The opinion of the court was delivered by: B. Lynn Winmill Chief U.S. District Court Judge
MEMORANDUM DECISION AND ORDER
The Court has before it Defendant's Motion for Reconsideration of the Court's Orders of March 1 and March 2, 2011 (Dkt. 148.)
1. Testimony of Drs. Farr, Burnett and Cooke
Defendant asks the Court to reconsider it decision to exclude expert testimony from Drs. Farr, Burnett and Cooke. On February 9, 2011 Defendant gave notice that he intended to introduce at trial expert evidence relating to a mental disease or defect or other mental condition of the defendant pursuant to Rule 12.2. Defendant also stated that one or more expert witnesses will present evidence that the daily combination of certain drugs resulted in delirium. He listed a number of witnesses he may call at trial. Drs. Farr, Burnett and Cooke were on that list. Defendant did not provide expert reports for any of the three doctors. *fn1
On February 18, 2011, the Government filed a motion to exclude the expert testimony of Drs. Farr, Burnett and Cooke. (Dkt. 102.) On February 22, 2011, Defendant filed a motion to exclude the expert testimony of Drs. Ladd and Engle. (Dkt. 110.) The Court held a status conference on February 23, 2011 and set a deadline of February 25, 2011 for the parties to respond to the motions to exclude. (Dkt. 114.) The Government filed its response on February 25. (Dkt. 124.) Defendant filed a Motion to Continue the Trial on February 25, but he did not file a response to the motion to exclude. (Dkt. 128.)
In its motion to exclude, the Government indicated that it assumed the three doctors would be expert witnesses. Therefore, the Government moved to exclude them from testifying at trial because Defendant did not provide expert reports. As explained above, Defendant did not file a response brief. Defendant now states that he responded to the motion to exclude by filing his motion to continue. In that motion, Defendant stated that his previous attorneys never interviewed his "treating doctors, who performed major life saving surgery on him months before his arrest. . . ." (Dkt. 128.) He did not mention the "treating doctors" by name or indicate to the Court that Drs. Farr, Burnett and Cooke were treating physicians. Toward the end of the motion, Defendant listed witnesses who "have been located by defense counsel since being provided access to the federal defender's files and being allowed to substitute as counsel." (Dkt. 128.) Dr. Cooke was on that list, but Defendant gave no other information about him. Drs. Farr and Burnett are not mentioned by name in the motion to continue. Accordingly, the Court granted the Government's motion to exclude the three doctors from testifying as experts at trial.
Defendant contends that the Court made an error. The Court did not. Drs. Farr, Burnett and Cooke cannot testify as expert witnesses. However, they may testify as fact witnesses. Treating physicians may obviously testify concerning the diagnosis made, the course of treatment provided, the prognosis anticipated, and the consequences of treatment likely to be encountered. However, they do so, not as expert witnesses, but as fact witnesses who are describing the nature and course of treatment actually provided to the Defendant. Thus, the Defendant's treating physicians may testify as fact witnesses, including opinions actually formed during the course of treatment, so long as the testimony otherwise complies with the Federal Rules of Evidence.
Defendant also asks the Court to reconsider its decision to deny the motion to continue. Defendant makes several arguments, which the Court will address below.
First, Defendant suggests that the Court "eliminated the defense of diminished mental capacity from the March 7, 2011 trial." (Dkt. 148.) Defendant states that the Court "prohibits testimony from the medical doctors who performed surgery and prescribed drugs for the Defendant and then does not allow an examination to determine his medical and mental condition at the present time or at the time of his arrest." (Dkt. 148.) These statements are not accurate.
As explained above, the Court will prohibit the treating physicians from testifying as experts because they failed to provide expert reports as required by Federal Rule of Criminal Procedure 16. However, they may testify as fact witnesses. As for the assertion that the Court did not allow an examination of Defendant, the Court only enforced the rule that such an examination be done within the deadlines set by the rules and the Court. Defendant chose not to comply with those rules and deadlines.
Defendant next argues that the "court's stated reason for denying a continuance appears to be based solely upon the convenience of the Court's schedule." (Dkt. 148.) This statement is also inaccurate. In its Order denying the motion to continue, the Court addressed all four factors which guide the Ninth Circuit when it reviews a district court's decision on a motion to continue: "(1) the extent of appellant's diligence in his efforts to ready his defense prior to the date set for hearing . . . (2) how likely it is that the need for a continuance could have been met if the continuance had been granted . . .(3) the extent to which granting the continuance would have inconvenienced the court and the opposing party, including its witnesses . . . (4) the extent to which the appellant might have suffered harm as a result of the district court's denial." U.S. v. Rivera-Guerrero, 426 F.3d 1130, 1138-39 (9th Cir. 2005). The inconvenience to the Court is one of those factors so the Court addressed it. However, the Court specifically ...