Durham v. County of Maui et al

Filing 1172

ORDER DENYING PLAINTIFFS' MOTION IN LIMINE NO. 2 TO EXCLUDE ANY TOXICOLOGY EXPERT REPORT OFFERED BY THE REMAINING DEFENDANTS AND ANY EVIDENCE OF, REFERENCE TO, OR QUESTIONING REGARDING TESTS PERFORMED ON MARK DURHAM'S BLOOD SAMPLES, DOC. NO . 1100 - Signed by JUDGE J. MICHAEL SEABRIGHT on 6/23/11. (Follows oral order of 6/3/11, 1161 . ) (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications rece ived this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications shall be served by first class mail at the addresses of record on June 24, 2011. entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SHERI GAIL DURHAM, Individually )
and as Next Friend of MARISA UMA )
LAMA DURHAM, Minor, ET AL.,
)
)
Plaintiffs,
)
)
vs.
)
)
COUNTY OF MAUI, ET AL.,
)
)
Defendants.
)
)
)
)
)
)
_______________________________ )

CIV. NO. 08-00342 JMS/RLP
ORDER DENYING PLAINTIFFS’
MOTION IN LIMINE NO. 2 TO
EXCLUDE ANY TOXICOLOGY
EXPERT REPORT OFFERED BY
THE REMAINING DEFENDANTS
AND ANY EVIDENCE OF,
REFERENCE TO, OR
QUESTIONING REGARDING
TESTS PERFORMED ON MARK
DURHAM’S BLOOD SAMPLES,
DOC. NO. 1100

ORDER DENYING PLAINTIFFS’ MOTION IN LIMINE NO. 2 TO
EXCLUDE ANY TOXICOLOGY EXPERT REPORT OFFERED BY THE
REMAINING DEFENDANTS AND ANY EVIDENCE OF, REFERENCE
TO, OR QUESTIONING REGARDING TESTS PERFORMED ON MARK
DURHAM’S BLOOD SAMPLES, DOC. NO. 1100
I. INTRODUCTION
This action arises from a July 26, 2006 two-car accident in which
Mark Durham and his two daughters, Jessica and Marisa, were injured after Mark
Durham allegedly failed to heed a stop sign at the intersection of Pulehu Road and
Hansen Road in the County of Maui. Mark Durham passed away as a result of his
injuries, and a post-mortem blood test signed by Clifford Wong, Ph.D. (“Dr.

Wong”) from Clinical Laboratories of Hawaii (“CLH”) confirmed the presence of
2.1 ng/ml of delta-9-tetrahydrocannabinol (“THC”), which is the active ingredient
in marijuana (the “CLH Report”). The CLH report concluded that the amount of
THC detected indicates recent use of marijuana.
Plaintiffs1 have filed two separate motions seeking to exclude this
evidence, which both then-Magistrate Judge Kobayashi and the undersigned have
denied. In their latest attempt to have this evidence excluded, i.e., Plaintiff’s
Motion in Limine No. 2 to Exclude Any Toxicology Expert Offered by the
Medical Defendants2 and Any Evidence Of, Reference To, or Questioning
Regarding Tests Performed on Mark Durham’s Blood Samples (“Plaintiff’s MIL
2”), Doc. No. 1100, Plaintiffs argue that this evidence should be excluded because
the Defendants remaining in this action failed to name Dr. Wong as an expert and
given that there is no evidence of Mark Durham’s impairment, the CLH Report
fails the Federal Rule of Evidence 403 analysis. Based on the following, the court
DENIES Plaintiff’s MIL 2.
1

Plaintiffs include Sheri Gail Durham (“Sheri Durham”), individually and as next friend
of Marisa Durham, and Denise Ann Jenkins (“Jenkins”), as the Administrator of the Estates of
Mark Durham and Jessica Durham.
2

The Medical Defendants include Hawaii Pacific Health (“HPH”), Kapiolani Medical
Center for Women and Children (“KMCWC”), Kapiolani Medical Specialists (“KMS”), Shilpa
J. Patel, M.D. (“Dr. Patel”) (collectively, “Kapiolani Defendants”), James Y. Sim, M.D., and
James Y. Sim, M.D., LLC (collectively, “Dr. Sim”), and Byron H. Izuka, M.D. and Byron H.
Izuka, M.D. LLC (collectively, “Dr. Izuka”).
2

II. BACKGROUND
A.

Factual Background
As the court has previously recited, see Durham v. County of Maui,

742 F. Supp. 2d 1121, 1125 (D. Haw. 2010), on July 26, 2006, at approximately
11:52 a.m., Mark Durham was driving his two daughters Marisa and Jessica on
Pulehu Road when he allegedly failed to heed the stop sign at the intersection of
Hansen Road, resulting in the SUV driven by Patty Conte hitting Mark Durham’s
vehicle on its left side. Witnesses provided Maui police officers statements that
Mark Durham’s vehicle was “traveling fast” and “completely ‘blew’” the stop sign.
In comparison, Marisa testified that she remembered Mark Durham coming to a
stop. Mark Durham passed away as a result of his injuries in the accident.
At the request of the Maui Police Department, Dr. Anthony
Manoukian performed an autopsy on Mark Durham and sent a post-mortem blood
sample to CLH for testing. Dr. Wong’s CLH Report confirmed the presence of 2.1
ng/ml of THC in the sample, and concluded that the amount of THC detected
indicates recent use of marijuana.
B.

Procedural Background
Based on the July 26, 2006 car accident, Plaintiffs originally brought

claims against a number of Defendants, including Ford Motor Company (“Ford”)

3

for negligence, gross negligence, strict liability, and derivative claims for wrongful
death and survivorship, all relating to alleged design defects in the subject vehicle;
Maui Windsurfing Vans, Inc. for negligence, strict liability, and survival and
wrongful death relating to the subject vehicle; the County of Maui for road defect
and dangerous conditions at the accident scene; Patty Conte, the driver of the other
vehicle, for negligence; and medical malpractice claims related to the care
provided to Jessica against Medical Defendants.
Several of the Defendants asserted affirmative defenses and/or
counterclaims against Mark Durham’s estate on the basis that he was negligent in
causing the accident and was impaired. Although Ford identified both Drs. Wong
and Manoukian as unretained experts, Doc. No. 780-5, none of the other
Defendants identified Drs. Wong or Manoukian, or any other experts, to testify
regarding the CLH report. Plaintiffs subsequently produced the expert rebuttal
report of toxicologist Dr. Robert B. Palmer, who attacked, among other things, Dr.
Wong’s finding of recent use of marijuana.
On April 22, 2010, Plaintiffs filed a motion to exclude any evidence
regarding the CLH Report and any testimony by Dr. Wong regarding the presence
of THC in Mark Durham’s postmortem blood sample. In her June 30, 2010 Order
Granting in Part and Denying in Part Plaintiffs’ Motion to Exclude Expert

4

Designation of Clifford Wong, Ph.D. and Evidence of, or Related to, Reported
THC in Mark Durham’s Postmortem Blood Sample (the “June 30 Order”), thenMagistrate Judge Leslie E. Kobayashi found that Dr. Wong’s findings and
testimony regarding THC are reliable under Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579 (1993), and are relevant to the issues in this case such that Dr. Wong
could testify as a percipient witness regarding his testimony and conclusions.
Durham v. County of Maui, 729 F. Supp. 2d 1188, 1196 (D. Haw. 2010). The June
30 Order denied without prejudice, however, Plaintiffs’ request pursuant to Federal
Rule of Evidence 403 to exclude this evidence or any conclusions that Mark
Durham’s alleged drug use contributed to the accident.
On August 31, 2010, the court affirmed the June 30 Order, and
denied Plaintiffs’ Motion to Exclude Evidence Of, or Related To, Reported THC in
Mark Durham’s Postmortem Blood Sample under Rule 403 (the “August 31
Order”). Durham, 742 F. Supp. 2d at 1121. Specifically, the August 31 Order
affirmed the June 30 Order’s findings that the CLH Report met the Daubert
standard and was relevant, and that its probative value was not substantially
outweighed by the danger of unfair prejudice.
On May 2, 2011, Plaintiffs filed their MIL 2. On May 9, 2011, Dr.
Izuka and Kapiolani Defendants filed Oppositions, and Plaintiffs filed a Reply on

5

May 16, 2011. A hearing was held on June 3, 2011.
III. DISCUSSION
Although Plaintiffs make several related arguments, they boil down to
two main issues -- whether Medical Defendants should be barred from presenting
testimony by Dr. Wong for failure to disclose him as an expert, and whether
evidence regarding the CLH Report should otherwise be excluded. The court
addresses these issues in turn.
A.

Whether Medical Defendants May Call Dr. Wong to Provide Expert
Testimony
Plaintiffs argue that Medical Defendants failed to disclose Dr. Wong

as an expert witness pursuant to Federal Rule of Civil Procedure 26(a)(2)(A) such
that they should be barred from presenting his testimony at trial pursuant to Rule
37(c). Doc. No. 1100-1 at 6-7. The court concludes that Medical Defendants
failed to comply with Rule 26(a)(2)(A), but they have shown the failure to be
harmless pursuant to Rule 37(c).
1.

Rule 26(a)(2)(A)
Pursuant to Federal Rule of Civil Procedure 26(a)(2)(A), “a party

must disclose to the other parties the identity of any witness it may use at trial to

6

present [expert testimony].”3 If a party specifically employs or retains the witness
to give expert testimony in the case, Rule 26(a)(2)(B) provides that the expert
disclosure must include an expert report. In other words, “[w]hile all experts must
be disclosed under Rule 26(a)(2)(A), only ‘retained’ experts must provide Rule
26(a)(2)(B) reports.” Aumand v. Dartmouth Hitchcock Med. Ctr., 611 F. Supp. 2d
78, 88 (D. N.H. 2009) (citations and quotations omitted).
According to its plain language, Rule 26(a)(2)(A)’s disclosure
requirement applies to all witnesses providing expert testimony, including
percipient witnesses such as treating physicians and others with direct knowledge
of the facts of the case. See also Musser v. Gentiva Health Servs., 356 F.3d 751,
758 (7th Cir. 2004) (“[W]e agree with the district court that even treating
physicians and treating nurses must be designated as experts if they are to provide
expert testimony.”); Kirkham v. Societe Air Fr., 236 F.R.D. 9, 11 n.2 (D. D.C.
2006) (explaining that the 2000 amendments to Federal Rule of Evidence 701
superceded the view “that a treating physician is not even an expert witness subject
to disclosure under Rule 26(a)(2)(A) to the extent his testimony relates to his

3

In turn, Federal Rule of Evidence 702 provides that expert testimony is admissible “[i]f
scientific, technical, or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue”; the witness is qualified “by knowledge, skill,
experience, training, or education”; and “(1) the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the case.”
7

personal observations with a plaintiff/patient prior to the litigation”); Aumand, 611
F. Supp. 2d at 88 (finding that medical doctors, despite being percipient witnesses,
were subject to Rule 26(a)(2)(A) because Rule 702 encompasses “treating
physician’s diagnoses, prognoses, or other conclusions as to the patient’s
condition, because those are examples of the physician’s ‘specialized knowledge’ - indeed, it is to take advantage of that specialized knowledge that laypeople
ordinarily seek the advice of physicians and other medical professionals”).
To the extent an expert’s testimony is based on her own diagnosis and
treatment, however, that witness is not “retained or specially employed” or
“regularly employed” to provide opinion testimony and therefore is not subject to
Rule 26(a)(2)(B)’s report requirement. Redfoot v. B.F. Ascher & Co., 2007 WL
1593239, at *13 (N.D. Cal. June 1, 2007) (“Treating physicians must be identified
as expert witnesses pursuant to Rule 26(a)(2)(A) [but] are not subject to the
‘report’ requirement of Rule 26(a)(2)(B) . . . .”); see also Goodman v. Staples The
Office Superstore, LLC, --- F.3d ----, 2011 WL 1651246, at *8 (9th Cir. May 3,
2011) (“[W]e join those circuits that have addressed the issue and hold that a
treating physician is only exempt from Rule 26(a)(2)(B)’s written report
requirement to the extent that his opinions were formed during the course of
treatment.”).

8

Applying this framework, Dr. Wong’s testimony is clearly the subject
of expert testimony. Medical Defendants seek to have Dr. Wong testify regarding
CLH’s testing of Mark Durham’s post-mortem blood sample, the results, and his
conclusions of recent use of marijuana. Such evidence is not within the common
knowledge of a lay person and comes within Dr. Wong’s specialized knowledge.
But because Medical Defendants did not disclose Dr. Wong as an expert, they have
violated Rule 26(a)(2)(A). That is, as a non-retained percipient expert, Medical
Defendants were required -- but failed -- to disclose Dr. Wong as an expert under
Rule 26(a)(2)(A).
In opposition, Medical Defendants argue that Dr. Wong is akin to a
treating physician who can testify regarding his diagnosis and treatment without
producing an expert report. Medical Defendants apparently have confused the
requirements of Rule 26(a)(2)(A) versus Rule 26(a)(2)(B) -- as explained above,
although percipient witnesses such as treating physicians need not produce expert
reports under Rule 26(a)(2)(B), they must nonetheless be disclosed as expert
witnesses under Rule 26(a)(2)(A).
Medical Defendants also argue that Dr. Wong will provide lay
testimony admissible under Federal Rule of Evidence 701, and not expert
testimony under Rule 702 such that they need not disclose him as an expert. The

9

court rejects this argument. Rule 701 allows lay testimony as to “opinions and
inferences” only if, among other restrictions, they are “not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702.” Fed. R.
Evid. 701(c). This limitation, added to the Federal Rules of Evidence in 2000,
“makes clear that any part of a witness’s testimony that is based upon scientific,
technical, or other specialized knowledge within the scope of Rule 702 is governed
by the standards of Rule 702 and the corresponding disclosure requirements of the
Civil and Criminal Rules.” Id. advisory committee’s note (2000).
Finally, Medical Defendants argue that the June 30 Order determined
that Dr. Wong could testify as a percipient witness regarding his testing of the
blood sample. See Doc. No. 1118, at 4-5. Although the June 30 Order held that
Dr. Wong could “give opinion testimony akin to a treating physician, if the
opinions were disclosed in the CLH Report and/or his deposition testimony,”
Durham, 729 F. Supp. 2d at 1196, Ford had disclosed Dr. Wong as an expert
witness such that the June 30 Order did not discuss the issue of noncompliance
with Rule 26(a)(2)(A). Thus, the June 30 Order does not provide a blanket
determination of admissibility for all Defendants.

10

2.

Rule 37(c)(1)
The court now turns to Rule 37(c)(1), and concludes that Medical

Defendants have proven that the lack of disclosure is harmless.
Specifically, Rule 37(c)(1) provides that if a party fails to properly
disclose an expert, “the party is not allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Factors that may
assist the court in determining whether “a violation of a discovery deadline is
justified or harmless are: (1) prejudice or surprise to the party against whom the
evidence is offered; (2) the ability of that party to cure the prejudice; (3) the
likelihood of disruption of the trial; and (4) bad faith or willfulness involved in not
timely disclosing the evidence.” Lanard Toys Ltd. v. Novelty, Inc., 375 Fed. Appx.
705, 713 (9th Cir. 2010) (citing David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th
Cir. 2003)); see also Transbay Auto Serv., Inc. v. Chevron U.S.A. Inc., 2010 WL
4591596, at *7 (N.D. Cal. Nov. 3, 2010). “Implicit in Rule 37(c)(1) is that the
burden is on the party facing sanctions to prove harmlessness.” Yeti by Molly, Ltd.
v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 2001).
Applying these factors, Medical Defendants have shown that
Plaintiffs will not be prejudiced if Dr. Wong is permitted to testify at trial.

11

Plaintiffs have known and prepared for quite some time that Dr. Wong would be a
witness at trial -- Ford identified Dr. Wong as a percipient expert witness on
December 2, 2009, see Doc. No. 780, the parties have deposed Dr. Wong, the
parties have repeatedly named Dr. Wong as a potential witness in their disclosures
and pretrial statements, and Plaintiffs have retained their own expert to counter Dr.
Wong’s testimony that Mark Durham had recently used marijuana. In other words,
despite Medical Defendants’ technical violation of Rule 26(a)(2)(A), the parties -including Plaintiffs -- have prepared throughout this action and expected Dr.
Wong’s testimony at trial. Indeed, at the June 3, 2011 hearing, Plaintiffs conceded
that there was no prejudice. Given the parties’ preparation for this testimony, trial
will not be disrupted by Dr. Wong being permitted to testify.
Finally, there is no bad faith or willfulness involved in Medical
Defendants’ failure to timely disclose Dr. Wong as a percipient expert. Although
complexity is not an excuse for failure to precisely follow the Federal Rules, this is
a complex action with multiple moving parts and there was no doubt that Medical
Defendants intended to call Dr. Wong to testify regarding the testing and results of
Mark Durham’s post-mortem blood sample. It appears that Medical Defendants
may have relied upon Ford to call Dr. Wong as a witness and were caught with this
technical violation of Rule 26(a)(2)(A) when Ford and Plaintiffs subsequently

12

settled.
Thus, the court finds that Medical Defendants may present Dr. Wong
to testify regarding his conclusions and opinions formed “within [his] professional
expertise while testing Mark Durham’s blood sample . . . if the opinions were
disclosed in the CLH Report and/or his deposition testimony.” Durham, 729 F.
Supp. 2d at 1196.
B.

Whether the CLH Report Is Barred by Federal Rule of Evidence 403
Plaintiffs argue that “evidence of the positive THC result should be

excluded pursuant to FRE Rule 403 because the evidence is highly prejudicial and
there is no evidence that Mark Durham was actually impaired [at] the time of the
accident.” Doc. No. 1100-1 at 16. The court has already addressed -- and rejected
-- this argument once. See Durham, 742 F. Supp. 2d at 1131-32. Plaintiffs
nonetheless ask the court to “re-evaluate” the issue given that only medical
malpractice claims remain. That some Defendants have settled does not change the
court’s analysis.
As the August 31 Order previously explained, although the evidence
is prejudicial,
this evidence is also probative to the issues in this action
-- Mark Durham’s alleged recent drug use shows a lack
of care on his part and suggests that he may have been
contributorily negligent in causing the accident.
13

Specifically, Defendants have presented evidence that
Mark Durham may have driven the vehicle without due
care -- the accident occurred in daylight, in dry
conditions, and on a road which Mark Durham knew, yet
he “blew” the stop sign at a high rate of speed. As
explained above, a jury can infer from the positive test
result for THC and corresponding finding of recent use
that Mark Durham was impaired while driving the
vehicle, and expert testimony is not necessary to establish
this link.
Id. Whether Mark Durham was negligent is still an issue in this action -- some
Medical Defendants have asserted cross-claims against Mark Durham as a joint
tortfeasor, and the court has denied Plaintiffs’ Motion in Limine seeking to
preclude evidence, testimony, and argument as to Mark Durham’s liability for
causing or contributing to Jessica’s injuries.
Thus, the court finds that Medical Defendants may present Dr. Wong
and the CLH Report at trial, and DENIES Plaintiffs’ Motion in Limine seeking
exclusion of this testimony and evidence.
IV. CONCLUSION
Based on the above, the court GRANTS in part and DENIES in part
Plaintiffs’ Motion in Limine No. 2 to Exclude Any Toxicology Expert Report
Offered by the Remaining Defendants and Any Evidence Of, Reference To, or
Questioning Regarding Tests Performed on Mark Durham’s Blood
Samples, Doc No. 1100. Prior to trial, the parties shall meet and confer to discuss
14

the scope of Dr. Wong’s testimony consistent with the court’s Orders on this issue.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 23, 2011.

/s/ J. Michael Seabright
_____________________________
J. Michael Seabright
United States District Judge

Durham et al. v. County of Maui et al., Civ. No. 08-00342 JMS/RLP, Order Granting in Part and
Denying in Part Plaintiffs’ Motion in Limine No. 2 to Exclude Any Toxicology Expert Report
Offered by the Remaining Defendants and Any Evidence Of, Reference To, or Questioning
Regarding Tests Performed on Mark Durham’s Blood Samples, Doc. No. 1100

15