Nyerges v. Hillstone Restaurant Group Incorporated

• Court: District Court, D. Arizona
• Decided: July 13, 2022
• Docket: 2:19-cv-02376
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Helen Nyerges, et al., No. CV-19-02376-PHX-DWL

10 Plaintiffs, ORDER

11 v.

12 Hillstone Restaurant Group Incorporated,

13 Defendant. 14 15 Pending before the Court is Plaintiff’s motion in limine regarding throat cancer. 16 (Doc. 156.) For the following reasons, the motion is denied. 17 As background, “[t]his is a dram-shop liability action arising out of the death of 18 Lewis Nyerges . . . . On the evening in question, Nyerges and a group of companions 19 consumed food and drinks at Bandera, a Scottsdale restaurant operated by Hillstone 20 Restaurant Group Incorporated . . . . Around 10:00 p.m., Nyerges choked while eating his 21 meal, collapsed, and was rushed to the hospital, where he later died. Although Nyerges’s 22 formal cause of death was asphyxiation due to choking on a piece of meat, his blood alcohol 23 concentration . . . was measured at .422 at the hospital.” (Doc. 120 at 1.) One of the key 24 disputed issues at trial will be causation—that is, “whether the alcohol served by Defendant 25 to Lewis Nyerges was a proximate cause of Lewis Nyerges’ death due to asphyxiation from 26 choking on a piece of steak.” (Doc. 152 at 11 [final pretrial order].) 27 It appears that one of Hillstone’s causation-related defenses at trial will be to show 28 that Nyerges had been diagnosed with throat cancer before the incident and that this cancer, 1 rather than any alcohol service, was the reason why he choked. According to Plaintiff, 2 Hillstone’s causation expert testified during his deposition that “[i]f this condition were 3 verified, then, in my opinion, throat or esophageal cancer in Mr. Nyerges would rank high 4 among possible alternative explanations of his failure to swallow properly, the proximal 5 cause of his collapse and subsequent death.” (Doc. 156 at 3.) 6 In the pending motion in limine, Plaintiff seeks to preclude the admission of any 7 throat cancer-related evidence at trial. (Doc. 156.) According to Plaintiff, there are only 8 two pieces of evidence that purportedly show that Nyerges had been diagnosed with throat 9 cancer: (1) a medical record from Honor Health that contains the notation “possible 10 esophageal cancer diagnosed at the Cleveland Clinic”; and (2) testimony from non-party 11 witness Michael Christley, who stated that when he was at the hospital with Nyerges 12 following the choking incident, a woman identified only as “Erica” “came to the hospital 13 and told Mr. Christley: ‘I don’t know if [Nyerges] told you or not, but he has Stage 4 throat 14 cancer.’” (Id.) As for the former, Plaintiff contends the notation is misleading because 15 none of the underlying medical records from the Cleveland Clinic contain any references 16 to esophageal cancer and subsequent medical records from Honor Health acknowledge that 17 the notation was inaccurate (“records were received from, Cleveland clinic and there is no 18 mention of cancer”). (Id.) As for the latter, Plaintiff contends that “Erica” has never been 19 identified and her statement has never been substantiated. (Id.) For these reasons, Plaintiff 20 argues that any throat cancer evidence should be excluded because it “is hearsay, more 21 prejudicial than probative, and there is no admissible evidence that Lewis Nyerges actually 22 had throat cancer.” (Id.) 23 Hillstone opposes Plaintiff’s motion. (Doc. 157.) As an initial matter, Hillstone 24 notes that the exclusion arguments now being raised by Plaintiff differ from the arguments 25 raised in a previous version of the motion. (Id. at 1-2.) On the merits, Hillstone argues 26 that the evidence at issue is relevant, is not hearsay under Rule 803(4), and is not unfairly 27 prejudicial under Rule 403. (Id. at 2-3.) 28 The Court agrees with Hillstone. If, in fact, Nyerges had been diagnosed with throat 1 cancer before the choking incident, this would obviously be relevant as to causation and 2 damages. Hillstone is also correct that at least one of the pieces of evidence at issue—the 3 medical record from Honor Health containing the notation “possible esophageal cancer 4 diagnosed at the Cleveland Clinic”—falls within an exception to the rule against hearsay 5 under Rule 803(4). This is because the statement was made for, and was reasonably 6 pertinent to, medical diagnosis or treatment (it was a statement of a nurse who was actively 7 treating Nyerges) and described Nyerges’s medical history. See generally United States v. 8 Kootswatewa, 893 F.3d 1127, 1133 (9th Cir. 2018) (“An adequate foundation may be laid 9 under Rule 803(4) by introducing objective evidence of the context in which the statements 10 were made.”). Regardless of whether the statement was accurate, it was not hearsay.1 11 Finally, although Plaintiff has identified various reasons why the statement should 12 be viewed as inaccurate, the possibility (or even likelihood) that the statement was 13 inaccurate doesn’t mean the statement should be excluded under Rule 403. As the Ninth 14 Circuit has noted, “Rule 403 . . . is an extraordinary remedy to be used sparingly because 15 it permits the trial court to exclude otherwise relevant evidence. Under the terms of the 16 rule, the danger of prejudice must not merely outweigh the probative value of the evidence, 17 but substantially outweigh it.” United States v. Mende, 43 F.3d 1298, 1302 (9th Cir. 1995) 18 (cleaned up). Here, there is nothing particularly sensitive or prejudicial about the concept 19 of a cancer diagnosis. Thus, there is no reason to take this issue away from the jury. If, as 20 Plaintiff contends, the references to a cancer diagnosis are inaccurate, he will be able to 21 establish that fact at trial. 22 … 23 … 24 1 As for the statement by “Erica” that Nyerges had been diagnosed with stage-four 25 cancer, although the statement itself likely qualifies as a statement made for medical diagnosis or treatment under Rule 803(4)—the surrounding circumstances suggest she 26 made the statement to Christley for the purpose of assisting Nyerges’s medical treatment, and it is a statement of medical history—it is unclear from the present record how Erica 27 came to know this information. At any rate, it is unnecessary at this juncture to decide whether the statement by “Erica” is admissible. The only request now before the Court is 28 Plaintiff’s motion to categorically preclude all evidence related to throat cancer, and that request is denied for the reasons stated in the body of this order. 1 Accordingly, 2 IT IS ORDERED that Plaintiff's motion in limine regarding throat cancer (Doc. 156) is denied. 4 Dated this 13th day of July, 2022. 5 6 Lm ee 7 i □ Dominic W. Lanza 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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