Guthrie v. Ball et al

Filing 196

ORDER granting 97 Motion in Limine; granting 114 Motion in Limine; granting 140 Motion in Limine. Signed by Magistrate Judge Susan K Lee on October 8, 2014. On or before Thursday, October 9, 2014, no later than 5:00 p.m. [EASTERN], each party is DIRECTED to file a list designating up to three expert witnesses whom the party expects to call to testify at trial. (CNC) Mailed to John W. Pate (CNC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
KAREN GUTHRIE, individually and on
behalf of the Estate of Donald Guthrie,
Plaintiff,
v.
GREGORY BALL, M.D.,
Defendant.

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No. 1:11-cv-333-SKL

ORDER
Before the Court are Plaintiff’s “Motion in Limine No. 12 to Exclude Unnecessarily
Cumulative Expert Testimony” [Doc. 97], Plaintiff’s “Motion in Limine No. 13 to Exclude
Defense Expert Kris Sperry, M.D.” [Doc. 114], and Defendant’s “Motion in Limine #26 to
Exclude Plaintiff’s Use of Deposition of Ben Johnson, M.D. at Trial” [Doc. 140]. Defendant has
filed a response in opposition to Plaintiff’s Motion in Limine No. 12 [Doc. 178] and a response
in opposition to Plaintiff’s Motion in Limine No. 13 [Doc. 169]. Plaintiff has filed a response in
opposition to Defendant’s Motion in Limine #26 [Doc. 155]. Plaintiff filed a reply to the motion
to exclude Dr. Kris Sperry [Doc. 190].
I.

Plaintiff’s “Motion in Limine No. 12 to Exclude Unnecessarily Cumulative Expert
Testimony” [Doc. 97]
In this motion [Doc. 97] and supporting affidavit with exhibits [Doc. 98], Plaintiff seeks

to exclude unnecessarily cumulative expert testimony from Defendant’s six expert witnesses on
the issues of standard of care and cause of death, because Plaintiff contends that Defendant’s
standard of care experts all offer identical opinions regarding breach and causation and

Defendant’s cause of death experts offer identical opinions that Mr. Guthrie died from a heart
attack, not fentanyl intoxication.
Defendant has filed a response in opposition [Doc. 178] well past the deadline to respond
under the Court’s scheduling order. Nevertheless, the Court has reviewed Defendant’s response,
which fails to provide any concrete differences between the experts’ testimony, and thus fails to
demonstrate that the experts’ testimony is non-cumulative.

The different perspectives and

experiences of the experts do not justify cumulative testimony. The Local Rules make it clear
that “[e]xcept by leave of the Court, not more than 3 witnesses shall be called . . . to give expert
or value testimony as to any matter.” Because Defendant has not demonstrated a valid reason for
more than three experts to testify in his defense, the Court will enforce the expert limit under the
Local Rules for both parties.
Defendant requests, alternatively in his response, that if the Court excludes certain
experts from testifying at trial, that those experts’ depositions be excluded from use for any
purpose. The Court agrees that the depositions of any experts who are not designated or crossdesignated in accordance with the Local Rule limitation shall not be used for any purpose at trial.
II.

Plaintiff’s “Motion in Limine No. 13 to Exclude Defense Expert Kris Sperry, M.D.”
[Doc. 114]
In this motion [Doc. 114] and supporting affidavit with exhibits [Doc. 115], Plaintiff

seeks to exclude Kris Sperry, M.D. (“Dr. Sperry”) from testifying at trial because Defendant
failed to produce Dr. Sperry for deposition as required by Rule 26(b)(4)(A). Plaintiff also argues
that the exclusion of Dr. Sperry’s testimony will not prejudice Defendant because Dr. Sperry’s
testimony is cumulative under Rule 403 to that of Defendant’s other experts. Defendant has filed
a response in opposition [Doc. 169], in which Defendant argues that he made every effort to

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produce Dr. Sperry for a deposition, and therefore Dr. Sperry should not be excluded from
testifying at trial.
A party may depose any person designated as an expert whose opinions may be presented
at trial. Fed. R. Civ. P. 26(b)(4)(A). Where a party has failed to produce such a witness for
deposition, the Court may bar the testimony of that witness at trial. See Scozzari v. City of Clare,
No. 08-10997-BC, 2012 WL 1988129, at *1 (E.D. Mich. June 4, 2012) (citations and internal
quotation marks omitted) (Where a witness “refuses to submit to a deposition or to produce the
materials he reviewed prior to testifying,” the “court can surely bar the testimony of [that]
witness.”). If Dr. Sperry is designated as one of Defendant’s three expert witnesses for trial, Dr.
Sperry must be made available for a deposition prior to trial. Counsel may appear by phone or in
person for said deposition.
In so ruling, the Court notes it has read the many arguments and exhibits addressing why
Dr. Sperry’s deposition was not taken. It is not necessary to repeat the various versions of events
leading to the parties’ current predicament. The Court previously noted [Doc. 70], and again
notes that it expects the parties, and more specifically the attorneys, to work out whatever
scheduling difficulties exist without Court intervention and to complete the remaining expert
depositions as ordered herein. Further failure to do so may result in sanctions.
III.

Defendant’s “Motion in Limine #26 to Exclude Plaintiff’s Use of Deposition of Ben
Johnson, M.D. at Trial” [Doc. 140]
In this motion with exhibits [Doc. 140], Defendant seeks to exclude Plaintiff from using

the deposition testimony of Ben Johnson, M.D. (“Dr. Johnson”) during trial under Federal Rule
of Civil Procedure 32(a)(6) because Plaintiff did not reconvene Dr. Johnson’s deposition to allow
Defendant to ask his remaining questions of Dr. Johnson. Plaintiff has timely filed a response in

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opposition to Defendant’s motion [Doc. 155], in which Plaintiff argues that Dr. Johnson’s
deposition testimony should not be excluded at trial.
On January 6, 2014, Plaintiff designated her experts, including a cross-designation of any
expert to be designated by Defendant. No objection was filed to this cross-designation to the
Court’s knowledge. On March 14, 2014, Defendant identified Dr. Johnson as one of his experts
on the standard of care in this matter. Dr. Johnson’s deposition was taken in part on June 20,
2014. On the day of the deposition, Dr. Johnson advised the parties that he had to be on call at
the hospital and would need to leave the deposition at 4:00 p.m., which was a few hours shy of
the seven-hour limit for his deposition. At 4:00 p.m., counsel discussed the matter and agreed to
temporarily suspend Dr. Johnson’s deposition and reconvene at a time agreeable to both parties
because Plaintiff had about ten more minutes of questions for Dr. Johnson, and Defendant
advised that he also had questions remaining for Dr. Johnson. Plaintiff’s counsel has declared
that he informed Defendant’s counsel within minutes of stopping the deposition that Plaintiff
intended to use the deposition in her case-in-chief. Thereafter, on July 14, 2014, both Defendant
and Plaintiff filed a final witness list, in which they indicated that they each expected to call Dr.
Johnson as a witness in the case. While Defendant has filed a notice that he does not intend to
call another of his retained experts, he has not asserted that he will not call Dr. Johnson at trial.
Due to a number of circumstances, and perhaps a significant amount of lawyer
gamesmanship, the deposition was never reconvened. In the end, Plaintiff decided not to ask her
additional ten minutes of questions. Defendant did not bring to the Court’s attention, at any time
prior to the close of the extended discovery period, that court intervention might be necessary to
get the deposition completed. The parties filed a joint motion to obtain additional time to
complete expert depositions in which they both represented to the Court that Dr. Johnson’s

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deposition was taken. In the joint motion, neither party informed the Court that Dr. Johnson’s
deposition had not been completed at that time.
Pursuant to Rule 32(a), a deposition may be used at trial, “as permitted by the Federal
Rules of Evidence.” Defendant’s motion argues Plaintiff should not be permitted to use Dr.
Johnson’s deposition at trial under Rule 32(a)(6), because it was not completed and Defendant
has not been able to ask his questions of his expert yet. Rule 32(a)(6) provides that “[i]f a party
offers in evidence only part of a deposition, an adverse party may require the offeror to introduce
other parts that in fairness should be considered with the part introduced, and any party may
itself introduce any other parts.” Fed. R. Civ. P. 32(a)(6).
The use of a deposition of a person other than an adverse party for substantive evidence,
rather than merely for impeachment, is governed by Rule 32(a), which provides that a deposition
of an unavailable witness may be used at trial against a party who was present or represented at
the taking of the deposition and had reasonable notice of the deposition.

A court has

considerable discretion in determining whether to admit deposition testimony. See Allgeier v.
United States, 909 F.2d 869, 876 (6th Cir. 1990). At this point, there has been no showing that
Dr. Johnson is unavailable. Perhaps he is beyond the 100-mile reach of the Court under Fed. R.
Civ. P. 32(a)(4) since he left his deposition for call at a hospital in Nashville, but that has not
been shown to date. Thus, the Court will RESERVE RULING on whether Dr. Johnson’s
deposition may be used at trial if he is designated as one of the three expert witnesses for any
party.
The current predicament is of the parties’ own making and a result of their own failure to
timely complete discovery or timely seek court intervention to resolve what is essentially a
discovery dispute. Dr. Johnson is an expert witness and not a fact witness. It is unknown

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whether he will appear at trial. For the same reasons that Dr. Sperry must be produced for
deposition if Defendant designates him as one of his three permitted expert witnesses for trial, so
too must Dr. Johnson’s deposition be completed prior to trial if he is designated or crossdesignated by either party as one of the three permitted expert witnesses.
Accordingly, for the reasons above, it is hereby ORDERED that:
(1)

Plaintiff’s “Motion in Limine No. 12 to Exclude Unnecessarily Cumulative
Expert Testimony” [Doc. 97] is GRANTED in that each party is limited to
presenting the testimony of three expert witnesses at trial.

On or before

Thursday, October 9, 2014, no later than 5:00 p.m. [EASTERN], each party is
DIRECTED to file a list designating up to three expert witnesses whom the party
expects to call to testify at trial. The deposition testimony of any expert witness
not so designated (or cross-designated) SHALL NOT be introduced at trial.
(2)

Plaintiff’s “Motion in Limine No. 13 to Exclude Defense Expert Kris Sperry,
M.D.” [Doc. 114] is GRANTED only if Dr. Sperry is not designated by
Defendant as one of his three experts for trial. If Dr. Sperry is so designated, then
he SHALL be made available by Defendant for deposition prior to trial.

(3)

Defendant’s “Motion in Limine #26 to Exclude Plaintiff’s Use of Deposition of
Ben Johnson, M.D. at Trial” [Doc. 140] is GRANTED only if he is not
designated or cross-designated as one of the three expert witnesses either side
may present at trial. To the extent that Dr. Johnson is so designated, he SHALL
be made available by Defendant for the conclusion of his deposition.

(4)

If a deposition of Dr. Sperry or the completion of Dr. Johnson’s deposition is
necessary because either doctor has been selected to testify in accordance with

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this order, the Court DIRECTS the parties to schedule and conduct such
deposition so that the deposition will be completed prior to the start of the trial.
The Court reminds the parties that they have multiple counsel of record for each
side and that any failure to comply with this order may result in sanctions.
SO ORDERED.
ENTER:
s/fâátÇ ^A _xx
SUSAN K. LEE
UNITED STATES MAGISTRATE JUDGE

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