Lawrey et al v. Good Samaritan Hospital et al

Filing 102

MEMORANDUM AND ORDER - Plaintiffs' Motion in Limine to Preclude Cumulative Expert Testimony (Filing No. 77 ) is denied without prejudice to the Plaintiffs presenting their Rule 403 objections at the time of trial. Defendants' Motion in Limine (Filing No. 79 ) is granted. Plaintiffs' Motion in Limine to Exclude Defendants' Undisclosed Literature and References to Such Literature at Trial in this Matter (Filing No. 83 ) is denied, without prejudice to Plaintiffs reasserting their objections at trial. Ordered by Chief Judge Laurie Smith Camp. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAWN LAWREY, mother and next
friend of AUBREE LAWREY, a minor,
Plaintiffs,
v.
KEARNEY CLINIC, P.C., and
DAWN M. MURRAY, M.D.,
Defendants.

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CASE NO. 8:11CV63

MEMORANDUM
AND ORDER

This matter is before the Court on three motions in limine: (1) the Plaintiff’s Motion
in Limine to Preclude Cumulative Expert Testimony (Filing No. 77); (2) the Defendants’
Motion in Limine to preclude Plaintiffs from making reference to subject matter in eleven
categories (Filing No. 79); (3) and Plaintiffs’ Motion in Limine to Exclude Defendants’
Undisclosed Literature and References to Such Literature at Trial in this Matter (Filing No.
83). For the reasons discussed below, the Plaintiffs’ motions will be denied, without
prejudice to the Plaintiffs reasserting their objections at trial, and Defendants’ motion will
be granted.
FACTUAL BACKGROUND
Plaintiffs Dawn Lawrey (“Dawn”) and Aubree Lawrey (“Aubree”), a minor, are
residents and citizens of Wisconsin. Defendant Kearney Clinic, P.C., is a Nebraska
professional corporation with its principal place of business located in Kearney, Nebraska.
Defendant Dawn M. Murray, M.D. (“Murray”), is a physician in Nebraska. On March 1,
2008, Dawn gave birth to Aubree in Kearney, Nebraska, at Good Samaritan Hospital.
Murray, the attending physician, delivered Aubree. Plaintiffs allege that the Defendants
negligently treated and cared for Dawn during the delivery of Aubree, and that the
Defendants’ negligent treatment and care were the proximate cause of brachial plexus
injuries suffered by Aubree, resulting in a condition known as Erb’s Palsy.

LEGAL STANDARDS
“A United States District Court sitting in diversity jurisdiction applies the substantive
law of the forum state . . . .” Fogelbach v. Wal-Mart Stores, Inc., 270 F.3d 696, 698 (8th
Cir. 2001). A federal court sitting in diversity will also apply federal procedural law. Great
Plains Trust Co. v. Union Pacific R.R. Co., 492 F.3d 986, 995 (8th Cir. 2007) (citing Erie
R.R. v. Tompkins, 304 U.S. 64 (1938)).
Federal Rule of Evidence 403 provides that a court “may exclude relevant evidence
if its probative value is substantially 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.”
Fed. R. Civ. P. 26(a)(2) requires timely disclosure of expert witnesses and their
opinions, including “any exhibits that will be used to summarize or support them[.]” Fed.
R. Civ. P. 26(a)(2)(B)(iii). Fed. R. Civ. P. 26(e) requires a party to supplement such
disclosures “in a timely manner if the party learns that in some material respect the
disclosure . . . is incomplete or incorrect, and if the additional or corrective information has
not otherwise been made known to the other parties during the discovery process or in
writing[.]” Fed. R. Civ. P. 26(e)(1)(A). Fed. R. Civ. P. 37(c) provides that “[i]f a party fails
to provide information . . . as required by Rule 26(a) or (e), the party is not allowed to use
that information . . . at trial, unless the failure was substantially justified or is harmless.”
DISCUSSION
I. Plaintiffs’ Motion in Limine to Preclude Cumulative Expert Testimony
The Plaintiffs ask the Court to exercise its discretion under Fed. R. Civ. P. 403 to
“limit the Defendants to one expert on the issues of standard of care and causation.” (Pls.’

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Mot. in Limine, Filing No. 77, at 6.) Plaintiffs assert that the Defendants’ experts Dr.
Andrew Robertson and Dr. Robert DeMott will offer opinions that will be cumulative,
causing unfair prejudice to the Plaintiffs, confusing and misleading the jury, and resulting
in delay and waste of time.
Defendants acknowledge that Dr. Robertson and Dr. DeMott reached similar
conclusions, based upon their different backgrounds and specialties.

Dr. DeMott

specializes in obstetrics and gynecology, with expertise in shoulder dystocia and brachial
plexus palsy causation.

Dr. Robertson specializes in maternal fetal medicine, with

expertise in high-risk obstetrics. Defendants note that the Plaintiffs have presented
alternative theories of negligence, including improper diagnosis, disregard for fetal
macrosomia, failure to perform a Cesarean section, and the application of excessive
traction during delivery. Defendants argue that the two doctors’ fields of study and areas
of expertise will assist the jury in understanding the standard of care applicable to the
Defendants before and during Aubree’s delivery, as well as causation.
The Court agrees that the risk of some overlap in the opinions of the Defendants’
experts is not sufficient reason to limit the Defendants to the presentation of a single
expert’s testimony on issues of standard of care and causation. The Court declines to
exercise its discretion under Rule 403 to preclude the Defendants from offering the
testimony of both Dr. DeMott or Dr. Robertson. Plaintiffs’ Motion in Limine to Preclude
Cumulative Expert Testimony (Filing No. 77) will be denied, without prejudice to the
Plaintiffs presenting their Rule 403 objections at the time of trial.
II. Defendants’ Motion in Limine
Defendants ask the Court to preclude the Plaintiffs from making any reference to,
or eliciting any evidence related to, subject matter in eleven categories: (1) other litigated
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cases, (2) court proceedings regarding the admissibility of testimony, (3) previous
deposition testimony by expert witnesses if a copy of the deposition is not immediately
available to opposing counsel, (4) opinions of experts not called as witnesses or otherwise
admitted into evidence as reliable statements from specific medical literature, (5)
deposition testimony not offered and received at trial, (6) expert opinions not properly
disclosed, including those related to Aubree’s medical or vocational prognosis or need for
future health services or equipment; (7) communications between counsel, (8) liability
insurance, (9) complaints or claims made against expert witnesses, (10) medical bills, and
(11) any suggestion that Defendants or their lawyers have not fully complied with discovery
requests.
Plaintiffs have not submitted any brief in opposition to the Defendants’ Motion in
Limine, and it will be granted.
III. Plaintiffs’ Motion in Limine to Exclude Defendants’ Undisclosed Literature and
References to Such Literature at Trial in this Matter
Plaintiffs contend that the Defendants’ exhibit list identifies 194 medical articles the
Defendants may offer or refer to at trial, but 165 of those articles were not timely disclosed
pursuant to Fed. R. Civ. P. 26(a)(2) and (e). Plaintiffs object to the Defendants offering the
165 articles as exhibits, or eliciting testimony from expert witnesses making reference to
such articles or to the term “the literature” as a generic reference to material including such
articles.
Defendants contend that the medical literature was timely disclosed prior to the
experts’ depositions, and was readily accessible to Plaintiffs’ counsel. The Defendants
assert they had no obligation to provide actual copies of each such article to Plaintiffs’
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counsel, and that Plaintiffs never sought the materials through subpoena, as required to
obtain documents from a non-party witness. Nevertheless Defense counsel states that the
articles were collected and scanned at considerable inconvenience and expense, and
provided to Plaintiffs’ counsel on a compact disk in early August 2012.
At this juncture, the Court cannot conclude that the Defendants’ disclosures were
untimely or otherwise deficient, nor that the Plaintiffs have suffered any unfair surprise or
prejudice. The Plaintiffs’ Motion in Limine to Exclude Defendants’ Undisclosed Literature
and Reference to such Literature at Trial in the Matter will be denied, without prejudice to
the Plaintiffs raising their objections at the time of trial.
Accordingly,
IT IS ORDERED:
1.

Plaintiffs’ Motion in Limine to Preclude Cumulative Expert Testimony (Filing
No. 77) is denied without prejudice to the Plaintiffs presenting their Rule 403
objections at the time of trial;

2.

Defendants’ Motion in Limine (Filing No. 79) is granted; and

3.

Plaintiffs’ Motion in Limine to Exclude Defendants’ Undisclosed Literature
and References to Such Literature at Trial in this Matter (Filing No. 83) is
denied, without prejudice to Plaintiffs reasserting their objections at trial.

DATED this 6th day of September 2012.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

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