United States District Court, N.D. California
FURTHER ORDER ON MOTIONS IN LIMINE
Re: ECF Nos. 305, 309, 389, 398, 400
JON S. TIGAR, District Judge.
This order resolves the parties' motions in limine that were not addressed by the Court's prior orders, see ECF Nos. 346, 383.
A. Plaintiffs' Motion In Limine Number Four
In this motion, Plaintiffs seek an order precluding County Defendants' retained expert Ron Martinelli "from testifying about both: (1) the opinions and facts he omitted from his expert report; and (2) the opinions contained in his report that lack reliability: Opinions Nos. 1, 3, 5, and the opinions contained in paragraphs 2.2, 2.3, 2.4, 2.6, 3.6, 4.11, 5.0 and 5.1."
1. Opinions Not Contained In Dr. Martinelli's Expert Report
With regard to the first request, Plaintiffs claim that Dr. Martinelli did not opine on any of the following subjects in his report, and should be precluded at trial from doing so:
"the jail's medical staff";
"the manner by which Deputy Ahlf's chose to move Martin Harrison from one cell to another";
"Deputy Ahlf's Taser use";
"the Alameda County Sheriff's deputies' use of force";
"whether Deputy Ahlf caused Martin Harrison's death";
"the cause of Martin Harrison's death";
the stress felt by anyone involved in the case; and
ECF No. 305 at 21-22. Plaintiffs also request that Martinelli not be permitted to rely on any of the depositions he read, or investigation he conducted, after submitting his expert report.
Rule 26(a)(2)(b) of the Federal Rules of Civil Procedure requires a party to disclose the identity of each expert witness "accompanied by a written report prepared and signed by the witness." The report must contain, among other things, "a complete statement of all opinions the witness will express and the basis and reasons for them; the facts or data considered by the witness in forming them; [and] any exhibits that will be used to summarize or support them." Id., subparts (i), (ii), (iii). If a party fails to provide the information required by Rule 26(a)(2)(b), the party is not allowed to use the testimony of that expert at trial "unless the failure was substantially justified or is harmless." Fed.R.Civ.P. 37(c)(1); see also Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001).
Here, there is no dispute that Dr. Martinelli did not disclose in his expert report any of the matters plaintiffs complain about, and that he read several depositions and conducted additional investigation after producing his expert report. Defendants nonetheless oppose the motion on two grounds. First, they say:
Plaintiffs request that Dr. Martinelli be precluded from testifying regarding any facts he learned from depositions and Jack Ryan's report because he reviewed them after he wrote his report. Plaintiffs fail to specify which facts to which they are referring. It is unclear what evidence is involved in this motion. Thus, the request is vague and should be denied.
This argument is unconvincing. The burden is on Defendants to show that the failure was substantially justified or harmless. Fed.R.Civ.P. 37(c)(1). In any event, the relief Plaintiffs are requesting is clear - when asked for the basis of an opinion given at trial, Plaintiffs request that Dr. Martinelli not be permitted to rely on materials furnished to him after the preparation of his report.
Defendants next argue that Martinelli should be permitted to testify regarding these materials, because "[a]t the beginning of the deposition, plaintiffs' counsel was made aware of" the depositions Dr. Martinelli reviewed and certain facts about the post-report investigation he conducted. The Court has already rejected this argument once, ECF No. 346 at 3, and does so again now. Disclosure at a deposition is not an adequate substitute for timely disclosure in an expert report.
This portion of Plaintiffs' motion is granted in its entirety. Dr. Martinelli may not rely on any facts he learned after the transmission of his expert report in providing opinions in this case, or opine on the enumerated subjects as to which he provided no opinion in his report.
2. Plaintiff's Motion to Exclude Testimony Regarding Certain Opinions
Plaintiffs also move to preclude Dr. Martinelli from testifying regarding certain opinions listed in his report. The Court addresses them in the order they appear in Plaintiffs' motion.
a. Sections 2.3, 2.4, 2.6 and 3.6
In sections 2.3, 2.4, 2.6 and 3.6 of Dr. Martinelli's report, he expresses the view that Martin Harrison did not demonstrate symptoms of delirium tremens, and goes on to express opinions about how jail intake staff would have responded if Mr. Harrison had demonstrated such symptoms. Plaintiffs move to exclude Dr. Martinelli's opinions on these topics because he lacks medical training and "he is not qualified as an expert either on alcohol withdrawal or Delirium Tremens." ECF No. 305 at 24. They also move to exclude opinion 2.6 on the grounds that Dr. Martinelli is speculating.
Plaintiffs' objection to Dr. Martinelli's qualifications is well-taken. He is not a medical doctor. Although he describes his undergraduate major as "pre-med, " he received a bachelor's degree exercise physiology. He has no degrees in medicine, he holds no medical licenses, he is not a psychologist, and he has no expertise in nursing.
Plaintiffs are also correct that Dr. Martinelli's testimony is speculative. Even if he had sufficient medical training or experience to render opinions about chronic alcoholics, which he does not, his opinion about what Nurse Sancho or other Corizon or Alameda County employees would have done faced with the symptoms of alcoholism is just a guess. Expert testimony based on mere "subjective belief or unsupported speculation" is inadmissible. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 (1993).
Plaintiffs' motion to exclude the opinions given in sections 2.3, 2.4, 2.6 and 3.6 of Dr. Martinelli's report is granted.
b. Opinion Nos. 1 and 5, and Sections 2.4, 2.6, 4.11, and 5.1
Plaintiffs move to exclude Dr. Martinelli's opinions number 1.0 and 5, and the opinions expressed in sections 2.4, 2.6, 4.11, and 5.1 of his report, on the grounds that he bases his opinions on insufficient facts or has failed to ...