*1 This matter is before the Court on Defendant's Motions in Limine (DN 38, 40, 46) and Plaintiff's Motion in Limine (DN 54). The motions are ripe for adjudication.

A. Defendant's Motion in Limine (DN 38)

Defendant moves to exclude the testimony of Dr. Rasesh Desai (“Dr. Desai”), an orthopedic surgeon who treated Plaintiff and who has not been disclosed as an expert witness pursuant to Fed. R. Civ. P. 26. (Def.’s Mot. Lim. 3-6, DN 38). Plaintiff contends, however, that such disclosure was not required. (Pl.’s Resp. Def.’s Mot. Lim. 1-7, DN 63).

The Federal Rules of Civil Procedure require that parties disclose the identities of any expert witnesses they intend to use at trial to present evidence. Fed. R. Civ. P. 26(a)(2) classifies experts into two types, which are subject to different disclosure requirements. Witnesses who have been retained specifically for the purpose of offering testimony in a case fall under Rule 26(a)(2)(B). Treating physicians and other healthcare providers typically are witnesses in the case by virtue of having provided treatment relative to the underlying injury claimed in the case and, to the extent they testify only to their personal actions and observations, are generally considered fact witnesses and are not subject to the disclosure requirements. See Selby by Selby v. Kmart Corp., No. 1:17-CV-00042-GNS, 2017 WL 6347967, at *5 (W.D. Ky. Dec. 12, 2017). In addition, “[a] treating physician is generally qualified to testify about a patient's diagnosis, treatment, and prognosis, including the future course of treatment, so long as the testimony is based on personal knowledge and the doctor's history, treatment and examination of the patient.” Schlueter v. Ingram Barge Co., No. 3:16-CV-02079, 2019 WL 5683371, at *4 (M.D. Tenn. Nov. 1, 2019) (citations omitted).

In its motion, Defendant has identified several challenged passages from Dr. Desai's trial deposition relating to Plaintiff's past and future treatment. Dr. Desai testified as follows:

(Desai Dep. 25:19-26:9, Nov. 6, 2020, DN 38-1). Dr. Desai further testified:

(Desai Dep. 26:10-25). While Defendant objects, it is permissible for a treating physician to testify as to whether the medical expenses were related to the treatment provided and express an opinion that a patient may need for future treatment to the extent that the opinion is based on the doctor's personal knowledge obtained through the treatment of the patient. See Mem'l Hall Museum, Inc. v. Cunningham, 455 F. Supp. 3d 347, 363 (W.D. Ky. 2020). Defendant's motion will be denied on this basis.

Defendant also challenges Dr. Desai's opinions relating to Plaintiff's future treatment. In particular, it challenges a one-page document titled “Medical Opinion” signed by Dr. Desai after the initiation of this litigation and for which he was paid $75.00, which was attached as Exhibit 7 to his deposition. (Def.’s Mot. Lim. 2, DN 38; Def.’s Mot. Lim. Ex. B, DN 38-2; Desai Dep. 23:20-24:10). During the pendency of this action, Plaintiff's counsel also met with Dr. Desai to prepare him for his deposition and to review a report prepared by Plaintiff's expert witness, Dr. James Haustein (“Dr. Haustein”), for which Dr. Desai was paid $500.00. (Def.’s Mot. Lim. 2, DN 38; Desai Dep. 30:8-21).

As Defendant notes, however, Dr. Desai was not disclosed as an expert witness pursuant to Fed. R. Civ. P. 26(a)(2)(B). (Def.’s Mot. Lim. 2, DN 38). In his trial deposition, Dr. Desai stated:

(Desai Dep. 30:16-31:16). He further testified:

(Desai Dep. 31:22-32:1). Absent a proper expert witness disclosure under Rule 26, it is improper for Dr. Desai to provide expert testimony as to Dr. Haustein's opinions and report. Accordingly, Defendant's motion is granted in part, and Dr. Desai is precluded from offering expert testimony as to Dr. Haustein's opinions and report regarding Plaintiff's future treatment.

*3 Finally, the parties disagree as to whether Dr. Desai should be permitted to opinion as to the need for future total knee replacement. The crux of the disagreement is Dr. Desai's statement in Exhibit 7 (which is being excluded for the reasons stated above) and the following portion of his trial deposition:

(Desai Dep. 34:8-18).[1]

In seeking to exclude Dr. Desai's testimony as to future treatment, Defendant overlooks the doctor's statement that all of his opinions were made with a reasonable degree of medical probability. (Desai Dep. 6:7-11). In addition, when the challenged testimony is construed with other portions of Dr. Desai's testimony as to future treatment that Defendant does not seek to exclude, the testimony is sufficient to present to the jury. (Desai Dep. 6:7-11). Accordingly, Dr. Desai will be permitted to testify as to whether Plaintiff may need future treatment, and the motion will be denied on this basis.

B. Defendant's Motion in Limine (DN 40)

Defendant also moves to exclude testimony from Dr. Haustein, a physiatrist, from opining as to Plaintiff's need for future treatment. (Def.’s Mot. Lim. 3-5, DN 40). As Plaintiff notes, however, Defendant does not challenge Dr. Haustein's qualifications under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny; rather Defendant challenges Dr. Haustein's bases for his opinions. (Pl.’s Resp. Def.’s Mot. Lim. 1-7, DN 68; Def.’s Mot. Lim. 1-6, DN 40).

Defendant contends that Dr. Haustein does not independently express an opinion as to whether Plaintiff will need future treatment and instead relies upon Dr. Desai's opinion. (Def.’s Mot. Lim. 1, DN 40). As Plaintiff notes, however, Dr. Haustein reviewed the medical records and legal documents related to this case (including Plaintiff's deposition) in formulating his opinions. (Haustein Dep. 13:8-14:1, 15:7-12, Oct. 27, 2020, DN 40-1). Like Dr. Desai, Dr. Haustein expressed his opinions within a reasonable degree of medical probability as to Plaintiff's need for future treatment. (Haustein Dep. 6:17-21).

*4 To the extent that Defendant has identified and seeks to challenge what it perceives as potential flaws in Dr. Haustein's opinions, it is with the province of the jury to determine whether the evidence supports the need for future treatment and to assess Dr. Haustein's credibility. Accordingly, this motion will be denied.

C. Defendant's Motion in Limine (DN 46)

In its final motion, Defendant moves to exclude certain portions of the deposition of its expert witness, Dr. Thomas J. O'Brien (“Dr. O'Brien”), which will be presented at trial. (Def.’s Mot. Lim. 1-2, DN 46). In particular, Defendant seeks to exclude Dr. O'Brien’s testimony regarding: (i) employment by insurance companies; (ii) malpractice claims; (iii) an administrative warning from the Medical Examining Board of Wisconsin; and (iv) withdrawal from one or more lawsuits in Wisconsin. (Def.’s Mot. Lim. 1-2, DN 46). Plaintiff opposes the motion. (Pl.’s Resp. Def.’s Mot. Lim. 1-8, DN 67).

First, Defendant seeks to exclude any evidence that Dr. O'Brien was retained by insurance companies to testify as an expert witness in prior litigation based on Fed. R. Evid. 401, 402, and 411. While it is true that Fed. R. Evid. 411 expressly precludes the introduction of evidence as to whether a party has insurance, that rule is inapplicable here because there is no indication that Plaintiff sought to introduce evidence of insurance. Rather, Plaintiff seeks to inform the jury that Dr. O'Brien has testified as an expert on behalf of insurance companies. Expert witnesses are routinely questioned as to whether they regularly are retained by plaintiffs or defendants, and such evidence would be admissible for the jury to consider in determine the credibility of an expert witness. The motion will be denied on this basis.

Defendant also moves to exclude any evidence regarding malpractice claims asserted against Dr. O'Brien, and an administrative warning issued by a state medical licensure board. (Def.’s Mot. Lim. 1-2, DN 46). Plaintiff contends that this information is admissible. (Pl.’s Resp. Def.’s Mot. Lim. 3-7, DN 67).

While Plaintiff relies on Ferris v. Tennessee Log Homes, Inc., No. 4:06CV-35-M, 2010 WL 1049852 (W.D. Ky. Mar. 19, 2010), to support his argument as to the admissibility of Dr. O'Brien’s past malpractice claims, Ferris undermines his position. As this Court noted in Ferris:

*5 Id. at *1. Such evidence may be admissible when it is of sufficiently probative of value, but the reasons outlined by Plaintiff—credibility and qualifications—are present in most cases. See id. Because Plaintiff has not shown that the malpractice claims are relevant to Dr. O'Brien’s opinions in this case and the introduction of the claims would involve collateral and irrelevant matters, this testimony will be excluded. Similarly, the admission of the administrative warning from the Medical Examining Board of Wisconsin will be excluded for the same reasons. Defendant's motion will be granted on this basis.

Finally, Defendant seeks to exclude any evidence relating to Dr. O'Brien’s withdrawal as an expert witness in lawsuits filed in Wisconsin because he was requested to provide personal financial information. (Def.’s Mot. Lim. 5-6, DN 46). Plaintiff asserts that such evidence is proper because it relates to Dr. O'Brien’s credibility. (Pl.’s Resp. Def.’s Mot. Lim. 7-8, DN 67).

To permit the introduction of such evidence would open up a line of questioning entirely devoid of any relevance to the issues in this case or Dr. O'Brien’s qualifications. Accordingly, this evidence will be excluded from trial, and Defendant's motion will be granted on this basis.

D. Plaintiff's Motion in Limine (DN 54)

In Plaintiff's motion, he seeks to exclude any evidence relating to grape packaging, dementia, his attorney or her law firm, when the law firm was retained, the amount of damages listed in discovery responses, intent, collateral source payments, the liability of third parties, and settlement discussions or negotiations. (Pl.’s Mot. Lim. 1-4, DN 54). While Defendant does not oppose the motion as to dementia, when the law firm was retained, collateral source payments, or settlement discussions or negotiations, it contends that the motion should be denied as to the other grounds. (Def.’s Resp. Pl.’s Mot. Lim. 1-5, DN 57). As to the undisputed issues raised in Plaintiff's motion, the motion will be granted in part.

Plaintiff contends that Defendant should be excluded from proffering evidence regarding the packaging of grapes because it is undisputed that there was a grape on the floor of the store. (Pl.’s Mot. Lim. 1, DN 54). The parties agree that the key issue is whether Defendant was on notice of the condition.

In a premises-liability case, the plaintiff must prove that the defendant was negligent. Because Plaintiff would have been an invitee as a customer of Defendant at the time of the injury, Kentucky law provides that “a possessor of land owes a duty to an invitee to discover unreasonably dangerous conditions on the land and either eliminate or warn of them.” Shelton v. Ky. Easter Seals Soc'y, Inc., 413 S.W.3d 901, 909 (Ky. 2013) (citation omitted). Therefore, in this case, the packaging of the grapes could be relevant to explain how the grape was on the floor and whether Defendant was on notice of the condition. The Court will deny Plaintiff's motion as to this issue.

In addition, Plaintiff moves to excludes excessive references to his attorney's law firm as being not from Kentucky and as a law firm that regularly solicits clients through advertising. (Pl.’s Mot. Lim. 2, DN 54). Defendant does not oppose the motion to the extent that Plaintiff's counsel is identified during voir dire, and potential jurors are asked whether they have been represented by Plaintiff's counsel or that they would be influenced in their decision by which law firm is representing Plaintiff. (Def.’s Resp. Pl.’s Mot. Lim. 3, DN 57).

*6 It is the practice of this Court to conduct voir dire of the venire panel, and as part of voir dire, the Court will identify counsel for both parties and inquire whether any prospective jurors has been represented by one of those law firms. The motion will be denied as to the identity of counsel and representation. However, because Defendant has not identified any authority supporting any inquiry into the impact of the advertising of Plaintiff's counsel's firm on the venire and such inquiry does not appear to be relevant, the Court will not so inquire during voir dire. The motion will be denied on this basis.

Plaintiff moves to exclude the presentation of any evidence relating to the amount of damages outlined in his discovery responses except for referencing those amounts during voir dire. (Pl.’s Mot. Lim. 3-4, DN 54). As Defendant notes in its response, Plaintiff's discovery responses identified some disputed meal and lodging expenses purportedly relating to his injury. (Def.’s Resp. Pl.’s Mot. Lim. 3-4, DN 57).

Other than citing Fed. R. Civ. P. 26(a)(1), Plaintiff has not cited any authority to support the proposition that his discovery responses are inadmissible. To the extent that Plaintiff seeks to attribute certain damages as arising from this injury, however, Defendant is entitled to present evidence to the contrary to allow the factfinder to determine whether such damages should be awarded. See Scoma v. City of N.Y., No. 16-CV-6693(KAM)(SJB), 2021 WL 1784385, at *12 (E.D.N.Y. May 4, 2021) (“Plaintiff's verified discovery responses are also admissions and thus admissible.” (citation omitted)). The motion will denied as to the damages identified in Plaintiff's discovery responses.

Plaintiff also seeks to exclude any evidence from Defendant as to whether Defendant or its employee intended to harm him. (Pl.’s Mot. Lim. 4, DN 54). It is true that intent is not an element of negligence. Nevertheless, Defendant should be allowed to argue that neither it nor its employees took any action intending to harm Plaintiff in seeking to provide an explanation as to why Plaintiff's fall occurred. The motion will be denied as to any evidence relating to intent.

Finally, Plaintiff contends that Defendant should be precluded from arguing that others are at fault for his injury. (Pl.’s Mot. Lim. 4, DN 54). While Plaintiff is correct that apportionment cannot be allocated against any non-party under KRS 411.182, Defendant nevertheless may present evidence and argue that the actions of others were the cause of Plaintiff's injury. The fall occurred in a store where there were other customers shopping and Defendant's employees were working. Depending on the evidence at trial, the jury could find that the fall was not a result of Defendant's negligence. The motion will be denied on this basis.

For the foregoing reasons, IT IS HEREBY ORDERED as follows:

1. Defendant's Motion in Limine (DN 38) is GRANTED IN PART and DENIED IN PART.

2. Defendant's Motion in Limine (DN 40) is DENIED.

3. Defendant's Motion in Limine (DN 46) is GRANTED IN PART and DENIED IN PART.

4. Plaintiff's Motion in Limine (DN 54) is GRANTED IN PART and DENIED IN PART.