Reyna v. Lowe's HIW, Inc. et al

Filing 124

MEMORANDUM DECISION AND ORDER on Defendant's Motion in Limine. Defendant's Motion in Limine (Dkt. 82 ) is hereby GRANTED IN PART AND DENIED IN PART. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DUSTIE REYNA,
Plaintiff,
v.
LOWE’S HIW, INC. and DOES 1-10,
Defendants.

Case No.: 1:13-cv-00111-REB
MEMORANDUM DECISION
AND ORDER ON DEFENDANT’S
MOTION IN LIMINE
(Docket No. 82)

Now pending before the Court is Motion in Limine as to Plaintiff’s Damages and
Other Evidence (Docket No. 82). In this Motion, Defendant requests that the Court enter
an order precluding Plaintiff Dustie Reyna from introducing any evidence or argument as
to any medical conditions or symptoms she experienced, or as to any medical treatment
she sought, with the exception of left leg pain and bruising she experienced after the
accident, and difficulty walking, sitting, or standing in the immediate post-accident
period. (Dkt. 82, p. 2). Defendant also requests an order barring Plaintiff from introducing
any evidence or argument regarding mental health, psychological or psychiatric
conditions she may contend are causally related to her trip and fall accident. (Id. p. 3).
Having reviewed the briefing and other submissions of the parties on this matter, and
having entertained oral argument on June 8, 2016, the Court now issues the following
order.
DECISION AND ORDER ON DEFENDANT’S MOTION IN LIMINE - 1

BACKGROUND
This case arises from an accident that occurred in the parking lot of Lowe’s Home
Improvement Warehouse. Plaintiff alleges that she was pushing a shopping cart loaded
with two 80 pound bags of mortar across the parking lot. According to Plaintiff, her cart
hit a crack in the parking lot, which caused the cart to tip forward, pulling her over the
handles with it.
The day after the accident Plaintiff saw a primary care provider who diagnosed a
thigh contusion. Plaintiff has previously testified, however, that in addition to this
contusion, she also experienced neck pain, back pain, headaches, and abdominal pain
and/or an abdominal contusion within days after the accident. Plaintiff has not disclosed
in timely fashion any expert witnesses or medical providers who can testify about issues
of medical causation and damages, and as a result, is limited to layperson testimony to
prove the liability and damages elements of her case.
The issue of whether lay opinion testimony would be permitted for such purposes
was raised in Defendant’s Motion for Summary Judgment. In ruling on that motion, the
Court noted that Rule 701 did not prohibit all lay opinion testimony on issues of medical
causation. In the context of the motion, it was not necessary nor appropriate for the Court
to attempt a delineation of the precise parameters of lay opinion testimony that would be
permitted. Now, however, in the context of dealing with pretrial limine motions, it is
appropriate for the Court to do so, and this Decision and Order will set out such
boundaries.
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ANALYSIS
Though expert testimony is commonly necessary to establish the connection
between accident and injury, it is not an absolute requirement in each and every instance.
Rule 701 of the Federal Rules of Evidence provides:
If the witness is not testifying as an expert, the witness' testimony in the
form of opinions or inferences is limited to those opinions or inferences
which are (a) rationally based on the perception of the witness and (b)
helpful to a clear understanding of the witness' testimony or the
determination of a fact in issue, and (c) not based on scientific, technical, or
other specialized knowledge within the scope of Rule 702.
In a persuasive interpretation of a similar state court rule, the Idaho Court of Appeals held
that expert testimony is only necessary where the issue of causation is “outside the usual
and ordinary experience of the average person.” Dodge-Farrar v. American Cleaning
Servs., 54 P.3d 954, 958 (Id. Ct. App. 2002). According to the court in Dodge-Farrar, the
fact of an injury, and the reason it came about, may not require expert testimony where
the claimed injuries “are of a common nature and arise from a readily identifiable cause,”
in which case, “there is no need for the injured party to produce expert testimony.” Id.
This holding, which was quoted extensively in this Court’s Memorandum Decision on the
Motion for Summary Judgment, bears repeating here:
We conclude that a layperson may testify to the causation of medical
symptoms or of injuries where such causation is within the usual and
ordinary experience of the average person, and also satisfies I.R.E. 701. For
example, if a person fell down some steps, landing on a knee, and
immediately thereafter felt pain in the knee, saw an open wound on the
knee, and within minutes or hours observed that the knee was swelling, that
lay person could provide reliable testimony that the pain, wound and
swelling were caused by the fall. A layperson could also testify that medical
DECISION AND ORDER ON DEFENDANT’S MOTION IN LIMINE - 3

care obtained to treat those immediate symptoms was causally related to the
fall. As the claimed symptoms and treatment become more separated in
time from the fall, however, the causal relationship becomes more doubtful
and tenuous, and expert testimony becomes necessary to establish
causation. As time passes, the possibility that prior or subsequent injuries or
unrelated disease processes may play a causal role makes lay opinion
unreliable and inadequate to sustain a claim. Accordingly, lay testimony on
causation must be limited to the symptoms which are proximate enough to
the injury that lay opinion can be deemed competent and reliable. Just
where within the time continuum the line must be drawn to exclude lay
testimony is necessarily a decision committed to the trial court's discretion
based upon the facts and circumstances of the particular case. In addition,
even as to symptoms that appear immediately after the traumatic event, lay
opinions may be foreclosed if the causation question is not a matter within
the common knowledge and experience of the average person. Thus, in the
foregoing hypothetical, a layperson might be precluded from testifying that
a skin rash which appeared on her arms immediately after the fall was
causally related to the fall.
Id. at 957-59.
Defendant argues that Plaintiff must be precluded from introducing any testimony
or evidence regarding virtually all of the medical conditions that are at issue in this case,
with the exception of left leg pain and bruising she experienced after the accident, and
any difficulty with walking, sitting, or standing that may have been related to that bruise.
The Court agrees that evidence as to these discrete symptoms is admissible, and within
the realm of appropriate lay testimony under Dodge-Farrar and federal cases discussing
the scope of Rule 701. However, the Court does not agree that Plaintiff’s lay opinion
testimony must be limited strictly to only these conditions.
In addition to the injury to her leg and associated difficulty walking, the record
also indicates that Plaintiff experienced an array of other symptoms during the days and

DECISION AND ORDER ON DEFENDANT’S MOTION IN LIMINE - 4

weeks following the accident. At her deposition, which was submitted in connection with
Defendant’s Motion for Summary Judgment, Plaintiff testified regarding neck pain, knee
pain, back pain (which she described as a feeling that her lower back had been
“shattered”), and abdominal pain and/or contusions in the immediate post-accident
period. (Dkt. 52-10 at ECF pages 32-44). Her opposition to the Motion in Limine also
asserts that she experienced a severe stiff neck, knee pain, a distended abdomen, and
severe headaches within days after the accident. (Dkt. 84 at p. 2). It is not implausible that
some or all of these conditions might have resulted from the accident, and they are not so
unusual, or so far removed from the average person’s experience, that they depend
absolutely on expert testimony to make out a causal link. Such symptoms could,
potentially at least, all be consistent with a general feeling of being “banged up” after an
accident such as the one Plaintiff experienced. In that sense, these types of symptoms
(assuming that there is also testimony that they developed within the immediate postaccident period) are within the realm of appropriate lay opinion testimony.
Defendant points out that the records from Plaintiff’s first medical visits after the
accident reflect only that she was experiencing leg pain or thigh pain, and do not reflect
that she was also seeking treatment for headaches, back pain, knee pain, neck pain, and
abdominal swelling and/or contusions. The fact that Plaintiff’s assertions do not all find
corroboration in the medical records may be an entirely valid basis for cross-examination,
but does not go to the question of whether her testimony about her symptoms is
admissible in the first place. The Court is also aware that some of the symptoms that
DECISION AND ORDER ON DEFENDANT’S MOTION IN LIMINE - 5

Plaintiff claims to have experienced immediately after the accident may in fact have been
related to pre-existing conditions. For example, medical records that were submitted in
connection with the Motion for Summary Judgment indicate that Plaintiff had a history of
irritable bowel syndrome, diverticulitis, and other stomach-related issues going back to
2009. (Dkt. 52-6 at p. 46 and 52-7 at 47). The record contains similar indication that she
experienced neck pain, back pain and headaches prior to the 2010 accident at Lowe’s.
These issues too are appropriate areas for cross-examination and do not constitute a basis
for absolutely barring Plaintiff from testifying as to what she experienced after the
accident.
However, as emphasized by the court in Dodge-Farrar, the more remote in time
from an accident, the less likely it becomes that issues of causation are within the realm of
experience of the average layperson. That general observation is particularly important to
this case, because a number of the symptoms that Plaintiff purports to link to the accident
are so idiosyncratic in nature that they cannot satisfy the requirements of Rule 701. To
begin, any layperson testimony that the accident caused or contributed to any
psychological or mental health condition, on the facts of this case, is much too attenuated
to permit. Plaintiff is precluded from testifying or presenting evidence as to those claims,
and from doing so by means of any other lay witness. Likewise, Plaintiff is precluded
from testifying or presenting evidence as to her apparent belief that cortisone injections
she received to treat her thigh pain or back pain were contaminated, and that she suffered
additional damage because of these contaminated injections. Similarly, testimony or
DECISION AND ORDER ON DEFENDANT’S MOTION IN LIMINE - 6

evidence relating to Plaintiff’s “Synopsis of Current Medical Status,” (Dkt. 72-1), which
she submitted in the fall of fall of 2015, (more than five years after the accident), also
falls into the category of testimony that would not be permitted under Rule 701. In this
document, Plaintiff indicated that she continued to experience significant pain in her
thoracic spine at the T-9 level, together with symptoms of fever, headaches, nausea, a foul
taste in her mouth, pneumonia, high levels of “C-Reactive Protein indicative of a bacterial
infection, a hip fracture, and also that she underwent an MRI that indicated the presence
of “micro-metallic fragments,” in the right knee. Testimony of this nature–i.e. an apparent
attempt to link a wide variety of symptoms with an accident that occurred years prior–is
precisely the kind of testimony that Rule 701 does not permit. Plaintiff is ordered not to
attempt to introduce testimony or evidence or any nature concerning those subjects.
In defining the borders of permissible lay opinion causation testimony, the Court
must balance two competing concerns. On the one hand, Plaintiff is entitled to testify as
to her post accident symptoms and injuries that are potentially within the realm of the
average layperson’s experience. Defendant’s request to limit Plaintiff to discussing only
her leg or thigh pain is simply too narrow in that regard. On the other hand, on the record
of this case and without properly disclosed expert testimony upon such subjects, the Court
must preclude non-expert testimony about medical causation, which is outside the realm
of the “usual and ordinary experience of the average person” from reaching the jury.
Dodge-Farrar v. American Cleaning Servs., 54 P.3d 954, 958 (Id. Ct. App. 2002).
In balancing such competing concerns, the Court will permit Plaintiff to testify to
DECISION AND ORDER ON DEFENDANT’S MOTION IN LIMINE - 7

any symptom or condition that she experienced during the immediate post accident period
that she believes was actually caused by the accident, so long as that belief is, “rationally
based on [her] perception,” and not dependent upon scientific, technical, or other
specialized knowledge, as required by Rule 701. Consistent with the foregoing
discussion, the symptoms about which Renya may testify may include not just the leg or
thigh pain that is identified in the medical records, but also her claimed abdominal pain/or
contusion, her feeling that her back had “shattered,” headaches, knee pain and neck pain.
Ms. Reyna may testify about her symptoms and/or medical causation for the period of
two months after the accident. She may not testify, nor proffer other evidence, about any
condition other than the items referenced above for any period after that cut-off point,
other than as it directly pertain to any continuing specific problems with those specific
conditions that developed in the immediate post-accident period.
These boundary lines are drawn by the Court in the exercise of its discretion, with
full consideration of the competing interests at play. They represent the most sensible
approach to allowing Plaintiff a fair opportunity to present layperson evidence of the
nature of her claims, while at the same time drawing a line beyond which such evidence
cannot travel. While such boundaries are no doubt not the boundaries the parties might
have drawn, given the unusual circumstances of this case they are lines drawn as carefully
as the Court concludes is reasonable. Without such an approach, the trial could easily
devolve into a continual sidebar discussion about what evidence could and could not be
admitted, a scenario that would lead to confusion and frustration for all concerned.
DECISION AND ORDER ON DEFENDANT’S MOTION IN LIMINE - 8

Nevertheless, the Court is concerned that some of Plaintiff’s arguably
idiosyncratic views about medical causation may threaten to place before the jury matters
that are wholly unsupported by the evidence, thereby threatening the integrity of the trial.
To address these concerns, the Court will take the additional step of ruling that Plaintiff
will not be permitted to testify that contaminated cortisone injections led to additional
medical damages. Second, although the Court has ruled that Plaintiff will be permitted to
testify about a number of post-accident symptoms and conditions during the two months
post-accident, defense counsel will still be free to raise Rule 701 objections at trial.
However, consistent with the discussion above, defense counsel is also reminded that
cross-examination is the appropriate way of addressing issues such as the lack of
corroboration in the medical record and possible pre-existing conditions. The Court’s
concerns over an orderly trial run both directions.
ORDER
1.

Defendant’s Motion in Limine (Dkt. 82) is hereby GRANTED IN PART
AND DENIED IN PART.

2.

Plaintiff will be permitted to testify regarding any symptom or condition
that she experienced during the two month period immediately after the
accident that she believes was caused by the accident, so long as that
opinion is rationally based on her perception, is not dependent on scientific,
technical, or other specialized knowledge, and is within the usual and
ordinary experience of the average person, as required by Rule 701, subject

DECISION AND ORDER ON DEFENDANT’S MOTION IN LIMINE - 9

to the particular parameters set out in this Memorandum Decision and
Order. Evidence regarding these symptoms will be limited to a period of
two months following the accident, unless the evidence is directly
connected to a specific condition or symptom that manifested itself within
the two month period. Testimony about other medical conditions and
symptoms and about treatment that falls outside this two month period is
prohibited.
3.

Further, because Plaintiff did not disclose her treating doctors as expert
witnesses, she will not be permitted to testify as to what these doctors may
have told her regarding issues of medical causation.

3.

Plaintiff is prohibited from presenting any testimony or evidence regarding
her allegations that contaminated cortisone injections caused or contributed
to her damages.

4.

Finally, Plaintiff is prohibited from presenting any testimony or evidence
that any mental health, psychiatric, or psychological issues she has
experienced were caused by the accident.

IT IS SO ORDERED.
DATED: June 20, 2016

Honorable Ronald E. Bush
Chief U. S. Magistrate Judge
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