United States District Court, D. Idaho
KATHLEEN HOWARTH, as personal representative of the Estate of Brian Howarth; and KATHLEEN HOWARTH, individually, Plaintiffs,
GORDON LUTHER, M.D., an Individual, Defendants.
MEMORANDUM DECISION AND ORDER RE: PLAINTIFFS'
MOTIONS IN LIMINE (DKT. 123)
Honorable Ronald E. Bush, Chief U.S. Magistrate Judge.
are those motions numbered 10 and 11 in Plaintiffs'
Motions in Limine (Dkt. 123). Having carefully reviewed the
record and otherwise being fully advised, the Court enters
the following Memorandum Decision and Order:
Motion No. 10: Extrinsic Statement of Plaintiffs' Expert,
Cummins, M.D., is one of the Plaintiffs' expert
witnesses. In this case, he will render opinions in support
of Plaintiffs' theory of liability. It is a role he has
often occupied, which by itself is not particularly unusual,
but in one deposition of many in which he has testified he
answered a rather standard question about the nature of the
past work he had done in this manner:
Q. So would it be fair to say that perhaps as much as 80 to
90 percent of the cases you've done in the last 20 years
have been on the plaintiff side?
A. I would say right off the bat, I'm a plaintiff whore
probably 80 percent. That's of cases that I review, and
that's just because that's where the action is at the
start. And the defense seems to not come to play until a lot
of stuff is sorted out.
Q. Did you use the word plaintiffs' whore?
A. I did.
Q. That's what I thought you said.
A. I mean, that seems to be the direction this line of
questioning always heads towards.
seek an order precluding Defendant from cross-examining Dr.
Cummins regarding his “plaintiffs' whore”
statement, arguing that Defendant can seek to pursue such a
line of bias through other examination tied more directly to
the nature of the work Dr. Cummins has done in other
litigation, that to allow use of this particular statement
would be cumulative, and that allowing use of the statement
would “destroy the weight” of his testimony.
Plaintiffs contend that allowing Defendant to introduce the
statement would simply serve to “derive an emotional
and inflammatory response from jurors, ” and that
jurors “do not have the background and experience to be
able to relate to the context in which the statement was
made.” Mem. ISO Plfs.' Mots. in Limine,
7-9 (Dkt. 123-1). Defendant replies by pointing out that
evidence of bias is relevant to his defense, and he argues
that this particular bias evidence is particularly probative
because the statement “goes directly to [Dr.
Cummins's] perception of his role as an expert.” As
to the jurors' ability to consider such matters,
Defendant says that such a statement is “precisely the
sort of vernacular that is more straightforward, more easily
understood, and more revealing to the layman.”
Def.'s Resp. to Plfs.' Mots. in Limine 3-4 (Dkt.
issue of whether an expert witness is less of an expert and
more of a tradesman of testimony (regardless of which side of
the case on which the expert may testify) is commonplace in
malpractice cases. It is similarly commonplace for a party to
seek to discredit the persuasiveness of an expert's
testimony by highlighting how often he or she is called upon
to opine on such matters, and how much he or she may be paid
for doing so. Hence, such questions are often posed, nearly
always parried by the witness, and - if some bruises upon
credibility potentially have landed - answers to the
questions are often rehabilitated in follow-up questions from
the party who has called the witness. None of that is new.
But, it is rare to have an expert witness describe himself in
as unvarnished a manner as Dr. Cummins did in the 2010
deposition at issue.
Dr. Cummins was caught in a moment of pique or umbrage about
having to answer questions on a regular basis about the
nature of the work he does, and the nature of the parties on
whose behalf he most frequently testified. (His answer may
have reflected a bit of testiness about his perceptions of
the inferences of such questions. That would be
understandable, if one believed that his or her opinions
would be the same regardless of who might be paying for the
time involved in drawing such opinions.) But, perhaps Dr.
Cummins was instead caught in a moment of unexpected candor,
as Defendant would contend, that mirrored how he, himself,
felt about the work he did.
2009, Dr. Cummins has testified in over 53 cases, an average
of nearly six cases a year. The fact of the No. of such cases
is a legitimate basis for an opposing party to explore the
topic of bias, and Dr. Cummins' own characterization of
his role is a proper part of that process if an opposing
party chooses to explore it. No. doubt the jury will consider
the statement in a larger whole, as in the Court's
experience the witness will seek to put his or her own
context to the statement and the party offering the witness
will seek to do the same. Likely, the statement is one which
Dr. Cummins on reflection wishes he had not made. But he did
so, and it is relevant. Made in his own words, the statement
is not so ...