Oppositon Motion to Motion to Exclude Plaintiff’s Decedent’s Dying Words


– Plaintiff,


JOESPH LOUIS, M.D., et al.
– Defendants.

Case No. CAL-11-13546

Plaintiff’s Opposition to Defendants’ Motion in Limine to Exclude the Statement Made by Anne Cardin

(Request for hearing)

The cases at bar involve two separate claims, one for the wrongful death of Anne Cardin brought by her sole surviving daughter Kimberly Cardin, and the second claim brought by the Estate of Anne Cardin for the emotional distress and conscious pain and suffering the late Anne Cardin experienced from the time the pacing wires were pulled from her chest on February 6, 2011, up until the time she became unconscious – also known as the survival action. The Defendants move in limine to exclude the statement made by the late Anne Cardin on February 6, 2011, that “I think I am dying.”

Defendants claim that the statement falls within the prohibition of the deadman’s statute (C.J.P. 9-116), is inadmissible hearsay, and is unfairly prejudicial. The Defendants’ motion must fall because the proposed testimony from the nurse who heard Mrs. Cardin exclaim “I think I am dying” is not prohibited by C.J.P. 9-111, is admissible under three separate exceptions to the hearsay rule, and is not unfairly prejudicial.

I. The statement made by the late Anne Cardin is admissible.

A. The statement is not precluded by the deadman’s statute, C.J.P. 9-111.

Defendants cite the deadman’s statute (Courts and Judicial Proceeding Article, Section
9 -111) claiming that the statute precludes nurse Benjamin Holquist from testifying that the late Anne Cardin told him “I think I am dying”. They are wrong. The first four words of the statute delineates to whom the statute applies: “A party to a proceeding….” . The second portion of the statute spells out the prohibition: “ … may not testify concerning any transaction with or statement made by the dead or incompetent person….” . Benjamin Holquist is not a party to the proceeding. Therefore, he is not precluded from testifying as to statements made by “the dead person”; in this case, Anne Cardin. Why the Defendants would cite a statute in support of their motion in limine that on its face is inapplicable to the case at bar is troubling.

B. The statement is relevant and is not excluded as hearsay.

Mrs. Cardin’s statement that “I think I am dying” made within minutes of her cardiac arrest from which she did not recover is relevant and probative of her state of mind. Her emotional distress when she herself realized that she was dying is an element of the Estate’s survival action. Under Maryland law, emotional distress as well as conscious pain and suffering can be established by statements made by a dying plaintiff.

The Court of Special Appeals in Ory v Libersky, 40 Md. App. 151, 161,162 (1977) defined consciousness as “…‘[a]ware or sensible of an inward state or outward fact’ …” and indicated that “…exclamations from the victim may establish both consciousness and suffering. Knight v Overman Wheel Co., 54 N. E. 890, 893 (Mass.1899) (victim hollered and groaned, stating ‘Oh! I am gone,’ and ‘I am done for .’ )”. Mrs. Cardin became aware of her inward state of pending death when she bolted up in her bed and exclaimed “I think I am dying”.

Even the Defendants’ own expert witness John Conte, M. D. agrees that Mrs. Cardin’s statement establishes her conscious pain and suffering. Dr. Conte testified that:

Page 30.

12 Q Doctor, what I’d like to do now is go over
13 the opinions that you intend to give in this case
14 and that you hold. And I’m going to ask you whether
15 or not you intend to give any opinions on whether
16 Ms. Cardin experienced any conscious pain and
17 suffering from the time the pacing wires were pulled
18 until the time she went into full cardiac arrest?
19 A Fair enough. Yeah. Oh, is that a
20 question? I’m sorry.
21 Q Yes. It was a question, Doctor.
22 A Do I think she did?

Page 31

1 Q Yes.
2 A I think probably some, yes.
3 Q And would that include conscious emotional
4 distress?
5 A Yes. If I understand, I mean, fear.
6 Q Right.
7 A A feeling of doom.
8 Q Right.
9 A Yes. That’s — yes.
10 Q Because I think during one of the
11 depositions of the technician or nurse who was there
12 when he pulled the wire, she sat up and said, “I
13 think I’m dying.”
14 Does that help to refresh your recollection?
15 A Yeah. That pretty much —
16 Q That would do it?
17 A — nails it, yeah.

See Exhibit 1.Despite the obvious relevancy of the statement, the Defendants claim that the statement is inadmissible because it is hearsay.

The statement is a hearsay statement, however, the Defendants overlook the fact that the statement is admissible as an exception to the hearsay rule. In fact, the statement qualifies under three separate exceptions to the hearsay rule.

Maryland Rule 5-803 list many exceptions to the general hearsay rule. Rule 5-803(b)(2) permits hearsay statements to be admitted if they are the product of an excited utterance. Immediately before Mrs. Cardin said “I think I am dying” nurse Holquist pulled the pacing wires from her heart causing a laceration of her heart graft. Nurse Holquist testified that he saw blood coming out of the drainage tube site in her chest, that Mrs. Cardin was in acute distress from the event, and that she bolted up in her bed just before making the statement. (See Defendants’ Motion.) Under these facts, the statement made by Mrs. Cardin was clearly a statement made when she was under the stress of excitement caused by her heart graft being lacerated. The statement is therefore admissible as an excited utterance.

Rule 5-803(b)(3) applies to the declarant’s then “ … Existing Mental, Emotional, or Physical Condition”. Mrs. Cardin’s emotional distress is an element of damages in this case. Rule 5-803(b)(3) permits statements of “… the declarant’s then existing state of mind, emotion, sensation, of physical condition ( such as intent, plan, motive, design, mental feeling, pain, and bodily health) to prove the existing condition, or the declarant’s future action, ….” Mrs. Cardin’s pending death and her belief of her pending death clearly falls within this hearsay exception. One cannot imagine a more powerful piece of evidence on these two issues than the decedent exclaiming that she herself believes that she is dying. Mrs. Cardin’s statement “I think I am dying” is the quintessential exception embodied in Rule 5-803(b)(3).

Rule 5-803(b)(4) permits statements made by the declarant that are for the “…Purpose of Medical Diagnoses or Treatment” to be received into evidence. These include statements “ …describing medical history, or past or present symptoms, pain, or sensation….” Telling the nurse who is standing in front of you that you believe you are dying is clearly a “sensation” and a cry for help which encompasses medical care. There is no requirement that the statement be made to a medical doctor to be admissible because “(under Federal Rule of Evidence 803, from which Maryland’s rule was enacted, the medical diagnosis exception to the hearsay rule applies to statements made to hospital attendants, ambulance drivers, and not just physicians). When a Fede
ral rule of evidence contains the same language as a Maryland rule, a court may look to the former when interpreting the latter. Interpretations of the Federal rule are persuasive as to the meaning and proper applications of the Maryland rule. See Philip Morris, Inc. v. Angeletti, 358 Md. 689, 752 A.2d 200, 219 (2000) (and cases cited therein).” Choi v. State, 134 Md. App. 311, 321, 322(1999).

C. The probative value of the statement clearly outweighs any possible prejudice.

Defendants claim under Rule 5-403 that when the jury hears nurse Holquist testify that Mrs. Cardin said “I think I am dying” they will become instantly confused by these five words and will somehow use these five words for some illicit purpose other than to evaluate her mental state of being. This is pure nonsense.

Md. Rule 5-403 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.

The first step of a Rule 5-403 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 (Matthew Bender 2009). Evidence that “has only a slight tendency to prove a fact of significance” has very little probative value. Paul W. Grimm & Matthew G. Hjortsberg, Fundamentals of Trial Evidence: State and Federal §4.2 (MICPEL 1997). By way of example, the probative value of a prior inconsistent statement “is defined as its value for impeachment purposes, that is, its likelihood of actually damaging the witness’s credibility.” Pickett v. State, 120 Md. App. 597, 605, 707 A.2d 941, 945 (1998).

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.

This issue in dispute is the emotional state of mind of Anne Cardin and the conscious pain and suffering she experienced just before she went into full cardiac arrest. In short, what was she thinking? The evidence in support of this fact is Mrs. Cardin’s own words. The jury will know what she was thinking by hearing her own words. The jury will know that Mrs Cardin was thinking that she was dying. One cannot fathom a more probative piece of evidence that would explain the decedent’s state of mind than to hear it from the decedent’s own mouth. The clarity of “I think I am dying” is self – evident. It needs no interpretation. It is not subject to more than one meaning. Under the first step of a Rule 5-403 analysis the probative valve of the statement weighs heavily in the Plaintiff’s favor.

The second part of the analysis places the burden on Defendants to prove that the highly probative value of the decedent’s statement is substantially outweighed by unfair prejudice, will mislead or confuse the jury, or will amount to a waste of the court’s time. The Defendants’ motion is devoid of any facts in support of unfair prejudice, confusion, or waste of time. The Defendants’ unsupported claim is insufficient for the court to exclude the statement made by Anne Cardin. In reality, the Defendants have not told this Court how and by what means that they will suffer unfair prejudice by the jury hearing Mrs. Cardin’s last five words of her life. The Defendants simply recite the Rule but add nothing to the analysis. “The fact that evidence prejudices one party or the other, in the sense that it hurts his or her case, is not the undesirable prejudice referred to in Rule 5-403.” Odum v. State, 412 Md. 593, 615 (2010).

Moreover, “It has been said that “[p]robative value is outweighed by the danger of ‘unfair‘ prejudice when the evidence produces such an emotional response that logic cannot overcome prejudice or sympathy needlessly injected into the case.” MURPHY, supra, § 506(B) (emphasis in original). “ Id. at 615 (emphasis added). When in this case, the decedent’s state of mind is an actual element of damages, is cannot be logically argued that the admission of evidence proving same qualifies as evidence “needlessly injected into the case”.

In Ory, the trial court denied the Defendant’s Motion in limine to preclude the jury from hearing testimony regarding the decedent’s conscious pain and suffering. The jury heard the following testimony from the paramedic who found the decedent trapped in a motor vehicle following the collision:

Q From what you could observe, was he conscious?
A Yes. I would say he was.
Q During the time that you were in the immediate
presence of Mr. Holden, did you
hear any sounds or noises coming from his
A Yes. He was breathing rather laborly [sic] and he apparently had swallowed some
blood because there was a gurgling sound in
breathing, and he made no moans as such,
other than this common gasping sound for
breath, which was usually a normal reaction.
Q Mr. Carter, did you have an occasion to
make any determination as to whether or not
he had a pulse?
A At the scene? Yes, I did.
Q What did that investigation result in your
A As to whether or not he had a
Q Yes.

Id. at 160,161. The paramedic also testified that: “…the victim had sustained a ‘tear type’ wound to the right side of his face, extending ‘from the chin to about the top of the cheek,’ and that there was ‘a large amount of torn loose flesh.’ In addition, Carter noticed that the victim’s left arm was bleeding and was fractured. He believed Mr. Holden might also have sustained a leg wound, but of that he was uncertain ‘because he was pinned at the time’”. Id. at 160,161. The Court of Special Appeals found no error in the trial court’s denial of the Defendant’s Motion in limine to preclude the jury from hearing the testimony from the paramedic. Although the trial court actually struck down the jury’s verdict for conscious pain and suffering finding that the evidence was insufficient to support the award, the Court of Special Appeals stated: It is also abundantly clear from the cases cited that the use of a motion in limine ‘should be exceptional rather than general.’ Lewis v. Buena Vista MutualInsurance Assoc., supra, 183 N.W.2d at 201.

It is essentially aimed at material which is inadmissible and prejudicial. In the instant case, the evidence adduced by the appellee on the question of conscious pain and suffering was indeed admissible. That it was insufficient to constitute a cause of action is another matter. A motion in limine may not perform the function of a motion for directed verdict. We find no support, upon principle or authority, for appellant’s proposition that the denial of her motions in limine constituted reversible error. Id. at 164,165 (emphasis added).

Similarly, the evidence in this case pertaining to Mrs. Cardin’s conscious pain and suffering and emotional distres
s is no more prejudicial than the evidence adduced at trial in Ory. There was no legal basis to exclude the evidence of conscious pain and suffering from the jury in Ory, and there is no legal basis to exclude the statement “I think I am dying” from the jury in this case.

WHEREFORE: The Plaintiffs respectfully request that the Defendants’ Motion In Limine be denied.

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