Aidini v. Costco Wholesale Corporation
ORDER Denying 46 Motion in Limine to preclude Dr. Herr from offering opinions beyond those disclosed in his expert report. Signed by Judge Andrew P. Gordon on 4/10/17. (Copies have been distributed pursuant to the NEF - MR)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
Case No. 2:15-cv-00505-APG-GWF
COSTCO WHOLESALE CORPORATION,
ORDER DENYING MOTION IN
LIMINE TO PRECLUDE DR. HERR
FROM OFFERING OPINIONS
BEYOND THOSE DISCLOSED IN HIS
(ECF No. 46)
Plaintiff Artano Aidini moves to preclude defendant Costco Wholesale Corporation from
eliciting testimony at trial from its expert, Dr. John Herr, that addresses any topic or materials not
disclosed in his expert report. Costco counters that if Aidini’s treating physician testifies at trial
about any opinions that he did not previously disclose, then Costco’s retained expert should be
allowed to rebut this testimony by offering opinions that he did not previously disclose.
When a party intends to present a retained expert to testify at trial, Federal Rule of Civil
Procedure 26(a)(2)(B) requires that this party provide the other side with an expert report. This
report must contain “a complete statement of all opinions the witness will express and the basis
and reasons for them.” Id. When a party discovers new information and asks its expert to change
his opinion, the party is required to disclose a supplemental report reflecting these updates.
Mendez v. Unum Life Ins. Co. of Am., 2005 WL 1865426, at *1 (N.D. Cal. Aug. 2, 2005).
Costco first suggests that its expert should be relieved from having to disclose some of his
opinions because Aidini has not provided Costco with certain medical records. But Rule
26(a)(2)(B) does not say that experts must disclose opinions only if they are based on medical
records. Instead, they must disclose any opinions they plan to offer at trial.
Costco then suggests that Aidini’s treating physician might violate the limits on treating
physician testimony, and if that is allowed then Costco’s expert should also be able to opine on
things not previously disclosed in his expert report to rebut the testimony. But Costco offers no
authority or explanation to support its position. In any event, I have no evidence before me that
Aidini’s physician plans to offer previously undisclosed opinions, and I have no information
about the specific content of those opinions. Nor do I have any specific information about what
undisclosed opinion Costco’s expert intends to offer. Because I have insufficient information or
evidence to rule on these issues, I deny the motion. If either party introduces testimony or
opinions that violates the Federal Rules, then the opposing party can object at trial. The offering
party may then argue that it is “substantially justified” in offering the undisclosed testimony. See
Yeti By Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir.2001) (noting that a
party may avoid preclusion of expert testimony that was not previously disclosed if the failure to
disclose was “substantially justified”).
IT IS THEREFORE ORDERED that plaintiff Artano Aidini’s motion in limine (ECF No.
46) is DENIED.
DATED this 10th day of April, 2017.
ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE
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