United States District Court, E.D. California
ORDER ON OBJECTIONS TO DR. BRAATON'S DE BENE ESSE
DEPOSITION (DOC. NO. 150)
a civil rights case that arises out of a confrontation
between Plaintiff Harvey Holcomb (“Holcomb”) and
members of the City of Modesto Police Department. Trial in
this matter is currently set for August 8, 2017.
was previously set for October 18, 2016, but was vacated so
that Holcomb could respond to a motion in limine that was
filed on October 14, 2016 (“the October MIL”).
The October MIL sought to exclude portions of the de bene
esse deposition of Holcomb's treating physician, Dr.
December 2016, the Court granted in part and denied in part
the October MIL and limited Dr. Braaton's expert
testimony to opinions that he formed during the course of
March 8, 2017, the Court set a new trial date of August 8,
2017, and also set a telephonic trial confirmation date of
July 25, 2017. See Doc. No. 148. In setting the new
trial date, the Court also included deadlines for the parties
to reach an agreement regarding the presentation of Dr.
Braaton's deposition. In light of the Court's ruling
on the October MIL, the parties were given to June 1, 2017,
to reach an agreement with respect to which portions of Dr.
Braaton's deposition would be played to the jury. See
id. If the parties could not reach an agreement, then
they were to submit briefing regarding the particular
passages of the de bene esse deposition to which
there remained a dispute. See id.
31, 2017, the parties filed a notice that an agreement had
been reached as to a majority of Dr. Braaton's deposition
testimony, but full agreement could not be achieved.
15, 2017, the parties filed a joint brief that identified the
specific parts of Dr. Braaton's deposition that were
objectionable. See Doc. No. 150. Defendants object
to 11 excerpts and Holcomb objects to 3 excerpts. See
Court will examine each excerpt separately.
26(a)(2) provides for mandatory disclosures regarding expert
witnesses. See Fed.R.Civ.P. 26(a)(2); Republic
of Ecuador v. Mackay, 742 F.3d 860, 865 (9th Cir. 2014).
For testifying experts retained or specially employed to
provide expert testimony, the expert is required to submit a
detailed report. See Fed.R.Civ.P. 26(a)(2)(B). For
experts who are not retained or specially employed to provide
expert testimony, certain disclosures must still be made but
a detailed report is not required. See Fed.R.Civ.P.
26(a)(2)(C); Mackay, 742 F.3d at 865 n.1.
“These experts typically include treating physicians .
. . .” Mackay, 742 F.3d at 865 n.1. “[A]
treating physician is only exempt from Rule 26(a)(2)(B)'s
written report requirement to the extent that his opinions
were formed during the course of treatment.”
Goodman v. Staples the Office Superstore, LLC, 644
F.3d 817, 826 (9th Cir. 2011); see also Fielden v. CSX
Transp., Inc., 482 F.3d 866, 871 (6th Cir. 2007)
(“[A] report is not required when a treating physician
testifies within a permissive core on issues pertaining to
treatment, based on what he or she learned through actual
treatment and from the plaintiff's records up to and
including that treatment.”). Under this rule, as long
as the opinions were formed during the course of treatment, a
physician need not submit the detailed Rule 26(a)(2)(B)
report and may offer opinions relating to the plaintiff's
appearance and condition from the start to the end of
treatment, the extent of the plaintiff's disability, the
treating physician's treatment of the plaintiff, the
treating physician's assessment of plaintiff's
condition during and at the conclusion of treatment, the
plaintiff's prognosis, causation, and the need for future
treatment. See Alfaro v. D. Las Vegas, Inc., 2016
U.S. Dist. LEXIS 113949, *36-*37 (D. Nev. Aug. 24, 2016);
Israeli v. Ruiz, 2015 U.S. Dist. LEXIS 97650,
*10-*11 (S.D. N.Y. July 27, 2015). Opinions that were not
formed during the course of treatment, including opinions
that were formed after viewing “outside materials,
” must be presented in a detailed Rule 26(a)(2)(B)
report. See Goodman, 644 F.3d at 826;
Fielden, 482 F.3d at 871. The use of
“hypotheticals” is generally inappropriate with
respect to the opinions of a treating physician. In re C.
R. Bard, Inc., 948 F.Supp.2d 589, 615 & n.3 (S.D.
W.Va. 2013); Whitley v. Yarber, 2013 U.S. Dist.
LEXIS 186430, *11-*12 (N.D.Ga. 2013). The proponent of
evidence, including expert testimony, bears the burden of
showing its admissibility. See In re Oracle Corp. Sec.
Litig., 627 F.3d 376, 385 (9th Cir. 2010); United
States v. 87.09 Acres of Land, 530 F.3d 899, 904 (9th
Page 11:21 to Page 12:4
relevant part, Dr. Braaton testified:
Q: All right. Now when in your treatment and meetings with
[Holcomb], did you get the impression he was aware of his
A: Oh, yeah. He was really aware of his limitations.
Q: And - - A:I mean, he was going around searching for
answers to his autoimmune disease for quite some time. And
went and saw a number of physicians at different centers.
object, without elaboration, that the above excerpts are
speculation, vague, non-responsive, and lack foundation.
Court will overrule Defendants' objections. Dr.
Braaton's answer is responsive to the question posed, and
the question was expressly based on Dr. Braaton's
treatment and meetings with Holcomb. The questions and
answers for this excerpt are not so vague or speculative that
it is necessary to strike this testimony.
Page 14:24 to Page 15:15
Braaton testified in pertinent part:
Q: Would that surprise you if he used a wheelchair now and
A: No, it wouldn't. If he was walking long
distances and had a lot of pain.
Q: Okay. So if he had to walk let's say a block or two,
do you think it would have been appropriate for him to use a
A: If he had a lot of pain, I -- so I would have to
really review, go back through the records
and see if we wrote him a prescription for a
A: I wouldn't be surprised if at some point he
did. And then he used those on any kind of
-- whenever he wanted to -- whenever he felt that he needed -
he wasn't able to walk the distance, like maybe going
into a store like Costco or to the mall. He would use a
wheelchair. I -- I would have left that up to him.
object that this excerpt is speculation, irrelevant, and
beyond the scope of a treating physician because Dr. Braaton
did not prescribe a wheelchair, never saw Holcomb in a wheel
chair, and what surprises Dr. Braaton is not relevant.
Court will overrule Defendants' objections. The use of a
wheelchair is relevant because Holcomb contends that he used
a wheelchair from time to time and that his wheelchair would
have been visible to Defendant Ramar when he approached
Holcomb's vehicle. The Court understands that Ramar will
testify that he did not see the wheelchair. Also, the use of
a wheelchair is relevant in that it can help the jury to
understand the extent of Holcomb's condition, which in
turn can help the jury to resolve the conflicting testimony
of the parties. Furthermore, the testimony is not outside the
scope of a treating physician. Dr. Braaton is permitted to
explain the nature and extent of Holcomb's
condition/symptoms. Finally, Dr. Braaton testified
immediately before the objectionable testimony that Holcomb
may have been in a wheelchair sometimes, but that he
didn't remember Holcomb in a wheelchair per se.
See Braaton Depo. 14:19-23. That is, contrary to
Defendants' objection, Dr. Braaton did not testify that
he has no memory of Holcomb in a wheelchair during the course
15:16 to Page 16:5
15:16 to Page 16:5, Dr. Braaton is shown a picture of Holcomb
in which Holcomb is sitting in the door of an automobile and
holding a cane.
object that the testimony is irrelevant, unduly prejudicial,
cumulative, and beyond the scope of a treating physician.
Defendants argue that Dr. Braaton can and did describe
Holcomb's condition and need for a cane. The photo is
used to suggest that Dr. Braaton believed that Holcomb would
have used a cane in this circumstance and to get out of the
specific car. The photo adds nothing relevant to Dr.
Braaton's testimony regarding Holcomb's need for and
use of a cane, and the photo is too close to the facts of
this case for Dr. Braaton to comment on. Further, using the
photo is a way to circumvent the Court's ruling that Dr.
Braaton cannot testify that Holcomb most likely would have
used a cane and leaned on the door to get out of the car.
responds that it would be unfair to strike this portion of
the deposition because, as a de bene esse
deposition, there is no way to reframe the question and
Defendants made no objection during the deposition. Holcomb
also responds that the photo has not been excluded, and it
can be authenticated by any witness. Further, the questions
simply ask the doctor to say there is a cane and the photo
was in a car. It does not imply an opinion by the doctor.
the objection that the testimony is beyond the scope of a
treating physician is not persuasive. Treating physicians are
percipient witnesses and may give non-expert testimony that
is not constrained by Rule of Evidence 702 or Rule of Civil
Procedure 26(a)(2). See Alfaro, 2016 U.S. Dist.
LEXIS 113949 at *37 (“The disclosure obligation stated
in [Rule 26(a)(2)(C) ‘does not apply to facts unrelated
to the expert opinions the witness will present.'”)
(quoting Fed.R.Civ.P. 26 Advisory Comm. Notes to 2010
Amendments). As someone who knows what Holcomb looks like,
Dr. Braaton may authenticate a picture of Holcomb.
the Court does not see how this portion of Dr. Braaton's
deposition is helpful or probative. Dr. Braaton, as well as
Holcomb, will be able to testify about Holcomb's use of
or need for a cane. In fact, Holcomb himself could
conceivably use the photo as a demonstrative aid in
describing how he uses or needs a can to enter or exit his
automobile. However, it is unclear how the photo aids Dr.
Braaton's testimony, or what purpose is served by having
Dr. Braaton describe the photo. Furthermore, when the Court
ruled on Defendants' October 2016 motion in limine, it
prohibited Dr. Braaton from offering an opinion that
“Plaintiff most likely would have used a cane and
leaned on the door to get out of the car.” Admitting
this testimony comes close to violating the Court's prior
ruling. Therefore, given the potentially cumulative nature of
the testimony, the absence of any clear probative value to
Dr. Braaton testifying about the photo, and the Court's
prior in limine ruling, Defendants' objection is
Page 17:5 to Page 17:12
relevant part, Dr. Braaton testified:
Q: Do you think, when you say “pretty unsteady”
is that something that you would expect a lay person to be
able to notice?
A: Probably. Because I don't think he would be
able to walk in a straight line. And he
would be probably swaying a little bit.
object that it is speculative about what a “lay
person” might notice. Further, the question refers to
Dr. Braaton's testimony that Holcomb would be
“pretty unsteady” when walking 15 feet with his
hands clenched. This opinion was previously excluded by the
Court. Cutting out the excluded “context” of the
passage is an attempt to circumvent the prior order.
responds that there was no objection during the de bene
esse deposition and thus, there is no longer a way to
reframe the question. Thus, the objection should be deemed
waived. Further, the testimony specifically describes Dr.
Braaton's observation of Holcomb's gait.
Court does not find that the opinion is fatally speculative.
A physician would have a good idea about how noticeable or
obvious a mobility impairment would be to an untrained eye.
Nevertheless, the Court agrees with the remainder of
Defendants' objection. The context of the answer is
highly important. The question is attempting to get a
clarification regarding what Dr. Braaton meant by
“pretty unsteady, ” and “pretty
unsteady” referred to a line of questioning that the
Court has excluded. “Pretty unsteady” was not a
generic description of Holcomb's gait or stability, it
was a description of Holcomb's ability to walk fifteen
feet without a cane and with clenched fists. Without the
context, the question is confusing and misleading. Because
the context is excluded, this section will also be excluded.
Defendants' objection is sustained.
18:21 to Page 19:3
Braaton testified in pertinent part:
Q: Okay. So, again, would that be something that would be
noticeable you think to a lay person? I mean, the difficulty
A: I think he would have been very unsteady on his
feet walking backwards and most people could
have seen that.
object that the excerpt is speculation as to what a
“lay person” might notice.
responds that the Court has permitted Dr. Braaton to offer
opinions about Holcomb's ability to walk backwards.
Court will overrule the objection. The obviousness or
noticeability of a mobility problem could be the subject of
both lay opinions under Rule of Evidence 701 or expert
opinions under Rule of Evidence 702, depending on the nature
of the mobility problem. As a physician with experience
concerning human mobility issues, Dr. Braaton would be aware
of a number of different mobility problems. Some mobility
problems might be extremely subtle and require specialized
training to detect. E.g. Braaton Depo. at
29:23-30:6. Others might be extremely obvious and require no
training whatsoever. Dr. Braaton may discuss how clear or
obvious Holcomb's mobility problems were.
Page 23:2 to Page 23:14
pertinent part, Dr. Braaton testified:
Q: He's no longer with your practice?
A: He's at Kaiser. He makes a lot more money at
Q: Okay. Fair enough. Let me back up before we get into this.
Since the September 6 deposition, have you had an opportunity
to speak with Mr. Boskovich?
Q: Communicated with anybody from his office?
A: Me personally, no, I have not.
Q: Did you do anything to get ready for your testimony here
object that this testimony is irrelevant.
responds that he cannot reframe the question, and no
objections were made during the de bene esse
deposition. Moreover, the ...