(PC) Washington v. Yaplee

Opinion

5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT WASHINGTON, Case No. 1:20-cv-01356-EPG (PC) 12 Plaintiff, ORDER RE: DEFENDANT’S MOTION IN LIMINE 13 v. (ECF No. 96). 14 STEVEN M. YAPLEE, 15 Defendant. 16

18 19 Plaintiff Robert Washington (“Plaintiff”) is a state prisoner proceeding in forma pauperis 20 in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s Eighth 21 Amendment claim against Defendant Steven M. Yaplee, M.D. (“Defendant”) for deliberate 22 indifference to Plaintiff’s serious medical needs. (ECF Nos. 1, 7). All parties have consented to 23 Magistrate Judge jurisdiction. (ECF No. 24). This action is currently set for jury trial to begin on 24 September 19, 2023. 25 On August 17, 2023, Defendant filed motions in limine. (ECF No. 96). Defendant also 26 filed the declaration of defense counsel in support of the motions in limine. (ECF No. 97). 27 Plaintiff did not file a response. 28 \\\ 1 I. LEGAL STANDARDS 2 “A motion in limine is a procedural mechanism to limit in advance testimony or evidence 3 in a particular area.” United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009). A party may 4 use a motion in limine to exclude inadmissible or prejudicial evidence before it is actually 5 introduced at trial. See Luce v. United States, 469 U.S. 38, 40 n.2 (1984). A motion in limine allows the parties to resolve evidentiary disputes before trial and avoids potentially 6 prejudicial evidence being presented in front of the jury, thereby relieving the trial judge from the 7 formidable task of neutralizing the taint of prejudicial evidence. Brodit v. Cambra, 350 F.3d 985, 8 1004-05 (9th Cir. 2003). Judges have broad discretion in ruling on a motion in limine. Jenkins v. 9 Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002) ); see also United States v. Torres, 794 10 F.3d 1053, 1059 (9th Cir. 2015) (motion in limine rulings are reviewed for abuse of discretion). 11 The Federal Rules of Civil Procedure provide that generally relevant evidence is 12 admissible at trial. Fed. R. Evid. 402. “Evidence is relevant if: (a) it has any tendency to make a 13 fact more or less probable than it would be without the evidence; and (b) the fact is of 14 consequence in determining the action.” Fed. R. Evid. 401. Relevant evidence can be excluded “if 15 its probative value is substantially outweighed by a danger of one or more of the following: unfair 16 prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly 17 presenting cumulative evidence.” Fed. R. Evid. 403. 18 II. DISCUSSION 19 A. Stipulated and unopposed motions in limine 20 Defendant has provided the declaration of defense counsel, which states that “the parties 21 agreed that Defendant’s Motions in Limine Nos. 3, 4, 6 and 10 would be stipulated and 22 unopposed.” 23 Defendant’s third motion in limine requests “[a]n order precluding Plaintiff, his counsel, and through them any witnesses from making any inquiry, comment, or argument before the jury 24 which suggests that jurors should base Plaintiff’s damages, if any, on an amount that jurors would 25 charge to endure similar injuries or to imagine a loved one in Plaintiff’s position when calculating 26 damages. (MIL No. 3, ECF No. 96, p. 5). 27 Defendant’s fourth motion in limine requests an order “that Plaintiff, his counsel and 28 1 through them any witnesses be precluded from presenting evidence concerning any potential of 2 insurance of Defendant.” (MIL No. 4, ECF No. 96, p. 5). 3 Defendant’s sixth motion in limine requests an order precluding “admission of evidence 4 regarding past medical costs or expenses.” (MIL No. 6, ECF No. 96, p. 7). Defendant’s tenth motion in limine requests an order precluding “any mention, directly or 5 indirectly, of any prior settlement offers made in this case.” (MIL No. 10, ECF No. 96, p. 10) 6 In light of the parties’ agreement, the Court grants Defendant’s motions in limine Nos. 3, 7 4, 6 and 10. 8

9 B. Defendant’s Motion in Limine No. 1 Defendant’s first motion in limine requests that Plaintiff be precluded “from offering 10 testimony or opinions as to the nature and extent of his injuries, his diagnoses, and issues of 11 medical causation or causation of claimed injuries.” (MIL No.1, ECF No. 96, p. 3). Specifically, 12 Defendant requests that Plaintiff be precluded from testifying as to “(1) whether or not he ever 13 actually had an ophthalmologic infection at any time during his care and treatment with 14 Defendant; (2) the cause of his decreased visual acuity and vision related complaints following 15 the June 13, 2016 surgery with Defendant; and (3) whether or not Plaintiff ever had an 16 ophthalmologic condition hat needed to be treated with antibiotic measures.” (Id.) Defendant 17 represents that “[t]he parties agree that Plaintiff can testify about subjective complaints of pain or 18 other symptoms that he personally, subjectively experienced.” (Id., p. 4). 19 “If a witness is not testifying as an expert, testimony in the form of an opinion is limited to 20 one that is: (a) rationally based on the witness's perception; (b) helpful to clearly understanding 21 the witness's testimony or determining a fact in issue; and (c) not based on scientific, technical, or 22 other specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701. Under Rule 702, a 23 person is permitted to testify as to “scientific, technical or other specialized” information if the 24 witness is “qualified as an expert by knowledge, skill, experience, training or education” and the 25 testimony is based upon sufficient facts or data. Fed. R. Civ. P. 702. Expert testimony must also 26 be “the product of reliable principles and methods” and the expert witness must “reliably apply 27 [those] principle and methods to the facts of the case.” Id. 28 1 Plaintiff's testimony is subject to these rules. As a non-expert witness, Plaintiff may testify 2 as to what he saw or felt relating to his medical needs or condition, including how Plaintiff’s eye 3 condition affects his ability to function. See Stevenson v. Holland, 504 F.Supp.3d 1107, 1121 4 (E.D Cal. 2020). Plaintiff may also describe changes to his physical or emotional state that he has 5 experienced over time. See Mouradian v. City of Los Angeles, 2023 WL 2558380, at *3 (C.D. 6 Cal. Jan. 25, 2023). Plaintiff’s testimony about the nature and extent of injuries must be rationally 7 based on his own perception. Thus, Plaintiff may testify about the symptoms he experienced 8 related to his medical condition and/or injuries, but he may not testify as to any medical diagnosis 9 explaining those symptoms. See Mouradian, 2023 WL 2558380, at *3; see also Sienze v. Kutz, 10 2019 WL 1332184, at * 3 (E.D. Cal. Mar. 25, 2019) (“[G]eneral comment about a persons’ own 11 condition is permitted while a medical diagnosis is not.”). Accordingly, Defendant’s first motion in limine is granted to the extent that Plaintiff is 12 precluded from offering expert testimony as to nature and extent of his injuries, his medical 13 diagnoses, and issues of medical causation or causation of claimed injuries. However, Plaintiff 14 may testify about his subjective symptoms that he personally experienced. 15 C. Defendant’s Motion in Limine No. 2 16 Defendant’s second motion in limine requests that Plaintiff be precluded from introducing 17 statements made by non-party health providers either via Plaintiff’s own testimony or medical 18 records. (MIL NO. 2, ECF No. 96, p. 4). Defendant argues that such evidence would be 19 inadmissible hearsay for which no exception applies. (Id.) 20 Defendant argues that any attempt by Plaintiff to introduce medical records created by 21 non-party health care providers “to establish the alleged existence of an ophthalmologic infection 22 of an ophthalmologic condition that would necessitate treatment with an antibiotic regimen” 23 would be hearsay-within-hearsay unless each statement conforms with an exception to the 24 hearsay rule. (Id.). Defendant contends this would include medical records not authored by 25 Defendant. (Id.) 26 Hearsay is statement that is not made during testimony at the current trial or hearing that 27 is offered to prove the truth of the matter asserted. Fed. R. Evid. 801(c). Some statements that are 28 not made during testimony at trial are, by definition, not hearsay. Fed. R. Evid. 801(d). The 1 Federal Rules of Evidence also provide certain exceptions to the general rule against hearsay. 2 The Court will grant Motion in Limine No. 2 insofar as Plaintiff is precluded from 3 testifying regarding what any non-party medical providers verbally said regarding his medical 4 condition. Such statements would be hearsay and not subject to an exception. (Plaintiff may testify regarding what Defendant said to him.) 5 However, the Court will not preclude Plaintiff from introducing medical records to the 6 extent such records fall within an exception to the hearsay rule. For example, certain medical 7 records may be the subject to the exception for records of regularly conducted activity under Rule 8 803(6). Fed. R. Evid. 803(6) (“A record of an act, event, condition, opinion, or diagnosis [is 9 admissible] if the record was made at or near the time by—or from information transmitted by— 10 someone with knowledge.”) or Rule 803(4) (“[a] statement that is made for—and is reasonably 11 pertinent to—a medical diagnosis or treatment; and describes medical history; past or present 12 symptoms or sensations; their inception; or their general cause”). 13 Thus, to the extent that Defendant seeks to exclude statements made by non-party health 14 providers that are contained in medical records, the Court is unable to determine whether 15 statements made by non-party health providers that are contained in Plaintiff’s medical records 16 may be admitted consistent with the rule of evidence. If Plaintiff seeks to introduce such records 17 into evidence, Defendant may object to those records at trial and the Court will evaluate the 18 admissibility of the documents at that time. 19 Accordingly, Defendant’s second motion in limine is granted, in part, to the extent that 20 Defendant seeks to preclude Plaintiff from testifying as to what other non-party medical providers 21 verbally told Plaintiff in the course of their medical treatment. However, Defendant’s motion is 22 denied in part to the extent that Defendant seeks to preclude the introduction of medical records 23 generated by non-party health providers. D. Defendant’s Motion in Limine No. 5 24 Defendant’s fifth motion in limine requests that the Plaintiff, Plaintiff’s counsel, and 25 Plaintiff’s witnesses be precluded “from presenting testimony and/or evidence concerning any 26 other lawsuits in which Defendant, or his professional medical entity, may have been named as a 27 defendant. . .or implying that Defendant (or his medical entity) is currently or in the past has been 28 1 a party to any lawsuit.” (MIL No. 5, ECF No. 96, p. 6). 2 Under Federal Rule of Evidence 404(b)(1), evidence of other bad acts, such as prior 3 malpractice, “is not admissible to prove the character of a person in order to show action in 4 conformity therewith.” However, such evidence “may be admissible for another purpose such has proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or 5 lack of accident.” Fed. R. Evid. 404(b)(2). Additionally, Federal Rule of Evidence 406 provides 6 that “[e]vidence of a person’s habit or an organization’s routine practice may be admitted to prove 7 that on a particular occasion the person or organization acted in accordance with the habit to 8 routine practice.” To determine whether conduct constitutes habit, courts consider: “(1) the 9 degree to which the conduct is reflexive or semi-automatic as opposed to volitional; (2) the 10 specificity or particularity of the conduct; and (3) the regularity or numerosity of the examples of 11 the conduct.” United States v. Angwin, 271 F.3d 786, 799 (9th Cir. 2001), overruled on other 12 grounds by United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007). 13 Given Plaintiff’s failure to file any opposition to this (or any other) motion in limine, the 14 Court will grant the motion. While prior lawsuits could theoretically be admissible for the limited 15 purposes allowed by the federal rules, Plaintiff has not presented any evidence or argument that 16 any such lawsuits should be admitted in this case. 17 Accordingly, the Court grants Defendant’s sixth motion in limine, and will preclude 18 Plaintiff, his counsel and through them any witnesses from presenting testimony and/or evidence 19 concerning any other lawsuits in which Defendant, or his professional medical entity, may have 20 been named as a defendant. 21 E. Defendant’s Motion in Limine No. 7 22 Defendant’s seventh motion in limine requests that the Court “preclude admission of 23 medical records that include notes or entries by Dr. Robles, Dr. Shittu, Dr. Gines or Nurse Reynaldo.” (MIL No. 7, ECF No. 96, p. 7). According to Defendant, Plaintiff designated these 24 individuals as expert witnesses, but has not provided Defendant with any writings, documents, or 25 medical records from these individuals despite the Court’s order requiring the exchange of 26 documents, including copies of medical records within each party’s possession, custody, or 27 control. (Id., pp. 7-8). 28 1 The federal rules generally provide that evidence not disclosed or supplemented in 2 discovery may be precluded from use at trial unless the failure to disclose was substantially 3 justified or harmless. Fed. R. Civ. P. 37(c); Yeti by Molly, Ltd. v. Deckers Outdoor Corp, 259 4 F.3d 1101, 1106 (9th Cir. 2001). In light of Plaintiff’s failure to oppose this motion in limine, the Court grants Defendant’s 5 motion in limine number 7, and will preclude the admission of medical records that include notes 6 or entries by Dr. Robes, Dr. Shittu, Dr. Gines or Nurse Reynaldo. 7 F. Defendant’s Motion in Limine No. 8 8 Defendant’s eighth motion in limine requests that the Court preclude evidence or 9 argument that Defendant was negligent in his care and treatment of Plaintiff. (MIL No. 8, ECF 10 No. 96, p. 8). Defendant contends that the elements of negligence, including whether the standard 11 of care has been met, are irrelevant to Plaintiff’s claim for deliberate indifference to a serious 12 medical need. (Id.) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Defendant also argues 13 that any argument that Defendant was negligent is potentially misleading to the jury and 14 confusing. (Id., p. 9). 15 The Court will grant Defendant’s eighth motion in limine insofar as it will preclude 16 Plaintiff’s counsel, Plaintiff or Plaintiff’s witnesses from arguing or offering an opinion that 17 Defendant was negligent. However, the Court will deny Defendant’s motion insofar as it requests 18 preclusion of evidence of Defendant’s medical care solely on the basis that it could also be 19 relevant to an unasserted negligence claim. The Court will consider the admissibility of evidence 20 regarding Defendant’s care and treatment of Plaintiff solely with regard to its relevant to the 21 claim in this case for deliberate indifference to serious medical needs. 22 G. Defendant’s Motion in Limine No. 9 23 Defendant’s ninth motion in limine requests that the Court “prevent mention, directly or indirectly, concerning the wealth or economic condition of Defendant and/or financial terms of 24 any agreement maintained with the CDCR/State of California” because such evidence is 25 irrelevant to Plaintiff’s claim. (MIL No. 9, ECF No. 96, p. 9). Defendant also contends such 26 evidence would be improper because neither party has conducted discovery regarding 27 Defendant’s financial status or the terms of Defendant’s agreement with the State and/or CDCR. 28 1 (Id.) Should the Court find this evidence relevant, Defendant requests that “any such evidence be 2 bifurcated until and unless a jury makes a finding in favor of plaintiff on his 42 U.S.C. §1983 3 claim and also determines that imposition of punitive damages is appropriate in this situation.” 4 (Id.) Here, Defendant’s relative financial status or any agreement between Defendant and 5 CDCR is not relevant to Plaintiff’s claim at issue in this case. Although evidence of Defendant’s 6 financial condition may be relevant to any claim for punitive damages, Plaintiff has not opposed 7 Defendant’s request nor otherwise indicated that he intends to introduce such evidence in support 8 of Plaintiff’s claim for punitive damages. The Court also notes that the parties’ proposed jury 9 instructions and special verdict form do not include any instructions on the issue of punitive 10 damages. 11 Accordingly, the Court grants Defendant’s tenth motion in limine, and will preclude any 12 mention of Defendant’s economic condition or the terms of any agreement between Defendant 13 and the State of California and/or CDCR. 14 III. ORDER 15 Based on the foregoing it is order as follows: 16 1. Defendant’s Motion in limine No. 1 is GRANTED. Plaintiff is precluded from offering 17 expert testimony as to nature and extent of his injuries, his medical diagnoses, and issues 18 of medical causation or causation of claimed injuries. However, Plaintiff may testify about 19 his subjective symptoms that he personally experienced. 20 2. Defendant’s Motion in limine No. 2 is GRANTED in part to the extent that Defendant 21 seeks to preclude Plaintiff from testifying as to what other non-party medical providers 22 verbally told Plaintiff in the course of their medical care of Plaintiff, and DENIED in part 23 to the extent that Defendant seeks to preclude the introduction of medical records 24 generated by non-party health providers.1 25 3. Defendant’s Motion in limine No. 3 is GRANTED. Plaintiff, Plaintiff’s counsel, and 26 Plaintiff’s witnesses are precluded from making a “golden rule” argument, i.e., any 27 1 The Court will determine the admissibility of such records during the course of trial, considering any objections at 28 that time. 1 suggestion that jurors should base Plaintiff's damages, if any, on an amount that jurors 2 would charge to endure similar injuries or to imagine a loved one in Plaintiff's position. 3 4. Defendant’s Motion in limine No. 4 is GRANTED. Plaintiff, Plaintiffs counsel, and 4 Plaintiff's witnesses are precluded from presenting evidence concerning any potential of 5 insurance of Defendant. 6 5. Defendant’s Motion in limine No. 5 is GRANTED. Plaintiff, his counsel and through 7 them any witnesses are precluded from presenting testimony and/or evidence concerning 8 any other lawsuits in which Defendant, or his professional medical entity, may have been

9 named as a defendant. 6. Defendant’s Motion in limine No. 6 is GRANTED. Any admission of evidence of 8 Plaintiff's past medical costs or expenses is precluded. 7. Defendant’s Motion in limine No. 7 is GRANTED. Any admission of medical records that 12 include notes or entries by Dr. Robes, Dr. Shittu, Dr. Gines or Nurse Reynaldo is 13 precluded. 8. Defendant’s Motion in limine No. 8 is GRANTED in part to the extent that Plaintiffs 15 counsel, Plaintiff or Plaintiffs witnesses are precluded from arguing or offering an 16 opinion that Defendant was negligent. 17 9. Defendant’s Motion in limine No. 9 is GRANTED. Any mention of, or evidence 18 regarding, Defendant’s economic condition or the terms of any agreement between 19 Defendant and the State of California and/or CDCR is precluded. 20 10. Defendant’s Motion in limine No. 10 is GRANTED. Any mention, directly or indirectly, 1 of any prior settlement offers in this case is precluded. 22 IT IS SO ORDERED. 23 24 | Dated: _ September 18, 2023 hey UNITED STATES MAGISTRATE JUDGE

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