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Blotcher v. Shelby R. Stewart and Merchants Moving & Storage, Inc.

United States District Court, D. Colorado

May 30, 2014

SHELBY R. STEWART and MERCHANTS MOVING & STORAGE, INC. a North Carolina corporation, Defendants.


R. BROOKE JACKSON, District Judge.

The case is before the Court on defendants' motion to exclude certain expert testimony of S. Gregory Hipskind, M.D. and Dennis A. Helffenstein, Psy.D. The motion is granted in part and denied in part.


Sharon Blotcher was injured on March 25, 2009 when her car was rear-ended by a Merchants Moving & Storage truck driven by Shelby Stewart. She claims to have sustained a mild traumatic brain injury as a result. Defendants are skeptical that the accident caused significant injuries for various reasons, including that Ms. Blotcher did not immediately seek medical attention, and that she was involved in what defendants describe as an "arguably more severe accident" approximately 14 months later. Defendants are also skeptical of some of the expert medical testimony that Ms. Blotcher plans to present at trial, which is the genesis of the pending motion.

Ms. Blotcher claims that the accident left her dazed and confused. She began to experience headaches, neck and shoulder pain the next day and initially saw a chiropractor. Ms. Blotcher saw her primary care physician on March 30, April 13, and April 27, 2009, and on the third visit she reported feeling dizzy and spacey. Her doctor felt (as did her chiropractor) that she could have a mild traumatic brain injury or concussive syndrome and recommended a neuropsychological evaluation.

A neuropsychologist, Dr. Helffenstein, first saw Ms. Blotcher in June 2009. The record before me does not include his initial report of June 19, 2009, but apparently his assessment was that Ms. Blotcher met the diagnostic criteria for a mild traumatic brain injury or post-concussive syndrome. Ms. Blotcher also saw, among other health care professionals, Jonathan H. Woodcock, M.D., a neurologist, although I am not aware of the date of his examination. He apparently concluded that she had sustained a concussion in the subject accident and suffered from persistent cognitive impairment, disequilibrium, and posttraumatic visual impairment related to the concussion.

Two years after Ms. Blotcher first saw Dr. Helffenstein, i.e., in June 2011, she underwent a full battery of neuropsychological tests with him. I have not seen Dr. Helffenstein's report on this testing, dated November 3, 2011, but apparently in his opinion the tests disclosed cognitive deficits which he attributed to a mild traumatic brain injury resulting from the March 25, 2009 accident.

This case, asserting claims of negligence and negligence per se, was filed in this court pursuant to diversity of citizenship jurisdiction on February 24, 2012. It was originally scheduled for trial in July 2013, but the trial was continued to June 23, 2014 due to a medical issue involving plaintiff's counsel. On November 5, 2013 the parties engaged in unsuccessful settlement mediation. At some point, although I do not presently know whether it was before or after the mediation, Dr. Helffenstein suggested that a brain SPECT scan be performed. Scans were performed on November 7 and 11, 2013 at CereScan, Inc., a brain imaging center, and the resulting images were interpreted by Dr. Hipskind. In his opinion the images show areas of abnormal cortical and subcortical hypoperfusion (decreased blood flow through an organ) that are "most consistent with the scientific literature pertaining to traumatic brain injury." Brain SPECT and Assessment Report [ECF No. 35-1] at 3.

In their pending motion defendants ask the Court to exclude Dr. Hipskind's opinions and testimony, his SPECT scan, and a related portion of Dr. Helffenstein's opinions and testimony. The Court conducted a " Daubert hearing" on May 22 and 28, 2014. In addition to the testimony of Dr. Hipskind, the Court received testimony from two physicians retained by the defendants, Stephen A. Moe, M.D. and Hal Wortzel, M.D. (and, of course, a multitude of exhibits).[1]



Preliminarily, defendants argue that a supplemental report of Dr. Helffenstein dated December 17, 2013 should be precluded as untimely. As indicted above, Dr. Helffenstein has been involved in Ms. Blotcher's treatment since 2009. His opinions were timely disclosed prior to the original July 29, 2013 trial date. On November 8, 2013, following the failed mediation, plaintiff filed a motion for leave to supplement her expert disclosures no later than November 13, 2013. [ECF No. 33]. In the motion plaintiff informed the Court of Dr. Helffenstein's request for a brain SPECT scan and counsel's expectation that Dr. Hipskind's report on the scan results would be completed by November 13, 2013. The Court granted the motion. [ECF No. 34].

The Hipskind report was generated on November 12, 2013. Plaintiff supplemented her expert disclosures on November 13, 2013 to include Dr. Hipskind's report and images and to notify opposing counsel that Dr. Helffenstein would testify that the SPECT scan results correlate with the results of his neuropsychological testing. Dr. Helffenstein prepared a supplemental report dated December 17, 2013 that took into account the Hipskind report. The supplemental report was produced to the defendants on January 2, 2014.

This dispute might have been avoided if plaintiff had requested leave to file Dr. Helffenstein's supplemental report out of time and had delivered the report to defense counsel more quickly after it was prepared. However, these are not major transgressions that would cause the Court to deny the jury access to the information. After all, the supplemental report has been in defendants' hands more than five months before the upcoming June 23, 2014 trial. The defendants have had ample time for additional investigation and discovery to the extent they wanted it. Defendants have their own experts who, among other things, attended the Daubert hearing and who both observed Dr. Hipskind's testimony and testified in opposition to it. The Court finds that the defendants have not suffered any undue prejudice (nor do they so claim), and that plaintiff's short delay in ...

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