United States District Court, D. Hawaii
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,
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
C. Kay Sr. United States District Judge
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.
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”). 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.
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.
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.
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.
1, 2016, Defendants McCrea and PADI filed joinders in all
nine of Defendants Smith and HSS’s motions in limine.
ECF Nos. 252-59.
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.
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,
Motion in Limine No. 7, Motion in Limine No. 8, and Motion in
Limine No. 9; 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.
Plaintiff’s Motion in Limine No. 1
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
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.
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)).
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 ...