Opposition to defendants' motion to limit plaintiff's expert

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Opposition to defendants' motion to limit plaintiff's expert

Postby Administrator » Sun Nov 09, 2014 1:30 pm

Opposition to defendants' motion to limit plaintiff's expert's opinions


[Attorney name, address]

Bar Number: [ ]

Attorney for Plaintiff

[Court Name]

[plaintiff's name], ) CASE NO.: [ ]
)
Plaintiff, ) OPPOSITION TO
) DEFENDANT'S MOTION IN
v. ) LIMINE LIMITING
) PLAINTIFF'S EXPERT'S
[defendant's name], ) OPINION TESTIMONY
)
) TRIAL:
Defendant. ) TIME:
_______________________________ ) DEPT: Honorable [ ]




MEMORANDUM OF POINTS AND AUTHORITIES



1. PRELIMINARY STATEMENT


This diversity action involves a medical malpractice and wrongful death action whereby it is alleged that Veteran's Hospital physicians negligently misdiagnosed and treated the decedent, allowing decedent to become gravely ill and die from complications from pneumonia. In accordance with the Federal Rules, plaintiff's expert filed a timely written expert witness report.

Defendants' motion in limine seeks to limit plaintiff's expert testimony only to those specifics referenced in the report. It is plaintiff's position that the written report sufficiently includes all relevant issues and that defendants' motion is over-broad insofar as it prevents plaintiff's expert from answering follow-up questions, making any necessary clarifications, or rebutting the opinions of defendants' experts.

In this case, defendants' experts concocted totally outlandish theories with absolutely no medical basis, which plaintiff's experts would not have dreamed they should address in their report. These defense opinions included the notion that decedent suffered from an encephalitis (inflammation of the brain) and myocarditis (inflammation of the heart muscle) and that these conditions, rather than the pneumonia that the actual treating physicians found as the cause of decedent's death. Of significant note, these opinions were not offered until after the plaintiff's expert reports had been submitted.

For the reasons and authorities cited below, plaintiff respectfully urges this Court to reject the defendants' overbroad motion. In the alternative, plaintiff submits this cross motion for a brief continuance to allow plaintiff's expert to address these theories in a supplemental report.

2. PLAINTIFF'S EXPERT SHOULD BE ALLOWED TO TESTIFY TO ALL RELEVANT THEORIES


The court has broad discretion to allow plaintiff's expert to expand on testimony previously included in an expert report. Minor deficiencies in the specifics of an expert's disclosure do not justify preclusion of the expert's testimony or of the report itself. See Hurley v. Atlantic City Police Dept., 174 F.3d 95, 113, 51 Fed. R. Evid. Serv. 1146 (3d Cir. 1999) (not an abuse of discretion to allow expert to testify to “second diagnosis” that was strongly hinted at in disclosed report and that opposing party was aware of); Thudium v. Allied Products Corp., 36 F.3d 767, 770, 30 Fed. R. Serv. 3d 52 (8th Cir. 1994) (motion in limine properly denied thus allowing expert testimony on causation which was a “logical inference” from expert's disclosed opinion); Matei v. Cessna Aircraft Co., 35 F.3d 1142, 1147, 30 Fed. R. Serv. 3d 355 (7th Cir. 1994) (not an abuse of discretion to allow expert's trial testimony that varied from deposition testimony insofar as there had been no showing of bad faith and any violation of Rule 26 did not cause significant prejudice).

Moreover, important expert testimony should be admissible, particularly where there is no prejudice to the opposing party. See Brennan's Inc. v. Dickie Brennan & Co. Inc., 376 F.3d 356, 375-76 (5th Cir. 2004), also published at, 72 U.S.P.Q.2d 1926, 2004 WL 1637996 (5th Cir. 2004) (admission of supplemental expert report and related testimony was not an abuse of discretion where opposing party was not prejudiced by the tardy receipt of the documents); Nalder v. West Park Hosp., 254 F.3d 1168, 1178, 50 Fed. R. Serv. 3d 1617 (10th Cir. 2001) (not an abuse of discretion to admit expert testimony where opposing party failed to demonstrate significant surprise or prejudice); Samos Imex Corp. v. Nextel Communications, Inc., 194 F.3d 301, 305 (1st Cir. 1999) (district courts are free to allow evidence not properly disclosed when the failure to disclose occurs long before trial and is likely subject to correction without much harm to the opposing party).

Here, any prejudice arises only because the defendants' theories are so outlandish that plaintiff's expert did not think them relevant. Plaintiff did not originally address these issues through any attempt by the plaintiff to mislead the defendants. Therefore, plaintiff's expert testimony should be allowed.

3. THE AUTHORITIES CITED BY THE DEFENSE ARE NOT APPLICABLE TO THE FACTS OF THIS CASE


The authorities cited by defendants do not justify the exclusion of plaintiff's expert testimony. To begin, unlike in Prieto v. Malgor, 361 F.3d 1313, 63 Fed. R. Evid. Serv. 1069, 58 Fed. R. Serv. 3d 198 (11th Cir. 2004), Plaintiff's expert did, in fact, provide a written expert report containing a complete statement of her opinions. In Licciardi v. TIG Ins. Group, 140 F.3d 357, 40 Fed. R. Serv. 3d 525 (1st Cir. 1998), also cited by defendants, the court would not allow expert testimony that was contradictory to the expert's report. The new testimony offered by plaintiff's expert, however, is not contradictory to her previously given report. The new testimony simply seeks to rebut defendants' experts' theories that plaintiff's expert had not previously contemplated as being relevant. Rather than contradict, plaintiff's expert's new testimony actually bolsters what has previously been disclosed. Finally, unlike in Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 37 Fed. R. Serv. 3d 1378 (3d Cir. 1997), plaintiff has not disregarded any court order with regard to expert disclosure or discovery.

4. ALTERNATIVELY, THIS COURT SHOULD GRANT A CONTINUANCE TO ALLOW PLAINTIFF'S EXPERT TO SUPPLEMENT HER REPORT


If this Court feels that defendants have met their burden in bringing this motion, plaintiff respectfully requests that a brief continuance be allowed so that plaintiff's medical experts may address the issues raised by defendants' experts.

“Courts have looked with disfavor upon parties who claim surprise and prejudice but who do not ask for a recess . . .” Johnson v. H.K. Webster, Inc., 775 F.2d 1, 8, 3 Fed. R. Serv. 3d 209 (1st Cir. 1985). If a failure to make complete discovery comes to light before or during trial, the appropriate remedy is to order the information produced and to take immediate steps to cure any prejudice, such as seeking a continuance. DesRosiers v. Moran, 949 F.2d 15, 22 (1st Cir. 1991). See also Nalder v. West Park Hosp., 254 F.3d 1168, 1178, 50 Fed. R. Serv. 3d 1617 (10th Cir. 2001) (where party failed to request continuance to depose expert and continuance would have been much less disruptive of the orderly and efficient trial of the case, not an abuse of discretion to allow rebuttal testimony); E.E.O.C. v. General Dynamics Corp., 999 F.2d 113, 116, 26 Fed. R. Serv. 3d 755 (5th Cir. 1993) (error to exclude crucial testimony when prejudice could have been cured by a continuance).

In this case, good cause exists to allow the requested continuance. Plaintiff has not engaged in any improper behavior and has, in fact, been totally forthright in all discovery. Plaintiff's experts would have addressed the defendants' theories had she thought them even arguably relevant.

Plaintiff does not believe that additional disclosure is necessary. However, in the spirit of cooperation, plaintiff would like the opportunity to submit a supplemental expert witness report.

5. CONCLUSION


For the foregoing reasons, the Court should deny defendants' motion in its entirety, or, in the alternative, grant plaintiff's cross motion for a continuance to allow for plaintiff to submit a supplemental expert witness report.

DATED: [ ]



By: _______________

[name of counsel]

Attorneys for PLAINTIFF,

[name of plaintiff]
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

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