1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 RENA KAY SOVERNS, Case No. 20-cv-06258-BLF
8 Plaintiff, ORDER ON MOTIONS IN LIMINE 9 v. AND MOTION TO AMEND WITNESS LIST 10 DELTA AIR LINES INC., [Re: ECF Nos. 56, 57, 62, 63, 74] 11 Defendant.
12 13 In preparation for trial the Court held the Final Pretrial Conference on March 31, 2023, 14 during which the Court issued oral rulings on the parties’ motions in limine and Delta’s motion to 15 amend its witness list. See ECF Nos. 56, 57, 62, 63, 74. The Court’s rulings on the motions are set 16 forth as follows. 17 I. PLAINTIFF’S MOTIONS IN LIMINE 18 A. Plaintiff’s Motion in Limine No. 1 to Exclude Introduction of Hearsay in Medical Records and Testimony by Defense Expert Clement Jones, M.D., on 19 Subjects Outside of Orthopedic Surgery 20 Soverns moves to exclude the introduction of purported out-of-court statements in her 21 medical records as inadmissible hearsay. Pls.’ MIL No. 1, at 1, ECF No. 62. Soverns also moves 22 to exclude testimony by Delta’s expert witness Clement Jones, M.D., about matters outside of the 23 field of orthopedic surgery. Id. Regarding Soverns’s medical records, Delta responds that it 24 thought the parties had stipulated to their admissibility. Def.’s Opp’n to Pls. MIL No. 1, at 2-3. 25 Delta argues that the MIL is nevertheless moot, as Delta now intends to call trial witnesses to lay 26 the foundation for the records. Id. at 3-4. Regarding Dr. Jones’s testimony, Delta argues that Dr. 27 Jones is qualified to opine on matters outside of orthopedic surgery. Id. at 4-5. 1 dispute centers on what Delta’s experts may disclose about Soverns’s medical records. At oral 2 argument, Delta explained that it does not intend to offer the medical records themselves or have 3 its experts read the medical records to the jury. Rather, Delta intends to have its experts explain 4 that they relied on the records in forming their opinions. Such testimony is permissible under 5 Federal Rule of Evidence 703. See Erhart v. BofI Holding, Inc., 445 F. Supp. 3d 831, 839 (S.D. 6 Cal. 2020) (“Experts may offer opinions based on otherwise inadmissible testimonial hearsay if 7 experts in the particular field would reasonably rely on those kinds of facts or data in forming an 8 opinion on the subject, and if they are applying their training and experience to the sources before 9 them and reaching an independent judgment, as opposed to merely acting as a transmitter for 10 testimonial hearsay.” (internal quotation marks, citations, and brackets omitted)). The Court 11 therefore DEFERS ruling on Soverns’s motion to exclude medical records and will assess 12 objections at the time the testimony is offered. 13 The Court next turns to Soverns’s request to preclude Dr. Jones from opining on anything 14 other than orthopedic surgery. Soverns argues that because Dr. Jones is not a neurologist, 15 neurosurgeon, or psychiatrist, and has not received training in those fields he cannot offer opinions 16 concerning “peripheral polyneuropathy” or “the possible effects of PTSD, marital trauma, 17 depression, and childhood sexual trauma on Soverns’s current condition.” Plf.’s MIL No. 1, at 4. 18 Dr. Jones is a medical doctor with generalized medical training. He does not lose this generalized 19 training by specializing in orthopedic surgery. To the extent Soverns seeks to challenge Dr. 20 Jones’s purported lack of particularized training, the proper avenue is through cross-examination 21 and presentation of contrary evidence, not exclusion. See Rearden LLC v. Walt Disney Co., No. 22 17-CV-04006-JST, 2021 WL 6882227, at *4 (N.D. Cal. July 12, 2021) (“Lack of particularized 23 expertise goes to the weight to be accorded the expert's testimony, not the admissibility of her 24 opinion as an expert.”); see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596 (1993) 25 (“Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the 26 burden of proof are the traditional and appropriate means of attacking shaky but admissible 27 evidence.”). Accordingly, Soverns’s request to exclude testimony by Dr. Jones about matters B. Plaintiff’s Motion in Limine No. 2 to Exclude Testimony by Defense Expert 1 Maureen Miner and Supplemental Report of Defense Expert Jones 2 Soverns moves to exclude at trial the introduction of testimony from Defendant’s expert 3 Maureen Miner, M.D., because her disclosure was not timely, and to exclude the Supplemental 4 Report of Defendant’s Expert Clement Jones, M.D. and testimony concerning its contents, 5 because it was not disclosed prior to the applicable disclosure deadline. Pls.’ MIL No. 2, at 1, 6 ECF No. 63. Delta argues that the Court should exercise its discretion to not exclude the 7 testimony because Soverns cannot demonstrate prejudice arising from any purportedly late 8 disclosure. Def.’s Opp’n to Pls.’ MIL No. 2, at 2, ECF No. 68. 9 The Court agrees with Delta that the testimony should not be excluded. A party that fails 10 to provide information or identify a witness as required by Rule 26(a) or (e) may not use that 11 information or witness to supply evidence at trial unless the failure was “substantially justified or 12 is harmless.” Fed. R. Civ. P. 37(c)(1). “Among the factors that may properly guide a district 13 court in determining whether a violation of a discovery deadline is justified or harmless are: (1) 14 prejudice or surprise to the party against whom the evidence is offered; (2) the ability of that party 15 to cure the prejudice; (3) the likelihood of disruption of the trial; and (4) bad faith or willfulness 16 involved in not timely disclosing the evidence.” Lanard Toys Ltd. v. Novelty, Inc., 375 F. App’x 17 705, 713 (9th Cir. 2010). “The burden is on the party facing exclusion of its expert’s testimony to 18 prove the delay was justified or harmless.” Id. (citing Yeti by Molly, Ltd. v. Deckers Outdoor 19 Corp., 259 F.3d 1101, 1107 (9th Cir. 2001)). 20 Here, Delta untimely disclosed Dr. Miner, her report, and the supplemental report of Dr. 21 Jones, but the considerations outlined in Lanard Toys show the late disclosure to be harmless. 22 Specifically, (1) the Court finds that Soverns suffered only minimal prejudice from the late 23 disclosures because they were made months before trial; (2) Soverns had the ability to cure the 24 minimal prejudice when Delta offered to make both experts available for deposition; (3) there is 25 no likelihood of disruption of the trial; and (4) Delta’s late disclosure was not made in bad faith. 26 Accordingly, Sovern’s motion is DENIED. 27 1 II. DEFENDANT’S MOTIONS IN LIMINE 2 A. Defendant’s Motion in Limine 1 to Exclude Evidence of Medical Billing 3 Delta moves to preclude Soverns from introducing evidence of her gross medical billing 4 for the purpose of establishing future medical costs and noneconomic damages. See Def.’s MIL 5 No. 1, at 3, ECF No. 56. At oral argument Soverns stated that she will not seek to admit this 6 evidence. Accordingly, Delta’s motion is DENIED as MOOT. 7 B. Defendant’s Motion in Limine 2 to Preempt State Standard of Care 8 Delta moves for an order determining that the applicable standard of care in this matter, 9 pertaining to the handling of passengers with disabilities by airlines, is preempted by federal law 10 under the doctrine of field preemption. Def.’s MIL No. 2, at 2, ECF No. 57.
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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 RENA KAY SOVERNS, Case No. 20-cv-06258-BLF
8 Plaintiff, ORDER ON MOTIONS IN LIMINE 9 v. AND MOTION TO AMEND WITNESS LIST 10 DELTA AIR LINES INC., [Re: ECF Nos. 56, 57, 62, 63, 74] 11 Defendant.
12 13 In preparation for trial the Court held the Final Pretrial Conference on March 31, 2023, 14 during which the Court issued oral rulings on the parties’ motions in limine and Delta’s motion to 15 amend its witness list. See ECF Nos. 56, 57, 62, 63, 74. The Court’s rulings on the motions are set 16 forth as follows. 17 I. PLAINTIFF’S MOTIONS IN LIMINE 18 A. Plaintiff’s Motion in Limine No. 1 to Exclude Introduction of Hearsay in Medical Records and Testimony by Defense Expert Clement Jones, M.D., on 19 Subjects Outside of Orthopedic Surgery 20 Soverns moves to exclude the introduction of purported out-of-court statements in her 21 medical records as inadmissible hearsay. Pls.’ MIL No. 1, at 1, ECF No. 62. Soverns also moves 22 to exclude testimony by Delta’s expert witness Clement Jones, M.D., about matters outside of the 23 field of orthopedic surgery. Id. Regarding Soverns’s medical records, Delta responds that it 24 thought the parties had stipulated to their admissibility. Def.’s Opp’n to Pls. MIL No. 1, at 2-3. 25 Delta argues that the MIL is nevertheless moot, as Delta now intends to call trial witnesses to lay 26 the foundation for the records. Id. at 3-4. Regarding Dr. Jones’s testimony, Delta argues that Dr. 27 Jones is qualified to opine on matters outside of orthopedic surgery. Id. at 4-5. 1 dispute centers on what Delta’s experts may disclose about Soverns’s medical records. At oral 2 argument, Delta explained that it does not intend to offer the medical records themselves or have 3 its experts read the medical records to the jury. Rather, Delta intends to have its experts explain 4 that they relied on the records in forming their opinions. Such testimony is permissible under 5 Federal Rule of Evidence 703. See Erhart v. BofI Holding, Inc., 445 F. Supp. 3d 831, 839 (S.D. 6 Cal. 2020) (“Experts may offer opinions based on otherwise inadmissible testimonial hearsay if 7 experts in the particular field would reasonably rely on those kinds of facts or data in forming an 8 opinion on the subject, and if they are applying their training and experience to the sources before 9 them and reaching an independent judgment, as opposed to merely acting as a transmitter for 10 testimonial hearsay.” (internal quotation marks, citations, and brackets omitted)). The Court 11 therefore DEFERS ruling on Soverns’s motion to exclude medical records and will assess 12 objections at the time the testimony is offered. 13 The Court next turns to Soverns’s request to preclude Dr. Jones from opining on anything 14 other than orthopedic surgery. Soverns argues that because Dr. Jones is not a neurologist, 15 neurosurgeon, or psychiatrist, and has not received training in those fields he cannot offer opinions 16 concerning “peripheral polyneuropathy” or “the possible effects of PTSD, marital trauma, 17 depression, and childhood sexual trauma on Soverns’s current condition.” Plf.’s MIL No. 1, at 4. 18 Dr. Jones is a medical doctor with generalized medical training. He does not lose this generalized 19 training by specializing in orthopedic surgery. To the extent Soverns seeks to challenge Dr. 20 Jones’s purported lack of particularized training, the proper avenue is through cross-examination 21 and presentation of contrary evidence, not exclusion. See Rearden LLC v. Walt Disney Co., No. 22 17-CV-04006-JST, 2021 WL 6882227, at *4 (N.D. Cal. July 12, 2021) (“Lack of particularized 23 expertise goes to the weight to be accorded the expert's testimony, not the admissibility of her 24 opinion as an expert.”); see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596 (1993) 25 (“Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the 26 burden of proof are the traditional and appropriate means of attacking shaky but admissible 27 evidence.”). Accordingly, Soverns’s request to exclude testimony by Dr. Jones about matters B. Plaintiff’s Motion in Limine No. 2 to Exclude Testimony by Defense Expert 1 Maureen Miner and Supplemental Report of Defense Expert Jones 2 Soverns moves to exclude at trial the introduction of testimony from Defendant’s expert 3 Maureen Miner, M.D., because her disclosure was not timely, and to exclude the Supplemental 4 Report of Defendant’s Expert Clement Jones, M.D. and testimony concerning its contents, 5 because it was not disclosed prior to the applicable disclosure deadline. Pls.’ MIL No. 2, at 1, 6 ECF No. 63. Delta argues that the Court should exercise its discretion to not exclude the 7 testimony because Soverns cannot demonstrate prejudice arising from any purportedly late 8 disclosure. Def.’s Opp’n to Pls.’ MIL No. 2, at 2, ECF No. 68. 9 The Court agrees with Delta that the testimony should not be excluded. A party that fails 10 to provide information or identify a witness as required by Rule 26(a) or (e) may not use that 11 information or witness to supply evidence at trial unless the failure was “substantially justified or 12 is harmless.” Fed. R. Civ. P. 37(c)(1). “Among the factors that may properly guide a district 13 court in determining whether a violation of a discovery deadline is justified or harmless are: (1) 14 prejudice or surprise to the party against whom the evidence is offered; (2) the ability of that party 15 to cure the prejudice; (3) the likelihood of disruption of the trial; and (4) bad faith or willfulness 16 involved in not timely disclosing the evidence.” Lanard Toys Ltd. v. Novelty, Inc., 375 F. App’x 17 705, 713 (9th Cir. 2010). “The burden is on the party facing exclusion of its expert’s testimony to 18 prove the delay was justified or harmless.” Id. (citing Yeti by Molly, Ltd. v. Deckers Outdoor 19 Corp., 259 F.3d 1101, 1107 (9th Cir. 2001)). 20 Here, Delta untimely disclosed Dr. Miner, her report, and the supplemental report of Dr. 21 Jones, but the considerations outlined in Lanard Toys show the late disclosure to be harmless. 22 Specifically, (1) the Court finds that Soverns suffered only minimal prejudice from the late 23 disclosures because they were made months before trial; (2) Soverns had the ability to cure the 24 minimal prejudice when Delta offered to make both experts available for deposition; (3) there is 25 no likelihood of disruption of the trial; and (4) Delta’s late disclosure was not made in bad faith. 26 Accordingly, Sovern’s motion is DENIED. 27 1 II. DEFENDANT’S MOTIONS IN LIMINE 2 A. Defendant’s Motion in Limine 1 to Exclude Evidence of Medical Billing 3 Delta moves to preclude Soverns from introducing evidence of her gross medical billing 4 for the purpose of establishing future medical costs and noneconomic damages. See Def.’s MIL 5 No. 1, at 3, ECF No. 56. At oral argument Soverns stated that she will not seek to admit this 6 evidence. Accordingly, Delta’s motion is DENIED as MOOT. 7 B. Defendant’s Motion in Limine 2 to Preempt State Standard of Care 8 Delta moves for an order determining that the applicable standard of care in this matter, 9 pertaining to the handling of passengers with disabilities by airlines, is preempted by federal law 10 under the doctrine of field preemption. Def.’s MIL No. 2, at 2, ECF No. 57. Since Delta filed its 11 motion, the parties have stipulated that Delta “will not contest its liability for being the sole cause 12 of the subject accident on July 6, 2019, between itself and Soverns.” ECF No. 84. The parties 13 have also submitted a proposed joint statement of the case in which “Delta admits that it is at fault 14 for the accident.” ECF No. 76. Accordingly, Delta’s motion is DENIED as MOOT. 15 III. DEFENDANT’S MOTION TO AMEND WITNESS LIST 16 Delta moves to amend its witness list to add custodians to authenticate Soverns’s medical 17 records. Mot. to Amend Witness List, ECF No. 74. As discussed above in relation to Soverns’s 18 motion to exclude these records, Delta does not seek to admit the records. Delta therefore does 19 not need witnesses to authenticate the records. Accordingly, Delta’s motion to amend its witness 20 list is DENIED. 21 // 22 // 23 // 24 // 25 // 26 // 27 // 1 IT IS SO ORDERED. 2 e § Plaintiff’s Motion in Limine No. 1 is DEFFERRED IN PART and DENIED IN PART. 3 e § Plaintiff’s Motion in Limine No. 2 is DENIED. 4 e Defendant’s Motion in Limine No. 1 is DENIED as MOOT. 5 e Defendant’s Motion in Limine No. 2 is DENIED as MOOT. 6 e Defendant’s Motion to Amend Witness List is DENIED. 7 8 Dated: April 3, 2023
BETH LABSON FREEMAN 10 United States District Judge 11 a 12
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