1609848.1 05764-048 ANDERSON, MCPHARLIN & CONNERS LLP LAWYERS 707 WILSHIRE BOULEVARD, SUITE 4000 LOS ANGELES, CALIFORNIA 90017-3623 Case 2:15-cv-00298-DDP-JCDocument92Filed04/24/17Page1of117ID#:1379 TEL (213) 688-0080 • FAX (213) 622-7594 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 16 9 8 7 6 5 4 3 2 1 TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD HEREIN Attorneys for Defendant PEPPERDINE UNIVERSITY TELEPHONE: (213) 688-0080 Los Angeles, CA 90017-3623 707 Wilshire Boulevard, Suite 4000 ANDERSON, McPHARLIN & CONNERS LLP PETER B. RUSTIN (Bar No. 181734) ERIC A. SCHNEIDER (Bar No. 94574) PAULA TRIPP VICTOR (Bar No. 113050) excluding testimony at trial from Plaintiffs’ Rebuttal Expert,Pepperdine University Dr. (“Pepperdine”) Elliot will Felman. and hereby does moveCourtroom 9C for located an order at 350 West 1st Street, Los Angeles, California, Defendant California, corporation doing business in PEPPERDINE UNIVERSITY, a WHITE, individuals, HALEY VIDECKIS [email protected] [email protected] [email protected] PLEASE TAKE NOTICE vs. CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION Defendant. Plaintiffs, PEPPERDINE UNIVERSITY'S MOTION IN LIMINE NO. 14 UNITED STATES DISTRICT COURT and FACSIMILE: (213) 622-7594 LAYANA that on May 15, 2017, at 10:00 a.m. in Trial Date: MayCrtrm.: 23, 2017 9C Time:Date: 10:00 a.m. May 15,Order) 2017 (Filed concurrently with [Proposed] SUPPORT THEREOF OF PAULA TRIPP VICTORAUTHORITIES; IN DECLARATION MEMORANDUM OF POINTS AND EXPERT DR. ELLIOT D.PLAINTIFFS’ FELMAN; REBUTTAL EXCLUDE TESTIMONY FROM MOTION IN LIMINE NO.NOTICE 14 OF TO MOTION AND Case No. 2:15 - cv - 00298 - DDP ( JC : x) 1609848.1 05764-048 ANDERSON, MCPHARLIN & CONNERS LLP LAWYERS 707 WILSHIRE BOULEVARD, SUITE 4000 LOS ANGELES, CALIFORNIA 90017-3623 Case 2:15-cv-00298-DDP-JCDocument92Filed04/24/17Page2of117ID#:1380 TEL (213) 688-0080 • FAX (213) 622-7594 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 16 9 8 7 6 5 4 3 2 1 DATED: April 24, 2017 evidence or argument offered. pleadings in this action, the Declaration ofmemorandum Paula of Tripp points Victor, and and authorities any filed other concurrently herein, the entire file and admissible at trial. opinion concerning NCAA medical issues. Thus, suchFederal testimony Rules should of not Evidence be 702 because Dr. Felman is not qualified to render an not qualified to serve as an expertexpert, in Dr. this Elliot case. Felman, on the grounds that based on his curriculum vitae, he is BASIS FOR MOTION GROUNDS FOR MOTION EVIDENCE SOUGHT TO BE EXCLUDED: PEPPERDINE UNIVERSITY'S MOTION IN LIMINE NO. 14 : This motion is based on this Notice, the UNIVERSITY Attorneys for Defendant PEPPERDINE By: ANDERSON, McPHARLIN & CONNERS LLP : Pepperdine brings this motion, pursuant to /s/ Paula Tripp Victor Peter B. Rustin Eric A. Schneider Paula Tripp Victor 2 Testimony of rebuttal 1609848.1 05764-048 ANDERSON, MCPHARLIN & CONNERS LLP LAWYERS 707 WILSHIRE BOULEVARD, SUITE 4000 LOS ANGELES, CALIFORNIA 90017-3623 Case 2:15-cv-00298-DDP-JCDocument92Filed04/24/17Page3of117ID#:1381 TEL (213) 688-0080 • FAX (213) 622-7594 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 16 9 8 7 6 5 4 3 2 1 Pepperdine’s expert’s designated testimony. any indication that he is competent andInternational qualified Society to of testify Travel in Medicine. rebuttal to Nowhere onaffiliated Dr. with Felman’s both CV the is American there Academy of FamilyCV Physicians notes and that the he is certified withFelman the lists American no Board trial of or Family deposition Physicians, experience, andexchange or is reports any one publications, week on in his advance CV. ofSee the His Declaration scheduled of expert depositions, Paula Dr. Tripp Victor, Exh. 2.which is Although attached to the the parties rebuttal agreed designation, to listsrebuttal his testimony regarding specialty as requests family for medicine. medical information.”Designations). His one-page One CV, of these experts, Dr.two Elliot experts. Felman, is designated See to Decl. “offer of Paula Tripp Victor, Exh. 2 (Plaintiffs’ Counter Expert order to insure Plaintiffs were safe toPlaintiffs’ play medical basketball. records requested by the Pepperdine staffthe were various records issues raised needed in by Plaintiffs inphysician this had case, legitimate, and non-discriminatory specifically reasons whether for the waytestimony in concerning whether which it the handled Pepperdine athletic training staffserves and as team Colorado’s team physician for itsprimary sports sports teams. medicine physician Dr. employed Poddar by will the provide Designations). University of One Colorado of and Pepperdine’s who designated experts isPlaintiff. Sourav Poddar, See M.D., Decl. a of Paula Tripp Victor, Exh. 1 (Pepperdine’s Expert I. who is “qualified as an expert by knowledge, skill, experience, training, or II. On April 14, 2017, Plaintiffs served their counter expert designation, listing On April 4, 2017, Pepperdine timely providedINTRODUCTION its AND Expert FACTUAL Designations BACKGROUND to The Federal Rules of Evidence provide forAPPLICABLE the LEGAL testimony STANDARD of an expert witness MEMORANDUM OF POINTS AND AUTHORITIES PEPPERDINE UNIVERSITY'S MOTION IN LIMINE NO. 14 3 1609848.1 05764-048 ANDERSON, MCPHARLIN & CONNERS LLP LAWYERS 707 WILSHIRE BOULEVARD, SUITE 4000 LOS ANGELES, CALIFORNIA 90017-3623 Case 2:15-cv-00298-DDP-JCDocument92Filed04/24/17Page4of117ID#:1382 TEL (213) 688-0080 • FAX (213) 622-7594 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 16 9 8 7 6 5 4 3 2 1 from testifying in areas in which heFire did not Dist. have experience). Dr. Felmanregarding has the no interpretation of NCAA medical issues.medicine, See, and specifically, e.g., should not be permitted toexpert provide at rebuttal trial testimony regarding any issues that do not relate to the general practicemedicine of or family the interpretation of NCAA medicalCV issues. that would permit Dr. Felman todeposition serve will as bear an this adequate out, expert there in is thenot a area a notable of void specialist sports in of interpreting experience NCAA on medical Dr.in issues. Felman’s the area While of Dr. Felman’s sports medicine. Dr. Felman appears to be a primaryIII. care physician, Nephew, Inc. and it must exclude testimony that doesgatekeeper not to meet these make sure goals. that the dual1053, concerns 1063 of (9th reliability and Cir. helpfulness 2002). are met, UnderRule the 702. Federal Rules, the trial court has the role of principles and methods to the facts ofof the reliable case.” principles and Fed.R.Evid. methods; 702. and (d)(b) the expert the testimony has is reliably applied based the on sufficientwill facts help or the data; trier (c) of the fact testimony is tootherwise understand the if: the product (a) evidence the or expert's to scientific, determine technical, aeducation.” or fact F.R.E. other in 702. specialized issue; The knowledge witness “may testify in the form of an opinion or /// /// qualifications in this regard. Accordingly, Dr. Felman should not be permitted to testify as a rebuttal In this case, there is no indicationARGUMENT that Dr. Felman has any relevant experience Expert testimony that is both relevant and reliable is admissible pursuant to , 2013 WL 5718882, * 16 (E.D. Cal. Oct. 18, 2013) (precluding expert Elsayed Mukhtar v. California State University, Hayward , 482 F.3d 1187, 1992 (9th Cir. 2007). PEPPERDINE UNIVERSITY'S MOTION IN LIMINE NO. 14 4 Stilwell v. Smith & Oyarzo v. Tuolumne , 299 F.3d 1609848.1 05764-048 ANDERSON, MCPHARLIN & CONNERS LLP LAWYERS 707 WILSHIRE BOULEVARD, SUITE 4000 LOS ANGELES, CALIFORNIA 90017-3623 Case 2:15-cv-00298-DDP-JCDocument92Filed04/24/17Page5of117ID#:1383 TEL (213) 688-0080 • FAX (213) 622-7594 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 16 9 8 7 6 5 4 3 2 1 DATED: April 24, 2017 Court exclude the trial testimony of Plaintiff’s rebuttal expert, Dr. Felman. IV. CONCLUSION For the reasons discussed above, Pepperdine respectfully requests that the PEPPERDINE UNIVERSITY'S MOTION IN LIMINE NO. 14 UNIVERSITY Attorneys for Defendant PEPPERDINE By: ANDERSON, McPHARLIN & CONNERS LLP /s/ Paula Tripp Victor Peter B. Rustin Eric A. Schneider Paula Tripp Victor 5 1609848.1 05764-048 ANDERSON, MCPHARLIN & CONNERS LLP LAWYERS 707 WILSHIRE BOULEVARD, SUITE 4000 LOS ANGELES, CALIFORNIA 90017-3623 Case 2:15-cv-00298-DDP-JCDocument92Filed04/24/17Page6of117ID#:1384 TEL (213) 688-0080 • FAX (213) 622-7594 15 14 13 12 11 10 28 27 26 25 24 23 22 21 20 19 18 17 16 9 8 7 6 5 4 3 2 1 April 24, 2017. that the foregoing is true and correct and that this declaration was executed on Designation is attached hereto as listing two experts. A true and correct copy of Plaintiffs’ Counter Expert hereto as to Plaintiff. A true and correct copy of Pepperdine’s Expert Disclosures is attached Elliot D. Felman. Motion in Limine No. 14 to Excludeoath Testimony From if Plaintiffs’ called Rebuttal as Expert a Dr. witness.matters I set make forth this in declaration this in Declaration support and of(“Pepperdine”) would Pepperdine’s in competently the testify to above-entitled action. them under I haveConners personal LLP, attorneys knowledge of as record to all for DefendantState PEPPERDINE UNIVERSITY of California and am a partner with the law firm of Anderson, McPharlin & I declare under penalty of perjury under the laws of United States of America 3. 2. 1. I, Paula Tripp Victor, declare as follows: Exhibit 1 On April 14, 2017, Plaintiffs served their counter expert designation, On April 4, 2017, Pepperdine timely provided its Expert Designations I am an attorney-at-law duly licensed to practice before all courts in the DECLARATION OF PAULA TRIPP VICTOR .