United States District Court, D. Colorado
ORDER ON MOTIONS IN LIMINE
William J Martínez United States District Judge.
Before the Court are competing Motions in Limine filed by Plaintiff Carolyn Dedmon (“Dedmon”) and Defendants Continental Airlines, United Airlines, and United Continental Holdings (collectively, “United”). (See ECF No. 124 (United’s Motion); ECF No. 133 (Dedmon’s Motion).) For the reasons explained below, Dedmon’s Motion is denied; and United’s Motion is granted in part, denied in part, denied without prejudice in part, and denied as moot in part.
I. D.C.COLO.LCivR 7.1(a) CONFERRAL DISPUTE
In United’s Motion, United’s counsel says that he e-mailed, called, and left voicemails for Dedmon’s counsel on the day the motion was filed, but “was unsuccessful” in his attempts to communicate with Dedmon’s counsel. (ECF No. 124 at 1.) Dedmon’s counsel responds that the first e-mail arrived at 5:06 p.m. on that day-a Friday-and he received two voicemails on his office phone later that evening. (ECF No. 160 at 1.) United then filed its Motion at 9:07 p.m. that night. (Id.) Dedmon requests that the Court deny United’s Motion solely for failing to comply in good faith with D.C.COLO.LCivR 7.1(a)’s conferral requirement.
Dedmon’s counsel makes all of these representations simply as statements in his client’s Response brief. He does not attach a declaration, supporting documents, or anything of the like. On this record, and in light of the gravity of this issues raised in United’s Motion, the Court will not consider whether to sanction United’s counsel for allegedly evading the spirit of D.C.COLO.LCivR 7.1(a). Cf. Hoelzel v. First Select Corp., 214 F.R.D. 634, 636 (D. Colo. 2003) (denying motion because, among other reasons, “Plaintiff’s counsel flagrantly violated the requirements of Rule 7.1A”).
Even so, it is obvious from United’s Motion that United’s counsel prepared it in haste. As will become evident below, United fails to support most of its arguments with a record sufficient to adjudicate the requested evidentiary exclusions. Thus, to the extent a “sanction” is warranted for an alleged failure to meaningfully comply with D.C.COLO.LCivR 7.1(a), it is simply that the same haste which supposedly made D.C.COLO.LCivR 7.1(a) compliance ineffective will also lead to most of United’s requests being denied.
II. UNITED’S MOTION
United’s Motion is, in reality, seventeen separate motions, which the Court will address, for the most part, in the order presented.
A. Evidence Regarding Causation, Prognosis, and Similar Subjects (Motion Nos. 1, 2, and 12)
1. Motion No. 1
Previously, United States Magistrate Judge Nina Y. Wang ruled that Dedmon’s
failure to propound certain expert reports required striking Dedmon’s fourteen (14) treating physician[s] as experts, including but not limited to the issues of causation, damages, prognosis, impairment, permanency, past and future physical and mental limitations, the effect of the condition on past and future economic loss, disabilities and consequential inability to work and/or work restrictions, the cost and reasonableness of past and future medical or rehabilitative treatment and/or medication and/or adaptive equipment, and/or residential or work modifications, any and all issues raised by the Defendant, and any other issues related to injuries arising out of the incident[.]
(ECF No. 80 at 16.) The Magistrate Judge, however, permitted Dedmon to put on the testimony of Drs. Gary Ghiselli and David L. Reinhard “LIMITED to only observations and opinions clearly reflected in their respective medical records prior to [March 6, 2015].” (Id.) No party filed any timely Rule 72(a) objection to this ruling. (See ECF No. 96.)
United now argues that “[t]here are no observations or opinions formed during the course of treatment clearly reflected” in Dr. Ghiselli’s or Dr. Reinhard’s records regarding the prohibited issues in the block quote above; therefore, “none of [Dedmon’s] treating physicians, including Dr. Ghiselli and Dr. Reinhard, can provide expert testimony on any subject.” (ECF No. 124 ¶ 1.) To the extent this is meant as a motion, it is too vague for the Court to order any relief at this point. The Magistrate Judge’s order will be enforced at trial, but the Court cannot rule in the abstract that there is no circumstance in which Drs. Ghiselli or Reinhard may present expert testimony. Some of the “opinions clearly reflected in their respective medical records” (ECF No. 80 at 16), such as their diagnoses, may have been formed through their “scientific, technical, or other specialized knowledge, ” Fed.R.Evid. 702(a), particularly their medical training. Those opinions would then be considered expert testimony. But United has not attached any treatment records to its Motion in Limine, so the Court cannot evaluate this possibility. Accordingly, United’s Motion No. 1 is denied without prejudice.
2. Motion No. 2
The Magistrate Judge’s above-quoted order plainly prohibits Dedmon’s treating physicians from testifying regarding causation. United seeks to extend this to any testimony from any witness “that the subject incident caused [Dedmon’s] alleged injuries.” (ECF No. 124 ¶ 2.) United argues that expert testimony is required to establish that a particular event caused a plaintiff’s injuries, particularly if the plaintiff claims that preexisting conditions have been aggravated. (Id.)
Again, United has not provided enough context to permit this Court to rule on this issue, such as deposition testimony from Dedmon explaining the alleged effect on her preexisting conditions. United’s Motion No. 2 is therefore denied without prejudice. The Court nonetheless provides the following guidance, although necessarily in the abstract.
“Courts have allowed lay testimony about medical causation in cases where causation is fairly obvious.” Llewellyn v. Ocwen Loan Servicing, LLC, 2015 WL 2127892, at *3 (D. Colo. May 5, 2015). Assume, for example, that Dedmon’s elbow struck the ground during the alleged slip-and-fall. If Dedmon were to testify that her elbow had been feeling fine before the fall and hurt immediately after the fall, the jury would not need the assistance of an expert to infer that the fall caused her elbow to hurt. Cf. Hendrickson v. Cooper, 589 F.3d 887, 892 (7th Cir. 2009) (“No expert testimony is required to assist jurors in determining the cause of injuries that are within their common experiences or observations. Here, the cause of [the prisoner’s] pain was perfectly clear: [the guard] beat him.” (citation omitted)).
The waters become murkier, however, when a witness moves away from acute injuries and into lingering or chronic injuries. Although the Court does not make any definitive ruling, it may be enough to establish causation if (extending the elbow hypothetical above) Dedmon testified that she never had elbow problems before the accident, yet her elbow has never regained its full range of motion since the accident. On the other hand, it would probably require supporting expert testimony if Dedmon claimed that she developed problems not obviously connected to the elbow, such as a loss of manual dexterity. Cf. Lassiegne v. Taco Bell Corp., 202 F.Supp.2d 512, 523-24 (E.D. La. 2002) (granting summary judgment against plaintiff on causation where plaintiff had no testimony beyond his own that choking on a chicken bone led to impotency, migraine headaches, and PTSD).
The waters are similarly murky when it comes to preexisting conditions. If Dedmon were to testify that she had mild arthritis in her elbow before the accident and much more severe arthritis ever since, her testimony alone may be sufficient to establish causation. If, however, she were to testify that the injury to her elbow (or shock of the fall in general) caused a flare-up in a preexisting gastrointestinal condition, expert medical causation testimony would likely be necessary. Cf. Llewellyn, 2015 WL 2127892, at *2-3 (excluding plaintiff’s testimony that a stressful incident led to a Crohn’s Disease flare-up).
Again, these examples are for guidance only. The Court has received no clear account of the medical conditions Dedmon intends to claim at trial and the supporting evidence she intends to present.
3. Motion No. 12
A matter of surprisingly vehement dispute in this case is Dedmon’s claim that she slipped on cooking oil, as opposed to some other substance. “United seeks to bar (redact) any reference in [Dedmon’s] medical records regarding [Dedmon] reportedly slipping on cooking oil.” (ECF No. 124 ¶ 12.) United claims that this information (presumably reported by Dedmon to her doctors) is hearsay and does not qualify for admission under the business records exception. See Fed. R. Evid. 803(6). Dedmon counters that a different hearsay exception, Rule 803(4), covers her treatment records. (ECF No. 160 at 5.) Rule 803(4) deems admissible “[a] statement that: (A) is made for-and is ...