IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS NORTHERN DIVISION
JAMES KINGMAN and REBECCA KINGMAN PLAINTIFFS
No. 3:18-cv-155-DPM
CHARLI JOSEPH and TRANSNE FREIGHT LTD. DEFENDANTS
ORDER The Court thanks the parties for the helpful color-coded deposition transcripts. The binders were much appreciated, as was the parties’ crisp presentation of their remaining disputes. The Court's rulings are in the margins of the attachment. So Ordered.
shell D.P. Marshall Jr. United States District Judge l Vvinry 202 a.
Case 3:18-cv-00155-DPM Document 84 Filed 01/13/22 Page 1of9
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS NORTHERN DIVISION
JAMES KINGMAN AND Roy 1 $4. REBECCA KINGMAN, CASE NO: 3:18-cv-155-DPM Plaintiffs, [Assigned to The Honorable District Judge = D.P. Marshall, Jr.] CHARLI JOSEPH AND TRANSNET FREIGHT LTD., Defendants. JOINT REPORT ON DEPOSITION DESIGNATION DISPUTES
Plaintiffs James Kingman and Rebecca |Kingman, and Defendants Transnet Freight Ltd. (“Transnet”) and Charli Joseph (“Joseph”), collectively “The Parties”, submit this Joint Report on Deposition Designation Disputes. The Parties exchanged their deposition designations, counter- designations, and objections with each other and attempted to resolve any disputes between themselves. However, the following disputes remain for the Court to resolve: (1) DEPOSITION OF DR. JAMES WEBB DATED 12/15/2020 —- EXHIBIT A a) Defendants’ Unresolved Objections to Plaintiffs’ Designations Defendants’ Objections: 22:7-16; The| question by Plaintiffs’ counsel is an improper request to judge or bolster another party’s credibility or character that has not been attacked, F.R.E. 609(a), and invades the province of the jury. Further, objections other than form and responsiveness were reserved until|trial. See deposition transcript at 3:1-4. Objection to the admissibility of evidence may be raised at trial. |F.R.C.P. 32(b). Plaintiffs’ Response: There|should have been an objection, but was not. Question might have been leading, but otherwise was proper. |The Defendants are claiming that Rebecca and Overcwled. Tawes leamqgman's tudihility is ds wack +p dae dawrrges Ussves .
Case 3:18-cv-00155-DPM Document 84 Filed 01/13/22 Page 2 of 9 Overruled, Basis of Br. Webb's opinion, Overruled. One exput can pec James Kingman are not being honest about the extent of their injuries and the cause of their eriWave. loasis of anothi injuries. Objections to the form of a question were not reserved. ex pects ePINion , Defendants’ Objections: (40:14-22; 58: 5-8) 99:1-60:8.) These questions and answers are improper references to a witness (Dr. Greg Wood) who has not testified; asking one witness to attack the credibility of another; pitting one witness against another. Dr. Webb, the deponent, did not rely on Dr. Wood for an opinion. Plaintiffs’ Response: The doctor was| simply stating all the information that he had reviewed when giving his expert opinions. Also, this expert was simply testifying that sometimes experts disagree. This type of answer is more properly explained on FOSS but a “| DeFend cid □□□ rien All exelvded lo LWA 1 owe excluded. [ ek te nll br, Wooded. NOTE: ) Plaintiffs will agree to not use this testimony if, by the time of trial, Defendants determine to not call Dr. Wood. Defendants’ Objections: 56:17-37:21; 57:23-58:1) hese questions concern future medical treatment. In their initial discJosures and responses to specific interrogatories and requests for production of documents cofcerning future medical damages, Plaintiffs Rebecca Kingman and James Kingman did nof produce any documents or calculations supporting future medical expenses, any itemization or specification of the amount of any such future medical expenses they were claiming, nor’the required present value of any such future medical expenses. Further, the doctor was not Asked in the deposition to provide a cost or valuation estimate for future medical treatment. Therefore, testimony about future medical treatment, without any shred of foundational proof about its cost or value, is not relevant and should not be allowed. F.R.E. 401 and 402. If it is in thyS context, Plaintiffs’ counsel would be allowed to ask for damages which have never been provided to Defendants or enumerated before closing arguments. Not only would this be Ovennvled he unt dibelosvre, iw diacuvery ot isswve, □ Past mMeodieal @xXpmses, plvs Pr. Webb's ksh meuy 2- nboyt Wkliherd of Weed Pr Ffrtvre heatwnd, provide SF Prana? pasts to admet,
Case 3:18-cv-00155-DPM Document 84 Filed 01/13/22 Page 3 of 9
prejudicial to Defendants and confusing to the jury under F.R.E. 403; the jury would be tasked with speculating in awarding such damages without supporting proof from a medical professional. Statements from Plaintiffs’ counsel about the purported amount or calculation of such damages are not evidence. Plaintiffs’ Response: Plaintiffs have always maintained that the injuries suffered in this accident are permanent in nature. See Plaintiffs’ Complaint, initial disclosures, responses to discovery, medical records and proposed jury instructions. Dr. Webb is a qualified treating medical expert and is giving his opinion about the Plaintiffs’ prognosis, nature, extent, duration, and permanency of their injuries, and his opinion about future medical treatment. These are all legitimate areas for this qualified treating medical expert to testify upon. Dr. Webb does not have to use any magic words or specific calculations. The jury will have to determine what future medical treatment Plaintiffs will be needed based on all the testimony and evidence produced at trial. As noted by the comment to AMI 2204, “[fJuture medical expenses do not require the same specificity as past medical expenses and may be established by a showing of a degree of medical certainty of future medical expenses.” See also, West Union v. Vostatek, 302 Ark. 219, 222, 788 S.W.2d 952, 954 (1990). More specifically, in Plaintiffs’ First Amended Complaint, in paragraphs nine (9) and ten (10), Plaintiffs alleged the following: 9. Asa proximate result of the negligence of Defendants, James Kingman sustained a severe and permanent injury to his head, neck, back, hips, shoulders and legs as well as a shock to his entire nervous system. As a proximate result of said injury, James Kingman has sustained a loss of earning capacity, has undergone excruciating pain and suffering and mental anguish in the past and will continue to undergo such pain and suffering and mental anguish in the future, has incurred medical expenses in the past and will continue to incur such expenses in the future. 10. As a proximate result of the negligence of Defendants, Rebecca Kingman sustained a severe and permanent injury to her head, neck, back, shoulders
4 a
Case 3:18-cv-00155-DPM Document 84 Filed 01/13/22 Page 4 of 9
and legs, as well as a shock to her entire nervous system. As a proximate result of said injury, Rebecca Kingman has sustained a loss of earning capacity, has undergone excruciating pain and suffering and mental anguish in the past and will continue to undergo such pain and suffering and mental anguish in the future, has incurred medical expenses in the past and will continue to incur such expenses in the future. Also in Plaintiffs Initial Disclosures, Plaintiffs listed on all of the medical care provider witnesses in response to Paragraph (A) that “Said doctor(s) will testify as to the nature, extent and duration of Plaintiff [Rebecca Kingman] [James Kingman} injuries and as to the substance of their reports. Also stated in Response to Paragraph (C) of Plaintiffs’ Initial Disclosure the following: (1) Plaintiffs have provided Defendants with medical bills and out- of-pocket expenses and damages| incurred by Nicholas Adams, James Kingman, and Rebecca Kingman along with copies of their specials, including their personal property destroyed in the accident. Plaintiffs will supplement any additional bills. A jury will determine Plaintiffs’ compensation for the nature, extent, duration, and permanency of their injuries, their pain, suffering, and mental anguish both past and future and any past and future bills or loss of earnings and earning capacity.
Lastly, in Plaintiffs’ Answers to Interrogatories, Plaintiffs answered the as follows to Interrogatories 4, 5, 9 and 19: INTERROGATORY NO. 4: IDENTIFY each injury you attribute to the SUBJECT ACCIDENT and the area of your body affected. ANSWER: See Plaintiffs’ Complaint and the medical records attached to Plaintiffs’ response to Request for Production of Documents and/or Plaintiffs’ Initial Disclosures. This answer can be more fully developed during a deposition setting. Plaintiffs continue to suffer from their injuries and continue to receive treatment for said injuries. INTERROGATORY NO. 5: IDENTIFY any complaints YOU still have that YOU attribute to the SUBJECT ACCIDENT including whether the complaint is subsiding, remaining the same, or becoming worse, and the frequency and duration of the complaint. ANSWER: Rebecca: The right side of my face and teeth hurt. I have ringing in my ears. My lower and mid/back hurts continually. My neck hurts. I
4-
Case 3:18-cv-00155-DPM Document 84 Filed 01/13/22 Page 5 of 9
have ear pain and swelling issues. I have sleep problems due to my pain and discomfort. I believe I have depression as well. James: My back, neck, entire|left side and hips hurt. I cannot sleep comfortably and wake up during the night a lot. Iam depressed. I do not feel like we are getting any better. INTERERROGATORY NO. 9: IDENTIFY any health care provider who has advised that YOU may require future or additional treatment for injuries that you attribute to the SUBJECT ACCIDENT, including the complaints for which the treatment was advised and the nature, duration, and estimated cost of such treatment. ANSWER: See medical records attached to Plaintiffs’ Response to Request for Production of Documents and/or Plaintiffs’ Initial Disclosures. Rebecca’s VA doctor, Dr. Lambert; Dr. Boyer and Dr. Campbell have all advised her she needs continued treatment. Dr. Campbell advised James he needed additional treatment. INTERROGATORY NO. 19: If YOU claim that YOU will lose income in the future as a result of the SUBJECT ACCIDENT, state an estimate of the amount of loss and how long you will be unable to work including how the claim for future income is calculated. |: ANSWER: Plaintiffs cannot c culate this at this time due to them not knowing how much James may be able to earn if he recovers fully from his injuries. At this time, he is still injured.) Also, it is unknown when or if James will be able to go back to college due to his injuries. Arkansas does not require certainty of loss of earning capacity. A jury based on the facts in this case will have to determine fair amount.
b) Plaintiffs’ Unresolved Objections o Defendants’ Designations Plaintiffs’ Objections{ 64:20-65:7; Leading and compound questions. Defendants’ Response: |This is a prope inquiry, on cross-examination, that is relevant to one of Defendants’ primary defenses — that (s. Kingman would have continued to seek and receive repeated medical treatment in 2018 a d beyond, just as she had for thirty years prior, whether the subject accident ever occurred. Her| doctor, in his answer, more likely than not, agreed she would have. The testimony is relevant to t is defense, supported by the evidence, and should Ovena bel, Laytred laut pin “OSs,
Case 3:18-cv-00155-DPM Docum int 84 Filed 01/13/22 Page 6 of 9
be allowed. Leading questions are permitted on cross. Ovemuled . Frm pee | on “oss ov □□□□□□□ (2) DEPOSITION OF JUSTIN CAMPBE oe 9/24/2020 — EXHIBIT B a) Plaintiffs’ Unresolved Objections t ) efendants’ Designations a cll oe Plaintiffs’ Ovieations: (21-5410 ction to form. In his question defense counsel failed to ask a question to the Chiropractic Doc or witness, but instead gave the witness defense counsels version of what he believed is the defi lition of a term that has been used, laminectomy syndrome. Plaintiffs’ counsel promptly objecte and then the Chiropractic doctor, who had been told to answer even if there is an objection simp y stated, “I believe so, yes.” Defendants’ Response: This was a pr per inquiry on cross examination requesting the doctor’s understanding and explanation of M Kingman’s preexisting medical diagnosis and treatment. As noted above, the testimony is rele ant to her post accident claims of injury and pain, and should be allowed. There is nothing impro er as to the form of the question. | Oyermled □ Same □□□□□□ Plaintiffs’ Objections:(S6: 17-22; Objection to form. as above, Ploase , | elimyjnote. okjectron iN the Defendants’ Response: This was a pro der inquiry on cross examination and relevant to □□□ □□□□□ ‘ Rost . 7 sSREle . v □□□□ the causation opinion, treatment and prognosis pestions from Plaintiffs’ counsel concerning Ms. Kingman, since the doctor confirmed he did no know her preexisting condition while answering questions on direct. The inquiry is also relevant fo Ms. Kingman’s claim that the subject accident is the cause for all her subsequent medical treat : ent and expense and Defendants’ defense to the contrary. The testimony should be allowed. here is nothing improper as to the form of the question.
. 6 -
Case 3:18-cv-00155-DPM Docu en 84 Filed 01/13/22 Page 7 of9 (3) DEPOSITION OF DR. MICHAEL BOYER DATED 10/15/2020 — EXHIBIT C a) Defendants’ Unresolved Objections to hatte Designations eveunal cou □□ Defendants’ Objestions:(99:11-30:1. These questions concern future medical treatment. In their initial disclosures and responses to spe fic interrogatories and requests for production of documents concerning future medical damages, Plainti Rebecca Kingman and James Kingman did not produce any documents or calculati ons supporting future medical expenses, any itemization or specification of the amount of an ba future medical expenses they were claiming, nor the required present value of any such fut Ir medical expenses. Further, the doctor was not asked in the deposition to provide a cost or aluation estimate for future medical treatment. Therefore, testimony about future medical trea Iment, without any shred of foundational proof about its cost or value, is not relevant and shou ‘ not be allowed. F.R.E. 401 and 402. If it is in this context, Plaintiffs’ counsel would be allo yed to ask for damages which have never been provided to Defendants or enumerated before closing arguments. Not only would this be prejudicial to Defendants and confusing to the jury under F.R.E. 403; the jury would be tasked with speculating in awarding such damages wit | ut supporting proof from a medical professional. Statements from Plaintiffs’ counsel about the Loc amount or calculation of such damages are not evidence. Plaintiffs’ Response: Plaintiffs have a ve maintained that the injuries suffered in this accident are permanent in nature. See Plaintiffs’ Complaint, initial disclosures, responses to discovery, medical records and proposed jur hee Dr. Webb is a qualified treating medical expert and is giving his opinion about the Plaintiffs’ prognosis, nature, extent, duration, and permanency of their injuries, and his ne about future medical treatment. These are all legitimate areas for this qualified treating mT expert to testify upon. Dr. Webb does not have
Case 3:18-cv-00155-DPM Docum nt 84 Filed 01/13/22 Page 8 of 9
to use any magic words or specific calculations} The jury will have to determine what future medical treatment Plaintiffs will need based on | the testimony and evidence produced at trial. (4) DEPOSITION OF DR. JAMES WEB . DATED 8/8/2021 (Second Deposition) The parties are proposing that they b | allowed to submit their designations on this deposition before the close of business on Tuesday, January 18, 2022.
RESPECTFULLY SUBMITTED this 13"" day of January, 2022. C SEL FOR DEFENDANTS T SNET FREIGHT, LTD. and GC ARLIE JOSEPH J. Stephen Kennedy, MS Bar No. 100040 Admitted to USDC, Eastern Dist. of AR WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP 1400 Meadowbrook Road, Suite 100 Jackson, MS 39211 Tel:| (601) 499-8077 Fax} (601) 499-8078 ste □□□□□□□□□□□□□□□□□□□□□ Je rey W. Puryear (AR Bar No. 93109) WOMACK, PHELPS PURYEAR MAYFIELD & McNEIL, P.A. Post Office Box 3077 Jonesboro, Arkansas 72403 Phone: (870) 932-0900 Fax} (870) 932-2553 jpuryear@wpmfirm.com cad UNSEL FOR PLAINTIFFS JAMES KINGMAN AND R EBECCA KINGMAN Louis A. Etoch Ba Ne 89030 Attorney for Plaintiffs ETOCH LAW FIRM 727\Cherry Street Helena, Arkansas 72342 (870) 338-3591 FAX: (870) 338-7201 E ie louis@etochlaw.com -|§ -
Case 3:18-cv-00155-DPM Docu ent 84 Filed 01/13/22 Page 9 of 9
CERTIFICATE OF SERVICE The undersigned, an attorney, hereby certifies that on January 13, 2022, the foregoing document a true and correct copy was served on all counsel of record by CM/ECF Electronic Notification, including the following: Louis A. Etoch Etoch Law Firm P.O. Box 100 Helena, AR 72342 Louis@etochlaw.com /s/J, Stephen Kenned, Stephen Kennedy
Case 3:18-cv-00155-DPM Document 86 Filed 01/18/22 Page 1 of 8
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS NORTHERN DIVISION
JAMES KINGMAN AND 261 £4. REBECCA KINGMAN, CASE NO: 3:18-cv-155-DPM Plaintiffs, [Assigned to The Honorable District Judge Ye D.P. Marshall, Jr.] CHARLI JOSEPH AND TRANSNET FREIGHT LTD., Defendants. SUPPLEMENTAL JOINT REPORT ON DEPOSITION DESIGNATION DISPUTES (James Webb, M.D. taken on August 11, 2021)
Plaintiffs James Kingman and Rebecca |Kingman, and Defendants Transnet Freight Ltd. (“Transnet”) and Charli Joseph (“Joseph”), collectively “The Parties”, submit this Supplemental Joint Report on Deposition Designation Disputes. The Parties exchanged their deposition designations, counter-designations, and objections with each other and attempted to resolve any disputes between themselves. However, the foll ing disputes remain for the Court to resolve: (1) DEPOSITION OF DR. JAMES WEBB DATED 8/11/2021 — EXHIBIT D! | Overt uled □ □□ a) Defendants’ Unresolved Objections to Plaintiffs’ Designations ) stot See pum Defendants’ Objections: (20:8-25. These questions concern future medical treatment. In their initial disclosures and responses to specific interrogatories and requests for production of documents concerning future medical damages, Rebecca Kingman and James Kingman did not produce any documents or calculations supporting future medical expenses, any itemization or specification of the amount of any|such future medical expenses they were claiming,
' Exhibits A-C are included in the original Joint Report on Deposition Designation Disputed. See Dkt. No. 84.
Case 3:18-cv-00155-DPM Docunh nt 86 Filed 01/18/22 Page 2 of 8
nor the required present value of any such future medical expenses. Further, the doctor was not asked in the deposition to provide a cost or \valuation estimate for future medical treatment. Therefore, testimony about future medical treatment, without any shred of foundational proof about its cost or value, is not relevant and sho not be allowed. F.R.E. 401 and 402. If it is in this context, Plaintiffs’ counsel would be all ved to ask for damages which have never been provided to Defendants or enumerated befo closing arguments. Not only would this be prejudicial to Defendants and confusing to the jury under F.R.E. 403; the jury would be tasked with speculating in awarding such damages without supporting proof from a medical professional. Statements from Plaintiffs’ counsel about the purported amount or calculation of such damages are not evidence. . Plaintiffs’ Response: Plaintiffs have always maintained that the injuries suffered in this accident are permanent in nature. See Plaintiffs’ Complaint, initial disclosures, responses to discovery, medical records and proposed jury) instructions. Dr. Webb is a qualified treating medical expert and is giving his opinion about the Plaintiffs’ prognosis, nature, extent, duration, and permanency of their injuries, and his opinion about future medical treatment. These are all legitimate areas for this qualified treating medi¢al expert to testify upon. Dr. Webb does not have to use any magic words or specific calculations. The jury will have to determine what future medical treatment Plaintiffs will be needed based on all the testimony and evidence produced at trial. As noted by the comment to AMI 2204, “[fJuture medical expenses do not require the same specificity as past medical expenses and may be established by a showing of a degree of medical certainty of future medical expenses.” See alsa, West Union v. Vostatek, 302 Ark. 219, 222, 788 S.W.2d 952, 954 (1990). More specifically, in Plaintiffs’ First Amended Complaint, in paragraphs nine (9) and ten
□
Case 3:18-cv-00155-DPM Docum | t86 Filed 01/18/22 Page 3 of 8
(10), Plaintiffs alleged the following: 9. Asa proximate result of the negligence of Defendants, James Kingman sustained a severe and permanent injury to his head, neck, back, hips, shoulders and legs as well as a shock to his entire nervous system. As a proximate result of said injury, James Kingman has sustained a loss of earning capacity, has undergone excruciating [pain and suffering and mental anguish in the past and will continue to undergo such pain and suffering and mental anguish in the future, has incurred medical expenses in the past and will continue to incur such expenses in the /future. 10. As a proximate result of the negligence of Defendants, Rebecca Kingman sustained a severe and permanent injury to her head, neck, back, shoulders and legs, as well as a shock to her entite nervous system. As a proximate result of said injury, Rebecca Kingm has sustained a loss of earning capacity, has undergone excruciating |pain and suffering and mental anguish in the past and will continue to undergo |such pain and suffering and mental anguish in the future, has incurred medical expenses in the past and will continue to incur such expenses in the future. Also in Plaintiffs Initial Disclosures, Plaintiffs listed on all of the medical care provider witnesses in response to Paragraph (A) that “Said doctor(s “a testify as to the nature, extent and duration of Plaintiff [Rebecca Kingman] [James Kingman} injuries and as to the substance of their reports. Also stated in Response to Paragraph (C) of Plai bes Initial Disclosure the following: (1) Plaintiffs have provided Defendants with medical bills and out- of-pocket expenses and damages incurred by Nicholas Adams, James Kingman, and Rebecca Kingman along with copies of their specials, including their personal property destroyed in the accident. Plaintiffs will supplement any additional bills. A jury will determine Plaintiffs’ compensation for the nature, extent, duration, and permanency of their injuries, their pain, suffering, and mental anguish both past and/future and any past and future bills or loss of earnings and earni capacity.
Lastly, in Plaintiffs’ Answers to Interrogatories, Plaintiffs answered the as follows to Interrogatories 4, 5, 9 and 19: INTERROGATORY NO. 4: IDENTIFY each injury you attribute to the SUBJECT ACCIDENT and the area of your body affected. ANSWER: See Plaintiffs’ Com e and the medical records attached to
Case 3:18-cv-00155-DPM Docu bit 86 Filed 01/18/22 Page 4 of 8
Plaintiffs’ response to Request for Production of Documents and/or Plaintiffs’ Initial Disclosures. This answer can be more fully developed during a deposition setting. Plaintiffs continue to suffer from their injuries and continue to receive treatment for said injuries. INTERROGATORY NO. 5: IDENTIFY any complaints YOU still have that YOU attribute to the SUBJECT ACCIDENT including whether the complaint is subsiding, remaining the same, or becoming worse, and the frequency and duration of the complaint. ANSWER: Rebecca: The right side of my face and teeth hurt. I have ringing in my ears. My lower and mid) back hurts continually. My neck hurts. I have ear pain and swelling issues. I have sleep problems due to my pain and discomfort. I believe I have depression as well. James: My back, neck, entir le side and hips hurt. I cannot sleep comfortably and wake up during the night a lot. I am depressed. I do not feel like we are getting any better. INTERROGATORY NO. 9: [ IDENTIFY any health care provider who has advised that YOU may require) future or additional treatment for injuries that you attribute to the SUBJECT ACCIDENT, including the complaints for which the treatment was advised and the nature, duration, and estimated cost of such treatment. ANSWER: See medical rec rds attached to Plaintiffs’ Response to Request for Production of Documents and/or Plaintiffs’ Initial Disclosures. Rebecca’s VA doctor, Dr. Lambert; Dr,|Boyer and Dr. Campbell have all advised her she needs continued treatment. r. Campbell advised James he needed additional treatment. INTERROGATORY NO. 19: | If YOU claim that YOU will lose income in the future as a result of the SUBJECT ACCIDENT, state an estimate of the amount of loss and how long you will be unable to work including how the claim for future income is calculated. ANSWER: Plaintiffs cannot|¢alculate this at this time due to them not knowing how much James may be able to earn if he recovers fully from his injuries. At this time, he is still injured. Also, it\is unknown when or if James will be able to go back to college due to his injuries.| (Arkansas does not require certainty of loss of earning capacity. A jury based on the facts in this case will have to determine fair amount. .
Case 3:18-cv-00155-DPM Document 86 Filed 01/18/22 Page 5 of 8 Overmvled. Sa pun along, Defendants’ Objections 22:18-23:6, hese questions concern future medical treatment. In their initial disclosures and responses to speci interrogatories and requests for production of documents concerning future medical damages, laintiffs Rebecca Kingman and James Kingman did not produce any documents or calculati . supporting future medical expenses, any itemization or specification of the amount of any such future medical expenses they were claiming, nor the required present value of any such future medical expenses. Further, the doctor was not asked in the deposition to provide a cost or valuation estimate for future medical treatment. Therefore, testimony about future medical treattnent, without any shred of foundational proof about its cost or value, is not relevant and should/not be allowed. F.R.E. 401 and 402. If it is in this context, Plaintiffs’ counsel would be allo Ld to ask for damages which have never been provided to Defendants or enumerated before) closing arguments. Not only would this be prejudicial to Defendants and confusing to the jury under F.R.E. 403; the jury would be tasked with speculating in awarding such damages with supporting proof from a medical professional. Statements from Plaintiffs’ counsel about the p sorted amount or calculation of such damages are not evidence. Plaintiffs’ Response: Plaintiffs have always maintained that the injuries suffered in this accident are permanent in nature. See Plaintiffs’ Complaint, initial disclosures, responses to discovery, medical records and proposed jury irutions Dr. Webb is a qualified treating medical expert and is giving his opinion about the Plaintiffs’ prognosis, nature, extent, duration, and permanency of their injuries, and his opinion about future medical treatment. These are all legitimate areas for this qualified treating medical expert to testify upon. Dr. Webb does not have to use any magic words or specific calculations} The jury will have to determine what future medical treatment Plaintiffs will need based on : the testimony and evidence produced at trial.
Case 3:18-cv-00155-DPM Docu nt86 Filed 01/18/22 Page 6 of 8 Oven led. Sea pror auld . Defendants’ Objections:(39:2 (beginnin These questions concern future medical treatment. In their initial disclosures a responses to specific interrogatories and requests for production of documents concerning future | edical damages, Plaintiffs Rebecca Kingman and James Kingman did not produce any documents or calculations supporting future medical expenses, any itemization or specification of the|amount of any such future medical expenses they were Claiming, nor the required present value of any such future medical expenses. Further, the doctor was not asked in the deposition to provide a cost or valuation estimate for future medical treatment. Therefore, testimony about future medical treatment, without any shred of foundational proof about its cost or value, is not relevant and |should not be allowed. F.R.E. 401 and 402. If it is in this context, Plaintiffs’ counsel would be allowed to ask for damages which have never been provided to Defendants or enumerated before closing arguments. Not only would this be prejudicial to Defendants and confusing to the jjury under F.R.E. 403; the jury would be tasked with speculating in awarding such damages without supporting proof from a medical professional. Statements from Plaintiffs’ counsel about the | ore amount or calculation of such damages are not evidence. Plaintiffs’ Response: Plaintiffs have always maintained that the injuries suffered in this accident are permanent in nature. See Plaintiffs’ Complaint, initial disclosures, responses to discovery, medical records and proposed jury) instructions. Dr. Webb is a qualified treating medical expert and is giving his opinion about the Plaintiffs’ prognosis, nature, extent, duration, and permanency of their injuries, and his opinion about future medical treatment. These are all legitimate areas for this qualified treating medical expert to testify upon. Dr. Webb does not have to use any magic words or specific calculations. The jury will have to determine what future medical treatment Plaintiffs will need based o the testimony and evidence produced at trial. | □
Case 3:18-cv-00155-DPM Docu | nt 86 Filed 01/18/22 Page7of8 . Overruled. See prior rules. □ | cluded by aqwemut it endauts decide Not to call Defendants’ Objections 44:9-48:2. J 44:9-48:2. These questions and answers are improper references cr. Waed , to a witness (Dr. Greg Wood) who has not testified; asking one witness to attack the credibility of another; pitting one witness against another. . Webb, the deponent, did not rely on Dr. Wood for an opinion. Plaintiffs’ Response: The doctor was |simply stating all the information that he had reviewed when giving his expert opinions. Also, this expert was simply testifying that sometimes experts disagree. This type of answer is more|properly explained on cross, but should not be excluded. NOTE: Plaintiffs will agree to not use|this testimony if, by the time of trial, Defendants determine to not call Dr. Wood. RESPECTFULLY SUBMITTED this | day of January, 2022. COUNSEL FOR DEFENDANTS TRANSNET FREIGHT, LTD. and CHARLIE JOSEPH J. Stephen Kennedy, MS Bar No. 100040 Admitted to USDC, Eastern Dist. of AR WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP 1400 Meadowbrook Road, Suite 100 Jackson, MS 39211 Tel: (601) 499-8077 F x (601) 499-8078 steye.kennedy@wilsonelser.com Je he W. Puryear (AR Bar No. 93109) MACK, PHELPS PURYEAR MAYFIELD & McNEIL, P.A. Post Office Box 3077 Jonesboro, Arkansas 72403 Phone: (870) 932-0900 Fax: (870) 932-2553 jpuryear@wpmfirm.com
Case 3:18-cv-00155-DPM Docum | t86 Filed 01/18/22 Page 8 of 8
COUNSEL FOR PLAINTIFFS JAMES KINGMAN AND REBECCA KINGMAN Louis A. Etoch Bar|No. 89030 Att fey for Plaintiffs ETOCH LAW FIRM 727| Cherry Street Helena, Arkansas 72342 (870) 338-3591 FAX: (870) 338-7201 EMAIL: louis@etochlaw.com
CERTIFICATE OF SERVICE The undersigned, an attorney, hereby c hie that on January 18, 2022, the foregoing document a true and correct copy was served on all counsel of record by CM/ECF Electronic Notification, including the following: Louis A. Etoch Etoch Law Firm P.O. Box 100 Helena, AR 72342 Louis@etochlaw.com
/s/J.| Stephen Kenned J,/Stephen Kennedy