BENTON - Rich, Rich and Cooksey of Fairview Heights didn’t convert a client’s treating physician to a retained expert, Senior U.S. District Judge Phil Gilbert ruled on Oct. 31.
He quashed a subpoena that Dippold Trucking and owner Steven Dippold of Fayette County served on Orthopedic Specialists in St. Louis County.
Dippold sought four years of tax and financial information, claiming disclosure rules for retained experts applied to spine surgeon Kevin Rutz of Orthopedic Specialists.
The rules also would have required Rutz to submit a report on plaintiff David Canania of Missouri for a trial set to start on Dec. 9.
“Dr. Rutz is not some disinterested or outside expert looking in on Mr. Canania’s treatment after the fact and judging whether his treatment was adequate,” he wrote.
“Dr. Rutz, perhaps better than any other witness, seems the most well equipped to provide accurate information on future costs for Mr. Canania.”
Dippold and Canania collided on northbound Interstate 55 in Collinsville in July 2022.
Gilbert found Canania sought urgent care two weeks later and was provided with medication.
He found Canania’s counsel arranged a day later for him to see Rutz.
He found Rutz transferred him to a physical rehabilitation specialist.
Michelle Rich filed a complaint for Canania and wife Cheryl in October 2022.
Gilbert found David and Cheryl disclosed Rutz as an unretained expert in January 2023.
He found David returned to Rutz in March 2023, still suffering and presenting new symptoms.
He also found Rutz performed surgery in May 2023 and followed up with Canania four times; that Rutz determined this March that Canania reached maximum functional capacity; that Rutz prescribed a permanent 25 pound lifting restriction; that Rutz sent a letter to Canania’s counsel estimating surgical costs and fees; that Rutz stated at a deposition in August that Canania’s counsel dropped off records and paid him $2,000 to review them.
He also found the records included urgent care documents, rehabilitation records, and depositions including Rutz’s deposition in a worker compensation case from the same incident; that Rutz called Canania’s counsel to ask what the issues were and was informed of a defense expert’s contrasting opinion; that Rutz spoke with counsel again a day before his deposition and that Dippold issued the subpoena to Orthopedic Specialists in September and Orthopedic Specialists moved to quash it.
Gilbert heard arguments on Oct. 29 and issued an order in three days.
He noted an apparent consensus that treating physicians form opinions through treatment and expert witnesses form opinions solely on information provided by counsel for litigation.
“The factor that differentiates a witness who is an expert from an expert witness is first hand knowledge,” he wrote.
He found a lay witness informs a jury on happenings within a case and an expert translates sophisticated information into information a layman can easily understand.
He found an expert is sought for knowledge and ability to explain, not for first hand knowledge.
He found Canania’s counsel planned for Rutz to testify as to damages.
“While this would ordinarily be the domain of an expert witness, Dr. Rutz is an expert in his field who has already performed similar services and he is very active in his practice," he wrote.
“While Dr. Rutz would be providing expert testimony for that portion, it does not convert Dr. Rutz to an expert witness.”
Michelle Rich’s colleagues Kristina Cooksey and Thomas Rich also represent David and Cheryl Canania, and so does Timothy Whiting of Chicago.
Lawrence Hall and Matthew Kouri of St. Louis represent Dippold.
Brian McBrearty of St. Louis County represented Orthopedic Specialists.