Sample Motion in Limine Regarding Drug Use

IN THE CIRCUIT COURT FOR WICOMICO COUNTY, MARYLAND
Civil Division

MILES COOPER BASHANT
- Plaintiff,

v.

DONALD OTIS TWIGGS, et al
- Defendants.

Case No.: 22-C-10-080313

Plaintiff’s Motion in Limine to Preclude Dr. Hinkes from Testifying About Plaintiff’S Truthfulness

Plaintiff, Miles Cooper Bashant, (hereinafter referred to as "Plaintiff Bashant") by and through his counsel, Ronald V. Miller, Jr., Laura G. Zois, John B. Bratt and Miller & Zois, LLC hereby files Plaintiff’s Motion In Limine to Preclude Evidence that Plaintiff Misused Pain Medications or Altered a Prescription. In support thereof, Plaintiff states as follows:

Introduction

This is a semi truck accident case in which the Plaintiff suffered from catastrophic injuries he will live with every day for the rest of his life. Plaintiff anticipates that Defendants may attempt to elicit testimony about alleged improper conduct by Plaintiff during his pain management treatment. Whether presented by direct examination of Defendants’ witnesses or cross-examination of Plaintiff or his expert witness, this testimony is improper and should be excluded. This testimony is inadmissible because it is irrelevant and because even if it were relevant, its probative value would be substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Moreover, Dr. Hinkes may not comment on these issues because they are outside the scope of his expertise. Plaintiff seeks to exclude:

  1. Evidence that Plaintiff altered a prescription.
  2. A medical report from Brent Stiff, MD, Plaintiff’s treating pain management doctor, dated September 21, 2011 addresses an incident where Plaintiff changed the date one of his prescriptions was to be filled. Exhibit 1. Plaintiff had asked to pick up his prescription a week early because he was traveling to visit his grandmother in New Jersey. The prescription was written for September 26, 2011 and Plaintiff changed the date to August 26, 2011. This was because would not be able to fill the prescription out-of-state and did not want to be without his pain medication for the duration of his trip. Dr. Stiff discussed the incident with Mr. Bashant, accepted his explanation, and continued his pain management treatment.

  3. Evidence of misuse of pain medication.
  4. There are two instances where it is alleged that Plaintiff misused his pain medication. The first is referenced in a report from Dr. Stiff dated October 6, 2011. Exhibit 2. Dr. Stiff had “a report that he was abusing his drugs intravenously.” Id. Dr. Stiff checked Mr. Bashant’s wrists and arms, and did not “find any track marks.” Id. Dr. Stiff noted that “[a]ll urine tests in the past have been negative.” Dr. Stiff continued him in pain management. The second incident is referenced in a report from Dr. Stiff from November 16, 2011. Exhibit 3. Dr. Stiff received an anonymous call, purportedly from another patient, who claimed Mr. Bashant was injecting medications in his arms and fingers. Id. Because Dr. Stiff found this anonymous caller credible, he changed Mr. Bashant’s pain management regimen by switching from narcotic medications to a medication less likely to be abused. Id. Dr. Stiff noted in his December 17, 2011 report that Mr. Bashant denied this allegation. Exhibit 4.

Argument
  1. Evidence that Plaintiff allegedly altered a prescription is inadmissible.
  2. Evidence that Mr. Bashant altered a prescription is inadmissible for two reasons. First, it is irrelevant and immaterial because it does not make any material fact more or less likely. Second, even if this evidence were relevant, it should not be admitted under a Md. Rule 2-403 analysis because its limited probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.

    1. The evidence is inadmissible because it is irrelevant and immaterial.
    2. “Evidence that is not relevant is not admissible.” Md. Rule 5-402. “’Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Md. Rule 5-401.

      As the Court of Appeals of Maryland has elaborated:

      Evidence, to be admissible, must be both relevant and material. Evidence is material if it tends to establish a proposition that has legal significance to the litigation; it is relevant if it is sufficiently probative of a proposition that, if established, would have legal significance to the litigation. Evidence is relevant, therefore, if it has any tendency to make the existence of a material fact more or less probable than it would be without the evidence, and a fact is material if it is of legal consequence to the determination of the issues in the case, which are dependent upon the pleadings and the substantive law.

      Lai v. Sagle, 373 Md. 306, 319, 818 A.2d 237, 245 (2003) (Harrell, J.). The Hon. Joseph Murphy of the Court of Appeals of Maryland has distilled this analysis as follows:

      To determine relevancy, we ask: "Does the evidence being offered have a natural tendency to prove (or disprove) the point counsel is trying to prove?" If the answer to the relevancy question is "Yes," to determine materiality, we ask: "Does this particular point help the factfinder decide an issue that it must decide to arrive at its verdict in this case?"

      Murphy, J., Maryland Evidence Handbook §501 (Miles Bender 2011).

      First, the testimony at issue here is not material. “Materiality looks to the relation between the propositions for which the evidence is offered and the issues in the case.” Id. The testimony is immaterial because it does not tend to establish any proposition of legal significance to this litigation. There is only one issue to be determined in this trial- the nature and extent of the damages suffered by Plaintiff as a result of the occurrence. Whether Plaintiff altered a prescription to avoid running out of medication has nothing to do with his damages. Importantly, the only alteration Plaintiff is alleged to have made is the date on which he could fill the prescription. He is not alleged to have changed the nature or amount of the medications he was prescribed. This evidence has nothing to do with the Plaintiff’s need for the medications or for pain management generally. The only purpose for which this evidence would be material is to make the Plaintiff look bad in front of the jury, which has no legal relationship to the damages he alleges.

      Second, the disputed testimony is not relevant. “Relevancy tests the relationship between the evidence being offered and the point counsel is trying to prove.” Id. What is the strength of the relationship between this evidence and the Plaintiff’s damages? This evidence does not tend to make Mr. Bashant’s damages more or less, or his need for pain management more or less likely. Legally, it is irrelevant, and therefore inadmissible.

    3. The evidence is inadmissible under a Md. Rule 403 analysis.
    4. Plaintiff contends that evidence that he altered a prescription is inadmissible because it are neither material nor relevant. Even assuming (without conceding) that the evidence had some degree of relevance, it should nonetheless be barred under a Md. Rule 5-403 analysis. The rule provides that:

      Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

      Id.

      The first step of the analysis is to determine what, if any, probative value the disputed evidence has. Probative value means the degree to which the proffered evidence tends to prove or disprove a fact in issue. Stated otherwise, probative value is “the tendency of evidence to establish the proposition that it is offered to prove.” Murphy, J., Maryland Evidence Handbook §501 (Miles Bender 2011). Evidence that “has only a slight tendency to prove a fact of significance” has very little probative value. Paul W. Grimm & Miles G. Hjortsberg, Fundamentals of Trial Evidence: State and Federal §4.2 (MICPEL 1997).

      Here, the probative value of evidence that Plaintiff altered a prescription is nil because it has nothing do with the Plaintiff’s damages or his need for pain management. This incident did not change Plaintiff’s pain management regimen in any appreciable way. If this evidence had any probative value at all, it would surely be minimal.

      The second step is whether the probative value of the evidence is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Md. Rule 5-403. It is. The risk of unfair prejudice created by injecting the disputed evidence into this case cannot be overstated. Evidence that Plaintiff improperly obtained prescription medication is highly inflammatory and highly likely to prejudice the jury. When compared to the minimal probative value this evidence has as to the issues presented in this case, it is clear this evidence should be ruled inadmissible.

  3. Evidence that Plaintiff misused his pain medication is inadmissible
  4. Evidence of the two instances where Dr. Stiff received anonymous, uncorroborated reports that Mr. Bashant misused his pain medication is inadmissible. First, it is inadmissible because it is hearsay. Second, it is inadmissible because its probative value is substantially outweighed by the danger of unfair prejudice.

    1. The evidence is inadmissible because it is hearsay.
    2. Dr. Stiff’s October 6, 20011 report indicates only that “[w]e did have a report that he was abusing his drugs intravenously.” Exhibit 2. Dr. Stiff does not comment as to how this report was received, or the source of the report. Similarly, the November 11, 2011 report states “[w]e received an anonymous call from a friend of yours,” who is later described as a “patient.” Exhibit 3.

      “Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Md. Rule 5-801. Hearsay is inadmissible. Md. Rule 5-802 Both of the anonymous reports made to Dr. Stiff, when offered to prove that Plaintiff was misusing his pain medication, are inadmissible hearsay and do not fall within any hearsay exception.

    3. This evidence is not permitted by Md. Rule 5-803(b)(4), allowing admission of statements for purposes of medical diagnosis or treatment.
    4. Md. Rule 5-803 (b)(4) permits the admission of statements made for the purposes of medical diagnosis or treatment that would otherwise be inadmissible hearsay. This exception to the hearsay rule is inapplicable here. The rule states:

      Statements made for the purposes of medical treatment or medical diagnosis in contemplation of treatment and describing medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external sources thereof insofar as reasonably pertinent to treatment or diagnosis in contemplation of treatment.

      Md. Rule 5-803 (b)(4).

      These types of statements, while technically hearsay, “are admissible under the theory that someone who goes to a doctor for diagnosis and treatment is not going to supply false information.” Choi v. State, 134 Md. App. 311, 321, 759 A.2d 1156, 1160 (2000). Additionally, “[s]tatements made by the person who brought the patient to the treating physician should also be received into evidence when the foundational facts show that the declarant has first hand knowledge and that the declarant’s motive to provide accurate, complete, and truthful information is identical to that of the patient.” Id.

      Here, the statements at issue were made by an anonymous declarant, not the patient, or a person who brought the patient for medical treatment. This makes it impossible to determine if the anonymous declarant “had first hand knowledge” or whether his “motive to provide accurate, complete, and truthful information [was] identical to that of the patient.” Id. This makes it impossible to lay a foundation for the admission of the statements of the anonymous declarant. Further, with an anonymous declarant, there is no way to determine whether the declarant made the statements for the purpose of medical treatment or medical diagnosis, or for some other reason. See State v. Coates, 405 Md. 131, 144, 950 A.2d 114 (2008).

Conclusion

Clearly, both Maryland law, justice and fundamenial rules of fairness dicate the exclusion of the evidence.

Respectfully submitted,
MILLER & ZOIS, LLC

Ronald V. Miller, Jr.
Laura G. Zois
1 South St, #2450
Baltimore, MD 21202
(410) 779-4600
(410) 760-8922 (facsimile)
Attorneys for Plaintiff

Certificate of Service

I, Ronald V. Miller, Jr.do hereby certify that I sent a copy of the foregoing via Fax and U.S. first class mail, this 17th day of December 2012 to:

Charles A. Arnone, Esquire
300 Redland Court, Suite 308
Owings Mills, Maryland 21117
Fax: 410-363-7176
Attorney for Defendants Phippin & Barnes Construction, Inc.
Ronald V. Miller, Jr.

IN THE CIRCUIT COURT FOR WICOMICO COUNTY, MARYLAND
Civil Division

MILES COOPER BASHANT
- Plaintiff,

v.

DONALD OTIS PHIPPIN, et al
- Defendants.

Case No.: 22-C-10-000431

Order

On this day of ______, 2012, by the Circuit Court for Wicomico County;

Plaintiff’s Motion In Limine to Preclude Dr. Hinkes From Testifying About Plaintiff’s Truthfulness is hereby GRANTED.

Judge Jackson

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