Motion in Limine to Stop Defendant Doctor from Providing Expert Testimony Because He Was Named As a Fact Witness

Note on this motion in limine: Defense counsel in malpractice cases often don't like to name the defendant doctor as an expert. Why? It keeps the focus on the doctor's conduct as opposed to the fact that the doctor went to medical school n some Caribbean island that none of us have ever heard of because they could not get into school here. Not naming the doctor as an expert keeps that evidence out.

But, of course, they want the doctors to also supply expert opinions to defend themselves. So they try to have it both ways. The purpose of this motion in limine is to stop them.

IN THE CIRCUIT COURT FOR HOWARD COUNTY

VICTORIA CHANDLER
- Plaintiff,

v.

JAMES H. KOHLER, M.D., et al.
- Defendants

CASE NO.: C-12-0914528 MM

Plaintiff’s Motion in Limine to Preclude Dr. James H. Kohler from Providing Expert Opinion Testimony at Trial and Request for a Hearing

Plaintiff, Victoria Chandler, by and through her attorneys, Miller & Zois, LLC, hereby moves in Limine to Preclude Dr. James H. Kohler from Providing Expert Testimony at Trial. In support thereof, Plaintiff states as follows:

Introduction

This case involves a medical malpractice claim against Dr. Kohler. On or about April 14, 2012, James Kohler, M.D., provided medical care to Plaintiff, Victoria Chandler. Dr. Kohler advised Mrs. Chandler to take Imodium which exacerbated her C- Difficile infection causing bowel death. Plaintiff anticipates Dr. Kohler may attempt to provide expert opinion testimony at trial that he provided the appropriate care to Mrs. Chandler. Dr. Kohler, however, is merely a fact witness in this case.

As such, Maryland case law strictly limits the scope of Dr. Kohler’s testimony to what he observed and what he did during Mrs Chandler’s visit. Furthermore, during Dr. Kohler’s deposition, defense counsel stated that Dr. Kohler will not discuss anything beyond his own personal care of Mrs. Chandler. Therefore, this Court should grant Plaintiff’s Motion and preclude Dr. Kohler from providing any testimony beyond what he did and observed during his visit with Mrs. Chandler.

Argument
  1. The Court should grant Plaintiff’s Motion, because Maryland case law strictly limits the scope of the defendant physician’s testimony when he or she acts as a fact witness.
  2. In Dorsey v. Nold, 362 Md. 241, 765 A.2d 79 (2001), the Court addressed the permissible scope of testimony provided by a defendant physician acting as a fact witness. Dorsey was also a medical malpractice case and dealt with several evidentiary issues regarding testimony offered by expert and fact witnesses. Although the Court of Appeals reversed the rulings of both the trial and intermediate appellate courts, the Court did not take issue with the trial court’s ruling regarding the scope of the defendant physician’s testimony.

    Dorsey dealt primarily with allegations that the decedent’s physician, a pediatrician, breached the standard of care by failing to recognize or diagnose the decedent’s cancer three days before her death. Prior to trial, plaintiffs discovered that the defendant physician had failed to pass his board examination on his first attempt. Defense counsel moved in limine to preclude the introduction of that evidence, arguing that because the defendant physician would only be testifying as a fact witness, evidence of his board certification had little relevance. Because the defendant physician’s testimony as a fact witness was limited to what the physician saw and did, his qualifications and board certification were irrelevant and the trial court granted defendant’s motion.

    The Court of Appeals noted and affirmed the trial court’s decision on this issue. Our high court recently referenced this limitation in the 2013 case Little v. Schneider and stated:

    As we explained in Dorsey—a medical malpractice action—when a defendant physician testifies as a fact witness, the physician's testimony must be “limited to a recitation of what he observed and what he did on the occasion of [the patient's] visit.”

    Little v. Schneider, 88 SEPT. TERM 2012, 2013 WL 4482446 (Md. Aug. 22, 2013), citing Dorsey, 362 Md. at 251, 765 A.2d at 84.

    The Court’s limitation is unambiguous. Testimony must be limited to a recitation of facts. In the case at bar, although Dr. Kohler and/or his counsel may be tempted to discuss whether or not the doctor abided by the standard of care during his visit with the Plaintiff, such testimony would be improper and is strictly prohibited. Because Dr. Kohler is a fact witness, he should not be permitted to testify as to the standard of care or offer any expert opinion testimony.

  3. The Court should grant Plaintiff’s Motion, because defense counsel has expressly stated that Dr. Kohler will testify as a fact witness only.
  4. Dr. Kohler’s deposition was taken on April 30, 2013 in the presence of Plaintiff’s counsel and Defendants’ counsel. At that time, Plaintiff’s counsel inquired as to whether Dr. Kohler would be offering any expert opinions in the case at bar. The following discussion occurred on the record:

    BY MR. GASTON:

    Q. Well, doctor, this is the only time that I can ask you questions regarding what you claim in this case. And I’m asking you, are you claiming that the medical care that Ms. Chandler received at the Howard County Hospital from April 11, 2011 through May 5, 2011 was unreasonable or unnecessary?

    BY MS. KELLY:

    Same instruction and I’ll tell you, Mr. Gaston, our experts will discuss that. Dr. Kohler will not be discussing anything beyond his own personal care and the care that he has personal knowledge of.

    BY MR. GASTON:

    Q. Doctor, do you intend to give any expert opinions in this case?

    BY MS. KELLY:

    He will not be offered for any expert opinions. He will testify as a fact witness regarding his care and treatment. [Emphasis added].

    BY MR. GASTON:
    Q. That’s no?

    MS. KELLY:

    That’s a no.

    THE WITNESS:

    No.

    See Exhibit 1, Deposition of Dr. Kohler at Page 68, Line 7 through Page 69, Line 5.

    Based on this exchange, it is clear that Dr. Kohler is being offered only as a fact witness. His counsel has unequivocally declared that he will not be providing expert opinion testimony at trial. He is being offered to discuss his personal care of Ms. Chandler and nothing more. Therefore, Dr. Kohler’s testimony should be limited to the parameters set forth by his counsel at the time of his deposition.

Conclusion

Maryland case law is clear. When a defendant physician is being offered only as a fact witness, his or her testimony should be limited to a strict recitation of what was observed and what steps were taken at the time of the patient’s visit. Because defense counsel affirmed that Dr. Kohler is being offered as a fact witness only, Dr. Kohler’s testimony should be limited to the parameters outlined by the controlling case law.

WHEREFORE: Plaintiff respectfully requests that this Honorable Court grant Plaintiff’s Motion in Limine to Preclude Dr. James H. Kohler from Providing Expert Opinion Testimony at Trial.

Respectfully submitted,
MILLER & ZOIS, LLC

Rodney M. Gaston
1 South St, #2450
Baltimore, MD 21202
(410)779-4600
(410)760-8922 (Fax)
Attorney for the Plaintiff

REQUEST FOR A HEARING

Plaintiff respectfully requests a hearing on the foregoing Motion.

Rodney M. Gaston

CERIFICATE OF SERVICE

I, Rodney M. Gaston, hereby certify that on this ______ day of January, 2014, that a copy of the foregoing Motion, was mailed via U.S. first class mail, postage prepaid, to:

Heather J. Kelly, Esq.
Kaslick, Prete & Kelly, LLC
5 West Church Street
Frederick, Maryland 21701
Attorney for the Defendant

Rodney M. Gaston

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