What Happens if There is No Medical Expert When One is Needed?

I posted earlier this week about whether a medical expert is required.  This post assumes one is.  But, if a personal injury plaintiff cannot present any medical testimony causally linking her medical treatment to the event at issue, can she satisfy the proximate cause element of negligence?  More than a few posts have discussed motions in limine to exclude improperly designated expert witnesses.  A post also discussed Blackmon v. New Albertson’s, Inc., granting summary judgment where medical testimony was lacking.[1]  It seems other judges feel the same way.



McFerrin v. Allstate Prop. & Cas. Co. also then considered the issue.  McFerrin concluded the plaintiff had not complied with Rule 26(a)(2)(C)’s disclosure requirements.  Consequently, “Dr. Smith will only be allowed to testify as a fact witness under Rule 26(a)(1), and, as such, will be limited to testifying as to the course of treatment and to what he directly observed while McFerrin was under his care.”[2]  This was problematic for the plaintiff because he “has presented claims for medical expenses, pain and suffering, and lost wages, all based on his personal injury claims. Kentucky law generally requires expert testimony to prove claims of personal injury such as are advanced in this case.”[3]  The court concluded the obviousness exception did not apply and expert testimony was required.  Plaintiff could not meet that burden because “[w]hile Dr. Smith may testify as a treating physician concerning his observations of McFerrin and his own treatment and diagnosis, Dr. Smith can only testify as a fact witness, and cannot testify as to his professional opinion concerning the cause of McFerrin’s alleged fracture….”[4]  Summary judgment was entered.

Adams v. Farbota applied Tennessee law requiring expert testimony to prove personal injury, considered substantively identical facts as McFerrin and also excluded undisclosed expert testimony from non-retained experts.[5]  The moving party requested and was awarded summary judgment concerning past and future medical expenses, permanent impairment, or lost earning capacity.  The court then asked the obvious question: “What is not clear in the briefing is what categories of claimed damages will remain for trial in light of the court’s decision.”[6] In effect, it asked why global summary judgment was not appropriate at that point because no damages remained.


[1] December 7, 2015.
[2] 29 F. Supp. 3d 924, 934 (E.D. Ky. 2014).
[3] Id.
[4] Id. at 935.
[5] 306 F.R.D. 563, 574 (M.D. Tenn. 2015).
[6] Id.