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Summary Judgment Granted for Defense Where Plaintiff Has No Medical Expert Testimony in Wrongful Death Case

Osunde v. Lewis
PWG-11-0234 (U.S. District Court for the District of Maryland, March 15, 2012)

by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (

This action arose out of a motor vehicle collision which occurred in front of a hospital. The Defendant rear ended the Plaintiffs, which caused Plaintiff Mrs. Osunde, then seven months pregnant, to fall forward. Plaintiffs contended that this collision caused a tear in Mrs. Osunde’s uterus, which necessitated an emergency caesarian section. The emergency caesarian section resulted in the premature birth of Plaintiffs’ son. Plaintiffs contended that their son’s premature birth was caused by Defendant’s negligence and resulted in his death nearly four (4) months later. The defense argued that the child died four (4) months after the motor vehicle accident, at home, two (2) months after he had been released from the hospital, and that the Plaintiff had failed to causally connect the premature birth with the child’s death. The Defendant filed a Motion in Limine challenging the Plaintiffs’ ability to establish the causation element of their wrongful death claim, and the Court construed it as a Motion for Partial Summary Judgment.

Plaintiffs proffered that their medical expert would testify at trial that there was a causal connection between the child’s respiratory problems and SIDS; however, the defense pointed out that the medical expert had made no such connection between the premature birth and cause of death at either his deposition, or in his written report, which was produced with his expert designation under Fed. R. Civ. Proc. 26(a)(2)(B). Further, the Plaintiffs failed to supplement his report or his opinions in a timely manner with evidence of causation. The Court noted that a party’s failure to comply with supplementation and disclosure requirements is subject to serious consequences, including Rule 37 sanctions. The Court ruled that for purposes of trial and for purposes of the Motion for Summary Judgment, that no evidence of causation would be considered because it would come as a surprise to the defense; it would be incurable through cross-examination because the expert was gravely ill and could not testify at trial; that re-opening discovery to flesh out the causation issues on the eve of trial would be disruptive; and that Plaintiffs offered no explanation for their untimely disclosure. The Court ruled that under Fed. R. Civ. Proc. 37(c)(1), the causation testimony was barred.

Finally, the Court noted that complex issues of medical causation required expert testimony. Without causation testimony by an expert, Plaintiffs could not make out a prima facie wrongful death claim. Consequently, the Court granted partial summary judgment in favor of the defense as to the Plaintiff’s wrongful death claim. Plaintiffs were allowed to proceed, however, on their negligence and loss of consortium claims.