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Dorman v. Anne Arundel Medical Center

United States District Court, D. Maryland

May 29, 2018

SHEENA DORMAN, et al. Plaintiffs
v.
ANNE ARUNDEL MEDICAL CENTER, et al. Defendants

          MEMORANDUM AND ORDER RE: MOTIONS IN LIMINE

          Marvin J. Garbis, United States District Judge

         The Court has before it the following motions and the materials submitted relating thereto:

1. Defendants' Motion In Limine To Preclude Evidence That A Cesarean Section Delivery Was Required Under The Standard Of Care [ECF No. 89],
2. Plaintiffs' Motion In Limine To Exclude Assumption Of Risk [ECF No. 92],
3. Defendants' Motion In Limine To Exclude Testimony Regarding “Personal Care Assistance” Damages [ECF No. 93],
4. Plaintiffs' Motion In Limine To Preclude Cumulative Expert Testimony [ECF No. 94],
5. Plaintiffs' Motion In Limine To Preclude Defendants From Offering Undisclosed Expert Testimony [ECF No. 95],
6. Plaintiffs' Motion In Limine To Exclude Speculation That B.M.'s Left Arm Was Posterior [ECF No. 96],
7. Plaintiffs' Motion In Limine To Exclude Consideration Of Causation At Trial [ECF No. 97],
8. Defendants' Motion In Limine To Preclude References To “Alterations” Of The Medical Record [ECF No. 98],
9. Defendants' Motion In Limine To Preclude “Golden Rule” Or Other Improper “Reptile Theory” Tactics [ECF No. 99],
10. Defendants' Motion In Limine To Preclude Informed Consent Evidence [ECF No. 100], and 11. Defendants' Omnibus Motion In Limine [ECF No. 103].

         The Court has held a hearing and has had the benefit of arguments of counsel. In addition to these motions in limine, the Court also heard argument regarding whether Dr. Allen should be permitted to testify solely as a rebuttal witness.

         I. BACKGROUND

         The factual background of this case has been previously stated in the Memorandum and Order Re: Daubert Motions issued on May 4, 2018 [ECF No. 88]. The Court understands the main issue at trial to be the cause of B.M.'s birth injury, specifically, whether the injuries were caused by a violation of the standard of care by Dr. Welch, or whether the injuries were caused by natural maternal forces. Parties have filed multiple motions in limine, each of which is addressed by the Court below.

         II. MOTIONS IN LIMINE

         Motions in limine seek “to exclude anticipated prejudicial evidence before the evidence is actually offered.” Changzhou Kaidi Elec. Co. v. Okin Am., Inc., 102 F.Supp.3d 740, 745 (D. Md. 2015) (citations omitted). They “are ‘designed to narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions.'” Id. “A motion in limine to exclude evidence . . . should be granted only when the evidence is clearly inadmissible on all potential grounds.” Emami v. Bolden, 241 F.Supp.3d 673, 681 (E.D. Va. 2017) (citations omitted).

         1. Defendants' Motion In Limine To Preclude Evidence That A Cesarean Section Delivery Was Required Under The Standard Of Care [ECF No. 89]

         Plaintiff Sheena Dorman[1] opted for a vaginal delivery. Defendants request the exclusion of any evidence, testimony, or argument that under the standard of care, a cesarean section (“C-Section”) delivery for Ms. Dorman was required in lieu of a vaginal delivery.[2] Plaintiffs agree that a C-Section delivery is not part of the standard of care in this case, [3] and the Court will exclude from trial any testimony or argument that a C-Section was required, including any mention of a C-Section delivery in this case. Defendants' motion is therefore DENIED as moot.

         However, Plaintiffs still wish to introduce testimony showing that Dr. Welch may not have been prepared for the risk of a shoulder dystocia. They contend the evidence will show that one of Dr. Welch's partners, Dr. Hays, had already scheduled Ms. Dorman for a C-Section, but that Dr. Welch was not aware of that decision, did not review prior ultrasound records showing that B.M. was a large baby, and did not know the precise size of the baby at the time of delivery.

         The Court will allow Plaintiffs' requested testimony only to show a potential lack of concern or assiduousness by Dr. Welch toward Ms. Dorman, which is possibly relevant to his credibility. However, this testimony may not be used to argue that Dr. Welch should have performed a C-Section and may not mention the possibility of a C-Section as an alternative procedure in this case. In other words, there shall be no argument or suggestion that Dr. Welch's pre-delivery actions violated the standard of care although the defense may argue that pre-delivery actions or inactions may be considered as to Dr. Welsh's credibility as claiming he was appropriately concerned for his patients.

         2. Plaintiffs' Motion In Limine To Exclude Assumption Of Risk [ECF No. 92]

         On the record of proceedings held May 24, 2018, Plaintiffs stated they are not pursuing a claim for lack of informed consent and Defendants stated they will withdraw their assumption of risk defense.[4] Accordingly, Plaintiffs' motion in limine to exclude assumption of risk shall be DENIED as moot.

         3. Defendants' Motion In Limine To Exclude Testimony Regarding “Personal Care Assistance” Damages [ECF No. 93]

         Plaintiffs' economic expert, Dr. Pacey, has identified costs associated with what have been called “personal care assistance, ” which refers to the parental costs of providing care for B.M., including transportation to medical appointments, assistance with performing home exercises, and “personal hygiene, ” in a total amount of $86, 200 (including past and future costs). Defendants request that this evidence be excluded because these are ordinary and expected parenting activities and are not unique to B.M.'s brachial plexus injury. Plaintiffs argue that the personal care damages detailed by Plaintiffs' expert only deal with extraordinary care and services that have occurred and will occur as a result of the injury, above and beyond the costs of taking care of a non-disabled child.

         The Court does not find a reasonable basis to exclude this expert evidence or to exclude the $86, 200 figure from evidence. Plaintiffs' requested damages for personal care include the costs of Mr. Ming and Ms. Dorman's efforts to transport B.M. to injury related medical appointments (including cross country travel to Philadelphia from Maryland, Arkansas, and North Carolina), to conduct certain personal hygiene for him, and to engage in daily exercise to maximize the function of his injured arm. Their argument is that those damages would not be incurred by parents to take care of a child without a brachial plexus injury.

         If there are specific expenses within the $86, 200 figure that Defendants contend would apply only to ordinary child care, Defendants may elicit such testimony on cross-examination. The Court is willing, if requested by the defense, to instruct the jury to limit their personal care damages findings to only those that apply to B.M. due to the nature of his injuries.

         Accordingly, Defendants' motion is DENIED.

         4. Plaintiffs' Motion In Limine To Preclude Cumulative Expert Testimony [ECF No. 94]

         Defendants have now designated three standard-of-care expert witnesses: Drs. Dickman and Hammond, who are obstetricians, and Dr. Chauhan, who is a maternal-fetal specialist. Plaintiffs argue that allowing Defendants to call two or three experts to testify about the standard of care would be unnecessarily cumulative and a waste of time. They are concerned that the jury may draw an improper inference that the number of experts should equate to higher weight. They request that Defendants only be allowed to call one standard of care expert and one causation expert.

         Defendants contend that Plaintiffs' motion is premature and improperly invades trial strategy. They argue that there is no requirement of expert witness numerical parity, and that they have properly designated Drs. Dickman and Hammond and cross-designated Dr. Chauhan. They state that these experts have different backgrounds and experiences and will offer the jury materially different opinions.

         Under the circumstances, the Court does not now find a need to exclude Defendants' standard of care experts simply because there are more than one of them. The Court agrees that exclusion at this time would be premature because not all of the experts may be called and their testimony has not yet been elicited.[5] However, Plaintiffs may renew this motion at trial should the testimony of these three experts be unnecessarily cumulative, and the Court will reconsider the request at that time. The Court is also willing to consider requests from Plaintiffs for a jury instruction that could cure the concerns that Plaintiffs raise (e.g., a jury instruction that the fact that one party called more witnesses than the other does not mean that the jurors should necessarily find the facts in favor of the side offering more witnesses).

         As for the causation experts, Plaintiffs have not shown a basis to exclude Defendants' three experts as needlessly cumulative because they have different specialties and will offer different testimony (i.e., pediatric neurosurgeon, pediatric neurologist, and biomedical engineer). In fact, Plaintiffs also intend to call three causation experts and do not propose to limit their own number of experts.

         Accordingly, Plaintiffs' motion is DENIED without prejudice.

         5. Plaintiffs' Motion In Limine To Preclude Defendants From Offering Undisclosed Expert Testimony [ECF No. 95]

         Plaintiffs request that the testimonies of Defendants' experts Drs. Dickman, Hammond, and Azburg be limited to the scope of their expert reports and that they be prevented from opining on causation.[6] Plaintiffs also request the exclusion of any testimony by Dr. Suneet Chauhan, who they state was not cross-designated as an expert.[7] If Dr. Chauhan's testimony is allowed by the Court, Plaintiffs request that he also be precluded from opining on causation because his expert report did not include any causation opinions.

         Defendants argue that they have timely and properly disclosed these expert opinions (including cross-designating Dr. Chauhan), and have made them all available for depositions. They argue that Plaintiffs have been well aware of the opinions of these experts and are only complaining that the opinions were not sufficiently detailed in previous expert reports.

         The Court agrees that Defendants adequately placed Plaintiffs on notice of Dr. Chauhan's testimony by (1) notifying Plaintiffs that they reserve the right to call the experts of other parties and (2) specifically stating that they would call experts identified by all defendants “including but not limited to Dr. Chauhan.” See Def.'s Opp. Exs. 9, 10, ECF No. 114. The Court does not find that Plaintiffs are prejudiced by his testimony. Indeed, Plaintiffs had an opportunity to depose him, took advantage of that opportunity, and have not shown a basis for unfair surprise or prejudice.

         Plaintiffs also wish to prevent any of Defendants' standard of care experts to opine about causation, specifically, about the maternal forces of labor.

         The Court finds that any discussion of standard of care in this case necessarily touches upon causation. Defendants' standard of care experts will state that in their opinions, Dr. Welch did not violate the standard of care. That very statement also carries a suggestion or inference that something other than Dr. Welch's physical actions caused the injury. The Court will not exclude the standard of care experts from making these types statements, which it finds were properly disclosed in either expert reports or in deposition testimony.

         Accordingly, Plaintiffs' motion is DENIED.

         6. Plaintiffs' Motion In Limine To Exclude Speculation That B.M.'s ...


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