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Salesman v. Yellow Ambulance Services

United States District Court, S.D. Indiana, New Albany Division

January 15, 2020




         This matter is before the Court on Motions in Limine filed by Defendant Yellow Ambulance Services (“Yellow Ambulance”) (Filing No. 54) and Plaintiff Eugene E. Salesman (“Mr. Salesman”) (Filing No. 55). This case is scheduled for a trial by jury to begin on Monday, February 10, 2020. In anticipation of that trial, both parties have moved the Court to rule on various evidentiary issues. For the following reasons, Yellow Ambulance's Motion in Limine is granted in part and denied in part, and Mr. Salesman's Motion in Limine is granted in part and denied in part.

         I. BACKGROUND

         On May 15, 2016, Yellow Ambulance provided emergency services to Mr. Salesman after he suffered a seizure at his home. Mr. Salesman alleges that in responding to the dispatch, Yellow Ambulance employees were grossly negligent and failed to follow the applicable standard(s) of care in extricating the him from his home and in transporting him to the dispatched ambulance. Said negligence and/or breach of the standard(s) of care caused Mr. Salesman to fall and suffer multiple fractures in his leg, causing severe and permanent injuries and damages. Yellow Ambulance denies any negligence and asserts that due care was exercised. Yellow Ambulance alleges the evidence will show that Mr. Salesman was noncompliant with questioning and directives. He was moving from room to room unassisted despite being advised to stay seated. As Mr. Salesman was assisted to a stretcher by an employee of Yellow Ambulance, he misstepped onto his porch and rolled his right ankle. Yellow Ambulance denies that it caused or contributed to any injury to Mr. Salesman's ankle. Mr. Salesman filed a Complaint in May 2016 in Clark County Circuit Court and Yellow Ambulance removed this action to federal court. (Filing No. 1.) On December 31, 2019, Yellow Ambulance filed a Motion in Limine asking the Court to rule on various evidentiary matters. (Filing No. 54.) On January 3, 2020, Mr. Salesman did the same. (Filing No. 55.)


         “[J]udges have broad discretion in ruling on evidentiary questions during trial or before on motions in limine.” Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002). The court excludes evidence on a motion in limine only if the evidence clearly is not admissible for any purposes. See Hawthorne Partners v. AT&T Technologies, Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993). Unless evidence meets this exacting standard, evidentiary rulings must be deferred until trial so questions of foundation, relevancy, and prejudice may be resolved in context. Id. at 1400-01. Moreover, denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion is admissible; rather, it only means that, at the pretrial stage, the court is unable to determine whether the evidence should be excluded. Id. at 1401.


         Each party has filed a Motion in Limine with multiple facets. The Court will address each Motion separately.

         A. Yellow Ambulance's Motion in Limine (Filing No. 54)

         Yellow Ambulance asks the Court to rule on eight evidentiary issues. It argues: (1) Mr. Salesman's treating healthcare providers should not be allowed to testify beyond the scope of their own diagnosis and treatment; (2) Mr. Salesman's expert witness should be prohibited from offering opinions not contained in Mr. Salesman's expert witness disclosures; (3) lay witnesses should be precluded from offering expert opinions; (4) hearsay statements of healthcare providers should be excluded; (5) evidence of insurance or coverage should be excluded; (6) other lawsuits or allegations of negligence involving Yellow Ambulance should be excluded; (7) any reference to Mr. Salesman or his family as “victims” should be excluded; (8) expert reports should not be introduced into evidence[1]. (Filing No. 54.) In his Response, Mr. Salesman only addresses the first issue-whether his treating healthcare providers should be allowed to testify as experts. (Filing No. 59.)

         1.Treating Healthcare Providers' Testimony

         Yellow Ambulance asserts that Mr. Salesman's treating healthcare providers were not properly disclosed under Federal Rule of Civil Procedure 26(a)(2), and therefore their testimonies should be limited to the scope of their own diagnosis or treatment. (Filing No. 54 at 2; Filing No. 29-1.) Mr. Salesman contends that his Interrogatory Responses serve as a FRCP 26(a)(2) disclosure. (Filing No. 59.) In response to Yellow Ambulance's request to “identify all medical care providers who have advised Plaintiff that the acts, negligence and/or omissions of Defendant caused or contributed to Plaintiff's injuries, ” Mr. Salesman responded, “Plaintiff has not yet requested his orthopedic surgeon, Dr. Patrick D. Bauer to render an opinion as to the cause of Plaintiff's injuries but does believe that Dr. Bauer will state that the accident in question caused or contributed to Plaintiff's injuries.” (Filing No. 59-1 at 4.) When asked to identify expert witnesses, Mr. Salesman stated that he “has not yet determined each and every expert witness he expects to call.” Id. Dr. Patrick Bauer, (“Dr. Bauer”), is designated as a “Plaintiff's treating physician” on his witness list (Filing No. 57); however, Mr. Salesman explains that he also intends to solicit expert testimony from Dr. Bauer as to the issue of causation. (Filing No. 59.)

         Yellow Ambulance moves to exclude the expert testimony of Plaintiff's “treating healthcare providers.” (Filing No. 54.) Yellow Ambulance notes that only one witness - Eric Bauer, MBA, FP-C, CCP-C, C-NPT, the flight paramedic - was disclosed as an expert witness in July 2019. (Filing No. 29.) Because Eric Bauer did not treat Mr. Salesman, and Eric Bauer was disclosed as an expert, the Court assumes that Yellow Ambulance does not object to his expert testimony. Thus, the Court will analyze only Dr. Bauer's ability to testimony as an expert witness.

         Federal Rule of Evidence 104 instructs that “[t]he court must decide any preliminary question about whether a witness is qualified … or evidence is admissible.” Fed.R.Evid. 104(a). Federal Rule of Evidence 702 provides that expert testimony is admissible if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or date; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. A party that intends to call an expert witness at trial must disclose that intention to other parties in advance of trial. Fed.R.Civ.P. 26(a)(2). Judge Richard Young succinctly explained the law governing Rule 26 disclosures for treating medical professionals in Slabaugh v. LG Electronics USA, Inc., No. 1:12-cv-1020, 2015 WL 1396606, at *2 (S.D. Ind. Mar. 25, 2015):

A party must disclose the identity of any expert witness it intends to use at trial. Fed.R.Civ.P. 26(a)(2)(A). That disclosure must include a full written report “if the witness is one retained or specially employed to provide expert testimony in the case ….” Fed.R.Civ.P. 26(a)(2)(B). The 2010 Amendment to Rule 26 added 26(a)(2)(C), instructing that non-retained witnesses who happen to be experts must provide summary disclosures. A summary disclosure must state the subject matter of the expected evidence and a summary of the facts and opinions to which the witness will testify. Fed.R.Civ.P. 26(a)(2)(C). Whether an expert must provide a complete report under 26(a)(2)(B) or a less extensive summary under 26(a)(2)(C) depends on the expert's relationship to the issues involved in the litigation. See Malibu Media, LLC v. Harrison, No. 1:12-cv-01117, 2014 WL 6474065, at *2 (S.D. Ind. Nov. 19, 2014) (citing Downey v. Bob's Disc. Furniture Holdings, Inc., 633 F.3d 1, 6 (1st Cir. 2011)). Treating physicians, for example, often have firsthand knowledge of the events giving rise to the litigation and typically are not “retained or specially employed to provide testimony.” Id. In such cases, the treating physician need only provide a 26(a)(2)(C) summary disclosure so long as the testimony does not exceed the scope of observations made during treatment. Id.; see also Brunswick v. Menard, Inc., No. 2:11-cv-247, 2013 WL 5291965, at *3-4 (N.D. Ind. Sept. 19, 2013) (explaining that under the amended Rule 26, any physician who intends to testify must submit, at the very least, a summary report; and whether such testimony calls for a full expert report depends on the breadth of the testimony); accord Crabbs v. Wal-Mart Stores, Inc., No. 4:09-cv-519-RAW, 2011 WL 499141, at *3 (S.D. Iowa Feb. 4, 2011) (recognizing that amendments to Rule 26 supersede prior cases requiring full expert reports from non-retained experts who intend to present opinion testimony).
Likewise, a treating physician disclosed under 26(a)(2)(C) may provide causation testimony if he or she formed such opinions during the course of treatment. See EEOC v. AutoZone, Inc., 707 F.3d 824, 833 (7th Cir. 2013) (citing the holding in Meyers v. Nat'l R.R. Passenger Corp., 619 F.3d 729, 734-35 (7th Cir. 2010); see also Brunswick v. Menard, Inc., No. 2:11-cv-247, 2013 WL 5291965, at *3-4 (N.D. Ind. Sept. 19, 2013). In Meyers, the Court of Appeals for the Seventh Circuit held:
[A] treating physician who is offered to provide expert testimony as to the cause of the plaintiff's injury, but who did not make that determination in the course of providing treatment, should be deemed to be one “retained or specially employed to provide expert testimony in the case, ” and thus is required to submit an expert report in accordance with Rule 26(a)(2).
619 F.3d at 734-35 (emphasis added in Slabaugh). Although Meyers preceded the 2010 Amendment, the summary disclosure mandate of 26(a)(2)(C) creates a minimum requirement for non-retained experts and thus does not disturb the holding in Meyers. See Brunswick, 2013 WL 5291965, at *4 (explaining the purpose of the amendment). Therefore, the scope of treatment provided by Plaintiff's treating physicians governs the ...

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