Free Motion in Limine - District Court of Arizona - Arizona

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Kathleen L. Wieneke, Bar #011139 Jennifer L. Holsman, Bar #022787 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7858 [email protected] [email protected] Attorneys for Defendants Griffin, Dunn, Lynde and Monson UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Teresa August, et al, Plaintiff, v. The City of Phoenix, et al, Defendant. NO. CV03-1892-PHX-ROS DEFENDANTS' MOTION IN LIMINE REGARDING DR. PURDY "REBUTTAL" EXPERT OPINIONS

Defendants Griffin, Dunn, Lynde and Monson, through counsel, submit this Motion in Limine requesting an Order to preclude Dr. Purdy, Plaintiff's rebuttal expert witness, from giving any rebuttal expert opinions until there is evidence for Plaintiff to rebut. This Motion is supported by the following Memorandum of Points and Authorities, exhibits attached hereto and any oral argument the Court may hold in this matter. MEMORANDUM OF POINTS AND AUTHORITIES I. FACTUAL BACKGROUND. Defendants anticipate that during Plaintiff's case in chief, Plaintiff's disclosed "rebuttal" expert witness, Dr. Purdy, will be called as a witness to testify
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regarding her "rebuttal" expert opinions. Plaintiff's attempt to present "rebuttal" expert opinion testimony in Plaintiff's case in chief, would be improper and must therefore be precluded until there is expert opinion testimony for Plaintiff to rebut.1 The following is a timeline of events related to expert disclosures in this matter: · The Court's Rule 16 Scheduling Order sets: (1) Plaintiff's expert disclosure deadline for July 2, 2004; (2) Defendants' expert disclosure deadline for August 2, 2004; and (3) Plaintiff's rebuttal expert disclosure deadline for September 2, 2004. The Order requires all witnesses with expert opinions to prepare a Rule 26(a)(2)(B) Report.2 · Plaintiff lists Dr. Purdy as a "treating physician" in her Initial Disclosure Statement dated February 27, 2004, but discloses no Rule 26(a)(2)(B)Report or any opinions. · Plaintiff failed to disclose an expert or any Rule 26(a)(2)(B) Reports by the July 2, 2004 deadline. · On August 2, 2004, Defendants disclosed three experts: (1) Commander Hynes, Police Procedures; (2) Dr. Brown, Physician; and (3) Mike Carhart, Biomechanical Engineer. · On September 2, 2004, Plaintiff disclosed Dr. Purdy as a "rebuttal" expert to "rebut" the expert opinions of Dr. Carhart and Dr. Brown and attaches a 1 page Rule 26(a)(2)(B) Report.3 The Report contains 2 rebuttal opinions: one rebutting the opinions of Dr. Brown and one rebutting the opinions of Dr. Carhart.
Plaintiff's may attempt to circumvent this issue by calling Defendants' expert witnesses in their case in chief. This would be improper as Plaintiff did not disclose Defendants' expert witnesses pursuant to Rule 26(a)(2)(B).
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See Court's Rule 16 Scheduling Order, page 2. See Plaintiff's Expert Disclosure Statement, attached hereto as Exhibit 1.

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· On December 13, 2006, Plaintiff subpoenaed Dr. Brown to testify as a witness in their case in chief.4 · On December 15, 2006, during the Pretrial Conference, Defendants notified the Court and counsel they were withdrawing Dr. Brown as a testifying expert witness in this matter. II. A. LEGAL ARGUMENTS. Definition of Rebuttal Expert Witness. Fed. R. Civ. P. 26(a)(2)(C) defines "rebuttal experts" as presenting "evidence [that] is intended solely to contradict or rebut evidence on the same subject matter identified by an initial expert witness" (emphasis added). Rebuttal evidence has been defined as "evidence offered to disprove or contradict the evidence presented by an opposing party." See Black's Law Dictionary, 236 (1996 Edition). The "function or rebuttal testimony is to explain, repel, counteract or disprove evidence of the adverse party." United States v. Lamoreaux, 422 F.3d 750, 755 (8th Cir. 2005) (citation omitted); Faigin v. Kelly, 184 F.3d 67, 85 (1st Cir. 1999) ("The principal objective of rebuttal is to permit a litigant to counter new, unforeseen facts brought out in the other side's case.") (citations omitted). Thus, "rebuttal evidence may be used to challenge the evidence or theory of an opponent ­ and not to establish a case in chief." Cates v. Sears, Roebuck & Co., 928 F.2d 679, 685 (5th Cir. 1991) ("Rebuttal must be kept in perspective; it is not to be used as a continuation of the case-in-chief."); see

See Plaintiff's Subpoena, attached hereto as Exhibit 2.

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also John Henry Wigmore, Evidence in Trials at Common Law § 1873 (1976) (rebuttal evidence should be allowed only if it is necessary to refute the opposing party's case); Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748 (Neb. 2006) ("witnesses disclosed as rebuttal witnesses testify as rebuttal witnesses, not primary witnesses, at trial"). B. Dr. Purdy Can Only Be Called To Rebut Any Opinions Offered in Defendants' Case. In this case, Dr. Purdy was not disclosed as an initial independent expert by the July 24, 2004 disclosure deadline and did not prepare a Rule 26(a)(2)(B) report regarding her opinions in this case. Instead, Dr. Purdy was only disclosed as a rebuttal witness and prepared a one page "rebuttal expert opinion" regarding the expert opinions disclosed by Dr. Brown and Dr. Carhart. Because Dr. Purdy was disclosed solely as Plaintiff's "rebuttal expert witness," she must be limited in providing "rebuttal" expert opinions or providing testimony about her treatment of Plaintiff. As outlined above, "rebuttal evidence should be allowed only if it is necessary to refute the opposing party's case." Thus, before Dr. Purdy can testify regarding her "rebuttal expert opinions," there must be some type of evidence or opinions to rebut. In other words, Defendants must first present the expert testimony of Dr. Brown or Dr. Carhart before Dr. Purdy can offer any "rebuttal expert opinions." Moreover, if neither Dr. Brown nor Dr. Carhart testify as Defendants' witnesses at trial, Dr. Purdy will not have any expert opinions to "rebut." Accordingly, Dr. Purdy's testimony must be limited to her treatment of the Plaintiff during her case in chief or to "rebuttal expert

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opinions" only if Dr. Brown or Dr. Carhart testify as Defendants expert witnesses at trial. C. Dr. Purdy Cannot Offer "Initial" Opinions in Plaintiff's Case in Chief Regarding Causation.

Plaintiff may argue that Dr. Purdy, as Plaintiff's treating physician, is entitled to testify regarding her care and treatment of the Plaintiff and about the "cause" of Plaintiff's injury in Plaintiff's case in chief, regardless of whether Defendants call their experts at trial. Plaintiff's argument fails for two reasons. First, Plaintiff did not comply with the Rule 16 Scheduling Order requirements that all witnesses with opinions must prepare a Rule 26(a)(2)(B) Report. This provision in the Order is clear and is designed to prevent surprise. Dr. Purdy's Rule 26(a)(2)(B) Report does not include the care and treatment of the Plaintiff or render causation opinions. It is clearly merely reactionary to Defendants' expert reports and intended as rebuttal, not to be used as an initial report of her opinions regarding care and causation. Second, Dr. Purdy lacks foundation to testify regarding how the injury occurred. She has never been provided with the Defendants' depositions or information and cannot form an adequate basis to conclude who or how Plaintiff's elbow was injured. In sum, Dr. Purdy's "opinions" regarding care and causation should be disallowed as neither properly disclosed or developed with proper foundation.

III.

CONCLUSION. Based on the foregoing, Defendants respectfully request this Court grant

Defendants' Motion in Limine Regarding Dr. Purdy's "rebuttal expert opinions" at trial.
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DATED this 4th day of January, 2007. JONES, SKELTON & HOCHULI, P.L.C.

By s/ Jennifer L. Holsman Kathleen L. Wieneke Jennifer L. Holsman 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Griffin, Dunn, Lynde and Monson

Electronically filed and served this 4th day of January, 2007, to: ALL PARTIES ON ELECTRONIC SERVICE LIST COPY mailed this same date to: The Hon Rosalyn O. Silver United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 624 401 West Washington Street, SPC 59 Phoenix, Arizona 85003 By: s/Peggy Sue Trakes

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