Pacific Radiation Oncology, LLC et al v. The Queen's Medical Center et al
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO EXCLUDE THE TESTIMONY OF JONATHAN A. CUNITZ re 231 Motion in Limine. Signed by JUDGE LESLIE E. KOBAYASHI on 01/16/2015. The Cunitz Motion is DEN IED insofar as this Court will allow Dr. Cunitz to testify at trial regarding his interpretation of Plaintiffs historic financial documents, if Plaintiffs comply with the notice and disclosure requirements set forth in this Order. The Cunitz Motion i s GRANTED in all other respects. (eps)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
PACIFIC RADIATION ONCOLOGY,
LLC, a Hawai`i Limited
Liability Corporation, et
THE QUEEN’S MEDICAL CENTER, a )
Corporation, et al.,
CIVIL NO. 12-00064 LEK-KSC
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO EXCLUDE THE TESTIMONY OF JONATHAN A. CUNITZ
On July 9, 2014, Defendants/Counter Claimants Queen’s
Medical Center, a Hawai`i Non-Profit Corporation (“Queen’s” or
“QMC”), Queen’s Development Corp., a Hawai`i for Profit
Corporation, Noreen D.S.W. Mokuau, William G. Obana, M.D.,
Arthur A. Ushijima, Mark H. Yamakawa, Paula Yoshioka,
Sharlene K. Tsuda, Richard C. Keene, Clinton Yee,
Naleen N. Andrade, M.D., Ernest H. Fukeda, Jr., Robb Ohtani,
M.D., Neil J. Hannahs, Christine M. Gayagas, Peter K. Hanashiro,
Robert K. Nobriga, Eric K. Yeaman, Julia C. Wo,
Caroline Ward Oda, Peter Halford, M.D., Barry Weinman, each
individually and in his or her capacity as Officer and Trustee of
Queen’s Medical Center (all collectively “Defendants”), filed
their Motion to Exclude the Testimony of Jonathan A. Cunitz
[Dkt. no. 231.]
Plaintiffs/Counterclaim Defendants Pacific Radiation
Oncology, LLC, a Hawai`i Limited Liability Corporation (“PRO”),
PRO Associates, LLC, a Hawai`i Limited Liability Corporation,
John Lederer, M.D., Laeton Pang, M.D., Eva Bieniek, M.D.,
Vincent Brown, M.D., Paul DeMare, M.D., and Thanh Huynh, M.D.1
(all collectively “Plaintiffs”), filed their memorandum in
opposition on November 10, 2014, and Defendants filed their reply
on November 17, 2014.
[Dkt. nos. 407, 424.]
for hearing on December 1, 2014.2
This matter came on
After careful consideration of
the motion, supporting and opposing memoranda, and the arguments
of counsel, Defendants’ Cunitz Motion is HEREBY GRANTED IN PART
AND DENIED IN PART for the reasons set forth below.
the Cunitz Motion is DENIED insofar as the Court will allow
testimony at trial regarding Dr. Cunitz’s interpretations of
Plaintiffs’ historic financial documents, assuming disclosure
deadlines are met, and is GRANTED all other respects.
This Court will refer to Drs. Lederer, Pang, Bieniek,
Brown, DeMare, and Huynh collectively as “the PRO Physicians,”
and to Drs. Lederer, Pang, Brown, DeMare, and Huynh collectively
as “the PRO Member Physicians.” Dr. Bieniek is not a member of
At the hearing, this Court also heard argument on
Defendants’ Motion to Exclude the Testimony of
Ronald B. Goodspeed (“Goodspeed Motion”) and Motion to Exclude
the Testimony of Thomas L. Greaney (“Greaney Motion”). [Dkt.
nos. 229-30.] On December 31, 2014, this Court issued an order
granting the Goodspeed Motion and the Greaney Motion in part and
denying them in part. [Dkt. no. 467.]
The parties and the Court are familiar with the factual
and procedural background of this case.
The Court will only
discuss the events that are relevant to the instant motion.
Jonathan A. Cunitz has a Doctor of Business
Administration degree in accounting from the Harvard Business
[Cunitz Motion, Decl. of William S. Hunt (“Hunt Decl.”),
Exh. A (Letter dated 9/10/13 to Mark S. Davis, Esq. from
Dr. Cunitz (“Cunitz Report”)), Exh. G (Dr. Jonathan A. Cunitz
Curriculum Vitae (“Cunitz CV”)) at 37.3]
He previously taught
courses in the masters programs at the New York University
Graduate School of Business Administration and the University of
Connecticut School of Business Administration.
[Cunitz CV at
He is currently the president of Jonathan A. Cunitz &
Company, which “[p]rovide[s] consulting services to businesses,
financial institutions and professional firms in the area of
financial management, accounting and information systems.”
Plaintiffs emphasize that Dr. Cunitz “has provided
extensive accounting and financial testimony” for thirty-five
[Mem. in Opp. to Cunitz Motion (“Cunitz Opp.”) at 26.]
Plaintiffs retained Dr. Cunitz “to evaluate and testify
about Plaintiffs’ economic loss of physician income resulting
All citations to the Cunitz Report refer to the Bates
stamp page numbers, which are located in the bottom, right-hand
corner of each page.
from QMC’s decision to prevent Plaintiffs from treating patients
[Id. at 2.]
The Cunitz Report: 1) analyzes the losses
that each of the PRO Physicians suffered in 2012 after the
termination of their privileges at Queen’s; and 2) projects their
Dr. Cunitz states that “[a]ll of the losses shown
. . . are due to the termination of privileges and other actions
initiated by QMC.”
[Cunitz Report at 4.]
Dr. Cunitz used three
methodologies to calculate the PRO Physicians’ loss of income in
2012: 1) “profit margin applied to patient receipts;” 2) “income
statement analysis;” and 3) “normalized income analysis.”
at 9-11 (emphases omitted).]
According to Dr. Cunitz, because
“[t]he results under each approach are similar, . . . the average
is a reasonable representation of the loss in 2012 for each
[Id. at 11.]
He used the profit margin applied to
patient receipts methodology to determine the PRO Physicians’
loss of income for 2013.
For Drs. Huynh, Lederer, Pang, and
Bieniek, he used the 2013 loss, with certain adjustments, to
estimate the losses for 2014 and beyond.
Dr. DeMare’s loss for 2014 through 2016 as $184,000, and Dr.
Brown loss after 2014 as zero, due to their personal
circumstances, such as intended retirement.
[Id. at 12-13.]
In the Cunitz Motion, Defendants ask this Court to
exclude the Cunitz Report and Dr. Cunitz’s testimony because:
1) Dr. Cunitz improperly submitted a “preliminary” report, in
violation of Fed. R. Civ. P. 26(a)(2); 2) he is not sufficiently
qualified to render the opinions he has given in this case;
3) his opinions regarding Plaintiffs’ loss of income are
inadmissible because he relied on flawed and untested
methodology; and 4) his opinions are inadmissible because they
are based on inadequate and incomplete data and baseless
Fed. R. Evid. 702 states:
A witness who is qualified as an expert by
knowledge, skill, experience, training, or
education may testify in the form of an opinion or
(a) the expert’s scientific, technical, or
other specialized knowledge will help the
trier of fact to understand the evidence or
to determine a fact in issue;
(b) the testimony is based on sufficient
facts or data;
(c) the testimony is the product of reliable
principles and methods; and
(d) the expert has reliably applied the
principles and methods to the facts of the
The Ninth Circuit interprets Rule 702
to require that “[e]xpert testimony . . . be both
relevant and reliable.” Estate of Barabin [v.
AstenJohnson, Inc.], 740 F.3d [457,] 463 [(9th
Cir. 2014) (en banc)] (alteration and ellipsis in
original) (internal quotation marks omitted). A
proposed expert’s testimony, then, must “have a
reliable basis in the knowledge and experience of
his discipline.” Kumho Tire [Co. v. Carmichael],
526 U.S. [137,] 148, 119 S. Ct. 1167[, 143 L. Ed.
2d 238 (1999)] (internal quotation marks omitted).
This requires district courts, acting in a
“gatekeeping role,” to assess “whether the
reasoning or methodology underlying the testimony”
is valid and “whether that reasoning or
methodology properly can be applied to the facts
in issue.” Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 592–93, 597, 113 S. Ct. 2786, 125 L.
Ed. 2d 469 (1993) . . . . It is not “the
correctness of the expert’s conclusions” that
matters, but “the soundness of his methodology.”
Estate of Barabin, 740 F.3d at 463 (internal
quotation marks omitted).
Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 860
(9th Cir. 2014) (some alterations in Ollier).
“Shaky but admissible evidence is to be attacked
by cross examination, contrary evidence, and
attention to the burden of proof, not exclusion.”
[Primiano v. Cook, 598 F.3d 558,] 564 [(9th Cir.
2010)] (citation omitted). The judge is “supposed
to screen the jury from unreliable nonsense
opinions, but not exclude opinions merely because
they are impeachable.” Alaska Rent–A–Car[, Inc.
v. Avis Budget Grp., Inc.], 738 F.3d [960,] 969
[(9th Cir. 2013)]. Simply put, “[t]he district
court is not tasked with deciding whether the
expert is right or wrong, just whether his
testimony has substance such that it would be
helpful to a jury.” Id. at 969–70.
Pyramid Techs., Inc. v. Hartford Cas. Ins. Co., 752 F.3d 807, 813
(9th Cir. 2014) (some alterations in Pyramid Techs.).
Dr. Cunitz’s Qualifications
The Court will first address Defendants’ argument that
Dr. Cunitz is not qualified to render the opinions he has given
in this case.
Defendants emphasize that Dr. Cunitz: is not a
certified public accountant (“CPA”); is not familiar with the
professional standards applicable to CPAs; does not have a degree
in economics; and does not have any training or experience in
hospital/medical management, billing, or reimbursement.
The record establishes that Dr. Cunitz has specialized
knowledge in the area of accounting, and the Court finds that his
specialized knowledge will help the jury understand Plaintiffs’
evidence regarding their claim for loss of income.
essentially argue that: a CPA or an economist would be more
qualified to address the lost income claim; and, specifically, an
accountant who specializes in healthcare issues would be more
Such arguments address the weight of evidence, not
the admissibility of evidence.
Unless they are prohibited from
doing so on grounds outside the scope of this Order, Defendants
can raise their arguments about Dr. Cunitz’s qualifications
through cross-examination, presentation of contrary evidence, and
arguments regarding Plaintiffs’ burden of proof.
Techs., 752 F.3d at 813.
This Court therefore DENIES the Cunitz Motion to the
extent that the motion challenges Dr. Cunitz’s qualifications.
Rule 26 Requirements
Because Plaintiffs specifically retained Dr. Cunitz to
give expert testimony in this case, they were required to
disclose a written report by him containing the following:
(i) a complete statement of all opinions the
witness will express and the basis and reasons for
(ii) the facts or data considered by the witness
in forming them;
(iii) any exhibits that will be used to summarize
or support them;
(iv) the witness’s qualifications, including a
list of all publications authored in the previous
(v) a list of all other cases in which, during the
previous 4 years, the witness testified as an
expert at trial or by deposition; and
(vi) a statement of the compensation to be paid
for the study and testimony in the case.
Fed. R. Civ. P. 26(a)(2)(B).
Defendants argue that the Cunitz
Report is merely a preliminary report, which violates Rule
26(a)(2)(B)’s requirement that the report be “complete” and that
it include all of the exhibits he will use to summarize or
support his opinions.
The Cunitz Report does state that it is “a preliminary
[Cunitz Report at 2.]
At his deposition, however,
Dr. Cunitz stated that he is prepared to testify at trial about
the opinions and conclusions in his report.
The only exceptions
are that he would: 1) update the present value calculation in his
report to reflect a date closer to the trial date;4 and 2) revise
The present value in the Cunitz Report is calculated as of
January 1, 2014. [Cunitz Report at 14.] Trial in this matter is
currently scheduled for June 23, 2015.
his report based on new information about the PRO Physicians,
such as Dr. Bieniek’s relocation, Dr. Huynh’s religious studies
in Asia, and the number of hours the PRO Physicians have worked
since he prepared the report.
[Cunitz Opp., Decl. of Mark. S.
Davis (“Davis Decl.”), Exh. A (Excerpts of Trans. of 2/17/14
Depo. of Jonathan Cunitz (“Pltfs.’ Excerpts of Cunitz Depo.”)) at
The Court finds that these anticipated revisions and/or
updates to the Cunitz Report are proper subjects of a
supplemental report required by Rule 26.
See Fed. R. Civ. P.
26(a)(2)(E) (stating that parties must supplement their expert
disclosures “when required under Rule 26(e),” which governs
supplemental disclosures and responses).
The fact that
Dr. Cunitz anticipates these revisions and/or updates does not
render the Cunitz Report incomplete.
This Court therefore DENIES the Cunitz Motion to the
extent that the motion alleges a violation of Rule 26(a)(2)(B).
III. Daubert Analysis
The Court next turns to Defendants’ Daubert challenge.
The Ninth Circuit has stated that the analysis of an expert’s
reliability is flexible.
Barabin, 740 F.3d at 463.
To determine reliability, the Supreme Court has
suggested several factors: “1) whether a theory or
technique can be tested; 2) whether it has been
subjected to peer review and publication; 3) the
known or potential error rate of the theory or
technique; and 4) whether the theory or technique
enjoys general acceptance within the relevant
scientific community.” [Barabin, 740 F.3d at 463]
(quoting United States v. Hankey, 203 F.3d 1160,
1167 (9th Cir. 2000) [(citing Daubert, 509 U.S. at
592-94, 113 S. Ct. 2786)]); see also Primiano, 598
F.3d at 564. These factors are “meant to be
helpful, not definitive, and the trial court has
discretion to decide how to test an expert’s
reliability as well as whether the testimony is
reliable, based on the particular circumstances of
the particular case.” Primiano, 598 F.3d at 564
(citations and quotation marks omitted); see also
Barabin, 740 F.3d at 463. The test “is not the
correctness of the expert’s conclusions but the
soundness of his methodology,” and when an expert
meets the threshold established by Rule 702, the
expert may testify and the fact finder decides how
much weight to give that testimony. Primiano, 598
F.3d at 564–65.
Pyramid Techs., 752 F.3d at 813-14.
The Ninth Circuit has
the trial court’s gatekeeping function explained
in Daubert applies not only to scientific
testimony, but to all expert testimony. Kumho
Tire, 526 U.S. 137, 147, 119 S. Ct. 1167, 143 L.
Ed. 2d 238 (1999). And the Court emphasized that
the Daubert factors are not an exhaustive
checklist; rather, the trial court must base its
inquiry on the facts of each case. Id. at 150,
119 S. Ct. 1167. . . .
F.T.C. v. BurnLounge, Inc., 753 F.3d 878, 888 (9th Cir. 2014).
The Ninth Circuit has also emphasized that, in exercising its
gatekeeping function, a court does not act as a fact finder.
Pyramid Techs., 752 F.3d at 813.
Dr. Cunitz testified that he developed three
methodologies to calculate the PRO Physicians’ loss of income,
each of which was “very specific to these circumstances,” because
the case presents “a very unique situation.”
of Cunitz Depo. at 92-93, 117.]
He stated that there “may be”
variations of these methodologies which he “use[d] for other
analyses,” but he could not identify any at the time of his
deposition, and he stated that he did not know whether or not
anyone else uses these methodologies to calculate lost earnings.
[Id. at 93.]
Dr. Cunitz’s position appears to be that no one
else uses these methodologies because of the lack of a comparable
practice to PRO in Hawai`i and because practices in other states
are not comparable to PRO because the medical community in
Hawai`i is unique.
[Id. at 132-33.]
This Court agrees with Dr. Cunitz that the PRO
Physicians’ medical practice is unique and may not have a
comparable practice in Hawai`i, or any other state.
their claim in this case that they lost a significant source of
their income as a result of Defendants’ actions and omissions is
This Court questions whether the facts of this case
are so unique as to require the creation of accounting
methodologies that neither Dr. Cunitz nor any other accountant
has used before.
Even assuming that it was necessary to create
new methodologies for the specific facts of this case, for
Dr. Cunitz’s opinions to satisfy the standards set forth in
Daubert and its progeny: 1) the reasoning and techniques
underlying his methodologies must have been reliable in the field
of accounting; and 2) he must have reasonably applied them to the
facts of this case.
See Ollier, 768 F.3d at 843.
first turns to the reliability analysis.
Testing and Rate of Error
As to the first Daubert factor - whether the expert’s
theories and techniques can be tested - and the third factor the known or potential rate of error, Dr. Cunitz testified:
Q. Have the methodologies ever been tested to
see if they render reliable results by you or
A. I don’t know.
Q. Have you ever done any testing to
determine whether they result in a reliable
estimate of the lost earnings?
A. The fact that they are similar, using
three different approaches, was my test of
Q. What do you mean when you refer to them as
A. The results are approximately the same.
Q. Do you have any range within which you
would define similar results, like plus or minus
10 percent, plus or minus 50 percent?
A. Well, they’re certainly less than 10
percent from the average. Looks like they’re less
than 5 percent, even.
Q. When you apply these methodologies, do you
have a known error rate for knowing whether
they’re reliable or not?
[Pltfs.’ Excerpts of Cunitz Depo. at 117-18.]
Thus, the only
test of reliability that Dr. Cunitz identified is the fact that
the results of the three methodologies are “similar,” i.e. he
asserts that they differ less than ten percent from the average
of the three results.
Exhibit 3 to the Cunitz Report is a table of the PRO
Member Physicians’ loss of income for 2012, as determined
according to Dr. Cunitz’s three methodologies and the average of
the three results for each physician.5
[Cunitz Report at 17.]
The three methodologies resulted in the following amounts for
Dr. Lederer’s loss of income: $292,617; $288,036; and $282,614.
The average is $287,756.
The lowest amount, which was determined
by the normalized income analysis, is $5,142 - or less than 2% below the average.
The results, however, are not as consistent
for the other PRO Member Physicians.
The three methodologies resulted in the following
amounts for Dr. Pang’s loss of income: $74,624; $73,280; and
The average is $78,975.
The highest amount, determined
by the normalized income analysis, is $10,047 - or almost 13% above the average.
The three methodologies resulted in the
following amounts for Dr. Brown’s loss of income: $177,403;
$163,533; and $127,651.
The average is $156,196.
amount, determined by the normalized income analysis, is $28,545
Dr. Cunitz did not use the three methodologies to
calculate Dr. Bieniek’s loss of income because she is an employee
of PRO, not an equity member like the PRO Member Physicians.
[Cunitz Report at 8-9.]
- or approximately 18% - below the average.
Even if this Court accepts Dr. Cunitz’s testimony that
his methodologies can be tested by examining the similarity of
their results,6 this Court finds that there is a lack of
similarity in the results, and this weighs against a finding of
This Court also finds that the lack of a known rate
of error weighs against a finding of reliability.
Peer Review and Publication and General Acceptance
As to the second Daubert factor - whether the theories
or techniques have been subjected to peer review and publication
- and the fourth factor - whether the theories or techniques are
generally accepted in that area of expertise, Dr. Cunitz
Q. . . .
Are you aware of any standards or guidelines,
by anyone other than yourself, that suggest that
this is the way that someone should conduct a lost
. . . .
Dr. Cunitz did not refer to any professional source or
standard to support his assertion that the similarity of the
results is evidence that the three methodologies are reliable.
He merely stated, “I think the fact that they are so similar
indicates they are reliable approaches.” [Pltfs.’ Excerpts of
Cunitz Depo. at 115 (emphasis added).] Similarly, he cited no
authority supporting his use of the average of the three
methodologies. See id. (“I feel the average is a reasonable
representation of the loss of income.” (emphasis added)).
Q. Is there any literature supporting the use
of these methodologies?
A. I don’t know.
Q. Do you know of anyone else who uses
similar methodologies in projecting lost earnings?
Q. Do you ever use this methodology of
projecting earnings in any of your non-litigation
support activities, the consulting work that you
[Pltfs.’ Excerpts of Cunitz Depo. at 116-18.]
Dr. Cunitz testified that he holds all of the opinions
in his report to a reasonable degree of certainty and that all of
the methodologies he used are reasonable and appropriate for the
situation presented in this case, but he did not identify a
professional standard that he applied or referred to in
developing his methodologies.
[Hunt Decl., Exh. B (Excerpts of
2/17/14 Depo. of Jonathan Cunitz (“Defs.’ Excerpts of Cunitz
Depo.”)) at 24-25.]
Further, Dr. Cunitz did not know if there were
generally accepted theories or techniques in the field of
accounting that he could have used to determine the PRO
Physicians’ loss of income.
Q. What other alternatives could you have
considered? Are there alternative methods that
would be generally applicable that you decided not
A. I don’t know because I didn’t consider
anything. I hadn’t thought about it.
[Defs.’s Excerpts of Cunitz Depo. at 29.]
He was also unaware of
any guidelines or standards of accounting that apply to his
opinions in this case.
Q. Do you believe that you’re subject to any
guidelines or standards with respect to the
opinions that you issued in this report?
A. Just those that might be imposed by the
Q. And what might those be?
A. To provide opinions within my area of
Q. Aside from that, are you subject to any
guidelines or standards with respect to the
opinions that you’re offering in this case?
A. Not that I’m aware of.
[Id. at 110; Pltfs.’ Excerpts of Cunitz Depo. at 111.]
Based on Dr. Cunitz’s deposition testimony, this Court
finds that: the lack of peer review and publication of
methodologies similar to those he used in this case weigh against
a finding of reliability; and the lack of general acceptance in
the field of accounting of similar methodologies weigh against a
finding of reliability.
Further, Dr. Cunitz did not testify that
he based his methodologies upon theories and principles of
accounting that have been subject to peer review and publication,
or are generally accepted in the field.
The lack of such
evidence weighs against a finding of reliability.
This Court finds that all of the four Daubert factors
weigh against a finding of reliability.
This Court acknowledges
that, in evaluating the theories and techniques Dr. Cunitz used
to develop his methodologies, it has the discretion to consider
This Court, however, declines to do because the
four Daubert factors are the factors that are most relevant to
the reliability analysis in this case.
This Court also
emphasizes that the problems it has identified in the Cunitz
Report and Dr. Cunitz’s deposition testimony go beyond the
correctness of his conclusions.
As the offering party, Plaintiffs have the burden of
establishing the admissibility of Dr. Cunitz’s testimony.
Bldg. Indus. Ass’n of Wash. v. Wash. State Bldg. Code Council,
683 F.3d 1144, 1154 (9th Cir. 2012).
The evidence properly
before the Court in this case does not establish that
Dr. Cunitz’s opinions are reliable.7
This Court therefore FINDS
Plaintiffs submitted a declaration by Dr. Cunitz, dated
November 10, 2014 (“Cunitz Declaration”), with the Cunitz
Opposition. The Cunitz Declaration is an attempt to address
matters relevant to the issues discussed in this Order. The
Court, however, has not considered the Cunitz Declaration because
it is an improper supplement to the Cunitz Report. All of the
statements in the Cunitz Declaration regarding his methodologies
could have, and should have, been included in either his report
or his deposition testimony. Further, at best, the Cunitz
Declaration conflicts with his deposition testimony, and
Plaintiffs cannot use the declaration to undo the candid
testimony that Dr. Cunitz gave during his deposition.
that Dr. Cunitz’s opinions and testimony regarding the PRO
Physicians’ loss of income are not reliable, and therefore will
not be helpful to the jury.
In light of this Court’s findings,
this Court need not address the remaining issues in the Cunitz
This Court CONCLUDES that Dr. Cunitz’s opinions and
testimony regarding the PRO Physicians’ loss of income are
inadmissible, and GRANTS the Cunitz Motion as to those opinions
This Court has excluded Dr. Cunitz’s testimony and
opinions regarding the PRO Physicians’ loss of income.
this Court has also found that Dr. Cunitz has expertise in the
field of accounting in general that will help the jury to
understand Plaintiffs’ evidence regarding their alleged loss of
The financial documents that Plaintiffs will likely
present at trial will be voluminous and difficult for the jury to
understand without the assistance of expert testimony.
Court therefore DENIES the Cunitz Motion insofar as this Court
will allow Dr. Cunitz to testify regarding his interpretation of
Plaintiffs’ historic financial documents.
This Court emphasizes
that Dr. Cunitz cannot testify as to any opinions regarding
Plaintiffs’ loss of income or how their loss of income is
If Plaintiffs choose to call Dr. Cunitz to testify in
the manner permitted by this Order, Plaintiffs shall file a
notice by February 5, 2015.
Further, Dr. Cunitz shall prepare a
supplemental report limited to his interpretation of Plaintiffs’
historic financial documents, and Plaintiffs must disclose the
report to Defendants’ counsel by February 20, 2015.
Plaintiffs fail either to file their notice or to disclose
Dr. Cunitz’s supplemental report by the deadlines in this Order,
this Court will not permit Dr. Cunitz to testify at trial.
On the basis of the foregoing, Defendants’ Motion to
Exclude the Testimony of Jonathan A. Cunitz, filed July 9, 2014,
is HEREBY GRANTED IN PART AND DENIED IN PART.
The Cunitz Motion
is DENIED insofar as this Court will allow Dr. Cunitz to testify
at trial regarding his interpretation of Plaintiffs’ historic
financial documents, if Plaintiffs comply with the notice and
disclosure requirements set forth in this Order.
Motion is GRANTED in all other respects.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, January 16, 2015.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
PACIFIC RADIATION ONCOLOGY, LLC., ET AL. VS. THE QUEEN’S MEDICAL
CENTER, ET AL; CIVIL 12-00064 LEK-KSC; ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION TO EXCLUDE THE TESTIMONY OF
JONATHAN A. CUNITZ
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