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Holcomb v. Ramar

United States District Court, E.D. California

July 10, 2017

HARVEY HOLCOMB, Plaintiff
v.
JERRY RAMAR, et al., Defendants

          ORDER ON OBJECTIONS TO DR. BRAATON'S DE BENE ESSE DEPOSITION (DOC. NO. 150)

         This is 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.

         Trial 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. Paul Braaton.

         In 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 Holcomb's treatment.

         On 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.

         On May 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.

         On June 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.[1] Defendants object to 11 excerpts and Holcomb objects to 3 excerpts. See id.

         The Court will examine each excerpt separately.

         Legal Framework

         Rule 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 Cir. 2008).

         Testimony At Issue

         1. Page 11:21 to Page 12:4

         In 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 limitations?
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.

         Defendants' Objections

         Defendants object, without elaboration, that the above excerpts are speculation, vague, non-responsive, and lack foundation.

         Discussion

         The 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.

         2. Page 14:24 to Page 15:15

         Dr. Braaton testified in pertinent part:

Q: Would that surprise you if he used a wheelchair now and then?
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 wheelchair?
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 wheelchair.
Q: Sure.
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.

         Defendants' Objections

         Defendants 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.

         Discussion

         The 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 of treatment.

         3.Page 15:16 to Page 16:5

         At Page 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.[2]

         Parties' Arguments

         Defendants 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.

         Holcomb 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.

         Discussion

         Initially, 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.

         Nevertheless, 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 sustained.

         4. Page 17:5 to Page 17:12

         In 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.
Q: Okay.
A: Swaying.

         Parties' Arguments

         Defendants 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.

         Holcomb 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.

         Discussion

         The 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.

         5.Page 18:21 to Page 19:3

         Dr. 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 walking backwards?[3]
A: I think he would have been very unsteady on his feet walking backwards and most people could have seen that.

         Defendants' Objections

         Defendants object that the excerpt is speculation as to what a “lay person” might notice.

         Holcomb responds that the Court has permitted Dr. Braaton to offer opinions about Holcomb's ability to walk backwards.

         Discussion

         The 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.

         6. Page 23:2 to Page 23:14

         In 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 Kaiser.
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?
A: No.
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 today?
A: No.

         Parties' Arguments

         Defendants object that this testimony is irrelevant.

         Holcomb responds that he cannot reframe the question, and no objections were made during the de bene esse deposition. Moreover, the ...


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