Motion in Limine to Exclude Undisclosed Demonstrative Evidence
This is a motion in limine to exclude demonstrative evidence that the plaintiff never produced during discovery. Defense lawyers often do not focus on their cases until they get closer to trial and come up with some demonstrative exhibits that help make their case at trial.
There is nothing wrong with this. Our firm always uses demonstrative evidence. We enlarge "smoking gun" evidence and try to find creative and relatable ways of presented evidence at trial. It is good lawyers do because jurors better digest evidence that appeals to multiple senses.
But it is impossible to respond to a demonstrative exhibit that gets produced after the deadline. That is what this motion in limine is about.
- Flipside: Our response to a motion trying to limit our use of high tech demonstrative exhibits
IN THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY
KIMBERLY DUTTON, et al.
JOESPH LOUIS, M.D., et al.
Case No. CAL-11-13546Plaintiff’s Motion in Limine to Preclude the Defendants’ Use of Demonstrative Evidence at Trial
(Request for a hearing)
Kimberly Dutton, Plaintiff, by her attorneys Miller & Zois, LLC, moves to preclude the Defendants from using demonstrative evidence at trial. In support, Plaintiff states as follows:Introduction
The is a wrongful death/medical malpractice action. The decedent Mandy Reynolds died on February 6, 2018, at Washington Adventist Hospital located in Montgomery County, following a heart bypass operation performed by Defendant Joe Louis, M.D. Plaintiff claims that the death of Mandy Reynolds was caused by Dr. Louis’s failure to follow the applicable standard of medical care which resulted in her heart graft being lacerated when pacing wires were pulled from her heart on February 6, 2018.
This case was filed on April 12, 2019. Discovery closed on March 30, 2020. This trial is set to begin on September 3, 2020. On August 1, 2020, and on August 8, 2020, the Defendants for the first time notified the Plaintiff that they intend to use models of the human body, medical illustrations, and a videotape of an actual heart operation during the trial.
The Court should grant the Plaintiff’s Motion to exclude this evidence because the Defendants failed to disclose the demonstrative evidence they now intend to use at trial during the discovery phase of this litigation and the Plaintiff will suffer unfair prejudice as a result thereof.Plaintiff requested the Defendants to produce all demonstrative evidence during discovery and no such evidence was produced.
Plaintiff’s Interrogatory Number 9 required the Defendants to identify all demonstrative evidence. The Interrogatory reads as follows:
“9. If you know the existence of any demonstrative evidence, picture, movies, computer generated evidence, electronically stored date, power point presentations, videotapes, diagrams, x-rays, documents, radiology studies, reports, or objects (real evidence) relative to the occurrence or the issue of damages, state the nature, subject matter, date produced or obtained, and the name and address of the present custodian of each.”
The Defendants answered as follows:
“ANSWER: None known at this time other than Ms. Reynolds’s medical records. Decision regarding demonstrative evidence will be made in advance of the Pre Trial hearing in this matter.” See Exhibit 1.
Plaintiff also required the Defendants to produce any and all demonstrative evidence by making a request of same in her Request for Production of Documents, Number 14:
“14. Copies of all documents, audiotapes, videotapes, and computer generated evidence, photographs, and all other demonstrable items relative to the case at bar.”
Defendants answered as follows:
“RESPONSE: Objection. This interrogatory is vague, overbroad and unduly burdensome. Without waiving objection and subject thereto: documents referenced in Response for Production of Document #4.” See Exhibit 2.
No model of the human body, medical illustrations, or videotape was identified. Plaintiff also required Dr. Louis to produce all demonstrative evidence at his deposition. This request was contained in the attachment to his notice of deposition: “Number 8. Copies of all demonstrative evidence and exhibits pertaining to the issues in this case and those that are relied upon and to be relied upon any (sic) expert witness.”
Dr. Louis responded by stating:
“…to the extent this request seeks copies of demonstrative evidence and exhibits at trial, then a response will be provided in accordance with the Court’s Scheduling Order. To the extent this request seeks information relied upon by any expert witness, then a response will be provided in accordance with the Court’s Scheduling Order, and the Defendant’s expert witnesses will be made available at deposition and trial to address that question.” See Exhibit 3.
No demonstrative evidence was produced at Dr. Louis’s deposition. No supplemental response was received from the Defendants in accordance “with the Court’s Scheduling Order."
Plaintiff also required that Dr. Louis’s expert, Dr. Conte, produce any and all items that he intended to rely upon for any opinions he intended to give in this case during his deposition.
Request Number 10 required production of “Any and all documents and any other items that you contend states demonstrates, illustrates, or depicts the standard of medical care for a prudent surgeon to follow when performing the type of heart operation that was performed by Dr. Louis when he operated on Velda Reynolds in particular, the placing of pacing wires in a patient’s heart.” Request Number 13 required production of : “Any models of the human body, the human heart, medical illustrations, video animations, radiology studies, and all other demonstrable items that you have relied upon for the opinions you have reached in this case and /or intend to use at the trial of this case.” See Exhibit 4.
No human models, medical illustrations, or videotapes of any heart operation was identified or produced by Dr. Conte.
Dr. Conte was also asked:
- Q Do you have any documents, audiotapes,
- videotapes, charts, diagrams, you've created, used
- or followed, that would outline the protocols for
- placing pacing wires in the patient's heart at the
- conclusion of a coronary artery bypass operation?
- A No. I've never written anything
- specifically down dealing with that topic.
See Exhibit 5. The materials Dr. Conte produced at his discovery deposition did not contain the demonstrative evidence the Defendants provided to the Plaintiff on August 1, 2013, and on August 8, 2013.
At the close of discovery on March 30, 2013, the Defendants did not disclose their intention to use any medical illustrations, models of the human anatomy, or video tapes of any heart operations and no such evidence was provided to the Plaintiff.Defendant’s letter of August 1, 2020 and August 8, 2020.
Discovery in this case closed on May 30, 2020. On August 1, 2020, the Defendants sent a letter to Plaintiff’s counsel where for the first time they identified a model of the human body and an actual video tape recording of a heart operation – not Velda Reynolds’s heart operation. On August 8, 2013, Defendants sent another letter to Plaintiff’s counsel identifying six additional medical illustrations that they intend to use at trial. See Exhibits 6 and 7.
The Defendants have not stated how and by what means they intend to use this demonstrative evidence that was not disclosed during the discovery phase of this litigation. It is unknown whether the Defendants intend to use the human models, videotape, and the medical illustrations simply to identify various parts of the human anatomy or whether they intend to use the evidence to support Dr. Louis’s opinions, to support their own expert’s opinion, or to rebut any opinions the Plaintiff intends to elicit from her own expert witness.
The Defendants' attorneys have not informed the Plaintiff's lawyers how they intend to use this newly disclosed evidence. The Defendants have failed to disclose how and by what manner they intend to establish the evidentiary foundation either for the use of this evidence or for the introduction of the evidence. The Defendants have not claimed that their expert intends to use or actually needs to use this evidence to explain his opinions or to support his opinions.
The Defendants have not claimed that the use of this evidence is necessary to refute any of the Plaintiff’s expert’s opinions or any of the Plaintiff’s claims. In fact, the Defendant’s expert witness designation listed the bases of Dr. Conte’s opinions: “Dr. Conte is expected to base his opinions on his education, training, and experience, as well as his review of medical records of the Plaintiff, the deposition transcripts and testimony of all parties and all witnesses, and any and all pleadings or discovery material filed in this matter.” See Exhibit 8.
To be sure, Dr. Conte has never seen any of the newly disclosed demonstrative evidence, because if he had, he was required to bring that evidence with him to his deposition. This evidence was not part of the package of materials Dr. Conte brought to his deposition. To date, the Defendants’ expert has not relied upon any of the newly disclosed evidence for any opinion he has reached in this case. To date, Dr. Louis has not contended that any of the opinions he himself intends to give in this case are based upon any of the newly disclosed evidence.
The Defendants in this case withheld demonstrative evidence they intend to use at trial from the Plaintiff and her attorney. The Defendants presumably intend to wait until after the Plaintiff’s sole medical expert has testified and has left the State of Maryland and then use this evidence in their case. This will prevent the Plaintiff from effectively cross-examining the Defendant and his expert on the evidence and will thwart the Plaintiff from presenting rebuttal evidence. If the Defendants intended to use this newly disclosed demonstrative evidence at trial they were required to identify same in a timely fashion so the Plaintiff would have the opportunity to ascertain how and for what purpose the Defendants intended to use this evidence. This would have allowed for effective cross-examine of the Defendant and his expert. The Defendant himself stated when he listed himself as an expert witness in this case on March 29, 2020, that “All of his testimony is expected to be consistent with the testimony elicited during the course of his deposition on September 28, 2019.” See Exhibit 8.
Absent from Dr. Louis’s deposition testimony is any reference to the demonstrative evidence produced for the first time on August 1, 2020, and on August 8, 2020. Plaintiff will note that it is impossible to appreciate what the surgeon is actually doing in the videotaped heart operation without extensive assistance from a medical expert. When the video is actually enlarged to a full screen view - it is out of focus. The Defendant himself admitted in his responsive pleading filed in this case that: “Again, the Defendants do not anticipate calling Dr. Louis to testify as to any issues that he did not testify to at his deposition”. See Defendant’s Pleading, Docket entry 58.
Plaintiff is simply requesting that this court hold Dr. Louis to the position he has already taken in this case and preclude him from providing any testimony regarding the newly disclosed demonstrative evidence and preclude the use of this evidence at trial.
In conclusion, the unknown intended use of this demonstrative evidence is what now forces the Plaintiff to move to exclude the evidence in its entirety. Plaintiff should not be forced to sit and wait patiently until the Defendant attempts to use the evidence at trial and then object and await the court’s ruling.
Using a paper medical illustration simply to show the jury where an artery is located in the heart may not be prejudicial. But showing an unrelated, never before disclosed videotape heart operation to the jury to prove that the Defendant did not breach the standard of care is unfair. The interest of justice requires the Defendants to disclose to the Plaintiff the intended use of the newly disclosed evidence to avoid trial by ambush and unfair prejudice to the Plaintiff.
WHEREFORE, Plaintiff respectfully requests that this Honorable Court order the Defendants to disclose the purpose and manner in which they intend to use the newly disclosed evidence and then preclude the Defendants from using that evidence to the extent the Plaintiff will suffer prejudice from its use.