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Kurylo v. Rizzo

United States District Court, D. Maine

March 17, 2017

SUSAN KURYLO, Plaintiff
v.
SULLIVAN RIZZO, Defendant

          MEMORANDUM DECISION AND ORDER ON MOTION IN LIMINE [1]

          John H. Rich III United States Magistrate Judge.

In advance of jury trial, defendant Sullivan Rizzo moves in limine to exclude (i) all opinion evidence pertaining to the causation and permanency of injuries that plaintiff Susan Kurylo claims to have sustained as a result of his alleged use of excessive force in arresting her on July 29, 2013, including any opinions contained within medical records, because the plaintiff failed to serve a timely expert disclosure pursuant to Federal Rule of Civil Procedure 26(a)(2)(A), (ii) all evidence of medical treatment after the plaintiff's initial emergency room (“ER”) visit, including evidence of expenses related to that treatment, which he argues is irrelevant or more prejudicial than probative pursuant to Federal Rules of Evidence 401, 402, and/or 403, and (iii) evidence of any interactions between the parties after the plaintiff was transported from the scene of the incident, which he contends is also irrelevant or more prejudicial than probative pursuant to Rules 401, 402, and/or 403. See generally Defendant Sullivan Rizzo's Motion in Limine (“Motion”) (ECF No. 63); Complaint (ECF No. 3-3), attached to Affidavit of John J. Wall, III (ECF No. 3), ¶¶ 4-28, 36; see also Plaintiff's Objection to Defendant's Motion in Limine (“Objection”) (ECF No. 94).

         For the reasons explained herein, I grant the Motion in part, to the extent that I preclude any expert testimony on causation or permanency beyond the four corners of medical records produced during discovery, and otherwise deny it without prejudice to its reassertion at trial.

         I. Applicable Legal Standards

         “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.” Fed.R.Civ.P. 26(a)(2)(A). If the witness must provide a written report, unless otherwise stipulated or ordered by the court, the disclosure must be accompanied by a written report containing six categories of information. See Fed. R. Civ. P. 26(a)(2)(B). If the witness need not provide a written report, unless otherwise stipulated or ordered by the court, the disclosure must state “the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705” and “a summary of the facts and opinions to which the witness is expected to testify.” Fed.R.Civ.P. 26(a)(2)(C). “A party must make these disclosures at the times and in the sequence that the court orders.” Fed.R.Civ.P. 26(a)(2)(D). The parties' scheduling order required the plaintiff to designate all experts required to be disclosed pursuant to Rule 26(a)(2)(A), including treating physicians, by May 18, 2015. See ECF No. 6. The parties must supplement expert disclosures when required by Rule 26(e). See Fed. R. Civ. P. 26(a)(2)(E).

         “If a party fails to . . . identify a witness as required by Rule 26(a) . . ., the party is not allowed to use that . . . witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” See Fed. R. Civ. P. 37(c)(1). “The burden is on the party that has failed to comply with discovery deadlines to establish that his failure is harmless or substantially justified.” United States Bank Nat'l Ass'n v. James, Civil No. 09-84-P-JHR, 2010 WL 1416126, at *6 (D. Me. Apr. 5, 2010).

         “The baseline rule is that the required sanction in the ordinary case is mandatory preclusion.” Harriman v. Hancock County, 627 F.3d 22, 29 (1st Cir. 2010) (citations and internal punctuation omitted). However, the court retains discretion to impose other sanctions in lieu of, or in addition to, mandatory preclusion. See Fed. R. Civ. P. 37(c)(1); see also, e.g., Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72, 77-78 (1st Cir. 2009) (“Preclusion . . . is not a strictly mechanical exercise. And, in its discretion, the district court may choose a less severe sanction. Where a district court does opt in favor of preclusion, we review that decision with reference to a host of factors, including: (1) the history of the litigation; (2) the sanctioned party's need for the precluded evidence; (3) the sanctioned party's justification (or lack of one) for its late disclosure; (4) the opponent-party's ability to overcome the late disclosure's adverse effects - e.g., the surprise and prejudice associated with the late disclosure; and (5) the late disclosure's impact on the district court's docket.”) (citations and some internal quotation marks omitted).

         “Evidence is relevant if . . . it has any tendency to make a fact more or less probable than it would be without the evidence; and . . . the fact is of consequence in determining the action.” Fed.R.Evid. 401. “Irrelevant evidence is not admissible.” Fed.R.Evid. 402. “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403.

         II. Factual Background

         The plaintiff served initial disclosures dated April 8, 2015, in which she identified by name and address eight physicians and one physician's assistant who “may have discoverable information regarding the Plaintiff's injuries” and “medical treatment” or “medical care.” Plaintiff's Initial Disclosures Under FRCP 26(a)(1) (ECF No. 94-1) ¶¶ 5, 9-16. She provided no formal expert designation by her deadline of May 18, 2015, or at any time thereafter. See ECF No. 6; Objection at 4.

         On June 22, 2015, the defendant's deadline to designate experts, see ECF No. 6, his counsel emailed the plaintiff's counsel, stating:

I wanted to let you know - by way of an expert designation - that we are reserving the right to call any health care professional for whom we have records in this case. I anticipate that those persons will testify consistent with their records.
If you require a more formal designation, let me know.

         ECF No. 94-2 at Page ID # 681. On the same date, the plaintiff's counsel responded: “I'll designate our experts to you as well, which will only be the treating doctors already provided in the initial disclosures.” Id. at Page ID # 683.

         In answers to interrogatories dated July 27, 2015, the plaintiff listed one physician's assistant and seven physicians in response to Interrogatory No. 23, which asked her to “identify all persons who may be called to present expert testimony in support of the claims in your Complaint, including a disclosure of all information required by Fed.R.Civ.P. 26(a)(2).” Defendant's Interrogatories Propounded Upon Plaintiff, Exh. 2 (ECF No. 63-2) to Motion, at Page ID ## 413-15. She provided a name and address for each of those individuals, stating that each would “offer testimony regarding his [or her] treatment of the Plaintiff as documented in the medical records.” Id.

         On January 5, 2016, the defendant's counsel emailed the plaintiff's counsel, stating, in relevant part:

[F]ollowing [the plaintiff's] deposition I tried to locate an expert disclosure from you but I do not see one in my file. Did you do one? If so, I don't think we ever got it. [The plaintiff's] testimony yesterday about back issues was concerning, as I did not understand that she was ...

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