Herrera-Moreno v. Furman et al

Filing 36

ORDER granting in part and denying in part 32 Motion in Limine. Signed by Judge John W Sedwick on 6/24/13.(JWS)

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA

EDUARDO HERRERA-MORENO,

)
)
Plaintiff,
)
)
vs.
)
)
RICHARD FURMAN and JANE DOE )
FURMAN husband and wife;
)
CITY OF PHOENIX; JOHN DOES 1-5; )
JANE DOES 1-5; ABC
)
PARTNERSHIPS 1-5; and XYZ
)
CORPORATIONS 1-5,
)
)
Defendants.
)
)

2:12-cv-01905 JWS
ORDER AND OPINION
[Re: Motion at Docket 32]

At docket 32 defendants Richard Furman, et al. (“defendants”) move to exclude
from evidence any undisclosed opinion of Charles Creasman, M.D. who is listed as a
witness for plaintiff Eduardo Herrera-Moreno (“plaintiff”). In particular, defendants seek
to preclude Dr. Creasman from offering testimony regarding causation of plaintiff’s
injury, his future treatment or rebuttal of defendants’ expert, Dr. John Bradway, on the
basis that plaintiff was required to but failed to properly disclose Dr. Creasman’s
opinions pursuant to Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure.
Plaintiff responds at docket 34 asserting that Dr. Creasman was his treating
physician. Plaintiff contends that Rule 26(a)(2)(B)’s requirement for a written report

does not apply, because Dr. Creasman will offer only his opinions as a treating
physician about plaintiff’s prognosis and future medical costs
Defendants’ reply is at docket 35. They argue that Dr. Creasman cannot testify
about plaintiff’s prognosis and future medical costs because there is no evidence that
Dr. Creasman developed his opinions on these points during his treatment of plaintiff.
A treating physician is generally not “retained or specially employed to provide
expert testimony,” but is instead a “percipient witness of the treatment he rendered and
thus not subject to the written report requirement” under Rule 26(a)(2).1 However, the
Ninth Circuit has held that “a treating physician is only exempt from Rule 26(b)(2)(B)’s
written report requirement to the extent that his opinions were formed during the course
of treatment.”2 If a plaintiff specifically retains treating physicians to review information
that they did not review during the course of treatment, then those physicians fall
“outside the scope of the ‘treating physician’ exception insofar as their additional
opinions are concerned.”3
A review of Dr. Creasman’s notes suggests that he may have formed some
opinion about plaintiff’s prognosis because he referred plaintiff to a specialist.4
However, at this time, it is unclear to the court precisely what relevant opinions, if any,
Dr. Creasman may have formed during his treatment of plaintiff.

1

Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817,824 (9th Cir. 2011).

2

Id. at 826.

3

Id.

4

Doc. 32-1 at p. 23.

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The court offers the following for the parties’ guidance: Dr. Creasman may
testify about his opinions actually formed during the course of his treatment of plaintiff,
but he may not function as an expert to rebut defendants’ expert medical witness,
except to the extent, if any, that opinions formed during the course of treatment are
contrary to the defense expert’s opinions. To the extent Dr. Creasman’s opinions
depend on information outside the course of plaintiff’s treatment, they become expert
opinions, and testimony about them must be excluded for failure to comply
Rule 26(a)(2)(B). Defendants are directed to raise specific objections at trial to opinion
testimony sought from Dr. Creasman which they believe was not formed during his
course of treatment of plaintiff. If such an objection is made, it will be sustained unless
plaintiff demonstrates that the opinion is one formed during the course of treatment.
The motion at docket 32 is GRANTED in part and DENIED in part consistent
with the discussion above.
DATED this 24th day of June 2013.

/s/
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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