Williamson v. USA
MEMORANDUM OPINION & ORDER: (1) GRANTING the Government's 79 MOTION for Clarification; granting to the extent that Dr. Jeng's testimony will be presented by his depo at trial, rather than live testimony; (2) that pla will be permitted to present summaries of evidence at trial; (3) that evidence shall be admitted or excluded as discussed herein. Signed by Judge Joseph M. Hood on 7/27/15.(KJR)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
GARY EDWARD WILLIAMSON
UNITED STATES OF AMERICA
Action No. 5:12-CV-334-JMH
MEMORANDUM ORDER AND OPINION
This matter is before the Court upon various pretrial motions.
Having reviewed the record and being sufficiently advised, the
Court will address each of the matters separately.
As an initial matter, the Court will address the Defendant’s
“motion for clarification, or in the alternative, objection to
Plaintiffs’ improper use of a deposition at trial,” [DE 79].
Plaintiff has responded, [DE 84], and clarifies that he intends to
present Dr. Clifford Jeng’s testimony by deposition at trial, and
not to have Dr. Jeng testify live, because Dr. Jeng is unavailable
pursuant to Federal Rule of Civil Procedure 32(a)(4)(B).
final pretrial conference, held July 22, 2015, Defendant reported
deposition at trial.
Accordingly, to the extent the government
has requested clarification, the motion will be granted.
Defendant’s proposed witnesses and exhibits.
objects to the Defendant’s intent to introduce the testimony of
Timothy Revenaugh, Enya Cannon, Captain Vincent Barber, and Major
In addition to objecting on relevancy
grounds, Plaintiff argues that the witnesses were not disclosed
pursuant to Federal Rule of Civil Procedure 26(a)(1) at any time
prior to Defendant filing its witness list. Accordingly, Plaintiff
argues, allowing these individuals to testify would result in
Federal Rule of Civil Procedure 26(a) imposes an ongoing duty
discoverable information regarding a case.
Rule 37(c)(1) provides
that, if a party fails to provide information or disclose the
identity of a witness as required by Rule 26, the party shall not
be allowed to use that information at trial, unless the failure
was substantially justified or harmless.
Absent these extenuating
“automatic and mandatory.” Dickenson v. Cardiac & Thoracic Surgery
of Eastern Tenn., 388 F.3d 976, 983 (6th Cir. 2004) (citation
The instant failure was not substantially justified, as
the Defendant has offered no explanation for its failure to
disclose the identity of these witnesses prior to the filing of
the witness list in its pretrial disclosures.
committee’s note to Rule 37(c) strongly suggests that ‘harmless’
involves an honest mistake on the part of a party coupled with
sufficient knowledge on the part of the other party.”
Davis, 317 F.3d 686, 692 (6th Cir. 2003) (internal quotation marks
and citation omitted).
There is no suggestion these circumstances
are present here. Accordingly, the testimony of Timothy Revenaugh,
Fitzwater will be excluded.
Plaintiff also objects on relevance grounds to all exhibits
included in Defendant’s exhibit list that are not part of the
parties’ Joint Exhibit List, with the exception of Defendant’s
Exhibit 8 (Performance Physical Therapy Records).
The Court will
examine each item in turn.
Plaintiff’s first challenge involves the introduction of
certain medical records from the VA Medical Center.
seeks to introduce records involving the following information:
urine drug screens undertaken at the VAMC; records of missed
appointments; records from a hernia repair in 2011; and records
from an appendectomy in 2011.
As far as the urine drug screens, as Defendant points out in
Plaintiff’s ability to bear weight on his injured foot without
experiencing the corresponding level of pain. Doctors are expected
to testify that pain is an important indicator in the care of a
patient with an injury to a weight-bearing bone.
this evidence is relevant and will be admitted.
Similarly, it is
appointments may affect a patient’s recovery. The record of missed
appointments from the VAMC will be admitted, as well.
Defendant contends that records from a hernia repair and an
appendectomy in 2011 are relevant because they demonstrate that
Plaintiff sought care from the VAMC in Lexington after the alleged
indication, however, that the same medical providers were involved
or that there is any link between those procedures and the instant
There could be any number of reasons that Plaintiff chose
to utilize the VA for his hernia repair and appendectomy.
Court fails to see any reason why his alleged decision to do so
has any bearing on this matter.
Evidence of those procedures will
be excluded as they are irrelevant.
Plaintiff’s next challenge is to the Defendant’s proposed
introduction of records from the Department of Labor.
argues that the challenged records relate entirely to collateral
collateral source rule.
Further, Plaintiff argues, such evidence
is not relevant in light of the Court’s partial summary judgment
Order entered June 15, 2015, determining that there will be an
offset for FECA and TRICARE benefits against any damages awarded
record for this Court to consider before entering its final ruling
herein and for the consideration by the Court of Appeals in its
review of that ruling.”
Alternatively, if not admitted into
evidence, Defendant requests that the testimony and exhibits be
placed into the record as an avowal of what the Department of Labor
records would reflect.
The Defendant has failed to persuade the
Court that this evidence is relevant after its decision of June
However, so that evidence can be preserved on the record in
case of an appeal, the government will be permitted to place the
exhibits into the record as an avowal of what the Department of
Labor records would reflect.
The government has withdrawn the following proposed exhibits:
records1 and “USPS records for Williamson”.
items will not be introduced as evidence.
The government has
agreed to withdraw records from the Kentucky National Guard with
the exception of Plaintiff’s application for retirement pay to the
While the government has withdrawn the USPS records from its exhibit list, it
preserves its intention to present the live testimony of CPT Vincent Barber and
Dr. Travis Sewalls, whose written statements are included in the USPS records.
physical condition at issue and the causes thereof.
As this is
relevant to the matters being considered, these limited portions
of the records will be admitted.
records from Kentucky Clinic South which allegedly reflect an
“isolated visit” to that clinic during which a physician speculates
that Plaintiff may be addicted to Tramadol.
Plaintiff argues that
this should be excluded because any probative value of the records
is outweighed by the danger of unfair prejudice to Plaintiff.
bench trials, however, unfair prejudice to the plaintiff is not a
See United States v. Hall, 202 F.3d 270 (6th Cir. 2000)
(table decision) (citing Schultz v. Butcher, 24 F.3d 626, 632 (4th
Because this evidence is relevant to Plaintiff’s
medical condition, it will be admitted.
Finally, Plaintiff has filed a notice of intent to use
Evidence 1006, [DE 71].
Defendant responded, objecting to the
introduction of such summaries as evidence.
indicating that the parties had conferred and reached an agreement,
at least to some extent, with respect to the use of summaries.
Plaintiff wishes to use two summaries at trial.
relates to a “timeline of medical care.”
Plaintiff does not wish
to introduce the timeline into evidence but, rather, intends to
use it as a demonstrative aid during trial to “help counsel and
Plaintiff indicates that the United States has no
objection to this use of the summary in this manner.
its use will be permitted to facilitate efficiency at trial.
the extent that the government has any objection to the specific
content of the summary, the parties should attempt to resolution
prior to trial.
Any remaining objections will be resolved at
Plaintiff also seeks to introduce a summary of approximately
39 pages of medical bills at trial.
Plaintiff contends that the
bills are highly itemized and include large amounts of information
and that the summary will be for the convenience of the Court and
the parties. It is the Court’s understanding, based on the record,
that the underlying medical bills are part of Plaintiff’s exhibit
list, to which Defendant has raised no objection.
Pretrial Conference Minutes, DE 78].
Accordingly, the summary,
based on undisputed medical bills, will be admitted, considered,
and given the appropriate weight.
Accordingly, IT IS ORDERED:
that the government’s motion for clarification, [DE 79],
presented by his deposition at trial, rather than live testimony;
summaries of evidence at trial, as discussed in this opinion; and
that evidence shall be admitted or excluded as discussed
This the 27th day of July, 2015.
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