United States District Court, D. Utah
ORDER ON EVIDENTIARY MOTIONS
Waddoups United States District Judge
the court are Plaintiff's Motion in Limine to
Exclude Part of Dr. Laurene Joseph's Testimony (ECF No.
64) and Motion in Limine to Exclude Dr. Dennis
Lee's Written Opinions (ECF No. 65), as well as
Defendant's Motion in Limine to Exclude Hearsay
Statements of Penny Johnson (ECF No. 66) and Motion to
Preclude Portion of Kelly Stapley's Testimony (ECF No.
77). At a Final Pretrial Conference held on October 18, 2019,
the court heard argument, made findings, and issued rulings
on each motion. This written order substantiates the
court's oral rulings. Each motion will be discussed in
Plaintiff's Motion in Limine to Exclude Part of Dr.
Laurence Joseph's Testimony
seeks to prevent Dr. Laurence Joseph (“Dr.
Joseph”) from testifying whether she reviewed Conrad
Jahries's (“Mr. Jahries”) medical records or
talked to Mr. Jahries's family or primary care physician
before she prepared part of Mr. Jahries's death
certificate. Dr. Joseph performed a medical evaluation on Mr.
Jahries on October 16, 2015, the day before he died. At her
deposition, Dr. Joseph testified that she could not remember
whether she had Mr. Jahries's treatment records or spoke
with his family but stated that she did not have any reason
to doubt that she followed her normal practice of obtaining
such information in this case. (ECF No. 64-1, at 16:6-19,
25:11-25, 42:1-12). Plaintiff asserts that Dr. Joseph should
be barred from offering such testimony at trial under Rule
702 of the Federal Rules of Evidence because it is
speculative and thus inappropriate to be offered by an expert
witness and under Rule 403 because it could confuse the jury.
Motion in Limine to Exclude Part of Dr. Laurene
Joseph's Testimony (ECF No. 64) is GRANTED IN
PART. While Dr. Joseph is permitted to testify as to
her normal practice, she is PRECLUDED from
testifying, or speculating, that she followed that practice
in regards to Mr. Jahries.
Plaintiff's Motion in Limine to Exclude Dr. Dennis
Lee's Written Opinions
seeks to exclude a claim log that contains, among other
statements, a summary of Dr. Dennis Lee's (“Dr.
Lee”) review, and opinion, of Mr. Jahries's medical
history (the “Claim Log”). (ECF No. 65-1).
Defendant originally intended to call Dr. Lee to testify at
trial as an expert witness, but he subsequently became
unavailable. As such, by order entered August 20, 2019 (ECF
No. 63), the court allowed Defendants to substitute Dr. Flyer
as its expert witness. Plaintiff argues that it would be
unduly prejudicial to allow Defendant to put Dr. Flyer on the
stand and also admit the opinion of Dr. Lee. Defendant
asserts that it does not intend to admit the Claim Log to
establish Mr. Jahries's cause of death, but rather to
rebut Plaintiff's claim that it did not diligently
investigate Plaintiff's claim.
Motion in Limine to Exclude Dr. Dennis Lee's
Written Opinions (ECF No. 65) is GRANTED IN
PART. While Defendant may present that it received
advice from Dr. Lee, it is PRECLUDED from
presenting the content of that advice. Defendant is to
propose an instruction or stipulation regarding the means by
which it intends to proceed on this issue.
Defendant's Motion in Limine to Exclude Hearsay
Statements of Penny Johnson
May 8, 2019 Memorandum Decision and Order Denying in Part and
Granting in Part Motion to Exclude Testimony of Dr. Rothfeder
(ECF No. 49), the court ruled that statements of Nurse
Johnson, made through her written memo (ECF No. 32-3)
(“the Memo”) and a conversation she had with Dr.
Rothfeder (ECF No. 32-4) (“the Statements to
Rothfeder”), were hearsay but declined to exclude them
at that time, as it could not “rule as a matter of law
that [they] would not be admitted under either Rule 804 or
807.” Defendant moves to exclude Nurse Johnson's
statements, as well as the notes Dr. Rothfeder took
memorializing the Statements to Rothfeder (the
“Rothfeder Note”), asserting that neither Rule
804(b)(4) nor 807 applies.
Motion in Limine to Exclude Hearsay Statements of
Penny Johnson (ECF No. 66) is DENIED. After
reviewing the arguments of counsel, the court now concludes
that Nurse Johnson's statements are not admissible under
Rule 804(b)(4). The court, however, remains unable to
determine if those statements are admissible under Rule 807.
As such, it will RESERVE RULING on the
admissibility of the Memo, the Statements to Rothfeder, and
the Rothfeder Note until the same are offered at trial. As
indicated at the Final Pretrial Hearing, the court is
inclined to allow the admission of the Memo and the
Statements to Rothfeder but exclude the Rothfeder Note.
Defendant's Motion to Preclude Portion of Kelly
Plaintiff's Memorandum Opposing Motion to Exclude Hearsay
Statements of Penny Johnson (ECF No. 68), Plaintiff
represented that Ms. Stapley “will testify at trial
that she was the first family member to arrive after her
father died and she saw him in an unusual position on the
floor at the bathroom doorway when she arrived” and
that Mr. Jahries's position was “similar to the
description in Nurse Johnson's statements to Dr.
Rothfeder.” Defendant argues that such testimony should
be precluded pursuant to Rule 37(c) of the Federal Rules of
Civil Procedure because Plaintiff failed to disclose its
existence in her Initial Disclosure and discovery responses.
Motion to Preclude Portion of Kelly Stapley's Testimony
(ECF No. 77) is DENIED. At the Final
Pretrial Hearing, the court found that the weight of the four
factors set forth in Woodworker's Supply, Inc. v.
Principal Mut. Life Ins. Co.,170 F.3d 985 (10th Cir.
1999) establishes that Plaintiffs September 9, 2016
disclosure of Ms. ...