United States District Court, D. Montana, Billings Division
P. WATTERS United States District Judge.
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.
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:
reference to any damages related to alleged workplace-related
injuries or exacerbation of alleged injury/condition.
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,
Treating physician causation testimony not disclosed under
Fed. R. Civ. P.
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).
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.
Testimony by Eriksen as to her own medical or causation
opinion. Ruling: Granted. Fed.R.Evid. 401, 402, 403, 701
Arguments regarding an exacerbation theory under the FMLA.
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.
Evidence of wage damages after Eriksen's termination.
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 ...