United States District Court, District of Columbia
For DARRELL CAIN, Plaintiff: David B. Jordan, LEAD ATTORNEY, PRO HAC VICE, JORDAN & DUNN, LLC, Rock Hill, SC; Joel M. Finkelstein, LEAD ATTORNEY, Law Offices Of Joel M. Finkelstein, Washington, DC.
For HARRIS TEETER, INC., Defendant: Jeffrey Robert DeCaro, LEAD ATTORNEY, James S. Liskow, DECARO, DORAN, SICILIANO, GALLAGHER & DEBLASIS, L.L.P., Bowie, MD.
JAMES E. BOASBERG, United States District Judge.
Plaintiff Darrell Cain blames his injured back on a June 2009 accident in which a Harris Teeter employee hit him with a pallet jack. To prove causation, Cain relies on expert testimony by Dr. William Lehman, who began treating Cain in 2011. Harris Teeter now moves to exclude that testimony. It argues that, because Lehman formed his opinion without consulting medical records from July 2009, he cannot rule out an October 2009 accident as the actual cause of Cain's injuries. As Lehman's causation testimony is a linchpin for other experts and, indeed, the case itself, Harris Teeter also moves to exclude the testimony of those experts and for partial summary judgment. Concluding that Lehman's causation testimony has sufficient basis, is reliable, and is relevant, the Court will deny the Motion.
While making a delivery at a Harris Teeter grocery store around June 9, 2009, Cain was struck by a pallet jack driven by a Harris Teeter employee. See Mot. at 1. According to Plaintiff, that negligence seriously injured his lower back, leaving him unable to work despite multiple surgeries. See Opp. at 1.
Cain initially sought treatment from the Lewisville Medical Center, first on June 10 and then again on June 12. See Mot., Exh. 13 (J. Richard Wells, Independent Medical Evaluation of Darrell Cain (Feb. 22, 2013)) at 3. Doctors there prescribed medication and ordered light work duty. See id. Twice in the next two weeks, Cain sought further treatment at an urgent-care center. See id.
On July 14, Cain saw Dr. David DuPuy. See Mot., Exh. 1 (DuPuy Treatment Notes) at 3. Based on x-rays and a physical examination, DuPuy diagnosed a " [l]ow back sprain with contusion[s] of [the] left hip, knee and left foot." Id. at 3-4. DuPuy prescribed further pain medication and extended the restrictions on work. See id. at 4. A return visit on August 4, which again included x-rays and an examination, revealed improvement. See id. at 2. In their final appointment on August 26, DuPuy found Cain's physical examination to be " essentially normal now." Id. at 1. DuPuy therefore released Cain " as being at MMI [maximum medical improvement] and as having sustained no permanent partial physical impairment." Id. Cain disputes DuPuy's findings, maintaining that he continued to have pain in his back and legs at that time. See Opp., Exh. 5 (Dep. of Darrell Cain) at 98:21-100:3.
In October, Cain's back gave out while he was moving bags of ice. According to Cain, he was moving five-pound ice bags -- one at a time -- from one pallet to another. See id. at 101:17-104:20. Perhaps ten bags in, while twisting between pallets, he felt a sharp pain in his lower back. See id. Harris Teeter suggests that the bags Cain was moving were in fact heavier than he claims. See Mot. at 6 n.3. Either way, it is clear that he was seriously hurt.
Cain ended up at Carolina Orthopaedic Surgery Associates, where he initially saw Dr. Matthew Schwartz and Dr. Thomas Fleischer. See id. at 6. After an MRI in early November -- Cain's first to that point -- revealed herniated disks in his back, he underwent surgery on January 4, 2010. See id. at 6-7. When Dr. Fleisher died in early 2011, Cain came under the care of Dr. William Lehman. See id. at 8. Lehman performed another surgery on August 4, 2011. See id. Despite the operations, Cain's back problems persist. According to Lehman, Cain will never work again as a commercial truck driver and will experience lifelong pain. See ECF No. 14 (Dep. of William Lehman) at 120:3-9, 121:5-8.
Cain sued Harris Teeter for negligence in D.C. Superior Court in 2012, requesting $2.5 million in compensatory damages. Harris Teeter removed the case to federal court, and trial is currently scheduled for January 2014.
Cain's expert on causation is Lehman. See ECF No. 6 (Plaintiff's Expert Designation) at 2-4. At his deposition, Lehman opined that the June 9 pallet-jack accident caused Cain's problems. See, e.g., Lehman Dep. at 133:4-17. Yet, in coming to that opinion, Lehman based his testimony entirely on the Carolina Orthopaedic ...