Wilson v. Compass Vision, Inc. et al

Filing 198

ORDER by Magistrate Judge Bernard Zimmerman in case 3:07-cv-03431-BZ; denying (343) Motion in Limine in case 3:07-cv-05642-BZ (bzsec, COURT STAFF) (Filed on 11/16/2010)

Wilson v. Compass Vision, Inc. et al

Doc. 198

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. COMPASS VISION, INC., et al., Defendant(s). LAURA FUJISAWA, et al. Plaintiff(s), ) ) ) ) ) ) ) ) ) ) ) ) ) No. C07-5642 BZ Related Cases: C07-3431 BZ C08-4118 BZ C09-2016 BZ ORDER ON PLAINTIFFS' MOTION IN LIMINE TO PRECLUDE CERTAIN EXPERT TESTIMONY UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

This Order addresses plaintiffs' corrected motion in limine to preclude cumulative and/or incompetent expert testimony (Docket No. 343). To the extent this motion objects to the competency and qualifications of any of defendants' proffered experts, I am unable to rule on them in as much as I do not have their CV's or any other information about their background. These

issues will either be resolved at a hearing on the first day of trial or at a Daubert hearing. Plaintiffs' motion to preclude Dr. Wu from presenting additional opinions no. 1 and no.6 is DENIED. 1
Dockets.Justia.com

From the

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information I do have about his background, and especially his roles as former inspector for the College of American Pathologists and Toxicology Programs and a current member of Toxicology Resource Committee, Dr. Wu appears to be qualified to render these opinions. If plaintiff has any doubts about

the breath of his experience, she can explore that in crossexamination. I do not understand the dispute over Dr. Wu's opinion no. 3. It appears to be a mere recitation of testimony give If as cited in his report, it is

by Sodergren and Stafford.

information on which he based his opinion, unless there is a dispute as to what Sodergren and Stafford testified, ordinarily Dr. Wu would be entitled to base his opinion on their testimony. Dr. Wu will not be permitted to render opinion no. 4, at least as it is stated. He will not be permitted to testify

to his opinion of the extent of a testing laboratory's legal liability or who is legally obligated to make licensing decisions. processes Nor will he be permitted to testify to the followed in Connecticut, Massachuttes and New York That does

for declaring a positive urine drug test result.

not appear to be an issue in this case, and it is not clear how the procedures followed in those states relate to the procedures followed in California. Absent further

foundational testimony, he will not be permitted to render this opinion. As to opinion no. 5, absent further explanation for why he thinks that the SAMHSA "opinion is somewhat taken out of 2

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context for this case" he will not be permitted to render that opinion. If he has knowledge that SAMHSA regulates

mandatory work place drug testing and not voluntary compliance programs, and his understanding is not disputed, and this statement supports one of his opinions, he will be permitted to so testify. He will be permitted to testify to

the last sentence of opinion no. 5. Dr. Flanagan's testimony, to the extent that it is consistent with his report, will not be allowed under Rule 702 and 403. Having read the report, I conclude that as

presently constituted it will not assist the jury in understanding the evidence or determining a fact at issue for numerous reasons. It is not clear as to what disputed issue Nothing in

in the case Dr. Flanagan's opinion is relevant. his report appears to relate to Dr. Fujisawa.

Indeed, it

does not even appear that he has reviewed her records, as opposed to the records of a number of other individuals, who are not part of this case. To allow him to render an opinion

as to Dr. Fujisawa by generalizing from his review of records of other individuals, would only not be helpful to the jury but would be prejudicial to plaintiff. To the extent that he

opines as t the reasons for having diversion and recovery programs or monitoring the conduct of pharmacists, it is not clear that he is qualified to render such an opinion; that testimony should properly come from the Board. Nor is there

anything in his report that suggests that he is qualified to render such opinions as the ETG test "is the best test for monitoring a participant's compliance" or a number of the 3

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other sweeping opinions in his report. The Court will make a final decision on Mr. Schults on the first day of trial. However, Mr. Schults will not be

permitted to opine as to legal conclusions such as "the essential contractual obligation of a private toxicology laboratory." The overriding concern I have with Mr.

Schults's report is that it is not clear to me under Rule 702, how his testimony would help the jury or what disputed issues he is addressing. address what did not do. Much of his report would seem to

Dr. Brown, the medical review officer did or To the extent that it addresses the contractual

claims that Compass may have against Maximus, they are not part of this trial. If it is established that he has a technical or scientific background to opine that the SAMHSA statement is scientifically unsupportable, he will be permitted to render that opinion. However, I do not have his CV.

Dr. Brown can testify as a factual witness to what she did as a medical review officer and her interactions with the plaintiff. However, I am unable to see the relevance of some

of the opinions she expresses in her report or how they will assist the jury in resolving disputed issues of fact. For

example, she opines that all diversion programs should have either a medical director or medical consultant. aware that this is an issue in this lawsuit. I am not

Once again,

without having the benefit of Dr. Brown's CV, I am unable to determine whether she is qualified to render some of opinions she renders with respect to participants in recovery 4

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programs. I believe the rest of the disputed experts have been withdrawn. Dated: November 16, 2010 Bernard Zimmerman United States Magistrate Judge

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