Salazar v. Continental Construction of Montana
Filing
228
ORDER granting 143 Motion in Limine; granting 145 Motion in Limine; denying 147 Motion in Limine; denying 149 Motion in Limine; denying 152 Motion in Limine; denying 179 Motion in Limine; finding as moot 221 Motion to Strike ; de nying 151 Motion in Limine; denying 151 Motion in Limine; granting 151 Motion in Limine; granting 151 Motion in Limine; granting in part and denying in part 151 Motion in Limine; granting 151 Motion in Limine. Signed by Magistrate Carolyn S Ostby on 9/17/2012. SEE ORDER FOR DETAILS. (JDH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
JUAN SALAZAR,
Plaintiff,
CV 11-16-BLG-CSO
ORDER ADDRESSING
MOTIONS IN LIMINE
vs.
A&J CONSTRUCTION OF
MONTANA, INC.,
Defendant.
This Order addresses the parties’ motions in limine and a
recently-filed motion to strike a supplemental expert report. See DKTs
143, 145, 147, 149, 151, 152, 179, and 221.
I.
BACKGROUND
The parties are familiar with the underlying facts and their
arguments related to each motion. The Court will recite such facts and
arguments only as necessary to explain its rulings.
II.
LEGAL STANDARD
In BNSF Railway Co. v. Quad City Testing Laboratory, Inc., 2010
WL 4337827 at *1 (D. Mont. 2010) (Cebull, C.J.), this Court described
the legal standard for motions in limine. Motions in limine are
procedural devices to obtain an early and preliminary ruling on the
admissibility of evidence. Judges have broad discretion when ruling on
motions in limine. See Jenkins v. Chrysler Motors Corp., 316 F.3d 663,
664 (7th Cir. 2002). But a motion in limine should not be used to
resolve fact disputes or weigh evidence. C & E Services, Inc., v. Ashland
Inc., 539 F.Supp.2d 316, 323 (D. D.C. 2008). To exclude evidence on a
motion in limine “the evidence must be inadmissible on all potential
grounds.” Ind. Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d 844, 846 (N.D.
Ohio 2004); Kiswani v. Phoenix Sec. Agency, Inc., 247 F.R.D. 554, 557
(N.D. Ill. 2008); Wilkins v. K-Mart Corp., 487 F.Supp.2d 1216, 1218-19
(D. Kan. 2007). “Unless evidence meets this high standard, evidentiary
rulings should be deferred until trial so that questions of foundation,
relevancy and potential prejudice may be resolved in proper context.”
Hawthorne Partners v. AT & T Tech, Inc., 831 F.Supp. 1398, 1400 (N.D.
Ill. 1993). This is because although rulings on motions in limine may
save “time, costs, effort and preparation, a court is almost always better
situated during the actual trial to assess the value and utility of
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evidence.” Wilkins, 487 F.Supp.2d at 1219.
It is settled law that rulings on motions in limine are provisional.
Such “rulings are not binding on the trial judge [who] may always
change [her] mind during the course of a trial.” Ohler v. United States,
529 U.S. 753, 758 n.3 (2000); accord Luce v. United States, 469 U.S. 38,
41 (1984). “Denial of a motion in limine does not necessarily mean that
all evidence contemplated by the motion will be admitted to trial.
Denial merely means that without the context of trial, the court is
unable to determine whether the evidence in question should be
excluded.”’ Ind. Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d at 846.
With these general standards in mind, the Court addresses below
each pending motion in limine and the motion to strike.
III. DISCUSSION
A.
A&J’s Motion in Limine Re: Exclusion of Evidence of
James and Diane Foster’s Personal Assets
The Court will grant this motion. A&J seeks exclusion of
“evidence of James and Diane Foster’s personal assets and 2005
bankruptcy filing.” DKT 143. James and Diane Foster, although
principals of A&J, are not parties to this action. Salazar has offered
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neither evidence nor persuasive argument that would allow him to
reach the Foster’s personal assets should he prevail on his claims
against A&J. Thus, at this juncture, their personal assets are
irrelevant to any claim or defense at issue and would not tend to make
a fact more or less probable than without such evidence. Fed. R. Evid.
401. In the course of trial, should Salazar choose to attempt to
introduce such evidence, his counsel must make an offer of proof
outside of the jury’s presence before attempting to introduce any such
evidence and before making any reference to it.
B.
A&J’s Motion in Limine Re: Exclusion of Opinion
Evidence by Salazar’s Expert John Macdonald
The Court will grant this motion. A&J seeks exclusion of three
opinions by John Macdonald (“Macdonald”), Salazar’s safety expert,
respecting: (1) immigration law; (2) whether Salazar’s fall and injury
were caused by his Hispanic descent; and (3) whether Salazar was an
independent contractor or employee under Montana law. A&J’s Mtn.
Re: Macdonald’s Opinion (DKT 145) at 2.
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1.
Expert Witness Legal Standard
Federal Rule of Evidence 702, governing receipt of expert witness
testimony, provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Rule 702 requires that the trial court act as a “gatekeeper” by
excluding evidence that does not meet standards of reliability and
relevance. The Supreme Court articulated general guidelines for Rule
702's application in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137
(1999). Daubert focused on scientific testimony. Kumho held that
Daubert's principles apply to “technical and other specialized
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knowledge” as well. Kumho, 526 U.S. at 141. In Kumho, 526 U.S. at
149, the Supreme Court held that if an expert testimony’s “factual
basis, data, principles, methods, or their application are called
sufficiently into question, ... the trial judge must determine whether
the testimony has a reliable basis in the knowledge and experience of
[the relevant] discipline.”
The Ninth Circuit has held that the admissibility of expert
opinion testimony generally turns on the following preliminary legal
determinations by the trial judge:
•Whether the opinion is based on scientific, technical, or other
specialized knowledge;
•Whether the expert’s opinion would assist the trier of fact in
understanding the evidence or determining a fact in issue;
• Whether the expert has appropriate qualifications-i.e., some
special knowledge, skill, experience, training or education on that
subject matter;
• Whether the testimony is relevant and reliable;
• Whether the methodology or technique the expert uses “fits” the
conclusions (the expert’s credibility is for the jury);
• Whether its probative value is substantially outweighed by the
risk of unfair prejudice, confusion of issues, or undue consumption
of time.
United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir. 2000) (citations
omitted). The Hankey court explained that “not only must the trial
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court be given broad discretion to decide whether to admit expert
testimony, it ‘must have the same kind of latitude in deciding how to
test an expert’s reliability.’ ” Id. (emphasis in original) (citing Kumho,
119 S.Ct. at 1176).
A Daubert hearing is not required before ruling on a motion to
exclude expert testimony. See United States v. Lopez-Martinez, 543
F.3d 509, 514 (2008) (finding that a hearing is not required under
Supreme Court precedent or Ninth Circuit case law). The Court
determines here that the parties have thoroughly briefed the issues and
presented sufficient materials to allow the Court to reach a
determination without a Daubert hearing.
2.
Analysis
First, the Court will grant A&J’s motion to the extent it seeks to
prohibit Macdonald from rendering any opinions about immigration
law. Neither Macdonald’s final expert witness report nor anything else
presently in the record establishes his expertise to render such an
opinion. DKT 160-1 at 3-11. Any opinion he may render about
immigration law would be unreliable. Also, it is the Court’s duty, not
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the duty of an expert witness, to instruct the jury on the law. United
States v. Vreeken, 803 F.3d 1085, 1091 (10th Cir. 1986). There is no
basis for Macdonald to testify regarding immigration law.
Second, the Court will grant A&J’s motion to the extent it seeks
to prohibit Macdonald from testifying about whether Salazar fell
because of his Hispanic descent. Salazar notes in his response to A&J’s
motion that Macdonald does not intend to testify that Salazar fell
because of his Hispanic descent and notes that “[t]he statement that
Juan Salazar fell because of his Hispanic descent is outrageous.”
Salazar’s Resp. Br. (DKT 160) at 5. He argues that Macdonald never
made the statement in his expert report or deposition. Id. Because
there is no dispute that Macdonald is not going to testify that Salazar’s
Hispanic descent caused him to fall, the Court will grant A&J’s motion
to the extent it seeks to exclude such testimony.
Third, the Court will grant A&J’s motion to the extent it seeks to
preclude Macdonald from rendering an opinion about whether Salazar
was an independent contractor or an employee under Montana law. As
with the above discussion concerning whether Macdonald may testify
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respecting immigration law, there is no basis in the record for
Macdonald to testify about whether Salazar was an independent
contractor or an employee under Montana law.
Finally, the Court notes that its ruling on this motion is limited to
the precise subjects discussed above. In contesting A&J’s motion,
Salazar asks the Court to allow Macdonald to testify concerning: (1)
“the heightened danger associated with undocumented immigrants
working on a construction site[,]” DKT 160 at 6; (2) “what Jay Foster,
owner of A&J, should have known as an employer[,]” id.; (3) whether
Foster should have obtained immigration forms to confirm the
citizenship status of all employees on the construction site, id.; and (4)
Salazar’s status as an employee on the construction site if the Court
first finds that Salazar was an independent contractor, id. at 5-6.
The Court declines to rule at this juncture on the admissibility of
Macdonald’s testimony concerning the issues Salazar proposes. In line
with the authority detailed above, at this point in the proceedings the
Court cannot determine specifically how, or even if, Macdonald will
attempt to testify concerning the issues identified above. Thus, the
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Court will deny Salazar’s pretrial request that it rule that Macdonald
may testify as to those specific issues.
C.
A&J’s Motion in Limine Re: Exclusion of Opinions of
Economist Stan Smith and Salazar’s Motion in Limine
to Exclude Testimony of Anne Arrington
The Court will deny these motions. The parties have filed what
may be characterized as cross-motions in limine to exclude one
another’s damages expert witnesses. A&J seeks exclusion of the expert
opinions of Salazar’s economist, Stan Smith (“Smith”), respecting: (1)
past lost wages; (2) future damages including: (a) future wages, (b)
replacement of household family services, (c) family housekeeping, (d)
household/family advice, counseling, guidance, instruction, and training
services, and (e) household/family accompaniment services; (3) cost of
future life care; (4) reduction in value of life; and (5) damages for
Salazar’s wife and children. A&J’s Mtn. (DKT 147) and A&J’s Br. in
Support (DKT 148) at 3-9. Salazar seeks exclusion of the testimony of
vocational consultant Anne Arrington. Salazar’s Mtn. in Limine (DKT
151) at 2-6.
The Court concludes that the current record does not permit it to
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rule on the admissibility of Smith’s and Arrington’s opinions. The
admissibility of their opinions hinges, at least in part, on fact issues in
dispute involving Salazar’s present and future status in this country as
well as his past and future employment status. Without a more
developed record, the Court cannot determine the admissibility of
either Smith’s or Arrington’s opinions. The parties may make any
appropriate objections at trial.
D.
A&J’s Motion in Limine Re: A&J/Continental Contract
The Court will deny this motion. A&J seeks to exclude “any
mention of whether or not A&J had a right to assign any part of its
contractual rights to subcontractor Alcaraz or any one else.” A&J’s
Mtn. Re: A&J/Continental Contract (DKT 149) at 1. A&J argues that
such evidence is irrelevant and that any probative value it may have is
outweighed by unfair prejudice. A&J also argues that such evidence
would confuse and mislead the jury. Id. at 1-2; A&J’s Br. in Support
(DKT 150) at 1-4.
Rule 401, Fed. R. Evid., provides:
Evidence is relevant if:
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(a)
it has any tendency to make a fact more or less
probable than it would be without the evidence; and
(b)
the fact is of consequence in determining the action.
Rule 401’s plain language does not require that relevant evidence
be absolutely determinative of a fact, claim, or defense in an action, as
A&J seems to suggest. Rather, the rule states that relevant evidence is
that which has “any tendency” to increase or decrease the probability of
a fact “of consequence in determining the action.” Fed. R. Evid. 401.
“If evidence is relevant, it is generally admissible under Federal
Rule of Evidence 402.” McCollough v. Johnson, Rodenburg & Louinger,
LLC, 637 F.2d 939, 953 (9th Cir. 2011) (citing United States v. Curtain,
489 F.3d 935, 943 (9th Cir. 2007) (en banc)). The Court may exclude
relevant evidence, however, “if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury.” Id. (citing Fed. R. Evid. 403).
Here, the Court cannot conclude at this juncture that the evidence
that A&J seeks to exclude is irrelevant. Whether A&J breached its
contract with Continental by subcontracting its work to others without
Continental’s written consent may be relevant to Salazar’s claim that
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A&J failed to provide a safe place to work. A&J argues in its reply
brief that “A&J subcontracted with Alcaraz. The record is devoid of
A&J having anything to do with Alcaraz’s hiring/contracting process or
participated in it in anyway.” A&J’s Reply Br. (DKT 178) at 7. A&J’s
act of subcontracting with Alcaraz in violation of its contract with
Continental, and apparent omission in failing to participate in any way
with Alcaraz in hiring or contracting workers, could, for example, tend
to affect the probability of whether A&J provided a safe work site. The
evidence may be relevant on this basis alone and the Court need not
now address Salazar’s argument that the evidence is also relevant to
his claims of fraud and constructive fraud.
Also, with respect to whether the probative value of the evidence
is outweighed by unfair prejudice to A&J, the Court concludes that all
of the purposes for which the evidence may be offered are unknown at
this time. Thus, the Court is unable to perform the Rule 403 balancing.
In this Court’s opinion, the admissibility of the evidence at issue here
can be determined only in the context of the purpose for which it is
being offered. Thus, at this point, the Court cannot rule on the
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evidence’s admissibility. The Court, therefore, will deny A&J’s motion
in limine. A&J may make any appropriate objection to introduction of
the evidence at trial.
E.
Salazar’s Motions in Limine
Salazar has filed a motion in limine with six subparts, which the
Court addresses seriatim below.
1.
Motion to Exclude Testimony of Ann Arrington
The Court addressed this motion supra in conjunction with A&J’s
motion to exclude testimony from Stan Smith.
2.
Motion to Exclude Testimony of Wendell D. Rust
The Court will deny this portion of Salazar’s motion. Salazar
seeks to exclude testimony from A&J’s construction and OSHA expert,
Wendell D. Rust (“Rust”) respecting: (1) Rust’s opinion “that Alcaraz is
the only employer who is obligated to provide a safe worksite[,]” DKT
151, at 7-8; (2) any of Rust’s testimony that “fails to include the
‘vicarious liability’ of A&J Construction as a basis for [Rust’s]
opinion[,]” id.; and (3) Rust’s opinion “relating to the multi-employer
worksite[,]” id.
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Having considered the parties’ arguments, the Court concludes
that, on the current record, it cannot grant this portion of Salazar’s
motion. Without the benefit of a more developed record, the Court
cannot conclude at this juncture that Rust’s challenged opinions should
be excluded. It is clear from the parties’ submissions that the relevance
of at least some of Rust’s opinions depends upon whether Salazar is
deemed an employee or an independent contractor – a determination
that has not yet been made. Also, while it appears that at least some of
Rust’s opinions rendered in his expert report are legal conclusions, it is
not clear how or whether he will attempt to present them during his
trial testimony. The Court will deny Salazar’s pretrial motion to the
extent it seeks exclusion of Rust’s testimony, leaving open to Salazar
the opportunity to make appropriate objections at trial.
3.
Motion to Exclude Comments on Potential Effect
or Impact of this Litigation or Any Adverse
Verdict on A&J or on A&J’s Agents
The Court will grant this portion of Salazar’s motion. Salazar
seeks to exclude evidence of the potential effect or impact of this
litigation or any adverse verdict on A&J or its agents. DKT 151 at 9-
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10. In response, A&J “stipulates that no such evidence will be
introduced[ ]” but adds that “this stipulation is conditional on the
Court’s order in limine being reciprocal[ ]” such that “Salazar should be
prohibited from commenting on the potential negative effect or impact
this litigation or an adverse verdict will have on Salazar.” DKT 167 at
16.
The Court will grant Salazar’s motion for two reasons. First, A&J
represents that it will not introduce the type of evidence Salazar seeks
to exclude. Thus, A&J has no basis to object to Salazar’s motion.
Second, the condition A&J places on its stipulation not to introduce
such evidence is not reasonable. To require a plaintiff seeking damages
in a personal injury lawsuit to refrain from introducing evidence of the
effect of the litigation or negative impact he will suffer if he does not
prevail is tantamount to precluding the plaintiff from introducing
evidence of his injury and damages. The Court will grant this portion
of Salazar’s motion.
4.
Motion to Exclude Collateral Source Evidence
The Court will grant this portion of Salazar’s motion. Salazar
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seeks exclusion of any evidence that he obtained any benefit from
collateral sources, including settlement with other parties, health
insurance, public or private disability benefits, and workers’
compensation benefits. DKT 151 at 10-12.
In response, A&J states that the only collateral source evidence
that it intends to introduce is of Salazar’s receipt of workers’
compensation benefits. DKT 167 at 16. Thus, the Court will grant
Salazar’s motion to the extent it seeks to exclude every other form of
collateral source evidence.
Respecting receipt of workers’ compensation benefits, the Court
will also grant this portion of Salazar’s motion but will provide A&J the
opportunity, if it wishes, to attempt to introduce such evidence through
a proper showing, as discussed below. Introduction of such collateral
source evidence is generally precluded. See, e.g., Tipton v. Socony
Mobil Oil Co., 375 U.S. 34, 37 (1963) (concluding collateral benefits
evidence was inadmissible but recognizing in proper case an
appropriate instruction would cure error); see also Sheehy v. Southern
Pacific Transportation Co., 631 F.2d 649, 651-52 (9th Cir. 1980);
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Mickelson v. Montana Rail Link, 999 P.2d 985, 992 (Mont. 2000).
Here, A&J argues that Salazar “has waived his right to have
ruled inadmissible the facts involving his Worker’s Compensation
claim[ ]” because: (1) A&J contends that Salazar was an independent
contractor subjecting his claims to dismissal; (2) evidence exists in the
record that Salazar persuaded Alcaraz to list him as an employee after
his fall so that he could obtain workers’ compensation benefits; (3) A&J
contends that Salazar is feigning his current claimed injuries; (4) A&J
contends that Salazar’s counsel “was instrumental in getting Salazar’s
primary physician to ... render Salazar totally disabled[ ]” after an
earlier determination that his injuries were less severe; (5) Salazar has
not previously objected to mention of workers’ compensation benefits
despite issues about it being raised in discovery; and (6) Salazar alleges
in his Fourth Amended Complaint that evidence of his status as an
employee is indicated by the Montana State Fund’s acceptance of his
workers’ compensation claim. DKT 167 at 17-19.
At this juncture, the Court concludes that the best approach,
given the prejudicial nature of such collateral source evidence, is to
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preclude it. In the course of trial, should A&J choose to attempt to
introduce such evidence, its counsel must make an offer of proof outside
of the jury’s presence before attempting to introduce any such evidence
and before making any reference to it.
5.
Motion to Exclude Discussion, Inference, or
Attribution of Blame or Responsibility to Any
Person or Entity Against Whom No Claim is
Pending at Time of Trial
The Court will grant this portion of Salazar’s motion in part and
deny it in part. Salazar seeks exclusion of any evidence “attempting to
place fault on individuals or entities who are no longer parties to this
action or are not parties to this action at the time of trial.” DKT 151 at
12. A&J responds that it “is not going to attribute responsibility to
Continental Construction.” DKT 167 at 20. Thus, the Court will grant
this portion of Salazar’s motion to the extent it seeks exclusion of any
evidence attempting to place fault for Salazar’s injury on Continental
Construction.
To the extent Salazar seeks exclusion of evidence of fault on the
part of any other individual or entity not a party to this action at the
time of trial, the Court will deny his motion. At this juncture, without
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the benefit of a more fully developed record, the Court is unable to rule
on the admissibility of such evidence. Whether it is admissible at trial
depends, at least in part, on the purpose for which it is being
introduced and on what claims and defenses remain at issue. For these
reasons, the Court will deny this portion of Salazar’s motion. Salazar
may make any appropriate objection to introduction of the evidence at
trial.
6.
Motion to Exclude Medical Opinions Lacking
Foundation
The Court will grant this portion of Salazar’s motion. Salazar
seeks exclusion of any medical evidence offered without adequate
foundation and any medical opinion not based on a “reasonable medical
probability.” DKT 151 at 14. A&J responds that it “intends to
introduce and have admitted testimony and other evidence showing
that Salazar’s medical experts did not reach their conclusions based
upon reasonable medical probability.” DKT 167 at 21. But it also
states that it “agrees that neither party should introduce for their own
benefit medical ‘facts’ that are not based on that standard.” Id.
(emphasis omitted).
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Because the parties agree that any medical evidence offered
without adequate foundation and any medical opinion not based on a
“reasonable medical probability” should be excluded, the Court will
grant this portion of Salazar’s motion. The Court notes, however, that
this motion in limine is unnecessary because appropriate objections to
such testimony can be made at trial.
F.
A&J’s Motion in Limine Re: Exclusion of Opinion on
Future Medical Treatment
The Court will deny this motion. A&J seeks exclusion of certain
opinions by three of Salazar’s expert witnesses respecting future
medical care. A&J’s Mtn. (DKT 152).
A&J argues that medical experts David L. Reinhard, M.D.
(“Reinhard”) and Bill Rosen, M.D. (“Rosen”), and rehabilitation
counselor Reg Gibbs, MS (“Gibbs”), “only surmise that certain future
medical treatment will be needed[ ]” by Salazar. A&J’s Br. (DKT 153)
at 1-2. A&J argues that Reinhard testified at his deposition that it was
only “possible” that Salazar, in the future, would need: “(1) a sleep
study; (2) comprehensive brain injury treatment program; (3)
neuropsychological testing; (3) [sic] family practice and neurology; (4)
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vocational counseling; (5) rehabilitation program; and (6) treatment for
injuries.” Id. at 2.
A&J argues that because Reinhard did not state his opinion
respecting future medical treatment “to a reasonable degree of medical
certainty” but “merely speculated that future medical care was a
possibility[,]” the Court “should prohibit Salazar from offering Reinhard
as an expert on his future medical costs.” Id. at 2-3. Also, A&J argues
that Reinhard based his opinions on reports by Rosen and Gibbs, both
of whom “only recommended future medical treatment and [who did not
render their opinions] to a reasonable degree of certainty that the
future medical treatment would be necessary.” Id. at 2.
Salazar responds that A&J incorrectly represents both that
Reinhard testified that Salazar’s future medical treatment is only
“possibly” necessary and that he did not state his opinions to a
reasonable degree of medical certainty. Salazar’s Resp. Br. (DKT 161)
at 2. He also argues that Reinhard did not base his opinions on reports
by Rosen and Gibbs. Id. Rather, Salazar argues, Reinhard stated at
the beginning of his deposition that his opinions were offered to a
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reasonable degree of medical certainty or on a more-likely-than-not
basis and that A&J did not object. He also argues that Reinhard based
his medical opinions on his treatment of Salazar over more than a
three-year period, not on reports by Rosen and Gibbs. Id. at 2-3.
As an initial matter, the Court notes that the deposition excerpts
that Salazar quotes in arguing that Reinhard testified that his opinions
were offered to a reasonable degree of medical certainty or on a morelikely-than-not basis do not match the deposition excerpts that he
attached to his response brief. Compare DKT 161 at 5-6 with DKT 1615 at 3-5. But the deposition excerpts nevertheless support his position
that Reinhard understood that he was rendering his opinions on a
more-likely-than-not basis. See DKT 161-5 at 3 (deposition pages 6-7).
Again, A&J did not object to Reinhard testifying to this standard at his
deposition. This deposition testimony is sufficient for the Court to deny
A&J’s motion.
Also, A&J failed to object to this standard in its reply brief
supporting the instant motion. Instead, A&J argues only that
Reinhard did not state that each of the six items of future treatment
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listed above were “certainly needed” – only that they were possibly
needed. A&J’s Reply Br. (DKT 176) at 2.
The Court is not persuaded by A&J’s argument. Although
jurisdiction of this action is based on diversity, the Federal Rules of
Evidence control the admissibility of evidence. See Wright & Miller,
Federal Practice and Procedure: Civil 2d § 2405. Federal courts may,
however, look to state law for guidance. Chapman v. Mazda Motor of
America, Inc., 7 F.Supp.2d 1123, 1128 (D. Mont. 1998). The Montana
Supreme Court recently emphasized that the “reasonable degree of
medical certainty” and “more probable than not” standards of
evaluating medical testimony should not be applied as mechanically as
A&J urges here. Ford v. Sentry Casualty Co., 282 P.3d 687, ¶ 41 (Mont.
2012). The supreme court noted that it has “adhered to the proposition
that ‘a medical expert’s opinion is admissible if it is based on an opinion
that it is ‘more likely than not[,]’ ” a “standard [that] assures that the
expert testimony or opinion ‘does not represent mere conjecture, but
rather is sufficiently probative to be reliable.’ ” Id. (citations omitted).
The supreme court explained its position on the standard as follows:
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[W]e cannot control how doctors phrase their opinions and
testimony on these issues, and we do not purport to do so
here. ... [T]here may be cases in which a doctor states his or
her opinion in terms of ‘a reasonable degree of medical
certainty’ or fails to state that his or her opinion is on a
‘more probable than not’ basis. Nevertheless, the probative
force of the opinion ‘is not to be defeated by semantics if it is
reasonably apparent that the doctor intends to signify a
probability supported by some rational basis. Doctors are
not lawyers and may on occasion phrase medical opinions in
medical, rather than legal, terminology.
Id. at ¶ 42 (citations omitted).
As the parties have presented their arguments respecting the
instant motion, the Court cannot conclude at this point that Reinhard’s
opinion is inadmissible. As noted above, it appears he rendered his
opinion on a more-probable-than-not or similar basis and A&J did not
object. Also, the parties’ briefs lack sufficient argument respecting the
opinions of Rosen and Gibbs for the Court to properly address the
motion to the extent that it seeks to exclude their testimony. Thus, the
Court will deny A&J’s motion.
G.
A&J’s Motion in Limine Re: Exclusion of Testimony of
Salazar’s Handwriting Expert, Wendy Carlson
The Court will deny this motion. A&J seeks exclusion of the
testimony of Salazar’s handwriting expert, Wendy Carlson (“Carlson”),
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arguing that her expert report is inadequate under Federal Rule of
Civil Procedure 26. A&J’s Mtn. Re: Carlson’s Testimony (DKT 179).
A&J argues that the Court should exclude Carlson as a witness because
her expert report fails to comply with Rule 26(a)(2)(B)(I) and (iii)’s
requirements that the report: (1) set forth the basis and reasons for her
opinions; and (2) identifies the exhibits that will be presented during
her testimony. A&J’s Br. (DKT 180) at 6, 8-11.
In response, Salazar argues that Carlson’s initial report complied
with Rule 26, but he nevertheless has provided a supplemental report
from Carlson that addresses deficiencies that A&J argues existed in the
initial report. Salazar’s Resp. (DKT 201) at 3-6. Thus, Salazar argues,
A&J’s motion is now moot. Id.
In reply, A&J argues that: (1) Carlson’s initial report is
insufficient to meet Rule 26's requirements for the reasons already
stated in her opening brief; (2) Carlson’s supplemental report should be
stricken; and (3) the Court should exclude Carlson from testifying at
trial. A&J’s Reply Br. (DKT 220) at 3-4.; see also A&J’s Mtn. to Strike
Carlson’s Supplemental Report (DKT 221) and Supporting Brief (DKT
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222) (incorporating by reference arguments from A&J’s Reply Br.
Supporting Mtn. in Limine to Exclude Carlson).
Federal Rule of Civil Procedure 26(a)(1)(A)(I) provides that a
party must disclose to other parties
the name and, if known, the address and telephone number
of each individual likely to have discoverable information –
along with the subjects of that information – that the
disclosing party may use to support its claims or defenses[.]
Fed. R. Civ. P. 26(a)(1)(A)(i).
Respecting disclosure of expert witnesses and relevant to the
motion at hand, Rule 26(a)(2) provides:
(A) In General. In addition to the disclosures required by
Rule 26(a)(1), a party must disclose to the other parties the
identity of any witness it may use at trial to present
evidence under Federal Rule of Evidence 702, 703, or 705.
(B) Witnesses Who Must Provide a Written Report. Unless
otherwise stipulated or ordered by the court, this disclosure
must be accompanied by a written report--prepared and
signed by the witness--if the witness is one retained or
specially employed to provide expert testimony in the case
or one whose duties as the party’s employee regularly
involve giving expert testimony. The report must contain:
(i) a complete statement of all opinions the
witness will express and the basis and reasons
for them;
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*
*
*
(iii) any exhibits that will be used to summarize
or support them;
*
*
*
Fed. R. Civ. P. 26(a)(2)(A) and (B).
Parties are obligated to supplement expert disclosures under Rule
26(e)(2), which provides:
For an expert whose report must be disclosed under Rule
26(a)(2)(B), the party’s duty to supplement extends both to
information included in the report and to information given
during the expert’s deposition. Any additions or changes to
this information must be disclosed by the time the party’s
pretrial disclosures under Rule 26(a)(3) are due.
Fed. R. Civ. P. 26(e). Rule 26(a)(3) provides that “[u]nless the court
orders otherwise, these disclosures must be made at least 30 days
before trial.” Fed. R. Civ. P. 26(a)(3)(B).
The parties are well aware that: (1) on July 11, 2012, the Court
issued an Order granting Salazar’s motion to amend his complaint,
past the deadline for doing so, to add fraud and constructive fraud
claims, DKT 138; (2) on July 12, 2012, Salazar filed his Fourth
Amended Complaint, DKT 139; (3) on July 30, 2012, the Court issued
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an Order granting Salazar’s motion for leave to add Carlson as an
expert witness, past the deadline for doing so, as a supplement to his
previous expert witness disclosure, DKT 163; (4) on August 23, 2012,
Salazar filed a notice of the filing of Carlson’s supplemental expert
witness report, DKT 202; and (5) on August 28, 2012, the Court and
counsel participated in a status conference (DKT 216) that resulted in
the Court’s Order resetting the jury trial of this matter from September
10, 2012, to November 26, 2012, DKT 217. Thus, as the schedule of this
matter now stands, the jury trial is set to commence in slightly less
than 11 weeks.
The Court has carefully reviewed Carlson’s initial expert report
and agrees with A&J that it fails to comply with Rule 26(a)(2)(B)(i)’s
requirement that the report set forth the basis and reasons for her
opinions. The Court disagrees with A&J, however, that the report fails
to comply with Rule 26(a)(2)(B)(iii)’s requirement that it identify the
exhibits that will be presented during Carlson’s testimony. It is
apparent that the documents that Carlson identifies in her report as
“K1" through “K11" and “Q1" through “Q4" are the documents that
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likely will be presented during her testimony.
With respect to the report’s failure to set forth the basis and
reasons for Carlson’s opinions, the Court concludes that Carlson’s
supplemental report cures that deficiency. See DKT 201-1 at 35-44.
The remaining question, then, is whether Salazar timely submitted
Carlson’s supplemental expert report.
The duty to “supplement” a disclosure “in a timely manner” is
intended “to prevent unfair and prejudicial surprise, not to facilitate
last-minute production of evidence.” William W. Schwarzer, A. Wallace
Tashima & James M. Wagstaffe, FEDERAL CIVIL PROCEDURE BEFORE
TRIAL § 11:1258 (2011) (citing ATD Corp. v. Lydall, 159 F.3d 534, 55051 (Fed. Cir. 1998) (excluding patent evidence first disclosed long after
close of discovery)). This Court has stated:
The duty to supplement is not an opportunity to add to
information which should have been disclosed initially under
Rule 26(a). See Keener v. USA, 181 F.R.D. 639 (D. Mont.
1998). Rather, “[s]upplementation under the Rules means
correcting inaccuracies, or filling the interstices of an
incomplete report based on information that was not
available at the time of the initial disclosure.” Id. at 640; see
also Baltimore Therapeutic Equip. Co. v. Loredan
Biomedical, Inc., 1993 WL 129781, n.18 (E.D. Cal. 1993)
(plaintiff precluded from using supplementation “as a
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vehicle to allege new theories or contentions after the close
of discovery”).
Erickson v. Ford Motor Co., 2007 WL 5527512, at *6 (D. Mont., 2007).
Applying this authority to the case at hand, the Court concludes
that Salazar’s submission of Carlson’s supplemental report was made
“in a timely manner.” First, as noted above, this case’s schedule was
altered when the Court granted Salazar leave to amend his complaint
to add claims for fraud and constructive fraud. The Court already has
determined that Salazar acted diligently and with good cause in
seeking leave both to amend his complaint and to modify the
scheduling order to supplement his liability expert disclosures. DKT
163 at 4-7. These changes to the schedule necessarily altered some
deadlines related to the newly asserted claims.
Second, Carlson’s supplemental expert report does not advance
new opinions or alter opinions that she rendered in her initial report.
Although her methodologies were known to her at the time she made
her initial report, their inclusion in the supplemental report does not
change the basic premise of her opinion in such a way as to work
prejudice to A&J.
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Third, even if it were to find that Salazar did not submit Carlson’s
supplemental report in a timely manner, the Court would still conclude
that she should not be excluded from testifying on that basis. Fed. R.
Civ. P. 37(c)(1) “gives teeth” to Rule 26(a)’s initial disclosure
requirements and Rule 26(e)’s requirement that parties timely
supplement incomplete or incorrect discovery responses. Goodman v.
Staples The Office Superstore, LLC, 644 F.3d 817, 827 (9th Cir. 2011)
(applying rule in Rule 26(a)(2) violation context) (quoting Yeti by Molly
Ltd., 259 F.3d 1101, 1106 (9th Cir. 2001)). The rule provides a variety of
remedies, including excluding evidence, requiring payment of expenses
and fees caused by the failure to supplement, informing the jury of the
party’s failure to comply, or imposing “other appropriate sanctions[.]”
Rule 37(c)(1). The rule “is a ‘self-executing,’ ‘automatic’ sanction
designed to provide a strong inducement for disclosure.” Goodman, 644
F.3d at 827 (citing Yeti by Molly, 259 F.3d at 1106 and Rule 37 advisory
committee’s note (1993)).
No sanction is warranted, however, where it is found that
noncompliance with Rule 26 was “substantially justified” or “harmless.”
-32-
Rule 37(c)(1); Hoffman v. Construction Protective Services, Inc., 541
F.3d 1175, 1179 (9th Cir. 2008) (citing Yeti by Molly, 259 F.3d at 1106).
Factors courts may consider in determining whether a failure to timely
supplement is substantially “justified or harmless are: (1) prejudice or
surprise to the party against whom the evidence is offered; (2) the
ability of that party to cure the prejudice; (3) the likelihood of
disruption of the trial; and (4) bad faith or willfulness involved in not
timely disclosing the evidence.” Durham v. County of Maui, 2011 WL
2532690, at *4 (D. Hawai’i, June 23, 2011) (quoting Lanard Toys Ltd. v.
Novelty, Inc., 375 Fed. Appx. 705, 713 (9th Cir. 2010) (unpublished)
(citing David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003));
Transbay Auto Serv., Inc. v. Chevron U.S.A. Inc., 2010 WL 4591596, at
*7 (N.D. Cal., Nov. 3, 2010). The party facing sanctions bears the
burden of proving substantial justification or harmlessness. Goodman,
644 F.3d at 827 (citing Yeti by Molly, 259 F.3d at 1106); Roberts ex rel.
Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 781 (6th Cir. 2003).
Here, the Court concludes that Salazar’s submission of Carlson’s
supplemental report, even if untimely, was harmless. First, there is
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not unfair prejudice or surprise to A&J that cannot be cured. Trial of
this matter is set to commence more than 10 weeks hence. A&J has
ample time to depose Carlson and to retain its own expert should it
choose to do so.
Second, no trial disruption is expected. As the parties are aware,
the Court, at the parties’ urging, has extended the number of trial days
from five to eight in light of the case’s complexity and the parties’
stated need for additional time. DKT 217. Because of this extension of
the trial time, the Court was compelled to move the trial more than two
months out. Allowing Carlson’s testimony will not disrupt the trial.
Third, there has been no showing that Salazar acted in bad faith
or with willfulness in submitting Carlson’s supplemental expert report.
For all of these reasons, the Court will deny A&J’s motion in
limine to exclude Carlson’s testimony. As a result of this ruling, and
for the reasons already stated, the Court further concludes that A&J’s
motion to strike Carlson’s supplemental expert report (DKT 221) is
moot. Also in light of this ruling, the Court will impose upon A&J a
deadline of October 26, 2012, to file its own handwriting expert’s
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report, should it choose to do so.
IV.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that:
1.
A&J’s Motion in Limine Re: Exclusion of Evidence of James and
Diane Foster’s Personal Assets (DKT 143) is GRANTED.
2.
A&J’s Motion in Limine Re: Exclusion of Opinion Evidence by
Plaintiff’s Expert John Macdonald (DKT 145) is GRANTED.
3.
A&J’s Motion in Limine Re: Exclusion of Opinions of Economist
Stan Smith (DKT 147) is DENIED.
4.
A&J’s Motion in Limine Re: A&J/Continental Contract (DKT 149)
is DENIED.
5.
Respecting Salazar’s Motions in Limine (DKT 151), the Court
rules as follows:
a.
Motion to Exclude Testimony of Ann Arrington is DENIED.
b.
Motion to Exclude Testimony of Wendell D. Rust is
DENIED.
c.
Motion to Exclude Comments on Potential Effect or Impact
of this Litigation or Any Adverse Verdict on A&J or on
A&J’s Agents is GRANTED.
d.
Motion to Exclude Collateral Source Evidence is GRANTED.
e.
Motion to Exclude Discussion, Inference, or Attribution of
Blame or Responsibility to Any Person or Entity Against
Whom No Claim is Pending at Time of Trial is GRANTED in
part and DENIED in part as set forth herein.
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f.
Motion to Exclude Medical Opinions Lacking Foundation is
GRANTED.
6.
A&J’s Motion in Limine Re: Exclusion of Opinion on Future
Medical Treatment (DKT 152) is DENIED.
7.
A&J’s Motion in Limine: Request for Rule 37(c)(1) Order
Excluding the Testimony of Plaintiff’s Handwriting Expert Wendy
Carlson (DKT 179) is DENIED.
8.
A&J’s Motion to Strike Carlson’s Supplemental Report (DKT 221)
is DENIED as moot.
9.
A&J shall have to and including October 26, 2012, to file its own
handwriting expert report, should it choose to do so.
DATED this 17th day of September, 2012.
/s/ Carolyn S. Ostby
United States Magistrate Judge
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