Gonzalez Berrios v. Mennonite General Hospital, Inc.
Filing
150
OPINION AND ORDER: The Court DENIES in part and GRANTS in part Plaintiff's Motion in Limine to Include and Exclude Evidence at Trial and Supplemental In Limine Request at Docket No. 122 and DENIES Plaintiff's Supplemental In Limine Request at Docket No. 124. Signed by Judge Raul M. Arias-Marxuach on 1/30/2020. (mrr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ANGÉLICA M. GONZÁLEZ BERRIOS,
Plaintiff,
v.
MENNONITE GENERAL HOSPITAL,
INC., et al.,
CIVIL NO. 18-1146 (RAM)
Defendants
MENNONITE GENERAL HOSPITAL,
INC., et. al.
Third Party Plaintiffs
v.
TRIPLE S PROPIEDAD, INC.
Third Party Defendant
OPINION AND ORDER
RAÚL M. ARIAS-MARXUACH, District Judge
I. BACKGROUND
Pending before the Court are Plaintiff Angélica GonzálezBerrios’ Motion in Limine to Include and Exclude Evidence at Trial
and Supplemental In Limine Request (Docket Nos. 122 and 124).
Specifically, Plaintiff requests that the Court admit three (3)
YouTube
videos
prepared
and
posted
by
codefendant
Mennonite
General Hospital (“MGH” or “the Hospital”) as well as videos of
deposition testimony proffered by five (5) witnesses, all of whom
Civil No. 18-1146 (RAM)
2
are MGH employees or physicians with privileges at the Hospital.
(Docket No. 122). On the other hand, Plaintiff moves to exclude
(1) all documentary and testimonial evidence regarding the limits
of the insurance policies available to them and (2) any evidence
or mention of the Hospital’s non-for-profit corporate status.
(Docket Nos. 122 and 124).
In
response,
codefendants
MGH
and
Medical
Protective
(“MedPro”), collectively “Defendants,” filed a joint Opposition to
Motion In Limine to Include and Exclude evidence in Trial (Docket
#123) and the Supplemental In Limine Request (Docket #124). (Docket
128). Likewise, third-party defendant Triple-S Propiedad, Inc.
(“Triple-S”) filed its own Opposition to Plaintiffs’ In Limine
Motions. (Docket No. 129).
For the reasons discussed below, the Court DENIES in part and
GRANTS in part Plaintiff’s Motion in Limine to Include and Exclude
Evidence at Trial and Supplemental In Limine Request at Docket No.
122 and DENIES Plaintiff’s Supplemental In Limine Request at Docket
No. 124.
II. LEGAL STANDARD
A. The Admissibility of Relevant Evidence
Fed.
R.
Evid. 401
establishes
that,
“evidence
must
be
relevant to be admissible.” In re Fin. Oversight & Mgmt. Bd. for
Puerto Rico, 2019 WL 3565942, at *2 (D.P.R. 2019) (internal
quotation
omitted).
Likewise,
“irrelevant
evidence
is
not
Civil No. 18-1146 (RAM)
3
admissible.” Fed. R. Evid. 402. Pursuant to Fed. R. Evid. 401,
evidence is relevant if “it has any tendency to make a fact more
or less probable than it would be without the evidence” and if the
fact in question “is of consequence in determining the action.”
Thus, for evidence to be relevant it “need only move the inquiry
forward to some degree” on a fact of consequence. Bielunas v. F/V
Misty Dawn, Inc., 621 F.3d 72, 76 (1st Cir. 2010) (citation
omitted).
Said
test
constitutes
“a
very
low
bar
for
relevance.” United States v. Pereira, 312 F. Supp. 3d 262, 272
(D.P.R. 2018) (quotation omitted). Therefore, evidence “which may
prove or disprove a party's liability theory” is necessarily
relevant. E.E.O.C. v. Ventura Corp., 2013 WL 550550, at *5 (D.P.R.
2013) (quoting Velez, 590 F. Supp. 2d at 258); see also,
Vazquez-
Corales v. Sea-Land Serv., Inc., 172 F.R.D. 10, 12 (D.P.R. 1997)
(“It is plainly obvious that evidence with the potential to
disprove a plaintiff's theory or to reveal a contributing cause of
the damages for which the defendant is not responsible is relevant
to the case.”)
B. When Should Relevant Evidence Be Excluded
The Federal Rules of Evidence codify various instances in
which relevant evidence should be excluded. Fed. R. Evid. 402
dictates that “[r]elevant evidence is admissible unless any of the
following provides otherwise: the United States Constitution; a
Civil No. 18-1146 (RAM)
4
federal statute; [the Federal Rules of Evidence]; or other rules
prescribed by the Supreme Court [of the United States].”
On the other hand, Fed. R. Evid. 403 requires exclusion of
evidence “if its probative value is substantially outweighed by a
danger of […] unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” The First Circuit has emphasized that this
rule
protects
“against unfair prejudice,
not
against
all
prejudice.” United States v. Whitney, 524 F.3d 134, 141 (1st Cir.
2008) (emphasis added).
Another judge in this District has noted that “[e]vidence is
generally deemed unfairly prejudicial if it has an undue tendency
to prompt a decision by the factfinder on an improper basis.” DiazCasillas v. Doctors' Ctr. Hosp. San Juan, 342 F. Supp. 3d 218, 232
(D.P.R. 2018) (quoting United States v. Benedetti, 433 F.3d 111,
118 (1st Cir. 2005)). Thus, when the line between the probative
value and unfair prejudice of certain evidence is close, “Rule 403
tilts the balance in favor of admission.” United States v. VillaGuillen, 2019 WL 3318411, at *4 (D.P.R. 2019).
C. Evidence required in medical malpractice cases
In
medical
malpractice
cases
under
Puerto
Rico
law,
plaintiffs must establish three main elements: “(1) the duty owed
(i.e., the minimum standard of professional knowledge and skill
required in the relevant circumstances); (2) an act or omission
Civil No. 18-1146 (RAM)
5
transgressing that duty; and (3) a sufficient causal nexus between
the breach and the harm.” Laureano Quinones v. Nadal Carrion, 2018
WL 4057264, at *2– 3 (D.P.R. 2018) (quoting Marcano Rivera v.
Turabo Medical Ctr. P’ship, 415 F.3d 162, 167 (1st Cir. 2005)). In
these cases, the duty owned by physicians is to comply with the
national standard of care, “that, in the light of the modern means
of communication and education, meets the requirements generally
recognized
by
the
medical
profession.”
Ramirez-Ortiz
v.
Corporacion Del Centro Cardiovascular de Puerto Rico y Del Caribe,
32 F. Supp. 3d 83, 87 (D.P.R. 2014) (quoting Santiago–Otero v.
Mendez, 135 D.P.R. 540, 1994 P.R.-Eng. 909, 224 (1994)). The
applicable standard of care can be established by referencing “a
published
standard,
[discussion]
of
the
described
course
of
treatment with practitioners outside the District ... at seminars
or
conventions,
or
through
presentation
of
relevant
data.” Strickland v. Pinder, 899 A.2d 770, 773–74 (D.C. 2006)
(internal citations omitted).
III. DISCUSSION
A. The Admissibility of MGH’s YouTube Videos
Plaintiff seeks to admit into evidence three (3) YouTube
videos created by MGH, namely the “Emergency Room Video,” the
“Living the Mennonite Experience Video,” and “Zero Error Policy
Video”. (Docket No. 122 at 2-12). These videos explain in broad
terms the nature of the services that the Hospital should strive
Civil No. 18-1146 (RAM)
6
to provide to its patients, specifically services with the highest
standards of quality and safety, zero mistakes, and the shortest
wait time possible. Id. Plaintiff posits that these three videos
make
it
more
probable
that
the
hospital
and
its
staff
were
negligent because the treatment Plaintiff received does not meet
the benchmarks established in the videos. Id.
In its opposition, Defendants argue that the videos are
irrelevant, lack probative value and are insufficient to prove the
alleged negligent actions or omissions that must be proven through
medical experts. (Docket No. 128 at 5).
The
videos
in
controversy
include
general,
aspirational
statements that do not constitute detailed internal regulations
nor do they articulate a specific standard of care physicians must
meet under Puerto Rico law. Even the “zero error policy” goes
against the general tort law principles that (a) doctors do not
need
to
meet
acknowledged
a
“standard
error
in
of
medical
perfection”
judgment
and
(b)
cannot
“even
an
support
a
malpractice claim so long as the mistake is reasonable.”
Rolon-
Alvarado v. Municipality of San Juan, 1 F.3d 74, 78 (1st Cir.
1993). Moreover, Plaintiff does not allege in their pleadings that
they relied on these videos when choosing to seek treatment at
MGH. See Ferus ex rel. Estate of Ricciardi v. United States, at *2
(N.D. Ill. 2006) (finding that a hospital’s advertising materials
were irrelevant, and therefore did not need to be produced during
Civil No. 18-1146 (RAM)
7
discovery in part because “without some form of alleged reliance,
the court does not see how advertising could raise the standard of
care”).
The fact that the hospital states publicly that it provides
a high-quality service, does not make any fact of consequence in
this case more or less probable nor does it help prove or disprove
Plaintiff’s liability theory. See Fed. R. Evid. 402; Ventura Corp.,
2013 WL 550550, at *5. Cf. Intermountain Stroke Ctr., Inc. v.
Intermountain Health Care, Inc., No. 2014 WL 1320281, at *6 (D.
Utah 2014), aff'd, 638 F. App'x 778 (10th Cir. 2016) (holding that
a Hospital’s “claim to have the best or highest quality product or
service is paradigmatic puffery,” defined as a “vague generality
no reasonable person would rely on as assertion of particular
facts,” for purposes of the Lanham Act). The videos in question
are irrelevant and thus inadmissible. Therefore, the Court denies
Plaintiff’s request at Docket No. 122 to admit the Hospital’s
YouTube videos.
B. The Admissibility of Deposition Videos
Plaintiff contends that videos of given deposition testimony
by the Administrative Director of the Hospital’s emergency room,
two of the Hospital’s nurses and two of its physicians consist of
opposing
party
statements
and
thus
should
be
admitted
as
substantive evidence under Fed. R. Evid. 801(d)(2)(d). (Docket No.
122 at 13). On their part, Defendants argue that these individuals
Civil No. 18-1146 (RAM)
are
not
corporate
8
officers,
directors,
managing
agents,
or
representatives designated under Rule 30(b)(6) and therefore, they
are non-party witnesses whose deposition testimony can only be
admissible under the circumstances listed at Fed. R. Civ. P.
32(a)(4), which allegedly are not met. (Docket No. 128 at 6-7).
Fed. R. Evid. 801(d)(2)(D) establishes that a statement is
not hearsay if it is “offered against an opposition party and […]
was made by the party’s agent or employee on a matter within the
scope of that relationship and while it existed.” Therefore, the
witnesses need not be MGH’s designated representatives under Fed.
R.
Civ.
P.
30(b)(6).
While
the
Hospital
concedes
that
the
Administrative Director and nurses are its employees, it contends
that the physician witnesses have privileges at the Hospital but
are
not
employees.
(Docket
No.
128
at
6).
Physicians
with
privileges have been considered hospital employees for purposes of
EMTALA’s whistleblower provision. See Muzaffar v. Aurora Health
Care S. Lakes, Inc., 985 F. Supp. 2d 875, 880 (E.D. Wis. 2013).
Regardless of whether the witness is a party, the Rules of
Civil Procedure and Evidence are “based on the premise that live
testimony is more desirable than a deposition.” § 2146 Deposition
of a Nonparty Witness, 8A Charles A. Wright and Arthur R. Miller,
Fed. Prac. & Proc. Civ. § 2146 (3d ed. 2019). Thus, even though
Fed. R. Civ. P.
32(a)(3) states that a party’s deposition may be
used for any purpose, “nothing in the statute indicates that they
Civil No. 18-1146 (RAM)
9
may be used at any time or in any manner as a party sees fit.”
Gonzalez Prod. Sys., Inc. v. Martinrea Int'l Inc., 310 F.R.D. 341,
344
(E.D.
Mich.
2015).
Moreover,
to
permit
doing
so
“would
undermine the general ‘preference for live testimony’ and the
‘importance of cross-examination’ as well as the Court’s ability
to efficiently run a trial. Id. (quoting White v. Illinois, 502
U.S. 346, 356, (1992)). Likewise, “[i]f a nonparty witness is
available to testify, the deposition cannot be used in lieu of
live
testimony
(although
it
is
available
to
impeach).”
Id.
Likewise, 8A Charles A. Wright and Arthur R. Miller, Fed. Prac. &
Proc. Civ. § 2146 (3d ed. 2019). In the present case, presenting
the deposition videos instead of live testimony is unwarranted if
the witnesses are available and presenting the videos in addition
to live testimony would cause undue delay and be needlessly
cumulative. See Fed. R. Evid. 403.
Thus, Plaintiff’s request to include the deposition testimony
as substantive evidence at Docket No. 122 is denied at this time.
The deposition videos may be used for impeachment purposes or to
refresh a witness’s recollection pursuant to Fed. R. Civ. P. 32(2)
and if the videos are of deposition testimony that is admissible
under Fed. R. Evid. 801(d)(2)(D), the Court will not issue a
limiting instruction.
Civil No. 18-1146 (RAM)
10
C. The Admissibility of Insurance Policy Limits
Plaintiff contends that the Court should preclude any mention
or evidence as to the limits of the insurance policies available
to Defendants, given that there are no controversies regarding
said
limits.
(Docket
No.
122
at
37).
In
their
Opposition,
Defendants state, without providing any case law, that MedPro has
the right to notify the limits of the insurance policy. (Docket
No. 128 at 9). Third-party defendant Triple-S also contends that
not informing the jury could lead them to assume that the insurance
companies are bottomless sources of compensation. (Docket No. 129
at 5).
The limits of an insurance policy “are not probative of the
issue of damages, absent a controversy over the amount of coverage
itself.”
Wallace v. Allstate Ins. Co., 2010 WL 200001, at *5 (S.D.
Miss. 2010). In addition to being of little, if any, probative
value, evidence of policy limits can be “unduly prejudicial,
misleading, and confusing to a jury, and is of little to no
probative value to the claims in this case.” Id. (citing Fed. R.
Evid. 403). Accordingly, this District has required that policy
limits be redacted from insurance policy documents in order to be
introduced at trial. Taboas v. Fiddler, Gonzalez & Rodriguez, PSC,
41 F. Supp. 3d 137, 144 (D.P.R. 2014). In light of the unduly
prejudicial nature of insurance policy limits the Court grants
Civil No. 18-1146 (RAM)
11
Plaintiff’s request at Docket No. 122 to preclude any mention of
said limits.
D. The Admissibility of the MGH’s non-profit status
Plaintiff seeks to exclude any evidence or mention at trial
of the Hospital’s non-profit corporate status (Docket No. 124 at
1). Plaintiff argues that not only is this information irrelevant
to the adjudication of the case, but it could also unfairly
prejudice or influence the jury in violation of Fed. R. Evid. 403.
Id. The Hospital counters that that its non-profit status holds no
bearing on the jury’s determination and alleges that there is no
evidence to the contrary. (Docket No. 128 at 9).
Both parties correctly articulate that the Hospitals nonprofit status is patently irrelevant to the case at bar, as it
does not prove or disprove Plaintiff’s theory of liability. See
E.E.O.C. v. Ventura Corp., 2013 WL 550550, at *5 (D.P.R. 2013.
However, “basic identifying information about any person or entity
which is a party to the litigation is routinely admitted in
evidence even though it has little or no relevance to the issues
in dispute” Armstrong v. United States, 2004 WL 2595931, at *4 (D.
Alaska Feb. 20, 2004). Therefore, although MGH’s non-profit status
“has no bearing on the standard of care owed […] [t]he trier of
fact is [still] entitled to know enough about the parties to
understand who or what they are.” Id. See also City of Farmington
Hills Employees Ret. Sys. v. Wells Fargo Bank, N.A., 2014 WL
Civil No. 18-1146 (RAM)
12
12610207, at *6 (D. Minn. Apr. 3, 2014) (“To the extent that
testimony regarding Plaintiffs' charitable and nonprofit status is
descriptive
of
any
Plaintiff
entity,
such
evidence
shall
be
presumptively admissible, subject to any trial objections the
defense may have.”).
Thus, Plaintiff’s Supplemental In Limine Request at Docket
No. 124 is denied in part and granted in part. MGH’s non-profit
status will only be mentioned when identifying the party for voir
dire. Furthermore, admissible documents that reference MGH’s nonprofit status do not need to be redacted, unless the Court finds
that the references are excessive. A “limited presentation” of
MGH’s status “cannot unfairly prejudice” Plaintiff. Id. However,
no party will be permitted to present additional evidence regarding
the Hospital’s non-profit status nor shall they be allowed to argue
to the jury that said status has a bearing on any issue regarding
liability or damages.
IV. CONCLUSION
In light of the above, Plaintiff’s Motion in Limine to Include
and Exclude Evidence at Trial at Docket No. 122 is DENIED in part
and GRANTED in part. Specifically, Plaintiff’s request to admit
the Hospital’s YouTube Videos and the deposition videos is DENIED,
while Plaintiff’s request to exclude evidence of insurance policy
limits is GRANTED. Plaintiff’s Supplemental In Limine Request at
Docket No. 124 is DENIED.
Civil No. 18-1146 (RAM)
13
IT IS SO ORDERED.
In San Juan, Puerto Rico this 30th day of January 2020.
S/ RAÚL M. ARIAS-MARXUACH
United States District Judge
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