United States District Court, D. New Mexico
DENNIS MURPHY, Guardian Ad Litem for N.E.D., an incapacitated minor; JACOB DOTSON; DOMINIQUE BILLY, individually and as next friend of I.C. and S.D., minors, Plaintiffs,
THE UNITED STATES OF AMERICA, Defendant.
MEMORANDUM OPINION AND ORDER
Dennis Murphy, Guardian Ad Litem for N.E.D., Jacob Dotson,
and Dominique Billy, individually and as next of friend of
minors I.C. and S.D. (Plaintiffs) filed suit against
Defendant United States of America (United States or
Defendant) seeking damages for alleged medical negligence,
negligent training and supervision, and personal injuries
under the Federal Tort Claims Act (FTCA) and New Mexico State
Plaintiffs' claims arise out of emergency medical
treatment rendered to minor child N.E.D. at the Gallup Indian
Medical Center (GIMC), an Indian Health Services facility in
Gallup, New Mexico in February 2016. Plaintiffs allege, among
other things, that Dr. Stephen Waite and other GIMC medical
personnel failed to properly protect and monitor N.E.D.'s
airway following a rapid sequence induction and intubation.
See Amended Complaint ¶ 36. Plaintiffs claim
this ultimately led to deprivation of oxygen for a period
sufficient to cause N.E.D. to suffer a permanent hypoxic
brain injury. See id.
April 6, 2018, Defendant disclosed its expert witnesses,
including two Board Certified Emergency Room Physicians,
William F. Spangler, M.D. and Jack L. Sharon, M.D. Plaintiffs
filed a motion in limine asking the Court to exclude the
opinions of Defendant's two proffered emergency medicine
experts on the ground their intended testimony is cumulative
and will prejudice Plaintiffs. The Motion is fully
briefed. The Court having considered the
parties' briefing, arguments, and relevant law will deny
Motion, Plaintiffs claim that the expert reports prepared by
Dr. Spangler and Dr. Sharon, both emergency medicine experts,
reveal little to no variance in their opinions regarding
N.E.D.'s treatment at GIMC. See Mot. at 3-4.
Plaintiffs assert that Defendant should not be allowed to
present such unnecessarily cumulative testimony because it
will waste judicial resources and will cause undue prejudice
to Plaintiffs in contravention of Federal Rule of Evidence
403. See Mot. at 2. Plaintiffs suggest that the
prejudice is exacerbated by the financial burden of
“deposing two expert witnesses charging exorbitant
witness fees when their testimony will overlap.”
See Mot. at 2. Though relegated to a footnote in the
Motion, and only expounded upon in their Reply, Plaintiffs
also argue that Dr. Sharon's disclosure should be
stricken because his expert report is unsigned, and because
Defendant failed to include Dr. Sharon's fee schedule
with the disclosure. See Mot. at 3, FN 1; Reply at
counters first that Plaintiffs' Motion is premature,
suggesting that the use of the term “may” in
Federal Rule of Civil Procedure 26(a)(2)(A) contemplates that
parties will designate more experts than they intend to call
at trial and that several strategic considerations, as here,
affect a party's ultimate selection. See Resp.
at 2. Defendant also contends that Dr. Spangler and Dr.
Sharon have unique education and experience that shape their
opinions in this case. See Resp. at 2. Specifically,
Defendant states that in addition to offering opinions on Dr.
Waite's decision to intubate N.E.D., Dr. Spangler will
also offer “insight into the overall workings of
emergency room departments.” See Resp. at 2-3.
Dr. Sharon, the United States continues, has experience
working in the same geographical part of the country and
trauma treatment level as GIMC. See Resp. at 3-4.
Defendant points out that Plaintiffs have had the opportunity
to depose both experts to explore anticipated testimony, yet
chose not to do so, and only for the first time in this
Motion raised concerns regarding the expense of deposing both
experts - a concern that Defendant suggests is not credible
given the monetary damages at issue in this case.
See Resp. at 5. Finally, Defendant argues that any
alleged prejudice is mitigated by the fact that the Court,
rather than a jury, will be the factfinder in this case.
See Response at 6-7.
the parties do not dispute that testimony from an expert in
emergency medicine related to the standard of care and the
treatment provided to Plaintiff N.E.D. at GIMC on February
28, 2016 is relevant. However, Federal Rule of Evidence 403
authorizes a court to exclude even relevant evidence
“if its probative value is substantially outweighed by
a danger of…unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Fed.R.Evid. 403. The
“exclusion of evidence under Rule 403…is an
extraordinary remedy and should be used sparingly.”
U.S. v. Brooks, 736 F.3d 921, 941 (10th Cir. 2013)
(internal quotation marks and citation omitted). While the
Court has discretion to limit the number of experts under
this rule it cannot do so “arbitrarily, or on the basis
of mere numbers.” See Green Constr. Co. v. Kan.
Power & Light Co., 1 F.3d 1005, 1014 (10th Cir.
assures the Court that it does not seek to introduce
cumulative testimony at trial, and that Dr. Spangler's
testimony will address general emergency room procedure while
Dr. Sharon will speak more specifically to practice in Level
III Trauma Centers in a geographically similar area of the
United States. Under New Mexico law, a doctor has the duty to
possess and apply the knowledge and to use the skill and care
ordinarily used by reasonably well-qualified doctors
practicing under similar circumstances, giving due
consideration to the locality involved. NMRA, Civ. UJI
13-1101. Accordingly, while New Mexico does not adhere to a
“strict locality” rule, locality is one factor to
consider when analyzing whether a physician's conduct met
the standard of care. See Pharmaseal Laboratories, Inc.
v. Goffe, 1977-NMSC-071, ¶ 16, 568 P.2d 589, 594
(“[D]ue consideration must be given by the fact-finder
to the locality involved and the ways, if any, in which it
differs from the locality about which the expert testifies,
but this is merely one factor for the fact-finder to
of the opinions in the experts' reports certainly overlap
and do not reflect the differences Defendant suggests exist.
However, the Court is not convinced that designation of two
experts who may testify in the same area is necessarily
cumulative. Moreover, Plaintiffs suggest that they will be
unduly prejudiced by admission of both experts'
respective testimony. But, other than citing to financial
costs associated with taking the experts' depositions, if
Plaintiffs decide to do so, Plaintiffs offer no explanation
as to how they will prejudiced by possible duplicative expert
testimony at the non-jury trial. The Court does not belittle
the costs involved in litigation and specifically the expense
of deposing medical expert witnesses. But generally, unless
manifest injustice would result, the party seeking discovery
is responsible for paying the expert a reasonable fee for
time spent responding to that discovery. See Fed. R.
Civ. P. 26 (b)(4)(E). Plaintiffs have not demonstrated that
manifest injustice would result from paying expert fees.
Plaintiffs have the option to forego taking in-person
depositions or to work with opposing counsel to reach an
agreement about alternatives to reduce costs.
Plaintiffs ask the Court to strike Dr. Sharon's
disclosure based on Defendant's alleged failure to
include a fee schedule and the fact that Dr. Sharon's
report lacked a signature. As a preliminary matter, the Court
notes that Defendant included Dr. Sharon's fees in the
description of Dr. Sharon's proffered testimony in the
United States' initial expert witness disclosures.
See Ex. 3 to Resp., Defendant's Expert Witness
Disclosures at 2. And while the Court recognizes that Dr.
Sharon's report was unsigned at disclosure, the report
was fully disclosed by the April 10, 2018 deadline, five
months before trial. Plaintiffs have not demonstrated how the
lack of a signature substantively prejudices them. Federal
Rule of Evidence 26 (a)(2)(B) indicates that disclosure of an
expert must be accompanied by a written report, prepared and
signed by the witness, that contains a complete statement of
the expert's opinion and the basis of that opinion, the
facts or data the expert considered, the expert's
qualifications, a list of cases in which the witness has
testified for the previous four years, and a statement of
compensation. Defendant has substantially complied with this
rule, and the Court will allow Defendant an opportunity to
cure the defect by providing Plaintiffs with a signed and
sworn copy of the report or a sworn affidavit from Dr. Sharon
adopting the report's contents. See Jenkins v.
Bartlett, 487 F.3d 482, 489 (7th Cir. 2007) (finding
that a letter submitted by an attorney for police officers in
a 42 U.S.C. § 1983 action that identified doctors as
expert witnesses, provided the curriculum vitae of each
witness, and stated the expected testimony and basis of that
testimony, substantially complied with Fed.R.Civ.P.
26(a)(2)(B), notwithstanding the fact that neither doctor had
prepared or signed the letter, but where both doctors
subsequently submitted sworn affidavits adopting the
time the Court will not require Defendant to exclude one of
the disclosed emergency medicine experts. However, the Court
may later decide to restrict Defendant to one emergency
medicine expert if it becomes clear that the testimony of Dr.
Spangler and Dr. Sharon is inappropriately cumulative.
THEREFORE ORDERED THAT Plaintiffs' Motion in Limine to
Exclude Defendant United States of America's Emergency
Medicine Experts (Doc. 85) is DENIED without prejudice,
allowing Plaintiffs to make proper objections to cumulative
evidence at trial.
 See FIRST AMENDED COMPLAINT
FOR MEDICAL NEGLIGENCE, PERSONAL INJURIES AND DAMAGES ARISING
UNDER FEDERAL TORT CLAIMS ACT AND NEW MEXICO LAW (Doc.
See PLAINTIFFS' MOTION IN
LIMINE TO EXCLUDE DEFENDANT UNITED STATES OF AMERICA'S
EMERGENCY MEDICINE EXPERTS ...