Billups v Nathan Turner, et al

Filing 62

ORDER ruling 53 defendant's motion in limine. Signed on 2/26/13 by Chief District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda) (Main Document 62 replaced on 2/26/2013. Please note that footnote 1, a clerical error, has been deleted. Notice has been regenerated to all parties (Jones, Robin).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
DEREK L. BILLUPS,
Plaintiff,
v.
NATHAN TURNER, et. al.,
Defendants.

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Case No. 11-04250-FJG

ORDER
Defendant’s Motions in Limine
Defendant requests that the following evidence be excluded from trial:
A) Evidence from Plaintiff’s Expert Witness.
Defendant seeks to exclude evidence from Plaintiff’s expert witness. This
Court’s Second Amended Scheduling and Trial Order required Plaintiff to
submit all expert witness affidavits no later than July 23, 2012. On
September 24, 2012, Plaintiff’s counsel sent an email to Defendant’s counsel
with a report written by Timothy Farley, M.D. who had conducted an
examination of Plaintiff. It consists of two pages in which Dr. Farley
concludes that the “patient describes an appropriate injury that can lead to
shoulder pathology. His described mechanism of injury is consistent with
secondary pain complaints.” Defendants argue this disclosure was late and
the failure to file an expert witness affidavit constitutes prejudice to
Defendants. Further, the inadequate report was not even served upon
Defendant’s counsel until after the date for filing a motion to challenge a
disclosed expert had passed. Based upon the foregoing, this Court should
enter an order in limine excluding any evidence from Dr. Farley. (Doc. No. 53
& 54).
Plaintiff states the Court should deny Defendant’s request because Defendant
was not prejudiced by this disclosure and because Dr. Farley is a fact
witness, not an expert witness. Defendants knew about Dr. Farley 129 days
before they sought to exclude him as a witness because Plaintiff disclosed

this information more than a week before the close of discovery. Defendants
were derelict in seeking any relief from Plaintiff’s disclosure and thus, any
alleged harm they have suffered is self-inflicted. Further, Dr. Farley will not
offer “testimony unrelated to the actual care and treatment administered,
testimony regarding the patient’s previous care unrelated to the treatment at
issue”. As such, he is a fact witness, not an expert witness. Finally, Plaintiff
states Defendants should have recognized that they may need an expert to
counter Plaintiff’s evidence regarding the injury suffered, the causation,
prognosis and treatment needs because treating physicians are permitted to
testify as fact witnesses. (Doc. No. 61).
Ruling: This Motion is GRANTED.
B) Evidence of Plaintiff’s Diagnosis and Anthroscopy
Defendants seek to exclude evidence Plaintiff was diagnosed with a partial
tear of his left rotator cuff and thereafter underwent left shoulder arthroscopy
to repair the tear. An MRI scan taken on May 20, 2011 showed evidence that
Turner had a torn left rotator cuff. When an injury requires surgical
intervention or other highly scientific technique of diagnosis, it is considered a
sophisticated injury. Turner v. Iowa Fire Equipment Co., 229 F.3d 1202, 1210
(8th Cir. 2000). Sophisticated injuries require expert testimony to establish the
cause of that injury. Id. Since Plaintiff failed to identify a medical expert
witness within the time required and in the manner required under the Court’s
Scheduling Order, Plaintiff cannot present expert testimony to establish a
causal connection between the actions of Defendant Turner on December 12,
2009 and the torn rotator cuff indicated by the MRI scan performed on May
20, 2011. Moreover, even if Plaintiff had timely identified an expert witness
and had failed the required affidavit from the expert witness, the opinions
provided in Dr. Farley’s report fail to establish a causal connection to a
reasonable degree of medical certainty between the alleged acts of
Defendant Turner and the torn rotator cuff. Accordingly, because there is no
expert medical testimony, this Court should exclude evidence of Plaintiff’s
torn rotator cuff and treatment thereof. (Doc. No. 53 & 54).
Plaintiff reiterates its opposition from the above. (Doc. No. 61).
Ruling: This Motion is GRANTED.

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C) Evidence that the Alleged Actions of Turner were Motivated by
Plaintiff’s Race
Defendant seeks to exclude evidence that the alleged actions of Turner were
motivated by Plaintiff’s race. During a prior statement provided by one of
Plaintiff’s witnesses, the witness made statements to the effect that he
believed that Defendant Turner’s alleged actions were motivated by Plaintiff’s
race. There is no allegation in Plaintiff’s complaint the Defendant Turner’s
actions were motivated by a racially biased animus. Accordingly, such
evidence is irrelevant and therefore inadmissible and should be excluded.
(Doc. No. 53 & 54).
Plaintiff does not offer opposition. (Doc. No. 61).
Ruling: This Motion is GRANTED.
D) Evidence of the City of Columbia’s Citizen’s Police Review Board’s
Conclusions and Decision Regarding the Actions of Defendant Turner
Defendant seeks to exclude evidence of the City of Columbia’s Citizen’s
Police Review Board’s conclusions and decision regarding the actions of
Defendant Turner. The decision by the Review Board came long after the
incident of December 12, 2009, giving rise to Plaintiff’s action. Therefore,
such evidence could not be admissible regarding the issue of whether the
force Defendant Turner used was reasonable under the circumstances and
should be excluded. (Doc. No. 53 & 54).
Plaintiff does not offer opposition. (Doc. No. 61).
Ruling: This Motion is GRANTED.
IT IS SO ORDERED.

S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
Chief United States District Judge

Date: February 26, 2013
Kansas City, Missouri

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