United States District Court, M.D. Alabama, Dothan Division
CYNTHIA RUSHING MURPHY, Personal Representative of the Estate of Jerry Lenson Murphy, Deceased, Plaintiff,
ROBERT C. PRECISE, D.M.D., Defendant.
MEMORANDUM OPINION AND ORDER
LOVELACE BLACKBURN, UNITED STATES DISTRICT JUDGE.
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:
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
(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
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.
MEDICAL TREATMENT RECORDS
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.)
the parties Objections to these exhibits, (plaintiff Exhibits
1, 3-8, and 11-15), and defendant's Exhibits 1, 33,
and 36), are OVERRULED.
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
plaintiff objects to Mr. Murphy's medical treatment
records to which there is no stipulation, see
Exhibits 38, 39, 41, 42, and 45,  on the grounds that these
records were not produced or disclosed; that the Exhibits
are incomplete portions of Mr. Murphy's treatment
records, and/or that the Exhibits the documents are
immaterial or irrelevant.
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,  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
PLAINTIFF'S OBJECTIONS TO DEFENDANT'S
EXHIBITS BLOOD PRESSURE DEVICE
lists the following Exhibits:
21. Omron Automatic Wrist Blood Pressure Monitor
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.
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 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
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.
SCHEDULE AND TREATMENT RECORDS OF OPERATORY 15
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.
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.
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.
court SUSTAINS plaintiff's objection to
the expert reports and attachments, Exhibits 66-68.
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
(Doc. 46 at 3-4.) These exhibits are not listed with the
specificity required in Fed.R.Civ.P. 26(a)(3)(A)(iii).
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).
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