Hauser v. Powell

Filing 114

OPINION AND ORDER granting in part and denying in part 89 Plaintiffs Motion in Limine to Exclude Testimony of Attorney Referral. Signed by Magistrate Judge J. Mark Coulson on 9/15/2022. (ols, Deputy Clerk)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Rosemary Hauser
Plaintiff

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v.

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Mark Powell, et al,

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Defendants.

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Civil Case No. 17-cv-3844-JMC

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OPINION AND ORDER REGARDING PLAINTIFF’S
MOTION IN LIMINE TO EXCLUDE TESTIMONY OF ATTORNEY REFERRAL
The Court has before it Plaintiff’s Motion in Limine to Exclude Testimony of Attorney
Referral (ECF No. 89), as well as Defendants’ Opposition (ECF No. 101), and Plaintiff’s Reply
(ECF No. 111). Specifically, Plaintiff argues that the Court should exclude evidence that
Plaintiff was referred to two physicians, Dr. Di Dio and Dr. Herman, by her attorneys.
Plaintiff’s argue that, although such evidence in certain cases might be appropriate to
show bias regarding findings and conclusions of physicians who had a prior relationship with
counsel or who had a financial incentive, her counsel has no prior relationship with Dr. Di Dio or
Dr. Herman, neither has a financial incentive to testify on Plaintiff’s behalf. Additionally,
Plaintiff seems specifically concerned with the emphasis by Defense expert Dr. Buchholz that
these were attorney referrals as part of the basis for his opinions.
For their part, the Defense argues that under the circumstances of this case, evidence of
the attorney referral is appropriate to show bias. In addition to arguments regarding financial
bias, the Defense emphasizes that the circumstances and timing of the referrals suggest that the
selection of these two physicians was strategic and designed, at least in part, to strengthen

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Plaintiff’s legal case by directing her to physicians who might be more experienced in personal
injury matters and advocacy than a referral from a health care provider such as a primary care
physician. Under such circumstances, the Defense argues that relevancy is easily satisfied, and
that any danger of unfair prejudice or confusion can be mitigated by whatever alternative
explanation Plaintiff, or her witnesses want to present as to why these two physicians were
chosen.
The Court largely agrees with the Defense that the circumstances of how Plaintiff came
to see Dr. Herman and Dr. Di Dio more than a year after the accident and in the context of a
legal case are relevant as the jury evaluates how much weight to give their respective opinions.
While Plaintiff argues that “there is no evidence that Dr. Di Dio even knew how Plaintiff came to
be his patient,” this is not dispositive of whether the jury should know how Dr. Di Dio and Dr.
Herman came to be Plaintiff’s doctors. To be clear, there is nothing untoward about such a
referral. But when that choice is made by one’s personal injury attorney versus a family
member, primary care physician, or a patient’s own research, it is relevant as the jury considers
what weight to give the testimony. That is because even when the physician in question has no
direct financial incentive, the Plaintiff could have such incentive in making her choice, as her
post-accident medical course may well be a factor in the success of her case. Under such
circumstances, she could turn to her attorney to assist her in selecting a health care provider who
has litigation experience so as to potentially increase the chance of that success. Even where the
attorney might not have a prior relationship with a physician, the attorney may have ample
information to locate a physician experienced in litigation matters on behalf of plaintiffs
including information from other attorneys, expert witness services, verdict reporters, or an
expert’s (or his practice’s) own efforts to develop a such a market.
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Of course, there may be other reasons having nothing to do with case strategy that leads
an attorney to help a client select her post-injury health care providers: an attorney may have
better familiarity with the professional reputations of health care providers, may have had other
clients who obtained therapeutic relief from a given provider or specialty, may be able to
facilitate an appoint because of a relationship with the healthcare provider, etc. Plaintiff is free
to introduce such evidence and testimony as an alternative explanation for Dr. Herman’s and Dr.
Di Dio’s selection. And simply because a physician has prior experience in litigation matters,
that does not, by itself, necessarily undermine that physician’s findings and opinions. But, in
conjunction with other evidence, it may be a factor that goes to the weight a juror ultimately
gives the opinion.
That said, the Court also shares Plaintiff’s concerns that Defense experts such as Dr.
Buchholz might invade the province of the jury by providing their own “opinion” regarding the
significance of the attorney referral, and that such an opinion, with the imprimatur of expert
witness, might be misleading to the jury by overstating the weight to be given to the referral.
Accordingly, the Court will not allow Defense experts to comment on the attorney referrals to
Dr. Herman and Dr. Di Dio or their significance.
Accordingly, Plaintiff’s Motion in Limine to Exclude Testimony of Attorney Referral
(ECF No. 89) is GRANTED in part (as to Defense experts only) and otherwise DENIED.

Dated: September 15, 2022

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J. Mark Coulson
U.S. Magistrate Judge

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