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A federal judge has ruled that a chiropractor called as a witness in a slip-and-fall case cannot be asked at trial about whether the plaintiff had hired a lawyer before seeking medical treatment. In Sands v. Wal-Mart Super Center, U.S. District Judge Franklin S. Van Antwerpen of the Eastern District of Pennsylvania ordered that portions of a videotaped deposition be stricken to exclude questions by a defense lawyer relating to the timing of the plaintiff’s hiring of her lawyer and chiropractor. “The fact that plaintiff consulted with an attorney prior to seeking medical treatment may possess some limited relevance,” Van Antwerpen wrote. “From the fact that she did not first seek medical treatment and did so only after consulting an attorney, a fact finder might, relying on the hypothesis that people suffering from an injury normally seek prompt medical treatment, often before consulting an attorney, infer that she did not seek medical treatment because of her injuries but because her lawyer directed her to do so,” Van Antwerpen wrote. But while the evidence was therefore “relevant” under Rule 401 of the Federal Rules of Evidence, Van Antwerpen found that it did not pass the balancing test of Rule 403. “Although this evidence has some relevance, its probative value is minimal and there is no direct evidence of her lawyer directing plaintiff to seek medical help,” Van Antwerpen wrote. Van Antwerpen also found there was a real risk of unfair prejudice to the plaintiff if such questions were allowed. “A jury [could] be biased by the sequence of plaintiff seeking legal assistance and then later seeking medical treatment that it would not fairly consider plaintiff’s claims regarding causation and extent of injury,” Van Antwerpen wrote. In another series of significant legal rulings, Van Antwerpen ordered that if the same chiropractor is not called as an expert witness — but only as a fact witness — he cannot be cross-examined about the opinions of other doctors unless the defense can establish the admissibility of the other doctors’ opinions, and show that they will impeach the chiropractor’s testimony. In the suit, plaintiff Debra K. Sands claims that she slipped and fell at a Wal-Mart in Lancaster on June 12, 1999, injuring her lower back and right arm. After consulting with several doctors, Sands began treatment with chiropractor Harold H. George. After George was deposed on video for use at trial, lawyers on both sides filed motions in limine seeking to limit the use of the video at trial. Plaintiff’s attorney Charles W. Marsar of Harrisburg moved to bar the defense from presenting George’s testimony about his patient in-take form, which shows that Sands had consulted with a lawyer before seeking his treatment. Marsar also argued that since he has not tendered George as an expert witness — but only as a fact witness since he is still treating her — the defense should not be allowed to cross-examine George about the opinions and diagnoses of other doctors. Wal-Mart’s lawyer, Courtney Seda McDonnell, filed a motion asking that George be precluded from presenting any expert testimony since his opinions are not based on sound scientific or medical principles. But Marsar argued that the defense was improperly treating George as a proposed expert due to a report he prepared for an insurance carrier that was never intended to be presented in court. In the deposition, Marsar said he was careful not to elicit expert testimony from George during his direct examination and that the defense should therefore be barred from engaging in expert cross examination. Van Antwerpen agreed, finding that George should be treated only as a fact witness since the plaintiff never listed him as an expert and never provided an expert report. But Van Antwerpen’s task wasn’t done because the lawyers disagreed about the implications of that ruling. Marsar argued that even though George would not be testifying as an expert, he should still be allowed to offer opinion testimony. McDonnell insisted that as a non-expert, George should be barred from offering any testimony. Van Antwerpen found that “the truth lies somewhere between the two parties’ positions.” Although treating doctors are exempt from the requirement under Rule 26 that calls for a report to be submitted, Van Antwerpen found that his opinion testimony is still subject to expert witness rules. Van Antwerpen concluded that, as a fact witness, “any conclusions or opinions drawn by Dr. George must fall within the province of a lay witness who has personal knowledge of the situation.” As a result, Van Antwerpen said the defense was wrong in asserting that George must be barred from offering any opinion testimony. But Van Antwerpen found that Rule 701 places limits on lay witness testimony and that “most of the opinions which Dr. George offered on direct examination are expert in nature.” The testimony relating to causation, prognosis and test results, Van Antwerpen said, derived from George’s “specialized training and experience,” and therefore are admissible only if he is offered as an expert. As a result, Van Antwerpen gave the plaintiff the option of deciding within 30 days whether to call George as an expert in order to present his opinion testimony.

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