Murphy v. Precise (JOINT ASSIGN)(MAG2)

Filing 85

MEMORANDUM OPINION AND ORDER: The court ORDERS the parties Motions in Limine, (docs. 59 and 60 ), are GRANTED IN PART and DENIED IN PART. Plaintiffs Motion in Limine, (doc. 59 ), paragraphs 2-5 and 7-14, are GRANTED and paragraph 6 is DENIED. Defendants Motion in Limine, (doc. 60 ), paragraphs 1, 3-8, 10, 12, 14-16, 19, 21-23, 26-29, and 31-34 are GRANTED, paragraphs 3, 5, 17-18, and 20, are DENIED, and paragraphs 2, 9-11, 13, 24-25, and 30 are GRANTED IN PART and DENIED IN PART as further set out in the opinion and order. Signed by Honorable Judge Sharon Lovelace Blackburn on 12/1/2017. (dmn, )

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF ALABAMA
DOTHAN DIVISION
CYNTHIA RUSHING MURPHY,
Personal Representative of the Estate
of Jerry Lenson Murphy, Deceased,
Plaintiff,
vs.
ROBERT C. PRECISE, D.M.D.,
Defendant.

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CASE NO. 1:16-CV-0143-SLB-DAB

MEMORANDUM OPINION AND ORDER
This case is presently pending before the court on plaintiff’s Motion in Limine, (doc.
59),1 and defendant’s Motion in Limine and Memorandum of Law, (doc. 60). For the
reasons set forth herein, the court GRANTS IN PART and DENIES IN PART the parties’
Motions in Limine, (docs. 59 and 60).
TABLE OF CONTENTS
I. MOTION IN LIMINE STANDARD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
II. DISCUSSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. EXPERT TESTIMONY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1. Failure to Disclose.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
a. Dr. Voss. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
b. Dr. Rothrock and Dr. Garcia – Opinions Regarding Medical
Clearance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2. Expert Testimony Regarding the Standard of Care. . . . . . . . . . . . . . . . . . . 12
3. Use of Epinephrine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record.

4. Cause of Death.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5. Opinion Testimony Concerning Medical Clearance. . . . . . . . . . . . . . . . . .
6. Dr. Wendy Wright. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a. Misrepresentation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b. Husband’s Name. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7. Dr. Rosenstiel.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a. Divorces. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b. Amount Paid to Teach Course. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8. Amount of Money Any Expert Makes in Their Professional Practice
.........................................................
9. Expert as a Party in Other Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10. Medical Literature. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11. Conspiracy of Silence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12. Defendant’s Recommendation of Expert Witness. . . . . . . . . . . . . . . . . . .
13. Plaintiff’s Experts Residing Outside Alabama.. . . . . . . . . . . . . . . . . . . . .
B. CHARACTER EVIDENCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Prior Negligence, Bad Acts, or Omissions by the Defendant. . . . . . . . . . .
2. Evidence of or References to the Defendant’s Good Character. . . . . . . . .
3. Admission to Dental School. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. CRIMINAL AND CIVIL STANDARDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Burden of Proof.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Mischaracterizing Defendant’s Duty... . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
D. FINANCIAL CONDITION OR EFFECT OF VERDICT. . . . . . . . . . . . . . . . . . .
1. Effect of the Verdict on Defendant.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. Financial Status of Either Party. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4. Cattle Farmers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5. Malpractice Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6. Billing Practices and Financial Operation of Dixieland Dental. . . . . . . . .
E. SUBSEQUENT REMEDIAL MEASURES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Lowered Blood Pressure Threshold. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Dixieland Dental’s Failure to Develop Written Policies.. . . . . . . . . . . . . .
F. MR. MURPHY’S MEDICAL RECORD.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Altering the Medical Record. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. “Incredibly Amazing”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
H. LITIGATION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Settlement Discussions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. “Malpractice Lawyers”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. “Jackpot”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I. OBJECTIONS TO EXHIBITS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
J. DYING IN THE DENTAL CHAIR.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

I. MOTION IN LIMINE STANDARD
In general, the term “in limine” “refer[s] to any motion, whether made before or
during trial, to exclude anticipated prejudicial evidence before the evidence is actually
offered.” Luce v. United States, 469 U.S. 38, 40 n.2 (1984). A ruling on evidence in limine
“aid[s] the trial process by enabling the Court to rule in advance of trial on the relevance of
certain forecasted evidence, as to issues that are definitely set for trial, without lengthy
argument at, or interruption of, the trial. [It] also may save the parties time, effort and cost
in preparing and presenting their cases.” Bowden ex rel. Bowden v. Wal-Mart Stores, Inc.,
No. CIV. A. 99-D-880-E, 2001 WL 617521, *1 (M.D. Ala. Feb. 20, 2001)(internal citations
and quotations omitted). Nevertheless, “it is the better practice to wait until trial to rule on
objections when admissibility substantially depends upon what facts may be developed there.
Thus, the motion in limine is an effective approach only if the evidence at issue is clearly
inadmissible.” Id. (citations omitted).

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II. DISCUSSION
A. EXPERT TESTIMONY
1. Failure to Disclose
The parties each seek an Order excluding expert testimony based on the other party’s
failure to comply with the disclosure requirements of Fed. R. Civ. P. 26(a)(2). (Doc. 59 ¶4;
doc. 60 ¶ 30.) As amended in 2010, Rule 26(a)(2) states, in pertinent part:
(2) Disclosure of Expert Testimony.
(A) In General. In addition to the disclosures required by Rule
26(a)(1), a party must disclose to the other parties the identity of any
witness it may use at trial to present evidence under Federal Rule of
Evidence 702, 703, or 705.2

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Rule 702 states:

A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of
the case.
Fed. R. Evid. 702. Rule 703 provides:
An expert may base an opinion on facts or data in the case that the expert has
been made aware of or personally observed. If experts in the particular field
would reasonably rely on those kinds of facts or data in forming an opinion on
the subject, they need not be admissible for the opinion to be admitted. But
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(B) Witnesses Who Must Provide a Written Report. Unless otherwise
stipulated or ordered by the court, this disclosure must be accompanied
by a written report – prepared and signed by the witness – if the
witness is one retained or specially employed to provide expert
testimony in the case . . . . The report must contain:
(i) a complete statement of all opinions the witness will express
and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support
them;
(iv) the witness's qualifications, including a list of all
publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial or by deposition;
and
(vi) a statement of the compensation to be paid for the study
and testimony in the case.
(C) Witnesses Who Do Not Provide a Written Report. Unless
otherwise stipulated or ordered by the court, if the witness is not
required to provide a written report, this disclosure must state:
(i) the subject matter on which the witness is expected to
present evidence under Federal Rule of Evidence 702, 703, or
705; and

if the facts or data would otherwise be inadmissible, the proponent of the
opinion may disclose them to the jury only if their probative value in helping
the jury evaluate the opinion substantially outweighs their prejudicial effect.
Fed. R. Evid. 703. And, Rule 705 states, “Unless the court orders otherwise, an expert may
state an opinion – and give the reasons for it – without first testifying to the underlying facts
or data. But the expert may be required to disclose those facts or data on cross-examination.”
Fed. R. Evid. 705.
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(ii) a summary of the facts and opinions to which the witness is
expected to testify.
Fed. R. Civ. P. 26(a)(2)(A)-(C)(footnote added). “If a party fails to provide information or
identify a witness as required by Rule 26(a) . . . , the party is not allowed to use that
information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless.”3 Fed. R. Civ. P. 37(c)(1). “Substantially
justified means that reasonable people could differ as to the appropriateness of the contested
action.” Knight v. Miami-Dade Cty., 856 F.3d 795, 812 (11th Cir. 2017)(quoting Maddow
v. Procter & Gamble Co., 107 F.3d 846, 853 (11th Cir. 1997)). A “harmless” violation

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“In addition to or instead of this sanction, the court, on motion and after giving an
opportunity to be heard: (A) may order payment of the reasonable expenses, including
attorney's fees, caused by the failure; (B) may inform the jury of the party’s failure; and (C)
may impose other appropriate sanctions, including any of the orders listed in Rule
37(b)(2)(A)(i)-(vi).” Fed. R. Civ. P. 37(c)(1). The “other appropriate sanctions . . . listed
in Rule 37(b)(2)(A)(i)-(vi)” are:
(i) directing that the matters embraced in the order or other designated facts
be taken as established for purposes of the action, as the prevailing party
claims;
(ii) prohibiting the disobedient party from supporting or opposing designated
claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part; [or]
(vi) rendering a default judgment against the disobedient party . . . .
Fed. R. Civ. P. 37(b)(2)(A)(i)-(vi).
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“involves an honest mistake on the part of a party coupled with sufficient knowledge on the
part of the other party.”

Burney v. Rheem Mfg., 196 F.R.D. 659, 692 (M.D. Ala.

2000)(quoting Vance v. United States, 182 F.3d 920, 1999 WL 455435, *5 (6th Cir. June 25,
1999)(Unpublished)). “The burden of establishing that a failure to disclose was substantially
justified or harmless rests on the nondisclosing party.” Mitchell v. Ford Motor Co., 318 Fed.
Appx. 821, 824 (11th Cir. 2009)(quoting Leathers v. Pfizer, Inc., 233 F.R.D. 687, 697 (N.D.
Ga. 2006)). “It is within a court's discretion to preclude a party from relying on an expert's
report to overcome summary judgment and preclude said expert from testifying at trial when
the party fails to comply with Rule 26(a)(2) or carry its burden under Rule 37(c)(1).”
Mitchell v. City of Mobile, Civil Action No. 15-0360-CG-C, 2017 WL 1740364, *2 (S.D.
Ala. May 3, 2017) (citing Reese v. Herbert, 527 F.3d 1253, 1266 (11th Cir. 2008)).
a. Dr. Voss
Plaintiff asks the court to preclude “Any evidence from experts who were not
identified as testifying experts and whose testimony was not disclosed in accordance with
Fed. R. Civ. P. 26 and/or not designated by the time set forth in the Court’s Scheduling Order
as amended, specifically Dr. Nicholas F. Voss.” (Doc. 59 ¶ 4.) In response, defendant
contends:
The Court should permit Dr. Nicholas Voss to testify regarding his care
and treatment of the decedent, including his conclusions concerning the cause
of Jerry Murphy’s brain stem hemorrhage. Dr. Voss is a Dothan-based
neurosurgeon who treated Mr. Murphy from March 5-8, 2014. Dr. Voss
became Murphy’s attending/treating physician within two hours of the events
at issue in this litigation, and he directed and controlled Murphy’s neurological
care until Murphy’s death on March 8, 2014. Dr. Voss is the physician-of7

record who executed Murphy’s death certificate, including the written
attribution of a medical cause of death.
In his expert witness disclosure (filed on December 16, 2016), Dr.
Precise identified Dr. Voss as a non-retained witness from whom he may elicit
expert testimony at trial. Specifically, Dr. Precise’s expert disclosure provided
as follows:
Nicholas F. Voss, M.D.
...
Defendant may elicit expert opinion(s) from Dr. Nicholas Voss. Dr.
Voss has not been specially retained or employed as an expert in this
case but treated Jerry L. Murphy March 5-8, 2014. . . . It is expected
that Dr. Voss will be qualified as a licensed medical doctor and that he
will testify concerning his treatment of Jerry L. Murphy.
It has long been the law in this circuit and others that a party need not
provide a detailed report of the opinions of non-retained treating physicians
regarding the cause of a plaintiff’s injuries when the physician’s opinions are
based upon their own care and treatment. . . .
(Doc. 68 at 2-3 [internal citations omitted].)
Neither party has provided Dr. Voss’s deposition testimony or otherwise informed the
court of the details of his anticipated testimony regarding the cause of Mr. Murphy’s brain
hemorrhage. Nevertheless, the court finds that Dr. Voss’s testimony regarding the cause of
Mr. Murphy’s hemorrhage will be expert opinion testimony as defined by Fed. R. Evid. 702.
The record is clear that Dr. Voss was not present when Mr. Murphy suffered his hemorrhage;
therefore, his testimony as to the cause of the hemorrhage is not based on his first-hand
observations. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993)(“Unlike
an ordinary witness, see Rule 701, an expert is permitted wide latitude to offer opinions,
including those that are not based on firsthand knowledge or observation. See Rules 702 and
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703. Presumably, this relaxation of the usual requirement of firsthand knowledge . . . is
premised on an assumption that the expert's opinion will have a reliable basis in the
knowledge and experience of his discipline.”). Moreover, defendant does not contend that
the determination of the cause of the hemorrhage was necessarily part of Dr. Voss’s
treatment and care of Mr. Murphy. See Wilson v. Taser Int'l, Inc., 303 Fed. Appx. 708, 71213 (11th Cir. 2008)(holding a treating physician’s “opinion regarding the cause of
[plaintiff’s] injuries was not needed to explain his decision making process, nor did it pertain
to [plaintiff’s] treatment;” therefore, “[t]estimony regarding his diagnosis of the injury itself
. . . would be permissible as lay testimony without the Daubert analysis, but his statement
about the cause of the injury was an hypothesis” and expert opinion testimony); see also
Trinidad v. Moore, No. 2:15CV323-WHA, 2016 WL 5341777, at *4 (M.D. Ala. Sept. 23,
2016)(“[W]hen a treating physician offers an opinion as to causation, unless that opinion was
formed and given as part of treatment, that testimony is expert testimony by the treating
physician and triggers the requirements of Rule 26(a)(2)(C).”). The court finds that Dr.
Voss’s testimony regarding the cause of Mr. Murphy’s pontine hemorrhage is expert opinion
testimony under Fed. R. Evid. 702.
Because Dr. Voss is not a retained expert and because his causation testimony is
expert testimony, defendant was required to disclose “(i) the subject matter on which the
witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705;
and (ii) a summary of the facts and opinions to which the witness is expected to testify.”
Fed. R. Civ. P. 26(a)(2)(C). As set forth above, defendant’s disclosure regarding Dr. Voss
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states, “Defendant may elicit expert opinion(s) from Dr. Nicholas Voss. Dr. Voss has not
been specially retained or employed as an expert in this case but treated Jerry L. Murphy
March 5-8, 2014. . . . It is expected that Dr. Voss will be qualified as a licensed medical
doctor and that he will testify concerning his treatment of Jerry L. Murphy.” (Doc. 68-3
at 2 [emphasis added].) This disclosure does not mention that Dr. Voss will present expert
opinion testimony as to the cause of Mr. Murphy’s pontine hemorrhage as required by Fed.
R. Civ. P. 26(a)(2)(C).
“If a party fails to provide information or identify a witness as required by Rule 26(a)
. . . , the party is not allowed to use that information or witness to supply evidence . . . at a
trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
Defendant has not shown that the failure to disclose Dr. Voss’s expert testimony regarding
causation of the brain hemorrhage was substantially justified or harmless.
Therefore, plaintiff’s Motion in Limine, seeking to prohibit Dr. Voss from testifying
as to the cause of Mr. Murphy’s pontine hemorrhage, (doc. 59 ¶ 4), is GRANTED. Dr. Voss
is prohibited from offering any testimony regarding his opinion as to the cause of Mr.
Murphy’s pontine hemorrhage.
b. Dr. Rothrock and Dr. Garcia – Opinions Regarding Medical Clearance
Defendant asks the court to prohibit John F. Rothrock, M.D., and Ruben R. Garcia.
M.D., from testifying as to their “opinion[s] . . . concerning medical clearance” because these
opinions were not “included in the Plaintiff’s Rule 26 disclosures.” (Doc. 60 ¶ 30.) Dr.

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Rothrock’s expert report does not include any opinion concerning medical clearance. (See
generally doc. 21-3.) However, Dr. Garcia’s expert report states that he intends to testify
as follows regarding medical clearance:
Opinions
...
1. Because of Mr. Murphy’s health status on March 5, 2014, in particular his
multiple comorbidities, high risk of recurrent stroke, and pre-procedure blood
pressure (reportedly 174/87) he was not physically suited to undergo a
procedure involving multiple extractions by a dentist.
2. Because of Mr. Murphy’s health status on March 5, 2014, in particular his
multiple comorbidities, high risk of recurrent stroke, and pre-procedure blood
pressure he was not physically suited to be administered any epinephrine.
...
Additional Testimony
...
3. That neither I nor my office was ever contacted by Mr. Murphy regarding
medical clearance for any planned dental extraction procedure or stopping his
Plavix prior to the procedure.
4. That neither I nor my office was ever contacted by Dr. Precise or anyone
at Dixieland Dental regarding medical clearance for any planned dental
extraction procedure on Mr. Murphy or stopping Plavix prior to the procedure.
Had I been contacted by Dr. Precise or anyone at Dixieland Dental, I would
have emphatically refused medical clearance and warned against Mr. Murphy
being administered any epinephrine.
5. I am frequently contacted by dentists for pre-procedure medical clearance
of my patients.

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(Doc. 21-4 at 4-6.) The court finds that Dr. Garcia’s testimony concerning medical clearance
was properly disclosed in his expert report.
Therefore, defendant’s Motion in Limine, (doc. 60 ¶ 30), is GRANTED IN PART
and DENIED IN PART. The Motion in Limine based on failure to disclose is GRANTED
as to Dr. Rothrock; his testimony concerning medical clearance is excluded. The Motion in
Limine based on failure to disclose is DENIED as to Dr. Garcia.
2. Expert Testimony Regarding the Standard of Care
Defendant asks the court to preclude plaintiff from offering “[a]ny testimony
concerning the standard of care or reasonableness of any action or inaction by Dr. Precise
and/or his employees from any witness who is not a ‘similarly situated health care provider’
as defined by the Alabama Medical Liability Act [AMLA].”4 (Doc. 60 ¶ 2 [citing Ala. Code
§ 6-5-548].) Defendant seeks to preclude Mr. Murphy’s treating physician, Dr. Ruben
Garcia, from “criticiz[ing] Dr. Precise’s care and treatment of the decedent because he is not
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Plaintiff’s Motion in Limine also asks the court to exclude standard of care testimony
from experts that are not similarly situated to defendant:
2. Any testimony from Dr. Wendy L. Wright; Dr. Nicholas F. Voss; Dr.
Marcelo Branco; Dr. Joseph Shalit; Dr. David Herf; Dr. Clyde Pence and any
other non-similarly situated health care providers, as to the standard of care or
the breach of the standard of care.
...
3. Any and all testimony of any non-similarly situated expert witnesses in this
case regarding the standard of care for a dentist.
(Doc. 59 ¶¶ 2-3.) Defendant agreed to plaintiff’s Motion in Limine. (Id.)
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similarly situated to Dr. Precise under Alabama Code § 6-5-548,” including “any testimony
concerning . . . what level a patient’s blood pressure should be to undergo this procedure or
whether Mr. Murphy was a candidate to undergo the procedure at issue in this case, as such
testimony is improper standard of care testimony and must be excluded.” (Id.)
Pursuant to Alabama Medical Liability Act –
(a) In any action for injury or damages or wrongful death, whether in
contract or in tort, against a health care provider for breach of the standard of
care, the plaintiff shall have the burden of proving by substantial evidence that
the health care provider failed to exercise such reasonable care, skill, and
diligence as other similarly situated health care providers in the same general
line of practice ordinarily have and exercise in a like case.
(b) Notwithstanding any provision of the Alabama Rules of Evidence
to the contrary, if the health care provider whose breach of the standard of care
is claimed to have created the cause of action is not certified by an appropriate
American board as being a specialist, is not trained and experienced in a
medical specialty, or does not hold himself or herself out as a specialist, a
“similarly situated health care provider” is one who meets all of the following
qualifications:
(1) Is licensed by the appropriate regulatory board or agency of this or
some other state.
(2) Is trained and experienced in the same discipline or school of
practice.
(3) Has practiced in the same discipline or school of practice during
the year preceding the date that the alleged breach of the standard of
care occurred.
Ala. Code § 6-5-548(a)-(b).
The court agrees that Dr. Garcia is precluded from testifying as to the standard of
care or breach of the standard of care applicable to a dentist because Dr. Garcia, a medical
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doctor, is not similarly situated to defendant, a dentist. Dr. Garcia may testify as to his care
and treatment of Mr. Murphy and, to the extent pre-clearance of Mr. Murphy becomes
relevant, Dr. Garcia can testify as to whether he would have cleared Mr. Murphy for the
procedure at issue, even if this testimony could be deemed, ultimately, to be “criticism” of
defendant’s actions or omissions.
Defendant’s Motion in Limine, (doc. 60 ¶ 2), is GRANTED IN PART and DENIED
IN PART. The Motion is GRANTED to the extent it seeks to prohibit testimony regarding
the standard of care and the breach of the standard of care offered by witnesses who are not
similarly-situated health care providers. However, defendant’s Motion is DENIED as to
defendant’s request to prohibit all testimony that could possibly or conceivably concern
reasonableness and/or that, ultimately, criticizes defendant. This request is simply too
broad.
Plaintiff’s Motion in Limine, asking the court to prohibit “[a]ny and all testimony of
any non-similarly situated expert witnesses in this case regarding the standard of care for a
dentist,” specifically “testimony from Dr. Wendy L. Wright; Dr. Nicholas F. Voss; Dr.
Marcelo Branco; Dr. Joseph Shalit; Dr. David Herf; [and] Dr. Clyde Pence . . . as to the
standard of care or the breach of the standard of care,” (doc. 59 ¶¶ 2-3), and defendant’s
Motion in Limine, asking the court to prohibit testimony regarding the standard of care as
it existed after March 5, 2014, (doc. 60 ¶ 27), are GRANTED without opposition.
3. Use of Epinephrine

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Defendant asks the court to exclude “[a]ny statement that the use of epinephrine
violated the standard of care or that is otherwise critical of Dr. Precise for using
epinephrine.” (Doc. 60 ¶ 9.) He argues, “This Court has previously held that the Plaintiff’s
medical experts are precluded from providing any opinions at trial that epinephrine caused
the decedent’s brain stem hemorrhage. (Doc. 34) Thus, any such evidence would be
immaterial, irrelevant, likely to confuse or mislead the trier of fact, see Fed. R. Evid. 401-03,
and would violate Section 6-5-551 of the Alabama Medical Liability Act.”5 (Id.)

5

Section 6-5-551 of AMLA states:

In any action for injury, damages, or wrongful death, whether in contract or
in tort, against a health care provider for breach of the standard of care,
whether resulting from acts or omissions in providing health care, or the
hiring, training, supervision, retention, or termination of care givers, the
Alabama Medical Liability Act shall govern the parameters of discovery and
all aspects of the action. The plaintiff shall include in the complaint filed in
the action a detailed specification and factual description of each act and
omission alleged by plaintiff to render the health care provider liable to
plaintiff and shall include when feasible and ascertainable the date, time, and
place of the act or acts. The plaintiff shall amend his complaint timely upon
ascertainment of new or different acts or omissions upon which his claim is
based; provided, however, that any such amendment must be made at least 90
days before trial. Any complaint which fails to include such detailed
specification and factual description of each act and omission shall be subject
to dismissal for failure to state a claim upon which relief may be granted. Any
party shall be prohibited from conducting discovery with regard to any other
act or omission or from introducing at trial evidence of any other act or
omission.
Ala. Code 6-5-551.
15

The court notes that the prior Report and Recommendation and Order, (docs. 34 and
62), concerned only the opinions of Dr. Rothrock and Dr. Garcia that the use of epinephrine
caused Mr. Murphy’s death. However, the plaintiff’s similarly-situated health care provider,
Dr. Rodney Baier, stated in his expert report that he is “familiar with the potential health
risks associated with the administration of epinephrine to a patient with Mr. Murphy’s age,
medical history (including stroke history and stroke risks), health status, and medications.”
(Doc. 72-1 at 52.) He opined:
Because of Mr. Murphy's health status on March 5, 2014, in particular his
multiple comorbidities, high risk of recurrent stroke, systolic blood pressure
above 140 and non-emergency presentation, it was a breach of the standard of
care for Dr. Precise to administer any epinephrine to Mr. Murphy. The
standard of care required that Dr. Precise recognize the very high risk
associated with administering epinephrine to his patient and that he not expose
his patient to that risk.
(Doc. 72-1 at 56.) This testimony is relevant and its unfair prejudice, if any, does not
outweigh its probative value. To the extent evidence is offered regarding the physiological
effects of epinephrine, such evidence is admissible and helpful to jury.
Defendant’s Motion in Limine, (doc. 60 ¶ 9), is GRANTED IN PART and DENIED
IN PART. Defendant’s Motion in Limine is DENIED to the extent he seeks to exclude (1)
evidence from Dr. Baier and (2) evidence from experts that are not similarly situated to
defendant that may testify regarding the physiological effects of epinephrine assuming such
evidence is relevant and material. The Motion in Limine is GRANTED as to opinion
testimony from Dr. Rothrock and Dr. Garcia that the use of epinephrine caused Mr.

16

Murphy’s pontine hemorrhage, and as to testimony from other experts that are not similarlysituated to defendant that use of epinephrine during Mr. Murphy’s procedure was a breach
of the applicable standard of care.
4. Cause of Death
Defendant asks the court to limit any questions or testimony regarding the cause of
Mr. Murphy’s death to licensed medical physicians. (Doc. 60 ¶ 28.) Plaintiff does not
oppose this Motion.
Therefore, defendant’s Motion in Limine, (doc. 60 ¶ 28), is GRANTED. Testimony
regarding the cause of Mr. Murphy’s death shall be provided by licensed medical physician
witnesses.
5. Opinion Testimony Concerning Medical Clearance
Defendant asks the court to preclude Dr. Rothrock and Dr. Garcia from testifying
concerning medical clearance because such testimony “constitutes improper standard of care
testimony.”6 (Doc. 60 ¶ 30.) The Motion in Limine with regard to Dr. Rothrock’s testimony
is MOOT. That testimony is excluded on other grounds.7 See, supra, p. 9.

6

Plaintiff’s similarly-situated health care provider has opined, “[A]t an absolute
minimum, the standard of care required that Dr. Precise obtain a medical release or medical
clearance from Mr. Murphy’s primary physician before undertaking Mr. Murphy’s
treatment.” (Doc. 72-1 at 56.)
7

As set forth above, Dr. Rothrock’s expert opinion regarding medical clearance was
not properly disclosed. Therefore, his testimony regarding medical clearance has been
excluded on that ground. See, supra, p. 9-10.
17

According to plaintiff, “On March 5, 2014, Dixieland Dental had a written policy for
‘EXTRACTION AND SURGERY PATIENTS’ which provided “if you have a heart
condition, allergies to certain drugs, or any other physical illness, a written statement from
a medical doctor approving the surgery should be obtained.’” (Doc. 72 at 16 [emphasis in
original].) Whether Dr. Garcia, Mr. Murphy’s treating physician, would have provided such
a written statement or otherwise cleared Mr. Murphy for the extraction procedure is not
testimony regarding whether the standard of care required defendant to seek medical
clearance or whether defendant had a policy requiring such medical clearance for patients
like Mr. Murphy. However, assuming evidence at trial supports a finding that medical
clearance is at issue – either because it is required as part of the standard of care and/or
failure to clear Mr. Murphy violated the standard of care, Dr. Garcia may testify that he was
not asked to clear Mr. Murphy for the extraction and that he would not have cleared Mr.
Murphy for the extraction.
Defendant’s Motion in Limine as to Dr. Garcia’s testimony concerning medical
clearance, (doc. 60 ¶ 30), is DENIED.
6. Dr. Wendy Wright
a. Misrepresentation
Defendant asks the court to preclude “[a]ny reference to Dr. Wendy Wright
misrepresenting anything on her CV or ‘academic document.’” (Doc. 60 ¶ 20.) He argues
that “[t]here is no evidence in support of any such statement or reference and any such

18

evidence would be completely irrelevant to the issues in this case and would visit undue
prejudice on Dr. Precise.” (Id.) In response, “Plaintiff's counsel concede that it would be
improper to reference or comment on Dr. Wright's misrepresenting anything in her CV or
academic documents during voir dire or opening statements. However, Plaintiff reserves the
right to impeach Dr. Wright with regard to said evidence during cross examination.” (Doc.
72 at 15.)
Neither party has suggested the nature of the alleged misrepresentation. However,
evidence of a witness’s untruthfulness and an expert’s qualifications are always relevant.
Plaintiff may cross-examine Dr. Wright regarding her qualifications and the accuracy of her
representations of those qualifications. See Davis v. Alaska, 415 U.S. 308, 316-17 (1974)
(“Cross-examination is the principal means by which the believability of a witness and the
truth of his testimony are tested. Subject always to the broad discretion of a trial judge to
preclude repetitive and unduly harassing interrogation, the cross-examiner is not only
permitted to delve into the witness’ story to test the witness’ perceptions and memory, but
the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.”)
Defendant’s Motion in Limine, (doc. 60 ¶ 20), is DENIED.
b. Husband’s Name
Defendant asks the court to prohibit plaintiff from making any reference to the fact
that Dr. Wright did not take her husband’s name. (Doc. 60 ¶ 21.) Plaintiff does not oppose
this Motion.

19

Defendant’s Motion in Limine, (doc. 60 ¶ 21), is GRANTED. The parties are
prohibited from making any reference to the fact that Dr. Wright did not take her husband’s
name.
7. Dr. Rosenstiel
a. Divorces
Defendant asks the court to prohibit “[a]ny reference to Dr. Guy Rosenstiel’s
divorces. (Doc. 60 ¶ 23.) Plaintiff does not oppose this Motion.
Defendant’s Motion in Limine, (doc. 60 ¶ 23), is GRANTED. The parties are
prohibited from making reference to Dr. Rosenstiel’s divorces.
b. Amount Paid to Teach Course
Defendant seeks to exclude evidence of the fact that Dr. Rosenstiel is paid or the
amount he is paid to teach a class about dental implants on the ground that such evidence is
irrelevant. (Doc. 60 ¶ 25.) Plaintiff’s counsel state that they will not ask Dr. Rosenstiel
about how much he is paid, but that they do intend to inquire about defendant paying
$25,000 to attend the Dr. Rosenstiel’s course. (Doc. 72 at 15-16.)
“Although an expert witness would not necessarily succumb to business pressures,
and most experts endeavor to remain faithful to the facts as viewed through the lens of their
specialized knowledge, when formulating their opinion, a jury nonetheless is entitled to
know of the potential influences that are brought to bear on the witness when [the jury is]
called upon to assess credibility.” Great Lakes Anesthesia, PLLC v. State Farm Mut. Auto.

20

Ins. Co., No. 11-10658, 2011 WL 4507417, *5 (E.D. Mich. Sept. 29, 2011)(citing Collins,
621 F.2d at 784). The court finds that this evidence is relevant to showing bias or interest
on the part of Dr. Rosenstiel.
Therefore, defendant’s Motion in Limine, (doc. 60 ¶ 25), is GRANTED IN PART
and DENIED IN PART. The Motion is DENIED as to evidence that defendant took Dr.
Rosenstiel’s course and the amount he paid for the course. The Motion is GRANTED,
without opposition, as to the amount Dr. Rosenstiel was paid to teach in general and to teach
this course in particular.
8. Amount of Money Any Expert Makes in Their Professional Practice
Defendant argues that any reference to the amount of money earned by an expert in
his or her professional practice is “irrelevant to any issue in this case.” (Doc. 60 ¶ 24.) The
court agrees generally. However, according to plaintiff, two of defendant’s experts – Dr.
Rosenstiel and Dr. Michael Koslin – testified during their depositions that, if requested to
appear at trial, they would base their fee for attendance at trial on the amount of money that
they would lose from their practice. (Doc. 72 at 15.)
Each retained expert is required to provide “a statement of the compensation to be
paid for the study and testimony in the case,” as part of his or her expert report. Fed. R. Civ.
P. 26(a)(2)(B)(vi). The amount an expert witness earns for his or her work on the case is
relevant to the issue of the expert’s interest and/or bias. See Reynolds v. Gen. Motors Corp.,
No. CIV.A. 2:04-CV-0106R, 2007 WL 2908564, at *2 (N.D. Ga. Sept. 28, 2007)(citing

21

Collins v. Wayne Corp., 621 F.2d 777, 784 (5th Cir. 1980), superseded on non-pertinent
grounds by Fed. R. Evid. 103(a), as recognized in Mathis v. Exxon Corp., 302 F.3d 448, 459
n.16 (5th Cir. 2002). Therefore, to the extent the amount of money an expert earns in his/or
her practice is the basis for the expert’s compensation for appearing as a trial witness in the
case, such evidence is admissible.
Defendant’s Motion in Limine, (doc. 60 ¶ 24), is GRANTED IN PART and
DENIED IN PART.

Evidence of the amount earned by expert witnesses in their

professional practices is excluded, unless the expert witnesses’ compensation for study and
testimony in this case is based on a percentage of the income earned and/or income lost due
to providing expert study and testimony in this case.
9. Expert as a Party in Other Cases
Plaintiff asks the court to prohibit the parties from questioning whether “any expert
may be, is, has or may have been a defendant in a medical negligence case.” (Doc. 59 ¶ 7.)
Defendant does not oppose this Motion. Defendant asks the court to prohibit “[a]ny
reference to Dr. Michael Koslin’s involvement as a plaintiff and/or a defendant in other
lawsuits.” (Doc. 60 ¶ 22.) Plaintiff does not oppose this Motion.
Therefore, plaintiff’s Motion in Limine, (doc. 59 ¶ 7), and defendant’s Motion in
Limine, (doc. 60 ¶ 22), are GRANTED. The parties are prohibited from making any
reference or questioning any expert about whether he or she “may be, is, has or may have

22

been a defendant in a medical negligence case” and from referencing Dr. Koslin’s
involvement as a party in other lawsuits.
10. Medical Literature
Defendant asks the court to prohibit –
Any reference to or mention of any item of medical literature (including any
book or other publication) which has not been previously specifically
identified on the exhibit list and which is not first shown, by qualified expert
testimony, to be a reliable authority reflecting the standard of care applicable
to the care and treatment rendered by Dr. Precise.
(Doc. 60 ¶ 5.) Plaintiff does not oppose this Motion.
Therefore, defendant’s Motion in Limine, (doc. 60 ¶ 5), is GRANTED. The parties
are prohibited from making any reference or mention of medical literature (including any
book or other publication) that is not specifically identified on the parties’ exhibit lists and
is not first shown, by qualified expert testimony, to be a reliable authority reflecting the
standard of care applicable to the care and treatment rendered by defendant.9
11. Conspiracy of Silence
Defendant asks the court to prohibit plaintiff from making “[a]ny reference to an
alleged ‘conspiracy of silence’ concerning malpractice testimony that supposedly exists
among medical professionals with respect to criticisms of care or testimony.” (Doc. 60 ¶ 6.)
Plaintiff does not oppose this Motion.

9

The parties do not intend to offer the medical literature evidence.
23

Therefore, defendant’s Motion in Limine, (doc. 60 ¶ 6), is GRANTED. The parties
may not make reference to a “conspiracy of silence” concerning malpractice testimony that
supposedly exists among medical professionals with respect to criticisms of care performed
by other medical professionals.
12. Defendant’s Recommendation of Expert Witness
Defendant asks the court to prohibit “[a]ny reference to any dentists or physicians that
[defendant] recommended as potential expert witnesses.” (Doc. 60 ¶ 26.) Plaintiff does not
oppose this Motion.
Therefore, defendant’s Motion in Limine, (doc. 60 ¶ 26), is GRANTED. The parties
shall not make any reference to whether defendant recommended a dentist or physician as
an expert witness in this case.
13. Plaintiff’s Experts Residing Outside Alabama
Plaintiff asks the court to prohibit defendant from “suggest[ing] that Plaintiff’s experts
are different or unqualified just because they do not reside in Alabama.” (Doc. 59 ¶ 9.) In
response, defendant states that he does not oppose the Motion in Limine “as phrased,”
because he “does not intend to argue that any of Plaintiff’s experts are ‘different or
unqualified’ solely by virtue of the fact that ‘they do not reside in Alabama.’” (Doc. 68 at
5.)

24

Therefore, plaintiff’s Motion in Limine, (doc. 59 ¶ 9), is GRANTED. Defendant is
prohibited from suggesting that plaintiff’s experts are unqualified or “different” solely
because they reside outside Alabama.
B. CHARACTER EVIDENCE
1. Prior Negligence, Bad Acts, or Omissions by the Defendant
Defendant asks the court to prohibit –
Any reference to any other lawsuits or claims filed against Dr. Precise or
Dixieland Dental, any claims or complaints against Dr. Precise or Dixieland
Dental regarding any other patients, and/or any act or omission, adverse
outcome, bad result, or dissatisfaction involving any other patient.
(Doc. 60 ¶ 7.) He also asks the court to prohibit “[a]ny reference whatsoever, to establish
or imply that Dr. Precise or any of his employees or agents, acted negligently, wantonly or
improperly, committed malpractice, or breached the applicable standard of care in any way,
or at any time other than as specifically alleged in Plaintiff’s Complaint, as amended, and
supported by competent expert testimony.” (Doc. 60 ¶ 1.) Plaintiff does not oppose this
Motion.10 However, plaintiff asks the court to prohibit defendant from offering evidence of
the absence of any alleged acts or negligence. (Doc. 59 ¶ 11.) In response, defendant
argues:
Dr. Precise agrees that it would be improper to introduce evidence with
respect to specific care that he has provided to any patient other than Jerry
10

Plaintiff argues that she has sufficiently pled an AMLA claim and that her claim is
supported by expert testimony of a similarly-situated healthcare provider. (See doc. 72 at
1-4.) Defendant’s Motion in Limine, (doc. 60 ¶ 1), does not ask the court to prohibit this
testimony.
25

Murphy. Any such evidence would be inadmissible under Section 6-5-551 of
the Alabama Medical Liability Act. However, it is entirely relevant for Dr.
Precise to testify that he has not had any other patient experience a brain stem
hemorrhage following a dental procedure.
(Doc. 68 at 5.)
Under Alabama law, “The plaintiff shall include in the complaint filed in [an AMLA]
action a detailed specification and factual description of each act and omission alleged by
plaintiff to render the health care provider liable to plaintiff and shall include when feasible
and ascertainable the date, time, and place of the act or acts.” Ala. Code § 6-5-551. “Any
party [in an action brought pursuant to the AMLA is] prohibited from conducting discovery
with regard to any other act or omission or from introducing at trial evidence of any other
act or omission.” Id. This provision applies to both plaintiffs and defendants. Id.; see also
Leiser v. Raymond R. Fletcher, M.D., P.C., 978 So. 2d 700, 710 (Ala. 2007)(Cobb, C.J.,
concurring in part and concurring in result)(citing Ex parte Pfizer, Inc., 746 So. 2d 960, 966
(Ala. 1999)(Johnstone, J., dissenting)).
Obviously, evidence that defendant has never had a patient, other than Mr. Murphy,
suffer a brain stem hemorrhage during a dental procedure requires admission of evidence of
his acts and omissions related to the care of patients other than Mr. Murphy on occasions
other than that alleged in plaintiff’s Complaint. The court finds defendant’s testimony that
he has never had a patient experience a brain-stem hemorrhage is evidence of his treatment
and care of patients other than Mr. Murphy. Such evidence is barred by Ala. Code § 6-5551.
26

Plaintiff’s Motion in Limine, (doc. 59 ¶ 11), and defendant’s Motion in Limine, (doc.
60 ¶¶ 1, 7), are GRANTED. The parties are prohibited from referencing and/or offering
evidence of defendant’s treatment and care of patients other than Mr. Murphy including, but
not limited to, testimony that he has never had a patient, other than Mr. Murphy, that
suffered a brain-stem hemorrhage during a dental procedure, and any claims and complaints
from other patients regarding defendant’s care and treatment.
2. Evidence of or References to the Defendant’s Good Character
Plaintiff asks the court to prohibit defendant from offering evidence and referencing
his good character. (Doc. 59 ¶ 12.) Specifically, she asks the court to prohibit defendant
from offering evidence or testimony that (1) “Defendant is a caring, dedicated, etc., health
care professional,” (id. ¶ 14(d)), (2) “Defendant has dedicated his life to trying to take care
of patients safely,” (id. (e)), and (3) “all of the good that the Defendant does in treating
patients,” (id. (f)). Defendant contends that he “does not intend to offer evidence of his good
character for the purpose of establishing that he acted in conformity therewith;” rather he
intends to elicit “entirely proper” testimony “pertaining to

Dr. Precise’s personal

background, his general and professional education, training, experience, and his general
involvement in the community.” (Doc. 68 at 5-6.) Also, he contends that he should be
allowed to offer “any personal depiction” of himself because plaintiff “will no doubt devote
energies to personal depictions of Mr. Murphy.”11 (Id. at 6.)

11

Defendant has not moved in limine to prohibit “personal depiction” testimony
regarding Mr. Murphy. Nevertheless, the court notes that evidence of Mr. Murphy’s good
27

Rule 404(a) states, “Evidence of a person’s character or character trait is not
admissible to prove that on a particular occasion the person acted in accordance with the
character or trait.” Fed. R. Evid. 404(a). “An analysis of the admissibility of character
evidence necessarily begins, then, with an examination of the purposes for which the
evidence is proffered. If the evidence is introduced for the purpose of showing that a person
acted in accordance with his character on a given occasion, then the evidence is inadmissible
unless it falls within one of the exceptions noted in Rule 404.” Reyes v. Missouri Pac. R.
Co., 589 F.2d 791, 794 (5th Cir. 1979)(footnote omitted). “Character evidence is of slight
probative value and may be very prejudicial. It tends to distract the trier of fact from the
main question of what actually happened on the particular occasion. It subtly permits the
trier of fact to reward the good man and to punish the bad man because of their respective
characters despite what the evidence in the case shows actually happened.” Id. at 793 n.6
(quoting California Law Revision Commission, Tentative Recommendation and a Study
Relating to the Uniform Rules of Evidence, quoted in Notes of Advisory Committee on
Proposed Rules, Fed. R. Evid. 404, 28 U.S.C.A. at p. 109); see also United States v. Reed,
700 F.2d 638, 645 (11th Cir. 1983)(“Rules 404 and 405 (and their common law
predecessors) are designed to insure that the ultimate decision of the factfinder is based on
the merits of the case and not on the personalities involved. This is especially important in
a criminal case where the state must be compelled to convict a defendant on the basis of a

character is also inadmissible for the same reasons.
28

particular act and not because the defendant is generally a ‘bad’ or ‘evil’ person. Rule
404(a), therefore, generally excludes the introduction of character evidence, subject only to
limited exceptions.”)(footnote omitted).
Defendant has not stated the purpose for which he seeks to admit evidence of his
treatment of other patients and/or his good works in his community. The court finds the
obvious reason for this evidence is to prove the improper purpose of propensity – he is a
good and careful dentist; therefore, he did not breach the standard of care and cause Mr.
Murphy’s death. The court finds that the evidence defendant seeks to admit is inadmissible
character evidence.
Therefore, plaintiff’s Motion in Limine, (doc. 59 ¶¶ 12 and 14(d)-(f)), will be
GRANTED. Defendant is prohibited from offering evidence of good character for the
purpose of proving propensity and/or prejudicing the jury.
Defendant asks the court to prohibit “[a]ny reference to the fact that [defendant] did
not contact the family [of Mr. Murphy] following the care at issue in this case.” (Doc. 60
¶ 15.) Plaintiff contends that such evidence is relevant to rebut defendant’s evidence and
argument regarding his good character testimony. As the court has excluded such evidence,
defendant’s Motion in Limine, (doc. 60 ¶ 15), is GRANTED. The parties are prohibited
from making any reference to the fact that defendant did not contact the family following Mr.
Murphy’s procedure and subsequent death.
3. Admission to Dental School

29

Defendant asks the court to prohibit “[a]ny questioning or reference concerning
[defendant] being denied admission to dental school on his first attempt.” (Doc. 60 ¶ 14.)
Plaintiff does not oppose this Motion.
Therefore, defendant’s Motion in Limine, (doc. 60 ¶ 14), is GRANTED. The parties
shall not question any witness nor otherwise reference the fact that defendant was denied
admission to dental school on his first attempt.
C. CRIMINAL AND CIVIL STANDARDS
1. Burden of Proof
Defendant asks the court to prohibit plaintiff from presenting “[a]ny reference to the
burden of proof which exists in a criminal case, on the grounds that any such reference
would be confusing to the jury and prejudicial to Dr. Precise.” (Doc. 60 ¶ 4.) In response,
plaintiff contends
In Defendant's Response to Plaintiffs Motion for Limine (Doc. 68), Defendant
argues in paragraph 6 that he intends to plead "not-guilty" to the charges
against him, as such, Plaintiff should be permitted to explain to the jury in voir
dire and argument that this is not a criminal case and that the burden of proof
in this case is substantially less and different from the burden of proof in a
criminal case. Such statements are intended to clarify, not confuse, the burden
of proof.
(Doc. 72 at 8.)
In her Motion in Limine, plaintiff asks the court to prohibit defendant from testifying
or offering evidence “[t]hat the Defendant ‘pleads not guilty’; that ‘medical malpractice[’]
is the most ‘serious charge’ that can be brought against a dentist and/or that the Plaintiff has

30

accused the Defendant of ‘practicing bad medicine.’” (Doc. 59 ¶ 6.) In response, defendant
argues:
At trial, Dr. Precise intends to establish that he is in fact not guilty of dental
malpractice, and it is entirely appropriate and truthful for defense counsel to
assert that dental malpractice is a serious charge. Plaintiff also moves the
Court to preclude the defense from pointing out that she is accusing Dr.
Precise of practicing bad medicine/dentistry. This, however, is exactly what
Plaintiff has done throughout this case, and it is appropriate for the defense to
apprise the jury of this fact.
(Doc. 68 at 4-5.)
Under the AMLA, “the plaintiff shall have the burden of proving by substantial
evidence that the health care provider failed to exercise such reasonable care, skill, and
diligence as other similarly situated health care providers in the same general line of practice
ordinarily have and exercise in a like case.” Ala. Code § 6-5-548(a). Also, “In the case of
a jury trial, the jury shall be instructed that in order to return a verdict against a health care
provider, the jury shall be reasonably satisfied by substantial evidence that the health care
provider failed to comply with the standard of care and that such failure probably caused the
injury or death in question.” Ala. Code § 6-5-549. Needless to say, the standard of proof
required in a criminal case – proof beyond a reasonable doubt – requires a much higher
quantum of proof.
Defendant’s Motion in Limine, (doc. 60 ¶ 4), is GRANTED. Obviously, both parties
are precluded from presenting evidence or arguing that the burden of proof in this case is
other than that set forth in Ala. Code § 6-5-549. Plaintiff’s Motion in Limine, (doc. 59 ¶ 6),

31

is DENIED. Defendant may refer to the Complaint as a “charge,” may argue that he pleads
“not guilty” or is “not guilty,” and may refer to the claim as an “accusation.” He may also
argue and testify that malpractice is a serious claim, that the claim is denied, and that the
plaintiff alleges that he practiced bad medicine or dentistry, which he denies.
2. Mischaracterizing Defendant’s Duty.
Plaintiff asks the court to prohibit “Defendant or Defendant’s counsel from
introducing evidence of or making references that the Plaintiff’s burden is anything other
than proving that the Defendant failed to comply with the standard of care,” (doc. 59 ¶ 14),
including the following statements:

“Defendant did the best he could do,” (id. (a));

“Defendant had [Mr. Murphy’s] well being in mind at all times, (id. (b)); “Defendant did not
intend to do anything to injure or damage the Plaintiff,” (id. (c)); “there has been only one
true healer,” (id. (g)); and “Defendant used his best judgment, (id. (h)). Defendant responds
that, although “[i]t would be inappropriate for any party to mischaracterize Dr. Precise’s
duty,” the listed phrases do not mischaracterize defendant’s duty. (Doc. 68 at 6.)
The court disagrees. Defendant’s duty toward Mr. Murphy was “to comply with the
standard of care.” Ala. Code § 6-5-549. This is an objective standard and defendant’s
subjective intent is not an issue.

For example, should the proof establish without

contradiction that some action of defendant’s breached the standard of care and that this
breach caused Mr. Murphy’s death, the jury could not return a verdict for defendant simply
because they believed he had done “the best he could and used his best judgment,” he had

32

Mr. Murphy’s well being in mind at all time, and he did not intend to cause Mr. Murphy’s
death.

Defendant’s subjective intent and subjective effort on Mr. Murphy’s behalf is

irrelevant to the issue of whether he complied with the standard of care applicable to
similarly situated dentists. Under the facts of this case, neither party has suggested that the
defendant breached a standard of care requiring dentists not to intentionally injure their
patients. Therefore, the court finds that the phrases at issue in plaintiff’s Motion in Limine,
(doc. 59 ¶ 14(a)-(c) and (g)-(h)), mischaracterize defendant’s duty and suggest an improper
basis for the jury’s verdict.
Therefore, plaintiff’s Motion in Limine, (doc. 59 ¶ 14(a)-(c) and (g)-(h)), is
GRANTED.
D. FINANCIAL CONDITION OR EFFECT OF VERDICT
1. Effect of the Verdict on Defendant.
Plaintiff asks the court to prohibit “Defendant, his attorneys or witnesses from making
any comment about how a verdict for the Plaintiff in this case might impact or adversely
affect the Defendant,” including “a. [the] financial impact (given the availability of liability
insurance); or b. professional licensure (there is no evidence or suggestion that anyone’s
license is in jeopardy).” (Doc. 59 ¶ 15.) Defendant opposes the Motion to the extent it seeks
to prohibit him from arguing that the Alabama Board of Dental Examiners [the Board] has
the authority to discipline him if the jury returns a verdict for plaintiff.12 (Doc. 68 at 6-7.)
12

According to defendant, “Alabama Code § 34-9-18 vests the Alabama Board of
Dental Examiners with the authority to invoke disciplinary action – including suspension or
33

Defendant “agrees with Plaintiff that it would be improper for any party to make any
comment regarding the financial impact of a plaintiff’s verdict on [defendant].” (Id. at 7.)
The court finds that the unfair prejudice of admitting evidence that the Board “might”
discipline defendant outweighs any slight probative value of such evidence. See Fed. R.
Evid. 403.13 Certainly evidence of the Board’s authority to sanction negligent dentists and
that the Board could sanction defendant in the event of a plaintiff’s verdict in no way
supports an inference that defendant in this case breached the standard of care in his
treatment of Mr. Murphy. Indeed, the court does not perceive any material fact that is made
more or less probable because of the Board’s authority. Rather, such evidence would only
serve to invite the jury to base its judgment on facts unrelated to defendant’s actions at issue
– such as whether or not defendant would be subject to sanctions by the Board.
Therefore, plaintiff’s Motion in Limine, (doc. 59 ¶ 15), is GRANTED. Defendant
is prohibited from offering any evidence or argument regarding the potential effect of a
plaintiff’s verdict on defendant, his finances, and/or his dental license.
3. Financial Status of Either Party

termination of the license to practice dentistry – upon a finding that a dentist is ‘guilty of
negligence or gross negligence.’” (Doc. 68 at 6.)
13

“The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” Fed. R. Evid. 403.
34

Defendant asks the court to prohibit “[a]ny reference to the financial status of the
Plaintiff or Defendant, including any reference to any purported wealth of Defendant or any
defense witness, including direct references to any amounts of money made, earned, billed,
or any indicia of wealth.” (Doc. 60 ¶ 11.) He also asks the court to prohibit Dr. Garcia or
other witnesses from testifying about “any financial problems or ‘insurance issues’ that [Mr.
Murphy] may have had.” (Id. ¶ 32.) In response, plaintiff contends that she does not intend
to offer testimony regarding Mr. Murphy’s financial problems and/or insurance issues. (Doc.
72 at 16-17.) Also, she “does not intend to make any reference to the ‘purported wealth of
the defendant,’” except to show “the fact that the husband of the Dixieland Dental employee
who altered Mr. Murphy's chart post-stroke (Sandra Jane Davis) is the longtime manager of
Dr. Precise’s father’s cattle operation,” which is “obviously relevant to show interest, bias
or prejudice” of Ms. Davis, a witness in this case. (Id. at 13.) Based on the record, the court
assumes that plaintiff and defendant both intend to offer evidence and/ question the retained
experts regarding their compensation for work in this case.
Defendant’s Motion in Limine, (doc. 60 ¶ 11), is GRANTED IN PART and
DENIED IN PART; his Motion in Limine, (doc. 60 ¶ 32), is GRANTED. The parties are
prohibited from referencing the financial status of plaintiff, Mr. Murphy, defendant, or
witnesses except the parties may question Ms. Davis regarding her husband’s employment
as the manager of Precise Farms and may question retained expert witnesses regarding
compensation for their work in this case.

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4. Cattle Farmers
Defendant asks the court to prohibit “[a]ny reference to Precise Farms or to Robert
and Michael Precise being cattle farmers.” (Doc. 60 ¶ 13.)
For the reasons set forth above, defendant’s Motion in Limine, (doc. 60 ¶ 13), is
GRANTED IN PART. The parties are prohibited from offering evidence that defendant
and his father own a cattle farm, except to the extent Ms. Davis may be questioned regarding
her husband’s employment.
5. Malpractice Insurance
Plaintiff asks the court to prohibit any testimony or evidence regarding medical
malpractice liability insurance. (Doc. 59 ¶ 10.) Defendant agrees. Defendant asks the court
to prohibit the parties from making –
Any statement or reference to suggest that Dr. Precise has liability insurance
coverage, that any witness or physicians generally have such insurance
coverage, that any expert witness identified by Dr. Precise is (or has been)
insured by the same professional liability carrier as Dr. Precise, any reference
to insurance premiums, any reference to seminars put on by any professional
liability insurance company, or any reference to Pro Assurance or professional
liability insurance generally.
(Doc. 60 ¶ 3.) Plaintiff does not oppose this Motion.
Plaintiff’s Motion in Limine, (doc. 59 ¶ 10), and defendant’s Motion in Limine, (doc.
60 ¶ 3), are GRANTED.

The parties are prohibited from making any reference to

malpractice insurance.
6. Billing Practices and Financial Operation of Dixieland Dental

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Defendant asks the court to prohibit –
Any reference to the billing practices or financial operations of Dixieland
Dental, including but not limited to evidence that Dixieland Dental does not
process insurance claims, the means by which Dixieland Dental accepts
payments for its services, how Dixieland Dental sets prices for its services, any
mention of Dr. Precise’s salary or how Dr. Precise’s salary is calculated.
(Doc. 60 ¶ 10.) He also asks that the court prohibit “[a]ny reference to litigation over
payment of fees for services between Dixieland Dental and other patients.” (Id. ¶ 12.)
Plaintiff does not oppose these Motions.
Therefore, defendant’s Motion in Limine, (doc. 60 ¶¶10, 12), is GRANTED. The
parties are prohibited from making “[a]ny reference to the billing practices or financial
operations of Dixieland Dental, including but not limited to evidence that Dixieland Dental
does not process insurance claims, the means by which Dixieland Dental accepts payments
for its services, how Dixieland Dental sets prices for its services, any mention of
[defendant’s] salary or how [defendant’s] salary is calculated,” (id. ¶ 10), as well as any
litigation of fees for services provided patients other than Mr. Murphy, (id. ¶ 12).
E. SUBSEQUENT REMEDIAL MEASURES
1. Lowered Blood Pressure Threshold
Defendant asks the court to prohibit “[a]ny testimony or other evidence of subsequent
remedial measures, including but not limited to evidence that Dr. Precise has lowered the
blood pressure threshold for conducting dental extractions and maintains lists of medications
in patient records after the events at issue in this case.” (Doc. 60 ¶ 8.)

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Rule 407 is clear –
When measures are taken that would have made an earlier injury or harm less
likely to occur, evidence of the subsequent measures is not admissible to
prove:
• negligence;
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as
impeachment or – if disputed – proving ownership, control, or the feasibility
of precautionary measures.
Fed. R. Evid. 407.
Therefore, defendant’s Motion in Limine, (doc. 60 ¶ 8), is GRANTED. However,
should such evidence become relevant during the course of the trial, such as if defendant
denies the feasibility of lowering the blood-pressure threshold, plaintiff may seek to admit
such evidence outside the presence of the jury.
2. Dixieland Dental’s Failure to Develop Written Policies
Defendant seeks to exclude evidence “that Dr. Precise was negligent or breached the
applicable standard of care by not developing ‘written policies.’” (Doc. 60 ¶ 16.) Plaintiff
in response contends that she does not intend to argue or present evidence that defendant
breached the standard of care by not developing written policies; rather, she intends to prove
that Dixieland Dental had a written notice regarding approval of a physician before treatment
of certain patients. (Doc. 72 at 4, 14, 16.) Defendant’s Motion in Limine does not seek to
exclude evidence of this document and such evidence is admissible, subject to a proper
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foundation being established. From the parties’ submissions, the court finds that plaintiff
does not intend to offer evidence that Dixieland Dental did not develop written policies;
therefore, defendant’s Motion in Limine, (doc. 60 ¶ 16), is GRANTED without opposition.
F. MR. MURPHY’S MEDICAL RECORD
1. Altering the Medical Record
Defendant seeks to preclude plaintiff from offering any statement referring to
defendant or anyone at Dixieland Dental “improperly altering” Mr. Murphy’s medical
records. (Doc. 60 ¶ 17 [“Any reference to someone ‘doctoring the record,’ ‘fessing up’ to
making entries in the chart, ‘manipulating’ the record, ‘interfering’ with recordkeeping, or
otherwise improperly altering the decedent's medical records.”].)

He argues, “Any such

statements would serve no purpose but to evoke passion and prejudice.” (Id.) Plaintiff,
however, contends that such statements and evidence –
are relevant in this case because Dixieland Dental employees did, with the
defendant's knowledge, alter Mr. Murphy’s chart on March 5, 2014, following
his stroke. In addition, defendant claims the pre-operative blood pressure must
have been inadvertently deleted from the chart during the process. Finally, the
first time a pre-operative blood pressure appears in the chart is when Dr.
Precise adds an addendum to the records 13 days later when plaintiff requested
a copy of Mr. Murphy’s records.
(Doc. 72 at 14 [emphasis in original].)
The court finds evidence that defendant and/or someone else at Dixieland Dental
altered Mr. Murphy’s records after the incident at issue in this case is relevant to credibility
as it tends to show deceit or a cover-up after the fact and that may be relevant to showing

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consciousness of wrongdoing. Therefore, defendant’s Motion in Limine, (doc. 60 ¶ 17), is
DENIED.14
2. “Incredibly Amazing”
Defendant seeks to prohibit plaintiff’s witnesses from testifying that is was
“incredibly amazing” that Mr. Murphy’s blood pressure readings were not saved in his chart.
(Doc. 60 ¶ 18.) He contends that “[a]ny such statement would serve no purpose but to evoke
passion and prejudice.” (Id.) Plaintiff responds that “[s]uch references and arguments are
relevant in this case.” (Doc. 72 at 14 [emphasis in original].)
The court assumes that defendant objects to the specific use of the phrase “incredibly
amazing,” and not to all opinion evidence that defendant’s failure to record and save blood
pressure readings in Mr. Murphy’s chart was unusual or a breach of the standard of care.
Nevertheless defendant’s Motion in Limine, (doc. 60 ¶ 18), is DENIED. Testimony that the
failure to chart blood pressures is “incredibly amazing” is subject to cross-examination of
any witness so testifying regarding the basis for his or her opinion. The phrase “incredibly
amazing” shall not be used in opening argument, but may be used in closing arguments if
supported by testimony.
G. HEARSAY
Defendant asks the court to prohibit testimony regarding certain hearsay statements:
“Any reference to Dr. Rodney Baier discussing this case with his oral surgeon or anything
14

Defendant, of course, may offer evidence as to the circumstances of the alteration
of Mr. Murphy’s medical record.
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the oral surgeon may have stated,” (doc. 60 ¶ 29); “Any statements made to Dr. Garcia by
the decedent’s family after the care at issue in this case,” (id. ¶ 31); “Any hearsay statements
made to Cindy Murphy or Mr. Murphy’s daughters by Dr. Garcia, Dr. Voss or any other
physicians or persons, including anyone at Dixieland Dental other than [defendant],” (id. ¶
33); and “Any hearsay statements made by Cindy Murphy regarding what she assumed
employees of Dixieland Dental told Mr. Murphy, including but not limited to any statement
that she assumed an employee of Dixieland Dental told Mr. Murphy to stop taking Plavix at
the time that Mr. Murphy called to make the appointment,” (id. ¶ 34). Plaintiff does not
oppose defendant’s Motion in Limine, except as to the “hearsay statements made to Cindy
Murphy or Mr. Murphy’s daughters by Dr. Garcia, Dr. Voss or any other physicians or
persons, including anyone at Dixieland Dental other than [defendant],” that she may use as
impeachment.
Defendant’s Motion in Limine, (doc. 60 ¶¶ 29, 31, 33, and 34), is GRANTED.
During the course of trial, should plaintiff wish to impeach a witness using statements made
to her or Mr. Murphy’s daughters, she should first seek the court’s permission outside the
presence of the jury.
H. LITIGATION
1. Settlement Discussions
Plaintiff asks the court to prohibit all references to “settlement negotiations or the lack
of any settlement offer(s).” (Doc. 59 ¶ 5.) Defendant does not oppose the Motion.

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Therefore, plaintiff’s Motion in Limine, (doc. 59 ¶ 5), is GRANTED. The parties are
prohibited from making any reference to settlement negotiations or the lack of a settlement
offer.
2. “Malpractice Lawyers”
Plaintiff asks the court to prohibit defendant from arguing that “Plaintiff’s lawyers are
‘malpractice lawyers’ who travel across this state suing health care providers.” (Doc. 59 ¶8.)
Defendant does not oppose this Motion.
Therefore, plaintiff’s Motion in Limine, (doc. 59 ¶ 8), is GRANTED. The parties are
prohibited from arguing that “plaintiff’s lawyers are ‘malpractice lawyers’ who travel across
this state suing health care providers.”
3. “Jackpot”
Plaintiff asks the court to prohibit defendant from arguing or suggesting “to the jury
that by bringing this lawsuit Plaintiff hopes to hit the ‘Jackpot’ or ‘Lottery’.” (Doc. 59 ¶ 13.)
Defendant does not oppose this Motion.
Therefore, plaintiff’s Motion in Limine, (doc. 59 ¶ 13), is GRANTED. The parties
are prohibited from arguing or suggesting to the jury that, by filing this lawsuit, plaintiff
hopes to hit the jackpot or win the lottery.

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I. OBJECTIONS TO EXHIBITS

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Defendant asks the court to prohibit “[a]ny reference to any of the Exhibits or
Documents to which the Defendant has objected in Defendant’s Objections to Plaintiff’s
Exhibits.” (Doc. 60 ¶ 35 [citing doc. 49].)
The mere filing of an objection to an exhibit is not a ground for excluding that exhibit.
To the extent the court rules on the admissibility of an exhibit before or during trial, the
parties shall abide by that ruling. However, defendant’s overly broad Motion seeking to
exclude all references to all exhibits to which he has objected before the court has ruled on
those objections, (doc. 60 ¶ 35), is DENIED.
J. DYING IN THE DENTAL CHAIR
Defendant asks the court to prohibit “[a]ny reference to decedent ‘dying in the dental
chair.’” (Doc. 60 ¶ 19.) Plaintiff does not oppose this Motion.
Therefore, defendant’s Motion in Limine, (doc. 60 ¶ 19), is GRANTED. The parties
are prohibited from referencing Mr. Murphy “dying in the dental chair.” (Id.)
CONCLUSION
For the foregoing reasons, the court ORDERS the parties’ Motions in Limine, (docs.
59 and 60), are GRANTED IN PART and DENIED IN PART. Plaintiff’s Motion in
Limine, (doc. 59), paragraphs 2-5 and 7-14, are GRANTED and paragraph 6 is DENIED.
Defendant’s Motion in Limine, (doc. 60), paragraphs 1, 3-8, 10, 12, 14-16, 19, 21-23, 26-29,
and 31-34 are GRANTED, paragraphs 3, 5, 17-18, and 20, are DENIED, and paragraphs
2, 9-11, 13, 24-25, and 30 are GRANTED IN PART and DENIED IN PART.

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DONE this 1st day of December, 2017.

SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE

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