CIVIL ACTION NO. 2:07cv167-SRW, (WO).
February 12, 2008
SUSAN WALKER, Magistrate Judge
By order entered November 28, 2007, this court denied defendant's motion for summary judgment on plaintiff's claim alleging that defendant breached a contract of insurance by failing to pay plaintiff's claim arising from the 2004 collapse of plaintiff's hip. This action is presently before the court on defendant's motion, filed on February 12, 2008 (Doc. # 36), for reconsideration of the court's order denying summary judgment on this claim, and plaintiff's response to the motion (Doc. # 37).
In support of its motion for summary judgment, defendant filed the affidavit of Dr. Daniel W. Michael, an orthopedic surgeon. Dr. Michael concluded:
Because of the normal time that it takes for avascular necrosis to develop, particularly to the point it had developed in his left hip, it is my opinion that there is no relationship between the alleged October 2004 accident and the onset and subsequent problems Mr. Godwin had in both hips from the avascular necrosis of the femoral heads.
(Michael aff., Defendant's Exhibit 5 to summary judgment motion). Plaintiff survived summary judgment on the breach of contract claim because there was evidence of record — a letter from plaintiff's physician, Dr. Barrington, to defendant's claims examiner — suggesting that plaintiff's accidental injury "probably" aggravated plaintiff's pre-existing avascular necrosis, causing plaintiff's hip to collapse. Defendant had itself introduced this letter into evidence, and the court expressly concluded that by making no argument regarding any limitation on the purposes for which the court could consider the exhibit, defendant had waived any evidentiary objection to the exhibit for purposes of the summary judgment motion. (See Memorandum Opinion, Doc. # 23 at p. 17 n. 9). Absent defendant's waiver, the letter — offered by plaintiff to prove the substance of Dr. Barrington's opinion — would have been excluded as hearsay.
At the pretrial conference held in this matter on February 7, 2008, plaintiff's counsel admitted that she had identified no expert witness to testify at trial regarding the cause of plaintiff's 2004 hip injury and would not offer expert testimony. Thus, Dr. Barrington will not testify at trial regarding the cause of plaintiff's hip collapse. On the basis of plaintiff's judicial admission at the pretrial conference, defendant now moves for reconsideration of the order denying summary judgment. Plaintiff responds that, while he conceded at the pretrial conference that he would not produce a medical expert on the issue of causation of the collapse of his left hip and the resulting surgery, he also explained to the court that "plaintiff would testify concerning his personal knowledge of the symptoms he experienced due to his medical condition." (Doc. # 37).
Because plaintiff admits that he has no expert medical testimony to offer, he cannot produce sufficient evidence at trial to create an issue of fact for the jury regarding whether his occupational accident in 2004 caused his hip injury. In view of the uncontroverted evidence of record regarding plaintiff's avascular necrosis, plaintiff's lay testimony regarding his symptoms, regardless of its nature, would be insufficient to allow a jury to infer reasonably that plaintiff's hip collapse resulted from his 2004 occupational accident. Plaintiff's inability to present expert medical testimony is fatal to his claim. Cf. Black-Gammons v. Zurich America Ins. Co., 2006 WL 47503, ** 3-4 (M.D. Ala. Jan. 9, 2006) (granting summary judgment for occupational accident insurer on plaintiff's breach of contract claim because plaintiff "presented no medical evidence whatsoever" that her claimed injury did not stem from her degenerative disc disease). Accordingly, it is
ORDERED that the motion to reconsider the order denying summary judgment is GRANTED, that defendant's motion for summary judgment as to plaintiff's breach of contract claim arising from plaintiff's 2004 accident and injury is GRANTED, and that this claim is, accordingly, DISMISSED with prejudice.
The sole claim now remaining before the court is plaintiff's breach of contract claim arising from his 2003 injury.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST 1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1 365 1 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 486 U.S. 196 201 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. 890 F.2d 371 376 Gillespie v. 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