Moore v. Safeco Insurance Company of Illinois
Filing
61
MEMORANDUM OPINION AND ORDER by Magistrate Judge Colin H. Lindsay on 6/8/2018. Moore's objections to the trial deposition of Dr. Best are hereby SUSTAINED. Safeco's objections to the trial deposition of Dr. Best are hereby SUSTAINED IN PART and OVERRULED IN PART. See Order for details. cc: Counsel (MEJ)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:16-CV-696-CHL
JUSTINE MOORE,
Plaintiff,
v.
SAFECO INSURANCE COMPANY OF ILLINOIS,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter is set for a jury trial on June 11, 2018.
Defendant, Safeco Insurance
Company of Illinois (“Safeco”) and Plaintiff Justine Moore (“Moore”) have filed objections to
the trial deposition of Safeco’s expert, Dr. Michael M. Best (“Dr. Best”).1 (Safeco’s Objections,
DN 51; Moore’s Objections, DN 55.) Moore also filed a response to Safeco’s objections. (DN
58.) All objections are ripe for review, and the instant memorandum opinion and order will
address both Moore’s and Safeco’s objections.
BACKGROUND
Safeco disclosed Dr. Best as an expert witness on March 12, 2018. (DN 24.) Dr. Best
performed an Independent Medical Examination (“IME”) of Moore and issued a report detailing
his findings. (Id. at PageID # 70.) On their witness lists, both Moore and Safeco indicated that
they intended to call Dr. Best at trial though a videotaped trial deposition. (DN 31, at PageID #
88; DN 33, at PageID # 92.) However, that deposition had not yet taken place as of the due date
for objections to deposition testimony under this Court’s March 12, 2018 Pretrial Order. (DN
26.) The Court ordered that any such objections be filed by 5:00 p.m. on June 7, 2018. (DN 53.)
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While Plaintiff notes that her name is now Justine Scaggs, the Court will continue to refer to her as “Moore” to
avoid confusion given the caption of the case.
Safeco timely filed its objections on June 4, 2018. (DN 51.) Moore timely filed her objections
on June 6, 2018. (DN 55.) Moore also filed an objection in response to Safeco’s objections.
(DN 57.)
DISCUSSION
I.
Moore’s Objection to Testimony Regarding Expert Report and Exhibit 3 of Dr.
Best’s Deposition
Moore objected to the introduction of p. 12:14 – 13:2 of Dr. Best’s testimony.2 (DN 55,
at PageID # 266.) This portion of Dr. Best’s testimony consists of Dr. Best looking at his expert
report, confirming it is an accurate copy, and confirming that he already had a copy of it in front
of him. (Id. at PageID # 268-69.) Moore has also objected to the introduction of Exhibit 3 to Dr.
Best’s deposition. (Id. at PageID # 266.) Exhibit 3 is Dr. Best’s expert report. (Id.) Safeco did
not file a response or cross-objection.
This Court already sustained Moore’s objection to the introduction of Dr. Best’s expert
report in ruling on the Parties’ objections to witness and exhibit lists. (DN 59, at PageID # 318.)
Accordingly, Moore’s objection is hereby SUSTAINED. Exhibit 3 to Dr. Best’s deposition
testimony shall not be admissible at trial. Counsel may neither read into evidence nor show
corresponding portions of any video for p. 12:14 – 13:2 of Dr. Best’s deposition.
II.
Objections to Questioning Regarding Police Report
Moore and Safeco have made overlapping objections to a portion of Dr. Best’s deposition
where Moore’s counsel questions Dr. Best about an accident description contained in his expert
report and then reads the description of the accident that forms the basis for this action into the
record. A brief summary both of Dr. Best’s testimony and the background on this issue as set
forth by the Parties in their respective objections is necessary to analyze the Parties’ objections.
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The Court will refer to the transcript of Dr. Best’s deposition by page and line number in the following format: p.
Page No. : Line No(s).
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Dr. Best was retained by Safeco to perform an IME of Moore and prepare a
corresponding report and functional capacity evaluation. (DN 24, at PageID # 69-70.) As part
of that process, Safeco sent Dr. Best certain records to review. (Id. at PageID # 70; DN 51, at
PageID # 210 n. 2.) Safeco admits that Dr. Best was “inadvertently” sent a copy of a police
report from a motor vehicle accident in which Moore was involved in January 2016. (DN 51, at
PageID # 210 n. 2.) It is undisputed that the accident underlying the instant action occurred on
August 23, 2014. (Id.). However, Dr. Best’s expert report contains a quote from the 2016 police
report, which allegedly “incorrectly stated [] the mechanism of injury which is the subject matter
of the pending lawsuit.” (DN 57, at PageID # 275, 279-80; DN 51 at PageID # 210 n. 2.)
At his deposition, during cross-examination by Moore’s counsel, Dr. Best was asked
about the description he included in his report. (DN 57, at PageID # 279-80.) After admitting
that he did not know why the description of the 2016 collision appeared in his report, Dr. Best
was asked by Moore’s counsel to read the description of the August 23, 2014 accident into the
record. (Id. at PageID # 280.) Dr. Best refused, and therefore, Moore’s counsel read the
description into the record himself. (Id. at PageID # 280-82.)
Safeco has objected to the entire portion of Dr. Best’s deposition testimony containing
both the quote from the correct August 23, 2014 police report and Moore’s counsel’s line of
questioning concerning the same on grounds of inadmissible hearsay. (DN 51.) Specifically,
Safeco objects to p. 41:9 – 44:11 of Dr. Best’s deposition. (Id.) Moore has filed a corresponding
objection to solely the portion of Dr. Best’s deposition where Moore’s counsel reads the
description of the correct accident from the police report into the record. (DN 55, at PageID #
267.) Moore argues that only p. 43:9 – 44:6 should be excluded. (DN 55, at PageID # 267.)
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As to p. 43:9 – 44:6 of Dr. Best’s deposition, this Court previously ruled that the
statements of Officer Grossman and Isaak Anderson in the police report were inadmissible
hearsay in response to a motion in limine by Safeco. (DN 54, at PageID # 256-58.) Given this
ruling and given that the parties are in agreement that p. 43:9 – 44:6 of Dr. Best’s deposition are
objectionable, Moore’s objection to this excerpt is hereby SUSTAINED. Safeco’s objection is
similarly SUSTAINED as to p. 43:9 – 44:6 only.
Safeco’s only rationale for excluding the entirety of p. 41:9 – 44:11 of Dr. Best’s
deposition is that it is inadmissible hearsay. (DN 51, at PageID # 211.) While the quotation
from the police report raises hearsay concerns, Moore’s counsel’s questioning of Dr. Best
regarding the discrepancy in his report raises no such issue. Moore objects to excluding this line
of questioning because the same constitutes evidence probative of Dr. Best’s credibility and the
weight a jury should afford to Dr. Best’s testimony. (DN 57, at PageID # 276.)
“It is the province of the jury to weigh the credibility of witnesses, including witnesses
testifying as experts.” Conde v. Velsicol Chemical Corp., 804 F. Supp. 972, 986 (S.D. Ohio
1992) (citing Coal Resources, Inc. v. Gulf & Western Indus., Inc., 865 F.2d 761, 775 (6th Cir.
1989)). Safeco intends to offer Dr. Best’s opinion as some evidence to dispute Moore’s claimed
damages. (See DN 24.) Therefore, to the extent Dr. Best’s opinion regarding Moore’s injuries is
or was based on incorrect information or could otherwise be called into question, the jury is
entitled to hear testimony to that effect so that they can properly and fully evaluate Dr. Best’s
testimony. Accordingly, Safeco’s objection to p. 41:9 – 43:8 and p. 44:7-11 of Dr. Best’s
deposition is hereby OVERRULED.
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ORDER
Accordingly, IT IS HEREBY ORDERED as follows:
(A)
Moore’s objections to the trial deposition of Dr. Best are hereby SUSTAINED.
Exhibit 3 to Dr. Best’s deposition testimony shall not be admissible at trial. Counsel may neither
read into evidence nor show corresponding portions of any video for p. 12:14 – 13:2 of Dr.
Best’s deposition. Additionally, counsel may neither read into evidence nor show corresponding
portions of any video for p. 43:9 – 44:6 of Dr. Best’s deposition.
(B)
Safeco’s objections to the trial deposition of Dr. Best are hereby SUSTAINED IN
PART and OVERRULED IN PART. Safeco’s objection as to p. 43:9 – 44:6 of Dr. Best’s
deposition is SUSTAINED. However, Safeco’s objection as to p. 41:9 – 43:8 and p. 44:7-11 is
hereby OVERRULED.
cc: Counsel of record
June 8, 2018
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