Robertson v. Dorn

• Court: District Court, E.D. Washington
• Decided: February 16, 2022
• Docket: 2:21-cv-00064
• Status: Unknown

Opinion

1 U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Feb 16, 2022 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 8 ALAN D. ROBERTSON, 9 Plaintiff, No. 2:21-CV-00064-SAB 10 v. 11 LORNE A. DORN; and KIM DORN, ORDER RE: MOTIONS 12 Defendants. 13 14 Before the Court are Plaintiff’s Motion to Exclude Defense Experts Norton, 15 Capron, and Ries, ECF No. 79; Defendants’ Motion to Continue Briefing 16 Deadlines Associated with Plaintiff’s Motion to Exclude Expert Witnesses, ECF 17 No. 94; Plaintiff’s Motion to Exclude Loftus, ECF No. 98; Providence Sacred 18 Heart Medical Center’s Motion for Protective Order, or in the Alternative, to 19 Quash or Modify Subpoena, ECF No. 125; and Providence Sacred Heart Medical 20 Center’s Motion to Expedite, ECF No. 126. Plaintiff is represented by David 21 Beninger; Mark Kamitomo; Patricia Anderson; and George Ahrend. Defendants 22 are represented by Patricia Buchanan; Megan Starks; and Sara Sutton. Providence 23 Sacred Heart Medical Center is represented by Andrew Wagley and Stephen 24 Lamberson. The motions were considered without oral argument. 25 The Court will first address Plaintiff’s Motions to Exclude. The Court will 26 then address Providence Sacred Heart Medical Center’s Motion for Protective 27 Order and Defendants’ Motion to Continue. 28 // 1 Factual Background 2 On January 30, 2020, sometime in the afternoon or evening, Plaintiff Alan 3 Robertson pulled over in his car when he saw an injured deer in the roadway. At 4 the time, Laura Liebman (Plaintiff’s partner) and Ali Wiley (Ms. Liebman’s 17- 5 year-old niece) were riding in the car with Plaintiff. Plaintiff alleges that he 6 remembers that the deer was located in the northbound lane (the lane that Plaintiff 7 was traveling in), except for its hindquarters, which were on the center line. Ms. 8 Liebman, in her deposition, also stated that she remembered seeing Plaintiff and 9 the deer in the northbound lane. However, Ms. Wiley in her deposition stated that 10 she remembered seeing the deer in the southbound lane (the lane that Defendants 11 were traveling in), closer to the center line, and that Plaintiff was trying to drag the 12 deer to the opposite shoulder of the road. Regardless, as Plaintiff was dragging the 13 deer to the side of the road, Defendants Lorne and Kim Dorn drove down the road 14 and struck Plaintiff with their pickup truck—Mr. Dorn was driving, while Mrs. 15 Dorn was in the passenger seat. Defendants were on their way home from skiing at 16 Red Mountain in British Columbia when they hit Plaintiff. Defendants allege that 17 they did not see Plaintiff or the deer in the road at the time of the collision. 18 After the collision, Plaintiff was flown to Providence Sacred Heart Medical 19 Center. While Plaintiff was in the emergency room, he received a test called the 20 serum/plasma enzymatic immunoassay (“the EIA test”), along with various other 21 tests and treatments for his injuries. Hospitals use the EIA test as an initial 22 screening test for the presence of alcohol. Specifically, the EIA test adds a reagent, 23 alcohol dehydrogenase (ADH), and a coenzyme, nicotinamide adenine 24 dinucleotide (NAD+), to a patient’s serum/plasma sample. The ADH catalyzes any 25 ethanol in the sample to acetaldehyde, which reduces NAD+ to nicotinamide 26 adenine dinucleotide hydride (NADH). Thus, the EIA test measures the resulting 27 level of NADH as a proxy for the level of alcohol in the sample. Plaintiff’s EIA 28 test showed 79 mg/dL of the NADH enzyme—Plaintiff argues that this was within 1 normal limits, whereas Defendants argue that this indicates an elevated alcohol 2 level. 3 Procedural History 4 Plaintiff filed his Complaint in the Stevens County Superior Court on 5 November 16, 2020. ECF No. 1-1. In the Complaint, Plaintiff named Defendants 6 Lorne and Kim Dorn; Desjardins General Insurance Group d/b/a Certas Home and 7 Auto Insurance Company (“Certas”); and any other John Does that may have 8 liability arising from the collision. Plaintiff asserted claims for breach of express or 9 implied terms and conditions of the insurance contract; violations of the Consumer 10 Protection Act; negligence; and estoppel from denying insurance coverage or 11 benefits. 12 Defendants removed the case to federal court on January 28, 2021, based on 13 diversity jurisdiction. ECF No. 1. On March 3, 2021, Defendant Certas filed a 14 Motion for Summary Judgment. Judge Rosanna M. Peterson granted the motion on 15 August 6, 2021, thereby dismissing Certas from the case. ECF No. 27. The case 16 was then reassigned to Chief Judge Stanley A. Bastian on October 21, 2021. ECF 17 No. 43. 18 Jury trial in this case was originally set for April 18, 2022. ECF No. 65. 19 However, due to the parties’ continued discovery disputes, the Court reset the trial 20 date to August 29, 2022. ECF No. 75. Plaintiff filed his Motion to Exclude 21 Defense Experts Norton, Capron, and Ries on December 28, 2021. ECF No. 79. 22 Defendants filed their Motion to Continue Briefing Deadlines Associated with 23 Plaintiff’s Motion to Exclude Defense Experts Norton, Capron, and Ries on 24 January 3, 2022. ECF No. 94. Plaintiff filed his Motion to Exclude Loftus on 25 January 4, 2022. ECF No. 98. Providence Sacred Heart Medical Center, an 26 interested third party, filed its Motion for Protective Order, and associated Motion 27 to Expedite, on February 6, 2022. ECF Nos. 125, 126. 28 // 1 I. Plaintiff’s Motions to Exclude 2 Plaintiff seeks to exclude three of Defendants’ expert witnesses: Mr. Brian 3 Capron, Dr. Robert Norton, and Dr. Geoffrey Loftus.1 For all three of these 4 witnesses, Plaintiff argues that their testimony should be excluded because it is 5 unreliable, irrelevant, and unduly prejudicial. For the reasons discussed below, the 6 Court denies Plaintiff’s motion to exclude Mr. Capron and Dr. Norton and grants 7 in part and denies in part Plaintiff’s motion to exclude Dr. Loftus. 8 a. Legal Standard 9 Fed. R. Evid. 702 provides the starting point for any evaluation of the 10 admissibility of expert testimony. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 11 579, 589 (1993). It states: 12 A witness who is qualified as an expert by knowledge, skill, 13 experience, training, or education may testify in the form of an 14 opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized 15 knowledge will help the trier of fact to understand the 16 evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; 17 (c) the testimony is the product of reliable principles and 18 methods; and (d) the expert has reliably applied the principles and 19 methods to the facts of the case. 20 Fed. R. Evid. 702. 21 Although Rule 702 should be applied with a “liberal thrust” favoring 22 admission, Daubert, 509 U.S. at 588, it requires that expert testimony be both 23 relevant and reliable. Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010). “Expert 24 opinion testimony is relevant if the knowledge underlying it has a valid connection 25

26 1 Plaintiff’s first motion also seeks to exclude defense expert Dr. Richard Ries. 27 ECF No. 79. However, on January 5, 2022, Defendants filed a Notice that they 28 were withdrawing Dr. Ries as a testifying expert. ECF No. 102. 1 to the pertinent inquiry. And it is reliable if the knowledge underlying it has a 2 reliable basis in the knowledge and experience of the relevant discipline.” Id. at 3 565. 4 The proponent of expert testimony has the burden of establishing that the 5 admissibility requirements are met by a preponderance of the evidence. Daubert, 6 509 U.S. at 592 n.10; Lust v. Merrell Dow Pharms. Inc., 89 F.3d 594, 598 (9th Cir. 7 1996). “Shaky, but admissible evidence is to be attacked by cross examination, 8 contrary evidence, and attention to the burden of proof, not exclusion.” Primiano, 9 598 F.3d at 564. An opinion is not excludable merely because it is impeachable. 10 Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir. 11 2013). “After an expert establishes admissibility to the judge’s satisfaction, 12 challenges that go to the weight of the evidence are within the province of a fact 13 finder, not a trial court judge. A district court should not make credibility 14 determinations that are reserved for the jury.” Pyramid Techs., Inc. v. Hartford 15 Cas. Ins. Co., 752 F.3d 807, 814 (9th Cir. 2014). “Basically, the judge is supposed 16 to screen the jury from unreliable nonsense opinions, but not exclude opinions 17 merely because they are impeachable. The district court is not tasked with deciding 18 whether the expert is right or wrong, just whether his testimony has substance such 19 that it would be helpful to the jury.” Alaska-Rent-A-Car, 738 F.3d at 969-70. 20 b. Plaintiff’s Motion to Exclude Mr. Capron and Dr. Norton 21 Plaintiff requests that the Court strike defense experts (1) Brian Capron, a 22 Forensic Toxicologist from the Washington State Patrol Toxicology Laboratory; 23 and (2) Dr. Robert Norton, MD, along with any mention of Plaintiff’s alleged 24 alcohol intoxication on the night of the accident. Plaintiff argues that such 25 testimony is unreliable under Fed. R. Evid. 702, as well as irrelevant and unduly 26 prejudicial under Fed. R. Evid. 401-403. Specifically, Plaintiff argues that the only 27 evidence to support his intoxication on the night at issue is the EIA test performed 28 by the hospital when Plaintiff was brought to the emergency room. However, 1 Plaintiff states that this EIA test has been proven to be unreliable and that the 2 results of this test have been contradicted by all other fact witnesses. Finally, 3 Plaintiff argues that this evidence is not relevant because, under Washington law, it 4 is inadmissible to prove intoxication. Thus, Plaintiff argues that the Court exclude 5 any testimony from Mr. Capron and Dr. Norton pertaining to alcohol or 6 intoxication because it “interject[s] [] speculative and prejudicial conclusions.” 7 ECF No. 79 at 2. 8 Defendants in response argue that they have not yet deposed the Person 9 Most Knowledge from Providence Sacred Heart Hospital, who would be able to 10 provide more information regarding the EIA test—specifically, whether the 11 hospital takes any precautions to prevent against false positives. Defendants also 12 argue that intoxication evidence is admissible to impeach Plaintiff’s credibility and 13 to offer a plausible explanation for the collision. Finally, Defendants argue that 14 Plaintiff is not challenging Mr. Capron and Dr. Norton’s qualifications, but instead 15 is objecting to their specific conclusions, which (1) implicate questions regarding 16 the weight of the evidence, which is the province of the jury, and (2) are 17 premature, given that the parties have not yet been able to depose a representative 18 from the hospital. 19 Plaintiff in reply argues it is disingenuous for Defendants to argue that their 20 experts had sufficient information to formulate their conclusions that Plaintiff was 21 intoxicated, but then later—once challenged—claim that the experts are missing 22 basic information regarding Plaintiff’s EIA test results. Plaintiff also argues that 23 Defendants’ experts are unreliable because they failed to account for other 24 variables that might explain Plaintiff’s NADH level. Finally, Plaintiff argues that 25 relevance under Daubert is predicated on state substantive law, which does not 26 permit intoxication evidence of the kind that Defendants are trying to offer. 27 Plaintiff objects to Mr. Capron and Dr. Norton on both reliability and 28 relevance grounds. Thus, the Court addresses each in turn. 1 Reliability 2 Plaintiff’s reliability objections primarily question whether Defendants’ 3 expert witnesses accurately interpreted the EIA test. Specifically, Plaintiff argues 4 that Defendants’ expert witnesses failed to consider factors other than alcohol that 5 may have affected Plaintiff’s EIA test results. Plaintiff also argues that the EIA test 6 results are not reliable because of the multitude of witnesses who all state that they 7 did not see Plaintiff consume alcohol before the accident. 8 However, the Court finds that Plaintiff’s reliability objections implicate 9 questions regarding the credibility and weight of the evidence, which are more 10 appropriately determined by the jury. See Primiano, 598 F.3d at 564 (“Shaky, but 11 admissible evidence is to be attacked by cross examination, contrary evidence, and 12 attention to the burden of proof, not exclusion.”). 13 Relevance 14 Plaintiff also argues that Defendants’ intoxication evidence is irrelevant. 15 Specifically, Plaintiff argues that, in order to prove an intoxication defense under 16 Washington law, Defendants must show beyond a reasonable doubt that Plaintiff 17 was either (1) per se intoxicated or (2) non-per se intoxicated. Plaintiff states that, 18 to show per se intoxication, Defendants would need to provide a blood or a breath 19 test that satisfies the standards adopted by the Washington State toxicologist— 20 which the EIA test does not. Conversely, to prove non-per se intoxication, 21 Defendants would have to provide evidence of a non-approved test along with 22 additional corroborating evidence of Plaintiff’s intoxication—which Plaintiff 23 argues that Defendants do not have. Thus, Plaintiff argues that any evidence of his 24 purported intoxication is irrelevant. 25 Defendants in response argue that they can present sufficient evidence to 26 show non-per se intoxication, specifically (1) the EIA test results and (2) testimony 27 about Plaintiff’s behavior prior to the accident, which can demonstrate his 28 1 impaired judgment, dangerous behavior, reduced reaction time, and affected visual 2 abilities. 3 Plaintiff in reply reiterates that Defendants have no additional corroborating 4 evidence of Plaintiff’s intoxication. Additionally, Plaintiff states that—if 5 Defendants’ argument is that Plaintiff did not get out of the way fast enough, 6 which thereby contributed to the accident—Defendants do not need to rely on 7 intoxication evidence to make this argument. Thus, Plaintiff states that Defendants’ 8 intoxication evidence should be excluded as irrelevant and unduly prejudicial. 9 The Court denies Plaintiff’s motion. Under Washington state law, a 10 defendant can prove an affirmative defense of intoxication in a personal injury 11 action if the defendant can show (1) the plaintiff was under the influence of alcohol 12 at the time of the injury; (2) the plaintiff’s intoxication was a proximate cause of 13 the injury; and (3) the trier of fact finds that the plaintiff was more than fifty 14 percent at fault. Wash. Rev. Code § 5.40.060(1). 15 Washington courts have found that the defendant must place careful 16 emphasis on the proximate cause element. Specifically, a defendant cannot merely 17 introduce evidence of a plaintiff’s intoxication and have an expert testify that— 18 given the plaintiff’s blood alcohol content—it is likely that the plaintiff’s 19 intoxication caused them to act in a way that proximately caused the accident. 20 Gerlach v. Cove Apartments, LLC, 196 Wash. 2d 111, 123-24 (2020) 21 (“[Defendant] Cove offered the BAC results and Dr. Vincenzi’s testimony to prove 22 [Plaintiff] Gerlach’s intoxication was a proximate cause of her injuries and that she 23 was than 50 percent at fault. But . . . Dr. Vincenzi’s proffered testimony was 24 merely speculative as to Gerlach’s behavior. He was going to speak to the general 25 effects of intoxication, not the effect it actually had on Gerlach.); see also State v. 26 Lewis, 141 Wash. App. 367, 389 (2007). 27 But a defendant can still introduce evidence of the plaintiff’s intoxication to 28 satisfy the first element of the affirmative defense: that the plaintiff was under the 1 influence of alcohol at the time of the injury. Fite v. Mudd, __ Wash. App. __, 498 2 P.3d 538, 546 (Wash. Ct. App. 2021) (“Gerlach’s holding is narrower than a 3 blanket exclusion of all urinalyses or toxicology reports showing the presence of 4 intoxicants . . . . Instead, Gerlach only prohibits [a defendant] from relying solely 5 on such a report to supportive the affirmative defense . . . . the urine screening here 6 is still available for our de novo consideration of whether there was an issue of fact 7 as to [Plaintiff’s] intoxication.”). 8 There are two ways to prove intoxication under Washington law: (1) per se 9 intoxication and (2) non-per se intoxication. See Wash. Rev. Code §§ 5.40.060(1), 10 46.61.502; see also State v. Donahue, 105 Wash. App. 67, 73 (2001). Per se 11 intoxication is when a person is found to have an alcohol concentration of 0.08 or 12 higher as shown by an analysis of the person’s breath or blood made under Wash. 13 Rev. Code § 46.61.506. Wash Rev. Code § 46.61.502(1)(a). On the other hand, 14 non-per se intoxication is when there is other competent evidence to show that a 15 person was under the influence of or affected by intoxicating liquor. Wash Rev. 16 Code § 46.61.502(1)(b)-(c). 17 In order for a breath or blood test to satisfy per se intoxication, the test must 18 have been “performed according to methods approved by the [Washington] state 19 toxicologist and by an individual possessing a valid permit issued by the state 20 toxicologist for this purpose.” Wash. Rev. Code § 46.61.506(3); Wash. Admin. 21 Code 448-14-010. Here, because Plaintiff’s EIA test was performed by the hospital 22 as part of his medical treatment, the Court agrees that the EIA test is insufficient to 23 prove per se intoxication. See Armstrong v. Masker, 2005 WL 762481 * 6 (Wash. 24 Ct. App. 2005). 25 However, an EIA test can be used to argue in support of non-per se 26 intoxication. Evidence that courts consider when determining non-per se 27 intoxication include whether there are positive blood or breath tests indicating 28 intoxication; whether the plaintiff admitted to their own intoxication; whether there 1 is witness testimony about the plaintiff’s consumption of alcohol; and whether 2 there is witness testimony about the plaintiff acting in a manner consistent with 3 intoxication. See Fite, 498 P.3d at 546 (finding sufficient evidence to support a 4 dispute of material fact regarding the plaintiff’s intoxication where there was a 5 positive urine screening, the plaintiff’s admission, and evidence of behavior 6 consistent with intoxication); Gerlach, 196 Wash. 2d at 126 (noting that none of 7 the plaintiff’s companions testified as to how many drinks she consumed or 8 whether she was extremely intoxicated); Peralta v. State, 187 Wash. 2d 888, 903 9 (2017) (the plaintiff admitted that she was under the influence of intoxicating 10 liquors). 11 Here, Plaintiff argues that Defendants’ EIA test should be excluded because 12 (1) without any other corroborating evidence of Plaintiff’s intoxication, the EIA 13 test is insufficient for Defendants to show non-per se intoxication and thus (2) the 14 EIA test is irrelevant and only serves to be unduly prejudicial. See Gerlach, 196 15 Wash. 2d at 120 (“When evidence is likely to stimulate an emotional response 16 rather than a rational decision, a danger of unfair prejudice exists . . . . Here, the 17 trial court appropriately determined [Defendant’s] proffered evidence was only 18 minimally probative of the issues relevant to its affirmative defense and found the 19 relative risk of prejudice against [Plaintiff] was unacceptably high.”) (internal 20 citations and quotation omitted). 21 Defendants on the other hand argue that they do have sufficient evidence to 22 create a dispute of material fact of Plaintiff’s intoxication because they have both 23 (1) the EIA test result and (2) testimony about Plaintiff’s behavior right before the 24 collision, specifically that he did not get out of the way until the last second, 25 despite the car being visible before then. 26 Defendants have met their burden of showing that their intoxication 27 evidence, including Mr. Capron’s and Dr. Norton’s testimony, is relevant. Fed. R. 28 Evid. 401’s “basic standard of relevance is a liberal one.” Crawford v. City of 1 Bakersfield, 944 F.3d 1070, 1077 (9th Cir. 2019) (citing Daubert, 509 U.S. at 587). 2 Specifically, evidence is relevant if: (a) it has any tendency to make a fact more or 3 less probable than it would be without the evidence; and (b) the fact is of 4 consequence in determining the action. Fed. R. Evid. 401. Here, Defendants’ 5 intoxication evidence and expert testimony from Mr. Capron and Dr. Norton are 6 relevant to their affirmative defense of intoxication—specifically non-per se 7 intoxication. 8 Additionally, Mr. Capron’s and Dr. Norton’s testimony do not raise the 9 same kinds of concerns that were at issue in Gerlach. Here, Defendants’ experts 10 are not concluding that, just based on Plaintiff’s EIA test results, it is likely that 11 Plaintiff’s behavior was a proximate cause of the accident and his injuries. Instead, 12 Mr. Capron and Dr. Norton are simply relying on their scientific expertise to offer 13 opinions on why the EIA test is reliable and produced a valid result. 14 Finally, similar to Plaintiff’s reliability objections, the remainder of 15 Plaintiff’s relevance objections implicate questions regarding the credibility and 16 weight of the evidence, which are the province of the jury. The Court also believes 17 that, to the extent that Plaintiff believes that he would be prejudiced by intoxication 18 evidence, Plaintiff could alleviate this prejudice by undermining the credibility of 19 the evidence. See Donahue, 105 Wash. App. at 74-75 (“Unlike the per se offense, 20 [a party] may attack the accuracy and reliability of the technique or method used in 21 analyzing the blood alcohol level.”). Thus, the Court denies Plaintiff’s Motion to 22 Exclude Mr. Capron and Dr. Norton. 23 c. Plaintiff’s Motion to Exclude Dr. Loftus 24 Plaintiff requests that the Court strike defense expert Dr. Geoffrey Loftus, 25 PhD, because his testimony is neither reliable nor relevant. First, for reliability, 26 Plaintiff argues that Dr. Loftus’s unsigned draft report frequently misquotes 27 Plaintiff’s deposition testimony without citing to the transcript; ignores other 28 evidence in the record; fails to quantify his methods or the data he relies on; and 1 generally concludes that Plaintiff was either lying during his deposition, was 2 intoxicated during the collision, or has developed a false memory about the 3 collision. Second, for reliability, Plaintiff argues that Dr. Loftus’s testimony is not 4 a proper subject for expert testimony because jurors are capable of making 5 determinations related to a witness’s perception of an event and how that 6 perception might be affected by outside factors, such as lighting, attention, and 7 stress. Finally, Plaintiff argues that, even if Dr. Loftus’s testimony is proper expert 8 testimony, it should be excluded because it is unduly speculative and prejudicial. 9 Defendants in response argue that Dr. Loftus’s testimony is both reliable and 10 relevant. First, for reliability, Defendants argue that Dr. Loftus is a Professor 11 Emeritus of Psychology at the University of Washington and has studied human 12 and perception for approximately five decades. Defendants also argue that Dr. 13 Loftus has performed many published studies regarding how a memory is formed 14 and then subsequently recalled. Second, Defendants argue that Dr. Loftus’s 15 testimony is relevant because it will help the jury understand how different 16 witnesses to an event can form significantly different memories, even though both 17 witnesses believe themselves to be telling the truth. Moreover, Defendants state 18 that Dr. Loftus will testify about how memory can fail and how this can affect 19 eyewitness testimony, which will aid the jury in making credibility determinations. 20 Plaintiff in reply argues that Defendants “have abandoned most of the 21 opinions set forth in [Dr. Loftus’s] unsigned draft report” and instead appear to 22 suggest that Dr. Loftus will only testify regarding general principles of perception, 23 memory, and memory formation. However, Plaintiff argues that even this limited 24 testimony should still be excluded because Defendants will use Dr. Loftus’s 25 testimony to suggest that Plaintiff’s memory of the collision is false. Specifically, 26 Plaintiff states that because “there is no purpose for Loftus’s testimony other than 27 burnishing Defendants’ arguments about Plaintiff’s credibility with a patina of 28 1 expertise, the danger of unfair prejudice is palpable and the testimony should be 2 excluded.” ECF No. 117 at 6. 3 The Court grants Plaintiff’s motion in part and excludes the portions of Dr. 4 Loftus’s expert report and testimony that are not grounded in a fair characterization 5 of the evidence. Specifically, Dr. Loftus concludes that Plaintiff’s memory of 6 Defendants’ truck crossing the center line and driving towards him is “implausible 7 on the face of it, is not one that he had recounted prior to his deposition, and is 8 inconsistent with other evidence . . . . Why then did Mr. Robertson describe a 9 memory that is so widely contradicted by other evidence? There are two 10 possibilities. The first is that Mr. Robertson is lying. The second is that Mr. 11 Robertson developed a false memory of Mr. Dorn crossing the centerline and 12 aiming at him—and that in his deposition, he accurately and honestly described 13 this false memory.” ECF No. 113, Exhibit 2 at 2. 14 Dr. Loftus’s first assertion that Plaintiff’s account of the events is 15 “implausible on its face” is not grounded in his expertise. Dr. Loftus is a professor 16 of psychology, not an accident reconstructionist specialist—he has no way of 17 concluding that the collision as Plaintiff describes it was “implausible.” As for Dr. 18 Loftus’s second assertion that Plaintiff had never provided this version of events 19 prior to his deposition, this is outside the scope of Dr. Loftus’s knowledge. Dr. 20 Loftus does not know Plaintiff personally and has seemingly never spoken to 21 Plaintiff in person—thus, there is no way for Dr. Loftus to know whether Plaintiff 22 has told a consistent story regarding the collision. Finally, Dr. Loftus’s third 23 assertion that Plaintiff’s account is “inconsistent with other evidence,” this is an 24 exaggeration of the evidence in the record. Although Plaintiff’s account is 25 inconsistent with some testimony and evidence, it is also consistent with other 26 testimony (i.e., testimony from Laura Liebman, who is Plaintiff’s partner and who 27 was in the car with Plaintiff on the night of the accident). Thus, for Dr. Loftus to 28 jump from “Plaintiff’s account is inconsistent with some evidence in the record” to 1 his conclusion of “Plaintiff is either lying or has a false memory” is not supported 2 by the evidence. Thus, the Court excludes these portions of Dr. Loftus’s report as 3 unreliable because they lack a basis in Dr. Loftus’s expertise, knowledge, and the 4 factual record. 5 However, the Court denies Plaintiff’s motion for the remainder of Dr. 6 Loftus’s report and testimony. The Court finds that Dr. Loftus is qualified to testify 7 as a general expert about memory and perception of eyewitnesses and that his 8 testimony would be helpful to the jury in reconciling the conflicting accounts of 9 the accident. 10 II. Providence Sacred Heart Medical Center’s Motion for a Protective 11 Order or to Quash or Modify Subpoena 12 Providence Sacred Heart Medical Center (“PSHMC”), an interested third 13 party in this case, requests that the Court issue a protective order or, in the 14 alternative, quash or modify Defendants’ subpoena. Specifically, PSHMC argues 15 that Defendants’ February 1, 2022 Amended Subpoena to Testify at a Deposition 16 in a Civil Action seeks protected and confidential information about the hospital’s 17 internal policies and procedures, as well as about the technical specifications of the 18 EIA test, which is subject to a confidentiality agreement between PSHMC and 19 Siemens. PSHMC requests that the Court (1) issue a protective order to prevent the 20 hospital from disclosing Items 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, and 13 in the Amended 21 Subpoena; (2) quash the subpoena in full; (3) modify the subpoena to remove these 22 requested items; or (4) issue a protective order to prevent the disclosure of the 23 requested information outside of the scope of the present litigation. PSHMC also 24 requests that its Motion for a Protective Order be heard on an expedited basis. 25 Defendants in response agrees to proceed in accordance with PSHMC’s 26 fourth proposed option: specifically, for the Court to issue a protective order to 27 prevent disclosure outside of the present litigation. Defendants state this will allow 28 1 them to seek evidence relevant to their affirmative defense of intoxication, while 2 also alleviating any confidentiality concerns. 3 The Court agrees that PSHMC’s fourth proposed option is the most 4 appropriate. Thus, the Court grants PSHMC’s request for a protective order to 5 ensure that the requested information is not disclosed outside of the current 6 litigation. 7 III. Defendants’ Motion to Continue Briefing Deadlines 8 In their motion, Defendants request that the Court continue the briefing 9 deadlines associated with Plaintiff’s Motion to Exclude Mr. Capron and Dr. Norton 10 until after Defendants have been allowed to depose the Person Most 11 Knowledgeable from Providence Sacred Heart Medical Center. However, the 12 Court has already ruled on Plaintiff’s Motion to Exclude. Thus, the Court denies 13 Defendants’ motion as moot. 14 Accordingly, IT IS HEREBY ORDERED: 15 1. Plaintiff’s Motion to Exclude Defense Experts Norton, Capron, and 16 Ries, ECF No. 79, is DENIED. 17 2. Defendants’ Motion to Continue Briefing Deadlines Associated with 18 Plaintiff’s Motion to Exclude Expert Witnesses, ECF No. 94, is DISMISSED as 19 moot. 20 3. Plaintiff’s Motion to Exclude Loftus, ECF No. 98, is GRANTED in 21 part and DENIED in part. 22 4. Providence Sacred Heart Medical Center’s Motion for Protective 23 Order, or in the Alternative, to Quash or Modify Subpoena, ECF No. 125, is 24 GRANTED in part. 25 5. Providence Sacred Heart Medical Center’s Motion to Expedite, ECF 26 No. 126, is GRANTED. 27 // 28 // 1 6. The parties shall file a Stipulated Protective Order regarding PSMC’s confidential information on or before February 23, 2022. 3 IT IS SO ORDERED. The District Court Clerk is hereby directed to file this Order and provide copies to counsel. 5 DATED this 16th day of February 2022. -@... Shockey ec toar 10 Stanley A. Bastian 11 Chief United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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