The opinion of the court was delivered by: John W. Sedwick United States District Judge
[Re: Motion at docket 82]
At docket 82, plaintiff Timothy D. Martin ("Martin") moves to exclude certain evidence. Martin's supporting memorandum is at docket 83. Defendant SMAC Fisheries, LLC ("SMAC") opposes the motion at docket 93. Martin replies at docket 97. Oral argument was not requested, and it would not assist the court.
Martin's motion addresses four topics. The first is Dr. Boland's medical record. The second is the admissibility of certain anticipated testimony from SMAC's expert witness Dr. Kase. The third relates to Martin's failure to file tax returns. The fourth relates to certain impeachment evidence. The court addresses each topic in turn.
A. Dr. Boland's Medical Record
The following can be ascertained from Martin's deposition.*fn1
In 2009, James Boland was a physician in Colorado who was
consulted by Martin in October of 2009. Martin's purpose in seeing Dr.
Boland was to secure a doctor's statement to support Martin's
application to use medical marijuana. Dr. Boland's record called a
"Physician's Certification" indicates that Martin had back pain and
It is undisputed that Martin successfully used Dr. Boland's medical record to support his application for the use of medical marijuana. It is also undisputed that Martin successfully obtained the authorization. Dr. Boland's record precedes the incident which gives rise to this litigation by several months.
SMAC would offer the medical record into evidence at trial pursuant to the business records exception to the hearsay rule. The only reason given to support Martin's request to exclude Dr. Boland's record is stated in a single sentence: "Should Defendant attempt to introduce the Boland record, Plaintiff will assert a foundation objection that the circumstances of Dr. Boland's practice lack the required indicia of trustworthiness to qualify for the business records exception to the hearsay rule."*fn3 To support that argument, Martin points to three newspaper articles which address what appears to be widespread abuse of medical marijuana laws by a variety of persons and entities, one of whom is Dr. Boland.
The newspaper stories suggest that Dr. Boland is running a "mill" which generates physician's certificates for nearly anyone which in turn generates a lot of revenue. The news accounts also suggest that Dr. Boland simply relies on what his patients tell him about their conditions, rather than on a proper medical assessment. If that is accurate, it would mean that Martin told Dr. Boland that he had a bad back. In any event, the newspaper articles are hearsay and do not provide a basis for determining that the physician's certificate was not a business record made in the ordinary course of Dr. Boland's medical practice, whatever may have been the nature of that practice. It may be added that the undisputed fact that the State of Colorado relied on the document in approving the use of marijuana by Martin lends support to the proposition that the document is, in fact, Dr. Boland's business record. In short, the hearsay in the newspaper articles provides inadequate support for Martin's position. Of course, Martin may impeach the probative value of the physician's certificate through his own testimony about his experience with Dr. Boland. Given the inadequacy of the only argument advanced to exclude Dr. Boland's record, the request to exclude it from evidence is denied.
Martin contends that defense expert Dr. Kase may be asked to testify that the opinion by plaintiff's expert, Dr. Gritzka, to the effect that a pre-existing back injury was exacerbated by the knee injuries Martin sustained as an F/V Rai Dawn crewman should not be permitted. The basis for this request is that no rebuttal expert report for Dr. Kase was provided. SMAC acknowledges no rebuttal report was filed, but would excuse that failure on the grounds that having timely filed its own initial expert report, SMAC did not oppose Martin's request to extend the deadline for production of his expert's initial report, which extension left too little time for Dr. Kase to prepare a rebuttal report. SMAC also concedes that Dr. Kase's testimony will be limited to testimony based on the opinions and reasons expressed in his initial report.
The court's scheduling order at docket 22 required a simultaneous exchange of expert reports and provided for a simultaneous exchange of expert rebuttal reports. The deadlines were extended in an order at docket 26 approving the parties' stipulation to extend certain deadlines such that the initial expert reports were due on January 3, 2012, with rebuttal reports due on February 3, 2012. Thereafter, at docket 41 the parties stipulated to continue the deadline for the initial reports until January 17, 2012, but did not request any ...