United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER
M. WARNER, Chief United States Magistrate Judge
25, 2013, all parties consented to having Chief United States
Magistrate Judge Paul M. Warner conduct all proceedings in
the case, including entry of final judgment, with direct
appeal to the United States Court of Appeals for the Tenth
Circuit. See 28 U.S.C. § 636(c);
Fed.R.Civ.P. 73. Before the court are the following motions
in limine: (1) Derstea Phillips's
(“Plaintiff”) Motion to Exclude Patrick Richard
Luers, M.D.; (2) Tim Dull's and Nation's
Towing, Inc.'s (collectively, “Defendants”)
Motion to Preclude Evidence of Future Special
Damages; and (3) Defendants' Motion Re:
Evidence of Life Flight. The court has carefully reviewed the
written motions and memoranda submitted by the parties.
Pursuant to civil rule 7-1(f) of the Rules of Practice for
the United States District Court for the District of Utah,
the court has concluded that oral argument is not necessary
and will determine the motions on the basis of the written
memoranda. See DUCivR 7-1(f).
Plaintiff's Motion to Exclude Patrick Richard Luers,
seeks an order excluding Patrick Richard Luers, M.D.'s
expert reports, testimony, and opinions from trial on the
grounds that he relied upon a paralegal for Defendants'
counsel to prepare a majority of his medical chronology.
Plaintiff argues that Dr. Luers's opinion that
Plaintiff's injuries were not the result of the collision
is unreliable and is not based on his review of
Plaintiff's medical records. Plaintiff also asserts that
Dr. Luers admitted that he did not review any post-surgical
medical records. Thus, Plaintiff seeks to exclude him under
Rule 702 of the Federal Rules of Evidence.
response, Defendants contend that while Dr. Luers received
preliminary information from counsel's paralegal to
apprise him of the issues in the case and to direct his
review, Dr. Luers did not rely on that information in forming
his opinion. Defendants note that Dr. Luers indicated in his
report that his “[c]onclusions are based on a
preponderance of evidence in the reviewed deposition, limited
medical records, imaging reports and imaging
courts have broad discretion in determining whether expert
testimony is admissible. Taylor v. Cooper Tire and Rubber
Co., 130 F.3d 1395, 1397 (10th Cir. 1997). To comply
with Rule 702, courts employ a two-step analysis to ensure
that expert testimony is relevant and reliable. First, a
court must determine whether the expert is qualified by
“knowledge, skill, experience, training, or education,
” to provide an opinion. Fed.R.Evid. 702. Second, if
the expert is qualified to render an opinion, a court must
determine whether the expert's opinion is reliable.
Id.; Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 141 (1999).
Plaintiff does not challenge Dr. Luers's qualifications,
but rather the reliability of Dr. Luers's opinion.
Specifically, Plaintiff contends that Dr. Luers's opinion
is based on medical interpretations provided by a layperson,
is not supported by sufficient facts or data, and will not
assist the jury in determining if Plaintiff's injuries
were caused by the collision. The court is not persuaded by
Plaintiff's argument. As is apparent from Dr. Luers's
report, he did not rely on the paralegal's description of
the accident or medical chronology in forming his opinion. In
his report, Dr. Luers details the following evidence he
reviewed in developing his opinion: (1) thirty (30) imaging
studies; (2) ultrasound and x-ray films taken the day of the
accident; (3) four (4) medical records; (4) Dr. David W.
Miller's June 24, 2014 deposition and October 7, 2009
evaluation of Plaintiff; (5) Dr. Mark Crawford's December
21, 2010 evaluation of Plaintiff; and (6) Dr. Michael
Malizzo's January 26, 2011 medical record regarding
Plaintiff. In addition, Dr. Luers indicated that he reviewed
a post-surgical MRI scan, as well as a lumbar CT scan from
July 2011, and a lumbosacral spine MRI from November 2011.
court finds that Plaintiff's issues with the reliability
of Dr. Luers's report, opinion, and testimony are
unfounded and do not warrant striking Dr. Luers's
testimony. Plaintiff's concerns with Dr. Luers's as
an expert are best addressed through vigorous cross
examination. Accordingly, Plaintiff's motion is DENIED.
Defendants' Motion to Preclude Evidence of Future Special
seek an order prohibiting Plaintiff from presenting any
argument regarding the costs of future special damages like
future medical expenses or household services on the basis
that Plaintiff failed to designate an expert to proffer this
testimony. Defendants argue that because Plaintiff has not
retained an expert to provide the net present value of her
life care plan prepared by psychiatrist Dr. David Fish, the
court should exclude evidence of future expenses.
response, Plaintiff argues that she is not required to
present expert testimony or evidence of the present value of
her future medical care because Utah law leaves that
calculation to the jury. Plaintiff contends that the jury
will have the following tools in which to properly calculate
the present value of Plaintiff's future medical damages:
(1) Dr. Fish will provide the jury with a life expectancy
table to assist them in their calculations, (2) the
stipulated jury instruction regarding reduction of future
costs to present cash value, and (3) the testimony of
Defendants' expert Dr. W. Cris Lewis who has prepared
reports reducing the value of Dr. Fish's opinions to a
present cash value.
Utah, a finder-of-fact must discount damages for future
losses to the present cash value.” Gallegos v. Dick
Simon Trucking, Inc., 110 P.3d 710, 714 (Utah Ct. App.
2005) (quotations and citations omitted). Under Utah law
“it is almost impossible for a juror to calculate an
appropriate reduction or discount without the assistance of a
mathematically computed table.” Bennett v. Denver
& Rio Grande W. R. Co., 213 P.2d 325, 328 (Utah
1950). However, contrary to Defendants' assertion, it
does not necessarily require expert testimony. Id.;
see Gallegos, 110 P.3d at 714.
on the foregoing, Defendants' motion to exclude argument
or evidence regarding the value of damages for future
expenses is DENIED.
Defendants' Motion Re: ...