Alaman v. Life Insurance Company of North America

Filing 59

ORDER granting 52 Plaintiff's Motion in Limine re Joanne Latham testimony. Signed by Judge Richard F. Cebull on 6/1/2011. (EMA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
PAUL ALAMAN,

)
)
Plaintiff,
)
)
v.
)
)
LIFE INSURANCE COMPANY
)
OF NORTH AMERICA (LINA),
)
)
Defendant.
)
_________________________________)

Case No. CV-09-132-BLG-RFC

ORDER

Plaintiff has moved the Court to exclude the testimony and opinions of
Joanne Latham to the extent such testimony relies upon the undisclosed expert
opinions of Dr. Rayes-Prince and Dr. Debra Sheppard.
BACKGROUND
Defendant has disclosed a vocational expert by the name of Joanne Latham.
Latham’s report dated April 1, 2011 states: “It is my opnion that Mr. Paul Alaman

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is currently employable. According to Dr. Rayes-Prince, and Dr. Sheppard, Mr.
Alaman is able to work on a full-time basis.” Latham’s report also states: “On 329-11, Dr. Rayes-Prince stated that Mr. Alaman is able to work 8 hour per day, 40
hours per week. Dr. Rayes-Prince noted that Mr. Alaman was capable of
performing full time work.”
Latham claims that these opinions were provided to her during telephone
conversations with Dr. Rayes-Prince and Dr. Sheppard, on March 30, 2011 and
March 22, 2011, respectively.
Dr. Rayes-Prince has not been specially retained, identified, or separately
disclosed as an expert witness by Defendant. She was retained to conduct a
vocational IME upon Plaintiff in 2008, but has never treated Plaintiff. The IME
report prepared by Dr. Rayes-Prince states that Defendant was capable of working
4 hours per day.
Dr. Sheppard is identified as an expert witness, but she has not expressed
the opinion that Plaintiff is capable of full-time work in her written disclosure or
during her deposition.1

1

Dr. Sheppard was deposed on February 14, 2011. When asked whether she had formed
an opinion whether Plaintiff could work full time, or merely part time, Dr. Sheppard testified: “I
did not address that.” Dr. Sheppard depo. p. 39.
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ANALYSIS
Rule 26(a)(2)(A), F.R.Civ.P. states that a party “shall disclose to the other
party the identity of any person who may be used at trial to present evidence under
Rule 702, 703, or 705 of the Federal Rules of Evidence. This Court’s Scheduling
Order also warns that, “Expert reports must satisfy the requirements of Rule
26(a)(2)(B). An inadequate report or disclosure may result in exclusion of the
expert’s opinions at trial. . .”
This Court’s Scheduling Order makes clear also that “a treating physician is
not considered an expert unless the testimony offered by the treating physician
goes beyond care, treatment and prognosis. If the treating physician’s testimony
goes beyond care, treatment and prognosis, there must be full compliance with the
discovery requirements of Rule 26(a)(2)(B).” See Goodman v. Staples The Office
Superstore, LLC, 2011 WL 1651246 (9th Cir. 2011). Since Drs. Sheppard and
Rayes-Prince have not treated Plaintiff, their undisclosed opinions are
inadmissible. See McCluskey v. Allstate, 34 MFR 378 (D.Mont. 2006).
In disclosing an expert’s opinions, the disclosing party is required also to
disclose, “the facts or data considered by the witness in forming them.” Rule
26(a)(2)(B)(i) and (ii). In turn, Rule 703 permits expert opinions to be based on
three possible sources: (1) firsthand knowledge; (2) admitted evidence; and (3)
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facts or data not admitted into evidence if “of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon the subject.”
Expert opinions will not be admitted unless the expert has been identified,
and the facts or data considered for that expert’s opinion have been disclosed in
the expert’s signed report. “[F]acts, data, or opinions which would be [otherwise]
inadmissible . . . cannot form the bases of an expert’s opinion under Rule 703.”
U.S. v. W.R. Grace, 597 F.Supp.2d 1143, 1154 (D.Mont. 2009), citing 3 Michael
H. Graham, Handbook of Federal Evidence § 703:1 (6th ed. 2006).
Defendant’s attempt to argue that the hearsay expert opinions of Drs. RayesPrince and Sheppard constitute, “facts or data of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon the subject.”
While it is well-accepted that vocational experts frequently rely upon the opinions
of treating doctors, physical therapists and rehabilitation professionals, Rule 703
does not allow for the use of hearsay opinions on the pretense that it is the basis
for their own expert opinion. To allow Latham to parrot the opinions of Drs.
Rayes and Sheppard would be wrong.

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CONCLUSION
Plaintiff’s Motion in Limine [doc. 52] is GRANTED. Defendant will not
be allowed to present evidence from Joanne Latham that relies upon the
undisclosed opinions of Dr. Emily Rayes-Prince and Dr. Debra Sheppard.
DATED this First day of June, 2011.
/s/ Richard F. Cebull____________
RICHARD F. CEBULL
U.S. DISTRICT COURT JUDGE

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