Robinson v. HD Supply, Inc.

Filing 92

ORDER signed by Judge Garland E. Burrell, Jr. on 10/28/2013 ORDERING 74 that Defendant's motions in limine are GRANTED in PART and DENIED in PART. Dr. Wood, Mr. Carr, Ms. Willerup, Ms. Coddington, and Dr. Dahmen are excluded as expert witnesses. 77 (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KRIS ROBINSON, an individual,

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No. 2:12-cv-00604-GEB-AC

Plaintiff,
v.

ORDER ON MOTIONS IN LIMINE

HD SUPPLY, INC., a
corporation; and DOES 1
through 50, inclusive,
Defendants.

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Defendant, in two motions in limine, seeks to exclude

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expert witness testimony of healthcare practitioners Douglas R.

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Wood, Ph.D., Robert Carr, R.N., Elizabeth Willerup, N.P., Cherie

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Coddington, C.S.W., and Brian Dahmen, Ph.D. under Federal Rules

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of Civil Procedure (“Rules”) 26 and 37, arguing, inter alia, that

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Plaintiff’s disclosure of these expert witnesses was deficient.

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(Def.’s Mot. in Limine (“MIL”) No. 2 2:17-21, ECF No. 74; MIL No.

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3 2:14-24, ECF No. 77.)

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I.

BACKGROUND

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The status order in this case prescribes the following

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expert disclosure deadline: initial expert witnesses were to have

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been disclosed on or before February 15, 2013, and “contradictory

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and/or rebuttal expert disclosure” on or before March 15, 2013.

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(Status (Pretrial Scheduling) Order 2:14-18, ECF No. 17.)
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On February 15, 2013, Plaintiff disclosed

four non-

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retained expert witnesses: Ms. Willerup, Ms. Coddington, and Dr.

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Dahmen, and one additional expert since withdrawn. Plaintiff’s

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disclosure provided the names, addresses, and phone numbers of

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each disclosed witness but did not provide further information.

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(See Decl. Brian S. Inamine Supp. MIL No. 2 (“Inamine Decl.”),

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Ex. A 2:1-25, ECF No. 75.)

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On May 10, 2013, in a supplemental disclosure of expert

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witnesses, Plaintiff disclosed two additional non-retained expert

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witnesses: Dr. Wood and Mr. Carr. At that time, Plaintiff also

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provided the following description of each of the five expert’s

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anticipated

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provider and has knowledge as to Plaintiff’s medical diagnosis

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and/or treatment.” (Id., Ex. B 2:1-13.)

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testimony:

“This

witness

is

Plaintiff’s

medical

Defendant’s counsel avers that his “office repeatedly

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advised

[Plaintiff’s

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designations did not include the subject matter and summary of

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facts and opinions of the designated experts,” but Plaintiff’s

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counsel “never amended the designations to remedy these defects.”

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(Inamine Decl. ¶ 6.) The prescribed deadline for completion of

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discovery was July 23, 2013. (Status (Pretrial Scheduling) Order

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2:7.)

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counsel]

II.

that

[Plaintiff’s]

expert

DISCUSSION

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A. Exclusion of Expert Testimony Under Rule 37(c)(1)

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In Motions in Limine 2 and 3, Defendant seeks orders

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“[p]recluding Plaintiff and his attorneys from introducing any

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written or oral testimony or opinions from the following” five

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non-retained

experts:

Dr.

Wood,
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Mr.

Carr,

Ms.

Willerup,

Ms.

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Coddington, and Dr. Dahmen. (MIL No. 2 2:17-21; MIL No. 3 2:20-

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24.)

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should be excluded because Plaintiff’s expert witness disclosures

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“failed [to] state the ‘subject matter’ and ‘a summary of facts

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and opinions’ on which the witnesses are expected to testify, as

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required under Rule 26(a)(2)(C).” (MIL No. 2 8:19-22; see MIL No.

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3 5:13-14.)

Defendant

argues,

inter

alia,

that

Plaintiff’s

experts

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Plaintiff rejoins that the aforementioned statement,1

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included next to each expert’s name on Plaintiff’s Supplemental

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Disclosure of Expert Witnesses, “[s]urely . . . put Defendant on

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reasonable

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testimony.” (Pl.’s Opp’n to Def.’s MIL #2 (“Pl.’s Opp’n #2”) 6:9-

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10, ECF No. 83.; Pl.’s Opp’n to Def.’s MIL #3 (“Pl.’s Opp’n #3”)

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3:18-19, ECF No. 86.)

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notice

Rule

of

the

subject

26(a)(2)

“requires

matter

of

parties

their

to

anticipated

disclose

the

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identity of any expert witness.” Goodman v. Staples The Office

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Superstore,

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26(a)(2)(B) requires disclosure of a detailed, written expert

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report “if the witness is one retained or specially employed to

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provide

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26(a)(2)(B). “[A] treating physician is only exempt from Rule

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26(a)(2)(B)’s written report requirement to the extent that his

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opinions were formed during the course of treatment.” Goodman,

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644 F.3d at 826. Under Rule 26(a)(2)(C), even when a detailed,

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written

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expert’s

LLC,

expert

expert

644

F.3d

testimony

report

testimony

is

must

817,

in

not

the

824

(9th

case.”

required,

disclose:

“(i)

a
the

Cir.

Fed.

party

2011).

R.

Rule

Civ.

offering

subject

matter

P.

the
on

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1

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See supra 2 (“This witness is Plaintiff’s medical provider and has knowledge
as to Plaintiff’s medical diagnosis and/or treatment.”).

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which the witness is expected to present evidence under Federal

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Rule of Evidence 702, 703, or 705; and (ii) a summary of the

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facts and opinions to which the witness is expected to testify.”

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Fed. R. Civ. P. 26(a)(2)(C). The drafters of Rule 26(a)(2)(C)

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contemplated that that this more limited disclosure requirement

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would apply to “physicians or other health care professionals.”

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Fed. R. Civ. P. 26(a)(2)(C) advisory committee’s note (2010).

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“Rule 37(c)(1) gives teeth to these requirements by

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forbidding the use at trial of any information required to be

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disclosed by Rule 26(a) that is not properly disclosed.” Yeti by

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Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th

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Cir.

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37(c)(1)]

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“provide[] a strong inducement for disclosure of material.” Id.

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(quoting

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(1993)).

2001).

“The

as

Fed.

a

Advisory

Committee

“self-executing,”

R.

Civ.

P.

37(c)

Notes

describe

“automatic”

advisory

[Rule

sanction

committee’s

to

notes

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Failure to provide an expert report under Rule 26(a)(2)

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is only excused if “the failure was substantially justified or is

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harmless.” Fed. R. Civ. P. 37(c)(1). “Among the factors that may

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properly

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violation of a discovery deadline is justified or harmless are:

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(1) prejudice or surprise to the party against whom the evidence

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is offered; (2) the ability of that party to cure the prejudice;

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(3) the likelihood of disruption of the trial; and (4) bad faith

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or willfulness involved in not timely disclosing the evidence.”

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Lanard Toys, Ltd. v. Novelty, Inc., 375 Fed. App’x 705, 713 (9th

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Cir. 2010) (citing David v. Caterpillar, Inc., 324 F.3d 851, 857

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(7th Cir. 2003). “In determining whether” expert testimony should

guide

a

district

court

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in

determining

whether

a

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be excluded, “the burden is on the party facing the sanction,” in

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this case, Plaintiff, “to demonstrate that the failure to comply

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with Rule 26(a) is substantially justified or harmless.” Torres

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v. City of L.A., 548 F.3d 1197, 1213 (9th Cir. 2008) (citing

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Yeti, 259 F.3d at 1107).

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While Plaintiff was not required to file a detailed,

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written report under Rule 26(a)(2)(B) for his treating healthcare

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providers,

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testimony from these individuals, he was required to disclose the

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expected “subject matter” of that testimony and “a summary of the

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facts and opinions to which the witness[es] [are] expected to

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testify.” Fed. R. Civ. P. 26(a)(2)(C). “Courts must take care

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against requiring undue detail” in such disclosures, keeping in

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mind that these witnesses have not been specially retained and

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may not be as responsive to counsel as those who have.” Id.

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advisory

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disclosures

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disclosure that these witnesses are “medical provider[s] and have

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knowledge as to Plaintiff’s medical diagnosis and/or treatment,”

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(Inamine Decl.”), Ex. A 2:1-25), suggests the subject matter of

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these witnesses’ testimony but fails to provide a “summary of the

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facts

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testify.” Fed. R. Civ. P. 26(a)(2)(C). See Pineda v. Cnty. of

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S.F.,

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disclosure stating that non-retained treating physicians “will

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present factual and opininon testimony on causation, diagnosis,

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prognosis, [and] extent of [plaintiff’s] disability” based on a

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review of plaintiff’s medical records insufficient under Rule

and

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to

the

extent

committee’s
are

note

seeks

(2010).

insufficient

opinions

F.R.D.

he

to

517,

which

523

to

(N.D.

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expert

Nevertheless,

under

the

elicit

the

rule.

witness[es]

Cal.

2012)

are

opinion

Plaintiff’s
Plaintiff’s

expected

(holding

that

to

a

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26(a)(2)(C)); see also Gorrell v. Sneath, No. 1:12-cv-0554-JLT,

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2013 WL 4517902, at *3 (E.D. Cal. Aug. 26, 2013) (holding that

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identifying “the general topics to which [non-retained experts]

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would testify” does not satisfy Rule 26(a)(2)(C)).

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Plaintiff
was

suggests

any

his

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opportunity to consult with these non-retained experts to gauge

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their

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treatment” and thus “it was largely impossible to offer a more

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specific summary of facts or opinions.” (Pl.’s Opp’n #2 6:11-14;

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Pl.’s

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satisfy

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substantially justified in failing to disclose a “summary of the

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facts and opinions” concerning the expected trial testimony of

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each of these witnesses. Fed. R. Civ. P. 26(a)(2)(C)(ii).

Opp’n

#3

recall

3:20-23.)

Plaintiff’s

Plaintiff’s

This

burden

of

because

specific

conclusory

he

expert

disclosures

to

justified”

in

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capacity

“substantially

deficiency

diagnosis

assertion

demonstrating

“had

no

or

does

not

he

was

that

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Plaintiff also contends the disclosures were harmless

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since “Defendant previously admitted to this Court that it was

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aware of the subject matter and summary of facts and opinions of

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Plaintiff’s

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Opposition to Plaintiff’s Motion to Exclude Defendant’s Rebuttal

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Expert, (ECF No. 57), Defendant argued that its rebuttal “expert

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report

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addressed by Plaintiff’s experts.” (Pl.’s Opp’n #2 6:15-16, 6:19-

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20; Pl.’s Opp’n #3 4:10-11, 4:14-15.) Defendant also stated in

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that filing:

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expert

directly

witness

contradicts

testimony”

the

same

because

subject

in

Defendant’s

matter

Plaintiff’s
initial
expert
designation
confirmed that Plaintiff would be relying
upon his health care providers, but because
the initial designation was silent as to the
scope of the experts’ opinions [Defendant]
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as

that

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and [the rebuttal expert] had to rely upon
Plaintiff’s medical records. These records
showed that Plaintiff’s experts treated him
for [post-traumatic stress disorder (“PTSD”)]
and broadly detailed the experts’ analysis of
symptoms and the cause, origin and diagnosis
of the PTSD. Plaintiff and his experts are
attempting to attribute the PTSD, Plaintiff’s
mental and emotional problems and everything
relating
to
PTSD
to
[Defendant]
and
Plaintiff’s employment with [Defendant].

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(Def.’s Opp’n Pl.’s Mot. to Exclude Def.’s Expert 9:26-10:5, ECF
No.

57.)

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Defendant

has

indicated

that

it

has

reviewed

Plaintiff’s medical records, Defendant has not admitted that it
understands the “facts and opinions” concerning which Plaintiff’s
expert

witnesses

26(a)(2)(C)(ii).

are

expected

Failure

to

to

testify.

disclosure

the

Fed.

R.

Civ.

P.

scope

of

expected

expert testimony may prejudice an opposing party in its ability
to

properly

witness,

and

depose
prepare

that
for

witness,
trial.

select

a

Therefore,

rebuttal

Plaintiff

expert
has

not

sustained his burden of demonstrating harmlessness, and Dr. Wood,
Mr.

Carr,

Ms.

Willerup,

Ms.

Coddington,

and

Dr.

Dahmen

are

excluded as experts. See BP W. Coast Prods, LLC v. Shalabi, No.
11-cv-1341 MJP, 2013 WL 1694660, at *2 (W.D. Wash. Apr. 18, 2013)
(excluding witness as experts where the non-moving party failed
“to provide more than a one sentence description” of expected
expert testimony, leaving the moving party “no way of preparing
to oppose the witnesses”).

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While

Defendant also seeks an order “[p]rohibiting Plaintiff,
and

his

attorneys

and

witnesses[]

from

referring

to

[]

Plaintiff’s non-retained experts in the presence of jurors or
prospective

jurors;

and

[d]irecting

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Plaintiff’s

attorneys

to

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immediately inform Plaintiff and Plaintiff’s other witnesses of

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the terms of this Order in limine.” (MIL No. 2 2:22-26; MIL No. 3

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2:25-3:3.) Plaintiff has not shown that the requested order is

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necessary in light of the above ruling. Therefore, it is denied.

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B. Exclusion of Witnesses Under Rule 26(b)(2)(C)(i)

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In

Motion

in

Limine

2,

Defendant

moves

under

Rule

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26(b)(2)(C)(i) to exclude testimony it anticipates Dr. Wood and

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Mr. Carr will give, arguing it would be “unreasonably cumulative

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or duplicative.” (Pl.’s MIL #2 10:27-11:8.) However, the cited

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rule governs limitations on discovery and is not a basis for

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exclusion of the referenced testimony.

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is denied.

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Therefore, this

request

III. CONCLUSION

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For the stated reasons, Defendant’s motions in limine

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are granted in part and denied in part. Dr. Wood, Mr. Carr, Ms.

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Willerup, Ms. Coddington, and Dr. Dahmen are excluded as expert

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witnesses.

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Dated:

October 28, 2013

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