United States District Court, D. Maryland
GREGORY FAZZIE, et al. Plaintiffs,
JAMES MICHAEL STEINBERG, D.O., etal. Defendants.
MEMORANDUM & ORDER
K. Bredar, Chief Judge.
preparation for the pretrial conference to be held on August
16, 2018, at 1:00 PM, the Court has considered the
parties' Proposed Pretrial Order and Motions in Limine
and issues the following preliminary rulings, as set forth
with respect to the parties' Proposed Pretrial Order (ECF
No. 69), the Court notes that it is deficient in at least one
regard: It would appear that the parties have but two
stipulations, yet they have included a plethora of
proposed-and rejected-stipulations. The Proposed Pretrial
Order should include only those stipulations on which the
parties agree. Accordingly, the Proposed Pretrial Order SHALL
be corrected prior to the pretrial conference to reflect that
the parties stipulate only as to: (i) the authenticity of
medical records and bills exchanged in discovery; and (ii) as
the authenticity of the radiology studies' films and
reports exchanged in discovery.
Court next turns to the parties' Motions in Limine. The
issues have been briefed and no hearing is required,
see Local Rule 105.6 (D. Md. 2016). For the reasons
set forth below, it is hereby ORDERED:
1. Plaintiffs' Motion in Limine to Preclude Argument,
Evidence and Testimony on Topics Related to the Legal
Profession, "Tort Reform" and the Practice of
Medicine (ECF No. 60) is DENIED WITHOUT PREJUDICE. Should any
of these issues actually arise at trial, which the Court
considers unlikely, Plaintiffs are free to renew their motion
or make any relevant objections at that time.
2. Plaintiffs' Motion in Limine to Preclude Collateral
Source Evidence (ECF No. 61) is GRANTED. The Court, however,
notes that Defendants have given no indication they intend to
introduce such collateral source evidence.
3. Plaintiffs' Motion in Limine to Exclude Irrelevant,
Inadmissible and Unduly Prejudicial Evidence Prohibited Under
FRE 401, 402 and 403 (ECF No. 62) is DENIED WITHOUT
PREJUDICE. These matters will be addressed as necessary and
appropriate during the course of trial.
4. Plaintiffs' Motion in Limine to Strike or, In the
Alternative, to Limit Cumulative Expert Witness Testimony
Offered by the Defendants (ECF No. 63) is DENIED WITHOUT
PREJUDICE. Plaintiffs are free to renew their motion or raise
any relevant objections to testimony during the course of
trial, as they deem appropriate.
5. Defendants' Joint Motion hi Limine to Preclude
Evidence of Lack of Informed Consent (ECF No. 64) is DENIED
AS MOOT in light of Plaintiffs' decision to abandon this
6. Defendants' Joint Motion in Limine to Exclude Certain
Photographs of Plaintiff Gregory Fazzie's Forearm (ECF
No. 65) is DENIED. The photographs are apparently evidence of
the surgeries and therapies that were necessary in the
aftermath of the care provided by the Defendants. As such,
they are probative of the treatment that was necessary as a
result of Defendants' alleged negligent conduct.
7. Plaintiffs' Opposition to Defendants' Joint Motion
in Limine to Preclude Plaintiffs From Eliciting Causation and
Other Opinions from Joseph Farrell, D.O., (ECF No. 66) is
DENIED insofar as it seeks to preclude Dr. Farrell from
offering any opinion testimony. Plaintiffs identified Dr.
Farrell as Mr. Fazzie's treating physician and a
"hybrid" fact/expert witness pursuant to Federal
Rule of Civil Procedure 26(a)(2)(C) and Local Rule 104.10. As
such, Plaintiffs were not obligated to provide full expert
disclosures for Dr. Farrell, but they were required to
provide "the subject matter on which [he] is expected to
present evidence under Fed.R.Evid. 702, 703, or 705, as well
as a summary of the facts and opinions to which [he] is
expected to testify." (Local Rule 104.10 (emphasis
have noticed the de bene esse testimony of Dr.
Farrell, and Defendants now seek to preclude Plaintiffs from
eliciting any "causation and other opinions" from
Dr. Farrell in that testimony "beyond those specifically
set forth in [his] medical records" regarding Mr.
Fazzie. (ECF No. 66 ¶ 6.) It is not entirely clear to
the Court whether Defendants believe that Plaintiffs simply
failed to comply with the disclosure requirements of Rule
26(a)(2)(C) and Local Rule 104.10, or whether Defendants
believe that Dr. Farrell may not offer any opinion because he
was not designated as an expert with the accompanying
requisite disclosures pursuant to Rule 26(a)(2)(B).
Regardless, both positions are without merit in light of the
Defendants contend that Plaintiffs did not disclose any
"specific causation opinions" that would be offered
by their hybrid witnesses, including Dr. Farrell, and they
failed to disclose the "specific factual basis" for
any such opinions. (ECF No. 66 ¶ 6.) However,
Rule 26(a)(2)(C) requires only that a party disclose a
summary of the facts and opinions to which a witness
will testify, not the specific factual basis for
specific opinions. Defendants seek to impose something more
akin to an expert disclosure requirement on Plaintiffs'
hybrid witnesses. But such detail is not required by the
Federal or Local Rules.
Defendants' misstate the scope of Plaintiffs' hybrid
witness disclosures. According to Defendants, Plaintiffs,
disclosed that their hybrid witnesses would testify only as
to the information "generally set forth in their medical
records, bills and reports." (Plaintiffs' Rule
26(a)(2) Designation of Expert Witnesses, ECF No.
66, Ex. 1, at 6.) However, Plaintiffs provided
significantly more detail in the paragraph immediately
preceding this statement. Specifically, Plaintiffs stated
that Dr. Farrell and other hybrid witnesses "are
expected to testify, generally, on the nature and extent of
the injuries suffered by the Plaintiff Gregory Fazzie, as
a result of the negligence of the Defendants in failing to
properly and timely diagnose and treat the compartment
syndrome," and "Mr. Fazzie's medical
condition at those times when he obtained such medical care
and treatment." (Id. (emphasis added).) This
certainly put Defendants on notice that at least some of
Plaintiffs hybrid witnesses ...