Judge: Stephen I. Goorvitch, Case: 19STCV24594, Date: 2023-05-23 Tentative Ruling
Case Number: 19STCV24594 Hearing Date: May 23, 2023 Dept: 39
Bernice
Cross v. Sam Gabriel Medical Center, et al.
Case
No. 19STCV24594
Rulings
on Motions in Limine
A. Plaintiff’s Motions in Limine
1. To preclude Lori Zaccari from providing
a standard of care opinion – DENIED
Plaintiff
seeks to exclude Lori Zaccari, R.N. from providing an opinion concerning the
standard of care because Zaccari “has never worked in a behavioral unit or
psychiatric hospital.” The relevant
inquiry is whether Zaccari is familiar with the appropriate standard of care
for a patient like Plaintiff in a setting like Defendants’ facility. This does not require that Zaccari has ever
worked in a behavioral unit or psychiatric hospital. The issue raised by Plaintiff goes to weight,
not admissibility, which falls within the province of the jury. Therefore, the motion is denied.
2. To permit Plaintiff’s nursing expert to
introduce the statutes and regulations applicable to Defendants – GRANTED
Plaintiff’s
counsel seeks to have his expert witness, Christopher Luke Jackson, R.N., testify about, and introduce, the statutes and
regulations applicable to Defendants’ facility.
There is a rebuttal presumption that a breach of due care has occurred
where there has been a violation of the statute, per Evidence Code section 669. Plaintiff seeks to have his expert “identify
which are the applicable statutes based on the facts of this case” but will not
have him “provide opinions whether the Defendants violated the applicable
statutes and regulations.” (Plaintiff’s
Offer of Proof, p. 2:19-22.) Specifically, Plaintiff’s expert will testify
that two statutes set the standard of care: (1) 22 Cal. Code Reg., § 71213, and
(2) 22 Cal. Code Reg., § 70215. Section
71213 requires “a written patient care plan” including “goals, problems/needs
and approach” that is made available “to all members of the mental health team.” Section 71213 also requires “a written
staffing pattern.” Section 70215 sets
certain staffing requirements. Based
upon the Court’s review of Plaintiff’s offer of proof, as well as the transcript
from the prior trial, the motion is granted.
The
Court notes that Mr. Jackson testified on these issues during the first trial, opining
that Plaintiff was a “significant fall risk;” there was no “plan that really
addressed that issue;” and Defendants having left her alone “is the number one
reason that she fell.” The Court of
Appeal held that this testimony was sufficient to establish causation. This Court will not overrule the Court of
Appeal by granting the instant motion.
B. Defendants’ Motions in Limine
1. To exclude inadmissible hearsay – GRANTED
WITHOUT PREJUDICE
Defendants
seek to exclude testimony from Plaintiff’s expert, Dr. Edward Chan, that
Plaintiff “may have fallen” or that there was a “possible fall.” Of course, Dr. Chan may testify that
Plaintiff may have fallen based upon his review of the X-rays and examination
of Plaintiff. Similarly, Dr. Chan may
testify that Plaintiff likely fell while a resident of Defendants’ facility
based upon his opinion that she could not have walked/run on the street. Dr. Chan may provide an opinion that
Plaintiff fell at Defendants’ facility based upon any fact of which he has
personal knowledge. Defendants do not
seek to preclude Dr. Chan from doing so.
Rather,
Defendants seek to prevent him from testifying that there was a potential fall
based upon having heard the following:
-
“There was a report that while [Plaintiff] was
in the psych unit, she was found down on the ground and may have fallen out of
her bed. Theis was a couple days
ago. At that time, she has been unable
to get up and ambulate and has been complaining of more right hip pain.”
-
“However, there was report of a possible fall
out of bed, as she was found on the side of the bed during her admission, and
was unable to ambulate afterwards.”
Dr. Chan memorialized this “reports”
in his own written notes on Plaintiff, which were included in her medical
file. However, Dr. Chan testified during
his deposition that he could not recall the source of these “reports” of
Plaintiff having fallen.
Q: So, the next sentence is, “There was a report
that while she was in the psych unit, she was found down on the ground and may
have fallen out of her bed.” Do you
recall the source of that report?
A: I cannot specifically recall.
Q: Okay.
Based on your custom and practice, can you -- can you form a confident
belief of what the source of that report was?
A: No.
Q: Okay.
Do you recall who related that report to you?
A: No.
Q: Do you recall whether that report was
related to you by hospital personnel or somebody else?
A: No.
Q: Do you remember whether one of the patient’s
daughters related that report to you?
A: No.
. . .
Q: Then it says, “However, there was a
report of a possible fall out of bed, as she was found on the side of the bed during
her admission, and was unable to ambulate afterwards. Do you recall the source of that information?
A: No.
Q: Reading it again here in your operative
report, does it refresh your recollection as to where you might have had that
report related to you?
A: No.
Q: Or by whom?
A: No.
Q: . . . [A]re you aware of any other
source of information regarding the cause or circumstances about Bernice Cross’
hip fracture?
A: No.
. . .
Q: . . . [B]ased on your custom and
practice, would you have put something like that in your consult and in your
operative report if you did not have a basis for it?
A: I think my intention was to include that
all as part of this vague report. So in
-- in both the consult note and operative report I simply record, you know,
what’s -- what’s known to me and reported to me.
Q: Right.
So you would not have put something like that in your consult or in your
operative report if you did not hear it from some source; true, Doctor?
A: If I understand correctly, yes. I -- yes.
If I speculate anything in my reports, then I would probably mention
that, so yeah.
(Declaration of Robert B.
Packer, Exh. C, pp. 17-19, 27, 51-53.) Plaintiff’s
counsel conceded at the prior hearing that there is no direct evidence that
Plaintiff fell at Defendants’ facilities, i.e., “there are no witnesses who
will testify that they observed Plaintiff fall at the facility; they discovered
Plaintiff on the floor at any point; they observed Plaintiff engaging in activities
that could lead to a fall, etc.” (See
Court’s Minute Order, dated April 24, 2023.)
The dispositive
issue is whether Dr. Chan heard these “reports” directly from one of Defendants’
employees with personal knowledge versus an employee without personal knowledge
or a non-employee, like one of Plaintiff’s daughters. If the former, they are admissible; if the
latter, they are not. (See Evid. Code, §
1224; see also Labis v. Stopper (1970) 11 Cal.App.3d 1003, 1004-1005.) In this case, it is unclear who made the statements
to Dr. Chan. Where a report “does not
identify the declarant or declarants from whose statements the [writer] drew his
factual summary,” there is no basis to say whether a hearsay exception
applies. (See People v. Reed (1996) 13
Cal.4th 217, 230-231.) Plaintiff’s
counsel argues that Dr. Chan necessarily heard the report from one of Defendants’
employees because she was housed in a lock-down facility. However, Dr. Chan did not exclude the possibility
that he may have heard about the issue from one of Plaintiff’s daughters. Nor can the Court exclude the possibility
that the report came from another employee without personal knowledge who was
speculating. In the absence of a clear
record, the Court grants Defendant’s motion in limine and orders that Dr. Chan
may not testify about having heard these “reports.” Nor may Dr. Chan predicate his opinion on
these “reports,” per People v. Sanchez (2016) 63 Cal.4th 665.
2. To exclude evidence of violations of
the standard of care that did not cause, or contribute to, Plaintiff’s injuries
– DENIED. This motion is denied for the same
reasons the Court grants Plaintiff’s motion in limine #2.
3. To exclude evidence of personal
practices – GRANTED IN PART; DENIED IN PART
Defendants
seek to exclude testimony from expert witnesses concerning their “personal
practices.” The relevant inquiry is the standard
of care. An expert witness is permitted
to testify about the standard of care and explain how they adhere to the
standard of care in their practice. In
other words, an expert is permitted to translate the standard of care into
practical terms for the jury. However,
an expert is not permitted to testify about their personal practices
independent of the standard of care.
Therefore, the motion is granted in part and denied in part. The Court will sustain Defendants’ objections
during trial if expert witnesses testify about their personal practices without
linking them to the standard of care.
4. To exclude any reference to an
unsuccessful motion for summary judgment – GRANTED.
5. To limit the testimony of expert
witnesses to the opinions, facts, and conclusions at the time of their
depositions and expert designations – DENIED WITHOUT PREJUDICE
Defendants
seek to limit Plaintiff’s expert witnesses to the opinions, facts, and conclusions
at the time of their depositions and expert designations. The Court cannot rule on this issue in
advance of trial for two reasons. Kennemur holds that a party “must disclose either in his witness exchange list
or at his expert’s deposition, if the witness is asked, the substance of
the facts and the opinions which the expert will testify to at trial.” (Kennemur v. State of California
(1982) 133 Cal.App.3d 907, 919.) The
Court does not know whether Defendants’ counsel asked the standard “close-out
questions” under Kennemur during their depositions. Also, the Court does not know whether there
may be a basis to permit Plaintiff to elicit testimony under Code of Civil
Procedure section 2034.310(b), i.e., “testimony to the facility or nonexistence
of any fact used as the foundation for any opinion by any other party’s expert
witness . . . .” Therefore, the motion
is denied without prejudice.
6. To exclude evidence not disclosed in
discovery – DENIED WITHOUT PREJUDICE
Defendants seek
to preclude Plaintiffs from calling any witnesses and introducing any exhibits
not disclosed in response to discovery requests. The Court will address this issue at
trial if necessary. The Court cannot
exclude witnesses or evidence not identified or produced during discovery
unless the omission violated a court order or otherwise was willful. (New Albertsons, Inc. v. Superior Court
(2008) 168 Cal.App.4th 1403, 1422-1434; see also Mitchell v. Superior Court
(2015) 243 Cal.App.4th 269, 272; Saxena v. Goffney (2008) 159
Cal.App.4th 316, 334.) Therefore, the
motion is denied without prejudice.
7. To preclude Plaintiff from calling
Defendants’ experts during her case-in-chief – GRANTED WITHOUT PREJUDICE
Defendants
seek an order precluding Plaintiff from calling the defense expert witnesses during
her case-in-chief, in advance of her own expert witnesses. The Court grants the motion under its
inherent authority to control the manner and nature of the proceedings. A percipient witness may be called in a
plaintiff’s case-in-chief under Evidence Code section 776 because they may have
facts relevant to the Plaintiff’s case.
However, an expert witness is retained by the defense specifically in
response to Plaintiff’s expert witnesses.
In the alternative, the Court grants the motion under Evidence Code
section 352. The Court finds little
probative value in allowing Plaintiff to call Defendants’ expert witnesses
before their own expert witnesses. The
Court finds that any probative value is greatly outweighed by the confusion of
the issues and the wasting of time.
Indeed, the jury should hear Plaintiff’s expert witnesses before
Defendants’ expert witnesses to keep the evidence organized. Therefore, the motion is granted. However, the Court will reconsider this
ruling if Defendants’ counsel moves for a nonsuit; the Court’s tentative order
is to grant the motion; and Plaintiff’s counsel requests to reopen his
case-in-chief and identifies specific testimony that Defendants’ experts would
provide that would defeat the motion for nonsuit.
C. Other Evidentiary Issues
1. Medicare Lien
An
injured plaintiff can recover as damages for past medical expenses no more than
the amount incurred for those past medical services. (Corenbaum v. Lampkin (2013) 215
Cal.App.4th 1308, 1329, citing Howell v. Hamilton Meats & Provisions,
Inc. (2011) 52 Cal.4th 541, 555.)
Plaintiff seeks to introduce the Medicare liens, which document the total
charges, the reimbursed amounts, and the conditional payments. Plaintiff is not seeking reimbursement for
the total charges, but rather only the amount Medicare paid for her care
related to Defendants’ alleged negligence.
Plaintiff is entitled to introduce these documents in order to establish
the cost of her past care. Defendants
argue that the documents contain charges not associated with the injury at
issue, i.e., Plaintiff’s broken hip.
Defendants argue that these records contain charges for Plaintiff’s psychiatric
hold and psychiatric care. Defendants
are free to make these arguments to the jury.
2. Hearsay in Medical Records
The
parties suggested that there may be issues of inadmissible hearsay within
otherwise admissible documents, e.g., hearsay in medical records. The Court ordered the parties to
meet-and-confer and to file a joint statement identifying any such issues the Court
may need to resolve before trial. The
parties did not do so. Therefore, the Court
assumes that Dr. Chan’s reports are the only reports at issue.