Papin v. University of Mississippi Medical Center et al

Filing 192

ORDER granting in part and denying in part 175 Motion in Limine; granting in part and denying in part 177 Motion in Limine. Signed by District Judge Kristi H. Johnson on 9/22/2021. (ANT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

JOSEPH PAPIN
V.

PLAINTIFF
CIVIL ACTION NO. 3:17-CV-763-KHJ-FKB

UNIVERSITY OF MISSISSIPPI
MEDICAL CENTER

DEFENDANT
ORDER

Before the Court are Defendant University of Mississippi Medical Center’s
(“UMMC”) Amended Motion in Limine [175] and Plaintiff Dr. Joseph Papin’s
Amended Motion in Limine [177]. For the reasons below, the Court grants in part
and denies in part both motions.
I.

Background
Dr. Papin sued UMMC upon termination from his surgical residency in 2017.

The Court entered an Order on August 31st, granting in part and denying in part
both parties’ cross-motions for summary judgment. [170]. The only remaining issue
for trial is whether UMMC breached the terms of the House Officer Contract [144-3]
(“Contract”) by terminating Dr. Papin from his residency, and if so, the damages Dr.
Papin is entitled.
The Contract governed the terms of Dr. Papin’s employment during his
residency with UMMC. The Contract term was “for the period beginning June 28,
2016 and ending June 30, 2017 at an annualized sum of $47,738.00.” ¶ I. The

Contract specified that “UMMC is empowered to terminate this contract at any time
for malfeasance, inefficiency or contumacious conduct by Physician.” Id. ¶ IV(1). It
also stated,
Reappointment for additional years of training shall be based upon
evaluation of the Physician’s performance and availability of positions.
If . . . Physician does not exhibit sufficient competency to advance to the
following year of residency, then UMMC may terminate this contract at
the end of the academic year of the training program even if this contract
states a later termination date. UMMC shall give Physician at least four
(4) months written notice of an intent not to reappoint Physician to the
next year of training, unless the event or events giving rise to such nonreappointment occur during the last four months of the academic year,
in which case UMMC shall give Physician as much notice of nonreappointment as is reasonably allowable.

Id. ¶ IV(5).
A jury will resolve whether UMMC breached the Contract. Both parties filed
motions in limine in anticipation of trial. [175]; [177].
II.

Standard
The purpose of a motion in limine is to prevent opposing counsel from

“mentioning the existence of, alluding to, or offering evidence on matters so highly
prejudicial to the moving party that a timely motion to strike or an instruction by
the court to the jury to disregard the offending matter cannot overcome its
prejudicial influence on the jurors’ minds.” Parker v. Tyson Foods, Inc., 499 F. Supp.
3d 297, 299 (S.D. Miss. 2020) (quoting O’Rear v. Fruehauf Corp. 554 F.2d 1304,
1306 n.1 (5th Cir. 1977)). Though the granting of a motion in limine “does not
preclude the party sponsoring the evidence from revisiting the issue at trial,” the
issue must be raised “outside the jury’s presence.” Id. (quoting United States v.

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Beasley, No. 3:20-CR-36-DPJ-LRA, 2020 WL 6438255, at *1 (S.D. Miss. Nov. 2,
2020)).
III.

UMMC’s Motions

UMMC seeks to exclude various testimony and exhibits because they are
“irrelevant, unfairly prejudicial, and contrary to this [Court’s] prior rulings.” [175] ¶
1. The Court addresses each request in turn.
A. Claims Previously Dismissed by the Court
UMMC seeks to exclude “[a]ll testimony, argument, or attempt to elicit
testimony or evidence of claims that have been previously dismissed by the Court.”
[175] ¶ A(1). “Informing the jury regarding dismissal of other claims has no
apparent relevance in this case, and it would otherwise lead to unfair prejudice and
confusion of the issues.” Houston v. Miss. Dep’t of Hum. Servs., No. 3:13-cv-773DPJ-FKB, 2015 WL 7777275, at *1 (S.D. Miss. Dec. 2, 2015) (citing Fed R. Evid.
401, 402, 403). The Court therefore grants the motion.
B. Dr. Papin’s Discrimination Claim and Hispanic Heritage
UMMC seeks to exclude “[a]ll testimony, argument, or attempt to elicit
testimony that Plaintiff is [H]ispanic or has [H]ispanic heritage.” Id. ¶ A(2). UMMC
also seeks to exclude “[a]ll testimony, argument[,] or attempt to elicit testimony that
UMMC discriminated against the Plaintiff.” Id. ¶ A(3). Dr. Papin agrees that his
voluntarily withdrawn discrimination claim and evidence of his Hispanic heritage
should be excluded. See Papin Mem. in Support of Mot. in Limine [178] at 3. The
Court agrees with the parties. Any evidence about the fact that Dr. Papin brought

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Title VII claims and any evidence that he is Hispanic or has Hispanic heritage will
be excluded as irrelevant and prejudicial. Fed. R. Evid. 401, 402, 403. The motion is
granted in this respect.
Dr. Papin objects, however, to the exclusion of evidence that he was treated
differently from other residents. Papin Mem. Resp. in Opp. to Mot. in Limine [187]
at 2. He asserts that evidence UMMC treated him differently from other residents
is relevant to his breach of contract claim. Id. The Court agrees, and thus denies the
motion to the extent that UMMC seeks to broadly exclude evidence that Dr. Papin
was treated differently from other residents for purposes of whether UMMC
breached the Contract.
C. Procedural Due Process
UMMC seeks to exclude “[a]ll testimony, argument[,] or attempt to elicit
testimony that UMMC violated Plaintiff’s procedural due process rights.” [175] ¶
A(4). The Court grants this motion in part consistent with Section III.A, supra. The
Court denies the motion to the extent that any overlapping, relevant evidence may
prove whether UMMC breached the Contract.
D. Substantive Due Process Rights
UMMC seeks to exclude “[a]ll testimony, argument[,] or attempt to elicit
testimony concerning Plaintiff’s claims that he did not receive pre[-] or post[-]
termination notice, did not have a meaningful opportunity to be heard, that he was
not allowed to cross-examine witnesses, that he was not allowed to call witnesses,
that the hearing panel was a sham, and/or that members of the panel were biased

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against him.” Id. ¶ A(5). As far as UMMC moves to exclude reference to claims that
Dr. Papin was denied his constitutional right to substantive due process, the motion
is granted. See supra Section III.A. The Court, however, denies the remaining parts
of the motion as overbroad, as some facts may be relevant to the breach of contract
claim.
E. Arbitrary and Capricious Termination of Dr. Papin’s Employment
UMMC seeks to exclude “[a]ll testimony, argument[,] or attempt to elicit
testimony that UMMC acted in an arbitrary and capricious manner in deciding to
terminate Plaintiff’s employment.” Id. ¶ A(6). The Court denies this motion as it is
overbroad and is facially relevant to Dr. Papin’s breach of contract claims against
UMMC. See Dey v. State Farm Mut. Auto. Ins. Co., No. 1:12cv332-HSO-RHW, 2014
WL 11906645, at *3 (S.D. Miss. Jan. 17, 2014).
F. UMMC Failed to Provide an Academic Program that Met Established
Standards
UMMC seeks to exclude “[a]ll testimony, argument[,] or attempt to elicit
testimony that UMMC failed to provide an academic program that met established
standards.” Id. ¶ A(7). The motion is granted. See supra Section III.A.
G. Lost Earnings Beyond One-Year Contract
UMMC seeks to exclude “[a]ll testimony, argument[,] or attempt to elicit
testimony of lost earnings beyond the expiration of the Plaintiff’s one year house
officer contract.” Id. ¶ A(8). Dr. Papin objects, asserting that he is entitled to future
income damages outside the terms of the Contract. See Papin Resp. in Opposition to
UMMC Motion in Limine [187] at 5.
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First, Dr. Papin contends that “Medical Resident contracts are similar to the
continuous contracts provided to tenured and tenure track professors. . . . Even
though [the] contract is for a specific period of time, there is an expectation of
contract renewal.” Id. at 7 n.2 (citing Wilson v. Clark Atlanta Univ., Inc., 794 S.E.2d
422, 426 (Ga. Ct. App. 2016)). The Court is not persuaded by Dr. Papin’s argument
that medical resident contracts are fundamentally different from other employment
contracts. Dr. Papin does not cite Mississippi case law to support his view. Rather,
he cites a Georgia law case about tenure-track professors. Id. The Court finds this
analogy unavailing to a medical resident’s one-year contract under Mississippi law.
Second, Dr. Papin cites Fifth Circuit precedent for support that medical
resident contracts differ from traditional employment contracts. See id. at 8 (citing

Davis v. Mann, 882 F.2d 967, 974 (5th Cir. 1989)). He contends that Davis holds
that medical residency contracts are “distinct from other types of employment”
because the primary purpose is academic training. Id. (citing Davis, 882 F.2d at
974).
Although the Fifth Circuit noted that a residency contract is different from a
standard employment contract because its primary purpose is academic training, it
does not say that residency contracts should be examined with a different standard
from traditional employment contracts, as Dr. Papin suggests. Rather, in Davis, the
Fifth Circuit held that a dental resident’s due process rights were not violated when
terminated from his residency because he was paid the full stipend of his
employment contract, and thereby suffered no damages. 882 F.2d at 973. The Davis

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Court “found that an employee suffers no compensable damage from an early
employment termination where he has been paid his full salary for the contract
year.” Id. “Clearly, with his full stipend paid and his dental degree intact, Davis’s
employment termination did not deprive him of his ‘means of livelihood.’” Id.
(quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 543 (1985)). Here,
Papin still has his medical degree, and termination of his employment did not
deprive him of his “means of livelihood.” Id. Davis simply stands for the proposition
that in the event of breach, Dr. Papin may have a right to recover his entire yearly
stipend. See id.
UMMC contends that Dr. Papin’s damages are limited to the contractual
terms. UMMC cites to Fuselier, Ott & McKee, P.A. v. Moeller, 507 So. 2d 63, 68
(Miss. 1987) and Harrison v. Walker, 91 So. 3d 41, 46 (Miss. Ct. App. 2011). UMMC
Mem. Br. in Support of Motion in Limine [176] at 3. Harrison is most relevant here.
In Harrison, the plaintiff entered a one-year contract with no right of renewal. 91
So. 3d at 47. At trial, he presented evidence of his estimated loss of income over a
ten-year period. Id. But the court instructed the jury to limit the damages awarded
to the term of the one-year contract. Id. The Mississippi Court of Appeals found that
the jury instruction was an “accurate statement of the law,” and that limiting
damages to the term of the one-year contract awarded the plaintiff the “benefit of
the bargain by awarding him a sum of money that . . . put him in as good a position
as he would have been in had the contract been performed.” Id. (internal quotations
and citations omitted).

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Harrison instructs the Court that fixed-term employment contracts limit
recovery of damages to the term of the contract. Here, similarly, the Contract
clearly states that its term was for the “period beginning June 28, 2016 and ending
June 30, 2017.” [144-3] ¶ I. “Reappointment for additional years” was dependent
“upon evaluation of the Physician’s performance and availability of positions.” Id. ¶
IV(5). The Court therefore finds that the Contract was a one-year employment
contract like that in Harrison. For the reasons above, the Court finds that
Mississippi law restricts recoverable income damages at the one-year duration of
the Contract.
For these reasons, the Court grants UMMC’s motion as to the extent that
Papin seeks damages for loss of future income.
H. Testimony that UMMC Violated Its Own Policies and Procedures
UMMC seeks to exclude “[a]ll testimony, argument[,] or attempt to elicit
testimony that UMMC violated its own policies and procedures.” Id. at ¶ A(9). Dr.
Papin opposes the request because he contends such evidence is relevant to his
breach of contract claims. [187] at 4. The Court agrees with Dr. Papin, and
accordingly denies the motion.
I. Testimony of Dr. Carl Watkins and Dr. Michael Lietman Concerning
Whether UMMC Violated Accreditation Counsel for Graduate Medical
Education (ACGME) or its Own Policies
UMMC seeks to “exclude the testimony of Dr. Carl Watkins and Dr. Michael
Lietman concerning whether UMMC violated ACGME or its own policies.” Id. ¶

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A(9). In accordance with Section III.H., supra, the Court denies the motion because
such testimony may be relevant to whether UMMC breached the Contract.
J. Resident 76
UMMC seeks to exclude “[a]ll testimony, argument[,] or attempt to elicit any
testimony concerning Resident 76” and all documents related to Resident 76. Id. ¶¶
A(11), B(3). The Court finds the facts about Resident 76 have no relevance to Dr.
Papin’s breach of contract claim and will only confuse the jury. See Fed. R. Evid.
401, 402, 403. The motion is thus granted as to Resident 76.
K. Expert Report of Dr. Linke
UMMC seeks to exclude the Expert Report of Dr. Linke [175-A]. [175] ¶ B(1).
UMMC asserts that the Report should be excluded because Dr. Papin is limited by
his contract as to what damages he can collect. In accordance with III.G., supra, the
motion is granted.
L. Portions of Expert Reports of Carl Watkins and Michael Lietman that
Reference Due Process, Whether UMMC Violated its Own Policies and
Procedures or Established Standards in Terminating Dr. Papin’s Contract
UMMC seeks to exclude the portions of Carl Watkins’ and Michael Lietman’s
Expert Reports that reference due process and whether UMMC violated its own
policies in terminating Dr. Papin’s contract. In accordance with III.I, supra, this
motion is denied.
IV.

Dr. Papin’s Motions
In his Amended Motion in Limine, Dr. Papin seeks to exclude various

evidence from trial. [177] at 1. The Court addresses each in turn.

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A. Court’s Order on the Parties’ Cross-Motions for Summary Judgment
Dr. Papin seeks to exclude this Court’s Order on the Parties’ Cross-Motions
for Summary Judgment [170]. [177] at 1. To the extent that this motion requests
the same relief as that in III.A., supra, the Court grants the motion. The Court,
however, denies the motion if it seeks to exclude facts and legal arguments that are
relevant to whether UMMC breached the Contract.
B. Dr. Papin’s Voluntarily Withdrawn Discrimination Claim
Dr. Papin seeks to exclude testimony and evidence about his voluntarily
withdrawn discrimination claim. Id. The Court grants this motion. See supra
Section III.B.
C. Alleged Reasons for Termination Outside Enumerated Reasons in the
February 6, 2017, Email
Dr. Papin seeks to exclude testimony and evidence of reasons for his
termination that were not enumerated in the email he received on February 6,
2017. He asserts that reasons outside the email are inadmissible because they
deviate from UMMC’s 30(b)(6) Corporate Representative’s deposition testimony and
would result in “sandbagging.” Papin Mem. in Support of Mot. in Limine [178] at 4.
UMMC disagrees and contends that “the record shows that the reasons [for his
termination] were disclosed. . . during discovery, and there was no ‘sandbagging.’”
UMMC Mem. in Opp. Mot. in Limine [189] at 4.
“Rule 30(b)(6) aims to prevent a corporate defendant from thwarting
inquiries during discovery, then staging an ambush during a later phase of the
case.” Palmisano, LLC v. North Am. Capacity Ins. Co., No. 19-12755, 2021 WL
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1945834, at *3 (E.D. La. May 14, 2021) (internal quotations and citation omitted).
The record reflects UMMC provided Dr. Papin with evidence both prior to litigation
and throughout discovery as to why he was terminated from his residency. This
evidence includes the February 6, 2017 email, but is not limited to it. The Court
finds “no sandbagging” and therefore denies the motion.
D. Statements About Dr. Papin Made by Unidentified Employees of UMMC
Dr. Papin seeks to exclude statements about himself made by unidentified
employees of UMMC. [177]. UMMC counters that such statements are admissible
as a regularly kept business record under Rule 803(6). [189] at 4. Additionally,
UMMC argues that this evidence is admissible under the present-sense impression
exception to hearsay under 803(1). Id. at 5. In the alternative, UMMC argues that
such evidence is admissible under Rule 404 to show “modus operandi, lack of
mistake, and UMMC’s motive and good faith in terminating the contract.” Id. at 6.
The Court agrees with UMMC that these statements by unidentified
individuals should not be categorically excluded. The Court can rule on specific
instances at trial. The motion is therefore denied.
E. UMMC’s Rebuttal Expert, Robert Alexander
Finally, Dr. Papin seeks to exclude testimony from the UMMC’s expert,
Robert Alexander. [177]. He seeks to limit the testimony and report of Robert
Alexander because his report is used to rebut Dr. Papin’s former expert, Nicholas
Hill, who has since withdrawn. [178] at 7. UMMC counters that Dr. Papin’s motion
to strike Dr. Alexander as a witness is untimely under the Case Management Order

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pursuant to Local Rule 26(a)(3) and not proper as his testimony and report is still
relevant for the remaining subject matter. [189] at 7. UMMC contends that Dr.
Alexander’s opinions on mitigation and damages are relevant independent of any
finding or opinion presented by Dr. Hill. Id.
To the extent Dr. Papin seeks to exclude testimony and opinions from Dr.
Alexander’s report that specifically rebut Dr. Hill’s opinions, or are otherwise based
on Dr. Hill’s opinions, the motion is granted. The Court finds such evidence to be
irrelevant. Alexander, however, may testify to relevant opinions independent of
those involving Dr. Hill.
V.

Conclusion
The Court has considered all the arguments set forth by the parties. Those

arguments not addressed would not have changed the outcome of the Court’s
decision. For these reasons, the Court GRANTS IN PART and DENIES IN PART
UMMC’s Amended Motion in Limine [175]. The Court excludes all testimony,
evidence, argument, or attempt to elicit testimony of: claims that have been
previously dismissed by the Court; Plaintiff’s Hispanic heritage; Dr. Papin’s lost
future earnings beyond the Contract; Dr. Linke’s Expert Report; Resident 76; and
all documents about Resident 76.
The Court further GRANTS IN PART and DENIES IN PART Dr. Papin’s
Amended Motion in Limine [177]. The Court excludes all testimony, evidence, or
commentary about claims resolved in this Court’s Order on the Parties’ CrossMotions for Summary Judgment; Dr. Papin’s voluntary withdrawal of his

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discrimination claim; and portions of UMMC’s Rebuttal Expert Robert Alexander’s
Expert Report and opinions based on those by Nicholas Hill.
SO ORDERED this the 22nd day of September, 2021.

/s Kristi H. Johnson

UNITED STATES DISTRICT JUDGE

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