2:19-cv-10223
E.D. Mich.Jan 19, 2023Background
- Plaintiff Cori Nusbaum sued Enlighten Family Chiropractic and Dr. Trisha Ambroski after two cervical chiropractic manipulations in July 2016, alleging a vertebral artery dissection (VAD), stroke, and resulting neurological deficits; she seeks $10 million.
- Case removed to federal court; complaint alleges vicarious liability, professional negligence, gross negligence, res ipsa loquitur, and failure to timely refer.
- Defendants filed an omnibus motion in limine addressing 15 evidentiary issues; five issues were resolved by stipulation and the remainder were fully briefed and argued.
- Key contested topics: admissibility of plaintiff’s lost-wages evidence, causation opinions from four plaintiff experts (Drs. Lee, Venkat, Bragman, Shiener), treating-physician hearsay, gross-negligence and res ipsa doctrines, and counsel vouching.
- Court excluded some opinions (Dr. Bragman on causation; limits on Dr. Shiener), granted several evidentiary bars (treating-physician statements under Rule 803(4); res ipsa; gross-negligence claim treated as nonviable), and allowed other experts (Drs. Lee and Venkat) to testify on causation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Lost wages / loss of earning capacity | Nusbaum's own testimony about pre- and post-injury wages and lost side-work is sufficient; no expert required | Plaintiff failed to supplement tax records or provide an economist/vocational expert; damages speculative | Denied in part / granted in part: plaintiff may present lost-wage claims based on testimony but limited — tip loss capped at $100/week for 6 months; no lost wages after 2019 |
| Exclude Dr. Robert Lee (causation) | Lee (vascular surgeon) used differential-diagnosis methodology, reviewed records and literature, ruled out alternatives | Defendants dispute reliability and weight of literature Lee cites | Denied: Lee is qualified and his methodology (differential diagnosis / ruling out) is admissible; challenges go to weight |
| Exclude Dr. Chitra Venkat (causation) | Venkat (vascular neurologist) relied on experience, imaging, edema findings, and ruling-out other causes | Defendants attack lack of reliance on peer-reviewed literature and argue methodology is insufficient | Denied: Venkat is qualified and her methods satisfy Rule 702; credibility is for the jury |
| Exclude Dr. Alan Bragman (causation) | Bragman (chiropractor) offers causation and standard-of-care opinions based on experience and literature review | Defendants: not qualified to opine on vascular injury causation (no neurology/vascular training) | Granted as to causation: Bragman may testify on chiropractic standard of care but not on medical causation of VAD |
| Limit Dr. Gerald Shiener (mechanics / causation) | Shiener (physician experienced with strokes/brain injury) can describe symptoms and how manipulation could produce those symptoms | Defendants: Shiener did not review records or examine plaintiff and cannot reliably opine that the manipulation torn the artery | Granted in part: Shiener may testify about symptoms and general mechanisms but cannot opine that Ambroski applied sufficient force to cause the VAD |
| Admissibility of treating physicians' statements (hearsay) | Plaintiff seeks to admit testimony recounting doctors telling her the chiropractic care caused the injury under medical-treatment exception | Defendants: statements are hearsay and not admissible; exception limited to statements by the patient | Granted: treating‑physician statements about causation excluded under Rule 803(4) per Sixth Circuit precedent (Field) |
| Gross negligence / intentional/wanton conduct | Plaintiff pleads gross negligence / wanton misconduct | Defendants: gross negligence is not an independent claim under Michigan law; insufficient evidence of intentional/wanton conduct | Denied in part / granted in part: common-law gross-negligence claim dismissed (Michigan law); arguments about evidence were rejected as premature for a motion in limine |
| Res ipsa loquitur | Plaintiff invoked res ipsa to infer negligence when specific negligent act is unknown | Defendants moved to bar res ipsa | Granted: res ipsa inapplicable because plaintiff identifies a specific negligent act (alleged excessive force) and evidence is not more readily accessible to defendant |
| Vouching for plaintiff's credibility by counsel | Plaintiff's counsel may argue credibility | Defendants moved to bar vouching | Granted: counsel may not vouch for plaintiff's credibility at argument |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (trial judge must ensure expert testimony is relevant and reliable)
- Best v. Lowe's Home Centers, 563 F.3d 171 (6th Cir. 2009) (differential diagnosis standards for medical causation admissibility)
- In re Scrap Metal Antitrust Litig., 527 F.3d 517 (6th Cir. 2008) (distinguish reliability vs. credibility; gatekeeping role)
- Field v. Trigg Cnty. Hosp., 386 F.3d 729 (6th Cir. 2004) (Rule 803(4) medical-treatment exception applies only to statements by the patient)
- Jennings v. Southwood, 446 Mich. 125 (1994) (Michigan abandoned common-law gross negligence as independent doctrine)
- Woodard v. Custer, 473 Mich. 1 (2005) (elements for res ipsa loquitur under Michigan law)
- Taylor v. Kent Radiology, 286 Mich. App. 490 (2009) (damages categories in Michigan medical-malpractice cases)
- Health Call of Detroit v. Atrium Home & Health Care Servs., 268 Mich. App. 83 (2005) (remote/speculative damages not recoverable; jury may approximate if reasonable basis exists)
- Louzon v. Ford Motor Co., 718 F.3d 556 (6th Cir. 2013) (motions in limine cannot be used as delayed summary‑judgment substitutes)
- Berry v. City of Detroit, 25 F.3d 1342 (6th Cir. 1994) (expert qualification limit: witness must have foundation to answer specific question)