The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTIONS IN LIMINE
On November 9, 2009, Defendant United States of America filed five motions in limine.
Defendant's first motion seeks to exclude any testimony regarding Dr. Li Volsi that could constitute an alleged assault, battery or sexual battery under California law, and any testimony regarding emotional distress arising out of these torts. Defendant argues this exclusion is mandated by 28 U.S.C. § 2680(h), which bars such evidence from being used in support of Plaintiff's intentional infliction of emotional distress claim which is scheduled for trial.
This motion is granted as to the following evidence: that Dr. Li Volsi's smacked Plaintiff on the butt, and that he tried to, and then successfully, kissed Plaintiff on the head. The portion of the motion concerning Dr. Li Volsi's admission that he and Plaintiff had been intimate is discussed below.
Defendant seeks to exclude in its second motion any testimony at trial that Dr. Li Volsi sexually battered Plaintiff after he performed surgery on her, arguing such testimony is inadmissible under Fed. R. Evid. 602 due to Plaintiff's lack of personal knowledge, or alternatively, that the testimony would be unduly prejudicial under Fed. R. Evid. 403 because it would confuse the trial issues. Specifically Defendant seeks to exclude Plaintiff's evidence that at an appointment, Dr. Li Volsi said to her, "Relax, you're forgetting you and I have already been intimate before." Plaintiff responds to this portion of Defendant's motion, arguing:
The government misapprehends what plaintiff intends to prove at trial . . . . Obviously, the post-surgical events themselves do not prove that Dr. Livolsi was actually "intimate" with plaintiff . . . . [W]hether the sexual battery actually took place does not matter. The plaintiff's perception that her own doctor may have sexually battered . . .is what caused her to suffer emotional distress. (Pl.'s Opp'n. to Def.'s Mot. In Limine 2)(emphasis added).
This statement is inadmissible for the purpose of proving that a sexual assault or battery occurred. However, since the statement does not have to be construed as an allegation of sexual assault or battery, it is not barred because the mere utterance of the statement has independent, probative value on Plaintiff's intentional infliction of emotional distress claim. Further, the statement's probative value is not substantially outweighed by the danger of confusion of the issues. Therefore, this portion of the motion is denied.
Defendant's third motion seeks an order holding that Plaintiff's counsel's statements to the Magistrate Judge at an October 30, 2008 hearing "constitute binding judicial admissions and/or admissions of a party opponent under Rule 801(d)(2)." Defendant cites U.S. v. Bentson, 947 F.2d 1353, 1356 (9th Cir. 1991), as support for the judicial admission portion of the motion. The Ninth Circuit indicates in Bentson that a distinction exists between counsel's statements made "merely [as] a concession for the sake of argument" and those made as a "binding concession" on an issue in a case. One of the statements Plaintiff's counsel made during the October 30 hearing, is "[t]his is not a case involving sexual assault by Dr. Li Volsi . . .[;] what we're saying is that the touching that was involved in this case involved a smack on the butt . . . ." Plaintiff rejoins that "[s]tatements of counsel are not evidence."
Under Bentson, Plaintiff's counsel's statement quoted above is a judicial admission in light of the context it was made; therefore, this statement is binding on Plaintiff. See Bentson, 947 F.2d at 1356. However, since it is unclear whether the remaining statements Plaintiff's counsel made during the October 30th hearing will become ripe for judicial decision, they are not addressed, and that portion of Defendant's motion is denied.
Defendant's fourth motion seeks an order excluding any evidence or argument relating to the damages Plaintiff seeks. Specifically, Defendant argues exclusion of this evidence is warranted since Plaintiff failed to disclose a computation of damages as required under Federal Rule of Civil Procedure 26(a)(1)(c). Defendant also seeks exclusion of any testimony relating to Plaintiff's alleged fear of gynecological examinations arguing such fear "is not a recoverable item of damages." Lastly, Defendant seeks exclusion of evidence and argument relating to prejudgment interest and punitive damages arguing these damages are not recoverable under the Federal Tort Claims Act.
Plaintiff counters she "is not required to provide any more detail" than that her damages for "humiliation and emotional distress" "will likely exceed $250,000," and that these "[n]on-economic damages are not susceptible to 'computation.'" Further, Plaintiff rejoins her "fear of gynecological examinations is very real and is compensable."
"While [Federal Rule of Civil Procedure 26(a)(1)(c)] generally requires a party to provide a computation of damages, emotional damages, because of their vague and unspecific nature, are oftentimes not readily amenable to computation." Creswell v. HCAL Corp., No. 04cv388 BTM (RBB), 2007 WL 628036, at *2, (S.D. Cal. Feb. 12, 2007). "Plaintiff is permitted to seek such damages at trial." Id. This portion of Defendant's motion is therefore denied.
The portion of Defendant's motion seeking to exclude evidence of Plaintiff's fear of gynecological examinations is also denied, since Defendant has not show this evidence is inadmissible.
Plaintiff's opposition does not address Defendant's argument that evidence relating to prejudgment interest and punitive damages should be excluded. Under the Federal Tort Claims Act, Defendant may "not be [held] liable for interest prior to judgment or for punitive damages." ...