Owens v. USA
MEMORANDUM OPINION & ORDER: (1) Defendant's Motion in Limine to Exclude Testimony of Carol White 27 is GRANTED; (2) Carol White's testimony related to expense of CNA care, RN care, psychology, psychiatry, medical appointments, knee repla cement, vehicle cost, and prosthetics is excluded; and (3) Defendant's Motion in Limine or, in the Alternative, Motion for Leave to Supplement Expert Disclosure 45 is DENIED without prejudice to renewal at trial of objections to rebuttal testimony of Paul Collier, M.D. Signed by Judge Joseph M. Hood on 8/31/2017.(STC)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
EDITH JOYCE OWENS,
UNITED STATES OF AMERICA,
Civil Case No.
MEMORANDUM OPINION & ORDER
This matter is before the Court upon two motions addressing
the evidence to be presented at the bench trial in this matter.
Defendant has filed a Motion in Limine to Exclude the Testimony
of Carol White [DE 27], a certified nurse life care planner,
with respect to alleged damages.
[DE 28], stating her objections.
Plaintiff has filed a Response
The United States has also
filed a Motion in Limine or, in the Alternative, Motion for
Leave to Supplement Expert Disclosure [DE 45] arguing that the
Court should limit the scope of the testimony of Plaintiff’s
filed a Response [DE 46], and Defendant has filed a Reply [DE
47] in further support of its motion.
The Court addresses each
motion in turn.
With respect to opinion witnesses, the trial court acts as
a gatekeeper and must exclude opinion testimony that is not
relevant or reliable. Daubert v. Merrell Dow Pharmaceuticals,
function is applicable to determine admissibility of all opinion
testimony, not simply scientific opinions).
Federal Rule of
Evidence 702(b) provides that “[a] witness who is qualified as
education may testify in the form of an opinion or otherwise if.
. .the testimony is based on sufficient facts or data[.]”
disputes her qualifications to offer opinion testimony in the
field of life care planning.
Rather, Defendant argues that the
unsupported by sufficient facts or data and should, thus, be
For the reasons which follow, the Court agrees.
With respect to her opinion on the cost of CNA and RN care,
White testified that she obtained that information by “calling
around in the Lexington area” but did not recall specifically
the source for the cost figures [Exh. A at 60, ll. 15-25, at 63,
With respect to the source of the figures that she
assigned as unit costs for medical appointments, she testified
that she “got those costs through other cases that I’ve had in
that area of Kentucky, so other billing records,” although she
did not recall from which cases she obtained those figures.
hourly rates for a psychologist and psychiatrist.
an estimate of the cost for a total knee replacement for Owens
based upon her “discussions with prosthetists, as well as a
psychiatrist over the years” but acknowledged that there was no
recommendation for a total knee replacement in Owens’ medical
With respect to her $50,000 estimate for a vehicle for
Owens, she testified that “I don’t know where my sources came
I just know that I’ve called around on those and that’s,
that’s just an average cost” and could not remember who or where
With respect to Owens’ ongoing need for prosthetic devices,
White testified that the basis for her opinion concerning the
frequency of prosthetics which might be necessary in the future,
as well as the cost of those devices, was a conversation with Mo
Kenney of Kenney Orthopedics.
Of her conclusions with respect
to prosthetic devices, she observed “that was him arriving at
that figure, not me” and that “those are the numbers that I
received that, that things get more expensive over time, so
these weren’t my numbers.”
There is no evidence that Mo Kenney
was disclosed as an opinion witness in this matter.
because the bases upon which her opinion is founded are unknown
or, in the case of White’s opinions about Plaintiff’s ongoing
one’s own simply because one opinion witness is not competent to
testify independently to the another’s particularized knowledge
in a field.
The United States argues convincingly that it,
first, cannot meaningfully assess White’s report without knowing
from whence came the facts and figures.
“Calling around” to
unidentified service providers or vendors does not yield the
type of reliability based on facts and data contemplated by Rule
of Evidence 702 and Daubert.
509 U.S. 579 (1993); see also
Davidson v. U.S. Dep't of Health & Human Servs., No. 7:06-129DCR, 2007 WL 3251921, at *1 (E.D. Ky. Nov. 2, 2007) (life care
plan testimony excluded because basis was unreliable).
White permissibly rely upon the opinion of another, undisclosed
determine what prosthetics will be necessary over time and at
At the end of the day, there is no problem, per se, with
relying on the opinion of another in articulating her opinion,
but the sources of those facts and opinions – be it a home
health care service or a prosthetist – must be made known and,
when necessary, disclosed.
This would make them subject to
argues that the United States should retain its own experts to
rebut White’s opinions, but that is premature as the United
White’s opinion without knowing the bases of her opinion.
introduction of certain opinion testimony by Paul Collier, M.D.
Plaintiff’s theory of the case is that the Veterans Affairs
caused the amputation of her right leg.
Defendant’s theory of
inadequate muscle coverage not a failure to provide antibiotics.
disclosed Dr. Martin Raff, an infectious disease expert.
permit the deposition of Dr. Collier.
limited to matters discussed in his report and, on rebuttal, to
those matters discussed in Dr. Naslund’s report.
concerning the standard of care for general or vascular surgery
intend to nor did he offer an opinion concerning these issues in
his opinion-in-chief nor did Dr. Naslund offer opinions on these
issues in his report. At the hearing on this motion, Plaintiff’s
counsel explained that he felt that any testimony concerning
surgery would necessitate a reference to the standard of care
and that, in any event, Dr. Naslund responded to his questions
about these issues during his deposition.
It is clear what the scope of the opinion testimony offered
will be based on the reports of the witnesses.
It is no less
clear what the scope of any rebuttal testimony is tied to that,
Naslund, the United States holds the power to open the door to
firmly shut based on what counsel asks him.
Court can determine “on the fly” what evidence it may or may not
consider while the trial is in progress, and, in this instance,
efficiency will be gained by making that determination based on
arguments presented at the time evidence is introduced.
Accordingly, IT IS ORDERED:
Testimony of Carol White [DE 27] is GRANTED;
That Carol White’s testimony related to the expense of
CNA care, RN care, psychology, psychiatry, medical appointments,
knee replacement, vehicle cost, and prosthetics is excluded; and
Alternative, Motion for Leave to Supplement Expert Disclosure
[DE 45] is DENIED without prejudice to the renewal at trial of
the objections to the rebuttal testimony of Paul Collier, M.D.
This the 31st day of August, 2017.
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