Martin v. SMAC Fisheries, LLC et al

Filing 105

ORDER AND OPINION granting in part and denying in part 82 Motion in Limine to exclude certain evidence. See PDF document for details. Signed by Judge John W. Sedwick on 5/30/12. (GMM, CHAMBERS STAFF)

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA

TIMOTHY D. MARTIN,
Plaintiff,
vs.
SMAC FISHERIES, LLC,
in personam, and F/V RAI DAWN,
in rem,
Defendants.

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3:11-cv-00012 JWS
ORDER AND OPINION
[Re: Motion at docket 82]

I. MOTION PRESENTED
At docket 82, plaintiff Timothy D. Martin (“Martin”) moves to exclude certain
evidence. Martin’s supporting memorandum is at docket 83. Defendant SMAC
Fisheries, LLC (“SMAC”) opposes the motion at docket 93. Martin replies at docket 97.
Oral argument was not requested, and it would not assist the court.
II. DISCUSSION
Martin’s motion addresses four topics. The first is Dr. Boland’s medical record.
The second is the admissibility of certain anticipated testimony from SMAC’s expert
witness Dr. Kase. The third relates to Martin’s failure to file tax returns. The fourth
relates to certain impeachment evidence. The court addresses each topic in turn.

A. Dr. Boland’s Medical Record
The following can be ascertained from Martin’s deposition.1 In 2009, James
Boland was a physician in Colorado who was consulted by Martin in October of 2009.
Martin’s purpose in seeing Dr. Boland was to secure a doctor’s statement to support
Martin’s application to use medical marijuana. Dr. Boland’s record called a “Physician’s
Certification” indicates that Martin had back pain and lumbar spasms.2
It is undisputed that Martin successfully used Dr. Boland’s medical record to
support his application for the use of medical marijuana. It is also undisputed that
Martin successfully obtained the authorization. Dr. Boland’s record precedes the
incident which gives rise to this litigation by several months.
SMAC would offer the medical record into evidence at trial pursuant to the
business records exception to the hearsay rule. The only reason given to support
Martin’s request to exclude Dr. Boland’s record is stated in a single sentence: “Should
Defendant attempt to introduce the Boland record, Plaintiff will assert a foundation
objection that the circumstances of Dr. Boland’s practice lack the required indicia of
trustworthiness to qualify for the business records exception to the hearsay rule.”3 To
support that argument, Martin points to three newspaper articles which address what
appears to be widespread abuse of medical marijuana laws by a variety of persons and
entities, one of whom is Dr. Boland.
The newspaper stories suggest that Dr. Boland is running a “mill” which
generates physician’s certificates for nearly anyone which in turn generates a lot of
revenue. The news accounts also suggest that Dr. Boland simply relies on what his
patients tell him about their conditions, rather than on a proper medical assessment. If
that is accurate, it would mean that Martin told Dr. Boland that he had a bad back. In
any event, the newspaper articles are hearsay and do not provide a basis for
determining that the physician’s certificate was not a business record made in the
1

A portion of the deposition was filed at docket 94, pages 2-11.

2

A copy of the Physician’s Certification appears as Exhibit A to docket 83.

3

Doc. 83 at pp. 2-3.

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ordinary course of Dr. Boland’s medical practice, whatever may have been the nature of
that practice. It may be added that the undisputed fact that the State of Colorado relied
on the document in approving the use of marijuana by Martin lends support to the
proposition that the document is, in fact, Dr. Boland’s business record. In short, the
hearsay in the newspaper articles provides inadequate support for Martin’s position. Of
course, Martin may impeach the probative value of the physician’s certificate through
his own testimony about his experience with Dr. Boland. Given the inadequacy of the
only argument advanced to exclude Dr. Boland’s record, the request to exclude it from
evidence is denied.
Dr. Kase
Martin contends that defense expert Dr. Kase may be asked to testify that the
opinion by plaintiff’s expert, Dr. Gritzka, to the effect that a pre-existing back injury was
exacerbated by the knee injuries Martin sustained as an F/V Rai Dawn crewman should
not be permitted. The basis for this request is that no rebuttal expert report for Dr. Kase
was provided. SMAC acknowledges no rebuttal report was filed, but would excuse that
failure on the grounds that having timely filed its own initial expert report, SMAC did not
oppose Martin’s request to extend the deadline for production of his expert’s initial
report, which extension left too little time for Dr. Kase to prepare a rebuttal report.
SMAC also concedes that Dr. Kase’s testimony will be limited to testimony based on the
opinions and reasons expressed in his initial report.
The court’s scheduling order at docket 22 required a simultaneous exchange of
expert reports and provided for a simultaneous exchange of expert rebuttal reports.
The deadlines were extended in an order at docket 26 approving the parties’ stipulation
to extend certain deadlines such that the initial expert reports were due on January 3,
2012, with rebuttal reports due on February 3, 2012. Thereafter, at docket 41 the
parties stipulated to continue the deadline for the initial reports until January 17, 2012,
but did not request any extension in the deadline for rebuttal reports. The court
approved the stipulation at docket 26. Neither party filed a rebuttal report.
A rebuttal report is not necessary to allow an expert who has provided an initial
report to testify about why he disagrees with a different expert’s opinions provided that
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in doing so, the expert criticizing the other’s opinion does not rely on a basis
undisclosed in his initial report. To illustrate: If Expert One says in his initial report that
Test A means X is true, and Expert Two opines that X is not true or only partly true in
his initial report, Expert One need not provide a rebuttal report in order to critique Expert
Two’s opinion at trial based on Test A. On the other hand, if in order to rebut Expert
Two’s opinion, Expert One must rely on Test B which was not disclosed in his initial
report, then Expert One may do so only if he provided a rebuttal report making that
point.
SMAC does not dispute the proposition that Dr. Kase’s testimony must be limited
to the opinions and reasons given in his initial report, so Martin’s request that his
testimony be so limited is denied as moot. Given the purpose of rebuttal reports,
plaintiff’s second request that Dr. Kase be prohibited from giving testimony critical of
Dr. Gritzka’s opinions and the reasons therefore is denied to the extent that Dr. Kase
may do so in reliance on his own initial opinions and supporting reasons. To the extent
that Dr. Kase might attempt to rely on new opinions or reasons, the motion is granted.
Failure to File Tax Returns
While conceding that his failure to file tax returns may be used to rebut his claims
of substantial income in past years, Martin asks the court to foreclose any assertion that
the failure to file tax returns reflects on Martin’s credibility. Martin relies on two Georgia
state court decisions and Fed. R. Evid. 404(b). The Georgia cases are not controlling
and are not persuasive in the context of the case at bar.
Martin’s reliance on Rule 404(b) is misplaced. That rule provides: “Evidence of
other crimes, wrongs, or acts is not admissible to prove the character of a person in
order to show action in conformity therewith.” SMAC points out that it will not use the
failures to file in some years to show action in conformity therewith in other years. This
takes the use of the failures to file outside Rule 404(b). If Martin testifies that he had
substantial income in a year for which he failed to file a tax return, the failure to file is
something that may be considered in assessing his credibility. This request is denied.

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Impeachment Testimony and Documentation
In his reply, Martin concedes that asking the court to rule on impeachment
evidence is premature at this time. Accordingly, the request will be denied without
prejudice to renewal later as to specific testimony or exhibits.
III. CONCLUSION
The motion at docket 82 is GRANTED in part and DENIED in part consistent
with the discussion above.
DATED this 30th day of May 2012.

/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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