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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-cv-81244-MATTHEWMAN

WILLIAM HERBERT BRITT,

Plaintiff,

v.

WAL-MART STORES EAST, LP,

Defendant.

______________________________________/

ORDER DENYING DEFENDANT’S RENEWED MOTION IN LIMINE TO

PRECLUDE THE OPINION TESTIMONY OF DR. SAMUEL HESS [DE 96]

THIS CAUSE is before the Court upon Defendant, Wal-Mart Stores East, LP’s

(“Defendant”) Renewed Motion in Limine to Preclude the Opinion Testimony of Dr. Samuel Hess

(“Motion”) [DE 96]. Plaintiff, William Herbert Britt (“Plaintiff”) has filed a Response to the 

Motion [DE 115], and no reply was filed. The Court held a hearing on the Motion via Zoom video 

teleconference on March 30, 2022. The matter is now ripe for review. The Court has carefully 

considered the parties’ written submissions, the parties’ oral argument at the hearing, the record, 

and applicable law.

I. INTRODUCTION AND BACKGROUND

In his Complaint, Plaintiff alleges one count of negligence against Plaintiff. [Compl., DE 

1-2]. According to Plaintiff’s allegations, he slipped and fell on a liquid substance in the men’s 

bathroom at a Wal-Mart store located in West Palm Beach, Florida, on August 15, 2019. Id. ¶ 7. 

Plaintiff also alleges that, as a direct and proximate result of Defendant’s negligence, he suffered 

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“significant and severe bodily injury, resulting pain and suffering, disability, disfigurement, 

physical impairment, inconvenience, mental anguish, loss of capacity for the enjoyment of life, 

expense of hospitalization, medical and nursing care and treatment, loss of earnings and loss of 

ability to each money in the future and/or aggravation of a previously existing condition.” Id. ¶ 11. 

According to the Complaint, these losses are “either permanent or continuing in nature.” Id.

In his Order on Motion for Summary Judgment [DE 63], the prior presiding Judge granted 

in part and denied in part Defendant’s Motion for Final Summary Judgment. In that Order, the 

Court ruled that the motion was “granted to the extent that it seeks to prohibit Plaintiff from 

asserting a mode of operation theory of negligence at trial in lieu of proving that Defendant had 

the requisite notice of the liquid substance” and denied it in all other respects.

One issue in this case is whether there was a causal connection between the slip and fall 

and a cervical surgery performed by Dr. Samuel Hess. On April 6, 2021, Plaintiff filed a 

Supplemental Expert Witness List [DE 62]. With regard to Dr. Hess, he explained, 

Although not a retained expert, Plaintiff may call Dr. Hess to testify. Dr. Hess has 

provided care and treatment to the Plaintiff and may testify regarding his opinions 

relating to care and treatment, the costs associated with that treatment, causation of 

Willie Britt’s injuries, damages, the need for further treatment, if any, as well as the 

costs for such treatment; and whether or not Mr. Britt has sustained a permanent injury 

within a reasonable degree of medical probability. It is anticipated that Dr. Hess will 

base his testimony on his experience and training. Plaintiff will assist Defendant in 

obtaining dates of this witness, if requested.

Id. On June 21, 2022, Plaintiff filed a Second Supplemental Expert Witness List [DE 92] which 

included the same language from the April 6, 2021 filing. In Plaintiff’s Third Supplemental Exhibit 

List [DE 131], he listed Dr. Samuel J. Hess, M.D., as having knowledge of Plaintiff’s injuries as a 

result of the subject incident and treatment thereof, the medical bills incurred by Plaintiff as a result of 

the subject incident, and the reasonableness of their medical bills, as well as authenticity of their 

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medical records and bills. Plaintiff also stated that Dr. Hess has “knowledge of liability, causation, 

damages.” Id.

II. MOTION AND RESPONSE

Dr. Samuel Hess, a board-certified orthopedic surgeon, performed a cervical surgery on 

Plaintiff in June 2020. [DE 96 at 2]. Defendant asserts that Plaintiff seeks to admit the opinion 

testimony of Dr. Hess that Plaintiff’s need for cervical surgery in June 2020 was caused solely by 

his slip and fall on Defendant’s premises in August 2019. Id. According to Defendant’s Motion, 

however, during his deposition, Dr. Hess admitted that (1) Plaintiff was involved in other accidents

in 2011, 2014, 2015, 2017, and 2019, that resulted in injury to his cervical and lumbar spine; (2) 

in reaching his opinion of a causal connection between the June 2020 cervical surgery and the 

August 2019 slip and fall, Dr. Hess did not compare Plaintiff’s pre-August 2019 MRIs with his 

post-August 2019 MRIs; and (3) the entirety of his opinion is based on what Plaintiff told him and 

that there is no objective evidence that he can rely on to attribute the June 2020 cervical surgery 

to the slip and fall on Defendant’s premises in August 2019. Id. at 2–5. 

Defendant is not challenging Dr. Hess’ qualifications; rather, Defendant argues that Dr. 

Hess’ deposition testimony shows that his opinions lack a sufficient factual predicate underlying 

them. Id. at 11. Defendant argues that, by Dr. Hess’ own admission, his opinion as to a causal 

connection between the June 2020 surgery and the slip and fall in this case is not based on any 

objectively verifiable evidence, and the only potentially objective evidence (a comparison of pre 

and post slip-and-fall MRIs) was not considered. Id. at 11–12. 

In Plaintiff’s Response, he argues that Dr. Hess should be permitted to testify to expert 

opinions to the extent he acquired “expert knowledge” in the course of treating Plaintiff. [DE 115

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at 1]. Plaintiff further argues that Defendant deposed Dr. Hess, and “it is only due to Wal-Mart’s 

failure to ask the correct foundational questions during its deposition of Dr. Hess that it challenges 

Dr. Hess’ opinions.” Id. Accordingly, Plaintiff contends that Defendant’s Motion is premature 

because Plaintiff “should be permitted to lay at trial the proper foundation for Dr. Hess’ causation 

testimony.” Id. Plaintiff also describes in detail what foundation his counsel plans on laying at 

trial. Id. at 4. Plaintiff further contends that Dr. Hess’ causation conclusion is based on “more than 

mere temporal analysis.” Id. at 6. Plaintiff points out that Dr. Hess did a thorough inquiry into the 

onset of the injury and claims that his conclusions are based on the doctor’s specific expertise and 

training. Id. Finally, Plaintiff asserts that, if Dr. Hess’ opinions are based on insufficient data, then 

Defendant’s own expert must also be excluded. Id. at 7. 

During the March 30, 2022 hearing, Plaintiff’s counsel admitted that this case involves the 

exacerbation of an injury. Counsel represented that Dr. Hess will testify that Plaintiff clearly had 

pre-existing conditions that were managed by pain medication, but that Plaintiff’s need for surgery 

was caused by his fall at Wal-Mart, as demonstrated by the fact that he did not medically require 

surgery until after he fell at Wal-Mart. 

III. RELEVANT LAW

Federal Rule of Evidence 702 governs the admissibility of expert testimony. A party that 

proffers the testimony of an expert under Rule 702 bears the burden of laying the proper foundation 

and demonstrating admissibility by a preponderance of the evidence. See Rink v. Cheminova, Inc., 

400 F.3d 1286, 1291–92 (11th Cir. 2005); Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 

(11th Cir. 1999). The Eleventh Circuit “has previously held that expert testimony may be admitted 

if three requirements are met. First, the expert must be qualified to testify competently regarding 

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the matter he or she intends to address. Second, the methodology used must be sufficiently reliable 

as determined by a Daubert inquiry. Third, the testimony must assist the trier of fact through the 

application of expertise to understand the evidence or determine a fact in issue.” Kilpatrick v. Breg, 

Inc., 613 F.3d 1329, 1335 (11th Cir. 2010); see also Horrillo v. Cook Inc., No. 08-60931-CIV, 

2014 WL 2708498, at *2 (S.D. Fla. June 6, 2014); Southpoint Condo. Ass'n v. Lexington Ins. Co., 

No. 19-CV-61365, 2020 WL 3581611, at *2–3 (S.D. Fla. July 1, 2020) (setting forth a clear and 

detailed summary of the law under Daubert and Federal Rule of Evidence 702).

The judge plays a “gatekeeping” role in determining admissibility. See Daubert v. Merrell 

Dow Pharm., Inc., 509 U.S. 579, 589 n.7, 597 (1993). However, this gatekeeping role “is not 

intended to supplant the adversary system or the role of the jury.” Southpoint Condo. Ass'n, 2020 

WL 3581611, at *3 (quoting Quiet Tech. DC-8, Inc. v. Hurel-Dubois, UK Ltd., 326 F.3d 1333, 

1341 (11th Cir. 2003) (citations omitted)). A district court enjoys “considerable leeway” in making 

determinations regarding the admissibility of expert testimony and the reliability of an expert 

opinion. United States v. Frazier, 387 F.3d 1244, 1258–59 (11th Cir. 2004) (citing Kumho Tire 

Co. v. Carmichael, 526 U.S. 137, 152 (1999)).

IV. ANALYSIS AND RULINGS

A. Law Relevant to Testimony of Treating Physicians

The scenario currently before the Court is a common one in which treating physicians are 

hybrid (fact and expert) witnesses. Since Dr. Hess was not retained, he did not complete an expert 

report pursuant to Rule 26(a)(2)(B). However, he may potentially be entitled to testify as an expert 

pursuant to Rule 26(a)(2)(C)—including on the issue of causation. Torres v. Wal-Mart Stores E., 

L.P., No. 19-62352-CIV, 2021 WL 3634632, at *10 (S.D. Fla. Aug. 17, 2021). Physicians who 

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form their causation opinions during treatment can offer those opinions under Rule 26(a)(2)(C)—

even without a Rule 26(a)(2)(B) report. Torres, 2021 WL 3634632, at *17 (citing Torres v. First 

Transit, Inc., 2018 WL 3729553, at *3 (S.D. Fla. Aug. 6, 2018)). The physicians’ causation 

opinions need only be “sufficiently related to the information disclosed during the course of 

Plaintiff's treatment[.]” Torres, 2018 WL 3729553, at *3 (quoting Levine v. Wyeth Inc., 2010 WL 

2612579, at *1 (M.D. Fla. June 25, 2010)); see also Marsh v. Valyou, 977 So. 2d 543, 548 (Fla. 

2007) (“Experts routinely form medical causation opinions based on their experience and 

training.”). However, “when a treating physician’s testimony is based on a[ ] hypothesis, not the 

experience of treating the patient, it crosses the line from lay to expert testimony, and it must 

comply with the requirements of Rule 702 and the strictures of Daubert.” Pringle v. Johnson & 

Johnson, No. 13-81022-CIV, 2019 WL 6723822, at *3 (S.D. Fla. Dec. 11, 2019) (footnote omitted) 

(quoting Williams v. Mast Biosurgery U.S.A., Inc., 644 F.3d 1317–18 (11th Cir. 2011)).

Defendant has styled its Motion as a “motion in limine.” In the Eleventh Circuit, motions 

in limine are generally disfavored as admissibility questions should be ruled upon as they arise at 

trial. Begualg Inv. Mgmt., Inc. v. Four Seasons Hotel Ltd., 10-22153-CIV, 2013 WL 750309, at 

*1 (S.D. Fla. Feb. 27, 2013). As a result, if evidence is not clearly inadmissible, “evidentiary 

rulings must be deferred until trial to allow questions regarding foundation, relevancy, and 

prejudice.” Lordeus v. Torres, 1:17-CV-20726-UU, 2018 WL 1364641, at *1 (S.D. Fla. Mar. 1, 

2018) (quoting Kobie v. Fifthian, 2:12-CV-98-FTM-29DNF, 2014 WL 1652421, at *1 (M.D. Fla. 

2014)). Motions in limine are “best limited to those issues that the mere mention of which would 

deprive a party of a fair trial. The Court does not issue advisory opinions, and it is difficult to rule 

in a vacuum without having the opportunity to see the proffered testimony in perspective with 

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other evidence in the trial.” United States v. Everglades Coll., Inc., No. 12-60185-CIV, 2014 WL 

11578214, at *1 (S.D. Fla. May 28, 2014); see also Contreras v. Aventura Limousine & Transp. 

Serv., Inc., No. 13-22425-CIV, 2014 WL 11880996, at *2 (S.D. Fla. July 29, 2014) (“It is always 

difficult to rule in a vacuum, so the Court’s ruling is without prejudice to Defendants’ objecting 

when the evidence is sought to be introduced.”); accord Apple, Inc. v. Corellium, LLC, 19-cv81160-Smith/Matthewman, 2021 WL 2712131 (S.D. Fla. July 1, 2021). However, since Defendant 

has raised Daubert issues within its Motion, and since Plaintiff seeks to have Dr. Hess testify 

regarding the cause of Plaintiff’s medical injuries, the Court shall proceed with a Daubert analysis. 

See Wilson v. Taser Int'l, Inc., 303 F. App'x 708, 713 (11th Cir. 2008).

B. Qualifications of Dr. Hess

Noting that Plaintiff has not objected to Dr. Hess’ qualifications, the Court finds that Dr. 

Hess, a board-certified orthopedic surgeon, is qualified to testify competently as to his opinions 

relating to his care and treatment of Plaintiff, the costs associated with that treatment, whether or 

not Plaintiff has sustained a permanent injury within a reasonable degree of medical probability, 

damages, causation of Plaintiff’sinjuries which are sufficiently related to the information disclosed 

during the course of Plaintiff’s treatment, and the need for further treatment, if any, as well as the 

costs for such treatment. 

C. Reliability of Dr. Hess’ Opinions

The methodology used by Dr. Hess is sufficiently reliable as determined after a Daubert

inquiry. After carefully reviewing the credentials, methodology, reliability, and opinions of Dr. 

Hess, a board-certified orthopedic surgeon, the Court finds him to be an appropriate expert within 

his area of expertise. Dr. Hess was Plaintiff’s treating physician and is permitted to testify, based 

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upon his treatment and care of Plaintiff, as to his opinions on causation which are sufficiently 

related to the information disclosed during the course of Plaintiff’s treatment. Furthermore, “[a]

doctor usually may primarily base his opinion as to the cause of a plaintiff's injuries on his history 

where the plaintiff ‘has sustained a common injury in a way that it commonly occurs.’” Wilson, 

303 F. App'x 708 at 714 (citing Bowers v. Norfolk S. Corp., 537 F. Supp. 2d 1343, 1354 (M.D. Ga. 

2007)). Here, the spinal issues alleged by Plaintiff are arguably common injuries in the way that 

they commonly occur. They are not the type of more uncommon Taser-related injuries at issue in 

Wilson, supra. Additionally, to the extent that Dr. Hess failed to consider any of prior Plaintiff’s 

medical records in this case involving exacerbation of injuries, Defendant can address these 

failures during cross-examination of Dr. Hess. 

D. Whether the Testimony Will Assist the Trier of Fact

As Plaintiff’s treating physician, and as a board-certified orthopedic surgeon, Dr. Hess’

testimony will undisputedly assist the trier of fact through the application of his expertise to 

understand the evidence or determine a fact in issue. Plaintiff’s counsel has represented that Dr. 

Hess will be testifying live, and Defendant’s cross-examination of Dr. Hess will also assist the 

trier of fact. 

V. CONCLUSION

In light of the foregoing, the Court finds that Plaintiff has demonstrated the admissibility 

of Dr. Hess’ causation opinions by a preponderance of the evidence. The jury will hear from Dr. 

Hess and make its own findings. 

It is hereby ORDERED AND ADJUDGED that Defendant’s Renewed Motion in Limine 

to Preclude the Opinion Testimony of Dr. Samuel Hess [DE 96] is DENIED. Since the Motion 

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was styled as a motion in limine, the Court’s rulings are made without prejudice and may be 

revisited by the Court during trial in the event a proper and timely objection is made for the Court’s 

consideration. 

DONE and ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, 

this 13th day of April, 2022.

WILLIAM MATTHEWMAN 

United States Magistrate Judge

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