Munoz v. FCA US LLC

ROY MUNOZ, Plaintiff, v. FCA US LLC (FIAT CHRYSLER AUTOMOBILES US LLC,f/d/b/a CHRYSLER/DODGE) and JOHN DOE CORPORATIONS, Defendants. Defendants.

Civ. No. 17-881 WJ/SCY

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

August 5, 2020

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO EXCLUDE IMPERMISIBLE EXPERT TESTIMONY AND OPINION TESTIMONY OF DR. CANDYCE TART AND DR. RICHARD LANZI

THIS MATTER comes before the Court upon a Motion to Exclude Impermissible Expert Testimony and Opinion Testimony of Dr. Candyce Tart and Dr. Richard Lanzi filed by Defendant FCA US LLC ("FCA US" or "Defendant") on June 19, 2020 (Doc. 185). Having reviewed the parties' briefing and the applicable law, the Court grants in part and denies in part Defendant's motion as set forth below.

BACKGROUND

This lawsuit is a products liability case arising from the apparent failure of an airbag to deploy during a car accident while Plaintiff was working as an employee of the United States Forest Service. The case was filed on August 25, 2017. Plaintiff claims that he has suffered serious personal injuries, has lost his job, has incurred permanent disfigurement and will incur in the future, medical and medically related expenses. In the instant motion, Defendant seeks to exclude what it alleges is certain impermissible expert and opinion testimony of two treating doctors with the Veteran's Administration ("VA"), Dr. Candyce Tart and Dr. Richard Lanzi ("VA doctors").

Defendant opposed depositions of these providers on the grounds that Plaintiff is attempting to elicit impermissible expert and opinion testimony from these doctors, which is expressly prohibited under the federal Touhy regulations, 38 C.F.R. § 14.800 through 14.810.¹ Following a motions hearing before United States Magistrate Judge Steven C. Yarbrough ("motions hearing") the Court issued subpoenas authorizing the depositions to go forward. The Court limited the depositions to treating physician testimony only and required that the depositions must be conducted in conformance with the Touhy regulations. Doc. No. 168 at p. 1-2 (Clerk's Min.); Doc. 188-1, p. 6:5-11.

Defendant contends that the VA doctors' testimony conflicts with the Touhy regulations and this Court's Order forbidding expert and/or opinion testimony from the doctors and must be excluded.² In addition, Defendant argues that these providers may not offer expert and/or opinion testimony regarding issues for which they are not qualified. Plaintiff contends that the testimony comes within the restrictions of the Touhy regulations and the doctors' qualifications.

Plaintiff raises a threshold matter, urging the Court to deny Defendant's motion solely because Defendant made no effort to comply with the requirements of D.N.M.LR - Civ. 7.1(a) which requires that counsel determine whether a motion is opposed and include a recitation in themotion of a good-faith request for concurrence. Defendant claims that it filed the instant motion "under the genuine belief that Plaintiff opposed the relief sought in the motion." Doc. 198 at 1. That may be, but Defendant's "genuine belief" does not satisfy the requirements of the local rule, which was promulgated for a reason. This lawsuit has proven to be contentiousness on the smallest of details, and this Court simply does not and will not have the time or resources to resolve disputes that could have been even partially resolved before judicial intervention was sought. The Court is in the practice of striking pleadings that do not comport with local rules, and counsel is advised here that it will continue to do so in the future should there be cause.

DISCUSSION

The Touhy regulations provide that VA personnel are forbidden from offering expert and/or opinion testimony. 38 C.F.R. § 14.808(a) ("VA personnel shall not provide, with or without compensation, opinion or expert testimony in any legal proceedings concerning official VA information, subjects or activities, except on behalf of the United States or a party represented by the United States Department of Justice.") (emphasis added). Thus, the testimony of the VA doctors is limited to their treatment of Plaintiff and their records "based on [their] personal knowledge and observations obtained during [their] course of care and treatment of Plaintiff." Farris v. Intel Corp., 493 F. Supp. 2d 1174, 1180 (D.N.M. 2007).

Of course, any expert or opinion testimony also necessarily implicates the Court's Daubert gatekeeping function. See Milne v. USA Cycling Inc., 575 F.3d 1120, 1134 (10th Cir. 2009); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993). The first step the Court must undertake pursuant to this gatekeeping function is determining whether the VA doctors are qualified by "'knowledge, skill, experience, training, or education'" in the particular fields in which they offer their opinions. Id. (quoting 103 Investors I, L.P. v. Square D Co., 470 F.3d 985,990 (10th Cir. 2006). In regard to this determination, the Court must determine whether the witness's "expertise [is] reasonably related to the issue." Witherspoon v. Navajo Refining Co., LP, No. Civ.03-1160, 2005 WL 5988649 (D.N.M. July 18, 2005) at* 3 (citing Ralston v. Smith &Nephew Richards, Inc., 275 F.3d 965, 970 (10th Cir. 2001). In this regard, Defendant contends that the VA doctors are not qualified to offer any opinions about "severe" traumatic brain injury or to offer any opinion regarding Plaintiff's ability to return to work.

I. Relevant Law

A treating physician is not considered an expert witness if he or she testifies about observations based on personal knowledge, including the treatment of the party. Davoll v. Webb, 194 F.3d 1116, 1138 (10th Cir. 1999). A treating physician, even when testifying as a lay witness, may state "expert" facts to the jury in order to explain his testimony. Id. Treating physicians are therefore exempt from the written report requirement in Rule 26(a)(2) of the Federal Rules of Civil Procedure. See Adv. Comm. Notes, par. 2, 1993 Amendments for Rule 26(a)(2); see Duran v. Home Depot USA, Inc., No. CV 13-608 WJ/SCY, 2014 WL 12601509, at *2 (D.N.M. Aug. 13, 2014) (denying defendant's motion to strike expert disclosure for failing to provide written report, citing D.N.M.LR-Civ. 26.3(b); Montoya v. Sheldon, 286 F.R.D. 602, 611 (D.N.M. 2012) (citing Davoll,194 F.3d at 1138). However, a treating physician cannot provide expert testimony regarding any opinion he formed based upon information learned outside of, and not related to, a patient's treatment. Farris., 493 F. Supp. 2d at 1174.

At the motions hearing, Judge Yarbrough stated that questions to the VA doctors would be proper to the extent that "it's just going to be treating physician testimony," Doc. 188, p. 38:1-5, and that conclusions based on the doctors' observations made during treatment were proper as well. Id. However, to the extent that the witness was asked to make "assumptions that relate to thetreatment," such testimony would be impermissible because it "goes beyond treating testimony." Id., p. 12:21-25; 13:1-9.

II. Challenged Categories of Testimony

A. Dr. Tart

Dr. Tart is a clinical psychologist working in the VA system as the director of the Farmington VA Center, providing both administrative and clinical services. Defendant challenges Dr. Tart's testimony in three areas:

(1) Return to Work Testimony: Defendant contends that Dr. Tart may not testify about assessment she made regarding Plaintiff's ability to work because that assessment was not in her medical records. Defendant also contends that the testimony is impermissible under the Touhy regulations and because Dr. Tart does not possess the necessary qualifications to offer such expert or opinion testimony.

(2) Changes in Plaintiff's mental status:

Dr. Tart's opined that there was a "significant change" for the worse in Plaintiff's mental status, attributing this change to the motor vehicle accident. Defendant contends that this testimony is impermissible because it is not included in Dr. Tart's medical records and also because it constitutes impermissible expert opinion testimony under the Touhy regulations and this Court's Order.

(3) Plaintiff's "severe" brain injury:

Dr. Tart originally noted in her records that Plaintiff suffered a "mild" traumatic brain injury but a year later changed the notation to "severe" traumatic brain injury following a hallway conversation with Dr. Lanzi. Defendant seeks exclusion of this testimony because there is noreference to that conversation in Dr. Tart's medical records and because admittedly she is not a specialist in the area of brain injury.

B. Dr. Lanzi

Dr. Lanzi is a medical doctor with the Veterans Administration, specializing in internal medicine and trained in infectious diseases.

Return to Work Testimony: Dr. Lanzi was repeatedly asked about whether Plaintiff could return to work. Defendant seeks exclusion of any testimony in this category because no return to work assessment exists in his medical records and also because Dr. Lanzi often referred such evaluations to vocational specialists and so is not qualified to make such assessments himself.

Dr. Lanzi was also asked to testify about a letter to the Department of Labor, which contained expert or opinion testimony, that was not part of Plaintiff's medical records. Doc. 185-2, p. 40:5-9. Defendant claims that this testimony should be excluded because any document that is not a medical record of Plaintiff and that contains expert or opinion testimony is not permitted under the Touhy regulations and this Court's Order limiting the deposition to treating testimony.

C. List of Specific Testimony Sought to Be Excluded³

Defendant includes a list of the expert and/or opinion testimony that should be excluded by the Touhy regulations, by this Court's Order and/or for lack of qualifications under Daubert, with references to both depositions which are attached as exhibits (Docs....