United States District Court, D. Maine
MEMORANDUM DECISION AND ORDER ON MOTION
IN LIMINE 
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).
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.
Applicable Legal Standards
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).
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).
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
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.
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.
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
If you require a more formal designation, let me know.
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.
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.”
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