United States District Court, D. Idaho
ORDER RE: DEFENDANT'S MOTION IN LIMINE
CANDY W. DALE, Magistrate Judge.
Before the Court is Defendant's motion in limine to exclude certain testimony by Plaintiff's treating physician, Dr. Alexander, and to exclude evidence of Medicare and GEHA contractual adjustments or write-downs as a component of damages. The Court conducted a hearing on the motion on July 21, 2015. (Dkt. 52). Although plaintiff did not timely file a responsive brief, his arguments contained within his trial brief, filed one day prior to the hearing, were reviewed and considered.
For the reasons set forth below, the Court will deny the motion. But Defendant's objection to the testimony of Dr. Alexander as set forth in his motion and during the hearing is preserved for trial, without the need to restate the objection.
1. Dr. Alexander's Opinions
Defendant objects to the introduction of Dr. Alexander's opinions that were not set forth in Plaintiff's initial disclosures. According to Plaintiff's initial disclosures, Dr. Alexander's expert opinion testimony was described as follows: he will testify to the "medical surgery and procedures he performed on plaintiff; he will use the x-rays, films and other medical records to illustrate to the jury how the fractures occurred; [and] the surgical procedures to repair it." Defendant indicates the initial disclosures were not supplemented prior to the taking of Dr. Alexander's trial deposition on November 13, 2014. But, after the deposition occurred, Plaintiff supplemented his Rule 26(a) disclosures to indicate that Dr. Alexander may testify about the degree of impact and force necessarily produced to cause the fractures Dr. Alexander observed on x-ray films and during surgery.
Dr. Alexander treated Plaintiff on March 26, 2013, the day after the accident occurred at the base of Bald Mountain in Ketchum, Idaho. Plaintiff had stopped skiing, and apparently was struck from behind by Defendant, who was riding a snowboard. Plaintiff was seen in the emergency room that same day. According to Dr. Alexander, Plaintiff suffered a concussion, injured his left shoulder, and suffered a displaced fracture of his clavicle that Dr. Alexander determined required surgical repair to avoid a nonunion or perforation of the skin. Dr. Alexander performed surgery to repair Plaintiff's clavicle on March 27, 2013.
During questioning of Dr. Alexander during his deposition, he opined about the "degree of impact and force produced" during the collision, and offered opinions about Plaintiff's alleged concussive symptoms. Defendant contends such testimony should be excluded because Plaintiff's initial disclosure did not include such testimony within its scope.
With regard to Plaintiff's concussion, Dr. Alexander testified that Plaintiff "was knocked out. And, in fact, he was hit pretty hard by the - indicating that the helmet had been broken during the crash." Dr. Alexander examined the CT scan records taken in the emergency room on March 25, 2013. Based upon the CT scan results and the emergency room reports, Dr. Alexander testified that Plaintiff "had a concussion, " and suffered "loss of consciousness." Dr. Alexander was asked to describe what happens to the brain, and he testified that, "that's not my specialty, but I'm - you know, in lay terms it means that your head hit so hard that it just shorts out the electrical impulses in the brain and consciousness does not allow the patient to communicate...."
Defendant objects to the above testimony on the ground that the opinion set forth above was not included in the scope of testimony identified by Plaintiff in his Rule 26(a) disclosure. However, Dr. Alexander is certainly qualified to testify as to what he observed upon reviewing Plaintiff's medical records. If Plaintiff suffered a concussion, and the medical records reflect that injury, Dr. Alexander as the treating physician may testify about Plaintiff's injuries. Notably, however, Plaintiff's supplemental disclosure does not include Dr. Alexander testifying about Plaintiff's concussion injury.
Turning to the second area of objectionable opinion testimony, Defendant objects to the line of questioning where Dr. Alexander describes the amount of force it takes to fracture and displace a bone. During questioning about the surgical repair he performed, Dr. Alexander offered his impromptu opinion that, "in this case it was a high-energy injury." Alexander Depo. at 28 (Dkt. 33-2 at 28.) Counsel followed up, asking Dr. Alexander to describe what that meant. Id. Dr. Alexander answered that, "there was lots of energy involved....a lot of speed, a lot of energy involved" in this accident. Dr. Alexander testified that he formed this opinion-that Plaintiff suffered a high-energy injury to his clavicle-based upon what he saw on the x-rays and the history he obtained from review of the records and discussion with the patient. Dr. Alexander also formed his opinion that it was a high-energy impact because of "what [he] found at surgery because the fragments of the-the larger fragment, this fragment right here, was totally devoid of soft-tissue attachments." Defendant objected on the basis of lack of foundation.
Defendant objects to the introduction of this testimony on the grounds that Dr. Alexander's opinions are based upon assumptions, and they ignore the respective size of the persons involved, whether there was a pre-existing injury to the shoulder, or other mitigating factors. Accordingly, Defendant argues the testimony does not meet the standards of Rule 702, and may be misleading to the jury. Defendant argues also that Dr. Alexander's opinions about the force of the impact causing the injury was not within the scope of the initial disclosures.
Rule 702 permits a witness to testify in the form of an opinion if the expert's specialized knowledge will help the trier of fact to understand the evidence; the testimony is based upon sufficient facts or data; the testimony is the product of reliable principles and methods; and the expert has reliably applied the principles and methods to the facts of the case. Rule 703 permits an expert to base an opinion on "facts or data in the case that the expert has personally observed." In this case, Dr. Alexander based his opinion about the degree of force or impact based upon his personal observation of the bone and bone fragments during the surgery he performed. Further, the degree of force is partly a matter of common sense, considering Plaintiff suffered a completely displaced fracture of his clavicle. Dr. ...