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Eriksen v. Wal-Mart Stores, Inc.

United States District Court, D. Montana, Billings Division

April 25, 2017

LORETTA LYNN ERIKSEN, Plaintiff,
v.
WAL-MART STORES, INC., Defendant.

          ORDER

          SUSAN P. WATTERS United States District Judge.

         Plaintiff Loretta Lynn Eriksen brought suit against Defendant Wal-Mart Stores, Inc., alleging violations of the Family Medical Leave Act ("FMLA"), after she was terminated from her employment as an overnight stocker. Before the Court are Wal-Mart's motions in limine to exclude 20 categories of various testimony and evidence at the trial on June 12, 2017. (Doc. 56).

         At this pretrial stage, the Court deals with Wal-Mart's contentions as set forth below. Wal-Mart seeks to exclude any and all reference to all the following matters:

         A. Any reference to any damages related to alleged workplace-related injuries or exacerbation of alleged injury/condition.

         Ruling: Denied as overly broad. Eriksen concedes that she is not claiming Wal-mart caused the injury which formed the basis for her FMLA request. It is unclear to what extent she is arguing that those injuries were exacerbated by Wal-Mart's alleged FMLA violations. See Section D, infra.

         B. Treating physician causation testimony not disclosed under Fed. R. Civ. P.

         Ruling: Granted. Federal Rule of Civil Procedure 26(a)(2) requires a party to timely disclose a written report of a witness "if the witness is one retained or specially employed to provide expert testimony in the case-----" As the Ninth Circuit explained, treating physicians are generally excused from the expert report requirement because "they are a species of percipient witness. They are not specially hired to provide expert testimony; rather, they are hired to treat the patient and may testify to and opine on what they saw and did without the necessity of the proponent of the testimony furnishing a written expert report." Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 819-20 (9th Cir. 2011).

         Here, Eriksen's treating doctor rendered treatment at a later date, after Eriksen was no longer employed with Wal-Mart. Eriksen did not file an expert report. Accordingly, to remain in compliance with Rule 26(a)(2), her treating physician may testify to the treatment he rendered, the time frames associated with Eriksen's surgery and recuperation period, and whether those time frames would apply had she received the surgery earlier, when employed with Wal-Mart. All such testimony properly falls under his treatment as her physician. Without a report, however, her treating physician may not testify about whether physical work with Wal-Mart would have exacerbated her physical injury had she been working there when she got the surgery. Not only is that expert opinion testimony, it is speculative and her treating physician lacks foundation to provide it.

         C. Testimony by Eriksen as to her own medical or causation opinion. Ruling: Granted. Fed.R.Evid. 401, 402, 403, 701 & 702.

         D. Arguments regarding an exacerbation theory under the FMLA.

         Ruling: The Court recognizes that the "exacerbation theory" has been rejected by at least one Circuit Court and some district courts in the Ninth Circuit. See Edgar v. JAC Prod. Inc., 443 F.3d 501 (6th Cir. 2001); Santrizos v. Evergreen Federal Savings & Loan Ass % 2007 WL 3544211 (D. Or 2007). However, it is not clear at this stage and without the benefit of the evidence to be offered by the parties, that Eriksen is arguing the "exacerbation theory." Accordingly, Wal-Mart's motion is granted only to the extent that Eriksen argues that Wal-Mart's alleged FMLA violations exacerbated her physical injuries that formed the basis for her FMLA request.

         E. Evidence of wage damages after Eriksen's termination.

         Ruling: Denied. Wal-Mart's motion in limine appears to be based on testimony elicited from Eriksen prior to her 2016 surgery. (See Doc. 57 at 10 (citing Eriksen's 2015 deposition testimony)). Eriksen's renewed position is that she could ...


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