Free Response to Motion - District Court of Arizona - Arizona

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Daniel B. Treon ­ 014911 Kelly Jo - 021525 TREON & SHOOK, P.L.L.C. 2700 North Central Avenue, Suite 1000 Phoenix, Arizona 85004 Telephone: (602) 265-7100 Facsimile: (602) 265-7400 Attorney for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA TERESA AUGUST, a single woman, MARK AUGUST and JANE DOE AUGUST, husband and wife, for themselves and as parents and guardians for their minor child, MARCUS DAKOTAH AUGUST Plaintiffs, vs. CITY OF PHOENIX, a body politic of the State of Arizona; OFFICER LYLE MONSON and JANE DOE MONSON, husband and wife; OFFICER NICHOLAS LYNDE and JANE DOE LYNDE, husband and wife; OFFICER TOBY DUNN and JANE DOE DUNN, husband and wife; OFFICER T. HEDGECOKE and JANE DOE HEDGECOKE, husband and wife; and R. GRIFFIN and JANE DOE GRIFFIN, husband and wife Defendants. ___________________________________ _ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV03-1892 PHX ROS

PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION IN LIMINE REGARDING DR. PURDY'S "TREATING PHYSICIAN" OPINIONS AND "REBUTTAL EXPERT" OPINIONS

Plaintiff Teresa August responds that Defendants' Motion in Limine regarding Dr. Purdy's opinions should be denied. Defendants' motion ignores the fact that, as a

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treating physician, Dr. Purdy may testify regarding the "cause of the medical condition, the diagnosis, the prognosis and the extent of disability caused by the
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condition, if any." Plaintiff does not need to "shift" Dr. Purdy from a rebuttal expert witness to a case-in-chief witness, and Defendants' characterization of this moment is due entirely to their own 11th hour machinations - their apparent withdrawal of one of their two medical experts, less than a month before trial, as a tactical decision. Dr. Purdy should be allowed to testify regarding her opinions as Teresa August's treating physician, exactly as contemplated by Rule 26(a)(2)(B), Federal Rules of Civil Procedure. Regardless of whether Defendants "come clean" and finally confirm

whether they will be calling Dr. Carhart, Dr. Purdy, like any treating physician, should be allowed to explain the causation of the injury, including that the mechanics of the injury could not have occurred as Defendants have claimed (whether or not they present this claim through Dr. Carhart's testimony). I. Mrs. August Timely Disclosed Dr. Purdy as a Treating Physician Witness, and Testimony by Treating Physicians is Admissible Without a Written Report. Plaintiff appropriately disclosed Dr. Purdy as her treating physician on February 27, 2004. As her treating physician, Dr. Purdy can attest to all aspects of her

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examination, diagnosis and treatment: It is common place for a treating physician during, and as part of, the course of treatment of a patient to consider things such as the cause of the medical condition, the diagnosis, the prognosis and the extent of disability caused by the condition, if any. Opinions such as these are a part of the ordinary care of the patient and do not subject the treating physician to the extensive reporting requirements of Fed.R.Civ.P. 26(a)(2)(B). Piper v. Harnischfeger Corp., 170 F.R.D. 173, 175 (1997). In support of its decision to not order disclosure of Rule 26(a)(2)(B) opinions of the treating physicians, Piper

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also cites Baker v. Taco Bell Corp., 163 F.R.D. 348, 349 (D.Colo. 1995) (treating physicians have opinion as to cause of injury based on examination of patient, not experts as defined by Rule 26(a)(2)(B)); Wreath v. U.S., 161 F.R.D. 448, 449 (D.Kan. 1995) ("Clearly, treating physicians testifying only to the care and treatment afforded to a party were intended to be excluded from the requirements of Fed.R.Civ.P. 26(a)(2)(B)"); Bucher v. Gainey Transportation Service of Indiana, Inc., 167 F.R.D. 387, 390 (M.D.Penn. 1996) ("With respect to the claim that treating physicians do not need to submit expert reports, the plaintiffs are correct in so far as treating physicians are not required to submit expert reports when testifying on their `opinion as to the cause of an injury based upon their examination, diagnosis and treatment of the patient.'"); Salas v. U.S., 165 F.R.D. 31, 33 (W.D.N.Y. 1995) ("The relevant question is whether these treating physicians acquire their opinions as to the cause of the plaintiff's injuries directly through their treatment of the plaintiff"); and Mangla v. University of Rochester, 168 F.R.D. 137, 139 (W.D.N.Y. 1996) ("Experts are retained for purposes of trial and their opinions are based on knowledge acquired or developed in anticipation of litigation or for trial. A treating physician's testimony, however, is based on the physician's personal knowledge of the examination, diagnosis, and treatment of a patient and not from information acquired from outside sources."). These cases echo the position of the Advisory Committee: ... The requirement of a written report in paragraph [Rule 26(a)(2)(B), however, applies only to those experts who are retained or specially employed to provide such testimony in the case or whose duties as an employee of a party regularly involve the giving of such testimony. A treating physician, for example, can be deposed or called to testify at trial without any requirement for a written report...
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Fed.R.Civ.P. 26, Advisory Committee notes, p. 125 (emphasis added). Defendants are now trying to use Plaintiff's conscientious and unnecessary written disclosure to exclude the testimony of Mrs. August's treating physician, and they attempt to support their contention with cases that do not involve treating physicians. Plaintiff should not be penalized for going above and beyond the

requirements of Rule 26(a)(2); moreover, using her treating physician as a rebuttal expert does not destroy Mrs. August's right to call Dr. Purdy to testify as her treating physician. II. Dr. Purdy's Testimony in Plaintiff's Case-in-Chief is Appropriate In an abundance of caution, Plaintiff disclosed Dr. Purdy as a rebuttal witness and provided a written report on September 2, 2004, after receiving the written reports of two expert witnesses, Dr. Brown, a physician, and Dr. Carhart, a

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biomechanical expert with a Ph.D., on August 2, 2004. Dr. Brown conducted an independent medical examination of Mrs. August on December 1, 2004, and submitted a supplemental report shortly thereafter. Defendants deposed Dr. Purdy on February 10, 2005. Dr. Brown actually supported Mrs. August's injury and

impairment claims after his examination of Mrs. August, and yet Defendants waited
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until December 15, 2006, less than a month before the start of trial and more than two years after the disclosure of Dr. Purdy's report, and almost two years after Dr. Purdy's deposition, to withdraw Dr. Brown. Now, Defendants' counsel has suggested they may even withdraw Dr. Carhart.

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None of the "rebuttal opinion" cases cited by Defendants involved testimony by treating physicians. Furthermore, the cases cited by Defendants simply do not

support their motion. Only one case involves a plaintiff's attempt to re-designate a rebuttal expert as a case-in-chief expert (which Plaintiff here is not even trying to do!). In Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748 (8th Cir. 2006), the court refused to allow a plaintiff to shift her expert from rebuttal to case-in-chief. Id. at 761. Marmo

However, the reasons justifying the denial in Marmo do not apply here.

turned on the 11th hour tactical decision by plaintiff to withdraw the experts she identified as causation experts in her case in chief and re-designate her rebuttal expert as her primary expert in response to a motion in limine challenging the reliability of her original prima facie expert. Id. at 757. Marmo found that the

defendants "would have suffered significant prejudice if the district court allowed the [substitution]." Id. at 760. "To cure the prejudice, in allowing [the rebuttal expert] to testify as a primary witness, the district court would have had to re-progress the case and practically start anew." Id. Here, Defendants neither allege nor suffer such prejudice. In fact, the issue arises only because of Defendants' last minute tactics. Defendants waited until

December 15, 2006, less than four weeks before trial (and a time that encompassed two major holidays, Christmas and New Years Days), before withdrawing Dr. Brown as a witness. Defendants had a full opportunity to depose Dr. Purdy, and Defendants cannot claim prejudice by their own maneuvers. Moreover, in their motion,

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Defendants are not clear whether they are withdrawing Dr. Carhart1; since Dr. Purdy was properly noticed as a rebuttal expert to Dr. Carhart, she can be recalled as a rebuttal expert if Defendants call Dr. Carhart to testify, Dr. Purdy can then tell the jury that Dr. Carhart does not know his "varus" from his "valgus" forces ­ a major deficiency in his foundation-less opinion. III. Conclusion Dr. Purdy's testimony is appropriate first as a treating physician and then as an expert. As a treating physician, Dr. Purdy clearly is allowed to testify about the

causation Teresa August's arm injury, including what did not cause it, i.e., anything the skinny kid Sam Hickey did to Teresa August. Dr. Purdy can explain the forces

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involved in causing a medial elbow dislocation and how these forces do not comport with how the officers claim they handled Mrs. August's arm. Plaintiffs should not be penalized because of their unnecessary compliance with Rule 26(a)(2)(C), nor because of Defendants' last-minute sleight of hand. For the aforestated reasons, Plaintiffs ask the Court to DENY Defendants' Motion in Limine.

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DATED this 4TH day of January, 2007.

TREON & SHOOK, P.L.L.C.
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By:

s/ Daniel B. Treon Daniel B. Treon Kelly Jo Attorney for Plaintiffs

"Moreover, if neither Dr. Brown nor Dr. Carhart testify as Defendants' witnesses at trial, Dr. Purdy will not have any expert opinions to `rebut.'" Defendants' motion, page 4.

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CERTIFICATE OF SERVICE I hereby certify that on January 4, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic to the following CM/ECF registrants: Daniel B. Treon: Kathleen Wieneke: [email protected]; [email protected] [email protected]; [email protected]; [email protected] [email protected]; [email protected] [email protected]; [email protected]

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Jennifer L. Holsman: Randall H. Warner:

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By:

s/ Aly Shomar-Esparza

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