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J.B. v. Missouri Baptist Hospital of Sullivan

United States District Court, E.D. Missouri, Eastern Division

February 7, 2018

J.B., a minor, by and through his Next Friend, R ICKY BULLOCK, Plaintiff,
v.
MISSOURI BAPTIST HOSPITAL OF SULLIVAN, et al., Defendants.

          MEMORANDUM & ORDER

          E. RICHARD WEBBER, SENIOR UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiff's Motion in Limine [116], Defendant Missouri Baptist Hospital of Sullivan (“MBHS”)'s Motion in Limine Regarding Application of Section 490.715, RSMo. 2017 [120], Defendant MBHS's Motion in Limine to Preclude Plaintiff's use of “Reptile Theory” Argument or Evidence [121], Defendant MBHS's Motion in Limine to Bar Plaintiff's Experts, Gonzalez and Liggett, from Testifying Regarding Dr. Hughes' Inadmissible 4-hour Limitation [122], Defendant MBHS's Motion in Limine Regarding Prior Lawsuits or Claims involving Shamim X. Amini, M.D. and Board Certification Issues [124], Defendant MBHS's Motions in Limine [126], Defendants BC Missouri Emergency Physicians LLP and Shamim X. Amini, M.D.'s (“BC Missouri and Dr. Amini) General Motions in Limine [128], Defendants BC Missouri and Dr. Amini's Motion in Limine Regarding Unrelated Lawsuits or Claims against BC Emergency Physicians, LLP and Shamim X. Amini, MD, Board Certification and Licensing Issues [129], Defendants BC Missouri and Dr. Amini's Motion in Limine and Motion to Apply Damages Cap [131], Defendants BC Missouri and Dr. Amini's Motion in Limine to Bar Undisclosed and New Expert Opinions [133], Defendants BC Missouri and Dr. Amini's Motion in Linine to Bar Ms. Gonzalez and Ms. Liggett from Testifying about Dr. Hughes' Inadmissible 4-hour Limitation [135], Defendants BC Missouri and Dr. Amini's Motion in Limine Regarding Evidence of Unrelated Lawsuits Involving Experts [137], and Defendants BC Missouri and Dr. Amini's Motion in Limine to Preclude Plaintiff's Use of “Golden Rule” Arguments and Testimony and Vague “Danger” and “Safety” Arguments and Testimony [139]. This Court will also hear argument on Plaintiff's Motion to Exclude Cumulative Testimony [72]. Finally, parties have asserted they disagree as to the summary of the case and the stipulation of facts.

         I. Plaintiff's Motion in Limine [ECF No. 116]

         A. Plaintiff's Prior Medical Bills

         Plaintiff states he has withdrawn his claim for past medical expenses and will not present those expenses as an element for his damage claim at trial. Accordingly, he asserts they are irrelevant to any issue at trial, and he requests this Court exclude all evidence of and references to Plaintiff's prior medical bills and expenses. Defendants oppose this motion. They state Plaintiff's medical bills are relevant to the jury's determination of pain and suffering to show the seriousness of an injury, irrespective of whether Plaintiff has made a claim for medical damages. The Court will sustain this motion.

         B. Activities of Sabrina Bullock while at MBHS

         Plaintiff states on July 31, 2014, during his hospital stay at the MBHS Emergency Department, a nurse “walked in on the mother (Sabrina Bullock) going through the cabinets.” The nurse made note of it in her report. Plaintiff asserts it is unclear what Sabrina Bullock was doing in the medicine cabinets, and it is not related or relevant to any of the issues in this case.

         He states it would distract jurors and should be excluded. Defendants do not oppose this motion and contend such a ruling should apply equally to all parties. The Court will sustain this motion.

         C. Settlement Negotiations on Offers to Settle

          Plaintiff has participated in settlement discussions with Defendants, and states any evidence of his attempts to compromise this claim is not admissible under Federal Rule of Evidence 408. Defendants do not oppose this motion and contend such a ruling should apply equally to all parties. This motion is sustained and the limitation shall apply equally to all parties.

         D. Frivolous lawsuits

         Plaintiff asks this Court exclude any evidence, inference, or argument by Defendants which effectively implies we live in a “litigious society, ” “sue-happy society, ” there are “too many lawsuits, ” or that lawsuits are often “frivolous.” He states such references are improper, irrelevant, and undermine the integrity of the justice system. Defendants do not oppose this motion and contend such a ruling should apply equally to all parties. This motion will be sustained and such ruling shall apply equally to all parties.

         E. Criminal Terminology

         Plaintiff argues the use of criminal terms in this civil case (such as “guilty, ” “indicted” or “charged with”) may result in juror confusion about the difference between the burden of proof in civil and criminal cases. He argues this Court should exclude evidence, inference, or argument utilizing such terminology. Defendants do not oppose this motion and contend such a ruling should apply equally to all parties. This motion will be sustained and the ruling shall apply equally to all parties.

         F. Undisclosed Expert Witness Testimony

         Plaintiff moves the Court to order Defendants' expert witness testimony be limited to that which Defendants' experts stated in their Rule 26(2)(B)(c) report, and as developed at that expert's deposition. Defendants do not oppose this motion and contend such a ruling should apply equally to all parties. This motion will be sustained and the ruling shall apply equally to all parties.

         II. Defendant MBHS's Motion in Limine Regarding Application of Missouri Revised Statute § 490.715 [ECF No. 120]

         MBHS moves this Court to apply Missouri Revised Statute § 490.715 to the admissibility of evidence of medical damages in this case and bar Plaintiff from presenting any evidence as to Plaintiff's alleged medical damages beyond the actual cost of medical care or treatment as defined by Missouri Revised Statute § 490.715.5(2). Under the amended version of this section, plaintiffs may only introduce into evidence the “actual cost” of their medical care, rather than the amount charged or billed for that care. Prior to the 2017 amendment, the parties could introduce evidence of the value of the medical treatment rendered, with there being a rebuttable evidentiary presumption the dollar amount paid to the health care provider represented the value of the medical treatment rendered. MBHS alleges the post-2017 amendment is applicable and applies retroactively, because it constitutes a procedural/remedial change as it relates to an evidentiary rule regarding medical damages evidence. The motion will be sustained and the ruling shall apply equally to all parties.

         III. Defendant MBHS's Motion in Limine to Preclude Plaintiff's use of “Reptile Theory” Argument or Evidence [ECF No. 121] and Defendants BC Missouri and Dr. Amini's Motion in Limine to Preclude Plaintiff's Use of “Golden Rule” Arguments and Testimony and Vague “Danger” and “Safety” Arguments and Testimony [ECF No. 139]

         MBHS asks this Court prohibit Plaintiff from introducing argument or evidence related to the “reptile theory” at trial. The “reptile theory” is a litigation strategy based on a book titled Reptile: The 2009 Manual of the Plaintiff's Revolution. In that book, the authors instruct lawyers to appeal to the juror's own sense of self-protection in order to persuade jurors to render a verdict for plaintiffs that will, in the collective, effectively reduce or eliminate allegedly “dangerous” or “unsafe” conduct and thereby improve the safety of themselves, their family members, and their community. Similarly, BC Missouri and Dr. Amini ask this Court to preclude Plaitniff's use of “golden rule arguments” and “danger/safety” arguments in testimony. A golden rule argument asks the jury to place itself in the plaintiff's position. Defendants claim the reptile theory and golden rule theory misstate the appropriate standard of care in a medical malpractice case, which does not consider safety rules and community standards as a factor. Plaintiff agrees he will not raise such arguments. This motion will be sustained.

         IV. Defendant MBHS's Motion in Limine to Bar Plaintiff's Experts, Gonzalez and Liggett, from Testifying Regarding Dr. Hughes' Inadmissible 4-hour Limitation [ECF No. 122] and Defendants BC Missouri and Dr. Amini's Motion in Linine to Bar Ms. Gonzalez and Ms. Liggett from Testifying about Dr. Hughes' Inadmissible 4-hour Limitation [ECF No. 135]

         On January 12, 2018, this Court ruled Dr. Hughes' statement regarding his estimation that Plaintiff's functional capacity for standing and walking had been reduced to four hours as a result of his alleged injuries is inadmissible. Defendants state Plaintiff should be prohibited from presenting that statement to the jury by means of his other expert witnesses. Plaintiff states he does not intend to present such evidence and has instructed Dr. Hughes not to testify to the four-hour limitation. The Court will sustain this motion.

         V. Defendant MBHS's Motion in Limine Regarding Prior Lawsuits or Claims involving Shamim X. Amini, M.D. and Board Certification Issues [ECF No. 124] and Defendants BC Missouri and Dr. Amini's Motion in Limine Regarding Unrelated Lawsuits or Claims against BC Missouri ...


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