Strickholm v. Evangelical Lutheran Good Samaritan Society et al

Filing 53

MEMORANDUM DESICION AND ORDER granting in part and denying in part 34 Motion in Limine; granting in part and denying in part 39 Motion in Limine; granting in part and denying in part 21 Motion in Limine; denying 27 Motion in Limine. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
Case No. 1:11-cv-00059-BLW
ERIC STRICKHOLM,
MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.
THE EVANGELICAL LUTHERAN
GOOD SAMARITAN SOCIETY d/b/a
GOOD SAMARITAN SOCIETY –
IDAHO FALLS VILLAGE, a corporation,
DefendantS.

Before the Court is one motion in limine filed by Plaintiff Eric Strickholm (Dkt.
27) and three motions in limine filed by Defendant The Evangelical Lutheran Good
Samaritan Society d/b/a Good Samaritan Society – Idaho Falls Village (Dkts. 21, 34 &
Dkt. 39). For the reasons set forth below, the Court will allow Good Samaritan’s latedisclosed witnesses to testify, but Good Samaritan shall have an opportunity to depose
them. Good Samaritan’s three motions in limine will be granted in part and denied in
part as detailed below.
ANALYSIS
1. Plaintiff’s Motions in Limine
Plaintiff Eric Strickholm moves to exclude the testimony of defense witnesses,
Michelle Neubauer, a CNA employed by Good Samaritan, Sue Campbell, an RN and the

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acting Director of Nursing Services for Good Samaritan, and Tasha Campbell, a CNA
and the current starting director and unit clerk at Good Samaritan. Strickholm argues that
the witnesses should be excluded because they were not disclosed until after the close of
discovery – the witnesses were not identified until January 24, 2013 in Defendant’s
Second Supplemental Answers to Plaintiff’s First Set of Interrogatories to Defendant.
Federal Rule of Civil Procedure 26(a)(1)(A)(i) requires a party to disclose the
name, and if known, the address and telephone number of each individual likely to have
discoverable information—along with the subjects of that information—that the
disclosing party may use to support its claims or defenses, unless the use would be solely
for impeachment.”
Rule 37(c) further provides, “[i]f a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is not allowed to use that information
or witness to supply evidence . . . at trial, unless the failure was substantially justified or
is harmless. In addition to or instead of this sanction, the court on motion or 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).”
Good Samaritan explains that Ms. Neubauer provided care to the decedent, Alma
Strickholm, but her signature could only be found in two places in Good Samaritan’s
chart, and her signature was difficult to read. In its Initial Disclosures, Good Samaritan
generally disclosed that all employees who provided care to Mrs. Strickholm had
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knowledge of the care provided, and it provided Strickholm with a copy of Mrs.
Strickholm’s chart. Good Samaritan, however, did not specifically list Ms. Neubauer
given the inadvertent oversight of identifying her signature.
Based on these facts, the Court will allow Ms. Neubauer to testify but Strickholm
will be given the opportunity to depose Ms. Neubauer if he chooses to do so. Strickholm
had equal access to Mrs. Strickholm’s chart and Ms. Neubauer’s name. It does not
appear that the omission of Ms. Neubauer ‘s name from the witness list was intentional.
To ameliorate any potential prejudice to Strickholm, however, he must be given the
opportunity to depose her before trial.
The Court will also allow Tasha Campbell to testify but with the same caveat –
Strickholm must be given another opportunity to depose Ms. Campbell if he so elects
Apparently the only deposition Strickholm elected to take was a 30(b)(6) Deposition of
Good Samaritan that took place on January 21, 2013 – long after the close of discovery.
Good Samaritan identified four individuals to address these issues including Tasha
Campbell and indicated “Ms. Campbell is a CNA at the facility who is currently acting as
a staffing coordinator and unit clerk. She is prepared to testify regarding the medical
records and the care provided to Alma Strickholm during her stay in June and July 2008,
and specifically with regard to care provided by CNA’s and records related to instructing
CNAs what cares need to be provided.” Email sent to Plaintiff’s counsel on January 21,
2013, Ex. D to Duke Aff. Although Strickholm was given an opportunity to depose Ms.
Campbell, he was only notified the day of the deposition that she would be one of the
four individuals made available to testify. Because Ms. Campbell was not identified until
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after the close of discovery, the Court will allow Strickholm another opportunity to
depose Ms. Campbell.
Good Samaritan says that they do not intend to call Sue Campbell, so her late
disclosure is not at issue.
2. Defendant’s Motions in Limine
A. DHW Surveys, Citations, and Monitoring Lists
Good Samaritan asks the Court for an order precluding Strickholm, his witnesses,
and his attorney from offering any evidence, making any comment, or asking any
question relating to (1) any Department of Health and Welfare surveys, complaint
investigations or citations relating to Good Samaritan; and (2) any nursing home
monitoring lists or websites. Good Samaritan maintains that the documents are irrelevant
to the extent they do not involve care actually provided to Ms. Strickholm, constitute
impermissible character evidence, are prejudicial and contain inadmissible hearsay.
Good Samaritan also argues that the should be excluded because they were not disclosed
in discovery.
Strickholm responds that he does not intend to introduce the surveys, citations, and
monitoring lists and websites in his case in chief, but argues that he should not be
absolutely precluded from using such documents for impeachment purposes. Given that
Strickholm does not introduce such documents in his case in chief, the Court agrees that
ruling on their admissibility should be reserved for trial. “[I]n some instances it is best to
defer rulings until trial, [when] decisions can be better informed by the context,
foundation, and relevance of the contested evidence within the framework of the trial as a

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whole.” Casares v. Bernal, 790 F.Supp.2d 769, 775 (N.D.Ill.2011) (citation omitted).
Given that the Court does not have copies of these documents and does not know in what
context they may be introduced if they are introduced at all, the Court will better
positioned during trial to evaluate the document’s relevance or prejudicial effect.
If Strickholm does attempt to introduce the documents as exhibits at trial, he will
have to lay an adequate foundation to establish that the documents fall within the
business records exception to the hearsay rule. Fed.R.Evid. 803(6). “The records
introduced can be records of an entity not a party to the proceedings, and the foundation
for their receipt can be made by a witness who is not an employee of the preparer.” Ortho
Pharmaceutical Corp. v. Cosprophar, Inc., 828 F.Supp. 1114, 1119 (S.D.N.Y. 1993)
(citing Saks Int'l, Inc. v. M/V “Export Champion”, 817 F.2d 1011, 1013 (2d Cir.1987)).
But the “with knowledge” requirement of Rule 803(6) nonetheless dictates that “the court
must be able to determine from some appropriate source – from the document itself, or
from external evidence (either direct or circumstantial or both), or from some
combination of these things—that the foundational element has been met.” Id. (internal
quotation marks omitted).
The Court also notes that Rule 703 allows an expert to rely on inadmissible facts
or data in reaching an opinion or inference if the facts are of a type “reasonably relied on
by experts in the particular field.” Fed.R.Evid. 703; United v. Gonzales, 307 F.3d 906,
910 (9th Cir. 2002). But it does not allow the proponent of expert testimony to use the
expert as a conduit for that party to introduce otherwise inadmissible facts or data –
“unless the court determines that their probative value in assisting the jury to evaluate the
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expert's opinion substantially outweighs their prejudicial effect.” Fed.R.Evid. 703. See
also United States v. 0.59 Acres of Land, 109 F.3d 1493 (9th Cir. 1997) (error to admit
hearsay offered as the basis of an expert opinion, without a limiting instruction)
The Court also cautions that experts may not offer testimony beyond what they
expressed in their reports or depositions or consider evidence not considered at the time
they drafted or supplemented their reports or testified at their depositions. An expert,
however, may also base her opinion on facts or data learned during the presentation of
evidence at trial. Fed.R.Evid. 703, Advisory Committee Note (noting that an expert may
base her opinion on facts, data or opinions presented at trial – as by the familiar
hypothetical question or by having the expert attend the trial and hear the testimony
establishing the facts, data, and opinions relied on).
B. Duplicative Wrongful Death Claims
Good Samaritan next seeks to exclude Counts 2 through 4 of Strickholm’s
Complaint, which Good Samaritan alleges contains duplicative wrongful death claims.
The Court will not exclude Strickholm’s wrongful death claims because they are
duplicative. As Good Samaritan acknowledges, Strickholm asserts different theories for
his wrongful death allegations. Although there may be some overlap of facts and
statutes, this does not necessarily make them redundant. Rule 8(e)(2) of the Federal
Rules of Civil Procedure provides that “[a] party may set forth two or more statements of
a claim or defense alternatively or hypothetically, either in one count or defense or in
separate counts or defenses.” Thus, Strickholm is allowed to assert multiple legal theories
even if he is entitled to only one recovery for the same injury. To counter any risk for a
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double recovery, the Court will instruct the jury that Strickholm is entitled to only one
recovery resulting from the death of his mother and the special verdict form will only
include one line for damages. So for practical purposes Strickholm’s multiple wrongful
death claims will merge into one, but he will be allowed to present evidence on all legal
theories. And if justified by the evidence, the Court will instruct the jury on all theories.
With respect to Good Samaritan’s argument that there is no private right of action
under the Federal Nursing Home Reform Act or its regulations codified at 42 C.F.R.
483.25, the Court has already determined that the applicable standard of care cannot be
lower than the standard of care imposed on nursing homes by federal and state law
regulations. Hayward v. Jack's Pharmacy Inc.,115 P.3d 713, 719 (Idaho 2005)(“[I]t
follows that the standard of care for a physician treating a patient in a nursing home
would be governed by [the federal regulations]). Therefore, to the extent Good
Samaritan’s request to exclude Strickholm’s negligence per se contradicts the Court’s
prior ruling, it is denied.
The Court has an even more basic concern with Good Samaritan’s motion: it is
essentially a motion to dismiss or strike, not a motion in limine. A true motion in limine
would seek a ruling in advance of trial on whether certain evidence would be admissible
to prove Good Samaritan’s wrongful death claims. United States v. Heller, 551 F.3d
1108, 1111 (9th Cir. 2009); Fort Hall Landowners Alliance, Inc. v. Bureau of Indian
Affairs, 2007 WL 2187256, *1 (D.Idaho July 16, 2007). “Motions in limine are wellestablished devices that streamline trials and settle evidentiary disputes in advance, so
that trials are not interrupted mid-course for the consideration of lengthy and complex
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evidentiary issues.” United States v. Tokash, 282 F.3d 962, 968 (7th Cir. 2002); see also
Luce v. United States, 469 U.S. 38, 40 n. 2 (1984).
In light of their limited purpose, motions in limine should not be used to resolve
whether certain claims should survive. Rather, parties should target their arguments to
demonstrating why certain items or categories of evidence should (or should not) be
introduced at trial, and direct the trial judge to specific evidence in the record that would
favor or disfavor the introduction of those particular items or categories of evidence. U.S.
ex rel. El–Amin v. George Washington Univ., 533 F.Supp.2d 12, 19 (D.D.C.2008).
Here, however, Good Samaritan asks to exclude entire claims because they are
duplicative or because no private right of action exists under the federal regulation; it
does not seek to exclude evidence relating to those claims. That is a motion to dismiss.
The deadline for dispositive motions has passed. For this reason, in addition to the
substantive analysis set forth above, the Court will deny this part of Good Samaritan's
motion.
Any redundancies that may arise from the multiple wrongful death claims, or
disputes regarding the applicable law, can be resolved or clarified through the jury
instructions.
C. Evidence Regarding Staffing and Training
Good Samaritan seeks to exclude any opinion testimony from Strickholm’s
experts regarding staffing and training at Good Samaritan because Strickholm failed to
disclose any opinions relating to staffing and training.

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As already noted, the parties’ experts may not offer testimony beyond what they
expressed in their reports or depositions or consider evidence not considered at the time
they drafted or supplemented their reports or testified at their depositions, but they may
base their opinions on testimony presented at trial. Fed.R.Evid. 703, Advisory Committee
Note. Strickholm will therefore be allowed to elicit testimony at trial from Good
Samaritan employees regarding the training and supervision they received by Good
Samaritan’s management, and Strickholm’s experts may opine whether the training they
said they received met the applicable standard of care.
Nor will the Court necessarily exclude expert opinion testimony regarding staffing
and training because insufficient evidence exists for this claim. A motion in limine is not
a “vehicle for a party to ask the Court to weigh the sufficiency of the evidence.” Bowers
v. Nat'l Collegiate Athletic Ass'n, 563 F.Supp.2d 508, 532 (D.N.J.2008). At this juncture,
the Court has no idea what the evidence on this claim will be. Therefore, the Court
cannot possibly “exclude” the negligent supervision and training claim prior to trial.
D. Medical Expert’s Testimony Regarding the Development of Pressure
Ulcers at Her Facility.
Dr. Inna Sheyner recently testified at her deposition that she has not had any
resident develop a pressure ulcer at her skilled nursing facility during her twelve-year
tenure. See Duke Aff., Ex. E, pp. 92:24-93:22. Good Samaritan requests that this line of
testimony be excluded as irrelevant, not timely disclosed, and unduly prejudicial.
The Court finds the testimony was timely disclosed. Good Samaritan elicited this
testimony during its deposition of Dr. Sheyner when probing her experience. She did not

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offer a new opinion with this testimony – she simply related her own experience in
response to a question.
The Court, however, will reserve ruling on this issue until trial. That said, the
Court could envision this testimony being relevant to provide a context to Dr. Sheyner’s
expert opinion and experience. Experts’ experiences and observations in their own
practice can certainly inform their opinions. And it is possible that any prejudice arising
from this testimony could be mitigated through a limiting instruction if the Court allows
its admission.
E. Photographs of Alma Strickholm Not Previously Disclosed
Good Samaritan next argues that any photographs of Alma Strickholm or her
injuries that were not produced during discovery should be excluded. Strickholm
responds that he does not intend to introduce photographs of Ms. Strickholm’s injuries
that were not previously disclosed. Instead, he wants to use a photograph of Ms.
Strickholm as an illustrative exhibit to show what she looked like. So long as Strickholm
does not seek to offer countless photographs of Ms. Strickholm to show what she looked
like, the Court will allow such a photograph to be used as an illustrative exhibit.
F. Monica Bott’s Testimony Regarding Medical Causation
According to Good Samaritan, Monica Bott, who is a registered nurse, may only
testify to the standard of care and not to the medical cause of Alma Strickholm’s pressure
ulcer and death. The Court agrees.
In Perry v. Magic Valley Regional Med. Center, the hospital argued that trial court
erroneously allowing the nursing expert to testify as to medical causation. The Idaho

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Supreme Court found that the trial court did not abuse its discretion in allowing a nurse’s
expert testimony because the nursing expert “did not testify as to causation.” 995 P.2d
816, 820 (Idaho 2000). While the Idaho Supreme Court did not expressly hold that a
nursing expert may never testify to causation, this language suggest a nurse should not be
allowed to testify regarding medical causation..
In addition, other courts have found that nurses are not qualified to attest causes of
medical problems because it is outside their scope of practice. See, e.g., Vaughn v.
Mississippi Baptist Medical Center, 20 So.3d 645, 652 (Miss. 2009) (“This is in keeping
with the majority rule that nursing experts cannot opine as to medical
causation.”)(collecting cases). The Court agrees with the analysis in these cases.
Therefore, the nursing experts who testify in this case may not testify to causation. A
nurse, however, may testify regarding her observations and experiences without
providing an opinion regarding causation. Likewise, other witnesses without a medical
degree may not testify as to causation but they may relay their own experiences and
observations.
G. Designation of Deposition Testimony
If a party intends to use deposition testimony – except for purposes of using an
admission by a party opponent or impeaching the prior inconsistent statement of a
testifying witness – the party offering the deposition testimony must designate by page
and line the testimony the party intends to offer 36 hours in advance, so that the other
party shall have sufficient time to submit their objections (if any) to the use of the
testimony and to provide counter-designations.
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Strickholm accuses Good Samaritan of wanting “to be ‘tipped off’ if its corporate
deposition is going to be used for impeachment purposes.” Pl’s Resp. to Def’s General
Mot. in limine at 5, Dkt. 38. Good Samaritan, however, specifically excluded use of
depositions for impeachment purposes from its requested advanced designation
requirement, so this should not be an issue.
H. Remaining Motions in Limine
Good Samaritan also argues that evidence concerning the following topics should
be excluded: (1) special damages; (2) offers of compromise; (3) insurance; (4) Good
Samaritan’s motions in limine; (5) the cost of litigation; (6) written curriculum vitae of
any expert; (7) previous lawsuits; and (8) other lawsuits or claims against Good
Samaritan. Strickholm says he does not intend to offer any evidence regarding these
topics. Therefore, evidence regarding these topics – from either party – shall be
excluded. The Court reserves the right to modify its ruling at trial, if necessary.
I. Reference to the Number of Attorneys Representing the Parties and
Where Those Attorneys Are From
The Court will prohibit any reference by the parties to the number of attorneys
representing any other party and where those attorneys are from. During voir dire, the
Court will identify the attorneys and their law firms to determine whether any prospective
jurors have a conflict of interest that would impair their impartiality.
J. Requests to Jurors to Place Themselves in Plaintiff’s Position
Good Samaritan asks that Strickholm’s counsel refrain from asking the jurors to
place themselves in the position of the plaintiffs. This is the so-called “golden rule”

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argument. “The ‘Golden rule’ argument is uniformly prohibited where it is used to
inflame the jury and encourage an increased damage award.” Lopez v. Langer, 761 P.2d
1225, 1230 (Idaho 1988). Thus, both parties should refrain from using the golden-rule
argument to inflame the jury. Both sides, however, may appeal, in a moderate manner, to
a jury’s common sense by asking them to ascertain the reasonableness of either party’s
actions. Id.
K. Exclusion of Witnesses
The Court will exclude all witnesses who are not parties to this action from the
courtroom with the exception of expert witnesses.
ORDER
IT IS ORDERED THAT:
1.

Plaintiff’s Motion in Limine (Dkt. 27) is DENIED. The late-disclosed

witnesses will be allowed to testify, but Plaintiff will be given an opportunity to depose
them.
2.

Defendant’s Motions in Limine (Dkts. 21, 34 & Dkt. 39) are GRANTED in

part and DENIED in part in accordance with this decision.

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DATED: February 28, 2013

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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