United States District Court, W.D. Virginia, Harrisonburg Division
JEFFERY T. GARRIS, Plaintiff,
933387 ONTARIO LTD., et al., Defendants. KAREN J. GARRIS, Plaintiff,
933387 ONTARIO LTD., et al., Defendants.
Michael F. Urbanski Chief United States District Judge.
matter comes before the court on Defendants' motion in
limine, filed on November 9, 2018, to exclude and/or limit
the testimony of Dr. George Van Osten on Plaintiffs'
future medical care and expenses. ECF No. 84; ECF No. 93. For
the reasons explained below, Defendants' motion is
have identified Dr. Van Osten as an expert expected to
testify as to their future treatment and the cost of such
treatment. See ECF No. 16, 61; ECF No. 16, 66. Defendants
have moved to exclude this testimony on two grounds: 1)
Plaintiffs have failed to comply with Rule 26(a)(2)(B) of the
Federal Rules of Civil Procedure; and 2) the proffered
testimony is too speculative to be admissible. The court will
address these two grounds in turn.
first objection deals with Federal Rule of Civil Procedure
26(a)(2)(B), which requires all witnesses presenting evidence
under Federal Rule of Evidence 702, 703, or 705 to prepare
and sign a written report, including the expert's
opinions, the basis for these opinions, and the facts and
data used in forming the opinions. Fed.R.Civ.P. 26(a)(2)(B).
Dr. Van Osten, though designated as an expert witness, has
provided no such report.Plaintiffs, in their memorandum in
opposition to this motion, do not claim that Dr. Van v Osten
has at any point provided an expert report. They refer only
to Dr. Van Osten's qualifications and his history of
treating Karen and Jeffery Garris. ECF No. 104, 2-3.
Osten has treated both plaintiffs, which would permit him to
testify in his capacity as a treating physician. Treating
physicians are not generally required to provide a report to
testify, but are instead limited in their testimony. Hall
v. Sykes, 164 F.R.D. 46, 48-49 (E.D. Va. 1995). Any
expert who is "retained or employed to render a medical
opinion based on factors that were not learned in the course
of treatment of the patient" would have to provide the
court with a report. Id.
argue that Dr. Van Osten is not testifying as a treating
physician, but as a medical expert. Dr. Van Osten last
treated Jeffery Garris in January of 2018. ECF No. 85-1, 7 -
8; ECF No. 94-1, 7-8. He last saw Karen Garris before her
permanent spinal cord stimulator was implanted. ECF No. 85-1,
61; ECF No. 94-1, 61. Defendants argue that the information
Dr. Van Osten is using in his testimony did not come from
treatment of either Karen or Jeffery Garris and was instead
gathered from conversations with Plaintiffs' counsel.
Defendants also claim that testimony about future medical
treatment and expenses, by its very nature, falls outside of
the purview of a treating physician.
court agrees with Defendants. While Dr. Van Osten may testify
as to facts learned and opinions derived from his treatment
of Plaintiffs, he may not testify about events that occurred
after his treatment. An opinion based on information gained
outside of treatment must be offered by an expert witness,
not a treating physician. McDonald v. Wal-Mart Stores
East. LP, 2008 WL 153782, at *3 (E.D. Va. Jan. 14,
2008). As Dr. Van Osten has not provided an expert report,
his merely designated testimony does not comply with Rule
next argue that the proffered testimony is speculative.
Rice v. Williams states that evidence of future
medical expenses is only admissible if "brought out of
the realm of speculation into the realm of reasonable
probability; the law in this area deals in
'probabilities' and not
'possibilities'." 2017 WL 3197242, at *1 (W.D.
Va. 2017) (quoting State Farm Mut. Auto. Ins. Co. v.
Kendrick, 254 Va. 206, 208 - 09, 491 S.E.2d 286, 287
(1997)). Defendants point out that during his deposition, Dr.
Van Osten was ambivalent about the probability of his own
projections of Karen and Jeffery Garris' future
treatment. Finally, Defendants argue that Plaintiffs clearly
intend Dr. Van Osten to calculate future medical costs on the
stand, and that this is both outside of his expertise and
the expert designation recommended Jeffery Garris receive
three nerve denervations per year, Dr. Van Osten stated that
he had no way of knowing if Jeffery Garris would need them.
ECF 85-1, 77; ECF No. 94-1, 77. Similarly, the expert
designation states: 1) Karen Garris' spinal cord
stimulator will stop working in 10-15 years; 2) at that
point, she will require nerve denervations; and 3) she will
require treatment with Fentanyl patches. ECF No. 16, 3. Dr.
Van Osten's opinion on the lifespan of a spinal cord
stimulator is not based on his treatment of Karen Garris, as
it was implanted months after he treated her. He provides no
basis for his opinion on how many nerve denervations Karen
Garris will require per year, and instead testified that pain
management is "like detective work," and that he
has no way of predicting how many procedures she would need,
or if she would need them at all. ECF No. 85-1, 119; ECF No.
94-1, 119. Dr. Van Osten also stated he cannot say what
dosage of Fentanyl Karen Garris may need in the future. ECF
No. 85-1, 72; ECF No. 94-1, 72.
respond that Dr. Van Osten is a qualified and skilled pain
management specialist, and that his opinions are based on his
own extensive qualifications and experience. ECF No. 104, 2 -
3. Dr. Van Osten's qualifications notwithstanding, his
testimony as to the future treatments remains in the realm of
possibilities, rather than probabilities. Dr. Van Osten
himself states repeatedly in his deposition that he does not
know with any certainty if either plaintiff is going to need
the future treatments to which he testifies. See ECF
No. 85-1, 72; ECF No. 94-1, 72. Fairfax Hospital System
v. Curtis states, "A medical opinion based on a
"possibility" is irrelevant, purely speculative,
and, hence, inadmissible." 249 ...