Zhai v. Saint Francis Medical Center, et al

Filing 164

ORDER on Defendant's 155 Motions in Limine. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)

IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF
NEBRASKA LINCOLN DIVISION
WENJIA ZHAI, Individually,
Plaintiff
V.
CENTRAL NEBRASKA ORTHOPEDICS
&
SPORTS MEDICINE, P.C., a domestic
professional corporation; PHILIP CAHOY,
M.D., an individual;
Defendants.

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Case No. 4:16-CV-3049

ORDER ON
DEFENDANTS' MOTION IN LIMINE

For the reasons stated on the record, (Filing No. 162), the motion in limine filed by
Defendants Central Nebraska Orthopedics & Sports Medicine, P.C. and Philip Cahoy,
(Filing No. 155), are granted or stipulated as follows:
(Court rulings in RED)
1.

Medical malpractice insurance. Evidence of malpractice insurance

carried by the Defendants are not relevant and inadmissible to establish liability. Fed. R.
Evid. 411.
AGREED
2.

Hearsay statements from other physicians. Any out-of-court statements by

other physicians of the Plaintiff who is not designated to testify in this case as an expert
witness would be inadmissible hearsay. Fed. R. Evid. 802.
GRANTED
3.

Medical articles texts or other literature. Any medical articles, treatises, or

medical literature not previously identified and produced by Plaintiff during discovery
should not be allowed to be used at trial.
GRANTED

4.

Medical articles texts or other literature. Any medical articles, treatises, or

medical literature not previously identified and produced by Plaintiff during discovery
should not be allowed to be used at trial.
GRANTED
5.

Prior lawsuits involving Defendants. Evidence of previous malpractice

lawsuits is not relevant and is not admissible. Jones v. Transii, 212 Neb. 843, 326 N.W.
2d 1990 (1992). Any mention of the same would be unfairly prejudicial to Defendant.
Fed. R. Evid. 401 & 403.
AGREED
6.

The Nebraska Hospital-Medical Liability Act and its cap on damages.

Any reference to the Nebraska Hospital-Medical Liability Act or its cap on damages
would not have any relevance to any of the issues in this case and should not be allowed
at trial. Any probative value would be substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading of the jury, pursuant to Fed. R. Evid.
401 & 403. Rheimer v. Surgical Services of the Great Plains, 258 Neb. 671, and Hoffert
v. Hodge, 9 Neb. App. 161, 609 N.W.2d 397 (2000).
AGREED
7.

Disciplinary Proceedings. Any disciplinary proceedings involving the

Defendant Philip Cahoy, M.D. and unrelated parties and unrelated facts would be
irrelevant and inadmissible. Any mention of this to the jury would be unfairly
prejudicial to the Defendants. Fed. R. Evid. 401 & 403.
AGREED
8.

Special Damages Not Previously Identified. Any evidence of special

damages which have not been previously disclosed by Plaintiff should not be allowed by
the Court.
GRANTED

9.

References to the Wealth of Physicians. Any references to the wealth,

financial status, or similar matters concerning the Defendants would not be relevant to
any of the issues in this case and would be unfairly prejudicial to Defendants. Fed. R.
Evid. 401 & 403.
AGREED
10. Any references by counsel for Plaintiff to the Jury acting as the "
conscience of the community" or the "voice of the community" or suggesting a decision
for Plaintiff would be for the "betterment of the community" or improve the "safety" of
medical care for others. The issues to be decided by the jury in this case have to do
specifically with the treatment provided to Plaintiff Wenjia Zhai by Defendant Philip
Cahoy, M.D. Any mention of the jury acting as a "conscience of the community" or for
the "bettennent of the co1mnunity" or for the "safety" of people undergoing medical
procedures, or the like, would only be intended to inflame and incite the jury and would
be unfairly prejudicial to the Defendants. Fed. R. Evid. 401 & 403.
GRANTED
11.

Punish, Send Message, Etc. Any statements regarding the need to punish

the Defendants, send Defendants a message, or similar comments are inadmissible and
improper because such would be in-elevant and unduly prejudicial. Fed. R. Evid. 401 &
403.
AGREED
12.

Medical Opinions from Undisclosed Experts. Any expert testimony or

opinions from persons who have not been previously disclosed as an expert witness are
inadmissible . Paulk v. Central Laboratory Associates, 262 Neb. 838, 636 N.W. 2d 170
(2001).
GRANTED

13.

Subsequent Remedial Measures. Any evidence of any changes in any

practices of Defendant Philip Cahoy, M.D. regarding the treatment of patients and/or
their practices with respect to informed consent since the date of the matters in issue in
this lawsuit should not be relevant to this case, would be prohibited and would be
unfairly prejudicial to Defendants. Fed. R. Evid. 403 & 407.
AGREED
14.

Comments, statements or questions of witnesses regarding the experts for the

Defendants "sticking up for each other," or "testifying for one of their own," or statements
to the effect that "no Omaha or Nebraska physician is going to testify against a brother or
sister physician in Omaha or Nebraska," or words to this effect. Such statements or
questions would merely be statements or comments of counsel without foundation and
would be designed to incite prejudice against Defendants or create sympathy for the
Plaintiff, and/or attempt to evoke an "us versus them" or "underdog" mentality for the
benefit of Plaintiff. Any such commentary or attempted questioning of witnesses would not
be relevant to prove or disprove any issue of fact and would be unduly prejudicial. Fed. R.
Evid. 403.
AGREED
15.

Safety Rules. Plaintiff should not be allowed to make reference to the "duty"

of a physician to ensure the "safety" of a patient's treatment, or to follow "safety rules," as
the use of such terminology misrepresents the standard of care to be followed by the jury in
this case. Fed.
R. Evid. 401.
GRANTED

IT IS ORDERED:
March 23, 2018.

BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge