K'Lynne A. Winn
Charles O. Clements
Lawrence Spiller Kimmel, Esq., Brian S. Legum, Esq., Kimmel,
Carter, Roman, Peltz & O'Neill, P.A.
D. Kuhl, Esq.
in this case is scheduled for March 13, 2017. Defendant asks
this Court to dismiss the case because Plaintiff did not
submit an expert report. For the reasons stated below,
Defendant's Motion for Summary Judgment Due to Lack of
Medical Expert Opinion is DENIED.
Defendant's reliance and request to dismiss under
Hill v. DuShuttle not only unduly broadens the scope of
that decision, but the rationale for dismissal runs counter
to its holding.
Factual and Procedural Background
a personal injury claim involving two motor vehicle accidents
that occurred on February 9, 2013 and February 11,
2013. The Court issued a trial scheduling order
in this case on July 15, 2016. The deadline for
"Plaintiffs expert reports (or Rule 26(b)(4)
disclosures)" was August 31, 2016. On August 2, 2016,
Plaintiffs counsel emailed Defendant's counsel in
relevant part as follows:
I am not sure if you received a 26(b) expert disclosure from
me yet in this case. If not, see below:
Dr. Conrad King will testify on behalf of K'Lynne Winn
and the injuries she sustained in a motor vehicle accident
["MVA"] on 2/9/13.
Dr. King will testify consistent with his medical records
that pre-date and post-date the 2/9/13 MVA.
Dr. King will testify that Ms. Winn sustained injuries to her
neck, low back, and her body went into contractions (she was
pregnant at the time of the accident) as a result of the
Dr. King will testify that the medical treatment from 2/9/13
through 2015 has all been reasonable, necessary, and causally
related to the 2/9/13 MVA.
Dr. King will testify that he is familiar with the treatment
and injuries (if any) that Ms. Winn received as a result of
the 7/18/11 MVA, 2/11/13 MVA, and 4/11/16 MVA.
Dr. King will testify that the below medical bills are all
reasonable, necessary, and causally related to the 2/9/13
MVA: [listed in email].
All of Dr. King's testimony will be given within a
reasonable degree of medical probability.
Please let me know if you have any additional
December 2, 2016, three months after the deadline for
Plaintiffs expert disclosures, Defendant filed this Motion
for Summary Judgment. His brief in support of the Motion was
filed on the same day. Plaintiff responded on January 27,
2017. Defendant's Reply Brief was filed on February 7,
2017. Oral arguments were heard on February 24, 2017, and the
matter is ripe for review.
of the Parties
Motion turns on a very narrow issue of law: whether
Plaintiffs expert disclosure, outlined in the above email,
suffices to meet Plaintiffs obligation under Rule
26(b)(4)(A). Defendant argues that the email alone is fatal
to Plaintiffs case as it does not suffice for Plaintiff to
meet his prima facie burden at trial regarding
causation and damages.
support, Defendant contends that Hill v. DuShuttle
settled the issue of whether a plaintiff must produce a
medical expert report in a personal injury case.
Specifically, Defendant relies heavily on the Supreme
Court's language that a "formal report is required
under the rules. . . ." Defendant further argues that
this holding now supersedes any trial scheduling order that
permits expert disclosures under Rule 26. Defendant cites
three post-Hill decisions and one pre-///// decision
in support of his Motion: Diaz v.
Malarkey, Watunya v. Siena, Dixon v.
Batson, and Duncan v. O.A. Newton & Sons
argues that dismissal is not warranted where the expert
disclosure fully complies with this Court's trial
scheduling order and Rule 26(b)(4)(A). Moreover, Plaintiff
disagrees with Defendant's position that Hill
mandates an expert report in all personal injury cases, and
contends that the case law in support of dismissal is
distinguishable from this case.
burden of proof on a motion for summary judgment falls on the
moving party to demonstrate that "there is no genuine
issues as to any material fact and that the moving party is
entitled to judgment as a matter of law." If the moving
party satisfies its initial burden, the non-moving party must
sufficiently establish the "existence of one or more
genuine issues of material fact." Summary
judgment will not be granted if there is a material fact in
dispute or if "it seems desirable to inquire thoroughly
into [the facts] in order to clarify the application of the
law to the ...