Blackburn v. Oklahoma City VA Health Center

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
TYEASHIA M. BLACKBURN, )
)
Plaintiff, )
)
v. ) Case No. CIV-22-983-G
)
UNITED STATES, )
)
Defendant. )
ORDER
Now before the Court is Plaintiff’s Motion in Limine (Doc. No. 135), to which
Defendant United States has responded (Doc. No. 136).
Plaintiff “seeks to enforce” the requirements that apply to the testimony of
Defendant’s non-retained treating physicians. Pl.’s Mot. in Limine at 2. As discussed by
Defendant, Plaintiff’s Motion was filed prior to the filing of Defendant’s Revised Expert
Witness List (Doc. No. 145) and therefore does not identify the witnesses or their proposed
testimony with enough specificity to establish any entitlement to relief. See Def.’s Resp.
at 5 (“Plaintiff’s motion while not legally tenable is also premature.”). And “a request that
the court faithfully apply the rules of evidence” “is not the office of a motion in limine.”
Hussein v. Duncan Reg’l Hosp., Inc., No. CIV-07-439-F, 2009 WL 10672480, at *1 (W.D.
Okla. Oct. 20, 2009).
The Court notes that Plaintiff cites two Tenth Circuit decisions and a purported
decision from the District of Colorado as the authority supporting this request. See Pl.’s
Mot. in Limine at 2-3. The first, Davoll v. Webb, is cited for the proposition that, “[u]nder
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Fed. R. Civ. P. 26(a)(2)(C), a treating physician is a non-retained expert who may provide
opinion testimony only to the extent those opinions were formed during the course of
treatment.” Id. at 2 (citing Davoll, 194 F.3d 1116, 1138 (10th Cir. 1999)). While the
citation to the Davoll opinion is correct, the pinpointed page of the decision is discussing
the proper scope of a treating physician’s testimony as a lay witness, not as a retained or
non-retained expert, and so does not reasonably support Plaintiff’s argument. See Davoll,
194 F.3d at 1138-39.
Plaintiff next cites Muscogee (Creek) Nation v. Oklahoma as holding: “A treating
physician may not testify to opinions acquired or developed in anticipation of litigation.”
Pl.’s Mot. at 2 (citing Muscogee (Creek) Nation, 611 F.3d 1222, 1237 (2010)). Muscogee
(Creek) Nation is a published Tenth Circuit opinion; nowhere in that opinion, however,
does the appellate court discuss treating physicians or their testimony.
Finally, Plaintiff states:
Courts reject attempts by the United States to have VA doctors ‘reinterpret’
or contradict their own charted findings without a proper retained expert
designation. See Hall v. United States, 2018 WL 1620923 (D. Colo. Apr. 3,
2018).
Pl.’s Mot. at 3. Plaintiff’s Westlaw identifier directs the Court to Poppino v. Berryhill, a
Social Security disability benefits appeal from the District of New Mexico that does not
address or support the quoted proposition or appear to have any relevance to this case.
At a minimum, Plaintiff’s cited authority fails to demonstrate an entitlement to relief
on the merits of her Motion. In addition, such mischaracterizations of case law, whether
or not the product of generative artificial intelligence, implicate consideration of Plaintiff’s
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representations for purposes of Federal Rule of Civil Procedure 11(b) and (c). See Clark
v. CoreCivic, Inc., No. CIV-25-775-SLP, 2025 WL 3709023, at *2 n.2 (W.D. Okla. Dec.
22, 2025). As recently explained by the Tenth Circuit, pro se litigants have “the
responsibility to ensure that citations to legal authority are not fabrications but instead point
to real cases that at least arguably stand for the propositions for which they are cited.”
Dodds v. Bridges, No. 25-7021, 2026 WL 380194, at *6 (10th Cir. Feb. 11, 2026).
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion in Limine (Doc. No. 135) is DENIED.
IT IS SO ORDERED this 7th day of April, 2026.
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