Summary
In Gilmore, the plaintiff was a legal secretary residing in Louisiana who danced as a Saintsation for a few football seasons.
Summary of this case from Riha v. Offshore Serv. Vessels, LLCOpinion
Civil Action No. 01-3606, Section "N"
December 12, 2002
ORDER AND REASONS
Before the Court are motions in limine filed by the parties. Defendant CBS Broadcasting, Inc.'s ("CBS") Motion in Limine seeks the exclusion of certain evidence, to wit: (1) medical opinion testimony post-dating June 11, 2001; (2) expert and lay opinion testimony regarding loss of future earning capacity as speculative; and (3) witnesses and exhibits listed in plaintiffs supplemental list filed November 15, 2002 without leave of court, and not previously listed in the plaintiffs original witness and exhibit list. Plaintiffs Motion and Limine seeks a contempt ruling excluding all of the defendant's witnesses for its alleged failure to comply with the Settlement Conference Notice. These matters were the subject of discussion in the pre-trial conference conducted in Chambers on December 10, 2002. Thereafter, the parties filed formal opposition memoranda. For the following reasons, the Court (1) GRANTS the defendant's Motion in Limine as more specifically detailed below, and (2) DENIES the plaintiffs Motion in Limine seeking a Contempt Ruling from the undersigned for the defendant's alleged failure to comply with Magistrate Judge Roby's settlement instructions regarding preparations for her settlement conference.
1. Expert Medical Opinion Testimony
The plaintiffs deadline for submitting written reports of experts to the defendants was September 6, 2002. As of that date, the only medical records made available to the defendant were those of Tulane University Hospital, Dr. Timothy Finney of Southern Orthopedic Clinic, and Health South Physical Therapy. Dr. Finney's medical records dated April 20, 2001, indicate that the plaintiff was released to dance activities. Plaintiffs visit on June 11, 2001 reveals a recommendation that the plaintiff tape her left ankle and foot for dance activity. Apparently, the plaintiff did not provide the defendant with any medical records from her last visit with Dr. Finney on July 2, 2002 or from Crescent City Physical Therapy.
See Minute Entry Order dated April 10, 2002 (requiring that "[w]ritten reports of experts, including treating physicians, who may be witnesses for plaintiff fully setting forth all matters about which they will testify and the basis therefor shall be obtained and delivered to counsel for the defendant as soon as possible, but in no event later than 90 days prior to the Final Pretrial Conference Date") (emphasis supplied) [Rec. Doc. No. 12].
The trial of this matter is scheduled for Monday, December 16, 2002, and plaintiff recently provided counsel for the defendant with reports from Dr. Finney dated December 1, 2002 and December 4, 2002. Based upon the medical records timely exchanged ( i.e., the last such record or report dated June 11, 2001), and the fact of that the plaintiff had resumed her dancing activities, the defendant did not find it necessary to consult a medical expert, a vocational rehabilitation expert, or an economist. Indeed, Ms. Gilmore was released by Dr. Finney to return to her dancing activities, and did in fact dance with the Saintsations for the entirety of the 2001 football season, and then again during the present 2002 season, after having successfully completed the rigorous try-out competitions for both seasons. The Court observes that Dr. Finney's "supplemental" reports refer to plaintiffs last office visit approximately six months earlier on July 2, 2002.
Although plaintiff has informed the Court via Motion in Limine, inter alia, that her care and treatment by Dr. Finney is ongoing, the medical records referred to by Dr. Finney do not support any such conclusion. Neither do the medical records of Crescent City Physical Therapy. Defendant notes that the plaintiff was treated by Health South Physical Therapy between March and May of 2001, when she was discharged from physical therapy by Dr. Finney. Well over a year and another season dancing as a Saintsation passed when the plaintiff commenced physical therapy treatment at Crescent City Physical Therapy in July of 2002 upon the order of Dr. Finney. Plaintiff notes that she is scheduled for an office visit with Dr. Finney on December 12, 2002, i.e., this week. It is not unusual that a plaintiff make a return visit to the treating physician when a trial is close at hand, whether treatment is ongoing or not. Moreover, regardless of any requirement interposed by the Magistrate Judge relative to updating information available for purposes of her scheduled settlement conference, the Settlement Conference Notice issued by the Magistrate Judge does not purport to relieve the plaintiff of her obligations to comply with both the deadlines scheduled in this Court's Pretrial Scheduling Order, and the requirements set forth in the Federal Rules of Civil Procedure, including Rule 26(a)(2)(B) discussed infra.
Compliance with Federal Rule of Civil Procedure 26(a)(2)(A) requires disclosure of the identity of any expert witness. To eliminate unfair surprise, the drafters also saw fit to require the parties also to disclose the substance of the expert opinion testimony and the basis of such opinion, inter alia. See Fed.R.Civ.P. 26(a)(2)(B) (requiring a party to accompany the disclosure of an expert witness with a complete, written report prepared and signed by the witness). Rule 26(a)(2)(B) specifically provides that:
(2) Disclosure of Expert Testimony.
* * *
(B) Except as otherwise stipulated or directed by the court, this disclosure [i.e., identity of witness] shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by a witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study or testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.Id. (emphasis added).
It is noteworthy that, to the extent that the treating physician testifies as to the care and treatment of his patient, the physician is not to be considered a specially retained expert, notwithstanding that the witness may offer opinion testimony under Fed.R.Evid. 702, 703, and 705. However, when the physician's proposed opinion testimony extends beyond the facts made known to him during the course of the care and treatment of the patient and the witness is specially retained to develop specific opinion testimony, he becomes subject to the provisions of Fed.R.Civ.P. 26(a)(2)(B).
To date, Dr. Finney has issued no written opinion regarding the plaintiffs care and treatment that may be necessary in the future, much less the cost of such future medical expenses. The plaintiff apparently has not yet had a return visit to her treating orthopaedist Dr. Finney since July 2, 2002. Approximately six months elapsed without the need for so much as one physician's visit related to the hairline fracture of the plaintiffs foot, and that is notwithstanding the fact that the plaintiff is nearly through her second post-accident dancing season as a Saintsation. Moreover, the plaintiffs treating physician did not see any need for surgery in the future.
Accordingly, Dr. Finney shall be permitted to testify as to his past care and treatment of the plaintiff without limitation, as well as his current treatment of the plaintiff, if any. In that regard, CBS' motion is DENIED. However, as to any comments or expert opinions of Dr. Finney that were not memorialized in writing and timely exchanged, CBS' Motion in Limine is GRANTED. The Court believes the foregoing rulings permitting the testimony of Dr. Finney to testify regarding his care and treatment, but excluding any expert opinion testimony which was not memorialized in writing and timely exchanged, preserves the purpose and integrity of the pretrial orders issued in this case and comports with the applicable Federal Rules of Civil Procedure. Suffice it to say, Dr. Finney's opinion testimony is strictly limited to his opinions expressed in written medical records that were timely exchanged in accordance with the Court's scheduling order, and written expert reports timely exchanged, if any. Additionally, any testimony by either of the plaintiffs treating physical therapists in the nature of an expert opinion shall be strictly limited to opinions set forth in medical records and/or reports, if any, that were timely exchanged.
2. Vocational Rehabilitation and Economic Expert Testimony
The party offering expert testimony bears the burden of establishing its reliability by a preponderance of the evidence. See Moore v. Ashland Chemical Inc., 151 F.3d 269, 276 (5th Cir. 1998) ( citing In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717 (3rd Cir. 1994)). The reliability inquiry requires the Court to assess whether the reasoning or methodology underlying the expert's testimony is valid. See Daubert, 509 U.S. at 589. The aim is to exclude expert testimony based merely on subjective belief or unsupported speculation. Id. at 590; see also Kumho Tire, 526 U.S. at 152 (noting that the overarching goal "is to make certain that an expert, whether basing his testimony on professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field"). Second, the Court must determine whether the expert's rationale or methodology is grounded in fact and will thereby assist the trier of fact. See Daubert, 509 U.S. at 591.
In the case at bar, the answer to both questions — reliability and relevance — is negative, for reasons previously explained. Moreover, possibility alone cannot serve as the basis of recovery. While certainty of proof is not required in civil cases, probability is, and less than that is unacceptably speculative. The questioned projection would only foster jury confusion, waste trial time, and call for a verdict which is simply not in the universe of rational awards based on the evidence of the plaintiffs work history.
See, e.g., Goode v. Herman Miller, 811 F.2d 866, 871 (5th Cir. 1988) (holding under Louisiana law, that mere proof that something is possible is of little probative value as to an ultimate issue of fact, unless it can be established with reasonable certainty that all other alternatives are impossible); Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1137 (5th Cir. 1985) (possibility alone cannot serve as the basis for recovery, for mere possibility does not meet the preponderance of the evidence standard).
Rule 701 of the Federal Rules of Evidence addresses opinion testimony of the lay witness, and only applies if the witness is not testifying as an expert. It provides that a nonexpert witness may testify in the form of opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness' testimony or the determination of a fact issue. See Fed.R.Evid. 701. Pursuant to Rule 701, a lay witness is limited to opinions or inferences (1) based on personal perception; (2) that an ordinary average person would form from those perceptions; and (3) are helpful to the jury. The plaintiff may well be entitled to some award of general damages, because she now feels on account of this accident that she must forego her dream to dance on stage in New York or with a New York company. However, the evidence disclosed to the Court to date provides no reasonable basis for a loss of future earnings award based on the an assumption that Ms. Gilmore would in fact become a professional dancer in New York and earn a salary doing so until age 70. Whether the medical evidence which may be adduced at trial discloses any basis for an award of loss of earning capacity. Moreover, there can be no expert opinion nor lay opinion testimony regarding the plaintiffs pre-accident dancing ability because the deadline for exchange of such expert reports has expired.
See Rushing v. Kansas City So. Railway Co., 185 F.3d 496, 512 (5th Cir. 1999) (quoting United States v. Riddle, 103 F.3d 423, 428 (5th Cir. 1997); Doddy v. Oxy USA, Inc., 101 F.3d 448, 460 (5th Cir. 1996) (a person may testify as a lay witness if his opinions or inferences do not require any specialized knowledge and could be reached by an ordinary person); and Lambeth v. Edison Chouest Offshore, L.L.C., 1999 WL 1204843 (E. D. La. 1999)(Vance, J.) (lay witness lacked specialized knowledge required to assess the quality of medical care he received; lay testimony limited to topics within the witness' personal knowledge, which required neither specialized nor scientific knowledge).
The Court has not had the opportunity to review Dr. Finney's medical records which were timely exchanged (i.e., records dated June 11, 2001 and earlier). Whether or not these records contain any medical opinion assigning a disability rating to the plaintiff, causally related to the accident in question, which has resulted in the plaintiffs diminished capacity to work.
Plaintiff cites Folse v. Fakouri, 371 So.2d 1120 (La. 1979), as support for her argument that earning capacity is not necessarily determined by actual loss. In Folse, the Louisiana Supreme Court stated that "damages may be assessed for the deprivation of what the injured plaintiff could have earned despite the fact that he may never have seen fit to take advantage of that capacity." Id. at 1124. In Hobgood v. Aucoin, 574 So.2d 344 (La. 1990), also cited by plaintiff, the Louisiana Supreme Court held that the plaintiff was entitled to damages for loss of earning capacity even though the opinion of the economist who testified on this issue was not entitled to any weight because it was not based on facts supported in the record. Additionally, no evidence was presented to show specific losses in plaintiffs business resulting from his injury.
In the Folse and Hobgood cases, damages for loss of earning capacity were awarded even though the evidence on this issue was limited. In Folse, evidence was presented as to average salaries for the types of jobs held by the plaintiff prior to his accident. In Hobgood, the court noted that plaintiff presented proof of a more general nature which established that his earning capacity had been impaired because of his inability to pursue his business as vigorously and energetically as he did prior to his injury. These cases are distinguishable from the instant case because the plaintiff has never danced professionally in New York, and thus has no personal "track record" of earnings to offer the jury. Plaintiff cannot testify from any first-hand knowledge regarding salaries of dancers with New York ballet companies. No expert report was timely exchanged in this case, and thus there will be no expert testimony regarding the possibility of a negative economic impact being suffered by the plaintiff as a result of her injuries. Although the Folse and Hobgood cases establish that the amount lost in the future earnings does not have to be proven with mathematical certainty, a plaintiff must present evidence (more than a simple assumption) that proves that a loss of earning capacity has, in fact, been sustained.
See Gunti v. Robertson, 801 So.2d 555, 565 (La.App. 5th Cir. 2001) (noting that future loss of earning are inherently speculative damages, and thus to obtain such an award a plaintiff must present medical evidence that indicates with reasonable certainty that a residual disability causally related to the accident exists), cert. denied, 811 So.2d 942 (La. 2002); Dennis v. Finish Line, Inc., 781 So.2d 12, 41 (La.App. 2nd Cir. 2000) (concluding that the trial court's assignment of any value to loss of future earning capacity was manifestly erroneous, considering that the economist's projection was based upon an assumption that the plaintiff had lost her ability to earn a college degree, an assumption which was not supported by the evidence in the case); Pontiff v. Pecot Associates Rehabilitation Physical Therapy Services, Inc., 780 So.2d 478, 487 (La.App. 3rd Cir. 2001) (medical testimony that a plaintiff either cannot work, or has a reduced capacity to work is essential to establishing loss of future income); Budd v. State Farm Mutual Automobile Insurance Company, 650 So.2d 429, 433 (La.App. 3rd Cir. 1995) (purely conjectural or uncertain future loss of earnings are not recoverable and no award loss of earning capacity was proper where the plaintiff earned more than his pre-accident wage, continued to work at his same job, and there was no expert testimony regarding the economic impact of plaintiffs injuries); Housley v. Cerise, 597 So.2d 71, 73-74 (La.App. 4th Cir.) (holding that "a plaintiff must present evidence that a loss of earning capacity has, in fact, been sustained," and vacating award of earning capacity), cert. denied, 600 So.2d 646 (La. 1992).
In the case at bar, plaintiff failed to timely exchange any written report of a vocational rehabilitation expert or an economist regarding her claim of loss of future earnings. The earliest that the defendant had reason to believe that the plaintiff had a claim which might require retaining the services of either a vocational rehabilitation expert or an economist was November 6, 2002, upon receipt of the plaintiffs settlement demand letter. The plaintiffs medical bills do not exceed $14,445.00, and her lost wages amount to no more than $2,062.50. By all accounts, the plaintiff was released by her treating orthopaedist at the commencement of the summer 2001 to return to dance, and she did in fact return to dance for Saintsations for the entirety of the Fall 2001 football season and is in the midst of the Fall 2002 season.
In both her original and supplemental witness lists filed October 15, 2002 and November 15, 2002, plaintiff listed the vocational rehabilitation expert Nat Ventress and an unnamed economist indicating that both were expected to testify regarding future loss of earnings. See Plaintiffs Witness and Exhibit Lists [Rec. Doc. Nos. 22 and 24]. However, the both witness lists were filed beyond the deadline set by this Court for the exchange of plaintiffs expert witness reports. As of the time the defendant filed its Motion in Limine seeking to exclude expert testimony, the substance of which was not timely shared with the defendant, plaintiff had not provided a written report of the substance of the experts' opinions complete with the basis and reasons therefor; the data or other information considered by the witness in forming the opinions, any exhibits to be used as a summary of or support for the opinions, and the qualifications of the witness, all of which are required by Fed.R.Civ.P. 26(a)(2)(B).
As of the time plaintiff's economic expert advised plaintiffs counsel of his opinion of plaintiffs future loss of wages totaling $727,009.92, Dr. Finney had released the plaintiff to her dancing activities, and plaintiff had resumed her professional dancing activities. Moreover, plaintiffs treating physician had yet to render his "supplemental" reports setting forth his opinion regarding the plaintiff's inability to return to pointe ballet, noting chronic pain and the need for orthotics for the rest of her life. These medical opinions were not forthcoming until December of 2002, and are indeed an eve-of-trial dramatic departure from prior statements made in medical records well over a year ago.
It is clear that the economic projection of loss of future wages is based solely on lay opinion that plaintiff would have eventually some day danced professionally with a New York ballet company but for her debilitating foot injury. Defendant's motion to strike the testimony of the plaintiffs vocational rehabilitation and economic expert opinion testimony is also grounded in the fact that such opinion is based entirely on speculation, i.e., a possibility that the plaintiff might someday dance pointe ballet on the New York circuit. In summary, the defendant contends that the particular economic loss projection is pure conjecture, and thus excludable as rank speculation.
Although the plaintiff makes much of the fact that she taught ballet and was given free lessons in return, the quantum leap to prima ballerina or dancer with a company in New York, with a commensurate salary for the remainder of her worklife until age 70, is not well-grounded in the facts of this case.
This Court need not conduct a Daubert hearing to determine whether it is commonplace for professional dancers with New York companies to continue to dance professionally until they reach the age of 70. Moreover, any reliable analysis or projection would have factored in the plaintiffs work history. Despite the fact that plaintiff has allegedly danced for nineteen years and received a scholarship offer to dance in New York, the plaintiff nonetheless resides in Chalmette, Louisiana, working as a legal secretary, and dancing as a Saintsation. There is no suggestion or innuendo that the plaintiff was ever swayed by any offer to actually go to New York in pursuit of such a career, or took any concrete steps toward picking up roots and transplanting herself in the dance venue of New York City. There is no evidence that suggests that the plaintiff was ever compensated with a salary for either performing ballet/dance or teaching ballet/dance except for her experience working seasonally as a Saintsation. No matter how sincere, such aspiration alone does not provide a sufficient factual basis to support an expert opinion regarding money to be earned in such a speculative future.
Regarding plaintiffs suggestion that she herself may testify regarding her potential earnings as dancer in New York, this Court's previous discussion of lay opinion testimony that is allowed under Federal Rule of Evidence 701 applies and would preclude any such testimony by the plaintiff. The Court here reiterates that the plaintiff has never danced professionally in New York, and thus has no first hand knowledge of the New York circuit, how much such dancers are paid, the average length of a career doing so, and many other particulars necessary to render a projection of loss of future income or earning capacity as a dancer with a New York company.
See Note 4, supra, and the accompanying discussion at pp. 6-7 of this Order and Reasons.
Where properly pled and proven, under Louisiana law a plaintiff is entitled to recover past lost earnings and for the loss of future wages or earning capacity. A paramount concern in reparations for loss of future income is to provide the victim with a sum of money that will, in fact, replace the money the plaintiff could have earned. The plaintiff's economic analysis extrapolating future lost earnings on the basis of the salary of a dancer in New York for the greater part of her work life expectancy is both unreliable and not grounded in the facts of the plaintiffs work history. In the entirety of the plaintiffs work history, and even factoring in the value of the free ballet lessons earned by the plaintiff in return for teaching ballet, plaintiffs dancing activities did not begin to reap the plaintiff even close to a living wage (i.e., even by southeast Louisiana standards, much less New York's). Although the case law makes it clear that absolute certainty is impossible, considerations of reliability and relevance require that any economic analysis be ensconced with some resemblance to reality. The slender reed on which the economist's projection rests warrants no credence from the gatekeeper.
See Correspondence of Jill Marie Gilmore detailing her past lost wages [Exhibit to Defendant's Motion in Limine].
In Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993), the Supreme Court held that Rule 702 requires the district court to act as a "gatekeeper" to ensure that "any and all scientific evidence admitted is not only relevant, but reliable." Id. at 589; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (clarifying that Daubert gatekeeping function, which involves the two-part inquiry into reliability and relevance, applies to all forms of expert testimony).
Lest there be any mistake, the Court agrees with the plaintiff that she herself may testify that this accident crushed her hopes and dreams of becoming a ballerina/dancer in New York, and that may indeed have some value. She may also testify the she no longer derives enjoyment from dancing or teaching dance in return for free lessons because it is painful. A jury may assign some value to that loss. However, plaintiff cannot prove loss of earning capacity or loss of future wages without expert testimony from a physician that she suffered some percentage of disability and can no longer dance, and reliable economic and vocational rehabilitation expert testimony providing the trier of fact with a realistic projection of the plaintiffs future wage loss or loss of earning capacity as a professional dancer/ballerina.
Accordingly and for all of the foregoing reasons, the defendant's motion seeking an order striking the plaintiffs vocational rehabilitation expert and economic expert, and excluding lay opinion testimony regarding loss of future earnings or loss of earning capacity, is hereby GRANTED.
3. Supplemental Witness and Exhibit List Not Timely Filed
The plaintiff argues that all witnesses that the defendant seeks to exclude were named on plaintiffs original witness list. However, the defendant only seeks an order excluding the witnesses and exhibits not included by name in the plaintiffs original witness and exhibit list which was timely filed with the Court. Accordingly, the defendant's Motion in Limine is GRANTED insofar as it seeks to exclude witnesses and exhibits not included on the plaintiffs original list which was timely filed with the Court. In particular, this Court's ruling applies to (1) expert witness Laura Zambrano, head of Loyola University's ballet department, (2) any other unidentified expert that plaintiff intends to call testify regarding her dancing abilities, and (3) exhibits numbered 13 through 16 on plaintiff's Supplemental Exhibit List, which includes video tapes of the plaintiff engaged in pointe ballet, letters from dancing schools in New York offering scholarships to the plaintiff, statements from other dancers regarding the plaintiffs dancing ability, and statistical information regarding ballet dancers' incomes.
4. Plaintiff's Motion in Limine Seeking a Contempt Ruling
Without citing a single authority for her position, plaintiff seeks imposition of a civil contempt ruling against defendant CBS, arguing that: "If the defendants ask the court to exclude witnesses because of the [Court's Pretrial] Scheduling Order, than [sic] the defendants' witnesses should also be excluded because they did not comply with the Settlement Conference Notice." Plaintiff contends that the defendant's failure to abide by an April 24, 2002 Settlement Conference Notice [Rec. Doc. No. 121 merits the imposition of contempt sanctions. It is noteworthy that the undersigned issued no order or instructions at all with regard to any settlement negotiations prefatory to the settlement conference conducted by United States Magistrate Judge Karen Wells Roby. Moreover the parties complied with the only order issued by this Court relative to settlement ( i.e., to contact the Magistrate Judge and schedule a settlement conference). Plaintiff's reference is apparently to paragraph three of Magistrate Judge Roby's four-page settlement notice which (1) extolls the advantages of a good faith effort to settle the case before darkening the conference room door, and (2) directs the parties to make a good faith effort to settle without involvement of the court, meaning that the parties make specific proposals and counter proposals prior to her November 8, 2002 conference. The plaintiffs November 6, 2002 "good faith" settlement proposal disclosed information regarding expert opinions, which should have been disclosed two months earlier instead of the day before the settlement conference. Nevertheless, for the purposes of deciding the plaintiffs motion for contempt, the Court will assume arguendo that the plaintiffs November 6, 2002 missive, in its entirety, satisfied the spirit of the Magistrate Judge's instructions, and thus invited a good faith settlement counter proposal.
See Memorandum in Support of Plaintiff's Motion in Limine, at p. 2.
See Pretrial Scheduling Order, executed by the undersigned on April 10, 2002.
Far from the "broad reservoir of power" that the plaintiffs motion suggests, the inherent contempt power of a court is a limited source, i.e., an "implied power" wrought "from the need to make the court function." Chambers v. NASCO, Inc., 501 U.S. 32, 55 (1991) (quoting the Fifth Circuit's decision in NASCO, Inc. v. Calcasieu Television and Radio, Inc., 894 F.2d 696, 702 (5th Cir. 1990)). "[T]he threshold for the use of the inherent sanctions power is high." Elliot v. Tilton, 64 F.3d 213, 217 (5th Cir. 1995). "Because inherent powers are shielded from direct democatic controls, they must be exercised with restraint and discretion." Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980); see also International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 831-33 (1994) (explaining that the "fusion of legislative, executive, and judicial powers [in inherent power proceedings] summons forth . . . the prospect of the most tyrannical licentiousness" and is "uniquely . . . liable to abuse"). In In re Terrebonne Fuel and Lube, Inc., 108 F.3d 609 (5th Cir. 1997), the Fifth Circuit explained:
If the purpose of the order is to punish those whose conduct is in question or to vindicate the authority of the court, the order is viewed as criminal. If, on the other hand, the purpose of the contempt order is to coerce compliance with the court order or to compensate another party for the contempt violation, the order is considered to be civil.Id.; see also Bagwell, 512 U.S. at 828 (noting as a general matter, sanctions that serve to "vindicate the authority of the court" are criminal in character).
The contempt ruling sought by plaintiff in this case cannot be construed as remedial. Its focus is on alleged "offending" conduct which occurred over a month ago, and references instructions issued by a judge other than the undersigned. Such a contempt ruling is aimed at either serving the purpose of punishment or to vindicate the authority of the Magistrate Judge in this case, and thus can only be viewed as criminal. If the purpose were to coerce compliance, plaintiff would have moved swiftly and raised the issue to the Magistrate Judge familiar with the circumstances and her Settlement Conference Notice which allegedly went unheeded. The plaintiffs delay and failure to invoke the contempt power of the "offended judge" cannot be ignored. With the impetus to settle this case perhaps now at its lowest ebb, the trial date imminent, and evidentiary surprises diffused of any potential for unfair prejudice, this Court's attention is more properly focused on preparation for Monday's upcoming jury trial.
As noted at the outset, "the threshold for the use of inherent power sanctions is high." Elliot, 64 F.3d at 217. "In order to impose sanctions against [a defendant] under its inherent power, a court must make a specific finding that the [defendant] has acted in `bad faith.'" Chaves v. M/V Medina Star, 47 F.3d 153, 156 (5th Cir. 1995). The thrust of the contempt ruling sought by the plaintiff is to counterbalance evidentiary rulings necessary to protect the fairness of the proceedings and which are the result of the plaintiffs own failure to comply with this Court's pretrial scheduling orders. Clearly, the grounds urged by the plaintiff are not sufficient to support the requisite finding of "bad faith" on the defendant's part.
Inherent powers are the exception, not the rule, and their assertion requires special justification, which is wholly absent in this case. Plaintiff cites no good reason why a contempt ruling should issue in this case. Moreover and assuming without deciding that the rule is one for civil as opposed to criminal contempt, "civil contempt proceedings leave the offended judge solely responsible for identifying, prosecuting, adjudicating, and sanctioning the contumacious conduct." Bagwell, 512 U.S. at 531. Notwithstanding any one or more of her instructions detailed in April 24, 2002 Settlement Conference Notice, the "offended judge" conducted settlement negotiations in this case on November 8, 2002 without discerning any contemptuous conduct on the part of the defendant under the circumstances presented. Plaintiffs motion for contempt is belated, frivolous and apparently not raised for any proper purpose, and therefore it is DENIED.
Accordingly and for all of the above and foregoing reasons as specifically detailed herein above,
IT IS ORDERED that the defendant's Motion in Limine seeking to limit expert medical opinion testimony, to strike the plaintiffs vocational rehabilitation expert and economic expert in toto, to exclude any testimony regarding future loss of wages, and to strike plaintiffs witnesses and exhibits not listed on any timely filed witness or exhibit list is hereby GRANTED. As previously mentioned in the text above, the Dr. Finney may testify as to the facts of his care and treatment of the plaintiff in the past up to and including up to the present time, without any limitation. However, as to any expert medical opinion, Dr. Finney is strictly limited to the four-corners of his written records timely exchanged (i.e., prior to the deadline for exchanging plaintiffs expert reports).
IT IS FURTHER ORDERED that the plaintiff's Motion in Limine seeking a Contempt Ruling for defendant's alleged failure to comply with the Magistrate Judge's Settlement Notice is hereby DENIED.