Mettias v. United States of America

Filing 206

ORDER REGARDING MOTIONS IN LIMINE. Signed by JUDGE ALAN C KAY on 3/6/2015. Government's Motion in Limine No. 1, doc no. 132 : DENIED.Plaintiffs' Motion in Limine No. 1, doc no. 136 : GRANTED IN PART AND DENIED IN PART. P laintiffs' Motion in Limine No. 4, doc no. 139 : DENIED.[Written Order follows hearing held 2/19/2015 on Plaintiffs Motion in Limine No. 1 (doc 136 ). Minutes of 2/19/2015 hearing: doc no. 185 . Written order also fol lows the hearing held 2/23/2015 on Government's Motion in Limine No. 1 (doc 132 ), and Plaintiffs Motion in Limine No. 4 (taken under advisement on 2/19/2015; minutes of hearing 185 ). Minutes of 2/23/2015 hearing: doc no. 187 ]. (afc)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
CHRISTINA METTIAS, Individually, ) Civ. No. 12-00527 ACK-KSC
and As Next Friend of Her Minor )
Son N.M.,
)
)
Plaintiffs,
)
)
v.
)
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
)
ORDER REGARDING MOTIONS IN LIMINE
For the following reasons, the Court hereby DENIES the
Government’s Motion in Limine No. 1, (Doc. No. 132); GRANTS IN
PART AND DENIES IN PART Plaintiffs’ Motion in Limine No. 1, (Doc.
No. 136); and DENIES Plaintiffs’ Motion in Limine No. 4 (Doc. No.
139).
BACKGROUND1/
This case involves claims brought by Plaintiff
Christina Mettias (“Christina”), individually and on behalf of
her minor son N.M., (together, “Plaintiffs”) for injuries
Christina suffered after undergoing Roux-en Y Gastric Bypass
(“RYGB”) surgery at Tripler Army Medical Center on September 27,
2010. (FAC ¶ 1.) Plaintiffs filed their First Amended Complaint
on April 1, 2014, asserting claims against the United States of
1/

The facts as recited in this Order are for the purpose of
disposing of the current motion and are not to be construed as
findings of fact that the parties may rely on in future
proceedings.

America (“the Government”) for medical negligence as to Plaintiff
Christina, and negligent infliction of emotional distress and
loss of consortium as to Plaintiff N.M. (Doc. No. (“FAC”) ¶¶ 2633.) The non-jury trial in this matter is set for February 24,
2015.
On January 15, 2015, the Court issued its Order Denying
Plaintiffs’ Motion to Exclude and Defendant’s Motion in Limine
and Granting in Part and Denying in Part Plaintiffs’ Motion to
Strike. (Doc. No. 130.) In that Order, the Court denied both
parties’ motions seeking to exclude the other’s expert witness.
On February 2, 2015, the Government filed two motions in limine:
(1) Motion in Limine No. 1 to Exclude and/or Limit Testimony of
Plaintiffs’ Expert Paul R. Ernsberger, Ph.D; and (2) Motion in
Limine No. 2 to Exclude and/or Limit Testimony of Plaintiffs’
Expert I. Michael Leitman M.D. (Doc. Nos. 132, 133.)
On February 3, 2015, Plaintiffs filed five motions in
limine: (1) Motion in Limine No. 1 to Preclude Defense Witnesses,
Other than Dr. Jones, from Offering Opinions Regarding the
Applicable Standard of Care; (2) Motion in Limine No. 2 to Limit
the Testimony of Dr. Paresh Chandrakant Shah; (3) Motion in
Limine No. 3 to Preclude the Government’s Expert Witnesses from
Providing Opinions Not Previously Disclosed; (4) Motion in Limine
No. 4 to Exclude the Testimony of John Fountaine; and (5) Motion
in Limine No. 5 to Exclude Evidence and Argument of Comparative

2

Negligence. (Doc. Nos. 136-140.)

The parties timely filed their

respective oppositions to the motions in limine on February 10,
2015. (Doc. Nos. 157-161, 168, 172.)
A hearing on the motions was held on February 19, 2015.
At the hearing, the Court granted the Government’s Motion in
Limine No. 22/ (Doc. No. 133), as well as Plaintiffs’ Motion in
Limine No. 2,3/ and Motion in Limine No. 3. The Court also
granted in part and denied in part Plaintiffs’ Motion in Limine
No. 5.4/ (Doc. Nos. 137, 138, 140.) This Order addresses the
remaining motions in limine.

2/

In granting the Government’s Motion in Limine No. 2, the
Court ruled that it will limit Dr. Leitman’s testimony regarding
coding, Tricare billing, and the funding of medical services at
Tripler, but that its ruling does not preclude Dr. Leitman from
testifying as to other matters within his expertise as a surgeon,
including as to Christina’s diagnosis upon admission into the
Tripler Bariatric Surgery Program.
3/

The Court notes that in granting Plaintiffs’ Motion in
Limine No. 2, the Court holds that Dr. Paresh Chandrakant Shah
may only testify for impeachment purposes at trial. Contrary to
the Government’s assertions at the hearing on the motions in
limine, because the Government failed to comply with the
disclosure requirements of Rule 26, including those applicable to
expert rebuttal testimony, the Government may not introduce Dr.
Shah’s testimony for rebuttal purposes, or for any other purpose
other than that of impeachment. See Fed. R. Civ. P. 26(a)(2)(D),
37.
4/

The Court granted Plaintiffs’ Motion in Limine No. 5 to
the extent that the Court ruled that it will exclude any argument
or evidence by the Government asserting that Plaintiff’s
preexisting obesity constituted contributory negligence. The
Court otherwise denied the motion, to the extent Plaintiffs
sought to entirely preclude any arguments as to contributory
negligence.
3

DISCUSSION
I.

The Government’s Motion in Limine No. 15/
In its first motion in limine, the Government seeks to

exclude or limit the testimony of Plaintiff’s expert, Paul
Ernsberger, Ph.D. Specifically, the Government argues that Dr.
Ernsberger is not qualified to testify as to the eligibility
criteria or standard of care for bariatric surgery.
Rule 702 of the Federal Rules of Evidence governs the
admission of expert testimony in the federal courts. “Determining
whether a witness is an expert is ordinarily within the
discretion of the trial court.” McClaran v. Plastic Industries,
Inc., 97 F.3d 347, 357 n.8 (9th Cir. 1996). Rule 702
“contemplates a broad conception of expert qualifications.”
Thomas v. Newton Intern. Enterprises, 42 F.3d 1266, 1269 (9th
Cir. 1994). Under Rule 702, an expert may testify “[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.” Fed. R. Evid. 702. “A witness is qualified as an
expert by knowledge, skill, experience, training, or education.”
Id.; see also McDevitt v. Guenther, 522 F. Supp. 2d 1272, 1290-91
(D. Haw. 2007).
Here, Plaintiffs plan to call Dr. Ernsberger as an

5/

The Court held a Daubert hearing on the Government’s
Motion in Limine No. 1 on February 23, 2015. (Doc. No. 187.)
4

expert in the areas of nutrition and nonsurgical weight loss, and
Ernsberger states that he also plans to testify as to the issues
of bioethics and informed consent in preventative medicine.
(Gvt.’s MIL No. 1, Ex. 3 (Ernsberger Depo.) at 24-25.) Moreover,
Dr. Ernsberger’s Rule 26 Expert Report includes opinions
regarding the eligibility criteria, informed consent
requirements, and standard of care for bariatric surgery, and
Plaintiffs’ counsel stated during Ernsberger’s deposition that
his testimony would not be offered “strictly as an expert in the
field of nutrition.” (Id. at 45; see also Gvt.’s MIL No. 1, Ex. 2
(Rule 26 Report).) In their Opposition to the Government’s
motion, Plaintiffs assert that Dr. Ernsberger will provide
“information concerning the standard of care for obesity
management, grounded in the twin disciplines of science and
ethics.” (Pl.’s Opp’n to Gvt.’s MIL No. 1 at 2.) Thus, the Court
must determine whether Dr. Ernsberger is qualified as an expert
by knowledge, skill, experience, training, or education to
testify as to these matters. See Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137 (1999); Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579 (1993).
Dr. Ernsberger is currently an Associate Professor of
Nutrition, Pharmacology, and Neuroscience at Case Western Reserve
University School of Medicine, a position he has held since 1998.
(Gvt.’s MIL No. 1, Ex. 2 at 1.) He attended Northwestern

5

University School of Medicine, where he earned a Ph.D in
Neuroscience and Pharmacology in 1984. (Id.) He completed
postdoctoral training in Neurobiology at Cornell University
Medical College, where he also served as an Assistant Professor
of Neurobiology for several years. (Id.) Dr. Ernsberger is a
member in a number of professional societies, including the
American Society for Nutrition, the North American Association
for the Study of Obesity, and the International Society for
Molecular Nutrition. (Id.) He is also on the Board of Directors
of the Association for Size Diversity and Health. (Id.) In light
of Dr. Ernsberger’s education and professional experience, the
Court is satisfied that he is qualified to testify as an expert
in the areas of nutrition and the nutritional aspects of
treatments for obesity and obesity-related disorders.
As to his qualification to testify more generally
regarding obesity management, including nonsurgical therapies for
obesity and informed consent, the Court finds that Dr. Ernsberger
is likewise sufficiently qualified to provide expert testimony as
to these subjects. While Dr. Ernsberger is not a medical doctor
or a licensed surgeon, and does not have any clinical experience
performing bariatric surgery or otherwise caring for bariatric
surgery patients, (see Gvt.’s MIL No. 1, Ex. 3 (Ernsberger Depo.)
at 16-18, 92-94,) his testimony during the Daubert hearing
established that he has significant experience teaching,

6

studying, lecturing, and publishing on the topic of obesity
management, including the risks and benefits of surgical and
nonsurgical weight loss, and informed consent.
For example, Dr. Ernsberger stated that, in his
position as an Associate Professor of Nutrition at Case Western,
he teaches courses to medical students on a number of topics,
including nutritional diseases (covering, among other things,
complications associated with gastric bypass surgery) and
bioethics (covering, among other things, informed consent and
medical decision making). (Doc. No. 190 (2/23/15 Daubert Hearing
Trans.) at 11-13, 15-16.) In addition, Dr. Ernsberger has taught
elective courses on topics such as “controversies in obesity,”
and “obesity, from cells to society.” (Id. at 15-16.) Dr.
Ernsberger has also published numerous papers and given numerous
talks addressing obesity and obesity management. (See Id. at 1720; see also Gvt.’s MIL No. 1, Ex. 1 (Ernsberger CV) at 12-13,
22, 27-29, 34, 36.) In sum, based on Dr. Ernsberger’s CV and his
testimony during the Daubert hearing, the Court is satisfied that
Dr. Ernsberger is qualified to provide reliable expert testimony
as to obesity management, including the risks and benefits of
surgical and nonsurgical weight loss, and informed consent.6/

6/

The Government also appears to argue, albeit in a cursory
manner, that Dr. Ernsberger’s testimony as to the standard of
care is insufficiently reliable under Rule 702. Generally,
reliability addresses whether an expert’s testimony has “a
(continued...)
7

The Court therefore DENIES the Government’s Motion in
Limine No. 1, (Doc. No. 132,) insofar as the Court will allow Dr.
Ernsberger’s expert testimony on the topics covered in his Rule
26 expert report, including the topics of obesity management, the
risks and benefits of surgical and nonsurgical interventions, and
informed consent.
II.

Plaintiffs’ Motion in Limine No. 1
In their first motion in limine, Plaintiffs seek to

preclude all non-retained expert defense witnesses, including
Christina’s treating physicians and health care providers at
Tripler, from offering expert opinions regarding the applicable
standard of care. Plaintiffs assert that, to the extent these
witnesses will offer expert testimony, it must be excluded
because the Government failed to timely disclose them as expert
witnesses and provide written reports by them as required by Rule

6/

(...continued)
reliable basis in the knowledge and experience of the relevant
discipline.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
149 (1999) (citation and alterations omitted). At the Daubert
hearing, Dr. Ernsberger stated that his opinion was based upon,
among other things, his own academic experience, as well as a
review of relevant peer-reviewed publications, the NIH and ASMBS
guidelines regarding bariatric surgery, and the VA/DOD guidelines
regarding bariatric surgery. These sources, many relied upon by
the other experts in this case that the Court has already found
to be reliable, clearly demonstrate that Dr. Ernsberger’s
opinions are grounded in the “knowledge and experience of the
relevant discipline.” Id. Thus, to the extent the Government
seeks to exclude Dr. Ernsberger’s expert testimony on the basis
of reliability, the Court finds that it is sufficiently reliable
and DENIES the Government’s motion.
8

26 of the Federal Rules of Civil Procedure.
Rule 26 requires litigants to disclose the identities
of all expert witnesses. Fed. R. Civ. P. 26(a)(2)(A). This
disclosure requirement applies to all witnesses providing expert
testimony, including percipient witnesses with direct knowledge
of the facts of the case. See Durham v. Cnty. of Maui, Civ. No.
08–00342 JMS-RLP, 2011 WL 2532690, at *3–*4 (D. Haw. June 23,
2011) (citing Musser v. Gentiva Health Servs., 356 F.3d 751, 758
(7th Cir. 2004) (“even treating physicians and treating nurses
must be designated as experts if they are to provide expert
testimony”)); Motoyama v. Hawaii, Civ. No. 10-00464 ACK-RLP, 2012
WL 92150, at *2 (D. Haw. Jan. 10, 2012) (same). Non-retained
experts must also provide a written report disclosing (i) the
subject matter on which they will present evidence, and (ii) a
summary of the facts and opinions to which they are expected to
testify. Fed. R. Civ. P. 26(a)(2)(C).
Here, the following Tripler healthcare providers are
listed on the Government’s witness list as lay witnesses: Dr.
John Payne, Col. Robert Lim, Yvette Williams, Maj. Timothy
Plackett, Mark Verschell, Cpt. Xavier Pena, Dr. Nancy Smiley,
Maj. Benjamin Wunderlich, and Andrew Ching. (Doc. No. 134.) As
Plaintiffs point out, the Government has never identified any of
these people as potential expert witnesses, nor has it provided
any written reports by them. (See Doc. No. 84; Pl.’s MIL No. 1,

9

Exs. A-C.) The Government concedes as much, but asserts that no
such disclosures were required because these medical providers
will be called solely as percipient witnesses of the treatment
they rendered. (See generally Opp’n to Pl.’s MIL No. 1.)
First, as to the requirement that the Government
disclose the identities of all expert witnesses, the Government
clearly failed to do so in violation of Rule 26(a)(2)(A).
“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.” Durham,
2011 WL 2532690, at *3. The testimony of a treating physician is
not within the common knowledge of a lay person and comes,
instead, within the medical provider’s specialized knowledge.
Thus, these witnesses are expert witnesses under Federal Rule of
Evidence 702 and were therefore required to be disclosed pursuant
to Rule 26(a)(2)(A).7/ Because the Government did not disclose

7/

To the extent the Government is asserting (via its
witness list) that these medical providers may testify as lay
witnesses pursuant to Federal Rule of Evidence 701, such that the
Government need not disclose them as experts, the 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
(continued...)
10

Dr. John Payne, Col. Robert Lim, Yvette Williams, Maj. Timothy
Plackett, Mark Verschell, Cpt. Xavier Pena, Dr. Nancy Smiley,
Maj. Benjamin Wunderlich, or Andrew Ching as expert witnesses, it
has violated Rule 26(a)(2)(A). That is, because they are
non-retained percipient experts, the Government was required —
but failed — to disclose these witnesses as experts under Rule
26(a)(2)(A).
As to the expert report requirement, the parties do not
dispute that none of the Government’s non-retained percipient
expert witnesses has filed a Rule 26 expert report; however, both
acknowledge that treating physicians and medical providers are
exempt from the requirement of a written disclosure to the extent
that their opinions were formed during the course of treatment.
See Pl.’s MIL No. 1 at 7; Def.’s Opp’n to Pl.’s MIL No. 1 at 7;
see also Goodman v. Staples The Office Superstore, LLC, 644 F.3d
817, 826 (9th Cir. 2011). A treating physician may testify
without meeting the Rule 26 expert report requirements only to
the extent that the physician’s testimony is limited to his or
her personal observations, diagnosis, and treatment of the
plaintiff prior to the litigation. See Durham, 2011 WL 2532690 at

7/

(...continued)
and the corresponding disclosure requirements of the Civil and
Criminal Rules.” Id., Advisory Committee’s Note (2000). As
discussed above, testimony by a treating medical professional is
clearly based upon scientific, technical, or other specialized
knowledge.
11

*3; Soriano v. Wal-Mart Stores, Inc., Civ. No. 10-00023 SOM-LEK,
2010 WL 5464873, at *4 (D. Haw. Dec. 30, 2010). Thus, to the
extent the challenged experts’ testimony is limited to only their
opinions formed during the course of treatment, the Government’s
failure to comply with Rule 26(a)(2)(C)’s expert report
requirement is excused.
Having established the Government’s disclosure
obligations pursuant to Rule 26, the Court turns to the
appropriate sanction for its violation of those obligations. Rule
37(c)(1) of the Federal Rules of Civil Procedure 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). “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). District courts have “wide latitude” to issue sanctions
under Rule 37(c)(1). Id.
Here, the Court finds that the failure to disclose the
foregoing providers as experts was not substantially justified.
The Government had approximately a year and a half from the time
this case was initiated to the date its expert disclosures were
due. Moreover, the deadline to provide expert disclosures was

12

extended numerous times, and the identities of Christina’s
treating physicians and other medical personnel were known to the
Government at least since the commencement of the suit. The
Government therefore could easily have met its expert disclosure
deadline in the exercise of due diligence.
As to whether the Government’s violation of Rule 26 was
harmless, factors the Court may consider 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.”
Durham, 2011 WL 2532690 at *4. Here, the Court finds that the
Government’s failure to disclose the treating medical providers
as experts is harmless. Allowing Christina’s medical providers to
testify as to their personal observations and opinions formed
while treating her will not prejudice Plaintiffs, as Plaintiffs
have already had an opportunity to depose all of the providers,
and were likely aware that they would be witnesses at trial.
Indeed, an examination of the depositions reveals that Plaintiffs
questioned these witnesses extensively as to their opinions
formed during treatment, including as to the standard of care
they applied when treating Christina. Thus, while the Court finds
the Government’s failure to comply with Rule 26 in this case
entirely indefeasible, because it concludes that Plaintiffs will

13

suffer no prejudice, it will nevertheless allow the Tripler
medical providers to testify.
Insofar as the Court concludes that the Government’s
untimely disclosure of its percipient expert witnesses was
harmless, the Court instructed the Government to file with the
Court and provide to Plaintiffs a summary of the opinions to be
offered by Christina’s treating medical providers, as well as the
relevant portions of their deposition testimony. On February 24,
2015, the Government did so as to Dr. John Payne, Col. Robert
Lim, and Mark Verschell.8/ (Doc. No. 186.) Because these are the
only witnesses for whom the Government provided such disclosures,
the Court interpret’s the Government’s filing as indicating that
it will only be offering the percipient expert opinion testimony
of these three providers, and that the rest of Christina’s
providers will not be offering any opinion testimony at trial.

8/

The Court notes that on March 2, 2015, the Plaintiffs
filed their Objections Regarding the Proposed Expert Testimony of
Mark Verschell. (Doc. No. 196.) In the Objections, Plaintiffs
reiterate their objection to Mr. Verschell testifying as to the
standard of care for eligibility for bariatric surgery, the
standard of care for preoperative weight loss for potential
bariatric surgery patients, and the standard of care for
providing informed consent. Plaintiffs state that they do not
object to Dr. Verschell’s testimony as a percipient witness
regarding how the Tripler Bariatric Surgery Program operated and
Christina’s treatment in the program. (Id. at 5.) In light of the
Court’s ruling herein that Dr. Verschell may only provide his
percipient expert opinion testimony as to his treatment of
Christina and any opinions formed during the course of that
treatment, the Court believes that Plaintiffs’ March 2, 2015
Objection is moot. Nevertheless, the Court hereby clarifies that
Plaintiffs’ Objection will be sustained.
14

Thus, as to Dr. John Payne, Col. Robert Lim, and Mark
Verschell, the Court DENIES Plaintiffs’ motion insofar as it will
allow them provide expert opinion testimony at trial; however,
they may only testify as percipient witnesses about the basis for
their treatment, diagnosis, and prognosis of Christina, as well
as their opinions formed during the course of her treatment and
the cause of her injuries.9/ These witnesses may not, however,
give expert opinion testimony based on information obtained
outside of the course of their treatment of Christina. As to the
rest of Christina’s treating medical providers, the Court GRANTS
Plaintiffs’ motion insofar as they may not provide any opinion
testimony at trial. The Court therefore GRANTS IN PART AND DENIES
IN PART Plaintiffs’ Motion in Limine No. 1. (Doc. No. 136.)
III. Plaintiffs’ Motion in Limine No. 4
In their fourth motion in limine, Plaintiffs seek to
exclude the testimony of Mr. John Fountaine, an expert witness
the Government plans to call to testify about Christina Mettias’s
future costs. On the issue of damages, Plaintiffs intend to offer
at trial the testimony of, and life care plan prepared by, Kathy
P. Smith. The Government intends to offer the expert testimony of
Mr. Fountaine to critique the proposed life care plan prepared by

9/

See Soriano v. Wal-Mart Stores, Inc., Civ. No. LEK, 2010
WL 5464873 at *4 (D. Haw. 2010) (stating that treating physicians
who have not provided an expert report under Rule 26 may “testify
regarding causation if [the] testimony was based on knowledge
that [was] acquired during the course of treatment.”).
15

Ms. Smith, and to offer his own life care plan. Plaintiffs assert
that Mr. Fountaine’s testimony is both irrelevant and unreliable
and, thus, should be excluded pursuant to Rule 702.
First, as to the relevancy of Mr. Fountaine’s
testimony, under Daubert, an expert witness must “testify to (1)
scientific knowledge that (2) will assist the trier of fact to
understand or determine a fact at issue.” Id. at 592; see also
Kumho, 526 U.S. at 141 (citing Daubert, 509 U.S. at 597) (stating
that the trial judge must ensure that all scientific testimony is
both relevant and reliable). Here, Plaintiffs state that Mr.
Fountaine’s life care plan is based on the premise that ordinary
costs associated with a complication-free gastric bypass should
be excluded because Christina would have incurred those costs
regardless of the alleged negligence of the Government. (Pl.’s
MIL No. 4 at 3-4.) Plaintiffs assert, however, that these costs
should not be excluded from an applicable life care plan because
their claim is not that the surgery was performed in a negligent
manner, but that the surgery should never have been performed at
all. (Id.) Thus, Plaintiffs argue, Mr. Fountaine’s life care
plan, and any testimony based upon it, is not based upon the
facts of the instant case.
Simply because Plaintiffs disagree with Mr. Fountaine’s
assessment of the case, however, does not mean his opinions are
irrelevant. Mr. Fountaine holds a Master’s Degree in

16

Rehabilitation Counseling and has practiced continuously in that
field for more than thirty years. He is a Certified
Rehabilitation Counselor and a Certified Case Manager and has
substantial experience providing vocational assessments,
vocational rehabilitation plan development, life care planning,
and evaluations of service needs and injury impacts for people
with disabilities. (See Pl.’s Add’l Exs. (Doc. No. 178), Ex. E at
1.) In reaching the conclusions in his Rule 26 expert report, Mr.
Fountaine reviewed Christina’s medical records from Tripler, as
well as the medical records of numerous medical providers who
treated her post-surgery. (Id., Ex. D.) He also consulted with
Dr. Jones regarding Christina’s care needs post-surgery, and
reviewed Dr. Jones’s expert report and Kelly Smith’s life care
plan. (Id.) Mr. Foutaine’s testimony, based upon this
information, is therefore highly relevant to the issue of
Christina’s future costs.
As to the issue of reliability, Rule 702 provides that
a witness qualified as an expert may testify “in the form of an
opinion or otherwise, if (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.” See Fed. R. Evid. 702. In Daubert, the Supreme Court
proposed certain factors for evaluating the reliability of

17

scientific expert testimony: methodology, testing, peer review
and publication, error rates, and “acceptability” in the relevant
scientific community. See Daubert, 509 U.S. at 593-95. Plaintiffs
assert that Mr. Fountaine used an unreliable methodology in
preparing his life care plan. Specifically, Plaintiffs assert
that Mr. Fountaine has no expertise in the area of assessing the
needs of a person disabled by gastric bypass surgery, that he
conducted no independent research into the likely future needs of
Christina, and that he relied entirely on the opinions of Dr.
Daniel Jones, the Government’s expert witness. (Pl.’s MIL No. 4
at 4-5, 9-10.)
As to Mr. Fountaine’s claimed lack of expertise, Rule
702 “contemplates a broad conception of expert qualifications.”
Thomas v. Newton Intern. Enterprises, 42 F.3d 1266, 1269 (9th
Cir. 1994). Indeed, the Ninth Circuit has stated that “an expert
need not have official credentials in the relevant subject matter
to meet Rule 702’s requirements.” United States v. Smith, 520
F.3d 1097, 1105 (9th Cir. 2008) (citing United States v. Garcia,
7 F.3d 885, 889-90 (9th Cir.1993)). Rather, an expert’s lack of
specific experience in the subject matter at issue “goes to the
weight of his testimony, not to its admissibility.” U.S. v.
Little, 753 F.2d 1420, 1445 (9th Cir. 1984). Thus, the fact that
Mr. Fountaine does not have specific experience with assessing
the needs of a person disabled by gastric bypass surgery in

18

particular does not make him unqualified as an expert.
As discussed above, based upon an examination of Mr.
Fountaine’s curriculum vitae, he is clearly qualified to testify
as to the future life costs of a disabled person. Specifically,
Mr. Fountaine has been working in his current position as a
Rehabilitation Counselor and Case Manager at OSC Vocational
Systems for approximately twenty years, and his work there has
included life care planning and assessing the rehabilitation and
independent living needs of injured and disabled persons. (See
Pl.’s Supp. Exs., Ex. E at 1.) Thus, the Court is persuaded that
Mr. Fountaine is sufficiently qualified to provide reliable
testimony regarding Christina’s future costs.
As to Mr. Fountaine’s methodology, in his Rule 26
expert report, he states that he has followed the accepted
methodologies and standards of practice in his field by looking
to the medical providers to “define the nature and extent of
impairment” and then “translate those limitations and
recommendations to the world of work, independent living,
coordination of future medical and rehabilitation services and
the cost associated . . . .” (Pl.’s Supp. Exs., Ex. D at 2.) His
Rule 26 report reflects that he examined the medical evidence
before him and applied his own expertise in life planning to come
up with his analysis and opinions.
Despite Plaintiffs’ arguments to the contrary, Mr.

19

Fountaine’s reliance on Dr. Jones appears to have been
appropriate, in that he sought Dr. Jones’s input to determine
which services the medical community would deem medically
necessary given Christina’s condition. (See id.) As Mr. Fountaine
is not a medical doctor, it was appropriate for him to rely upon
one in formulating his recommendations. Indeed, as the Government
points out, Plaintiffs’ own life care planning expert also relied
upon “consultations with health care professionals” in
formulating her opinions. (See Gvt.’s Opp’n to Pl.’s MIL No. 4 at
2-3.) Thus, the Court is unpersuaded that Mr. Fountaine’s
methodology is unreliable.10/
The Court acknowledges that Mr. Fountaine’s proposed
life care plan and expert report are quite thin in comparison to
Ms. Smith’s lengthy and detailed submissions; however, any such
deficiencies go to the persuasiveness of Mr. Fountaine’s
testimony, rather than to his qualifications or the reliability
of his methodology. On a motion seeking to exclude expert
testimony, it is not for the Court to weigh evidence or make a

10/

Plaintiffs also appear to assert in their motion that the
Government failed to identify an expert economist to provide
testimony regarding the present value cost of the life care plan
designed by Mr. Fountaine and, as such, his testimony cannot be
used by the Court to assess Plaintiffs’ damages. The Court notes,
however, that the Government disclosed Laura Taylor, the
Government’s expert economist, on June 11, 2014. (Doc. No. 87.)
While this expert disclosure was technically five days late, the
Court finds no prejudice, as Plaintiffs have known the identity
of the Government’s expert economist for approximately eight
months.
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determination of persuasiveness as between conflicting expert
opinions. See Daubert, 509 U.S. at 596 (“Vigorous crossexamination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.”).
Rather, the Court’s role is simply to assess the relevance and
reliability of proposed testimony. As discussed above, “[e]xpert
opinion testimony is relevant if the knowledge underlying it has
a valid connection to the pertinent inquiry[, and] it is reliable
if the knowledge underlying it has a reliable basis in the
knowledge and experience of the relevant discipline.”
Sandoval-Mendoza, 472 F.3d at 654 (quoting Kumho Tire, 526 U.S.
at 149) (alterations omitted). Here, for the reasons discussed
above, the Court is satisfied that Mr. Fountaine meets this test.
Plaintiffs’ Motion in Limine No. 4, (Doc. No. 139,) is DENIED.
CONCLUSION
For the foregoing reasons, the Court DENIES the
Government’s Motion in Limine No. 1, (Doc. No. 132); GRANTS IN
PART AND DENIES IN PART Plaintiffs’ Motion in Limine No. 1, (Doc.
No. 136); and DENIES Plaintiffs’ Motion in Limine No. 4 (Doc. No.
139).
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, March 6, 2015

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________________________________
Alan C. Kay
Senior United States District Judge

Mettias v. United States, Civ. No. 12-00527 ACK KSC, Order Regarding Motions
in Limine.

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