Motion in Limine to Prevent Evidence of Plaintiff's Negligence
Defendants like to keep the door open to directly or indirectly blame the plaintiff for the harm caused. You want to be able to clearly tell the jury that no one is blaming the plaintiff. This is a motion in limine designed to give you the ability to do this.
ADVANCED RADIOLOGY, PA., et al.
* IN THE
* CIRCUIT COURT
* HOWARD COUNTY
* CASE NO. 13-C-17-113087 MM
* * * * * * * * * * * *
Plaintiff, David McEnroe, by and through his attorneys, Justin P. Zuber and Miller & Zois, LLC, and hereby submits this Motion In Limine to preclude the Defense from arguing or presenting evidence at trial that anything the Plaintiff did or did not do was a proximate cause of his injuries and to preclude the Defense from presenting any evidence of failing to mitigate damages.I. INTRODUCTION
In this medical malpractice action, the Plaintiff went to see his primary care physician because of minor abdominal pain and bloating. His primary care physician sent him for an ultrasound. The ultrasound failed to show the presence of a gallbladder. Despite this evidence, Defendants Advanced Radiology, P.A. and Evelyn Conner, M.D. negligently interpreted the ultrasound and said it showed a contracted gall bladder filled with stones. Based upon this imaging study, the patient was referred to surgeon George Michael Lawrence, M.D., who attempted to surgically remove the Plaintiff's gall bladder on March 20, 2017. Not surprisingly, during the operation Dr. Lawrence could not locate the Plaintiff's gall bladder and concluded that he was born without one. Despite not having a gallbladder, Dr. Lawrence clipped and cut structures in the Plaintiff's body, including his common bile duct. He did this without first properly identifying the anatomy. This caused the Plaintiff severe and permanent damage.
At trial, it is anticipated that the Defense may attempt to introduce into evidence or argue before the jury that the Plaintiff was contributory negligent or failed to take action to mitigate his damages. Such argument or evidence should be precluded because there are no facts, evidence, and/or expert testimony to support this claim. For all of these reasons, Plaintiff's Motion must be granted.II. ARGUMENT
The standard that applies to this case was recently highlighted by the Court of Special Appeals in Barbosa v. Osbourne. The Plaintiff has provided the Court with a courtesy copy of this case attached as Exhibit 1. In that case, the Court stated:
…although a defendant health care provider may raise, in a medical malpractice case, any of the affirmative defenses generally available in any negligence action, including contributory negligence, that defense may not be invoked unless there is some evidence "that the injured party acted, or failed to act, with knowledge and appreciation, either actual or imputed, of the danger of injury which his conduct involves." Thomas v. Panco Mgmt. of Maryland, LLC, 423 Md. 387, 418, 31 A.3d 583 (2011) (internal citations and quotation marks omitted).
Barbosa v. Osbourne, No. 1258, SEPT.TERM,2015, 2018 WL 1960357, at *4 (Md. Ct. Spec. App. Apr. 26, 2018)
Drawing upon the general principles elucidated in Santoni v. Moodie, 53 Md. App. 129, 452 A.2d 1223 (1982), the Barbosa Court further stated:
In examining the close relationship between foreseeability of harm and contributory negligence, we declared that, "[t]o be held contributorily negligent, a person must actually have been aware of or should have appreciated the risks involved and then failed to exercise reasonable and ordinary care for his own safety." Id. at 137, 452 A.2d 1223. Then, observing that courts have recognized the "disparity between the knowledge and skill of a doctor and that of a patient" and that a "patient is not in a position to diagnose his own ailment," we avowed that "it is not contributory negligence for a patient ... to fail to consult another doctor when the patient has no reason to believe that the doctor's negligence has caused his injury, or to fail to diagnose his own illness[.]" Id. at 138, 452 A.2d 1223 (internal citations omitted). Consequently, as the excluded testimony "tended strongly to prove" that Mr. Santoni "had no foreseeability of harm," id. at 136, 452 A.2d 1223, we held that its exclusion by the trial court was prejudicial error, reversed the judgment in favor of Drs. Moodie and Jacobson, and remanded for a new trial. Id. at 150-51, 452 A.2d 1223.
Barbosa v. Osbourne, No. 1258, SEPT.TERM,2015, 2018 WL 1960357, at *5 (Md. Ct. Spec. App. Apr. 26, 2018) citing Santoni v. Moodie, 53 Md. App. 136-138, 452 A.2d 1223 (1982)
a. There is no Expert Testimony in This Case That the Plaintiff Did or Did Not Do Anything That Proximately Caused his Injury
Defendant Dr. Lawrence has three surgery experts in this case: Steven Harrison, M.D., Jeffrey Matheson, M.D., and Mindy Feinman, M.D. At their depositions, none of these experts offered any opinions or facts to support a claim of contributory negligence or failure to mitigate damages. In fact, Dr. Marks was asked: "Doctor, are you going to render any opinion in this case that anything that Mr. McEnroe did or didn't do caused or contributed to the injuries he's claiming in this case?" He answered, "No, sir." See Exhibit 4 - Dr. Mark's Deposition at page 98. As a result, none of these experts intend to offer any opinions at trial that the Plaintiff did or failed to do something that contributed to his injuries. Therefore, any evidence or argument in this regard should be precluded at trial.
Similarly, Defendant Dr. Conner has two radiology experts in this case: Harlan Lawrence, M.D. and Barry Bowser, M.D. At their depositions, neither of these experts offered any opinions or facts to support a claim of contributory negligence or failure to mitigate damages. As a result, neither of these experts intend to offer any opinions at trial that the Plaintiff did or failed to do something that contributed to his injuries. Therefore, any evidence or argument in this regard should be precluded at trial.
b. The Defendants Have not Identified any Facts in Discovery Supporting a Claim of Contributory Negligence or Failure to Mitigate Damages
Defendant Dr. Lawrence answered interrogatories under oath in this case on January 26, 2018. He stated that he is not claiming that Mr. McEnroe did something that contributed to his injuries:
Interrogatory 5. If you contend that David McEnroe acted in such a manner as to cause or contribute to the occurrence alleged in the Plaintiff's Complaint, or her subsequent medical condition, set forth in a complete statement the facts upon which you rely to support your contention, to include the exact conduct by the Plaintiff which you claim contributed to his injuries and subsequent medical condition, and provide the name, address, and telephone number of each person who has personal knowledge of the facts upon which you so rely.ANSWER: No such contention is made at this time. This Answer may be supplemented as discovery progresses.
See Exhibit 2.
Similarly, Dr. Conner Answered Interrogatories under oath in this case on February 21, 2018. He failed to identify any facts supporting a claim that Mr. McEnroe did something that contributed to his injuries:
Interrogatory 5. If you contend that David McEnroe acted in such a manner as to cause or contribute to the occurrence alleged in the Plaintiff's Complaint, or her subsequent medical condition, set forth in a complete statement the facts upon which you rely to support your contention, to include the exact conduct by the Plaintiff which you claim contributed to his injuries and subsequent medical condition, and provide the name, address, and telephone number of each person who has personal knowledge of the facts upon which you so rely.ANSWER: My attorneys have preserved several affirmative defenses on my behalf and this matter is currently under investigation and discovery is ongoing. Accordingly, this interrogatory Answer may be supplemented up to and including the time of trial consistent with the evidence.
See Exhibit 3.
The discovery deadline has passed in this case and neither Defendant has disclosed any facts or opinions to support a defense of contributory negligence or failure to mitigate damages. Similarly, the Defendant has failed to provide any factual basis or expert testimony that anything the Plaintiff did or did not do contributed to her injuries. For all of these reasons, any such argument or evidence to this effect is highly prejudicial to the Plaintiff, irrelevant, and misleading to the jury. For all of these reasons, it must be precluded at trial.
c. Defendants Should be Precluded From "Back Dooring" Evidence of Contributory Negligence
In this case, there have been several comments by Defense counsel that Mr. McEnroe may have contributed to his injuries by failing to bring films with him to a meeting with Dr. Lawrence and by failing to state that he had a prior abdominal surgery as a baby when he had his ultrasound, which Dr. Conner was not present for. The Plaintiff believes the Defense may attempt to inappropriately bring up these issues before the jury with the sole purpose of impermissibly suggesting that Mr. McEnroe was contributory negligent. This evidence should be precluded at trial because none of it constitutes contributory negligence. At the time of these acts, Mr. McEnroe could not have known or appreciated the significance of his actions.
Moreover, these actions could not constitute contributory negligence because they are not concurrent with the Defendant's negligence. In a medical malpractice case, the defense of contributory negligence is limited to the actions of the patient which occurred concurrently with the negligent acts of the physician. If proven, the negligence on the part of the patient will serve only to mitigate the damages caused by the physician's negligent acts. These two very distinct differences were explained in Hopkins v. Silber, 141 Md. App. 319 (2001). Specifically, the Hopkins court addressed and affirmed the contributory negligence instruction given in Santoni v. Schaerf, 48 Md. App. 498 (1981). The Court stated that, "The rule of contributory negligence requires that the patient's negligence must be concurrent with that of the physician. If it occurs after the physician's negligence and merely adds to the effects, as opposed to being the cause of the patient's problem, it will not relieve the physician from liability; it will merely serve to 'mitigate' or lessen the amount of damages awarded to the patient." Hopkins, citing Santoni, 48 Md. App. At 505, 428 A.2d 94 (quoting Holder, Medical Malpractice Law, p. 302 (2nd ed.1978)). Black's Law Dictionary defines concurrent as, "Operating at the same time; covering the same matters." CONCURRENT, Black's Law Dictionary (10th ed. 2019). In other words, the Plaintiff and Defendant must both be negligent at the same time. That simply is not that case here.
d. There Are No Facts Supporting Assumption of the Risk in This Case
Assumption of the risk is not a viable defense in this case. In Schwartz v Johnson, 206 Md. App. 458,480,481 (2012), the court made it clear that assumption of the risk is not applicable to medical malpractice actions:
As explained above, our review of out-of-state case law indicates that the viability of assumption of risk as a defense in medical malpractice cases, premised on negligence as opposed to informed consent, is limited to certain factual situations. The rationale for the limited viability of the assumption of risk defense in a medical malpractice action may be explained by the elements of the defense itself; for a person to "assume the risk," he or she must have had knowledge of the risk of the danger, appreciated that risk, and voluntarily accepted that the risk could occur. See ADM P'ship, 348 Md. at 90-91.
Therefore, in the healthcare context, for a patient to have "assumed the risk" of a negligent medical procedure, he or she must have voluntarily accepted the risk that the doctor would negligently complete the procedure. Such a factual scenario, however, will almost never occur.
In our view, for a court to hold that a patient assumed the risk of a physician acting negligently in a medical procedure is "tantamount to a finding that the [physician] owed no duty" to the patient. Storm v. NSL Rockland Place, LLC, 898 A.2d 874, 880 (Del. Super. Ct. 2005). We agree with the Superior Court of Delaware's rationale for this conclusion in Storm: [T]here is virtually no scenario in which a patient can consent to allow a healthcare provider to exercise less than "ordinary care" in the provision of services. Even if given, a patient's consent to allow a healthcare provider to exercise less than ordinary care would be specious when considered against the strict legal, ethical and professional standards that regulate the healthcare profession. Regardless of whether the patient elects to have healthcare or requires it, the patient appropriately expects that the treatment will be rendered in accordance with the applicable standard of care. This is so regardless of how risky or dangerous the procedure or treatment modality might be.
Under Schwartz v Johnson, the Defendants have raised a defense that is not applicable to this cause of action. Accordingly, any evidence of assumption of risk should be precluded at trial.
WHEREFORE, for the foregoing reasons, Plaintiff requests respectfully that the Court grant the instant Motion In Limine.
Miller & Zois, LLC
Rodney M. Gaston
Justin P. Zuber
1 South Street, Suite 2450
Baltimore, Maryland 21202
T: (410) 553-6000
F: (844) 712-5151
Client Protection Fund #8806140012
Client Protection Fund #0812180339 Attorneys for Plaintiffs
Plaintiff respectfully requests a hearing on this Motion.
Justin P. Zuber
ADVANCED RADIOLOGY, PA., et al.
* IN THE
* CIRCUIT COURT
* HOWARD COUNTY
* CASE NO. 13-C-17-111097 MM
* * * * * * * * * * * *
Upon consideration of the Plaintiff's Motion In Limine to preclude the Defense from arguing or presenting evidence at trial that anything the Plaintiff did or did not do was a proximate cause of her injuries and to preclude the Defense from presenting any evidence of failing to mitigate damages, any response thereto, and any argument of counsel, it is on this _____ day of _______________________2018, HEREBY ORDERED:
- That the Plaintiff's Motion is Granted;
- That the Defendants shall not attempt to argue or present any evidence at trial that anything the Plaintiff did or did not do was a proximate cause of his injuries;
- And Defendants shall not attempt to argue or present any evidence at trial that the Plaintiff failed to mitigate his damages.
CIRCUIT COURT FOR HOWARD COUNTY
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- Dr. Conner read and interpreted the ultrasound at different time than when the study was performed. He also wrote his report at a different time.