Garriott et al v. Kootenai Hospital District et al
ORDER granting in part and denying in part 102 Plaintiffs' Motion in Limine; granting in part and denying in part 104 Defendants' Motion in Limine. The Court reserves the opportunity to rule on appropriate evidentiary objections at trial, which may encompass the issues presented by the parties' motions. Signed by Judge Candy W. Dale. (klw)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JUSTIN T. GARRIOTT and SUSAN
GARRIOTT, husband and wife;
JASPYN GARRIOTT, JUSTIN
GARRIOTT JR., JMG1, a minor, and
JMG2, a minor,
Case No. 2:16-cv-00081-CWD
MEMORANDUM DECISION AND
WESTERN MEDICAL ASSOCIATES,
PLLC, an Idaho corporation; PAUL
PASCHALL, MD; ERIC CHUN, MD,
Before the Court are the parties’ respective motions in limine. The Court
conducted a hearing on the motions on October 2, 2017, at which the parties appeared
and presented oral argument. Consistent with the Court’s statements on the record during
the hearing, the Court issues this Memorandum Decision and Order on the two motions.
The Court’s ruling herein is preliminary and may be subject to revision upon
consideration of particular evidentiary issues presented within the context of trial. An
eight-day jury trial is set to begin on October 30, 2017.
MEMORANDUM DECISION AND ORDER - 1
Plaintiffs seek to exclude the following evidence from trial: (1) evidence of
collateral source payments; (2) evidence of Plaintiffs’ bankruptcy filing; (3) extrinsic
statements of Plaintiffs’ expert, Dr. Richard Cummins; and (4) the testimony of
Defendants’ expert, Dr. Rabih Darouiche. Defendants seek to limit the scope of
testimony of Justin Garriott’s treating physicians pursuant to Fed. Rule Civ. P.
26(a)(2)(C). The Court will discuss each evidentiary issue below.
Plaintiffs’ Motion in Limine
Collateral Source Payments
Plaintiffs assert that, pursuant to Idaho Code § 6-1606 and the collateral source
rule, it is not appropriate for Defendants to present any collateral source evidence to the
jury. This includes benefits related to health insurance, social security, and disability.
Idaho Code § 6-1606 prohibits double recoveries from collateral sources in any
action for personal injury. The statute provides that judgment may be entered “only for
damages which exceed amounts received by the claimant from collateral sources as
compensation for the personal injury…. For the purposes of this section, collateral
sources shall not include benefits paid under federal programs which by law must seek
subrogation…and benefits paid which are recoverable under subrogation rights created
under Idaho law or by contract.”
Defendants did not contest this argument, and confirmed the same during the
hearing. Accordingly, the Court will GRANT the motion with respect to collateral source
MEMORANDUM DECISION AND ORDER - 2
evidence, reserving application of Idaho Code § 6-1606 to post trial proceedings
regarding damages, if appropriate.
Plaintiffs’ 1998 Bankruptcy
During her deposition, Susan Garriott acknowledged that in 1998 she and Justin
filed bankruptcy as a result of “bad financial decisions.” Plaintiffs argue that, although
the evidence is perhaps relevant under Fed. R. Evid. 401, under Fed. R. Evid. 403, this
evidence should be excluded because its probative value is outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.
Defendants did not contest this argument, and confirmed the same during the
hearing. Accordingly, the Court will GRANT the motion with regard to evidence of
Plaintiffs’ bankruptcy filing.
Extrinsic Statement of Plaintiffs’ Expert Dr. Cummins
In 2010, Plaintiffs’ expert Richard Cummins, M.D., gave a deposition in a medical
malpractice action during which the following exchange of testimony occurred:
Q. Would it be fair to say that perhaps as much as 80 to 90
percent of the cases you’ve done in the last 20 years have
been on the plaintiff’s side?
A. I would say right off the bat, I’m a plaintiff whore
probably 80 percent. That’s of cases that I review, and that’s
just because that’s where the action is at the start. And the
defense seems to not come to play until a lot of stuff is sorted
Q. Did you use the word plaintiffs’ whore?
A. I did.
Q. That’s what I thought you said.
A. I mean, that seems to be the direction this line of
questioning always heads towards.
MEMORANDUM DECISION AND ORDER - 3
Plaintiffs assert that, while the existence of bias or prejudice of experts is proper
upon cross-examination, the Court has discretion to tailor and limit extrinsic evidence of
bias impeachment material. See U.S. v. Preciado-Gomez, 529 F.2d 935, 942 (9th Cir.
1976); S.E.C. v. Treadway, 438 F. Supp. 2d 218, 221—22 (S.D.N.Y. 2006) (quoting U.S.
v. Weiss, 930 F.2d 185, 197 (2d Cir. 1991) (“Exclu[sion] did not harm the policy
encouraging the admission of evidence related to bias because the witness admitted to the
main circumstances from which any bias supposedly arose”); see also MCCORMICK ON
EVIDENCE § 40, at 88 (3d ed. 1984); accord U.S. v. Smith, 196 F.3d 1034, 1038 (9th Cir.
1999) (holding bias had been established from witness’s admissions and the probative
value of additional extrinsic evidence was substantially outweighed by the danger of
confusion of the issues, the needless presentation of cumulative evidence, and the danger
of misleading the jury).
Plaintiffs argue Defendants can adequately explore Dr. Cummins’ bias by
referencing his list of prior testimony and the frequency with which he has testified on
behalf of plaintiffs. Plaintiffs admit that the testimony will reveal Dr. Cummins more
frequently testifies on behalf of plaintiffs in medical malpractice cases than on behalf of
Defendants argue they are entitled to elicit the phrase, “plaintiff’s whore,” from
Dr. Cummins. Defendants contend the imagery behind the word “whore” is more
Plaintiffs’ counsel indicated the ratio is approximately 80/20.
MEMORANDUM DECISION AND ORDER - 4
straightforward, and easily understood by a layperson versus the abstract reasoning the
average individual would need to engage in to deduce the same from testimony about the
frequency Dr. Cummins testifies on behalf of plaintiffs. Additionally, Defendants argue
the term “whore” illustrates Dr. Cummins’ own perception of himself in a way that bland
cross-examination about his prior testimony would not.
The Court will not allow use of the phrase “plaintiff’s whore” in cross
examination (or, for that matter, in direct examination) as it diminishes respect for the
legal process as a whole. Consistent with Fed. R. Evid. 403 and Dist. Idaho Loc. Civ. R.
83.8, the Court considers the prejudicial value to outweigh its probative value. There are
other methods the defense may use to demonstrate Dr. Cummins’ potential bias favoring
plaintiffs, and other ways to describe Dr. Cummins’ perception of himself without use of
the word “whore.” Should Dr. Cummins open the door, however, the Court will require
an offer of proof and permission to elicit the testimony. The motion will be conditionally
granted at this time.
Expert Testimony of Rabih Darouiche, MD
Plaintiffs argue Defendants’ expert, Dr. Darouiche, should be prevented from
testifying because Defendants did not comply with Fed. Rule Civ. P. 26(a)(2)(B)(v), 2
which requires the expert to “submit a list of all other cases in which, during the previous
4 years, the witness testified as an expert at trial or by deposition” as part of his or her
written report. Plaintiffs contend exclusion is proper pursuant to Fed. Rule Civ. P. 37(c),
Plaintiffs mistakenly cite Idaho R. Civ. P. 26(a)(2)(B)(v), but they also cite the federal rule.
MEMORANDUM DECISION AND ORDER - 5
which states that, if a party fails to provide information required by Rule 26(a), the party
is not allowed to use that witness to supply evidence at trial, “unless the failure was
substantially justified or is harmless.”
Defendants admit Dr. Darouiche’s report failed to comply with this subsection of
Rule 26, and offer some justification. They explain Dr. Darouiche maintains a list of
active cases, but not a list of all cases from the prior four years. Defendants conveyed this
information to Plaintiffs, and state Plaintiffs did not inquire further, or take Dr.
Darouiche’s deposition. Once Defendants received the motion in limine, they contacted
Dr. Darouiche to obtain an updated case list. Apparently, Dr. Darouiche had not
previously been challenged for this oversight. He produced an updated case list.
Defendants argue also that the failure was substantially justified or harmless, and
Plaintiffs have not established the contrary. It is Defendants’ burden to establish the late
disclosure was substantially justified or harmless. Bannion v. U.S., 2006 WL 4524339 at
*4 (D. Idaho Dec. 18, 2006).
The Court has considered the case law cited by the parties in their briefs. Based
upon the cases cited by the parties, it does not appear the failure to make the requisite
disclosure, standing alone, justifies exclusion of the expert’s testimony. See, e.g., Pineda
v. City and County of San Francisco, 280 F.R.D. 517, 520 (N.D. Cal. 2012) (precluding
expert from testifying when party belatedly disclosed expert report that also did not
contain list of cases); Jennings v. Thompson, 792 F.Supp.2d 1, 5-6 (D.C. 2011) (expert,
who was previously precluded from testifying for the same behavior, was precluded from
testifying when the report failed to disclose the list of prior cases per Rule
MEMORANDUM DECISION AND ORDER - 6
26(a)(2)(B)(v)); Tyus v. Wendy’s of Las Vegas, Inc., 2017 WL 3026403 at *6 (D. Nev.
July 17, 2017) (declining to exclude the party’s expert on the sole ground of failure to
comply with Fed. Rule Civ. P. 26(a)(2)(B)(v), and allowing supplementation of the
missing information); Coleman v. Dydula, 190 F.R.D. 316 (W.D.N.Y. 1999) (allowing
one last opportunity to amend the expert report to provide a listing of all cases in which
the expert had testified during the past four years).
Dr. Darouiche hails from Houston, Texas, and is one of Defendants’ causation
experts. His updated list of cases identifies his previous cases by name only, and does not
provide information such as whether his testimony was for plaintiff or defendant, the
attorneys involved, or the jurisdiction of the case. Defendants are therefore required to
supplement Dr. Darouiche’s case list, and provide the supplemented list to Plaintiffs by
October 13, 2017. The matter is therefore reserved for ruling.
Defendants’ Motion in Limine
Defendants’ motion seeks to preclude the testimony of the following individuals:
Taylor Reichel, M.D.; Benjamin Perschau, M.D.; Bret Dirks, M.D.; Bradley Lykins,
software analyst; Matthew Kreps, M.D.; Mark Dalton, D.O.; Jennifer Neeley, Director of
Kootenai Outpatient Imaging; Cynthia Hathaway, radiology technologist; and an
individual Plaintiffs identified as an Unnamed Employee of Kootenai Health.
MEMORANDUM DECISION AND ORDER - 7
At the hearing, the parties clarified their respective positions, and focused solely
upon the permissible scope of the treating providers’ testimony --- that of Drs. Reichel,
Perschau, Dirks, and Kreps. 3
Fed. Rule Civ. P. 26(a)(2)(C) is applicable to non-retained experts---those who do
not provide a written report. Rule 26(a)(2)(C) does require disclosure of the facts and
opinions to which a non-retained expert is expected to testify under Fed. R. Evid. 702,
703, or 705; and a summary of the facts and opinions to which the witness is expected to
testify. Adequate disclosures are critical because, “[i]f a party fails to provide information
or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at a hearing, or at trial, unless the
failure was substantially justified or harmless.” Sabo v. Fiskars Brands, Inc., No. 2:12CV-00503-EJL, 2015 WL 12750276, at *5 (D. Idaho Dec. 4, 2015) (quoting Fed. R. Civ.
The Advisory Committee Notes to the 1993 amendments to Rule 26 state that “[a]
treating physician, for example, can be deposed or called to testify at trial without any
requirement for a written report” on the ground that he is not “retained or specially
employed to provide such testimony in the case.” Muffley v. Gem Cty., No. CV-05-466-SBLW, 2007 WL 2071728, at *4 (D. Idaho July 17, 2007), decision clarified, No. CV05-
Initially, Defendants raised the issue of timely disclosure, but withdrew all timeliness objections
in their reply brief (Dkt. 109) and during the hearing. Plaintiffs clarified they do not intend to call Cynthia
Hathaway or Dr. Dalton. And the parties agreed that Jennifer Neeley (identified as the previously
“unnamed employee”) and Bradley Lykins are qualified to testify pursuant to Fed. R. Evid. 701 and 902
to authenticate records they prepared.
MEMORANDUM DECISION AND ORDER - 8
466S-BLW, 2008 WL 110970 (D. Idaho Jan. 8, 2008). The Notes explain that Rule 26 is
inapplicable to the “expert whose information was not acquired in preparation for trial
but rather because he was an actor or viewer with respect to transactions or occurrences
that are part of the subject matter of the lawsuit. Such an expert would be treated as an
ordinary witness.” Id.
A treating physician may testify regarding diagnosis, treatment, causation, and
prognosis so long as that testimony is “related to the care and treatment of the patient.”
Id. (quoting Lamere v. New York State Office for the Aging, 223 F.R.D. 85, 89 (N.D.N.Y.
2004)). Two categories of this testimony require close scrutiny, one prospective, the other
retrospective. Id. The treating physician's testimony will often reach back in time to
examine causation, and may also reach forward to provide a prognosis. Id. The party
tendering the testimony must show how the physician's testimony of causation and
prognosis relates to treatment. Id. “A treating physician is only exempt from Rule
26(a)(2)(B)'s written report requirement to the extent that his opinions were formed
during the course of treatment.” Goodman v. Staples The Office Superstore, LLC, 644
F.3d 817, 826 (9th Cir. 2011).
Defendants argue Plaintiffs are attempting to use the witnesses to testify beyond
the permissible scope of a percipient witness, which would require a written expert
report. They cite to the anticipated testimony of Dr. Dirks, who Plaintiffs state may
testify about his “experience treating patients diagnosed with a spinal epidural abscess.”
Other than the one statement about Dr. Dirks, which arguably ventures beyond his care
and treatment of Justin Garriott, it appears the summary descriptions indicate all of the
MEMORANDUM DECISION AND ORDER - 9
treating providers will testify within the scope contemplated by Rule 26(a)(2)(C) and the
controlling case law. Dr. Dirks will not be permitted to testify about his care and
treatment of other patients with spinal epidural abscess, other than perhaps his general
familiarity with the condition and its presenting symptoms.
The Court declines Defendants’ request to exclude these witnesses. The scope of
their purported testimony was well known to Defendants, and as non-retained experts, no
expert witness report was required. The treating physicians, as percipient witnesses, can
testify regarding the diagnosis, treatment, causation, and prognosis of Justin Garriott, and
testify about their opinions, provided the opinions were formed during the course of
treatment. However, to the extent Plaintiffs may attempt to elicit testimony from the
physicians that strays beyond the scope of their course of treatment, and delves into
opinions developed at a later time or upon a hypothetical set of facts, the Court will
provisionally grant the motion in that regard. Such would be inadmissible opinion
testimony, given a Rule 26(a)(2)(B) report was required.
MEMORANDUM DECISION AND ORDER - 10
NOW THEREFORE IT IS HEREBY ORDERED:
Plaintiffs’ Motion in Limine (Dkt. 102) be GRANTED IN PART AND
DENIED IN PART, consistent with the Court’s explanation herein.
Defendants’ Motion in Limine (Dkt. 104) be GRANTED IN PART AND
DENIED IN PART, consistent with the Court’s explanation herein.
The Court reserves the opportunity to rule on appropriate evidentiary
objections at trial, which may encompass the issues presented by the
DATED: October 4, 2017
Honorable Candy W. Dale
United States Magistrate Judge
MEMORANDUM DECISION AND ORDER - 11
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