3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 URSZULA BRUMER, et al., Case No. 3:17-cv-00576-MMD-WGC
7 Plaintiffs, ORDER v. 8 LAURIE ANN GRAY, 9 Defendant. 10 11 I. SUMMARY 12 This case arose out of a motor vehicle accident in which Plaintiffs Urszula Brumer 13 and Malgorzata Kasprzak-Guzek allegedly sustained physical injuries after being rear- 14 ended by Defendant Laurie Gray on Nevada Highway 88.1 Before the Court is Plaintiffs’ 15 Motion in Limine to Exclude Expert Testimony of James S. Forage, M.D. (the “Motion”).2 16 (ECF No. 56.) For the reasons explained below, the Court will grant the Motion. 17 II. LEGAL STANDARD 18 A motion in limine is a procedural mechanism made in advance to limit testimony 19 or evidence in a particular area. United States v. Heller, 551 F.3d 1108, 1111 (9th 20 Cir.2009). It is a preliminary motion that is entirely within the discretion of the Court. See 21 Luce v. United States, 469 U.S. 38, 41-42 (1984). To exclude evidence on a motion in 22 limine, “the evidence must be inadmissible on all potential grounds.” See, e.g., Ind. Ins. 23 Co. v. Gen. Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004). “Unless evidence meets 24 this high standard, evidentiary rulings should be deferred until trial so that questions of 25
26 1The discovery deadline is February 20, 2019 (ECF No. 30 at 1, 4), and jury trial 27 has been set for July 7, 2020 (ECF No. 70 at 18).
28 2The Court has also reviewed Defendant’s response (ECF No. 60) and Plaintiffs’ reply (ECF No. 64). 2 Hawthorne Partners v. AT & T Tech., Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993). This 3 is because although rulings on motions in limine may save “time, cost, effort and 4 preparation, a court is almost always better situated during the actual trial to assess the 5 value and utility of evidence.” Wilkins v. Kmart Corp., 487 F. Supp. 2d 1216, 1218 (D. Kan. 6 2007). 7 III. DISCUSSION 8 Defendant’s expert Dr. Forage is a neurosurgeon who has opined that Plaintiffs’ 9 injuries stem from Plaintiffs’ social and psychological factors, not the accident in question. 10 (ECF Nos. 60-3 at 7-8, 60-4 at 4-5, 60-5 at 2, 60-6 at 3, 60-7 at 3, 60-8 at 3.) Plaintiffs 11 seek to exclude Dr. Forage’s testimony on the ground that he has relied on an unreliable 12 causation method—the American Medical Association’s six-step protocol and 13 “biopsychological model” (collectively the “AMA Guides”). (ECF No. 56 at 8-12.) Defendant 14 counters that the AMA Guides have been rigorously peer-reviewed and is widely accepted 15 by experts (ECF No. 60 at 6-7), and that Dr. Forage has fully and accurately applied the 16 AMA Guides to the facts of this case in preparing his expert report (id. at 9-13). However, 17 Defendant has not provided evidence to support her latter argument; therefore, the Court 18 will grant the Motion.3 19 The proponent of the expert opinion testimony—namely Defendant—must 20 establish its admissibility by a “preponderance of proof.” Tokidoki, LLC v. Fortune 21 Dynamic, Inc. (“Tokidoki”), Case No. CV071923DSFPJWX, 2008 WL 11338772, at *1 22 (C.D. Cal. Sept. 29, 2008) (citing to Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 23 592 n.10 (1993)). Under Rule 702, “[a] witness who is qualified as an expert by knowledge, 24 skill, experience, training, or education may testify in the form of an opinion or otherwise 25 if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of 26
27 3While the Court does not address the merits of Defendant’s first argument, the Court will note for Defendant’s benefit that many of her assertions regarding the wide 28 acceptance of the AMA Guides are conclusory and scant in citation and evidence. (ECF No. 60 at 6.) 2 on sufficient facts or data; (c) the testimony is the product of reliable principles and 3 methods; and (d) the expert has reliably applied the principles and methods to the facts of 4 the case.” Fed. R. Evid. 702 (emphasis added). The Supreme Court provided additional 5 guidance on Rule 702 in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, and 6 Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). In Daubert, the Court held that 7 scientific testimony must be reliable and relevant to be admissible. Daubert, 509 U.S. at 8 589. Kumho Tire clarified that Daubert’s principles also apply to technical and specialized 9 knowledge. See Kumho, 526 U.S. at 141. 10 Under Daubert, a court may use the following factors to assess reliability: (1) 11 whether a scientific theory or technique can be (and has been) tested; whether the theory 12 or technique has been subjected to peer review and publication; (2) the known or potential 13 rate of error and the existence and maintenance of standards controlling the techniques 14 operation; and (3) whether the technique is generally accepted. Daubert, 509 U.S. at 593- 15 94. However, the “test of reliability is ‘flexible,’ and Daubert’s list of specific factors neither 16 necessarily or exclusively applies to all experts or in every case.” Kumho, 526 U.S. at 141. 17 The trial court has “considerable leeway” in deciding how to determine the reliability of an 18 expert’s testimony and whether the testimony is in fact reliable. Id. at 152. 19 The Court will grant the Motion because Defendant has not shown that Dr. Forage 20 “reliably applied the principles and methods [of the AMA Guides] to the facts of the case.” 21 Fed. R. Evid. 702. Plaintiffs have repeatedly requested materials that Dr. Forage relied on 22 in applying the AMA Guides (see ECF Nos. 56-11 at 5, 56-12), but Defendant has only 23 disclosed those materials after Plaintiffs filed this Motion (ECF No. 60 at 6-7; ECF No. 64 24 at 4), well past the discovery cut-off date of February 20, 2019 (ECF No. 30 at 1, 4).4 25
26 4Because the headings in Dr. Forage’s expert report corresponded with those set out in an article by Dr. Robert J. Barth, Plaintiffs presumed that Dr. Forage relied on Dr. 27 Barth’s article in forming his expert opinion (ECF No. 56-1 at 27-28; see also ECF No. 56 at 9). Thus, Plaintiffs’ Motion uses Dr. Barth’s article as a point of reference in arguing why 28 Dr. Forage’s scientific method is unreliable and how he failed to fully and accurately apply (fn. cont…) 1 || Defendant references two books—each of which contain hundreds of pages—but fails to 2 || attach or cite to any particular pages in support of her opposition. (ECF No. 60 at 6-7 3 || (citing to AMERICAN MEDICAL ASSOCIATION, GUIDES TO THE EVALUATION OF PERMANENT 4 || IMPAIRMENT (6th ed. 2007), and J. MARK MELHORN, ET AL., AMA GUIDES TO THE EVALUATION 5 || OF DISEASE AND INJURY CAUSATION (2nd ed. 2013)).) Without it, the Court cannot determine 6 || whether Dr. Forage has reliably applied the principles and methods of the AMA Guides to 7 || the facts of the case. See Fed. R. Evid. 702. Accordingly, Defendant has not shown by a 8 || preponderance of proof that Dr. Forage’s statements are admissible under Rule 702.
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3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 URSZULA BRUMER, et al., Case No. 3:17-cv-00576-MMD-WGC
7 Plaintiffs, ORDER v. 8 LAURIE ANN GRAY, 9 Defendant. 10 11 I. SUMMARY 12 This case arose out of a motor vehicle accident in which Plaintiffs Urszula Brumer 13 and Malgorzata Kasprzak-Guzek allegedly sustained physical injuries after being rear- 14 ended by Defendant Laurie Gray on Nevada Highway 88.1 Before the Court is Plaintiffs’ 15 Motion in Limine to Exclude Expert Testimony of James S. Forage, M.D. (the “Motion”).2 16 (ECF No. 56.) For the reasons explained below, the Court will grant the Motion. 17 II. LEGAL STANDARD 18 A motion in limine is a procedural mechanism made in advance to limit testimony 19 or evidence in a particular area. United States v. Heller, 551 F.3d 1108, 1111 (9th 20 Cir.2009). It is a preliminary motion that is entirely within the discretion of the Court. See 21 Luce v. United States, 469 U.S. 38, 41-42 (1984). To exclude evidence on a motion in 22 limine, “the evidence must be inadmissible on all potential grounds.” See, e.g., Ind. Ins. 23 Co. v. Gen. Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004). “Unless evidence meets 24 this high standard, evidentiary rulings should be deferred until trial so that questions of 25
26 1The discovery deadline is February 20, 2019 (ECF No. 30 at 1, 4), and jury trial 27 has been set for July 7, 2020 (ECF No. 70 at 18).
28 2The Court has also reviewed Defendant’s response (ECF No. 60) and Plaintiffs’ reply (ECF No. 64). 2 Hawthorne Partners v. AT & T Tech., Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993). This 3 is because although rulings on motions in limine may save “time, cost, effort and 4 preparation, a court is almost always better situated during the actual trial to assess the 5 value and utility of evidence.” Wilkins v. Kmart Corp., 487 F. Supp. 2d 1216, 1218 (D. Kan. 6 2007). 7 III. DISCUSSION 8 Defendant’s expert Dr. Forage is a neurosurgeon who has opined that Plaintiffs’ 9 injuries stem from Plaintiffs’ social and psychological factors, not the accident in question. 10 (ECF Nos. 60-3 at 7-8, 60-4 at 4-5, 60-5 at 2, 60-6 at 3, 60-7 at 3, 60-8 at 3.) Plaintiffs 11 seek to exclude Dr. Forage’s testimony on the ground that he has relied on an unreliable 12 causation method—the American Medical Association’s six-step protocol and 13 “biopsychological model” (collectively the “AMA Guides”). (ECF No. 56 at 8-12.) Defendant 14 counters that the AMA Guides have been rigorously peer-reviewed and is widely accepted 15 by experts (ECF No. 60 at 6-7), and that Dr. Forage has fully and accurately applied the 16 AMA Guides to the facts of this case in preparing his expert report (id. at 9-13). However, 17 Defendant has not provided evidence to support her latter argument; therefore, the Court 18 will grant the Motion.3 19 The proponent of the expert opinion testimony—namely Defendant—must 20 establish its admissibility by a “preponderance of proof.” Tokidoki, LLC v. Fortune 21 Dynamic, Inc. (“Tokidoki”), Case No. CV071923DSFPJWX, 2008 WL 11338772, at *1 22 (C.D. Cal. Sept. 29, 2008) (citing to Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 23 592 n.10 (1993)). Under Rule 702, “[a] witness who is qualified as an expert by knowledge, 24 skill, experience, training, or education may testify in the form of an opinion or otherwise 25 if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of 26
27 3While the Court does not address the merits of Defendant’s first argument, the Court will note for Defendant’s benefit that many of her assertions regarding the wide 28 acceptance of the AMA Guides are conclusory and scant in citation and evidence. (ECF No. 60 at 6.) 2 on sufficient facts or data; (c) the testimony is the product of reliable principles and 3 methods; and (d) the expert has reliably applied the principles and methods to the facts of 4 the case.” Fed. R. Evid. 702 (emphasis added). The Supreme Court provided additional 5 guidance on Rule 702 in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, and 6 Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). In Daubert, the Court held that 7 scientific testimony must be reliable and relevant to be admissible. Daubert, 509 U.S. at 8 589. Kumho Tire clarified that Daubert’s principles also apply to technical and specialized 9 knowledge. See Kumho, 526 U.S. at 141. 10 Under Daubert, a court may use the following factors to assess reliability: (1) 11 whether a scientific theory or technique can be (and has been) tested; whether the theory 12 or technique has been subjected to peer review and publication; (2) the known or potential 13 rate of error and the existence and maintenance of standards controlling the techniques 14 operation; and (3) whether the technique is generally accepted. Daubert, 509 U.S. at 593- 15 94. However, the “test of reliability is ‘flexible,’ and Daubert’s list of specific factors neither 16 necessarily or exclusively applies to all experts or in every case.” Kumho, 526 U.S. at 141. 17 The trial court has “considerable leeway” in deciding how to determine the reliability of an 18 expert’s testimony and whether the testimony is in fact reliable. Id. at 152. 19 The Court will grant the Motion because Defendant has not shown that Dr. Forage 20 “reliably applied the principles and methods [of the AMA Guides] to the facts of the case.” 21 Fed. R. Evid. 702. Plaintiffs have repeatedly requested materials that Dr. Forage relied on 22 in applying the AMA Guides (see ECF Nos. 56-11 at 5, 56-12), but Defendant has only 23 disclosed those materials after Plaintiffs filed this Motion (ECF No. 60 at 6-7; ECF No. 64 24 at 4), well past the discovery cut-off date of February 20, 2019 (ECF No. 30 at 1, 4).4 25
26 4Because the headings in Dr. Forage’s expert report corresponded with those set out in an article by Dr. Robert J. Barth, Plaintiffs presumed that Dr. Forage relied on Dr. 27 Barth’s article in forming his expert opinion (ECF No. 56-1 at 27-28; see also ECF No. 56 at 9). Thus, Plaintiffs’ Motion uses Dr. Barth’s article as a point of reference in arguing why 28 Dr. Forage’s scientific method is unreliable and how he failed to fully and accurately apply (fn. cont…) 1 || Defendant references two books—each of which contain hundreds of pages—but fails to 2 || attach or cite to any particular pages in support of her opposition. (ECF No. 60 at 6-7 3 || (citing to AMERICAN MEDICAL ASSOCIATION, GUIDES TO THE EVALUATION OF PERMANENT 4 || IMPAIRMENT (6th ed. 2007), and J. MARK MELHORN, ET AL., AMA GUIDES TO THE EVALUATION 5 || OF DISEASE AND INJURY CAUSATION (2nd ed. 2013)).) Without it, the Court cannot determine 6 || whether Dr. Forage has reliably applied the principles and methods of the AMA Guides to 7 || the facts of the case. See Fed. R. Evid. 702. Accordingly, Defendant has not shown by a 8 || preponderance of proof that Dr. Forage’s statements are admissible under Rule 702. See 9 || Tokidoki, 2008 WL 11338772, at “1 (citing to Daubert, 509 U.S. at 592 n.10); see also 10 || Hirata v. S. Nevada Health Dist., No. 2:13-cv-2302-LDG-VCF, 2017 WL 1073358, at *3 11 || (D. Nev. Mar. 21, 2017) (excluding expert testimony where plaintiffs did not meet their 12 || burden of showing that their expert reliably applied his experience and knowledge to the 13 || facts of the case). The Court will therefore grant Plaintiff's Motion and exclude Dr. Forage’s 14 || testimony. 15 || IV. CONCLUSION 16 The Court notes that the parties made several arguments and cited to several cases 17 || not discussed above. The Court has reviewed these arguments and cases and determines 18 || that they do not warrant discussion as they do not affect the outcome of the Motion before 19 || the Court. 20 It is therefore ordered that Plaintiffs’ First Motion in Limine to Exclude Expert 21 || Testimony of James S. Forage, M.D. (ECF No. 56) is granted. 22 DATED THIS 21* day of January 2020. 93 A (
24 WHIRANDA M. DU —
95 CHIEF UNITED STATES DISTRICT JUDGE
26 || Dr. Barth’s method. (ECF No. 56 at 8-16.) Defendant counters that Dr. Forage did not rely on Dr. Barth’s article and therefore Plaintiffs’ arguments are irrelevant. (ECF No. 60 at 7- 27 || 8.) While the Court may agree with Defendant, the Court is mindful that Defendant’s dilatory tactic has put Plaintiffs in this position—had Defendant disclosed early on what 28 || portions of the AMA Guides that Dr. Forage relied on, Plaintiffs would have been better equipped to rebut Dr. Forage’s opinions.