Opinion
Civil Action No. 09C-07-148-JOH.
Submitted: December 2, 2010.
Decided: December 29, 2010.
Upon Motion by Defendant to Exclude the Testimony of Dr. Peter Bandera — DENIED .
Joseph W. Weik, Esquire, of Weik Nitsche Dougherty, Wilmington, Delaware, Attorney for Linda J. Stevens.
Sarah B. Cole, Esquire, of Casarino Christman Shalk, Wilmington, Delaware, Attorney for State Farm Automobile Insurance Company.
MEMORANDUM OPINION
This is an underinsured action scheduled to go to trial January 10, 2011. On November 30, 2010, State Farm moved to exclude the testimony of plaintiff's medical expert, Dr. Peter Bandera. He is a physiatrist (physical medicine and rehabilitation). He has indicated that as a result of the auto accident in this case, plaintiff, Linda Stevens' pre-existing fibromyalgia was aggravated. The underlying condition had been previously diagnosed by a rheumatologist.
State Farm seeks to exclude such causal testimony on the basis that several prior decisions of this Court have ruled the cause or causes of fibromyalgia has or have not been sufficiently medically linked to enable any medical expert, except perhaps a rheumatologist, to offer such causal testimony.
State Farm relies upon two decisions. The first is Minner v. American Mortgage and Guarantee Company. Minner was a "sick building" case in which several plaintiffs claimed that working in a certain office building caused them to develop several conditions, including fibromyalgia. The plaintiffs' expert was not a rheumatologist. The Court reviewed a substantial amount of literature raising questions about the cause of, or inability to establish a medical cause of fibromyalgia.
791 A.2d 826 (Del. Super. 2000).
The primary problem this Court found in Minner with the proffered link between the "sick building" and plaintiffs' fibromyalgia (which this Court stated was a diagnosable condition) is that the expert could not identify a specific triggering toxin. This led the Court to exclude any testimony that conditions in the building caused the fibromyalgia.
Id.
Id.
Closer to the instant case is Warren v. Topolski, upon which State Farm relies. Warren was an auto accident case in which the plaintiff's fibromyalgia was undisputed. The expert in that case was an anesthesiologist who opined that the fibromyalgia had been triggered by the auto accident. In Warren, the Court mused about whether it might be best that a rheumatologist, if anyone, should be the causal expert. The Court reviewed and discussed the voluminous record of medical literature submitted by both parties on the causation issue. Like the Minner Court, this Court found that many questions remained regarding fibromyalgia causes not being medically established, including one article discussing trauma.
2008 WL 836022 (Del. Super.).
The Court is unsure whether State Farm disputes Stevens' fibromyalgia.
Warren at 1.
As to fibromyalgia, Minner and Warren deserve close reading. But this Court is more concerned about the issue being raised now on the eve of trial. The Court views State Farm's motion in limine as a violation of its scheduling order of January 14, 2010. The pertinent portions of that order are:
Discovery Deadline May 21, 2010
(Primary focus to be on liability and expert issues)
Filing of Dispositive Motions June 21, 2010
(Dispositive motion includes any issues relating to expert testimony)
* * * * *
Prior to the discovery deadline the Court expects the following to be completed:
(1) All discovery relating to expert witnesses, particularly relating to general competency and/or ability to opine on specific issues in this case.
(2) All discovery relating to liability.
Dr. Bandera's deposition was taken on November 23, 2010. Notice that it would be taken was "e-filed" October 4, 2010. Both clearly were months late. Counsel and the Court had a teleconference on July 21, 2010 at which a new discovery cut-off was set (which the Court does routinely in personal injury cases in the event there are ongoing medical treatment issues), but the deadline for expert reports and challenges to experts or their opinions was not extended.
Motions relating to the qualifications of experts or to their opinions in a particular case have become de rigeur since Minner and especially since Daubert v. Merrell Dow Pharmaceuticals, Inc. This Judge has described it as a "cottage industry." That comment is not meant to disparage such motions, but it is meant to reflect the substantially increased number of them and the consequent burden placed on this Court as "gatekeeper."
509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed.2d 469 (1993).
Wright v. Clark, 2010 WL 2861383 (Del. Super.).
As the filing and use of " Dabuert" motions became increasingly an issue for this Court's attention, this Judge believed it necessary to create a more orderly process to consider them. When too many come on the eve of trial, as they were, the Court's ability to adequately examine the motions and reflect on them is obviously diminished. This increases the risk of a wrong decision, injustice to one of the parties, and perhaps, an unnecessary appeal.
In addition, if the " Daubert" issue is raised too close to trial, such as in this case, and is happening with increasing frequency, there may be no time to set up and conduct the necessary pre-trial hearing. Also, if a ruling is made on the eve of trial disqualifying an expert or the expert's opinion, that party is left no time to get a new expert and is unquestionably severely prejudiced. Another risk of last minute " Daubert" motions is that a hearing would have to be held during the trial. This is disruptive, unduly prolongs trials and is an unwarranted imposition on our citizen jurors.
Of course, all of this puts a greater premium on the Bar to more carefully investigate and select their experts.
A motion to disqualify an expert or to exclude an expert's testimony is virtually a case dispositive motion in many instances. As such, this Judge's scheduling orders provide the same deadlines for " Daubert" motions as for summary judgment motions. These scheduling orders, such as the one quoted above, instruct that discovery be directed towards both such motions prior to the status conference at which the trial date is set. Except for rare instances and good cause, this Judge has specifically declined to entertain summary judgment motions after the deadline.
There is another side to " Daubert"motion practice. This Court has seen a few of its cases where the side challenging the other side's expert is expecting to disqualify the expert and does not obtain its own rebuttal expert. Better for the challenging side to know in advance that its motion fails, and it has enough time to get its own expert.
This Judge, therefore, believed the scheduling order system he had used needed a change to avoid or significantly reduce the number of risks listed above. One of those risks is distinctly present here and it is the potential loss of a key plaintiff's witness mere weeks before trial. Trial dates with this Court's caseload are precious, and a goal of individual civil case assignment since 1996 has been to make them as certain as possible. Further, continuances of civil trials with this Court's current three months civil, three months criminal rotation, can and often does result in a prolonged delay until the next date.
This means this Judge takes most seriously the dates and deadlines set. They are not idly appointed. Of course, this Judge realizes that deadlines are not unmalleable and compelling reasons can be offered to change or modify them. To do so or to waive them, of course, is a matter of discretion.
ABB Flakt, Inc. v. National Union Fire Ins. Co., 731 A.2d 811, 815 (Del. 1999).
State Farm never sought relief from the original deadline for filing a " Daubert" motion. What it appears to have happened is that its counsel misunderstood the purpose for deadlines for motions in limine established in this Court's trial scheduling order of July 21, 2010. But neither at the status conference when that order was issued nor at any other time did State Farm seek leave to belatedly file a motion like its current one. Nor has it sought clarification of the motion in limine deadlines, in the original January 14, 2010 scheduling order.
Stevens supplied to State Farm sometime in early 2010, if not earlier, a copy of Dr. Bandera's February 2, 2009 report. In it he states:
Summary
Traumatic cervical/lumbar syndrome with strain/sprain/radiculopathy, lower extremity paresthesis, aggravation of fibromyalgia with reflex sympathetic distrophy changes.
Dr. Bandera letter dated February 2, 2009.
The Court is unaware when Stevens supplied this letter to State Farm. It would appear that it was sometime prior to her answers to State Farm's interrogatories which she answered on March 18, 2010. One of her answers states:
ANSWER: Plaintiff anticipates that she will require ongoing medical care with Dr. King and Dr. Bandera. For need for future care, please refer to Dr. Bandera's medical report of February 2, 2009 where he opined that reasonable follow-up medical care would include physician follow-up visits of 3 to 4 times per year or $300 per year with monitored medication trials at $3,000 per year, a pain and fitness program and $500 per year, and follow-up MRI of the neck and back every 5 years at $1,000 per study.
Interrogatory #17 and answer. Copy obtained from Stevens' counsel.
The Court's docket also reveals that on December 31, 2009, State Farm propounded a series of interrogatories to Stevens. She answered them on March 18, 2010. One interrogatory and answer are of particular note:
28. With reference to any expert who you expect to call as an expert witness at trial, state:
(b) The subject matter on which the expert is expected to testify.
ANSWER: It is anticipated that Dr. Bandera will testify that as a result of the motor vehicle collision of May 2, 2007, Plaintiff sustained a traumatic cervical and lumbar syndrome with strain, sprain and radiculopathy of the lower extremity with paresthesis and aggravation of fibromyalgia with reflex sympathetic distrophy changes. It is further expected Dr. Bandera will testify that the medical treatment to date has been reasonable, necessary, and causally related to the trauma of the motor vehicle collision and that the Plaintiff will continue to require ongoing medical care in the future due to the permanent nature of her injuries. It is further anticipated Dr. Bandera will testify that the injuries have rendered the Plaintiff totally disabled and that she will remain disabled indefinitely due to the permanent nature of her injuries.
Interrogatory #28 and answer. Copy obtained from Stevens' counsel.
At least by March 18, 2010, if not earlier, State Farm was fully aware that Dr. Bandera, not an anesthesiologist, would testify, and that the instant accident caused an aggravation of her fibromyalgia. This information gave State Farm over two months, to either depose Dr. Bandera or to file its motion to exclude his testimony and do within the Court's deadline. State Farm failed to do so and did not depose him for another eight months. Naturally, this unwarranted delay after ample time to act is a significant factor in this Court's disposition of State Farm's current motion.
In the exercise of discretion to or not to enforce the " Daubert" motion deadline, the Court has weighed and considered various factors, including: continuing the trial to some time in later summer 2011 at the earliest (subject to counsel availability), the issues relating to fibromyalgia's causation, that Dr. Bandera's testimony would be that a pre-existing fibromyalgia (diagnosed by a rheumatologist) was aggravated, prejudice to Stevens, the inaction of State Farm, its failure to adhere to clear deadlines, and the overall ability of this Court to manage its caseload. Much of that encompasses policy considerations this Court covered earlier.
The Court is enforcing its " Daubert" deadline. This Court has the "discretion to resolve scheduling issues and control its docket." Deadlines in the Court's scheduling orders are not mere guidelines but have full force and effect. The Court is enforcing its discovery schedule. State Farm's failure to timely delve into Dr. Bandera's opinion and timely file a " Daubert"motion results in its current motion in limine being DENIED.
Sammons v. Doctors for Emergency Services, P.A., 913 A.2d 519, 528 (Del. 2006).
Id., quoting Fletcher v. Doe, 2005 WL 1370188 (Del. Super.).
Coleman v. Pricestarhouse-Coopers, LLC, 902 A.2d 1102, 1106-1107 (Del. 2006).
Conclusion
For the reasons stated herein, defendant State Farm's motion to exclude the testimony of Dr. Peter Bandera is DENIED.IT IS SO ORDERED.