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Murphy v. Precise

United States District Court, M.D. Alabama, Dothan Division

December 1, 2017

CYNTHIA RUSHING MURPHY, Personal Representative of the Estate of Jerry Lenson Murphy, Deceased, Plaintiff,
v.
ROBERT C. PRECISE, D.M.D., Defendant.

          MEMORANDUM OPINION AND ORDER

          SHARON LOVELACE BLACKBURN, UNITED STATES DISTRICT JUDGE.

         The case is currently pending before the court on plaintiff's Objections to defendant's Witness and Exhibit Lists, (docs. 51, 52), defendant's Objections to plaintiff's Exhibit List, (doc. 49), and defendant's Objection to plaintiff's designation of deposition excerpts, (doc. 75). The court ORDERS as follows:

         Rule 26(a)(3)(A) requires:

         In addition to the disclosures required by Rule 26(a)(1) and (2), a party must provide to the other parties and promptly file the following information about the evidence that it may present at trial other than solely for impeachment:

(i) the name and, if not previously provided, the address and telephone number of each witness - separately identifying those the party expects to present and those it may call if the need arises;
(ii) the designation of those witnesses whose testimony the party expects to present by deposition and, if not taken stenographically, a transcript of the pertinent parts of the deposition; and
(iii) an identification of each document or other exhibit, including summaries of other evidence - separately identifying those items the party expects to offer and those it may offer if the need arises.

Fed. R. Civ. P. 26(a)(3)(A). Subsection (B) requires the parties to file the following objections to the subsection (A) disclosures: “any objections to the use under Rule 32(a) of a deposition designated by another party under Rule 26(a)(3)(A)(ii); and any objection, together with the grounds for it, that may be made to the admissibility of materials identified under Rule 26(a)(3)(A)(iii).” Id. (B). “An objection not so made - except for one under Federal Rule of Evidence 402 or 403 - is waived unless excused by the court for good cause.” Id. However, “The listing of a potential objection does not constitute the making of that objection or require the court to rule on the objection; rather, it preserves the right of the party to make the objection when and as appropriate during trial. The court may, however, elect to treat the listing as a motion “in limine” and rule upon the objections in advance of trial to the extent appropriate.” Fed.R.Civ.P. 26(a)(3) Advisory Committee Notes, 1993 Amendment, 146 F.R.D. 401, 637 (1993); see, e.g., Med. Ctr. of Cent. Georgia, Inc. v. Denon Digital Employee Benefits Plan, No. 5:03CV32 (DF), 2005 WL 1073624, *1 n.1 (M.D. Ga. May 4, 2005)(“Denon's objections to the pre-trial disclosures are not brought in a motion, but instead are simply ‘disclosed' and filed with the Court as contemplated by Rule 26(a)(3) of the Federal Rules of Civil Procedure. The Court, however, elects to treat the listed objections as a motion ‘in limine' and, to the extent possible, rule upon the objections in advance of trial. See Fed. R. Civ. Pro. 26 advisory committee's note.”).

         To the extent the admissibility of a document, deposition excerpt, and/or witness's testimony is clear, the court will treat the Objections as a Motion in Limine. However, to the extent the admissibility of a document, deposition excerpt, and/or witness's testimony turns on the context in which it may be offered, the court will reserve ruling.

         I. MEDICAL TREATMENT RECORDS

         Pursuant to the court's Order on Pretrial Hearing, (doc. 67), the parties have -

stipulate[d] to the admissibility of and will offer as agreed-upon Exhibits copies of treatment records of the Plaintiff's decedent's from (1) Dixieland Dental; (2) Flowers Hospital for the admission on March 5, 2014; (3) Southeast Alabama Medical Center for the admission on March 5, 2014 through March 8, 2014; (4) non-contrasted brain CT scan performed at Flowers Hospital on March 5, 2014; (5) medical treatment records from Dr. Ruben Garcia; (6) Run Report from Dothan Ambulance Service transporting Jerry L. Murphy from Dixieland Dental to Flowers Hospital on March 5, 2014; (7) Run Report from Dothan Ambulance Service transporting Jerry L. Murphy from Flowers Hospital to Southeast Alabama Medical Center on March 5, 2014; (8) medical treatment records from Dr. Joseph Shalit; (9) medical treatment records from Dr. Marcello Branco; (10) medical treatment records from Dr. David A. Herf; (11) medical treatment records from Dr. Clyde Pence; and (12) medical treatment records from North Okaloosa Medical Center.

(Doc. 67 at 10.)

         Therefore, the parties Objections to these exhibits, (plaintiff Exhibits 1, 3-8, and 11-15), and defendant's Exhibits 1, 33, [1] and 36), are OVERRULED.

         Defendant contends that he will not seek to admit individual documents from Mr. Murphy's treatment records as separate exhibits. (Doc. 73 at 1.) Therefore, plaintiff's Objections to defendant's Exhibits 5-12, 14-17, and 37 are SUSTAINED. Defendant shall not offer any individual document or other part of Mr. Mu r phy's medical treatment records as an exhibit separate from the compete record of medical treatment as stipulated in the Pretrial Order.

         Also, plaintiff objects to Mr. Murphy's medical treatment records to which there is no stipulation, see Exhibits 38, 39, 41, 42, and 45, [2] on the grounds that these records were not produced or disclosed;[3] that the Exhibits are incomplete portions of Mr. Murphy's treatment records, and/or that the Exhibits the documents are immaterial or irrelevant.

         Defendant contends that he does not intend to offer Exhibit 45, documents received from Aetna, an insurance carrier. Plaintiff's Objection to Exhibit 45 is SUSTAINED. As to whether the remaining exhibits, assuming defendant can establish the documents were disclosed, are due to be excluded as an incomplete record of Mr. Murphy's treatment and/or because they are immaterial or irrelevant, [4] the court declines to rule on these grounds prior to trial. Plaintiff may raise her objections to these Exhibits if and when defendant offers the Exhibits at trial.

         II. PLAINTIFF'S OBJECTIONS TO DEFENDANT'S EXHIBITS BLOOD PRESSURE DEVICE

         Defendant lists the following Exhibits:

21. Omron Automatic Wrist Blood Pressure Monitor (DLD-15)(Model HEM-629);
22. Omron Automatic Wrist Blood Pressure Monitor, Instruction Manual (Model HEM-629);
23. Photographs of Blood Pressure (DLD-15) Monitor Displays.

(Doc. 46 at 2.) Plaintiff objects to Exhibits 22 and 23 on the ground that the documents were not produced and/or disclosed and that the documents may relate to medical records of patients other than Mr. Murphy.

         The record does no t indicate that the parties have taken issue with the accuracy of the blood-pressure readings taken from Mr. Murphy and/or the operation of the device used to measure his blood pressure. Therefore, the relevancy[5] of the instruction manual is not apparent. Also, the photograph of the display monitor of the device showing any reading except that of Mr. Murphy's blood pressure o n the day of the incident is not apparently relevant. The parties have listed the actual blood pressure device as an Exhibit without objection.

         Nevertheless, assuming defendant ca establish that these documents were disclosed, the final determination of the relevancy of these Exhibits will await trial. The court finds that whether the instruction manual for and the photographs of the blood pressure device are material, relevant, or unduly prejudicial or confusing must await trial. Therefore, the court will reserve ruling on the relevancy of defendant's Exhibits 22 and 23 as a Motion in Limine.

         APPOINTMENT SCHEDULE AND TREATMENT RECORDS OF OPERATORY 15

         Plaintiff objects to defendant's Exhibits 24, “Patient appointment schedule/registry (Dixieland Dental), Operatory 15, March 5-6 2014, ” and Exhibit 25, Treatment Records (redacted) regarding Operatory 15 treatment/procedures, March 2014.” (Doc. 46 at 2; doc. 51 at 2-3.) From the description of these exhibits, it appears that this information about Mr. Murphy would be included in his treatment records and/or cumulative of other evidence, and also that information regarding other patients would be included. The court finds that whether these Exhibits - the schedule of the procedure room and treatment records from the treatment room, including dates other than March 5, 2014 and information about patients other than Mr. Murphy - are material, relevant, or unduly prejudicial, cumulative, and/or confusing must await trial. Therefore, the court will reserve ruling on plaintiff's Objections to defendant's Exhibits 24 and 25 as a Motion in Limine.

         RULE 26 DISCLOSURES

         Plaintiff objects to defendant's Exhibit 49, plaintiff's Initial Disclosures, and Exhibit 50, defendant's Initial Disclosure. In response, defendant states that he “does not intend to offer either party's initial disclosures for admission into evidence unless Plaintiff, in eliciting testimony or through argument, takes a position that would arguably warrant the introduction of such evidence.” Plaintiff's Objections to Exhibits 49 and 50 are SUSTAINED. Defendant may use the Initial Disclosures as relevant to any argument made to the court and outside the presence of the jury, but the Initial Disclosures are not admissible as evidence before the jury.

         EXPERT REPORTS

         Plaintiff objects to Exhibits 66-68, which are the Expert Reports and attachments of defendant's experts: Dr. Michael G. Koslin, Dr. Guy Rosenstiel, and Dr. Wendy l. Wright. In response, defendant contends that he does not intend to offer the Expert Reports, but he does intend to offer the attached CV. He has separately listed the CV for each of his experts, (see Exhibits 54-56), to which plaintiff has not objected.

         The court SUSTAINS plaintiff's objection to the expert reports and attachments, Exhibits 66-68.

         CATEGORICAL EXHIBITS

         Defendant lists a number of Exhibits, Exhibits 53, 58-61, and 72-73, which are described in categories. These Exhibits are:

53. All records (including x-rays, radiology studies, and other diagnostic studies) from each and every other hospital, clinic, institution, physician, or other health care provider which has treated, cared for, or provided health care to Jerry Murphy at any time whatsoever;
. . .
58. All documents which were requested in Defendant's Requests for Production of Documents to Plaintiff;
59. All documents, including but not limited to interrogatory and request for production responses, produced by any party in response to disco very requests or deposition notices issued in this matter;
60. All documents which have been subpoenaed by Defendant;
61. All documents which were (a) requested to be produced at, (b) produced at, (c) mentioned in, or (d) made exhibits to all depositions taken in this case;
. . .
72. Any exhibit which is obtained, discovered, or received between now and the time of the trial; [and]
73. Any rebuttal or impeachment exhibit, document, item, or thing.

(Doc. 46 at 3-4.) These exhibits are not listed with the specificity required in Fed.R.Civ.P. 26(a)(3)(A)(iii).

         Rule 26(a)(3)(A)(iii) requires that the pretrial disclosures include “an identification of each document or other exhibit, including summaries of other evidence - separately identifying those items the party expects to offer and those it may offer if the need arises.” Fed. R. Civ. Pro. 26(a)(3)(A)(iii). “[C]omposite exhibits and catch all phrases” do not satisfy the requirements of Rule 26(a)(3)(A)(iii). Blanco v. Capform, Inc., No. 11-23508-CIV, 2013 WL 12061862, *1 (S.D. Fla. Jan. 9, 2013). “[A]n exhaustive description of each document is not necessary; however, such description must be sufficient to put [the opposing party] on notice of exactly which documents [she] can expect to see at trial.” Med. Ctr. of Cent. Georgia, Inc. v. Denon Digital Employee Benefits Plan, No. 5:03CV32 (DF), 2005 WL 1073624, *8 (M.D. Ga. May 4, 2005).

         The court SUSTAINS plaintiff's objections to defendant's Exhibits 53, 58-61, and 72-73. Defendant shall not offer any document which he listed only in one of ...


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