Kaplan et al v. Mayo Clinic et al
Filing
310
MEMORANDUM OPINION AND ORDER 1. Granting in part and denying in part defendants' 269 Motion in Limine. a)To the extent the motion seeks to preclude Plaintiffs from presenting evidence at trial of pain and suf fering or mental anguish in support of their claim for breach of contract, the motion is granted; b) To the extent the motion seeks to preclude Plaintiffs from presenting evidence at trial in support of their claim for loss of consortium, the motion is granted; c) Plaintiffs' claim for loss of consortium (Count II) is dismissed with prejudice; and d) To the extent the motion seeks to preclude Plaintiffs from present evidence at trial that was disclosed to Defendants after the December 30, 2012 deadline, the motion is denied. 2. Denying defendants' 300 Motion to Strike Pleading (Written Opinion). Signed by Judge John R. Tunheim on May 28, 2013. (DML)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
ELLIOT KAPLAN and JEANNE
KAPLAN,
Civil No. 07-3630 (JRT/JJK)
Plaintiffs,
MEMORANDUM OPINION AND
ORDER ON DEFENDANTS’
MOTIONS IN LIMINE
v.
MAYO CLINIC, MAYO FOUNDATION,
MAYO FOUNDATION FOR MEDICAL
EDUCATION AND RESEARCH, MAYO
ROCHESTER, INC., MAYO CLINIC
ROCHESTER, INC., and LAWRENCE J.
BURGART,
Defendants.
James F. B. Daniels, MCDOWELL, RICE, SMITH & BUCHANAN,
PC, 605 West Forty-Seventh Street, Suite 350, Kansas City, MO 64112,
for plaintiffs.
William R. Stoeri and Andrew B. Brantingham, DORSEY & WHITNEY
LLP, 50 South Sixth Street, Suite 1500, Minneapolis, MN 55402, for
defendants.
This case arises out of a surgery performed on Elliot Kaplan (“Kaplan”) by a
surgeon at Mayo Clinic to treat pancreatic cancer, a condition which post-surgery testing
revealed that Kaplan never had. Kaplan and has wife Jeanne Kaplan (collectively, “the
Kaplans”) filed lawsuit against Mayo Clinic and its affiliated entities (collectively,
“Mayo”), as well as Dr. David Nagorney (“Dr. Nagorney”), the doctor who performed
Kaplan’s surgery, and Dr. Lawrence J. Burgart (“Dr. Burgart”), the doctor who
erroneously diagnosed Kaplan with pancreatic cancer.
27
The Court granted summary
judgment in favor of Dr. Nagorney.
The case proceeded to trial against the other
defendants on the Kaplans’ claims of breach of contract and negligent failure to diagnose.
At the close of the Kaplans’ case, the Court granted judgment as a matter of law against
them on their breach of contract claim. The jury returned a verdict for Mayo and Burgart
on the Kaplans’ claim for negligent failure to diagnose, and the Court entered judgment
on that verdict.
On appeal, the Eighth Circuit reversed as to the breach of contract claim
concluding that a reasonable jury could find that Nagorney, on behalf of Mayo, formed a
contract with Kaplan when Nagorney told Kaplan that he would perform an
intraoperative biopsy to confirm the cancer diagnosis before proceeding with the surgery.
The Eighth Circuit found that Nagorney breached this contract when he failed to perform
the promised biopsy. The Eighth Circuit remanded for further proceedings on the breach
of contract claim.
The case is now before the Court on Mayo’s motions in limine regarding the
presentation of damages evidence at the remand trial on the Kaplans’ breach of contract
claim. Mayo requests that the Court (1) preclude the Kaplans from presenting evidence
of pain and suffering and emotional damages in support of their breach of contract claim;
(2) dismiss Mrs. Kaplan’s loss of consortium claim; and (3) limit the Kaplans’ evidence
of damages to documents and information disclosed prior to the December 30, 2012
disclosure deadline.
For the reasons explained below, the Court will grant Mayo’s
motion to exclude evidence of pain and suffering and emotional damages and will
dismiss Mrs. Kaplan’s loss of consortium claim. The Court will deny Mayo’s motion to
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limit the Kaplans’ evidence to damages information disclosed prior to December 30,
2012.
BACKGROUND
I.
THE WHIPPLE PROCEDURE
In July 2003, Kaplan was hospitalized in Missouri after experiencing severe
abdominal pain. A CT scan showed that Kaplan had an enlarged pancreas, and doctors in
Missouri proceeded to perform a needle biopsy on the pancreas. A pathologist affiliated
with the Missouri hospital reviewed the biopsy and, based on that review, Kaplan was
diagnosed with pancreatic cancer.
In August 2003, Kaplan sought a second opinion from Mayo, and sent Mayo the
pathology slides that the Missouri doctors had prepared in conjunction with the needle
biopsy. Dr. Burgart, a Mayo pathologist, reviewed the pathology slides and diagnosed
Kaplan with grade 2 infiltrating pancreatic cancer.
Another Mayo doctor made an
independent diagnosis of pancreatic cancer based on the slides. Given Dr. Burgart’s
diagnosis, Dr. Nagorney, a Mayo surgeon, recommended that Kaplan undergo a
pancreatoduodenectomy, or “Whipple” procedure, which involves excising portions of
the pancreas and stomach as well as the entire pylorus and duodenum.
Kaplan was concerned about the validity of the cancer diagnosis, and expressed
this concern to Dr. Nagorney. When asked if he could confirm the diagnosis during the
surgery, Dr. Nagorney allegedly replied that he would do a biopsy of the mass to verify
that it was cancer, and if there was no cancer, Dr. Nagorney would not complete the
procedure. On August 14, 2003, Dr. Nagorney performed the Whipple procedure on
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Kaplan. Dr. Nagorney did not perform an intraoperative biopsy on Kaplan’s pancreatic
tissue, and completed the Whipple procedure. After examining the pancreatic tissue postoperatively, Mayo pathologists concluded that Kaplan did not have pancreatic cancer.
II.
PROCEDURAL HISTORY
In 2007, the Kaplans filed a complaint against Mayo, Dr. Nagorney, and
Dr. Burgart, alleging claims for medical malpractice, negligent nondisclosure, breach of
contract, and loss of consortium. (See Am. Compl., Sept. 17, 2007, Docket No. 4.)
A.
Summary Judgment and Trial
In 2008, the Court granted summary judgment in favor of Dr. Nagorney, finding
that the Kaplans’ expert affidavit opined only on medical negligence with respect to
Kaplan’s medical diagnosis, and not with respect to the surgical procedure performed on
Kaplan. (Order at 14-15, Oct. 27, 2008, Docket No. 87.) Consequently, the Court
dismissed all of the Kaplans’ claims against Dr. Nagorney with prejudice. (Id. at 15.)
The case proceeded to trial against the other defendants on claims of breach of
contract and negligent failure to diagnose. (See Pl.’s Statement of the Case at 5, Mar. 23,
2009, Docket No. 116.) Before conclusion of the trial, the Court granted defendants’
motion for judgment as a matter of law on the breach of contract claims. (Minute Entry,
Apr. 14, 2009, Docket No. 165.) The Court determined that the breach of contract claim,
which arose “out of the diagnosis, care and treatment of [Kaplan],” failed because the
Kaplans had not presented expert testimony relating to the standard of care to determine
whether there had been a breach. (Tr. at 986-87, July 15, 2010, Docket No. 202.)
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After the evidence was presented, the jury returned a verdict for Mayo and
Dr. Burgart on the Kaplans’ claims for negligent misdiagnosis. (Special Verdict Form at
1, Apr. 15, 2009, Docket No. 166.) Because the jury found that neither Mayo nor
Dr. Burgart was negligent in the care or treatment of Kaplan, the jury did not answer any
questions regarding damages. (Id. at 1-2.) The Court entered judgment on the verdict.
(J., Apr. 17, 2009, Docket No. 169.) The Court then denied the Kaplans’ motion for a
new trial, and the Kaplans appealed. (Order, Apr. 20, 2010, Docket No. 184; Notice of
Appeal, May 20, 2010, Docket No. 190.)
B.
Appeal
On appeal, the Eighth Circuit denied the Kaplans’ request for a new trial on their
claim for negligent failure to diagnose, and affirmed the Court’s judgment with respect to
that claim. Kaplan v. Mayo Clinic, 653 F.3d 720, 724-26 (8th Cir. 2011). The Eighth
Circuit also affirmed the Court’s grant of judgment in favor of Dr. Burgart on the
Kaplans’ breach of contract claim. Id. at 727. But the Eight Circuit concluded that the
Court erred in granting judgment as a matter of law to Mayo on the Kaplans’ breach of
contract claim. Id. at 729.
Viewing the evidence in the light most favorable to the Kaplans, the Eighth Circuit
reviewed the Court’s grant of judgment as a matter of law to determine whether any
reasonable jury could have found in favor of the Kaplans on their breach of contract
claim. Id. at 727. To establish a claim for breach of contract the Kaplans were required
to show formation of a contract, breach, and resulting damages. Id. at 726 (citing Briggs
Transp. Co. v. Ranzenberger, 217 N.W.2d 198, 200 (Minn. 1974)).
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The Eighth Circuit first determined that a reasonable jury could have found that
Dr. Nagorney, acting on behalf of Mayo, formed a contract when he allegedly told
Kaplan that Dr. Nagorney would perform an intraoperative biopsy to confirm the cancer
diagnosis. Id. at 727. As consideration “Mr. Kaplan authorized Dr. Nagorney and his
colleagues to perform the Whipple procedure and paid them for that surgery.”
Id.
Although Dr. Nagorney testified that he never made such a promise, the Eighth Circuit
determined that “this testimony merely raises factual question for the jury as to whether
there was an agreement.” Id. The Eighth Circuit also determined that a jury could
conclude the contract was breached, because it “is undisputed” that Dr. Nagorney failed
to perform an intraoperative biopsy. Id. at 728.
With respect to damages, the Eighth Circuit concluded that a reasonable jury could
have made the requisite finding of damages. To recover on a breach of contract the
damages must have resulted from the breach. Id. The Eighth Circuit determined that the
Kaplans needed to demonstrate two different steps to show causation as to damages. Id.
First, the Kaplans “had to offer evidence to support a finding that the intraoperative
biopsy results would have been negative for cancer,” and the Eighth Circuit concluded
the Kaplans had made such a showing. Id. Second, the Kaplans would have to establish
that “Dr. Nagorney would not have performed the Whipple procedure if the promised
biopsy was negative.” Id. Finally, the Eighth Circuit determined that the Kaplans had
“provided sufficient evidence of economic damages resulting from that procedure –
though the amount was greatly disputed – to meet the final requirement for making out
their contract claim.” Id.
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The Eighth Circuit also found that the Kaplans’ breach of contract claim did not
simply restate a medical malpractice claim – a claim that would require expert testimony.
Id. at 729. The Eighth Circuit noted that “Minnesota law requires plaintiffs to file an
expert-witness affidavit in any action against a health care provider for ‘malpractice,
error, mistake, or failure to cure, whether based on contract or tort,’ if ‘expert testimony
is necessary to establish a prima facie case’ in that action.” Id. at 728-29 (quoting Minn.
Stat. § 145.682)). The court concluded that expert testimony was unnecessary to support
the Kaplans’ “perfectly ordinary, garden-variety contract claim,” and characterized the
claim as “simply that a physician promised to perform a certain procedure and did not do
it, resulting in damages to [the Kaplans].” Id. at 729.
Finally, the Eighth Circuit remanded for further proceedings on the Kaplans’
breach of contract claim. Id.1 In doing so, the court noted that “[t]he parties’ briefs do
not discuss the question of whether Ms. Kaplan’s loss-of-consortium damages are
recoverable in a contract action. This is a matter for exploration on remand should it
arise.” Id. at 729 n.1.
C.
Post-Remand Discovery Issues
During an October 2, 2012 phone conference, the Court granted Mayo’s request to
pursue limited additional discovery into the Kaplans’ damages, and set a February 1,
2013 deadline for such discovery. (Minutes, Oct. 2, 2012, Docket No. 239.)
1
The Kaplans did not appeal the grant of summary judgment in favor of Dr. Nagorney
and the Eighth Circuit affirmed the grant of judgment as a matter of law on the breach of contract
claim to Dr. Burgart. Therefore, the breach of contract claim articulated by the Eighth Circuit is
only against Mayo on remand.
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On October 11, 2012, Mayo served the Kaplans with interrogatories and document
requests regarding damages. (See Defs.’ Mem. in Supp. of Mot. for Sanctions at 1,
Jan. 4, 2013, Docket No. 256.) After receiving no response, Mayo brought a motion to
compel that discovery. (Mot. to Compel, Nov. 30, 2012, Docket No. 244.) United States
Magistrate Judge Jeffrey Keyes granted the motion to compel and ordered the Kaplans to
respond to the discovery requests by December 30, 2012. (Order, Dec. 11, 2012, Docket
No. 250.) The Magistrate Judge also awarded Mayo its fees and costs incurred in
bringing the motion to compel, which order this Court affirmed. (Id. at 3; Order, Jan. 3,
2013, Docket No. 252; Order, Feb. 8, 2013, Docket No. 279.)
The Kaplans then twice produced responses to Mayo’s October 11, 2012
discovery request. (See Eighth Decl. of Heather M. McCann, Exs. K-L, Jan. 4, 2013,
Docket No. 257.) The Kaplans responses were incomplete, and did not contain all of the
updated information requested by Mayo. (See id., Ex. M.) Due to the inadequacy of the
responses, on January 8, 2013, Mayo brought a motion for sanctions and a motion to
compel. (Mot. to Compel, Jan. 8, 2013, Docket No. 259.) In the motion, Mayo sought an
order, among other things, compelling complete responses and “prohibiting Plaintiffs
from introducing into evidence or relying on evidence or argument based on evidence not
disclosed or produced prior to the Court’s December 30, 2012 deadline.” (Id. at 1.)
Mayo also asked the Court to extend the February 1, 2013 discovery deadline for
defendants only. (Id.)
The Magistrate Judge granted in part and denied in part Mayo’s motion to compel.
(Order, Feb. 7, 2013, Docket No. 277.)
Of relevance to the present motions, the
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Magistrate Judge denied Mayo’s request that the Kaplans be prohibited from introducing
at trial any evidence not disclosed before December 30, 2012. (Order, Feb. 7, 2013,
Docket No. 277.) This denial was, however, without prejudice because the Magistrate
Judge concluded he was “not going to make that type of evidentiary ruling with respect to
the trial of this case,” and specifically stated he was not “precluding Judge Tunheim from
deciding the issue at the appropriate motion that’s made at the time of trial.” (Tr. at 34,
Feb. 12, 2013, Docket No. 281.) The Magistrate Judge granted Mayo’s motion to compel
the production of signed tax returns, supplemental answers to interrogatories, and a blank
authorization for the release of Kaplan’s medical records. (Order, Feb. 7, 2013, Docket
No. 277.) With respect to the extension of time for discovery the Magistrate Judge
treated the request as one to continue the trial date, and declined to do so, determining
that issue was best left to “counsel to work . . . out between themselves and with . . .
Judge Tunheim to determine whether or not any delay of the trial is warranted with
respect to that matter.” (Tr. at 37.)
ANALYSIS
I.
CONTRACTUAL DAMAGES EVIDENCE
The Court begins by determining whether the Kaplans may present evidence of
pain and suffering and emotional distress to prove damages in relation to their breach of
contract claim.
A damage award in a breach of contract action is intended to place the nonbreaching party “in the position in which he would be if the contract were performed.”
Lesmeister v. Dilly, 330 N.W.2d 95, 102 (Minn. 1983); see also Jepson v. Gen. Cas. Co.
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of Wis., 513 N.W.2d 467, 472 (Minn. 1994) (“[P]eople should get the benefit of the
contracts they enter into, nothing less and nothing more.”). Therefore, a plaintiff may
recover those “damages sustained by reason of the breach which arose naturally from the
breach or could reasonably be supposed to have been contemplated by the parties when
making the contract as the probable result of the breach.” Lesmeister, 330 N.W.2d at 103;
see also Franklin Mfg. Co. v. Union Pac. R.R. Co., 248 N.W.2d 324, 325 (Minn. 1976)
(“When the damages are assessed as those which it is reasonable to suppose that the
parties had in mind, what is really meant is that the law, aiming at compensation,
considers it fair to hold a defendant for damages which as a reasonable man he ought to
have foreseen as likely to follow from a breach. What he in fact foresaw or contemplated
is immaterial.” (internal quotation marks and alterations omitted)). Whether damages
were reasonably foreseeable at the time of contracting is a question of fact. See Franklin
Mfg. Co., 248 N.W.2d at 326.
“Liability for breach of contract requires proof that damages resulted from or were
caused by the breach.” Border State Bank of Greenbush v. Bagley Livestock Exch., Inc.,
690 N.W.2d 326, 336 (Minn. Ct. App. 2004). Whether a particular damage resulted from
or was caused by a breach of contract is a question for the jury. See id.; see also Cashman
v. Allied Prods. Corp., 761 F.2d 1250, 1254 (8th Cir. 1985) (finding that “the jury could
reasonably infer from the evidence presented” that the plaintiff had suffered lost profits
due to the breach).
Extra-contractual damages, on the other hand, are those which do not flow
naturally from the breach and are not reasonably anticipated by the parties to the contract.
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See Wild v. Rarig, 234 N.W.2d 775, 789 (Minn. 1975). In Minnesota, extra-contractual
damages “are not recoverable for breach of contract except in exceptional cases where the
breach is accompanied by an independent tort.” Haagenson v. Nat’l Farmers Union Prop.
& Cas. Co., 277 N.W.2d 648, 652 (Minn. 1979). “The accompanying independent tort
must be willful.” Lickteig v. Alderson, Ondov, Leonard & Sween, P.A., 556 N.W.2d 557,
561 (Minn. 1996). The rule disallowing extra-contractual damages is designed “to insure
that contract law is not swallowed by tort law.” Deli v. Univ. of Minn., 578 N.W.2d 779,
782 (Minn. Ct. App. 1998).
A jury found in favor of the defendants on all of the Kaplans’ tort claims and the
Eighth Circuit affirmed the verdict. Therefore, there is no independent tort in the present
case and the Kaplans cannot recover any extra-contractual damages.
The difficulty,
however, is determining whether pain and suffering and emotional distress damages
constitute extra-contractual damages in the context of the alleged contract between Mayo
and the Kaplans.
Although pain and suffering and emotional distress damages might seem to be the
natural proximate cause of a breach in certain types of contracts, Minnesota courts have
expanded the prohibition on recovering such damages in a breach of contract action, even
where those damages could be reasonably within the contemplation of the parties based on
the nature of the contract.
See Lickteig, 556 N.W.2d at 561 (categorically defining
emotional distress damages as “extra-contractual”); Francis v. W. Union Tel. Co., 59
N.W. 1078, 1081 (Minn. 1894) (denying recovery of emotional distress damages even
after recognizing that a contract to send a sensitive telegram relates “wholly to matters of
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sentiment or feeling” and therefore breach of such a contract could reasonably be expected
to result in mental anxiety); Deli, 578 N.W.2d at 781-82 (finding emotional distress
damages could not be awarded on a claim for an athletic director’s breach of an oral
promise not to view a videotape that contained footage of the plaintiff’s sexual encounter
with her husband, despite the “inherently personal nature” of the contract); Born v.
Medico Life Ins. Co., 428 N.W.2d 585, 587, 590 (Minn. Ct. App. 1988) (stating that pain
and suffering were extra-contractual damages even though the breach alleged was for a
contract to provide medical insurance).
Instead of examining solely the foreseeability of certain damages to determine
whether such damages may be extra-contractual, Minnesota law appears to restrict
recoverable contractual damages more generally to those that are pecuniary in nature. The
Minnesota Supreme Court has long held that regardless of the “nature of the contract . . .
[t]he law looks only to the pecuniary value of the contract, and for its breach awards only
pecuniary damages.” Francis, 59 N.W. at 1081; see also Beaulieu v. Great N. Ry. Co.,
114 N.W. 353, 356 (Minn. 1907) (explaining that in the absence of an independent tort,
damages for breach of contract “must be limited to the actual pecuniary loss naturally and
necessarily flowing from the breach”). Therefore, in addition to requiring that contractual
damages be those which flow directly from the breach and were within the contemplation
of the parties, the Minnesota Supreme Court has held that contractual damages are those
which “may be measured and determined by some definite rule or standard of
compensation.” Beaulieu, 114 N.W. at 355. Thus damages that are “incapable of definite
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calculation” and “must necessarily rest in the discretion of the jury” are extra-contractual
and are recoverable only in tort actions. Id.
It does not appear that the Minnesota Supreme Court has ever precisely addressed
whether pain and suffering and emotional distress damages are recoverable for breach of a
contract between a physician and his patient. Where the Court is faced with an undecided
question of Minnesota law, its role is to predict how the Minnesota Supreme Court would
resolve the question. See Spine Imaging MRI, L.L.C. v. Country Cas. Ins. Co., Civ.
No. 10-480, 2011 WL 379100, at *6 (D. Minn. Feb. 1, 2011) (citing Midwest Oilseeds,
Inc. v. Limagrain Genetics Corp., 387 F.3d 705, 715 (8th Cir. 2004)).
Although many courts have recognized that “a surviving patient can maintain a
cause of action for breach of an express or implied promise against a physician,”
Zostautas v. St. Anthony De Padua Hosp., 178 N.E.2d 303, 307 (Ill. 1961), courts have
disagreed about whether those surviving patients can recover damages for pain and
suffering or emotional distress. Some courts have held that where “liability is predicated
on the failure to perform an agreed undertaking rather than upon negligence . . . the
damages are restricted to the payments made, the expenditure for nurses and medicines, or
other damages that flow naturally from the breach (thereof), and do not include the
patient’s pain and suffering as in malpractice actions.” Id. at 305 (citations and internal
quotation marks omitted).2 Courts limiting recoverable damages for breach of a contract
2
See also Sangdahl v. Litton, 69 F.R.D. 641, 645 (S.D.N.Y. 1976) (“If the physician fails
to perform the original operation which he undertook, it would also seem that an action for
breach of contract ought to lie. If such an action does lie, however, contract damages, as
opposed to tort damages, will be recovered. This would exclude recovery for pain and
(Footnote continued on next page.)
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by a physician have done so in part to maintain a clear distinction between tort and
contract claims, emphasizing that “[a]lthough . . . actions of malpractice and breach of
contract may arise out of the same transaction, they are distinct as to theory, proof and
damages.” Id. at 304.
Other courts, however, when faced with a contract between a physician and patient
have applied the general rule of contract law that a plaintiff may recover damages that
were within the contemplation of the contracting parties. In Stewart v. Rudner, for
example, the court allowed the plaintiff to recover mental anguish and pain and suffering
damages in a contract in which a physician had agreed, but failed to perform a Caesarean
section, causing the death of the plaintiff’s unborn child. 84 N.W.2d 816, 821, 824
(Mich. 1957).
The court focused on the underlying subject matter of the parties’
agreement, reasoning that this particular contract was “concerned not with trade and
commerce but with life and death,” a breach of which would “inevitably and necessarily
result in mental anguish, pain and suffering.” Id. at 824. Therefore, the court held that
“[i]n such cases the parties may reasonably be said to have contracted with reference to
the payment of damages [for mental anguish and pain and suffering] in the event of
breach. Far from being outside the contemplation of the parties they are an integral and
____________________________________
(Footnote continued.)
suffering.” (internal quotation marks omitted)); Carpenter v. Moore, 322 P.2d 125, 126-27
(Wash. 1958) (“The amount paid, or promised to be paid, is the consideration for the promise of
a professional man that the patient or client will be satisfied with his work. . . . However,
damages for pain and suffering, ordinarily predicated on negligence or malpractice, are not
within the contemplation of the parties for the breach of a promise to do work to the satisfaction
of a patient or client in the absence of some negligence or fault.”).
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inseparable part of it.” Id.; see also Sullivan v. O’Connor, 296 N.E.2d 183, 188-89
(Mass. 1973) (“It is all a question of the subject matter and background of the contract,
and when the contract calls for an operation on the person of the plaintiff, psychological
as well as physical injury may be expected to figure somewhere in the recovery,
depending on the particular circumstances.”).
Based upon Minnesota’s general law governing contractual damages, the Court
concludes that the Minnesota Supreme Court would likely follow the Zostautas court’s
approach, and preclude the Kaplans from recovering pain and suffering and emotional
distress damages based upon the breach of any contract formed with Mayo. Although it is
possible that pain and suffering and emotional distress could have reasonably been within
the contemplation of Mayo and the Kaplans based upon the nature of the contract at issue,
the Minnesota Supreme Court has expressly rejected the approach used in Stewart and
Sullivan of examining the underlying nature of the contract to determine whether damages
such as those for mental anguish and pain and suffering are recoverable. See Francis, 59
N.W. at 1081 (refusing to “allow damages for injury to the feelings resulting from a
breach of contract – even one [relating wholly to matters of sentiment or feeling]”).
Instead Minnesota law appears to limit damages in a contract action to those capable of
measurement by “some definite rule or standard of compensation,” and “to the actual
pecuniary loss naturally and necessarily flowing from the breach.” Beaulieu, 114 N.W. at
356.3 The Kaplans’ pain and suffering as well as any emotional distress they may have
3
Additionally, whether a plaintiff seeks damages for pain and suffering has been a key
factor relied upon by Minnesota courts in determining whether a particular action is one
(Footnote continued on next page.)
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suffered are damages that, although recoverable in tort, do not appear to be recoverable in
a breach of contract action under Minnesota law.4 Therefore, the Court will preclude the
Kaplans from presenting evidence of pain and suffering or emotional distress at trial to
support their breach of contract action.5
The Court’s conclusion that the Kaplans may not recover damages for pain and
suffering or emotional distress is further supported by the Eighth Circuit’s opinion in this
____________________________________
(Footnote continued.)
sounding in contract or tort for purposes of deciding whether an action disguised as a breach of
contract is actually attempting to recover for a tort that has been abolished. See R.E.R. v. J.G.,
552 N.W.2d 27, 29 (Minn. Ct. App. 1996) (citing with approval a case holding that “plaintiff
could not maintain his action for breach of contract because the claimed damages, pain and
suffering, demonstrated his reliance on a prohibited tort theory.” (citation omitted)). That
Minnesota courts distinguish between contract and tort claims based on the presence of pain and
suffering damages further suggests that the Kaplans may not recover such damages on their
breach of contract claim.
4
A sole exception located by the Court is Sargent v. Mason, 112 N.W. 255, 257 (Minn.
1907), which suggested that pain and suffering damages may be recoverable in an action for
breach of a contract to furnish heat to plaintiff’s residence. Sargent appears to be somewhat at
odds with the overall tenor of Minnesota law described above.
5
Mayo makes two additional arguments in support of its position that Kaplan cannot
recover pain and suffering or emotional distress damages in this case. First, Mayo argues that
Dr. Nagorney would have proceeded with the Whipple procedure even if an intraoperative
biopsy had been performed and returned a negative result. Second, Mayo argues that Kaplan’s
alleged post-surgery symptoms are not post-Whipple symptoms or complications but are instead
the product of some other medical condition. Neither of Mayo’s arguments is directly relevant to
the instant motion, because both merely go to causation, not to whether the damages Kaplan
seeks are contractual or extra-contractual. As explained above “[l]iability for breach of contract
requires proof that damages resulted from or were caused by the breach,” and whether
particular damages resulted from a breach is a question for the jury. Border State Bank of
Greenbush v. Bagley Livestock Exchange, Inc., 690 N.W.2d 326, 336 (Minn. Ct. App. 2004)
(emphasis added). Additionally, the Eighth Circuit specifically identified Mayo’s first
contention as a question for the jury. Kaplan, 653 F.3d at 728. Therefore, the parties are clearly
allowed to present evidence at trial regarding whether Dr. Nagorney’s breach (failing to do a
biopsy) caused any of the Kaplans’ claimed damages. But this conclusion does not answer the
question of whether the Kaplans may seek damages for pain and suffering and emotional distress
as a matter of law.
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case. The Eighth Circuit specifically determined that the Kaplans had “provided sufficient
evidence of economic damages resulting from [the Whipple] to meet the final
requirement for making out their contract claim. Kaplan, 653 F.3d at 728 (emphasis
added). Furthermore, the Court notes that its conclusion is in keeping with the purpose of
limiting extra-contractual damages, to wit: preserving the boundary between contract and
tort law. See Deli, 578 N.W.2d at 782. The Kaplans already brought tort claims against
the defendants in this case.
The jury rejected those claims, and the Eighth Circuit
affirmed. The Kaplans cannot use their remaining breach of contract claim to attempt to
recover all of the damages that may have been recoverable in those tort claims. Although
allegedly based on some of the same conduct, the Kaplans’ breach of contract action is
distinct “as to theory, proof and damages,” Zostautas, 178 N.E.2d at 304, and therefore the
Kaplans may not recover damages for pain and suffering and emotional distress.
II.
LOSS OF CONSORTIUM
Under Minnesota law, a spouse of a person “injured as a direct result of the
negligence of another shall have a right of action against that same person for her loss of
consortium,” provided the injured person recovers against the tortfeasor and the spouse
joins his or her claim in the same action as the injured person. Thill v. Modern Erecting
Co., 170 N.W.2d 865, 869 (Minn. 1969). “Loss of consortium is a derivative claim,
failure of the tort claims underlying the loss of consortium claim will preclude recovery.”
Schanhaar v. EF Techs, Inc., Civ. No. 08-5382, 2010 WL 4056045, at *4 (D. Minn.
Oct. 14, 2010); see also Peters v. Bodin, 65 N.W.2d 917, 922 (Minn. 1954).
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Although it does not appear that Minnesota courts have explicitly rejected a claim
for consortium brought as a derivative to a breach of contract claim, the Kaplans have not
cited to, nor has the Court found any Minnesota cases that have allowed such a claim.6
The majority of other jurisdictions have concluded that a loss of consortium claim cannot
derive from a breach of contract action, and the Court can identify no reason why the
Minnesota Supreme Court would hold differently. See, e.g., Riley v. Champion Int’l
Corp., 973 F. Supp. 634, 651 (E.D. Tex. 1997) (“[A] spouse’s derivative claims may not
rest upon a simple breach of contract claim.”); Perrin v. Hilton Int’l Inc., 797 F. Supp.
296, 302 (S.D.N.Y. 1992) (“[A] claim for loss of consortium cannot be derived from a
spouse’s breach of contract claim.”); Covert v. Allen Grp., Inc., 597 F. Supp. 1268, 1270
(D. Colo. 1984) (“A cause of action for loss of consortium cannot arise out of a cause of
action for breach of contract or the ancillary theory of promissory estoppel.”). Because
6
The Kaplans cite to Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686 (Minn.
1980), in support of their argument that the Minnesota Supreme Court would allow a loss of
consortium claim for a breach of contract action. Togstad involved a claim for legal malpractice
which arose from the attorney’s determination that the plaintiff did not have a viable medical
malpractice claim. Id. at 689-90. A jury found in plaintiff’s favor on the legal malpractice
claim, determining that the plaintiff would have been successful in the underlying medical
malpractice claim, because a doctor’s negligence had resulted in the plaintiff’s paralysis. Id. at
692. The court declined to determine “whether a tort or contract theory is preferable for
resolving the attorney-client relationship question presented by this appeal,” but upheld the
jury’s award to the injured plaintiff’s wife for loss of consortium. Id. at 693, 695. The Kaplans
suggest that because the court declined to decide whether the legal malpractice action was based
in contract or tort, the opinion can be read as allowing loss of consortium claims based upon
breach of contract. The Kaplans’ reading of Togstad is overly broad. Togstad involved the
unique circumstances of a legal malpractice action overlying a medical malpractice action. The
plaintiff was entitled to recover on a loss of consortium claim that was based on the underlying
medical malpractice tort. Therefore, the Togstad opinion does not address the question of
whether the Togstad plaintiffs could have maintained a loss of consortium claim if the
underlying medical malpractice action had instead been based upon breach of a contract by the
physician.
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loss of consortium is a claim that is derivative of a tort, the Court concludes that
Mrs. Kaplan cannot maintain a loss of consortium claim based upon the breach of
contract claim remaining in this matter.
In its motion, Mayo appears to be requesting dismissal of Mrs. Kaplan’s claim
rather than simply the exclusion of evidence in support of that claim. Normally “motions
in limine are not proper procedural devices for the wholesale disposition of theories or
defenses.” In re Levaquin Prods. Liab. Litig., Civ. No. 08-5743, 2010 WL 4676973, at
*3 (D. Minn. Nov. 9, 2010) (internal quotation marks omitted); see also CardioVention,
Inc. v. Medtronic, Inc., 483 F. Supp. 2d 830, 842 (D. Minn. 2007) (declining to decide a
dispositive motion contained within a motion in limine). However, the Court finds that it
is proper to dismiss Mrs. Kaplan’s claim at this time because requiring Mayo to file a
separate motion to dismiss would “only prolong a meritless position,” and would require
the parties to reargue the validity of the loss of consortium claim, which has been fully
briefed in connection with the motion in limine. See SPX Corp. v. Bartec USA, LLC,
No. 06-14888, 2008 WL 3850770, at *3 (E.D. Mich. Aug. 12, 2008) (deciding whether
summary judgment should be granted on a claim, even though the issue was raised in a
motion in limine).7 Moreover, given the unique procedural posture of this case on
remand, it does not appear that Mayo is attempting to use a motion in limine to
7
See also Allan Block Corp. v. Cnty. Materials Corp., Civ. No. 05-2879, 2009 WL
1955588, at *7-11 (D. Minn. July 6, 2009) (considering on a motion in limine whether plaintiff’s
breach of contract claims were barred as a matter of law by res judicata); Metro. Enter. Corp. v.
United Techs. Int’l Corp., No. Civ. 3:03CV1685, 2006 WL 522384, at *2 (D. Conn. Feb. 27,
2006) (converting a motion in limine to a motion to dismiss).
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circumvent a dispositive motion deadline.
Therefore, the Court will dismiss
Mrs. Kaplan’s claim for loss of consortium, and preclude the Kaplans from presenting
evidence in support of this claim at trial.
III.
EVIDENCE NOT PRODUCED BEFORE DECEMBER 30, 2012
Mayo also requests that the Court exclude all evidence of damages not produced
by the Kaplans prior to the December 30, 2012 deadline set by the Magistrate Judge.
Although this argument was presented to the Magistrate Judge, the Magistrate Judge
specifically declined to rule, and left this determination for this Court.
Federal Rule of Civil Procedure 37 provides that where a party “fails to obey an
order to provide or permit discovery” a court is permitted to “prohibit[] the disobedient
party from supporting or opposing designated claims or defenses, or from introducing
designated matters in evidence.” Fed. R. Civ. P. 37(b)(2)(A). “The district court is
afforded great latitude in imposing sanctions for failure to comply with discovery
orders[.]” Hazen v. Pasley, 768 F.2d 226, 229 (8th Cir. 1985).
Mayo confirmed at oral argument on the present motion that it has received all
requested discovery regarding the Kaplans’ claimed damages. The trial is not set to
begin until this fall, giving Mayo ample time to review the Kaplans’ relatively small
amount of new damages information.
Although this information is undoubtedly
important, it cannot be that the slight delay in receiving this information from the
Kaplans will or has seriously hampered Mayo’s ability to prepare for this trial. The Court
concludes that precluding the Kaplans from presenting updated evidence of damages
would be an overly harsh sanction given the nature of the information and the timeline of
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this case. Thus, the Court will allow evidence produced after December 30, 2012, to be
used at trial, and the Court cautions counsel to comply with the Federal Rules and the
Court’s orders in the future.8
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.
Defendants’ Motion in Limine [Docket No. 269] is GRANTED in part
and DENIED in part as follows:
a.
To the extent Defendants’ motion seeks to preclude Plaintiffs from
presenting evidence at trial of pain and suffering or mental anguish in support of
their claim for breach of contract, the motion is GRANTED;
b.
To the extent Defendants’ motion seeks to preclude Plaintiffs from
presenting evidence at trial in support of their claim for loss of consortium, the
motion is GRANTED;
c.
Plaintiffs’ claim for loss of consortium (Count II) is DISMISSED
with prejudice; and
8
In a similar vein, Mayo filed a motion to strike the Kaplans’ “Bench Brief Regarding
Damages” that was filed the day before the hearing on Mayo’s motions in limine. The Bench
Brief outlines the arguments that Kaplans’ counsel intended to make during the oral argument.
Although the Bench Brief was not authorized by the Court or the Local Rules, the Court is not
required to strike noncompliant pleadings, but retains discretion to do so as a sanction. Because
the Bench Brief essentially reiterates the Kaplans’ arguments presented in its initial response to
the motions in limine, its filing caused Mayo no prejudice, and the Court finds it unnecessary to
strike the pleading. As such, it will deny Mayo’s motion, though it reminds counsel to carefully
abide by the Local Rules in the future.
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d.
To the extent Defendants’ motion seeks to preclude Plaintiffs from
present evidence at trial that was disclosed to Defendants after the December 30,
2012 deadline, the motion is DENIED.
2.
Defendants’ Motion to Strike Pleading [Docket No. 300] is DENIED.
DATED: May 28, 2013
at Minneapolis, Minnesota.
____s/
____
JOHN R. TUNHEIM
United States District Judge
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