Treib v. Glatt et al
Filing
54
ORDER granting 34 Motion in Limine Number 2. Signed by Chief Judge Karen E. Schreier on 7/21/2011. (KC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JULIE ANN TREIB,
Plaintiff,
vs.
DR. DENNIS J. GLATT, and
SANFORD CLINIC, SURGICAL
ASSOCIATES,
Defendants.
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CIV. 09-4108-KES
ORDER GRANTING
DEFENDANTS’ MOTION IN
LIMINE NUMBER 2
Plaintiff, Julie Ann Treib, brought suit against defendants,
Dr. Dennis J. Glatt and Sanford Clinic, Surgical Associates, alleging a
battery and a violation of her right to informed consent after Dr. Glatt
opened a surgical wound on her abdomen. Treib alleges that she told
Dr. Glatt she did not want the procedure done in her hospital room and that
he disregarded her wishes. In their motion in limine number 2, defendants
move “[t]o prohibit questioning of any of Defendants’ expert witnesses
regarding Midwest Medical Insurance Group (MMIC), Defendants’ insurance
carrier.” Docket 34 at ¶ 2.
Defendants have listed two doctors, Dr. Donald M. Jacobs and
Dr. Thomas P. VanBruggen, as expert witnesses. Dr. VanBruggen is not
insured by MMIC, Docket 53-1, but Dr. Jacobs is insured by MMIC. Docket
53-2. Treib resists the motion as to Dr. Jacobs and does not object to the
motion as to Dr. VanBruggen. The motion is granted.
DISCUSSION
Federal Rule of Evidence 411 provides the rule on whether evidence of
liability insurance is admissible:
Evidence that a person was or was not insured against liability
is not admissible upon the issue whether the person acted
negligently or otherwise wrongfully. This rule does not require
the exclusion of evidence of insurance against liability when
offered for another purpose, such as proof of agency, ownership,
or control, or bias or prejudice of a witness.
Fed. R. Evid. 411. Treib, citing Advance Brands, LLC v. Alkar-Rapidpak, Inc.,
No. 08-CV-4057-LRR, 2011 WL 2144481 (N.D. Iowa May 31, 2011), argues
that the evidence that Dr. Jacobs is “insured by the same carrier would be
offered to show bias or prejudice of” Dr. Jacobs. Docket 46 at 2.
In Advanced Brands, the court reserved ruling for trial on the
admissibility of evidence showing that the plaintiff in a products liability
case and a third-party defendant were insured by the same liability
insurance company. 2011 WL 2144481, at *7. The defendant argued that
the evidence was admissible because the plaintiff, a corporation, had the
same insurance company as the third-party defendant, also a corporation,
and, thus, intentionally avoided bringing suit against that third-party
defendant. Id. Defendant argued the evidence was admissible to show the
biased approach taken by plaintiff and its experts in its intentional decision
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not to sue or blame the third-party defendant. The court agreed with
defendant and ruled the evidence that the plaintiff and the third-party
defendant “shared the same insurance company might be relevant for other
purposes, such as to demonstrate the potential bias of [the plaintiff’s] expert
witnesses. See, e.g., Charter v. Chleborad, 551 F.2d 246, 248-49 (8th Cir.
1977)).” Id.
In Chleborad, a malpractice case, a doctor testified as an expert about
the standard of care that the plaintiff received from the defendant doctor
and concluded that the defendant was negligent. 551 F.2d at 248. As
rebuttal evidence, the defendant introduced testimony that the expert had a
bad reputation for truthfulness and veracity through an attorney. Id. On
cross examination, the attorney testified that he defended medical
malpractice claims and that some of his clients were insurance companies.
Id. The plaintiff sought to question the attorney about the identity of his
clients, including the insurance companies, and the district court prohibited
the questioning, even though the attorney had been employed by the same
liability carrier that represented the defendant. Id. In reversing, the Eighth
Circuit reasoned that the evidence that the attorney was employed by the
same liability insurer was admissible to show bias. Id. at 249.
Neither Advanced Brands nor Chleborad held that the introduction of
an expert witness’s liability insurance carrier was admissible to show
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possible bias when that carrier was also the defendant doctor’s carrier.
Furthermore, both cases had facts in addition to the same insurance carrier
to suggest that the expert witness was biased. In Advanced Brands, the
evidence of an insurance carrier was relevant to show why the plaintiff
chose to sue one party and not another party. In Chleborad, the evidence
was offered to impeach a rebuttal character witness when that witness had
been previously employed by the insurance carrier. Similar facts do not
exist here and, thus, the reasoning in Advanced Systems and Chleborad,
and Treib’s other arguments, are unpersuasive.
After considering the evidence, the court finds that the evidence has
limited probative value. Plaintiff argues the evidence shows bias on the part
of the expert, but there is no showing that the expert witness has a direct
interest in the outcome of the litigation, such as an agent, owner, or
employee of the defendant’s insurance company.1 See Reimer v. Surgical
Serv. of Great Plains, 605 N.W.2d 777,781 (Neb. 2000). As a result, the
potential for bias is remote. If there is any bias, the probative value of that
evidence is outweighed by the unfair prejudice to defendants of introducing
evidence of insurance coverage to the jury. Accordingly, it is
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Dr. Jacobs has informed the court that he was unaware that MMIC also
insured Dr. Glatt when he reviewed this case and composed his expert report.
Docket 53-2.
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ORDERED that defendants’ motion in limine number 2 (Docket 34 at
¶ 2) is granted.
Dated July 21, 2011.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE
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