United States District Court, S.D. Indiana, New Albany Division
EUGENE E. SALESMAN, Plaintiff,
YELLOW AMBULANCE SERVICES, Defendant.
ENTRY ON MOTIONS IN LIMINE
WALTON PRATT, JUDGE
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.
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.)
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.
party has filed a Motion in Limine with multiple
facets. The Court will address each Motion separately.
Yellow Ambulance's Motion in Limine (Filing No.
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. (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.)
Healthcare Providers' Testimony
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.
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.
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,
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
[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