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Kimbrough v. Weidner

United States District Court, N.D. Georgia, Atlanta Division

July 24, 2018

APRIL KIMBROUGH, Plaintiff,
v.
LYLE WEIDNER, et al., Defendants.

          OPINION AND ORDER

          THOMAS W. THRASH, JR. UNITED STATES DISTRICT JUDGE

         This is a negligence action arising from a motor vehicle collision. It is before the Court on the Defendants Lyle Weidner, Quality Carriers, Inc., and Old Republic Insurance Company's Motion to Exclude Plaintiff's Expert Witness [Doc. 67] and Motion for Summary Judgment [Doc. 68]. For the following reasons, the Defendants' Motion to Exclude and Motion for Summary Judgment are DENIED.

         I. Background

         This case arises out of a motor vehicle collision that occurred on March 1, 2016. The Plaintiff April Kimbrough alleges the Defendant Lyle Weidner negligently struck the front of her vehicle while Weidner was changing lanes on Interstate 85 southbound in Franklin County, Georgia.[1] Kimbrough claims that, she has suffered disc herniation in the cervical and lumbar spine, as well as general muscle sprains and strains as a result of the collision.[2] Kimbrough filed this lawsuit on March 2, 2017, alleging claims of negligence and negligence per se against Weidner. Also included in the Complaint were claims against the Defendants Quality Carriers, Inc. and Old Republic Insurance Co.

         During discovery, which is now closed, the Defendants requested that Kimbrough disclose all of her experts. Specifically, on April 21, 2017, the Defendants' Interrogatory 20 requested that Kimbrough:

Please identify each expert of every type expected to testify at trial, INCLUDING WITHOUT LIMITATION TREATING PHYSICIANS AND PRACTITIONERS OF THE HEALING ARTS, and state the subject matter about which the expert is expected to testify, th1e substance of the facts and opinions to which the expert is expected to testify, and give a summary of the grounds for each opinion. This Interrogatory applied to all expert witnesses of every kind. The trial court has the power to exclude any expert or any expert testimony not fairly disclosed in your answer to this Interrogatory.[3]

         Kimbrough responded as follows:

RESPONSE: Plaintiff has not retained an expert to testify at the trial of the matter as of the date of Plaintiff's responses to this discovery. Should such an expert be retained in the future, Plaintiff agrees to supplement Plaintiff's response to this discovery. By way of further response, Plaintiff states that Plaintiff's treating physicians, identified herein, may testify at the trial of this matter.

         On July 1, 2017, Kimbrough supplemented her original response to Interrogatory 20 in relevant part as follows:

SUPPLEMENTAL RESPONSE: Plaintiff identifies Kamal C. Kabakibou, M.D. (medical doctor associated with Center for Pain Management who provided care and treatment to Plaintiff following the collision) - 3193 Howell Mill Road, Suite 315 Atlanta, GA 30327 (404) 603-9090. Dr. Kabakibou is a physician who provided care and treatment to the Plaintiff following the collision at issue.
Dr. Kabakibou will testify regarding his education, training and experience. Dr. Kabakibou will testify regarding his understanding of the collision at issue. Dr. Kabakibou will testify as to Plaintiff's injuries and damages, and that testimony will include his expert opinions as to diagnosis, prognosis, and causation. Dr. Kabakibou will testify as to the care and treatment he provided to the Plaintiff, the basis of that care and treatment, and the cost of that care and treatment. Dr. Kabakibou will provide testimony that the Plaintiff was injured as a result of the collision at issue, he will discuss the nature of the Plaintiff's injuries, and he will provide testimony that the medical expenses Plaintiff incurred at Center for Pain Management were reasonably related to the care and treatment of injuries caused by the collision. To date, those expenses total $40, 320.02, including the physician fee, the facility fee, and the surgery center fee.
Dr. Kabakibou will testify regarding Plaintiff's neck pain, shoulder pain, and back pain, as well as the cause of that pain. Dr. Kabakib-ou will testify regarding the objective findings found on the MRIs performed on Plaintiff's lumbar spine, as well as on her cervical spine. More specifically, Dr. Kabakibou will testify regarding Plaintiff's disc protrusions/herniations found in Plaintiff's cervical and lumbar spine, as well as facet arthropathy. Dr. Kabakibou will testify regarding his physical exams of the Plaintiff. Dr. Kabakibou will testify regarding procedures administered upon the Plaintiff's cervical and lumbar spine so as to aid in pain relief, including physical therapy, facet injections, and Radiofrequency Thermo- coagulation. Dr. Kabakibou will discuss the effect of these procedures on the Plaintiff. Dr. Kabakibou will also discuss options available to the Plaintiff in the future, including without limitation additional facet injections, Radiofrequency Thermocoagulation, and surgery (L4-5 ALIF). Dr. Chappuis[4] will discuss the estimated costs of additional facet injections, and Radiofrequency Thermocoagulation. Dr. Kabakibou will discuss the frequency of those procedures. Dr. Kabakibou will testify that the injuries identified herein, the treatment thereof, and the costs associated therewith are the result of the motor vehicle collision at issue. Dr. Kabakibou will testify that the medical bills are reasonable in the medical profession.
Dr. Kabakibou's opinions will be stated within a reasonable degree of medical certainty.
During his testimony, Dr. Kabakibou will rely upon the Plaintiff's medical history, statements provided by the Plaintiff to him, as well as other medical records generated during the course of Plaintiff's treatment following the collision at issue, including diagnostic imaging studies. Dr. Kabakibou reasonably relies upon those records and imaging studies in the ordinary course of his practice.
For further explanation, Plaintiff incorporates by reference all medical records and bills generated during the course of Plaintiff's treatment with Kabakibou. Said records and bills have been provided to counsel for the Defendants in their entirety.[5]

         The Defendants now move to exclude Dr. Kabakibou's testimony on the basis that he was not properly disclosed as an expert witness. The Defendants also move for summary judgment on the grounds that, if Dr. Kabakibou's ...


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