Labouliere v. Our Lady of the Lake Foundation et al

Filing 190

RULING granting in part and denying in part 160 Motion in Limine. Signed by Chief Judge Shelly D. Dick on 12/8/2020. (EDC)

Case 3:16-cv-00785-SDD-SDJ

Document 190

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

KATRINA RIVERS LABOULIERE,
individually and on behalf of the Estate of
KATHERINE SMITH

CIVIL ACTION NO: 16-785

versus

JUDGE SHELLY D. DICK

OUR LADY OF THE LAKE HOSPITAL,
INC.

MAGISTRATE WILDER-DOOMES

RULING
Before the Court is are Consolidated Motions in Limine1 by the Plaintiff, Katrina
Rivers Labouliere (“Labouliere”), who is proceeding on behalf of her deceased mother,
Katherine Smith (“Smith”). Defendant, Our Lady of the Lake Hospital, Inc. (“OLOL”), has
filed a Memorandum in Opposition2 For the reasons which follow, the Motion3 shall be
GRANTED in part and DENIED in part.
The Court will not review the facts or the procedural posture which have been
addressed by the Court in prior Rulings.4
1. Arguments Regarding Plaintiff’s Dismissed Claim for Compensatory
Damages and Prevailing Party Attorney’s Fees
Pursuant to the law in this Circuit,5 this Court dismissed Labouliere’s claim for
compensatory damages.6 Plaintiff’s claims for nominal damages and attorneys’ fees
remain pending. Citing FRE 403, Plaintiff moves to exclude argument and evidence that

1

Rec. Doc. 160.
Rec. Doc. 167.
3
Rec. Doc. 160.
4
Rec. Docs. 50, 110, 125, 126, 132, & 157.
5
Jane Cummings v. Premier Rehab Keller, P.L.L.C., 948 F.3d 673 (5th Cir. 2020).
6
Rec. Doc. 126.
2

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that “this litigation was motivated by Ms. Labouliere’s desire for compensatory damages.”7
Plaintiff further moves to exclude argument regarding prevailing party attorney’s fees,
contending that “[d]iscussions of “prevailing parties” and “reasonable attorney’s fees” will
confuse the Jury and unfairly prejudice Plaintiff.”8 In opposition, OLOL argues that “OLOL
expects counsel for plaintiff to appeal emotionally to the jury by claiming that all plaintiff
is seeking is nominal damages, and that this would be a small price for OLOL to pay to
vindicate her deceased mother’s civil rights.”9
Because neither the question of compensatory damages nor attorney’s fees will
be the subject of jury deliberations, the Motion in Limine to exclude reference to dismissal
of the compensatory damage claim and reference to prevailing party attorney’s fees is
GRANTED. The Court will instruct the jury on the scope of damages available and will
give the Fifth Circuit pattern jury charge on prevailing party attorney’s fees which, if
triggered, are a matter for determination by the Court. The parties are hereby instructed
that they are not to refer to the limited nature of nominal damages available, the dismissal
of the compensatory damages claims, or attorney’s fees.
2. Admissibility of Medical Records and Testimony of Dr. Peavy
Defendant has identified Dr. Peavy as a witness and Smith’s medical records from
her care and treatment with Dr. Peavy as an exhibit.10 According to Plaintiff, Dr. Peavy’s
records pertain to “medical care for several years before her diagnosis of terminal liver
cancer at OLOL.”11 Plaintiff argues that, save one entry in the 350 pages of Dr. Peavy’s

7

Rec. Doc. 160-1, p. 2.
Id.
9
Rec. Doc. 167, p. 6.
10
Rec. Doc. 50, Exhibit C, under seal.
11
Rec. Doc. 160-1, p. 4.
8

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records, “these records do not contain any information about how Ms. Smith
communicated with Dr. Peavy and other providers at Imperial Health.”12
OLOL counters that, “[d]espite plaintiff’s claims that Ms. Smith could not read or
write written English, Dr. Peavy’s records are replete with examples wherein Ms. Smith
communicated with him or his office in writing.”13 OLOL argues that “Dr. Peavy’s records
demonstrate that Ms. Smith communicated in a medical setting in writing on a regular
basis [and that] there are numerous emails with Ms. Smith, intake forms where Ms. Smith
completed demographic and other information, documentation (such as authorizations)
completed and signed by Ms. Smith, and numerous other examples showing that Ms.
Smith was competent and comfortable communicating in a medical setting through
writing.”14
OLOL has identified Dr. Peavy as a “may” call trial witness to testify to the “the
medical treatment he provided to Ms. Smith, what methods/modalities of communication
were used to communicate with Ms. Smith.”15 Plaintiff argues that “[p]ermitting Dr. Peavy
to testify about his interactions with Ms. Smith, which have absolutely no bearing on
whether Defendant provided Ms. Smith with adequate auxiliary aids will confuse the jury
and unfairly prejudice Plaintiff.”16 OLOL responds that Dr. Peavy’s testimony will reveal
the falsity of Plaintiff’s allegations “that Ms. Smith could not read or write in English—by
having Dr. Peavy testify that he regularly communicated with Ms. Smith, in a medical
setting (both he and Ms. Smith writing back and forth to each other).”17 OLOL contends

12

Id.
Rec. Doc. 167, p. 7.
14
Id.
15
Rec. Doc. 150.
16
Rec. Doc. 160-1, p. 4.
17
Rec. Doc. 167, p. 9.
13

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that Dr. Peavy’s testimony is probative of its defense that written communication with
Smith was an effective auxiliary aid for communicating with Smith in a medical setting.18
The Court agrees. Plaintiff’s Motion in Limine to exclude the records and testimony of Dr.
Peavy is DENIED, without prejudice to urging evidentiary objections at the time of trial.
3. Evidence and argument that Dr. Peavy is a previously dismissed Defendant
Plaintiff maintains that testimony and argument regarding Dr. Peavy’s prior status
as a defendant in this action will only serve to mislead the Jury and confuse the issues.19
OLOL counters that, “[g]iven that Dr. Peavy will testify that his normal method of
communicating with Ms. Smith was to do so in writing, the jury is entitled to know that
plaintiff apparently does not think that this type of communication is ineffective, since she
chose to dismiss the claims against Dr. Peavy.”20
OLOL’s response highlights the prejudicial effect of permitting evidence and/or
argument regarding the prior dismissal of Dr. Peavy. Parties may be dismissed from
lawsuits for a host of reasons. The prior dismissal of Dr. Peavy is not necessarily probative
of whether written communications with Mrs. Smith in a medical setting were effective.
Because Dr. Peavy may have been dismissed for any number of reasons, asking the jury
to draw the inference that Dr. Peavy was dismissed because his written communications
with Mrs. Smith were effective is more prejudicial than probative; thus, the Motion in
Limine to exclude reference to Dr. Peavy’s dismissal is GRANTED.

18

Id.
Rec. Doc. 160-1, p. 7.
20
Rec. Doc. 167, p. 10.
19

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4. Admissibility of Smith’s Obituary
OLOL has identified Smith’s obituary as an exhibit for trial.21 Plaintiff argues that
Smith’s obituary is inadmissible hearsay and must be excluded. Plaintiff further argues
that “defendant is attempting to introduce Ms. Smith’s obituary for the sole reason of
establishing that she ‘loved reading.’”22 OLOL counters that the obituary is admissible as
an exception to the hearsay rule as “a statement of fact about a personal or family history
contained in a family record.”23 OLOL further argues that the obituary is admissible to
cross-examine plaintiff’s experts “who made no inquiry into Ms. Smith’s reading ability.”24
The Court finds that the statement in Smith’s obituary which describes her love of
reading is probative of the effectiveness of communication and may be admissible on
cross examination of experts. Accordingly, the Motion in Limine to exclude the obituary is
DENIED without prejudice to making objections at trial.
5. Objections Raised in Francois v. OLOL to Inspection by Jody Prysock and
related Transcript of Hearing.
OLOL will seek to introduce objections to a site visit by Plaintiff’s expert Jody
Prysock filed in the related case of Francois v. Our Lady of the Lake, Inc.25 and a transcript
of the hearing in the Francois matter regarding the scope of the site visit. The Court finds
that this proposed evidence is confusing and irrelevant. Accordingly, the Motion in Limine
is GRANTED on this issue. The court will consider an explanatory jury instruction if
requested by the parties.

21

Rec. Doc. 150.
Rec. Doc. 160-1, p. 8.
23
Id. (quoting FRE 803(13)).
24
Id.
25
Rec. Doc 150.
22

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In conclusion, Plaintiff’s Consolidated Motions in Limine26 are granted in part and
denied in part as set forth herein.
IT IS SO ORDERED.
Baton Rouge, Louisiana, this 8th day of December, 2020.

S

________________________________
SHELLY D. DICK
CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

26

Rec. Doc. 160.

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