United States District Court, D. Maryland
SHEENA DORMAN, et al. Plaintiffs
ANNE ARUNDEL MEDICAL CENTER, et al. Defendants
MEMORANDUM AND ORDER RE: MOTIONS IN LIMINE
J. Garbis, United States District Judge
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
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].
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.
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
MOTIONS IN LIMINE
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).
Defendants' Motion In Limine To Preclude Evidence
That A Cesarean Section Delivery Was Required Under The
Standard Of Care [ECF No. 89]
Sheena Dorman 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. Plaintiffs agree
that a C-Section delivery is not part of the standard of care
in this case,  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.
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.
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.
Plaintiffs' Motion In Limine To Exclude Assumption Of
Risk [ECF No. 92]
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. Accordingly, Plaintiffs' motion in
limine to exclude assumption of risk shall be DENIED as moot.
Defendants' Motion In Limine To Exclude Testimony
Regarding “Personal Care Assistance” Damages [ECF
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.
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.
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.
Defendants' motion is DENIED.
Plaintiffs' Motion In Limine To Preclude Cumulative
Expert Testimony [ECF No. 94]
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.
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.
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. 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
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.
Plaintiffs' motion is DENIED without prejudice.
Plaintiffs' Motion In Limine To Preclude Defendants
From Offering Undisclosed Expert Testimony [ECF No. 95]
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. Plaintiffs also request the exclusion of
any testimony by Dr. Suneet Chauhan, who they state was not
cross-designated as an expert. 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.
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.
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.
also wish to prevent any of Defendants' standard of care
experts to opine about causation, specifically, about the
maternal forces of labor.
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
Plaintiffs' motion is DENIED.
Plaintiffs' Motion In Limine To Exclude Speculation
That B.M.'s ...