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Swan v. United States

United States District Court, D. Alaska

December 1, 2016

Galen Swan, Plaintiff,
United States of America, Defendant.

          ORDER AND OPINION [Re: Motions at Dockets 23 and 27]



         Before the court are two motions in limine filed by defendant United States of America. At docket 23 the United States moves in limine to preclude plaintiff's expert opinion evidence regarding his damages from the loss of subsistence hunting and fishing opportunities.[1] Plaintiff Galen Swan (“Swan”) opposes at docket 33; the United States replies at docket 38.

         At docket 27 the United States moves in limine to preclude two of Swan's experts from testifying about the relevant standard of care. Swan opposes at docket 35; the United States replies at docket 42.

         Oral argument was heard on November 29, 2016.


         This medical malpractice case arises out of treatment Swan received from the Maniilaq Health Center. Swan's complaint alleges that he visited Maniilaq Health Center in February 2010 because he was experiencing rectal bleeding. Swan alleges that after a stool test came back positive for occult blood, [2] it was necessary to follow-up this test result with a colonoscopy, but his providers “never informed him of his blood test and need for a [colonoscopy] referral, ” despite the fact that he returned “to the hospital numerous times over the next two and a half years.”[3] When a colonoscopy was eventually performed on Swan in 2012, the results were positive for colon cancer. Swan alleges that he has “had to undergo extensive radiation treatment and chemotherapy because of the stage of the cancer.”[4]

         Swan's one-count action against the United States[5] alleges medical malpractice against Family Practice Physician Erick Torres Semprit, Family Nurse Ruth Lagerberg, and Community Health Practitioner (“CHP”) Isabel Booth. He seeks damages for pain and suffering, medical expenses, and lost earning capacity (including the loss of subsistence hunting and fishing opportunities).


         The district courts exercise broad discretion when ruling on motions in limine.[6] In order for evidence to be excluded under such motions, it must be “clearly inadmissible on all potential grounds.”[7] “Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context.”[8]

         “It is settled law that in limine rulings are provisional. Such ‘rulings are not binding on the trial judge [who] may always change his mind during the course of a trial.'”[9] “Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted to trial. Denial merely means that without the context of trial, the court is unable to determine whether the evidence in question should be excluded.”[10]


         A. Swan's Expert Report on Subsistence Damages is Not Inadmissible

         Swan retained economist Hugh Richards (“Richards”) to estimate his economic damages, including damages from the loss of subsistence hunting and fishing opportunities. Richards' report assumes that Swan would personally contribute 20% of the following annual subsistence harvest: “25 caribou, 14 bearded seal, 14 nukchuck seal, 1 belukha whale every two and a half years (based on 5 taken each year by village members and about twelve families in the village), 1 walrus every ten years, 35 eider ducks, 1, 500 char and dolly varden, 500 whitefish, 8 grayling, 80 chum salmon, and 80 pounds of cod.”[11] Richard then valued this lost harvest “at equivalence for substitutes in Fairbanks Fred Meyer adjusted to Nome prices with an additional 10% for differential transportation to Kivalina” and, in some instances, a 25% organic-food premium.[12]

         The United States seeks to preclude Richards' opinions regarding Swan's subsistence losses, arguing that they violate AS 09.55.549 and are unreliable under Federal Rule of Evidence 702.

         1. Whether Richards' report “objectively verifies” Swan's subsistence damages

         Alaska Statue 09.55.549 defines the economic damages that may be recovered in a medical malpractice action as:

objectively verifiable monetary losses incurred as a result of the provision of, use of, or payment for, or failure to provide, use, or pay for health care services or medical products, and includes past and future medical expenses, loss of past and future earnings, cost of obtaining domestic services, burial expenses, loss of use of property, cost of replacement or repair, loss of employment, and loss of business or employment opportunities”.[13]

         The district court in Kasayuli v. United States, [14] held that subsistence losses are included in this definition. The court found that “residents of rural Alaska . . . engage in year-round hunting and fishing by which they acquire their food, housing, clothes, etc., off the land or water, ” and these subsistence activities are the functional equivalent of “past and future earnings or employment” for purposes of AS 09.55.549(h)(1).[15]

         In its briefing, the United States does not challenge Kasayuli's holding that lost subsistence harvests qualify as economic damages in a medical malpractice action.[16] Instead, it argues that Richards' report is not “objective verification” of Swan's subsistence damages because it relies on faulty assumptions regarding Swan's lost subsistence harvest and its replacement cost. The United States does not cite a Federal Rule of Evidence in support of this evidence-preclusion argument, but it is apparently arguing that Richards' estimate of Swan's subsistence damages is inadmissible under Rule 402 because it does not comply with AS 09.55.549(h)(1).

         Because the United States does not actually contend that Swan's lost subsistence damages are not “objectively verifiable, ” this argument is a non-starter. Instead, the United States is challenging the assumptions upon which Richards based his objective verification of Swan's damages.[17] As such, this argument is subsumed by the United States' Rule 702 argument, discussed below.

         2. Rule 702

         Rule 702, as amended in 2000 to incorporate the standards set out by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., [18] and Kumho Tire Co. v. Carmichael, [19] allows qualified experts to offer opinion testimony only if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.[20]

         “This list of requirements makes the task of determining admissibility sound more mechanical and less judgmental than it really is.”[21] “[A] district court's inquiry into admissibility is a flexible one, ”[22] focused on assuring that the expert testimony “both rests on a reliable foundation and is relevant to the task at hand.”[23] The district court's essential task is “to screen the jury from unreliable nonsense opinions, ” but not “exclude opinions merely because they are impeachable.”[24] Because Rule 702 “is aimed at protecting jurors from evidence that is unreliable for reasons they may have difficulty understanding, in a bench trial there is greater discretion regarding procedure and even the stringency of gatekeeping.”[ ...

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