Laureano-Monge et al v. Fundacion Francisco Carvajal, Inc. et al
Filing
207
OMNIBUS OPINION AND ORDER granting 146 MOTION in Limine to limit the scope of expert Orlando Fernandez's testimony filed by Integrand Assurance Company, Fundacion Francisco Carvajal, Inc., granting 147 MOTION in Limine t o exclude answers to written discovery as evidence at trial filed by Integrand Assurance Company, Fundacion Francisco Carvajal, Inc., granting 148 MOTION in Limine to exclude evidence not produced filed by Integrand Assurance C ompany, Fundacion Francisco Carvajal, Inc., noting 149 MOTION in Limine to exclude photographs announced by Plaintiffs filed by Integrand Assurance Company, Fundacion Francisco Carvajal, Inc., denying 93 MOTION in Limine to Limit the Opinion Terstimony of Defendants' Orthopedic Expert Dr. Carlos Grovas Badrena To The Findings Of His Physical Examination Of Plaintiff Carmen Laureano Monge and to strike His "Supplemental" Report filed by Carmen Laurean o-Monge, Maruiz Marrero-Ilarraza, granting 138 First MOTION in Limine to Exclude Medical Records and ER Physician Dr. Aura Delgado filed by Carmen Laureano-Monge, Maruiz Marrero-Ilarraza, granting in part and denying in part 144 MO TION in Limine to Exclude Defendants Trial Witnesses and Documentary Exhibits filed by Carmen Laureano-Monge, Maruiz Marrero-Ilarraza deadline for stipulation re: ECF 149 12/13/2021 Signed by Judge John Woodcock, Jr on 11/15/2021.(cs)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
CARMEN LAUREANO-MONGE &.,
MARUIZ MARRERO-ILARRAZA
)
)
)
Plaintiffs,
)
)
v.
)
)
FUNDACIÓN FRANCISCO
)
CARVAJAL, INC.,
)
SUPERMERCADOS MAXIMO, INC., )
and INTEGRAND ASSURANCE CO., )
3:17-cv-01173-JAW
Defendants.
OMNIBUS OPINION AND ORDER
Carmen Laureano-Monge and Maruiz Marrero-Ilarraza filed this lawsuit
against Fundación Francisco Carvajal, Inc. (FFC), Supermercados Maximo, Inc.
(SuperMax), and Integrand Assurance Co. (Integrand) alleging negligence under the
Commonwealth of Puerto Rico’s general tort statute, 31 L.P.R.A. § 5141, after Ms.
Laureano-Monge fell in the Defendants’ parking lot. 1 Compl. (ECF No. 1). Before
the Court are twelve motions in limine. Mot. in Lim. to Limit the Op. Test. of Defs.’
Orthopedic Expert Dr. Carlos Grovas Badrena to the Findings of His Physical
Examination of Pl. Carmen Laureano Monge and to Strike His “Supplementary”
Report (ECF No. 93) (Pls.’ Mot. to Limit Test. of Dr. Grovas); Mot. in Lim. to Exclude
Following stipulation by the parties, the Court entered partial judgment on March 4, 2019, to
dismiss with prejudice the claims against SuperMax and Integrand as its insurer. Stipulation for
Partial Voluntary Dismissal (ECF No. 123); Partial J. (ECF No. 124). The Court’s recitation of the
background of this case is restricted, therefore, to the Plaintiffs’ lawsuit against FFC and Integrand
as FFC’s insurer.
1
Medical Rs. and Dr. Aura F. Delgado (ECF No. 138) (Pls.’ Mot. to Exclude Medical
Rs.); Omnibus Mot. in Lim. to Exclude Defs.’ Trial Witnesses and Documentary Exs.
(ECF No. 144) (Pls.’ Omnibus Mot.); Mot. in Lim. to Limit the Scope of Expert Orlando
Fernandez’s Test. (ECF No. 146) (Defs.’ Mot. to Limit Dr. Fernandez’s Test.); Mot. in
Lim. to Exclude Answers to Written Disc. as Evid. at Trial (ECF No. 147) (Def.’s Mot.
to Exclude Answers); Mot. in Lim. as to Daily Inspection Reports Identified by Pl. in
the Pretrial Report (ECF No. 148) (Defs.’ Mot. as to Inspection Reports); Mot. in Lim.
to Exclude “Photographs of the Accident Site and Pothole” as Announced by Pls. (ECF
No. 149) (Def.’s Mot. to Exclude Photographs). Federal jurisdiction is predicated on
diversity of citizenship under 28 U.S.C. § 1332(a)(1). In this Order, the Court has
addressed each of the motions.
I.
PROCEDURAL BACKGROUND 2
A.
Factual Background
On February 4, 2014, Ms. Laureano-Monge went grocery shopping at the
SuperMax in Plaza Guaynabo, Puerto Rico. Compl. ¶ 11; Proposed Pretrial Order at
3, 6-7 (ECF No. 128). As Ms. Laureano-Monge was returning to her automobile with
her groceries, the shopping cart that she was pushing fell into a pothole in the parking
lot. Id. Subsequently, the shopping cart tipped over and Ms. Laureano-Monge fell
onto the parking lot pavement. Compl. ¶ 11; Proposed Pretrial Order at 3, 6-7. Ms.
Laureano-Monge suffered physical and mental damages after the fall and her
The Court assumes familiarity with the factual background of this case, and thus focuses on
the relevant procedural history in this order.
2
2
granddaughter, Ms. Marrero-Ilarraza, also suffered mental damages. Compl. ¶¶ 1822; Pls.’ Mot. to Exclude Medical Rs. at 4.
B.
Procedural Background
Ms. Laureano-Monge and Ms. Marrero-Ilarraza initially filed a complaint in
state court in Puerto Rico. After voluntarily dismissing the state court action, the
Plaintiffs filed this case on February 6, 2017, in the United States District Court for
the District of Puerto Rico. Compl. at 1. FFC filed its answer on April 7, 2017.
Answer to Compl. (ECF No. 15).
On October 26, 2018, the Plaintiffs filed motions to compel interrogatory
answers and the production of documents from the Defendants. Pls.’ Mot. to Compel
Interrog. Answers from Def. Fundacion Francisco Carvajal, Inc (ECF No. 74); Pls.’
Mot. to Compel Produc. of Docs. from Def. Fundacion Francisco Carvajal, Inc. and
Def. Integrand Assurance Company (ECF No. 75). The Defendants responded on
November 14, 2018. Opp’n to Mot. to Compel Interrog. Answers in Docket 74 (ECF
No. 86); Opp’n to Mot. to Compel Product. of Docs. in Docket 75 (ECF No. 87). On
January 3, 2019, the Court granted in part and denied in part the Plaintiffs’ motions
to compel. Orders (ECF Nos. 103, 105).
On November 21, 2018, the Plaintiffs filed a motion in limine to limit the
testimony of Defendants’ medical expert Dr. Carlos Grovas Badrena. Pls.’ Mot. to
Limit Test. of Dr. Grovas. The Defendants filed their response on December 19, 2018.
Defs.’ Opp’n to Pls. Mot. in Lim. to Limit the Op. Test. of Defs.’ Orthopedic Expert Dr.
Carlos Grovas (ECF No. 98) (Defs.’ Opp’n to Pls. Grovas Mot.). The Plaintiffs replied
to the Defendants’ opposition on December 28, 2018. Pls.’ Mot. to Limit Test. of Dr.
3
Grovas at 16; Pls. Reply to Defs.’ Opp’n (DE #98) to Mot. in Lim. (DE #93) (ECF No.
101) (Pls. Reply to Defs.’ Opp’n). On January 9, 2019, the Court noted the Plaintiffs’
additional motion submitting the deposition of Ms. Laureano-Monge as an
attachment to their reply. Mot. Submitting Tr. of Dep. of Carmen Laureano Monge
(ECF No. 108); Order (ECF No. 109).
On January 25, 2019, the Plaintiffs filed a motion for sanctions, claiming
Defendants had failed to supplement their interrogatory answers and provide certain
documents. Pls.’ Mot. for Fed. R. Civ. P. 37(b)(2) Sanctions for Defs.’ Failure to
Comply with Ct. Orders (ECF No. 118).
The Court referred the matter to the
Magistrate Judge and the Defendants responded on February 8, 2019. Opp’n to Pls.’
Mot. for Fed. Civ. P. 37(b)(2) Sanctions for Defs.’ Failure to Comply with Ct. Orders
(ECF No. 114). On February 14, 2019, the Magistrate Judge granted in part and
denied in part the motion, ordering that “[b]y February 20, 2019, defendants shall
send to plaintiffs once again their supplemental answers under penalty of perjury,
specifying in each answer which question of which interrogatory is being
supplemented.” Order (ECF No. 119). Following stipulations by the parties, the
Court entered a partial judgment to dismiss with prejudice the claims against
SuperMax and Integrand as its insurer on March 4, 2019. Stipulation for Partial
Voluntary Dismissal (ECF No. 123); Partial J. (ECF No. 124). On March 7, 2019, the
parties filed their joint proposed pretrial order.
Proposed Pretrial Order.
The
Magistrate Judge presided over the pretrial and settlement conference on April 29,
2019. Min. Entry (ECF No. 131).
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On May 17, 2019, the Plaintiffs filed a motion in limine to exclude the
Defendants’ use of testimony and records from Ms. Laureano-Monge’s emergency
room treatment at the Puerto Rico Medical Center after her fall in Plaza Guaynabo.
Pls.’ Mot. to Exclude Medical Rs. On May 29, 2019, the Plaintiffs submitted an
omnibus motion in limine to exclude certain FFC witnesses and exhibits and filed an
additional motion submitting related exhibits. Pls.’ Omnibus Mot.; Mot. Submitting
Exs. to Pls.’ Omnibus Mot. in Lim. to Exclude Defs.’ Trial Witnesses and Documentary
Exs. (ECF No. 145) (Mot. Submitting Exs. to Pls.’ Omnibus Mot.).
On the same day, Defendant FFC submitted three motions in limine: (1) to
limit the scope of the Plaintiffs’ expert Dr. Fernandez’s testimony, (2) to exclude the
Plaintiffs’ answers to written discovery as evidence at trial, and (3) to exclude
“photographs of the accident site and pothole.” Defs.’ Mot. to Limit Dr. Fernandez’s
Test.; Defs.’ Mot. to Exclude Answers; Def.’s Mot. to Exclude Photographs. Also on
May 29, 2019, Integrand and Restaurant Metropol Inc. 3 filed a motion in limine to
exclude any daily inspection reports identified by the Plaintiffs in the pretrial report.
Defs.’ Mot. as to Inspection Reports.
On June 10, 2019, the Plaintiffs responded in opposition to FFC’s motion to
exclude photographs of the accident. Pls.’ Req. for Sanctions for and Opp’n to Defs.’
(DKT. 149) “Mot. in Lim. to Exclude’ Photographs of the Accident Site and Pothole’ as
announced by Pls.” (ECF No. 156) (Pls.’ Opp’n to Defs.’ Mot. to Exclude Photographs).
The Defendants filed this motion as Integrand and Restaurant Metropol. The Court is at a
loss as to Restaurant Metropol, Inc.’s involvement in this case. To the Court’s knowledge Restaurant
Metropol is not a party to this litigation.
3
5
On June 11, 2019, the Plaintiffs filed their combined opposition to three of the
Defendants’ motions in limine. Pls.’ Combined Opp’n to Defs.’ Mots. in Lim. to: Limit
the Test. of Pls.’ Expert [DKT. 146]; Exclude Pls.’ Written Disc. Answers [DKT. 147];
and as to Daily Inspection Reports Identified by Pls. [DKT. 148] (ECF No. 157).
On July 31, 2019, the Court entered judgment staying the case, “pending the
mediation proceedings.” J. Staying Case (ECF No. 165). Following unsuccessful
settlement conferences, on October 22, 2020, the Plaintiffs filed a motion to set aside
the indefinite stay, citing a lack of “administrative proceedings pending and, thus, no
legal reason for the Court to stay further action in this case.” Mot. to Set Aside Indef.
Stay (ECF No. 188). On November 23, 2020, the Court granted the Plaintiffs’ motion
to set aside the indefinite stay. Order (ECF No. 196). On April 15, 2021, the Court
ordered the parties to “file a joint proposed pretrial order on or before May 17, 2021.
All motions in limine, including any Daubert challenges, shall also be filed by said
date as well. A trial date will be set accordingly once COVID-19 circumstances so
allow.” Order (ECF No. 203). On July 9, 2021, the Court entered an order deeming
the case “trial-ready” and reassigning the case to Judge John A. Woodcock, Jr., of the
United States District Court for the District of Maine. Order Reassigning Case (ECF
No. 205).
II.
DISCUSSION OF PLAINTIFFS’ MOTIONS IN LIMINE
A.
Motion to Limit or Exclude Dr. Carlos Grovas’ Expert Testimony
(ECF No. 93)
In their first motion in limine, the Plaintiffs petition the Court to “(1) limit the
opinion testimony of [Dr. Grovas] to the physical impairment findings from his
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examination of [Ms. Laureano-Monge], (2) exclude references to any pre-existing
medical conditions and/or propensity to fall, and (3) exclude the ‘supplementary’
report.” Pls.’ Mot. to Limit Test. of Dr. Grovas at 2, 19-20; id., Attach. 1, First Expert
Report (First Grovas Report); id., Attach. 2., Suppl. Expert Report (Suppl. Grovas
Report). Plaintiffs argue that use of Dr. Grovas’ testimony at trial contravenes
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), Federal Rule of
Evidence 702’s standard for expert witness testimony, and Federal Rule of Evidence
403’s test for balancing the probative versus prejudicial value of evidence. Id. at 2,
8-15, 17-19. Moreover, the Plaintiffs argue that Dr. Grovas’ supplementary report is
inadmissible under Federal Rule of Civil Procedure 26(e)(1)(A), (2) because “it is
based on the exact same information Dr. Grovas had available for his first report;
while the second report does not complete or correct the first.” Id. at 2, 15-17.
1.
Dr. Grovas’ Opinion Testimony and References to Ms.
Laureano-Monge’s Pre-existing Medical Conditions
a.
The Plaintiffs’ Position
The Plaintiffs argue that Dr. Grovas’ expert opinion is neither reliable nor
relevant because “there is no methodology that connects Dr. Grovas’ opinion
testimony about a propensity to fall and [Ms. Laureano-Monge’s] conditions to the
accident in this case.”
Id. at 6-8. In support, the Plaintiffs quote General Electric
Company v. Joiner, 522 U.S. 136 (1997):
[C]onclusions and methodology are not entirely distinct from one
another. Trained experts commonly extrapolate from existing data. But
nothing in either Daubert or the Federal Rules of Evidence requires a
district court to admit opinion evidence that is connected to existing data
only by the ipse dixit of the expert. A court may conclude that there is
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simply too great an analytical gap between the data and the opinion
proffered.
Id. at 6-7 (quoting Joiner 522 U.S. at 146). The Plaintiffs consequently posit that “the
inclusion of subjects in his opinion do not fit the facts of this case and makes them
inherently unreliable.” Id. at 7.
The Plaintiffs argue that Dr. Grovas’ testimony regarding how Ms. LaureanoMonge’s past medical conditions may have caused sufficient weakness in her
extremities so as to create a propensity to fall “is not supported by any reference to
science” or to his examination of Ms. Laureano-Monge. Id. at 10. As a result, the
Plaintiffs claim this expert opinion must be excluded because “[i]t is opinion evidence
that is connected to Plaintiffs only by the ipse dixit of the expert” and that “there is
simply too great an analytical gap between the facts and Dr. Grovas’ opinion for it to
be reliable or useful.” Id. The Plaintiffs state that, in the absence of any evidence
that Ms. Laureano-Monge ever fell or had any walking impediments, “there is no
medical reason to include those or any other unrelated medical conditions in the
expert’s opinion testimony.” Id. Plaintiffs assert that “inclusion of the unrelated
conditions goes way beyond [Dr. Grovas’] physical evaluation of plaintiff’s physical
impairment.” Id. at 12.
b.
The Defendants’ Position
The Defendants respond that the “Plaintiffs have not attacked expert Dr.
Grovas’ experience nor expertise with regards to medical issues, medical opinion
regarding propensity to falls nor the fact that she was more prone to experience falls.”
Defs.’ Opp’n to Pls.’ Grovas Mot. at 5. “Further, Plaintiffs have not even requested to
8
take Dr. Grovas’ deposition in order to determine whether he has the expertise, actual
scientific knowledge per the FRE.” Id. The Defendants insist that Dr. Grovas’
testimony “regarding the medical conditions [Ms. Laureano-Monge] had before the
incident and his opinion on how her conditions foster falls and make[] the individual
more prone to experience falls” goes to the critical jury issue of Ms. Laureano-Monge’s
credibility. Id. at 3.
c.
Legal Standard
Federal Rule of Evidence 702 governs the admission of expert testimony:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise
if: (a) the expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine a
fact in issue; (b) the testimony is based on sufficient facts or data; (c) the
testimony is the product of reliable principles and methods; and (d) the
expert has reliably applied the principles and methods to the facts of the
case.
FED. R. EVID. 702. “To give an expert opinion, a witness must be ‘qualified’ by
‘knowledge, skill, experience, training, or education’ to do so, and the judge must vet
the opinion to ensure it’s ‘reliable.’” United States v. Montijo-Maysonet, 974 F.3d 34,
47 (1st Cir. 2020). More specifically, in Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), the Supreme Court designated trial judges as gatekeepers
responsible for determining whether Rule 702’s requirements are met in any given
case. Id. at 597. A judge exercising the gatekeeper role must “ensure that an expert’s
testimony ‘both rests on a reliable foundation and is relevant to the task at hand.’”
United States v. Vargas, 471 F.3d 255, 261 (1st Cir. 2006) (quoting Daubert, 509 U.S.
at 597).
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The Court possesses broad discretion to determine whether proffered expert
testimony meets Daubert’s requirements for admissibility.
Id.; see Carballo
Rodriguez v. Clark Equip. Co., 147 F. Supp. 2d 81, 83 (D.P.R. 2001) (“When assessing
the reliability of technical or specialized expert testimony, as opposed to scientific
testimony, the trial judge exercises ‘broad latitude’ both in how it determines the
reliability of the testimony, and in the ultimate reliability determination”) (citing
Kumho Tire Co., 526 U.S. at 149). The proponent of the expert testimony, in this case
the Defendants, must establish admissibility by a preponderance of the evidence.
Bourjaily v. United States, 483 U.S. 171, 176 (1987); see FED. R. EVID. 702 advisory
committee’s note to 2000 amendment (“[T]he admissibility of all expert testimony is
governed by the principles of Rule 104(a). Under that Rule, the proponent has the
burden of establishing that the pertinent admissibility requirements are met by a
preponderance of the evidence”).
“However, the ‘reliability’ bar cannot be met ‘by an expert’s self-serving
assertion that his conclusions were derived by the scientific method’; rather, ‘the
party presenting the expert must show that the expert’s findings are based on sound
science, and this will require some objective, independent validation of the expert’s
methodology.’” Lawes v. CSA Architects & Eng’rs LLP, 963 F.3d 72, 98 (1st Cir. 2020)
(quoting Daubert v. Merrell Dow Pharms., 43 F.3d 1311, 1316 (9th Cir. 1995)
(“Daubert on remand”)). Moreover, “to be ‘helpful’ to the jury, the expert’s conclusions
must have a ‘valid scientific connection to the pertinent inquiry[.]’” Id. (quoting
Daubert, 43 F.3d at 1320). “This means that the conclusion must not only be relevant
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to the facts at issue, but also that each step in the expert’s process, including the link
between the universe of pertinent facts and his conclusions, must be reliable.” Id.
“Although the Court must focus ‘on principles and methodology, not on the
conclusions they generate,’” id. (quoting Daubert, 509 U.S. at 595), “this focus ‘need
not completely [preclude] judicial consideration of an expert’s conclusions.’”
Id.
(quoting Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 81 (1st Cir.
1998)).
“In General Electric Company v. Joiner, 522 U.S. 136 (1999), the Supreme
Court acknowledged that ‘conclusions and methodology are not entirely distinct from
one another. Trained experts commonly extrapolate from existing data. But nothing
in either Daubert or the Federal Rules of Evidence requires a district court to admit
opinion evidence that is connected to existing data only by the ipse dixit of the
expert.’” Id. (quoting Gen. Elec. Co., 522 U.S. at 146). “For this reason, ‘[a] court may
conclude that there is simply too great an analytical gap between the data and the
opinion proffered.’” Id. (quoting Gen. Elec. Co., 522 U.S. at 146). “This requirement,
which is sometimes described as ‘fit,’ ensures that the connection between the expert’s
data, his conclusions, and the facts of the case is reliable.” Id. at 99 (citing Samaan
v. St. Joseph Hosp., 670 F.3d 21, 32 (1st Cir. 2012)).
d.
Analysis
After careful review of the first expert report and the applicable law, the Court
concludes that Dr. Grovas’ opinions—regarding whether Ms. Laureano-Monge’s
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medical conditions 4 were a factor in the cause of her fall—are sufficiently relevant
and reliable to present to a jury in accordance with Federal Rule of Evidence 702.
Dr. Grovas is a witness qualified as an expert by knowledge, skill, experience,
training, and education because he is an orthopedic surgeon as well as a Fellow with
the International Academy of Independent Medical Evaluators, a certified member of
the American Board of Independent Medical Examiners, and a “Medico Legal
Evaluator.” First Grovas Report at 15; Proposed Pretrial Order at 34; see FED. R.
EVID. 702. Dr. Grovas’ scientific, technical, and specialized knowledge will help the
jury understand the evidence and determine a key fact at issue—whether Ms.
Laureano-Monge’s pre-existing medical conditions contributed to the cause of her fall.
See FED. R. EVID. 702(a); see also Gaydar, 345 F.3d at 24 (a judge must decide
“whether the scientific, technical, or other specialized knowledge [the expert] offers
will assist the trier better to understand a fact in issue”).
Federal Rule of Evidence 702(b) requires that expert testimony be based on
“sufficient facts or data.” Even though the “expert’s methodology is the ‘central focus
of a Daubert inquiry,’ courts ‘may evaluate the data offered to support an expert’s
bottom-line opinions to determine if that data provides adequate support to mark the
expert’s testimony as reliable.’” Lawes, 963 F.3d at 99 (quoting Ruiz-Troche, 161 F.3d
at 81). “However, district courts must not ‘unduly scrutinize[] the quality of the
The Defendants assert that the “Plaintiffs do not refute nor deny that [Ms. Laureano-Monge]
had (1) myasthenia gravis for seven years, (2) rheumatoid arthritis, (3) osteoporosis, (4) macular
degeneration, (5) peripheral neuropathy or other conditions prior to the underlying incident.” Defs.’
Opp’n to Pls.’ Grovas Mot. ¶ 2.
4
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expert’s data,’ because such scrutiny ‘usurps the role of the jury.’” Lawes, 963 F.3d
at 99 (quoting Manpower, Inc. v. Ins. Co. of Pa., 732 F.3d 796, 805 (7th Cir. 2013)).
Dr. Grovas’ expert testimony and the conclusions in his initial expert report
are based on sufficient facts and data and have a valid scientific connection to the
pertinent inquiry because they are based on a review of comprehensive medical
records from before, during, and after Ms. Laureano-Monge’s fall, First Grovas Report
at 2-8, as well as on an “Orthopaedic Physical Examination” of Ms. Laureano-Monge.
Id. at 8-14; see FED. R. EVID. 702(b). The expert testimony is the product of reliable
principles and methods such as those employed in independent medical
examinations. First Grovas Report at 14; see FED. R. EVID. 702(c). “Importantly,
‘Daubert does not require that a party who proffers expert testimony carry the burden
of proving to the judge that the expert’s assessment of the situation is correct’; rather,
to satisfy Daubert’s objective, the proponent must show ‘that the expert’s conclusion
has been arrived at in a scientifically sound and methodologically reliable fashion.’”
Lawes, 963 F.3d at 99 (quoting Milward, 639 F.3d at 15).
“Vigorous cross
examination, presentation of contrary evidence, and careful instruction on the burden
of proof are the traditional and appropriate means of attacking shaky but admissible
evidence.” Id. (quoting Daubert, 509 U.S. at 596).
Dr. Grovas reliably applied the principles and methods of independent medical
examiners to the facts of the case because, as Dr. Grovas explained, his “Independent
Medical Examination was based upon the subjective complaints, history given by the
claimant, the objective medical records and tests provided to me and the physical
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findings of the claimant.
The opinions are based upon reasonable medical
probability.” First Grovas Report at 14; see FED. R. EVID. 702(d). “So long as an
expert’s scientific testimony rests upon ‘good grounds, based on what is known,’” the
First Circuit emphasized in Milward v. Acuity Specialty Prods. Grp., Inc.,, 639 F.3d
11, 15 (1st Cir. 2011) (quoting Daubert, 509 U.S. at 590), “it should be tested by the
adversarial process, rather than excluded for fear that jurors will not be able to
handle the scientific complexities.” Id. (citing Daubert, 509 U.S. at 596).
Dr. Grovas’ opinion regarding how these medical conditions created a tendency
for Ms. Laureano-Monge to fall was reached in a scientifically sound and
methodologically reliable fashion. Dr. Grovas shall be allowed to testify as to his
conclusion that Ms. Laureano-Monge’s medical conditions could have contributed to
her fall. Dr. Grovas’ opinions were not reached by his ipse dixit alone, but rather by
thorough evaluation of objective medical records and his own physical examination
of Ms. Laureano-Monge. Accordingly, the Court DENIES the Plaintiffs’ Motion in
Limine to Limit the Opinion Testimony of Defendants’ Orthopedic Expert Dr. Carlos
Grovas Badrena to the Findings of his Physical Examination of Plaintiff Carmen
Laureano Monge (ECF No. 93).
2.
Supplementary Report
As to Dr. Grovas’ supplementary report, the Plaintiffs argue the report is
inadmissible under Federal Rule of Civil Procedure 26(e)(1)(A), (2), because “it is
based on the exact same information Dr. Grovas had available for his first report;
while the second report does not complete or correct the first.” Pls.’ Mot. to Limit
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Test. of Dr. Grovas at 2, 15-17. The Plaintiffs rely on Federal Rule of Civil Procedure
26:
(1) In General. A party who has made a disclosure under Rule 26(a)—
or who has responded to an interrogatory, request for production, or
request for admission—must supplement or correct its disclosure or
response: (A) in a timely manner if the party learns that in some
material respect the disclosure or response is incomplete or incorrect,
and if the additional or corrective information has not otherwise been
made known to the other parties during the discovery process or in
writing[.]
(2) Expert Witness. For an expert whose report must be disclosed under
Rule 26(a)(2)(B), the party’s duty to supplement extends both to
information included in the report and to information given during
the expert’s deposition. Any additions or changes to this information
must be disclosed by the time the party’s pretrial disclosures under
Rule 26(a)(3) are due.
FED. R. CIV. P. 26(e)(1)(A), (2). The Plaintiffs reason that, since the Defendants are
allowed to supplement an expert report “only on a showing that the first report is
either ‘incomplete or incorrect’” and the “Defendants make no such showing,” then
the supplemental report and its content should be excluded. Pls.’ Mot. to Limit Test.
of Dr. Grovas at 17; see FED. R. CIV. P. 26 (e)(1)(A).
The Defendants rebut the Plaintiffs’ argument by claiming that Dr. Grovas
rendered his supplementary expert report after obtaining new information from Ms.
Laureano-Monge’s deposition transcript in which she revealed prior falls and denied
muscle fatigue. Defs.’ Opp’n to Pls.’ Grovas Mot. ¶¶ 2, 5. The Defendants claim that
“[i]t was only though deposition testimony, under oath, that [Ms. Laureano-Monge]
identified the extent of her conditions of myasthenia gravis (since 2007) and
rheumatoid arthritis.
This allowed [Dr. Grovas] to reach additional findings to
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support Defendants’ affirmative defenses regarding physical conditions and
impairments that made [Ms. Laureano-Monge] more prone to falling.” Id. ¶ 6. In
addition, “the supplemental opinion is also supported by medical records, such as an
electroneuromyographic examination . . . demonstrating feet numbness and
weakness.”
Defs.’ Opp’n to Pls.’ Grovas Mot.
Electroneuromyographic Exam.
¶¶ 2, 5; Id., Attach. 1,
Thus, the Defendants advance that Dr. Grovas’
supplementary report will provide testimony regarding two affirmative defenses
raised in their answer to the complaint: (1) that Ms. Laureano-Monge’s “custodians
and/or family members were negligent by failing to provide adequate care by allowing
her to walk on her own . . . without assistance due to her physical conditions and/or
impairments;” and that (2) “the damages allegedly suffered by Plaintiffs are due,
either in full or in part, to her pre-existing medical conditions.” Id. ¶ 10.
In reply, the Plaintiffs call the Defendants’ argument “bogus” because the
“supplementary report makes absolutely no reference to the transcripts that
supposedly caused Dr. Grovas to want to make a second report.” Pls.’ Reply to Defs.’
Opp’n ¶¶ 8-11.
From the Court’s review of Dr. Grovas’ reports of August 6, 2018 and October
13, 2018, it seems apparent that Dr. Grovas’ initial report was directed to whether
Ms. Laureano-Monge’s February 4, 2014 fall caused the diagnosed conditions, when
she recovered from the fall, and whether she suffered any permanent impairment
from the fall. First Grovas Report at 1-15. By contrast, Dr. Grovas’ supplemental
report addressed whether any of Ms. Laureano-Monge’s preexisting conditions
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contributed to her February 4, 2014 fall. Suppl. Grovas Report at 1-8.
In the
supplemental report, Dr. Grovas concluded that Ms. Laureano-Monge’s myasthenia
gravis, rheumatoid arthritis, and osteoporosis are medical conditions that would have
made Ms. Laureano-Monge more prone to falls. Id. at 5-7. Contrary to the Plaintiffs’
assertion, Dr. Grovas’ October 13, 2018 supplemental report does list the fact that he
had reviewed transcripts of the Plaintiffs’ August 7, 2018 depositions. Id. at 3.
The timing of this supplemental report does not favor exclusion, since the
Magistrate Judge expressly extended the discovery deadline to allow for the
supplemental report. On July 2, 2018, Magistrate Judge Marcos E. López set the
deadlines for expert witness disclosures and fixed October 12, 2018 as the deadline
by which the Defendants would “announce all expert witnesses, produce expert
reports and expert witness disclosures.” Mins. of Proceedings at 2 (ECF No. 53). On
October 12, 2018, FFC filed a request for extension of time to produce a supplemental
expert report, explaining that Dr. Grovas had finalized his review of both Plaintiffs’
deposition transcripts and informed FFC that “he will be providing a supplemental
report in this matter.” Req. for Extension of Time to Produce Suppl. Expert Report
at 1 (ECF No. 67) (emphasis in original). FFC requested that the deadline for expert
disclosure be extended until October 26, 2018 to produce a supplemental report. Id.
at 2. The Plaintiffs objected to the motion on the same grounds they now raise to
object to the admission of Dr. Grovas’ supplemental report, namely that Federal Rule
of Civil Procedure 26(e)(1)(A)(2) does not allow a party to supplement a report in these
circumstances. Opp’n to Suppl. of Expert Report and to Limit Dr. Carlos Grovas’
17
Expert Opinion to Those Set Forth in his Report of Aug. 6, 2018 (ECF No. 69). On
October 15, 2018, Magistrate Judge López overruled Plaintiffs’ objection and allowed
FFC to supplement Dr. Grovas’ report by October 16, 2018. Order (ECF No. 70).
There is a certain tension between the mandatory disclosure provisions of
Federal Rule of Civil Procedure 26(a)(2) and the obligation to supplement a previously
disclosed expert report under Federal Rule of Civil Procedure 26(e)(1)(A), (2). “A
supplemental expert report that states additional opinions or rationales or seeks to
‘strengthen’ or ‘deepen’ opinions expressed in the original expert report exceeds the
bounds of permissible supplementation and is subject to exclusion under Rule
37(c)(1).” Cohlmia v. Ardent Health Servs., LLC, 254 F.R.D. 426, 433 (N.D. Okla.
2008). At the same time, courts have acknowledged that discovery is an “iterative
process.” Faure v. Las Cruces Med. Ctr., LLC, No. 14-cv-559 KG/KBM, 2017 U.S.
Dist. LEXIS 150359, at *7 (D.N.M. Sept. 15, 2017).
Furthermore, the courts that
have excluded supplementary expert reports have typically done so where the
supplemental report was not disclosed “within the deadline.” Estate of Cape v. United
States, No. 11-C-0357, 2013 U.S. Dist. LEXIS 121844, at *15 (E.D. Wisc. Aug. 27,
2013). The concern is heightened where the opponent has been “sandbagged” by
relying on the contents of the first expert disclosure only to learn later of new opinions
that should have been disclosed at the outset. United States ex rel. Tetsuwari, 1:06cv-00235, 2009 U.S. Dist. LEXIS 146930, at *5-6 (S.D. Ohio Nov. 18, 2009).
To exclude an expert’s supplemental report, especially one disclosed during the
discovery period, would be a “heavy-handed measure.” King v. Reed, LLC, Civ. No.
18
07-1908 (DWF/RLE), 2008 U.S. Dist. LEXIS 112331, at *11 (D. Minn. Oct. 6, 2008).
Before doing so, courts will examine the record to determine whether timing of the
supplemental report prejudiced the opponent, Kouzmanoff v. Unum Life Ins. Co. of
Am., Nos. 17-cv-00721-RM-STV, 17-cv-00976-RM-STV, 2018 U.S. Dist. LEXIS
183264, at *17 (D. Colo. Oct. 25, 2018); see King, 2008 U.S. Dist. LEXIS 112331, at
*11 (noting that the opponent had “ample time” before trial to probe the contents of
the expert’s supplemental report).
Here, as the Magistrate Judge expressly allowed FFC to supplement Dr.
Grovas’ earlier expert report, FFC supplied the supplemental report during the time
the Magistrate Judge allowed, Dr. Grovas indicated that, unlike in developing his
first report, he had reviewed the Plaintiffs’ depositions in preparing his supplemental
report, there is no evidence of bad faith or sandbagging on the part of FFC, and the
Plaintiffs have demonstrated no prejudice from the supplemental report, the Court
declines to apply the strong medicine of exclusion. If the Plaintiffs wish to press a
sanction short of exclusion, they may do so by filing a motion within two weeks of the
date of this Order.
The Court DENIES the Plaintiffs’ Motion to Exclude the Supplementary
Report of Dr. Grovas (ECF No. 93).
3.
Probative Versus Prejudicial Value
Finally, the Plaintiffs argue that Dr. Grovas’ expert opinion goes “way beyond
the findings of the physical examination he made of [Ms. Laureano-Monge] to include
unfounded speculation about her pre-existing conditions and an unsupported
connection to a fall propensity” and that “[a]ny opinion beyond his physical evaluation
19
should be excluded under FED. R. EVID. 403 because its probative value is
substantially outweighed by the danger of unfair prejudice.” Pls.’ Mot. to Limit Test.
of Dr. Grovas at 18-19. Plaintiffs quote United States v. Montas, 41 F.3d 775 (1st Cir.
1994), which states: “[e]ven if admissible under Rule 702, expert testimony still may
be excluded under FED. R. EVID. 403 if its probative value is substantially outweighed
by the risk of unfair prejudice it creates.” Id. at 18 (quoting Montas, 41 F.3d at 783).
“In conducting a Rule 403 analysis for being unfairly prejudicial, the court only
seeks to avoid unfair prejudice, because all evidence is designed to be prejudicial in
some capacity.” Pérez-Garcia v. P.R. Ports Auth., 871 F. Supp. 2d 62, 64 (D.P.R. 2012)
(citing United States v. Varoudakis, 233 F.3d 113, 122 (1st Cir. 2000)). “The exclusion
of evidence is not the general rule; to the contrary, the trial court’s discretion to
exclude relevant evidence under Rule 403 should be exercised with recognition that
exclusion is extraordinary and to be invoked sparingly.”
Rivera-Marrero v.
Presbyterian Cmty. Hosp., 255 F. Supp. 3d 290, 293 (D.P.R. 2017).
In the present case, the Court finds that the probative value of the testimony
from the Defendants’ only expert witness—Dr. Grovas—as to the element of
causation outweighs any potential prejudice envisioned by the rules. See FED. R.
EVID. 403; see also Lawes, 963 F.3d 72 at 92, 109 n. 50 (finding “under Rule 403’s less
exacting relevance standard” that the probative value of an expert’s testimony and
“the proponents need” for the testimony, despite flaws in the expert’s disclosures and
compliance with discovery obligations, outweighed potential prejudice). Dr. Grovas’
testimony may assist the jury in evaluating the Defendants’ affirmative defenses,
20
raised in their answers to the complaint, and his assessment of Ms. LaureanoMonge’s pre-existing conditions as they specifically relate to the fall at issue in this
case is not unduly prejudicial. Therefore, the Plaintiffs’ concerns about Dr. Grovas’
opinions misleading the jury are outweighed by the relevance of his testimony to
crucial legal issues and are mitigated by Plaintiffs’ ability to engage in “vigorous
cross-examination, [the] present[ation of] contrary evidence, and . . . careful
instructions on the burden of proof.” Daubert, 509 U.S. at 596; FED. R. EVID. 403.
The Court DENIES Plaintiffs’ Motion in Limine to Exclude Dr. Grovas’ Expert
Testimony (ECF No. 93).
4.
Conclusion
The Court DENIES Plaintiffs’ Motion in Limine to Limit the Opinion
Testimony of Defendants’ Orthopedic Expert Dr. Carlos Grovas Badrena to the
Findings of his Physical Examination of Plaintiff Carmen Laureano Monge and to
Strike his “Supplementary” Report (ECF No. 93).
B.
Motion to Exclude Dr. Aura Delgado’s Testimony and Medical
Records (ECF No. 138)
The Plaintiff’s second motion in limine requests that the Court: (1) bar
“defendant [FFC] . . . from introducing the two medical records of [Ms. LaureanoMonge] from the Puerto Rico Medical Center” and (2) exclude the testimony of Dr.
Aura F. Delgado, Ms. Laureano-Monge’s emergency room physician, under Federal
Rules of Civil Procedure 26(e) and 37(c) as well as under Federal Rules of Evidence
803(4), 401, and 403. Pls.’ Mot. to Exclude Medical Rs. at 17; id., Attach. 2, Discharge
Summary; id., Attach. 3, Pls.’ Initial Disclosures.
21
In the parties’ joint proposed pretrial order, FFC states it may call Dr. Delgado
as a potential witness to testify “as to the content of the medical records that reflect
specific conversations with [Ms. Laureano-Monge] at Puerto Rico Medical Center
regarding how the alleged accident occurred, and to authenticate evidence.” Proposed
Pretrial Order at 33. Moreover, FFC also states in the proposed pretrial order that it
might use the two medical records as evidence—(1) Dr. Delgado’s handwritten
medical notes prepared while providing Ms. Laureano-Monge with treatment for
injuries sustained from her fall and (2) the discharge summary from the Puerto Rico
Medical Center—detailing Ms. Loreano-Monge’s medical history and stating that she
fell from a motorized shopping cart. Id. at 37, ¶ 12-13; Pls.’ Mot. to Exclude Medical
Rs., Attach. 1, Present Condition; id., Attach. 2, Discharge Summary.
The Plaintiffs argue that the Defendants did not comply with Federal Rule of
Civil Procedure 26(e)(1)(a) because they failed to disclose that the Puerto Rico
Medical Center emergency room physician, Dr. Delgado, was an individual likely to
have discoverable information and that FFC might use Dr. Delgado’s testimony and
the medical records to support its defense. Pls.’ Mot. to Exclude Medical Rs. at 4-5.
Thus, the Plaintiffs claim that “[p]ursuant to FED. R. CIV. P. 37(c), none of this may
be used at trial.” Id. (citing Ortiz-López v. Sociedad Española de Auxilio Mutuo y
Beneficiencia de P.R., 248 F.3d 29, 33 (1st Cir. 2001) (“What the district court must
find under Rule 37(c) is that the offending parties were not ‘substantially justified’ in
failing to disclose information required by Rule 26(a) or Rule 26(e) and that the failure
to disclose was not harmless”)). The Plaintiffs claim that at no time before the March
22
7, 2019 proposed pretrial order did Defendants “give Dr. Delgado’s address, telephone
number[,] or the subject of the information she possessed—all of which are mandated
by FED. R. CIV. P. 26(a) and (e).” Pls.’ Mot. to Exclude Medical Rs. at 6. Moreover,
“[t]he violation is all the more egregious because the disclosure was made after
discovery closed” on October 31, 2018. Mins. of Proceedings at 2 (ECF Nos. 53); Pls.’
Mot. to Exclude Medical Rs. at 7.
Defendants failed to respond to the Plaintiffs’ motion to exclude Dr. Delgado’s
testimony and the Puerto Rico Medical Center records and the Court does not know,
therefore, Defendants’ position.
Based only on the Plaintiffs’ arguments, the Court must agree with the
Plaintiffs. FFC has not shown that it provided Plaintiffs with Dr. Delgado’s name,
address, telephone number, and the subjects of Dr. Delgado’s information during
discovery in accordance with Federal Rule of Civil Procedure 26. Mot. Submitting
Exs. to Pls.’ Omnibus Mot., Attach. 1, Defs.’ Initial Disclosures.
Moreover, the
Defendants have not shown that they were substantially justified in failing to disclose
this information or that the late disclosure was harmless. See, e.g., Poulis-Minott v.
Smith, 388 F.3d 354, 358 (1st Cir. 2004) (“The purpose of the expert disclosure rules
is to facilitate a fair contest with the basic issues and facts disclosed to the fullest
practical extent. Thus Rules 26(a) and 37(c)(1) seek to prevent the unfair tactical
advantage that can be gained by failing to unveil an expert in a timely fashion, and
thereby potentially deprive a plaintiff of the opportunity to depose the proposed
expert, challenge his credentials, solicit expert opinions of his own, or conduct expert-
23
related discovery”) (citations and internal quotation marks omitted).
In fact,
Defendants failed to oppose the instant motion in limine. See Goldenson v. Steffens,
2012 U.S. Dist. LEXIS 74650, *16-17 (D. Me. May 30, 2012) (excluding expert
testimony where the proponents had “not shown that [the expert’s] proposed
testimony is of such importance to their case as to warrant consideration of its
inclusion despite their lack of a showing of substantial justification [for their late
disclosure] or harmlessness”).
Even if Dr. Delgado were considered a lay witness for purposes of FFC’s
discovery obligations, the Plaintiffs contend in their unobjected-to motion that “at no
time did [FFC] ever disclose the emergency room physician Dr. Delgado as an
individual likely to have discoverable information in support of the defendant FFC’s
defense or that the medical records do the same; nor did it give Dr. Delgado’s address,
telephone number (home or business) or the subject of the information she possessed.”
Pls.’ Mot. to Exclude Medical Rs. at 6-7. As Defendants failed to respond to the
Plaintiffs’ motion, the Court accepts this unrebutted assertion.
As a result, the Court GRANTS Plaintiffs’ Motion in Limine to Exclude
Medical Records and Dr. Aura F. Delgado (ECF No. 138) and forbids admission of Dr.
Aura Delgado’s testimony as well as her medical records.
C.
Omnibus Motion to Exclude Defendants’ Trial Witnesses and
Documentary Exhibits (ECF No. 144)
The Plaintiffs’ third motion in limine petitions the Court to exclude the
testimony of Luis Álvarez, Jose Brenes, Alfredo Salazar, Ana Sebastian, Paolo
Hereter, and the representatives of O.L. Maintenance & Services Corp. and Hard
24
Rock Construction. Pls.’ Omnibus Mot. at 3-14. In addition, this omnibus motion in
limine objects to almost all the Defendants’ documentary evidence advanced in the
proposed pretrial order. Id. at 15-30.
1.
Motion to Exclude Luis Álvarez’s Testimony
The Plaintiffs’ first motion within their omnibus motion in limine requests that
the Court exclude the proposed testimony of FFC’s current Executive Director, Luis
Álvarez (“Mr. Álvarez”). Id. at 4-10. According to the proposed pretrial order, FFC
lists Mr. Álvarez as a potential witness who:
will testify as executive director of FFC[,] as to the documents at Plaza
Guaynabo shopping center regarding the preventative maintenance and
repairs in the area of the alleged incident, protocols and all matters as
to the maintenance and repairs by the shopping center, services retained
by the shopping center to perform maintenance and repairs, daily and
annual inspections performed in the premises by the administration of
the shopping center, directives by administration of the shopping center
as to maintenance and repairs in the parking area in question,
pavements works performed prior to the incident, according to FFC
records; he will also authenticate evidence proffered by FFC that is not
stipulated by the parties[.]
Proposed Pretrial Order at 31-32 (ECF No. 138). The Plaintiffs argue that FFC did
not comply with the requirements for initial disclosures under Federal Rule of Civil
Procedure 26(a)(1)(A) or for supplemental disclosures under Federal Rule of Civil
Procedure 26 (e)(1)(A) because “[d]efendant FFC never disclosed that this proposed
witness was an individual likely to have discoverable information that defendant FFC
may use to support its defenses.” Pls.’ Omnibus Mot. at 4. Thus, pursuant to Federal
Rule of Civil Procedure 37(c) and Ortiz-López, 248 F.3d at 33, the Plaintiffs assert
“this witness may not be used at trial.” Id.
25
According to the Plaintiffs, “it was not until the proposed pretrial order[] that
defendant FFC first announced Mr. Álvarez as a trial witness.”
Id. at 4. The
Plaintiffs posit that record evidence already reflects that FFC violated Federal Rule
of Civil Procedure 26 because Mr. Álvarez was first disclosed as an individual likely
to have knowledge of the facts on January 16, 2019, Pls.’ Mot. for Sanctions for Fed.
R. Civ. P. 37(b)(2) Sanctions for Defs.’ Failure to Comply with Ct. Orders, Attach. 1,
Def’s Unsworn Decl. (ECF No. 114), after discovery ended on October 31, 2018, when
FFC delivered to the Plaintiffs an unsworn statement under penalty of perjury after
being compelled by the Court.
Mins. of Proceedings for Initial Settlement and
Scheduling Conference (ECF No. 53); Informative Mot. Regarding Compliance With
the Orders in Dockets 103 and 105 (ECF No. 112); Pls.’ Omnibus Mot. at 4-5; see
González-Rivera v. Centro Médico del Turabo, Inc., 931 F.3d 23, 29 (1st Cir. 2019)
(District courts have “an interest in the efficient management of [their] docket[,]” and
“[w]henever a party, without good cause, neglects to comply with reasonable
deadlines, the court’s ability to manage its docket is compromised”).
FFC failed to respond to the Plaintiffs’ motion in limine regarding Mr.
Álvarez’s testimony.
Based on the Plaintiffs’ unanswered assertions, the Court once again agrees
with the Plaintiffs. FFC’s late disclosure of Mr. Álvarez as a person with knowledge
of facts in support of FFC’s defense violates the disclosure requirements of Federal
Rule of Civil Procedure 26. Defendants did not inform the Plaintiffs that Mr. Álvarez
was a person with knowledge of the facts during the regular course of discovery but
26
rather disclosed his identity when compelled by the Court after discovery concluded.
In addition, the Defendants have not shown that they were substantially justified in
failing to disclose this information or that the late disclosure was harmless. Although
the Court compelled FFC to supplement its disclosures to include the name of its
proffered executive director, Orders Granting in Part and Denying in Part 74 Mot. to
Compel and 75 Mot. to Compel (ECF Nos. 103 and 105), this disclosure occurred after
discovery concluded.
The Court GRANTS Plaintiffs’ first Omnibus Motion in Limine to Exclude
Defendants’ Trial Witness Luis Álvarez (ECF No. 144).
2.
Motion to Exclude Jose Brenes’ Testimony
The Plaintiffs’ second motion within their omnibus motion in limine, Pls.’
Omnibus Mot. at 10-12, urges the Court to exclude the proposed testimony of FFC’s
current administrator of the Plaza Guaynabo shopping center, Jose Brenes who—
according to the proposed pretrial order—will testify regarding:
The administration of the shopping center, documentation obtained
during discovery, the documents at Plaza Guaynabo shopping center
regarding the preventative maintenance and repairs in the area of the
alleged incident, protocols and all matters as to maintenance and
repairs by the shopping center, services retained by the shopping center
to perform maintenance and repairs, daily and annual inspections
performed in the premises by the administration of the shopping center,
directives by administration of the shopping center as to maintenance
and repairs in the parking area in question, pavement works performed
prior to the incident, according to FFC records; he will also authenticate
evidence proffered by FFC that is not stipulated by the parties[.]
Proposed Pretrial Order at 32. The Plaintiffs argue that “[l]ike Mr. Álvarez, Mr.
Brenes ought to be stricken as a witness because he was not identified in the initial
disclosures, and because he has no personal knowledge of the events” that took place
27
prior to his employment “and there are no records to establish the alleged inspections
and protocols that preceded [Mr.] Brenes’ employment.” Pls.’ Omnibus Mot. at 11.
The Court disagrees. The Defendants’ disclosure of Mr. Brenes as a person
with knowledge of the facts in support of FFC’s defense does not contravene the
disclosure requirements of Federal Rule of Civil Procedure 26. Although Mr. Brenes
was not identified during initial disclosures, the Defendants identified him as an
individual with discoverable information in their first answer to Plaintiffs’ first set of
interrogatories and its two subsequent amendments. Mot. Submitting Exs. to Pls.’
Omnibus Mot., Attach. 2, Answers to First Set of Interrogs.; id., Attach. 3, Suppl.
Answers to First Set of Interrogs.; id., Attach. 4, Second Suppl. and Am. Answers to
First Set of Interrogs.
Moreover, the Defendants’ interrogatories show that Mr.
Brenes has sufficient personal knowledge of conditions related to the accident
because, although FFC hired him after the accident occurred, he could reliably
produce and explain business records of FFC’s decisions regarding the maintenance
and repair of the parking lot from 2010 to 2015. Id., Attach. 2, Answers to First Set
of Interrogs.; id., Attach. 3, Suppl. Answers to First Set of Interrogs.; id., Attach. 4,
Second Suppl. and Am. Answers to First Set of Interrogs.
Consequently, the Court DENIES Plaintiffs’ Second Omnibus Motion in
Limine to Exclude Defendants’ Trial Witness Jose Brenes (ECF No. 144). 5
The Court observes that Mr. Brenes may testify as to the same facts that Mr. Álvarez would
have testified to regarding the operation of the parking lot. See id., Attach. 4, Second Suppl. and Am.
Answers to First Set of Interrogs., at 12-13; id., Attach. 5, Statement Under Penalty of Perjury.
5
28
3.
Motion to Exclude Alfredo Salazar’s and Ana Sebastian’s
Testimony
The Plaintiffs’ third motion in their omnibus motion in limine petitions the
Court to exclude the proposed testimony of Alfredo Salazar and Ana Sebastian,
“individuals who conducted annual inspections to detect dangerous conditions” for
FFC. Pls.’ Omnibus Mot. at 12-13. The proposed pretrial order states that the
Defendants may call Mr. Salazar and Ms. Sebastian as potential witnesses to testify
“as to inspections of the property in question [he/she] had performed[.]” Proposed
Pretrial Order at 33. The Plaintiffs argue that Mr. Salazar and Ms. Sebastian are
surprise witnesses who were not identified in FFC’s initial disclosures and that
nowhere “did defendant disclose that the information that [Mr. Salazar and Ms.
Sebastian] had supported its defense.” Pls. Omnibus Mot. at 12.
The Plaintiffs further claim that the Defendants failed to provide witness
addresses, in violation of Federal Rule of Civil Procedure 26, until FFC’s second
supplemental and amended answers to the Plaintiffs’ interrogatories, which occurred
after the conclusion of discovery on October 31, 2018. Pls.’ Omnibus Mot. at 12-13.
The Court disagrees. Mr. Salazar and Ms. Sebastian were first mentioned as
individuals who conducted FFC’s annual inspections in the Defendants’ first answer
to the Plaintiffs’ interrogatories. Pls. Omnibus Mot. at 12; Mot. Submitting Exs. to
Pls. Omnibus Mot., Attach. 2, Answers to First Set of Interrogs., at 2. Thus, FFC
properly disclosed Mr. Salazar and Ms. Sebastian as individuals with discoverable
information because they were referenced in the Defendants’ first answer to
interrogatories as individuals with knowledge of the facts, based off the inspection
29
reports they carried out as “FH employees.” 6 Mot. Submitting Exs. to Pls. Omnibus
Mot., Attach. 2, Answers to First Set of Interrogs., at 2.
Moreover, FFC’s first supplemental and amended answers to the Plaintiffs’
interrogatories corrected and completed the addresses of Mr. Salazar and Ms.
Sebastian before the conclusion of discovery on October 10, 2018. Id., Attach. 3,
Suppl. Answers to First Set of Interrogs., at 6, 13.
The Court DENIES the Plaintiffs’ Third Omnibus Motion in Limine to Exclude
Defendants’ Trial Witnesses Alfredo Salazar and Ana Santisteban (ECF No. 144).
4.
Motion to Exclude Paolo Hereter’s Testimony
The Plaintiffs’ fourth motion within their omnibus motion in limine seeks to
exclude the proposed testimony of Paolo Hereter, former administrator of Plaza
Guaynabo during the time of Ms. Laureano-Monge’s fall. Mot. Submitting Exs. to
Pls.’ Omnibus Mot., Attach. 1, Defs.’ Initial Disclosures, at 2. The proposed pretrial
order indicates that Mr. Hereter will testify “as to the inspections of the property in
question, his knowledge as to the incident in question and the administration of the
shopping center at the time of the alleged incident, as well as pavement works
performed prior to the incident[.]” Proposed Pretrial Order at 33. The Plaintiffs argue
that although “Mr. Hereter was identified in the initial disclosures, only a postal
address was provided for him and it was not disclosed that he had knowledge of the
pavement work performed before the accident.” Pls.’ Omnibus Mot. at 13-14.
The
“FH” stands for “Fideicomiso Hispamer, S.E.”, which operates Plaza Guaynabo. Mot.
Submitting Exs. to Pls. Omnibus Mot., Attach. 4, Second Suppl. and Am. Answers to First Set of
Interrogs., at 1.
6
30
Plaintiffs claim that neither FFC’s original answers to the Plaintiffs’ interrogatories,
Mot. Submitting Exs. to Pls.’ Omnibus Mot., Attach. 2, Answers to First Set of
Interrogs., at 2, nor its first supplemental and amended answers, id., Attach. 3, Suppl.
Answers to First Set of Interrogs., at 6, provides a physical address for Mr. Hereter.
Pls. Omnibus Mot. at 13-14. The Plaintiffs state that despite their insistence, the
Defendants did not provide Mr. Hereter’s physical address until the second
supplemental and amended answers to the first set of the Plaintiffs’ interrogatories,
Mot. Submitting Exs. to Pls.’ Omnibus Mot., Attach. 4, Second Suppl. and Am.
Answers to First Set of Interrogs., at 5, which were disclosed after discovery ended. 7
The Court disagrees. Mr. Hereter’s postal address and the accompanying
phone number mentioned in Defendants’ initial disclosures provided sufficient
contact information to satisfy Federal Rule of Civil Procedure 26. Id., Attach. 1, Defs.’
Initial Disclosures, at 2. The fact that the Defendants supplemented Mr. Hereter’s
contact information in their second supplemental and amended answers to the
Plaintiffs’ interrogatories with his physical address does not mean that the initial
disclosure was tardy. The contact information in the initial disclosures was already
sufficient under Federal Rule of Civil Procedure 26.
The Court DENIES Plaintiffs’ Fourth Omnibus Motion in Limine to Exclude
Defendants’ Trial Witness Paolo Hereter (ECF No. 144).
The Defendants’ second supplemental and amended answers to the Plaintiffs’ first set of
interrogatories were disclosed on February 20, 2019, Mot. Submitting Exs. to Pls.’ Omnibus Mot. in
Lim., Attach. 4., Second Suppl. and Am. Answers to First Set of Interrogs., at 11. Discovery concluded
on October 31, 2018. Mins. for Initial Settlement and Scheduling Conference (ECF No. 53).
7
31
5.
Motion to Exclude Testimony From Representatives of
O.L. Maintenance & Services Corp. and Hard Rock
Construction.
The Plaintiffs’ fifth motion within their omnibus motion in limine seeks to
exclude testimony from representatives of O.L. Maintenance & Services Corporation
and Hard Rock Construction. Pls.’ Omnibus Mot. at 14. The proposed pretrial order
states that these representatives will testify “to authenticate evidence proffered by
FFC and with regards to services provided[.]” Proposed Pretrial Order at 33. The
Plaintiffs argue that these representatives “were not identified in defendant FFC’s
initial disclosures and for this reason alone they ought to be excluded. To avoid being
repetitive, plaintiffs incorporate here the arguments regarding the objections to the
documentary evidence having to do with these parties, post.” Pls.’ Omnibus Mot. at
14.
The Court disagrees. Although FFC did not identify O.L. Maintenance &
Services Corporation and Hard Rock Construction during initial disclosures, it
subsequently disclosed their identities under Federal Rule of Civil Procedure 26 in
its answer to the Plaintiffs’ first set of interrogatories. Mot. Submitting Exs. to Pls.’
Omnibus Mot., Attach. 2, Answers to First Set of Interrogs., at 2. Moreover, in line
with the Court’s prior determination in this order of whether the invoices and
contracts from before and after the accident should be excluded, the Court will not
exclude Exhibits Twenty and Twenty-Two on the basis of late notice. The Defendants
may present a company representative to testify as to the authenticity of the invoices
and contracts in Exhibits Twenty and Twenty-Two.
32
Thus, the Court DENIES the Plaintiffs’ Fifth Omnibus Motion in Limine to
Exclude Defendants’ Trial Witnesses Representative of O.L. Maintenance & Services
Corporation and Representative of Hard Rock Construction (ECF No. 144).
6.
Objections to Defendants’ Documentary Evidence
The Plaintiffs’ sixth (and final) motion within their omnibus motion in limine
objects to almost all the Defendants’ documentary evidence listed in the proposed
pretrial order, Proposed Pretrial Order at 36-39; Pls.’ Omnibus Mot. at 15.
a.
Dr. Grovas’ Curriculum Vitae
The Plaintiffs first object to Dr. Grovas’ curriculum vitae, the Defendants’
Exhibit One, as hearsay under Federal Rules of Evidence 801(c) and 802, and under
Federal Rule of Evidence 403 as “cumulative and a waste of time.” Pls.’ Omnibus Mot.
at 15. The Plaintiffs argue that the curriculum vitae is hearsay because it “is a
statement that Dr. Grovas[] did not make while testifying and which defendant FFC
proposes as trial evidence to prove the truth of the matter asserted in exhibit 1.” Id.
at 16. The Plaintiffs cite Jones v. American Council on Exercise, Civil Action No. H15-3270, 2016 U.S. Dist. LEXIS 143882, at *5 (S.D. Tex. Oct. 18, 2016), which reads
“[w]hile the curriculum vitae is technically hearsay and thus likely will not be
admitted as evidence at trial absent a stipulation between the parties, this does not
prevent the Court from relying on the curriculum vitae to determine whether the
expert is qualified[.]” Id.
The Court agrees. Technically, Dr. Grovas’ curriculum vitae is hearsay and no
exceptions apply to permit its admission. Hosse v. Sumner Cty. Bd. of Educ., No.
3:13C520, 2018 U.S. Dist. LEXIS 44573, at *7 (M.D. Tenn. Mar. 19, 2018); McBride
33
v. Kmart Corp., No. 14-CV-41-SWS, 2015 U.S. Dist. LEXIS 192201, at *7 (D. Wy. Jan.
13, 2015); Sheffield v. State Farm Fire & Cas. Co., No. 5:14C38, 2016 U.S. Dist. LEXIS
81985, at *22-23 (S.D. Ga. June 23, 2016); Mahnke v. Wash. Metro. Area Transit
Auth., 821 F. Supp. 2d 125, 154 (D.D.C. 2011); Sutfin v. City of Bono, Ark., No.
3:07C124, 2009 U.S. Dist. LEXIS 62327 (E.D. Ark. July 6, 2009); Alexie v. United
States, No. 3:05C297, 2009 U.S. Dist. LEXIS 4103, at *1 (D. Ala. Jan. 21, 2009); State
v. Cobb, No. E2017-01746-CCA-R3-CD, 2018 Tenn. Crim. App. LEXIS 502, at *26-28
(Ct. Crim. Apps. Tenn. July 6, 2018).
Even so, in practical litigation, the parties routinely stipulate to the
admissibility of curriculum vitae for reasons of common sense. Cobb, 2018 Tenn.
Crim. App. 502, at *27 (“Parties are not prevented from stipulating to the admission
of a written CV document”); McBride, 2015 U.S. Dist. LEXIS 192201, at *7
(“[C]urricula vitae are routinely admitted into evidence”). Typically, more than one
party will call witnesses (often experts) and will seek to admit their resumes, and if
the curriculum vitae of the opponent’s witness is excluded on the basis of hearsay,
the same exclusion will apply to the party’s own witness’s curriculum vitae.
But more to the point, the same evidence is admissible through the direct
testimony of the witness. Hosse, 2018 U.S. Dist. LEXIS 44573, at *7-8 (“Plaintiff can
testify to all of the relevant experiences listed on his resume from personal
knowledge”). Thus, the Cobb Court observed that the exclusion of a curriculum vitae
“may be a case where one wins the battle but loses the war” because the objecting
party “could not prevent the witness from testifying about all of the information
34
contained within the CV document.” Cobb, 2018 Tenn. Crim. App. LEXIS 502, at *27.
Moreover, if a witness could not recall all the specifics in a resume, the document may
be used to refresh his recollection under Federal Rule of Evidence 612. Hosse, 2018
U.S. Dist. LEXIS 44573, at *8. The Cobb Court neatly summarized the situation by
noting that “this is an example of choosing one’s poison: stipulating to the admission
of a written CV or insisting that the information be presented through testimony.”
2018 Tenn. Crim. App. LEXIS 502, at *28. 8
The Court will exclude Dr. Grovas’ resume at trial if the Plaintiffs continue to
object to its admission (and upon objection will exclude all other resumes from all
other witnesses). At the same time, the Court will allow Dr. Grovas to testify to his
professional background and, if he cannot recall all the details, to use the curriculum
vitae to refresh his recollection. The Court GRANTS Plaintiffs’ First Objection to
Defendants’ Documentary Evidence and forbids the admission of Dr. Grovas’
curriculum vitae into the record (ECF No. 144).
b.
Dr. Grovas’ Expert and Supplementary Reports
The Plaintiffs next object to both Dr. Grovas’ initial expert report, First Grovas
Report, Defendants’ Exhibit Two, and his supplementary expert report, id., Attach.
2, Suppl. Expert Report, Defendants’ Exhibit Three, on the same hearsay grounds
that they object to Dr. Grovas’ curriculum vitae. Pls.’ Omnibus Mot. at 17; see FED.
The Plaintiffs assert that Dr. Grovas’ curriculum vitae is objectionable under Federal Rule of
Evidence 403 because it is “cumulative and a waste of time.” Pls.’ Omnibus Mot. at 15-16. To the
contrary, if the Court reached the Rule 403 issue, it would readily find that time would be wasted, not
from the admission of a resume, but from a witness’s oral recitation of it. Of course, if there were
something inaccurate or prejudicial in the resume, Rule 403 would come into play, but the Plaintiffs
have not made that claim. The Court does not reach Rule 403 because the curriculum vitae is
inadmissible regardless of Rule 403.
8
35
R. EVID. 801(c), 802. Moreover, the Plaintiffs incorporate by reference the objections
raised in their motion in limine regarding Dr. Grovas’ expert reports. Pls.’ Omnibus
Mot. at 17; see FED. R. EVID. 403, 702; Daubert, 509 U.S. at 579.
Dr. Grovas’ expert reports themselves are inadmissible hearsay for the same
reason his curriculum vitae is inadmissible hearsay. Jones ex rel. United States v.
Mass. Gen. Hosp., 780 F.3d 479, 494 (1st Cir. 2015) (describing an expert report as “a
quintessential example of hearsay”). As with his resume, however, Dr. Grovas will
be allowed to testify to the contents of his expert report and to rely on the information
in the report that medical doctors reasonably rely on in forming their medical
opinions. See FED. R. EVID. 703 (“An expert may base an opinion on facts or data in
the case that the expert has been made aware of or personally observed. If experts
in the particular field would reasonably rely on those kinds of facts or data in forming
an opinion on the subject, they need not be admissible for the opinion to be admitted.
But if the facts or data would otherwise be inadmissible, the proponent of the opinion
may disclose them to the jury only if their probative value in helping the jury evaluate
the opinion substantially outweighs their prejudicial effect”); United States v.
Morrison, 531 F.2d 1089, 1094-95 (1st Cir. 1976).
The Court accordingly GRANTS the Plaintiffs’ Second Objection to
Defendants’ Documentary Evidence Related to Dr. Grovas (ECF No. 144) insofar as
the admission of Dr. Grovas’ expert reports is concerned because the reports are
inadmissible hearsay and the Court DISMISSES without prejudice the motion
36
insofar as the admission of reports or data underlying his opinion testimony is
concerned because the Court has not been presented with the specific data or reports.
c.
Ms. Laureano-Monge’s
Before the Accident
Medical
Records
From
Third, the Plaintiffs object to FFC’s proposed admission of Ms. LaureanoMonge’s medical records from before the accident. Pls.’ Omnibus Mot. at 17-18. The
Plaintiffs argue that these medical records are inadmissible because: (1) they are
irrelevant under Federal Rule of Evidence 401, (2) their probative value is
substantially outweighed by a danger of unfair prejudice under Federal Rule of
Evidence 403, and (3) they lack foundation under Federal Rule of Evidence 901. Id.
at 18-21.
“A district court is accorded a wide discretion in determining the admissibility
of evidence under the Federal rules. Assessing the probative value of [the proffered
evidence], and weighing any factors counseling against admissibility is a matter first
for the district court’s sound judgment under Rules 401 and 403 . . ..” United States
v. Abel, 469 U.S. 45, 54 (1984). Federal Rule of Evidence 401 states that evidence is
relevant if “it has any tendency to make a fact more or less probable than it would be
without the evidence” and “the fact is of consequence in determining the action.” FED.
R. EVID. 401. Thus, “[r]elevancy is a very low threshold.” United States v. CruzRamos, 987 F.3d 27, 42 (1st Cir. 2021). “‘[T]he evidence need not definitively resolve
a key issue in the case,’ but rather ‘need only move the inquiry forward to some
degree.’” Id. (quoting Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72, 76 (1st Cir.
2010)). In the First Circuit’s words, “it is no exaggeration to say that ‘[a] relevancy-
37
based argument is usually a tough sell.’”
Id. (citing Bielunas, 621 F.3d at 76)
(alterations in Cruz-Ramos).
Relevant evidence is generally admissible, while “[i]rrelevant evidence is not
admissible.” FED. R. EVID. 402. However, under Federal Rule of Evidence 403, “[t]he
Court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” FED. R. EVID. 403.
Plaintiffs argue that these medical records from before Ms. Laureano-Monge
fell are irrelevant under Federal Rule of Evidence 401 because “they have no tendency
to make more or less probable (than they would without it) any fact of consequence
in determining this action.” Id. at 19. The Court disagrees. These medical reports
from before Ms. Laureano-Monge’s accident are relevant under Federal Rule of
Evidence 401 because they tend to make more or less probable whether her
preexisting medical conditions contributed to her fall and they also illuminate
whether her injuries after the fall were a continuation of her preexisting medical
conditions, were new medical conditions, or were a combination of the two.
In addition, Plaintiffs argue that these records are inadmissible under Federal
Rule of Evidence 403 because “[f]ocusing on an irrelevant medical history (Exhibits
4-11) improperly shifts the factfinder’s attention from the core issue of defendant’s
negligent maintenance of its parking lot to a non-issue, i.e. medical records that are
not related [to] plaintiff’s accident.” Pls.’ Omnibus Mot. at 21. As such, Plaintiffs
38
posit that “it will waste time and result in unfair prejudice and Jury confusion that
‘substantially outweighs’ the evidence’s probative value (which is none).” Id. The
Court disagrees. The probative value of medical records underpinning Defendants’
expert’s conclusion that Ms. Laureano-Monge’s medical conditions could have
contributed to the cause of her fall and also to her post-accident symptoms is not
substantially outweighed by any unfair prejudice under Federal Rule of Evidence
403.
Lastly, the Plaintiffs claim that Ms. Laureano-Monge’s medical records from
before the accident are inadmissible because they lack the necessary foundation
under Federal Rule of Evidence 901. The Plaintiffs state that “[t]he proposed pretrial
order reveals no means of authenticating Exhibits 4-11, without which they may not
be admitted at trial.” Pls.’ Omnibus Mot. at 21. This is simply incorrect. In the
March 7, 2019 Proposed Pretrial Order, in addition to listing named witnesses, FFC
listed:
12. Custodians of Documents and Other Evidence, custodians of
documents and other evidence announced by Defendants which
authentication is not stipulated by the parties.
Proposed Pretrial Order at 33-34.
In the Court’s experience, it is common for
attorneys to list prospective authentication witnesses in a proposed pretrial order as
a precaution. If the opposing party stipulates to the admissibility of the records, the
proponent will not be required to locate, subpoena, and name the authenticating
witnesses; yet, if the opposing party objects, the proponent will supplement the names
of the authenticating witnesses. Here, the Court will give counsel an opportunity to
39
consult with each other and to inform the Court as to whether the Plaintiffs will
stipulate to the authenticity of the medical records or will require FFC to present
authenticating witnesses at trial. Within twenty-eight days of the date of this order,
the parties must inform the Court whether a records stipulation will be forthcoming
and, if not, FFC must inform the Court how much time it will need to amend the
proposed pretrial order to list the names of the authenticating witnesses.
The Court DENIES Plaintiffs’ Third Objection to Defendants’ Documentary
Evidence (ECF No. 144).
d.
Dr. Delgado’s
Summary
Medical
Record
and
Discharge
The Plaintiffs next object to the admission of Dr. Delgado’s medical notes from
when she provided treatment to Ms. Laureano-Monge the day after Ms. LaureanoMonge fell, Defendants’ Exhibit Twelve, and her discharge summary from Puerto
Rico Medical Center, Defendants’ Exhibit Thirteen. Proposed Pretrial Order at 37;
Pl’s Omnibus Mot. at 22. The Plaintiffs’ sole objection to this evidence incorporates
by reference the arguments raised in their motion in limine to exclude Dr. Delgado’s
testimony and related medical records. See Pls.’ Mot. to Exclude Medical Rs.
As the Court granted the Plaintiffs’ motion to exclude Dr. Delgado’s testimony
and related medical records, the Court DISMISSES without prejudice the Plaintiffs’
Fourth Objection to Defendants’ Documentary Evidence as moot. 9
If the parties wish to present Dr. Delgado’s medical notes for a purpose other than Dr.
Delgado’s testimony, they may renew this motion.
9
40
e.
Invoices and Contracts from Before and After the
Accident
The Plaintiffs object to invoices and contracts for the maintenance of the
parking lot area, the Defendants’ Exhibits Fourteen through Twenty-Five and
Twenty-Eight, from before and after the accident. Pls.’ Omnibus Mot. in Lim. at 2228; see Proposed Pretrial Order at 37-38. The Plaintiffs argue that these invoices and
contracts are inadmissible because they are irrelevant under Federal Rule of
Evidence 401 and because whatever probative value they may have is substantially
outweighed by a danger of unfair prejudice under Federal Rule of Evidence 403. Pls.’
Omnibus Mot. in Lim. at 24-28.
The Plaintiffs argue that the Defendants’ proposed Exhibits Fourteen through
Twenty-Three are irrelevant because they are “from a time period that does not
include February 4, 2014 (when [plaintiff] fell into the defendant’s outdoor parking
lot pothole).”
Id.
Specifically, the Plaintiffs claim that Exhibits Eighteen and
Nineteen (cleaning invoices from November 26, 2012, and December 16, 2013) and
Exhibits Twenty and Twenty-One (cleaning invoices from November 21, 2014, and
December 14, 2015) cover irrelevant periods from before and after Ms. LaureanoMonge’s fall.
Id.
In addition, the Plaintiffs claim that Exhibit Twenty-Four
(photographs and an invoice for handicap access ramp repair from June 2015) and
Exhibit Twenty-Five (photographs and an invoice for principal façade and hallway
washing from March 2015) “are both from periods after plaintiff fell and neither is
for the parking lot area where [Ms. Laureano-Monge] fell[.]” Id. at 25 (emphasis in
original).
41
With some exceptions, the Court does not have enough information in this
record to resolve the issue. Exhibits Fourteen through Nineteen, Twenty-One, and
Twenty-Three through Twenty-Five consist of yearly cleaning invoices from 2010 to
2013 and 2015. According to the Proposed Pretrial Order, under the terms of a Lease
Agreement between FFC and Supermax, FFC assumed the obligation to conduct
daily inspections of the common areas and maintain all paving of the parking lot, and
the Plaintiffs assert that the pothole into which Ms. Laureano-Monge fell would have
been discovered by reasonable inspection pursuant to this obligation.
Proposed
Pretrial Order at 4-5. It is unclear whether these cleaning invoices could constitute
FFC’s long term compliance with the contractual obligations that the Plaintiffs
maintain it violated. Thus, the Court does not have sufficient information to rule
these exhibits admissible or inadmissible.
However, Exhibit Twenty (an invoice for cleaning and maintenance of parking
areas and hallways from 2014, the year when Ms. Laureano-Monge fell) and Exhibit
Twenty-Two (a services contract for cleaning of the Grana commercial building
executed on August 23, 2013, in effect during the time period of Ms. LaureanoMonge’s fall) may be introduced into the evidentiary record because they are relevant
to the time period of Ms. Laureano-Monge’s fall.
The Plaintiffs insist that Exhibit Twenty-Two should nonetheless be excluded
under Federal Rule of Evidence 401 for irrelevancy because it “relate[s] prima facie
to ‘the Grana commercial building’ (an area that is not the parking lot area where
[Ms. Laureano-Monge] fell into the pothole).” Pls.’ Omnibus Mot. at 25. The Court
42
questions the Plaintiffs’ assertion that the Grana commercial building does not
encompass the area where Ms. Laureano-Monge fell because, as Defendants
generally indicate, the Grana commercial building premises encompass the parking
lot where Ms. Laureano-Monge fell, “which includes the SuperMax store.” Proposed
Pretrial Order at 38.
Thus, the Plaintiffs’ relevancy argument fails as to the
admission of Exhibit Twenty-Two.
Finally, the Plaintiffs claim that “exhibit 28 relates prima facie to artificial
lighting in the parking area of the SuperMax store[,] which is irrelevant because
plaintiff fell into defendant’s outdoor parking lot pothole just before 12:00 noon.” Id.
at 25-26. The Court agrees that evidence of the parking lot’s nighttime lighting is
irrelevant to Ms. Laureano-Monge’s mid-day fall. Thus, pursuant to Federal Rule of
Evidence 401, the Court excludes Exhibit Twenty-Eight from admission into the
record.
In deciding to admit some exhibits from the relevant time period, the Court
finds that the probative value of the invoices and contracts before and after the
accident is not substantially outweighed by any unfair prejudice. These documents
are central to FFC’s defense that it properly maintained its premises free from
dangerous conditions. See FED. R. EVID. 403.
The Court GRANTS in part, DENIES in part, and DISMISSES in part
Plaintiffs’ Fifth Objection to Defendants’ Documentary Evidence (ECF No. 144). The
Court excludes Defendants’ Exhibit Twenty-Eight. The Court rejects the Plaintiffs’
motion to exclude Defendants’ Exhibits Twenty and Twenty-Two.
43
The Court
dismisses without prejudice the Plaintiffs’ motion as to Defendants’ Exhibits
Fourteen, Fifteen, Sixteen, Seventeen, Eighteen, Nineteen, Twenty-One, TwentyThree, Twenty-Four, and Twenty-Five.
f.
Unspecified Photographs of the Premises
The Plaintiffs’ sixth objection to FFC’s documentary evidence opposes the
admission of “Photographs of the premises in question for illustrative purposes,”
Defendants’ Exhibit Thirty. Proposed Pretrial Order at 38; Pls.’ Omnibus Mot. at 28.
The Plaintiffs argue that FFC has not identified the photographs it will use at trial
and assert that they reserve the right to object more fully when such photographs are
identified. Pls.’ Omnibus Mot. at 28. Regarding the Plaintiffs’ Sixth Objection to
Defendants’ Documentary Evidence (ECF No. 144), the Court ORDERS Plaintiffs
and Defendants to meet and mutually stipulate which photographs of the accident
site and premises shall be admitted into the record. If necessary, the Plaintiffs may
reinitiate this motion, but for the moment, the Court DISMISSES without prejudice
Plaintiffs’ Sixth Objection to Defendants’ Documentary Evidence (ECF No. 144).
g.
Plaintiffs’ Answers to Interrogatories
The Plaintiffs next object to the admission of Ms. Laureano-Monge’s answers
to interrogatories, Defendants’ Exhibit Thirty-One, and Ms. Marrero-Ilarraza’s
answers to interrogatories, Defendants’ Exhibit Thirty-Two. Pls.’ Omnibus Mot. at
29. The Plaintiffs argue that “Defendant FFC makes no showing that the use of
plaintiffs’ Interrogatory answers is allowed by law” and “[a]ccordingly, [these
answers] are not admissible at trial.” Id.
44
The Court agrees to an extent. The Plaintiffs’ answers to interrogatories are
excluded because they are inadmissible hearsay unless used for impeachment
purposes; however, this also means that the Plaintiffs’ answers to interrogatories
may be used for impeachment.
The Court GRANTS in part and DENIES in part the Plaintiffs’ Seventh
Objection to Defendants’ Documentary Evidence (ECF No. 144).
h.
Plaintiffs’ Depositions
The Plaintiffs object to the admission of Ms. Laureano-Monge’s deposition,
Defendants’
Exhibit
Thirty-Three,
Defendants’ Exhibit Thirty-Four.
and
Ms.
Marrero-Ilarraza’s
Pls.’ Omnibus Mot. at 30.
deposition,
Plaintiffs argue
“depositions should not be used when, as here, the witness is available” to provide
live trial testimony. Id.
The Court agrees in part once again. Both Ms. Laureano-Monge and Ms.
Marrero-Ilarraza are available to testify.
Plaintiffs’ deposition testimonies are
excluded because they are inadmissible hearsay unless used for impeachment
purposes. However, as with their answers to interrogatories, the Plaintiffs may be
subject to cross-examination for impeachment based on the content of their prior
sworn testimony.
The Court GRANTS in part and DENIES in part Plaintiffs’ Eighth Objection
to Defendants’ Documentary Evidence (ECF No. 144). 10
10
This ruling depends on Ms. Laureano-Monge’s availability as a witness on her own behalf.
45
i.
Conclusion
In conclusion, the Court GRANTS in part and DENIES in part Plaintiffs’
Omnibus Motion in Limine to Exclude Defendants’ Trial Witnesses and Documentary
Exhibits (ECF No. 144).
III.
DISCUSSION OF DEFENDANTS’ MOTIONS IN LIMINE
A.
Motion to Limit and Exclude Dr. Orlando Fernández’s Expert
Testimony (ECF No. 146)
FFC’s first motion in limine requests that the Court limit the proposed expert
testimony of the Plaintiffs’ independent medical evaluator, Dr. Orlando Fernández.
Proposed Pretrial Order at 34; Defs.’ Mot. to Limit Dr. Fernandez’s Test. FFC alleges
that, “[a]ccording to his expert report, Dr. Fernández performed a physical
examination of [Ms. Laureano-Monge], was provided a patient history dating back to
February 4, 2014, and evaluated medical records.”
Defs.’ Mot. to Limit Dr.
Fernandez’s Test. ¶ 2. FFC submits that “[p]ursuant to FED. R. CIV. P. 26(a)(2)(B)(ii)
and (iii), Dr. Fernández listed the medical records he reviewed for the purposes of
rendering the ‘result of his medical evaluation.’” Id. ¶ 3; id., Attach. 1, Physical
Examination.
However, FFC asserts that Dr. Fernández “did not produce any
addendum or amended report during discovery in this matter. The Plaintiffs did not
announce any medical records for trial.” Id. ¶ 4 (citing Proposed Pretrial Order). FFC
requests that “[i]n light of the above, the Court should limit the scope of Dr.
Fernández’s testimony at trial to exclude any reference by the expert to any medical
records that were not identified in his report and/or contained in the PDF files
provided to him by Plaintiff[.]” Id. ¶ 5.
46
FFC argues that “[a]ny opinion testimony of Dr. Fernández during trial about
documents he did not review for purposes of preparing his report cannot be allowed
because it would violate [Federal Rule of Evidence] 702. Further, any testimony
during trial outside the scope of the medical records identified by the expert in his
report would be inadmissible under [Federal Rules of Civil Procedure] 26(e)(1)(A) and
26(e)(2).” Def.’s Mot. to Limit Dr. Fernandez’s Test. ¶ 6. FFC concludes that Federal
Rule of Civil Procedure 26(a)(2)(B)(ii) “requires that an expert’s report include the
facts or data considered by the witness in forming his opinions. The Plaintiffs’ expert
did not include any additional facts nor data other than what was identified in his
report.” Id. ¶ 7.
In opposition to FFC’s motion to limit the scope of Dr. Fernández’s testimony,
the Plaintiffs argue that the “motion in limine should be denied because it is based
on a supposition that the content of Dr. Fernández’s trial testimony will go beyond
the bounds of FED. R. CIV. P. 26(a)(2) . . . It is about a controversy that doesn’t exist.”
Pls.’ Combined Opp’n to Defs.’ Mot. in Lim. to Limit the Test. of Pls.’ Expert [Dkt. 146];
Exclude Pls.’ Written Discovery Answers [Dkt. 147]; and as to Daily Inspection Reports
Identified by Pls. [Dkt. 148] at 2 (ECF No. 157) (Pls.’ Combined Opp’n).
In an abundance of caution, recognizing Plaintiffs’ pledge that Dr. Fernández’s
testimony will not go beyond the scope permitted by Federal Rule of Civil Procedure
26(a)(2), the Court GRANTS Defendant FFC’s Motion in Limine to Limit the Scope
of Expert Orlando Fernández’s Testimony (ECF No. 146) to exclude any reference by
47
the expert to any medical records not identified in his report or contained in the files
provided to Dr. Fernández.
B.
Motion to Exclude the Plaintiffs’ Answers to Defendants’
Interrogatories (ECF No. 147)
FFC’s second motion in limine seeks to exclude the Plaintiffs’ answers to
Defendants’ interrogatories and request for production of documents from the
evidentiary record. Def.’s Mot. to Exclude Answers. The Plaintiffs indicated in the
proposed pretrial order that they intend to use as evidence their answers to
Defendants’ interrogatories and request for production. Proposed Pretrial Order at
36. FFC argues that the Plaintiffs’ own answers to interrogatories and to the request
for production of documents constitute hearsay and are inadmissible under Federal
Rule of Evidence 801 because “none of the exceptions to the hearsay rule come into
play here[.]” Def.’s Mot. to Exclude Answers ¶¶ 2-5.
The Court agrees. The Plaintiffs’ answers to the Defendants’ interrogatories
and request for production of documents are excluded because they are inadmissible
hearsay. Thus, the Court GRANTS Defendant FFC’s Motion in Limine to Exclude
Answers to Written Discovery as Evidence at Trial (ECF No. 147).
C.
Motion to Exclude Photographs of the Accident Site and Pothole
(ECF No. 149)
FFC’s third motion in limine seeks to exclude the Plaintiffs’ “photographs of
the accident site and pothole” referenced in the proposed pretrial order because of
“mishandling of electronic evidence that did not allow corroboration of metadata nor
photograph authentication; and the fact that the photographs cannot be
authenticated by the witnesses announced for trial.” Proposed Pretrial Order at 35;
48
Def.’s Mot. to Exclude Photographs ¶ 20. FFC also claims that “[n]o purpose nor
identifying aspects of the evidence were informed to the Court” and that the Plaintiffs
admitted during discovery that the photos “were taken by an individual who will not
testify at trial” and “are not the original photographs.”
Def.’s Mot. to Exclude
Photographs ¶ 1-2 (emphasis in original).
The Plaintiffs respond with a request for sanctions, asserting that “defendant
FFC filed this motion in limine knowing full-well that its central allegations are
simply not true. Pls.’ Opp’n to Defs.’ Mot. to Exclude Photographs at 1 (emphasis in
original). “The truth is that plaintiffs did provide defendant FFC with the original
photographs in digital (jpeg) format” on October 4, 2018. Id. at 2. The Plaintiffs
allege that FFC’s reference to a June 18, 2018 email exchange, in which the Plaintiffs
denied having the original digital versions of the photographs to produce as
requested, is deliberately misleading. Id. at 3. “Plaintiffs did produce the digital
(jpeg) photographs; as requested by defendant FFC.” Id. (emphasis in original).
“Indeed, they were produced before discovery closed on October 31, 2018.”
(emphasis in original).
Id.
The Plaintiffs characterize FFC’s “impli[cation] that
[plaintiffs’ counsels’ secretary at the time] may have manipulated the pdfs” as “a hoax
on the court.” Id. at 5-6. “All this mud is slung without a shred of factual support
and despite defendant FFC having (since October 4, 2018; Ex. 1 and 2) the original
jpeg photographs that destroys their claim.” Id. at 6. The Plaintiffs assert that “the
motion in limine (dkt. #149) by defendant FFC violates” ABA Model Rules of
49
Professional Conduct 3.1 and 3.3(1) regarding frivolous claims and false statements.
Id. at 4.
The Court is not in a position based on the record before it to resolve the
lawyers’ charges and countercharges. To do justice to this roiling issue, the Court
would be required to hold an evidentiary hearing or review a stipulated record, which
neither party has requested or provided. From the Court’s perspective, it would be
unfortunate if the key question — whether the photographs are admissible — were
lost amid allegations of professional misconduct and counsel were required to hire
new counsel to represent themselves at any hearing involving allegations of
professional misconduct.
In light of these contradictory accounts, regarding Defendant’s Motion in
Limine to Exclude “Photographs of the Accident Site and Pothole” as Announced by
Plaintiffs (ECF No. 149), the Court ORDERS counsel for Plaintiffs and Defendants
to meet and mutually stipulate which photographs of the accident site shall be
admitted into the record. If counsel are unable to come to terms within twenty-eight
days of the date of this order, the Court ORDERS counsel to inform the Court and
the Court will schedule a videoconference of counsel to discuss further proceedings
on this issue.
D.
Motion to Exclude Daily Inspection Reports (ECF No. 148)
Integrand and Metropol’s first motion in limine requests exclusion of the
supposed “Daily Inspection reports of the parking area in front of the SuperMax,”
where Ms. Loreano-Monge suffered her accident, which the Plaintiffs proffered in the
proposed pretrial order. Proposed Pretrial Order at 36; Defs.’ Mot. as to Inspection
50
Reports ¶ 1. The Defendants object to this evidence because the Plaintiffs never
produced nor identified the daily inspection reports during discovery. Defs.’ Mot. as
to Inspection Reports ¶ 1. The Defendants argue that since discovery concluded before
the Defendants obtained a copy of these daily inspection reports, their exclusion is
warranted. Id. ¶ 2, 4 (citing Young v. Gordon, 330 F.3d 76, 82-83 (1st Cir. 2003) (a
party’s “violation of a time-specific order was not cured by subsequent compliance at
his leisure”)).
The Plaintiffs rebut by stating that the daily inspection reports “refer to the
records of daily inspections that defendant FFC was contractually obliged to make of
the outdoor parking lot[.]” Pls.’ Combined Opp’n at 4. The Plaintiffs allege that
“Defendants refuse to stipulate that the daily inspections records do not exist,
[Proposed Pretrial Order at 29],” and such “refusal contradicts [Defendants’] answer
to plaintiffs’ request for production of such records.” Pls.’ Combined Opp’n at 4. The
Plaintiffs claim that the Defendants’ first and second supplemental and amended
answers to the Plaintiffs’ interrogatories and request for production state that
Defendants “had no records of inspection reports for the parking lot where [Ms.
Laureano-Monge] suffered her accident.” Id. “Thus, in light of defendants’ refusal to
stipulate that no such records exist, a live witness must so attest.” Id. The Plaintiffs
conclude that they “cannot produce documents that defendants say don’t exist”
because any daily inspection reports of the parking lot “are solely within
[Defendants’] possession and control.” Id.
51
The Defendants’ answers to Plaintiffs’ interrogatories refer to daily inspections
but do not suggest that those inspections resulted in daily reports. Mot. Submitting
Exs. to Pls. Omnibus Mot., Attach. 4, Second Suppl. and Am. Answers to First Set of
Interrogs., at 4, 6, 10. The Defendants’ answers mention “maintenance directives” for
daily inspections and state that “FH Administration employees also performed daily
inspections” but do not confirm that employees filled out corresponding reports of
their daily inspections. Id. Daily inspection reports are not listed among the “records
of the maintenance provided to the SuperMax parking lot during the years from 20102015.” Id. at 4-5.
The Court GRANTS Defendants’ Motion in Limine as to Daily Inspection
Reports Identified by Plaintiff in the Pretrial Report (ECF No. 148) to exclude
Plaintiffs’ proffered daily inspection reports because Plaintiffs have not offered any
indication that they exist.
IV.
CONCLUSION
The Court DENIES Plaintiffs’ Motion in Limine (ECF No. 93), GRANTS
Plaintiffs’ Motion in Limine (ECF No. 138), GRANTS IN PART and DENIES IN
PART Plaintiffs’ Motion in Limine (ECF No. 144) and GRANTS Defendants’ Motions
in Limine (ECF Nos. 146, 147, and 148). In addition, the Court NOTES Defendants’
Motion in Limine (ECF No. 149) and ORDERS Plaintiffs and Defendants to meet
and mutually stipulate which photographs of the accident site and which
“photographs of the premises in question for illustrative purposes” shall be admitted
into the record.
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SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 15th day of November, 2021
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