Murphy et al v. United States of America
MEMORANDUM OPINION AND ORDER by District Judge James A. Parker. IT IS THEREFORE ORDERED THAT Plaintiffs Motion in Limine to Exclude Defendant United States of Americas Emergency Medicine Experts (Doc. 85) is DENIED without prejudice, allowing Plaintiffs to make proper objections to cumulative evidence at trial. (kg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DENNIS MURPHY, Guardian Ad Litem
for N.E.D., an incapacitated minor; JACOB DOTSON;
DOMINIQUE BILLY, individually and as next friend
of I.C. and S.D., minors,
No. 1:17-cv-00384 JAP/JHR
THE UNITED STATES OF AMERICA,
MEMORANDUM OPINION AND ORDER
Plaintiffs Dennis Murphy, Guardian Ad Litem for N.E.D., Jacob Dotson, and Dominique
Billy, individually and as next of friend of minors I.C. and S.D. (Plaintiffs) filed suit against
Defendant United States of America (United States or Defendant) seeking damages for alleged
medical negligence, negligent training and supervision, and personal injuries under the Federal
Tort Claims Act (FTCA) and New Mexico State law.1 Plaintiffs’ claims arise out of emergency
medical treatment rendered to minor child N.E.D. at the Gallup Indian Medical Center (GIMC),
an Indian Health Services facility in Gallup, New Mexico in February 2016. Plaintiffs allege,
among other things, that Dr. Stephen Waite and other GIMC medical personnel failed to properly
protect and monitor N.E.D.’s airway following a rapid sequence induction and intubation. See
Amended Complaint ¶ 36. Plaintiffs claim this ultimately led to deprivation of oxygen for a
period sufficient to cause N.E.D. to suffer a permanent hypoxic brain injury. See id.
On April 6, 2018, Defendant disclosed its expert witnesses, including two Board
Certified Emergency Room Physicians, William F. Spangler, M.D. and Jack L. Sharon, M.D.
See FIRST AMENDED COMPLAINT FOR MEDICAL NEGLIGENCE, PERSONAL INJURIES AND
DAMAGES ARISING UNDER FEDERAL TORT CLAIMS ACT AND NEW MEXICO LAW (Doc. 51).
Plaintiffs filed a motion in limine asking the Court to exclude the opinions of Defendant’s two
proffered emergency medicine experts on the ground their intended testimony is cumulative and
will prejudice Plaintiffs.2 The Motion is fully briefed.3 The Court having considered the parties’
briefing, arguments, and relevant law will deny the Motion.
In the Motion, Plaintiffs claim that the expert reports prepared by Dr. Spangler and Dr.
Sharon, both emergency medicine experts, reveal little to no variance in their opinions regarding
N.E.D.’s treatment at GIMC. See Mot. at 3-4. Plaintiffs assert that Defendant should not be
allowed to present such unnecessarily cumulative testimony because it will waste judicial
resources and will cause undue prejudice to Plaintiffs in contravention of Federal Rule of
Evidence 403. See Mot. at 2. Plaintiffs suggest that the prejudice is exacerbated by the financial
burden of “deposing two expert witnesses charging exorbitant witness fees when their testimony
will overlap.” See Mot. at 2. Though relegated to a footnote in the Motion, and only expounded
upon in their Reply, Plaintiffs also argue that Dr. Sharon’s disclosure should be stricken because
his expert report is unsigned, and because Defendant failed to include Dr. Sharon’s fee schedule
with the disclosure. See Mot. at 3, FN 1; Reply at 3-4.
Defendant counters first that Plaintiffs’ Motion is premature, suggesting that the use of
the term “may” in Federal Rule of Civil Procedure 26(a)(2)(A)4 contemplates that parties will
designate more experts than they intend to call at trial and that several strategic considerations, as
here, affect a party’s ultimate selection. See Resp. at 2. Defendant also contends that Dr.
See PLAINTIFFS’ MOTION IN LIMINE TO EXCLUDE DEFENDANT UNITED STATES OF AMERICA’S
EMERGENCY MEDICINE EXPERTS (Doc. 85) (Motion).
See THE UNITED STATES’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION IN LIMINE TO
EXCLUDE ITS EMERGENCY MEDICINE EXPERTS (Doc. 86) (Response); PLAINTIFFS’ REPLY
MEMORANDUM IN SUPPORT OF THEIR MOTION IN LIMINE TO EXCLUDE DEFENDANT UNITED
STATES OF AMERICA’S EMERGENCY MEDICINE EXPERTS (Doc. 94) (Reply).
Federal Rule of Civil Procedure 26(a)(2)(A) provides that “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.” Fed. R. Civ. P.
26(a)(2)(A) (emphasis added).
Spangler and Dr. Sharon have unique education and experience that shape their opinions in this
case. See Resp. at 2. Specifically, Defendant states that in addition to offering opinions on Dr.
Waite’s decision to intubate N.E.D., Dr. Spangler will also offer “insight into the overall
workings of emergency room departments.” See Resp. at 2-3. Dr. Sharon, the United States
continues, has experience working in the same geographical part of the country and trauma
treatment level as GIMC. See Resp. at 3-4. Defendant points out that Plaintiffs have had the
opportunity to depose both experts to explore anticipated testimony, yet chose not to do so, and
only for the first time in this Motion raised concerns regarding the expense of deposing both
experts – a concern that Defendant suggests is not credible given the monetary damages at issue
in this case. See Resp. at 5. Finally, Defendant argues that any alleged prejudice is mitigated by
the fact that the Court, rather than a jury, will be the factfinder in this case. See Response at 6-7.
Apparently the parties do not dispute that testimony from an expert in emergency
medicine related to the standard of care and the treatment provided to Plaintiff N.E.D. at GIMC
on February 28, 2016 is relevant. However, Federal Rule of Evidence 403 authorizes a court to
exclude even relevant evidence “if its probative value is substantially outweighed by a danger
of…unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Fed. R. Evid. 403. The “exclusion of evidence
under Rule 403…is an extraordinary remedy and should be used sparingly.” U.S. v. Brooks, 736
F.3d 921, 941 (10th Cir. 2013) (internal quotation marks and citation omitted). While the Court
has discretion to limit the number of experts under this rule it cannot do so “arbitrarily, or on the
basis of mere numbers.” See Green Constr. Co. v. Kan. Power & Light Co., 1 F.3d 1005, 1014
(10th Cir. 1993).
Defendant assures the Court that it does not seek to introduce cumulative testimony at
trial, and that Dr. Spangler’s testimony will address general emergency room procedure while
Dr. Sharon will speak more specifically to practice in Level III Trauma Centers in a
geographically similar area of the United States. Under New Mexico law, a doctor has the duty
to possess and apply the knowledge and to use the skill and care ordinarily used by reasonably
well-qualified doctors practicing under similar circumstances, giving due consideration to the
locality involved. NMRA, Civ. UJI 13-1101. Accordingly, while New Mexico does not adhere to
a “strict locality” rule, locality is one factor to consider when analyzing whether a physician’s
conduct met the standard of care. See Pharmaseal Laboratories, Inc. v. Goffe, 1977-NMSC-071,
¶ 16, 568 P.2d 589, 594 (“[D]ue consideration must be given by the fact-finder to the locality
involved and the ways, if any, in which it differs from the locality about which the expert
testifies, but this is merely one factor for the fact-finder to consider.”).
Several of the opinions in the experts’ reports certainly overlap and do not reflect the
differences Defendant suggests exist. However, the Court is not convinced that designation of
two experts who may testify in the same area is necessarily cumulative. Moreover, Plaintiffs
suggest that they will be unduly prejudiced by admission of both experts’ respective testimony.
But, other than citing to financial costs associated with taking the experts’ depositions, if
Plaintiffs decide to do so, Plaintiffs offer no explanation as to how they will prejudiced by
possible duplicative expert testimony at the non-jury trial. The Court does not belittle the costs
involved in litigation and specifically the expense of deposing medical expert witnesses. But
generally, unless manifest injustice would result, the party seeking discovery is responsible for
paying the expert a reasonable fee for time spent responding to that discovery. See Fed. R. Civ.
P. 26 (b)(4)(E). Plaintiffs have not demonstrated that manifest injustice would result from paying
expert fees. Plaintiffs have the option to forego taking in-person depositions or to work with
opposing counsel to reach an agreement about alternatives to reduce costs.
Finally, Plaintiffs ask the Court to strike Dr. Sharon’s disclosure based on Defendant’s
alleged failure to include a fee schedule and the fact that Dr. Sharon’s report lacked a signature.
As a preliminary matter, the Court notes that Defendant included Dr. Sharon’s fees in the
description of Dr. Sharon’s proffered testimony in the United States’ initial expert witness
disclosures. See Ex. 3 to Resp., Defendant’s Expert Witness Disclosures at 2. And while the
Court recognizes that Dr. Sharon’s report was unsigned at disclosure, the report was fully
disclosed by the April 10, 2018 deadline, five months before trial. Plaintiffs have not
demonstrated how the lack of a signature substantively prejudices them. Federal Rule of
Evidence 26 (a)(2)(B) indicates that disclosure of an expert must be accompanied by a written
report, prepared and signed by the witness, that contains a complete statement of the expert’s
opinion and the basis of that opinion, the facts or data the expert considered, the expert’s
qualifications, a list of cases in which the witness has testified for the previous four years, and a
statement of compensation. Defendant has substantially complied with this rule, and the Court
will allow Defendant an opportunity to cure the defect by providing Plaintiffs with a signed and
sworn copy of the report or a sworn affidavit from Dr. Sharon adopting the report’s contents. See
Jenkins v. Bartlett, 487 F.3d 482, 489 (7th Cir. 2007) (finding that a letter submitted by an
attorney for police officers in a 42 U.S.C. § 1983 action that identified doctors as expert
witnesses, provided the curriculum vitae of each witness, and stated the expected testimony and
basis of that testimony, substantially complied with Fed. R. Civ. P. 26(a)(2)(B), notwithstanding
the fact that neither doctor had prepared or signed the letter, but where both doctors subsequently
submitted sworn affidavits adopting the letter’s contents).
At this time the Court will not require Defendant to exclude one of the disclosed
emergency medicine experts. However, the Court may later decide to restrict Defendant to one
emergency medicine expert if it becomes clear that the testimony of Dr. Spangler and Dr. Sharon
is inappropriately cumulative.
IT IS THEREFORE ORDERED THAT Plaintiffs’ Motion in Limine to Exclude
Defendant United States of America’s Emergency Medicine Experts (Doc. 85) is DENIED
without prejudice, allowing Plaintiffs to make proper objections to cumulative evidence at trial.
SENIOR UNITED STATES DISTRICT JUDGE
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