THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 MICHAEL D. GORDON, et al., CASE NO. C20-0980-JCC 10 Plaintiffs, ORDER 11 v. 12 UNITED STATES OF AMERICA, 13 Defendant. 14
15 This matter comes before the Court on Plaintiff Michael D. Gordon’s motion to allow 16 expert testimony (Dkt. No. 15). Having thoroughly considered the parties’ briefing and the 17 relevant record, the Court GRANTS the motion for the reasons explained herein. 18 I. BACKGROUND 19 Plaintiff Michael D. Gordon sues the United States of America under the Federal Tort 20 Claims Act, alleging that he received negligent medical treatment from the Department of 21 Veterans Affairs (“VA”) Puget Sound Health Care System. (See generally Dkt. No. 1.) 22 Specifically, Mr. Gordon alleges that his VA doctors failed to test him for prostate cancer when 23 they should have and as a result his cancer advanced and metastasized before it was finally 24 diagnosed. (Id. at 5.) 25 In his initial disclosures to the United States, Mr. Gordon identified Dr. Richard Boxer as 26 his medical expert. (Dkt. No. 15 at 9.) Dr. Boxer is a Board-Certified Professor of Urology at the 1 David Geffen School of Medicine at the University of California Los Angeles. (Id. at 12.) He 2 also provides medical services to patients at the West Los Angeles VA Hospital as a “fee-based 3 affiliate,” and has done so since 2013. (Id. at 12–13.) 4 In February 2021, Mr. Gordon produced to the United States an expert opinion from Dr. 5 Boxer. (Id. at 9.) In response, the United States asked Mr. Gordon to voluntarily withdraw Dr. 6 Boxer as an expert witness based on 38 C.F.R. § 14.808. (Id. at 9–10.) The United States further 7 indicated that if Mr. Gordon would not agree to do so, “we need to bring this issue to the 8 attention of the Court.” (Id. at 10.) Mr. Gordon declined to voluntarily withdraw Dr. Boxer, and 9 he now asks the Court to enter an order allowing Dr. Boxer’s expert testimony in this matter 10 notwithstanding 38 C.F.R. § 14.808. (See generally Dkt. No. 15.) 11 II. DISCUSSION 12 38 C.F.R. § 14.808(a) provides, in relevant part, that “ VA personnel shall not 13 provide[] . . . opinion or expert testimony in any legal proceedings concerning official VA 14 information, subjects or activities, except on behalf of the United States or a party represented by 15 the United States Department of Justice.” Mr. Gordon argues that the Court should allow Dr. 16 Boxer to give expert testimony notwithstanding the regulation because the regulation cannot 17 validly govern the admissibility of expert testimony. (Dkt. No. 15 at 3–6.) The United States 18 argues that the Court should preclude Dr. Boxer’s expert testimony pursuant to the regulation. 19 (Dkt. No. 17 at 5.) Therefore, Mr. Gordon’s motion presents the narrow question of whether 38 20 C.F.R. § 14.808 governs the admissibility of expert testimony and requires the Court to exclude 21 Dr. Boxer. 22 While the Ninth Circuit has not directly addressed the validity of 38 C.F.R. § 14.808, it 23 has addressed the validity of other regulatory restrictions on the testimony of executive branch 24 employees (often called Touhy regulations), which, like 38 C.F.R. § 14.808, were promulgated 25 pursuant to the Federal Housekeeping Statute, 5 U.S.C. § 301.1 Exxon Shipping Co. v. U.S. Dep’t
26 1 That statute provides: 1 of Interior, 34 F.3d 774, 776–79 (9th Cir. 1994). In Exxon Shipping Co., the Ninth Circuit 2 examined the legislative history of the Federal Housekeeping Statute and held that the statute 3 does not grant executive agencies authority to withhold documents or testimony from federal 4 courts. Id. at 777–78. The Ninth Circuit specifically rejected the federal government’s argument 5 that section 301 authorized it to enact regulations prohibiting its employees from testifying in 6 judicial proceedings because section 301 grants the head of an executive department the 7 authority to control “the conduct of its employees.” Id. Accordingly, under Ninth Circuit 8 authority, a Touhy regulation like 38 C.F.R. § 14.808 does not provide an independent ground of 9 privilege, and a district court cannot strike expert witnesses on that basis alone. See, e.g., Roy v. 10 Cnty. of Los Angeles, 2018 WL 914773, slip op. at 11 (C.D. Cal. 2018) (denying motion to strike 11 expert declarations by former Immigration and Customs Enforcement and U.S. Citizenship and 12 Immigration Services employees based on Plaintiffs’ failure to comply with the Department of 13 Homeland Security’s Touhy regulations); Carter v. Mississippi Dep’t of Corr., 1996 WL 407241, 14 slip op. at 3 (N.D. Miss. 1996) (denying Defendants’ motion in limine to exclude testimony from 15 Plaintiff’s proposed expert, a VA physician, because under Exxon Shipping Co., section 301 does 16 not create an independent privilege, and, “[w]ithout a specific grant of power by Congress to do 17 so, executive agencies lack the authority to issue dictates to the court regarding the admissibility 18 of evidence”). Instead, district courts must look to the Federal Rules of Civil Procedure and the 19 Federal Rules of Evidence in deciding questions about the discovery and admissibility of expert 20 testimony. Id. 21 Decisions from other jurisdictions are in accord with the Ninth Circuit. See Spears v. 22
23 The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and 24 performance of its business, and the custody, use, and preservation of its records, papers, 25 and property. This section does not authorize withholding information from the public or limiting the availability of records to the public. 26 5 U.S.C. § 301. 1 United States, 2014 WL 258766, slip op. at 4–6 (W.D. Tex. Jan. 23, 2014) (denying Defendant’s 2 motion to strike Plaintiff’s expert, an Army doctor, pursuant to Touhy regulations prohibiting 3 Army personnel from providing opinion or expert testimony for a party other than the United 4 States); Gulf Grp. Gen. Enterprises Co. W.L.L. v. United States, 98 Fed. Cl. 639, 643–47 (2011) 5 (denying motion in limine to exclude Plaintiff’s proposed expert’s testimony and reports based 6 on the Army’s Touhy regulation prohibiting any former Army personnel from testifying as an 7 expert witness adverse to the interests of the United States); Romero v. United States, 153 F.R.D. 8 649, 652 (D. Colo. 1994) (holding that the Army’s Touhy regulations did not bar Plaintiff from 9 calling an Army doctor as a witness and asking for his opinion testimony because “the Federal 10 Rules of Evidence control his testimony, not administrative regulations promulgated by the 11 Department of the Army”).
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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 MICHAEL D. GORDON, et al., CASE NO. C20-0980-JCC 10 Plaintiffs, ORDER 11 v. 12 UNITED STATES OF AMERICA, 13 Defendant. 14
15 This matter comes before the Court on Plaintiff Michael D. Gordon’s motion to allow 16 expert testimony (Dkt. No. 15). Having thoroughly considered the parties’ briefing and the 17 relevant record, the Court GRANTS the motion for the reasons explained herein. 18 I. BACKGROUND 19 Plaintiff Michael D. Gordon sues the United States of America under the Federal Tort 20 Claims Act, alleging that he received negligent medical treatment from the Department of 21 Veterans Affairs (“VA”) Puget Sound Health Care System. (See generally Dkt. No. 1.) 22 Specifically, Mr. Gordon alleges that his VA doctors failed to test him for prostate cancer when 23 they should have and as a result his cancer advanced and metastasized before it was finally 24 diagnosed. (Id. at 5.) 25 In his initial disclosures to the United States, Mr. Gordon identified Dr. Richard Boxer as 26 his medical expert. (Dkt. No. 15 at 9.) Dr. Boxer is a Board-Certified Professor of Urology at the 1 David Geffen School of Medicine at the University of California Los Angeles. (Id. at 12.) He 2 also provides medical services to patients at the West Los Angeles VA Hospital as a “fee-based 3 affiliate,” and has done so since 2013. (Id. at 12–13.) 4 In February 2021, Mr. Gordon produced to the United States an expert opinion from Dr. 5 Boxer. (Id. at 9.) In response, the United States asked Mr. Gordon to voluntarily withdraw Dr. 6 Boxer as an expert witness based on 38 C.F.R. § 14.808. (Id. at 9–10.) The United States further 7 indicated that if Mr. Gordon would not agree to do so, “we need to bring this issue to the 8 attention of the Court.” (Id. at 10.) Mr. Gordon declined to voluntarily withdraw Dr. Boxer, and 9 he now asks the Court to enter an order allowing Dr. Boxer’s expert testimony in this matter 10 notwithstanding 38 C.F.R. § 14.808. (See generally Dkt. No. 15.) 11 II. DISCUSSION 12 38 C.F.R. § 14.808(a) provides, in relevant part, that “ VA personnel shall not 13 provide[] . . . opinion or expert testimony in any legal proceedings concerning official VA 14 information, subjects or activities, except on behalf of the United States or a party represented by 15 the United States Department of Justice.” Mr. Gordon argues that the Court should allow Dr. 16 Boxer to give expert testimony notwithstanding the regulation because the regulation cannot 17 validly govern the admissibility of expert testimony. (Dkt. No. 15 at 3–6.) The United States 18 argues that the Court should preclude Dr. Boxer’s expert testimony pursuant to the regulation. 19 (Dkt. No. 17 at 5.) Therefore, Mr. Gordon’s motion presents the narrow question of whether 38 20 C.F.R. § 14.808 governs the admissibility of expert testimony and requires the Court to exclude 21 Dr. Boxer. 22 While the Ninth Circuit has not directly addressed the validity of 38 C.F.R. § 14.808, it 23 has addressed the validity of other regulatory restrictions on the testimony of executive branch 24 employees (often called Touhy regulations), which, like 38 C.F.R. § 14.808, were promulgated 25 pursuant to the Federal Housekeeping Statute, 5 U.S.C. § 301.1 Exxon Shipping Co. v. U.S. Dep’t
26 1 That statute provides: 1 of Interior, 34 F.3d 774, 776–79 (9th Cir. 1994). In Exxon Shipping Co., the Ninth Circuit 2 examined the legislative history of the Federal Housekeeping Statute and held that the statute 3 does not grant executive agencies authority to withhold documents or testimony from federal 4 courts. Id. at 777–78. The Ninth Circuit specifically rejected the federal government’s argument 5 that section 301 authorized it to enact regulations prohibiting its employees from testifying in 6 judicial proceedings because section 301 grants the head of an executive department the 7 authority to control “the conduct of its employees.” Id. Accordingly, under Ninth Circuit 8 authority, a Touhy regulation like 38 C.F.R. § 14.808 does not provide an independent ground of 9 privilege, and a district court cannot strike expert witnesses on that basis alone. See, e.g., Roy v. 10 Cnty. of Los Angeles, 2018 WL 914773, slip op. at 11 (C.D. Cal. 2018) (denying motion to strike 11 expert declarations by former Immigration and Customs Enforcement and U.S. Citizenship and 12 Immigration Services employees based on Plaintiffs’ failure to comply with the Department of 13 Homeland Security’s Touhy regulations); Carter v. Mississippi Dep’t of Corr., 1996 WL 407241, 14 slip op. at 3 (N.D. Miss. 1996) (denying Defendants’ motion in limine to exclude testimony from 15 Plaintiff’s proposed expert, a VA physician, because under Exxon Shipping Co., section 301 does 16 not create an independent privilege, and, “[w]ithout a specific grant of power by Congress to do 17 so, executive agencies lack the authority to issue dictates to the court regarding the admissibility 18 of evidence”). Instead, district courts must look to the Federal Rules of Civil Procedure and the 19 Federal Rules of Evidence in deciding questions about the discovery and admissibility of expert 20 testimony. Id. 21 Decisions from other jurisdictions are in accord with the Ninth Circuit. See Spears v. 22
23 The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and 24 performance of its business, and the custody, use, and preservation of its records, papers, 25 and property. This section does not authorize withholding information from the public or limiting the availability of records to the public. 26 5 U.S.C. § 301. 1 United States, 2014 WL 258766, slip op. at 4–6 (W.D. Tex. Jan. 23, 2014) (denying Defendant’s 2 motion to strike Plaintiff’s expert, an Army doctor, pursuant to Touhy regulations prohibiting 3 Army personnel from providing opinion or expert testimony for a party other than the United 4 States); Gulf Grp. Gen. Enterprises Co. W.L.L. v. United States, 98 Fed. Cl. 639, 643–47 (2011) 5 (denying motion in limine to exclude Plaintiff’s proposed expert’s testimony and reports based 6 on the Army’s Touhy regulation prohibiting any former Army personnel from testifying as an 7 expert witness adverse to the interests of the United States); Romero v. United States, 153 F.R.D. 8 649, 652 (D. Colo. 1994) (holding that the Army’s Touhy regulations did not bar Plaintiff from 9 calling an Army doctor as a witness and asking for his opinion testimony because “the Federal 10 Rules of Evidence control his testimony, not administrative regulations promulgated by the 11 Department of the Army”). 12 The United States argues that Spears, Gulf Group General Enterprises Co., and another 13 case relied on by Mr. Gordon are distinguishable because those cases involved “expert testimony 14 from former government employees uniquely positioned to provide it and for which no non- 15 government current or former employee could provide.” (Dkt. No. 17 at 2.) But the fact that the 16 witnesses in those cases were uniquely positioned to give the relevant expert testimony was not 17 dispositive of the outcome. Instead, those cases simply concluded that, based on the text and 18 legislative history of 5 U.S.C. § 301 and the weight of authority interpreting it, the statute did 19 not authorize executive agencies to limit the availability of records or testimony to the public. 20 See Spears, 2014 WL 258766, slip op. at 6; Gulf Grp. Gen. Enterprises Co. W.L.L., 98 Fed. Cl. 21 at 643–47. The United States also cites several cases where courts granted motions to strike 22 expert testimony based on 38 C.F.R. § 14.808. (Dkt. No. 17 at 4.) But these cases are contrary to 23 the Ninth Circuit’s decision in Exxon Shipping Co. and the weight of authority on this subject. 24 Accordingly, the Court GRANTS Mr. Gordon’s motion to the extent that the Court 25 concludes 38 C.F.R. § 14.808 is not a sufficient basis to exclude Dr. Boxer’s expert testimony. 26 1 III. CONCLUSION 2 For the foregoing reasons, the Court GRANTS Plaintiff’s motion to allow expert 3 testimony (Dkt. No. 15). The Court further DIRECTS Plaintiff to provide a copy of this order to 4 Dr. Boxer. 5 DATED this 6th day of August 2021. A 6 7 8 John C. Coughenour 9 UNITED STATES DISTRICT JUDGE
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