Ramos-Rios et al v. US Government, et al
Filing
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OPINION AND ORDER: Granted in part and Denied in part 42 Motion in Limine. Signed by Judge Gustavo A. Gelpi (GDM) Modified on 11/20/2014 to correct Document Type and add "Opinion &" (su).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
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RAMOS-RIOS, et. al.,
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Plaintiffs,
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CIVIL NO. 12-1985 (GAG)
v.
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UNITED STATES OF AMERICA, et. al.,
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Defendants.
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OPINION AND ORDER
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Presently before the court is Defendants’ motion in limine seeking to exclude the testimony
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of three fact witnesses announced by Plaintiffs, who at one point or another were involved in the
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care, diagnosis and/or treatment of the main plaintiff Roberto Ramos Ríos (“Ramos Ríos”),
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pursuant to Fed. R. Civ. P. 403. (Docket No. 42.) Defendants also seek to exclude direct evidence
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which they label as inadmissible, irrelevant, or prejudicial pursuant to Fed. R. Evid. 801 and 702.
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Id. Plaintiffs did not oppose Defendants’ in limine request. Pursuant to Local Rule of Civil
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Procedure 7(b), “[u]nless within (14) days after the service of a motion the opposing party files a
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written objection to the motion, incorporating a memorandum of law, the opposing party shall be
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deemed to have waived objection.” D.P.R. CIV. R. 7(b). Rather than opposing Defendants’ motion
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in limine to exclude certain testimony and evidence, Plaintiffs opted not to file a response; thus
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waiving any objections under Local Rule 7.
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Defendants’ motion in limine seeks to exclude or limit the scope of the testimony of three
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of Plaintiffs’ fact witnesses as announced in the Proposed Joint Pretrial Order (Docket No. 35);
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physicians Dr. Santos Picó (“Dr. Picó”), Dr. José Manatou (“Dr. Manatou”) and Department of
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Veteran Affairs (“DVA”) nurse Nancy Rodríguez. (Docket No. 42 at 2.) Defendants also seek to
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Civil No. 12-1985 (GAG)
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exclude from trial direct evidence announced by Plaintiffs in the Proposed Joint Pretrial Order
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(Docket No. 35 at 25), to wit, the diary or log of events of plaintiff Myrna Ramos Mercado
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(“Ramos-Mercado”) and evidence of direct economic costs of damages. (Docket No. 42 at 1-2.)
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I.
Discussion
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A. Fact Witnesses Dr. Picó and Dr. Manatou
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Plaintiffs included Dr. Picó and Dr. Manatou as fact witnesses who shall testify “as to their
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personal knowledge of overall events and medical conditions, and medical opinion.” (Docket No.
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35 at 23.) As to said physicians, Defendants contend that “personal knowledge of overall events”
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does not pertain to precise issues related to the present case, suffers from vagueness, and should
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not be admitted into evidence.
(Docket No. 42 at 4.)
Defendants moreover posit that the
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testimonies of Dr. Picó and Dr. Manatou will be unnecessary and delay the process of trial because
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Plaintiffs already have an expert witness, Dr. Alvarez-Berdecía, who will render his medical
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opinion; therefore, listing Dr. Picó and Dr. Manatou as fact witnesses constitutes cumulative
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evidence. Id. As to Dr. Manatou, Defendants specifically question his unbiased opinion and
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validity of testimony because he is a family friend of plaintiff Miriam Ramos-Mercado. Id.
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The court first addresses Dr. Picó and Dr. Manatou’s involvement in this case. Based on
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the facts as alleged by Plaintiffs, both Dr. Picó and Dr. Manatou played a role in the treatment of
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the main plaintiff during the relevant timeframe for the present action. Dr. Manatou, a family
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friend of the family, was called for a house visit in 2011 after Ramos Ríos was sent home by Dr.
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Warrington. (Docket No. 35 at 4.) After evaluating Ramos Ríos in his home, Dr. Manatou
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immediately ordered an ambulance for Ramos Ríos to receive an adequate medical evaluation at a
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different medical facility than the one that had previously treated Ramos Ríos. Id. Upon Ramos
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Ríos’ arrival to HIMA at Caguas, Dr. Picó treated him. Id. Ramos Ríos was then under the care of
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Civil No. 12-1985 (GAG)
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Dr. Picó, who diagnosed him with a subdural hematoma and ordered an operation to remove the
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hematoma. (Docket No. 35 at 4.)
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In their Proposed Joint Pretrial Order Plaintiffs noted that said physicians’ testimonies
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would be limited to their personal knowledge, medical conditions and opinions. (Docket No. 35 at
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23.) For that reason, both Dr. Picó and Dr. Manatou were rendered fact witnesses as opposed to
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expert witnesses.
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The First Circuit Court of Appeals has held that treating physicians that are presented by a
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party “to provide testimony arising from their roles as actors in the events giving rise to the
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litigation . . . are treated as fact witnesses”—not experts—and thus are not subject to the stringent
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requirements that Fed. R. Civ. P. 26 created for expert witnesses. See Gómez v. Rivera Rodríguez,
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344 F.3d 103, 113 (1st Cir. 2003); see also González v. Executive Airlines, Inc., 236 F.R.D. 73, 78
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(D.P.R. 2006). “Accordingly, a party need not identify a witness as an expert [under Rule 26] so
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long as the witness played a personal role in the unfolding of the events at issue and the anticipated
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questioning seeks only to elicit the witness’s knowledge of those events.” Gómez, 344 F.3d at
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113-14. This is because “the triggering mechanism for [the] application of Rule 26’s expert
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witness requirements is not the status of the witness, but, rather, the essence of the proffered
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testimony.” Gómez, 344 F.3d at 113.
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Dr. Picó and Dr. Manatou testimonies will explain their personal role in the events at issue,
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and not their expert medical opinions regarding the cause of Ramos Ríos’ damages or Defendants’
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liability, for example. To that extent, their testimonies are entirely relevant and not cumulative, as
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Defendants argue. The court notes that Dr. Manatou’s relationship as a family friend is irrelevant
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at this stage, and that fact alone does not raise any red flags. In any event, the validity of his
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testimony turns on a credibility issue for the jury, not the court, to decide. The bottom line is that
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both Dr. Picó and Dr. Manatou are listed as fact witnesses, thus their first-hand testimony shall be
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based on the personal role they played in the unfolding of events at issue, i.e., during the course of
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their involvement with and treatment of Ramos Ríos. “[T]aking the plaintiff’s designations in
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context and crediting his assertion that Drs. [Picó and Manatou] [are] within the penumbra of
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‘medical treatment providers,’ it is nose-on-the-face plain that these two physicians were intended
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to be fact witnesses who would testify only as to the nature of the plaintiff’s condition and the
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extent of his damages.” Samaan v. St. Joseph Hosp., 670 F.3d 21, 36 (1st Cir. 2012).
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Consequently, the court DENIES Defendants’ motion in limine with respect to the
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testimonies of Dr. Picó and Dr. Manatou. However, the court cautions that their testimonies must
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be closely constrained to facts based on their personal knowledge of the events at issue, i.e., their
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direct involvement in the care, diagnosis, examination and/or treatment of Ramos Ríos. See
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González, 236 F.R.D. at 78. In other words, Dr. Picó and Dr. Manatou’s testimonies shall not
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extends beyond the facts made known to them during the course of the care and treatment of
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Ramos Ríos or their personal knowledge of such related events. Further, they cannot provide an
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opinion testimony.
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B. Fact Witness Nancy Rodríguez
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Defendants contend that Nancy Rodríguez (“Rodríguez”) is not a physician, but a Certified
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Adult Nurse Practitioner (CANP) in the DVA. (Docket No. 42 at 5.) Moreover, they question the
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relevancy of her testifying on the motor functions of the Ramos Ríos prior to the alleged incident.
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Id. Defendants also question her testimony’s relevancy because Ramos Ríos has been treated at
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the DVA for many years prior to the alleged accident and had been diagnosed with multiple
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medical infirmities. Id. Lastly, Defendants posit that pursuant to DVA Regulations a party
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seeking testimony of a DVA employee must obtain prior authorization to allow the employee to
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Civil No. 12-1985 (GAG)
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testify and a subpoena must be served on the DVA employee. Id. Though Defendants contend
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that Rodríguez’s testimony should not be allowed due to the absence of administrative
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authorization, they aver her testimony, if rendered, could also be considered cumulative. (Docket
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No. 42 at 6.)
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Plaintiffs included Rodríguez as a fact witness who shall testify “as to communication and
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motor functions capabilities [of plaintiff Roberto Ramos Ríos] before accident at hospital 2010.”
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(Docket No. 35 at 23.) As part of the DVA’s medical staff that intervened with Ramos Ríos,
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Rodríguez has personal knowledge of his conditions and capabilities before the incident at issue in
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the hospital. Because this case sounds in tort, with her testimony, it seems that Plaintiffs intend to
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paint a before-and-after picture of Ramos Ríos’s condition that touches upon his damages claims,
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deeming it entirely relevant and non-cumulative. Accordingly, the court DENIES Defendants’
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motion in limine with respect to the testimony of Rodríguez. The court however notes that it is
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Plaintiffs’ responsibility to meet all necessary DVA Regulations requirements for Rodríguez to
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testify; otherwise, Rodríguez shall not be authorized to provide her testimony in court.1
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C. Diary of Myrna Ramos Mercado
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Plaintiffs intend to use as an exhibit the “Diary/Log of events of Daughter, Myrna Ramos
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Mercado.” (Docket No. 35 at 25.) Defendants, in turn, seek to exclude said evidence. They argue
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that the diary is not a record kept in the ordinary course of business and that an unsigned, unsworn
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diary constitutes hearsay because it does not have any guarantees of trustworthiness as required by
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Fed. R. Evid. 807 because there is no way of knowing when Ramos-Mercado wrote those diary
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Section 14.803(a) of the DVA Regulations on “Testimony of Department Personnel and Production of Department
Records in Legal Proceedings” states that: “VA personnel may provide testimony or produce VA records in legal
proceedings covered by §§ 14.800 through 14.810 only as authorized in accordance with these regulations.” 38 C.F.R.
§ 14.803
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Civil No. 12-1985 (GAG)
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entries and they may be easily altered or edited to favor Plaintiffs’ arguments. (Docket No. 42 at
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6-7.)
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As mentioned above, Plaintiffs failed to oppose Defendants’ motion in limine, thus waiving
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their objections under Local Rule 7 and, in turn, failing to espouse a reason why this diary should
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not be excluded as evidence. Moreover, Plaintiffs did not elucidate in the Proposed Joint Pretrial
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Order the reason why they seek to offer the diary as evidence. The outcome of Plaintiffs’
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omissions is that the court cannot ascertain the purpose and extent to which Plaintiffs seek to admit
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the proffered diary as evidence during trial—the court is not a mind reader.
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If the diary is submitted to prove that the recorded events actually occurred, the diary
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entries are hearsay. Collins v. Kibort, 143 F.3d 331, 338 (7th Cir.1998); see Emerson v. Zanke,
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522 F. Supp. 2d 281, 282 (D. Me. 2007). Diary entries may be admissible under Rule 803(5) or
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certain other exceptions.
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Admissibility depends on the trial context and here, the court does know whether Plaintiffs, like
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Defendants suggest, intend to use the diary itself to prove the truth of the matter asserted in the
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entries included therein. This would necessarily constitute inadmissible hearsay, tarnishing the
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diary with dubious admissibility. Mindful of the court’s “gatekeeping” obligation and because it
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cannot determine the probative value of the Ramos-Mercado diary, Defendants’ motion in limine
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as to this diary is GRANTED and said evidence is hereby excluded.
See Collins, 143 F.3d at 338; Emerson, 522 F. Supp. 2d at 282.
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D. Evidence of direct economic costs of damages
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Plaintiffs included as their exhibits “direct economic costs of damages” in the Proposed
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Joint Pretrial Order. (Docket No. 35 at 25.) Defendants contend that evidence on this matter
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requires expert testimony and that the deadline for the parties to announce their expert witnesses
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has expired. See Docket No. 23. Defendants aver that, even though said period elapsed, an
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economic damages report must be prepared by a qualified expert in medicine and life expectancy,
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as it requires several factors to be considered for Plaintiff to present a credible and qualified expert
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testimony related to the economic damages of plaintiff Ramos Ríos. (Docket No. 42 at 8.)
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Defendants argue that Plaintiffs intend to present an expert report pertaining to the alleged
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economic damages suffered by the main plaintiff and that said report must be prepared by a
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qualified expert in medicine and life expectancy. Id. Defendants thus seek to exclude this
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evidence.
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Plaintiffs’ lack of specificity and clarification in merely listing “direct economic costs of
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damages” and failure to oppose Defendants’ request to exclude said evidence makes it near
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impossible for the court to determine the nature and scope of the documentary evidence they seek
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to utilize during trial. Defendants argue that said statement necessarily means that Plaintiffs seek
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to introduce an expert report as to the main plaintiff’s economic damages, without announcing said
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expert within the court’s imposed deadline.
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Defendants are correct in their proclamation that the court-established deadline for
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Plaintiffs to announce their expert witnesses and submit reports elapsed on November 11, 2013—
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over a year ago. See Docket No. 23. Plaintiffs thus failed to list an expert witness to testify or
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provide an expert report as to Ramos Ríos’s direct costs of economic damages in a timely fashion.
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In addition, Plaintiffs failed to oppose Defendants’ motion in limine and, as a consequence waived
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any objections to this admissibility issue under Local Rule 7. The court is thus persuaded by
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Defendants’ arguments to exclude this evidence. Accordingly, Defendants motion in limine is
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GRANTED as to Plaintiffs’ exhibit pertaining to the direct economic costs of damages.
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II.
Conclusion
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For the reasons set forth above, Defendants’ motion in limine at Docket No. 42 is hereby
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DENIED in part and GRANTED in part. The motion is DENIED as to the testimonies of the
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three fact witnesses sought to be excluded: the testimonies of Dr. Picó, Dr. Manatou and
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Rodríguez. Said testimonies are hereby allowed within the limitations articulated in this opinion.
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Concerning the direct evidence sought to be excluded by Defendants, the diary of Ramos-Mercado
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and the direct economic costs of damages, the motion is GRANTED and said evidence is hereby
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excluded as inadmissible.
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SO ORDERED.
In San Juan, Puerto Rico this 18th day of November, 2014.
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s/ Gustavo A. Gelpí
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GUSTAVO A. GELPI
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United States District Judge
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