TOOMBS v. LEMMON et al

Filing 107

ENTRY DISCUSSING MOTION IN LIMINE TO EXCLUDE POSTOVERATIVE STATEMENTS AND MENTAL HEALTH EVIDENCE - Toombs's motion in limine regarding his somatization disorder and post-operative complaints of pain (Filing No. 76) is granted in part and denied in part without prejudice. **See Order** Signed by Judge Tanya Walton Pratt on 7/20/2016. (JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

TONY TOOMBS,
Plaintiff,
vs.
DR. DR. PERSON,
Defendant.

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Case No. 1:14-cv-480-TWP-DKL

ENTRY DISCUSSING MOTION IN LIMINE TO EXCLUDE
POSTOVERATIVE STATEMENTS AND MENTAL HEALTH EVIDENCE
This matter is before the Court on Plaintiff Terry Toombs’s Motion in Limine to Exclude
Postoperative Statements and Mental Health Evidence. (Filing No. 76). This action is set for trial
on Toombs’s claim that Defendant Dr. Person was deliberately indifferent by failing to treat his
abdominal pain and failing to order gall bladder removal surgery for approximately a year after an
ultrasound indicated that he had a gall stone. Toombs seeks a ruling in limine excluding testimony
regarding his mental health conditions and his post-operative statements regarding his abdominal
pain. For the reasons stated below, Toombs’s motion in limine is granted in part and denied in
part without prejudice. At trial, when the record is more fully developed, Toombs may seek to
renew his objections to this evidence.
I. LEGAL STANDARD
The Court excludes evidence on a motion in limine only if the evidence clearly is not
admissible for any purpose. See Hawthorne Partners v. AT&T Techs., Inc., 831 F. Supp. 1398,
1400 (N.D. Ill. 1993). Unless evidence meets this exacting standard, “evidentiary rulings should
be deferred until trial so that questions of foundation, relevancy and potential prejudice may be

resolved in proper context.” Id. at 1400. Moreover, denial of a motion in limine does not
necessarily mean that all evidence contemplated by the motion is admissible; rather, it only means
that, at the pretrial stage, the Court is unable to determine whether the evidence should be excluded.
Id. at 1401.
II. DISCUSSION
Toombs argues that evidence related to his mental health issues and his ongoing complaints
of pain is not relevant to whether Dr. Person was deliberately indifferent to his abdominal pain and
the admission of such evidence would unnecessarily confuse the jury.
A. Somatization Disorder
Toombs first argues that evidence regarding his mental health, specifically his diagnosis
with somatization disorder, 1 must be excluded because it is irrelevant and its substantial prejudicial
effect outweighs its probative value. He asserts that a somatization disorder does not make it more
or less likely that Dr. Person was deliberately indifferent to his medical needs by delaying the
removal of his gall bladder. Toombs goes on to argue that evidence of this mental health issue to
show that he exaggerated the severity of his symptoms would be improper. In response, Dr. Person
contends that evidence of Toombs’s somatization disorder is directly related to his continuing
complaints of abdominal pain, regardless of the medical treatment he received.
Evidence is relevant if it has “any tendency to make the existence of a fact that is of
consequence to the determination of the action more or less probable than it would be without the

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Somatization disorder is a psychosomatic illness, that is, physical distress of psychological origin. Carradine v.
Barnhart, 360 F.3d 751, 754 (7th Cir. 2004) (citing 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.07; Stedman's Medical
Dictionary 528 (27th ed.2000); Cass v. Shalala, 8 F.3d 552, 554 (7th Cir.1993); Latham v. Shalala, 36 F.3d 482, 484
(5th Cir. 1994); Vaughn v. Nissan Motor Corp. in U.S.A., Inc., 77 F.3d 736, 737 (4th Cir. 1996); Easter v. Bowen, 867
F.2d 1128, 1129-30 (8th Cir. 1989)).

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evidence.” Fed.R.Evid. 401. To prevail on his Eighth Amendment deliberate indifference medical
claim, Toombs must demonstrate: (1) he suffered from an objectively serious medical condition;
and (2) Dr. Person knew about the condition and the substantial risk of harm it posed, but
disregarded that risk. Farmer v. Brennan, 511 U.S. 825, 837 (1994); Pittman ex rel. Hamilton v.
County of Madison, Ill., 746 F.3d 766, 775 (7th Cir. 2014). Deliberate indifference is a subjective
standard. Johnson v. Snyder, 444 F.3d 579, 585 (7th Cir. 2006). To demonstrate deliberate
indifference, a plaintiff must show that the defendant “acted with a sufficiently culpable state of
mind,” something akin to recklessness. Id.
Here, the issue for trial is whether Dr. Person was deliberately indifferent to Toombs’s
complaints of abdominal pain. Because a deliberate indifference claim focuses on the subjective
state of mind of the defendant, evidence of Toombs’s somatization disorder is relevant to the issue
of whether Dr. Person was deliberately indifferent, but only if Dr. Person knew about the
somatization disorder and made treatment decisions reasonably based on this knowledge. The
Court must wait to see if such evidence is introduced at trial before deciding the relevance of this
evidence. Further, there is no evidence to show whether Dr. Person’s knowledge of this condition,
if any, affected his treatment decisions. The Court therefore cannot determine at this time the
relevance of Toombs’s somatization disorder to the issue of whether Dr. Person was deliberately
indifferent to his pain.
In addition to its potential relevance to Dr. Person’s state of mind, evidence of Toombs’s
somatization disorder may be relevant to the question of whether Dr. Person’s actions – if they are
found to be deliberately indifferent – caused the prolonged pain about which Toombs complained.
Again, a determination on this complicated issue cannot be made until the trial record develops.
As discussed in the ruling on the motion for summary judgment, there is little evidence at this
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stage that Dr. Person undertook any measures to treat Toombs’s pain. On this record, the Court
cannot determine whether because of Toombs’s somatization diagnosis, Dr. Person’s alleged delay
in treatment caused Toombs to experience continued pain.
Toombs argues that even if evidence of his somatization disorder is relevant, the evidence
should still be excluded because its prejudicial effect far outweighs any probative value. Probative
value “is measured by the extent to which it makes the existence of a fact in issue more or less
likely.” United States v. Medina, 755 F.2d 1269, 1274 (7th Cir. 1985) (citations omitted). “Unfair
prejudice means an undue tendency to suggest decision on an improper basis . . . .” United States
v. Loughry, 660 F.3d 965, 969 (7th Cir. 2011). The trial court is given wide discretion to balance
the unfair prejudice against the probative value. Medina, 755 F.2d at 1274.
Toombs argues that evidence of his somatization disorder could be used improperly to
attack his credibility. Dr. Person responds that he seeks to submit such evidence as it relates to
Toombs’s continuing complaints of abdominal pain. In other words, Dr. Person argues that this
evidence is relevant to whether his treatment (or non-treatment) decisions caused Toombs’s pain.
But Dr. Person goes on to argue that he “may use evidence of [Toombs’s] pain complaints to argue
that his injuries are less severe than he claims . . .”
Evidence of Toombs’s somatization disorder may have some probative value. As the Court
has explained, this evidence may make relevant facts – such as whether Dr. Person’s actions or
lack of action caused Toombs to experience prolonged pain – more or less likely. Such evidence
may be introduced to that extent if it can be shown that Dr. Person was aware of this disorder.
However, it is not – contrary to Dr. Person’s argument – relevant to Toombs’s credibility. The fact
that Toombs suffers from somatization disorder has no probative value regarding a determination
of Toombs’s credibility. The pain he feels is no less real to him if the source is psychiatric rather
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than physical. “Pain is always subjective in the sense of being experienced in the brain. The
question whether the experience is more acute because of a psychiatric condition is different from
the question whether the [patient] is pretending to experience pain, or more pain than []he actually
feels. The pain is genuine in the first, the psychiatric case, though fabricated in the second.”
Carradine v. Barnhart, 360 F.3d 751, 754 (7th Cir. 2004); see also Foelker v. Outagamie County,
394 F.3d 501, 513-14 (7th Cir. 2005) (holding a jury could find that nurses who had observed the
plaintiff’s condition and the fact that he had defecated in his cell could be found to have known
that he was going through drug withdrawal and to have done nothing about it, despite the claim of
one defendant that he believed the plaintiff was “playing the system.”).
For these reasons, Toombs’s motion to exclude evidence regarding his somatization
disorder is granted in part and denied in part without prejudice. Such evidence may be
introduced as relevant to the reasonableness of Dr. Person’s treatment decisions but only to the
extent that evidence of Dr. Person’s subjective knowledge of Toombs’s condition is offered and
admitted. Its admission will not permitted, however, to argue that Toombs’s complaints of pain
are not credible. The Court may consider a limiting instruction to the jury regarding the purposes
of this evidence and Toombs may renew his objection based on the development on the record at
trial.
B. Post-Operative Statements of Pain
Toombs also seeks exclusion of his post-operation complaints of continuing abdominal
pain. Specifically, he argues the fact that he continued to complain of pain after the surgery is
irrelevant to whether Dr. Person was deliberately indifferent to his preoperative pain. According
to Toombs, the fact that he still suffers from abdominal pain does not change the fact that the
surgery was the required treatment and that Dr. Person was deliberately indifferent by delaying the
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procedure for a year. Toombs also argues that the probative value of any evidence regarding his
post-operative complaints of pain is substantially outweighed by the prejudice this evidence would
cause. Dr. Person argues that this evidence is extremely relevant to his defense that surgery was
not indicated.
As previously discussed, the deliberate indifference determination centers on whether Dr.
Person was aware of Toombs’s serious medical need and ignored that medical need. See Johnson,
444 F.3d at 585. This requires an examination of the totality of Toombs’s medical care. Reed v.
McBride, 178 F.3d 849, 855 (7th Cir. 1999). If the surgery were medically indicated at the time
the ultrasound indicated he had a gall stone, as Toombs argues, then it might reasonably be
concluded that Dr. Person was deliberately indifferent to the need for surgery by delaying it for a
year. Evidence that Toombs continued to complain of abdominal pain may be relevant to the
determination of whether surgery was indicated. But it is relevant only to show that the surgery
did not completely cure Toombs’s pain. It does not show that the gall stone did not contribute to
his pain or that Dr. Person did not unreasonably delay in ordering the surgery and other treatments
for Toombs’s pain. The delay in ordering surgery may still have caused Toombs to experience
unnecessary and prolonged pain. See Gomez v. Randle, 680 F.3d 859, 865-66 (7th Cir. 2012)
(holding that the plaintiff stated an Eighth Amendment claim because “even though this [four-day]
delay [in treatment] did not exacerbate [the plaintiff’s] injury, he experienced prolonged,
unnecessary pain as a result of a readily treatable condition”); Arnett v. Webster, 658 F.3d 742,
753 (7th Cir. 2011) (“A delay in treating non-life-threatening but painful conditions may constitute
deliberate indifference if the delay exacerbated the injury or unnecessarily prolonged an inmate’s
pain.”).
In other words, regardless of whether the surgery was successful in alleviating his pain,
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Toombs may still be able to show that Dr. Person was deliberately indifferent by otherwise failing
to treat his pain and by delaying a measure that might have been successful in treating the pain.
For example, this delay may have delayed attempts at other measures to treat the pain. Again, the
record on these issues at this stage is not sufficiently developed to make such a determination.
Accordingly, depending on the development of the record at trial, the evidence that Toombs
continued to complain of pain may be admissible to show that the gall bladder surgery did not
resolve his pain.
Toombs goes on to argue that the potential prejudicial effect of this evidence outweighs
any probative value because it tends to paint Toombs as a serial complainer. This evidence, like
the evidence regarding Toombs’s somatization disorder, cannot be used to attack Toombs’s
credibility. The fact that he felt the pain is not made more or less likely by the fact that he continued
to feel it after the surgery. But if the admission of this evidence is limited only to show the efficacy
of the gall bladder surgery, its probative value is sufficient to support its admissibility. For these
reasons, Toombs’s motion to exclude evidence regarding his continuing complaints of pain is
denied in part. Such evidence may be used to show whether the surgery resolved Toombs’s pain.
Again, the Court may entertain a limiting instruction to ensure that such evidence is not used for
improper purposes and Toombs may renew his objection to this evidence at trial.
III. CONCLUSION
Toombs’s motion in limine regarding his somatization disorder and post-operative
complaints of pain (Filing No. 76) is granted in part and denied in part without prejudice.
Evidence regarding Toombs’s somatization disorder may be admitted on the issue of Dr.
Person’s deliberate indifference to his pain if it is established that Dr. Person was aware of this
disorder and acted based on it. Further, such evidence is admissible if it there is some link between
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the somatization disorder and the harm caused by any deliberate indifference on the part of Dr.
Person. Such evidence may not be used to show or argue that Toombs’s complaints of pain are not
credible.
Evidence regarding Toombs’s continued complaints of pain may be admissible to show
that the gall bladder surgery did not fully resolve Toombs’s pain. It may not be used to show that
no treatment at all for Toombs’s pain was warranted or to raise an implication that Toombs is not
credible or is a serial complainer.
At trial, when the record is more fully developed, Toombs may renew his objections to this
evidence. Further, the Court will entertain jury instructions regarding the proper uses of this
evidence.
SO ORDERED.

Date: 7/20/2016

Distribution:
All Electronically Registered Counsel

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