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Palla v. L M Sports, Inc.

United States District Court, E.D. California

August 26, 2019

MANISHA PALLA, Plaintiff,
v.
L M SPORTS, INC. dba LAKESIDE MARINA and dba ACTION WATERSPORTS OF TAHOE; L T LEASING, INC.; PAUL GARCIA; and DOES 1 through 50, inclusive, Defendants.

          PRETRIAL CONFERENCE ORDER

          JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE

         Pursuant to court order, a Pretrial Conference was held on August 23, 2019 before Judge John Mendez. Roger A. Dreyer and Anthony J. Garilli appeared as counsel for plaintiffs; Amee Mikacich, Pamela L. Schultz and Alena Eckhardt appeared as counsel for defendant L M Sports, Inc. After hearing, the Court makes the following findings and orders:

         I. JURISDICTION/VENUE

         Jurisdiction is predicated upon 28 U.S.C. §§ 1332 & 1333, and has previously been found to be proper by order of this court, as has venue. Those orders are confirmed.

         II. JURY/NON-JURY

         Plaintiff has demanded a jury trial.

         III. STATEMENT TO BE READ TO JURY

         At least seven days prior to trial, each party may E-file a statement of the case that the Court may use in preparing the statement to be read to the jury at the beginning of jury selection.

         IV. UNDISPUTED FACTS

         None.

         V. DISPUTED FACTUAL ISSUES

         Plaintiff: Defendant disputes all facts related to Plaintiff's past and future medical care, as well as Plaintiff's past and future non-economic damages.

         Defendant L M Sports:

1. The amount of Plaintiff's damages, including whether Plaintiff has demonstrated the reasonableness and necessity of past and future medical expenses.
2. The extent to which Plaintiff can recover psychological and emotional damages and treatment.
3. Whether Plaintiff's work life reduction/work schedule reduction is recoverable and to what extent.

         VI. DISPUTED EVIDENTIARY ISSUES

         Plaintiff: Plaintiff challenges the foundation and methodology of Defendant's experts on prosthetics and present value of the costs of Plaintiff's future care. Plaintiff will challenge these experts at trial during their testimony.

         L M Sports: L M Sports asserts that the following evidentiary issues may be raised by formal motion and/or by request for a Federal Rule of Evidence 104 hearing outside the presence of the jury:

         1. Plaintiff should be precluded from proffering testimony from non-retained (and purported) experts (including Plaintiff's mother), which non-retained experts were not previously disclosed, were not designated in accordance with inter alia, the Federal Rules of Civil Procedure, Federal Rules of Evidence or orders of this Court and/or are not qualified on the topics on which L M Sports anticipate they will testify. Further, even if Plaintiff's non-retained purported experts are permitted to testify, Plaintiff (as well as any other party to a federal court litigation) is precluded from introducing testimony except as to treatment rendered, and therefore, cannot testify as to future medical needs.

         2. Plaintiff should be precluded from introducing evidence or testimony relating to issues raised in the March 5, 2019 report of her rehabilitation expert, Dr. Stephenson, which report was provided to L M Sports for the first time on August 6, 2019. The Court ordered Plaintiff to make Dr. Stephenson available for a deposition at a date and time convenient to L M Sports prior to the trial date. Plaintiff shall reimburse L M Sports for the cost of this deposition, including attorneys' fees.

         3. Testimony from Plaintiff's experts or any other witness that Plaintiff will suffer future fractures, including those to her upper extremities and the contralateral leg or need for ORIF (Open Reduction Internal Fixation) is speculative, without foundation (including whether they are unqualified to so testify) and contrary to the most recent medical evidence.

         4. Plaintiff's rehabilitation expert, Dr. Stephenson is not qualified to diagnose Plaintiff with post-traumatic stress disorder and depression; Dr. Stephenson's opinion regarding Plaintiff's future life care plan is speculative and without foundation; Dr. Stephenson is not qualified to testify as to the reasonableness and necessity of past medical care provided to Plaintiff, that Dr. Stephenson's opinion regarding reduced work life expectancy and reduced work schedule is speculative and lacking in foundation. Dr. Stephenson's opinions or other testimony relating to PRP (Platelet-Rich Plasma Therapy) are speculative and not commonly accepted and cannot be referenced.

         5. L M Sports asserts that Plaintiff's expert, Carol Hyland's opinion regarding Plaintiff's future medical expenses is speculative, lacks foundation and is inadmissible, including whether Plaintiff can introduce evidence of future medical expenses at uninsured rates, since those rates do not reflect the reasonable market rate for expenses and Plaintiff is not expected to incur those expenses. Without any distinction between the amount charged and billed and the amount accepted as payment in full from the insurer, the opinions on future medical care costs in Plaintiff's life care plan are unreliable. Furthermore, because Plaintiff's economist in turn offers opinions on the total present value based on the future medical expenses at uninsured rates, those opinions are based upon the life care planner flawed analysis and thus should be excluded.

         6. Plaintiff may not offer testimony regarding her purported PTSD, depression and need for therapy, counseling or similar sessions given, inter alia, the lack of competence of lay witnesses to testify on these facts, Plaintiff's failure to disclose these sessions in discovery despite being requested to do so and Plaintiff's sporadic need for these sessions.

         7. Plaintiff's economist Robert Johnson was not disclosed and is not qualified to testify as a financial planner/investment advisor and therefore, cannot testify as to what investments Plaintiff must or should make. Mr. Johnson also cannot rebut any opinions of L M Sports' economist because at his deposition Mr. Johnson testified that he did not have the information he needed to rebut her opinion. Further, Mr. Johnson cannot testify as to the alleged appropriateness of the life care plan.

         8. Whether Plaintiff has admissible evidence to support her claims for past medical expenses, including but not limited to whether those expenses are reasonable and necessary. Ninth Circuit Model Jury Instruction 7.1; Sanchez v. U.S., 803 F.Supp.2d 1066 (CD. Cal. 2011); Corenbaum v. Lampkin, 215 Cal.App.4th 1308 (2013); Neiberger v. FedEx Ground Package Sys., Inc., 566 F.3d 1184, 1193 (10th Cir. 2009); Collins v. D.J. Kibort, 143 F.3d 331, 337-39 (7th Cir. 1998); Bulthuis v. Rexall Corp., 789 F.2d 1315, 1316 (9th Cir. 1985).

         9. Whether Plaintiff can offer evidence of certain damages based on her failure to properly disclose those damages as required by the Federal Rules of Civil Procedure and other lack of categorization.

         VII. RELIEF SOUGHT

         Plaintiff: Plaintiff Manisha Palla seeks her past and future economic and non-economic damages.

         L M Sports: Not applicable

         VIII. POINTS OF LAW

         Trial briefs may be E-filed with the court no later than September 16, 2019. Any points of law not previously argued to the Court should be briefed in the trial briefs.

         IX. ABANDONED ISSUES

         The parties are not aware of any abandoned issues in this case.

         X. WITNESSES

         Plaintiff's witness list is attached to this Pretrial Conference Order as Exhibit A.

         L M Sports' witness list is attached to this Pretrial Conference Order as Exhibit B.

         Each party may call a witness designated by the other.

         A. No other witnesses will be permitted to testify unless:

(1) The party offering the witness demonstrates that the witness is for the purpose of rebutting evidence which could not be reasonably anticipated at the Pretrial Conference, or
(2) The witness was discovered after the Pretrial Conference and the proffering party makes the showing required in "B" below.

         B. Upon the post-Pretrial discovery of witnesses, the attorney shall promptly inform the court and opposing parties of the existence of the unlisted witnesses so that the court may consider at trial whether the witnesses shall be permitted to testify. The evidence will not be permitted unless:

(1) The witnesses could not reasonably have been discovered prior to Pretrial;
(2) The court and opposing counsel were promptly notified upon discovery ...

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