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Goerdt v. Midwest Transport Specialist, Inc.

United States District Court, E.D. Kentucky, Northern Division, Covington

January 8, 2018

DANIEL W. GOERDT, et al. PLAINTIFFS
v.
MIDWEST TRANSPORT SPECIALISTS, INC., et al. DEFENDANTS

          MEMORANDUM ORDER

          DAVID L. BUNNING, UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         On September 19, 2017, the Court held a Final Pretrial Conference in this matter and adjudicated twenty-two pretrial motions. (Doc. # 181). Because of the need for supplemental briefing, the Court reserved ruling on objections to the parties' deposition designations. (Docs. # 147, 148, and 149). Since the Final Pretrial Conference, Defendant Jack Cooper Transport, Company, Inc. (“Jack Cooper Transport Co.”) filed an additional pretrial motion, seeking to limit Plaintiffs' damages for medical expenses. (Doc. # 186). The Court having heard argument from counsel at the Final Pretrial Conference, the motions are fully briefed (Docs. # 147, 148, 149, 182, 183, 184, 186, 187, and 188) and ripe for review.

         II. ANALYSIS

         A. Defendant Jack Cooper Transport Co.'s Objections to Plaintiffs' Initial Deposition Designations

         Defendant Jack Cooper Transport Co.'s has objected to Plaintiffs' use of Doctor Saltzman's deposition testimony at trial. (Doc. # 147). Counsel for Defendant Jack Cooper Transport Co. has also lodged an oral objection to the Plaintiffs' use of Doctor Sammarco's deposition testimony. (Doc. # 181 at 11). At the Final Pretrial Conference, the Court reserved ruling on the objections because of the need for supplemental briefing. Id. Only the Plaintiffs complied with the Court's request for supplemental briefing. (Doc. # 182).

         Defendant Jack Cooper Transport Co.'s Objection to the use of Doctor Saltzman's and Doctor Sammarco's expert testimony included only vague citations to Federal Rule of Evidence 702, which governs testimony by expert witnesses. (Doc. # 147). At the Final Pretrial Conference, however, counsel for Defendant Jack Cooper Transport Co. clarified that the basis for the objection was that neither Doctor Saltzman nor Doctor Sammarco specifically stated that their opinions were “based on a reasonable degree of medical certainty/probability.” (Doc. # 181 at 11).

         Defendant Jack Cooper Transport Co.'s objection is meritless and is overruled. Although a “plaintiff must prove medical causation by a reasonable medical probability by using expert medical testimony, ” an expert witness “need not use particular ‘magic words' to signal that such reasonable medical probability exists.” Fulcher v. United States, 88 F.Supp.3d 763, 771 (W.D. Ky. 2015) (citing Brown-Forman Corp. v. Upchurch, 127 S.W.3d 615, 621 (Ky. 2004)). “Instead, the Court will look to the ‘quality and substance' of a physician's testimony to determine ‘whether it rises … to the level necessary to prove a particular medical fact.'” Id. (quoting Brown-Forman Corp., 127 S.W.3d at 621).

         That Doctor Saltzman and Doctor Sammarco failed to use “magic words” and attest that their opinions were “based on a reasonable degree of medical certainty/probability” does not warrant exclusion of their testimony. The expert opinions offered by Doctors Saltzman and Sammarco extend beyond that of mere possibility and sufficiently satisfy the causation requirement. Accordingly, Defendant Jack Cooper Transport Co.'s Objections to Plaintiffs' Initial Deposition Designation as to Doctor Saltzmand and Doctor Sammarco are overruled.

         B. Defendants Midwest Transport and Cleaveland's Motion to Exclude Deposition Testimony of Terence Milford

         Defendants Midwest Transport Specialist, Inc. (“Midwest Transport”) and Lawrence Cleaveland have moved to exclude deposition testimony of Terence Milford. (Doc. # 183). First, Defendants Midwest Transport and Cleaveland ask the Court to prevent Defendant Jack Cooper Transport Co. from using Terence Milford's deposition testimony in its case-in-chief because it cannot satisfy the requirements of Federal Rule of Civil Procedure 32(a).[1] (Doc. # 183-1 at 1-2). The Court agrees.

         Federal Rule of Civil Procedure 32(a) permits the use of depositions in court proceedings if three requirements are met: (1) the party was present or represented at the taking of the deposition or had reasonable notice of it; (2) it is used to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying; and (3) the use falls within one of three limited circumstances. Fed.R.Civ.P. 32(a)(1)(A)-(C). The third requirement prevents Defendant Jack Cooper Transport Co. from using Terence Milford's deposition testimony in its case-in-chief. Aside from impeachment purposes, [2] a party seeking to use a deposition must prove that the witness is unavailable or that they are adverse to the party whose deposition they are seeking to introduce. Fed.R.Civ.P. 32(a)(2)-(4). As the proponent of Terence Milford's deposition, Defendant Jack Cooper Transport Co. cannot satisfy either circumstance-it is not an adverse party to Terence Milford and Terence Milford is not an unavailable witness. Accordingly, Defendants Midwest Transport and Cleaveland's motion is sustained and Defendant Jack Cooper Transport Co. is prohibited from using Terence Milford's deposition testimony in its case-in-chief.

         Second, Defendants Midwest Transport and Cleaveland ask the Court to limit Plaintiffs' use of Terence Milford's deposition testimony pursuant to Federal Rules of Evidence 401, 402, 403, and 701. A review of Plaintiffs' Updated Designation of Terence Milford's Deposition (Doc. # 184) reveals that there are only two portions of the deposition that Plaintiffs seek to use and Defendants Midwest Transport and Cleaveland seek to exclude. The Court will transcribe, and then address, each challenged portion of the designated deposition testimony in turn.

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