Lee v. Dennison et al

Filing 127

ORDER Denying 90 Motion in Limine. Signed by Judge Kent J. Dawson on 1/17/2023. (Copies have been distributed pursuant to the NEF - TRW)

Case 2:19-cv-01332-KJD-NJK Document 127 Filed 01/17/23 Page 1 of 4

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ALEXIS LEE,

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Plaintiff,

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Case No. 2:19-cv-01332-KJD-NJK
ORDER

v.
DINO DENNISON, et al.,

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Defendants.

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Presently before the Court is Defendants’ Motion in Limine No. 3 to Exclude Reports and

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Testimony of Plaintiff’s Retained Expert, Dr. David Oliveri Regarding Plaintiff’s Future Medical

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Care. (#90). Plaintiff responded in opposition. (#116).

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I.

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This action arises from a motor vehicle accident on September 9, 2017. Plaintiff Alexis Lee

Factual and Procedural Background

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(“Lee”) was driving an economy-sized Hyundai Sonata and Defendant Dino Dennison

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(“Dennison”) was driving a semi-truck as an employee of Defendant Knight Transportation

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(“Knight”) when the two vehicles collided. A nearby police officer responded to the incident,

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assessed the situation, and filed a report. Lee filed suit against Dennison and Knight for damages.

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Defendants bring this motion in limine to exclude the reports and testimony of Plaintiff’s

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expert witness, Dr. David Oliveri regarding Plaintiff’s future medical care and his opinion that

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Plaintiff will need surgery 30 years from now.

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II.

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A. Legal Standard

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A motion in limine is a procedural mechanism made in advance to limit testimony or

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evidence in a particular area” and is “entirely within the discretion of the Court.” Diamond X

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Ranch, LLC v. Atlantic Richfield Co., No. 3:13-cv-00570-MMD-WGC, 2018 WL 2127734, at

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*1 (D. Nev. May 8, 2018). A “motion in limine should not be used to resolve factual disputes or

Analysis

Case 2:19-cv-01332-KJD-NJK Document 127 Filed 01/17/23 Page 2 of 4

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weigh evidence.” IGT v. Alliance Gaming Corp., No. 2:04-cv-1676-RCJ-RJJ, 2008 WL

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7084605, at *2 (D. Nev. Oct. 21, 2008). “To exclude evidence on a motion in limine, ‘the

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evidence must be inadmissible on all potential grounds.’” Diamond X Ranch, 2018 WL

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2127734, at *1 (quoting Indiana Ins. Co. v. General Elec. Co., 326 F.Supp.2d 844, 846 (N.D.

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Ohio 2004)).

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Fed. R. Evid. 702 permits a “witness who is qualified as an expert by knowledge, skill,

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experience, training, or education [to] testify in the form of an opinion or otherwise if: (a) the

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expert’s scientific, technical, or other specialized knowledge will help the trier of fact to

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understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient

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facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the

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expert has reliably applied the principles and methods to the facts of the case.” The Supreme

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Court gave expanded direction on Rule 702 in Daubert v. Merrell Dow Pharmaceuticals, Inc.,

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509 U.S. 579 (1993). In Daubert, the Court held that Rule 702 imposed “a special obligation

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upon a trial judge to ‘ensure that any and all scientific testimony… is not only relevant, but

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reliable.’” See Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). The Court expanded this

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gatekeeping obligation to all expert testimony. Id. at 147. Daubert “established that, faced with a

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proffer of expert scientific testimony, the trial judge, in making the initial determination whether

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to admit the evidence, must determine whether the expert’s testimony reflects (1) “scientific

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knowledge,” and (2) will assist the trier of fact to understand or determine a material fact at

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issue.” Daubert, 509 U.S. at 592. The “focus must be solely on principles and methodology, not

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on the conclusions that they generate.” Id. at 595.

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The Ninth Circuit has emphasized that “Rule 702 is applied consistent with the liberal thrust

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of the Federal Rules and their general approach of relaxing the traditional barrier to opinion

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testimony.” Jinro Am. Inc. v. Secure Investments, Inc., 266 F.3d 993, 1004 (9th Cir. 2001). “An

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expert witness–unlike other witnesses–is permitted wide latitude to offer opinions, including

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those that are not based on firsthand knowledge or observation, so long as the expert’s opinion

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[has] a reliable basis in the knowledge and experience of his discipline.” Id. (citations and

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quotation marks omitted).

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Case 2:19-cv-01332-KJD-NJK Document 127 Filed 01/17/23 Page 3 of 4

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In Daubert, the Court also clarified that parties should not be “overly pessimistic about the

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capabilities of the jury and of the adversary system generally.” Daubert, 509 U.S. at 596.

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“Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the

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burden of proof are the traditional and appropriate means of attacking shaky but admissible

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evidence.” Id. “The role of the Court is not to determine ‘the correctness of the expert’s

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conclusions but the soundness of his methodology.’” Great W. Air, LLC v. Cirrus Design

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Corporation, No. 2:16-CV-02656-JAD-EJY, 2019 WL 6529046, *3 (D. Nev. 2019). “The judge

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is supposed to screen the jury from unreliable nonsense opinions… [t]he district court is not

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tasked with deciding whether the expert is right or wrong, just whether his testimony has

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substance such that it would be helpful to a jury.” Id. at 4.

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B. Dr. Oliveri’s Testimony

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Dr. Oliveri is a physiatrist retained by the Plaintiff to testify about Plaintiff’s future medical

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needs. Plaintiff had a disc replacement in her cervical spine in 2019, and Dr. Oliveri intends to

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testify that Plaintiff will need an adjacent segment surgery at some point 30 years from now.

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Defendants object to Dr. Oliveri testifying about Plaintiff needing surgery 30 years in the

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future because “he is unqualified to offer this opinion.” (#90, at 4). “He is not a spinal surgeon

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and does not claim to be an expert in this area.” Id. Defendants claim that his opinion “is based

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on generalized, anecdotal discussions with Plaintiff’s rebuttal expert–Dr. Garber–that were not

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tethered to Plaintiff in any way.” Id.

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Defendants also point to several non-binding cases to support the claim that future care

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should be precluded. Id. at 6. First is Queen v. W.I.C., Inc., No. 14-cv-519-DRH-SCW, 2017

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WL 3872180 (S.D. Ill. Sept. 5, 2017), where a physiatrist was prohibited from testifying because

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his “recommended care plan suggests multiple treatments neither supported by [plaintiff’s]

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medical records, nor recommended by [plaintiff's] treating physicians.” Id. at 4. The court also

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found that the physiatrist’s methodology was not “readily recognized as reliable.” Id.

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Defendants also point to Trinidad v. Moore, No. 2:15-323-WHA, 2016 WL 53541777 (M.D.

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Ala. Sept. 23, 2016) because an expert with a life care plan was precluded from testifying about

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future care. In Trinidad, the court concluded that the expert could not testify that the plaintiff

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would require surgery because no treating physician had recommended surgery, and so the

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opinion was based on speculation. Id. at 8. A court held similarly in Rios v. Ramage, No. 2:19-

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2602-HLT, 2021 WL 2255050 (D. Kan. June 3, 2021).

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Defendants assert that Dr. Oliveri’s basis for his opinion about future surgery is related to

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“generic discussions with Dr. Garber in the course of other med-legal work that were in no way

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related to this case.” (#90, at 7). “Essentially, Dr. Oliveri is offering a proxy opinion for Dr.

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Garber because he himself is unqualified to offer it” and because Dr. Oliveri “never spoke to Dr.

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Garber about Plaintiff’s case.” Id.

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Plaintiff responded, arguing that Dr. Oliveri’s testimony should be included because his

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opinion is (1) “based upon a physical examination, a review of all of [Lee’s] medical records,

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and the medical literature addressing adjacent segment breakdown in patients who have

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undergone an artificial disk replacement surgery;” and (2) “a life care planner does not need to

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be able to perform a surgery to opine as to whether a future surgery will be necessary.” (#116, at

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2). Plaintiff asserts that Dr. Oliveri is not just deferring to Dr. Garber, but is basing his opinion

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on a wholistic review of Lee’s condition. Id. Plaintiff also distinguishes the three cases cited by

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Defendants. Id. at 4-5.

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The Court finds that Dr. Oliveri’s testimony will not be prohibited. Defendants have not

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demonstrated that Dr. Oliveri’s testimony is unreliable or a violation of Rule 702. The Court

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does not find the case law cited by Defendants persuasive because it is distinguishable– Dr.

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Oliveri has reviewed Plaintiff’s medical records and corresponded with Dr. Garber, Plaintiff’s

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treating physician who already performed cervical surgery, in forming his wholistic opinion

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about Plaintiff’s future care.

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III.

Conclusion

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Accordingly, IT IS HEREBY ORDERED that Defendants’ Motion in Limine (#90) is

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DENIED.

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Dated this 17th day of January, 2023.

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_____________________________
Kent J. Dawson
United States District Judge

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