United States District Court, N.D. California, San Jose Division
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS' MOTION TO EXCLUDE DUPLICATIVE AND
INADMISSIBLE EXPERT TESTIMONY; AND REFERRING RULE 26
DISCLOSURE ISSUES TO MAGISTRATE JUDGE SUSAN VAN KEULEN FOR
DISPOSITION [RE: ECF 76]
LAB SON FREEMAN, United States District Judge
action arises out of the death of thirty-three year old Jacob
Parenti, who died in his cell at the Monterey County Jail
where he was being held on a probation violation. Plaintiffs
are the Estate of Jacob Parenti, Mr. Parenti's minor son,
and Mr. Parenti's mother. Plaintiffs assert violations of
federal and state law by Monterey County, Sheriff Scott
Miller, and Deputy Collins (“County Defendants”),
as well as California Forensic Medical Group and Dr. Taylor
Fithian (“CFMG Defendants”).
assert that the CFMG Defendants have designated an excessive
number of retained and non-retained experts who offer
duplicative and/or inadmissible opinions, and that the CFMG
Defendants' disclosures of non-retained experts did not
comply with Federal Rule of Civil Procedure 26. Plaintiffs
also assert that the County's retained experts offer
inadmissible opinions. Plaintiffs ask the Court to (1) limit
the CFMG Defendants to one retained expert on the topics of
cause of death and adequacy of medical care, (2) exclude
inadmissible opinions of experts retained by the CFMG
Defendants and the County Defendants, and (3) prohibit
testimony by the CFMG Defendants's non-retained experts
who were not adequately disclosed as required by Rule 26.
reasons discussed below, Plaintiffs' motion is GRANTED IN
PART AND DENIED IN PART, and the Rule 26 disclosure issues
are REFERRED to Magistrate Judge Susan van Keulen for
CFMG Defendants' Retained Experts - Duplication
contend that the CFMG Defendants have designated multiple
retained healthcare professionals who will offer duplicative
and cumulative opinions regarding the cause of Mr.
Parenti's death and whether the medical services provided
to Mr. Parenti met the standard of care. Plaintiffs ask the
Court to exercise its discretion to limit CFMG to a single
retained expert on these topics. In response, the CFMG
Defendants assert that their retained experts come from
different backgrounds and thus offer different bases for
their opinions, and that no one expert's opinion overlaps
in its entirety with any other opinion.
court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . needlessly
presenting cumulative evidence.” Fed.R.Evid. 403.
Moreover, the Court has authority to limit the extent of
discovery otherwise allowed by federal or local rules if
“the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less
expensive.” Fed.R.Civ.P. 26(b)(2)(C)(i).
Court finds it impossible to determine based on the current
record whether exclusion of any of CFMG's experts is
appropriate under these standards. Trial is not set to
commence for eighteen months, and none of the experts has yet
been deposed. The Court understands that Plaintiffs brought
this motion at least in part for the very purpose of avoiding
the costs of those depositions. See Olney Decl.
¶ 4 (“To even depose each of CFMG's experts at
their required rates of up to $650 per hour, Plaintiffs'
costs and fees could easily exceed $30, 000.”), ECF
76-1. However, the CFMG Defendants have the right to
designate the experts of their choice, and it does not appear
- at least on this record - that there is complete overlap
with respect to any one expert witness which would justify
that expert's exclusion. There is no suggestion that the
disclosure is in bad faith or for any improper purpose.
Accordingly, Plaintiffs' request that the Court limit the
CFMG Defendants to a single retained expert on the issues of
cause of death and standard of care is DENIED.
Court does, however, direct the parties to meet and confer
regarding the order of the depositions so that the retained
experts who are most likely to testify are deposed first.
Plaintiffs may wish to depose the one or two experts most
likely to testify and seek permission to conduct late
depositions of the other experts after the close of discovery
in the event such depositions become necessary. In the event
that experts who appeared most likely to testify are not
called at trial, the Court would entertain a motion by
Plaintiffs for cost-shifting with respect to the depositions
of those experts.
Defendants' Retained Experts - Admissibility
also challenge the admissibility of certain aspects of the
opinions offered by two of the CFMG Defendants' retained
experts, Kimberly Pearson, R.N., and Frank Sheridan, M.D.
Pearson, a Registered Nurse, offers opinions regarding the
standard of medical care provided to Mr. Parenti by the CFMG
nursing staff and the cause of Mr. Parenti's death.
See Pearson Report, Exh. 2 to Olney Decl., ECF 76-1.
Plaintiffs do not dispute Ms. Pearson's qualifications to
offer such opinions. However, Plaintiffs do object to Ms.
Pearson's statements regarding other individuals'
state of mind as well as statements that could be construed
as legal opinion. For example, Ms. Pearson opines that the
CFMG nursing staff “were not subjectively aware whether
or not Mr. Parenti had a serious medical condition beyond
signs and symptoms of an upper respiratory infection in
January 2014, and they did not consciously disregard his
healthcare needs.” Id. at 14. She also opines
that “CFMG nursing staff did not attempt to harm Mr.
Jacob Parenti.” Id. at 18. Those opinions
would be inadmissible at trial. See Siring v. Oregon
State Bd. of Higher Educ. ex rel. E. Oregon Univ., 927
F.Supp.2d 1069, 1077 (D. Or. 2013) (“Courts routinely
exclude as impermissible expert testimony as to intent,
motive, or state of mind.”); Pinal Creek Grp. v.
Newmont Mining Corp., 352 F.Supp.2d 1037, 1043 (D. Ariz.
2005) (expert witness may not give an opinion on a question
motion to exclude is GRANTED with respect to Ms.
Pearson's opinions regarding the state of mind of other
individuals or questions of law. Ms. Pearson may, however,
testify regarding the conduct of individuals in response to
properly stated questions.