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Harris v. National Railroad Passenger Corp.

United States District Court, W.D. Washington, Tacoma

September 11, 2019

AARON HARRIS, Plaintiff,
v.
NATIONAL RAILROAD PASSENGER CORPORATION d/b/a AMTRAK, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION FOR MISTRIAL

          BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Defendant National Railroad Passenger Corporation d/b/a Amtrak's (“Amtrak”) motion for a mistrial.

         During discovery, Dr. Richard Seroussi (“Seroussi”) produced a report on Plaintiff Aaron Harris's (“Harris”) tramatic brain injury, left thoracic injury, and left shoulder injury. In relevant part, Seroussi “defer[red] giving a long-term prognosis for [Harris's] traumatic brain injury.” Seroussi also opined that Harris probably had more serious injuries to his chest and shoulder than could be diagnosed with clinical evaluation at that time. He recommended Harris obtain additional, more in-depth tests and evaluation to monitor his progress with the diagnosed injuries.

         On September 5, 2019, Harris called Seroussi to opine on the diagnosis and treatment of Harris's injuries. In relevant part, Seroussi testified as follows:

Q: What about his abilities to be a supervisor or his own business, any of those sort of things?
A: At this time, I do not see that to be probable.
Q: Do you expect there to be some improvement ten years from now that will make it probable?
A: I would say more probably than not, no. We are almost two years into this. He has not made any significant improvement in the last year.
***
Q: Under the conclusions [in Dr. Seroussi's original report] that you had . . . do you have an evaluation, more likely than not, as to whether or not his injuries are permanent from the TBI and limiting?
A: I don't know if I could have said that at the time of this [original October 2018] report. I think subsequently, he's not improving.
[Objection sustained]
Q: Does he have a permanent injury?
A: Yes.
***
A: . . . . He's finally getting up to about 30 to 35 hours a week of work. It is nothing like the work he did before. Minimum wage type of work now. He was a manager at a clinic or at an enterprise in Seattle and was on his way to really going somewhere with a sprouting career. I don't want to say that is never going to happen. If you are asking me more probably than not -
Q: I am going to, yes, ...

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