention and concentration, that he
had decreased strength in his right arm and hand grip, and a weak
right ankle. He had decreased sensation over the right lower leg,
over the right hand and over the fourth and fifth digits of the
left hand, and a decreased sensation over the left chin and over
most of the left lower face.
As a result of a nerve conduction study, Schultz found that
Spencer had neurogenic changes in the right hand, indicating
local muscle damage involving the right first dorsal interosseous
muscle; right abductor pollicis brevis muscle; and right abductor
digiti minimi muscles. His right leg showed evidence of
neurogenic changes involving local muscle damage involving the
right anterior tibialis and right medial gastric muscles. There
was evidence of acute denervation with abnormality of the left
lower facial nerves, sparing the left frontalis muscle and the
left orbicularis oculi muscles.
Schultz saw Spencer again on July 26, 2004. He was having
similar symptoms and similar complaints, including frequent joint
pain, pain in his legs, and headaches as well as chin and muscle
spasms, memory loss, wandering behavior and dizziness. He was
also having sweating and panic reactions when riding on highways
and around intersections.
Schultz saw Spencer again on August 20, 2004. His condition
remained much the same. Spencer stated that he was having
difficulty writing things down, recognizing family members and
experiencing sudden episodes of confusing and difficulty understanding. He had pain in his neck and back, and
was still having muscle twitching and spasms in his chin and
Spencer's condition was the same when Schultz saw him on
September 24, 2004. He continued to have numbness over his medial
and lateral aspect of his leg, he was unable to walk a hundred
feet without stopping and he was still experiencing
post-traumatic stress disorder symptoms when riding in the car.
The MRI results of the cervical spine revealed mild disk
degenerative changes at C5-6 in the neck and the MRI of the
lumbosacral spine showed degenerative disk disease at L5-S1.
Schultz opined that it was possible that the degenerative disk
disease could have been caused by the type of trauma Spencer
experienced in the accident, but did not know for sure. As
Spencer was having a lot of difficulty with dizziness and
balance, Schultz performed dizziness and balance testing on
Spencer. The testing showed that Spencer had a right peripheral
nervous system abnormality.
Schultz saw Spencer again on November 8, 2004 and on January 7,
2005, when Spencer's condition remained much the same. He
continued to have difficulties with headaches, slurred speech,
occasional stuttering, low-back and facial weakness, pain and
problems with his right legal, dizziness, and continued problems
with his neck.
Schultz last saw Spencer on February 18, 2005, and his
condition remained basically unchanged. Schultz stated that he
was attempting to regulate Spencer's medications, and ...