Tyler v. United States of America et al

Filing 98

ORDER granting in part, denying in part, and reserving in part 78 United States' Motion in Limine, as fully set out in this Order. Signed by Judge Jodi W. Dishman on 1/6/2025. (nv)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CLARENCE MADISON TYLER,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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Case No. CIV-19-01102-JD

ORDER
Before the Court is the United States’ Motion in Limine (“Motion”) [Doc. No. 78].
Plaintiff Clarence Madison Tyler (“Mr. Tyler”) responded in opposition (“Response”)
[Doc. No. 85]. The United States seeks to exclude the testimony of Mr. Tyler’s wife and
pastor as irrelevant, duplicative, cumulative, and a waste of the Court’s time.
Additionally, the United States seeks to limit the testimony of Dr. Bautista-Gutierre to lay
testimony as Mr. Tyler did not notice her as an expert under Federal Rule of Civil
Procedure 26(a). For the reasons stated below, the Court grants in part, denies in part, and
reserves in part the Motion.
I.

BACKGROUND
Mr. Tyler’s assault and battery claim (Count 1) brought under the Federal Tort

Claims Act (“FTCA”) is the sole claim remaining for bench trial.1 This FTCA case stems
from Mr. Tyler’s arrest by Veterans Affairs (“VA”) law enforcement officers on May 8,

1

There is no right to a jury trial under the FTCA. See 28 U.S.C. § 2402; United
States v. Neustadt, 366 U.S. 696, 701 n.10 (1961).

2018, at the Oklahoma City VA Medical Center. VA officers were transporting a patient
on a gurney into an elevator when Mr. Tyler, who was at the facility for his own medical
care, attempted to intervene with the transport. As a result, Mr. Tyler was arrested and
charged with assaulting a federal officer, in violation of 18 U.S.C. § 111(a)(1). Mr. Tyler
was acquitted of the conduct by a jury on December 5, 2018.
Mr. Tyler asserts that the VA officers used excessive force in effectuating his
arrest and advances a FTCA claim for assault and battery. Mr. Tyler intends to call his
wife, Rhonda Tyler, and his pastor, Robert Taylor, to “testify as to [Mr. Tyler’s]
emotional distress and pain resulting from the May 8, 2018” incident. [Doc. No. 80 at
11].2 Additionally, he intends to call Dr. Bautista-Gutierre, his treating physician, as a
fact witness. Response at 3. Mr. Tyler anticipates that Dr. Bautista-Gutierre will testify in
her capacity as his treating physician about the “injuries [Mr. Tyler] sustained at the
hands of VA police,” “[Mr. Tyler’s] complaints of the May 8, 2018” incident, and his
fear in “attending his medical appointments at the VA due to continuous staring by police
officers involved in the incident.” [Doc. No. 80 at 11]. Dr. Bautista-Gutierre is also
expected to testify that, as a result, she permitted Mr. Tyler “to treat via Zoom.”3 [Doc.
No. 80 at 11].

2

Mr. Tyler noticed his wife’s and pastor’s anticipated testimony in his discovery
responses on January 27, 2022, in his Final Witness and Exhibit List filed on April 22,
2022, and in the Final Pretrial Report filed on September 30, 2024. See [Doc. Nos. 85-1
at 11–12, 48 at 3, and 80 at 11]. The United States elected not to depose either witness.
Response at 2.
3

Mr. Tyler noticed Dr. Bautista-Gutierre as a fact witness in his Final Witness and
Exhibit List filed on April 22, 2022, and in the Final Pretrial Report filed on September
2

II.

LEGAL STANDARD
Although motions in limine are not formally recognized under the Federal Rules

of Evidence, district courts have long recognized the potential utility of pretrial rulings
under the Court’s inherent power to manage the course of trial proceedings. See Luce v.
United States, 469 U.S. 38, 41 n.4 (1984) (citing generally Fed. R. Evid. 103(c)). A
motion in limine presents the trial court with the opportunity “to rule in advance of trial
on the relevance of certain forecasted evidence, as to issues that are definitely set for trial,
without lengthy argument at, or interruption of, the trial.” Bond v. Bd. of Cnty. Comm’rs
of Muskogee Cnty., No. 20-7067, 2023 WL 3589081, at *10 (10th Cir. May 23, 2023)
(unpublished) (quoting Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996) (internal
quotation marks and citation omitted)).
Although such pretrial rulings can save time and avoid interruptions at trial, “a
court is almost always better situated during the actual trial to assess the value and utility
of evidence.” Wilkins v. Kmart Corp., 487 F. Supp. 2d 1216, 1218 (D. Kan. 2007); see
also Richardson v. Mo. Pac. R.R. Co., 186 F.3d 1273, 1276 (10th Cir. 1999) (explaining
that weighing of evidence under Rule 403 is normally “done against a backdrop of the
actual evidence at trial,” but recognizing that some “evidentiary issues are akin to
questions of law, and the decision to admit such evidence is not dependent upon the
character of the other evidence admitted at trial” (citation omitted)). As such, a court

30, 2024. See [Doc. Nos. 48 at 3, 80 at 11]. Mr. Tyler did not notice Dr. Bautista-Gutierre
as an expert witness, and the time to do so expired on March 8, 2022. See [Doc. No. 42 at
1].
3

should generally “reserve its rulings for those instances when the evidence plainly is
inadmissible on all potential grounds, and it should typically defer rulings on relevancy
and unfair prejudice objections until trial when the factual context is developed.” Wilkins,
487 F. Supp. 2d at 1218–19 (citations omitted); see also Wheatridge Off., LLC v. AutoOwners Ins. Co., 578 F. Supp. 3d 1187, 1201 (D. Colo. 2022).4
Some in limine rulings, such as relevance, are preliminary in nature because the
required balancing may be reassessed as the evidence is presented. Accordingly, “[a]
district court ‘may change its ruling at any time for whatever reason it deems
appropriate.’” United States v. Martinez, 76 F.3d 1145, 1152 (10th Cir. 1996) (quoting
Jones v. Stotts, 59 F.3d 143, 146 (10th Cir. 1995)); see also Luce, 469 U.S. at 41–42
(“The ruling is subject to change when the case unfolds, particularly if the actual
testimony differs from what was contained in the defendant’s proffer. Indeed even if

4

As noted, this case is scheduled for a bench trial as there is no right to a jury trial
in FTCA cases. Therefore, some courts have held that “[i]n a bench trial, [motions in
limine] are unnecessary, as the Court can and does readily exclude from its consideration
inappropriate evidence of whatever ilk.” Cramer v. Sabine Transp. Co., 141 F. Supp. 2d
727, 733 (S.D. Tex. 2001). Nevertheless, motions in limine can be a useful tool in
streamlining the case and providing “a valuable aid to the Court when deciding the
competence of the evidence presented.” Ams. United for Separation of Church & State v.
Prison Fellowship Ministries, 395 F. Supp. 2d 805, 807 (S.D. Iowa 2005); see also
Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997)
(explaining that “the motion in limine is an important tool available to the trial judge to
ensure the expeditious and evenhanded management of the trial proceedings”).
Additionally, motions in limine are an important tool for the parties in preparation for
their trials, so that they are not expending unnecessary resources and time in preparing
for witnesses or evidence that may be limited or excluded from trial. Cf. Fed. R. Civ. P. 1
(“[T]he court and the parties [should attempt] to secure the just, speedy, and inexpensive
determination of every action and proceeding.”).
4

nothing unexpected happens at trial, the district judge is free, in the exercise of sound
judicial discretion, to alter a previous in limine ruling.”).
III.

ANALYSIS
A.

Testimony of Rhonda Tyler and Pastor Robert Taylor

The United States contends that “[n]either of these witnesses . . . will be able to
add any factual testimony other than that which [Mr. Tyler] will testify to himself” and
moves under Federal Rules of Evidence 401, 403, 602, 611(a)(2), 801, and 802 to
preclude their testimony at trial. Motion at 5–6. The United States asserts that neither
Mrs. Tyler nor Pastor Taylor has any personal knowledge of Mr. Tyler’s own emotional
distress and pain, that any testimony they would offer would be cumulative of Mr.
Tyler’s and a waste of the Court’s time, and that their testimony would be mostly
composed of hearsay, with the witnesses stating what Mr. Tyler told them about his
distress and pain. See id. Finally, the United States contends that Mrs. Tyler did not
accompany her husband to his VA appointments and Mr. Tyler failed to identify marital
consortium-type harm in discovery; thus, Mrs. Tyler’s testimony on such specific matters
should be barred under Federal Rule of Civil Procedure 37(c)(1). See id. at 6–7.
Mr. Tyler responds that he gave the United States proper notice that both
witnesses would be called to testify at trial. Response at 1. He further asserts that his wife
is competent to testify about her personal observations of her husband “as he dealt with
the trauma, embarrassment, and physical injuries resulting from the May 8, 2018 event.”
Id. at 2. He maintains that his pastor’s anticipated testimony goes to his personal
observations of Mr. Tyler as he provided Mr. Tyler with spiritual support. Id. Finally, he
5

contends that the United States did not depose either witness and is simply speculating
about what each witness will say. Id.
(1)

Need for Personal Knowledge and Hearsay Considerations

Federal Rule of Evidence 602 requires that a testifying witness “ha[ve] personal
knowledge of the matter” of which he or she is testifying. Fed. R. Evid. 602. “Evidence
to prove personal knowledge may consist of the witness’s own testimony.” Id. “[A]
witness who testifies to a fact which can be perceived by the senses must have had an
opportunity to observe, and must have actually observed the fact . . . .” See Fed. R. Evid.
602 advisory committee’s note to 1972 proposed rules. The Tenth Circuit has explained
that this is not a difficult standard to meet, and a trial court “should exclude testimony for
lack of personal knowledge ‘only if in the proper exercise of the trial court’s discretion it
finds that the witness could not have actually perceived or observed that which he
testifies to.’” See United States v. Gutierrez de Lopez, 761 F.3d 1123, 1132 (10th Cir.
2014) (quoting United States v. Sinclair, 109 F.3d 1527, 1536 (10th Cir. 1997)).
Thus, assuming the foundational testimony establishes that Mrs. Tyler and Pastor
Taylor possess firsthand knowledge of the fact she or he proposes to testify about, then
their observations of the emotional distress and pain suffered by Mr. Tyler would be
admissible under Rule 602. For example, if Mr. Tyler seeks to offer evidence through
Pastor Taylor that he sought counseling from his pastor because of the May 8 incident,
then Pastor Taylor’s testimony would be limited to his observations of Mr. Tyler and the
fact that Mr. Tyler underwent counseling. Likewise, Mrs. Tyler could testify about her
observations of Mr. Tyler as they relate to his pain and suffering, but she would be
6

precluded from testifying about the treatment Mr. Tyler sought and received at the VA if
she did not attend the appointments and her basis for her knowledge is not based on her
own observations and was obtained through communications with her husband. Both
witnesses would be precluded from testifying as to matters which they did not see, hear,
or do themselves. See Fed. R. Evid. 602. Thus, the Court grants the Motion to the extent
Plaintiff seeks for Mrs. Tyler or Pastor Taylor to testify about matters for which they lack
firsthand knowledge.
However, the admissibility of statements Mr. Tyler made to his wife or Pastor
Taylor would have to comply with the hearsay rule. See Gutierrez de Lopez, 761 F.3d at
1132 (explaining that a witness’s testimony must comply with the hearsay rule if the
witness only has personal knowledge of an out-of-court statement offered to prove the
fact asserted in the statement, but not personal knowledge of the underlying fact); see
also Fed. R. Evid. 602 advisory committee’s note to 1972 proposed rules (observing that
Rule 602 “does not govern the situation of a witness who testifies to a hearsay statement
as such, if he has personal knowledge of the making of the statement” because the rules
governing hearsay “would be applicable”). Under Federal Rule of Evidence 802,
“hearsay” is admissible only if permitted by “a federal statute,” an exception in the
Federal Rules of Evidence, or “other rules prescribed by the Supreme Court.” Fed. R.
Evid. 802. The Federal Rules define “hearsay” as an out-of-court statement offered “to
prove the truth of the matter asserted.” Fed. R. Evid. 801(c)(2). A “statement” is defined
as “a person’s oral assertion, written assertion, or nonverbal conduct, if the person
intended it as an assertion.” Fed. R. Evid. 801(a).
7

Notably, Rule 801(d)(2) permits testimony of an opponent’s out-of-court
statements, but it does not condone admission of the party’s own out-of-court statements.
See Fed. R. Evid. 801(d)(2). However, such statements could be admissible under Rule
803. For example, Rule 803(3) permits statements to demonstrate “the declarant’s thenexisting state of mind (such as motive, intent, or plan) or emotional, sensory, or physical
condition (such as mental feeling, pain, or bodily health) . . . .” Fed. R. Evid. 803(3).
Thus, statements Mr. Tyler made to describe his current state of emotional distress to his
wife or pastor might constitute an exception to the hearsay rule. However, because the
Court does not know exactly how Mrs. Tyler or Pastor Taylor will testify, it cannot rule
at this time except to say, generally, that Mr. Tyler’s statements to his wife and pastor
about what he saw or heard would constitute hearsay.
Thus, the Court reserves ruling on the specifics of Mrs. Tyler’s and Pastor
Taylor’s testimony until it hears the testimony, but it offers these observations as
guidance to counsel. But the Court cautions counsel that it does not envision lengthy
testimony from either of these witnesses.
(2)

Cumulative Evidence Concerns

The Tenth Circuit has defined cumulative evidence as “evidence which goes to
prove what has already been established by other evidence.” United States v. Otuonye,
995 F.3d 1191, 1208 (10th Cir. 2021) (internal quotation marks and citation omitted). In
deciding whether to exclude evidence as cumulative, the trial judge has wide discretion.
See id. The Tenth Circuit has suggested that, if the witnesses’ testimonies are not “a total
repeat” of each other, and the witnesses provide more detail or discuss topics not raised
8

by the other, the testimony is not cumulative. See United States v. Archuleta, 737 F.3d
1287, 1292–93 (10th Cir. 2013).
The Court is mindful that there is at least some potential for this testimony to
become cumulative and, therefore, Mr. Tyler and his counsel are cautioned to make
efforts to minimize such cumulative testimony during trial.5 However, the Court will
defer its rulings on relevance and unfair prejudice objections under Rules 401, 403, and
611(a)(2) until trial when the factual backdrop is developed. See Richardson v. Mo. Pac.
R.R. Co., 186 F.3d 1273, 1276 (10th Cir. 1999); Wheatridge Off., LLC v. Auto-Owners
Ins. Co., 578 F. Supp. 3d 1187, 1201 (D. Colo. 2022); Wilkins v. Kmart Corp., 487 F.
Supp. 2d 1216, 1218–19 (D. Kan. 2007). Specific objections based on relevance and
undue prejudice, including whether such evidence is cumulative and a waste of the
Court’s time, should be asserted by the parties at trial as appropriate.
(3)

Loss of Marital Consortium

Under Federal Rule of Civil Procedure 37(c)(1), a party who fails to provide
information or identify a witness as required by Rule 26(a) or (e) cannot “use that
information or witness to supply evidence on a motion, at a hearing, or at a trial, unless
the failure was substantially justified or is harmless.” Determining if a Rule 26(a)

5

Contra United States v. McFadden, 116 F.4th 1069, 1108 n.10 (10th Cir. 2024)
(Federico, J., dissenting in part) (quoting United States v. W.B., 452 F.3d 1002, 1006 (8th
Cir. 2006) (“The district court conducted a bench trial and in such a situation, we find
little prejudice in the admission of cumulative evidence or testimony which improperly
bolsters a prior witness.”)). With that said, the parties should keep in mind that this is a
bench trial on a single claim, and they should work to streamline their evidentiary
presentations and focus on what is essential evidence for the asserted claim elements and
asserted defense, considering limited judicial resources.
9

violation is justified or harmless is left to the district court’s broad discretion. See
Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir.
1999). Although a district court need not make explicit findings regarding whether the
non-disclosure was substantially justified or harmless, the following factors should guide
its discretion: “(1) the prejudice or surprise to the party against whom the testimony is
offered; (2) the ability of the party to cure the prejudice; (3) the extent to which
introducing such testimony would disrupt the trial; and (4) the moving party’s bad faith
or willfulness.” See id.
Although Mr. Tyler noticed his wife as a witness in his discovery responses, in his
Final Witness and Exhibit List, and in the Final Pretrial Report, he does not allege a loss
of consortium claim in his Second Amended Complaint, nor is there any indication from
his summary of his wife’s anticipated testimony that he seeks damages for marital
consortium-type harm. See [Doc. Nos. 23, 85-1 at 11–12, 48 at 3, and 80 at 11]. Further,
Mr. Tyler does not respond to the United States’ argument that because he failed to
identify consortium-type harm in discovery, Mrs. Tyler’s testimony on such subject
should be barred under Rule 37(c)(1). See Motion at 6–7; see also Response generally.
Nor does he argue that his failure is substantially justified or harmless or address the
factors identified by the Tenth Circuit in Woodworker’s Supply.6

6

Mr. Tyler has therefore forfeited any arguments regarding the evidence being
barred under Rule 37(c)(1). See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th
Cir. 2011) (explaining that if a “theory simply wasn’t raised before the district court, we
usually hold it forfeited”).
10

Mr. Tyler submits that “it is speculative at best whether [the United States] has
substantial grounds for its motion in limine” given that the government elected not to
depose Mrs. Tyler. Response at 2. In deciding whether to depose Mrs. Tyler, however,
the United States ought to be able to rely on the representations Mr. Tyler and his counsel
made in discovery responses and in his Final Witness and Exhibit List. The Court agrees
with the United States that there has been no indication that Mrs. Tyler would testify as to
consortium-type harm or that loss of consortium is being sought. Further, discovery
closed on June 10, 2022, and there is no time to depose Mrs. Tyler now before trial. See
[Doc. No. 42 at 2]. Thus, Mrs. Tyler is barred from testifying about loss of marital
consortium under Federal Rule of Civil Procedure 37(c)(1).
B.

Testimony of Dr. Bautista-Gutierre

The United States seeks to limit the testimony of Dr. Bautista-Gutierre to lay
testimony as Mr. Tyler did not notice her as an expert under Federal Rule of Civil
Procedure 26(a). Motion at 2. Additionally, the United States contends that “her proposed
testimony is quintessentially expert testimony” and should have been disclosed under
Rule 26(a)(2)(C) and the Court’s Scheduling Order. See id. at 8. Finally, the United
States asserts that Dr. Bautista-Gutierre’s lay testimony will be cumulative of Mr. Tyler’s
testimony. See id. at 11.
In response, Mr. Tyler asserts that he “made it clear” in the parties’ motion in
limine conference “that Dr. Bautista-Gutierre was testifying as a fact witness, although
she served as [his] treating physician.” Response at 3. Mr. Tyler asserts that, if permitted
to testify, Dr. Bautista-Gutierre will testify as to her Zoom visits with Mr. Tyler, which
11

she recommended because Mr. Tyler feared returning to the VA hospital after the May 8,
2018 incident with VA police. See id. He argues that fear is an emotion observable to a
lay witness, and that Dr. Bautista-Gutierre can testify to such without stepping into expert
territory. See id.
Federal Rule of Evidence 701 governs a treating physician’s lay testimony. See
Fed. R. Evid. 701. Under Rule 701, a lay witness’s testimony “in the form of an opinion
is limited to one that is: (a) rationally based on the witness’s perception; (b) helpful to
clearly understanding the witness’s testimony or to determining a fact in issue; and (c)
not based on scientific, technical, or other specialized knowledge within the scope of
Rule 702.” Fed. R. Evid. 701. Rule 701 was amended in 2000 “to eliminate the risk that
the reliability requirements set forth in Rule 702 will be evaded through the simple
expedient of proffering an expert in lay witness clothing.” See Fed. R. Evid. 701 advisory
committee’s note to 2000 amendments. “[T]he amendment also ensures that a party will
not evade the expert witness disclosure requirements set forth in Fed. R. Civ. P. 26 . . . by
simply calling an expert witness in the guise of a layperson.” See id.
Under the amended Rule 701, “a treating physician who has not been identified as
an expert witness pursuant to Rule 26(a)(2) may not provide testimony beyond the scope
of her treatment of [the] plaintiff, and [the physician’s] conclusions must fall within the
province of a lay witness.” Parker v. Cent. Kan. Med. Ctr., 57 F. App’x 401, 404 (10th
Cir. 2003) (unpublished) (internal quotation marks and citation omitted). Notably,
“[t]here is some gray area between lay and expert testimony when the lay witness has

12

expertise and used that expertise to make first-hand observations.” Travelers Prop. Cas.
Co. of Am. v. Ocean Reef Charters LLC, 71 F.4th 894, 907 n.9 (11th Cir. 2023).
“Rule 701 ‘does not permit a lay witness to express an opinion as to matters which
are beyond the realm of common experience and which require the special skill and
knowledge of an expert witness.’” James River Ins. Co. v. Rapid Funding, LLC, 658 F.3d
1207, 1214 (10th Cir. 2011) (quoting Randolph v. Collectramatic, Inc., 590 F.2d 844,
846 (10th Cir. 1979)). Following the amendment of Rule 701, a treating physician
testifying as a lay witness cannot offer medical opinions on causation since such opinions
require “knowledge derived from previous professional experience,” which fall “squarely
within the scope of Rule 702 and thus by definition outside of Rule 701.” Id. at 1215
(brackets omitted) (quoting United States v. Smith, 640 F.3d 358, 365 (D.C. Cir. 2011)).
Diagnosing a medical condition generally requires judgment based on scientific,
technical, or specialized knowledge; thus, a treating physician’s opinions as to same are
usually expert testimony. Nevertheless, there could be cases where a diagnosis is lay
testimony because it is within the province of the ordinary person or requires limited
expertise. See id. at 1214 (explaining that Rule 701 “allows lay witnesses to offer
observations that are common enough and require . . . a limited amount of expertise”)
(internal quotation marks and citation omitted); see also United States v. Henderson, 409
F.3d 1293, 1300 (11th Cir. 2005) (noting that the treating physician’s diagnosis that the
victim’s jaw was fractured was permissible lay testimony, but her statement about what
caused the injury was not). The plain language of Rule 701(c), however, prohibits lay
opinion testimony that is “based on scientific, technical, or other specialized knowledge
13

within the scope of Rule 702.” Fed. R. Evid. 701. Thus, as differentiated by the Eleventh
Circuit, a diagnosis that requires “more complex diagnostic reasoning than that required
to notice a broken jaw may fall under Rule 701(c)’s prohibition.” Travelers Prop. Cas.
Co. of Am., 71 F.4th at 907 n.9.
The United States asserts that because Mr. Tyler interacted with Dr. BautistaGutierre both before and after the incident, her anticipated testimony “is quintessentially
expert testimony.” Motion at 8. The United States contends that her testimony “will
necessarily involve alleged causation” because any discussion of her assessment and
treatment of Mr. Tyler will require a clinical comparison of his prior psychiatric issues
with his post-May 8, 2018 issues and treatment. See id.
Under the confines of Rule 701, Dr. Bautista-Gutierre, as Mr. Tyler’s treating
physician, may testify as to her observations of Mr. Tyler both before and after the
incident, including any relevant examinations she may have performed, diagnostic testing
she may have ordered, related history she may have recorded, and simple conclusions she
would have reached that would be obvious to a layperson, but she would be precluded
from opining as to the causation of his ailments or injuries.7 Mr. Tyler notices in the Final
Pretrial Report that Dr. Bautista-Gutierre will testify: “to injuries [Mr. Tyler] sustained at

7

For example, a treating physician may testify that her patient was coughing and
running a fever because this is permissible lay witness testimony under Rule 701, but she
would be precluded from testifying that she diagnosed the patient with Reactive Airways
Dysfunction Syndrome caused by exposure to toxic chemicals because such testimony
would be based on scientific, technical, or other specialized knowledge. See Travelers
Prop. Cas. Co. of Am., 71 F.4th at 907 n.9.
14

the hands of VA police”; that Mr. Tyler “fear[ed] attending his medical appointments at
the VA due to continuous staring by police officers involved in the incident”; and that she
allowed Mr. Tyler “to treat via Zoom” as a result of his fears. [Doc. No. 80 at 11]. The
Court agrees with the United States that this anticipated testimony treads closely to
causation. Dr. Bautista-Gutierre is prohibited from opining or testifying on what injuries
Mr. Tyler sustained at the hands of VA police or that the VA police caused any injuries.8
She may, however, testify to the facts and circumstances of Mr. Tyler’s treatment.
Further, the Court will not allow Dr. Bautista-Gutierre to testify as to any future
projections regarding Mr. Tyler’s mental or physical state, nor can she rely on other
physician’s reports or testify as to hypotheticals since she is testifying as a lay witness.
The same concerns regarding hearsay noted in the analysis above would apply to
Dr. Bautista-Gutierre’s testimony. Statements Mr. Tyler made to Dr. Bautista-Gutierre
would have to comply with the hearsay rule. It might be that some of Mr. Tyler’s
statements to her would be admissible as an exception to hearsay under Federal Rule of

8

Other district courts within the circuit have concluded that treating physicians
who are not timely disclosed as experts may not testify about causation. See, e.g.,
Montoya v. Sheldon, 286 F.R.D. 602, 620 (D.N.M. 2012) (concluding that the plaintiff’s
treating physician could testify as a lay witness to the facts and circumstances of the
plaintiff’s treatment but could not testify that the defendants’ alleged unconstitutional
conduct caused plaintiff’s mental condition because such testimony must be qualified as
expert testimony under Rule 702 and because mental disorders are complicated and
beyond a lay witness’ realm of experience); Walker v. Spina, No. CIV 17-0991 JB/SCY,
2019 WL 145626, at *22 (D.N.M. Jan. 9, 2019) (explaining that the court would follow
Montoya and would “exclude testimony from treating physicians on complicated
diagnoses, prognoses, and causation”).
15

Evidence 803(4), as statements made for medical diagnosis or treatment, or some other
exception, but the Court will reserve any rulings on hearsay.
The Court cautions Mr. Tyler and his counsel to explain to Dr. Bautista-Gutierre
the parameters on her lay opinion testimony as set out by the Court. The United States
may reassert its cumulative objection at trial, and the Court will take it up during the
presentation of evidence.
IV.

CONCLUSION
For these reasons, the Court GRANTS IN PART, DENIES IN PART, and

RESERVES IN PART the United States’ Motion in Limine [Doc. No. 78]. Specifically,
the Court grants the Motion to the extent the testimony of Mrs. Tyler and Pastor Taylor is
limited to their firsthand knowledge and observations and to the extent Mrs. Tyler is
precluded from testimony on loss of consortium. The Court reserves ruling on other
specific aspects of their testimony until trial when the factual backdrop is developed. The
Court grants the Motion to the extent it seeks to limit the testimony of Dr. BautistaGutierre to the confines of Rule 701, and Dr. Bautista-Gutierre is prohibited from
testifying as to causation of Mr. Tyler’s alleged injuries. Otherwise, the Court denies the
Motion to the extent the United States sought to exclude Dr. Bautista-Gutierre’s
testimony fully. The parties shall inform witnesses of the Court’s rulings.
IT IS SO ORDERED this 6th day of January 2025.

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