UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES GENERAL

Transcription

1 Case 2:15-cv MWF-JC Document 170 Filed 07/27/16 Page 1 of 6 Page ID #:6694 Present: The Honorable MICHAEL W. FITZGERALD, U.S. District Judge Deputy Clerk: Rita Sanchez Attorneys Present for Plaintiff: None Present Court Reporter: Not Reported Attorneys Present for Defendant: None Present Proceedings (In Chambers): ORDER RE: MOTIONS TO BIFURCATE AND TO EXCLUDE TESTIMONY OF PLAINTIFF S EXPERT TESTIMONY [100] [104] [107] Before the Court are three motions filed by Defendant Rose on June 20, 2016: the first motion is a Motion to Bifurcate Punitive Damages, and the remaining two are Motions to Exclude the Testimony of Plaintiff s Experts Dr. Reuben Vaisman-Tzachor and Dr. Elena Konstat. (Docket Nos. 100, 104, 107). Defendants Hampton and Allen joined Rose in all three Motions. (Docket Nos. 108, 109, 110). Plaintiff filed an Opposition only to the Motion to Exclude the Testimony of Dr. Elena Konstat; the other two motions are unopposed. (Docket No. 120). The Court has read and considered the parties submissions, and held a hearing on July 19, The Court GRANTS the Motion to Bifurcate, which is standard in cases involving punitive damages. The Court GRANTS the Motion to Exclude the Testimony of Dr. Reuben Vaisman-Tzachor. The Court DENIES in part and GRANTS in part the Motion to Exclude the Testimony of Dr. Elena Konstat. The procedural arguments against Dr. Konstat are not persuasive. However, the Court will not allow her or anyone else to testify as an expert on the credibility of Plaintiff or any other witness. She is not a human polygraph. 1

2 Case 2:15-cv MWF-JC Document 170 Filed 07/27/16 Page 2 of 6 Page ID #:6695 Motion to Bifurcate Punitive Damages Defendants request the Court to separate the trial into two phases. The first phase would concern the issues of liability and whether Defendants acted with malice, oppression, or fraud. If the jury finds in Plaintiff s favor on both of those issues, the second phase of trial would deal solely with the amount of punitive damages. Defendants contend that such bifurcation is necessary to avoid unfairly predisposing the jury in Plaintiff s favor with evidence of Defendants net worth. (Motion to Bifurcate Punitive Damages at 3). The Federal Rules permit district courts to order a separate trial of one or more separate issues in order to avoid prejudice to one of the parties. Fed. R. Civ. P. 42(b). District courts have broad discretion in shaping appropriate bifurcation. See M2 Software, Inc. v. Madacy Entm t, 421 F.3d 1073, 1088 (9th Cir. 2005) (affirming the district court s decision to bifurcate liability and damages for judicial economy and to avoid prejudice and confusion ). Numerous courts have exercised that discretion to separate punitive damages from the remaining issues in the action. See, e.g., Cuc Dang v. Sutter's Place, Inc., No. C RMW, 2012 WL , at *4 (N.D. Cal. Dec. 12, 2012) ( Pursuant to defendant s request, the court bifurcates the issue of punitive damages.... ). The Court agrees with Defendants that bifurcation is appropriate, even necessary, in the circumstances of this action. Evidence of Defendants income, assets, and net-wroth could improperly influence the jury s determination of liability and compensatory damages. Separating the trial into two phases would avoid such prejudice to Defendants without significantly delaying the proceedings. Plaintiff s decision not to oppose Defendants request only supports this conclusion. See Local Rule 7-12 (providing that a party s failure to oppose a motion can be construed as consent to the requested relief). Accordingly, the Motion to Bifurcate is GRANTED. Trial will be bifurcated between (1) liability, compensatory damages, and the availability of punitive damages; and (2) the amount of punitive damages. 2

3 Case 2:15-cv MWF-JC Document 170 Filed 07/27/16 Page 3 of 6 Page ID #:6696 Motion to Exclude the Testimony of Dr. Reuben Vaisman-Tzachor Defendants seek to exclude the expert testimony of Dr. Vaisman-Tzachor in light of Plaintiff s blatant noncompliance with the numerous requirements of Federal Rule of Civil Procedure 26(a). Defendants Motion is primarily based on the following facts: Plaintiff served her Expert Witness Disclosures Statement (the Disclosures ) a day late. (Declaration of Laura E. Robbins ( Robbins Decl. ), Ex. A (Docket No )). The Disclosures do not designated Dr. Vaisman-Tzachor as an expert witness, as required under Rule 26(a)(2). (Id.). Defendants learned of Plaintiff s apparent intention to use Dr. Vaisman-Tzachor s testimony during a meeting of counsel regarding a separate issue. (Id. 4). That meeting took place on June 10, 2016, a full week after the Court s deadline for expert disclosures. (Id.; see Amended Order Re: Jury Trial at 2 (Docket No. 46)). Dr. Vaisman-Tzachor s expert report fails to comply with Rule 26(a)(2)(B). Among other deficiencies, the report fails to include Dr. Vaisman-Tzachor s qualifications and publications, a list of cases in which Dr. Vaisman-Tzachor has testified, the amount he is being compensated, and the evidence he reviewed in preparing the report. (Robins Decl., Ex. B). Defendants have not been able to depose Dr. Vaisman-Tzachor because they are unaware of his whereabouts. (Id ). Defendants attempted to subpoena Dr. Vaisman-Tzachor at the address provided in the expert report but were told that he has not resided at that address for several years. (Id.). Plaintiff has not disclosed Dr. Vaisman-Tzachor s current location. (Id.). Plaintiff does not contest any of these facts and does not otherwise oppose Defendants Motion. In light of Plaintiff s noncompliance with Rule 26(a), the Court 3

4 Case 2:15-cv MWF-JC Document 170 Filed 07/27/16 Page 4 of 6 Page ID #:6697 construes Plaintiff s failure to oppose the Motion as acquiescence to the exclusion of Dr. Vaisman-Tzachor s testimony. See Local Rule 7-12; see also Fed. R. Civ. Proc. 37(c)(1) ( If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness... at a trial.... ). Accordingly, the Motion to Exclude the Testimony of Dr. Vaisman-Tzachor is GRANTED. Plaintiff may not present or rely on Dr. Vaisman-Tzachor s opinions or testimony during trial. As the Court clarified at the hearing, this prohibition encompasses any opinions formed by Plaintiffs other experts on the basis of Dr. Vaisman-Tzachor s report. Motion to Exclude the Testimony of Dr. Elena Konstat Defendants also seek to exclude the testimony Dr. Elena Konstat, the only expert witness listed in Plaintiff s Disclosures. (Robbins Decl., Ex. A). Unlike Dr. Vaisman- Tzachor, Dr. Konstat has produced a valid (albeit belated) expert report under Rule 26(a)(2)(B). (See Declaration of Brandon J. Anand ( Anand Decl. ), Ex. B (Docket No. 121)). Defendants nonetheless argue that Dr. Konstat should be precluded from testifying on the following grounds: (1) the Disclosures were produced a day late; (2) Dr. Konstat s expert report was produced on June 27, 2016, a week after Defendants rebuttal reports were due; and (3) it is not proper for Dr. Konstat to testify on the issue of consent in this action. (Reply ISO Motion to Exclude Testimony of Dr. Elena Konstat at 1-8). Although the Court is not convinced that Dr. Konstat s entire testimony must be excluded, it agrees that Dr. Konstat s opinions regarding the veracity of Plaintiff s allegations are improper. As a preliminary matter, Defendants identify no prejudice that has resulted from Plaintiff s belated service of the Disclosures. There is no reason to think that a mere one-day delay has prevented Defendants from preparing for trial. The Federal Rules do not permit exclusion of witness testimony in such circumstances. Fed. R. Civ. Proc. 37(c)(1) (providing that failure to strictly comply with Rule 26(a) does not warrant exclusion if such noncompliance is harmless ). 4

5 Case 2:15-cv MWF-JC Document 170 Filed 07/27/16 Page 5 of 6 Page ID #:6698 Nor does Plaintiff s untimely production of the expert report justify exclusion of Dr. Konstat s testimony. It is, of course, regrettable that Plaintiff did not comply with Rule 26(a)(2)(B) until after Defendants expert had already prepared her rebuttal report. But that failure can be easily remedied at trial. As the Court made clear at the hearing, Defendant s rebuttal expert will be permitted to testify on matters produced in Dr. Konstat s belated report. But although Plaintiffs may be correct that Dr. Konstat s testimony is not subject to wholesale exclusion, her opinions on the veracity of Plaintiff s allegations made against Defendants in this action are improper. (See Disclosures at 2). Dr. Konstat s conclusion that Plaintiff did not consent to intercourse with Defendants is nothing more than a credibility determination based on the evidence produced in this action. (See Anand Decl., Ex. B at 2). That credibility determination, however, must be made by the jury, not experts. It is never appropriate for experts to usurp the role of the factfinder in that manner. See Fed. R. Evid. 702 (providing that expert testimony must be based on reliable principles and methods that are reliably applied to the facts of the case ); Fed. R. Evid. 704 advisory committee s note ( These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oath-helpers of an earlier day. They also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria. ); see also Good Shepherd Manor Found., Inc. v. City of Momence, 323 F.3d 557, 564 (7th Cir. 2003) ( The district court correctly ruled that expert testimony as to legal conclusions that will determine the outcome of the case is inadmissible. ). Accordingly, the Motion to Exclude the Testimony of Dr. Konstat is GRANTED in part and DENIED in part. Dr. Konstat may not testify regarding the veracity of Plaintiff s allegations. At the hearing, Defendant Rose requested the Court to compel Plaintiff to submit to psychological examination in order to properly cross-examine Dr. Konstat regarding her opinions. Plaintiff objected to that request as untimely. The Court declines to rule on this issue at this time but will permit the parties to file appropriate briefing expanding on the arguments made at the hearing. Defendant s opening brief 5

6 Case 2:15-cv MWF-JC Document 170 Filed 07/27/16 Page 6 of 6 Page ID #:6699 shall be filed on or before August 8, 2016, and Plaintiff s Opposition on or before August 22, Defendant shall not submit a Reply, but he may address Plaintiff s Opposition at the hearing on August 29, 2016, at 10:00 a.m. IT IS SO ORDERED. 6