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Mayer v. Redix

United States District Court, C.D. California

November 15, 2017

CASEY D. MAYER, Plaintiff,
v.
LOUIS REDIX, et al., Defendants.

          ORDER

          DONALD W. MOLLOY, DISTRICT JUDGE, UNITED STATES DISTRICT COURT

         In 2010, Plaintiff Casey D. Mayer, a prisoner proceeding pro se, [1] filed a complaint against an orthopedic surgeon, Defendant Louis Redix, M.D., and a number of Federal defendants related to a surgery he underwent while incarcerated, alleging claims pursuant to 42 U.S.C. § 1983 (Count I) and state law medical malpractice (Count II). (Amended Compl., Doc. 9.) A number of years, judges, and substantive rulings later, his only remaining claim is for medical malpractice against Defendant Redix. In preparation for the upcoming trial of that claim, the parties raise ten motions in limine, four by Plaintiff and six by Defendant. Argument was heard during the Final Pretrial Conference on November 14, 2017. For the reasons stated on the record, and as further outlined below, IT IS ORDERED:

         I. Plaintiff's Motions

         Plaintiff No. 1:Exclude evidence of criminal convictions and other lawsuits and grievances (Doc. 281)

         GRANTED. Plaintiff Mayer first seeks to limit evidence and testimony as to his criminal history and have the Court inform the jury only that: (i) Plaintiff was convicted in 2006 for being a felon in possession of a firearm[2] and (ii) was incarcerated as a result until 2016. Such a limitation is appropriate given the age and nature of Mayer's pre-2007 convictions. See Fed. R. Evid. 609(b)(1).

         Additionally, it is neither necessary nor appropriate to elicit further details of his 2006 conviction. Fed.R.Evid. 609(a)(1)(A), 403; see United States v. Osazuwa, 564 F.3d 1169, 1175 (9th Cir. 2009).

         Plaintiff No. 2:Preclude Defendant Redix from offering expert opinions (Doc. 282)

         GRANTED in PART. Plaintiff seeks to preclude Defendant from providing his own expert opinions during trial. Regardless of the merits of Plaintiff's argument under Rules 702 and 403, Defendant failed to make an expert disclosure. See Fed. R. Civ. P. 26(a)(2)(B). He is therefore barred from testifying as an expert in the absence of some showing that his failure to disclose was either substantially justified or harmless. See Fed. R. Civ. P. 37(c)(1); Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011); Yeti by Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). No such showing has been made here. However, as a treating physician, Defendant is exempt from the Rule 26(a)(2)(B) written report requirement “to the extent his opinions were formed during the course of treatment.” Goodman, 644 F.3d at 826. As a result, Defendant's testimony is limited to the scope of treatment rendered and the relevant information reviewed at that time. Id. Notably, Defendant indicated in his response that he did not plan to exceed that scope.

         Plaintiff No. 3:Preclude Defendant from offering speculative testimony (Doc. 283)

         DENIED, subject to trial objection. Plaintiff seeks to exclude any of Defendant's speculative testimony as to his interaction with Plaintiff on the morning of the surgery (in the pre-surgery meeting) on the grounds that Defendant admitted to not remembering the substance of that communication in his deposition. Plaintiff is correct that Defendant is not permitted to speculate, United States v. Whittemore, 776 F.3d 1074, 1082 (9th Cir. 2015), and is limited to his personal knowledge and experience, Fed.R.Evid. 602 (“A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”); Sempra Energy v. Marsh USA, Inc., 2008 WL 11335050, at *13-14 (C.D. Cal. Oct. 15, 2008). That said, because it is unknown at this point what the substance of Defendant's testimony will be and what it will be based on, Plaintiff's speculative request to exclude this speculative evidence is denied. “The parties may raise specific objections at trial if testimony elicited strays into the realm of speculation or conjecture.” Heggem v. Snohomish Cnty. Corrections, 2015 WL 1759201, at *1 (W.D. Wash. Apr. 17, 2015).

         Plaintiff further argues that Defendant should not be allowed to testify as to what he does “normally, ” or his habit/routine/ordinary course of pre-surgery meetings with patients. Once again, it is unknown at this time what Defendant will testify to. But, such evidence may be admissible under Rule 406 (“Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.”). So long as Defendant can adequately show the frequency and regularity of a given behavior, Plaintiff's argument is more properly addressed through cross examination.

         Plaintiff No. 4:Exclude, or limit, the testimony of Dr. Ronald Kvitne (Doc. 284)

         GRANTED in PART. Plaintiff objects to the expert disclosure and opinions of Dr. Ronald Kvitne, an orthopedic surgeon retained by Defendant.

         Ultimately, Dr. Ronald Kvitne is permitted to testify as an expert, but his testimony is limited to those opinions fairly disclosed in his September ...


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