superior court of the district of columbia … · asking it to preclude the defense from...

SUPERIOR COURT OF THE DISTRICT OF COLUMBIACIVIL DIVISION

NIECHELLE JACKSON, et al.,

Plaintiffs,

v.

WASHINGTON HOSPITAL CORPORATION, et al.,

Defendants.

Case No. 2012 CA 003612 M

Civil I

Judge Michael L. Rankin

OMNIBUS ORDER DENYING WITHOUT PREJUDICE DEFENDANTS’ MOTION IN LIMINE TO ALLOW EVIDENCE OF AFFORDABLE CARE ACT AS IT RELATES TO

PLAINTIFF’S FUTURE MEDICAL NEEDS AND DEFENDANTS’ MOTION IN LIMINE REGARDING THE REPTYLLIAN METHOD AND THE GOLDEN RULE

This matter is before the court on defendants’ motions in limine and plaintiff’s

oppositions thereto. The first motion asks the court to allow evidence of the Affordable Care

Act, 26 U.S.C. § 5000A (“ACA”) as it relates to plaintiff A.L.J.’s future medical expenses. The

second requests that the court bar use of the “Reptilian Method” at trial. Upon consideration of

the parties’ briefs and oral arguments, the court denies both motions without prejudice.

Defendants’ Motion in Limine Regarding the Affordable Care Act

Defendants submit three arguments for why the court should permit evidence of the

ACA at trial. First, Defendants argue that their experts should be allowed to rely on the federal

law in calculating plaintiff’s damages. Next, they assert that plaintiff’s failure to consider the

ACA in calculating damages shows that its calculations lack credibility. Finally, they argue that

the ACA is probative of plaintiff’s failure to mitigate losses. All of these arguments, however,

are barred by the collateral source rule.

The District of Columbia follows the collateral source rule, which “provides that an

injured party may recover full compensation damages regardless of the payment of any amount

of those damages by an independent party.” Snowder v. District of Columbia, 949 A.2d 590, 602

n.2 (D.C. 2008). The collateral source rule contemplates that plaintiffs will recover the full cost

of their injuries, even though part or all of those costs are paid for by a third party. Courts have

dscialpi

Yellow Plaintiff

recognized that in such a situation a windfall, or a double recovery, could accrue to the benefit of

either the plaintiff or defendant, but determined that “it is more just that the windfall should inure

to the benefit of the injured party than that it should accrue to the tortfeasor.” See Adams v.

Turner, 238 F. Supp. 643, 644 (D.D.C. 1965).

Clearly, defendants’ first argument violates the collateral source rule. Defendants cannot

introduce evidence of the ACA to argue that plaintiff should be awarded only what he will have

to pay for out of pocket. Defendants’ second and third lines of reasoning fail because they allude

to collateral source arguments. First, their attempt to impeach plaintiff’s damages calculations

relies on the ACA’s coverage of a significant portion of plaintiff’s medical costs: as defendants’

theory goes, plaintiff’s damages calculations cannot be reasonable because they do not come

close to approximating what plaintiff will actually pay throughout his lifetime. Likewise,

defendants’ failure-to-mitigate argument operates to discredit plaintiff’s damages calculations by

showing that plaintiff’s expert should have deducted ACA-related savings from its damages

estimate. Both arguments are prohibited collateral source arguments because they implicate the

premise that plaintiff’s insurance coverage should count against his recovery.

Throughout their motion in limine, defendants raise several reasons that the ACA renders

the collateral source rule obsolete. There are persuasive reasons that the law’s individual

mandate diminishes one of the collateral source rule’s rationales: encouraging people to buy

health insurance. However, the rule’s many other justifications, such as the policy determination

mentioned previously, remain intact. And, more importantly, the collateral source rule has

neither been repealed by the District of Columbia nor abrogated by its courts.

Furthermore, courts have rejected arguments for the inclusion of the ACA, not only due

to collateral source reasons,1 but because of the likelihood that such evidence could confuse or

prejudice the jury. For example, a trial court in Alabama considered a plaintiff’s motion in limine

1 See Vasquez-Sierra v. Hennepin Faculty Assocs., No. 27-cv-12-1611, 2012 WL 7150829 (Minn. Dist. Ct.) (Dec. 14, 2012)(“[This court] is not inclined to speculate that the recent and controversial federal health care legislation [the ACA] upends Minnesota’s collateral source doctrine.”)

asking it to preclude the defense from “argu[ing] about the possibility that the Plaintiff may have

medical insurance coverage in the future under the new Affordable Care Act.” See Brewster v.

Southern Home Rentals, LLC, No. 3:11cv872-WHA, 2012 WL 6101985 * 4 (M.D.

Alabama)(Dec. 7, 2012). That court granted plaintiff’s motion, reasoning that:

Questions or arguments as to the possibility of discounts on past or future medical expenses and the possibility of future insurance coverage would be too speculative to be relevant, or if relevant at all, any probative value of this evidence is substantially outweighed by the danger of confusion of the issues and misleading the jury.

See id. Similarly, a Nevada District Court denied the defendants’ motion in limine

to include evidence of the Affordable Care Act on the grounds that the “introduction of

the ACA Matters would be too irrelevant, unduly prejudicial, and speculative” because:

(A) First and foremost, [Plaintiff] is currently NOT a beneficiary of any ACA insurance plan. (B) [Plaintiff] may never become enrolled in an ACA plan because his circumstances may justify him deciding to accept the penalty in lieu of such enrollment. The law does permit an individual to pay the penalty (as a tax) in lien of enrollment. (C) The insurance plans currently available can change over time. (D) The medical expenses covered under the plans could change over time. (E) The benefits provided under the ACA plans could change over time. (F) The cost to the insured could change over time. (G) The deductibles could increase over time. (H) The co-pays could increase over time. (H) The availability of doctors to provide in-plan treatment could change over time. (I) The quality of doctors under the plan could change over time. (J) The difficulty in an insured obtaining covered treatment could change over time. (K) The identity and existence of the insurers could change over time - and we don't even know who could end up being an insurer for [Plaintiff] - as there is no evidence he has orwill enroll in an ACA plan. (L) Given the numerous votes by the Republican-controlled House of Representatives to repeal the ACA, and the now Republican-controlled Senate, along with the prospects of a Republican president, it is even possible that the ACA will get repealed. Even if Plaintiff were to decide to enroll there is no guaranty that he will want to continue to be enrolled because of the possible changes to the law.

See Order Denying Defendant Erisman's Motion in Limine to Admit Evidence Re:

Affordable Care Act Benefits Pursuant to NRS 42.021; and Denying Plaintiff's Countermotion to

Declare NRS 42.021 Unconstitutional, Dohl v. Sunrise Mountainview Hospital, Inc., No.

14A698672, 2015 WL 1953074 *3 - *4 ((Nev.Dist.Ct.)(April 20, 2015). These holdings are

persuasive. Predictions about the longevity of the ACA and its impact on health care costs are

much too uncertain, conflicting, and partisan to aid the jury in calculating damages and would

likely lead to confusion of the issues.2

Defendants’ Motion in Limine Regarding the Reptilian Method

Regarding the use of the “Reptilian Method” at trial, the court finds a ruling on the issue

to be premature. The court will not categorically prohibit the plaintiff’s counsel from making any

reference to words like “rules” or “patient safety” without knowing the context. If it appears that

plaintiff’s counsel uses such words or phrases in furtherance of an impermissible “Golden Rule”

or “send a message” argument,3 defense counsel may object and expect the court to take

appropriate corrective action. Accordingly, it is hereby

ORDERED, that defendants’ motions are both DENIED WITHOUT PREJUDICE.

SO ORDERED.

October 23, 2015

Electronic copies to:Paul BrandesDaniel CostelloJonathan FitzpatrickTheresa GiannonePeter Villari

2 See Fed. R. Evid. 403, which D.C. adopted in Comford v. United States, 947 A.2d 1181, 1186 n. 11 (D.C. 2008).3 D.C. courts have ruled that such arguments are impermissible. See D.C. v. Colston, 468 A.2d 954 (D.C. 1983)(prohibiting “Golden Rule” arguments); see also Bowman v. United States, 652 A.2d 64 (D.C. 1984)(banning “send a message” arguments).

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

THOMAS G. HENSLEY and PAMELA L. HENSLEY, as natural parents and wrongful death beneficiaries of Coty Lee Hensley, deceased, and THE ESTATE OF COTY LEE HENSLEY, Deceased, by PAMELA L. HENSLEY, Administratix, Plaintiffs, vs. METHODIST HEALTHCARE HOSPITALS, et al., Defendants.

)))))))))))))))))

Case No. 13-2436-STA-cgc

ORDER ON MOTIONS IN LIMINE

This action is a healthcare liability suit brought by Thomas and Pamela Hensley,

parents of the decedent Coty Lee Hensley (“Plaintiffs”). Plaintiffs’ claims arise from the

decedent’s medical treatment at Le Bonheur Children's Hospital on June 28 and 29, 2012.

In preparation for trial, the parties have filed several motions in limine.1 The parties have

fully briefed the Court. For the reasons set forth below, the motions are PARTIALLY

GRANTED and PARTIALLY DENIED.

1 The trial is set for August 31, 2015.

Case 2:13-cv-02436-STA-cgc Document 334 Filed 08/27/15 Page 1 of 15 PageID 6650

2

Although neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence

expressly provide for the exclusion of evidence before trial, “[i]n general, federal district courts

have the power to exclude evidence in limine pursuant to their inherent authority to manage

trials.”2 Motions in limine allow the court to rule on evidentiary issues prior to trial in order to

avoid delay.3 A court will usually not grant a motion in limine unless the movant shows that the

evidence in question is clearly inadmissible.4

In Sperberg v. Goodyear Tire & Rubber Co., the Sixth Circuit warned against “orders in

limine that exclude broad categories of evidence” and advised that the “better practice is to deal

with questions of admissibility of evidence as they arise.”5 Deferring admissibility decisions

until trial is the better practice because “there are countervailing considerations, especially with

respect to . . . rulings under Rule 403 which [if] made pre-trial [would be] without the benefit of

the flavor of the record developed at trial.”6 A motion in limine seeks “essentially an advisory

opinion” as to evidentiary questions since the court may “change its ruling, for whatever reason,

2 Luce v. United States, 469 U.S. 38, 41 n. 4 (1984).

3 See United States v. Brawner, 173 F.3d 966, 970 (6th Cir.1999); see also Corporate Commc'n Services of Dayton, LLC v. MCI Communications Services, Inc., 2010 WL 1445169, at * 1 (S.D. Ohio Apr.12, 2010) (“The purpose of a motion in limine is to permit the Court to decide evidentiary issues in advance of trial in order to avoid delay and ensure an evenhanded and expeditious trial.”).

4 See Indiana Ins. Co. v. General Electric Co., 326 F. Supp.2d 844, 846 (N.D. Ohio 2004).

5 519 F.2d 708, 712 (6th Cir.), cert. denied, 423 U.S. 987 (1975).

6 In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 260 (3rd Cir. 1983), rev'd sub nom. on other grounds, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); see also Hunter v. Blair, 120 F.R.D. 667, 667 (S.D. Ohio 1987) (“[o]nly after the evidence is actually offered can this Court balance any prejudicial effect or probative value in determining the admissibility of that evidence”).


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when the evidence is actually offered and objected to at trial.”7 The Court may decline to make

pretrial rulings because they “are merely requests for the Court's guidance.”8 In limine rulings

are always provisional in nature.9

Defendant Dr. Mark Bugnitz’s Motions in Limine

Motion in Limine No. 1 (ECF No. 270)

Dr. Bugnitz seeks to exclude hypothetical questions propounded to experts regarding the

standard of care that include knowledge of the outcome in this case. Dr. Bugnitz relies on Fed.

R. Evid. 401, 402, and 403 in support of his argument that asking the experts “any questions

premised on the outcome is irrelevant, inaccurate, unfair, misleading, confusing to the jury and

unduly prejudicial” because “[t]he practice of medicine is not retrospective.”10 The motion

further seeks to exclude questions about what the standard of care requires in 2015, rather than in

2012, when the alleged negligence occurred.

As noted by Plaintiffs in their response, Dr. Bugnitz seeks to obtain a ruling concerning

the admissibility of testimony without pointing to the specific evidence or the specific questions

being objected to. Without the context of trial, the Court is unable to determine whether the

evidence in question should be excluded. Instead of making an advance ruling, the Court will

entertain evidentiary objections to the hypothetical questions during the trial. Therefore, this

7 United States v. Luce, 713 F.2d 1236, 1239 (6th Cir. 1983).

8 Hunter, 120 F.R.D. at 667.

9 Ohler v. United States, 529 U.S. 753, 758, n. 3 (2000) (“[I]n limine rulings are not binding on the trial judge, and the judge may always change [his] mind during the course of a trial.”).

10 Def’s M. in Limine No. 1, at p. 1, ECF 270.


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portion of Dr. Bugnitz’s motion is limine is DENIED. The portion of the motion seeking a ruling

that the standard of care in 2012 is the relevant time period for the hypotheticals is GRANTED.


Dr. Bugnitz seeks an order prohibiting Plaintiffs’ counsel and expert witnesses from

offering a “Captain of the Ship” opinion at trial on the ground that the Captain of the Ship

doctrine is no longer recognized in Tennessee.11 Dr. Bugnitz points to the deposition testimony

of Plaintiffs’ expert witness, Santa Johnson, M.D., who referenced this theory (Dr. Bugnitz is “in

charge of the ICU. . . He runs everything that happens in that ICU whether he's there or not.”).

Dr. Johnston answered in the affirmative when defense counsel asked if Dr. Bugnitz was the

“Captain of the Ship.”12

Plaintiffs have responded that they do not intend to use the phrase “Captain of the Ship”

at trial. However, they do intend to argue that Dr. Bugnitz was responsible for the decision as to

what diagnostic tests should be run on the decedent.

Because this case is before the Court based on diversity of citizenship jurisdiction, the

substantive law of Tennessee applies.13 Therefore, the motion in limine is GRANTED to the

extent that Plaintiffs cannot use a “Captain of the Ship” theory or that particular phrase at trial.

11 See Parker v. Vanderbilt University, 767 S.W.2d 412 (Tenn. App.1988) (“We are of the opinion that the use of the term ‘Captain of the Ship’ with respect to the liability of a surgeon for the negligent acts of others in or around the operating room is unnecessarily confusing and should be avoided. We think the surgeon's liability for the acts of others should rest on the more familiar concepts of master and servant; ‘[o]perating surgeons and hospitals are subject to the principles of agency law which apply to others.’ Sparger v. Worley Hospital, Inc., 547 S.W.2d 582, 585 (Tex.1977).”).

12 Dep. of Santa Johnson, M.D., pp. 133, ln. 22 through pp. 134, ln.11.

13 See Armisted v. State Farm Mut. Auto. Ins. Co., 675 F.3d 989, 995 (6th Cir. 2012).


5

However, Plaintiffs may argue that Dr. Bugnitz's actual decisions caused the decedent’s death,

which is the crux of the claims against him.

Defendants’ Joint Motions in Limine


Defendants seek an order limiting testimony of Plaintiffs’ experts to deviations from the

recognized standard of acceptable professional practice that caused an injury that would not have

otherwise occurred. They contend that no testimony should be permitted by experts as to any

alleged deviation from the recognized standard of acceptable professional practice that did not

cause any injury to the decedent pursuant to Tenn. Code Ann. § 29-26-115.14

While Defendants’ statement of Tennessee state law is correct, they have pointed to no

specific evidence that should be excluded. Instead, they appear to merely be seeking an order

instructing Plaintiffs’ counsel to follow the Federal Rules of Evidence and state law. Any

14 Tennessee Code Annotated section § 29–26–115(a), provides:

(a) In a health care liability action, the claimant shall have the burden of proving by evidence as provided by subsection (b):

(1) The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which the defendant practices or in a similar community at the time the alleged injury or wrongful action occurred;

(2) That the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and (3) As a proximate result of the defendant's negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred.

Tenn. Code Ann. § 29–26–115(a)(1)–(3).


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specific objections that Defendants have to questions asked of Plaintiffs’ experts or the resulting

testimony are better suited for trial. Accordingly, this motion is DENIED for lack of specificity.

Motions in Limine No. 2 (ECF Nos. 274 and 292)15

Defendants have moved for an order prohibiting Plaintiffs from soliciting testimony or

making comments referencing insurance or the State Volunteer Mutual Insurance Company,

pursuant to Rule 411 of the Federal Rules of Evidence. Rule 411 provides that “[e]vidence that a

person was or was not insured against liability is not admissible to prove whether the person

acted negligently or otherwise wrongfully,” but “the court may admit this evidence for another

purpose, such as proving a witness's bias or prejudice or proving agency, ownership, or control.”

Defendants also rely on Fed. R. Evid. 402 and 403 for their argument that evidence of

insurance would be highly prejudicial and would suggest an improper basis for a decision. Rule

402 prohibits the admission of evidence that is not relevant, while Rule 403 permits the

exclusion of relevant evidence when its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury, undue delay, wasting

time or needlessly presenting cumulative evidence

Plaintiffs assert that they do not intend to use evidence of liability insurance to

demonstrate that Defendants acted negligently or wrongfully but contend that they may offer it

for another purpose, i.e., to show bias or prejudice. According to Plaintiffs, Defendants and their

experts have a financial interest in the outcome of the case because evidence will purportedly

show that physicians insured by State Volunteer Mutual Insurance Company share in the profits

accrued from not paying medical malpractice claims. They reason that, since such evidence

15 Defendants filed their Joint Motion In Limine No. 2 at both ECF No. 274 and No. 292. The motions appear to be duplicative.


7

would go to the bias or prejudice of the witness and not to the issue of negligence, it is

admissible.

Rule 411 is clear that insurance should not be admitted to suggest liability, and the Sixth

Circuit has held that improperly introducing evidence of liability insurance may be prejudicial

error and grounds for a mistrial.16 Consequently, Defendants’ motion is GRANTED to prohibit

the evidence of liability insurance. If at trial Plaintiffs seek to offer evidence of liability

insurance under any of the exceptions listed in Rule 411, they must first request an out of jury

hearing on that evidence.


Defendants seek an order disallowing testimony of any lay witnesses regarding the

alleged negligence of Defendants or injuries or extent of injuries sustained by the decedent. In

support of their motion, they point to Tenn. Code Ann. § 29-26-115, which requires expert

testimony to prove that a physician deviated from the recognized standard of care and that, as a

result, the plaintiff (in this case, the decedent) suffered harm.

Defendants’ motion is vague and does not point to any specific testimony to be excluded.

While each of the elements of a healthcare liability claim must be established by expert

testimony, factual testimony from a lay witness is admissible for other reasons as provided in the

Federal Rules of Evidence. For example, lay witnesses may testify to their own observations

concerning the conduct of Defendants and the treatment given to the decedent. Accordingly, this

motion is DENIED.


16 City of Cleveland v. Peter Kiewit Sons' Co., 624 F.2d 749, 758 (6th Cir.1980).


8

Defendants seek to prohibit Plaintiffs from offering testimony at trial as to the grief and

anguish they suffered following the decedent’s death. Defendants point out that, for a filial loss

of consortium claim, “[r]ecovery is limited to pecuniary losses which are to be reduced by the

amount of child-rearing expenses projected to have been incurred by the parents. Recovery may

not be had for the grief and anguish suffered by the parents as such loss is not monetary in

nature.”17

Once again, Defendants’ motion is vague and non-specific. Although Plaintiffs may not

present any evidence that is solely related to their anguish and grief, it is possible that some such

evidence may be relevant to their claim for loss of consortium. The court will address objections

as they are made at trial and not at this juncture. The motion is DENIED.


Defendants seek to prohibit testimony or argument about any expert or physician

witness’s personal practices or what he or she would have done or would recommend in a

particular situation. According to Defendants, this would violate the requirements of Tenn. Code

Ann. § 29-26-115 as to the recognized standard of care. Again, Defendants fail to set forth any

specific testimony to which they object. Defendants’ objections are best made within the context

of trial, and the motion is DENIED.


Defendants seek an order requiring all counsel to advise the Court and other parties of the

order and presentation of proof in advance. This motion does not require an evidentiary ruling.

These matters have been discussed at the pretrial conference, and the motion is DENIED as

unnecessary.

17 Thurmon v. Sellers, 62 S.W.3d 145, 161 (Tenn. Ct. App. 2001).


9


Defendants seek to prohibit any reference or inference by Plaintiffs’ counsel to the effect

that a decision in favor of Plaintiffs would have no adverse effect on Defendants. Defendants

perceive any such reference as being an improper suggestion that Defendants have liability

insurance to cover any financial loss. Plaintiffs agree that such a reference should not be made

unless Defendants open the door with testimony or argument as to the reputation of Defendants

or the emotional effect of an adverse verdict such as guilt over the death of a child.

Defendants’ motion is GRANTED. Plaintiffs are prohibited from introducing any

evidence or making any argument or inference that Defendants will not suffer a financial loss if

the jury finds in favor of Plaintiffs. Any objections as to evidence or argument offered by

Defendants as to their reputation or guilt should be made at trial by Plaintiffs.


Defendants seek an order excluding testimony about loss of consortium damages,

including loss of attention, guidance, care, protection, training, companionship, cooperation,

affection, or love, suffered by non-party family members of the decedent. Tennessee courts have

not recognized loss of consortium claims for siblings or other family members that are not

parents, children, or spouse of the deceased.18 Furthermore, Plaintiffs have not asked for loss of

consortium damages for any other family members. Consequently, the motion is GRANTED.


Defendants seek an order prohibiting Plaintiffs from offering testimony concerning

violations of guidelines or safety rules or any other “scare tactics” in order to establish the

standard of care. Defendants reference the “Reptile Theory,” which appears to be in use by the

18 See Thurmon, 62 S.W.3d at 161.


10

plaintiffs’ bar in some states as a way of showing the jury that the defendant's conduct represents

a danger to the survival of the jurors and their families. The Reptile Theory encourages plaintiffs

to appeal to the passion, prejudice, and sentiment of the jury.

Defendants have again not identified the specific evidence that is sought to be excluded.

The Court will be cognizant of appeals to the jurors’ prejudice, and any attempt by either party to

appeal to the prejudice or sympathy of the jury will not be condoned. The motion is DENIED.


Defendants seek an order prohibiting Plaintiffs from testifying regarding any marital

difficulties that Thomas Hensley and Pamela Hensley have experienced since the death of their

child. Plaintiffs have responded that they are not seeking compensation for marital problems,

nor do they intend to offer evidence on this issue. Consequently, the motion is GRANTED.


Defendants seek an order prohibiting Plaintiffs from mentioning whether Defendants or

their expert witnesses have been named as parties to other healthcare liability suits. Plaintiffs do

not oppose the motion and ask that any such evidence against their own experts also be excluded.

The motion is GRANTED. Evidence of other lawsuits against Defendants and experts for either

party will be excluded.


Defendants seek an order prohibiting Plaintiffs from introducing evidence of the

decedent's medical expenses on the ground that Plaintiffs have not designated an expert to testify

regarding these medical expenses. Plaintiffs have responded that they are not seeking payment of

medical bills and expenses incurred at Le Bonheur Children's Hospital as part of their damages.


11

The motion is GRANTED. Plaintiffs will not be allowed to introduce evidence of

medical bills to prove damages. However, evidence of the medical bills and expenses may be

used to show treatment that was rendered to the decedent.


Defendants seek an order prohibiting Plaintiffs from disclosing a dollar amount demand

to the jury or jury venire and to preclude improper references during opening statements and

closing arguments regarding the valuation of this case. Defendants acknowledge that this Court

previously determined that these arguments would be permissible during closing summation in

Calaway ex rel Calaway v. Schucker.19 Plaintiffs respond that they do not intend to ask for a sum

certain or a per diem amount in damages during voir dire or during the proof.

Defendants’ motion is GRANTED for voir dire, the opening statement, and the proof.

The motion is DENIED as being premature for closing arguments. Defendants may renew their

objection prior to closing arguments.


Defendants seek an order prohibiting expert reports from being admitted into evidence

and given to the jurors during deliberations. Defendants contend that these reports are hearsay

and should not be admitted as exhibits. Until a report is offered into evidence and a basis asserted

for it being offered into evidence, this Court cannot issue a ruling. Because any objection will be

better dealt with in the context of the trial, the motion is DENIED.


Defendants seek an order prohibiting Plaintiffs' pediatric trauma expert Dr. Dennis Vane

from offering previously undisclosed opinions or improper support for disclosed opinions.

19 2013 WL 311441 (W.D. Tenn. Jan. 25, 2013)


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Defendants specifically seek to prohibit Dr. Vane from adopting the radiology interpretations of

Plaintiffs' excluded pediatric radiology expert, Uwe Otto Peter Josef Schoepf, M.D. Defendants

fear that Plaintiffs will attempt to introduce Dr. Schoepf's opinions concerning the decedent's

radiology studies through Dr. Vane.

Plaintiffs respond that they have not designated Dr. Vane to testify as to the findings of

Dr. Schoepf. Therefore, the motion is GRANTED. Dr. Vane may not testify to opinions not in

his expert report and may not testify as to Dr. Schoepf’s excluded opinions.

Defendants Methodist & Dr. James Eubanks III's Motion in Limine


Defendants Methodist and Dr. Eubanks seek an order prohibiting Plaintiffs’ critical-care

expert, Dr. Santa Johnston, from offering standard of care opinions against Dr. Eubanks, a

trauma surgeon. Dr. Johnston has not been designated to render opinions against Dr. Eubanks.

Therefore, the motion is GRANTED. Dr. Johnston may not offer any standard of care opinions

against Dr. Eubanks.

Plaintiffs’ Motions in Limine


Plaintiffs seek to exclude the supplemental opinion of toxicology expert Dr. Michael

Stevens concerning the presence of a hydrocarbon in the pre-embalming blood sample of the

decedent drawn by the Shelby County Medical Examiner’s Office and the likely source of this

hydrocarbon. In the supplement to Dr. Stevens’s opinion concerning blood testing performed by

NMS labs, Dr. Stevens notes that there was an unknown substance found by the lab which did

not meet the level set by the internal standards of the lab for positive identification and then


13

concludes that the unknown substance was a hydrocarbon. Plaintiffs complain that Dr. Stevens

cannot speculate as to the identity of the unknown substance or its source.

Defendants respond that any uncertainty in the testimony of Dr. Stevens is the result of

Plaintiffs’ spoliation of the blood evidence and that Dr. Stevens relied on normal, accepted

methods in determining the identity and source of the substance.

Dr. Stevens is an expert in the field of toxicology, and Plaintiffs’ arguments go to the

weight of his testimony, not its admissibility. Therefore, the motion is DENIED.20


Plaintiffs seek an order preventing Dr. Stevens from interpreting a phone log that

references a telephone conversation between Dr. Gruszecki and a representative of NMS Labs.

Plaintiffs contend that any interpretation of the phone log by Dr. Stevens is outside his expertise

and would be an attempt to comment on and color the evidence through a phone log to which he

was not a party. Defendants respond that Dr. Stevens will be asked to comment on his review of

the file to the extent that those records are relevant. He will not be asked to comment on Dr.

Gruszecki’s thought processes or her actions that are not reflected in the record.

Because Dr. Stevens was not a party to the conversations reflected in the phone logs, he

will not be allowed to discuss those conversations. The motion is GRANTED. However,

Defendants will be allowed to cross-examine Dr. Gruszecki about the comments she made

during those conversations.


20 Defendants’ motion for a limiting instruction as a sanction for Plaintiffs’ spoliation of the blood evidence (ECF No. 212) is still pending.


14

Plaintiffs have moved to exclude a portion of the supplemental opinion of pathology

expert Jonathan Eisenstat, M.D. Plaintiffs specifically request that Dr. Eisenstat not be allowed

to testify that the amount of PPA in blood would be altered by the embalming process. Dr.

Eisenstat’s supplemental opinion purports to explain why PPA was detected by NMS Labs in the

decedent’s pre-embalming blood sample but was not detected by NMS Labs in the decedent’s

post-embalming blood sample. Plaintiffs contend that there is no scientific basis for this opinion.

Defendants respond that it is a well-known phenomenon that the embalming process

dilutes the blood of the decedent and that even Plaintiffs’ pathology expert supports this concept.

According to Defendants, although another doctor performed a test to determine whether

embalming fluid would denigrate PPA, Dr. Eisenstat did not need to conduct any testing to

demonstrate the generally accepted process of postmortem drug redistribution. Again, as with the

testimony of Dr. Stevens, Plaintiffs’ arguments go to the weight of the testimony, not its

admissibility, and, therefore, the motion is DENIED.

Finally, as previously stated, rulings on motions in limine are provisional in nature.

Nothing in this order precludes counsel from making contemporaneous objections to specific

testimony or arguments at trial. Evidence presented at trial may be sufficient to cause an issue to

be revisited, and the court is “free, in the exercise of sound judicial discretion, to alter a previous

in limine ruling.”21

IT IS SO ORDERED. s/ S. Thomas Anderson S.THOMAS ANDERSON

21 Luce, 469 U.S. at 41–42.


15

UNITED STATES DISTRICT JUDGE Date: August 27, 2015.


IN THE CIRCUIT COURT OF WASHINGTON COUNTY, ARKANSAS FOURTH DIVISION

MARGARET UPTON, as Special Adminstratrix of the Estate of Larry Upton, Deceased

vs. CASE NO. CV-2010-270-4

NORTHWEST ARKANSAS HOSPITALS, LLC d/b/a NORTHWEST MEDICAL CENTER

ORDER

NOW, on this 7th day of March, 2012, comes on for consideration the Defendant's

Motion to Bifurcate and Defendant's Motion in Limine to Exclude the "Reptile." From the

proof, pleadings, and other matters properly before the Court, the Court finds as follows:

Defendant's Motion to Bifurcate should be and hereby is granted.

Defendant moves to exclude trial tactics described in REPTILE: The 2009 Manual of the

Plaintiff's Revolution at trial. Courtroom demeanor and/or presentation of evidence is governed

by the Arkansas' Rules of Civil Procedure, Rules of Evidence and Model Rules of Professional

Conduct. The Arkansas Bar Association has admitted all of the attorneys involved in this matter,

and this Court has no reason to believe that the aforementioned rules will be violated. It is well

known that many attorneys study trial treatises and manuals in an attempt to hone their skills or

understand their adversaries. While unfamiliar with the book at issue, this Court feels that to

exclude a group of strategies contained in any one book would be to impose an unnecessary

restraint on the practice of law, and declines to do so. Should any issues of conduct arise during

the trial, they will be addressed at that time. Defendant's Motion in Limine to Exclude the

"Reptile" should be and hereby is denied.

IT IS SO ORDERED. ()~ HONORABLE G. CHADD MASON CIRCUIT JUDGE

STATE OF SOUTH CAROLINA COUNTY OF CHARLESTON

) COURT OF COMMON PLEAS ) C.A. No. 2012-CP-10-0009

THOMAS H. JONES, JR. and ) EUGENIA L. JONES, )

) Plaintiffs, )

) vs. )

) ANESTHESIA ASSOCIATES OF ) CHARLESTON, P.A. and CHARLES ) N. CLARK, JR., M.D. )

) Defendants. )

ORDER Denying Defendants' Motion Regarding

"Reptile" Strategy

This is a medical negligence case. Defendant seeks an evidentiary ruling in the form of a

motion in limine pursuant to SCRE, Rules 401and403, to prevent Plaintiffs' counsel from using

a purported ''trial strategy" that Defendant calls ''the Reptile strategy" and "manipulative Reptile

techniques." Motion p. 7.

First, the evidentiary rules cited by Defendant for purposes of stopping counsel for

Plaintiffs purported strategy and techniques relate to a court determining whether to exclude

relevant evidence on the basis of ''unfair prejudice, confusion of the issues, or misleading the

jury." SCRE, Rule 403. It is not believed that the evidentiary rules empower a Court to hamper

or restrain trial counsel's strategy or techniques for arguing about or presenting otherwise

admissible evidence even if prejudicial.

"Prejudice that is 'unfair' is distinguished from the legitimate impact all evidence has on the outcome of a case." State v. Collins, 398 S.C. 197, 207, 727 S.E.2d 751, 757 (Ct. App. 2012). '"Unfair prejudice does not mean the damage to a defendant's case that results from the legitimate probative force of the evidence; rather it refers to evidence which tends to suggest [a] decision on an improper basis."' Id. (quoting State v. Gilchrist, 329 S.C. 621, 630, 496 S.E.2d 424, 429 (Ct. App. 1998)). "'All evidence is meant to be prejudicial; it is only unfair prejudice which must be [scrutinized under Rule 403].'" Id. (quoting Gilchrist, 329 S.C. at 630, 496 S.E.2d at 429)."

State v. Lee, 399 S.C. 521, 529, 732 S.E.2d 225, 229 (Ct. App. 2012). "[U]nfair prejudice

should be evaluated in the practical context of the issues at stake in the trial of the case." Id.

Here, the Court finds that a party cannot seek to limit opposing counsel's strategy via

SCRE, Rule 401 or 403. More importantly, Defendant fails to demonstrate any specific evidence

that is "unfair." Instead, Defendant seeks to summarize for the Court a purported trial strategy set

forth in a book and prevent Plaintiff's counsel from using said techniques or strategy.

Quare: Could Plaintiff's counsel seek to prohibit a defense strategy designed to show

plaintiff is malingering on the basis that the strategy is unfair?

Second, no specific evidence has been shown necessary to exclude on the basis of "unfair

prejudice, confusion of the issues, or misleading the jury." Rather, Defendant claims that

questioning a doctor about safety rules to which he apparently agreed to during deposition,

should now be off limits at trial.

The fact that Defendant does not like Plaintiff's purported strategy and wants the Court to

prohibit Plaintiff's counsel from ''utilizing the manipulative Reptile techniques" is not a basis for

quashing counsel's purported strategy. Further, the amorphous and undefined "techniques" are

not something this trial Court has been convinced are properly excludable pursuant to Rules 401

or 403.

Third, it is well established that a party can use non-conformity with industry standards,

regulations, or other rules as evidence from which a jury may conclude negligence. South

Carolina has long recognized this principle. See Madison ex rel. Bryant v. Babcock Ctr., Inc.,

371 S.C. 123, 140, 638 S.E.2d 650, 659 (2006). (The fact finder may consider relevant standards

of care from various sources in determining whether a defendant breached a duty owed to an

injured person in a negligence case. The standard of care in a given case may be established and

2

defined by the common law, statutes, administrative regulations, industry standards, or a

defendant's own policies and guidelines); Tidwell v. Columbia Ry., Gas & Elec. Co., 109 S.C. 34,

95 S.E. 109 (1918) (Relevant rules of a defendant are admissible in evidence in a personal injury

action regardless of whether rules were intended primarily for employee guidance, public safety,

or both, because violation of such rules may constitute evidence of a breach of the duty of care

and the proximate cause of injury); Caldwell v. K-Mart Corp., 306 S.C. 27, 31-32, 410 S.E.2d 21,

24 (Ct. App. 1991 )(When defendant adopts internal policies or self-imposed rules and thereafter

violates those policies or rules, jury may consider such violations as evidence of negligence if

they proximately caused a plaintitrs damages).

The defendant further suggests that Plaintiff's purported strategy violates the "golden rule"

concept. Our Supreme Court has specifically distinguished between a Golden Rule argument and

a charge that the jury is acting for the community. The former is improper and the latter is not.

"A 'Golden Rule' argument is one in which the jurors are asked to put themselves in the

victim's shoes. It is improper because it is meant to destroy the jury's impartiality, and to arouse

passion and prejudice. Brown v. State, 383 S.C. 506, 680 S.E.2d 909 (2009). A charge that the

jury is acting for the community, however, is not similar to a Golden Rule argument in that it

does not ask the jury to consider the victim's perspective." State v. Daniels, 401 S.C. 251, 255,

737 S.E.2d 473, 475 (2012).

Further, Defendant argues that Plaintiff's purported "litigation strategy" of using terms or

concepts like "Patient Safety" or "Patient Safety Rule" is improper because the jury "is

encouraged to decide the case on the basis of personal interest and bias rather than evidence."

DMIL, p. 1. Defendant suggests that these purported rule violations are created by Plaintiffs and

do not exist in medical or other professions. This is simply unsupported argument.

3

For example, when one uses Google to search the term "patient safety rule", the highest

ranking hit is found on the United States Health and Human Services website. 1 The term "patient

safety rule" appears 7 times on that page. One can even download the 83 page Patient Safety and

Quality Improvement Rule. (73 FR 70732, Nov. 21, 2008.). Another government website created

by the U.S. Department of Health and Human Services concerns patient safety organizations and

has a FAQ page. That page states, in part:

The term "safety" refers to reducing risk from harm and injury, while the term "quality" suggests striving for excellence and value. 2

Various hospitals use the term "patient safety" in advertising their services. The Medical

University of South Carolina for example proudly proclaims:

MUSC again received an "A" rating for patient safety from the Leapfrog Group in the Fall 2013 Hospital Safety Score. This is the third year in a row that MUSC has been given this distinction. The Leapfrog Hospital Safety Scoresm grades hospitals on data related to how safe they are for patients. For more information, visit www.hospitalsafetyscore.org. 3

The Journal of Patient Safety4 publishes articles including one that explains the

development of Leapfrog's patient safety score for U.S. hospitals.

Even the Joint Commission, an independent, not-for-profit organization that accredits and

certifies more than 20,000 health care organizations and programs in the United States, has a

web page devoted to "Patient Safety."5 Several articles referenced on the page include the

following topics:

1 http://www.hhs.gov/ocr/privacy/psa/regulation/rule/ last viewed March 3, 2014. 2 http://www.pso.ahrq.gov/psos/fastfacts.htm last viewed March 3, 2014. 3 http:/ /www.muschealth.com/ quality/ awards last viewed March 3, 2014. 4 http://joumals.lww.com/joumalpatientsafety/pages/default.aspx last viewed March 3, 2014. s http:/ /www.jointcommission.org/topics/patient_safety.aspx last viewed March 3, 2014.

4

o Should medical malpractice prevention be considered separately or as an integral

part of comprehensive health care safety improvement?

o Progress in patient safety: a glass fuller than it seems.

o Patient safety: threats and solutions.

Indeed, medical malpractice insurance carriers discuss and recognize the importance of

patient safety. 6

In short, "patient safety" is a term with wide acceptance and use, and the Supreme Court

specifically permits a party to use noncomformitywith standards, rules and procedures as

evidence of negligence, discussed supra. Defendant fails to convince the Court that the concept

of patient safety or patient safety rule is a term or idea coined by Plaintiffs lawyers solely to

unfairly influence jurors in the trial of this case. Rather, the government, medical professionals

and hospitals use and rely upon these ideas to prevent patient injury and death.

Although the Court does not believe that it should limit or suggest legal strategy as

requested by the Defendant, the Defendant is free to explain to the jury why patient safety and

patient safety rules are used and recognized by the government and others but are not applicable

to the purported standard of care in this case.

WHEREFORE, Defendants' Motion In Limine to Exclude "Reptile" litigation tactics is

denied.

IT IS HEREBY ORDERED!

6See e.g. MagMutual Insurance company's patient safety resource library web page where it states "The MagMutual Patient Safety Institute was created to provide our policyholders with the very best in patient safety and risk management resources. We hope you'll find this online repository of information useful." https://www.magmutual.com/patient-safety /resource-library last visited March 3, 2014.

5

Charleston, South Carolina March 3, 2013

Doyet A. Early, III Judge, Ninth Judicial Circuit

6

STATE OF SOUTH CAROLINA COUNTY OF CHARLESTON xxx and xxx, Plaintiffs, vs. xxxx and xxx. Defendants.

) ) ) ) ) ) ) ) ) ) )

COURT OF COMMON PLEAS C.A. No. xxx Order Denying Defendants’ Motion

Regarding “Reptile” Tactics

This is a medical negligence case. Defendant seeks an evidentiary ruling in

the form of a motion in limine pursuant to SCRE, Rules 401 and 403, to prevent

Plaintiff’s counsel from using a purported “trial strategy” that Defendant calls

“the Reptile strategy” and “manipulative Reptile techniques.” Motion p. 7.

First, the evidentiary rules cited by Defendant for purposes of stopping

Plaintiff’s counsel’s purported strategy and techniques relate to a court

determining whether to exclude relevant evidence on the basis of “unfair prejudice,

confusion of the issues, or misleading the jury.” SCRE, Rule 403. It is not believed

that the evidentiary rules empower a Court to hamper or restrain trial counsel’s

strategy or techniques for arguing about or presenting otherwise admissible

evidence even if prejudicial.

2

Prejudice that is ‘unfair’ is distinguished from the legitimate impact all evidence has on the outcome of a case. Unfair prejudice does not mean the damage to a defendant’s case that results from the legitimate probative force of the evidence; rather it refers to evidence which tends to suggest a decision on an improper basis. All evidence is meant to be prejudicial; it is only unfair prejudice which must be [scrutinized under Rule 403]. State v. Lee, 399 S.C. 521, 529, 732 S.E.2d 225, 229 (Ct. App. 2012)

(internal citations omitted). “[U]nfair prejudice should be evaluated in the

practical context of the issues at stake in the trial of the case.” Id.

Here, the Court finds that a party cannot seek to limit opposing counsel’s

strategy via SCRE, Rule 401 or 403. Defendant fails to demonstrate any specific

evidence that is “unfair.” Instead, Defendant seeks to summarize for the Court a

purported trial strategy set forth in a book and prevent Plaintiff’s counsel from

using said techniques or strategy.

Quare: Could Plaintiff’s counsel seek to prohibit a defense strategy designed

to show plaintiff is malingering on the basis that the strategy is unfair?

Second, no specific evidence has been shown necessary to exclude. Rather,

Defendant claims that questioning a doctor about safety rules to which he

apparently agreed to during deposition, should now be off limits at trial.

The fact that Defendant does not like Plaintiff’s purported strategy and

wants the Court to prohibit Plaintiff’s counsel from “utilizing the manipulative

3

Reptile techniques” is not a basis for quashing counsel’s purported strategy.

Further, the amorphous and undefined “techniques” are not something this trial

Court has been convinced are properly excludable pursuant to Rules 401 or 403.

Third, it is well established that a party can use non-conformity with

industry standards, regulations, or other rules as evidence from which a jury may

conclude negligence. South Carolina has long recognized this principle. See

Madison ex rel. Bryant v. Babcock Ctr., Inc., 371 S.C. 123, 140, 638 S.E.2d 650, 659

(2006). (The fact finder may consider relevant standards of care from various

sources in determining whether a defendant breached a duty owed to an injured

person in a negligence case. The standard of care in a given case may be established

and defined by the common law, statutes, administrative regulations, industry

standards, or a defendant's own policies and guidelines); Tidwell v. Columbia Ry.,

Gas & Elec. Co., 109 S.C. 34, 95 S.E. 109 (1918) (Relevant rules of a defendant are

admissible in evidence in a personal injury action regardless of whether rules were

intended primarily for employee guidance, public safety, or both, because violation

of such rules may constitute evidence of a breach of the duty of care and the

proximate cause of injury); Caldwell v. K-Mart Corp., 306 S.C. 27, 31-32, 410 S.E.2d

21, 24 (Ct. App. 1991) (When defendant adopts internal policies or self-imposed

rules and thereafter violates those policies or rules, jury may consider such

4

violations as evidence of negligence if they proximately caused a plaintiff's

damages).

The defendant further suggests that Plaintiff’s purported strategy violates

the “golden rule” concept. Our Supreme Court has specifically distinguished

between a Golden Rule argument and a charge that the jury is acting for the

community. The former is improper and the latter is not.

“A ‘Golden Rule’ argument is one in which the jurors are asked to put

themselves in the victim's shoes. It is improper because it is meant to destroy the

jury's impartiality, and to arouse passion and prejudice. Brown v. State, 383 S.C.

506, 680 S.E.2d 909 (2009). A charge that the jury is acting for the community,

however, is not similar to a Golden Rule argument in that it does not ask the jury to

consider the victim’s perspective.” State v. Daniels, 401 S.C. 251, 255, 737 S.E.2d

473, 475 (2012).

Further, the Defendant argues that Plaintiff’s purported “litigation strategy”

of using terms or concepts like “Patient Safety” or “Patient Safety Rule” is

improper because the jury “is encouraged to decide the case on the basis of

personal interest and bias rather than evidence.” Def. Mot. in Lim., p. 1. Defendant

suggests that these purported rule violations are created by Plaintiffs and do not

exist in medical or other professions. This is simply unsupported argument.

5

For example, when one uses Google to search the term “patient safety rule”,

the highest ranking hit is found on the United States Health and Human Services

website.1 The term “patient safety rule” appears 7 times on that page. One can

even download the 83 page Patient Safety and Quality Improvement Rule. (73 FR

70732, Nov. 21, 2008.). Another government website created by the U.S.

Department of Health and Human Services concerns patient safety organizations

and has a FAQ page. That page states, in part:

The term “safety” refers to reducing risk from harm and injury, while the term “quality” suggests striving for excellence and value.2 Various hospitals use the term “patient safety” in advertising their services.

The Medical University of South Carolina for example proudly proclaims:

MUSC again received an "A" rating for patient safety from the Leapfrog Group in the Fall 2013 Hospital Safety Score. This is the third year in a row that MUSC has been given this distinction. The Leapfrog Hospital Safety Scoresm grades hospitals on data related to how safe they are for patients. For more information, visit www.hospitalsafetyscore.org.3

The Journal of Patient Safety4 publishes articles including one that explains

the development of Leapfrog’s patient safety score for U.S. hospitals.

1 http://www.hhs.gov/ocr/privacy/psa/regulation/rule/ last viewed March 3, 2014. 2 http://www.pso.ahrq.gov/psos/fastfacts.htm last viewed March 3, 2014. 3 http://www.muschealth.com/quality/awards last viewed March 3, 2014. 4 http://journals.lww.com/journalpatientsafety/pages/default.aspx last viewed March 3, 2014.

6

Even the Joint Commission, an independent, not-for-profit organization that

accredits and certifies more than 20,000 health care organizations and programs in

the United States, has a web page devoted to “Patient Safety.”5 Several articles

referenced on the page include the following topics:

o Should medical malpractice prevention be considered separately or as

an integral part of comprehensive health care safety improvement?

o Progress in patient safety: a glass fuller than it seems.

o Patient safety: threats and solutions.

Indeed, medical malpractice insurance carriers discuss and recognize the

importance of patient safety.6

Conclusion

5 http://www.jointcommission.org/topics/patient_safety.aspx last viewed March 3, 2014. 6 See e.g. MagMutual Insurance company’s patient safety resource library web page where it states “The MagMutual Patient Safety Institute was created to provide our policyholders with the very best in patient safety and risk management resources. We hope you’ll find this online repository of information useful.” https://www.magmutual.com/patient-safety/resource-library last visited March 3, 2014.

7

In short, “patient safety” is a term with wide acceptance and use, and the

Supreme Court specifically permits a party to use noncomformity as evidence of

negligence, discussed supra. Defendant fails to convince the Court that the concept

of patient safety or patient safety rule is a term or idea coined by Plaintiffs lawyers

solely to unfairly influence jurors in the trial of this case. Rather, it appears that the

government and medical profession itself use and rely upon these ideas to prevent

patient injury and death.

Although the Court does not believe that it should limit or suggest legal

strategy as requested by the Defendant, the Defendant is free to explain to the jury

why patient safety and patient safety rules are used by the government and others

but are not applicable to the purported standard of care in this case.

Wherefore, Defendants’ Motion In Limine to Exclude “Reptile” litigation

tactics is denied.

IT IS SO ORDERED!

________________________

superior court of the district of columbia … · asking it to preclude the defense from...

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