On May 23, 2012 a
Motion-Secondary
was filed
involving a dispute between
Siebert, Brenda,
and
Dodson, Speed,
Fitness Contractors,
Kelly Acquisition,
Kelly Acquisition Inc,
Kelly, David,
Kingwood Athletic Club,
Speed Dodson,
Speed Incorporated,
The Fitness Contractors,
for PERSONAL INJ (NON-AUTO)
in the District Court of Harris County.
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NO. 2012-30259
BRENDA SIEBERT IN THE DISTRICT COURT OF
VS. HARRIS COUNTY, TEXAS
KINGWOOD ATHLETIC CLUB, ET AL 165th JUDICIAL DISTRICT
PLAINTIFF'S REPLY TO THE CHALLENGETO DR. STANISLAW’S TESTIMONY
CONCERNING A FAILURE RATE A ROTATOR CUFF REPAIR
COME NOW PLAINTIFF BRENDA SIEBERT AND FILES THIS R ply to Certain
Motions in Limine filed by Defendants follows:
Defendants attemts to exclude Dr. Stanislaw _ testimony conceming a leamed treatise.
TRE Rule 803(18) clearly allows these statements come into evidence and to be used by experts as
long as the articleis reliable and trustworthy. The articleis attached.
Dr. Stanislaw proves up the article as reliable and trustworthy at page7 of isdep _ osition:
Q. (BY MR. MARTIN) The article I've just handed
you is entitled, "Rotator Cuff Integrity Correlates With
Clinical and Functional Results at a Minimum 16 Y ears
After Open Repair." Is that what it's called?
A. Yes.
Q. Now, is this a study that was done?
A. Yes.
Q. And take your time. Please review the study.
But my question to you is: This study appears to be
reliable and trustworthy?
MR. SCHULZ: Objection, form, leading.
Q. (BY MR. MARTIN) Can you tell me whether this
study is reliable?
A. It's in a peer reviewed journal, so it's peer
reviewed.
Q. Do you consider it to be reliable or
A. Yes.
Q. unreliable?
A. Reliable.
Q. Okay. Anddo you do you consider this
article to be trustworthy or untrustworthy?
A. Trustworthy.
Defendants do not challenge the reliabilityof the article.
If anything, as Plaintiff points out in her motion in limine, any physicians own personal
experience must be excluded unless it is established as scientifically reliableDr. Stanislaw’ s
person ons abouthis experienceare not established as scientifically reliable and should not be
allowed.
WHEREFORE, PLAINTIFF prays that the Defendants’ Challenge to Dr. Stanislaw
testimony on failure rates from an article be denied and such other and further relief to which
Plaintiff may show herself justly entitled.
Respectfully submitted,
/S/
JAMES F. MARTIN
State Bar No. 13077700
4429 Town Center Place
Kingwood, TX 77339
(281) 360
(281) 360 0174 Facsimile
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I do hereby certify
that on this day of September, a true and correct copy of the
foregoing was sent and/or delivered to all parties through counsel of record pursuant to Rule 21a,
T.R.C.Phy 10:00am.
/S/
JAMES F. MARTIN
Document Filed Date
September 23, 2014
Case Filing Date
May 23, 2012
Category
PERSONAL INJ (NON-AUTO)
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NO. 2012-30259 BRENDA SIEBERT IN THE DISTRICT COURT OF VS. HARRIS COUNTY, TEXAS KINGWOOD ATHLETIC CLUB, ET AL 165th JUDICIAL DISTRICT PLAINTIFF'S REPLY TO THE CHALLENGETO DR. STANISLAW’S TESTIMONY CONCERNING A FAILURE RATE A ROTATOR CUFF REPAIR COME NOW PLAINTIFF BRENDA SIEBERT AND FILES THIS R ply to Certain Motions in Limine filed by Defendants follows: Defendants attemts to exclude Dr. Stanislaw _ testimony conceming a leamed treatise. TRE Rule 803(18) clearly allows these statements come into evidence and to be used by experts as long as the articleis reliable and trustworthy. The articleis attached. Dr. Stanislaw proves up the article as reliable and trustworthy at page7 of isdep _ osition: Q. (BY MR. MARTIN) The article I've just handed you is entitled, "Rotator Cuff Integrity Correlates With Clinical and Functional Results at a Minimum 16 Y ears After Open Repair." Is that what it's called? A. Yes. Q. Now, is this a study that was done? A. Yes. Q. And take your time. Please review the study. But my question to you is: This study appears to be reliable and trustworthy? MR. SCHULZ: Objection, form, leading. Q. (BY MR. MARTIN) Can you tell me whether this study is reliable? A. It's in a peer reviewed journal, so it's peer reviewed. Q. Do you consider it to be reliable or A. Yes. Q. unreliable? A. Reliable. Q. Okay. Anddo you do you consider this article to be trustworthy or untrustworthy? A. Trustworthy. Defendants do not challenge the reliabilityof the article. If anything, as Plaintiff points out in her motion in limine, any physicians own personal experience must be excluded unless it is established as scientifically reliableDr. Stanislaw’ s person ons abouthis experienceare not established as scientifically reliable and should not be allowed. WHEREFORE, PLAINTIFF prays that the Defendants’ Challenge to Dr. Stanislaw testimony on failure rates from an article be denied and such other and further relief to which Plaintiff may show herself justly entitled. Respectfully submitted, /S/ JAMES F. MARTIN State Bar No. 13077700 4429 Town Center Place Kingwood, TX 77339 (281) 360 (281) 360 0174 Facsimile ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I do hereby certify that on this day of September, a true and correct copy of the foregoing was sent and/or delivered to all parties through counsel of record pursuant to Rule 21a, T.R.C.Phy 10:00am. /S/ JAMES F. MARTIN