Brown v. Clayton et al

Filing 162

ORDER granting 85 Motion in Limine; denying 132 Motion for Extension of Time. Signed by Judge Holly B. Fitzsimmons on 8/20/13. (Esposito, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
GEORGE BROWN

:
:
:
v.
:
:
OFFICER IVAN J. CLAYTON, ET AL:

CIV. NO. 3:11CV714 (JCH)

RULING ON MOTION IN LIMINE [DOC. #85] AND MOTION TO EXTEND
SCHEDULING ORDER [DOC. #132]
Plaintiff brings this civil rights action pursuant to 42
U.S.C. §1983, alleging excessive force and unreasonable search
and seizure in violation of the United States Constitution.
[Compl. Doc. #1]. Defendants are police officers for the City of
Bridgeport.

Pending is defendants’ Motion in Limine to preclude

plaintiff from offering medical evidence or testimony at trial
[doc. #85], and plaintiff’s Motion for Scheduling Order [doc.
#132] to extend the schedule to permit plaintiff to serve expert
reports and defendant to take expert depositions of those
experts. For the reasons that follow, defendants’ Motion in
Limine [Doc. #85] is GRANTED and plaintiff’s Motion to Extend
Scheduling Order [Doc. #132] is DENIED.
On July 31, 2012, this Court granted defendants’ Motion to
Compel and/or Preclude plaintiff’s expert disclosures pursuant
to Fed. R. Civ. P. 26(a)(2)(B) and Judge Hall’s case management
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order. [Doc. #55].

As set forth in the ruling, Judge Hall’s

scheduling order required that plaintiff disclose his experts’
reports on or before April 15, 2012. On March 28, 2012, Judge
Hall extended the time for plaintiff to disclose his experts to
May 20, 2012. [Doc. #32]. Defendants were required to depose
plaintiff’s experts thirty days thereafter.

[Doc. #22].

On May 7, 2012, plaintiff disclosed Richard Siena, an
expert witness in police practices. [Doc. #48].

On May 14 and

17, 2012, respectively, plaintiff disclosed treating physicians
Dr. Katz and Dr. Gladstein.

[Doc. #48].

provided with these disclosures.

No expert reports were

Defense counsel notified

plaintiff on May 8 and May 16 that defense counsel believed
plaintiff’s expert disclosures to be inadequate under Fed. R.
Civ. P. 26(a) and Judge Hall’s Scheduling Order Regarding Case
Management Plan [Doc. #22 at 1].
Federal Rule of Civil Procedure Rule 26(a)(2)(B) provides,
in pertinent part,
Unless otherwise stipulated or ordered by the
court, this disclosure must be accompanied by a
written report--prepared and signed by the
witness--if the witness is one retained or
specially employed to provide expert testimony
in the case or one whose duties as the party's
employee regularly involve giving expert
testimony. The report must contain:

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(i) a complete statement of all opinions the
witness will express and the basis and
reasons for them;
(ii) the facts or data considered by the
witness in forming them;
(iii) any exhibits that will be used to
summarize or support them;
Fed. R. Civ. P. 26(a)(2)(B)(i-iii)
Judge Hall’s Scheduling Order [Doc. #22] mandates that,
[a]n expert witness is anyone, including a
treating physician, who may be used at trial to
present evidence under Rules 702, 703, or 705 of
the Federal Rules of Evidence. Unless otherwise
ordered, a party intending to call such a
witness must disclose a report signed by the
witness containing the information required to
be disclosed by Fed. R. Civ. P. 26(a)(2)(B).
[Doc. #22 at 1].
On July 31, 2012, plaintiff was ordered to provide the
required expert reports within fourteen days or these witnesses
would be precluded from offering expert testimony at trial.
[Doc. #55 at 6]. No expert report was provided by plaintiff for
Drs. Katz or Gladstein, or any other treating physician.
Plaintiff did not seek an extension of time to comply with the
Court’s order, did not file a motion for reconsideration or
clarification, and did not file an objection to the ruling
pursuant to 28 U.S.C. §636 (b)(1)(A); Fed. R. Civ. P. 6(a), 6(e)
and 72(a); and Rule 2 of the Local Rules for United States
Magistrate Judges. Accordingly, plaintiff is precluded from

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offering expert testimony at trial pursuant to the July 31, 2012
ruling.
On June 26, 2013, in the pending Motion to Extend
Scheduling Order [Doc. #137], plaintiff sought leave to disclose
a new medical expert, Dr. Stewart Gross, and provide the
required expert reports of the already precluded experts, Drs.
Katz and Gladstein. [Doc. #132]. Plaintiff’s proposed schedule
provided deadlines for service of the expert reports, expert
depositions and an opportunity for defendants to disclose their
own experts.

Plaintiff concedes that the physicians’ testimony,

treatment records and expert reports will be used to prove
causation and damages.1

On June 30, 2013, revised expert witness

disclosures for both Drs. Katz and Gross2 were filed as part of
plaintiff’s trial memorandum. [Doc. #137 Ex. 1, 2].
Defendants had already filed a Motion in Limine, dated
February 14, 2013, seeking an order precluding plaintiff from
offering any reports, testimony or other evidence of his alleged
physical injuries at trial pursuant to the Court’s July 31, 2012
ruling. [Doc. #85].3 Defendants contend that plaintiff should not
be permitted to escape the Court’s preclusion ruling “simply by

Plaintiff’s counsel made this representation during a telephone
status conference held on August 14, 2013.
2
Plaintiff filed a proposed trial exhibit-supplemental expert
report for Dr. Katz-on July 25, 2013. [Doc. 154].
3
Judge Hall referred the Motion in Limine and Motion for
Extension of Time to the undersigned on July 3, 2013. [Doc.
##138, 139]. Plaintiff filed an opposition brief on July 4,
2013. [Doc. #140]. A reply brief was filed on July 15, 2013.
[Doc. #143]. Status conferences were held on July 18 and August
14, 2013. [Doc. #147, 160].
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calling [his] treating physicians ‘fact witnesses,’”

as their

testimony is neither fact nor lay witness testimony.

[Doc. #85

at 4-5]. Rather, “[a]ll of it, including diagnosis, care,
treatment, causation, permanency, etc., implicates their
specialized knowledge and is opinion testimony under Fed. R.
Evid. 702.” Id. at 5.
In opposition, plaintiff argues that he and his pro bono
counsel “lacked sufficient funds to obtain such reports at that
time.” [Doc. 140 at 1].

The Court cannot credit this argument,

as the record establishes that plaintiff’s counsel had made
several requests for financial reimbursement from the Court
prior to the Court’s July 31, 2012, ruling and plaintiff failed
to file a timely application for funds to cover the cost of the
expert reports. See Pl. Motion for Costs and Fees dated May 29,
2012 [doc. #45]; Motion to Incur CJA Expenses [doc. #46];
Interim Motion for Disbursement of Funds [doc. #62]. Nor did
plaintiff’s pro bono counsel raise this as an issue in response
to the ruling. Indeed, no application for report costs has been
filed to date, despite the inclusion of the doctors’ expert
reports in plaintiff’s trial memorandum.
Plaintiff argues that “it would be unduly harsh and an
abuse of discretion to preclude the plaintiff from presenting
this important evidence.” [Doc. #140 at 3]. Plaintiff cites two
cases in which “the defense were provided with the names and
identifying information and medical records of the expert
witnesses well in advance of trial; and in both cases, as in
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this case, the defense had the opportunity to depose the
witnesses.” [Doc. #140 at 2].

Both cases are distinguishable

from this case because the preclusion of experts was before this
Court before any reports were provided to defendants, and
plaintiff was given ample notice and an opportunity to serve
expert reports before an order of preclusion entered.
Moreover, on February 13, 2013, plaintiff filed a motion
for extension of time in which to comply with Judge Hall’s
pretrial order. [Doc. #80]. On February 14, 2012, defendants
filed their trial memorandum, stating that “plaintiff’s counsel
had not conferred with defense counsel to create a joint
memorandum as ordered by the Court.” [Doc. #83 at 1]. This
motion to preclude was filed on the same day. [Doc. ##83, 85].
On February 21, 2013, the Court denied plaintiff’s request for a
thirty day extension of time and ordered compliance with the
pretrial order by March 7, 2013. [Doc. #94]. Plaintiff’s trial
memorandum, dated March 6, does not list Drs. Gross, Katz or
Gladstein as witnesses but does include as exhibits medical
records and billing statements. [Ex. 95, Pl. Ex. 12-14].
On May 26, 2013, Attorney John Williams filed an appearance
on behalf of plaintiff. [Doc. #124].

On June 30, 2013,

plaintiff filed a Revised Trial Memorandum, amending the witness
list to include Drs. Katz, Gross and Gladstein, amending the
exhibit list to include the doctors’ expert disclosures and
appending the expert reports, CVs, fee schedules, medical
records and billing statements. [Doc. #137].
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Plaintiff has made

no showing of good cause why he was unable to provide this
information in a timely manner. Nor has plaintiff provided any
explanation (except lack of funds) why the Court should
reconsider its July 31, 2012, ruling and vacate the order of
preclusion.
Defendants argue vigorously that they would be severely
prejudiced if the Court reversed itself and allowed medical
testimony at this date so close to trial. Defendants’ counsel
prepared their case, including the trial memorandum, in reliance
on the lack of medical testimony as to the plaintiff’s injuries,
particularly an opinion tying the alleged acts of the defendant
officer to the claimed injuries.

Aside from the dispute over

liability, causation is a significant issue, particularly with
respect to the plaintiff’s wrist condition, which has been
treated with surgery and assigned a permanency rating but is, at
least to some extent, degenerative rather than traumatic.
Reopening discovery at this late date to permit testimony by the
treating doctors would likely require defendants to retain and
disclose their own medical expert(s), and might well require a
change in the theory of the defense, as well as a delay in the
scheduled trial.
Defendants also seek an order precluding plaintiff from
offering any medical treatment records as exhibits at trial.
See, Charlotte Walters Waterbury Hospital v. Howmedica Osteonics
Corp., Civ. No. 07CV1124 (JCH), 2009 WL 1929077, *1 (D. Conn.
July 2, 2009) (precluding expert opinions contained in medical
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reports and narrative letters of treating physicians where
plaintiff failed to comply with expert disclosure requirements
set forth in Judge Hall’s scheduling order and Fed. R. Civ. P.
26(a)(2)(B)). Medical reports and treatment records may not be
used to circumvent the necessity for opinion testimony as to
diagnosis, causation, and prognosis. Medical bills may be
offered in the absence of a medical witness to prove damages,
but only where a party has laid a proper foundation to link the
services rendered to the allegedly improper acts of a defendant.
For example, if handcuffing a plaintiff were lawful but the
plaintiff contends that injury resulted, not from the
handcuffing itself, but from some excessive force applied to the
handcuffs, a qualified witness would have to be able to
distinguish between the two, or opine regarding the extent of
exacerbation, before a plaintiff could recover for the injury.
In the absence of such a foundation, bills for treatment would
not be admissible.
Finally, defendants seek an order that “plaintiff,
plaintiff’s counsel and all witnesses be precluded from
referencing, arguing, or mentioning in any way the treatment Mr.
Brown allegedly received as a result of his injuries.” [Doc. 85
at 8].

Plaintiff may testify as a fact witness to the events at

issue and any related subsequent medical treatment. He is
cautioned, however, that he cannot offer a medical opinion or
offer hearsay testimony regarding his treatment; and the jury
will be instructed on the requirements of proximate causation
for any damages they award.
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For the reasons and to the extent stated, defendants’
Motion in Limine [Doc. #85] is GRANTED and plaintiff’s Motion to
Extend Scheduling Order [Doc. #132] is DENIED.
This is not a recommended ruling.

This is a discovery

ruling and order which is reviewable pursuant to the "clearly
erroneous" statutory standard of review.

28 U.S.C. ' 636

(b)(1)(A); Fed. R. Civ. P. 6(a), 6(e) and 72(a); and Rule 2 of
the Local Rules for United States Magistrate Judges.

As such,

it is an order of the Court unless reversed or modified by the
district judge upon motion timely made.
SO ORDERED at Bridgeport this 20th day of August 2013.
_______/s/__________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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