Feindt, et al v. United States of America

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UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
PATRICK FEINDT, JR., et al.,
Plaintiffs,
vs.
UNITED STATES OF AMERICA,
Defendant.
CIV. NO. 22-00397 LEK-KJM
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTION IN LIMINE NO. 1, [FILED 2/26/24 (DKT NO. 278)]
On February 26, 2024, Defendant United States of
America (“Defendant”) filed its Motion in Limine No. 1: Exclude
Improper Treating-Provider Evidence (“Def.’s MIL #1”) seeking to
exclude Dr. Jason Keifer’s testimony about treatment of
Plaintiff Richelle Dietz (“Dietz”) and Dr. Keifer’s additional
causation opinions. [Dkt. no. 278.] In other words, Defendant
seeks to exclude Dr. Keifer’s testimony as a treating physician
as well as an expert witness. Defendant also seeks to exclude
expert testimony by Dr. Steven Bird, Ms. Margot Burns, and Ms.
Cynthia Fricke to the extent that they merely repeat opinions by
treating physicians that are contained in medical records.
[Def.’s MIL #1, Mem. in Supp. at 5-16.]
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Plaintiffs filed their opposition on March 4, 2024 and
argue that the parties stipulated that Plaintiffs’ experts would
be able to rely on medical records, including the diagnoses of
treating providers, in reaching their opinions; that Dr. Bird
reviewed Plaintiffs’ medical records in addition to many other
sources in reaching his general and specific causation opinions,
and independently reached his opinions on the medical conditions
suffered by Plaintiffs; and that Ms. Burns and Ms. Fricke did
not form independent opinions concerning diagnoses or medication
and thus the motion is moot as to these experts. Lastly, as to
Dr. Keifer, Plaintiffs aver that they have withdrawn him as an
expert and he will not testify as to treatment opinions. See
Bellwether Plaintiffs’ Memorandum in Opposition to the United
States’ Motion in Limine No. 1: Exclude Improper Treating-
Provider Evidence [ECF No. 278], filed 3/4/24 (dkt. no. 296)
(“Mem. in Opp.”) at 8-18.
As a preliminary matter, the Court notes that “[a]
motion in limine is a procedural mechanism to limit in advance
testimony or evidence in a particular area.” United States v.
Heller, 551 F.3d 1108, 1111 (9th Cir. 2009) (citation omitted).
This Court is afforded broad discretion in adjudicating motions
in limine. See Desire, LLC v. Manna Textiles, Inc., 986 F.3d
1253, 1259 (9th Cir. 2021) (stating a district court’s rulings
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on motions in limine are reviewed for abuse of discretion).
“However, in limine rulings are not binding” and the Court “may
always change [its] mind during the course of a trial.” Ohler v.
United States, 529 U.S. 753, 758 n.3 (2000) (citation omitted).
Thus, motion in limine rulings are always provisional.
I. 	Treating Physician Testimony
It is well-settled that all tort claims
require that damages be proven with reasonable
certainty. See, e.g., Weinberg v. Mauch, 78
Hawai`i 40, 50, 890 P.2d 277, 287 (1995) (“[I]t
is of the essence in an action . . . that the
plaintiff suffer damages as a consequence of the
defendant’s conduct, and these damages cannot be
speculative or conjectural losses.” (Internal
quotation marks and citation omitted.)); see also
Roxas v. Marcos, 89 Hawai`i 91, 141 n. 33, 969
P.2d 1209, 1259 n. 33 (citing a collection of
cases for the same proposition).
Exotics Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours & Co., 116
Hawai`i 277, 292, 172 P.3d 1021, 1036 (2007). Hawai`i requires a
plaintiff provide sufficient evidence to show that future
medical expenses are necessary and the charges are reasonable.
Condron v. Harl, 46 Haw. 66, 76, 374 P.2d 613, 619 (1962)
(deciding there was insufficient evidence to show with
reasonable certainty that plaintiff's condition would require
future medical care).
Treating physicians are exempt, however, from Federal
Rule of Civil Procedure 26(a)(2)(B)’s disclosure of a separate
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report requirement. Goodman v. Staples the Office Superstore,
LLC, 644 F.3d 817, 819 (9th Cir. 2011). This exemption from the
written report requirement is only as to opinions formed during
the course of treatment. Id. Treating physicians are required to
furnish a Rule 26(a)(2)(B) report when they morph “into a
witness hired to render expert opinions that go beyond the usual
scope of a treating doctor's testimony.” Id. at 819-20. “As a
general rule, a treating physician considers not just the
plaintiff's diagnosis and prognosis, but also the cause of the
plaintiff's injuries.” Shapardon v. W. Beach Ests., 172 F.R.D.
415, 417 (D. Hawai`i 1997). Causation, future care and extent of
disability are part of the ordinary care of a patient. Arneson
v. Michigan Tissue Bank, No. CV 05-189-M-JCL, 2007 WL 4698986,
at *10 (D. Mont. Mar. 26, 2007) (quoting Piper v. Harnischfeger
Corp., 170 F.R.D. 173, 174–75 (D. Nev. 1997)).
Dr. Keifer can testify to opinions formed during
Dietz’s treatment regarding causation and future treatment so
long as records of his care of Dietz support such opinions. Said
another way, he cannot opine as to causation and future
treatment if those opinions are not supported by his medical
records of his treatment and care of Dietz.
II. 	Dr. Bird, Ms. Burns and Ms. Fricke
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Defendant argues that Plaintiffs’ toxicologist expert,
Dr. Bird, and life care planning experts, Ms. Burns and Ms.
Fricke, are improperly repeating opinions from treating
providers and must be excluded because this type of testimony is
not permissible.
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
data;
(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. Moreover,
[a]n expert may base an opinion on facts or data
in the case that the expert has been made aware
of or personally observed. If experts in the
particular field would reasonably rely on those
kinds of facts or data in forming an opinion on
the subject, they need not be admissible for the
opinion to be admitted. But if the facts or data
would otherwise be inadmissible, the proponent of
the opinion may disclose them to the jury only if
their probative value in helping the jury
evaluate the opinion substantially outweighs
their prejudicial effect.
Fed. R. Evid. 703. The facts or data upon which expert opinion
is based may be derived from three possible sources: (1) “the
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firsthand observation of the witness with opinions based thereon
traditionally allowed”; (2) “presentation at trial[]”; and (3)
“presentation of data to the expert outside of court and other
than his own perception.” Rule 703, advisory committee’s notes
to 1972 proposed rules. Where an expert reasonably relies on
inadmissible information to form an opinion or inference, the
trial court must consider a balancing test and determine whether
the probative value substantially outweighs its prejudicial
effect. Rule 703, advisory committee’s notes to 2000 amendment.
“An expert can rely on information reasonably relied
upon by experts in their fields, Fed. R. Evid. 703, but must be
more than a conduit or transmitter for testimonial hearsay.”
United States v. Shih, 73 F.4th 1077, 1098 (9th Cir. 2023)
(quotation omitted); San Francisco Baykeeper v. City of
Sunnyvale, 627 F. Supp. 3d 1085, 1101 (N.D. Cal. 2022) (citing
United States v. Tran Trong Cuong, 18 F.3d 1132, 1143 (4th Cir.
1994) (expert witness may rely on admissible opinions of other
experts but cannot merely copy or parrot another expert’s
report)).
Where Dr. Bird, Ms. Burns and Ms. Fricke would, in
their fields of expertise, reasonably rely on facts or data in
applying their individual specialized knowledge to help the
trier of fact understand the evidence or determine a fact, then
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these expert witnesses (once qualified) are permitted to testify
as to their opinions or conclusions. “In technical fields such
as the field of medicine, it is common for one expert to rely on
the opinion of another.” Aoki v. MobileHelp, LLC, Civ. No. CV
20-00464 HG-RT, 2022 WL 972419, at *3 (D. Hawai`i Mar. 31, 2022)
(citations omitted). Experts cannot, however, merely repeat
opinions or conclusions of other experts as their testimony. Id.
at *4 (“Rule 703 does not permit expert witnesses to circumvent
hearsay rules by solely testifying about the opinions of other
experts.”) In other words, Dr. Bird, Ms. Burns and Ms. Fricke
can testify about facts and data (including opinions contained
in other expert witness reports) reasonably relied upon in their
respective fields but only to the extent that each applied their
specialized knowledge in arriving at their opinion. They are not
permitted to deliver conclusions from other expert witnesses’
reports as their trial testimony.
A. 	Dr. Bird
Dr. Bird has testified that he has not examined any of
the plaintiffs but is relying solely on his review of their
medical records and information to arrive at “his specific
causation opinion . . . to determine which health effects, if
any, were caused or worsened as a result of each Plaintiff’s
exposure to JP-5 fuel . . . .” Mem. in Opp. at 10, see id. at
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11. Defendant argues that Dr. Bird has not formed any
independent opinions on diagnoses but is merely parroting the
diagnoses stated by treating physicians in medical records.
[Def.’s MIL #1, Mem. in Supp. at 13.] Dr. Bird does not provide
any medical diagnoses for the plaintiffs in his July 23, 2023
expert report. [Mem. in Opp., Exh. B (Report of Steven B. Bird,
MD FACEP FACMT, dated 7/24/23).] Therefore, he cannot
permissibly give opinion testimony about the diagnosis of any
medical conditions since he did not conduct an independent
analysis of each plaintiff’s medical conditions and provide a
diagnosis for each of them in his expert report. Expert
testimony as to diagnosis, prognosis, extent of disability or
other matters based on treatment of the individual plaintiff
must come from their treating physicians.
Defendant’s MIL No. 1 is GRANTED IN PART in that Dr.
Bird is not permitted to testify about Plaintiffs’ diagnoses and
prognoses. It is DENIED IN PART as to his opinions on causation
to the extent previously ruled upon by this Court. See Order
Granting in Part and Denying in Part Defendant’s Motion to
Exclude the Expert Report and Testimony of Dr. Steven Bird,
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[Filed 1/16/24 (Dkt. No. 234)], filed 4/9/24 (dkt. no. 410)
(“4/9 Order”). 1 ]
B. 	Ms. Burns and Ms. Fricke
If Ms. Burns and Ms. Fricke in their field of life
care planning rely on medical records containing the diagnosis
and prognosis of medical conditions, and medication or other
treatment as a basis to apply their expertise in providing a
life care plan, and it is demonstrated that this is a reasonable
practice relied upon by experts in their field, then Ms. Burns
and Ms. Fricke are permitted to testify about the diagnoses and
prognoses that they considered and used as assumptions in
rendering their opinions as to life care planning. Defendant’s
MIL No. 1 is DENIED as to Ms. Burns and Ms. Fricke for these
reasons.
III. Witness Disclosures
On September 15, 2023, Plaintiffs filed their amended
designation of expert witnesses pursuant to Federal Rule of
Civil Procedure 26(a)(2). [Plaintiffs’ First Amended Designation
of Testifying Expert Witnesses (dkt. no. 169) (“9/15 Expert
Witness Designation”)]. Subsequently, on September 26, 2023, the
parties filed a stipulation regarding the disclosure of
1 The order is also available at 2024 WL 1532747.
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Plaintiffs’ medical providers, stating that the only medical
provider witnesses that Plaintiffs “will rely upon or otherwise
use for Any Litigation Purpose in the First Bellwether
Proceeding will . . . identified in [the 9/15 Expert Witness
Designation].” [Stipulated Order Concerning Plaintiffs’ Rule
26(a) Disclosures and Plaintiffs’ Agreement Not to Rely on
Certain Medical Providers; Order filed 9/26/23 (dkt. no. 179)
(”9/26 Stipulated Order”), at ¶ 1.] “Medical Provider” is
defined as “any person who at any time (now or in the future)
has provided, opined on, or otherwise has been involved in
Plaintiffs’ medical, physical, emotional . . . or other
specialized healthcare treatment . . . .” [Id. at ¶ 2.] The 9/26
Stipulated Order includes Dr. Bird, Dr. Keifer, Ms. Fricke, and
Ms. Burns as witnesses. [9/15 Expert Witness Disclosure at
¶¶ 4,8, 11 and 12.]
Parties have an obligation to make initial disclosures
pursuant to Rule 26(a)(1), which provides in relevant part:
(A) In General. Except as exempted by Rule
26(a)(1)(B) or as otherwise stipulated or ordered
by the court, a party must, without awaiting a
discovery request, provide to the other parties:
(i) the name and, if known, the address and
telephone number of each individual likely
to have discoverable information--along with
the subjects of that information--that the
disclosing party may use to support its
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claims or defenses, unless the use would be
solely for impeachment;
(ii) a copy--or a description by category
and location--of all documents,
electronically stored information, and
tangible things that the disclosing party
has in its possession, custody, or control
and may use to support its claims or
defenses, unless the use would be solely for
impeachment;
(iii) a computation of each category of
damages claimed by the disclosing party--who
must also make available for inspection and
copying as under Rule 34 the documents or
other evidentiary material, unless
privileged or protected from disclosure, on
which each computation is based, including
materials bearing on the nature and extent
of injuries suffered; and
(iv) for inspection and copying as under
Rule 34, any insurance agreement under which
an insurance business may be liable to
satisfy all or part of a possible judgment
in the action or to indemnify or reimburse
for payments made to satisfy the judgment.
There are also requirements for expert testimony disclosures,
pursuant to Rule 26(a)(2)(A)-(E), and pretrial disclosures,
pursuant to Rule 26(a)(3)(A)-(B). Here, the parties essentially
stipulated that the medical provider witnesses that will testify
at trial are limited to those listed in the 9/15 Expert Witness
Disclosure. “‘Because stipulations serve both judicial economy
and the convenience of the parties, courts will enforce them
absent indications of involuntary or uninformed consent.’” Chi-
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Fu Hsueh v. Bankers Life & Cas. Co., 421 F. Supp. 3d 937, 944
(S.D. Cal. 2019) (quoting CDN Inc. v. Kapes, 197 F.3d 1256, 1258
(9th Cir. 1999)). The medical provider witnesses are therefore
limited to those listed in the expert witness disclosure. In
other words, any medical provider not listed in the expert
disclosure cannot testify at trial.
Dr. Keifer was disclosed in the 9/15 Stipulated Expert
Witness Disclosure and thus he may testify about his opinions,
including those involving Diez’s treatment, care, diagnosis, and
prognosis.
Dr. Bird was disclosed in the 9/15 Stipulated Expert
Witness Disclosure and thus he may testify about his opinions on
short-term causation of medical conditions but not, as set forth
more fully above, as to diagnosis and prognosis of any of the
Plaintiffs’ medical conditions.
Ms. Burns and Ms. Fricke were disclosed in the 9/15
Stipulated Expert Witness Disclosure and thus they may testify
about their opinions on life care planning and, if it is first
demonstrated that experts in their fields rely on medical
records and the diagnoses and prognoses contained in those
records to base their life care planning analysis, then they may
testify about hearsay information that they relied upon in
arriving at their opinions. However, while Ms. Burns and Ms.
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Fricke may testify about information contained in medical
records to form their life care planning opinions, this does not
mean that the truth of the medical records (i.e., diagnosis,
treatment, medical expenses, and prognosis) has been proven
because these expert witnesses are relying on hearsay. The truth
of any diagnosis, treatment, and prognosis for any individual
plaintiff must be established by a qualified witness with first-
hand knowledge (such as a treating physician) or through other
evidence that is an exception to the hearsay rule. See Fed. R.
Evid. 801(c), (d). As previously stated, Hawai`i law requires
that damages in tort claims must be proven with reasonable
certainty and thus Plaintiffs must demonstrate admissible
evidence of injury.
CONCLUSION
On the basis of the foregoing, Defendant’s Motion in
Limine No. 1: Exclude Improper Treating-Provider Evidence, filed
on February 26, 2024 is HEREBY GRANTED IN PART AND DENIED IN
PART. Defendant’s MIL No. 1 is GRANTED IN PART insofar as Dr.
Keifer cannot opine as to causation and future treatment if
those opinions are not supported by his medical records of his
treatment and care of Dietz. Defendant’s MIL No. 1 is DENIED IN
PART insofar as Dr. Keifer can testify to opinions formed during
Dietz’s treatment regarding causation and future treatment so
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long as records of his care of Dietz support such opinions.
Defendant’s MIL No. 1 is GRANTED IN PART in that Dr. Bird is not
permitted to testify about Plaintiffs’ diagnoses and prognoses.
It is DENIED IN PART as to Dr. Bird’s opinions on causation to
the extent previously ruled upon by this Court. Defendant’s MIL
No. 1 is GRANTED IN PART insofar as Ms. Burns and Ms. Fricke are
not permitted to deliver conclusions from other expert
witnesses’ reports as their trial testimony. Defendant’s MIL No.
1 is DENIED IN PART insofar as Ms. Burns and Ms. Fricke are
permitted to testify about the diagnoses and prognoses that they
considered and used as assumptions in rendering their opinions
as to life care planning.
IT IS SO ORDERED.
DATE AT HONOLULU, HAWAII, April 22, 2024.
PATRICK FEINDT, JR., ET AL. VS. UNITED STATES OF AMERICA; CV 22-
00397 LEK-KJM; ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION IN LIMINE NO. 1, [FILED 2/26/24 (DKT NO.
278)]
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