Torres v. Yocum et al
Filing
156
MEMORANDUM Thus, Defendant Yocum's motion in limine seeking to preclude expert testimony from past and current treating physicians on causation and prognosis will be granted in part and denied in part.An appropriate Order shall issue.Signed by Honorable Robert D. Mariani on 4/5/16. (jfg)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANGEL TORRES,
Plaintiff
Civil No.3: 11-cv-1582
(Judge Mariani)
v.
DR. JEFFREY YOCUM, et al.,
Defendants
MEMORANDUM
A jury trial is scheduled to commence in this action on Monday, April 11 ,2016. The
complaint alleges that Plaintiff was deprived of his HIV medication during his confinement
at the Lebanon County Correctional Facility ('tCCF"). Based on the alleged failure to
receive HIV treatment, Plaintiff claims that he suffered from damage to his health.
Plaintiffs pretrial memorandum identifies Dr. Deborah McMahon, Clinical Director of
the University of Pittsburgh Medical Center's HIV/AIDS Program, as a proposed expert
witness. (Doc. 129, p. 6). Plaintiff sought Dr. McMahon's expertise "primarily to assist
Plaintiff in providing a demand to defense." (ld.). Plaintiff explains that, "Dr. McMahon
essentially would be testifying with regard to the relationship of the absence of HIV therapy,
or Art [], and damages occurring as a consequence of that absence inasmuch as, for
instances, the patient's immune response is reduced and inflammation is increased and/or
their relationship to the development of active AIDS." (ld.).
Defendant Yocum filed a motion in limine (Doc. 113) seeking to preclude Plaintiff
from offering evidence on causation and prognosis by way of expert testimony and medical
records. Defendant Yocum moves to exclude this evidence based on the following: (1)
pursuant to Federal Rule of Civil Procedure 26(a)(2), Plaintiff failed to timely disclose the
identity of expert witnesses, and (2) under Federal Rule of Civil Procedure 37(c)(1),
Plaintiffs failure to make the required expert disclosures is not substantially justified. (Doc.
114, pp. 3-4).
Federal Rule of Civil Procedure 26(a)(2) sets forth the duty to disclose expert
testimony, and establishes the timing of the required disclosures of the identity of experts
and their expert reports, providing that:
(a) Required Disclosures.
(2) Disclosure of Expert Testimony.
(A) In General. In addition to the disclosures required by Rule 26(a)(1), 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.
(8) Witnesses Who Must Provide a Written Report. Unless otherwise
stipulated or ordered by the court, this disclosure must be accompanied by a
written report--prepared and signed by the witness--if the witness is one
retained or specially employed to provide expert testimony in the case or one
whose duties as the party's employee regularly involve giving expert
testimony. The report must contain:
(i) a complete statement of all opinions the witness will express and the basis
and reasons for them;
(ii) the facts or data considered by the witness in forming them;
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(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in
the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness
testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in
the case.
(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or
ordered by the court, if the witness is not required to provide a written report, this
disclosure must state:
(i) the subject matter on which the witness is expected to present evidence
under Federal Rule of Evidence 702, 703, or 705; and
(ii) a summary of the facts and opinions to which the witness is expected to
testify.
(D) Time to Disclose Expert Testimony. A party must make these disclosures at the
times and in the sequence that the court orders. Absent a stipulation or a court
order, the disclosures must be made:
(i) at least 90 days before the date set for trial or for the case to be ready for
trial; or
(ii) if the evidence is intended solely to contradict or rebut evidence on the
same subject matter identified by another party under Rule 26(a)(2)(8) or (C),
within 30 days after the other party's disclosure.
FED. R. CIV. P. 26(a)(2)(A), (8), (C), (D). Rule 37(c)(1) provides, in pertinent part, that U[i]f a
party fails to provide information or identify a witness as required by Rule 26(a) ... the party
is not allowed to use that information or witness to supply evidence ... at a trial, unless the
failure was substantially justified or is harmless." FED. R. CIV. P. 37(c)(1).
Plaintiffs counsel concedes that she did not timely disclose the identity of any expert
witnesses. (Doc. 130). Moreover, at the April 1,2016 pretrial conference, Plaintiffs
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counsel indicated that she will not call Dr. McMahon as medical expert and will not produce
an expert report from Dr. McMahon. The following exchange occurred between the Court
and Plaintiffs counsel:
THE COURT: I'm looking at your pre-trial memo, subsection F on Page 6,
wherein, you speak of Dr. Deborah McMahon, and you say, quote, Her
expertise was sought primarily to assist Plaintiff providing a demand to
defense, and you go on to say Dr. McMahon would explain the relationship
between the HIV condition and the use of ART, antiretroviral therapy and its
effects upon the immunological system, etc. I've read your brief in opposition
to Defendant's Motion in Limine, and I fail to understand why you did not
secure the services of Dr. McMahon and obtain a report from her, irrespective
of whether Dr. Yocum's deposition was delayed. There's not enough of a
nexus here for me to justify your failure to do that.
MS. KIFT: Your Honor I have no problem with that, it's just that -- because 1'm
not bringing her in.
THE COURT: You're not?
MS. KIFT: I'm not asking to bring her in. I cut her off. But then if I can't bring
in treaters who are not -
THE COURT: Let's take one at a time here, okay. Let's take one at a time.
MS. KIFT: Well, there are alternatives, actually.
THE COURT: Let's take one at that time. Just so the record is clear, because
I don't want any ambiguities in the record. You are not going to call Dr.
Deborah McMahon, is that correct Ms. Kift?
MS. KIFT: It is my intention not to call Dr. Deborah McMahon -- her name is
spelled oddly, I see it in print and I can't read it in my own head. Dr.
McMahon, I'm sorry, but my intention is not to call her. In the event that I
may bring in the attending physicians who are all over the records, that's
where I got the names -
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THE COURT: When you say it's not your intention to call Dr. McMahon, does
that mean that I need not rule on Mr. Faulkrod's Motion in Limine on behalf of
Dr. Yocum because you're not going to call her?
MS. KIFT: Your Honor, yeah, it means that. I hate to do that because it's nice
to have something on the record indicating I'm not going to get her in anyway.
(Unofficial Transcript of Pretrial Conference at 24-26).
Accordingly, Plaintiffs agreement not to call Dr. McMahon as an expert renders
Defendant Yocum's motion in limine seeking to preclude expert testimony moot.
Defendant Yocum's motion in limine also seeks to preclude expert testimony from
past and current treating physicians on the issues of causation and prognosis. (Doc. 114,
p.3). Again, Defendant's basis for precluding this evidence is Plaintiffs failure to comply
with Federal Rule of Civil Procedure 26(a)(2). At the pretrial conference on April 1, 2016,
Defense counsel agreed that the physicians who treated Plaintiff at any correctional
institution where he was incarcerated may testify as to diagnosis and treatment. (Unofficial
Transcript of Pretrial Conference at 26-27). Defendant reserved the right to object to any
questions from Plaintiffs counsel that may attempt to elicit opinion testimony from these
physicians. (Unofficial Transcript of Pretrial Conference at 31). Plaintiffs counsel agreed
that the testimony of these treating physicians would be limited to facts showing diagnosis
and treatment. (Unofficial Transcript of Pretrial Conference at 31). Plaintiffs counsel
further indicated that no physician would be called who treated Plaintiff outside of the
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correctional facilities where he was housed. (Unofficial Transcript of Pretrial Conference at
31-32). The following discussion transpired:
MR. FOULKROD: We don't object to the authenticity of the prison records,
Your Honor. I would just like to state my position that these prison records
can testify as to what's in the records, but if there's an effort to go beyond
what's in the records to elicit expert testimony, I would obviously object to that
because there's been no report.
THE COURT: I understand. I'm hearing Ms. Kift tell me she wishes to elicit
testimony from them as to their treatment of Mr. Torres, isn't that right Ms.
Kift?
MS. KIFT: Yes Your Honor.
THE COURT: ... So we're clear, are there any other doctors who are at least
potential witnesses here who are not associated with correctional institutes,
who did not treat the Plaintiff while he was incarcerated, who may be
witnesses, because if there are, I want to know about them right now. Is there
anyone else?
MR. SCHWALM: No.
MS. KIFT: Okay. Santangelo?
THE COURT: We will get to her, but there's no one else, Ms. Kift?
MS. KIFT: No. If we go before all of this --I mean, we could go back to Green
Haven, there was a doctor there, because that's -
THE COURT: My question was doctors not associated with treatment at the
correctional institutes.
MS. KIFT: There are absolutely no doctors who are not associated with
treatment. Thank you.
(Unofficial Transcript of Pretrial Conference at 31-32).
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Thus, Defendant Yocum's motion in limine seeking to preclude expert testimony from
past and current treating physicians on causation and prognosis will be granted in part and
denied in part.
An appropriate Order shall issue.
Date: April
-<
..
I
2016
Robert D. Ma' ni
United States District Judge
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