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Guthrie v. Hochstetler

United States District Court, N.D. Indiana, South Bend Division

May 14, 2018

GREG GUTHRIE, Plaintiff,


          Michael G. Gotsch, Sr. United States Magistrate Judge.

         On March 14, 2018, Plaintiff, Greg Guthrie, filed his Motion to Exclude Expert Testimony asking the Court to exclude the testimony of Defendant Lori Ann Hochstetler's retained expert, Ernest P. Chiodo, M.D., J.D., M.P.H., M.S., M.B.A., C.I.H., under Federal Rules of Evidence 403 and 702 as well as the principles set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Hochstetler filed her response in opposition to Defendants' motion on March 28, 2018. Guthrie's motion became ripe on April 4, 2018, when he filed a reply brief. Jurisdiction in this Court is proper under 28 U.S.C. § 1332(a)(1), as Guthrie and Hochstetler are citizens of different states and the amount in controversy exceeds $75, 000.000, exclusive of interest and costs. The Court issues the following opinion pursuant to the consent of the parties and 28 U.S.C. § 636(c).

         I. Relevant Background

         On August 30, 2014, the parties were involved in a car collision in which Hochstetler rear-ended Guthrie's car. Both cars had been stopped on a highway off-ramp. Guthrie began moving forward as traffic allowed but then had to stop abruptly when the car in front of him stopped. Hochstetler was not able to stop before colliding with Guthrie's car. Guthrie's bumper sustained minor damage and Guthrie reported no injuries at the scene. However, a little more than two weeks after the collision, Guthrie visited a doctor and was diagnosed with cervical strain requiring chiropractic treatment and physical therapy. Later, a neurosurgeon diagnosed him with a herniated disc in his neck that ultimately led to fusion surgery about fifteen months after the collision.

         On March 22, 2016, Guthrie initiated this civil action against Hochstetler alleging that her negligence resulted in the car collision that caused the herniated disc in his neck. Accordingly, Guthrie seeks judgment against Hochstetler to compensate him for all his losses.

         On September 20, 2016, this Court issued its Rule 16(b) Preliminary Pretrial Scheduling Order establishing deadlines for discovery, including the disclosure of retained experts, and for “[a]ny evidentiary objections to another party's expert witness, whether directed to the witness's qualifications or to the foundation for the anticipated testimony, ” among other things. [DE 8 at 2]. Specifically, the Court set July 1, 2017, as the deadline for evidentiary objections. The Court explicitly informed the parties that “[f]ailure to file such objections is waiver of any objection to opinion testimony outlined in the statement filed by the witness's proponent.” [Id.].

         On July 1, 2017, Dr. Chiodo, Hochstetler's retained expert, sent his report in the form of a letter to her attorney. Dr. Chiodo was retained as an expert in the field of biomedical[1] engineering. He is a medical doctor, a lawyer, and has advanced degrees in public health, biomedical engineering, threat response management, and occupational and environmental health sciences with a specialization in industrial toxicology. Dr. Chiodo maintains patients as part of his medical practice, represents plaintiffs in toxic tort cases, and works as a forensic expert witness typically for the defense in cases involving low-speed collisions.

         Based upon a review of Guthrie's medical records, a photo of the bumper of Guthrie's car after the collision, Guthrie's responses to written discovery requests, transcripts from depositions of three of Guthrie's treating physicians, and the police crash report as well as peer reviewed medical and scientific literature and the Court's own Reference Manual on Scientific Evidence, 3rd Edition, Dr. Chiodo opined in his report that there is no causal connection between the August 2014 and Guthrie's ill health. Dr. Chiodo stated also that Guthrie suffered no injury or illness due to the collision therefore no treatment, rehabilitation, or accommodation was required due to the collision. [DE 31-1 at 13].

         On September 22, 2017, Guthrie deposed Dr. Chiodo. In the parties' proposed pretrial order filed on October 11, 2017, Guthrie informed the Court that he “anticipate[d] filing a Daubert Motion challenging Dr. Earnest [sic] Chiodo from testifying once the deposition testimony is transcribed.” [DE 19 at 1]. For reasons unrelated to Guthrie's anticipated Daubert motion, the trial was rescheduled for June 26, 2018, through an order dated November 28, 2017. [DE 28]. After the Court denied Hochstetler's motion to exclude testimony from two of Guthrie's treating physicians for alleged discovery shortcomings through an order dated February 2, 2018 [DE 29], Guthrie filed the instant Daubert motion on March 14, 2018.

         Through his motion, Guthrie challenges the reliability of Dr. Chiodo's opinions, as well as their helpfulness to the jury, citing Fed.R.Evid. 702. Alternatively, Guthrie invokes Fed.R.Evid. 403 and contends that any relevance of Dr. Chiodo's opinions to this case is substantially outweighed by the danger of unfair prejudice and the risk of misleading the jury. Hochstetler contests each of Guthrie's arguments.

         II. Analysis

         A. Waiver of Evidentiary Objection

         As a preliminary matter, Guthrie's instant Daubert motion was not filed before the Court's deadline for evidentiary objections of July 1, 2017. Additionally, Guthrie did not file a motion to extend the evidentiary objection deadline before or after the deadline expired. Instead, Guthrie simply reported an anticipated Daubert motion more than three months after the deadline passed in a proposed pretrial order [DE 19] and then filed the motion without leave of court five months later. Guthrie has offered no explanation for the untimely motion despite being served the Court's Preliminary Pretrial Scheduling Order [DE 8] in which the deadline was set and the parties' proposed pretrial order, which included a footnote explicitly stating that “[t]he deadline for filing of all potentially dispositive motions, including Daubert motions was July 1, 2017.” [DE 19 at 1 n.2].

         Arguably, Guthrie may have waived his objection to Dr. Chiodo by failing to comply with the Court's deadline. However, the Court recognizes that it would have been difficult for Guthrie to file a Daubert motion when Dr. Chiodo's report was sent to Hochstetler's attorney on the same date as the Court's deadline for evidentiary objections. Nevertheless, the deadline passed. Under Fed.R.Civ.P. 6(b)(1)(B), the court may extend deadlines for good cause “on motion made after the time has expired if the party failed to act because of excusable neglect.” While the Court may have willingly extended the deadline for evidentiary objections given the timing of Dr. Chiodo's report if requested shortly after deadline passed or even shortly after Dr. Chiodo's deposition, Guthrie never asked. Instead, Guthrie waited eight months after the deadline passed and filed the motion without asking the Court's permission. Moreover, Guthrie has offered no explanation for why he tarried more than five months after Dr. Chiodo's deposition before filing the instant motion. Thus, Guthrie has ...

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