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Goode v. City of Southaven

United States District Court, N.D. Mississippi, Oxford Division

March 7, 2019

KELLI DENISE GOODE, Individually, and also as the Personal Representative of Troy Charlton Goode, Deceased, and as Mother, Natural Guardian, and Next Friend of R.G., a Minor, and also on behalf of all similarly situated persons PLAINTIFF
v.
THE CITY OF SOUTHAVEN, et al. DEFENDANTS

          ORDER

          MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE

         This cause comes before the Court on Defendant Baptist Memorial Hospital-Desoto's (“BMH-D”) motions in limine [535] [537] [539] [541].

         Motion in Limine Standard

         “The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility and relevance of certain forecasted evidence.” Harkness v. Bauhaus U.S.A., Inc., 2015 WL 631512, at *1 (N.D. Miss. Feb. 13, 2015) (internal citations omitted). When ruling upon motions in limine, the Court notes that “[e]vidence should not be excluded in limine unless it is clearly inadmissible on all potential grounds.” Id. Rulings on a motion in limine “are not binding on the trial judge, and the judge may always change his mind during the course of a trial.” Ohler v. United States, 529 U.S. 753, 758 n.3 (2000).

         A. BMH-D's First Motion in Limine [535]

         On June 7, 2018, BMH-D filed the instant motion along with a supporting memorandum. Docs. #535, #536. The motion contains six subparts. Doc. #536 at 2. Six days later, the City of Southaven, Todd Baggett, Jeremy Bond, Tyler Price, Joel Rich, Jason Scallorn, Stacie J. Graham, Mike Mueller, William Painter, Jr., Bruce K. Sebring, Joseph Spence, and Richard A. Weatherford (collectively, the “Southaven Defendants”) joined subparts I and II of the motion. Doc. #546. The next day, Kelli Denise Goode responded in opposition. Doc. #567. BMH-D moves to exclude at trial:

(1) undisclosed expert opinions on the standard of care; (2) undisclosed expert opinions linking breaches of the standard of care to the cause of Mr. Goode's death; (3) undisclosed and irrelevant expert opinions regarding 42 CFR § 482.13; (4) expert opinions on BMH-D's “Protocol”; (5) expert opinions on BMH-D's “Policies”; (6) violation of regulations governing patient rights; and (7) expert opinions on Haldol and Ativan.

Doc. #536 at 2. Each exclusion moved for by BMH-D will be addressed in turn.

         i. First Ground

         BMH-D moves to exclude undisclosed expert opinions on the standard of care. Id. at 3. BMH-D argues that although Kelli has only disclosed one standard of care expert, “several of her other experts … have offered undisclosed opinions concerning the standard of care during depositions.” Id. In response, Kelli asserts that the motion is an untimely Daubert motion that should be denied on that basis.

         “[O]pinions based on undisclosed facts, methodology, and principals do not allow the Court to examine the soundness of [an] expert's conclusions under Daubert and will not be allowed at trial.” Flagstone Dev. LLC v. Rocky Mountain Timberlands, LLC, No. CV 08-100, 2017 WL 3820948, at *2 (D. Mont. Aug. 31, 2017). However, because undisclosed expert opinions run afoul of Daubert does not mean that such opinions must be exclusively challenged through Daubert, as Federal Rule of Evidence 26 also requires timely disclosure of expert opinions. Generally, motions challenging expert opinions as undisclosed involve the introduction of new opinions at a late stage in litigation, which is not the case here. See, e.g., Oklahoma v. Tyson Foods, Inc., No. 05-CV-329, 2009 WL 2252129, at *9 (N.D. Okla. July 24, 2009) (addressing challenge to undisclosed expert opinions—some of which appeared to have been taken from a previously disclosed report—that were presented an affidavit in support of a response in opposition to defendants' motion of the affidavit).

         Here, BMH-D has not pointed to “undisclosed opinions concerning the standard of care [offered] during deposition” that were not addressed by the Court in its rulings on Lemuel D. Oliver, M.D. and BMH-D's timely Daubert challenges to Kelli's experts in which the Court prohibited undisclosed standard of care opinions. See Docs. #593, #597. Absent a dispute that the challenged opinions have not been disclosed, this first ground will be denied—nevertheless, all “experts will be held to the opinions disclosed in their reports as required by Fed.R.Civ.P. 26.” Keys v. Lloyds, No. 2:14-CV-00643, 2015 WL 11027034, at *1 (E.D. Tex. Oct. 20, 2015) (denying blanket motion “to preclude offering the opinions and mental impressions of any expert witness or the bases for the expert's opinions and mental impressions, which have not been disclosed in the experts reports or depositions” with the caveat that experts must limit their testimony to that disclosed in their reports).

         ii. Second Ground

         BMH-D moves to exclude undisclosed expert opinions linking breaches of the standard of care to the cause of Troy's death. Doc. #536 at 4. BMH-D argues that “any attempt by Mrs. Goode to elicit testimony by any of her experts which attempts to link the alleged breaches of the standard of care to the death of Mr. Goode … is inadmissible and should be precluded.” Id. In response, Kelli asserts that the motion is an untimely Daubert motion and that BMH-D's argument “is without basis because the Federal Rules simply don't demand the specificity urged here by BMH.” Doc. #567 at 3.

         The Court agrees with Kelli that this motion fails on two grounds. First, as discussed above with regard to Ground One, BMH-D does not specify the opinions it believes have not been disclosed—considering the Court has addressed undisclosed standard of care opinions linking breaches of the standard of care to the cause of Troy's death in its rulings on Lemuel D. Oliver, M.D. and BMH-D's timely Daubert challenges to Kelli's experts. See Docs. #593, #597. Second, to the extent that BMH-D argues that there is no nexus in the amended complaint between Kelli's offered standard of care testimony and her offered causation testimony, that argument is unavailing because Kelli has provided “fair notice of what the claim is and the grounds upon which it rests” through her amended complaint. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007) (alterations omitted); see Marshall v. MarOpCo, Inc., 223 F.Supp.3d 562, 566 (N.D. Tex. 2017) (“federal rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits”) (internal quotation marks omitted). For these reasons, BMH-D's second ground will be denied.

         iii. Third Ground

         BMH-D moves to exclude “undisclosed and irrelevant expert opinions regarding 42 CFR § 482.13.” Doc. #536 at 4. BMH-D argues that Kelli

made no allegation in her Amended Complaint nor disclosed any expert testimony that BMH-D breached the standard of care through violating 42 CFR § 482.13 or linking such a breach to the cause of Mr. Goode's death. Accordingly, any expert testimony concerning violations of 42 CFR § 482.13 is irrelevant, inadmissible, and should be excluded.

Id. (emphasis omitted).

         In response, Kelli asserts that the motion is an untimely Daubert challenge that should be denied on that basis. Doc. #567 at 4. Furthermore, Kelli argues that she has “detailed her allegations of the breaches of the standard of care with respect to BMH's violation of 42 CFR § 482.13 in the Amended Complaint” and that her standard of care expert's deposition testimony “establishes that BMH was required to monitor Troy … one-on-one when he was in the hog tie position.” Id. at 4-5.

         First, as discussed above with regard to Ground One, BMH-D does not specify the opinions it believes have not been disclosed. Second, the Court agrees with Kelli that her amended complaint provided fair notice concerning violations of 42 CFR § 482.13. See Doc. #107 at 27- 28. Third, the Court, by separate order, has rejected a similar challenge to the admissibility of hospital policies brought by Oliver. In that order, the Court ruled that in the Fifth Circuit internal policies and guidelines, although not themselves determinative of the standard of care, “are considered relevant evidence and may be properly introduced” as “evidence of the standard of care.” Shoemake v. Rental Serv. Corp., No. CIVA106CV426, 2008 WL 345498, at *1 (S.D.Miss. Jan. 30, 2008) (citing Quijano v. United States, 325 F.3d 564, 568 (5th Cir. 2003) (applying Texas state law). Mississippi law is in accord. See Moore ex rel. Moore v. Mem'l Hosp. of Gulfport, 825 So.2d 658, 665 (Miss. 2002) (violation of internal hospital regulations “may serve as evidence of negligence” but “do not establish a legal duty of care to be applied in a civil action”). For these reasons, BMH-D's third ground will be denied.

         iv. Fourth Ground

         BMH-D moves to exclude expert opinions on BMH-D's protocols, arguing that Kelli's standard of care expert has offered opinions on BMH-D protocol lacking a basis in the amended complaint and without having “reviewed any hospital ‘protocol.'” Id. at 4-5. In response, Kelli asserts that the motion is an untimely Daubert motion that should be denied on that basis. Doc. #567 at 1. Furthermore, Kelli argues that “the Federal Rules simply don't demand the specificity urged here by BMH[-D].” Id. at 3.

         The Court agrees with Kelli that this filing is a veiled, untimely Daubert motion as it is challenging the standard of care testimony of Kelli's expert witness. In fact, the Court has already rejected a Daubert challenge brought by BMH-D against Kelli's designated standard of care expert. See Doc. #597. Moreover, Kelli's amended complaint provided fair notice regarding her claim and the applicability of BMH-D protocol, even pointing to BMH-D's failure to follow the “ACLS protocol” as a breach of the standard of care. Doc. #107 at 60-61. For these reasons, BMH-D's fourth ground will be denied.

         v. Fifth Ground

         BMH-D moves to exclude expert opinions on BMH-D's policies. Doc. #536 at 5. BMH-D argues that the “Amended Complaint … contains no allegations that BMH-D violated its own policies or that such a violation was a breach of the standard of care [and Kelli] has not disclosed any expert opinions as to such a breach or linking such a breach to [Troy's] death.” Id. (emphases omitted). In response, Kelli asserts that the motion is an untimely Daubert motion that should be denied on that basis. Doc. #567 at 1. Furthermore, Kelli argues that “the Federal Rules simply don't demand the specificity urged here by BMH[-D]” and BMH-D, in fact, violated its own policies. Id. at 3, 5-6.

         The Court agrees with Kelli that this filing is a veiled, untimely Daubert motion—as it is challenging the standard of care and causation testimony of Kelli's expert witnesses—and that her amended complaint provided sufficient notice to BMH-D regarding her claim and the applicability of BMH-D policies. See Doc. #107 at 61. Moreover, as discussed above regarding Kelli's third motion in limine, hospital policies are considered relevant evidence in medical malpractice cases in Mississippi and the Fifth Circuit and may be properly introduced as evidence of the standard of care. For these reasons, BMH-D's fifth ground will be denied—however, experts will be held to the opinions disclosed in their reports.

         vi. Sixth Ground

         BMH-D moves to exclude evidence of violations of regulations governing patient rights because Kelli “has not disclosed any expert testimony that BMH-D breached the standard of care through violating the requirements of federal regulations governing patient rights or linking such a breach to the cause of [Troy's] death.” Doc. #536 at 5-6 (internal quotation marks and emphasis omitted). In response, Kelli asserts that the motion is an untimely Daubert motion that should be denied on that basis. Doc. #567 at 1. Furthermore, Kelli argues that “the Federal Rules simply don't demand the specificity urged here by BMH[-D]” and BMH-D, in fact, violated its own policies. Id. at 3, 5-6.

         The Court agrees with Kelli that this filing is a veiled, untimely Daubert motion—as it is challenging the standard of care and causation testimony of Kelli's expert witnesses—and that her amended complaint provided sufficient notice to BMH-D regarding her claim and the applicability of BMH-D policies. See Doc. #107 at 60-61. Moreover, as discussed above regarding Kelli's third motion in limine, hospital policies are considered relevant evidence and may be properly introduced as evidence of the standard of care. For these reasons, BMH-D's sixth ground will be denied.

         vii. Seventh Ground

         BMH-D moves to exclude expert opinions on Haldol and Ativan on two grounds: “(1) Mr. Goode should have been monitored after the administration of Haldol and Ativan for respiratory and cardiac status changes; and (2) Mr. Goode's death was caused, in part, by the administration of Haldol and Ativan.” Doc. #536 at 6. In response, Kelli asserts that the motion is an untimely Daubert motion that should be denied on that basis and that “[t]he failure to appropriately monitor a patient in restraints is mentioned throughout the Amended Complaint.” Doc. #567 at 6-7 Like those above, this submission is plainly a veiled, untimely Daubert challenge. Moreover, the Court has already issued an order addressing Oliver's Daubert challenge to expert testimony on Haldol and Ativan here. In that order, the Court precluded one of Kelli's medical causation experts from offering causation opinions on Haldol and Ativan that had not been pled in the amended complaint. See Doc. #592 at 16-17. Thus, the relief sought by BMH-D has already been granted by the Court. However, no order of the Court has precluded testimony that Troy should have been monitored, as this claim is presented in the amended complaint. See Doc. #107 at 26. For these reasons, BMH-D's seventh motion ground will be denied.

         For the reasons above, this motion [535] is DENIED.

         B. BMH-D's Second Motion in Limine [537]

         In this four subpart motion, BMH-D moves to exclude at trial evidence and argument as to: “(1) 42 C.F.R. § 482.13; (2) the Plaintiff's unsupported argument that BMH-D lacked policies, failed to train its employees, and/or wrongfully trained its employees as the requirements of 42 C.F.R. § 482.13; (3) that BMH-D violated its own ‘protocol' [and] ‘policies.'” Doc. #538 at 2. Each exclusion moved for by BMH-D will be addressed in turn.

         i. First Ground

         BMH-D argues that opinions offered by Kelli's designated standard of care expert Mark Fowler, M.D., “that 42 C.F.R. § 482.13 required BMH-D to monitor one-to-one Mr. Goode while in restraints [should be excluded because] this alleged breach of the standard of care is not set forth in the Amended Complaint or any of her expert disclosures.” Id. BMH-D argues these opinions should be excluded as irrelevant or, alternatively, under Federal Rule of Evidence “because the probative value ...


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