Pacific Radiation Oncology, LLC et al v. The Queen's Medical Center et al

Filing 725

ORDER RULING ON THE PARTIES' MOTIONS IN LIMINE re 630 Motion in Limine No. 2 to Exclude the Testimony of David Argue; re 631 Motion in Limine No. 3 to Exclude the Testimony of Richard O. Schmidt; re 632 Motion in Limine No. 5 to Exclude Confidential Information of the Cancer Center of Hawai'i and PRO Associates LLC; re 633 Motion in Limine No. 6 to Preclude Improper Use of Evidence Obtained During Discovery; re 634 Motion in Limine No. 1 to Exclude the Expert Testimony of Ron DiGiamo; re 638 Motion in Limine No. 7 to Exclude Inadmissible Evidence of Patient Complaints ; re 660 Motion for Joinder: This Court has construed the Joinders as joinders of simple agreement , rather than substantive joinders; re 661 Motion for Joinder: This Court has construed the Joinders as joinders of simple agreement, rather than substantive joinders; re 662 Motion for Joinder: This Court has construed the Joinders as joinders of simple agreement, rather than substantive joinders; re 664 Motion for Joinder: This Court has construed the Joinders as joinders of simple agreement, rather than substantive joinders; re 667 Motion in Limine: Redacted M otion in Limine to Exclude Testimony and Report of Jonathan Cunitz Or in the Alternative to Strike Portions of Said Report and Testimony;re 687 Sealed Motion : Unredacted Motion in Limine to Exclude Testimony and Report of Jonathan Cunitz Or, in the Alternative, to Strike Portions of Said Report and Testimony. Signed by JUDGE LESLIE E. KOBAYASHI on 01/11/2017. (eps, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CIVIL NO. 12-00064 LEK-KSC

PACIFIC RADIATION ONCOLOGY,
LLC, a Hawai`i Limited
Liability Corporation, et
al.,

)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
THE QUEEN’S MEDICAL CENTER, a )
)
Hawai`i Non-Profit
)
Corporation, et al.,
)
)
Defendants.
_____________________________ )

ORDER RULING ON THE PARTIES’ MOTIONS IN LIMINE
On September 12, 2016, Plaintiffs filed eight motions
in limine.

[Dkt. nos. 630-34, 636, 638, 640.]

2016, Defendants filed a motion in limine.
(redacted), 687 (unredacted).]

On November 1,

[Dkt. nos. 667

The Counterclaim Defendants filed

joinders in Plaintiffs’ Motions Limine Nos. 1, 2, 5, and 7
(collectively “Joinders”).

[Dkt. nos. 660-62, 664.]

This Court

has construed the Joinders as joinders of simple agreement,
rather than substantive joinders.

[EO: Court Order Denying

Motions to Strike, filed 12/7/16 (dkt. no. 701), at 2.]
On December 6, 2016, the motions in limine – with the
exception of Plaintiffs’ Motions in Limine Nos. 4 and 8, [dkt.
nos. 636, 640,] which are scheduled for hearing on February 7,
2017 – came on for hearing before this Court.

After careful

consideration of the motions in limine, supporting and opposing

memoranda, and the relevant legal authority, this Court HEREBY
RULES as follows.
I.

General Issues
The following issues each affect multiple motions in

limine:
A.

Free-Riding Defense
This Court granted summary judgment in favor of

Plaintiffs/Counterclaim Defendants as to Defendants/Counter
Claimants’ unfair methods of competition claim based on freeriding.

See Order Granting in Part & Denying in Part Plfts.’

Motion for Summary Judgment on the Counterclaim Filed Feb. 25,
2015 [Dkt. 175-1], 2014 WL 6749117, at *9 (D. Hawai`i Nov. 30,
2014).

However, this Court’s ruling does not preclude Defendants

from asserting that: 1) they had a legitimate business interest
in preventing free-riding; and 2) the prevention of free-riding
is a defense to Plaintiffs’ claims asserting that Defendants
engaged in anti-competitive conduct.

Cf. Eastman Kodak Co. v.

Image Tech. Servs., Inc., 504 U.S. 451, 485 n.33 (1992) (noting
that Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 55
(1977), and Monsanto Co. v. Spray–Rite Serv. Corp., 465 U.S. 752,
762-63 (1984), “accepted free-riding as a justification because
without restrictions a manufacturer would not be able to induce
competent and aggressive retailers to make the kind of investment
of capital and labor necessary to distribute the product”);
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Chicago Prof’l Sports Ltd. P’ship v. Nat’l Basketball Ass’n, 961
F.2d 667, 674 (7th Cir. 1992) (“Control of free-riding is
accordingly an accepted justification for cooperation.”).

To the

extent that any of Plaintiffs’ motions in limine ask this Court
to exclude categorically evidence and argument regarding freeriding as a defense, Plaintiffs’ motions in limine are DENIED.
B.

Off-Set
This Court CONCLUDES that the amount of additional

compensation that any Plaintiff received from the treatment of
patients at The Cancer Centers of Hawaii (“TCCH”) – after
Defendant The Queen’s Medical Center (“Queen’s” or “QMC”) adopted
the closed-department model for its radiation oncology
department, compared to the compensation that Plaintiff would
have received from the treatment of the same patients at Queen’s
– is relevant to the issue of Plaintiffs’ damages.

The

additional compensation that Plaintiffs received by treating
patients at TCCH off sets the physician fees that they lost once
they were not able to treat their patients at Queen’s.
Similarly, the compensation that Plaintiffs received from the
treatment of patients at TCCH prior to Queen’s adoption of the
closed-department model is relevant to show whether, and if so,
how much, Plaintiffs’ compensation from the treatment of patients
at TCCH changed after Queen’s adopted the closed-department
model.

To the extent that any of Plaintiffs’ motions in limine
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ask this Court to exclude evidence and argument regarding
Plaintiffs’ TCCH compensation for purposes of off-set,
Plaintiffs’ motions in limine are DENIED.
C.

The List Patients’ Medical Information
On November 23, 2016, this Court issued its Order

Ruling on Remaining Issues in Pending Appeals from the Magistrate
Judge’s Orders (“11/23/16 Order”).

2016 WL 6996982.

On

December 7, 2016, Defendants filed a motion for reconsideration
of the 11/23/16 Order, and this Court recently denied that
motion.

[Dkt. nos. 702, 724.]

Thus, even if de-identified, all

of the List Patients’ medical records, as well as any other
document containing any List Patient’s medical information, are
inadmissible, unless the proponents of the document establish
that they obtained the patient’s consent to use his or her
medical information in this litigation.

To the extent that any

of Plaintiffs’ motions in limine seek to exclude any of the List
Patients’ medical information, Plaintiffs’ motions in limine are
GRANTED, unless the proponent of the evidence establishes
consent.
To the extent that any party intends to introduce any
other patient’s medical information, this Court will address the
issues of consent and de-identification on a case-by-case basis.
This Court now turns to its rulings on the individual
motions in limine.
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II.

Plaintiffs’ Motion in Limine No. 1 to Exclude the Expert
Testimony of Ron DiGiamo [dkt. no. 634] (“MIL No. 1”)
This Court ADOPTS its inclination regarding MIL No. 1

as its ruling on the motion.

See Entering Order, filed 12/5/16

(dkt. no. 696) (“Inclinations EO”), at 1.]

Plaintiffs’ MIL No. 1

is therefore DENIED.
III. Plaintiffs’ Motion in Limine No. 2 to Exclude the
Testimony of David Argue [dkt. no. 630] (“MIL No. 2”)
Plaintiffs’ MIL No. 2 is GRANTED to the extent that it
seeks to exclude: 1) David Argue as an expert witness since
Defendants have represented that they will not offer Mr. Argue as
an expert; and 2) any testimony by Mr. Argue regarding the freeriding claim in the Counterclaim.

Plaintiffs’ MIL No. 2 is

DENIED to the extent that it seeks to exclude Mr. Argue’s
testimony on all other matters.

This Court RESERVES RULING on

relevancy, privilege, and other grounds until trial or until
otherwise moved upon by the parties.
Mr. Argue may testify as a summary witness pursuant to
Fed. R. Evid. 1006, which states:
The proponent may use a summary, chart, or
calculation to prove the content of voluminous
writings, recordings, or photographs that cannot
be conveniently examined in court. The proponent
must make the originals or duplicates available
for examination or copying, or both, by other
parties at a reasonable time and place. And the
court may order the proponent to produce them in
court.

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This Court FINDS that summary testimony will assist the jury and
will increase the efficiency of the trial.

However, the

documents that Mr. Argue summarizes must be admissible.

In other

words, prior to offering Mr. Argue’s testimony summarizing
documents, Defendants must be able to establish that the
documents are relevant and properly authenticated, and not
privileged by operation of rule, statute, or constitutional
provision.
This Court DIRECTS the parties to: 1) meet-and-confer
by January 17, 2017 to discuss which documents Mr. Argue will be
summarizing; and 2) submit letters briefs, not to exceed five
pages each, reporting on the outcome of the meeting.

The parties

must submit their letter briefs to this Court by January 19,
2017.

If they are able to reach an agreement regarding which

documents Mr. Argue will summarize, the parties may submit a
joint letter brief.
Plaintiffs’ MIL No. 2 is therefore GRANTED IN PART AND
DENIED IN PART.
IV.

Plaintiffs’ Motion in Limine No. 3 to Exclude the
Testimony of Richard O. Schmidt [dkt. no. 631] (“MIL No. 3”)
Plaintiffs’ MIL No. 3 is DENIED as to the portions of

Richard O. Schmidt, Jr., J.D., LL.M.’s report dated October 14,
2013 (“Schmidt Report”) that respond to the portions of the
September 2013 reports of Ronald B. Goodspeed, M.D., M.P.H.,

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F.A.C.P., F.A.C.P.E., and Thomas L. Greaney, J.D., that this
Court ruled Plaintiffs may present at trial.

See Order Granting

in Part & Denying in Part Defs.’ Motion to Exclude the Testimony
of Ronald B. Goodspeed and Defs.’ Motion to Exclude the Testimony
of Thomas L. Greaney, 2014 WL 7665074, at *3 (D. Hawai`i Dec. 31,
2014).

Thus, this Court CONCLUDES that, at trial, Defendants may

present Mr. Schmidt’s testimony regarding the following opinions
in the Schmidt Report:
-page 2, first complete paragraph, except for the sentence
beginning “This is also true for all” and ending “regarding
this matter,” and the sentence beginning “Thus, this was not
only” and ending “they are now challenging”;
-page 2, second complete paragraph;
-page 3, second complete paragraph;
-the paragraph that begins on page 3 and ends on page 4;
-page 4, first complete paragraph;
-page 5, the first sentence of the second complete paragraph; and
-page 6, the first sentence of the second complete paragraph.
As to these areas, this Court FINDS that Mr. Schmidt’s
specialized knowledge will help the jury to understand the
evidence in this case; his testimony will be based on sufficient
facts; his testimony will be the product of reliable principles
that he has reliably applied to the facts of this case; and his
opinions regarding these areas will not intrude upon this Court’s
duty to instruct the jury on the applicable law.

Further,

Mr. Schmidt’s testimony, as limited by this Order, will not be
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duplicative.

This Court therefore DENIES Plaintiffs’ MIL No. 3

as to these opinions.
Plaintiffs’ MIL No. 3 is GRANTED insofar as
Mr. Schmidt’s testimony regarding the other opinions in the
Schmidt Report is HEREBY EXCLUDED, for the reasons set forth in
this Court’s inclination regarding MIL No. 3.

[Inclinations EO

at 2.]
Plaintiffs’ MIL No. 3 is therefore GRANTED IN PART AND
DENIED IN PART.
V.

Plaintiffs’ Motion in Limine No. 5 to Exclude
Confidential Information of the Cancer Center of Hawai`i
and PRO Associates LLC [dkt. no. 632] (“MIL No. 5”)
Plaintiffs’ MIL No. 5 is DENIED to the extent that it

asks this Court to exclude categorically the evidence that
Defendants obtained through subpoenas they served upon non-party
members and business associates of TCCH.

To the extent

Plaintiffs allege that Defendants improperly obtained this
discovery, Plaintiffs waived any objection because they failed to
take timely action to prevent TCCH’s members and business
associates from disclosing the materials to Defendants.

It was

not enough that Plaintiffs put Defendants on notice of their
objections to similar discovery requests that Defendants served
on Plaintiffs; Plaintiffs also had to take specific action
regarding the subpoenas served on TCCH’s members and business
associates.

For example, Plaintiffs could have filed a motion to

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quash the subpoenas pursuant to Fed. R. Civ. P. 45(d)(3)(B) or a
motion for a protective order pursuant to Fed. R. Civ. P.
26(c)(1).

Or Plaintiffs could have moved for sanctions or other

relief within a reasonable amount of time after learning that
Defendants succeeded in obtaining responses to the subpoenas.
Plaintiffs themselves point out that Defendants used documents
they obtained as a result of the subpoenas as exhibits to docket
numbers 272 and 290.

[Mem. in Supp. of MIL No. 5 at 7.]

Defendants filed those documents in August 2014.
Plaintiffs’ MIL No. 5 is therefore DENIED, subject to
the proponent of the evidence described in MIL No. 5 laying the
proper foundation and addressing any privilege objection raised.
VI.

Plaintiffs’ Motion in Limine No. 6 to
Preclude Improper Use of Evidence Obtained
During Discovery [dkt. no. 633] (“MIL No. 6”)
Plaintiffs’ MIL No. 6 is GRANTED insofar as Defendants

may only present evidence supporting the decision to adopt the
closed-department model if the evidence was known to Defendants
at the time of the decision.

Put another way, information

supporting the closed-department model that was not known by
Defendants until after August 29, 2011 will not be permitted.
This Court, however, will allow Defendants to present evidence
obtained after August 29, 2011 if Defendants can establish that,
but for Plaintiffs’ actions to conceal the evidence, it would
have been known to Defendants at the time of the decision.

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Plaintiffs’ MIL No. 6 is DENIED in all other respects.
Plaintiffs’ MIL No. 6 is therefore GRANTED IN PART AND
DENIED IN PART.
VII. Plaintiffs’ Motion in Limine No. 7 to
Exclude Inadmissible Evidence of
Patient Complaints [dkt. no. 638] (“MIL No. 7”)
Plaintiffs’ MIL No. 7 is DENIED insofar as this Court
will allow Defendants to present evidence of patient complaints
in support of their defense to Plaintiffs’ claims, with a
limiting instruction that the testimony is not being offered for
the truth of the matters asserted.
would not constitute hearsay.

So limited, the evidence

Defendants are directed to draft

the limiting instruction and submit it to the Court by
January 17, 2017.

Plaintiffs are directed to submit a statement

by January 19, 2017 addressing: 1) whether they agree with the
language of Defendants’ draft instruction; and 2) if they do not
agree, their proposed instruction.
To the extent that Defendants also intend to use such
evidence to support their Counterclaim, this Court RESERVES
RULING on Plaintiffs’ MIL No. 7, subject to its review of the
parties’ letter briefs regarding the possible bifurcation of the
trial on the Counterclaim from the trial on Plaintiffs’ claims.

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VIII.

Defendants’ Motion in Limine to Exclude
Testimony and Report of Jonathan Cunitz or in
the Alternative to Strike Portions of Said Report
and Testimony [dkt. nos. 667, 687] (“Defendants’ MIL”)
Defendants’ MIL is DENIED because this Court CONCLUDES

that the September 30, 2016 report of Jonathan A. Cunitz, D.B.A.,
is a proper supplemental report, for the same reasons that this
Court set forth regarding Dr. Cunitz’s February 19, 2015
supplemental report.

See Order Granting in Part & Denying in

Part Defs.’ Motion to Strike the Feb. 19, 2016 Suppl. Report of
Jonathan Cunitz, 2015 WL 1631541 (D. Hawai`i Apr. 13, 2015).

The

arguments in Defendants’ MIL regarding the reliability of
Dr. Cunitz’s analysis are relevant to the weight of his
testimony, not the admissibility.

They are proper subjects for

Dr. Cunitz’s cross-examination at trial, but they do not warrant
exclusion of Dr. Cunitz’s testimony.

Defendants’ MIL is

therefore DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, January 11, 2017.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

PACIFIC RADIATION ONCOLOGY, LLC, ET AL. VS. THE QUEEN’S MEDICAL
CENTER, ET AL; CIVIL 12-00064 LEK-KSC; ORDER RULING ON THE
PARTIES’ MOTIONS IN LIMINE

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