On October 5, 2022, Plaintiff John Caton, then 77 years old, was crossing the street, when he was struck by a USPS postal truck. Plaintiff claimed injury to and future medical care needs for not just his right hip and cervical spine, but also for his right shoulder, right foot and ankle, right thumb, and spine. While the parties agreed that Plaintiff injured his hip in the collision and required treatment, the parties disputed which of his other body parts were injured due to the collision, as well as the appropriate course of treatment.
Plaintiff submitted expert reports from two retained experts in this case: Dr. Piers Barry, an orthopedic surgeon who examined Plaintiff and his medical records; and Dr. Kelly S. Harvey, a life care planner who estimated medical costs. Barry submitted five expert reports in this case, dated: November 29, 2024; December 20, 2024; April 8, 2025; July 31, 2025; and September 16, 2025. The April 8, 2025 and July 31, 2025 reports contain his causation opinions. Harvey’s life care plan report estimated the cost of carrying out Dr. Barry’s treatment plan.
Defendant United States filed a motion to exclude certain testimony of Plaintiff’s experts.
Orthopedic Surgery Expert Witness
Dr. Piers A. Barry is a board certified orthopedic surgeon with extensive clinical and hands on experience. He has published scientific journal articles and has given presentations on subjects such as arthroscopic treatment of knee, shoulder, and ankle, and hip injuries. Barry is a member of the Arthroscopy Association of North America (AANA).
Life Care Planning Expert Witness
Kelly Sandy Harvey is a credentialed and certified Life Care Planner. She specializes in the treatment of complex orthopedic trauma, traumatic brain injury, spinal cord injury, amputations, and burns.
Discussion by the Court
A. Barry’s Opinion
Defendant sought to exclude certain expert testimony from Barry and Harvey for four reasons: 1) Barry’s causation opinions for Plaintiff’s foot, ankle, shoulder, and thumb injuries were unreliable; 2) Barry’s opinions regarding Plaintiff’s hip care were unreliable; 3) Barry’s report, served on September 16, 2025, was untimely; and 4) Harvey’s opinions on the cost of Plaintiff’s injuries lacked foundation.
i. Testimony that Plaintiff’s foot, ankle, shoulder or thumb were injured in the collision
Defendant sought to exclude Barry’s testimony that Plaintiff’s foot, ankle, shoulder, and thumb were injured in the collision. Defendant argued that Barry did not provide a clear explanation as to why he believes the collision injured Plaintiff’s shoulder, foot, ankle, or thumb.
a. Right foot and ankle
Barry noted that Plaintiff felt significant pain in his right foot and ankle after regaining consciousness immediately following the collision. Furthermore, Barry’s report stated that Plaintiff later underwent a cardiovascular evaluation to rule out a cardiac cause for the persistent swelling, but he did not address what caused the swelling.
While Plaintiff’s ankle and foot pain could be considered a symptom of the injuries sustained during the collision—Barry’s reports are silent on how the swelling was caused by the collision. Given the passage of time between the collision and the symptoms, the Court found that Barry’s reports did not explain how the injuries can be attributed to the collision and allowing him to testify regarding these injuries would only confuse the finder of fact.
b. Shoulder and thumb
Barry explained that Plaintiff saw Eric Stuffman, an orthopedic surgeon from July 25 to August 10, 2023 for ongoing right shoulder pain. Barry’s summary of Plaintiff’s medical records noted limited range of motion in his shoulders as early as October 7, 2022, which was only two days after the accident. The earliest mention of a thumb injury was December 11, 2024, when Plaintiff had an MRI.
The Court noted that Barry did not explain how these injuries are related to the accident other than Plaintiff denying any prior injuries. That is not enough.
ii. Testimony regarding future medical care needs for Plaintiff’s hip
Second, Defendant contended that Barry’s opinion regarding Plaintiff’s hip recovery needs are unreliable and will not assist the trier of fact, because Plaintiff underwent hip replacement surgery in January 2026, and Barry admitted at deposition that he had no basis of knowing whether Plaintiff required extended inpatient care or rehabilitation, as originally opined, or whether he was discharged home immediately.
Plaintiff’s opposition did not meaningfully address this argument. Nonetheless, Defendant essentially sought to penalize Plaintiff for having surgery after expert reports were due. That is no reason to exclude testimony regarding the anticipated course of treatment and recovery. If anything, any divergence between Barry’s report and Plaintiff’s post-operative care needs would serve as grounds for impeachment, rather than exclusion.
Accordingly, the Court declined to exclude Barry’s testimony on future medical care needs pertaining to Plaintiff’s hip.
iii. Whether Barry’s report received on September 16, 2025 should be stricken as untimely
Finally, Defendant filed a motion to strike Barry’s rebuttal report, served on September 16, 2025, as untimely. The deadline to serve rebuttal reports was August 27, 2025.
In opposition, Plaintiff argued that the two-week delay was inconsequential, not prejudicial and was unintentional. Specifically, Plaintiff contended that the report was provided well in advance of any expert depositions and that defense counsel had the report for approximately four months prior to Barry’s deposition.
Even with the two-week delay, Defendant had the rebuttal report several months before Barry’s deposition and before any other experts were deposed, which effectively rendered the delay harmless. Thus, exclusion would be a harsh sanction under the circumstances.
B. Harvey’s Opinion
Finally, Defendant argued that, to the extent that the Court excluded Barry’s opinions, it should also exclude any of Harvey’s cost analysis that relied on those excluded opinions.
The Court agreed. Since Barry’s opinions regarding Plaintiff’s right foot and ankle, shoulder, and thumb injuries were excluded, Harvey’s opinions regarding the cost of care for those injuries were also similarly excluded. Her other opinions, however, were not excluded.
Held
The Court granted in part and denied in part Defendant’s motion to exclude certain testimony of Plaintiff’s experts.
Key Takeaway
The purpose of a ‘detailed and complete’ expert report is, in part, to minimize the expense of deposing experts, and to shorten direct examination and prevent an ambush at trial.
Case Details:
| Case Caption: | Caton V. United States |
| Docket Number: | 4:23cv5451 |
| Court Name: | United States District Court for the Northern District of California |
| Order Date: | April 28, 2026 |
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