Nicholson v. Medina et al

Filing 124

ORDER signed by Judge Kimberly J. Mueller on 11/26/2013. For foregoing reasons, Court is GRANTING defendant's first 103 Motion In Limine; GRANTS in part and DENIES in part defendant's 107 Second Motion In Limine; and GRANTS defendant's 109 Fourth Motion In Limine. (Marciel, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ELDRED NICHOLSON,

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Plaintiff,

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No. 2:10-cv-01425-KJM-EFB

v.

ORDER

D. MEDINA,

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Defendant.

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In this order the court addresses three motions in limine (ECFs 103, 107, 109)

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brought by defendant. The court held a hearing on these motions on November 22, 2013, at

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which L. David Russell and Jeffrey Atteberry appeared telephonically for plaintiff and Lakeysia

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Beene appeared for defendant. For the reasons below, the court GRANTS ECFs 103 and 109 and

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GRANTS in part and DENIES in part ECF 107.

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I.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

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Plaintiff is a state prisoner bringing a 28 U.S.C. § 1983 claim against defendant

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Medina, a licensed physician’s assistant employed at the prison where plaintiff is incarcerated.

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Plaintiff alleges defendant violated his Eighth Amendment rights through deliberate indifference

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to plaintiff’s medical needs when defendant prescribed plaintiff ibuprofen medication knowing

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this prescription could harm plaintiff, who suffers from ulcers.

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The court has confirmed a trial date of December 9, 2013 on plaintiff’s single

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section 1983 claim. To date, plaintiff has filed three motions in limine and defendant has filed

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five. (ECF 90, 91, 92, 103, 107, 108, 109, 110.) This order addresses defendant’s first, second,

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and fourth motions, filed on November 6, 2013 (ECF 103) and November 18, 2013 (ECFs 107,

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109). On November 18, the court set a hearing on defendant’s first and second motions in limine,

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which concern the admissibility of expert testimony. On November 21, 2013, plaintiff filed a

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request to continue the hearing on defendant’s second motion in limine so that plaintiff could file

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an opposition. (ECF 117.) At hearing, the court noted this request but made an initial pretrial

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ruling on defendant’s second motion, which the court granted in part and denied in part, as

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described below.

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At hearing the court also initially granted defendant’s first motion in limine as

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clarified below, ECF 103, and it addressed defendant’s fourth motion in limine, ECF 109.

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Plaintiff stated he did not oppose either motion, the latter dubbed Motion to Preclude Plaintiff

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from Mentioning Who Would Pay for Judgment Should Defendant Be Found Liable. The court

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then granted the fourth motion as unopposed.

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II.

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STANDARD
When considering whether expert testimony is admissible under Rule 702, a trial

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court acts as a “gatekeeper” to exclude “junk science.” Daubert v. Merrell Dow Pharms., Inc.,

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509 U.S. 579 (1993) (“Daubert I”). The court performs its gatekeeping role by permitting experts

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to offer their opinion only if “(a) the expert’s scientific, technical, or other specialized knowledge

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will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the

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testimony is based on sufficient facts or data; (c) the testimony is the product of reliable

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principles and methods; and (d) the expert has reliably applied the principles and methods to the

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facts of the case.” FED. R. EVID. 702.

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Trial courts are tasked with analyzing “not what the experts say, but what basis

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they have for saying it.” Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1315 (9th Cir.

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1995) (“Daubert II”). Courts may reject expert testimony where the “analytical gap” between the

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data and the expert’s conclusion is too great. Kennedy v. Collagen Corp., 161 F.3d 1226, 1228
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(9th Cir. 1998) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)). In all cases, “[i]t is

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the proponent of the expert who has the burden of proving admissibility.” Lust By & Through

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Lust v. Merrell Dow Pharms., Inc., 89 F.3d 594, 598 (9th Cir. 1996).

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III.

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ANALYSIS
A.

Motion in Limine #1: Admissibility of Dr. Barnett as a Rebuttal Witness

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In his first motion in limine defendant seeks to add a rebuttal witness, Dr. Barnett,

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to his witness list. Defendant asserts defense counsel did not know whether Dr. Barnett would be

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needed to testify prior to filing the joint pretrial statement. (ECF 103 at 3.) Once Dr. Barnett’s

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report was obtained and defendants knew what his opinion would be, defendants immediately

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provided disclosure and a copy of the report. (Id.) Moreover, defendant argues, plaintiff will not

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be prejudiced because a copy of the report was served two months prior to trial and plaintiff has

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already taken Dr. Barnett’s deposition. (Id.)

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Plaintiff’s counsel at hearing stated he did not oppose the motion as long as Dr.

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Barnett would serve as a rebuttal witness only. Defendant agreed, and the court granted the

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motion as clarified.

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B.

Motion in Limine #2: Motion to Limit the Testimony of Dr. John Fullerton

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Defendant seeks to limit the testimony of plaintiff’s only expert witness, Dr.

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Fullerton, insofar as his testimony asserts that plaintiff: (1) had a proven ulcer; (2) suffered

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“nonsteroidal anti-inflammatory drug (‘NSAID’) gastrophy [sic]” and gastrointestinal (“GI”)

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upset as a result of taking the medicine defendant prescribed; and (3) had lost faith in the medical

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system as a result of being prescribed ibuprofen by defendant on July 14, 2009. (ECF 107 at 1.)

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Defendant argues these expert opinions should be limited because they are speculative and are not

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based upon sufficient facts or data. (Id. at 2.) Citing Richter v. Hickman, 578 F.3d 944, 987 (9th

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Cir. 2009), defendant contends that “[a]n expert’s opinion may not be based on assumptions of

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fact without evidentiary support, or on speculative or conjectural factors.” (Id. at 3.)

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Defendant argues Dr. Fullerton’s conclusion in his report, that plaintiff has “a

Proven Ulcer

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history of long-standing upper gastrointestinal (“UGI”) endoscopy-proven peptic ulcer disease

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(“PUD”)” is based on insufficient facts. (Id. at 4.) Dr. Fullerton does not cite to any record that

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supports this position, defendant maintains; Fullerton simply notes that plaintiff twice underwent

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UGI endoscopies and UGI series to examine the upper and middle sections of his GI tract. (Id.)

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Yet defendant argues none of the records show plaintiff ever had an ulcer; Fullerton simply relies

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upon plaintiff’s statements that plaintiff was diagnosed with an ulcer in 1989. (Id.) In fact, the

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GI studies performed in 1991 and 1993, and the only endoscopic study reported in the medical

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records, dated 2003, show that plaintiff did not have PUD. (Id.) Furthermore, Fullerton stated in

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his deposition that plaintiff “may or may not have had PUD in 2009” when defendant examined

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him. Finally, defendant argues Fullerton should be prevented from using the phrase

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“symptomatic PUD” because, under Rule 403, it would confuse and mislead the jury. (Id. at 5.)

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“‘An expert's opinions that are without factual basis and are based on speculation

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or conjecture’” are inadmissible at trial . . . .” Cal. ex rel. Harris v. Safeway, Inc., 651 F.3d 1118,

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1149 n.4 (9th Cir. 2011) (“Harris”) (quoting Major League Baseball Props., Inc. v. Salvino, Inc.,

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542 F.3d 290, 311 (2d Cir. 2008)). However, “[w]here the foundation is sufficient, the litigant is

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‘entitled to have the jury decide upon [the experts’] credibility, rather than the judge.’” Primiano

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v. Cook, 598 F.3d 558, 566 (9th Cir. 2010) (quoting United States v. Sandoval-Mendoza, 472

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F.3d 645, 656 (9th Cir. 2006)) (original alteration). If there are “gaps or inconsistencies in the

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reasoning leading to [the expert] opinion . . . such arguments go to the weight of the evidence, not

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to its admissibility.” Campbell ex rel. Campbell v. Metro. Prop. & Cas. Ins. Co., 239 F.3d 179,

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186 (2d Cir. 2001) (original alteration).

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Defendant Fullerton may offer his opinion about whether plaintiff has ever

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suffered from PUD or PUD-like symptoms. Defendant does not argue that Dr. Fullerton is not

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qualified to state an opinion on this matter, that his methodology is unreliable, or that his opinion

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is not relevant. Instead, defendant contends there are insufficient facts from which Fullerton can

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draw his conclusion. After reviewing his expert report, the court is satisfied Fullerton’s opinion is
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more than mere speculation or conjecture. See Harris, 651 F.3d at 1149 n.4. Fullerton bases his

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opinion on the entirety of plaintiff’s medical record, which reveals among other things over a

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dozen gastro-intestinal related clinic visits prior to 2009 and complaints and symptoms

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compatible with PUD or H. pylori disease. (Decl. of Lakeysia Beene, Ex. B, Expert Report of

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John H. Fullerton at 3–4, ECF 107-2.) The fact that Fullerton, when pressed in his deposition,

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could “only opine that [plaintiff] may or may not have had PUD in 2009” when defendant

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examined him goes to the weight, not the admissibility, of his expert opinion on whether plaintiff

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has ever suffered from PUD or PUD-like symptoms. See Campbell ex rel. Campbell, 239 F.3d at

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186.

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Furthermore, as plaintiff’s counsel clarified at hearing, plaintiff will testify that he

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had an endoscopy, the results of which are not in the record, that resulted in a diagnosis of PUD.

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2.

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Defendant next contends that Fullerton should be precluded from testifying that

Causation

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plaintiff suffered nonsteroidal anti-inflammatory drug (“NSAID”) gastropathy and

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gastrointestinal (“GI”) upset as a result of taking the medicine defendant prescribed. (ECF 107 at

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1, 5.) Defendant argues Fullerton’s opinion that plaintiff may have suffered GI upset if plaintiff

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took the prescribed ibuprofen for 25 days is not admissible for at least two reasons. (Id. at 6.)

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First, Ninth Circuit precedent forecloses expert testimony on causation when that testimony

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merely asserts that something is “capable of causing” or “possibly caused” the plaintiff’s injury;

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instead, the expert must be able to testify that the defendant’s conduct more likely than not caused

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the injury. (Id. at 5 (citing Daubert II, 43 F.3d at 1321–22 and In re Hanford Nuclear Reserv.

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Lit., 292 F.3d 1124 (9th Cir. 2002)).) Second, plaintiff admitted in his deposition that he did not

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even take the ibuprofen defendant prescribed him. (Id. at 6.)1

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Defendant did not rely on plaintiff’s admission at deposition in his motion for summary
judgment. (ECF 54.)
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Defendant further argues that Fullerton’s opinion, that plaintiff “probably”

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developed NSAID gastropathy because plaintiff may have taken the ibuprofen over a 25 day

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period, is also inadmissible. (Id.) Defendant asserts this opinion is pure speculation, because it is

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not based on any facts or data in the record. (Id.)

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At hearing, plaintiff’s counsel clarified that Dr. Fullerton will speak only to

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whether someone with plaintiff’s medical characteristics could be injured by taking the prescribed

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ibuprofen, not whether plaintiff “probably” developed NSAID gastropathy after taking ibuprofen.

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He also clarified that plaintiff did not in fact take the prescribed ibuprofen. With this

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clarification, the court will permit Dr. Fullerton’s testimony on causation.

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3.

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Defendant finally contends Fullerton’s opinion that plaintiff suffered a loss of faith

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in the medical system as a result of defendant’s prescription is also inadmissible. (ECF 107 at 7.)

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It is inadmissible because it is too speculative; Dr. Fullerton points to no evidence that plaintiff

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ever expressed this belief. (Id.) At hearing, plaintiff’s attorneys signaled they do not plan to

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elicit this opinion from Fullerton, although they expect plaintiff to testify on this point.

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Lost Faith in the Medical System

The court finds Fullerton’s opinion that defendant’s conduct caused plaintiff to

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lose faith in the medical system is too speculative to be admissible. Fullerton does not base his

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opinion upon any statement made by plaintiff or upon any evidence in the record. Plaintiff,

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however, will not be precluded from testifying on this issue if he so chooses.

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IV.

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CONCLUSION
For the foregoing reasons the court GRANTS defendant’s first motion in limine

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(ECF 103), GRANTS in part and DENIES in part defendant’s second motion in limine (ECF

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107), and GRANTS defendant’s fourth motion in limine (ECF 109).

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The above motions have been decided based upon the record presently before the

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court. Each ruling is made without prejudice and is subject to proper renewal, in whole or in part,

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during trial. If a party wishes to contest a pretrial ruling, it must do so through a proper motion or

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objection, or otherwise forfeit appeal on such grounds. See FED. R. EVID. 103(a); Tennison v.

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Circus Circus Enters., Inc., 244 F.3d 684, 689 (9th Cir. 2001) (“Where a district court makes a
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tentative in limine ruling excluding evidence, the exclusion of that evidence may only be

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challenged on appeal if the aggrieved party attempts to offer such evidence at trial.”) (alteration,

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citation and quotation omitted). In addition, challenges to expert testimony under Daubert are

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denied without prejudice. Should a party wish to renew a Daubert challenge at trial, it should

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alert the court, at which point the court may grant limited voir dire before such expert may be

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called to testify.

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IT IS SO ORDERED.
Dated: November 26, 2013.

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UNITED STATES DISTRICT JUDGE

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