Nosal v. Martin et al

Filing 78

MEMORANDUM AND ORDER: Defendants' motion in limine (Filing No. 57) is granted in part and denied in part as set forth in this order. Plaintiff's motion in limine (Filing No. 58) and second motion in limine (Filing No. 70 ) are granted in part and denied in part as set forth in this order. Ordered by Senior Judge Joseph F. Bataillon. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MYRISSA D. NOSAL,
Plaintiff,

8:18CV14

vs.
MEMORANDUM AND ORDER
LATRICE MARTIN, APRN-CNM; RACHAEL
RICE, APRN-CNM; and THE MIDWIFE'S
PLACE LLC,
Defendants.

This matter is before the Court on the defendants’ motion in limine, Filing No. 57
and the plaintiff’s motions in limine, Filing Nos. 58 and 70. This is an action for medical
malpractice.
I.

LAW
Although the motion in limine is an important tool available to the trial judge to

ensure the expeditious and evenhanded management of the trial proceedings,
performing a gatekeeping function and sharpening the focus for later trial proceedings,
some evidentiary submissions, cannot be evaluated accurately or sufficiently by the trial
judge in such a procedural environment.

Jonasson v. Lutheran Child and Family

Servs., 115 F.3d 436, 440 (7th Cir. 1997).

A motion in limine is appropriate for

“evidentiary submissions that clearly ought not be presented to the jury because they
clearly would be inadmissible for any purpose.” Id. In other instances, it is necessary to
defer ruling until during trial, when the trial judge can better estimate the impact of the
evidence on the jury. Id. To the extent that a party challenges the probative value of
the evidence, an attack upon the probative sufficiency of evidence relates not to

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admissibility but to the weight of the evidence and is a matter for the trier of fact to
resolve. United States v. Beasley, 102 F.3d 1440, 1451 (8th Cir. 1996).
II.

Defendants’ Motion in Limine (Filing No. 57)
The defendants seek preclusion of several categories of evidence. The plaintiff

does not object to several of those categories and submits that it will not offer evidence
on those matters. There remain disputes on the following:
Defendants’ Motion in Limine No. 5: to preclude discussions regarding
why the Midwife’s Place closed
Defendants contend that evidence of the reasons why The Midwife’s Place
closed and any apparent “political struggles between the midwives and the medical
community” is not relevant and is unfairly prejudicial to Defendants. Fed. R. Evid. 401 &
403.

Plaintiff argues that The Midwife’s Place is a defendant in this lawsuit and

contends that the contested statement was made in a letter sent by The Midwife’s Place
to all of its patients and is therefore a statement by a party opponent and not hearsay.
Further, she argues the evidence is relevant and is not unfairly prejudicial.
The Court is inclined to believe this evidence is not relevant and could be unfairly
prejudicial or confusing. The Court will admit the evidence at issue only on a showing
that it is relevant to an issue in this case.

Without a showing that the closing is

somehow connected to the issues in this case, the motion will be granted.
Defendant’s Motion in Limine No. 6: to preclude testimony regarding
defendants’ writing off any medical bills for the plaintiff
Defendants contend this evidence is not relevant, is unfairly prejudicial, and
inadmissible as part of settlement negotiations. The plaintiff contends the evidence
constitutes an admission by a party-opponent—not hearsay, and argues it is relevant to
how the defendants viewed the value of the services provided to Ms. Nosal.
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She

disputes the defendants’ contention that the matter was part of any settlement
negotiations.
The Court is unable to evaluate the relevance of the challenged evidence in the
context of a pretrial motion. The Court will admit the evidence at issue only on a
showing that it is relevant to the issues in the case, and only to the extent that the
relevance of the evidence outweighs its potential to cause prejudice or confusion under
Fed. R. Evid. 403. The Court finds the defendants’ challenge is more in the nature of an
objection to be raised at trial. Accordingly, the Court finds that the motion in limine
should be overruled at this time, without prejudice to its reassertion via timely objection
at trial.
Defendant’s Motion in Limine No. 8: to preclude 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 defendants contend the references would be unduly prejudicial and would
incite the jury. The plaintiff argues that the issues of the jury acting on behalf of the
community and patient safety are central this case.
The Court notes the statements are in the nature of argument and should not be
raised in voir dire or opening statements. The Court will grant the motion in limine to
that extent. The Court will reserve ruling on whether any such references, arguments,
or statements can be raised later in the trial or in closing argument.

Unless the

defendants present the Court with Nebraska caselaw precluding such arguments, the
Court will permit the plaintiff to argue such points in closing, assuming the evidence
supports it. The Court will instruct the jury on the standard of care. To the extent
counsel’s comments misstate the law, such statements will not be allowed.
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Defendant’s Motion in Limine No. 9: to preclude statements regarding
the need to punish the defendants, or to send the defendants a message.
Defendants contend such statements are inadmissible and improper as irrelevant
and unduly prejudicial. The plaintiff concedes references to punishment should not be
allowed, but objects to any limitation of statements about “sending a message.”
Because punitive damages are not allowed in Nebraska, the Court will sustain the
objection to that extent. “Sending a message” language may be appropriate depending
on context. Again, the language appears to be argument. The motion will be denied
without prejudice to reassertion at trial.
Defendants’ Motion in Limine No. 11:
to preclude comments,
statements or questions of witnesses regarding the experts for the
defendants “sticking up for each other,” or “testifying for one of their own.”
Defendants’ contend such statements would lack foundation and would incite
prejudice against Defendants or create sympathy for the plaintiff. The plaintiff contends
the defendants lack authority for their position and the argument is without merit.
The Court again notes the statements appear to be in the nature of argument.
The Court finds a wholesale preclusion of such argument is not warranted.

The

evidence may be appropriate on cross examination as it touches on credibility, but the
Court cannot make that determination at this time. The Motion will be denied without
prejudice to reassertion at trial.
Defendants’ Motion in Limine No. 12: to preclude evidence of safety
rules
The defendants argue that such terminology misrepresents the standard of care.
The plaintiff responds that there is no support for such a ban. The standard of care is a
question of law and it is the function of the court to instruct the jury thereon. The parties
are cautioned not to misstate the law; however, the Court cannot assess the potential
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relevance of any such “safety” information in this context. It may be admissible for a
limited purpose and may warrant a cautionary instruction, but the Court cannot
determine the ambit of such an instruction at this time. The motion will be denied
without prejudice to reassertion.
Defendants Motion in Limine No. 13: To preclude evidence of opinions
about plaintiff’s loss of earning capacity
The defendants contend the plaintiff should not be allowed to present evidence of
loss of future earning capacity because no expert has been designated to opine on the
topics and no opinions, to a degree of reasonable certainty, have been presented in this
case. The plaintiff argues that Nebraska law provides that neither expert medical nor
vocational testimony is required to instruct the jury on loss of earning capacity.
The Court agrees that the testimony of the plaintiff as to her injury’s effect on her
work is sufficient. See Wortman v. Nw. Bell Tel. Co., 195 Neb. 637, 640 (1976). The
Court finds the defendants’ motion should be denied. The plaintiff will be permitted to
present evidence of loss of earning capacity.

The testimony will be subject to

objections, as necessary, at trial.
Defendants Motion in Limine No. 15: to preclude evidence from
Plaintiff’s expert Dr. Mary Jo Olson against Defendant Latrice Martin
Defendants contend that Dr. Olson testified in her deposition that she did not
know what the standard of care was for a midwife at a Day 2 and a 2-week postpartum
visit, and therefore she should not be allowed to opine whether Latrice Martin met the
standard of care or failed to meet the standard of care at the Day 2 and 2-week
postpartum visits. The plaintiff contends that Dr. Olson has opined that the standard of
care with respect to treating postpartum vaginal or perineal laceration is the same for
family practice physicians, certified nurse midwives, and obstetricians. The Court finds
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the defendants’ objections go more to the weight than the admissibility of such
evidence.

Contradictory statements in a deposition can be addressed through

impeachment. Accordingly, the defendants’ motion will be denied.
Defendants’ Motion in Limine No. 17: to preclude evidence of the
fairness and reasonableness of the plaintiff’s medical bills
Defendants contend that neither of the Plaintiff’s physician experts, Dr. Olson or
Dr. Berryman, reviewed the plaintiff’s medical bills and neither were able to testify to
their purported fairness and reasonableness.

The plaintiff responds that defense

counsel’s questioning in a discovery deposition does not negate a party’s expert
disclosures in this regard. She argues the discovery depositions of Drs. Olson and
Berryman were not taken for trial purposes and the plaintiff was not required to adduce
trial testimony in those depositions. She concedes, however, that if the witnesses do
not have sufficient foundation to provide opinions at trial, the testimony should be
excluded. The fairness and reasonableness of medical bills is not ordinarily a topic of
dispute. Parties generally stipulate to fairness and reasonableness. To the extent there
is an actual issue of disputed fact on the fairness and reasonableness of the bills, the
Court will address the issue at trial. The Court finds the motion should be denied at this
time, subject to establishment of proper foundation.
Defendants' Motion in Limine No. 19: to preclude evidence of
permanency of the plaintiff’s alleged injuries
The record shows the plaintiff disclosed the expert to opine on permanency. The
issue appears to be a question of weight, not admissibility. Any alleged shortcomings in
the witnesses’ testimony can be pursued in cross-examination. The plaintiff concedes
that the testimony should be excluded if sufficient foundation is not established. Also,
only evidence properly disclosed and supplemented under the Federal Rules will be
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allowed. Accordingly, the motion will be denied at this time, subject to reassertion at
trial.
Defendants' Motion in Limine No. 20: to preclude evidence relating to
whether a discussion with the plaintiff was required at the time of the
laceration repair immediately post-delivery
Defendants argue that any such discussions are irrelevant absent a claim for lack
of informed consent. Plaintiff agrees she does not assert a lack of informed consent
cause of action but argues that the absence of such a claim means only that the jury
should not be separately instructed on this theory of recovery, not that evidence of a
lack of discussion should be inadmissible.

She argues that evidence, expert or

otherwise, regarding post-delivery discussions or lack thereof is relevant and admissible
to the medical negligence cause of action.
The Court cannot assess the relevance of any such evidence in the context of a
pretrial motion.

The Court is inclined to believe that a wholesale exclusion is not

warranted. The Court will admit evidence only on a proper showing of relevance and
foundation, and only to the extent that the relevance of the evidence outweighs its
potential to cause prejudice or confusion under Fed. R. Evid. 403. The Court cannot
assess the probative value of any such evidence at this time. The defendants’ motion
will be denied without prejudice to reassertion.
III.

Plaintiff’s Motion in Limine (Filing No. 59)
The defendants concede several motions.

following:

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There remain disputes on the

Motion in Limine No. 1: to preclude evidence of any medical treatment,
symptoms, complaints, or conditions not related to Plaintiff’s pregnancy,
labor, or delivery at issue in this case.
Defendants state that the evidence of the plaintiff’s medical treatment,
symptoms, complaints and conditions not related to her pregnancy, labor and delivery is
relevant to issues of damages and to the credibility of the plaintiff and her expert
witnesses. The Court finds that the defendants’ contention is generally in the nature of
a relevance objection to be interposed at trial.

Evidence will be permitted only if

relevant to the issues at trial. Since the plaintiff has put her mental health at issue, the
defendants should generally be allowed to refute her contentions. A blanket prohibition
of the testimony is not warranted. The evidence will be permitted only on a showing of
connection to the matters at issue. Accordingly, the motion will be denied without
prejudice to reassertion.
Plaintiff’s Motion In Limine No. 2: to preclude medical treatment prior to
the time Plaintiff reached age 19
The evidence will be permitted on proper foundation and a showing of relevance
to the issues, and only to the extent its probative value outweighs the possibility of
confusion or prejudice.

The Court cannot determine the admissibility of any such

evidence at this time.
Plaintiff’s Motion in Limine No. 3: to preclude evidence regarding
conversations the plaintiff’s mother had with healthcare providers when
the plaintiff was a minor.
The Court is unable to rule on the motion without hearing the evidence. The
defendants suggest that the Court reserve ruling on the motion until trial and the Court
agrees. Accordingly, the matter will be addressed at trial.

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Plaintiff’s Motion in Limine No. 4: to preclude evidence related to the
plaintiff’s suicidal ideations, anxiety disorder, beliefs about dental care,
sexually transmitted diseases, eating disorders, and self-mutilation
The plaintiff’s prior medical and psychiatric history are may be relevant to her
credibility and her damages claim, but the Court cannot determine the admissibility of
this evidence in the context of a pretrial motion. The motion will be denied without
prejudice to reassertion at trial.
Plaintiff's Motion in Limine No. 5: Evidence related to Plaintiff being a
smoker or smoking prior to her pregnancy
The plaintiff contends the such evidence is not relevant to the issue the jury will
decide at trial and has not been disclosed as being relied upon by any expert witness
who will testify in this case or having relevance to any expert opinion disclosed in this
case. Defendant contends that evidence of the plaintiff being a smoker is relevant to
her credibility and damages. The Court finds the relevance of this evidence seems
tenuous. The defendants may pursue the issue only on a showing of relevance to the
issues in the case. Generally, given the limited relevance of the evidence, it appears to
be outweighed by the danger of prejudice, but the Court cannot make that determination
at this time. To the extent the evidence relates to the plaintiff’s character and portrays
her in a negative light, the evidence will not be permitted.
Plaintiff's Motion in Limine No. 6: to preclude evidence of the plaintiff’s
vegetarian diet
The plaintiff argues the evidence is irrelevant and is only an attempt to portray
the plaintiff in a negative light and to prejudice the jury. The defendants contend that
evidence of the plaintiff’s diet and nutrition is relevant to her credibility, wound care and
wound healing, and damages claim. The Court is unable to rule on this evidence in the
context of a motion in limine but notes that the information is of limited value if no
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experts have opined on the issue. The defendants will be required to make a proper
showing of foundation and relevance with respect to this issue. The Court is inclined to
grant the motion but will reserve ruling until trial.
Plaintiff's Motion in Limine Nos. 7 to 10: to preclude evidence of sexual
abuse by a family member at the age of four; opinions of law firms; family
history of mental illness; and plaintiff’s sexual history
The plaintiff contends this evidence is irrelevant and prejudicial. The defendant
contends it may be necessary to respond to evidence presented by the plaintiff or for
impeachment. The Court agrees with the plaintiff that the evidence is irrelevant or
unduly prejudicial and such evidence will be precluded unless the plaintiff opens the
door.
Plaintiff’s Motion in Limine No. 11: to preclude reference to medical
records not in evidence
Defendants ask the Court to reserve ruling, contending references to medical
records not in evidence may be necessary for impeachment. The Court will address the
issue at trial if necessary.
Plaintiff’s Motion in Limine No. 13:
financial status of either party

to preclude reference to the

Defendants contend the plaintiff’s financial status is relevant to her credibility,
damages, and subsequent medical treatment. The Court is unable to determine the
admissibility of the plaintiff’s financial status in the context of a pretrial motion. The
motion will be denied without prejudice to reassertion at trial.

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Plaintiff’s Motion In Limine No. 15: to preclude evidence of criminal
charges or convictions
The plaintiff contends evidence of a misdemeanor charge of false reporting is
inadmissible under Fed. R. Evid. 609(b). The defendants assert that the charge of
false reporting goes to the plaintiff's truth and veracity, and they contend they should be
allowed to inquire into this at trial. The Court finds the evidence is not admissible under
the rules and the plaintiff’s motion will be granted.
IV.

Plaintiff’s Second Motion in Limine (Filing No. 70)
Motion In Limine: to preclude evidence, argument, or questioning which
directly states or implies that: a) Any action on the part of Mary Jo Olson,
M.D. caused plaintiff injury or aggravated or made plaintiff’s January 30,
2016 injuries worse; and b) Dr. Mary Jo Olson’s care and treatment of
plaintiff fell below the appropriate standard of care
The above issues are not listed by the parties as controverted issues and the

Court finds plaintiff’s motion should be granted.
IT IS ORDERED:
1.

Defendants’ motion in limine (Filing No. 57) is granted in part and denied

in part as set forth in this order.
2.

Plaintiff’s motion in limine (Filing No. 58) and second motion in limine

(Filing No. 70 ) are granted in part and denied in part as set forth in this order.
Dated this 13th day of November, 2019.

BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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