Opinion
Civil Action NO. 99-1535 Section "B"(5).
March 27, 2000.
ORDER AND REASONS
This matter is before the Court for consideration of Webex, Inc.'s motion in limine to exclude or limit plaintiff's expert testimony and plaintiff's motion in limine to strike or limit the testimony of defendant's consulting engineer, Charles Pruitt. Having considered the memoranda and the law, the Court enters the following ruling.
Webex's motion in limine:
Webex moves to exclude or limit the testimony of plaintiff's experts for plaintiff's failure to comply with pretrial orders and Fed.R.Civ.Pr. 26. Defendant contends that the "preliminary report" provided by plaintiff's engineering expert Robert Lipp is one page in length and is not in compliance with the parameters of Fed.R.Civ.Pr. 26. Webex also received a report from Dr. Stephen Capps, M.D. and only office notes from Dr. R. Hugh Fleming. These doctors are two of seven treating physicians listed on plaintiff's witness list. Plaintiff has also listed a physical therapist who has not submitted a report. Defendant argues that any health care provider who has not submitted a report should be excluded.
Defendant also argues that plaintiff had noticed an on-site inspection of the machinery at issue. That inspection has been cancelled rendering this issue moot.
Plaintiff opposes the limitation of his witnesses on the basis that treating physicians may testify as expert witnesses without providing a written report. Further, plaintiff contends that it would be inappropriate to call a physician as an expert if the testimony is based on the treatment of the plaintiff. Plaintiff concedes that the health care providers who did not submit reports will only testify regarding their treatment and not information obtained from other sources. Plaintiff also contends that, to require reports from all health care providers would place an unfair financial burden on plaintiff.
Considering the prior orders of this Court and the requirements of Fed.R.Civ.Pr. 26, the Court will only allow expert testimony from those experts and physicians whose reports were timely produced. The testimony of those experts shall be limited to the areas addressed in those reports.
Plaintiff's motion in limine:
Plaintiff seeks to exclude or limit the testimony of defendant's engineering expert. Charles Pruitt, who intends to testify that plaintiff was injured as a result of his unfamiliarity with the Webex machine he was using at the Gaylord Box Plant and that the responsibility for training was on Gaylord. Plaintiff argues that these contentions are not matters within the purview of a mechanical engineer's expertise nor are they matters upon which the fact-finder needs expert opinions. This testimony is therefore not within the scope of that needed from an expert under Fed.R. Ev. 702.
Defendant contends that Pruitt is qualified to opine regarding causation of this accident. Defendant argues that plaintiff has testified at his deposition that he did not have enough training on this equipment. This fact can be considered by the expert in reaching his causation conclusions under the authority of Fed.R.Ev. 704(a). Defendant also notes that plaintiff raised the lack of training as an issue in ¶ XI of the complaint. The expert has used these facts in reaching his causation opinion.
The Court will allow Pruitt to testify regarding if a user of this machine is not properly trained via on the job methods, whether that could lead to injury and how, especially if the user had no knowledge about emergency shutdown sequence. Further, Pruitt can testify to rebut plaintiff's expert regarding lockout devices. Pruitt will not be allowed to state or otherwise conclude that plaintiff had no knowledge or was not trained. Accordingly,
IT IS ORDERED that Webex's motion in limine to exclude or limit plaintiff's expert testimony is GRANTED as stated herein.
IT IS FURTHER ORDERED that plaintiff's motion in limine to exclude or limit the testimony of Charles Pruitt is GRANTED in part and DENIED in part as stated herein.
New Orleans, Louisiana, this 27th day of March, 2000.