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Gray v. United States

March 12, 2007

CHARLES G. GRAY, CAPT., MC, USN (RET.), PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge

ORDER: 1) DENYING PLAINTIFF'S MOTIONS IN LIMINE [Doc. No. 24]; and 2) DENYING DEFENDANT'S MOTIONS IN LIMINE [Doc. No. 25]

Plaintiff has filed a Motion in Limine to limit the testimony and evidence of Defendant's expert economist, Laura Fuchs Dolan. [Doc. No. 24]. Defendant has opposed this Motion. [Doc. No. 29.] In addition, Defendant has filed a Motion in Limine to exclude the testimony of Plaintiff's vocational rehabilitation expert, Carol Hyland, and the testimony of Plaintiff's expert economist, Robert Johnson. [Doc. No. 25.] Plaintiff has opposed this Motion. [Doc. No. 30.] A Motion in Limine Hearing was held on Monday, February 26, 2007, at 9:00 a.m.

Background

Plaintiff Charles G. Gray brings this action against Defendant United States of America under the Federal Tort Claims Act arising out of sinus surgery on March 31, 2003. (See Prop. Pretrial Order at 1.) Plaintiff alleges that surgery was performed on his right eye without the required informed consent, the procedure was performed in a negligent manner, the procedure was performed without an adequate trial of other less invasive methods, and that the post operative care was below the standard of care. (See id.) As a result of these alleged deviations from the standard of care and the alleged negligence of the providers, Plaintiff alleges that he suffered complications resulting in both economic and non-economic damages. (See id. at 2.)

Discussion

Plaintiff's Motions in Limine

A. Ms. Dolan's Initial Rebuttal Report

Plaintiff has filed a Motion in Limine to limit the opinion testimony of Defendant's expert economist, Laura Fuchs Dolan, on the ground that Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure "limits opinion testimony of rebuttal experts to evidence intended to solely contradict or rebut evidence on the same subject matter identified by another party." (See Pl.'s Mot. in Limine at 1-2.) On July 21, 2006, Magistrate Judge Major issued an order requiring the Parties to exchange expert disclosures on August 28, 2006, and exchange rebuttal disclosures on September 11, 2006. [Doc. No. 10.] On September 11, 2006, Defendant submitted a rebuttal report by Ms. Dolan.

Plaintiff, however, argues that Ms. Dolan's report is not a rebuttal report because she "based her opinions not on any information from Plaintiff's expert economist, but on the fact that Dr. Gray had not been employed for 3 years following his retirement, that he was receiving a U.S. Navy pension, and [on] the opinions of Defendant's vocational rehabilitation expert."

Pl.'s Mot. in Limine at 4.) Defendant argues that Ms. Dolan's report does rebut Plaintiff's expert economist's, Robert Johnson, report, as shown by the different methodology and assumptions used in her report and by the differences in the final numbers arrived at by the experts. (See Def.'s Opp'n to Pl.'s Mot. in Limine at 2.)

Federal Rule of Civil Procedure 26(a)(2)(C) provides that "if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under paragraph (2)(B), [such evidence shall be disclosed] within 30 days after the disclosure made by the other party." Fed. R. Civ. P. 26(a)(2)(C). Accordingly, if Ms. Dolan's report contradicts or rebuts evidence on the same subject matter as that of Dr. Johnson's report, it will meet the requirements of Rule 26(a)(2)(C). In her initial rebuttal report, Ms. Dolan indicates that she has reviewed the materials and information listed in Exhibit C of her report, which includes Plaintiff's expert economist's, Robert Johnson, report. (See Pl.'s Mot. in Limine, Ex. B at 2.) Additionally, the subject matter of Ms. Dolan's report is the total economic loss sustained by Dr. Gray. (See generally id.)

Pursuant to the Court's instructions at the February 26, 2007, Hearing, Plaintiff has filed a copy of both Dr. Johnson's initial and supplement reports. (See id., Ex. D.) The subject matter of Dr. Johnson's initial report is the present value of Dr. Gray's economic damages based on his lost earning capacity. (See id.) Although Plaintiff correctly notes that Ms. Dolan does not specifically express an opinion as to or cite to Dr. Johnson's report in her initial rebuttal report, the subject matter of her report does contradict that of Dr. Johnson, and thus, is appropriate for rebuttal evidence. Accordingly, finding that the subject matter of Ms. Dolan's report contradicts and rebuts that of Dr. Johnson's report, the Court DENIES Plaintiff's Motion to limit Ms. Dolan's initial rebuttal report.

B. Ms. Dolan's Supplemental Rebuttal Report

Plaintiff further argues that Ms. Dolan's supplemental report filed on October 20, 2006, should also be limited because the report "contains opinions regarding Plaintiff's expert that should have been in her original expert rebuttal disclosure."*fn1 (See Pl.'s Mot. in Limine at 4.)

Defendant counters that Ms. Dolan's supplemental report was necessary pursuant to Rules 26(a)(2) and 37(c)(1), which require the disclosure of additional material information. (See Def.'s Opp'n to Pl.'s Mot. in Limine at 3.) Defendant argues that the late disclosure "was justified by the fact that Johnson's [deposition] transcript was not received until October 2, 2006, . . . his supplemental report was not received until October 10, 2006[,] and the supplement report was submitted "well within the 30 days prescribed by Rule 26(a)(2)(C) for rebuttal evidence." See id.)

Pursuant to Rule 37(c)(1), "[a] party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed." Fed. R. Civ. P. 37(c)(1). Accordingly, Rule 26(e)(1) provides that:

A party is under a duty to supplement at appropriate intervals its disclosures under subdivision (a) if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. With respect to testimony of an expert from whom a report is required under subdivision (a)(2)(B) the duty extends both to information contained in the report and to information provided through a deposition of the ...


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