Holtshouser et al v. United States of America,
ORDER denying 25 Plaintiffs Motion in Limine to Exclude Expert Physician Testimony. Signed by Judge Richard F. Cebull on 4/10/2013. (EMA)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HAROLD HOLTSHOUSER, and
THE UNITED STATES OF
Plaintiff has filed a motion seeking to exclude the testimony of his treating
physicians who have been identified by the Government as non-retained experts.1
Plaintiff argues that such testimony violates his doctor-patient privilege, violates
Rule 403 Fed. R. Evid., and is against public policy. The Government opposes the
Plaintiff specifically seeks exclusion of: Wynde Cheek, M.D.; Lexi Gulbranson, M.D.;
Barry W. Cohan, M.D.; Lisa Brod, M.D.; Eileen Frelier, M.D.; Mark Dietz, M.D.; John
Mateskon, L.D.; Steven Helm, D.M.D., M.S.; Robert R. Bourne, D.D.S.; Kenneth Mitchell,
D.D.S.; and Donna Porte, R.N., M.S., A.P.R.N.
Plaintiff’s Motion in Limine is based primarily on Hampton v. Schimpff,
188 F.R.D. 589 (D. Mont. 1999). In Hampton, the defendant intended to call a
treating physician to testify that another treating physician did not violate the
standard of care in his treatment of plaintiff. Judge Molloy determined that such
testimony was improper and relied on the Montana physician-patient privilege, the
timeliness of the disclosure of the treating physician’s testimony, Montana public
policy based on the physician-patient privilege, and F.R.Evid. 403.
The application of state privilege law in federal court is governed by Fed. R.
Evid. 501, which states:
The common law – as interpreted by United States courts in
light of reason and experience – governs a claim of
privilege unless any of the following provides otherwise:
• the United States Constitution;
• a federal statute; or
• rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a
claim or defense for which state law supplies the rule of
At first glance, it appears that state privilege law should apply in cases
under the Federal Torts Claims Act (FTCA), since state law is applied to
determine the United States’ liability under the FTCA. See 28 U.S.C.A. §
1346(b)(1). However, an examination of case law on this issue reveals that state
privileges do not apply to FTCA cases under this rule.
In Young v. United States, 149 F.R.D. 199 (S.D. Cal. 1993), the government
sought to obtain a plaintiff’s tax returns in discovery in an FTCA action.
California law recognizes a privilege protecting tax returns from disclosure, and
the plaintiff attempted to invoke this privilege. The Court recognized that “[t]he
law governing suits in federal courts may be state law operative of its own force,
state law incorporated or adopted as the federal law, or specific federal law
uniform throughout the United States.” Id. at 201. The Court determined that,
“[w]here state law operates of its own force, it is clear that state law supplies the
rule of decision. However, where the state law becomes, in effect, the federal law
by incorporation, then federal law supplies the rule of decision.” Id. at 202. The
Court went on to cite several decisions from the United States Supreme Court and
the Ninth Circuit where it was determined that the FTCA “assimilated” or
“incorporated” state law into federal law to determine the United States’ liability.
Id. The Court determined, “[w]hile the law of California is looked to in this case
to determine the liability of the United States to the plaintiff, it is effectively
federal law by incorporation. Therefore, under 501, it is federal law, and not state
law, that supplies the rule of decision.” Id. at 202.
This analysis is entirely consistent with the legislative history of Rule 501,
which “supports the conclusion that Congress intended federal privilege law to
apply in Federal Tort Claims Act cases.” Id. at 202. When the proposed Rule 501
was being circulated for comment, the U.S. Department of Justice raised the
concern that the rule may be interpreted to apply state privilege law in FTCA
cases. In responding to those concerns, the Senate-House Conference explained
why that was not the case:
In nondiversity jurisdiction civil cases, federal privilege
law will generally apply. In those situations where a federal
court adopts or incorporates state law to fill interstices or
gaps in federal statutory phrases, the court generally will
apply federal privilege law. . . . When a federal court
chooses to absorb state law, it is applying the state law as a
matter of federal common law. Thus, state law does not
supply the rule of decision (even though the federal court
may apply a rule derived from state decisions), and state
privilege law would not apply.
Young, 149 F.R.D. at 203-204.
The Young Court also pointed out that the FTCA “implicates substantial
federal interests” which justify departure from state policy. Id. at 204. Further, by
providing for exclusive jurisdiction of FTCA claims in federal court, the United
States intended that “claims against it would be decided only according to federal
procedural law,” thus avoiding forum shopping to apply favorable state privilege
law. Id. at 204. Based on all of these considerations, the Young Court established
“that federal privilege law applies to discovery and the admission of evidence in
Federal Tort Claims Act cases.” Id. at 204.
Several other federal courts have similarly found that federal law governs
the issue of privilege under the FTCA. See e.g., Galarza v. United States, 179
F.R.D. 291, 293 (S. D. Cal. 1998) (“[b]ecause Galarza has brought suit under the
FTCA, federal law will govern the application of privilege. Galarza’s reliance on
State law is misplaced.”); Menses v. U.S. Postal Serv., 942 F. Supp. 1320, 1323-24
(D. Nev. 1996) (“[b]ecause federal courts only adopt state law under the Federal
Tort Claims Act, federal law still supplies the rule of decision under Rule 501 and
state privilege law does not apply to Federal Tort Claims Act cases.”); Tucker v.
United States, 143 F. Supp.2d 619, 623-24 (S.D.W. Va. 2001) (federal privilege
law, not state law applies in medical negligence suit under the FTCA); Syposs v.
United States, 179 F.R.D. 406, 411-12 (W.D.N.Y. 1998) (state peer review
privilege was inapplicable in medical malpractice claim under the FTCA); Cutting
v. United States, 2008 WL 1775278, at *2 (D. Colo. 2008) (federal privilege law
applies in FTCA cases).
There is no doubt that federal law applies to the issues of privilege in this
case. That being said, there is no federal common law physician-patient privilege,
Whalen v. Roe, 429 U.S. 589, 602 n. 28 (1977), and there is no physician-patient
testimonial privilege under federal law. See In re Grand Jury Proceedings, 801
F.2d 1164, 1169 (9th Cir. 1986) and Boese v. Slaughter, 2007 WL 1071924, at *4
(D. Mont. 2007).
Even if Montana privilege law did apply, Plaintiff has waived any
physician-patient privilege. Montana’s statutory physician-patient privilege
is codified in Mont. Code Ann. § 26-1-805. That privilege is subject to waiver
under Mont. R. Civ. P. 35(b)(4), which provides, in part, as follows:
Either by . . . (2) commencing an action or asserting a
defense which places in issue the mental or physical
condition of a party to the action, the . . . party to the action
waives any privilege the party may have in that action . . .
regarding the testimony of every person who has treated,
prescribed, consulted, or examined . . . such party in respect
to the same mental or physical condition . . . .
Plaintiff has waived any privilege he may have had regarding the testimony
of every person who has treated, prescribed, consulted, or examined him with
respect to the mental or physical conditions at issue in this case.
Plaintiff also claims that the testimony of his treating physicians should be
excluded under Fed. R. Evid 403. This Court will not have any difficulty
appropriately weighing and evaluating the testimony in this case, and will not be
confused or misled by the testimony of Plaintiff’s treating physicians.
In his final argument, Plaintiff maintains that VA employees should be
prohibited from testifying at trial because of an “impermissible conflict of
interest,” and that counsel for Defendant should not be allowed to have ex parte
contact with VA employees. This is not possible. The United States cannot be
prohibited from having contact with its employees to prepare the case for trial or
calling its own employees to testify in defense of the claim. The United States
Attorney’s Office has an attorney-client relationship with its client agencies and
their employees and must be fully informed of all that relates to the matter to
represent the United States with any effectiveness. See Galarza, 179 F.R.D. at
Based upon the foregoing, IT IS HEREBY ORDERED that Plaintiff’s
Motion in Limine is DENIED.
DATED this 10th day of April, 2013.
/s/ Richard F. Cebull_________________
RICHARD F. CEBULL
SENIOR U.S. DISTRICT COURT JUDGE
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