Stapley v. Minnesota Life Insurance Co.

Filing 103

ORDER granting in part and denying in part 64 Motion in Limine; granting in part and denying in part 65 Motion in Limine; denying 66 Motion in Limine; denying 77 Motion to Preclude Portion of Kelly Stapleys Testimony. Signed by Judge Clark Waddoups on 10/21/2019. (jwt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

KELLY STAPLEY,
Plaintiff,

ORDER ON
EVIDENTIARY MOTIONS

vs.
MINNESOTA LIFE INSURANCE CO.,
Defendant.

Case No. 2:17-cv-653
Judge Clark Waddoups

Before the court are Plaintiff’s Motion in Limine to Exclude Part of Dr. Laurene Joseph’s
Testimony (ECF No. 64) and Motion in Limine to Exclude Dr. Dennis Lee’s Written Opinions
(ECF No. 65), as well as Defendant’s Motion in Limine to Exclude Hearsay Statements of Penny
Johnson (ECF No. 66) and Motion to Preclude Portion of Kelly Stapley’s Testimony (ECF No.
77). At a Final Pretrial Conference held on October 18, 2019, the court heard argument, made
findings, and issued rulings on each motion. This written order substantiates the court’s oral
rulings. Each motion will be discussed in turn.
I.

Plaintiff’s Motion in Limine to Exclude Part of Dr. Laurence Joseph’s Testimony
Plaintiff seeks to prevent Dr. Laurence Joseph (“Dr. Joseph”) from testifying whether she

reviewed Conrad Jahries’s (“Mr. Jahries”) medical records or talked to Mr. Jahries’s family or
primary care physician before she prepared part of Mr. Jahries’s death certificate. Dr. Joseph
performed a medical evaluation on Mr. Jahries on October 16, 2015, the day before he died. At
her deposition, Dr. Joseph testified that she could not remember whether she had Mr. Jahries’s
treatment records or spoke with his family but stated that she did not have any reason to doubt

that she followed her normal practice of obtaining such information in this case. (ECF No. 64-1,
at 16:6–19, 25:11–25, 42:1–12). Plaintiff asserts that Dr. Joseph should be barred from offering
such testimony at trial under Rule 702 of the Federal Rules of Evidence because it is speculative
and thus inappropriate to be offered by an expert witness and under Rule 403 because it could
confuse the jury.
Plaintiff’s Motion in Limine to Exclude Part of Dr. Laurene Joseph’s Testimony (ECF
No. 64) is GRANTED IN PART. While Dr. Joseph is permitted to testify as to her normal
practice, she is PRECLUDED from testifying, or speculating, that she followed that practice in
regards to Mr. Jahries.
II.

Plaintiff’s Motion in Limine to Exclude Dr. Dennis Lee’s Written Opinions
Plaintiff seeks to exclude a claim log that contains, among other statements, a summary

of Dr. Dennis Lee’s (“Dr. Lee”) review, and opinion, of Mr. Jahries’s medical history (the
“Claim Log”). (ECF No. 65-1). Defendant originally intended to call Dr. Lee to testify at trial
as an expert witness, but he subsequently became unavailable. As such, by order entered August
20, 2019 (ECF No. 63), the court allowed Defendants to substitute Dr. Flyer as its expert
witness. Plaintiff argues that it would be unduly prejudicial to allow Defendant to put Dr. Flyer
on the stand and also admit the opinion of Dr. Lee. Defendant asserts that it does not intend to
admit the Claim Log to establish Mr. Jahries’s cause of death, but rather to rebut Plaintiff’s claim
that it did not diligently investigate Plaintiff’s claim.
Plaintiff’s Motion in Limine to Exclude Dr. Dennis Lee’s Written Opinions (ECF No. 65)
is GRANTED IN PART. While Defendant may present that it received advice from Dr. Lee, it
is PRECLUDED from presenting the content of that advice. Defendant is to propose an
instruction or stipulation regarding the means by which it intends to proceed on this issue.

2

III.

Defendant’s Motion in Limine to Exclude Hearsay Statements of Penny Johnson
In its May 8, 2019 Memorandum Decision and Order Denying in Part and Granting in

Part Motion to Exclude Testimony of Dr. Rothfeder (ECF No. 49), the court ruled that
statements of Nurse Johnson, made through her written memo (ECF No. 32-3) (“the Memo”) and
a conversation she had with Dr. Rothfeder (ECF No. 32-4) (“the Statements to Rothfeder”), were
hearsay but declined to exclude them at that time, as it could not “rule as a matter of law that
[they] would not be admitted under either Rule 804 or 807.” Defendant moves to exclude Nurse
Johnson’s statements, as well as the notes Dr. Rothfeder took memorializing the Statements to
Rothfeder (the “Rothfeder Note”), asserting that neither Rule 804(b)(4) nor 807 applies.
Defendant’s Motion in Limine to Exclude Hearsay Statements of Penny Johnson (ECF
No. 66) is DENIED. After reviewing the arguments of counsel, the court now concludes that
Nurse Johnson’s statements are not admissible under Rule 804(b)(4). The court, however,
remains unable to determine if those statements are admissible under Rule 807. As such, it will
RESERVE RULING on the admissibility of the Memo, the Statements to Rothfeder, and the
Rothfeder Note until the same are offered at trial. As indicated at the Final Pretrial Hearing, the
court is inclined to allow the admission of the Memo and the Statements to Rothfeder but
exclude the Rothfeder Note.
IV.

Defendant’s Motion to Preclude Portion of Kelly Stapley’s Testimony
In Plaintiff’s Memorandum Opposing Motion to Exclude Hearsay Statements of Penny

Johnson (ECF No. 68), Plaintiff represented that Ms. Stapley “will testify at trial that she was the
first family member to arrive after her father died and she saw him in an unusual position on the
floor at the bathroom doorway when she arrived” and that Mr. Jahries’s position was “similar to
the description in Nurse Johnson’s statements to Dr. Rothfeder.” Defendant argues that such

3

testimony should be precluded pursuant to Rule 37(c) of the Federal Rules of Civil Procedure
because Plaintiff failed to disclose its existence in her Initial Disclosure and discovery responses.
Defendant’s Motion to Preclude Portion of Kelly Stapley’s Testimony (ECF No. 77) is
DENIED. At the Final Pretrial Hearing, the court found that the weight of the four factors set
forth in Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985 (10th Cir. 1999)
establishes that Plaintiff’s September 9, 2016 disclosure of Ms. Stapley’s purported testimony
was harmless. That testimony is therefore NOT PRECLUDED by Rule 37(c).

DATED this 21st day of October, 2019.

BY THE COURT:

_______________________________
Clark Waddoups
United States District Judge

4