Opinion
CIVIL ACTION NO. 95-2849(JBS)
Filed: December 27, 1999
Gary D. Ginsberg, Esquire, Mount Laurel, N.J., Attorney for Plaintiffs.
J. Shane Creamer, Jr., Esquire, Frank A. Luchak, Esquire, Alison R. Petriycki, Esquire, Craig F. Turet, Esquire, DUANE MORRIS HECKSCHER, Cherry Hill, N.J., Attorney for Defendant.
Armstrong World Industries, James Crawford Orr, Esquire, WILSON, ELSER, MOSKOWITZ, EDELMAN DICKER, ESQS., Newark, N.J., Attorney for Third-Party Defendant.
American Mineral Spirits Company, Christopher M. DiMuro, Esquire LATHAM WATKINS, Newark, N.J., Attorney for Third-Party Defendants.
Monsanto Company and Solutia, Inc., James Edward Tyrrell, Jr., Esquire PITNEY, HARDIN, KIPP SZUCH, PC, Morristown, N.J., Attorney for Third-Party Defendant.
OPINION
In a December 29, 1998 Corrected Opinion ("Opinion") and December 16, 1998 Order, this Court granted in part and denied in part summary judgment for defendant Armstrong World Industries, Inc. ("Armstrong") and third-party defendants Monsanto Company ("Monsanto"), Solutia, Inc. ("Solutia"), and American Mineral Spirits Co. The Order dismissed most of the "fear of cancer" claims brought by plaintiffs, but it denied summary judgment on three plaintiffs' claims: Patricia Barnes, Judith Nelson, and Kathleen Sweeney. In denying summary judgment against the claims of these three plaintiffs, this Court found that they had presented enough evidence, through their own deposition testimony, to create a genuine issue of material fact as to whether they suffered severe emotional distress as a result of their alleged exposure to polychlorinated biphenyls ("PCBs") while working at Burlington Community College ("BCC"). At the same time, this Court noted that these plaintiffs' own testimony that they sought psychological counseling after learning of possible PCB exposure would be hearsay inadmissible at trial, but that evidence of that treatment from the plaintiffs' own psychologists or psychiatrists would be admissible. Assuming that such evidence was available, this Court denied summary judgment as to those plaintiffs (Opinion at 41-42), but also noted that it made no ruling as to the admissibility of any such psychiatric/psychological counseling treatment evidence, which could be discussed in later motions in limine. The present motions question this Court's assumption that plaintiffs Barnes, Nelson, and Sweeney had proffered admissible records of their treatment by their therapists, pointing out that as of the time of the filing of the present motions, these plaintiffs had produced no records or other detailed medical information regarding their alleged treatments.
Now before the Court are two motions: a motion for summary judgment filed on March 19, 1999 by third-party defendants Monsanto and Solutia (collectively referred to as "Monsanto"), in which defendant Armstrong joined through a separate motion, and Armstrong's motion in limine to exclude medical records which plaintiffs Barnes, Nelson, and Sweeney attached to their opposition to the motion for summary judgment. Monsanto and Armstrong argue that this Court's previous Opinion and Order assumed that plaintiffs would present expert testimony to support their subjective claims of injury, but that, in fact, no expert reports were submitted within the applicable discovery deadlines, save defendants' own expert reports that plaintiffs do not suffer from any psychological or psychiatric disorder. Based on its own expert's report, coupled with the lack of such reports on behalf of the plaintiffs, Monsanto and Armstrong argue that there is no genuine issue of material fact that plaintiffs Barnes, Nelson, and Sweeney have not suffered from severe psychological or psychiatric problems as a result of PCB exposure, and thus that summary judgment should be granted for the defendant and third-party defendants.
Pretrial factual discovery in this protracted case ended on July 31, 1998, pursuant to the Scheduling Order of May 18, 1998, and none of the psychotherapy reports at issue had been disclosed by plaintiffs or otherwise made available to defendants despite clearly articulated demands in discovery to do so. As explained below, while Barnes, Nelson, and Sweeney were not required to produce expert reports of severe psychological problems, they were required to produce evidence that they received counseling because of the PCB exposure. Though these plaintiffs did attach medical records documenting this to their opposition to the instant summary judgment motions, they did not produce these documents to defendant and third-party defendants at any earlier time despite the clear duty to have done so. This Court will grant Armstrong's motion in limine to exclude these records. Based on that ruling, Monsanto's and Armstrong's motions for summary judgment will be granted, except as to plaintiff Nelson, for reasons now explained.
DISCUSSION
A. Whether It Was Necessary to Provide Expert Medical Reports Documenting Recognized Mental Illnesses
In the December 29, 1998 Opinion, this Court noted that where plaintiffs claim emotional distress from exposure to a toxic substance but have not suffered physical injury as a result of the exposure, the emotional distress must be "severe, substantial, and tantamount to physical injury." (Opinion at 10, citing Theer v. Philip Carey Co., 256 N.J. Super. 40, 50 (App.Div. 1992), rev'd on other grounds, 133 N.J. 610 (1993).) Normal worrying, aggravation, sleep loss, headaches, or even trips to the doctor for testing do not rise to the level of severe emotional distress. (Opinion at 11.) Rather, this Court found, "a plaintiff must present evidence beyond his or her own subjective diagnosis of fear, . . . showing that he or she had some sort of lifestyle change as a result of the exposure and due to his or her resultant fear of contracting cancer." (Id. at 13.) The Opinion specifically noted:
While it is not necessary per se for a plaintiff to exhibit signs of a recognized mental illness or emotional disorder, the fact that a plaintiff seeking recovery for emotional distress sought professional support in dealing with the emotional distress would go far in substantiating plaintiff's claim. It is up to the plaintiff in such a case to do more than just say he or she is scared or fearful. He or she must show how his or her mental health worsened to a level of severe distress, as exhibited through more concrete evidence, such as lifestyle changes or visits to a mental health professional for treatment, rather than claiming simple loss of sleep or trips to the doctor.
(Id. at 14.)
Thus, the December 29, 1998 Opinion made it clear that the plaintiffs did not need evidence of the actual diagnosis of a recognized psychiatric or psychological disorder, but concrete lifestyle changes acting upon a fear of cancer or that the fact that someone was distressed enough to seek counseling as a result of exposure could be evidence of severe emotional distress. Defendants and third-party defendants, of course, would be free at trial to argue to the jury that, based upon their own expert report and upon other factors, plaintiffs Barnes, Nelson, and Sweeney in fact did not suffer severe emotional distress, but the lack here of expert reports stating that these plaintiffs suffered from named psychological or psychiatric disorders is not fatal to plaintiffs' claims.
Monsanto and Armstrong argue that the Afterword in the December 29, 1998 Opinion in fact requires the plaintiffs to produce expert reports to confirm their testimony. This Court did note that "[i]t is assumed that the medical evidence proffered by these plaintiffs, and relied upon by this Court, will be available at the time of trial, and that the reports of these expert witnesses or treating psychiatrists/psychologists have been served as required by the Court's case management orders." (Id. at 41.) The word "reports" in this sentence was, perhaps, unfortunately chosen given this Court's early statement that no evidence of a recognized mental illness or emotional disorder necessarily need be offered and that evidence of visits to a mental health professional for treatment would suffice. (Id. at 14.) What the Afterword meant was that, at trial, plaintiffs would not simply be able to rely upon their own statements that they had been prescribed medication in connection with their fears or that they had received psychological counseling in connection with their alleged exposure, for such statements would be hearsay; medical evidence of such treatment would be required from the treating mental health professionals themselves.
Patricia Barnes testified that her doctor prescribed her Paxil and Prozac in connection with her fears. (Opinion at 16-18, citing Barnes Tr. at 93.) Judith Nelson testified that she was prescribed antidepressants because she suffers from nightmares, flashbacks, anxiety, shortness of breath, lack of concentration, and terror over returning to BCC. ( Id . at 31-34, citing Nelson Tr. at 67.)
Kathleen Sweeney testified that she had discussed her fear of cancer with doctors and had received psychological counseling in connection with her alleged PCB exposure, the deaths of her colleagues, and her fears of getting cancer. (Opinion at 36-38, citing Sweeney Tr. at 102-104.)
Here, plaintiffs did not submit timely experts' reports documenting recognized mental illnesses or emotional disorders in the plaintiffs. However, the question at this point is not whether these plaintiffs did in fact suffer from known mental illnesses or emotional disorders; at trial, defendants may produce their expert testimony that these plaintiffs in fact did not so suffer, and plaintiffs will be barred from producing expert opinion evidence at trial that they did in fact suffer from known emotional or psychological disorders. The question now is whether there is evidence, by way of medical records, that the plaintiffs sought and received counseling for severe emotional distress because of the alleged exposure.
B. Motion in Limine to Exclude Medical Records
In response to the renewed motion for summary judgment against Barnes, Sweeney, and Nelson, these plaintiffs have belatedly attached to their reply counseling records on each of these three plaintiffs. (Pls.' Opp'n Br. Exs. B-F.) More specifically, plaintiff Barnes attached counseling records from Patricia Johnston, MSW, LCSW (earlier known as Patricia Burkhardt). (Id. at Ex. B.) Plaintiff Sweeney attached counseling records from and Carole Gural, ACSW. (Id. at Ex. D.) Plaintiff Nelson attached records from Dr. Audrey Haber (id. at Ex. E) and Dr. Stuart F. Kushner (id. at Ex. F).
The Court has reviewed these counseling records and has determined that they are susceptible of the interpretation that plaintiffs did seek and receive counseling regarding their alleged PCB exposure at BCC. However, with the exception of the records from Dr. Haber for plaintiff Nelson, Armstrong seeks, by way of motion in limine, to exclude all of these records for failure to turn them over in discovery, in connection with interrogatory answers, responses to requests for production of documents, and responses to requests for admissions. According to Armstrong, it requested these records earlier and plaintiffs failed to provide any such records. Armstrong claims it is prejudiced by plaintiffs' disregard of discovery obligations because its psychiatrist expert reached his opinion on these plaintiffs based on incomplete medical records. The history of the parties' discovery efforts in this case supports Armstrong's position.
1. First Set of Interrogatories
On September 20, 1995, Armstrong served a First Set of Interrogatories on Barnes, Nelson, and Sweeney, asking each plaintiff to identify every "symptom," "disorder," "injury," "illness," and "disease" which she claimed she had contracted as a result of PCB exposure, as well as to identify every medical practitioner (by name, address, and other identifying information)who had examined plaintiff and rendered services because of the symptoms. (Turet Certif. Ex. D.) The First Set of Interrogatories also asked whether treatment was continuing and whether plaintiff had ever experienced similar distress in the past (Id.)
Plaintiff Barnes identified "severe emotional distress, anxiety [and] mental anguish" as symptoms. (Id. at Ex. E, at 8-10.) She did not identify any mental health care providers, disclosing only her primary care physician and certain pulmonary specialists. (Id.) Based on the fact that the medical record Ms. Barnes provided in opposition to the summary judgment motion begin with December 4, 1996, it would appear that she actually did not have a mental health specialist at that time.
Plaintiff Nelson responded to the First Set of Interrogatories on April 22, 1996, noting as symptoms that she "became afraid of contracting cancer and developed severe emotional distress when first told that there were PCBs in the building. . . ." (Id. at Ex. F, at 7.) She listed Dr. Ira Fox and Dr. Audrey Haber as health care providers by whom she had been seen for her fear and severe emotional distress. (Id.) Limited records were received from Dr. Haber. Dr. Fox responded to a subpoena by noting that he had no records relating to Nelson. (Id. at Ex. G.) Despite the fact that Nelson had apparently been receiving treatment from Dr. Kushner beginning as early as August 28, 1991, Nelson's interrogatory responses did not identify him at all.
Armstrong does not seek to exclude the mental health care records of Dr. Haber.
Plaintiff Sweeney stated that she experienced "severe emotional distress as a result of being exposed to defendant's product for an extended period of time." (Id. at Ex. H, at 9.) She did not say that she was receiving any treatment, and she did not provide the name of any health care professional, noting that the question requesting such information was "Not applicable." (Id. at Ex. H, at 13.) By that time, however, she had apparently been seeing Pat Burkhardt (Pat Johnston) over at least a nine-year period, beginning in February of 1990, which is information that the defendant was entitled to receive when it so requested in discovery.
2. First Request for Production of Documents
On September 20, 1995, Armstrong also served a First Request for Production of Documents, specifically requesting records reflecting pain, suffering, or emotional distress allegedly resulting from exposure to PCBs, and any treatment received therefor. (Id. at Ex. I.) None of Barnes, Nelson, or Sweeney ever served a response to the request or timely object to it. The negative response to these proper discovery requests means that plaintiffs were aware of no such responsive documents. Barnes, Nelson, and Sweeney never produced any records relating to counseling for "emotional distress," until they were called upon to answer the second motion for summary judgment brought against them in March of 1999.
3. First Request for Admissions with Accompanying Interrogatories
On September 26, 1996, Armstrong served a First Set of Requests for Admissions, explicitly directed at uncovering the care or treatment each Fear of Cancer plaintiff had received in connection with her alleged fear, and resulting emotional distress. (Id. at Ex. J.) For example, request for admission number two asked fear of cancer plaintiffs to admit that they had not receive any care, treatment, or services for fear of cancer from any health care provider, other than those identified in the responses to First Set of Interrogatories. (Id.) These requests were accompanied by interrogatories. (Id.) For example, if a plaintiff denial or equivocally agreed with request for admission number two, he or she was to identify relevant facts, documents, names of knowledgeable persons, and names of health care providers who had rendered such treatment for a fear of cancer. (Id.) Barnes, Nelson, and Sweeney never responded to the First Request for Admissions or the accompanying interrogatories.
4. Third Request for Production of Documents
On March 31, 1998, a few months before the close of discovery, Armstrong served its Third Request for Production of Documents on Fear of Cancer plaintiffs, specifically requesting "[a]ny and all medical records of any plaintiff made since the plaintiff's respective deposition was taken in this case [between December 1996 and March 1997]." (Id. at Ex. K.) Barnes, Sweeney, and Nelson never responded. The negative responses must be interpreted as confirmation that no such records existed.
5. Deposition Testimony
Nelson, Barnes, and Sweeney mentioned the names of these mental health specialists during their depositions. (Plaintiffs' Ltr. Br. Exs. B, pp. 60-62 [Nelson identifies Dr. Kushner], C, pp. 93-96, 148-149 [Barnes identifies Carole Gural], and D, pp. 101-103 [Sweeney identifies Pat Johnston]. These depositions took place on December 3, 1996, January 8, 1997, and March 3, 1997, respectively. Nonetheless, plaintiffs disregarded their obligations to provide seasonable supplementation of their negative discovery responses in which their interrogatory responses, document production, and admissions were silent as to the existence of such therapists or records. Armstrong's and Monsanto's psychiatric expert, Dr. Robert Toborowsky, did not examine these plaintiffs until late 1997, and he did not write his export report until January of 1998. By that time, Armstrong had already sent out extensive subpoenas for the Fear of Cancer plaintiffs' medical providers (id. at Ex. E), and plaintiffs argue that Armstrong could have sent out subpoenas for these mental health providers as well, based on their identification during plaintiffs' depositions.
Despite the uncontroverted evidence that these mental health providers were identified during the depositions, however, it is also uncontroverted that Armstrong's requests for the names and addresses of these medical providers elsewhere in discovery were never answered by these plaintiffs, nor did plaintiffs ever explain why the essential facts of this treatment were concealed from the defendant.
6. Ruling on Motion in Limine
Armstrong and Monsanto ask this Court to exclude the medical records provided on behalf of plaintiffs Barnes, Nelson, and Sweeney, with the exception of Nelson's medical records from Dr. Haber. This Court will grant that request for two reasons. First, granting the motion in limine is an appropriate sanction under Fed.R.Civ.P. 37(d) for failure to answer interrogatories served pursuant to Fed.R.Civ.P. 33 and for failure to produce documents requested pursuant to Fed.R.Civ.P. 34. Rule 33(b) provides that parties upon whom interrogatories have been served shall serve a copy of answers and objections within thirty days. Rule 34(b) provides that parties upon whom document requests are served shall serve a written response within thirty days. Under Rule 37(d),
[i]f a party . . . fails . . . (2) to serve answers or objections . . . under Rule 33 . . . or Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subparagraphs (A), (B), and (C) of subdivision (b)(2) of this rule.Id. The authorized actions include "[a]n order . . . prohibiting [the disobedient] party from introducing designated matters in evidence." Id. at 37(b)(2)(B).
In the present case, it is true that plaintiffs Barnes, Nelson, and Sweeney did identify mental health professionals during their depositions. However, in addition to the fact that these three plaintiffs either left relevant doctors' names out of their answers to the First Set of Interrogatories or failed to supplement their answers with updated information, they blatantly failed to respond to Armstrong's First Request for Production of Documents, First Request for Admissions with Accompanying Interrogatories, and Third Request for Production of Documents, in which Armstrong sought the names and addresses of relevant health care providers. The plaintiffs (other than Nelson as to Dr. Haber) failed to give notice of these crucial facts to defendant in connection with their allegations of fear of cancer. Other than pointing to their deposition testimony, plaintiffs have offered absolutely no excuse for their failure to respond. Given that the only evidence of fear of cancer that these plaintiffs have is their medical records of emotional distress from their mental health care providers, this information is highly important.
Though Dr. Toborowsky was aware that plaintiffs had seen these mental health providers by the time that Dr. Toborowsky wrote his reports (because plaintiffs mentioned these providers to him), he did not have these providers records to consider in reaching his opinions. His opinions were based on incomplete records. Armstrong has been prejudiced by this.
Second, by failing to respond to the First Request for Admissions, these plaintiffs admitted that they received no care, treatment, or services for fear of cancer from any health care provider not identified in the responses to the First Set of Interrogatories. See Fed.R.Civ.P. 36(a) ("The matter is admitted unless, within 30 days after service of the request . . ., the party to whom the request is directed serves upon the party requesting the admissions a written answer or objection addressed to the matter. . . ."). None of the mental health providers whose medical records are at question here — Dr. Kushner, Carole Gural, and Pat Johnston — were identified in the First Set of Interrogatories. Therefore, by failing to respond to the Request for Admissions, plaintiffs Barnes and Sweeney admitted that they saw no mental health professionals for her fear of cancer, and plaintiff Nelson admitted that she saw no one other than Dr. Fox (who had no records on her) and Dr. Haber for her fear of cancer.
It would be completely unfair and prejudicial, over three years after the Request for Admissions was served, to allow plaintiffs to introduce for the first time medical records that contradict their admission that they saw no mental health professionals other than those listed in the First Set of Interrogatories. Indeed, plaintiffs have not to this day sought to be relieved from these admissions. Therefore, plaintiffs' medical records from Dr. Kushner, Carole Gural, and Pat Johnston will be excluded.
C. Ruling on Motion for Summary Judgment
This Court has ruled that while expert reports of recognized psychological diagnoses are not required, plaintiffs Barnes, Nelson, and Sweeney would be required to produce medical evidence that they had been prescribed medicine in connection with their fears or received psychological counseling in connection with severe emotional distress caused by their alleged exposure. These plaintiffs' own testimony that they were prescribed medicine or received counseling would be hearsay, and that alone could not defeat a motion for summary judgment. Barnes, Nelson, and Sweeney for the first time attached medical records to their opposition to the summary judgment motion. However, with the exception of plaintiff Nelson's records from Dr. Haber, all of these records have now been excluded from the case. (Additionally, no plaintiff claims that her fear of cancer was manifested in a dramatic lifestyle change, in which case evidence of mental health counseling would be unnecessary.)
Under Rule 56(e), Fed.R.Civ.P., the party opposing summary judgment, here plaintiffs Barnes, Sweeney, and Nelson, have the obligation of responding with evidence that would be admissible at trial, and the proffer of inadmissible documents will not serve to meet this burden.Maguire v. Hughes Aircraft Corp., 912 F.2d 67, 72 (3d Cir. 1990); Schoch v. First Fidelity Bancorp., 912 F.2d 654, 657 (3d Cir. 1990); Sound Ship Bldg. Corp. v. Bethlehem Steel Co., 533 F.2d 96 (3d Cir.), cert. denied, 419 U.S. 860 (1976); see 10B Wright, Miller Kane, Federal Practice Procedure (1998 ed.), § 2739.
Summary judgment practice following the end of lengthy periods of fact discovery and expert discovery, as in the present case, does not afford yet another opportunity to a party opposing summary judgment to come forward with evidence that the party previously refused to provide or, again as in the present case, indicated or admitted did not exist. In this case, the period for concluding fact discovery expired on July 31, 1998, pursuant to the final Scheduling Order filed May 18, 1998. All experts' reports had been required to be served previously, and the time for concluding expert depositions was extended to September 30, 1998, again by the Scheduling Order of May 18, 1998. Depositions of experts were temporarily delayed pending disposition of other motions, and remaining expert depositions were required to be finalized by May 15, 1999, pursuant to the Scheduling Order of April 6, 1999, amended to May 21, 1999 by the Scheduling Consent Order filed May 26, 1999.
Never did these plaintiffs seek leave to reopen discovery to belatedly supply these records of therapy treatments, nor did those plaintiffs seek to be relieved from the effect of their failures to respond to the requests for admissions, by which they were deemed to have admitted that no mental health care was received other than from persons previously identified, thereby ruling out any such therapist or mental health care records of plaintiffs Barnes and Sweeney. (Nelson, as noted above, is the lone exception since her attorney had made disclosure of Dr. Haber's records of her treatment.) Nor does the brief mention such therapy visits in deposition testimony serve to undo the prior and continuing failures to provide responsive discovery through interrogatories, admissions, and document production requests.
It is not up to this Court long after the period of pretrial discovery expired, to excuse these failures to comply with the rules of discovery and pretrial practice so that deadlines applicable to all parties are set aside for no reasons to accommodate plaintiffs' case. It is likewise not up to defendants Armstrong or Monsanto to ferret out records of psychotherapeutic treatment where these plaintiffs have not staked claims tied to their treatments by these mental health professional when called upon to do so during the discovery phase of this case. This result is not the enforcement of some "technicality" but is instead a recognition of a fundamental tenet of federal litigation: a party having the burden of proving a claim will lose that claim upon a properly supported motion for summary judgment where the party has failed to produce admissible evidence to support the claim when repeatedly requested to do so during the long-expired pretrial discovery period.
Without these records, there is no genuine issue of fact as to whether plaintiffs Barnes and Sweeney suffered severe emotional distress as a result of exposure to PCBs. Plaintiffs Barnes and Sweeney have the burden of proffering admissible evidence on this point, and they are unable to do so. Therefore, this Court will grant summary judgment in favor of Armstrong and Monsanto as to all claims by plaintiffs Patricia Barnes and Kathleen Sweeney. Plaintiff Judith Nelson, however, still has medical records from Dr. Haber to back up her claim that she received counseling and medication, and thus there remains a genuine issue of fact as to whether Nelson has suffered severe emotional distress as a result of her exposure to PCBs. Summary judgment will be denied to Armstrong and Monsanto on Nelson's claims.
CONCLUSION
For the foregoing reasons, Armstrong's motion in limine will be granted, and Monsanto's and Armstrong's motions for summary judgment will be granted insofar as they concern plaintiffs Patricia Barnes and Kathleen Sweeney and denied insofar as they concern plaintiff Judith Nelson.
ORDER
This matter having come before the Court upon the motion in limine by defendant Armstrong World Industries, Inc. ("Armstrong") to exclude medical records of plaintiffs Patricia Barnes, Judith Nelson, and Kathleen Sweeney from Dr. Stuart A. Kushner, Carole Gural, and Patricia Johnston; and upon the motion of Third-Party Defendants' Monsanto Company and Solutia, Inc. (collectively referred to as "Monsanto") for summary judgment as to claims by plaintiffs Barnes, Nelson, and Sweeney, in which Armstrong joins; and this Court having considered the parties' submissions; and for the reasons expressed in an Opinion of today's date;
IT IS this day of December 1999 hereby
ORDERED that Armstrong's motion in limine, which appears on the docket as entry 280-1, be, and hereby is, GRANTED; and it is
ORDERED that Monsanto's motion for summary judgment, which appears on the docket as entry 270-1, in which Armstrong has joined in a motion docketed as entry 273-1, be, and hereby is, GRANTED IN PART insofar as it relates to plaintiffs Patricia Barnes and Kathleen Sweeney and DENIED IN PART insofar as it relates to plaintiff Judith Nelson. JUDGMENT is entered in favor of defendant and third-party defendants on claims brought by Patricia Barnes and Kathleen Sweeney.