*1 Pending before the Court are Plaintiff Reyna A. Ruiz's (“Plaintiff”) Motion in Limine #1, Dkt. No. 83, Plaintiff's Motion in Limine #4, Dkt. No. 86, Defendant Walmart Inc.'s (“Defendant”) Motion in Limine #3, Dkt. No. 93, and Defendant's Motion in Limine #5, Dkt. No. 95. The motions were filed on October 6, 2021. Oppositions were filed on October 13, 2021. Dkt. Nos. 101, 103, 105, 108. The Court heard argument on the motions at the February 28, 2022 pretrial conference. For the reasons stated on the record and set forth below, Plaintiff's Motion in Limine #1 is granted-in-part and denied-in-part, Plaintiff's Motion in Limine #4 is denied, Defendant's Motion in Limine #3 is granted-in-part and denied-in-part, and Defendant's Motion in Limine #5 is denied.

A. Plaintiff's Motion in Limine #1 to Exclude Defendant's Expert Gidon Vardi [83]

Plaintiff moves to exclude Defendant's expert Gidon Vardi pursuant to Federal Rule of Evidence 702. Pl. Mot. in Limine #1 (“PMIL #1”) at 1, Dkt. No. 83. First, Plaintiff argues that Mr. Vardi is not qualified because he has no education or training regarding the standard of care applicable to the grocery store industry. Id. at 5. Second, Plaintiff contends that Opinion No. 4 of Mr. Vardi's report regarding Plaintiff being distracted by her phone should be excluded because it does not require specialized knowledge and Mr. Vardi is not an expert on human factors. Id. at 8-9. Third, Plaintiff asserts that Mr. Vardi's Opinion Nos. 3 and 4 and opinions regarding the “active management program,” “Towel in Pocket,” the definition of “sweeping tool,” and heavy foot traffic are not proper rebuttal evidence. Id. at 10.

Defendant opposes this motion in limine. Def. Opp'n PMIL #1 at 1, Dkt. No. 105. Defendant asserts that Mr. Vardi is qualified to offer opinions on walkway safety in the context of a premises liability case. Id. at 2. Mr. Vardi is a safety expert on floor safety, standards of care within the retail industry, and inspection procedures in the premises liability context. Id. He has many years of experience in the retail and food industries and he is a certified building inspector and walkway safety specialist. Id. at 2-3. Defendant contends that Mr. Vardi's report is a direct point-by-point rebuttal to the opinions of Plaintiff's liability expert Alex Balian using the available evidence in the case. Id. at 3-4.

Under Federal Rule of Evidence 702, an expert witness may testify in the form of an opinion if:

Fed. R. Evid. 702. The trial judge has a gatekeeping role in determining whether an expert's proposed testimony is both reliable and relevant. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 589, 597 (1993). The gatekeeping determination applies to all experts, whether their knowledge is “scientific,” “technical,” or otherwise “specialized.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-48 (1999). The purpose of the gatekeeping role is “to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id. at 152.

*2 The Court finds that Mr. Vardi is sufficiently qualified as an expert regarding walkway safety in a retail store. Mr. Vardi represents that he is a certified walkway safety specialist and a certified building inspector. See PMIL #1, Ex. 2. He has extensive experience in the retail and food industries, including for big box retail stores, and has qualified as an expert in slip-and-fall personal injury cases. See id. Mr. Vardi's experience as set forth in his curriculum vitae is sufficient to qualify him as an expert in this case regarding floor safety, the standard of care in the retail industry, and inspection procedures. Plaintiff may question Mr. Vardi at trial about his lack of experience in owning or operating a retail establishment or developing training manuals or safety inspection procedures for a supermarket, but these facts do not support complete exclusion of his testimony. The Court denies Plaintiff's motion to exclude Mr. Vardi's testimony in its entirety. The Court turns to the opinions challenged by Plaintiff as improper rebuttal opinion.

“Rebuttal testimony cannot be used to advance new arguments or new evidence.” Huawei Techs., Co, Ltd. v. Samsung Electronics Co, Ltd., 340 F. Supp. 3d 934, 995 (N.D. Cal. 2018). “The test of whether an expert's opinion constitutes rebuttal or a new opinion, however, is not whether a rebuttal expert employs new testing or methodologies but instead, whether a rebuttal attempts to put forward new theories outside the scope of the report it claims to rebut.” Id. (internal punctuation omitted). In determining whether an opinion is proper rebuttal opinion, courts consider whether the rebuttal evidence contradicts, impeaches, or defuses the impact of the evidence offered by an adverse party. Id. at 996. “Ultimately, rebuttal testimony is proper as long as it addresses the same subject matter that the initial experts address.” Hoist Fitness Sys., Inc. v. TuffStuff Fitness Int'l, Inc., No. EDCV 17-1388-AB (KK), 2019 WL 3209451, at *3 (C.D. Cal. June 10, 2019), report and recommendation adopted, 2019 WL 3205797 (C.D. Cal. July 15, 2019).

Plaintiff argues that Mr. Vardi's Opinion No. 3 is improper because it does not address any opinion provided by Plaintiff's expert, Mr. Balian. PMIL #1 at 10. Mr. Balian opines in his report that due to Defendant's failure to conduct proper sweeps/inspections, a smashed grape was allowed to remain on the floor for an unreasonable time period. PMIL #1, Ex. 3 at 3-4. Mr. Vardi's opinion that there is no clear evidence as to when the grape was dropped and that there is the chance that the hazard did not exist as close to 79 seconds before the incident is a direct rebuttal to Mr. Balian's opinion regarding the grape being left on the floor for an unreasonable period.

Plaintiff also contends that Mr. Vardi's opinions regarding the “active management program,” “Towel in Pocket,” “Safety Sweeps,” the efficacy of the sweeping tool used by Defendant's employees, and heavy foot traffic at the accident site should be precluded because these were not addressed by Mr. Balian. Mr. Balian opined that Defendant's sweeps prior to the subject accident do not comply with Defendant's own procedures, resulting in a smashed grape being allowed to remain on the floor. PMIL #1, Ex. 3 at 3-4. Mr. Balian further opined that the failure to conduct sweeps is a failure to follow store maintenance procedures and is below the standard of care and inconsistent with the accepted practice of retail industry. Id. at 4. Mr. Vardi's description of the active management program, Safety Sweeps, and the Towel in Pocket program in Defendant's Standard Operating Procedure (“SOP”), see PMIL #1, Ex. 1 at 18, defuses the impact of Mr. Balian's opinions regarding the adequacy of Defendant's standard procedures. Mr. Vardi's opinion that the use of wide floor dust mops would have picked up a grape that was present at the time of the sweep, see id. at 18-19, properly rebuts Mr. Balian's opinion that the smashed grape would have been detected had personnel implemented Defendant's floor maintenance procedures. As to Mr. Vardi's opinion about heavy foot traffic, Mr. Balian discusses “high customer traffic” in his report. See PMIL #1, Ex. 3 at 2-3. Therefore, Mr. Vardi's Opinion No. 3 and other opinions regarding floor safety procedures are proper rebuttal evidence.

*3 Finally, Plaintiff contends that Mr. Vardi's Opinion No. 4 regarding Plaintiff being distracted by her phone and having the last clear chance to avoid the accident does not require specialized knowledge and is speculative. The Court finds that this opinion would not assist the jury because specialized knowledge is not required for the jury to decide whether Plaintiff was distracted by her cell phone. See McClellan v. I-Flow Corp., 710 F. Supp. 2d 1092, 1136 (D. Or. 2010) (“[E]xpert testimony is not helpful if it simply addresses lay matters which the jury is capable of understanding and deciding without the expert's help.” (internal punctuation omitted)). While Defendant may ask Plaintiff regarding the use of her phone prior to the slip and introduce other evidence on this subject, the Court will preclude Mr. Vardi from opining on this topic at trial.

In sum, the Court grants Plaintiff's Motion in Limine #1 as to Opinion No. 4 in Mr. Vardi's report and otherwise denies the motion.

B. Plaintiff's Motion in Limine #4 to Exclude Testimony of Defendant's Expert Henry Lubow [86]

Plaintiff moves to exclude the testimony of Defendant's expert Dr. Henry Lubow. Pl. Mot. in Limine #4 (“PMIL #4”) at 1, Dkt. No. 86. Plaintiff argues that Dr. Lubow is not qualified to give opinions regarding medically necessary treatment or experimental treatment because he is not an orthopedic surgeon and has no expertise in the specialty of pain management. Id. at 8. Dr. Lubow's speculative testimony as to future medical treatment or bills should also be excluded as cumulative to other experts retained by Defendant. Id. at 9. Plaintiff asserts that Dr. Lubow's opinions on the reasonableness of Plaintiff's medical bills overwhelmingly rely on the allowable amount by Medicare, which is entirely irrelevant and misleading as Plaintiff has never been Medicare-eligible. Id. at 10.

Defendant opposes this motion in limine. Def. Opp'n PMIL #4 at 1, Dkt. No. 108. Defendant argues that Dr. Lubow is well qualified to provide opinions on the usual and customary pricing for medical service and procedures through his prior experiences with medical billing, both as a physician and a developer of medical billing software programs. Id. at 2. Dr. Lubow has performed over 3000 reasonable value analyses as an expert witness and has been accepted as an expert at trial over 400 times. Id. In personal injury cases involving medical expenses, defendants are permitted to conduct a wide-ranging inquiry to argue that the reasonable value of services provided is lower than that presented by plaintiffs. Id. at 3-4. Defendant contends that Medicare Allowable amounts, group health payment amounts, and cash rate data all provide relevant benchmarks for Dr. Lubow's analysis of the reasonable value of medical services. Id. at 4-5. Defendant points to a California Court of Appeal opinion that approved of Dr. Lubow's methodology. Id. at 6 (citing Stokes v. Muschinske, 34 Cal. App. 5th 45, 59-60 (2019)).

The Court will consider Plaintiff's objections to Dr. Lubow's opinion in two categories: (1) objections related to the use of Medicare Allowable amounts; and (2) all other objections.

The Court construes Plaintiff's objections to Dr. Lubow's use of Medicare Allowable amounts as objections to those opinions that relate to medical billing and the reasonable value of medical care, which appear to be Opinion Nos. 1, 2, 4, 7, 8, 9, 10, and 11. Plaintiff does not argue that Dr. Lubow is unqualified to opine on medical billing and the reasonable value of medical care generally. Rather, Plaintiff objects to Dr. Lubow's methodology that relies on the Medicare Allowable Amount as Plaintiff is not Medicare-eligible. However, Dr. Lubow never opines that Plaintiff is covered by Medicare, nor does he base his use of the Medicare Allowable Amount on the assumption that Plaintiff is eligible for Medicare. Rather, he explains that he uses the Medicare Allowable Amount and 130% of the Medicare Allowable Amount as community benchmarks for the exchange-rate/reasonable rate. PMIL #4, Ex. 1 (“Lubow Report”) at 11, Dkt. No. 86-1. He further explains the reasoning for using these two amounts as benchmarks based on what medical providers accept. Id. at 11-18. Although Dr. Lubow uses the Medicare Allowable Amount as one benchmark for what the reasonable value of medical care would be, he also uses other benchmarks, including 130% of the Medicare Allowable Amount and the Fair Health Benchmark Charge Data. Id. at 5, 12, 17, 21-24. Plaintiff does not persuasively argue why Dr. Lubow's use of different benchmarks, including the Medicare Allowable Amount, is a flawed methodology in light of Dr. Lubow's explanations. Based on a review of Dr. Lubow's report, it appears unlikely that his methodology would confuse the jury. Accordingly, the Court denies Plaintiff's request to exclude Dr. Lubow's opinions regarding medical billing and the reasonable value of medical care.

*4 This leaves Opinion Nos. 3, 5, 6, and 12 regarding the medical necessity of treatment, the experimental and/or investigational nature of Plaintiff's treatment, whether certain treatment was actually provided, and the lucrative nature of lien care. As to Opinion Nos. 3, 5, and 6, Plaintiff objects that Dr. Lubow is not qualified to opine because he has no background in orthopedic medicine. However, as explained below, Plaintiff has not shown how these opinions require a background in orthopedic medicine, nor does she point to any testimony by Dr. Lubow showing that he lacks the relevant expertise to render these opinions.

It appears that Dr. Lubow used Codes 7, 10, 14, and 44 to support these opinions. See Def. Opp'n PMIL #4, Ex. 1 at 9, Dkt. No. 108-1. Dr. Lubow used Code 7, “not medically necessary,” for charges on special reports, a no-show fee, and a review of records. Id. at 1, 30, 32, 33. None of these determinations appear to require a background in orthopedic medicine. Dr. Lubow used Code 14, “no evidence that this service was actually provided,” for a July 9, 2019 stellate ganglion injection. Id. at 1, 33. Plaintiff may question Dr. Lubow as to how he made this determination at trial, but it does not appear that expertise in a particular specialty is required to determine from records whether a specific service was actually provided.

Dr. Lubow used Code 10, “not medically reasonable,” for neurophysiologic monitoring in the setting of percutaneous spinal cord insertion. Id. at 43-44. Dr. Lubow explains this coding decision in Attachment #8 to his expert report and points to a position statement by the American Association of Neurological Surgeons/Congress of Neurological Surgeons. Lubow Report at 47. Dr. Lubow used Code 44, “this is an investigational/experimental procedure,” for ketamine treatments. Def. Opp'n PMIL #4, Ex. 1 at 33-36. In Attachment #9 to his expert report, Dr. Lubow points to evidence-based medical guidelines to support his opinion regarding the experimental nature for ketamine treatment. Lubow Report at 48-49. Plaintiff does not explain why Dr. Lubow would need specialized orthopedic or pain medicine training to render these opinions based on his review of the relevant medical literature.

As to Opinion No. 12, Dr. Lubow explains, based on his experience with personal injury litigation, why a medical provider with a lien may be at a financial advantage and would be motivated to claim a higher amount for a reasonable value of the provider's professional service. Lubow Report at 45-47. Dr. Lubow uses an example from this current case as an illustration and provides his assumptions for his analysis. See id. Plaintiff does not point to any specific portion of this analysis that is improper. As the Court already found, evidence that a witness has a medical lien is relevant to show bias and to challenge credibility. See Dkt. No. 123 at 6.

Finally, Plaintiff has not sufficiently supported how Dr. Lubow's testimony will be cumulative to any other specific expert's testimony. As the Court indicated in its denial of Plaintiff's Motion in Limine #2, Plaintiff may object at trial if it appears that Defendant is eliciting needlessly cumulative testimony. See Dkt. No. 123 at 3. The Court denies Plaintiff's motion to exclude Opinion Nos. 3, 5, 6, and 12.

In sum, the Court denies Plaintiff's Motion in Limine #4.

C. Defendant's Motion in Limine (#3) to Exclude Plaintiff's Day in the Life Video [93]

Defendant moves to exclude Plaintiff's “Day in the Life” videotape or, in the alternative, to compel Plaintiff to provide a full and unedited version to Defendant prior to use at trial. Def. Mot. in Limine #3 (“DMIL #3”) at 1, Dkt. No. 93. Defendant explains that the video was produced on December 9, 2020 for purposes of settlement only and should not be admissible. Id. at 2. Defendant argues that the video has not been properly authenticated and it no longer depicts the way that Plaintiff lives her life. Id. Defendant contends that the only purpose of the video is to elicit juror sympathy and has no probative value because it was created for the sole purpose of litigation. Id. at 3-4. Defendant maintains that the prejudicial impact far outweighs any probative value. Id. at 4. Alternatively, if the Court is inclined to allow the video into evidence, Defendant requests an order compelling Plaintiff to turn over the full version. Id.

*5 Plaintiff opposes this motion in limine. Pl. Opp'n DMIL #3 at 1, Dkt. No. 101. Plaintiff explains that she used a production company to create a day in the life video to demonstrate her general damages. Id. at 3. Plaintiff intends to use this video as demonstrative evidence at trial. Id. Plaintiff explains that the video will be a demonstrative aide supporting her testimony as to how the injury has affected her life. Id. at 4. Plaintiff argues that the raw unedited footage is protected by the work-product doctrine. Id. at 6.

Defendant's argument regarding the video being produced for settlement purposes only amounts to a statement that the video was provided with a settlement demand and a citation to Federal Rule of Evidence 408 elsewhere in the brief. See DMIL #3 at 1-2. There is no explanation of what Federal Rule of Evidence 408 precludes or any analysis on why the rule applies to the video at issue. The Court therefore declines to consider this argument that Defendant has failed to support with any analysis or caselaw.

As to the substantive dispute regarding the admissibility of day-in-the-life videos, the Court is unaware of any binding authority in the Ninth Circuit on this issue. In Bannister v. Town of Noble, 812 F.2d 1265 (10th Cir. 1987), the Tenth Circuit considered whether a district court abused its discretion in admitting into evidence a “Day in the Life” film. Id. at 1268-69. The panel discussed four factors: (1) whether the video “fairly represent[s] the facts with respect to the impact of the injuries on the plaintiff's day-to-day activities;” (2) the likelihood that the plaintiff's awareness of being video recorded would cause self-serving behavior, such as “exaggerated difficulty in performing extraordinary tasks” or “conduct that serves little purpose other than to create sympathy;” (3) “the dominating nature of film evidence;” and (4) whether the video “could distract the jury because the benefit of effective cross-examination is lost.” Id. at 1269-70. As to the final factor, the panel found that the possibility of prejudice is greatly reduced if the subject of the video can be cross-examined at trial. Id. at 1270. The prejudicial effect of a video is to be determined on a case-by-case basis, and the district court should examine the video outside the presence of the jury. Id. The Bannister panel found no abuse of discretion by the district court in admitting the film because it demonstrated the plaintiff's adaptation to his injury, including him “getting around school, getting into his car, pumping gasoline for his car, and performing several different tasks in his home.” Id.

Federal and state courts have cited Bannister in ruling on the admissibility of day-in-the-life videos. See, e.g., DeBiasio v. Illinois Cent. R.R., 52 F.3d 678, 687 (7th Cir. 1995) (finding district court did not abuse its discretion in admitting a video depicting the plaintiff's daily routine after reviewing it outside the presence of the jury); Gaddy v. Terex Corp., No. 1:14-cv-01928, 2018 WL 11350314, at *1-2 (N.D. Ga. Dec. 5, 2018) (finding portions of video showing the plaintiff's day-to-day activities were admissible, but instructing removal of portions of the video showing a particularly difficult day when the plaintiff still had an active wound); Jones v. City of Los Angeles, 20 Cal. App. 4th 436, 442 (1993) (finding video was relevant to damages because it showed the extent of plaintiff's injuries and “graphically demonstrated her need for constant medical attention in a manner oral testimony could not convey”).

*6 District courts within the Ninth Circuit have also cited Bannister in deciding whether to admit day-in-the-life videos. See, e.g., Thompson v. Polaris Indus. Inc., No. CV-16-02868-PHX-DJH, 2019 WL 2173965, at *16 (D. Ariz. May 17, 2019); Thompson v. TRW Automotive U.S., LLC, No. 2:09-cv-1375-JAD-PAL, 2014 WL 2612271, at *1 n.1 (D. Nev. June 11, 2014). In TRW Automotive, the court recognized that “day-in-the-life videos are a valuable tool in personal-injury jury trials,” as “films illustrate, better than words, the impact the injury had on the plaintiff's life.” Id. at *1. However, the court denied the plaintiff's request to pre-admit two day-in-the-life videos. Id. One video was “heavily produced,” with “dramatic narration” by both the plaintiff and her mother and a soundtrack “designed to evoke the jury's sympathy.” Id. at *2. The second video was mostly in “interview format.” Id. The court noted that clips depicting injuries as the plaintiff was experiencing them or her daily routine with her son could be admissible without audio and with the aid of testimony at trial. Id. In Polaris, the court denied a motion to exclude a video that was described as having no audio and depicting the plaintiff “rising in the morning, being dressed and groomed, leaving the house to attend outpatient rehabilitation before returning home where he is assisted by his caregiver with showering.” 2019 WL 2173965, at *16. Based on this description, the court found that the video was not unduly prejudicial. Id.

At the October 27, 2021 hearing, the Court directed Plaintiff's counsel to provide the video at issue to the Court. Dkt. No. 121. On November 9, 2021, Plaintiff's counsel provided a link for the video to the Court by email. The Court has reviewed the video and finds that with a few further limitations, the probative value outweighs any prejudice to Defendant.

The video provided to the Court has audio, comprising mostly of Plaintiff's narration. Plaintiff's counsel stated at the October 27 hearing that counsel would remove the sound and Plaintiff provides in her opposition that the video does not include narration. See Pl. Opp'n DMIL #3 at 5. Plaintiff must remove any audio if she intends to show the video to the jury.

The video shows Plaintiff doing tasks that would be part of her daily routine, such as getting in and out of bed, showering, brushing and drying her hair, brushing her teeth, getting dressed, and cooking breakfast. The video also shows Plaintiff conducting a specific therapy movement. These portions appear to be a fair representation of the impact of the injuries on Plaintiff's day-to-day activities, at least at the time the video was taken, and the Court does not observe anything that is obviously self-serving or only for the purpose to create sympathy. It would be difficult if not impossible for Plaintiff to demonstrate these tasks at trial and the video is far superior at demonstrating the impact of her injuries than oral testimony. Additionally, Defendant will have the opportunity to cross-examine Plaintiff regarding what is depicted in the video, mitigating any prejudice to Defendant. The Court finds that the probative value of these portions of the video outweighs any prejudice to Defendant. See Grimes v. Emps. Mut. Liab. Ins. Co. of Wisconsin, 73 F.R.D. 607, 610 (D. Alaska 1977) (“[T]he other scenes of the plaintiff performing daily functions and the film of the plaintiff performing clinical tests have a probative value greater than any prejudice which might result. The films illustrate, better than words, the impact the injury has had on the plaintiff's life in terms of pain and suffering and loss of enjoyment of life.”).

However, the portions of the video from around 5:57 to 6:55 and 7:07 to 7:35 are in interview or narration format without visually demonstrating the impact of the injury. Therefore, these portions of the video must be edited out.

Defendant contends that the video does not provide an understanding of Plaintiff's daily life because she was able to operate with little assistance until her stroke in April 2021. DMIL #3 at 4. Defendant attaches Plaintiff's deposition testimony in support. However, in that excerpt, Plaintiff testified that she is in a lot of pain and that the pain has increased significantly since her stroke. See DMIL #3, Ex. B. Nothing in the excerpt indicates an improvement of Plaintiff's condition since the time the video was taken or that Plaintiff was able to operate with little assistance until her stroke. Defendant may cross-examine Plaintiff on the points raised in its motion in limine. Additionally, the jury will be informed prior to publication of the date the video was taken. See Chesler v. Trinity Indus., Inc., No. 99 C 3234, 2002 WL 1822918, at *7 (N.D. Ill. Aug. 8, 2002) (finding a limiting instruction advising the jury of the dates when videos were made and that they are not intended to represent the plaintiff's current condition would address the defendant's concern that videos were filmed two and three years ago). The Court finds that this adequately reduces any prejudice to Defendant regarding the date of the video.

*7 As to Defendant's request for the unedited version of the video, the Court has identified two cases where district courts have required production of an unedited version of a day-in-the-life video. See Csiszer v. Wren, No. 08-3011, 2009 WL 10707836 (W.D. Ark. Feb. 5, 2009) (permitting plaintiffs to create another day-in-the-life video provided that defendants are given an unedited version); Chesler, 2002 WL 1822918, at *7 (ordering the plaintiff to produce a complete unedited version of a day-in-the-life video to the defendant). While neither case provided much explanation, the Court finds it similarly appropriate for Defendant here to have an unedited version of the video if Plaintiff intends to show an edited version at trial.

Plaintiff asserts the attorney work-product privilege for the unedited version of the video. The Court is unaware of any caselaw discussing this privilege in the context of unedited versions of day-in-the-life videos. There is a line of caselaw for surveillance video taken at the direction of defendants' counsel to document the activities of plaintiffs in personal injury cases. See Roa v. Tetrick, No. 1:13-cv-379, 2014 WL 695961, at *3-4 (S.D. Ohio Feb. 24, 2014) (collecting cases). In that context, courts have found that surveillance videos are fact work product but discoverable. Id. at *3. Because “video or film can sometimes be misleading or incomplete, depending on editing or other circumstances,” and the opposing party is not able to reproduce or discover the video by other means, courts routinely order production. Id. The Court finds this reasoning to be applicable here. While the unedited video is attorney work product, Defendant cannot obtain the equivalent of the unedited footage by any other means, and it has a substantial need for the video to determine whether the edited version that will be shown at trial is misleading or incomplete. To the extent the audio contains “the mental impressions, conclusions, opinions, or legal theories” of Plaintiff's counsel, Plaintiff need not produce the audio as any video showed at trial will not have audio. See Fed. R. Civ. P. 26(b)(3)(B) (providing that if a court orders discovery of attorney work product, the court must “protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation”).

At the February 28, 2022 hearing, defense counsel requested the audio of the unedited video footage. Defense counsel proposed that to the extent portions of the audio are privileged, Plaintiff could edit those portions out of the audio track. The Court will not order Plaintiff to edit or redact the video's audio track to remove privileged or protected communications as requested by defense counsel. See Bowoto v. Chevron Corp., No. C 99-02506 SI, 2006 WL 2507452, at *3 (N.D. Cal. Aug. 29, 2006) (finding plaintiffs had established that portions of the audio track to a video contained communications protected by the attorney-client privilege and work-product doctrine and declining “to require plaintiffs to edit the video so that portions are audible”). The unedited video will be produced in its entirety without any audio.

Plaintiff does not address authentication. However, the Court does not find this issue to be dispositive of the motion. Defendant does not explain why Plaintiff would be unable to authenticate the video at trial. Unless the parties stipulate to the authenticity of the exhibit, Plaintiff must properly authenticate the video prior to publication to the jury. See Díaz-Casillas v. Doctors' Ctr. Hosp. San Juan, 342 F. Supp. 3d 218, 235 (D.P.R. 2018) (finding probative value of day-in-the-life video was not substantially outweighed by the danger of unfair prejudice, but requiring the plaintiffs to properly authenticate the video before publication to the jury).

*8 In sum, Defendant's Motion in Limine #3 is granted as to the audio and the portions of the video that do not show Plaintiff conducting daily activities as set forth above. The motion is denied as to the remaining portions of the video. If Plaintiff intends to show the edited version of the day-in-the-life video at trial, Plaintiff must produce the unedited video its entirety (without any audio) to Defendant by March 4, 2022.

D. Defendant's Motion in Limine (#5) to Exclude Evidence of Speculative Future Spinal Surgery [95]

Defendant moves to exclude any expert opinion testimony regarding future spine surgery and its associated costs. Def. Mot. in Limine #5 (“DMIL #5”) at 1-2, Dkt. No. 95. Defendant explains that Plaintiff's expert, Dr. Fox, a neurosurgeon, testified at deposition that Plaintiff would need both a gastric bypass surgery and clearance from her CRPS doctor prior to any lumbar surgery. Id. at 2. Because neither of these prerequisites have been met and neither is likely to occur, Defendant asserts that any evidence regarding a future lumbar surgery and related life care plan should be excluded as both speculative and uncertain. Id. Defendant also contends that based on Plaintiff's current health post-stroke, it is more likely than not that she will not have any future lumbar surgery. Id. at 3. Defendant argues that the opinions of Plaintiff's experts regarding future lumbar surgery are based on factual assumptions that are entirely unsupported. Id. at 4.

Plaintiff opposes this motion in limine. Pl. Opp'n DMIL #5 at 1, Dkt. No. 103. Plaintiff sought treatment with a neurosurgeon, Dr. Fox, and ultimately retained Dr. Fox as her orthopedic expert. Id. at 5-6. In his report and during deposition, Dr. Fox opines that if Plaintiff's pain continues, surgery is recommended. Id. at 6. Dr. Fox has never testified that he did not believe Plaintiff would be able to achieve the prerequisites for spinal surgery and Plaintiff has demonstrated through her deposition testimony that she has successfully been able to lose weight in the past. Id. at 7. Defendant does not challenge Dr. Fox's examination and evaluation techniques, and his testimony will assist the trier of fact to understand the medical condition of Plaintiff's spine. Id.

The Court will not exclude expert testimony regarding future spine surgery. Defendant's basis for this motion is that it is more likely than not that Plaintiff will not meet the prerequisites for the spine surgery, and therefore any opinion regarding the surgery is based on an unsupported factual assumption. Plaintiff objects to this characterization and contends that there is no evidence that Plaintiff would not be capable of obtaining the requisite clearance for the surgery. Although Plaintiff's experts may have testified that Plaintiff did not qualify for a lumbar surgery at the time of their testimony, there is no evidence that she would never qualify. Defendant's motion amounts to a request for the Court to make a factual finding regarding the likelihood of Plaintiff meeting the prerequisites of spinal surgery. It will be the job of the jury as fact-finder to make such determinations.

Maheu v. Hughes Tool Co., 569 F.2d 459 (9th Cir. 1977), cited by Defendant, is distinguishable. There, the Ninth Circuit found that a $2.8 million compensatory damages award was based on inadmissible speculative evidence. Id. at 474. The Ninth Circuit found that calculations by the plaintiff's expert were “sheer fantasy” because there was no factual basis to support the earning capacity used in the calculations, and no evidence to support a tax allowance based on those earnings. Id. at 475-76. Here, there is nothing to suggest that Plaintiff's ability to have a gastric bypass surgery and get clearance from her CRPS doctor for the lumbar surgery is “sheer fantasy.” Defendant appears to concede this as it only argues that “it is more likely than not that she will not have any future lumbar surgery.” DMIL #5 at 4. Defendant may cross-examine Plaintiff and her experts about the likelihood of her meeting the prerequisites for a lumbar surgery, but Defendant has not shown that the factual basis for the opinions are so speculative as to warrant exclusion.

*9 Accordingly, Defendant's Motion in Limine No. 5 is DENIED.

E. Conclusion

Plaintiff's Motion in Limine #1 (Dkt. No. 83) is GRANTED-IN-PART and DENIED-IN-PART.

Plaintiff's Motion in Limine #4 (Dkt. No. 86) is DENIED.

Defendant's Motion in Limine #3 (Dkt. No. 93) is GRANTED-IN-PART and DENIED-IN-PART. If Plaintiff intends to show the edited version of the video at trial, Plaintiff must produce the unedited video its entirety (without any audio) to Defendant by March 4, 2022.

Defendant's Motion in Limine #5 (Dkt. No. 95) is DENIED.

IT IS SO ORDERED.