United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief U.S. District Court Judge
Court has before it defendants' motion in limine, and
plaintiff's motions to (1) extend time for discovery, (2)
reinstate Janet Murakami as a defendant, and (3) allow a late
filing of a brief. The motions are fully briefed and at
issue. For the reasons explained below, the Court will grant
the defendant's motion and deny the plaintiffs'
Motion in Limine
Rice recently gave notice that he intends to call several
expert witnesses at the trial scheduled for April 9, 2018.
The defendants immediately responded with a motion in limine
to exclude testimony from any experts for Rice on the ground
that the deadline for disclosure expired years ago and Rice
never disclosed any experts by that deadline.
filed this lawsuit in 2013 alleging that the police used
excessive force in arresting him for a traffic violation in
2011. The original Case Management Order set a deadline of
September 15, 2014, for the plaintiff to file his expert
reports. See Case Management Order (Dkt. No. 35).
That deadline expired without Rice filing any expert reports.
About two months after the expert deadline expired, the Court
entered an Order on December 5, 2014, stating that because
several motions for summary judgment were pending, the
“discovery deadline shall be extended to a date to be
determined . . . .” See Order (Dkt. No. 83).
The Order refused to extend the deadline for expert
disclosure, stating that “any party seeking to extend
the expert disclosure deadline shall file a motion seeking
that relief.” Id. Rice never filed a motion
seeking to extend the expert disclosure deadline.
an interlocutory appeal on qualified immunity issues to the
Ninth Circuit, the case was remanded here, and trial is
scheduled for April 9, 2018. In mid-December 2017, Rice
disclosed that he intended to call several experts to testify
at trial. On January 2, 2018, defendants filed this motion in
limine to exclude those experts because Rice's disclosure
comes too late. Rice did not file any response until March
15, 2018, filing at the same time a motion to allow a late
filing. Rice claims his response brief was late because he
was lulled into believing he had more time. The Court's
deadlines were clear, however, and Rice has failed to show
the good cause or excusable neglect necessary to excuse a
late filing. While the Court will deny his motion to allow a
late filing, the Court will proceed to fully address his
arguments in the interest of a full resolution of these
argues that a Stipulation between the parties, approved by
the Court, extended the expert disclosure deadline to March
23, 2018. See Stipulation (Dkt. No. 146) &
Order (Dkt. No. 147). That is incorrect. The
Stipulation only set that deadline for “Exhibit Lists,
Witness Lists, Proposed Voir Dire, Proposed Jury
Instructions, and Trial Briefs.” Id. The
Stipulation goes on to state that “no other deadlines
are being extended or reset.” Id. The
Stipulation's list of deadlines does not include the
expert disclosures required by Rule 26, and so by its express
terms, that deadline was not “extended or reset.”
Rice's expert disclosures were due in 2014. He was given
an opportunity - back in 2014 - to file a motion to extend
that deadline but never did so. Now on the eve of trial, it
is far too late to disclose experts for the first time.
has identified as potential witnesses several treating
physicians. When a treating physician confines his or her
testimony to a factual account of the treatment, the
physician is not testifying as an expert, and no expert
report need be filed. See Advisory Committee Notes to
1993 Amendments to Rule 26. In so testifying, the
treating physician can relate to what occurred during
treatment, including those opinions which he or she actually
formed during the course of treatment. With a proper
foundation, this may include opinions about causation and
long-term prognosis, if those opinions were necessary to and
actually formed during Rice's treatment. However, those
same treating physicians (or any other witness for that
matter) may not testify about any opinions not formed in the
course of treatment - including causation or prognosis --
because that would be opinion testimony “based on
scientific technical or other specialized knowledge.”
See Rules 701(c) & 702.
conclusion, the Court will grant the motion in limine and
exclude any expert testimony offered on behalf of Rice.
However, the Court's ruling will not prevent Rice from
calling treating physicians as percipient witnesses to
testify as to the course of treatment provided, including
opinions actually formed by the physician as part of
Rice's medical treatment.
to Extend Time for Discovery
seeks more time to conduct discovery. He claims that he has
just discovered that he is suffering from Post-Traumatic
Stress Syndrome (PTSD), and wants to “add Dr. James
Davidson PhD as an expert witness to present evidence and
testimony regarding [PTSD].” See Motion (Dkt. No.
172) at p. 1. Rice's counsel explains that he was
retained about three months ago, and “[i]t has taken
much of that time to discern that [Rice] actually suffers
from PTSD, ” and that it “has taken more time to
locate a credible expert on the subject who has the time to
conduct an evaluation of [Rice].” Id.
Court explained above, the expert disclosure deadline expired
years ago. This motion - filed March 19, 2018 - comes just
three weeks before trial in a case that was filed more than
four years ago. The motion is therefore untimely and highly