The opinion of the court was delivered by: John D. Bates United States District Judge
This case arises from a physical altercation between plaintiff Neill Bassi and defendants Jarrod and Casey Patten at a bar known as Smith Point in the District of Columbia. Bassi contends that the Pattens are liable for assault, battery, and intentional infliction of emotional distress, and seeks compensatory damages for medical expenses, physical pain, and emotional distress, along with punitive damages.*fn1 A jury trial is scheduled to commence on January 12, 2009. The parties have filed six motions in limine to exclude evidence. Casey Patten's motion in limine to exclude the statement of Hannah Freeman (ECF #68) is no longer in dispute, with the parties having agreed that the statement will be excluded. See Bassi's Response (ECF #69).*fn2 The Court will address the remaining motions below.
I. Evidence Pertaining to Contributory Negligence or Assumption of Risk by Bassi
Bassi moves to preclude defendants from introducing evidence that he was contributorily negligent or assumed the risk of his injuries by the nature of his employment as a doorman at Smith Point or by his conduct. See Pl.'s Mot. at 1-3 (ECF #63). He contends that, under District of Columbia law, neither contributory negligence nor assumption of risk is available as a defense to an intentional tort.*fn3 See id. at 2-3 (citing, inter alia, Muldrow v. Re-Direct, Inc., 493 F.3d 160, 165 (D.C. Cir. 2007), Rude v. Dancing Crab at Washington Harbour, LLC, 245 F.R.D. 18, 25-26 (D.D.C. 2007), and Sinai v. Polinger Co., 498 A.2d 520, 525 n.7 (D.C. 1985)). Defendants do not contest this principle (having filed no opposition), and the Court finds the argument grounded in sound legal precedent. Therefore, the Court will grant Bassi's motion to exclude evidence of contributory negligence or assumption of risk by Bassi. However, Bassi does not identify which specific events or exhibits should be excluded, and the Court is cognizant that some evidence that might cast Bassi as assuming some risk (e.g., Bassi's alleged altercation with Casey Patten) may nonetheless be admissible because it may be relevant to legitimate issues, such as how Bassi's damages were sustained. Hence, the parameters of the Court's ruling will, of necessity, be further defined during the course of trial.*fn4 Defendants should be mindful of the distinction between evidence that is relevant to assault and/or battery, and evidence that pertains solely to whether Bassi assumed the risk of his injuries or acted negligently.
II. Testimony of Dr. Robert O. Gordon
Dr. Gordon, an orthopedic surgeon, has been identified by defendants as an expert witness on Bassi's physical injuries, including causation. See, e.g., Jarrod Patten's Pretrial Statement at 9. Bassi moves to exclude any testimony by Dr. Gordon opining that some "other mechanism of injury" could have caused his shoulder injury -- that is, an event other than Jarrod Patten allegedly forcing Bassi's arm behind his back. See Pl.'s Mot. at 2-5 (ECF #64). Bassi contends that exclusion of such testimony is warranted on the ground that Dr. Gordon failed to offer in his expert report or deposition any other possible mechanism of injury besides Jarrod Patten's alleged actions, and any testimony at trial on "other mechanisms" would be both an unfair surprise and speculative because Gordon does not have a factual basis for opining that any other event caused Bassi's injury. Id. at 3-5. In response, Jarrod Patten contends that Dr. Gordon's report provided notice to Bassi that he would testify that some other event could have been the mechanism of Bassi's injury and this subject was fully explored in Dr. Gordon's deposition. See Jarrod Patten's Opp. at 2 (ECF #71). Jarrod Patten also argues that Dr. Gordon properly declined to accept only one party's version of events and instead provided a balanced opinion that would allow for all of the facts elicited to be considered.
Having reviewed the expert report and deposition, the Court concludes that defendants complied with the disclosure requirements of Fed. R. Civ. P. 26(a)(2). Dr. Gordon's expert report states that "other mechanisms of injury . . . could have caused this [the torn shoulder labrum] to have occurred," and his deposition testimony explained his opinion in detail. See Dr. Gordon's Report at 1 (Pl.'s Mot., ECF #64, Ex. 2); Gordon Dep. at 24-32. A fair reading of his testimony, viewed in context, does not speculate that some other unknown event caused Bassi's shoulder injury, but instead offers an opinion on how a torn shoulder labrum occurs and leaves it to the jury to determine, based on the evidence elicited at trial, whether Bassi's torn shoulder labrum was caused by the events as told by Bassi or as indicated by other evidence. The following excerpt from Dr. Gordon's deposition highlights this point:
Q: . . . [L]et's talk about causation . . . [Dr. Connell] indicates that the large labral tear was consistent with the patient's mechanism of injury. Do you see that?
Q: And in your report . . . you agreed with that conclusion of Dr. Connell.
A: Well, what I said was that it could be a reasonable explanation for the type of injury that did occur, but there are other mechanisms as well. He has based all that on what the patient told him. And anything that can cause you to sublux your shoulder and tear your labrum, there are multiple -- you know, you can sublux your shoulder in lots of different ways. But what I said was his explanation was certainly -- could be consistent with what was found . . . .
Q: But your report doesn't outline what those other mechanisms of injury --
A: It's anything that can cause your shoulder to sublux. And you can fall on your outstretched arm; you can put it in a position that it is not used to being in; you can pull it too far one way, it could be one way or another. Subluxation of the shoulder happens all the time in sports. It happens in other, you know, work injuries. It happens in car accidents. Anything that can make your shoulder sublux . . . which means partly dislocate but not completely dislocate. . . . .
. . . [I]f there is somebody else there that says it happened a different way, you know, then that could be just as easily true as well. There is no way that anybody ...