Veurink v. Murphy

Filing 62

PRETRIAL HEARING ORDER. Jury Trial set for 7/15/2019 at 09:00 AM in Sioux Falls Courtroom 1 - Room 203A before U.S. District Judge Lawrence L. Piersol Signed by U.S. District Judge Lawrence L. Piersol on 6/20/19. (SRA)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

ANGELA VEURINK,

CIV. 18-4021

Plaintiff,
PRE-TRIAL HEARING ORDER

vs.

DR. JILL MURPHY
Defendant.

The pre-trial hearing in this matter was held in Courtroom 1 on June 17,"2019. The Court

held additional argument on Plaintiffs Motion for Partial Summary Judgment and addressed the
motions in limine filed by the parties, Docs. 39 and 47, as well as other pre-trial matters. This
Order will address the Court's ruling on the motions in limine filed by the parties and other pretrial orders. The Court will rule on Plaintiffs Motion for Partial Summary Judgment in a separate

Memorandum Opinion and Order. Accordingly, it is hereby ORDERED that:
1) Defendant's Motion in Limine 1, Doe. 39, seeking to exclude evidence of or reference to
liability or malpractice insurance is granted. See Hojfman v. Rover, 359 N.W.2d 387, 391
(S.D. 1984)("The fact that a defendant has liability insurance is not a relevant issue in a
personal injury action); Fed. R. Evid. 411.

2) Defendant's Motion in Limine 2, Doc. 39, seeking to exclude evidence, testimony, or
reference to alleged violations ofthe standard ofcare by Defendant that did not proximately
cause any injury or damage is granted unless evidence is presented at trial that the alleged
violation was a proximate cause of Plaintiffs injuries. See Schmidt v. Petty, 752 S.E.2d

690,693(N.C. Ct. App. 2013)(conducting an analysis imder Fed. R.Evid.403 and finding
it was reasonable for the trial court to preclude testimony that the doctor violated the
standard of care, when such violation was not a proximate cause of the alleged harm

because the "jury is likely to attach great significance to expert testimony that a party
violated the standard of care").

3) Defendant's Motion in Limine 3, Doc. 39, directing Plaintiff, her counsel, and all witnesses
to refi-ain from making "golden rule" arguments is granted. Both Plaintiff and Defendant
are precluded from making any"golden rule" arguments. See Lovett ex rel. Lovett v. Union
Pacific R.R. Co., 201 F.3d 1074, 1083 (8th Cir. 2000) (stating that the Golden Rule
argument is "universally conderrmed because it encourages the jury to depart from

neutrality and to decide the case on the basis of personal interest and bias rather than on
the evidence.")(internal quotations and citation omitted).
4) Defendant's Motion in Limine 4, Doe. 39, seeking to preclude any reference in the trial to
jury verdicts in other cases, or arguments challenging the jury to award amounts
commensurate with what other juries have awarded, is granted in part and denied in part.
Plaintiffis precluded from advising thejury ofthe amount of a verdict in similar cases, see
75A Am. Jur. 2d Trial § 523 (2019)("[M]ost courts find that it is improper, or even
reversible error, for counsel in a civil ease to advise the jury of the amount of the verdict
in similar eases ...."); Reetz v. Kinsman Marine Transit Co., 330 N.W.2d 638,643(Mich.
1982)(stating that references to multi-million dollar verdicts in other eases were improper
and should not be permitted), but may ask questions of the jury during voir dire to
determine any juror biases towards awarding damages in the present ease. Linden v. CNH
Am., LLC, 61?> F.3d 829, 839 (8th Cir. 2012)(concluding that juror should have been
dismissed for cause when he responded during voir dire questioning that he would place a
greater burden on the plaintiff to award paint and suffering damages).
5) The Court reserves ruling until trial on Defendant's Motion in Limine 5, Doe. 39, seeking
to preclude evidence or references that Plaintiff will require future medical care or incur
future medical expenses as a result of Defendant's actions. Plaintiffs recovery for future
medical care is limited to the cost of medical care reasonably certain to occur in the future.
See South Dakota Pattern Jury Instructions Civil, 50-120-10("The law allows damages for
detriment reasonably certain to result in the future. By their nature, all future happenings
are somewhat imeertain. The fact and the cause of the loss must be established with

reasonable certainty. Once fixture detriment is established, the law does not require
certainty as to the amount of such damages. Thus, once the existence of such damages is
established, recovery is not barred by uncertainty as to the measure or extent of damages,
or the fact that they cannot be measured with exactness. On the other hand, an award of
future damages cannot be based on conjecture, speculation, or mere possibility."); see also
Jorgenson v. Dronebarger, 143 N.W.2d 869, 874(S.D. 1966))("The rule is well settled
in this state to warrant an instruction and to sustain a recovery for future damages, the
, future effect ofthe injury, and either its permanency or duration,ifnot permanent, must be
shown with reasonable certainty").
6) Defendant's Motion in Limine 6, Doc. 39, seeking to preclude evidence or references to
the fact that Plaintiff is at an increased risk for complications if she elects to undergo
revisionary surgery is denied to the extent it becomes relevant at trial to explain why

Plahitiffhas not yet undergone revisionary surgery. Such evidence is inadmissible to prove
loss of chance damages since Dr. Steele "speculated" in his deposition testimony that the
loss of chance of Plaintiff receiving smaller breasts without surgical complications in a
revisionary operation was 10 percent—far less than the 50 percent required to recover loss
of chance damages under South Dakota law. See SDCL § 20-9-1.1.

7) The Court reserves ruling on Defendant's Motion in Limine 7, Doe. 39, until trial. The
Court's ruling on Defendant's Motion in Limine 7 is dependent on whether Plaintiffs fraud
claim survives summary judgment.

8) Defendant's Motion in Limine 8, Doc. 39, seeking to preclude all evidence or references
that Defendant allegedly attempted insurance fraud is granted in part. Dr. Steele will not
be permitted to express any opinions on whether Defendant attempted insurance fraud
because such an opinion is beyond his expertise as a medical doctor and is a determination
to be made by the jury.
9) Defendant's Motion in Limine 9, Doc. 39, seeking to preclude references to the damages
cap for medical malpractice actions in South Dakota or arguments that the damages cap is
unconstitutional is not objected to by Plaintiff and is hereby granted.
10)The Court reserves ruling on Defendant's Motion in Limine 10, Doc. 39, seeking to
preclude evidence or argument about criticisms of care provided by Defendant not rising
to the level of a violation of the standard of care. In Moussseau v. Schwartz, the South

Dakota Supreme Court stated that although a physician is not liable under South Dakota
law for malpractice "simply by failing to possess the knowledge and skill ordinarily

possessed by practitioners in the field," a deficit in the degree of knowledge and skill
possessed by a practitioner from that ordinarily possessed by other practitioners in the field
is relevant to whether the practitioner "had and used the skill and care which other
practitioners in the field commonly possess and use." 756 N.W.2d 345, 354(S.D. 2008)
(emphasis added).
11)Plaintiff does not object to Defendant's Motion in Limine 11,Doc. 39,seeking to sequester
all witnesses except the parties and their experts, and Defendant's Motion in Limdne 11 is
granted. See Fed. R. Evid. 615.

12)Defendant does not object to Plaintiffs Motion in Luniue 1, Doc. 47, seeking to preclude
any evidence or references that Defendant has never been previously sued or accused of
wrongdoiug and Plaintiffs Motion in Limine 1 is granted.

13)Plaintiffs Motion in Limine 2, Doc. 47, seeking to preclude evidence or references that
Plaintiff signed consent forms and was informed about the risks of surgery is granted
except that if Plaintiffs fraud and deceit claim survives summary judgment. Defendant
may introduce testimony that Plaintiff signed a consent form for a mastopexy, but may not
introduce any evidence that she was informed about the risks associated with the procedure.
The fact that the Plaintiff signed a consent form for a mastopexy is relevant to whether
Plaintiff relied on Defendant's alleged misrepresentation prior to surgery that she would
perform a breast reduction and remove 250-350 grams per breast. Defendant will be
precluded from iutroducing the mastopexy and other consent forms signed by Plaintiff as
exhibits and Defendant will be precluded from iutroducing testimony or other evidence

that Plaintiffsigned consentforms and was informed about the risks ofher other non-breast
related surgeries. SeeHillyerv. Midwest Gastrointestinal Ass., P.C.,883 N.W.2d404,410

(Neb. Ct. App. 2016) (following other jurisdictions in concluding that "evidence of
informed consent and risk-of-surgery discussions is irrelevant and unfairly prejudicial
where a plaintiff alleges only negligence, and not lack ofinformed consent.").
14)If Plaintiffs fraud and deceit claim survives summary judgment, Plaintiff may not submit
evidence relating to Defendant's net worth until the Court holds a hearing on punitive
damages. Ifthe Court at that hearing allows the Plaintiffto present her request for punitive
damages to the jury, then Defendant's net worth evidence may be presented to the jury.
No worth evidence is to be mentioned in opening statement nor in voir dire.

15)The Court grants each party sixty (60) minutes for voir dire and thirty (30) minutes for
opening statements.

16)Two(2) bound photocopies of exhibits and any objections by the parties to exhibits shall
be delivered by each party to the Clerk's Office for the Court's use on or before Monday,
July 8, 2019.

17)The jury trial shall begin on Monday,July 15, 2019. The Court will meet with counsel at
9:00 a.m. and the jury will be brought in at 9:30 a.m.

Dated this 20th day of June, 2019.
BY THE COURT:

/rence L. Piersol

United States District Judge
ATTEST:

MATTHEW W.THELEN,CLERK