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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.

         This case is presently pending before the court on plaintiff's Motion in Limine, (doc. 59), [1] and defendant's Motion in Limine and Memorandum of Law, (doc. 60). For the reasons set forth herein, the court GRANTS IN PART and DENIES IN PART the parties' Motions in Limine, (docs. 59 and 60).

         TABLE OF CONTENTS

         I. MOTION IN LIMINE STANDARD ............................................ 3

         II. DISCUSSION. . ........................................................... 3

         A. EXPERT TESTIMONY ............................................... 3

         1. Failure to Disclose.. ............................................ 3

         a. Dr. Voss ................................................ 7

         b. Dr. Rothrock and Dr. Garcia - Opinions Regarding Medical Clearance.. ......................................... 10

         2. Expert Testimony Regarding the Standard of Care. . ................. 12

         3. Use of Epinephrine. . .......................................... 15

         4. Cause of Death.. .............................................. 17

         5. Opinion Testimony Concerning Medical Clearance. . ................ 17

         6. Dr. Wendy Wright ............................................. 18

         a. Misrepresentation.. ...................................... 18

         b. Husband's Name. . ...................................... 19

         7. Dr. Rosenstiel.. ............................................... 20

         a. Divorces ............................................... 20

         b. Amount Paid to Teach Course. . ........................... 20

         8. Amount of Money Any Expert Makes in Their Professional Practice........................................... 21

         9. Expert as a Party in Other Cases .................................. 22

         10. Medical Literature ............................................ 23

         11. Conspiracy of Silence ......................................... 23

         12. Defendant's Recommendation of Expert Witness.. ................. 24

         13. Plaintiff's Experts Residing Outside Alabama.. .................... 24

         B. CHARACTER EVIDENCE.. ......................................... 25

         1. Prior Negligence, Bad Acts, or Omissions by the Defendant. . ......... 25

         2. Evidence of or References to the Defendant's Good Character ......... 27

         3. Admission to Dental School ..................................... 30

         C. CRIMINAL AND CIVIL STANDARDS ................................. 30

         1. Burden of Proof.. ............................................. 30

         2. Mischaracterizing Defendant's Duty... ............................. 32

         D. FINANCIAL CONDITION OR EFFECT OF VERDICT. . ................. 33

         1. Effect of the Verdict on Defendant.. .............................. 33

         3. Financial Status of Either Party. . ................................ 35

         4. Cattle Farmers ................................................ 36

         5. Malpractice Insurance .......................................... 36

         6. Billing Practices and Financial Operation of Dixieland Dental. . ....... 37

         E. SUBSEQUENT REMEDIAL MEASURES. . ............................ 37

         1. Lowered Blood Pressure Threshold ............................... 37

         2. Dixieland Dental's Failure to Develop Written Policies.. ............. 38

         F. MR. MURPHY'S MEDICAL RECORD.. ............................... 39

         1. Altering the Medical Record ..................................... 39

         2. “Incredibly Amazing” ........................................... 40

         H. LITIGATION.. ..................................................... 42

         1. Settlement Discussions ......................................... 42

         2. “Malpractice Lawyers”. . ....................................... 42

         3. “Jackpot”. . .................................................. 42

         I. OBJECTIONS TO EXHIBITS.. ........................................ 43

         J. DYING IN THE DENTAL CHAIR.. .................................... 43

         CONCLUSION.. ............................................................ 43

         I. MOTION IN LIMINE STANDARD

         In general, the term “in limine” “refer[s] to any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered.” Luce v. United States, 469 U.S. 38, 40 n.2 (1984). A ruling on evidence in limine “aid[s] the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial. [It] also may save the parties time, effort and cost in preparing and presenting their cases.” Bowden ex rel. Bowden v. Wal-Mart Stores, Inc., No. CIV. A. 99-D-880-E, 2001 WL 617521, *1 (M.D. Ala. Feb. 20, 2001)(internal citations and quotations omitted). Nevertheless, “it is the better practice to wait until trial to rule on objections when admissibility substantially depends upon what facts may be developed there. Thus, the motion in limine is an effective approach only if the evidence at issue is clearly inadmissible.” Id. (citations omitted).

         II. DISCUSSION

         A. EXPERT TESTIMONY

         1 . Failure to Disclose

         The parties each seek an Order excluding expert testimony based on the other party's failure to comply with the disclosure requirements of Fed.R.Civ.P. 26(a)(2). (Doc. 59 ¶4; doc. 60 ¶ 30.) As amended in 2010, Rule 26(a)(2) states, in pertinent part:

(2) Disclosure of Expert Testimony.
(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.[2]
(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report - prepared and signed by the witness - if the witness is one retained or specially employed to provide expert testimony in the case . . . . The report must contain:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.
(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state:
(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and
(ii) a summary of the facts and opinions to which the witness is expected to testify.

Fed. R. Civ. P. 26(a)(2)(A)-(C) (footnote added). “If a party fails to provide information or identify a witness as required by Rule 26(a) . . ., the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”[3] Fed.R.Civ.P. 37(c)(1). “Substantially justified means that reasonable people could differ as to the appropriateness of the contested action.” Knight v. Miami-Dade Cty., 856 F.3d 795, 812 (11th Cir. 2017)(quoting Maddow v. Procter & Gamble Co., 107 F.3d 846, 853 (11th Cir. 1997)). A “harmless” violation “involves an honest mistake on the part of a party coupled with sufficient knowl edge o n the part of the other party.” Burney v. Rheem Mfg., 196 F.R.D. 659, 692 (M.D. Ala. 2000)(quoting Vance v. United States, 182 F.3d 920, 1999 WL 455435, *5 (6th Cir. June 25, 1999)(Unpublished)). “The burden of establishing that a failure to disclose was substantially justified or harmless rests on the nondisclosing party.” Mitchell v. Ford Motor Co., 318 Fed.Appx. 821, 824 (11th Cir. 2009)(quoting Leathers v. Pfizer, Inc., 233 F.R.D. 687, 697 (N.D.Ga. 2006)). “It is within a court's discretion to preclude a party from relying on an expert's report to overcome summary judgment and preclude said expert from testifying at trial when the party fails to comply with Rule 26(a)(2) or carry its burden under Rule 37(c)(1).” Mitchell v. City of Mobile, Civil Action No. 15-0360-CG-C, 2017 WL 1740364, *2 (S.D. Ala. May 3, 2017) (citing Reese v. Herbert, 527 F.3d 1253, 1266 (11th Cir. 2008)).

         a. Dr. Voss

         Plaintiff asks the court to preclude “Any evidence from experts who were not identified as testifying experts and whose testimony was not disclosed in accordance with Fed.R.Civ.P. 26 and/or not designated by the time set forth in the Court's Scheduling Order as amended, specifically Dr. Nicholas F. Voss.” (Doc. 59 ¶ 4 .) In response, defendant contends:

The Court should permit Dr. Nicholas Voss to testify regarding his care and treatment of the decedent, including his conclusions concerning the cause of Jerry Murphy's brain stem hemorrhage. Dr. Voss is a Dothan-based neurosurgeon who treated Mr. Murphy from March 5-8, 2014. Dr. Voss became Murphy's attending/treating physician within two hours of the events at issue in this litigation, and he directed and controlled Murphy's neurological care until Murphy's death on March 8, 2014. Dr. Voss is the physician-of- record who executed Murphy's death certificate, including the written attribution of a medical cause of death.
In his expert witness disclosure (filed on December 16, 2016), Dr. Precise identified Dr. Voss as a non-retained witness from whom he may elicit expert testimony at trial. Specifically, Dr. Precise's expert disclosure provided as follows:
Nicholas F. Voss, M.D.

. . .

Defendant may elicit expert opinion(s) from Dr. Nicholas Voss. Dr. Voss has not been specially retained or employed as an expert in this case but treated Jerry L. Murphy March 5 -8, 2014. . . . It is expected that Dr. Voss will be qualified as a licensed medical doctor and that he will testify concerning his treatment of Jerry L. Murphy.

It has long been the law in this circuit and others that a party need not provide a detailed report of the opinions of non-retained treating physicians regarding the cause of a plaintiff's injuries when the physician's opinions are based upon their own care and treatment. . . .

(Doc. 68 at 2-3 [internal citations omitted].)

         Neither party has provided Dr. Voss's deposition testimony or otherwise informed the court of the details of his anticipated testimony regarding the cause of Mr. Murphy's brain hemorrhage. Nevertheless, the court finds that Dr. Voss's testimony regarding the cause of Mr. Murphy's hemorrhage will be expert opinion testimony as defined by Fed.R.Evid. 702. The record is clear that Dr. Voss was not present when Mr. Murphy suffered his hemorrhage; therefore, his testimony as to the cause of the hemorrhage is not based on his first-hand observations. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993)(“Unlike an ordinary witness, see Rule 701, an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation. See Rules 702 and 703. Presumably, this relaxation of the usual requirement of firsthand knowledge . . . is premised on an assumption that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline.”). Moreover, defendant does not contend that the determination of the cause of the hemorrhage was necessarily part of Dr. Voss's treatment and care of Mr. Murphy. See Wilson v. Taser Int'l, Inc., 303 Fed.Appx. 708, 712-13 (11th Cir. 2008)(holding a treating physician's “opinion regarding the cause of [plaintiff's] injuries was not needed to explain his decision making process, nor did it pertain to [plaintiff's] treatment;” therefore, “[t]estimony regarding his diagnosis of the injury itself . . . would be permissible as lay testimony without the Daubert analysis, but his statement about the cause of the injury was an hypothesis” and expert opinion testimony); see also Trinidad v. Moore, No. 2:15CV323-WHA, 2016 WL 5341777, at *4 (M.D. Ala. Sept. 23, 2016)(“[W]hen a treating physician offers an opinion as to causation, unless that opinion was formed and given as part of treatment, that testimony is expert testimony by the treating physician and triggers the requirements of Rule 26(a)(2)(C).”). The court finds that Dr. Voss's testimony regarding the cause of Mr. Murphy's pontine hemorrhage is expert opinion testimony under Fed.R.Evid. 702.

         Because Dr. Voss is not a retained expert and because his causation testimony is expert testimony, defendant was required to disclose “(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify.” Fed.R.Civ.P. 26(a)(2)(C). As set forth above, defendant's disclosure regarding Dr. Voss states, “Defendant may elicit expert opinion(s) from Dr. Nicholas Voss. Dr. Voss has not been specially retained or employed as an expert in this case but treated Jerry L. Murphy March 5-8, 2014. . . . It is expected that Dr. Voss will be qualified as a licensed medical doctor and that he will testify concerning his treatment of Jerry L. Murphy.” (Doc. 68-3 at 2 [emphasis added].) This disclosure does not mention that Dr. Voss will present expert opinion testimony as to the cause of Mr. Murphy's pontine hemorrhage as required by Fed.R.Civ.P. 26(a)(2)(C).

         “If a party fails to provide information or identify a witness as required by Rule 26(a) . . ., the party is not allowed to use that information or witness to supply evidence . . . at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). Defendant has not shown that the failure to disclose Dr. Voss's expert testimony regarding causation of the brain hemorrhage was substantially justified or harmless.

         Therefore, plaintiff's Motion in Limine, seeking to prohibit Dr. Voss from testifying as to the cause of Mr. Murphy's pontine hemorrhage, (doc. 59 ¶ 4), is GRANTED. Dr. Voss is prohibited from offering any testimony regarding his opinion as to the cause of Mr. Murphy's pontine hemorrhage.

         b. Dr. Rothrock and Dr. Garcia - Opinions Regarding Medical Clearance

         Defendant asks the court to prohibit John F. Rothrock, M.D., and Ruben R. Garcia. M.D., from testifying as to their “opinion[s] . . . concerning medical clearance” because these opinions were not “included in the Plaintiff's Rule 26 disclosures.” (Doc. 60 ¶ 30.) Dr. Rothrock's expert report does not include any opinion concerning medical clearance. (See generally doc. 21-3.) However, Dr. Garcia's expert report states that he intends to testify as follows regarding medical clearance:

Opinions
. . .
1. Because of Mr. Murphy's health status on March 5, 2014, in particular his multiple comorbidities, high risk of recurrent stroke, and pre-procedure blood pressure (reportedly 174/87) he was not physically suited to undergo a procedure involving multiple extractions by a dentist.
2. Because of Mr. Murphy's health status on March 5, 2014, in particular his multiple comorbidities, high risk of recurrent stroke, and pre-procedure blood pressure he was not physically ...

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