The URL can be used to link to this page

Home My WebLink About2020CV30363 - Stuward Cross And Katrina Richman V. City Of Fort Collins - 034 - Motion In Limine To Exclude Testimony Concerning Injuries Not Supported By Medical ProfessionalsDISTRICT COURT, LARIMER COUNTY, COLORADO Larimer County Justice Center 201 Laporte Avenue, Suite 100 Fort Collins, CO 80521-2761 (970) 498-6100 Plaintiffs: STUWARD CROSS AND KATRINA RICHMAN v. Defendant: THE CITY OF FORT COLLINS, State of Colorado COURT USE ONLY Andrew W. Callahan, #52421 Julie M. Yates, #36393 WICK & TRAUTWEIN, LLC P.O. Box 2166 Fort Collins, CO 80522 Phone: (970) 482-4011 Email: acallahan@wicklaw.com; jyates@wicklaw.com Case Number: 2020 CV 30363 Courtroom: 5A DEFENDANT’S MOTION IN LIMINE TO EXCLUDE OR LIMIT TESTIMONY NOT SUPPORTED BY MEDICAL PROFESSIONALS COMES NOW Defendant the City of Fort Collins, by and through counsel, Andrew W. Callahan and Julie M. Yates of Wick & Trautwein, LLC, and files its motion in limine to exclude or limit testimony not supported by medical professionals as follows: Rule 121 Certification: Undersigned counsel states that he conferred with Plaintiffs’ counsel, Laura Browne regarding the instant motion. Plaintiffs oppose the motion. BACKGROUND This is a personal injury lawsuit by Plaintiffs against the City of Fort Collins arising out of an automobile collision. Both Plaintiffs had significant pre-existing health issues prior to the collision which are the same or similar to the injury claims they are now alleging were caused by 2 the collision. For example, Plaintiff Richman was on her way home from a physical therapy appoint at the time of the accident and is now claiming injuries to the same portion of her neck for which she was already receiving treatment. Additionally, both Plaintiffs have signaled an intent to allege that they suffered a traumatic brain injury in the accident. However, no such brain injury diagnosis has been made by any medical provider, and the Plaintiffs’ own retained expert opined that neither Plaintiff suffered a concussion or TBI as a result of the accident. The City does not believe that the accident in question caused any of the injuries claimed by Plaintiffs. The City seeks to prohibit Plaintiffs from testifying that the collision at issue caused them injuries that are not supported by documentation in the medical records or otherwise supported by expert testimony. LEGAL STANDARD Colorado Rules of Evidence 701 provides: If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of fact in issue, and (c) not based on scientific, technical or other specialized knowledge within the scope of Rule 702. [emphasis added] A lay witnesses should not be permitted to testify to matters which required a level scientific, technical or other specialized knowledge. People v. Garridaon, 411 P.3d 270, People v. Douglas, 412 P.3d 785, People v. Ramos, 396 P.3d 21. In determining whether testimony is lay testimony or expert testimony, a trial court must look to the basis of the opinion. If the witness provides testimony that could be expected to be based on an ordinary person’s experience of knowledge, then the witness is offering lay testimony. If, on the other hand, the testimony being 3 offered could only be offered with specialized knowledge, experience or training, the testimony is expert testimony. Venalonzo v. People, 388 P.3d 868, People v. Howard-Walker, 446 P.3d 843, Campbell v. People, 443 P.3d 72. ARGUMENT A. Plaintiffs should not be permitted to testify to injuries and symptoms for which no expert witness disclosure has provided support for causation. The City concedes that an injured party can testify to their symptoms, as well as call other lay witnesses for the purpose of providing pre- and post-accident observations. However, the medical determination of a traumatic brain injury or ultimate medical diagnosis remains within the providence of a medical expert. Dunlap v. People, 173 P.3d 1054, 1098 (Colo. 2007). As is set forth more fully in Defendant’s contemporaneously filed Motion in Limine to Exclude or Limit Expert Witness Testimony, Plaintiff’s initial expert disclosures are merely a recitation of medical history which do not provide any opinions on injury causation. Plaintiffs did not provide any expert testimony with regard to causation until they filed their Rebuttal Expert Disclosures identifying the written reports of Dr. John Hughes. Dr. Hughes prepared reports in which he identified, for the first time, which injuries were causally related to the collision at issue. With respect to Stuward Cross: Plaintiffs’ rebuttal expert, Dr. John S. Hughes, specifically states that the only injuries or symptoms complained of by Mr. Cross which did not exist prior to the collision on June 7, 2017 are complaints of pain to his left-side neck, shoulder, and arm pain. (See Dr. Hughes Report on Stuward Cross, attached as Exhibit A). Dr. Hughes states that Mr. Cross did not suffer a traumatic brain injury. Dr. Hughes opined that Mr. Cross’ difficulties in expressing himself were more likely related to depression and stress. Dr. Hughes 4 states that no injury to Mr. Cross’ thoracic spine occurred during the accident (congenital issues not related to the accident existed), and that Mr. Cross’ carpal tunnel was unrelated to the accident. Plaintiff Cross should be prohibited from testifying to those maladies that Plaintiff’s own expert determined to be unrelated to the events of June 7, 2017. With respect to Katrina Richman: Plaintiffs’ rebuttal expert, Dr. John S. Hughes, specifically states that the only injuries or symptoms experienced by Plaintiff Richman, with a causal connection to the accident of June 7, 2017 is a soft tissue cervical spine sprain/strain. (See Dr. Hughes Report on Katrina Richman, attached as Exhibit B). Dr. Hughes states that Plaintiff Richman did not sustain a traumatic brain injury or concussion from the accident – that he believes her cognitive issues stem from side effects of ongoing opioid medication uses and underlying depression and anxiety. Dr. Hughes states that Plaintiff Richman’s PTSD is not a result of the accident and that her cervical and lumbar issues are from degenerative disease. Plaintiff Richman should be prohibited from testifying to those maladies that Plaintiff’s own expert determined to be unrelated to the events of June 7, 2017. CONCLUSION Here, Plaintiffs should be prohibited from providing self-diagnosis testimony, unsupported by any medical opinion, due to the danger of prejudice, confusion of the issues, or misleading the jury. C.R.E. 403, People v. Abbott, 638 P.2d 781 (Colo, 1981). Plaintiffs are not qualified to self- diagnose a traumatic brain injury, or a closed head injury. Pomeranz v. McDonald’s Corp., 843 P.2d 1378, (Colo, 1993). Plaintiffs, outside of testifying to pre- and post-collision symptomology, should not be permitted to testify to injuries and symptoms for matters unrelated to the accident of 5 June 7, 2017 and for which causation is not supported by any of the thirty-five (35) in total expert witnesses identified by Plaintiffs. WHEREFORE, Defendant respectfully requests that Plaintiffs, as law witnesses, be prohibited from testifying to matters constituting a self-diagnosis of medical conditions not supported by any medical professional witness designated by Plaintiffs, and for such other relief as is just and reasonable. Respectfully submitted this 11th day of October, 2021. WICK & TRAUTWEIN, LLC By: s/ Andrew W. Callahan Andrew W. Callahan, #52421 Julie M. Yates, #36393 Attorneys for Defendant 6 CERTIFICATE OF ELECTRONIC FILING The undersigned hereby certifies that a true and correct copy of the foregoing DEFENDANT’S MOTION IN LIMINE TO EXCLUDE OR LIMIT TESTIMONY NOT SUPPORTED BY MEDICAL PROFESSIONALS was filed via the Colorado Courts E-Filing System and served this 11th day of October, 2021, on the following: Laura Browne – lbrowne@sawayalaw.com Ashley N. Fridovich – afridovich@sawayalaw.com The Sawaya Law Firm 1600 N. Ogden Street Denver, CO 80218 Adam Stephens – adstephens@fcgov.com FORT COLLINS CITY ATTORNEY’S OFFICE P.O. Box 580 Fort Collins, CO 80522 s/ Jody L. Minch