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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

BRUCE ANCA, 

Case No. 3:17-cv-86

Plaintiff,

vs.

GEMINI TRANSPORT, LLC, et al., Magistrate Judge Michael J. Newman

(Consent Case)

Defendants.

______________________________________________________________________________

ORDER GRANTING DEFENDANTS’ MOTION IN LIMINE (DOC. 65)

______________________________________________________________________________

This civil case is before the Court on Defendants’ motion in limine. Doc. 65. Plaintiff 

filed a memorandum in opposition. Doc. 68. Thereafter, Defendants filed a reply. Doc. 84. The 

Court discussed the motion with counsel, on the record and during the final pretrial conference, on 

November 22, 2019. The Court has carefully considered all of the foregoing, and Defendants’ 

motion is ripe for decision.

This civil case arises from an automobile accident that occurred on March 18, 2015 on 

southbound Interstate 75 in Montgomery County, Ohio between, inter alia, an automobile operated 

by Plaintiff Bruce Anca and a tractor-trailer operated by Defendant Ale Dukic. At the time, Dukic 

was allegedly operating a tractor-trailer owned or otherwise supplied to him by Defendant Gemini 

Transport, LLC (“Gemini”) within the course and scope of his employment or agency with 

Gemini. Plaintiff alleges he suffered injuries as a result of Dukic’s negligence in causing the 

accident and that Gemini is vicariously liable for Dukic’s culpability. Given apparent stipulations 

between the parties, the only issue to be resolved at trial in this case is causation and damages.
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In the motions in limine now pending before the Court, Defendants seek to preclude

Plaintiff from: (1) disparaging Defendant Dukic because of his not being present at trial; and (2) 

introducing evidence regarding Plaintiff’s psychological treatment. Doc. 65. “Although the 

Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed 

pursuant to the district court’s inherent authority to manage the course of trials.” Luce v. United 

States, 469 U.S. 38, 41 (1984). “Motions in limine allow the court to rule on evidentiary issues 

prior to trial in order to avoid delay and to allow the parties to focus remaining preparation time 

on issues that will in fact be considered by the jury.” United States v. Mack, 298 F.R.D. 349, 351 

(N.D. Ohio 2014), aff’d, 808 F.3d 1074 (6th Cir. 2015). However, “[a] ruling on a motion in limine

is no more than a preliminary, or advisory, opinion that falls entirely within the discretion of the 

district court.” United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994). 

In deciding motions in limine, “[c]ourts should exclude evidence . . . only when it is clearly 

inadmissible.” Mack, 298 F.R.D. at 351 (citing Indiana Ins. Co. v. General Elec. Co., 326 

F.Supp.2d 844, 846 (N.D. Ohio 2004)). Unless “certain evidence is clearly inadmissible, [courts] 

should defer ruling until trial so that questions of foundation, relevancy, and potential prejudice 

can be evaluated in proper context.” Id. Regardless, a “district court may change its ruling at trial 

for whatever reason it deems appropriate.” Yannott, 42 F.3d at 1007.

A. Dukic’s Non-Participation at Trial

The issue regarding Defendant Dukic was previously set forth by the Court in a separate 

Order. Doc. 62. Specifically, earlier in the pendency of this case, Plaintiff’s counsel agreed that, 

because Defendants have stipulated to liability (leaving the issues of causation and damages for 

trial), Defendant Dukic would not have to appear at trial or give testimony in the case. Doc. 54. 
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Plaintiff’s counsel, however, subsequently reneged on that agreement and sought to 

question Dukic regarding “the manner and nature of the impact [at issue], what events led to the 

crash [at issue], what happened at the scene, what . . . Dukic saw and heard, any interaction with 

Plaintiff, and so on.” Doc. 58 at PageID 264. In reliance on the previous agreement between 

counsel, however, Dukic’s attorney lost touch with him and is now unable to contact him. Doc. 

54 at PageID 259.

Defendants moved the Court for an Order that Defendant Dukic not be required to appear 

at trial or give deposition testimony in the case. Doc. 54. The Court denied Defendants’ motion 

but, in light of Plaintiff reneging on an agreement between counsel, further ordered that, should 

Plaintiff wish to call Dukic as a witness at trial, Plaintiff shall comply with all legal requirements 

necessary to secure Dukic’s attendance. See, e.g., Fed. R. Civ. P. 45(c). Plaintiff contends that 

Dukic -- who is a Canadian resident -- is outside the subpoena power of the Court and, therefore, 

he cannot subpoenaed to attend trial. Doc. 68. 

Because Dukic will not be present at trial, Defendants request that the Court prohibit 

Plaintiff or counsel from “disparag[ing] [him] for not attending trial.” Doc. 65. Plaintiff argues 

that counsel should be permitted to comment on Dukic’s absence so that the jury is not left with 

the impression that Plaintiff is not interested in holding Dukic accountable for the accident or that 

counsel is unprepared in the case. Doc. 68. 

The Court agrees with both parties regarding Dukic’s absence. Accordingly, the Court 

GRANTS Defendants’ motion in limine and ORDERS that neither Plaintiff nor counsel disparage 

Defendants because Dukic is not present at trial. However, the jury should be informed why Dukic

is not present and, accordingly, the Court ORDERS counsel to confer regarding a preliminary 

instruction informing the jury why Dukic will not be at trial, i.e., because he is a Canadian resident, 
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because Dukic’s breach of duty is stipulated, and counsel previously agreed he need not participate

at trial.

B. Evidence of Psychological Treatment

Defendants next move for an Order precluding Plaintiff from presenting evidence at trial 

regarding his “diagnosis, treatment, and causation of any [psychological] treatment.” Doc. 65. 

According to Defendants, Plaintiff’s counsel previously agreed that Plaintiff would not be pursuing 

any psychological claims in this case. Doc. 84. Plaintiff, in his memorandum in opposition, 

represents an intent to call certain lay witnesses to testify regarding the impact the accident has 

had on him, including their observations of Plaintiff’s depression and anxiety. Doc. 68. Plaintiff 

also represents an intent to call two doctors, Drs. Deardorff and Miller, to testify as experts and/or 

treaters regarding Plaintiff’s alleged depression and anxiety and their opinions linking these 

conditions to the accident at issue. Id.

It is not clear to the Court at this time whether an agreement was actually reached and, if it 

was, whether Plaintiff’s counsel is now reneging on this agreement. If an agreement was reached 

between counsel, the undersigned would be inclined to exclude any evidence regarding diagnosis, 

treatment, and causation concerning any alleged psychological disorders such as depression and 

anxiety. Even if there were no agreement between counsel, it nevertheless appears from the record 

that the medical evidence Plaintiff would seek to introduce (i.e., the opinion testimony of Drs. 

Deardorff and Miller) should be excluded because such expert evidence was not properly disclosed 

under Rule 26. Absent evidence regarding the cause of these conditions, introduction of Plaintiff’s 

treatment for these conditions would be prejudicial and could potentially confuse the jury.

The disclosure of expert witnesses is governed by Fed. R. Civ. P. 26(a)(2), which provides 

that, “a party must disclose to the other parties the identity of any witness it may use at trial to 
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present evidence under Federal Rule of Evidence 702, 703, or 705.” In addition to the mere 

disclosure of each expert’s identity, the party’s expert disclosure must “be accompanied by a 

written report -- prepared and signed by the witness -- if the witness is one retained or specially 

employed to provide expert testimony in the case or one whose duties as the party’s employee 

regularly involve giving expert testimony.” Fed. R. Civ. P. 26(a)(2)(B). 

Reports for experts retained or specially employed to provide expert testimony in a case 

must contain certain specific information, namely: “(i) a complete statement of all opinions the 

witness will express and the basis and reasons for them; (ii) the facts or data considered by the 

witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the 

witness’s qualifications, including a list of all publications authored in the previous 10 years; (v) 

a list of all other cases in which, during the previous 4 years, the witness testified as an expert at 

trial or by deposition; and (vi) a statement of the compensation to be paid for the study and 

testimony in the case.” Id. 

With regard to experts not retained or specially employed to provide expert testimony in a 

case, e.g., treating doctors, the mere disclosure of the expert’s identity is also insufficient. See 

Fed. R. Civ. P. 26(a)(2)(C). Instead, the disclosure of a non-retained expert’s identity must be 

accompanied by a statement regarding: “(i) the subject matter on which the witness is expected to 

present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts 

and opinions to which the witness is expected to testify.” Id.; Little Hocking Water Ass’n, Inc. v. 

E.I. DuPont de Nemours & Co., No. 2:09-CV-1081, 2015 WL 1105840, at *7 (S.D. Ohio Mar. 11, 

2015). 

While the disclosures required by Rule 26(a)(2)(C) are “considerably less extensive than 

the report required by Rule 26(a)(2)(B)[,]” the Rule does “not permit a Plaintiff to ‘dump’ medical 
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records on the defendant, nor do they eliminate the requirement of providing summary 

disclosures.” Gleed v. AT&T Servs., Inc., No. 13-12479, 2016 WL 1451532, at *2 (E.D. Mich. 

Apr. 12, 2016); see also Cosby v. Claiborne Cnty. Bd. of Educ., No. 3:17-CV-278-RLJ-HBG, 2018 

WL 3233336, at *3 (E.D. Tenn. July 2, 2018) (finding that identifying physicians in response to 

interrogatories and the production of medical records in discovery “does not satisfy Rule 

26(a)(2)(C)” and “does not constitute harmlessness under Rule 37(c)(1)”); Little Hocking Water 

Ass’n, 2015 WL 1105840, at *8 (holding that a Rule 26(a)(2)(C) “summary is defined as a brief 

account that states the main points of a larger body of information,” not “a prodigious volume of 

material”; “it does not suffice to reference large bodies of material as sources of facts”).

Here, Dr. Deardorff is not identified at all in Plaintiff’s expert disclosure. Doc. 23. Dr. 

Miller is identified, but the disclosure on the Court’s docket fails to note whether he is one retained 

or specially employed and, regardless, is nevertheless woefully insufficient to meet the disclosure 

requirements of Rule 26(a)(2)(B) or (a)(2)(C). During the final pretrial conference, Plaintiff’s 

counsel noted that an Ohio Bureau of Workers’ Compensation report authored by Dr. Miller was 

produced to Defendants in this case but, as previously noted by the Court in another case, the 

disclosure of records or reports prepared in furtherance of workers’ compensation proceedings 

does not satisfy the expert disclosure requirements of Rule 26. See Ogle v. Koorsen Fire & Sec., 

Inc., 336 F. Supp. 3d 874, 880 (S.D. Ohio 2018). Thus, from the record presently before the Court, 

Plaintiff’s expert disclosures do not comply with Rule 26.

“If a party fails to provide information or identify a witness as required by Rule 26(a) . . . 

the party is not allowed to use that information or witness to supply evidence on a motion, at a 

hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 

37(c)(1). In fact, Rule 37(c)(1) “requires absolute compliance with Rule 26(a), that is, it ‘mandates 
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that a trial court punish a party for discovery violations in connection with Rule 26 unless the 

violation was harmless or is substantially justified.’” Roberts ex rel. Johnson v. Galen of Va., Inc., 

325 F.3d 776, 782 (6th Cir. 2003) (emphasis added). In other words, “the sanction of exclusion

[of experts] is automatic and mandatory unless the sanctioned party can show that its violation of 

Rule 26(a) was either justified or harmless[.]” Id. (citing Salgado v. General Motors Corp., 150 

F.3d 735, 742 (7th Cir. 1998)).

Based on the record presently before the Court, Defendants’ motion in limine precluding 

evidence of Plaintiff’s psychological diagnosis, treatment, and causation -- and specifically, the 

testimony of Drs. Deardorff and Miller -- is GRANTED.

IT IS SO ORDERED.

Date: November 25, 2019 s/ Michael J. Newman

Hon. Michael J. Newman

United States Magistrate Judge