Miller v. Broadway Health and Rehab LLC et al

Filing 61

ORDER partly granting and partly denying 38 Motion to strike. Dr. Klein's testimony will be limited to the opinions in the first disclosure. 39 Motion is denied as moot. 41 Motion is granted; punitive damages and joint venture are no lon ger issues in this case. 43 Motion is granted with a caveat; the estate must give Broadway, and the Court, notice of any such proposed evidence by 2/28/2018. 45 Motion is granted; Expert testimony by Broadway's caregivers is out, unless the door is opened and testimony about the facts is in. 47 Motion is partly granted and partly denied. Signed by Judge D. P. Marshall Jr. on 2/21/2018. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
LEE ANDRE MILLER, Special
Administrator of the Estate of
Annie Bell Miller
v.

PLAINTIFF

No. 3:16-cv-255-DPM

BROADWAY HEALTH
AND REHAB LLC

DEFENDANT
ORDER

1.

Dr. Klein. Broadway's motion to strike, NQ 38, is partly

granted and partly denied. The date of Dr. Klein's deposition was
agreed; and his opinions were summarized in the timely one-page
disclosure.

NQ 38-1.

But the 55-page handwritten statement, first

disclosed at the deposition, was untimely.

FED.

R. CIV. P. 26(a)(2)(D). It

should have been made available earlier. Dr. Klein's testimony will
therefore be limited to the opinions in the first disclosure.
FED.

R. CIV. P. 37(c).
2.

Bifurcation. Broadway's motion, NQ 39, is denied as moot.

Punitive damages are no longer at issue. NQ 60.
3.

Financial information.

Broadway's motion, NQ 41, is

granted. Punitive damages and joint venture are no longer issues in
this case. NQ 60. The entities' finances and financial relationships are
irrelevant to the remaining issues.

4.

Prior acts and lawsuits.

Broadway's motion, NQ 43, is

granted with a caveat. The potential for unfair prejudice here is great.
Porous Media Corp. v. Pall Corp., 173 F.3d 1109, 1117 (8th Cir. 1999).

Therefore, the estate shall not introduce evidence of other acts or other
lawsuits. But, if the estate demonstrates substantial similarity to the
Court outside the jury's presence, the Court will reconsider under Rule
403.

Hicks v. Six Flags Over Mid-America, 821 F.2d 1311, 1315-16

(8th Cir. 1987). The estate must give Broadway, and the Court, notice
of any such proposed evidence by 28 February 2018.
5.

Expert testimony by defendants.

Broadway's motion,

NQ 45, is granted. Medical providers cannot be compelled to give expert

opinion against themselves. ARK. CODE ANN.§ 16-114-207(3); Bedell v.
Williams, 2012 Ark 75, 16-17, 386 S.W.3d 493, 504-05 (2012). Expert

testimony by Broadway's caregivers is out, unless the door is opened.
Csiszer v. Wren, 614 F.3d 866, 873-74 (8th Cir. 2010). Testimony about

the facts is in.
6.

Omnibus motion. Broadway's omnibus motion seeks relief

on fifteen embedded and various topics. NQ 4 7. Miller's estate opposes
the motion generally, though there are some areas of agreement. NQ 58
& NQ 59. For the following reasons, Broadway's omnibus motion is (as

specified) partly granted and partly denied.

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a. No adverse effect. Granted. Neither party shall argue
or imply any adverse effect, or lack thereof, on the
nursing home.
b. Regulations. Partly granted and partly denied without
prejudice. The Court will follow Bedell, 386 S.W.3d at
499, as to 42 C.F.R. §§ 483.1 et seq. But the Court
reserves a ruling about other regulations and statutes
until it has heard the proof and focused argument on
specific state or federal law, the violation of which may
be evidence of medical malpractice in Miller's care.
c. Residents' Rights Act. Granted. The parties agree.
NQ 59 at 1. Miller's estate should cite only the sections
that are relevant to this case.
d. "Governing body." Granted. The estate shall not refer
to a" governing body." Bedell, 386 S.W.3d at 499.
e. Abuse of Adults Act. Granted. The Act doesn't apply
to civil actions. ARK. CODE ANN.§ 16-118-107(d).
f. "Dignified." Denied. The word is not complex. The
Court will give a limiting instruction, if necessary.
g. Organized as LLCs. Denied. The other entities are no
longer in this case.
h. Dismissed defendants and claims. Granted. Miller's
estate must not make arguments about the dismissed
entities and claims.
i. Medical opinions not sufficiently probable. Granted.
Medical opinions must be to a reasonable degree of
certainty.

j. Medical opinions by lay witnesses. Granted. Nonexperts are limited to lay testimony.
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k. Vouching for witness. Granted. Attempts to vouch
for a witness's credibility are improper. United States
v. McClellan, 578 F.3d 846, 859 (8th Cir. 2009).
I. "Send a message." Partly granted and partly denied.
Asking the jury to act as the conscience of the
community is permissible. United States v. Lewis, 547
F.2d 1030, 1037 (8th Cir. 1976). But inflammatory
comments seeking a verdict based on passion or
prejudice go too far. United States v. Johnson, 968 F.2d
768, 770 (8th Cir. 1992). Follow this line, please.

m. Excluded evidence. Granted. No party shall refer to
proof that they don't have or that has been excluded.
n. "Speaking" objections. Granted. A word or phrase
will be sufficient.
Granted.
Counsel must avoid
o. Golden Rule.
arguments that ask the jury to "depart from neutrality
and to decide the case on the basis of personal interest
and bias." Lovett ex rel. Lovett v. Union Pacific R.R. Co.,
201F.3d1074, 1083 (8th Cir. 2000).

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So Ordered.
D.P. Marshall Jr!
United States District Judge

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