Ream v. United States of America

Filing 53

COURT'S RULINGS on Ream's Objections to the United States' Deposition Designations (Dkts. 46 , 48 ). Signed by Judge Richard A. Jones. (SWT)

Ream v. United States
C17-1141 RAJ

Court’s Rulings on Ream’s Objections to the United States’ Deposition Designations (Dkt. ## 46, 48)
Robert Wolinsky
PAGE /
NATURE OF
LINE
OBJECTION
26:23-28:3 Hearsay within
hearsay
Exhibits 1
and 2

Hearsay, which
does not come
under the
medical records
exception, which
are not
"reasonably
pertinent" to
medical
diagnosis or
treatment. This
was a mandatory
referral by an
insurance
company. It is
also cumulative
of the testimony

RESPONSE

COURT’S RULING

ER 803 – certified medical record, kept in regular course of
business, regular practice to record observations of patients
in course of functional capacity evaluation.

OVERRULED

ER 803 – certified records of functional capacity evaluation
(FCE) ordered by Plaintiff’s treating physician, Dr. Jason
Garber, after reaching maximum medical improvement, for
purposes of determining work restrictions; Dr. Garber relied
upon FCE in determining work restrictions, a material issue
before the Court relating to Plaintiff’s wage loss claims.

OVERRULED

PAGE /
LINE

NATURE OF
OBJECTION
itself, which
simply goes over
the report.

RESPONSE

COURT’S RULING

Tyree Charlton
PAGE /
LINE
31:9-332:13
38:2540:12

NATURE OF
OBJECTION
Hearsay

Hearsay and
speculation as to
the statements,
intent and
thought
processes of
another person
40:18-45:2 Hearsay and
speculation as to
the statements,
intent and
thought
processes of
another person

RESPONSE

COURT’S RULING

ER 803 – certified medical record, kept in regular course of
business, regular practice to record observations of patients
such as inconsistencies in presentation
ER 803 – certified medical record, kept in regular course of
business, regular practice to record observations of patients
such as inconsistencies in presentation

OVERRULED

ER 803 – certified medical record, kept in regular course of
business, regular practice to record observations of patients
such as inconsistencies in presentation.

OVERRULED

OVERRULED

Court’s Rulings on the Parties’ Objections to Ream’s Deposition Designations (Dkt. # 47, 49)
Jessica Chiovaro
PAGE /
LINE
56:2-11

NATURE OF
OBJECTION
Lack of
foundation; ER
401, ER 602, ER
701

RESPONSE

COURT’S RULING

The witness has ample foundation and qualifications to offer
this opinion. See, e.g., 56:8-11; 56:20-57:1; 53:1-55:12;
7:18-12:19.

OVERRULED

Jamie N. Gamez
PAGE /
LINE
16:12-13

16:21-24

NATURE OF
OBJECTION
Lack of
foundation;
relevance;
speculation
ER 403; ER 602;
ER 702
Lack of
foundation as to
“reasonable”
ER 403; ER 602;
ER 702

RESPONSE

COURT’S RULING

The reasonable value of plaintiff’s medical services is
relevant to her damages. See WPI 30.07.01. The testimony is
in no way unfairly prejudicial, confusing, or wasteful.
Ms. Gamez testified to both her foundation and credentials
extensively during the depositions. See Tr. 8:6-11:14
(qualifications); 11:15-15:3 (foundation).
Plaintiff’s medical damages are a relevant issue in the case,
and in no way unfairly prejudicial, confusing, or wasteful.
Ms. Gamez testified to both her foundation and credentials
extensively during the depositions. See Tr. 8:6-11:14
(qualifications); Tr. 11:15-15:3 (foundation).
Ms. Gamez further laid the specific foundation required to
offer the summary. Tr. 15:21-16:8.

OVERRULED

OVERRULED

PAGE /
LINE
17:3

26:1-4

26:22-25

NATURE OF
OBJECTION
Lack of
foundation for
opinions
ER 403; ER 602;
ER 702

RESPONSE

The question was whether the opinions are on a more
probable than not basis. The witness testified that they were.
This is not a question, in itself, requiring foundation, nor
does it implicate Rule 403.
As for the underlying opinions, Ms. Gamez testified to both
her foundation and credentials extensively during the
depositions. See Tr. 8:6-11:14 (qualifications); Tr. 11:1515:3 (foundation)..
Collateral source, Cross-exam on expert’s methodology and credibility; does
Rule 401; 403;
not implicate collateral source rule, but questions expert’s
see also Gerlach conclusion that total charge is best, or only, indication of
v. Cove
value of service.
Apartments,
LLC, 77179-5-I,
2019 WL
2083307, at *6
(Wash. Ct. App.
May 13, 2019).
Plaintiff
respectfully
incorporates her
bench brief (dkt.
27) by reference.
Collateral source, Plaintiff’s objection is overbroad reading of collateral source
Rule 401; 403;
rule, which does not preclude cross-examination of
see also Gerlach foundation, methodology or credibility of witness’s opinion,
v. Cove
but rather bars only evidence of payments made for
Apartments,
Plaintiff’s benefit. Pages 26-29 include foundational
LLC, 77179-5-I,

COURT’S RULING
OVERRULED

OVERRULED

OVERRULED

PAGE /
LINE

27:12-15

NATURE OF
OBJECTION
2019 WL
2083307, at *6
(Wash. Ct. App.
May 13, 2019).
Plaintiff
respectfully
incorporates her
bench brief (dkt.
27) by reference.
(Standing
objection to
collateral source
made and agreed
to)
Collateral source,
Rule 401; 403;
see also Gerlach
v. Cove
Apartments,
LLC, 77179-5-I,
2019 WL
2083307, at *6
(Wash. Ct. App.
May 13, 2019).
Plaintiff
respectfully
incorporates her
bench brief (dkt.
27) by reference.

RESPONSE

COURT’S RULING

questions for expert’s opinion and do not include evidence of
any payments made on Plaintiff’s behalf.

Cross-exam on expert’s methodology and credibility; does
not implicate collateral source rule, but questions expert’s
conclusion that total charge is best, or only, indication of
value of service.

OVERRULED

PAGE /
LINE
29:19-21

36:4-5

NATURE OF
OBJECTION
Per standing
objection:
Collateral source,
Rule 401; 403;
see also Gerlach
v. Cove
Apartments,
LLC, 77179-5-I,
2019 WL
2083307, at *6
(Wash. Ct. App.
May 13, 2019).
Plaintiff
respectfully
incorporates her
bench brief (dkt.
27) by reference.
What was paid or
credited, and by
whom, is not
relevant and
collateral source.
See Rule 401;
403; see also
Gerlach v. Cove
Apartments,
LLC, 77179-5-I,
2019 WL
2083307, at *6

RESPONSE

COURT’S RULING

Cross-examination on foundations of expert’s methodology,
credibility and opinion. Does not include any evidence of
payments made on Plaintiff’s behalf.

OVERRULED

Cross-examination on credibility of expert’s opinion, based
upon lack of knowledge or inquiry of credits, loans and
discounts applied to medical bills. Limited only to certain
bills, which reflect questionable reductions. Collateral source
not implicated as expert did not know reason for any credits,
loans, or discounts applied..

OVERRULED

PAGE /
LINE

42:2243:13

42:2243:13

NATURE OF
OBJECTION
(Wash. Ct. App.
May 13, 2019).
Plaintiff
respectfully
incorporates her
bench brief (dkt.
27) by reference.
Collateral source,
Rule 401; 403;
see also Gerlach
v. Cove
Apartments,
LLC, 77179-5-I,
2019 WL
2083307, at *6
(Wash. Ct. App.
May 13, 2019).
Plaintiff
respectfully
incorporates her
bench brief (dkt.
27) by reference..
Collateral source,
Rule 401; 403;
see also Gerlach
v. Cove
Apartments,
LLC, 77179-5-I,
2019 WL

RESPONSE

COURT’S RULING

Cross-examination on credibility of expert’s opinion, based
upon lack of knowledge or inquiry of discounts applied to
bill. Collateral source not implicated as expert did not know
reason for any credits, loans, or discounts applied.

OVERRULED

Cross-examination on credibility of expert’s opinion, based
upon lack of knowledge or inquiry of discounts applied to
bill. Collateral source not implicated as expert did not know
reason for any credits, loans, or discounts applied.

OVERRULED

PAGE /
LINE

59:1560:25

67:12

NATURE OF
OBJECTION
2083307, at *6
(Wash. Ct. App.
May 13, 2019).
Plaintiff
respectfully
incorporates her
bench brief (dkt.
27) by reference..
Collateral source,
Rule 401; 403;
see also Gerlach
v. Cove
Apartments,
LLC, 77179-5-I,
2019 WL
2083307, at *6
(Wash. Ct. App.
May 13, 2019).
Plaintiff
respectfully
incorporates her
bench brief (dkt.
27) by reference.
Lack of
foundation as to
“reasonable
charge”
ER 403; ER 602;
ER 702.

RESPONSE

COURT’S RULING

Cross-examination as to credibility of expert’s opinion when
including charges for Plaintiff’s retained expert..

OVERRULED

Ms. Gamez testified to both her foundation and credentials
extensively during the depositions. See Tr. 8:6-11:14
(qualifications); 11:15-15:3 (foundation). Her clarification of
a math error is both relevant and consistent with Rule 403...

OVERRULED

PAGE /
LINE
68:11

NATURE OF
OBJECTION
Lack of
foundation as to
any other expert
reports
ER 403; ER 602.
68:15
Lack of
foundation as to
any other expert
reports
ER 403; ER 602.
69:13-70:1 Collateral source,
relevance, facts
not in evidence,
foundation, and
Rule 403.

RESPONSE

COURT’S RULING

What the witness has, and has not, reviewed in forming
opinions is relevant and appropriate testimony.

OVERRULED

What the witness has, and has not, reviewed in forming
opinions is relevant and appropriate testimony.

OVERRULED

Exhibits referenced were offered into evidence by Plaintiff;
questions go to credibility of expert opinion as to credits,
duplicative services, discounts, and reversals when expert
had no knowledge and made no inquiry of same on bills..

OVERRULED