Wise v. Southern Tier Express, Inc.

Filing 125

ORDER Denying Defendant Southern Tier's 90 Omnibus Motion in Limine. The parties are to confer before calendar call to determine what portions of Ms. Springston's life care plan have become obsolete. The parties will update the court with a joint brief on this issue one week before calendar call. Signed by Judge Andrew P. Gordon on 7/10/2017. (Copies have been distributed pursuant to the NEF - SLD)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 RODERICK WISE, an individual, 5 6 7 8 9 Plaintiff, v. SOUTHERN TIER EXPRESS, INC., a New York corporation; DOES I through X; and ROE CORPORATIONS I through X, inclusive, ORDER DENYING DEFENDANT’S OMNIBUS MOTION IN LIMINE (ECF No. 90) Defendants. 10 11 Case No. 2:15-cv-01219-APG-PAL Defendant Southern Tier Express, Inc. filed a seven-part omnibus motion in limine. ECF 12 No. 90. I deny Southern Tier’s requests, as set forth below. 13 Motion in Limine #1: Memory Issues/Memory Loss 14 Southern Tier requests that I preclude any opinion or argument that plaintiff Wise suffers 15 from memory issues or memory loss. Wise and a few percipient witnesses have testified at 16 deposition that Wise suffers from memory loss. One of Wise’s experts, Dr. Gross, testified that 17 the records he reviewed indicate Wise has suffered from memory issues prior to and after the 18 accident. However, it is unclear whether Dr. Gross or any other medical expert has diagnosed or 19 opined on the cause or extent of Wise’s alleged memory loss. At trial, no expert will be permitted 20 to testify as to a diagnosis of memory loss unless that opinion was previously disclosed in a report 21 as required by the relevant discovery rules. Objections to testimony from percipient witnesses 22 about Wise’s memory issues will be addressed as they arise during the trial. This portion of the 23 motion is denied. 24 Motion in Limine #2: Dr. Gross’s testimony regarding causation 25 Southern Tier next moves to preclude Dr. Gross from testifying during Wise’s case-in- 26 chief because he was designated only as a rebuttal expert. ECF No. 90 at 17. Southern Tier 27 overlooks Wise’s earlier designation of Dr. Gross as a primary expert. See ECF No. 111-11 at 28 1 11.1 Southern Tier also contends that testimony from Dr. Gross will be duplicative of testimony 2 from Dr. Cash. Drs. Cash and Gross have different medical disciplines. At this stage I cannot 3 determine whether their testimonies will be duplicative. All parties are warned that duplicative 4 testimony will not be permitted at trial. The parties are to streamline their trial presentations to 5 avoid redundancy, especially regarding expert testimony. This portion of the motion is denied. 6 Motion in Limine #3: Dr. Cash’s opinions regarding causation 7 Southern Tier moves to preclude Dr. Cash from testifying about causation because his 8 report allegedly contains no elaboration on this issue. ECF No. 90 at 20. Southern Tier 9 apparently overlooks Dr. Cash’s explanations in his report. See June 23, 2016 report at p. 132.2 10 Southern Tier has had several opportunities to depose Dr. Cash. Any alleged deficiencies in his 11 report pointed out by Southern Tier go to weight, not admissibility. I deny this portion of 12 Southern Tier’s motion. 13 Motion in Limine #4: Enrique Vega’s opinions and testimony 14 Southern Tier objects to Mr. Vega’s testimony because it apparently is based upon an 15 inaccurate or incomplete work history for Mr. Wise. ECF No. 90 at 20-22. As with Dr. Cash’s 16 work, the alleged deficiencies in Mr. Vega’s report go to weight, not admissibility. I deny this 17 portion of Southern Tier’s motion. 18 Motion in Limine #5: Gerrie Springston’s opinions and testimony 19 Southern Tier seeks to limit the testimony from Ms. Springston because Mr. Wise’s living 20 conditions have changed since she prepared her life care plan, making some of it no longer 21 relevant. Wise seems to agree that if his living arrangements are different at the time of trial, it 22 may impact Ms. Springston’s testimony. ECF No. 111 at 20:12-14. At this point, I deny Southern 23 24 25 26 1 This is further evidence that the lawyers did not engage in a proper “meet-and-confer” as I required. See my order regarding ECF No. 86 (motion in limine regarding biomechanics). Had they done so, Wise’s lawyer could have pointed this out to Southern Tier’s counsel, thereby avoiding this portion of the motion. 27 28 2 Again, the lawyers apparently did not engage in a true “meet-and-confer.” See fn. 1 above. Page 2 of 4 1 Tier’s motion without prejudice, but order the parties to confer before calendar call to determine 2 what portions of Ms. Springston’s report have become obsolete. The parties will update the court 3 with a joint brief on this issue one week before calendar call. 4 Motion in Limine #6: Treating physicians’ opinions and testimony 5 Southern Tier seeks to limit the testimony from Drs. Cash and Gross to only their 6 treatment of Mr. Wise (and related billings) and not to “opinions derived outside the scope of 7 their records and personal care of” Mr. Wise. ECF No. 90 at 24. Again, Southern Tier ignores 8 that both Drs. Cash and Gross have been designated as both primary and rebuttal experts and their 9 reports have been produced. See fn. 1 above. They are permitted to testify to the information and 10 opinions contained in their reports. 11 Motion in Limine #7: Adverse inference regarding the trailer 12 Southern Tier requests that I issue to the jury an adverse evidentiary instruction because 13 Southern Tier “has never had the opportunity to inspect the cab and bunks of the trailer” involved 14 in the accident. Id. at 24. But as Wise points out, Southern Tier’s third-party claim adjuster 15 (Spring Mountain Appraisers & Adjusters) inspected the vehicle, prepared a written damage 16 estimate, and paid Wise for the property damage. See ECF No. 111-28 (Exh. 22). Southern Tier 17 apparently did nothing further to seek a second inspection until very late in the discovery period, 18 by which time the vehicle had been repaired and sold. ECF No. 111-30 (Exh. 24). Wise’s actions 19 in repairing and selling the vehicle appear reasonable. Southern Tier was on notice that a repair 20 was likely (because its insurer paid for the property damages) but it did not timely request a 21 second inspection. Southern Tier is not entitled to an adverse inference instruction, so that 22 portion of the motion will be denied. IT IS HEREBY ORDERED that Southern Tier’s motion in limine (ECF No. 90) is 23 24 DENIED as set forth above. 25 //// 26 //// 27 //// 28 Page 3 of 4 1 IT IS FURTHER ORDERED that the parties are to confer before calendar call to 2 determine what portions of Ms. Springston’s life care plan have become obsolete. The parties 3 will update the court with a joint brief on this issue one week before calendar call. 4 DATED this 10th day of July, 2017. 5 6 7 ANDREW P. GORDON UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 4 of 4

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