Thomas v. Wexford Health Services et al

Filing 160

ORDER GRANTING IN PART, DENYING IN PART, AND TAKING UNDER ADVISEMENT IN PART 145 MOTION in Limine filed by John Trost, Steve Ritz; GRANTING IN PART AND DENYING IN PART 148 MOTION in Limine filed by Bishara Thomas; and GRANTING IN PART AND TAKING UNDER ADVISEMENT IN PART 153 MOTION in Limine filed by Jeff Hutchinson. Signed by Magistrate Judge Reona J. Daly on 4/13/2018. (nmf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BISHARA THOMAS,
Plaintiff,
v.
STEVE RITZ, M.D., JOHN TROST, M.D.,
and JACQUELINE LASHBROOK,
Defendants.

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Case No. 3:15-cv-108-RJD

ORDER
DALY, Magistrate Judge:
Before the Court are the motions in limine filed by Plaintiff and Defendants (Docs. 145,
148, and 153). The Court has reviewed the motions, any responses thereto, and sets forth its
rulings as follows:
Motions in Limine filed by Defendants Trost and Ritz (Doc. 145)
1. Defendants seek to bar evidence of any application for insurance, insurance policy, or
statement, evidence, or testimony concerning whether Defendants may have insurance in
connection with Plaintiff’s claim, or any reference to any coverage dispute or indemnity
agreement between any of the parties to this action. Plaintiff indicates he has no objection
unless Defendants testify regarding their worth or ability to pay a judgment or defend this
suit.

The Court GRANTS Defendants’ motion to bar such evidence; however, if

Defendants open the door with related testimony, Plaintiff may raise the issue of insurance
coverage at that time.
2. Defendants seek to bar evidence of any statement, testimony or argument about Wexford
Health Sources, Inc. being a for-profit corporation or a “big” corporation or company, or
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“evil” or a “bad” company. Plaintiff indicates he will not refer to Wexford as a “big,”
“evil,” or “bad” company unless Defendants open the door. However, Plaintiff contends
it is relevant to refer to Wexford as a for-profit corporation. The Court disagrees.
Defendants’ Motion is GRANTED. Plaintiff may explain that Wexford is a corporation
that contracts with the Illinois Department of Corrections (“IDOC”) to provide health care
services to inmates and that Dr. Ritz and Dr. Trost were employees of Wexford, but it is
irrelevant to reference its “for-profit” status.
3. Defendants seek to bar evidence of any medical treatment provided to other inmates.
Plaintiff has no objection. Defendants’ Motion is GRANTED.
4. Defendants seek to bar evidence of any statements purportedly made by non-party medical
providers that are not reflected in the medical records, arguing such statements are
inadmissible hearsay. Plaintiff has no objection unless Defendants open the door to such
testimony. The Motion is GRANTED unless Defendants open the door on the topic.
5. Defendants seek to bar evidence of any documents, testimony, or other evidence
concerning allegations, investigations, claims, discipline, lawsuits, lawsuit settlements,
“other bad acts,” or other matters asserted against Defendant Trost or Ritz, by any other
person or entity, including, but not limited to, any other patient or state medical board.
Plaintiff states that he has not identified any other lawsuit that would be admissible under
FRE 404(b), but such evidence may be proper impeachment. Plaintiff further indicates
that should Defendants open the door, this evidence may be relevant and admissible. The
Court GRANTS Defendants’ motion to bar such evidence finding it would be more
prejudicial than probative, unless, however, Defendants open the door on the topic.
6. Defendants seek to prohibit Plaintiff from offering medical or other technical literature to
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the jury because such literature is generally prohibited as hearsay. Plaintiff contends that
he seeks to use statements from Guidelines for Management of Hiatal Hernia published by
the Society of American Gastrointestinal and Endoscopic Surgeons, and a statement from
the medical journal article entitled “Minimal Endoscopic Changes in Non-Erosive Refluex
Disease,” published by Ferreira, et al.

This Motion is TAKEN UNDER

ADVISEMENT. The Court will issue its ruling once it is clear how Plaintiff intends to
introduce the literature.
7. Defendants seek to bar introduction of evidence of negligence, a standard of care, or
hypotheticals concerning other available treatments, asserting any such references are
irrelevant to the issue of deliberate indifference and will only serve to confuse the jury.
Plaintiff contends that evidence of the standard of care is relevant and he should be allowed
to introduce evidence of the same, as well as possible alternative treatments. The Motion
is GRANTED IN PART AND DENIED IN PART. Plaintiff shall not be allowed to
introduce evidence of negligence or reference a “standard of care” as presentation of such
issues are likely to confuse the jury and are irrelevant to the claim of deliberate
indifference. However, evidence of alternative treatments may be introduced.
8. Defendants seek to bar testimony of witnesses who are not physicians, nurses, or mental
health professionals, including Plaintiff, which requires specialized knowledge, education,
or training. Plaintiff states that he intends to offer permissible lay opinion testimony
regarding the pain he has suffered and continues to suffer, and that the treatment provided
has been ineffective in reducing or stopping the pain. Defendants’ Motion is GRANTED
IN PART AND DENIED IN PART. Plaintiff and his witnesses may testify as to their
own personal experiences and observations, but Plaintiff and his witnesses shall be
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prohibited from testifying as to the causation of any specific medical diagnosis. See Gil v.
Reed, 381 F.3d 649, 659 (7th Cir. 2004) (“no expert testimony is needed when the
symptoms exhibited by the plaintiff are not beyond a layperson's grasp”).
9. Defendants seek to bar evidence of grievances, complaints, affidavits, letters, and other
documents demonstrating Plaintiff’s intent to commence this action and/or descriptions of
the medical care at issue. Defendants contend such documents are inadmissible hearsay.
Plaintiff asserts that grievance-related exhibits are relevant and are not being offered to
show the truth of the matters asserted.

This Motion is TAKEN UNDER

ADVISEMENT. The Court generally finds that grievances are inadmissible hearsay.
However, such records may be admissible if they are relevant and are not being offered for
the truth of the matter asserted.
10. Defendants seek to exclude any documents, testimony, or other evidence concerning
Trost’s termination from Wexford. Plaintiff contends that such information is relevant
because Trost was terminated, in part, because he failed to properly document patient
referrals in collegial, which occurred in this case. Defendants’ Motion is GRANTED.
This evidence is more prejudicial than probative and Plaintiff will be allowed to introduce
evidence of the issues with Dr. Trost’s referrals without introducing evidence of Trost’s
termination.
11. Defendants seek to bar Plaintiff from offering into evidence any IDOC or Menard
directives, policies, or protocols and/or any Wexford policies or protocols regarding
medical treatment. Plaintiff contends such evidence is relevant because it can establish
that Defendants acted with deliberate indifference. This Motion is TAKEN UNDER
ADVISEMENT. The Court shall only issue a final ruling after it is clear what policies,
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protocols, or directives Plaintiff may seek to introduce.
Motions in Limine filed by Plaintiff Bishara Thomas (Doc. 148)
1. Motion in Limine to Exclude Plaintiff’s Prior Convictions
Plaintiff moves to exclude any evidence or testimony regarding the nature of his criminal
offenses, including the length of his sentence. Defendants oppose Plaintiff’s motion, arguing that
Plaintiff’s convictions are admissible under Federal Rule of Evidence 609.
Federal Rule of Evidence 609(a)(1)(A) provides that evidence of a criminal conviction
(punishable by death or by imprisonment of more than one year) may be admitted for the purposes
of attacking a witness’s character for truthfulness. This provision is subject to Federal Rule of
Evidence 403, which states that “[t]he 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.”
The Court agrees with Plaintiff that the probative value of his criminal convictions is
substantially outweighed by the danger of unfair prejudice. Plaintiff’s motion in limine is
therefore GRANTED IN PART AND DENIED IN PART.

Defendants may introduce

evidence that Plaintiff has been convicted of a felony and is incarcerated with the Illinois
Department of Corrections for an extended period of time. Defendants shall not introduce
evidence identifying the specific crimes for which Plaintiff is incarcerated.
2. Motion in Limine to Exclude Medical Records Not Relevant to the Claim
Plaintiff seeks to prohibit Defendants from presenting any evidence of his prior medical
records not relevant to his complaints set forth in his First Amended Complaint. Defendants
object, asserting that the absence of complaints of abdominal distress or stomach issues
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documented in the medical records is directly relevant to the disputed issues of this lawsuit. The
Court agrees. Plaintiff’s Motion is DENIED.
3. Motion in Limine to Exclude Disciplinary Records
Defendants have no objection to this motion and it is GRANTED.
4. Motion in Limine to Exclude Evidence of All Unrelated Grievances Filed by Plaintiff
Defendants have no objection to this motion and it is GRANTED.
5. Motion in Limine to Preclude the Testimony of Roderick L. Matticks, M.D., Arthur D.
Funk, M.D., Michael Moldenhauer, N.P., Rashida Pollion, N.P., Mohammad Siddiqui,
M.D., John Trost, M.D., and Stephen Ritz, D.O.
Plaintiff asks that the Court preclude the testimony of the above individuals as Defendants
Trost and Ritz failed to disclose these witnesses pursuant to Rule 26(a)(1) or (2). Plaintiff
contends that exclusion is warranted under Rule 37(c) because there is no reasonable justification
for Defendants’ failure to make witness disclosures and he is still unaware of the subject matter of
the testimony Defendants seek to elicit.
First, Defendants correctly point out that this action is exempt from the initial disclosure
requirements of Rule 26(a). Further, Ritz and Trost have indicated that they will not be calling
Matticks, Funk, Moldenhauer, or Pollion at trial, and Siddiqui is only going to be called on an
evidentiary basis for purposes of injunctive relief. With regard to Ritz and Trost, Defendants
explain that they are not retained experts in this matter and, as named defendants in this action,
have been produced for deposition. Accordingly, Plaintiff should not be surprised by their
testimony at trial. Because Ritz and Trost are defendants in this action and provided treatment, or
rendered treatment decisions with regard to Plaintiff, they shall be allowed to testify as to their
treatment of Plaintiff’s complaints and medical conditions and the basis for their treatment
decisions. However, they shall not be allowed to provide expert opinions concerning Plaintiff’s
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medical conditions or the treatment thereof. As such, Plaintiff’s Motion is GRANTED IN
PART AND DENIED IN PART.
6. Motion in Limine to have Plaintiff be Unshackled, in Civilian Clothes, and Distanced from
Illinois Department of Corrections Staff
Plaintiff seeks to be allowed to be unshackled and in civilian clothes, and separated a
reasonable distance from IDOC staff while in the presence of the jury to minimize any prejudice
that the attire and guarding may cause. Plaintiff’s Motion is GRANTED IN PART AND
DENIED IN PART. Plaintiff shall be permitted to wear civilian clothing during the course of
the trial. Security permitting, he will also be unhand-cuffed during the course of the trial and any
leg shackles will be obstructed from the view of the jury. However, Plaintiff’s request for an
order setting forth the placement of security personnel is denied. During the course of the trial,
the Court will coordinate with the U.S. Marshals, the IDOC, and Plaintiff’s counsel to set forth a
suitable arrangement.
Motions in Limine filed by Defendant Lashbrook (Doc. 153)
1. Motion in Limine to Prohibit Plaintiff from Offering Evidence or Testimony Referencing
any “Golden Rule” Appeal
A “golden rule” argument is “one which the jury is asked to put itself in the plaintiff's
position[.]” Spray-Rite Serv. Corp. v. Monsanto Co., 684 F.2d 1226, 1246 (7th Cir. 1982).
Courts have consistently held that golden rule arguments are improper because they ask jurors to
“depart from neutrality and to decide the case on the basis of personal interest and bias rather than
on the evidence.” Id. (quoting Security Barge Lines, Inc., 585 F.2d 732, 741 (5th Cir. 1978)).
Examples of golden rule arguments include:
(1) to ask jurors how much the loss of the use of their legs would mean to them, Leathers v.
Gen. Motors Corp., 546 F.2d 1083, 1085–86 (4th Cir.1976); (2) to tell jurors “do unto
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others as you would have them do unto you,” Klotz v. Sears, Roebuck & Co., 267 F.2d 53,
54 (7th Cir.1959); or (3) to tell jurors, in a reverse golden rule argument, “I don't want to
ask you to place yourself in [the plaintiff's] position,” Loose v. Offshore Navigation, Inc.,
670 F.2d 493, 496 (5th Cir.1982).
Caudle v. D.C., 707 F.3d 354, 359 (D.C. Cir. 2013). Because such arguments are
improper, Defendants’ Motion is GRANTED.
2. Motion in Limine Prohibiting Plaintiff from Offering Evidence or Testimony Referencing
Illinois Administrative Code and Illinois Department of Corrections Administrative or
Institutional Directives
For reasons stated above, this Motion is TAKEN UNDER ADVISEMENT. The Court
shall only issue a final ruling after it is clear what policies, protocols, or directives Plaintiff may
seek to introduce.
3. Motion in Limine Barring Plaintiff from Offering Inadmissible Hearsay Statements of any
Mental Health Conditions
Any such evidence or testimony does not appear to be relevant to this case, therefore,
Defendant’s Motion is GRANTED.
Conclusion
For the foregoing reasons, Defendant Trost and Ritz’s Motions in Limine (Doc. 145) are
GRANTED IN PART, DENIED IN PART, AND TAKEN UNDER ADVISEMENT IN
PART, Plaintiff’s Motions in Limine (Doc. 148) are GRANTED IN PART AND DENIED IN
PART, and Defendant Lashbrook’s Motions in Limine are GRANTED IN PART AND TAKEN
UNDER ADVISEMENT IN PART.
IT IS SO ORDERED.
DATED: April 13, 2018
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s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge

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