Opinion
Civ. File No. 99-1033 (PAM/RLE).
March 29, 2001.
ORDER
This matter is before the Court on Motions in Limine filed by Plaintiff Stephanie Stevens and Defendants City of Virginia, Dana Waldron, David Koski, and Tom Krause. For the reasons that follow, Plaintiff's Motions will be granted in part and denied in part and Defendants' Motion will be denied.
A. Plaintiff's Motions in Limine
Plaintiff filed several Motions in Limine, seeking to exclude several of Defendants' proposed exhibits and Defendants' expert witness. Each Motion will be discussed separately.
1. Defendants' Exhibits 2, 3, and 4
Defendants' Exhibit 2 consists of Plaintiff's medical records, Exhibit 3 consists of Plaintiff's Social Security file, and Exhibit 4 consists of additional Social Security documents. Plaintiff argues that these exhibits should be excluded because Defendants failed to produce them during discovery. It appears, however, that Defendants did in fact make the documents available to Plaintiff as early as September 7, 2000. Specifically, in response to Plaintiff's request for production of documents, Defendants stated that "[p]ursuant to Rule 34(b), the records are available for review at Erstad Riemer, P.A., at a mutually agreeable time." (Defs.' Mem. in Opp'n to Pl.'s Mot. in Limine at 2-3.) However, Plaintiff never made arrangements to view the documents. Nor did she complain that Defendants' proposal was unreasonable or contrary to the rules of civil procedure. Given Plaintiff's failure to do either of those things, it would be highly unreasonable to exclude the evidence on this basis.
Plaintiff also argues that Plaintiff's Social Security records should be excluded as irrelevant. She fails to explain why these exhibits are irrelevant, however. In response, Defendants argue that the records are relevant because Plaintiff claims loss of income, which may be rebutted by social security records which show that she has been working. In addition, Defendants contend that the records are relevant to Plaintiff's claim of physical and emotional injury. Because Plaintiff has failed to explain why the records in issue are irrelevant, the Court denies her Motion.
2. Defendants' Exhibit 6
Next, Plaintiff seeks to exclude Defendants' Exhibit 6, the City of Virginia's file on Plaintiff. The exhibit contains the following documents: police officers' personnel files, Minnesota Department of Human Rights documents, bank statements, prior sworn testimony of Plaintiff's friend, Joe Smith, materials from Smith's criminal file, and letters written by Plaintiff. According to Plaintiff, the exhibit should be excluded under Federal Rule of Evidence 403, which permits the exclusion of evidence on the basis that its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Apart from describing the contents of the file, Plaintiff makes no actual argument as to why the exhibit's contents are unduly prejudicial, confusing, misleading, or a waste of judicial resources.
Defendants explain that the police officers' personnel files, the Minnesota Department of Human Rights documents, and any materials confiscated from Plaintiff's home during the search at issue should be admitted because they directly relate to Plaintiff's claims against the officers and the City. Defendants further explain that the other documents should be admitted for impeachment purposes.
As above, Plaintiff's lack of specificity makes it difficult for the Court to fully assess the alleged impropriety of the evidence in question. Defendants' explanations, however, are adequate to defeat Plaintiff's Motion.
3. Defendants' Exhibit 8
Plaintiff next seeks to exclude Defendants' Exhibit 8, which is Plaintiff's file from the St. Louis County Jail. Plaintiff was incarcerated there after her arrest by the officers named as Defendants in this case. According to Defendants, the St. Louis County Jail file will be used as evidence against Plaintiff's claimed injury and to refresh her recollection as to the events that occurred while she was in jail. The Court finds that Defendants' explanation as to the utility of the evidence is sufficient to overcome Plaintiff's Motion.
4. Defendants' Exhibits 9 and 7
Defendants' Exhibit 9 includes documents relating to a civil action filed by Plaintiff against the City of Des Moines in 1982. Plaintiff argues that these exhibits should be excluded because Defendants failed to produce them during discovery. Once again, it appears that Defendants did in fact make the documents available to Plaintiff as early as September 7, 2000. (See Defs.' Mem. in Opp'n to Pl.'s Mot. in Limine at 5.) However, as above, Plaintiff never made arrangements to view the documents. Nor did she complain that Defendants' proposal was unreasonable or contrary to the rules of civil procedure. Given Plaintiff's failure to do either of those things, the Court will not exclude the evidence on this basis.
Plaintiff also argues that Exhibit 9 should be excluded because its contents are irrelevant and prejudicial. Defendants respond that the exhibit will be used for impeachment purposes and to counter Plaintiff's allegations of newly found mental anguish, humiliation, embarrassment, and emotional distress, as well as Plaintiff's loss of income claim. Given that the exhibit in question is almost twenty years old, the Court finds that it may be too remote to have any relevance in this lawsuit. Accordingly, at this time, the Court grants Plaintiff's Motion with respect to Exhibit 9. However, the Court does so without prejudice. That is, if relevance can be established at trial, Defendants may renew their request to admit the evidence.
Defendants' Exhibit 7, a newspaper article relating to Plaintiff's 1982 Des Moines lawsuit, will be excluded for the same reason. Defendants contend that the article will be used for impeachment purposes. As above, however, the Court finds that the article is of limited relevance given that it relates to events that occurred almost twenty years ago. Plaintiff's Motion is granted with respect to Exhibit 7, but as with Exhibit 9, it is granted without prejudice to Defendants.
5. Evidence of Joe Smith's Woes in Connection with Plaintiff's Claim
Although not listed as an exhibit, Plaintiff claims that Defendants may seek to admit evidence regarding legal proceedings against Joe Smith, which allegedly resulted from attempts by the City of Virginia's chief of police to extort money from Smith. According to Plaintiff, this evidence should be excluded as irrelevant and speculative. Defendants argue that the evidence is relevant because it relates to Plaintiff's harassment allegations against the City. At this time, the Court finds that Defendants' explanation as to the utility of the evidence is sufficient to overcome Plaintiff's Motion. However, should it appear at trial that the exhibit is being improperly used it may, in whole or in part, be excluded.
6. Defendants' Expert Exhibits and Deposition
Finally, Plaintiff seeks to exclude the documents reviewed by Defendants' expert witness, Dr. Frederick T. Strobl. Plaintiff also seeks to exclude Dr. Strobl's testimony on the basis that he is unqualified. As for the documents, Plaintiff once again complains that they were not produced for Plaintiff in accordance with the Federal Rules of Civil Procedure. Once again, however, it appears that Defendants did in fact make the documents available to Plaintiff as early as September 7, 2000. (See Defs.' Mem. in Opp'n to Pl.'s Mot. in Limine at 6.) Therefore, as above, the Court will not exclude this evidence simply because Plaintiff did not avail herself of the opportunity to view the documents.
The essence of Plaintiff's argument is that because her attorney did not have the documents before Dr. Strobl's deposition-which was videotaped for trial-her attorney will appear to have been disorganized, and Plaintiff will be prejudiced as a result. For that reason, she argues that Dr. Strobl's videotaped deposition should be excluded. Although it is unfortunate that Plaintiff's counsel did not perform as well as she had hoped during the deposition, that is no reason to exclude the deposition. She could have seen the documents long before the deposition was taken, but apparently chose not to do so. As such, her Motion with respect to this issue will be denied.
Plaintiff also challenges Dr. Strobl's qualifications to testify as to Plaintiff's psychological condition because he never actually examined Plaintiff. Dr. Strobl is board certified by the American Board of Psychiatry and Neurology. He is therefore qualified to testify as to psychiatric issues. Of course, at trial, Plaintiff is certainly entitled to cast doubt on Dr. Strobl's conclusions as to Plaintiff's condition by highlighting his lack of contact with Plaintiff.
B. Defendants' Motion in Limine
Defendants filed a Motion in Limine concerning Plaintiff's medical expert, Dr. Fred Lux, who treated Plaintiff for seizures and headaches after her arrest by Defendants. Defendants seek the wholesale exclusion of Dr. Lux's testimony on the basis that he is not qualified to testify as to the cause of her condition. If Dr. Lux is permitted to testify, Defendants seek to limit his testimony to the facts known to him at the time he treated Plaintiff.
As for the first issue, it appears that Dr. Lux should in fact be permitted to testify. The Court's duty under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593-94 (1993) is to "ensure that all expert testimony is scientifically reliable before being submitted to a jury."Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1207 (8th Cir. 2000). In determining whether expert testimony is scientifically reliable, courts are to consider the following factors: (1) whether the expert's methodology has been tested; (2) whether the technique has been subjected to peer review and publication; (3) whether the technique has a known or knowable rate of error; and (4) whether the technique has been generally accepted in the proper scientific community. Id. at 1207-08 (citing Daubert, 509 U.S. at 593-94). According to the Eighth Circuit, "a medical opinion about causation, based upon a proper differential diagnosis is sufficiently reliable to satisfy Daubert." Id. at 1208. A differential diagnosis involves the systematic ruling out of other possible causes.Id.
In the present case, Defendants argue that Dr. Lux, Plaintiff's treating physician, should not be permitted to testify as to the cause of Plaintiff's neurological symptoms because during his treatment of Plaintiff, he did not set out to discover the origin of her symptoms. If Defendants' interpretation of Dr. Lux's report is correct, Dr. Lux would indeed be precluded from testifying as to the origin of Plaintiff's condition. See id. (affirming the district court's exclusion of the plaintiff's treating physician because the physician arrived at his conclusion regarding the origin of plaintiff's condition as an "afterthought"). Nevertheless, as Plaintiff argues, it appears that during his examination of Plaintiff, Dr. Lux did in fact undertake to determine the etiology of Plaintiff's condition. In his report Dr. Lux specifically noted that Plaintiff's symptoms "are consistent with a blow to the head." (Culberth Aff., Ex. A.) He came to this conclusion during the course of his examination of Plaintiff, not at some later time, as an afterthought. Moreover, Dr. Lux seems to have ruled out other possible causes of her condition:
Given that the testing given Ms. Stevens did not identify a different cause of the seizures, and given the lack of spell history in this patient prior to the reported police altercation, and given the timing of the onset of the spells after the police altercation, in my opinion based on the information above described and that is contained in the medical record, and to a reasonable degree of medical certainty, the reported blow to the head caused plaintiff Stevens to suffer the spells described in the report.
(Id.) Accordingly, Dr. Lux's proposed testimony will not be excluded under Daubert. Defendants' Motion is therefore denied.
Next, Defendants argue that if Dr. Lux is permitted to testify, his testimony should be limited to his examination of Plaintiff and the documents he relied on in compiling his expert report. Defendants argue that he should not be permitted to testify as to information he received about Plaintiff after he wrote his report. Specifically in issue are Plaintiff's psychological records from 1994, which Defendants' expert, Dr. Strobl, will apparently discuss during his testimony. In response, Plaintiff argues that Dr. Lux should be permitted to testify regarding those records in order to rebut Dr. Strobl's testimony. Given that Dr. Lux has examined Plaintiff, and has reviewed her medical records, it seems reasonable to allow him to address Dr. Strobl's testimony on rebuttal. Defendants' Motion is therefore denied on this basis as well. However, Dr. Lux will not be permitted to rely on the 1994 records in his direct testimony, which should focus on his diagnosis and treatment of Plaintiff, neither of which included a consideration of the records in issue. Accordingly, upon all the files, records, and pleadings herein, IT IS HEREBY ORDERED that:
1. Plaintiff's Motions in Limine (Clerk Doc. No. 41) are GRANTED IN PART and DENIED IN PART;
2. Plaintiff's Motion in Limine to Exclude Defendants' Exhibits 2, 3, 4, 6, and 8 is DENIED;
3. Plaintiff's Motion in Limine to Exclude Defendants' Exhibits 7 and 9 is GRANTED WITHOUT PREJUDICE;
4. Plaintiff's Motion in Limine to Exclude Evidence Relating to Joe Smith is DENIED WITHOUT PREJUDICE;
5. Plaintiff's Motion in Limine to Exclude Defendants' Expert Exhibits and Deposition is DENIED; and
6. Defendants' Motion in Limine (Clerk Doc. No. 48) is DENIED.