ORDER Re: ECF No. 71

WILLIAM G. COBB, Magistrate Judge.

Before the court is Defendants' Motion in Limine to Exclude Evidence of Plaintiff's Medical Conditions. (ECF Nos. 71, 75.)1 Plaintiff filed a response. (ECF No. 89.) Pursuant to Local Rule 16-3(b), no reply was permitted. Under Local Rule 78-2, the court deems this matter appropriate for decision without a hearing.

In connection with his rescission claim, Plaintiff alleges that he suffered from medical conditions which left him vulnerable to undue influence by Defendants. (ECF No. 25 ¶¶ 4, 44.)

Defendants seek an order precluding the introduction of evidence concerning Plaintiff's medical conditions, medications, and/or the impact of such conditions or medications on his ability to freely and voluntarily enter into the 2013 settlement agreement at issue in his rescission claim. (ECF No. 71.)

First, Defendants contend that expert testimony is required to establish that his medical conditions and/or medications in 2013 impaired his understanding, memory, attention and cognition, restricting his ability to freely and voluntarily execute a settlement agreement. (ECF No. 71 at 3.) Second, they argue that Plaintiff may not testify as to his own mental condition, or as to the existence or treatment of physical illnesses. (Id., citing Frisone v. United States, 270 F.2d 401, 403 (9th Cir. 1959); Layton v. Yankee Caithness Joint Venture, L.P., 774 F.Supp. 576, 580 (D. Nev. 1991); Ramona v. Superior Court, 57 Cal.App.4th 107, 121 (1997)). Third, they assert that Plaintiff did not disclose any other witness who could competently testify as to the impact of his medical conditions on his ability to execute a settlement agreement. Finally, Defendants state, without elaboration, that any such evidence would be inadmissible hearsay that would unduly prejudice Defendants.

In response, Plaintiff reiterates his allegations that as a result of sustaining multiple injuries he was left disabled and with pain requiring treatment with high levels of narcotic pain relievers. He notes that defendant Dr. Sharon Ondreyco is a licensed practicing oncologist in Arizona. He claims that beginning in the mid-2000s he informed the Defendants repeatedly of his need for dental and medical funds for treatment of dental problems, pain management, and for a diagnosed tumor. He argues that Defendants employed economic duress and coercion to get him to enter into the settlement agreement, while he had no financial ability to continue the litigation while his own medical and dental needs went unmet. Plaintiff asserts that evidence of his medical condition, medications and his state of mind at the time he considered entering into the settlement agreement are highly relevant and come within the factors that the court must consider in determining his rescission claim under California law.

Plaintiff maintains that evidence of his medical conditions, medications or the impact of those things on his ability to freely and voluntarily enter into the settlement agreement do not require expert testimony. He argues that Defendants reliance on Frisone is misplaced as that case concerned causation, i.e., whether a lay witness could give opinions as to the medical cause of the plaintiff's claimed medical condition, and under those circumstances, only expert testimony is allowed. The issue here, on the other hand, is whether a lay witness such as Plaintiff or Ms. Linde can testify regarding how Plaintiff's condition presented itself as to symptomology, how it affected his ability to function, and how Plaintiff experienced his condition. Plaintiff states that he does not intend to testify as to what caused his medical condition, but lay witnesses may testify to their personal knowledge of Plaintiff's symptomology, how his conditions affected his ability to function, his emotional state and his emotional stability, which will include discussions of his physical state of being, his brain tumor, dental needs and the use of narcotic pain relievers.

Insofar as Plaintiff argues that Plaintiff did not disclose a lay witness to testify on this subject, Plaintiff asserts that both Plaintiff and Ms. Linde were identified as witnesses who would testify as to the relevant facts of the complaint and both were deposed as to Plaintiff's medical condition. He attaches excerpts of his deposition in support of his position.

Defendants rely on Frisone to support their contention that all evidence of Plaintiff's medical condition and medications should be excluded at trial. In that case, the defendant was prosecuted for perjury related to testimony given in a prior trial and asserted as a defense that he had an impaired memory and did not intend to testify falsely. Frisone v. U.S., 270 F.2d 401, 402 (9th Cir. 1959). The defendant took the stand and testified about his failing memory. Id. When he was re-called by his own counsel, he was asked if he suffered from mental illness in the past, and the government's attorney objected. Id. The defense attorney tried to make an offer of proof to show a failure of Plaintiff's memory, but the trial judge concluded that was not a proper defense. Id. The Ninth Circuit stated that the reason for this line of questioning was clearly to corroborate the defendant's testimony regarding his faulty memory. Id. The Ninth Circuit concluded Plaintiff was not competent to so testify:

Id. "As a general rule, a witness may not testify to his own mental condition, past or present." Id. at 403 (citations omitted). The Ninth Circuit determined that the purpose of defense counsel's question was "to establish that the mental illness from which appellant was said to suffer was of such a serious nature that it resulted in a permanent impairment of his memory. Such testimony by appellant was inadmissible as being hearsay or opinion evidence." Id. (citation omitted). Lay witnesses have also "been held incompetent to testify as to the existence or treatment of physical illnesses[,]" but "lay witnesses have been allowed to testify as to common illnesses the existence or treatment of which can be termed a `fact' within the common knowledge of lay persons[.]" Id. (citations omitted). With respect to mental conditions, lay witnesses have also been permitted to testify that they are nervous, worried, or had an anxious state of mind. Id. (citation omitted). In fact, in Frisone, the defendant was permitted to testify "as to his faulty recollection and poor memory," but he could not testify as to "the existence or treatment of a mental illness serious enough to cause permanent memory impairment." Id.

The take-away from Frisone is that the Plaintiff may testify about his mental state and his physical condition, but he may not testify as to causation and cannot express medical diagnoses. Plaintiff cannot testify that any condition from which he suffered caused him to be unable to freely and voluntarily enter into a settlement agreement. He can only testify as to how he felt physically and emotionally around the time he contemplated entering into the settlement agreement, but as a lay witness he cannot express a medical diagnosis or causation unless it is within the usual and ordinary experience of a lay person. Similarly, Ms. Linde may testify as to what she observed with respect to Plaintiff's physical and mental condition, but she also may not express a medical diagnosis or opinions on causation.

This is consistent with Federal Rule of Evidence 701 which provides:

Fed. R. Evid. 701.

Insofar as Defendants argue that they will be prejudiced if this evidence is permitted at trial, the record reflects that Defendants were allowed to explore both Plaintiff's and Ms. Linde's testimony on this subject. In deposition, Mr. Digesti asked Plaintiff what medications he was taking during the California lawsuit, and he responded Norco and Soma and a high blood pressure medication. (ECF No. 89-1 at 15-16.) He also discussed when he took the medications. (Id. at 16.) He was also asked about medical and disability issues he had during the California lawsuit, which Plaintiff discussed. (Id. at 16-17.) There was a discussion about mental or physical conditions that affected his ability to enter into the settlement agreement. (Id. at 18.) Ms. Linde was also specifically asked about mental and physical problems she observed Plaintiff as having during the time the California petition was pending. (ECF No. 89-2.)

Therefore, Defendants' motion in limine to exclude any evidence regarding Plaintiff's medical conditions (ECF No. 71) is GRANTED IN PART AND DENIED IN PART. Plaintiff may not present lay witness testimony regarding medical diagnoses or causation, but Plaintiff may present lay witness testimony regarding factual matters and opinions within the personal knowledge of the witness concerning Plaintiff's medical condition.

IT IS SO ORDERED.