Amrani v. United States of America

Filing 256

ORDER re: 249 Objection to Witness List. The motion at docket 249 is GRANTED IN PART and DENIED IN PART as follows: The United States' stipulation to the admission of Exhibit 174 is rescinded, and Exhibit 174 is no longer admitted into evid ence. Rulings on the United States' objections to Dr. Yablon's testimony are set out in this order. The testimony of Sharon Helman is excluded. Dr. Baker may not testify about the specific skills that spine surgeons must possess or how a spine surgeon's motor skills affect his or her practice. See PDF for entire text. Signed by Judge John W Sedwick on 2/5/15. (JWS)

1
2
3
4
5
6
7
8
9
10
11

UNITED STATES DISTRICT COURT

12

DISTRICT OF ARIZONA

13
14

Jacob Amrani,

15
16
17
18

Plaintiff,
vs.
United States of America,
Defendant.

)
)
)
)
)
)
)
)
)
)

2:12-cv-2583 JWS
ORDER AND OPINION
[Re: Motion at Docket 249]

19
20
21

I. MOTION PRESENTED
Plaintiff Jacob Amrani (“Dr. Amrani”) filed his final witness list at docket 234. At

22

docket 249 defendant United States of America (“United States”) filed objections to

23

Dr. Amrani’s final witness list. Dr. Amrani responds at docket 251. United States

24

replies at docket 253. Oral argument was not requested and would not assist the court.

25

II. BACKGROUND

26

Dr. Amrani is a board certified orthopedic surgeon who specialized in spine

27

surgery. Dr. Amrani’s practice in Phoenix was conducted at his own clinic, the Deer

28

Valley Spine Center. Because he is a veteran, Dr. Amrani is eligible to receive his own
medical care from the Veteran’s Administration (“VA”). Some time after he suffered a

1

severe injury to his right should while weightlifting, Dr. Amrani sought treatment at the

2

VA hospital in Phoenix. Dr. Amrani was placed under the care of Dr. Cranford, a board

3

certified orthopedic surgeon who performed right shoulder rotator cuff surgery on

4

Dr. Amrani. The surgery included excision of a soft tissue mass in the shoulder.

5

Dr. Amrani claims that as a result of the medical negligence of Dr. Cranford, he has

6

experienced a substantial loss of function in his right shoulder and right arm which has

7

negatively affected his ability to practice surgery and thus reduced his income. In this

8

lawsuit Dr. Amrani seeks more than $6 million in damages.

9

Dr. Amrani’s final witness list includes, among others, a Rule 30(b)(6) witness

10

whom Dr. Amrani intends to call to address any of the United States’ concerns

11

regarding “the foundation or any aspect about procedure or technique in converting the

12

plaintiff’s August 5, 2011 MRI . . . to [a] moving picture of frames of the images;”1 Corrie

13

Yablon, M.D.; Sharon Helman; and Clifford Baker, M.D. The United States seeks an

14

order excluding some or all of these witnesses’ testimony.

15
16
17

III. DISCUSSION
A.

Exhibit 174 and the Related Rule 30(b)(6) Witness
At docket 241 the court admitted Exhibit 174 into evidence—which Dr. Amrani

18

describes in his First Amended Exhibit List as a “Video of MRI of Shoulder and Still

19

Images of MRI Performed at Anthem VA on 8/5/11” 2—pursuant to the parties’

20

stipulation. The United States now objects to both Exhibit 174 and the Rule 30(b)(6)

21

witness that Dr. Amrani intends to call to testify about it. The United States asserts that

22

it “mistakenly agreed to the admission of the exhibit” without having seen it based on

23

the assumption that the exhibit would be comprised of “original, un-doctored MRI

24

images.”3 Instead, the United States asserts that the exhibit is “a colorized rendition of

25
26

1

27

2

28

3

Doc. 234 at 1.
Doc. 225 at 13.
Doc. 249 at 4.

-2-

1

the MRI, which has been made into a moving picture and includes annotations and

2

anatomical identifications made by unknown, unidentified persons.”4 The United States

3

asserts that it first became aware of the true nature of the exhibit during Dr. Yablon’s

4

trial deposition on January 5, 2015. It moves for an order excluding Exhibit 174 and

5

testimony from the witness that Dr. Amrani intends to call to testify about it pursuant to

6

Rule 37(c)(1) because Dr. Amrani did not disclose this evidence before the August 18,

7

2014 deadline for completion of discovery.5

8

Rule 37(c)(1) provides that “[i]f a party fails to provide information or identify a

9

witness as required by Rule 26(a) or (e), the party is not allowed to use that information

10

or witness to supply evidence . . . at a trial, unless the failure was substantially justified

11

or is harmless.” “In determining whether this sanction should be imposed, the burden is

12

on the party facing the sanction . . . to demonstrate that the failure to comply with

13

Rule 26(a) [or (e)] is substantially justified or harmless.”6 When Rule 37 was amended

14

in 1993 to add paragraph (1), the Advisory Committee noted that it “provides a strong

15

inducement for disclosure of material that the disclosing party would expect to use as

16

evidence” at trial.7 It is intended to “put teeth” into the mandatory disclosure

17

requirements of Rule 26(a) and (e). 8 The district court’s discretion is given “particularly

18

wide latitude” regarding sanctions under Rule 37(c)(1). 9

19
20
21
22
4

23

Doc. 249 at 2.

5

24
25

Doc. 142.

6

Torres v. City of Los Angeles, 548 F.3d 1197, 1213 (9th Cir. 2008).

26

7

27

8

28

9

Fed. R. Civ. P. 37 advisory committee’s note (1993 amend.).
Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 861 (9th Cir. 2014).
Id. at 859.

-3-

1

The United States argues that there is no justification for Dr. Amrani’s failure to

2

comply with Rule 26 and that it will be prejudiced if this evidence is admitted for two

3

reasons: (1) “its experts have been deprived of a fair opportunity to review it,” and (2) its

4

lawyers were “deprived of the opportunity to fully prepare for Dr. Yablon’s trial

5

deposition.” In response, Dr. Amrani does not contend that he complied with Rule 26 or

6

that his failure was justified. Instead, he argues that the United States should be bound

7

by its purportedly-mistaken stipulation and that its “argument of prejudice is

8

unsupported” because it does not actually have a radiology expert to review the MRI.

9

Contrary to Dr. Amrani’s argument, the United States is under no burden to

10

prove it will be prejudiced—Dr. Amrani bears the burden to prove that his failure to

11

comply with Rule 26 is harmless.10 The court finds that Dr. Amrani’s failure to comply

12

with Rule 26 is not harmless because it deprived the United States the ability to

13

effectively cross-examine Dr. Yablon regarding Exhibit 174. Based on this prejudice,

14

Dr. Yablon’s testimony about that exhibit is inadmissible. Further, based on the

15

surprise caused by Dr. Amrani’s failure to timely disclose Exhibit 174, the United States’

16

stipulation to its admission is rescinded, and Exhibit 174 is no longer admitted into

17

evidence.11 That being said, the United States’ prejudice is curable because its experts

18

and treating physicians have now reviewed the exhibit.12 Accordingly, Dr. Amrani is not

19

precluded from attempting to use Exhibit 174 as demonstrative evidence at trial or from

20

calling a Rule 30(b)(6) witness in an attempt to lay any foundation necessary to the

21

exhibit’s use.

22
23
24

10

See Torres, 548 F.3d at 1213 (“Plaintiffs were not required to articulate how they
would be prejudiced by Defendants' failure to provide an expert report.”).
11

25
26
27
28

Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 862 (9th Cir. 2014) (“The
theory of disclosure under the Federal Rules of Civil Procedure is to encourage parties to try
cases on the merits, not by surprise, and not by ambush.”).
12

Doc. 253 at 2. See Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d
985, 993 (10th Cir. 1999) (holding that one of the factors courts should consider when analyzing
Rule 37 sanctions is “the ability of the [opposing] party to cure the prejudice.”).

-4-

1
2

B.

Dr. Yablon
Dr. Amrani has named Dr. Yablon as an expert witness. She is a board-certified

3

radiologist with a subspecialty in “Musculoskeletal (MSK) Imaging.”13 Because she is

4

unavailable to testify at trial, Dr. Amrani took her videotaped trial deposition on

5

January 5, 2015. The court makes the following rulings on the United States’

6

objections to Dr. Yablon’s testimony:

7

Citation

Ruling

8

13:18-25, 14:1

Rule 401 (typed as 402) objection OVERRULED

9

14:9-13

Rule 401 (typed as 402) objection OVERRULED

10

15:11-15

Rule 401 (typed as 402) objection OVERRULED

11

15:17-20

Rule 401 (typed as 402) objection OVERRULED

12

15:25-16:4

Rule 401 (typed as 402) objection OVERRULED

16:7-10

Rule 401 (typed as 402) objection OVERRULED

16:14

Rule 401 (typed as 402) objection OVERRULED

16:25-17:5

Rule 401 (typed as 402) objection OVERRULED

17:19-19:15

Objections are OVERRULED

16

18:5-19:20

Objections are OVERRULED

17

20:2-7

Objections are OVERRULED

18

21:9-18

Objections are OVERRULED

19

22:2-7

Rule 401 (typed as 402) objection OVERRULED

20

29:13-14

Objection based on Order at Docket 230 OVERRULED;
other objections are WAIVED

21

29:17

Objection based on Order at Docket 230 SUSTAINED;
testimony is EXCLUDED

29:23-25; 30:1-2

Objection based on Order at Docket 230 SUSTAINED;
testimony is EXCLUDED

24

32:19- 33:1

Objections OVERRULED

25

33:24-34:5

Objections OVERRULED

26

35:22-36:1

Objection based on Order at Docket 230 SUSTAINED;
testimony is EXCLUDED

13
14
15

22
23

27
28

13

Doc. 97-3 at 2.

-5-

1

36:4-8

Objection based on Order at Docket 230 SUSTAINED;
testimony is EXCLUDED

36:10-13

Objection based on Order at Docket 230 SUSTAINED;
testimony is EXCLUDED

4

36:18-25

EXCLUDED by parties’ agreement

5

37:2-9

EXCLUDED by parties’ agreement

6

37:20-25

Objections OVERRULED

7

38:4-7

Rule 401 (typed as 402) objection OVERRULED

39:16-40:1

Objections OVERRULED

40:5-16

Rule 401 (typed as 402) objection OVERRULED

40:24-41:1

Rule 401 (typed as 402) objection OVERRULED

41:3-4

Rule 401 (typed as 402) objection OVERRULED

11

41:6-7

Rule 401 (typed as 402) objection OVERRULED

12

41:9-14

Rule 602 (lack of foundation) objection OVERRULED

13

42:7-13

Rule 602 (lack of foundation) objection OVERRULED

14

42:15

Rule 602 (lack of foundation) objection OVERRULED

15

42:17-24

Objections OVERRULED

43:23-44:1

Objections are WAIVED

44:8-15

Objections OVERRULED

44:23-45:3

Objections OVERRULED

48:16-17

Objection based on Order at Docket 230 OVERRULED

19

48:22-24

Objection based on Order at Docket 230 OVERRULED

20

50:10-15, 17-19

Rule 702 objection SUSTAINED; testimony is EXCLUDED

21

50:22-25; 51:2-3

Rule 702 objection SUSTAINED; testimony is EXCLUDED

22

51:5-6, 7, 9-15

Rule 702 objection OVERRULED

23

53:9-18, 21-23

Rule 702 objection OVERRULED

54:7-8

Objection based on Order at Docket 230 (typed as Docket
223) OVERRULED

54:13-14

Objection based on Order at Docket 230 (typed as Docket
223) OVERRULED

55:16 -56:15

Rule 37(c)(1) (lack of disclosure) objection SUSTAINED;
testimony is EXCLUDED

2
3

8
9
10

16
17
18

24
25
26
27
28

-6-

1

72:22-73:6

Rule 611(a) (redirect beyond scope of cross) objection
SUSTAINED; testimony is EXCLUDED

73:16-25; 74:1

Objection based on Order at Docket 230 SUSTAINED;
testimony is EXCLUDED

78:15-23

Objection based on Order at Docket 230 SUSTAINED;
testimony is EXCLUDED

2
3
4
5
6

C.

Sharon Helman is the Director of the Phoenix VA Medical Center (“Phoenix VA”).

7
8
9

Sharon Helman

Dr. Amrani intends to call Ms. Helman to testify about, among other things, the following
topics:
C

13

Her work on this case;

C

12

Day-to-day operations and procedures at the Phoenix VA;

C

11

Her duties as Director of the Phoenix VA;

C

10

Her “cost cutting procedures that jeopardized patient safety and lead to
the injuries sustained by the plaintiff;” and

14
C

15

A report issued by the Office of Inspector General (“OIG”) related to
alleged mismanagement of Non-VA fee care funds in Fiscal Year 2011.

16
17
18
19
20
21
22
23
24
25
26

The United States objects to this testimony pursuant to Rules 401 (typed as 402) and
403. Dr. Amrani responds by arguing that Ms. Helman’s testimony is directly relevant to
plaintiff’s claims in this case because she was “involved in” Dr. Amrani’s care.
Dr. Amrani does not explain how this is true other than by reference to a letter that
Ms. Helman wrote to Senator John McCain in April 2012. 14 Dr. Amrani has not shown
that Ms. Helman’s testimony would be relevant. The United States’ objection will be
sustained and her testimony excluded.
D.

Dr. Baker
Dr. Baker is one of Dr. Amrani’s treating physicians. The United States objects

to two lines of questioning that Dr. Amrani intends to pursue with Dr. Baker. First,

27
28

14

Doc. 251-1 at 21.

-7-

1

Dr. Amrani states that he intends to ask Dr. Baker to “look at the raw data and

2

waveforms from the defendant’s EMG, if they become available, to compare to the

3

[EMGs] that Dr. Baker performed, should that become an issue.” Dr. Amrani responds

4

to this objection by stating that Dr. Baker will have no raw data to look at, and therefore

5

the United States’ objection is moot. Based on Dr. Amrani’s representation, the court

6

does not need to rule on this objection.

7

Second, Dr. Amrani states that Dr. Baker is expected to testify about the

8

“delicate nature of the motor skills” that Dr. Amrani “needed to safely treat his patients,”

9

and how his injury permanently impairs his ability to practice as a spine surgeon. The

10

United States objects to this testimony, stating that Dr. Baker is not qualified to testify

11

about the medical and surgical procedures that fall within the ambit of orthopedic spine

12

surgeons. The United States’ argument does not reference Rule 702, but this is the

13

authority upon which it relies. Rule 702 permits opinion testimony by an expert as long

14

as the witness is qualified and the witness’s opinion is relevant and reliable.15 Expert

15

opinion testimony is relevant “if the knowledge underlying it has a valid connection to

16

the pertinent inquiry” and it is reliable “if the knowledge underlying it has a reliable basis

17

in the knowledge and experience of the relevant discipline.”16 Under Daubert v. Merrell

18

Dow Pharmaceuticals, Inc.,17 and its progeny, “a district court’s inquiry into admissibility

19

is a flexible one.”18 The purpose of the district court’s inquiry is not to “exclude opinions

20
21
22
23
15

24
25

See City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1043 (9th Cir. 2014), cert.
denied sub nom. SQM N. Am. Corp. v. City of Pomona, Cal., No. 14-297, 2014 WL 4542540
(U.S. Dec. 15, 2014).

26

16

27

17

28

18

Id. at 1044 (citation and internal quotation marks omitted).
509 U.S. 579 (1993).
Pomona, 750 F.3d at 1043.

-8-

1

merely because they are impeachable,” but rather to “screen the jury from unreliable

2

nonsense opinions.” 19

3

Dr. Amrani responds that “[a]s a treating physician who specializes in physiatry

4

and rehabilitation medicine, Dr. Baker is more than qualified to testify concerning this

5

issue. Determining what an injured patient can and cannot do is pre cisely what he does

6

on a daily basis.”20 This mischaracterizes the testimony to which the United States

7

objects. Although Dr. Baker may very well be qualified to testify about the decline of

8

Dr. Amrani’s motor skills, he is not qualified to testify about the specific skills that spine

9

surgeons must possess or how a spine surgeon’s motor skills affect his practice. The

10

United States’ objection is sustained.

11
12
13
14

IV. CONCLUSION
For the reasons above, the motion at docket 249 is GRANTED IN PART and
DENIED IN PART as follows:
C

The United States’ stipulation to the admission of Exhibit 174 is rescinded,

15
16

and Exhibit 174 is no longer admitted into evidence.
C

Rulings on the United States’ objections to Dr. Yablon’s testimony are set

17

out above.

18

C

The testimony of Sharon Helman is excluded.

19

C

Dr. Baker may not testify about the specific skills that spine surgeons

20

must possess or how a spine surgeon’s motor skills affect his or her

21

practice.

22

DATED this 5th day of February 2015.

23
24

/s/ JOHN W. SEDWICK
SENIOR UNITED STATES DISTRICT JUDGE

25
26
27

19

28

20

Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013).
Doc. 251 at 5-6.

-9-