ORDER ON MOTIONS IN LIMINE FILED BY DEFENDANT UNITED STATES OF AMERICA [Dockect Nos. 24, 25, 26, 27]
ROGER T. BENITEZ, District Judge.
This matter is a medical malpractice lawsuit filed by Plaintiff Eugene Acevedo against the United States of America. Plaintiff alleges that a Veterans Administration hospital negligently failed to diagnose and treat a subdural hematoma, resulting in physical, emotional, and cognitive injuries. The matter is set for a bench trial before this Court on April 1, 2013.
Before this Court are four Motions In Limine filed by Defendant United States of America. (Docket Nos. 24-27). The Court rules as follows:
I. Motion In Limine to Preclude Expert Witnesses From Offering Opinions Not Included in their Rule 26(a)(2)(B) Reports
Defendant asks this Court to limit the direct testimony of Plaintiff's expert witnesses to the content of their Rule 26(a)(2)(B) reports. (Docket No. 24). The Plaintiff has only one expert witness, Dr. Peter Colaprete. (Pretrial Memorandum). Rule 26 of the Federal Rules of Evidence requires expert reports to contain "a complete statement of all opinions the witness will express and the basis and reasons for them." FED. R. CIV. P. 26(a)(2)(B)(I). Rule 37(c)(1) generally forbids the use at trial of any information that is not properly disclosed, unless it is substantially justified or harmless. FED. R. CIV. P. 37(c)(1); Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 827 (9th Cir. 2011). Plaintiff agrees that experts may not offer new opinions beyond the scope of their reports. (Opp'n at 7).
The parties appear to disagree, however, about which matters are beyond the scope of the expert report generated by Dr. Colaprete. (Def. Exh. A). Defendant contends that Dr. Colaprete discusses the standard of care, but provides only general statements about causation without discussing Plaintiff's injuries. Defendant therefore asks that he be limited to these subject areas during trial testimony. Plaintiff argues that Colaprete's report "clearly states his reasoning for why Defendant's malpractice caused neurologic harm to the plaintiff." (Opp'n at 7). Plaintiff claims that the report concludes that the failure to diagnose and treat for two months caused neurological harm. ( Id. ) He contends that Colaprete addressed "his theories of causation and liability as precisely as is reasonable in a report." ( Id. ).
Neither party has asked this Court to rule on the admissibility of any particular statement or subject of testimony. It is unclear to this Court what statements from Plaintiff's expert the United States seeks to bar. To the extent the United States seeks a broad ruling preventing Dr. Colaprete to testify beyond a dry recitation of his report, their request is DENIED. However, Defendant may raise objections during trial, and the Court will issue rulings as appropriate. The parties may, however, file additional motions in limine to ask this Court to rule on particular subjects or lines of questioning.
II. Motion in Limine to Prohibit Rule 26(a)(2)(B) Expert Reports From Replacing Expert Testimony
Defendant asks this Court to rule that Plaintiff may not offer expert reports in lieu of presenting the live testimony of his expert witnesses. (Docket No. 25). The United States contends that expert medical testimony is required to prevail in a medical malpractice lawsuit of this type. (Docket No. 25, at 4-5). Plaintiff does not dispute the need for expert testimony. Defendant argues that the Colaprete report is an inadequate substitute for the live testimony of the expert.
Defendant first points out that the report is unsigned, rather than sworn under penalty of perjury. (Docket No. 25, at 6). An unsigned expert report cannot properly be taken into account in summary judgment proceedings. See, e.g., Shuffle Master, Inc. v. MP Games LLC, 553 F.Supp.2d 1202, 1210 (D. Nev. 2008) (collecting cases). Defendant argues that this rule should apply with greater force at trial. (Docket No. 25, at 6). Defendant also argues that it has not had an opportunity to cross-examine Plaintiff's expert. Although Defendant concedes it elected not to take Dr. Colaprete's deposition, it states that it was "opting instead to cross-examine him at the time of trial." ( Id. ) Defendant claims that, even if Plaintiff presented a signed declaration, Defendant would be deprived of its opportunity to cross-examine the only expert witness if the witness did not testify.
However, Plaintiff argues that Defendant agreed in open court to a stipulation that the written reports of experts were admissible "whether or not that witness was called to testify." (Opp'n at 8). Plaintiff further states that Defendant chose not to depose the witness, and cannot argue that it wishes to ask the witness questions beyond the report, given its motion in limine to limit expert testimony to the report. ( Id. )
Defendant disputes the Plaintiff's characterization of its agreement. "While the Government did not object to Plaintiff's statement that expert reports would be admissible, the purpose behind this was to aid the trier of fact, not to replace expert testimony. Specifically the Government did not agree that Plaintiff could meet his burden of proof by simply presenting a written report." (Reply at 2).
Review of the record indicates that, in open court and on the record, counsel for Plaintiff informed this Court that the parties had agreed the expert reports would be admissible, whether the party decided to call the expert as a live witness or not. Defendant's counsel did not say anything in response. The Pretrial Memorandum, filed one week prior to the Pretrial Conference, indicates that Plaintiff listed one expert witness and that the parties had agreed to the admissibility of the expert reports.
Defendant was present before this Court when counsel for Plaintiff stated that the parties had agreed that expert reports could be admitted, whether or not the witness was called to provide live testimony. Defendant did nothing to indicate to this Court that it disagreed with Plaintiff's characterization, or that it sought to attach conditions to its agreement. Defendant also knew that Plaintiff had only listed one expert. It was therefore entirely foreseeable ...