Durham v. County of Maui et al
Filing
1343
ORDER (1) Granting Plaintiffs' Motion In Limine No. 7 to Exclude The Expert Report of Dr. Ron Blair, Doc. No. 1182 ; and (2) Denying Defendants James Y. Sim, M.D. and James Y. Sim, M.D., LLC's Motion In Limine Regarding Admissibility of Pl aintiffs' Expert Report Disclosed In Proceeding In The County Court of Dallas County Texas, Doc. No. 1179 . Signed by JUDGE J. MICHAEL SEABRIGHT on 7/22/11. (gls, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket 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.,
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Plaintiffs,
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vs.
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COUNTY OF MAUI, ET AL.,
)
)
Defendants.
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)
_______________________________ )
CIV. NO. 08-00342 JMS/RLP
ORDER (1) GRANTING
PLAINTIFFS’ MOTION IN LIMINE
NO. 7 TO EXCLUDE THE EXPERT
REPORT OF DR. RON BLAIR, DOC.
NO. 1182; AND (2) DENYING
DEFENDANTS JAMES Y. SIM,
M.D. AND JAMES Y. SIM, M.D.,
LLC’S MOTION IN LIMINE
REGARDING ADMISSIBILITY OF
PLAINTIFFS’ EXPERT REPORT
DISCLOSED IN PROCEEDING IN
THE COUNTY COURT OF DALLAS
COUNTY TEXAS, DOC. NO. 1179
ORDER (1) GRANTING PLAINTIFFS’ MOTION IN LIMINE NO. 7 TO
EXCLUDE THE EXPERT REPORT OF DR. RON BLAIR, DOC. NO. 1182;
AND (2) DENYING DEFENDANTS JAMES Y. SIM, M.D. AND JAMES Y.
SIM, M.D., LLC’S MOTION IN LIMINE REGARDING ADMISSIBILITY
OF PLAINTIFFS’ EXPERT REPORT DISCLOSED IN PROCEEDING IN
THE COUNTY COURT OF DALLAS COUNTY TEXAS, DOC. NO. 1179
I. INTRODUCTION
Plaintiffs Sheri Gail Durham and Denise Ann Jenkins, as the
Administrator of the Estate of Jessica Durham, (collectively “Plaintiffs”), allege
negligence claims against several Hawaii Medical Defendants1 relating to
1
Medical Defendants include Hawaii Pacific Health, Kapiolani Medical Center for
Women and Children (“KMCWC”), Kapiolani Medical Specialists, Shilpa J. Patel, M.D. (“Dr.
Patel”) (collectively, “Kapiolani Defendants”), James Y. Sim, M.D., and James Y. Sim, M.D.,
(continued...)
treatment they provided Jessica Durham for the multiple injuries she suffered in a
two-vehicle accident on Maui on July 26, 2006. Jessica was subsequently
transferred to Children’s Medical Center (“CMC”) in Dallas, Texas, and passed
away over two years later on December 25, 2008 from an aortic dissection.
On February 17, 2011, Plaintiffs filed a Petition in Texas State Court
asserting negligence claims against CMC and several Texas medical providers (the
“Texas Action”). See Doc. No. 1099-3. As required by Texas Civil Practice and
Remedies Code (“TCPRC”) § 74.351(a), on June 17, 2011, Plaintiffs served on the
Texas defendants an expert report by Dr. Ron Blair identifying various alleged
breaches of care by the Texas defendants (the “Blair Report”). See Doc. No. 11793.
The parties now dispute whether the Blair Report is admissible in this
action as a statement of a party opponent. Based on the following, the court finds
that Medical Defendants have not carried their burden of establishing the
admissibility of the Blair Report and therefore (1) GRANTS Plaintiffs’ Motion in
Limine No. 7 to Exclude the Expert Report of Dr. Ron Blair, Doc. No. 1182; and
(2) DENIES Dr. Sim’s Motion in Limine Regarding Admissibility of Plaintiffs’
1
(...continued)
LLC (collectively, “Dr. Sim”), and Byron H. Izuka, M.D. and Byron H. Izuka, M.D. LLC
(collectively, “Dr. Izuka”).
2
Expert Report Disclosed in Proceeding in the County Court of Dallas County
Texas, Doc. No. 1179.2
II. ANALYSIS
This court has already outlined the medical treatment Medical
Defendants provided to Jessica, as well as the medical treatment Jessica received at
CMC. See Durham v. County of Maui, 2011 WL 2532423 (D. Haw. June 23,
2011). This court has also already held that evidence regarding Jessica’s medical
treatment in Texas is relevant to (1) Kapiolani Defendants and Dr. Izuka’s
assertions they did not breach the standard of care and that Texas medical
providers caused her injuries; and (2) Kapiolani Defendants’ assertion that Texas
medical providers were the superseding cause of Jessica’s injuries. Given that the
Blair Report describes medical treatment Jessica received at CMC and information
provided to CMC, factual statements explaining Jessica’s medical care would be
admissible as relevant so long as they are not hearsay or fall within a hearsay
exception.
To that end, the parties dispute whether the Blair Report is admissible
2
Dr. Izuka and Kapiolani Defendants joined Dr. Sim’s Motion in Limine. See Doc. Nos.
1183, 1195.
3
as a statement of party opponent pursuant to Federal Rule of Evidence 801(d)(2).3
Rule 801(d)(2) provides that an admission by a party opponent statement is not
hearsay if:
The statement is offered against a party and is (A) the
party’s own statement, in either an individual or a
representative capacity or (B) a statement of which the
party has manifested an adoption or belief in its truth, or
(C) a statement by a person authorized by the party to
make a statement concerning the subject, or (D) a
statement by the party’s agent or servant concerning a
matter within the scope of the agency or employment,
made during the existence of the relationship . . . .
As the proponents of the Blair Report, Medical Defendants have the burden of
establishing by a preponderance of the evidence that Rule 801(d)(2) applies. See
Bourjaily v. United States, 483 U.S. 171, 175 (1987) (holding that proponent of
hearsay must prove exception or exemption by preponderance of the evidence).
Several subsections of Rule 801(d)(2) clearly do not apply. The Blair
Report is not a statement by Plaintiffs and Medical Defendants offer no argument
that Dr. Blair is a “representative” of Plaintiffs under Rule 801(d)(2)(A). Further,
Medical Defendants offer no argument that Plaintiffs have manifested an adoption
or belief in the truth of the Blair Report that would trigger Rule 801(d)(2)(B). Nor
3
Plaintiffs raise additional arguments against the Blair Report’s admissibility. Because
the court finds that Medical Defendants have not carried their burden of establishing that Rule
801(d)(2) applies, the court need not address Plaintiffs’ additional arguments seeking to exclude
the Blair Report.
4
does Rule 801(d)(2)(D) apply -- Medical Defendants proffer no argument that Dr.
Blair is Plaintiffs’ agent or servant. See Doc. No. 1179-1, at 13; see also United
States v. Bonds, 608 F.3d 495, 504 (9th Cir. 2010) (outlining factors to consider in
determining whether an individual is an independent contractor or an agent).
Turning to Rule 801(d)(2)(C), the Ninth Circuit has not addressed the
specific issue of whether an expert report is “a statement by a person authorized by
the party to make a statement concerning the subject.” Cf. In re Hanford Nuclear
Reservation Litig., 534 F.3d 986, 1016 (9th Cir. 2008) (holding that expert trial
testimony provided in a previous trial is admissible because a party cannot
“exclude trial testimony that she, herself, proffered”). Indeed, there appears to be
scant caselaw addressing this specific issue -- and as a result the parties instead ask
the court to draw parallels to cases addressing the admissibility of expert
deposition and trial testimony. As recognized by Glendale Federal Bank, FSB v.
United States, 39 Fed. Cl. 422, 423 (1997), however, “[t]his area of the law is
murky at best with several divergent streams and many highly fact specific eddies
making up the case law.”
In navigating this unsettled area of law, the court finds persuasive
Glendale, which Hanford cited with approval. In addressing the admissibility of
expert deposition testimony, Glendale “attempt[ed] to craft a coherent and
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functional rule based upon the conflicting interests in a full and fair trial based on
all the basic or necessary facts surrounding the underlying dispute and the parties’
right to explore their own cases fully without the fear that preliminary evidence
could harm their case later.” Id. Specifically, Glendale reasoned that an expert
witness “is expected to give his own honest, independent opinion,” such that “[h]e
is not the sponsoring party’s agent at any time merely because he is retained as its
expert witness.” Id. at 424. Rather, it is only when the party presents the expert at
trial that the court may “assume that those experts who have not been withdrawn
are those whose testimony reflects the position of the party who retains them.” Id.
Glendale explained that trial is the critical juncture where an expert’s testimony is
“authorized” by the party:
At the beginning of trial we may hold the parties to a
final understanding of their case and hence an
authorization of their expert witnesses who have not been
withdrawn. At this point when an expert is put forward
for trial it is reasonable and fair to presume they have
been authorized. This of necessity includes prior
deposition testimony of that expert. This is also a
rational and fair point at which to draw the authorization
line.
Id. at 424-25; Accord Lizotte v. Praxair, Inc., 640 F. Supp. 2d 1335, 1338-39
(W.D. Wash. 2009); see also Kirk v. Raymark Indus., Inc., 61 F.3d 147, 164 (3d
Cir. 1995) (holding that expert testimony is not a statement of a party opponent
6
because “an expert witness is not subject to the control of the party opponent with
respect to consultation and testimony he or she is hired to give”).4
Although the court need not craft a particular rule drawing a clear line
between when expert opinions qualify as statements of party opponents, the court
finds persuasive Glendale’s focus on whether the party has truly authorized the
particular statements by the expert (by, for example, presenting the expert at trial).
Here, the Blair Report does not have any indicia that Plaintiffs truly authorized the
particular statements in the Blair Report. On its face, the Blair Report provides the
opinions of Dr. Blair and not Plaintiffs -- the Blair Report states that Dr. Blair was
asked to provide opinions regarding Jessica’s medical care at CMC, and
throughout the report Dr. Blair provides his opinion. Doc. No. 1179-3, at Blair
4
Medical Defendants cite a panopoly of cases to support their argument that the Blair
Report is admissible, but these cases are ultimately unhelpful. Many of them do not address
admissibility of an expert report and/or suggest any guiding principles that would apply to the
Blair Report. See, e.g., Collins v. Wayne Corp., 621 F.2d 777, 782 (5th Cir. 1980) (holding that
expert’s deposition testimony was a statement of the party); Glaesman v. Shop-Rite Foods, Inc.,
438 F.2d 341, 342 (10th Cir. 1971) (holding that trial court properly allowed plaintiff to read into
the record parts of pleadings and interrogatory responses filed in previous action as statements
against interest); United States v. Ala. Power Co., --- F. Supp. 2d ----, 2011 WL 1158037, at *8
n.10 (N.D. Ala. Mar. 14, 2011) (allowing expert testimony provided in previous action where
other party did not oppose). Those cases that do address expert reports provide little analysis
and/or address facts not before this court. See, e.g., Reid Bros. Logging Co. v. Ketchikan Pulp
Co., 699 F.2d 1292, 1306-07 (9th Cir. 1983) (holding that report prepared at the request and
substantial participation of a company, and then subsequently distributed throughout the
company, was “authorized” by that company); Marceau v. Int’l Broth. of Elec. Workers, 618 F.
Supp. 2d 1127, 1143 (D. Ariz. 2009) (finding that the court “cannot conclude at this time” that
an expert report was inadmissible hearsay); Santana, Inc. v. Levi Strauss & Co., 674 F.2d 269,
275 n.1 (4th Cir. 1982) (noting that expert report of deceased expert “could” have been
admissible pursuant to Rule 801(d)(2)(C)).
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Report; see, e.g., Kirk, 61 F.3d at 164. In other words, Plaintiffs hired Dr. Blair to
provide his independent opinion, and not to provide Plaintiff’s opinion. The Blair
Report also specifically reserves Dr. Blair’s right to amend, modify, or supplement
his opinions as additional information becomes available such that it is unclear
how Plaintiffs could authorize the particular statements where they are subject to
change.
Further, the Blair Report is not sworn under oath, produced as part of
the discovery process, or otherwise specifically relied upon by Plaintiffs in some
manner. Rather, Plaintiffs produced the Blair Report pursuant to TCPRC
§ 74.351(a), requiring Plaintiffs to present an expert report regarding the Texas
defendants’ liability. As a result, it does not appear that Plaintiffs actually adopted
the Blair Report -- the Blair Report is generally not admissible in the Texas action,
is not to be used in deposition, trial, or other proceeding, and is not to be referred
to by any party during the Texas Action. TCPRC § 74.351(k).5
In sum, these facts suggest to the court that Plaintiffs did not authorize
Dr. Blair to make the particular statements in the Blair Report. Rather, the Blair
Report provides Dr. Blair’s independent opinions regarding Jessica’s medical care;
5
The court acknowledges that TCPRC § 74.351 is a procedural statute and therefore
does not apply to federal actions, see, e.g., Estate of C.A. v. Grier, 752 F. Supp. 2d 763, 770
(S.D. Tex. 2010). But it is nonetheless relevant in determining whether Plaintiffs truly
authorized Dr. Blair to make the statements in the Blair Report, where Plaintiffs knew that it
could not be used in the Texas action.
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Plaintiffs may or may not ultimately adopt such statements as their own. The court
therefore finds that Rule 801(d)(2)(C) does not apply to the Blair Report.6
III. CONCLUSION
Based on the above, the court: (1) GRANTS Plaintiffs’ Motion in
Limine No. 7 to Exclude the Expert Report of Dr. Ron Blair, Doc. No. 1182; and
(2) DENIES Dr. Sim’s Motion in Limine Regarding Admissibility of Plaintiffs’
Expert Report Disclosed in Proceeding in the County Court of Dallas County
Texas, Doc. No. 1179.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 22, 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 (1) Granting
Plaintiffs’ Motion in Limine No. 7 to Exclude the Expert Report of Dr. Ron Blair, Doc. No.
1182; and (2) Denying Defendants James Y. Sim, M.D. and James Y. Sim, M.D., LLC’s Motion
in Limine Regarding Admissibility of Plaintiffs’ Expert Report Disclosed in Proceeding in the
County Court of Dallas County Texas, Doc. No. 1179
6
This Order should not be construed as an absolute bar to any reference to the Blair
Report during the course of the trial. If Defendants believe that Plaintiffs have opened the door
to permit questions regarding the Blair Report, they should raise the matter with the court outside
the presence of the jury.
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