Knoth v. Keith et al
Filing
215
ORDER granting 151 Motion in Limine to Limit Use of Errata Sheet; denying 156 Motion in Limine to Preclude Testimony, Reports, or Reference to Withdrawn/Consulting Experts; deferring ruling on 161 Motion in Limine to Preclude Plaintiff from Introducing Irrelevant and Prejudicial Evidence that Relates to Preempted Claims; denying 163 Motion in Limine to Preclude Express Warranty theories that Lack Evidentiary support; denying 167 Motion in Limine to Preclude Evidence of Spoliation Until the Court Rules on Whether Plaintiff is Entitled to an Adverse Inference Instruction; deferring ruling on 170 Motion in Limine to Exclude Apollo-Knoth-00056. Movants may renew motions at trial, at which time the Court will have a clearer understanding of the issues. Signed by District Judge David C. Bramlette, III on 8/3/2021. (cp)
Case 5:18-cv-00049-DCB-MTP Document 215 Filed 08/03/21 Page 1 of 15
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
STEPHANIE KNOTH
PLAINTIFF
VS.
CIVIL ACTION NO.: 5:18-CV-49-DCB-MTP
APOLLO ENDOSURGERY US, INC.
DEFENDANT
Order
This matter is before the Court on Plaintiff’s motions in
limine [ECF Nos. 151, 156, 170] and Defendant’s motions in limine
[ECF Nos. 161, 163, 167]. Having considered the motions, responses,
and applicable statutory and case law, and being otherwise fully
informed in the premises, the Court finds as follows:
I.
Background
This case is a medical malpractice and products liability
dispute, arising from the implant of an ORBERA™ gastric balloon
manufactured by Apollo (“Defendant”). Dr. Stephen Keith implanted
the
ORBERA™
balloon
in
Ms.
Knoth
(“Plaintiff”).
Plaintiff
experienced complications which ultimately led to the removal of
the ORBERA™. The Court has dismissed Plaintiff’s design defect and
failure to warn claims. The two remaining claims are (1) a claim
for breach of warranty and (2) a manufacturing defect claim.
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II.
Discussion
The Court’s trial management authority includes the power to
issue pre-trial rulings on the admissibility of evidence. Luce v.
United States, 469 U.S. 38, 41 n. 4 (1984). And the Court has “wide
discretion in determining the admissibility of evidence under the
Federal Rules.” Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S.
379, 384 (2008) (internal citation and quotation marks omitted).
A. Plaintiff’s Motion in Limine to Limit Use of Errata Sheet
[ECF No. 151]
Plaintiff seeks to preclude Apollo from (1) revealing that
Plaintiff was required to pay Apollo’s attorneys’ fees in reopening
Plaintiff’s deposition, and (2) making a reference to Plaintiff’s
errata sheet “as somehow nefarious, malicious, or inappropriate.”
[ECF No. 151].
The fact that Plaintiff paid costs associated with the reopened deposition is irrelevant and any probative value that this
fact might have is substantially outweighed by the danger of unfair
prejudice under Fed. R. Evid. 403.
Defendant intends to use the errata sheet to impeach Ms.
Knoth’s answers or to attack her credibility. Plaintiff’s original
deposition testimony, her new answers on her errata sheet, and any
new testimony given at the re-opening of her deposition may be
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Case 5:18-cv-00049-DCB-MTP Document 215 Filed 08/03/21 Page 3 of 15
used for any purpose allowed by the rules of evidence. See Walker
v. George Koch Sons, Inc., 2008 WL 4371372. The errata sheet is
admissible for impeachment purposes and to the extent the answers
are relevant.
The errata sheet may not be used to (1) reveal that Plaintiff
was
required
to
pay
Apollo’s
attorneys’
fees
in
reopening
Plaintiff’s deposition, or (2) to make a reference or implication
to Plaintiff’s errata sheet as somehow nefarious, malicious, or
inappropriate. Plaintiff’s Motion is hereby GRANTED.
B. Plaintiff’s Motion in Limine to
Preclude Testimony,
Reports, or Reference to Withdrawn/Consulting Experts
[ECF No. 156]
Ms. Knoth seeks to exclude testimony from Dr. Cheickna Diarra,
whom Ms. Knoth hired as an expert. Dr. Diarra was initially hired
to testify against now dismissed parties, but Ms. Knoth has redesignated him as a consulting expert pursuant to Fed. R. Civ. P.
26(b)(4)(B). [ECF No. 156].
Dr.
Diarra
executed
an
affidavit
while
designated
as
a
testifying expert witness regarding now dismissed parties. [ECF
No. 136-11]. The affidavit references reports Dr. Diarra made as
an expert in the field of gastroenterology. In his report, Dr.
Diarra alleges that Mrs. Knoth was improperly informed at the time
of her consent to surgery. [ECF No. 136-11] at 3. The report
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further asserts that Dr. Keith and the hospital staff allegedly
failed to: instruct Plaintiff to empty her stomach before the
procedure;
examine
Plaintiff
and
prevent
aspiration;
timely
recognize, diagnose, and treat the ORBERA® balloon complication;
follow consent form for balloon removal; recognize that the EGD
procedure findings warranted the balloon’s removal; and failed to
recognize a second gastric rupture. [ECF No. 136-11].
Dr. Diarra’s affidavit [ECF No. 136-11] was produced in his
capacity as an initially retained expert witness. The affidavit
references Dr. Keith and Southwest Mississippi Regional Medical
Center, both having been dismissed as parties to this lawsuit.
Plaintiff withdrew Dr. Diarra as an expert witness under Fed. R.
Civ. P. 26(b)(4)(A), and reinstated Dr. Diarra as a consulting
witness under Fed. R. Civ. P. 26(b)(4)(B).
Plaintiff argues that since Dr. Diarra is no longer designated
as an expert expected to testify at trial, his testimony, reports,
and opinions should be precluded from evidence. [ECF No. 157].
Once an expert is designated as a consulting expert, the opposing
party is not entitled to the discovery of the consulting expert’s
findings, conversations, or consultations. See Veiner v. Casano,
NO. 1:16cv-18-HSO-MTP, 2016 WL 10675905 at *1,2 (S.D. Miss. June
10, 2016). A consulting expert not expected to testify at trial is
not subject to the same disclosure requirements as a testifying
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expert. Id. at *2. This allows a party to freely consult an expert
without fear that such consultations will be used adversely. Id.
There
are
two
exceptions
which
allow
a
non-testifying
expert’s testimony to be discovered: (1) as provided for in Fed.
R. Civ. P. 35(b) and (2) by showing exceptional circumstances under
which it is impracticable for the party to obtain facts or opinions
on the same subject by other means. Id.
Rule 35 refers to an examiner’s report that has been made
after
a
person
has
been
subjected
to
a
mental
or
physical
examination because his or her mental or physical condition was at
issue. See Fed. R. Civ. P. 35(b). This exception does not pertain
to the present situation and requires no further analysis.
The
second
exception
regarding
non-testifying
expert
testimony involves exceptional circumstances which are established
when a party requesting discovery: (1) shows that “the object or
condition
observed
by
a
non-testifying
expert
is
no
longer
observable by an expert of the party seeking discovery; or (2)
although possible to replicate the expert discovery on a contested
issue, the cost of doing so is judicially prohibitive.” Veiner,
2016 WL 10675905 at *2.
Consequently, experts designated as consultants lose any
privilege once they are designated as expert witnesses expected to
testify at trial. See Greenwood 950, LLC v. Chesapeake Louisiana,
LP, NO. 10:11cv-419-MLH, 2011 WL 1234735 at *1,2 (W.D. La. Apr. 1,
5
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2011). In Greenwood, an expert, Mr. Young, was initially retained
as a consultant who was not expected to testify at trial. Id. at
*1. He was re-designated as an expert witness and as a testifying
witness.
Id.
Once
that
re-designation
occurred,
Mr.
Young’s
testimony and other findings following the re-designation are
discoverable and admissible. Id. However, Mr. Young’s testimony
that was obtained while he was designated as a consultant witness
remained undiscoverable and inadmissible. Id. at *2.
In the present case, Dr. Diarra was initially designated as
an expert witness at the time the testimony and reports subject to
this Motion in Limine were made. See [ECF No. 136-11]. Because Dr.
Diarra was designated as an expert witness when he executed the
affidavit
[ECF
No.
136-11],
his
affidavit
and
reports
are
discoverable and admissible. See Greenwood, 2011 WL 1234735 at *2.
Defendant’s Response in Opposition to Plaintiff’s Motion in
Limine [ECF No. 178] at 1, states that Apollo reserves the right
to use Dr. Diarra’s report at trial to the extent Plaintiff or
Plaintiff’s experts make Dr. Diarra’s opinion’s relevant, or for
impeachment. Under Veiner, while consultant witness testimony is
protected
and
circumstances,
inadmissible
Dr.
Diarra’s
at
trial
report
was
without
given
exceptional
while
he
was
designated as an expert witness and is admissible. 2016 WL 10675905
at *2. The Court finds that Dr. Diarra’s affidavit including his
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testimony and reports are admissible if offered to impeach the
witness or prove an alternative causation theory.
While Dr. Diarra’s testimony was discoverable and therefore
admissible when he was designated as an expert witness, the Rules
of Evidence provide barriers for admission regarding relevance.
Fed. R. Evid. 401 establishes the test for relevance and requires
that evidence must be relevant. Given that Dr. Diarra’s written
testimony pertains to dismissed parties, the testimony may no
longer be relevant. See Fed. R. Evid. 401. However, Dr. Diarra’s
testimony may be relevant for Apollo’s use in the impeachment of
witnesses or to prove an alternative causation theory.
Dr. Diarra’s affidavit [ECF No. 136-11] and other testimony
is admissible under Veiner and Greenwood. The testimony was given
when Dr. Diarra was an expert witness and not a consulting witness.
Any testimony given now that Dr. Diarra is a consulting witness is
deemed
undiscoverable
absent
exceptional
circumstances.
Plaintiff’s Motion in Limine to Preclude Testimony, Reports, or
Reference to Withdrawn/Consulting Experts [ECF No. 156] is hereby
DENIED.
C. Plaintiff’s Motion in Limine to Exclude the Document
Identified as Apollo-Knoth-000056 [ECF No. 170]
The subject of Plaintiff’s motion is a document stamped
“confidential”
which
contains
7
warranties,
limitations
and
Case 5:18-cv-00049-DCB-MTP Document 215 Filed 08/03/21 Page 8 of 15
liabilities,
“Customer.”
and
It
other
is
terms
labeled
between
as
Apollo
and
Apollo-Knoth-000056
Apollo’s
and
hereby
referred to as “the Contract.” [ECF No. 183].
The Contract is a one-page excerpt from the contract between
Apollo
and
Southwest
Mississippi
Regional
Medical
Center
(“SMRMC”). It provides invoicing terms and conditions, warranties,
and
limitations
and
liabilities.
Plaintiff
argues
that
the
Contract should be precluded because it is irrelevant to the facts
of the case at hand and because it refers to Apollo and SMRMC
without involving the Plaintiff. [ECF No. 170]; See also [ECF No.
183].
The Rules of Evidence establish the test for relevance. See
Fed. R. Evid. 401. Rule 401 states, “Evidence is relevant if:(a) it
has any tendency to make a fact more or less probable than it would
be without the evidence; and (b) the fact is of consequence in
determining the action.” Id. Apollo intends to use the Contract to
rebut Plaintiff’s alternate causation argument that Dr. Keith was
acting as an agent for Apollo. [ECF No. 179]. Since the purpose of
the admission of the Contract allegedly is for Apollo to rebut
Plaintiff’s argument, the Contract appears to be relevant under
Rule 401.
Even though evidence may be relevant, that does not mean it is
necessarily admissible. See Fed. R. Evid. 403. “The court may
exclude relevant evidence if its probative value is substantially
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outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” Id.
Plaintiff argues that the Contract “could only serve to confuse
the jury as it relates to a potential apparent authority/agency
relationship between Apollo and SMRMC’s physician, Dr. Stephen
Keith [. . .]” [ECF No. 170]. Plaintiff claims that this confusion
stems from “[it] not be[ing] clear for a jury to know that the
‘Customer’ referenced by this document would apply to a physician
or medical provider – similar to dismissed defendant Southwest
Mississippi Regional Medical Center (“SMRMC”) – and not someone
like the Plaintiff.” Id. Under Rule 403, the prejudicial effect
must substantially outweigh the probative value. If the Plaintiff
is concerned that a competent jury will be unable to understand
the intention of the reference to the term “Customer” in the
Contract, the Plaintiff will have an opportunity to clarify any
ambiguity at trial.
The document of Apollo-Knoth-000056 (“the Contract”) [ECF No.
183] appears to be an admissible document and relevant under Rule
401 for Apollo to use to rebut Plaintiff’s alternate causation
argument. However, a final ruling will be made either at trial or
at the motion hearing, at which time the Court will be better
informed on all relevant issues.
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D. Defendant’s Motion in Limine to Preclude Plaintiff from
Introducing Irrelevant and Prejudicial Evidence that
Relates to Preempted Claims [ECF No. 161]
Defendant
evidence
and/or
seeks
to
argument
preclude
of
(1)
Plaintiff
an
from
ORBERA™
introducing
adverse
event
information and reports, (2) Food and Drug Administration (“FDA”)
press-releases related to the ORBERA™
in general, (3) Dr. Keith’s
clinical experience and opinions with the ORBERA™, and (4) other
“general safety” evidence that could confuse the jury on the safety
and effectiveness of the ORBERA™ device. Apollo contends that this
information is irrelevant to the remaining claims and that there
would
be
significant
jury
confusion
and
prejudice
if
the
information is allowed. The Court will address each evidentiary
topic in turn.
1.
Adverse event information and reports
Plaintiff contends that “[b]ecause the adverse event report
for the Plaintiff’s specific balloon attributes the Plaintiff’s
damages to the device itself, this is incredibly relevant to the
Plaintiff’s causation element for both her manufacturing defect
and breach of warranty claims.” Plaintiff further contends that
other adverse event information and reports are relevant to her
claim for punitive damages to show wanton or willful conduct by
the Defendant. The Court reserves its ruling on this issue until
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it is more informed at the upcoming motion hearing, scheduled for
August 12, 2021.
2.
FDA press-releases related to the ORBERA™ in
general
The Plaintiff avers that the FDA press-releases related to
the ORBERA™ balloon are relevant to show a breach of warranty
claim,
to
the
extent
Apollo
intends
on
pursuing
a
learned
intermediary defense. The probative value is not substantially
outweighed by the danger of unfair prejudice. The Court hereby
finds that the information contained in the FDA Press-releases may
be admissible if Apollo advances its learned intermediary theory.
The Court reserves its ruling on this issue until it is more
informed at the upcoming motion hearing.
3.
Dr. Keith’s clinical experience
The Plaintiff claims that Dr. Keith’s clinical experience is
relevant to show his lack of independence from Apollo’s control.
Plaintiff further claims that Dr. Keith’s opinions of the device
despite
financial
incentives
to
recommend
the
device
to
his
patients is also indicative of a lack of independence from Apollo’s
control. Dr. Keith’s relationship with Apollo is an issue which is
entirely separate from his clinical experience with the balloon.
Dr. Keith’s experience in general with the ORBERA™ would likely
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call into question the general safety of the balloon, which is
discussed more fully below.
4.
Any other “general safety” evidence
Apollo argues that the Plaintiff should be precluded from
offering “general safety” evidence into trial because the jury
might second-guess whether the ORBERA™ in general is safe, which
directly
contradicts
the
FDA’s
pre-market
approval
(“PMA”)
findings and this Court’s November 2019 Order. The Court reserves
its ruling on the issue of general safety until it is more informed
at the upcoming motion hearing.
E. Defendant’s
Motion
in
Limine
to
Preclude
Express
Warranty Theories that Lack Evidentiary Support [ECF No.
163]
To
prevail
on
a
claim
for
breach
of
express
warranty,
plaintiff must prove by a preponderance of the evidence that at
the time the product left the control of the manufacturer “[t]he
product breached an express warranty or failed to conform to other
express
factual
representations
upon
which
the
claimant
justifiably relied in electing to use the product.” Miss. Code
Ann. § 11-1-63(a)(i)(4).
Defendant argues that Plaintiff’s breach of warranty evidence
and argument should be strictly limited to the warranties that
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Plaintiff can objectively prove to be false and/or misleading.
Defendant contends that the only objective evidence in relation to
the Plaintiff’s breach of warranty claim is from Dr. Sharlin.
Expert testimony is not required to establish a breach of
warranty. Forbes v. Gen. Motors Corp., 935 So. 2d 869, 877 (Miss.
2006)(finding no authority exists to require expert testimony in
breach of warranty case). Plaintiff’s testimony is relevant and
sufficient to create a fact issue as to a breach of warranty.
Therefore,
Defendant’s
Motion
in
Limine
to
Preclude
Express
Warranty Theories is hereby DENIED.
F. Defendant’s Motion in Limine to Preclude Evidence of
Spoliation Until the Court Rules on Whether Plaintiff
is Entitled to an Adverse Inference Instruction [ECF
No. 167
Apollo requests that the Court order briefing and hold an
evidentiary hearing to decide whether Plaintiff is entitled to an
adverse inference instruction before allowing the jury to hear
evidence and argument related to spoliation of evidence at trial.
In an Order denying summary judgment, the Court previously held
that in order to attribute the destruction of the evidence to
Apollo, the Plaintiff must first show that Dr. Keith was acting as
an agent under Apollo’s apparent authority. [ECF No. 126]. The
Court further held that Dr. Keith’s status as an agent is a
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question of fact for the jury to decide. Id. The decision on
whether or not the Plaintiff is entitled to an adverse inference
cannot possibly be made prior to trial because the jury must first
determine the status of Dr. Keith as an agent. Furthermore, Apollo
has failed to explain why it would be prejudiced if the jury were
to hear evidence regarding the elements of spoliation prior to
determining whether or not an adverse inference should be given.
Apollo’s Motion in Limine [ECF No. 167] is hereby DENIED.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion in Limine to
Limit Use of Errata Sheet [ECF NO. 151] is GRANTED.
IT IS FURTHER ORDERED that Apollo’s Motion in Limine to
Preclude Testimony, Reports, or Reference to Withdrawn/ Consulting
Experts [ECF No. 156] is DENIED.
IT IS FURTHER ORDERED that the ruling on Apollo’s Motion in
Limine to Exclude the Contract Apollo-Knoth-000056 [ECF No. 170]
is DEFERRED.
IT IS FURTHER ORDERED that Defendant’s Motion in Limine to
Preclude Plaintiff from Introducing Irrelevant and Prejudicial
Evidence that Relates to Preempted Claims [ECF No. 161] is hereby
DEFERRED.
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IT IS FURTHER ORDERED that Defendant’s Motion in Limine to
Preclude Express Warranty Theories that Lack Evidentiary Support
[ECF No. 163] is hereby DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion in Limine to
Preclude Evidence of Spoliation Until the Court Rules on Whether
Plaintiff is Entitled to an Adverse Inference Instruction [ECF No.
167] is DENIED.
Movants may renew motions at trial, at which time the Court
will have a clearer understanding of the issues.
SO ORDERED this the 3rd day of August, 2021.
_/s/ David Bramlette________
UNITED STATES DISTRICT COURT
15
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