United States District Court, W.D. Missouri, Western Division
NORMAN BAMBER, M.D. Plaintiff,
PRIME HEALTHCARE KANSAS CITY - PHYSICIAN'S SERVICES, LLC, Defendant.
ORDER (1) GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTIONS IN LIMINE, AND (2) GRANTING IN PART,
DENYING IN PART, AND DEFERRING IN PART PLAINTIFF'S
MOTIONS IN LIMINE
D. SMITH, SENIOR JUDGE
are motions in limine filed by both parties. As set forth
below, Defendant's motions (Doc. #125) are granted in
part and denied in part, and Plaintiff's motions (Doc.
#127) are granted in part, denied in part, and deferred in
part. The parties are reminded these rulings are
interlocutory. Thus, the denial of a request to bar evidence
at this juncture preserves nothing for review, and the
parties may re-assert their objections at trial if they deem
it appropriate to do so. Evidence barred by this Order shall
not be discussed in the jury's presence (including during
opening statements) without leave of the Court. The parties
are free to suggest (out of the jury's presence) that
something has occurred during the trial justifying a change
in the Court's interlocutory ruling.
DEFENDANT'S MOTIONS IN LIMINE
Issues Decided on Summary Judgment
moves to exclude evidence and argument beyond “the
narrow issue of materiality of the breach to justify
termination.” Doc. #117. In deciding Defendant's
motion for summary judgment, the Court stated:
I conclude that the contract is not ambiguous as to Dr.
Bamber's pertinent duties, that there was an anticipatory
breach of duty to perform inpatient consultations at the
adjoining hospital, that he was terminated after being given
adequate notice, but that there is a remaining question as to
the materiality of the breach. Thus, only partial judgment in
favor of defendant should be granted at this time….
The difficulty in the contract is not posed by conflicting or
otherwise ambiguous terms but rather by terminology not
immediately understandable by persons unfamiliar with
hospital practice. Study of the filings and relying only on
background that is not contested clarifies the
Doc. #117, at 1-2.
argues Defendant's motion is vague, and therefore, it is
unclear what evidence it seeks to exclude. He also contends
he should be permitted to introduce evidence relevant to any
aspect of his breach of contract claim. By way of example,
Plaintiff points to the Medical Staff Bylaws and Rules and
Regulations, which do not require physicians to perform
inpatient consultations, and the On-Call Policy, which
required physicians to perform inpatient consultations as
part of the emergency department's call coverage.
Plaintiff maintains these documents are relevant to the
materiality of inpatient consultations as part of the
employment agreement, and the jury needs to understand how
the hospital and clinics operated.
referenced in the Court's March 18, 2019 Order, Missouri
courts are guided by the factors set forth in the Restatement
(Second) of Contracts when determining whether a breach is
material. Doc. #117, at 10-11 (citing Randy Kinder
Excavating, Inc. v. J.A. Manning Constr. Co., 899 F.3d
511, 517 (8th Cir. 2018) (citations omitted)). These factors
include (1) “the extent to which the injured party will
be deprived of the benefit which he reasonably
expected”; (2) “the extent to which the injured
party can be adequately compensated for the part of that
benefit of which he will be deprived”; (3) “the
extent to which the party failing to perform or to offer to
perform will suffer forfeiture”; (4) “the
likelihood that the party failing to perform or to offer to
perform will cure his failure, taking account of all the
circumstances including any reasonable assurances”; and
(5) “the extent to which the behavior of the party
failing to perform or to offer to perform comports with
standards of good faith and fair dealing.” Kinder
Excavating, 899 F.3d at 517 (citations omitted).
trial, the parties' evidence should relate to the
materiality of the breach, and in that regard, the parties
should be guided by the Restatement's factors. Other than
necessary background information, evidence other than
materiality of the breach will be excluded. Accordingly,
Defendant's motion in limine is granted.
asks the Court to prohibit Plaintiff from presenting evidence
or argument that Plaintiff is owed damages for emergency
department on-call coverage because Defendant was no longer
providing emergency care for neurological concerns at the
time Defendant terminated the agreement it had with
Plaintiff. Plaintiff argues call coverage compensation is
relevant, and he should be allowed to offer testimony and
evidence about call coverage compensation. Plaintiff states
he does not intend to testify about call pay as an element of
damages. Pursuant to Plaintiff's concession,
Defendant's motion is granted. Plaintiff shall not argue
or present evidence or testimony that he is owed damages for
on-call coverage. Plaintiff will be permitted, however, to
present evidence relating to on-call compensation as
historical context for the present dispute.
seeks to preclude Plaintiff from referencing or requesting
special damages, including the cost Plaintiff incurred to
reopen his practice and resume treatment of patients.
Plaintiff argues Defendant seeks to contravene the
Court's prior order, and Plaintiff “should be
permitted to discuss all types of damages at trial.”
Doc. #141, at 3.
the Court granted Defendant's motion for summary judgment
on Count II, which sought special damages for breach of
contract. As the Court explained:
“Special” damages are those which may be allowed
for the breach of certain types of contracts, and include
amounts which are not considered to arise
“naturally” or “usually” from the
breach of contract. Special damages are damages that
“actually result from a wrongful act but are the
product of the special circumstances of the case or are
peculiar to the non-breaching party.” Raineri
Const[r]. LLC v. Taylor, 63 F.Supp.3d 1017, 1033 (E.D.
Mo. 2014) (quoting Porter v. Crawford & Co., 611
S.W.2d 265, 271 (Mo.Ct.App. )). Included in Dr.
Bamber's request for “special damages” are
the costs he incurred “to reopen his practice and
resume his treatment of patients” after the termination
of his employment. He includes such items as malpractice
insurance, clinic space, wages for his staff, billing
services, storage of his items from his office while employed
by Prime and a computer to keep his records moving forward.
(Doc. 87, ¶ 13).
* * * *
Prime agrees that Dr. Bamber's alleged damages are
“the amount of salary, benefits or other compensation
to which he would have been entitled under the Agreement had
it not been terminated, minus any income he actually earned
(or should have earned)” for the three year period
before the Agreement could have been terminated by either
party. (Doc. 81, p.11-12). Thus, some of the items of damage
Dr. Bamber claims as “special damages” are
potentially included in calculating benefit of the bargain
damages…. However, Dr. Bamber has not provided any
evidence that staff wages, billing services, storage or other
such expenses might have been contemplated by the
parties…. Further, the record currently before this
Court contains no evidence as to Dr. Bamber's current
compensation package or practice structure, and thus, the
items to be included as damages are best left to be
determined at any trial. There is no evidence or cogent
argument presented that actual or ordinary benefit of the
bargain damages cannot fully compensate Dr. Bamber. He is
entitled to be fully compensated for his alleged loss, but
not recover a windfall. Ameristar Jet Charter, Inc. v.
Dodson Int'l Parts, Inc., 155 S.W.3d 50, 54 (Mo.
[b]anc. 2005). Prime's motion for partial summary
judgment seeking dismissal of Count II is therefore GRANTED.
Doc. #110, at 15-16.
to its earlier decision, the Court grants Defendant's
motion. Plaintiff shall not introduce evidence or make
arguments related to special damages. Instead,
Plaintiff's recovery is limited to benefit of the bargain
damages and those damages “naturally and proximately
caused by the commission of the breach and for those that
could have been reasonably contemplated by the defendant at
the time of agreement.” Gill Constr., Inc. v. 18th
& Vine Auth., 157 S.W.3d 699, 717 (Mo.Ct.App. 2004)
(citation omitted); see also Cason v. King, 327
S.W.3d 543, 548 (Mo.Ct.App. 2010) (citation omitted); Mo.
Approved Instruction 4.01 (2012).
Witnesses' Speculation and/or Improper Opinions
moves to prohibit Plaintiff and lay witnesses from testifying
about (1) admittance of patients presenting neurological
issues to reduce emergency room wait times, (2) St. Joseph
Medical Center being on “stroke diversion” when
Plaintiff was not available for an emergency neurosurgical
call, (3) someone needed to be on call in the emergency room
for neurological services and/or Defendant needed to offer
such services, (4) whether Defendant's rules and
regulations required inpatient consults from Plaintiff, (5)
Defendant looking for a reason to terminate Plaintiff's
contract, and (6) cost-cutting and other evidence of
Defendant's motive for terminating Plaintiff's
contract. Plaintiff does not intend to offer opinion
testimony regarding whether St. Joseph Medical Center was
required to be on stroke diversion if he was unavailable for
emergency neurosurgical department call coverage. But
Plaintiff argues he should be permitted to testify about or
discuss the other topics identified by Defendant.
witness may testify to a matter only if evidence is
introduced sufficient to support a finding that the witness
has personal knowledge of the matter.” Fed.R.Evid. 602.
To the extent Plaintiff has personal knowledge on
the other matters identified by Defendant, he will be
permitted to testify about those matters. The same goes for
lay witnesses who have personal knowledge about the matters
identified by Defendant. Defendant's motion is denied
with regard to Plaintiff and other witnesses who possess
personal knowledge about the matters identified by Defendant.
However, Defendant's motion is granted with regard to
Plaintiff and other witnesses testifying on ...