Dorman et al v. Anne Arundel Medical Center, Inc. et al

Filing 126

MEMORANDUM AND ORDER re: Motions in Limine denying as moot 89 Defendants' Motion in Limine; denying as moot 92 Plaintiffs' Motion in Limine; denying 93 Defendants' Motion in Limine; denying without prejudice 94 Plaintiffs' Motion in Limine; denying 95 Plaintiffs' Motion in Limine; granting in part and denying in part 96 Plaintiffs' Motion in Limine; denying 97 Plaintiffs' Motion in Limine; granting in part and denying in part 98 Defendants' Motion in Limine;denying without prejudice 99 Defendants' Motion in Limine; denying as moot 100 Defendants' Motion in Limine; granting in part and denying in part 103 Defendants' Omnibus Motion in Limine. Signed by Judge Marvin J. Garbis on 5/29/2018. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SHEENA DORMAN, et al.

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Plaintiffs
vs.

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ANNE ARUNDEL MEDICAL CENTER,
et al.
Defendants

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CIVIL ACTION NO. MJG-15-1102

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MEMORANDUM AND ORDER RE: MOTIONS IN LIMINE
The Court has before it the following motions and the
materials submitted relating thereto:
1.

Defendants’ Motion In Limine To Preclude Evidence That A
Cesarean Section Delivery Was Required Under The Standard
Of Care [ECF No. 89],

2.

Plaintiffs’ Motion In Limine To Exclude Assumption Of
Risk [ECF No. 92],

3.

Defendants’ Motion In Limine To Exclude Testimony
Regarding “Personal Care Assistance” Damages [ECF No.
93],

4.

Plaintiffs’ Motion In Limine To Preclude Cumulative
Expert Testimony [ECF No. 94],

5.

Plaintiffs’ Motion In Limine To Preclude Defendants From
Offering Undisclosed Expert Testimony [ECF No. 95],

6.

Plaintiffs’ Motion In Limine To Exclude Speculation That
B.M.’s Left Arm Was Posterior [ECF No. 96],

7.

Plaintiffs’ Motion In Limine To Exclude Consideration Of
Causation At Trial [ECF No. 97],

8.

Defendants’ Motion In Limine To Preclude References To
“Alterations” Of The Medical Record [ECF No. 98],

9.

Defendants’ Motion In Limine To Preclude “Golden Rule” Or
Other Improper “Reptile Theory” Tactics [ECF No. 99],

10.

Defendants’ Motion In Limine To Preclude Informed Consent
Evidence [ECF No. 100], and

11.

Defendants’ Omnibus Motion In Limine [ECF No. 103].
The Court has held a hearing and has had the benefit of

arguments of counsel.

In addition to these motions in limine,

the Court also heard argument regarding whether Dr. Allen should
be permitted to testify solely as a rebuttal witness.

I.

BACKGROUND
The factual background of this case has been previously

stated in the Memorandum and Order Re: Daubert Motions issued on
May 4, 2018 [ECF No. 88].

The Court understands the main issue

at trial to be the cause of B.M.’s birth injury, specifically,
whether the injuries were caused by a violation of the standard
of care by Dr. Welch, or whether the injuries were caused by
natural maternal forces.

Parties have filed multiple motions in

limine, each of which is addressed by the Court below.

II.

MOTIONS IN LIMINE
Motions in limine seek “to exclude anticipated prejudicial

evidence before the evidence is actually offered.”

Changzhou

Kaidi Elec. Co. v. Okin Am., Inc., 102 F. Supp. 3d 740, 745 (D.
Md. 2015) (citations omitted).

They “are ‘designed to narrow
2

the evidentiary issues for trial and to eliminate unnecessary
trial interruptions.’”

Id.

“A motion in limine to exclude

evidence . . . should be granted only when the evidence is
clearly inadmissible on all potential grounds.”

Emami v.

Bolden, 241 F. Supp. 3d 673, 681 (E.D. Va. 2017) (citations
omitted).

1.

Defendants’ Motion In Limine To Preclude Evidence That
A Cesarean Section Delivery Was Required Under The
Standard Of Care [ECF No. 89]

Plaintiff Sheena Dorman1 opted for a vaginal delivery.
Defendants request the exclusion of any evidence, testimony, or
argument that under the standard of care, a cesarean section
(“C-Section”) delivery for Ms. Dorman was required in lieu of a
vaginal delivery.2

Plaintiffs agree that a C-Section delivery is

not part of the standard of care in this case,3 and the Court
will exclude from trial any testimony or argument that a CSection was required, including any mention of a C-Section

1

During the pendency of this case, Sheena Dorman’s name has
been changed to Sheena Ming.
2

Defendants argue that Plaintiffs have not provided expert
testimony to establish that Defendants were required to perform
a C-Section. Indeed, Plaintiffs’ own OB-GYN expert witness, who
will opine on the standard of care, stated at his deposition
that a C-Section delivery was not required.
3

Plaintiffs confirm that their obstetrician witness, Dr.
Duboe, will not opine that the standard of care required Dr.
Welch to perform a C-Section.
3

delivery in this case.

Defendants’ motion is therefore DENIED

as moot.
However, Plaintiffs still wish to introduce testimony
showing that Dr. Welch may not have been prepared for the risk
of a shoulder dystocia.

They contend the evidence will show

that one of Dr. Welch’s partners, Dr. Hays, had already
scheduled Ms. Dorman for a C-Section, but that Dr. Welch was not
aware of that decision, did not review prior ultrasound records
showing that B.M. was a large baby, and did not know the precise
size of the baby at the time of delivery.
The Court will allow Plaintiffs’ requested testimony only
to show a potential lack of concern or assiduousness by Dr.
Welch toward Ms. Dorman, which is possibly relevant to his
credibility.

However, this testimony may not be used to argue

that Dr. Welch should have performed a C-Section and may not
mention the possibility of a C-Section as an alternative
procedure in this case.

In other words, there shall be no

argument or suggestion that Dr. Welch’s pre-delivery actions
violated the standard of care although the defense may argue
that pre-delivery actions or inactions may be considered as to
Dr. Welsh’s credibility as claiming he was appropriately
concerned for his patients.

4

2.

Plaintiffs’ Motion In Limine To Exclude Assumption Of
Risk [ECF No. 92]

On the record of proceedings held May 24, 2018, Plaintiffs
stated they are not pursuing a claim for lack of informed
consent and Defendants stated they will withdraw their
assumption of risk defense.4

Accordingly, Plaintiffs’ motion in

limine to exclude assumption of risk shall be DENIED as moot.

3.

Defendants’ Motion In Limine To Exclude Testimony
Regarding “Personal Care Assistance” Damages [ECF No.
93]

Plaintiffs’ economic expert, Dr. Pacey, has identified
costs associated with what have been called “personal care
assistance,” which refers to the parental costs of providing
care for B.M., including transportation to medical appointments,
assistance with performing home exercises, and “personal
hygiene,” in a total amount of $86,200 (including past and
future costs).

Defendants request that this evidence be

excluded because these are ordinary and expected parenting
activities and are not unique to B.M.’s brachial plexus injury.
Plaintiffs argue that the personal care damages detailed by
Plaintiffs’ expert only deal with extraordinary care and
services that have occurred and will occur as a result of the

4

Defendants have also moved to preclude evidence of a lack
of informed consent. See ECF No. 100.
5

injury, above and beyond the costs of taking care of a nondisabled child.
The Court does not find a reasonable basis to exclude this
expert evidence or to exclude the $86,200 figure from evidence.
Plaintiffs’ requested damages for personal care include the
costs of Mr. Ming and Ms. Dorman’s efforts to transport B.M. to
injury related medical appointments (including cross country
travel to Philadelphia from Maryland, Arkansas, and North
Carolina), to conduct certain personal hygiene for him, and to
engage in daily exercise to maximize the function of his injured
arm.

Their argument is that those damages would not be incurred

by parents to take care of a child without a brachial plexus
injury.
If there are specific expenses within the $86,200 figure
that Defendants contend would apply only to ordinary child care,
Defendants may elicit such testimony on cross-examination.

The

Court is willing, if requested by the defense, to instruct the
jury to limit their personal care damages findings to only those
that apply to B.M. due to the nature of his injuries.
Accordingly, Defendants’ motion is DENIED.

6

4.

Plaintiffs’ Motion In Limine To Preclude Cumulative
Expert Testimony [ECF No. 94]

Defendants have now designated three standard-of-care
expert witnesses:

Drs. Dickman and Hammond, who are

obstetricians, and Dr. Chauhan, who is a maternal-fetal
specialist.

Plaintiffs argue that allowing Defendants to call

two or three experts to testify about the standard of care would
be unnecessarily cumulative and a waste of time.

They are

concerned that the jury may draw an improper inference that the
number of experts should equate to higher weight.

They request

that Defendants only be allowed to call one standard of care
expert and one causation expert.
Defendants contend that Plaintiffs’ motion is premature and
improperly invades trial strategy.

They argue that there is no

requirement of expert witness numerical parity, and that they
have properly designated Drs. Dickman and Hammond and crossdesignated Dr. Chauhan.

They state that these experts have

different backgrounds and experiences and will offer the jury
materially different opinions.
Under the circumstances, the Court does not now find a need
to exclude Defendants’ standard of care experts simply because
there are more than one of them.

The Court agrees that

exclusion at this time would be premature because not all of the
experts may be called and their testimony has not yet been

7

elicited.5

However, Plaintiffs may renew this motion at trial

should the testimony of these three experts be unnecessarily
cumulative, and the Court will reconsider the request at that
time.

The Court is also willing to consider requests from

Plaintiffs for a jury instruction that could cure the concerns
that Plaintiffs raise (e.g., a jury instruction that the fact
that one party called more witnesses than the other does not
mean that the jurors should necessarily find the facts in favor
of the side offering more witnesses).
As for the causation experts, Plaintiffs have not shown a
basis to exclude Defendants’ three experts as needlessly
cumulative because they have different specialties and will
offer different testimony (i.e., pediatric neurosurgeon,
pediatric neurologist, and biomedical engineer).

In fact,

Plaintiffs also intend to call three causation experts and do
not propose to limit their own number of experts.
Accordingly, Plaintiffs’ motion is DENIED without
prejudice.

5

At this stage, the Court finds that the three standard-ofcare experts could likely provide testimony from different
perspectives that could aid the jury in this complex case.
Although Drs. Dickman and Hammond are both obstetricians, they
have different types of practices. Dr. Chauhan is a maternalfetal specialist and will have a different perspective from a
practicing obstetrician.
8

5.

Plaintiffs’ Motion In Limine To Preclude Defendants
From Offering Undisclosed Expert Testimony [ECF No.
95]

Plaintiffs request that the testimonies of Defendants’
experts Drs. Dickman, Hammond, and Azburg be limited to the
scope of their expert reports and that they be prevented from
opining on causation.6

Plaintiffs also request the exclusion of

any testimony by Dr. Suneet Chauhan, who they state was not
cross-designated as an expert.7

If Dr. Chauhan’s testimony is

allowed by the Court, Plaintiffs request that he also be
precluded from opining on causation because his expert report
did not include any causation opinions.
Defendants argue that they have timely and properly
disclosed these expert opinions (including cross-designating Dr.
Chauhan), and have made them all available for depositions.
They argue that Plaintiffs have been well aware of the opinions
of these experts and are only complaining that the opinions were
not sufficiently detailed in previous expert reports.
The Court agrees that Defendants adequately placed
Plaintiffs on notice of Dr. Chauhan’s testimony by (1) notifying
Plaintiffs that they reserve the right to call the experts of
other parties and (2) specifically stating that they would call
6

Defendants confirm that Dr. Azburg will not testify on
causation and has not been designated as a causation expert.
7

Dr. Suneet Chauhan was designated as an expert by Anne
Arundel Medical Center, which is no longer a party to this case.
9

experts identified by all defendants “including but not limited
to Dr. Chauhan.”

See Def.’s Opp. Exs. 9, 10, ECF No. 114.

The

Court does not find that Plaintiffs are prejudiced by his
testimony.

Indeed, Plaintiffs had an opportunity to depose him,

took advantage of that opportunity, and have not shown a basis
for unfair surprise or prejudice.
Plaintiffs also wish to prevent any of Defendants’ standard
of care experts to opine about causation, specifically, about
the maternal forces of labor.
The Court finds that any discussion of standard of care in
this case necessarily touches upon causation.

Defendants’

standard of care experts will state that in their opinions, Dr.
Welch did not violate the standard of care.

That very statement

also carries a suggestion or inference that something other than
Dr. Welch’s physical actions caused the injury.

The Court will

not exclude the standard of care experts from making these types
statements, which it finds were properly disclosed in either
expert reports or in deposition testimony.
Accordingly, Plaintiffs’ motion is DENIED.

6.

Plaintiffs’ Motion In Limine To Exclude Speculation
That B.M.’s Left Arm Was Posterior [ECF No. 96]

Plaintiffs request the exclusion of any “speculation” from
Defendants that B.M.’s left arm was posterior.

10

Defendants argue

that Plaintiffs are the ones who intend to speculate about
whether B.M.’s left arm was posterior or anterior.

Rather,

Defendants argue, their experts will consider both possibilities
(i.e., anterior and posterior).
If the injured left arm was posterior (i.e., facing down
towards the mother’s spine), then it will be much more difficult
- though perhaps not impossible8 - for Plaintiffs to show a
violation of the standard of care because, according to
Defendants, at that point, the baby’s head has not been
delivered yet and no physician traction would have been applied.
In other words, Defendants take the position that if the injured
left arm was posterior, the injury must have been caused by
something other than physician traction.

On the other hand, if

the injured left arm is anterior, i.e., facing up towards the
mother’s belly surface, then both parties agree Plaintiffs could
be able to contend that improper physician traction could have
caused the injury.
The parties agree that the medical records and evidence in
this case do not suggest either way whether B.M.’s injured left
arm was posterior or anterior.

The Court finds that neither

party will be able to elicit testimony or make an argument that

8

Plaintiffs explain that if the left arm was posterior, they
could still argue that “upward traction” could have caused an
injury.
11

B.M.’s left arm was posterior or anterior because there is
simply no evidence supporting either position.
However, Plaintiffs wish to introduce expert testimony that
“more likely than not,” the injured arm was anterior.

Neither

party is allowed to introduce raw statistical evidence.

See,

e.g., Holley v. Pambianco, 613 S.E. 2d 425, 428 (Va. 2005)
(“[R]aw statistical evidence is not probative of any issue in a
medical malpractice case and should not be admitted.”).

Nor is

either party allowed to elicit testimony that B.M.’s left arm
was “more likely than not” anterior if that testimony is based
on statistics or any statistical studies that are used to
suggest that B.M.’s arm was anterior in this case.9

However, the

parties are allowed to elicit testimony from experts that, in
their personal experience with deliveries in the past, they have
experienced more anterior shoulder injuries over the course of
their career.

If requested by the defense, the Court will issue

a cautionary jury instruction at the time such expert testimony
is elicited, explaining that there is no statistical evidence or
study in this case that suggests it could be one or the other.
9

The Court’s decision here is consistent with that of other
courts which have found that such an inference is impermissible.
See, e.g., Timblin v. Kent Gen. Hosp. (Inc.), 640 A.2d 1021,
1025 (Del. 1994) (“Delaware courts have recognized that evidence
of statistical probability creates a significant risk of jury
confusion and unfair prejudice because such evidence may lead a
jury to decide a case based on what happens normally instead of
what happened in the case before it.”).
12

Accordingly, Plaintiffs’ motion is GRANTED IN PART and
DENIED IN PART.

7.

Plaintiffs’ Motion In Limine To Exclude Consideration
Of Causation At Trial [ECF No. 97]

Plaintiffs request the exclusion of causation evidence from
Defendants and the exclusion of any causation finding on the
verdict sheet.

They argue that Defendants’ experts will testify

with the assumption that Dr. Welch did not violate the standard
of care, and that therefore there is “no evidentiary basis upon
which any reasonable juror could conclude that Dr. Welch was
both negligent and, yet, not a cause of B.M.’s permanent
brachial plexus injury.”

Pls.’ Mot. at 2, ECF No. 97.

Defendants contend that there are other forces that could
have caused the injury even if Dr. Welch violated the standard
of care (for example, that the injured arm could have been
posterior such that the injury occurred before the head was
delivered and before Dr. Welch had the opportunity to perform
any maneuvers).
Plaintiffs’ request is essentially a motion for
reconsideration of the Court’s Memorandum and Order Re: Daubert
Motions [ECF No. 88].

They attempt to re-litigate the issue of

whether Dr. Grimm and other defense experts may proceed by
opining in the alternative.

If the jury finds that Dr. Welch

13

laterally bent B.M.’s neck, then Dr. Grimm stated that she would
not be able to support Defendants’ contentions.

See Daubert

Hearing Tr. at 143, ECF No. 86 (“If I saw evidence that he had
bent B.M.’s neck during the delivery . . . I would not be able
to support the defendant’s case in that hypothetical, and of
course I saw no evidence in this case that there was bending of
the neck.”).10

It is up to the jury to find whether there was

bending of the neck based on the evidence in this case.

And if

they do not find bending of the neck, Dr. Grimm’s testimony
would be relevant to show another potential cause of the injury
besides physician traction, i.e., maternal forces of labor.
Plaintiffs essentially seek a directed verdict on
causation.

Causation issues are at the center of this case and

the Court has decided that it will not exclude the competing
causation opinions of parties’ experts.

The Court sees no

reason to depart from its earlier reasoning in the Memorandum
and Order Re: Daubert Motions [ECF No. 88] and will DENY
Plaintiffs’ motion.

10

The Court understands Dr. Grimm’s statement at the hearing
to be limited to anterior shoulder dystocia injuries. In her
opinion, a posterior shoulder dystocia injury occurs prior to
the head being delivered and thus cannot be caused by bending of
the neck. In other words, the only way she would find evidence
of bending of the neck would be in an anterior injury situation.
14

8.

Defendants’ Motion In Limine To Preclude References to
“Alterations” of the Medical Record [ECF No. 98]

Dr. Welch recorded a note regarding B.M.’s birth, and the
note was written in two parts.

First, seventeen minutes after

B.M.’s delivery, he wrote a one-line note:
Moderate shoulder dystocia relieved with
McRoberts maneuver.
Second, about fifteen hours later that same day, he wrote
another note that expanded upon the first note:
Head delivered after 15 minutes pushing.
Turtle sign encountered. Downward traction
applied with minimal descent. Head of bed
lowered flat. McRoberts maneuver performed
with traction with successful deliv [sic] of
anterior shoulder. Total time 30 seconds.
NICU in attendance.
Because the electronic medical record system records the
time of entry, adding the second portion resulted in two
separate notes stamped as “Version 1” and “Version 2.”
Defendants seek to prevent Plaintiffs from referring to the
second completed note as inaccurate, false, or altered in a
deceitful way.

Plaintiffs argue that it is up to the jury to

infer whether any significance should be attached to the two
versions, if any.

They argue that a reasonable jury could draw

the inference that it was done to create exculpatory evidence to
defend a medical malpractice claim.
The Court finds no unfair prejudice to the introduction of
the two versions of the notes.

Defendants may cross-examine any
15

witness about how and why there may be two versions.

The jury

is free to make their inferences based upon the testimony.
However, the Court shall exclude any usage of the word
“alteration” because it is misleading under the circumstances.
The second delivery note is not an “alteration” of the first
note; rather, it is simply an addition.

The first delivery note

still exists in its original form under a different time stamp.
Accordingly, Defendants’ motion is GRANTED IN PART and
DENIED IN PART.

9.

Defendants’ Motion In Limine To Preclude “Golden Rule”
Or Other Improper “Reptile Theory” Tactics [ECF No.
99]

Defendants request the exclusion of improper emotional
appeals to the jury, including any arguments by Plaintiffs
regarding “The Golden Rule” or any “Reptile Theory” arguments.
The “Golden Rule” argument asks jurors to put themselves in the
proverbial shoes of Plaintiff Dorman when deciding what the
Defendants should have done.

The Reptile Theory11 argument urges

the jurors to act as the “conscience of the community” by
deciding whether Defendants provided the safest or most reliable
treatment or whether Defendants unnecessarily exposed the
patient to danger.
11

See, e.g., David Ball & Don Keenan, Reptile: The
Attorney’s 2009 Manual of the Plaintiff’s Revolution (2009).
16

Plaintiffs argue that the motion is premature and
improperly encroaches upon counsel’s persuasive style.

They

confirm they will make no “Golden Rule” arguments and will not
argue that the jury should be the “conscience of the community,”
that the jury should punish the physicians, or that the jury
should “send a message” to all physicians with their verdict.
They do, however, express their intention to use in argument
references to safety rules, stop signs, danger, duty, and harm.
The Court agrees that this motion is premature and presents
vague challenges to Plaintiffs’ style of argument rather than to
any evidence that Plaintiffs intend to introduce.

At this time,

the Court does not find a need to classify any potential future
argument as “reptilian” or inappropriate, especially because
counsel’s arguments to the jury are permitted a significant
degree of latitude.
At the hearing, Defendants stated their concerns about some
specific types of questions posed to Dr. Welch, such as “Would
you agree that it is your job to keep the patients safe?” or
“Would you agree that it is your job to not needlessly endanger
patients?”

The Court understands Defendants’ concern to be that

Plaintiffs may try to misrepresent the standard of care.

The

Court will instruct the jury on the law regarding the standard
of care in medical malpractice actions and expects that neither
party will misrepresent the law that should be applied by
17

broadening the scope of liability beyond the court’s legal
instructions regarding the standard of care.
Accordingly, Defendants’ motion is DENIED without
prejudice.

10.

Defendants’ Motion In Limine To Preclude Informed
Consent Evidence [ECF No. 100]

On the record of proceedings, Plaintiffs stated they are
not pursuing a claim for lack of informed consent and Defendants
stated they will withdraw their defense of assumption of risk.
Accordingly, the substance of Defendants’ motion is DENIED as
moot.
Plaintiffs also stated their intention to introduce
testimony about Dr. Welch’s pre-delivery actions, specifically,
testimony showing that Dr. Welch may not have been prepared for
the risk of a shoulder dystocia.
This was previously addressed in relation to Defendants’
“Motion In Limine to Preclude Evidence That a Cesarean Section
Delivery Was Required Under The Standard Of Care” [ECF No. 89].
As decided above, the Court will allow Plaintiffs’ requested
testimony only to show a potential lack of concern or
assiduousness by Dr. Welch toward Ms. Dorman, which is possibly
relevant to his credibility.

This testimony may not be used to

argue that Dr. Welch should have performed a C-Section and may

18

not mention the possibility of a C-Section as an alternative
procedure in this case.

There shall be no argument or

suggestion that Dr. Welch’s pre-delivery actions violated the
standard of care or that he did not receive the patient’s
informed consent before proceeding.

11.

Defendants’ Omnibus Motion in Limine [ECF No. 103]

Defendants’ Omnibus Motion requests the exclusion of: (1)
Allegations Lacking Expert Support; (2) Misleading Expert
Testimony as to Excessive Traction; (3) Statistical and
Misleading Evidence as to the Position of B.M.'s Shoulder; (4)
Improperly Edited Clips of Videotaped Depositions; (5) Prior and
Pending Lawsuits filed against Defendants; (6) Inadmissible
Hearsay Statements; (7) Impermissible Statements Regarding the
ACOG Task Force; (8) Impermissible Evidence as to Insurance; (9)
Misleading Arguments the Jury Should Send a Message; and (10)
Any arguments as to the "The Rules of the Road" and Juror
Expectations.

a.

Allegations Lacking Expert Support

Defendants wish to exclude testimony of medical negligence
that lacks supporting expert testimony.

Plaintiffs agree and so

there appears to be no present dispute to be resolved regarding
this issue.
19

b.

Expert Testimony as to Excessive Traction

Defendants wish to exclude testimony or argument that uses
the specific term “excessive traction,” arguing that this term
is used interchangeably to describe the standard of care as well
as nerve integrity, and that usage of the term may confuse
jurors.

Plaintiffs argue that it is impracticable to exclude

precise language used by all the experts in this case.
The Court understands that the term “excessive” is
sometimes used in regard to the magnitude of force applied and
sometimes used in regard to the direction of force applied.

The

Court does not wish to issue an Order directing any parties’
experts to use particular words or phrases when testifying.
However, the Court does not wish to have the jury misled in any
way about how the word “excessive” is used.
For example, Defendants’ expert, Dr. Allen, stated that
although the magnitude of force would not cause the injury, the
direction of force could:
Q Can pulling too hard cause injury to the
brachial plexus?
A Pulling too hard ...
Q Axially?
A I don’t believe so. Not unless you pull
the head off.
Q So it takes bending of the neck with the
traction or lateral traction?
A Correct.
Daubert Hearing Tr. at 181, ECF No. 86.

20

The Court will not preclude experts in this case from using
the word “excessive,” but directs the parties to be precise
about whether the usage of the word refers to magnitude or
direction or something else.

If the Court finds during the

trial that there could be jury confusion about the meaning of
“excessive” under the circumstances, it will consider a jury
instruction to clarify its meaning.

c.

Evidence as to the Position of B.M.’s Shoulder

Defendants wish to exclude statistical evidence about
whether it is the anterior or posterior arm that tends to get
lodged in a shoulder dystocia, as well as any testimony that
B.M.’s injured left shoulder was in the anterior position during
delivery.
The Court has already addressed these issues with regard to
Plaintiffs’ “Motion In Limine To Exclude Speculation That B.M.’s
Left Arm Was Posterior” [ECF No. 96], supra Section II.6, and
incorporates its decision herein.

Neither party will be able to

elicit testimony or make an argument that B.M.’s left arm was
posterior or anterior because there is simply no evidence
supporting either position.

Nor is either party allowed to

elicit testimony that B.M.’s left arm was “more likely than not”
anterior if that testimony is based on statistics or any
statistical studies that are used to suggest that B.M.’s arm was
21

anterior in this case.

However, the parties are allowed to

elicit testimony from experts who, in their personal experience
with deliveries in the past, have experienced more anterior
shoulder injuries over the course of their career.

If requested

by the defense, the Court will issue a cautionary jury
instruction at the time such expert testimony is elicited,
explaining that there is no statistical evidence or study in
this case that suggests it could be one or the other.

d.

Clips of Videotaped Depositions

Defendants wish to exclude video clips of depositions of
Dr. Welch or any other witness that have been “spliced together
out-of-order and without context” to give a false and misleading
impression contrary to the witness’s actual testimony at
deposition.
Defendants are not entitled to an Order requiring
Plaintiffs to introduce their evidence in any particular order.
However, the Court is willing to require both parties to provide
advance notice of the video clips they intend to play at trial
so that the other side may play other portions of video clips
that it deems useful to complete the record.
Parties shall exchange the video clips they intend to
introduce at trial at least two business days in advance.

If

parties have a dispute about which video clips can be played and
22

cannot reach a resolution, they shall bring the dispute to the
Court for resolution at least one business day in advance.

e.

Prior and Pending Lawsuits against Defendants

Defendants wish to exclude any evidence of prior and
pending lawsuits filed against them.

Plaintiffs agree with this

general exclusion as applied to both sides, so there is no
pending issue for the Court to resolve.
As discussed at the hearing, parties are permitted to ask
experts general questions regarding bias, including the number
of cases they have testified in.

However, no details or

specifics of any other case shall be mentioned before the jury.

f.

Hearsay Statements

Defendants request the exclusion of certain hearsay
statements, including statements in medical records or from the
depositions of Ms. Dorman and Mr. Ming.
The Court finds that it is premature to make a ruling on
these types of statements broadly and will address specific
objections at the pre-trial conference.

At first glance, some

of these statements challenged by the Defendants may be opposing
party admissions, proper present sense impressions, thenexisting mental, emotional, or physical conditions, or
statements made for medical diagnoses or treatment.
23

The parties

shall prepare specific hearsay objections to address at the pretrial conference.

Opposing counsel shall be prepared to present

the exceptions or exemptions to the hearsay rule that may apply,
if any.

g.

Statements Regarding the ACOG Task Force

Defendants request the exclusion of evidence that their
expert, Dr. Dickman, stated that he was not aware of the ACOG
Task Force during his deposition.

They argue that this

statement is both incorrect and irrelevant.

Plaintiffs argue

that this motion is premature and that they should not be
required to lay out their trial strategy for the ACOG Task Force
findings at this time.
The Court finds that Dr. Dickman’s knowledge or lack
thereof of the ACOG findings could be relevant to the weight the
jury places on those findings and does not see a reason why this
line of questioning should be excluded prior to trial.
Defendants appear to be concerned about Plaintiffs
referring to the ACOG Task Force in a pejorative way, including
by arguing that its report is a litigation document created by
the medical defense community.

At this time, it is not clear

how such an argument would be impermissible because Dr. Grimm, a
defense expert, is one of the authors of the document.

However,

under the circumstances, the Court finds that this motion is
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premature because Plaintiffs have not yet made any statements
about the ACOG Task Force report and may decide not to do so.
If warranted, Defendants may renew their request during trial
but must state a more definite basis for the exclusion beyond
relevance.

h.

Evidence as to Insurance

Defendants seek an order prohibiting Plaintiffs from the
mention of medical malpractice insurance, professional
malpractice insurance, professional liability insurance, and/or
professional casualty insurance.

Plaintiffs agree, so there is

no further action on this issue for the Court.

The Court

reminds the parties that the exclusion applies to both sides.

i.

Arguments the Jury Should “Send a Message” and
Arguments as to the “The Rules of the Road” and
Juror Expectations

Defendants wish to prevent Plaintiffs from making any
argument that the jury should “send a message” to Defendants and
physicians in general by finding Defendants liable.

Defendants

also wish to prevent Plaintiffs from arguing that the practice
of medicine is like driving a car and that one must follow “the
rules of the road” so that those around them will be “safe.”
They argue that these types of arguments tend to encourage lay
opinions on the standard of care.
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This request is related to Defendants’ Motion In Limine To
Preclude “Golden Rule” Or Other Improper “Reptile Theory”
Tactics [ECF No. 99], in that it seeks to prevent Plaintiffs
from making certain types of arguments.

Plaintiffs confirm they

will make no “Golden Rule” arguments and will not argue for the
jury to be the conscience of the community, to punish the
physicians, or to “send a message” to all physicians.

The

Court will not issue an Order requiring the Plaintiffs to
refrain from any potential future type of argument, but will
entertain objections at trial to arguments that mischaracterize
the law to be applied by the jurors.
Finally, Plaintiffs wish to argue that any verdict against
Defendant Welch does not constitute “punishment” for him.
Defendants strongly object to such an argument, citing several
professional consequences Dr. Welch would face if a verdict were
to be found against Defendants.

The Court understands

Plaintiffs’ argument to be that this case is not a professional
discipline proceeding, and is willing to consider a limiting
instruction to that effect.

The parties are already in

agreement that there will be no discussion of insurance issues
in connection with this trial.
Accordingly, Defendants’ omnibus motion is GRANTED IN PART
and DENIED IN PART.

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12.

Dr. Allen’s Testimony as a Rebuttal Witness

Finally, parties discussed whether Dr. Allen (a Plaintiffs’
causation expert) could be solely a rebuttal witness to Dr.
Grimm, or whether he should be in Plaintiffs’ case-in-chief.
Defendants are concerned that Plaintiffs intend to split their
case and get the last word at trial, when Dr. Allen is not a
true rebuttal witness.

Plaintiffs are concerned about having to

anticipate all the issues that may be raised during Dr. Grimm’s
testimony and not being able to call Dr. Allen again to rebut
her testimony.
The Court intends to be flexible about recalling expert
witnesses and may be willing to permit rebuttals and even surrebuttals if warranted.

Under the circumstances, the Court

requests that parties provide legal briefing regarding their
positions and be prepared to discuss this issue at the pretrial
conference.

III.

CONCLUSION
Accordingly:
1.

Defendants’ Motion In Limine To Preclude Evidence That A
Cesarean Section Delivery Was Required Under The Standard
Of Care [ECF No. 89] is DENIED as moot.

2.

Plaintiffs’ Motion In Limine To Exclude Assumption Of
Risk [ECF No. 92] is DENIED as moot.

3.

Defendants’ Motion In Limine To Exclude Testimony
Regarding “Personal Care Assistance” Damages [ECF No. 93]
is DENIED.
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4.

Plaintiffs’ Motion In Limine To Preclude Cumulative
Expert Testimony [ECF No. 94] is DENIED without
prejudice.

5.

Plaintiffs’ Motion In Limine To Preclude Defendants From
Offering Undisclosed Expert Testimony [ECF No. 95] is
DENIED.

6.

Plaintiffs’ Motion In Limine To Exclude Speculation That
B.M.’s Left Arm Was Posterior [ECF No. 96] is GRANTED IN
PART and DENIED IN PART.

7.

Plaintiffs’ Motion In Limine To Exclude Consideration Of
Causation At Trial [ECF No. 97] is DENIED.

8.

Defendants’ Motion In Limine To Preclude References to
“Alterations” of the Medical Record [ECF No. 98] is
GRANTED IN PART and DENIED IN PART.

9.

Defendants’ Motion In Limine To Preclude “Golden Rule” Or
Other Improper “Reptile Theory” Tactics [ECF No. 99] is
DENIED without prejudice.

10.

Defendants’ Motion In Limine To Preclude Informed Consent
Evidence [ECF No. 100] is DENIED as moot.

11.

Defendants’ Omnibus Motion in Limine [ECF No. 103] is
GRANTED IN PART and DENIED IN PART.

12.

Defendants have filed briefing regarding rebuttal and
sur-rebuttal witnesses [ECF No. 125]. Any response shall
be filed by June 1, 2018.
SO ORDERED, this Tuesday, May 29, 2018.

/s/___
__ _
Marvin J. Garbis
United States District Judge

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