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Warren v. Shilling

United States District Court, Western District of Michigan, Northern Division

April 15, 2015

CHRISTINE WARREN, as Personal Representative for the Estate of CORNELL WARREN, deceased, Plaintiff,
v.
LISA ANN SHILLING, R.N., Defendant.

OPINION

ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

This is an action filed under 42 U.S.C. § 1983 and Michigan law arising out of the death of Plaintiff’s Decedent, Carnell Warren, while he was incarcerated in the Newberry Correctional Facility. The parties have filed numerous motions in limine and responses on the eve of trial. (ECF Nos. 164, 165, 167, 168, 170, 178, 180, 181, 182, 185, 186.)

1. Clarifications on the Court’s March 27, 2015 Order

Defendant has requested clarification on the Court’s March 27, 2015, Order (ECF No. 176) as to Plaintiff’s Motion in Limine to preclude mention of former defendants and settlement (ECF No. 164). The parties shall refrain from referring to former parties to this case, whether the parties were dismissed or settled, as “defendants” in the presence of the jury. The parties may not introduce evidence of Dr. Bomber’s settlement as substantive evidence of Defendant Shilling’s liability, although the evidence may be admitted for the purpose of demonstrating bias or prejudice consistent with Federal Rule of Evidence 408(b).

Defendant has also requested clarification on the Court’s Order as to Plaintiff’s Motion in Limine to preclude admission of irrelevant and prejudicial information (ECF No. 165). The order precludes testimony as to the Decedent’s prior criminal history. Specifically, this includes items (a), (b), (c), (e), and (f) listed in Plaintiff’s motion. (ECF No. 167). The remaining items are addressed below in the discussion concerning recoverable damages.

2. Plaintiff’s Motion to Strike Defendant’s Experts and Preclude Defendant from Arguing against Causation, Economic Loss, and Life Expectancy (ECF No. 170)

Plaintiff moves to strike Defendant Shilling’s experts who were not timely disclosed under the mandates of Fed.R.Civ.P. 26(a)(2)(B). Plaintiff claims she is prejudiced by the untimely disclosure. Plaintiff has deposed both experts and has had ample opportunity to review the reports of both experts, which were provided in February 2013. Plaintiff did not timely request a Daubert hearing. Moreover, Defendant Bomber timely disclosed his intention to rely on these experts by the required expert disclosure date. Plaintiff cannot now claim that she is surprised or suffered insufficient notice of the experts’ reports and testimony. Plaintiff’s motion to preclude their testimony or to hold a Daubert hearing shall be denied. Plaintiff may address any weakness or issues of relevance during her cross-examination of those witnesses or by means of objection.

Plaintiff also moves to preclude Defendant from arguments regarding causation, economic loss, and life expectancy because Defendant cannot provide expert testimony on these issues. The Court cannot divine the precise nature of each witness’ testimony. However, each witness may only testify on matters of personal knowledge or those matters about which she is competent to testify. The parties may address objections during testimony and cross-examination. Therefore, the Court will deny Plaintiff’s motion.

3. Defendant’s Motion in Limine to Preclude Certain Expert Testimony and Limit Damages (ECF No. 168)

Defendant moves to limit the number of experts to avoid duplicative testimony. Plaintiff proffers that the two nursing experts will testify on separate, non-cumulative issues. Plaintiff intends to call additional expert witnesses as necessary to clarify or rebut Defendant’s expert witnesses. Plaintiff has made a sufficient showing that her witness’ testimony is relevant. The Court will not strike or preclude their testimony. However, expert testimony shall not confuse the jury or present needlessly cumulative evidence.

Defendant also moves to preclude the experts from testifying as to an ultimate issue. Under Federal Rule of Evidence 704(a), an expert’s opinion is not automatically objectionable because it embraces an ultimate issue. However, an expert witness may not cloak a legal conclusion as an expert opinion. Plaintiff may only elicit testimony consistent with Rule 704(a).

Next, Defendant moves to preclude any testimony from expert physicians or nurses regarding medical malpractice or a “standard of care.” The Court hesitates to interfere with an expert’s testimony and her use of terms of art applicable in her profession. However, this is not a medical malpractice action, and Plaintiff shall not elicit testimony or present arguments that conflate “standard of care” as a medical term with any legal standard.

Finally, Defendant moves to preclude the testimony of Plaintiff’s economics expert witness. For the reasons discussed below, the Court shall not preclude testimony regarding lost earning capacity or loss of household services. Defendant may attack the validity of the qualifications and ...


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