The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge
E-FILED Monday, 22 April, 2013 10:42:21 AM Clerk, U.S. District Court, ILCD
Now before the Court are the Defendant's motion (#47) to exclude the testimony of Plaintiff's expert witness David Fletcher, M.D. and motion (#52) to strike the fourth supplemental report of Dr. Fletcher. The motions are fully briefed, and I have carefully considered the parties' arguments and the evidence related thereto. As stated herein, the motion to exclude is GRANTED, and the motion to strike is GRANTED.
In addition, Defendant filed a motion (#63) for leave to file a reply brief to #47. Although the Local Rules of this Court do not allow reply briefs for this type of motion, it is within my discretion to allow a reply brief if interests of complete argument are served. I find that such interests are served in this case. Accordingly, the motion is ALLOWED. The Clerk is directed to file the reply brief attached to this motion, linking it to #47.
The following facts are taken from the allegations of the complaint, as supported by the evidence submitted by the parties. Plaintiff Shannon Brown began his employment with Burlington Northern Santa Fe Railway Company ("BNSF") in 1996. In 2007, he was diagnosed by his family doctor, Dr. Grady, with carpal tunnel syndrome (CTS) in both wrists and with cubital tunnel syndrome in his left elbow. Dr. Brady noted too that Brown's mother and possibly his grandmother had suffered from CTS.
On October 25, 2007, while Brown was working as a section foreman/track inspector, he alleges that he was ordered to lift very heavy angle bars. While doing so, he injured his right shoulder. He apparently did not immediately report this injury. His pain continued to increase. He reported the injury and went to the emergency room where x-rays revealed nothing. The next day he went to his family doctor, who ordered a shoulder arthrogram, which also showed normal results.*fn1 Brown continued to have pain, so Dr. Grady prescribed physical therapy. By Dec. 3, 2007, Brown reported to Dr. Grady that his pain was gone. He was released to return to work with no restrictions. Since Dec. 3, 2007, Brown has never complained about shoulder pain.
His release date, Dec. 3, 2007, was the day before he had his first wrist surgery for CTS on Dec. 4, 2007; surgery on his other wrist was performed on Jan. 22, 2008. He remained off work until March 24, when he returned to work with no medical restrictions. He alleges that in the subsequent years, BNSF required, on a daily basis, that he perform work requiring repetitive use of his hands and wrists under force and with vibratory equipment.
Finally, he alleges that in September of 2009, he was working in the Track Department. In that Department, he alleges that he was required to work excessive hours with improper equipment and to work "short-handed," which resulted in (or exacerbated) the cubital tunnel syndrome in his left elbow. On October 13, 2009, he had surgery on his elbow. He returned to work without restriction on Jan. 4, 2010.
His surgeon for all three surgeries, Dr. Williams, deemed each surgery a success and noted that his symptoms were completely resolved. Brown remained employed at BNSF until Sept. 28, 2011. His work through that date was without medical restriction.
This history*fn2 , he alleges, demonstrates three violations of BNSF's duty to provide him with a reasonably safe place to work, pursuant to the Federal Employers' Liability Act ("FELA"), 45 USC §51 et seq. He filed this lawsuit on Nov. 9, 2009.
II. DR. FLETCHER'S TESTIMONY AND REPORTS
In support of his claims, Plaintiff retained David Fletcher, M.D., to conduct an independent medical exam (IME) and provide expert medical testimony. After conducting the IME on August 2, 2011, Dr. Fletcher issued*fn3 his first of four reports on October 11, 2011. Dr. Fletcher saw Brown again on Nov. 29, 2011 and issued a second report on Jan. 3, 2012. On July 19, 2011, Fletcher performed an on-site job site analysis (JSA) and issued a third report 7 months later, on Feb. 27, 2012.
Discovery in this case closed on Nov. 30, 2012. Defendant filed its motion for summary judgment and its motion to bar Dr. Fletcher's testimony on Jan. 7, 2013, the deadline for doing so. Two days later, Dr. Fletcher issued a fourth supplemental report, following his review of "supplemental material." Defendant has filed a motion to strike this final report. Defendant has also filed a motion to bar Dr. Fletcher's testimony.
Dr. Fletcher first saw Brown on August 2, 2011, where he appeared for an independent medical examination (IME). The doctor issued his first report on October 11, 2011. (Def. Motion Exh. 5, BNSF-000118 et seq), reflecting his findings from that examination.
At the IME, Brown filled out a medical history questionnaire indicating, as is pertinent here, and needles in the palms of both hands that was minimal (easy to ignore). He reported that his right shoulder was "97% better." Brown "rated the pain he is experiencing now as '0'". Brown described the physical requirements of his job as lifting 100 pounds from the floor and 50 pounds overhead. He worked 12-6 hour days, lifting between 35-40 pounds, using hydraulic tools, vibratory tools, repairing track, shoveling, driving spikes, use of sledge hammers, and lifting heavy bars (40 pounds).
Dr. Fletcher conducted a physical examination with some testing. He examined the left elbow, noting hypothenar atrophy and loss of interosseous muscle strength in the left elbow (BNSF-000122). Testing showed a positive result for the Tinel's Test (left elbow) (BNSF-000122, and 000134), as well as a positive result of the elbow compression test (ulnar nerve at elbow [cubital tunnel]) (BNSF-000134).
As to the shoulder, the Doctor noted "impingement of the right shoulder", (BNSF-000122), a finding he later contradicted when he noted his examination of the shoulders, stating that "Impingement signs were negative bilaterally." (BNSF-000132). Dr. Fletcher also noted that Brown was unable to undergo an MRI because he had a pacemaker. This prevented a "formal diagnosis," leading to the doctor's statement that Brown needed a right shoulder arthroscopy "to bring his case to closure." (A previous arthroscopy, which Dr. Fletcher referenced, had revealed no "full thickness rotator cuff tear.") (BNSF-000122)
No other abnormal test results were obtained, and no other abnormalities were noted in the physical examination, including the results for Brown's wrists. At some point, Dr. Fletcher also reviewed Brown's past medical records. In addition to briefly summarizing those records, he noted the CTS surgeries, the elbow surgery and commented that "his right shoulder is a work injury when he was moving material weighing 45 lb and felt a pop in his shoulder." (BNSF-000121).*fn4
In his first report (Exh. 5), Dr. Fletcher recited his findings and concluded that Brown: has developed cumulative trauma disorders from his job duties at the Burlington RR. It is my opinion to a reasonable degree medical [sic] certainty that his current condition is a direct result of his job activities at the Burlington Railroad. (Exh. 5 at BNSF-000121).
An "updated report" from Dr. Fletcher was issued on January 3, 2012. BNSF Motion, Exh. 6). This followed Brown's return visit on Nov. 29, 2011, the purpose of which was "to discuss results of EDX testing which show axonal (nerve cell body) nerve damage in previously operated left ulnar nerve." (BNSF-000115). Brown reported a pain level of "3" (BNSF-000114) and described physical issues, which Dr. Fletcher described as follows:
Today the patient complains of numbness in 3 fingers on his left hand. He is experiencing pins and needles on his left elbow. He reports sensitivity in nerve area. He states his hand goes numb when he leans on it. He reports exercising and stretching his left hand helps to decrease his pain.
Dr. Fletcher stated that Brown was "still symptomatic in a classic left ulnar nerve distribution," concluding that Brown needed another left elbow surgery. As to the shoulder, he noted "positive right shoulder impingement with slight limitation of right shoulder", concluding that he "needs a right shoulder arthroscopy to bring his case to closure." The doctor mentioned that Brown want to have the testing "but hopes to land new job which is less physical." (BNSF-000115).
He stated that Brown "has incurred permanent loss. Permanent job restrictions are necessary. His prognosis is guarded; he is not MMI." ...