Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hambrook v. Smith

United States District Court, D. Hawaii

August 1, 2016

SANDRA LEE HAMBROOK, individually, as Personal Representative of the Estate of William Joseph Savage, deceased, and as Personal Representative for the benefit of Chelsea Savage and Nicolas Savage, Plaintiff,
v.
JAY J. SMITH; DENNIS A. McCREA; HAWAIIAN SCUBA SHACK S-22840; PADI AMERICAS, INC. and PADI WORLDWIDE CORPORATION, both dba Professional Association of Diving Instructors, Defendants.

          ORDER REGARDING MOTIONS IN LIMINE

          Alan C. Kay Sr. United States District Judge

         For the following reasons, the Court GRANTS Plaintiff’s Motion in Limine No. 1 to Bar Undisclosed Cause of Death Opinions by Defense Expert Dr. Lindell Weaver, ECF No. 234; and DENIES Smith and HSS’s Motion in Limine No. 1 Re: Exclusion of Testimony and Evidence Related to Future Economic Loss and Motion in Limine No. 2 Re: Exclusion of Testimony of Robert Male, Ph.D., along with the joinders filed by McCrea and PADI, ECF Nos. 237-38, 252-53.

         BACKGROUND[1]

         This is an admiralty case brought by Plaintiff Sandra Hambrook, individually, as Personal Representative of the Estate of William Joseph Savage, deceased, and as Personal Representative for the benefit of her children, Chelsea Savage and Nicolas Savage, (“Plaintiff”), arising out of a diving accident resulting in the death of Hambrook’s husband, William Joseph Savage (“decedent”). Plaintiff filed her First Amended Complaint on April 7, 2015 against Defendants Jay Smith, Dennis McCrea, Hawaii Scuba Shack S-22840 (“HSS”), PADI Worldwide Corporation and PADI Americas, Inc., both dba Professional Association of Dive Instructors, (collectively, “PADI”) (all, collectively “Defendants”).[2] The claims remaining in Plaintiff’s First Amended Complaint are (1) negligence as against Smith, McCrea, and HSS; and (2) gross negligence against all defendants.[3]

         On December 22, 2015 and December 23, 2015, respectively, Defendant McCrea and Defendants Smith and HSS filed counterclaims against Plaintiff Sandra Lee Hambrook, individually, for equitable subrogation, contribution, and or indemnity. ECF Nos. 165-1, 166-1.[4][5]

         On May 31, 2016, Plaintiff filed one motion in limine: (1) Motion in Limine No. 1 to Bar Undisclosed Cause of Death Opinions by Defense Expert Dr. Lindell Weaver. ECF No. 234.

         On May 31, 2016, Defendants Smith and HSS filed nine motions in limine: (1) Motion in Limine No. 1 Re: Exclusion of Testimony and Evidence Related to Future Economic Loss; (2) Motion in Limine No. 2 Re: Exclusion of Testimony of Robert Male, Ph.D.; (3) Motion in Limine No. 3 Re: Exclusion of Expert Testimony of Ronald Engel and Paul DiBiasio; (4) Motion in Limine No. 4 Re: Exclusion of United States Coast Guard Report Dated April 11, 2012 and United States Coast Guard Summary and Memorandum Regarding the William Savage Incident But Allow Witness Statements; (5) Motion in Limine No. 5 Re: Exclusion of Testimony of Stephen Wilson; (6) Motion in Limine No. 6 Re: Exclusion of Judge Robert Browning as a Witness; (7) Motion in Limine No. 7 Re: Exclusion of Liability Insurance; (8) Motion in Limine No. 8 To Exclude Evidence Regarding Offers of Settlement or Compromise; and (9) Motion in Limine No. 9 Re: Limit of Witnesses at Trial. ECF Nos. 237-245.

         On June 1, 2016, Defendants McCrea and PADI filed joinders in all nine of Defendants Smith and HSS’s motions in limine. ECF Nos. 252-59.

         The parties filed their respective oppositions to the motions in limine and joinders to the oppositions on June 7, 2016. ECF Nos. 264, 266-74, 276, 278.

         A hearing on the motions was held on June 16, 2016. At the hearing, the Court granted Plaintiff’s Motion in Limine No. 1; granted Smith and HSS’s Motion in Limine No. 3, [6] Motion in Limine No. 7, Motion in Limine No. 8, and Motion in Limine No. 9[7]; and denied Smith and HSS’s Motion in Limine No. 1, and Motion in Limine No. 5. With respect to Smith and HSS’s Motion in Limine No. 4, the Court deferred ruling on the admissibility of the Enforcement Summary and Coast Guard Memorandum, giving the parties the opportunity to seek admission of these exhibits at trial, but otherwise granted the motion. The Court denied Smith and HSS’s Motion in Limine No. 6 as moot. The Court held a Daubert hearing on Smith and HSS’s Motion in Limine No. 2 on June 21, 2016. ECF No. 321. This Order provides further explanation of the Court’s ruling regarding Plaintiff’s Motion in Limine No. 1 and Smith and HSS’s Motion in Limine No. 1, and addresses Smith and HSS’s Motion in Limine No. 2.

         DISCUSSION

         I. Plaintiff’s Motion in Limine No. 1

         In her motion in limine, Plaintiff seeks to exclude undisclosed expert opinions from Defendants’ expert, Dr. Lindell Weaver. Plaintiff maintains that Defendants “plan to elicit new undisclosed opinions from Dr. Weaver . . . on new causes of death involving purported pre-existing heart conditions and use of certain medication.” Mem. in Support of Pl.’s Motion in Limine No. 1, at 2-3, ECF NO. 234.

         In their opposition to the motion, Defendants do not contest that Dr. Weaver should be precluded from testifying that the decedent’s heart condition or the use of medication caused his death. McCrea and PADI Opp. to Pl.’s MIL No. 1, ECF No. 264; Smith and HSS Joinder in McCrea and PADI Opp. to Pl.’s MIL No. 1, ECF No. 278. Defendants note that Dr. Weaver was clear in his expert report as to the cause of the decedent’s cardiac arrest (without mentioning decedent’s heart condition or the use of medication), and that rescue breaths and supplemental oxygen would not have made a difference in the decedent’s resuscitation. McCrea and PADI Opp. to Pl.’s MIL No. 1 at 2-3. However, Defendants contend that Dr. Weaver should be allowed to testify, along the lines of his deposition testimony, that “it’s well known, well accepted that people with enlarged hearts are at much higher risk for sudden death.” Id. at 3. The Court thus considers whether Dr. Weaver can so testify.

         Rule 26 of the Federal Rules of Civil Procedure requires the parties to disclose the identities of each expert and, for retained experts, requires that the disclosure include the experts’ written reports. Fed.R.Civ.P. 26(a)(2). Parties must make these expert disclosures at the times and in the sequence that the court orders. Id. Rule 26(a)(2)(B)(i) further requires that the experts’ written reports contain “a complete statement of all opinions the witness will express and the basis and reasons for them.” See also Estate of Bojcic v. City of San Jose, 358 F. App’x 906, 907 (9th Cir. 2009); Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 641 (7th Cir. 2008). The “report must be complete such that opposing counsel is not forced to depose an expert in order to avoid an ambush at trial; and moreover the report must be sufficiently complete so as to shorten or decrease the need for expert depositions and thus to conserve resources.” R.C. Olmstead, Inc., v. CU Interface, LLC, 606 F.3d 262, 271 (6th Cir. 2010) (quoting Salgado v. Gen. Motors Corp., 150 F.3d 735, 742 n. 6 (7th Cir.1998)).

         An expert may “supplement, elaborate upon, [and] explain . . . his report in his oral testimony.” Durham v. Cty. of Maui, No. CIV. 08-00342 JMS/RLP, 2011 WL 2532423, at *7 (D. Haw. June 23, 2011) (alterations in original) (quoting Muldrow ex rel. Estate of Muldrow v. Re-Direct, Inc., 493 F.3d 160, 167 (D.C. Cir. 2007)). However, “Rule 26(a)(2) does not allow parties to cure deficient expert reports by supplementing them with later deposition testimony.” Ciomber, 527 F.3d at 642. Thus, while an expert may expand or explain information contained in his or her report during oral testimony, the expert cannot testify as to new opinions not contained in the expert report, even if such opinions were expressed in deposition testimony. See Chiriboga v. Nat’l R.R. Passenger Corp., No. 08 C 7293, 2011 WL 2295281, at *5 (N.D. Ill. June 9, 2011) (noting that expert’s “untimely statement, made during his deposition, does not provide sufficient notice to opposing counsel of the contents of the expert’s report”); Scholl v. Pateder, No. 1:09-CV-02959-PAB, 2011 WL 3684779, at *3 (D. Colo. Aug. 22, 2011) (holding that failure to include certain opinions in expert report was not “cured through the elicitation of deposition testimony”); see also Bojcic, 358 F. App’x at 907-08 (holding district court did not ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.