Bamber v. Prime Healthcare Kansas City - Physician's Services, LLC

Filing 143

ORDER entered by Judge Ortrie D. Smith granting in part and denying in part 125 Defendant's motions in limine; granting in part, denying in part and deferring in part Plaintiff's 127 motions in limine. Signed on 7/31/19 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
NORMAN BAMBER, M.D.
Plaintiff,
vs.
PRIME HEALTHCARE KANSAS
CITY - PHYSICIAN'S SERVICES, LLC,
Defendant.

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Case No. 17-00229-CV-W-ODS

ORDER (1) GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTIONS IN LIMINE, AND (2) GRANTING IN PART, DENYING IN
PART, AND DEFERRING IN PART PLAINTIFF’S MOTIONS IN LIMINE
Pending are motions in limine filed by both parties. As set forth below,
Defendant’s motions (Doc. #125) are granted in part and denied in part, and Plaintiff’s
motions (Doc. #127) are granted in part, denied in part, and deferred in part. The
parties are reminded these rulings are interlocutory. Thus, the denial of a request to bar
evidence at this juncture preserves nothing for review, and the parties may re-assert
their objections at trial if they deem it appropriate to do so. Evidence barred by this
Order shall not be discussed in the jury’s presence (including during opening
statements) without leave of the Court. The parties are free to suggest (out of the jury’s
presence) that something has occurred during the trial justifying a change in the Court’s
interlocutory ruling.
A.
(1)

DEFENDANT’S MOTIONS IN LIMINE

Issues Decided on Summary Judgment
Defendant moves to exclude evidence and argument beyond “the narrow issue

of materiality of the breach to justify termination.” Doc. #117. In deciding Defendant’s
motion for summary judgment, the Court stated:
I conclude that the contract is not ambiguous as to Dr. Bamber’s pertinent
duties, that there was an anticipatory breach of duty to perform inpatient
consultations at the adjoining hospital, that he was terminated after being
given adequate notice, but that there is a remaining question as to the
materiality of the breach. Thus, only partial judgment in favor of defendant

should be granted at this time…. The difficulty in the contract is not posed
by conflicting or otherwise ambiguous terms but rather by terminology not
immediately understandable by persons unfamiliar with hospital practice.
Study of the filings and relying only on background that is not contested
clarifies the situation….
Doc. #117, at 1-2.
Plaintiff argues Defendant’s motion is vague, and therefore, it is unclear what
evidence it seeks to exclude. He also contends he should be permitted to introduce
evidence relevant to any aspect of his breach of contract claim. By way of example,
Plaintiff points to the Medical Staff Bylaws and Rules and Regulations, which do not
require physicians to perform inpatient consultations, and the On-Call Policy, which
required physicians to perform inpatient consultations as part of the emergency
department’s call coverage. Plaintiff maintains these documents are relevant to the
materiality of inpatient consultations as part of the employment agreement, and the jury
needs to understand how the hospital and clinics operated.
As referenced in the Court’s March 18, 2019 Order, Missouri courts are guided
by the factors set forth in the Restatement (Second) of Contracts when determining
whether a breach is material. Doc. #117, at 10-11 (citing Randy Kinder Excavating, Inc.
v. J.A. Manning Constr. Co., 899 F.3d 511, 517 (8th Cir. 2018) (citations omitted)).
These factors include (1) “the extent to which the injured party will be deprived of the
benefit which he reasonably expected”; (2) “the extent to which the injured party can be
adequately compensated for the part of that benefit of which he will be deprived”; (3)
“the extent to which the party failing to perform or to offer to perform will suffer
forfeiture”; (4) “the likelihood that the party failing to perform or to offer to perform will
cure his failure, taking account of all the circumstances including any reasonable
assurances”; and (5) “the extent to which the behavior of the party failing to perform or
to offer to perform comports with standards of good faith and fair dealing.” Kinder
Excavating, 899 F.3d at 517 (citations omitted).
At trial, the parties’ evidence should relate to the materiality of the breach, and in
that regard, the parties should be guided by the Restatement’s factors. Other than

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necessary background information, evidence other than materiality of the breach will be
excluded. Accordingly, Defendant’s motion in limine is granted.1
(2)

Call Pay
Defendant asks the Court to prohibit Plaintiff from presenting evidence or

argument that Plaintiff is owed damages for emergency department on-call coverage
because Defendant was no longer providing emergency care for neurological concerns
at the time Defendant terminated the agreement it had with Plaintiff. Plaintiff argues call
coverage compensation is relevant, and he should be allowed to offer testimony and
evidence about call coverage compensation. Plaintiff states he does not intend to
testify about call pay as an element of damages. Pursuant to Plaintiff’s concession,
Defendant’s motion is granted. Plaintiff shall not argue or present evidence or
testimony that he is owed damages for on-call coverage. Plaintiff will be permitted,
however, to present evidence relating to on-call compensation as historical context for
the present dispute.
(3)

Special Damages
Defendant seeks to preclude Plaintiff from referencing or requesting special

damages, including the cost Plaintiff incurred to reopen his practice and resume
treatment of patients. Plaintiff argues Defendant seeks to contravene the Court’s prior
order, and Plaintiff “should be permitted to discuss all types of damages at trial.” Doc.
#141, at 3.
Previously, the Court granted Defendant’s motion for summary judgment on
Count II, which sought special damages for breach of contract. As the Court explained:
“Special” damages are those which may be allowed for the breach
of certain types of contracts, and include amounts which are not
considered to arise “naturally” or “usually” from the breach of contract.
Special damages are damages that “actually result from a wrongful act but
are the product of the special circumstances of the case or are peculiar to
the non-breaching party.” Raineri Const[r]. LLC v. Taylor, 63 F.Supp.3d
1017, 1033 (E.D. Mo. 2014) (quoting Porter v. Crawford & Co., 611
S.W.2d 265, 271 (Mo.Ct.App. [1981])). Included in Dr. Bamber’s request
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Regarding the two exhibits referenced in Plaintiff’s response to this motion in limine, if
counsel desires to introduce those exhibits, that issue must be raised with the Court
outside the jury’s presence.
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for “special damages” are the costs he incurred “to reopen his practice
and resume his treatment of patients” after the termination of his
employment. He includes such items as malpractice insurance, clinic
space, wages for his staff, billing services, storage of his items from his
office while employed by Prime and a computer to keep his records
moving forward. (Doc. 87, ¶ 13).
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Prime agrees that Dr. Bamber’s alleged damages are “the amount
of salary, benefits or other compensation to which he would have been
entitled under the Agreement had it not been terminated, minus any
income he actually earned (or should have earned)” for the three year
period before the Agreement could have been terminated by either party.
(Doc. 81, p.11-12). Thus, some of the items of damage Dr. Bamber
claims as “special damages” are potentially included in calculating benefit
of the bargain damages…. However, Dr. Bamber has not provided any
evidence that staff wages, billing services, storage or other such expenses
might have been contemplated by the parties…. Further, the record
currently before this Court contains no evidence as to Dr. Bamber's
current compensation package or practice structure, and thus, the items to
be included as damages are best left to be determined at any trial. There
is no evidence or cogent argument presented that actual or ordinary
benefit of the bargain damages cannot fully compensate Dr. Bamber. He
is entitled to be fully compensated for his alleged loss, but not recover a
windfall. Ameristar Jet Charter, Inc. v. Dodson Int’l Parts, Inc., 155
S.W.3d 50, 54 (Mo. [b]anc. 2005). Prime’s motion for partial summary
judgment seeking dismissal of Count II is therefore GRANTED.
Doc. #110, at 15-16.
Pursuant to its earlier decision, the Court grants Defendant’s motion. Plaintiff
shall not introduce evidence or make arguments related to special damages. Instead,
Plaintiff’s recovery is limited to benefit of the bargain damages and those damages
“naturally and proximately caused by the commission of the breach and for those that
could have been reasonably contemplated by the defendant at the time of agreement.”
Gill Constr., Inc. v. 18th & Vine Auth., 157 S.W.3d 699, 717 (Mo. Ct. App. 2004) (citation
omitted); see also Cason v. King, 327 S.W.3d 543, 548 (Mo. Ct. App. 2010) (citation
omitted); Mo. Approved Instruction 4.01 (2012).

(4)

Witnesses’ Speculation and/or Improper Opinions
Defendant moves to prohibit Plaintiff and lay witnesses from testifying about (1)

admittance of patients presenting neurological issues to reduce emergency room wait

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times, (2) St. Joseph Medical Center being on “stroke diversion” when Plaintiff was not
available for an emergency neurosurgical call, (3) someone needed to be on call in the
emergency room for neurological services and/or Defendant needed to offer such
services, (4) whether Defendant’s rules and regulations required inpatient consults from
Plaintiff, (5) Defendant looking for a reason to terminate Plaintiff’s contract, and (6) costcutting and other evidence of Defendant’s motive for terminating Plaintiff’s contract.
Plaintiff does not intend to offer opinion testimony regarding whether St. Joseph Medical
Center was required to be on stroke diversion if he was unavailable for emergency
neurosurgical department call coverage. But Plaintiff argues he should be permitted to
testify about or discuss the other topics identified by Defendant.
“A witness may testify to a matter only if evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the matter.” Fed. R. Evid.
602. To the extent Plaintiff has personal knowledge on the other matters identified by
Defendant, he will be permitted to testify about those matters. The same goes for lay
witnesses who have personal knowledge about the matters identified by Defendant.
Defendant’s motion is denied with regard to Plaintiff and other witnesses who possess
personal knowledge about the matters identified by Defendant. However, Defendant’s
motion is granted with regard to Plaintiff and other witnesses testifying on matters about
which they have no personal knowledge. The parties should not construe the ruling on
this motion as the Court deciding whether the matters identified by Defendant are
relevant.
(5)

Contract Interpretation by Lay Witnesses
Defendant moves to preclude Plaintiff or lay witnesses from testifying about how

the employment agreement should be interpreted, and exclude testimony or legal
conclusions regarding the elements of Plaintiff’s claim. Plaintiff argues a “key issue at
trial is whether inpatient consultations were a material requirement of the Employment
Agreement,” and therefore, evidence and testimony about the agreement’s provisions,
what Plaintiff understood the provisions to mean, and the facts and circumstances
surrounding the parties’ agreement should not be excluded. Doc. #141, at 8.
As noted supra, the Court already determined “the contract is not ambiguous as
to Dr. Bamber’s pertinent duties,” but the one remaining question was whether the
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breach of the agreement was material. Doc. #117, at 1. “A material breach is one
where the breach relates to a vital provision (i.e., material term) of the agreement and
cannot relate simply to a subordinate or incidental matter.” Greenstreet v. Fairchild, 313
S.W.3d 163, 169 (Mo. Ct. App. 2010) (citation omitted). A material term “goes to the
very substance or root of the agreement and cannot relate simply to a subordinate or
incidental matter.” G & J Holdings, LLC v. SM Props., LP, 391 S.W.3d 895, 903 (Mo.
Ct. App. 2013) (quoting Patel v. Pate, 128 S.W.3d 873, 878 (Mo. Ct. App. 2004)).
Plaintiff and lay witnesses will not be permitted to provide legal opinions or legal
conclusions, and in this regard, Defendant’s motion is granted. Plaintiff and lay
witnesses will not be permitted to offer testimony about how the employment agreement
should be interpreted, and Defendant’s motion is likewise granted on this issue.
However, Plaintiff and lay witnesses will be permitted to provide factual testimony that
sheds light on materiality of the agreement’s terms. Thus, the remainder of Defendant’s
motion is denied.
(6)

Hearsay Statements
Defendant anticipates Plaintiff will introduce hearsay statements about (1)

Defendant’s discontinuation of neurosurgical emergency department on-call coverage
and admittance of patients presenting neurological symptoms, (2) patients’ ability to
contact Plaintiff after his contract was terminated, (3) Plaintiff’s new practice and that his
patients would be fine, and (4) an email dated December 12, 2016, containing the
number of outpatients, surgeries, and admittances Plaintiff had the week he was
terminated and St. Joseph Medical Center’s personnel’s next steps after Plaintiff’s
termination letter was sent. Plaintiff does not intend to discuss his patients’ difficulty
contacting him or what he heard nursing staff telling other doctors unless the topics
arise during trial. Plaintiff opposes the remainder of Defendant’s motion.
Hearsay is inadmissible unless a federal statute, the Federal Rules of Evidence,
or rules prescribed by the Supreme Court provides otherwise. Fed. R. Evid. 802. With
regard to the statements Defendant seeks to exclude, the Court does not know the
identities of the speakers, the content of the statements, and whether the statements
are offered to prove the truth of the matters asserted therein. If the statements
constitute hearsay, the Court was not provided with sufficient information to ascertain
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whether an exception to the hearsay rule applies. For the foregoing reasons,
Defendant’s motion is granted with regard to hearsay statements about patients’ ability
to contact Plaintiff after his termination and what Plaintiff heard nursing staff tell doctors;
however, the remainder of Defendant’s motion is denied.
(7)

Privilege Log
Defendant requests preclusion of references to or testimony about Defendant’s

privilege log, including documents that were withheld and redactions made to
documents produced. Plaintiff argues the privilege log is relevant because it shows
Defendant’s corporate office, prior to Plaintiff’s termination, was looking for a way to
take Plaintiff’s compensation off the books. Plaintiff does not provide legal authority for
his position and does identify what particular entries or information on Defendant’s
privilege log that he seeks to offer at trial.
Based upon the limited information provided, the Court cannot envision a
situation where a portion of Defendant’s privilege log would be relevant and admissible.
Further, even if the privilege log was relevant and admissible, it is unclear how its
probative value would not be substantially outweighed by unfair prejudice or confusion.
Accordingly, the Court grants Defendant’s motion.
(8)

Plaintiff’s Complaints Regarding Defendant’s Efforts to Market Practice
Defendant moves to exclude Plaintiff’s complaints about Defendant’s efforts to

market Plaintiff’s practice before and after the contract was terminated. Defendant
argues Plaintiff cannot quantify any loss from lack of marketing, and the introduction of
Plaintiff’s complaints will confuse the issues and prejudice Defendant. Plaintiff argues
his patients had difficulty contacting him after his termination, and if the subject arises
during trial, he would like to discuss the issue.
Any loss, including any loss due to Defendant’s alleged failure to market
Plaintiff’s practice, resulting from Defendant’s alleged breach of the agreement will be
captured by Plaintiff’s evidence as to what he is owed less the income he received.
Discussing Plaintiff’s complaints about Defendant’s efforts to market his practice does
not prove Plaintiff’s damages. Accordingly, Defendant’s motion in limine is granted.

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(9)

Corporate Representative Testimony Outside Scope of Deposition Notices
Defendant asks the Court to preclude Plaintiff from mentioning, referencing, or

eliciting testimony from Defendant’s corporate representatives about matters outside the
scope of the representatives’ deposition notices, and prohibit Plaintiff from mentioning
those representatives were unable to answer questions outside the scope of the
deposition notices. For examples, Defendant points to references to “target lists,”
whether Defendant was looking for a reason to find Plaintiff in breach of the contract,
and the “stroke program.” Plaintiff contends Defendant’s motion is “so vague,” he does
not know what Defendant seeks to exclude. Nevertheless, he argues Defendant’s
objections to the scope of questioning during the depositions were improper, and
corporate representatives’ lack of knowledge is binding on Defendant.
The information missing from the parties’ briefing is whether these individuals will
be testifying live during the trial. If they are testifying live, the parties’ dispute should not
be an issue because those witnesses will testify only to those matters on which they
have personal knowledge. Fed. R. Evid. 602. If a witness does not possess personal
knowledge about the information being sought, the witness shall so state. The
examination and cross-examination at trial is not limited to the topics listed in the
corporate representatives’ deposition notices.
If the parties intend to read excerpts from these individuals’ depositions, the
parties were obligated to designate those deposition excerpts, provide counterdesignations, and file objections. To the extent the parties cannot resolve the disputes
arising from their designations, counter-designations, and objections, the Court will
address the matter prior to trial. For the foregoing reasons, Defendant’s motion is
denied.
(10)

Plaintiff’s Disabled Child
Defendant seeks to exclude information or evidence about Plaintiff’s family

members, including his children. More specifically, Defendant moves to preclude
Plaintiff from discussing his child who suffers from cerebral palsy and blindness.
Plaintiff opposes the motion, arguing he should be permitted to introduce himself to the
jury, explain who he is, explain the burdens of call coverage and the impact of call
coverage on his life, and the rational for additional pay above his base salary.
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Defendant’s motion is granted in part and denied in part. Plaintiff will not be
permitted to discuss the medical conditions of his family members. Plaintiff has not
demonstrated how family members’ medical conditions are in any way relevant to his
claim or damages. Plaintiff will be permitted to introduce himself, briefly provide his
background information, and briefly explain the burdens and impact of call coverage.
To the extent Plaintiff decides to mention his family, he shall do so in a limited fashion
and provide only minimal details. The health of family members is irrelevant to this
breach of contract case.
(11)

Plaintiff Being on a “Target List”
Defendant believes Plaintiff will introduce evidence or elicit testimony that he was

on a “‘target list’ found in a medical group analysis document that lists physicians who
were too expensive for St. Joseph Medical Center.” Doc. #125, at 18. Defendant
contends multiple witnesses testified they never saw or heard about the “target list,” and
any testimony about the list would be speculation. Defendant also moves to exclude
statements from individuals who informed Plaintiff of the list because the statements are
hearsay. Plaintiff argues the document demonstrates Defendant’s motivation for
targeting and terminating him for financial reasons.
Unfortunately, neither party provided the Court with a copy of the “target list”
along with their motion in limine briefing. Furthermore, the parties do not give the Court
much information about the document – e.g., the identity of the person(s) who created
the “target list,” how the document was obtained, whether the document was produced
in this matter, which party produced it, etc. Consequently, the Court is without sufficient
information to issue a decision on this motion. However, before Plaintiff offers the list
into evidence or elicits testimony about the list, Plaintiff’s counsel should approach the
bench and justify the admissibility of any such testimony or exhibits.
(12)

“Send a Message” Argument or Defendant’s Net Worth
Defendant contends evidence and argument concerning punitive damages or

sending a message to Defendant should be precluded. Defendant also argues its net
worth should not be introduced. Plaintiff agrees not to discuss Defendant’s net worth.
Accordingly, Defendant’s motion is granted.
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(13)

Expert Testimony on Behalf of Plaintiff
Although Defendant listed “Expert Testimony on Behalf of Plaintiff” in the

introduction to its motion, Defendant presented no argument or authority to support this
motion. Accordingly, this motion is denied.
B.
(1)

PLAINTIFF’S MOTIONS IN LIMINE

Disposition of Pretrial Rulings
Plaintiff argues references to and statements about the Court’s disposition of

pretrial rulings should be precluded. Defendant agrees evidence of pretrial rulings such
as discovery resolutions and this Order should not be presented to the jury, but argues
Plaintiff should not be permitted to introduce evidence on issues decided by the Court in
its summary judgment rulings. The Court grants Plaintiff’s motion to the extent he is
seeking to preclude evidence or argument about the Court’s Orders on motions in limine
or discovery disputes. The Court denies Plaintiff’s motion to the extent he is seeking to
introduce evidence on issues already decided by the Court in its summary judgment
decisions.
(2)

“Employed” By the Hospital
Plaintiff moves to prohibit Defendant from stating or inferring he was “employed”

by the hospital or he owed an obligation to the hospital because he was employed in an
adjacent office practice. Plaintiff contends he was employed solely by Physician
Services, and therefore, referring to him as an “employee” of the hospital would be
misleading and prejudicial. Defendant opposes the motion because Plaintiff made
references indicating he was an employee of the hospital during his deposition.
According to the parties’ agreement, Plaintiff was employed by Defendant (or its
predecessor), and pursuant to the agreement, Plaintiff provided neurosurgical services
to hospitals where his patients received care and at which Defendant agreed to permit
physicians to obtain appropriate medical staff privileges. The agreement does not
indicate Plaintiff is an employee of the hospital.
While Defendant correctly quoted portions of Plaintiff’s deposition testimony and
other documents, the testimony and documents do not evince Plaintiff was an
“employee” of the hospital. For example, Plaintiff responded affirmatively to a question
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that was prefaced with “as an employed specialist at St. Joseph Medical Center.” Doc.
#129-1, at 3. Setting aside the words were used by the attorney and not Plaintiff, the
question does not state Plaintiff was “employed” or he was a specialist “with” the
hospital. Id. Instead, it refers to Plaintiff as a specialist “at” the hospital. This statement
does not establish Plaintiff was an employee of the hospital, and it does not
demonstrate Plaintiff indicated or referred to himself as an employee of the hospital.
Also during Plaintiff’s deposition, Defendant’s counsel asked Plaintiff if he and
Plaintiff were talking about the same thing – i.e., the “employment agreement at St.
Joseph Medical Center.” Doc. #129-1, at 4. Plaintiff answered he “assumed we were
talking about the same thing.” Id. Again, counsel, not Plaintiff, made the statement,
and the statement does not demonstrate Plaintiff was an employee of the hospital or
represented himself to be an employee of the hospital. Plaintiff referred to his
“contractual obligation to the hospital” during his deposition. Doc. #129-1, at 9.
Because the hospital was a third-party beneficiary to the contract between Plaintiff and
Defendant, Plaintiff’s reference to his obligations to the hospital is not improper and
does not demonstrate he was an employee of the hospital.
Defendant also points to two emails to supports its position. In one email,
Plaintiff stated his “employment arrangement with St. Joseph Medical Center was
terminated prematurely.” Doc. #129-2. In the other email, Plaintiff states, “if St.
Joseph’s Medical Center and its parent corporation do not wish for me to continue
providing additional call services, I am perfectly fine with that.” Doc. #129-3. Similar to
his deposition testimony, Plaintiff’s references to the hospital do not establish he was an
employee of the hospital or referred to himself as an employee of the hospital.
For these reasons, Plaintiff’s motion is granted. Defendant shall not state, infer,
or elicit testimony about Plaintiff being employed by the hospital. Defendant shall also
instruct its witnesses to refrain from referring to Plaintiff as an employee of the hospital.
(3)

Standard of Care
Plaintiff argues Defendant should not be permitted to claim he deviated from the

standard of care when he did not take inpatient consultations for the hospital’s patients
with whom he did not have a physician-patient relationship and without compensation.
Defendant argues whether Plaintiff “deviated from the standard of care applicable to
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employed physicians is directly relevant to” whether Plaintiff’s breach of the agreement
was material. In support of its argument, Defendant cites Jodi Finch’s deposition
testimony, Dr. Sloan’s deposition testimony, Dr. Siegel’s expert report, and the Medical
Staff Bylaws. Doc. #129, at 4.
Jodi Finch testified the “applicable medical standard” meant “Plaintiff would see
[a] patient” “if Plaintiff consulted to see [the] patient.” Doc. #129-4, at 5-6. Finch does
not discuss “standard of care.” Id. Dr. Sloan testified “the standard of care for an
employed specialist at a hospital would be to see patients in the hospital.” Doc. #129-6,
at 3. Dr. Siegel opined “it would have been…normal medical practice and standard in
the industry, for a medical staff member and employed specialist…to provide inpatient
consultations as reasonably requested by [Defendant],” and Defendant’s request of
Plaintiff to perform inpatient consultation services was “medically appropriate and
reasonable in the industry.” Doc. #129-5, at 5. Dr. Siegel said “acceptable medical
standards require a doctor go where the hospital inpatient is located.” Id. Dr. Siegel
said Plaintiff deciding not to “provide on-site physician services…was not medically
appropriate and breached his obligations to patients and [Defendant], as well as
standards of care.” Id. at 6. Finally, the Medical Staff Bylaws indicate medical staff
members “assume all the functions and the responsibilities of appointment on the active
Medical Staff, including, where appropriate, emergency service care and consultation
assignments.” Doc. #129-7, at 11.
“Standard of care” is a legal phrase. In Missouri, the standard of care is defined
as the “degree of care, skill, and proficiency which is commonly exercised by the
ordinarily skillful, careful, and prudent physician, engaged in a similar practice under the
same or similar conditions.” Swope v. Razzaq, 428 F.3d 1152, 1155 (8th Cir. 2005)
(quoting Yoos v. Jewish Hosp. of St. Louis, 645 S.W.2d 177, 183 (Mo. Ct. App. 1982)
(emphasis added)). The standard of care is utilized in medical malpractice lawsuits
alleging a physician deviated from the standard of care, and therefore, was negligent.
See Wacker v. St. Francis Med. Ctr., 413 S.W.3d 37, 39 (Mo. Ct. App. 2013); Lake v.
McCollum, 295 S.W.3d 529, 532 (Mo. Ct. App. 2009).
The Court has several concerns with Defendant attempting to use the phrase
“standard of care” during this trial. First, “standard of care” has a distinct meaning. Its
use outside the context of a medical malpractice lawsuit would not only mislead and
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confuse the jury but would also unfairly prejudice Plaintiff. If the jury were to hear
witnesses opine that Plaintiff deviated or breached his standard of care, the jury may
assume Plaintiff was negligent in his medical duties. But that is not the case here. This
lawsuit does not allege Plaintiff was negligent in performing his medical duties. In fact,
Defendant’s termination of Plaintiff’s agreement had nothing to do with the quality of
Plaintiff’s work.
Second, as previously decided by the Court, the jury must determine whether
Plaintiff’s breach of the agreement was material. Doc. #117. As explained supra, there
are five factors that provide guidance when determining whether a breach is material.
Kinder Excavating, 899 F.3d at 517 (citations omitted); see also McKnight v. Mw. Eye
Inst. of Kan. City, Inc., 799 S.W.2d 909, 915 (Mo. Ct. App. 1990) (citations omitted).
Defendant provides no legal authority supporting its argument that Plaintiff’s alleged
violation of the “standard of care” is a factor to be considered when determining whether
a contract breach is material. Notably, as best the Court can tell, the parties’ agreement
does not contain the phrase “standard of care” or refer to the standard of care.
Third, Defendant argues the applicable standard of care required Plaintiff to
perform new inpatient consultations at St. Joseph Medical Center. This matter is not
about the applicable standard of care; it is about the parties’ contract. Thus, the Court
will not allow evidence, testimony, or argument as to what the applicable standard of
care is and/or whether Plaintiff deviated from, breached, or violated the applicable
standard of care. For the foregoing reasons, Plaintiff’s motion is granted.
(4)

Expert Testimony by Dr. Siegel
Plaintiff moves to exclude the expert testimony of Dr. Siegel because his

opinions are contrary to the facts, misleading, and fall outside the testimony permitted
by experts under Rule 702 of the Federal Rules of Evidence. Defendant opposes
Plaintiff’s motion arguing Plaintiff failed to timely file a Daubert motion, and therefore,
has waived any Daubert challenge to Dr. Siegel or his testimony.
While the parties agreed to and proposed a deadline for Daubert motions, the
Court’s Scheduling Order did not set a deadline for Daubert motions. Docs. #25, 27.
Accordingly, the Court finds Plaintiff’s request to exclude Dr. Siegel’s testimony has not
been waived. However, Defendant’s brief response to the substance of Plaintiff’s
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motion does not provide sufficient information or any legal authority. Accordingly, the
Court defers consideration of Plaintiff’s motion, and directs Defendant to file a response
to this motion, not to exceed five pages, by no later than August 7, 2019.
(5)

Reliance on Counsel for Termination
Plaintiff asks the Court to preclude Defendant from suggesting or stating it relied

on legal advice when it made the decision to terminate Plaintiff’s contract. Defendant
argues Plaintiff’s motion is moot because Defendant did not plead the affirmative
defense of advice of counsel. Accordingly, Plaintiff’s motion is granted.
(6)

Dr. Sloan’s Opinion Testimony
Plaintiff moves to preclude Dr. Kirk Sloan from providing opinion testimony

because, unlike Plaintiff, Dr. Sloan had a hospital-based practice, and therefore, does
not see patients outside the hospital setting. Defendant argues Dr. Sloan, a supervisor
of all physicians and specialists, “intends to testify that [Plaintiff’s] refusal to perform
inpatient consultations violated the standard of care expected from [Defendant’s]
employed physicians.” Doc. #129, at 6. Defendant again argues Plaintiff’s alleged
violation of the standard of care is relevant to whether his beach is material.
Pursuant to the Court’s explanation supra, section B(III), Defendant will not be
permitted to refer to or present evidence about the applicable standard of care.
Plaintiff’s motion is granted in that Dr. Sloan will not be permitted to testify about the
standard of care, Plaintiff’s alleged deviation from the standard of care, any connection
between the standard of care and the agreement, what other physicians did with regard
to inpatient consultations, or other matters not related to whether Plaintiff’s breach was
material. Plaintiff’s motion is denied to the extent Dr. Sloan testifies about matters
related to the materiality of Plaintiff’s breach.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: July 31, 2019

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