Free Motion in Limine - District Court of Arizona - Arizona

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Mary H. Beard Admitted Pro Hac Vice FEDERAL EXPRESS CORPORATION 3620 Hacks Cross Road, Building B-3rd Floor Memphis, TN 38125 Telephone: (901) 434-8061 Facsimile: (901) 434-9279 Email: [email protected] FENNEMORE CRAIG, P.C. Lori A. Higuera (No. 017273) Alec R. Hillbo (No. 020185) 3003 North Central Avenue Suite 2600 Phoenix, AZ 85012-2913 Telephone: (602) 916-5000 Email: [email protected] Email: [email protected] Attorneys for Defendant Federal Express Corporation UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA SEAN L. HARGROW, Plaintiff, v. FEDERAL EXPRESS CORPORATION, a Delaware corporation; JOHN and JANE DOES IX; BLACK CORPORATION I-X; WHITE LIMITED LIABILITY COMPANIES I-X, Defendants. No. 03-0642 PHX DGC

DEFENDANT FEDERAL EXPRESS CORPORATION'S MOTION IN LIMINE REGARDING TESTIMONY OF PHYSICIANS AND MEDICAL PROFESSIONALS

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Defendant Federal Express Corporation ("FedEx"), by and through counsel, hereby submits its Motion in Limine to exclude evidence regarding testimony of physicians and medical professionals. FedEx respectfully requests that the Court issue an order in limine precluding any mention by Plaintiff, Plaintiff's counsel, and Plaintiff's witnesses of this evidence during trial. Plaintiff's failure to disclose physicians and medical professionals pursuant to FRCP Rule 26(A)(2)(A) precludes their testimony at trial. At the beginning of this case,

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the Court entered an order requiring the parties to designate expert witnesses no later than December 17, 2004. Plaintiffs failed to designate any expert witnesses by the deadline. Having failed to timely designate experts in compliance with the Court's order, Plaintiff failed to disclose Tim Tays, Peter Mitchell, Lewis Freed, Kevin Feig, Paul Nelson, Gary Wright, Pam Williams and Randall Hardison. Rule 26 requires that both "retained" and "unretained" experts must be disclosed under Rule 26(a)(2)(A). Sprague v. Liberty Mut. Ins., 177 F.R.D. 78, 81 (D.N.H. 1998); Muser v. Gentiva Health Services, 356 F3d 751, 756, fn.2 (7th Cir 2004). Plaintiff's failure to disclose experts Tim Tays, Peter Mitchell, Lewis Freed, Kevin Feig, Paul Nelson, Gary Wright, Pam Williams and Randall Hardison under Rule 26(a)(2)(A) precludes him from calling them as a witness and introducing their testimony at trial. Id. Where this Court to permit Tim Tays, Peter Mitchell, Lewis Freed, Kevin Feig, Paul Nelson, Gary Wright, Pam Williams and Randall Hardison to testify in spite of Plaintiff's failure to have ever disclosed them before listing them on Plaintiff's witness list, Tim Tays, Peter Mitchell, Lewis Freed, Kevin Feig and Randall Hardison should be strictly limited to percipient testimony. As the Seventh Circuit observed in Musser, there is a difference of opinion among the district courts as to whether a treating physician must provide a Rule 26(a)(2)(B) report when the physician's anticipated testimony goes beyond his or her observations, diagnosis or treatment and is expected to include opinions on issues such as causation, prognosis and permanency. Some courts, have held that those issues go beyond the scope of the testimony a treating physician may render without providing a Rule 26(a)(2)(B) report. See, e.g., Sowell v. Burlington N. & Santa Fe Ry. Co., 2004 U.S. Dist. LEXIS 24738, 8-12 (D. Ill. 2004); Zarecki v. National R.R. Passenger Corp., 914 F. Supp. 1566, 1573 (N.D. Ill. 1996) (striking treating physician's affidavit with opinions on causation and foreseeability where physician was not disclosed pursuant to Rule 26(a)(2) and failed to serve report); Rebolledo v. Herr-Voss Corp., 101 F. Supp. 2d 1034, 1039 (N.D. Ill. 2000) (testimony of treating physician who did not prepare a Rule 26(a)(2)(B) report limited to observations made during the course of
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treating the plaintiff and to matters within his personal knowledge); Murray v. Chicago Transit Auth., 1999 U.S. Dist. LEXIS 948, No. 97 C 7923, 1999 WL 49355 at *1 (N.D. Ill. Jan. 29, 1999) (Levin, M.J.) (testimony of a treating physician as to causation requires a Rule 26(a)(2)(B) expert report); Schoolman v. UARCO, Inc., 1999 U.S. Dist. LEXIS 936, No. 94 C 5598, 1999 WL 47124 at *3 (N.D. Ill. Jan. 20, 1999) (Coar, J.) (testimony of treating physician who did not submit an expert report limited to the physical condition of the plaintiff as observed by the physician); see also Hoover v. U.S., 2002 U.S. Dist. LEXIS 15648, No. 01 C 2372, 2002 WL 1949734 at *6-7 (N.D. Ill. Aug. 22, 2002) (Schenkier, M.J.) (stating, in dicta, that the report requirement does not apply to a physician testifying solely as a treater, but when physician is asked to give an opinion beyond treatment relationship, physician may be required to submit an expert report); Garza v. Abbott Lab., 1996 U.S. Dist. LEXIS 12506, No. 95 C 3560, 1996 WL 494266 at *1 (N.D. Ill. Aug. 27, 1996) (Castillo, J.) (treating physician does not need to submit a report if testimony is within his personal knowledge). This Court should adopt this line of reasoning and strictly limit Tim Tays, Peter Mitchell, Lewis Freed, Kevin Feig, Paul Nelson, Gary Wright, Pam Williams and Randall Hardison to percipient testimony and preclude them from testifying on issues such as causation, prognosis and permanency as Plaintiff failed to provide a 26(a)(2)(B) report.

DATED this 2nd day of November, 2006.

Respectfully submitted,

By: /s/ Mary H. Beard Mary H. Beard FEDERAL EXPRESS CORPORATION and Lori A. Higuera Alec R. Hillbo FENNEMORE CRAIG, P.C. Attorneys for Defendant Federal Express Corporation
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CERTIFICATE OF SERVICE I hereby certify that on November 2, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

Mishka L. Marshall Marshall Law Group, P.C. 777 East Thomas Road, Suite 210 6 Phoenix, AZ 85014
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/s/ Mary H. Beard Mary H. Beard

621363

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