Chaudhry v. Smith ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PERVAIZ A. CHAUDHRY, M.D., et al., Case No. 1:16-cv-01243-SAB 12 Plaintiffs, ORDER RE MOTIONS IN LIMINE 13 v. (ECF Nos. 90, 91, 92, 93) 14 DR. KAREN SMITH, 15 Defendant. 16 17 I. 18 BACKGROUND 19 Pervaiz A. Chaudhry, M.D., and Valley Cardiac Surgery Medical Group (“Plaintiffs’) 20 filed this civil rights action pursuant to 42 U.S.C. § 1983 in Fresno County Superior Court on 1 21 June 17, 2016. (Compl., ECF No. 1 at 10-30. ) Plaintiff Chaudhry, a cardiac surgeon, performed 22 cardiac surgery on a patient who went into cardiac arrest and suffered hypoxic brain injury. An 23 anonymous complaint was lodged with the California Department of Public Health (“CDPH”) 24 alleging that Plaintiff Chaudhry left the operating room while the patient’s chest was still open 25 and left the hospital before the surgery was completed. Plaintiffs allege that their due process 26 rights were violated due the investigation and subsequent findings on the complaint. 27 1 All references to pagination of specific documents pertain to those as indicated on the upper right corners via the 28 CM/ECF electronic court docketing system. 1 1 On August 19, 2016, Defendants Karen Smith,2 Steven Lopez, Eric Creer, Shirley 2 Campbell, and Deidre Kappmeyer removed the action to the Eastern District of California. (ECF 3 No. 1.) Following summary judgment, this action is proceeding against Dr. Karen Smith in her 4 official capacity, Steven Lopez in his individual capacity, and Shirley Campbell in her individual 5 capacity (“Defendants”) on allegations of violations of due process. 3 (ECF Nos. 56, 60). The 6 matter is set for trial on May 11, 2020 before the undersigned. (ECF No. 95.) 7 Currently before the Court are the parties’ motions in limine, filed January 17, 2020. 8 (ECF Nos. 90, 91.) Oppositions to the motions were filed on January 31, 2020. (ECF No. 92, 9 93.) A hearing on the motion was held on February 7, 2020. Counsel Thornton Davidson and Ty 10 Kharazi appeared for Plaintiffs and counsel Diana Esquivel appeared for Defendants. Having 11 considered the moving and opposition papers, the declarations and exhibits attached thereto, 12 arguments presented at the February 7, 2020 hearing, as well as the Court’s file, the Court issues 13 the following order. 14 II. 15 LEGAL STANDARD 16 “A motion in limine is a procedural mechanism to limit in advance testimony or evidence 17 in a particular area.” United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009). A party may 18 use a motion in limine to exclude inadmissible or prejudicial evidence before it is actually 19 introduced at trial. See Luce v. United States, 469 U.S. 38, 40 n.2 (1984). “[A] motion in limine 20 is an important tool available to the trial judge to ensure the expeditious and evenhanded 21 management of the trial proceedings.” Jonasson v. Lutheran Child and Family Services, 115 F.3d 22 436,440 (7th Cir. 1997). A motion in limine allows the parties to resolve evidentiary disputes 23 before trial and avoids potentially prejudicial evidence being presented in front of the jury, 24 thereby relieving the trial judge from the formidable task of neutralizing the taint of prejudicial 25 evidence. Brodit v. Cambra, 350 F.3d 985, 1004-05 (9th Cir. 2003). 26 Judges have broad discretion in ruling on a motion in limine. Jenkins v. Chrysler Motors 27 2 Karen Smith was named as a defendant for the purposes of obtaining injunctive and declaratory relief. 28 3 Defendant Kappmeyer has been terminated from this action at the stipulation of the parties. (ECF Nos. 59, 60.) 2 1 Corp., 316 F.3d 663, 664 (7th Cir. 2002) ); see also United States v. Torres, 794 F.3d 1053, 1059 2 (9th Cir. 2015) (motion in limine rulings are reviewed for abuse of discretion). Evidence should 3 not be excluded on a motion in limine unless it is inadmissible on all potential grounds. 4 McConnell v. Wal-Mart Stores, Inc., 995 F.Supp.2d 1164, 1167 (D. Nev. 2014); United States v. 5 Hitesman, No. 14-CR-00010-LHK-1, 2016 WL 3523854, at *2 (N.D. Cal. June 28, 2016). Unless 6 this high standard is met, ruling on the motion in limine should be denied until trial so that the 7 evidence can be considered in its proper context. McConnell, 995 F.Supp.2d at 1167; Hitesman, 8 2016 WL 3523854, at *2; see also Jonasson, 115 F.3d at 440 (Some evidentiary issues are not 9 accurately and efficiently evaluated by the trial judge in a motion in limine and it is necessary to 10 defer ruling until during trial). 11 III. 12 DISCUSSION 13 Plaintiffs bring twelve motions in limine: 1) exclude any mention of the results of the 14 lawsuit in Arteaga v. Fresno Community Regional Medical Center (hereafter “Perez”),4 other than 15 approved deposition testimony; 2) exclude any deposition testimony from Perez unless the parties 16 have met and agreed upon the portion to be read; 3) allow Plaintiffs to show negative print and 17 television news coverage of Plaintiff Chaudhry; 4) exclude Defendants’ rebuttal witnesses; 5) 18 exclude any mention of Plaintiff Chaudhry’s prior alcohol use; 6) exclude any evidence that 19 Plaintiff Chaudhry left the operating room while Mr. Perez was unstable; 7) exclude evidence of 20 other lawsuits filed involving Plaintiff Chaudhry or his medical practice; 8) exclude all evidence 21 related to other non-medical lawsuits involving Dr. Chaudhry or his medical practice; 9) exclude 22 Defendants from stating that the closure of Mr. Perez by Physicians Assistant (“PA”) Bella 23 Albakova was not within the standard and accepted medical care; 10) permit Plaintiffs to inquire 24 into the identity of the persons who refused to modify the “incorrect” CDPH 2567; 11) allow 25 Plaintiffs’ percipient witnesses to testify; and 12) preclude any evidence that Plaintiff Chaudhry 26 4 The family of Mr. Perez filed a lawsuit, Arteaga v. Fresno Community Regional Medical Center, No. 27 13CECG03906 (Fresno County Superior Court), arising from the April 2, 2012 surgery Plaintiff Chaudhry performed. Plaintiffs refer to the lawsuit as the Alvarez suit and Defendants refer to it as the Perez lawsuit as the 28 plaintiffs there have various or different last names. The Court shall refer to the suit by the patient’s last name, Perez. 3 1 and PA Albakova had a personal relationship or that Plaintiff Chaudhry was involved in an extra- 2 marital affair. 3 Defendants bring seven motions in limine: 1) exclude evidence of the revocation of 4 Defendant Lopez’ medical license and his prior convictions; 2) exclude communications between 5 Plaintiffs’ attorneys and CDPH staff concerning amendment of the report; 3) exclude testimony of 6 non-retained experts; 4) exclude testimony from Plaintiff Chaudhry and his lay witnesses 7 regarding his economic loss and any causal connection between the report and the reduction in 8 revenue; 5) exclude media, news, and internet comments about Plaintiffs; 6) exclude any 9 document that Plaintiffs have not timely disclosed; and 7) preclude Plaintiffs from relitigating the 10 negligence cause of action tried and determined in Perez. 11 A. Perez Lawsuit 12 The parties bring numerous motions in limine pertaining to the state lawsuit in which 13 Plaintiff Chaudhry was found liable based on his treatment of Mr. Perez. These motions seek to 14 either allow or preclude evidence based on its relevance, unfair prejudice, or confusion to the jury. 15 The Federal Rules of Civil Procedure provide that generally relevant evidence is admissible at 16 trial. Fed. R. Evid. 402. “Evidence is relevant if: (a) it has any tendency to make a fact more or 17 less probable than it would be without the evidence; and (b) the fact is of consequence in 18 determining the action.” Fed. R. Evid. 401. Relevant evidence can be excluded “if its probative 19 value is substantially outweighed by a danger of one or more of the following: unfair prejudice, 20 confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting 21 cumulative evidence.” Fed. R. Evid. 403. 22 1. Motion to exclude reference to the Perez lawsuit 23 Plaintiffs’ first motion in limine seeks to exclude any references to the Perez lawsuit, other 24 than approved deposition testimony. Plaintiffs contend that permitting any reference, other than 25 the approved deposition testimony, would be extremely confusing to the jury and highly 26 prejudicial to Plaintiffs. Plaintiffs contend that the prior lawsuit was fundamentally different as 27 that jury was asked to determine whether Plaintiff Chaudhry committed malpractice while this 28 lawsuit is determining whether the defendants conducted a proper investigation and unjustly 4 1 deprived Plaintiff Chaudhry of his civil rights. Plaintiffs also seek to exclude Mr. Perez’s wife 2 and son as witnesses in this action because their testimony is irrelevant to the issues in this case 3 and their testimony would be highly prejudicial concerning their relative’s case. 4 Defendants oppose the motion on the ground that certain information regarding Perez is 5 relevant and its probative value outweighs any prejudice to Plaintiffs. For example, Defendants 6 argue that although Plaintiffs seek to exclude the testimony of Mr. Perez’s wife and son such 7 testimony is relevant as to how the family found out about Plaintiff Chaudhry’s conduct in the 8 operating room and why they filed their lawsuit. Defendants state that Plaintiffs intend to argue 9 that the lawsuit was filed due to the State 2567 report, but the family has testified that they were 10 informed of the conduct from an anonymous caller which led to the filing of the lawsuit. Further, 11 Defendants argue that the fact that the jury returned a 60-million-dollar verdict against Plaintiff 12 Chaudhry is relevant to the cause of his emotional distress and any aggravation of his cluster 13 headaches. Defendants agree that much of the evidence from Perez is not relevant and should be 14 excluded, but contend that a wholesale exclusion of evidence is not permissible. Defendants 15 argue that ruling on evidence from the Perez lawsuit should be deferred until during trial when the 16 Court can determine whether it is relevant to an issue that the jury must decide. 17 Rule 404(b) provides that evidence of other acts is admissible for a purpose other than to 18 prove character, “such as proving motive, opportunity, intent, preparation, plan, knowledge, 19 identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). Generally speaking, 20 evidence of other lawsuits against a party is admissible where relevant and offered for a proper 21 purpose under Rule 404(b). Jackson v. Fed. Express, No. CV1001760MMMCWX, 2011 WL 22 13268074, at *2 (C.D. Cal. June 13, 2011); see also Engquist v. Oregon Dep’t of Agric., 478 F.3d 23 985, 1009 (9th Cir. 2007), aff’d sub nom. Engquist v. Oregon Dep’t of Agr., 553 U.S. 591 (2008) 24 (“A state court judgment is relevant evidence and therefore admissible in a later federal suit so 25 long as the judgment has some tendency to prove a fact in issue.”). 26 Plaintiffs rely on Engquist to argue that the Court should exclude any mention of the Perez 27 case other than the deposition testimony agreed to by the parties citing the following excerpt: 28 / / / 5 1 Commentators agree that most courts forbid the mention of verdicts or damage amounts obtained in former or related cases. See 75A AM. JUR.2d Trial § 628; 2 D.C. Barrett, Propriety and prejudicial effect of reference by counsel in civil case to result of former trial of same case, or amount of verdict therein, 15 A.L.R.3d 3 1101 (summarizing cases). Moreover, in a case similar to the one at bench, the Third Circuit “disapprove[d]” of the introduction of a prior verdict against the 4 same defendant, because “[a] jury is likely to give a prior verdict against the same defendant more weight than it warrants.” Coleman Motor Co. v. Chrysler Corp., 5 525 F.2d 1338, 1351 (3d Cir. 1975). The court specifically noted that “admission of a prior verdict creates the possibility that the jury will defer to the earlier result.” 6 Id. 7 Engquist, 478 F.3d at 1009-10. The Court finds Plaintiffs reliance on Engquist to be misplaced 8 for several reasons. 9 First, the Engquist court went on to state, “[t]his conclusion runs counter to our conclusion 10 in [United States v. Boulware, 384 F.3d 794 (9th Cir. 2004), cert. denied, 546 U.S. 814 (2005)] 11 that a prior state court judgment was admissible under Rule 403 balancing.” Engquist, 478 F.3d 12 at 1010. In Boulware, the state court judgment could be used to rebut the government’s argument 13 that the defendant owed the money that had been given to his girlfriend. Id. Under such 14 circumstances, the trial judge could easily have controlled any danger that the jury would give 15 undue weight to the judgment and controlled any waste of time or confusion of the issues. Id. 16 Therefore, there are instances where a prior case, including the verdict or damages, are relevant 17 and admissible. 18 Second, Plaintiffs are not solely seeking to exclude the verdict and amount of damages 19 awarded, but any mention of the case other than deposition testimony agreed upon by the parties. 20 While the issue that was decided by Perez is different from that to be decided here, Defendants 21 argue that the verdict and award in Perez are relevant to the cause of Plaintiff Chaudhry’s 22 emotional distress and any aggravation of his cluster headaches and to show that these damages 23 were not caused by the report that was published. Additionally, if Plaintiffs present evidence that 24 the Perez family filed their lawsuit because of the report, the testimony of the Perez family would 25 be relevant to show why they filed the action. Depending on the testimony presented at trial, the 26 Perez lawsuit may be relevant to Plaintiffs’ damages in this action. 27 Plaintiffs’ have not shown that the Perez lawsuit is inadmissible in this matter on all 28 potential grounds. The Court shall address specific objections to evidence from the Perez case as 6 1 it arises during the trial of this matter so that the evidence can be considered in its proper context. 2 Hitesman, 2016 WL 3523854, at *2; Jonasson, 115 F.3d at 440. 3 Plaintiffs’ motion in limine no. 1 to exclude any references to Perez is denied. 4 2. Deposition testimony from Perez unless the parties have met and agreed upon the portion to be read 5 Plaintiffs’ second motion in limine seeks an order for the parties to meet and confer before 6 trial to agree on the portions of the depositions to be read to the jury. Defendants counter that this 7 motion is contrary to the stipulation of the parties that the depositions taken in the Perez case of 8 Albakova, Bhatt, Campbell, Chaudhry, Davis, Dhillon, Yussif, McComb, and Martin will be 9 treated as though they were depositions taken in this action. Defendants argue that the pretrial 10 order sets forth the procedure for the use of deposition testimony and the admissibility of such 11 testimony should be determined under the Federal Rules of Evidence. 12 Here, the parties have stipulated that certain depositions taken in the Perez case shall be 13 treated as though they were taken in this action. (Pretrial Order 22, ECF No. 88.) The Court will 14 not require the parties to meet and confer on the specific deposition testimony to be read at trial. 15 The parties are directed to pages 40 to 41 of the pretrial order filed December 4, 2019 for the 16 requirements of designation and the counter designation of deposition testimony to be used at 17 trial. Plaintiffs’ motion in limine no. 2 to require the parties to meet and confer over the 18 deposition testimony to be offered at trial is denied. 19 B. Negative Print and Television News Coverage of Plaintiff Chaudhry 20 Contrary to other motions brought by Plaintiffs to exclude evidence of the lawsuits filed 21 against Plaintiff Chaudhry, Plaintiffs’ third motion in limine seeks to admit negative news media 22 coverage regarding the State 2567 Report, the Perez lawsuit and other lawsuits filed against 23 Plaintiff Chaudhry. Plaintiffs seek to show two television news reports and seven print articles to 24 the jury arguing that it is essential that they be able to admit this evidence to demonstrate the 25 stigmatizing effect of the report. At issue here are nine items listed in Plaintiffs’ evidence list as 26 numbers 22 through 30. 27 22. Video of Nancy Grace story; 28 23. Video of ABC Local News; 7 1 24. Article from ABC 30, titled “Fresno family says CRMC is covering up malpractice”, dated January 8, 2014; 2 25. Article from ABC 30, Prominent Fresno surgeon facing lawsuits defends himself, dated August 29, 2014; 3 26. Article from Litverse.com, 10 Nightmarish breaches of trust by health care professionals, dated August 23, 2015; 4 27. Article from Daily Mail, A patient has been left in a vegetative state after his doctor walked out in the middle of his open-heart surgery to attend a lunch, a 5 lawsuit has claimed, dated January 15, 2014; 28. Article from the Fresno Bee, Accusations mount against Fresno doctor accused of 6 leaving surgery, dated March 1, 2014; 29. Article from the Huffington Post, Dr. Pervaiz Chaudhry Allegedly left surgery to 7 have lunch, leaving patient brain damaged, dated January 15, 2014; 30. Article from the New York Daily News, Patient brain-damaged after doctor goes 8 to lunch: Suit, dated January 16, 2014[.] 9 (Pretrial Order 33, ECF No. 88.) 10 Defendants counter that this evidence is inadmissible hearsay, is irrelevant, and contains 11 sensational and inflammatory statements that were not made by any party and should be excluded 12 under Rule 403. Defendants argue that neither of the television reports mention the State 2567 13 report nor do the reports attribute any statements to the defendants. Defendants contend that the 14 stigmatizing statements contained in the media reports came from third parties and not the State 15 2567 report. 16 Defendants’ fifth motion in limine seeks to preclude Plaintiffs from offering news articles, 17 media reports and internet comments made about Plaintiff Chaudhry after the publication of the 18 State 2567 report. Defendants contend that the media reports and comments are inadmissible 19 hearsay for which no hearsay exception exists and some of the reports are too remote in time to be 20 considered the cause of Plaintiffs’ harm. Further, Defendants argue that the reports do not contain 21 any statements made by Defendants but are the reporter’s interpretation of the report or statements 22 made by third parties that cannot be attributed to the defendants. Defendants also contend that the 23 stigmatizing statements did not come from the State 2567 report, but from the Perez family and 24 their lawsuit against Plaintiff Chaudhry. 25 Plaintiffs counter that evidence of the television and print media reports are essential to 26 their claim and would be used to prove that the contents of the State 2567 report were 27 disseminated to the public with the likely consequence that Plaintiff Chaudhry would be fired 28 which is exactly what happened. Further, Plaintiffs contend that the reports are not obviously 8 1 prejudicial to either party because the jury could draw a negative opinion of Plaintiff Chaudhry 2 from the reports or could find that the reports damaged his reputation unfairly. Plaintiffs state 3 they are willing to take the calculated risk which offsets any prejudicial impact. 4 1. Legal Standard for Stigma-Plus Claim 5 “The procedural due process rights of the Fourteenth Amendment apply only when there 6 is a deprivation of a constitutionally protected liberty or property interest.” WMX Techs., Inc. v. 7 Miller (“WMX II”), 197 F.3d 367, 373 (9th Cir. 1999). The Supreme Court has made it clear that 8 that reputation alone is not an interest protected by the constitution. WMX II, 197 F.3d at 373; 9 see Paul v. Davis, 424 U.S. 693, 706 (1976) (“the Court has never held that the mere defamation 10 of an individual, whether by branding him disloyal or otherwise, was sufficient to invoke the 11 guarantees of procedural due process absent an accompanying loss of government employment”). 12 “[R]eputational harm alone does not suffice for a constitutional claim.” Miller v. California, 355 13 F.3d 1172, 1178 (9th Cir. 2004). Absent a change in status, “any harm or injury to that interest . . 14 . inflicted by an officer of the State, does not result in a deprivation of any ‘liberty’ or ‘property’ 15 recognized by state or federal law.” Paul, 424 U.S at 712. Courts refer to this as the “stigma- 16 plus” test. 17 To prove a stigma-plus claim under § 1983, the plaintiff “must show that the stigma was 18 accompanied by some additional deprivation of liberty or property.” Miller, 355 F.3d at 1178. 19 Under the “stigma-plus” test, Plaintiffs must demonstrate the loss of a recognizable property or 20 liberty interest in conjunction with the allegation that they suffered injury to reputation. Miller, 21 355 F.3d at 1179; Cooper v. Dupnik, 924 F.2d 1520, 1532 (9th Cir. 1991), rev’d on other 22 grounds, 963 F.2d 1220, 1235 n.6 (9th Cir. 1992)). A plaintiff can meet this test by showing that 23 “injury to reputation was inflicted in connection with a federally protected right” or that “injury to 24 reputation caused the denial of a federally protected right.” Herb Hallman Chevrolet, Inc. v. 25 Nash–Holmes, 169 F.3d 636, 645 (9th Cir. 1999); Cooper, 924 F.2d at 1532-33. 26 Additionally, the “stigma-plus” test requires that the defamation be accompanied by an 27 injury directly caused by the state, rather than an injury caused by the act of some third party in 28 reaction to the State’s defamatory statements. Mazzeo v. Gibbons, 649 F.Supp.2d 1182, 1197 (D. 9 1 Nev. 2009); Douglas v. Oregonian Pub. Co., 465 F. App’x 714, 715 (9th Cir. 2012) 2 (unpublished); Ooley v. Citrus Heights Police Dep’t, 603 F. App’x 628, 629 (9th Cir. 2015) 3 (unpublished). Plaintiff must also prove that he did not receive due process. Ulrich v. City & 4 Cty. of San Francisco, 308 F.3d 968, 982 (9th Cir. 2002); Wisconsin v. Constantineau, 400 U.S. 5 433, 436 (1971). To prevail on their stigma-plus claim, Plaintiffs must prove that the defendants’ 6 statements were substantially false. Campanelli v. Bockrath, 100 F.3d 1476, 1484 (9th Cir. 7 1996). 8 2. Plaintiffs’ Motion to Admit Media Reports 9 a. Proof of publication 10 Relying on Baldwin v. Cutting, No. 3:16-CV-903-L-KSC, 2018 WL 6523040, at *2 (S.D. 11 Cal. Dec. 12, 2018), Plaintiffs argue that the media reports are essential to prove that there was 12 significant public disclosure of the stigmatizing statements in the State 2567 report, but 13 Defendants do not dispute that there was public disclosure of the State 2567 report or that it was 14 generally known that the statements were about Plaintiff Chaudhry.5 Defendants dispute that the 15 State 2567 report contained stigmatizing or materially false statements and that Plaintiffs suffered 16 a deprivation of a property or liberty interest as a result of anything that Defendants did or failed 17 to do. 18 In Baldwin, the plaintiff, a border patrol agent, was interviewed during an investigation 19 into a leak of a different investigation with a relative of one of his friends. Baldwin, 2018 WL 20 6523040, at *1. The friend’s phone was tapped and messages from the plaintiff were intercepted 21 which were the subject of his interview. Id. His supervisors were provided with a report that he 22 was uncooperative and not forthcoming during the interview. Id. As a result of the report, he was 23 transferred to another border patrol station with downgraded duties and was no longer able to be 24 assigned to other task forces at the investigating agencies request because the agency no longer 25 considered him trustworthy. Id. at *2. He filed a suit alleging first amendment and stigma-plus 26 claims based upon the agency report alleging that the allegations against him were unfounded and 27 5 Stigmatizing statements need not name the plaintiff to be actionable, so long as the surrounding circumstances make clear that the statement makes particular reference to the individual. Tibbetts v. Kulongoski, 567 F.3d 529, 537 (9th 28 Cir. 2009). 10 1 that there were errors in collecting evidence during the investigation. Id. 2 In his stigma-plus claim, the plaintiff alleged that his rights had been violated by providing 3 a false report to his employer which led to the impairment of his reputation for honesty and 4 morality. Baldwin, 2018 WL 6523040, at *1. The defendants filed a motion to dismiss in which 5 the court found, as relevant here, that the plaintiff had not alleged that the stigmatizing charge was 6 publicly disclosed because the disclosure was within or between government agencies and was 7 not a public disclosure. Id. at *4. 8 Plaintiffs’ reliance on Baldwin is misplaced because here the State 2567 report was 9 publicly disclosed when it was published to the DHPS website. See 10 https://www.cdph.ca.gov/Programs/CHCQ/LCP/Pages/Hospital-Administrative-Penalties-by- 11 Year.aspx#2013, Community Regional Medical Center (last visited 2/13/20). The public 12 disclosure of the report is not a disputed issue in this case. 13 Plaintiffs argued in their opposition and at the February 7, 2020 hearing that these media 14 reports and the lawsuits are all relevant to demonstrate the “domino effect” of the State 2567 15 report. Circuits are split and the Ninth Circuit has not directly decided whether the “stigma” and 16 “plus” must be committed by the same government actor. Eberhard v. California Highway Patrol, 17 73 F.Supp.3d 1122, 1130 (N.D. Cal. 2014). But District Judge O’Neill found that “the Ninth 18 Circuit has recognized that in the context of § 1983 claims, ‘[t]he requisite causal connection can 19 be established not only by some kind of direct personal participation in the deprivation but also by 20 setting in motion a series of acts by others which the actor knows or reasonably should know 21 would cause others to inflict the constitutional injury.’ ” (Memo. Decision and Order Re Defs.’ 22 Mot. to Dismiss 12, ECF No. 12.) Therefore, Judge O’Neill found that the allegation that 23 Plaintiff was removed from his position at CRMC due to the publication of the State 2567 report 24 was sufficient to state a stigma-plus claim.6 (Id.) Under the “law of the case” doctrine, “a court is 25 6 In dicta in Cooper, the Ninth Circuit stated that the position that the stigma and plus must be committed by the same actor makes better law and is truer to Paul. 924 F.2d at 1534. See also Ebergard, 73 F.Supp.3d at 1131-32 (the court 26 determined “that the ‘stigma’ and ‘plus’ must be committed by the same state actor to state a due process claim with respect to claims against individual government officials. Permitting a ‘stigma-plus’ claim solely where (as the 27 Second Circuit would allow) the ‘stigma’ and the ‘plus’ merely appear to a reasonable observer to be connected to an injury would result in a government actor being liable under Section 1983 solely because of the actions of other 28 government actors, even when she did not herself participate in those actions. That casts too broad a net. Requiring a 11 1 generally precluded from reconsidering an issue that has already been decided by the same court, 2 or a higher court in the identical case.” United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 3 1997) (quoting Thomas v. Bible, 983 F.2d 152, 154 (9th Cir.) (cert. denied 508 U.S. 951 (1993).) 4 Accordingly, evidence that would tend to prove or disprove that CRMC removed Plaintiff from 5 his position because of the State 2567 report is relevant in this matter. 6 Courts recognize that termination of an employee from public employment caused by 7 defamatory statements are sufficient to meet the plus component of the stigma-plus test. 8 Patterson v. City of Utica, 370 F.3d 322, 330 (2d Cir. 2004); Segal v. City of New York, 459 F.3d 9 207, 212 (2d Cir. 2006); Hill v. Borough of Kutztown, 455 F.3d 225, 238 (3d Cir. 2006); see also 10 Valmonte v. Bane, 18 F.3d 992, 1002 (2d Cir. 1994) (finding plus where defamatory publication 11 created a statutory impediment to employment). Not all circuits require the stigma and plus to be 12 committed by the same actor. Velez v. Levy, 401 F.3d 75, 89 (2d Cir. 2005). 13 That termination from employment has been found to support a stigma-plus claim does 14 not mean that all harm that results after the publishing of a defamatory statement is sufficient to 15 support a stigma-plus claim. Specifically, the harm must be inflicted in connection with a 16 federally protected right or the injury to reputation needs to have caused the denial of a federally 17 protected right. Herb Hallman Chevrolet, Inc, 169 F.3d at 645; Cooper, 924 F.2d at 1532-33. 18 Plaintiffs here seem to be alleging injury due to malpractice actions filed against them in state 19 court. However, the filing of a civil action against Plaintiffs does not implicate any federal or 20 state rights. While the First Amendment provides the right for access to the court, there is no 21 federal or state right not to be sued. The filing of lawsuits by third parties against Plaintiffs does 22 not meet the “plus” in the stigma-plus test. 23 Further, the injury must be directly caused by the state, rather than an injury caused by 24 the act of some third party in reaction to the State’s defamatory statements. Mazzeo, 649 25 F.Supp.2d at 1197; Douglas, 465 F. App’x at 715; Ooley, 603 F. App’x at 629; WMX Techs., Inc. 26 v. Miller (“WMX I”), 80 F.3d 1315, 1320 (9th Cir. 1996), on reh’g en banc, 104 F.3d 1133 (9th 27 closer degree of coincidence is also more consistent with Iqbal’s teaching that “’a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution. Iqbal, 28 556 U.S. at 676, 129 S.Ct. 1937.”). 12 1 Cir. 1997). To the extent that Plaintiff is attempting to show that his reputation was damaged by 2 the media reports of the lawsuits that were filed after the State 2567 report was issued and the 3 reaction of third parties to these lawsuits, the “plus” cannot be based on the voluntary actions of 4 third parties. URI Student Senate v. Town of Narragansett, 707 F.Supp.2d 282, 298 (D.R.I. 5 2010), aff’d, 631 F.3d 1 (1st Cir. 2011) (even if catalyzed by government action, harm at the 6 hands of third parties cannot serve as “plus” factors); WMX II, 197 F.3d at 375 (“Damage to a 7 property interest must arise from affirmative conduct beyond the defamatory statements 8 themselves. Affirmative conduct includes revoking a right or changing a status held by the 9 plaintiff or taking direct action to prevent continued patronage of the business.”); Alvarez v. City 10 of San Bernardino, 414 F. App’x 964, 966 (9th Cir. 2011) (“Although patrons may be less likely 11 to patronize a company because of the defamation, this is a result of the damage to the business’s 12 reputation, not a deprivation of goodwill. Defendants did not deprive Plaintiffs of a right or 13 status, nor did they take action to prevent either banks or other cities from doing business with 14 Plaintiffs. The defamatory statements were no more than damage to business reputation, which is 15 not a cognizable § 1983 claim.”). Defendants here did not direct the third parties to file the 16 lawsuits nor did these lawsuits deprive Plaintiffs of a right or status. Lawsuits filed by third 17 parties cannot form the basis of Plaintiffs’ stigma-plus claim. 18 At the February 7, 2020 hearing, Plaintiff argued that the report and the alleged 19 defamatory statements were used during the Perez lawsuit. However, the verdict in the Perez 20 action was the result of the jury’s finding that Plaintiff Chaudhry acted negligently in treating Mr. 21 Perez and was not directly caused by the findings the defendants made in the report. 22 The Court rejects Plaintiffs’ argument that the lawsuits and media reports are relevant to 23 the stigma-plus claim because they show the “domino effect” of the statements. If such were the 24 law, then any defamatory statement that resulted in negative publicity would be sufficient to state 25 a stigma-plus claim. “The Due Process Clause does not, by its own force, extend individuals a 26 right to be free of injury wherever a state is characterized as the tortfeasor. The Fourteenth 27 Amendment is not a ‘font of tort law to be superimposed upon whatever systems may already be 28 administered by the States.’ ” WMX I, 80 F.3d at 1319 (citations omitted) (refusing to extend 13 1 constitutional protection to a possible and indirect impairment of business goodwill). 2 b. Termination of Employment 3 Plaintiffs argue that “it is essential that they be able to argue to the jury that significant 4 public disclosure of the stigmatizing statements in Defendants’ State 2567 report occurred and 5 that disclosure is sufficient to meet the requirements of the ‘stigma-plus’ test as a factual matter.” 6 (ECF No. 90 at 5.) In their opposition to Defendants’ motion to exclude the media reports, 7 Plaintiffs argue the media reports “would be shown to the jury simply to prove that the contents of 8 the State 2567 report were disseminated to the public with the likely consequence that Dr. 9 Chaudhry would be fired by CRMC, which is precisely what happened.” (ECF No. 92 at 9.) 10 There must be some temporal nexus between the stigmatizing statements and the 11 deprivation, and the statements cannot be too remote in time to be considered the cause of the 12 plaintiff’s harm. Campanelli, 100 F.3d at 1483 (seven to nine days not too remote; Tibbetts v. 13 Kulongoski, 567 F.3d 529, 538 (9th Cir. 2009) (sixteen months too remote). Defendants argue 14 that, since the media reports were published months to years after the report issued, Plaintiffs 15 cannot establish a temporal nexus between the stigmatizing statements and the deprivation 16 alleged. Plaintiffs seek to admit the media reports to show dissemination of the statements in the 17 State 2567 report which was issued on February 14, 2013. (ECF No. 93-2.) The media reports 18 sought to be admitted were published from February 14, 2013 through August 23, 2015. 19 Plaintiffs argue that evidence of the television and print media reports would be used to 20 prove that the contents of the State 2567 report were disseminated to the public with the likely 21 consequence that Plaintiff Chaudhry would be fired. Based on the allegations in the complaint. 22 Plaintiff Chaudhry was removed from his position as medical director at CRMC on July 27, 2012, 23 prior to the publication of the State 2567 report and prior to the publication of the media reports. 24 (Compl. ¶ 28.) The Court finds that Plaintiffs have not demonstrated that the media reports are 25 relevant to the issue of whether Plaintiff Chaudhry was fired from his position at CRMC due to 26 the publication of the State 2567 report. 27 c. Proof of Damages 28 While somewhat unclear, it appears that Plaintiffs may be seeking to admit the media 14 1 reports for the purpose of showing that the state report was the cause of his economic loss. “Most 2 defamation plaintiffs attempt to show some sort of special damage and out-of-pocket loss which 3 flows from the injury to their reputation. But so long as such damage flows from injury caused by 4 the defendant to a plaintiff’s reputation, it may be recoverable under state tort law but it is not 5 recoverable in a [federal] action.” Siegert v. Gilley, 500 U.S. 226, 234 (1991). To the extent that 6 third parties brought suits based upon Plaintiff Chaudhry’s alleged malpractice, his practice 7 declined because patients did not seek him out, or he lost contracts due to negative publicity such 8 damages would not be directly caused by the defendants. The lawsuits were filed based on 9 Plaintiff Chaudhry’s treatment of the specific patient even if the individual discovered the 10 malpractice based on the state report. Ooley, 603 F. App’x at 629 (“the reactions of third parties 11 to remarks made by the government do not constitute state action”); WMX I, 80 F.3d at 1319 12 (defamatory remarks made to the public generally which allegedly injured the plaintiffs’ business 13 reputation do not support a stigma-plus claim). Plaintiffs have not demonstrated that the media 14 reports would be admissible as proof of damages in this action. 15 3. Defendants Motion to Exclude Media Reports 16 a. Hearsay 17 Defendants move to exclude the media reports on the ground that they are inadmissible 18 hearsay for which no exception exists. Plaintiffs argue that the media reports are not offered for 19 the truth of the matter asserted but to show that the defamatory statements were published and are 20 therefore not hearsay. 21 “Hearsay” is “a statement that (1) the declarant does not make while testifying at the 22 current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted 23 in the statement.” Fed. R. Evid. 801(c). “Hearsay is not admissible unless any of the following 24 provides otherwise:• a federal statute; • these rules; or • other rules prescribed by the Supreme 25 Court.” Fed. R. Evid. 802. Newspaper reports are hearsay when offered for the truth of the 26 matter asserted. See Larez v. City of Los Angeles, 946 F.2d 630, 642 (9th Cir. 1991) (media 27 articles have been held inadmissible hearsay as to their content). 28 Plaintiffs contend that the media reports are not offered for the truth of the matters 15 1 asserted within but to show that the statements were public. To the extent that Plaintiffs seek to 2 admit the media reports to show that the State 2567 report was made public, the media reports 3 would not be hearsay. 4 b. Content of Media Reports 5 As to the reports themselves, the Court agrees with Defendants that the media reports 6 contain statements made regarding the CDPH investigation that are not attributable to Defendants 7 but are the interpretation of the reporter. For example, the article from Litverse.com, “10 8 Nightmarish breaches of trust by health care professionals,” dated August 23, 2015, discusses that 9 Plaintiff Chaudhry was one of the top five heart surgeons in California based on the total number 10 of surgeries performed and he had a below average patient survival rate for his state which might 11 be the result of his alleged inclination to abandon patients during operations. (ECF No. 93-1 at 7- 12 8.) The article states: 13 A number of lawsuits accuse Chaudry of ducking out of the operating room without completing heart surgeries. In one incident, his hospital was fined 14 $75,000 after he left a physician’s assistant to close up a patient’s chest while he attended a luncheon. The patient, 72-year-old Silvino Perez, suffered a 15 myocardial infarction, and the resulting physical trauma left him in a persistent vegetative state. Chaudhry has denied these and other charges levied against him, 16 but an investigation by California’s State Department of Health found that the heart doctor had recklessly endangered Perez. The outcomes of other claims are 17 currently unknown. 18 (Id. at 7.) 19 Plaintiffs argue that this publication is admissible because it states that the CDPH found 20 that the heart doctor recklessly endangered Perez. However, there is no such statement in the 21 State 2567 report, (see State 2567 report, ECF No. 93-2), this is the interpretation of the writer of 22 the article and not a statement that can be attributed to Defendants. 23 The January 15, 2014 Huffington Post article entitled “Dr. Pervaiz Chaudhry Allegedly 24 left surgery to have lunch, leaving patient brain damaged” contains no reference to the report or 25 any statements by the CDPH. (ECF No. 93-1 at 18-19.) 26 Based on review of the media reports, the Court finds that they largely contain 27 inflammatory statements by third parties and only a few of the reports actually reference the State 28 2567 report. Those media reports that do reference the State 2567 report only contain a few 16 1 sentences generally stating that the investigation was instigated by an anonymous report, the 2 action taken against Defendant Chaudhry by CRMC following their investigation, or the penalty 3 imposed against CRMC by the CDPH which are not defamatory statements. There are three 4 media reports that reference the actual findings in the State 2567 report. 5 On January 16, 2014, the New York Daily News posted a report entitled, “Patient brain- 6 damaged after doctor leaves him mid-surgery to attend lunch: Suit”. (ECF No. 93-1 at 20-21.) 7 A California grandfather was left brain damaged after a cardiologist allegedly left a gaping hole in his chest following open heart surgery so that he could attend a 8 luncheon. 9 Dr. Pervaiz Chaudhry, of Valley Cardiac Surgery in Fresno, Calif., apparently relied on an unqualified assistant to stitch up 72-year-old Silvino Perez’s chest on 10 April 2, 2012, according to the State Department of Health. 11 The patient’s heart stopped as oxygen escaped his body and he was placed on life support, reported local station KFSN-TV. Perez, who loves gardening and his 12 grandchildren, has been in a vegetative state since that surgical slip-up two years ago. 13 “I just want people to know what kind of doctor he is,” his stepson, Cristobal 14 Arteaga, told ABC News. “You go in there and you trust this individual with your life ... The fact that he would do this to an individual — one individual — is 15 too much.” 16 Perez’s wife, Maria A. Arteaga Alvarez, and Cristobal Arteaga, filed a lawsuit Dec. 23, claiming they learned of the alleged operating room absence from an 17 anonymous caller on Oct. 26, reported the Merced Sun-Star. 18 The daily paper said that state investigators, similarly, were tipped off by an anonymous call on April 11, 2012. They launched an investigation and 19 discovered that the doctor violated hospital rules and regulations that prohibit the primary surgeon to leave an operating room before the patient is returned to stable 20 condition. 21 After the incident, Chaudhry reportedly raced back to the operating room to manually massage Perez’s heart — but the damage was already done. 22 Bruce Eliason, COO of Valley Cardiac Surgery, said that the medical group has 23 not been serves [sic] the lawsuit but has seen the news reports and understands the allegations being made against Chaudhry. 24 “This assertion, apparently made anonymously to the patient’s family, is 25 unequivocally false, and it will be proven to be so,” Eliason said in a statement. 26 The plaintiffs are seeking unspecified damages. 27 (Id.) 28 On January 8, 2014, ABC 30 posted a report entitled “Fresno family says CRMC is 17 1 covering up malpractice.” (ECF No. 93-1 at 1.) 2 The State Department of Health handed out a big penalty to the hospital for the decisions they say put 72-year-old Silvino Perez in danger. 3 Family members sued both hospital and the Valley heart surgeon for putting 4 Silvino Perez on life support. The family believes what happened during Perez’s surgery could have been prevented and they want to make sure no one else gets 5 hurt. 6 Perez loved gardening and adored his grandkids. His son said all that changed because of a surgeon and Community Regional Medical Center. 7 “My God, I can’t put it into words. Can you imagine?” Cristobal Arteaga said. 8 A civil lawsuit filed April 2012 details how Perez went into a Downtown Fresno 9 hospital for open heart surgery. State investigators believe the hospital and Dr. Pervaiz Chaudhry put him in immediate jeopardy. But the state and his son were 10 only alerted after an anonymous call from a nurse who was in the operating room at the time. 11 “He basically told me the reason my dad was in the condition he was in, was the 12 doctor had walked out in the middle of an operation to attend a luncheon,” said Arteaga. 13 The State Department of Health believes the doctor left the room and told a 14 physician’s assistant to finish the operation. But investigators found he never closed up the patient’s chest before he did. The complications sent the elderly 15 man into a vegetative state. 16 “It’s a betrayal. They are covering something up. The nurse went on to say the only reason they have this guy on is he brings so much money into the hospital. 17 That’s the only reason they haven’t done anything yet,” Arteaga said. 18 Action News interviewed Dr. Chaudhry in 2011 before the incident. At the time CRMC praised him for his cutting edge work in cardiac medicine. When we tried 19 to reach Dr. Chaudhry at home, he was not available. 20 In a statement a spokesperson for the hospital said, “While we can’t comment on any ongoing litigation we have instituted improved safeguards with action plans 21 that have been approved by the state. Community continually trains and searches for ways we can improve our patient care and safety.” 22 The Perez family lawyer said Medicare currently pays for Silvino Perez’s ongoing 23 treatment. 24 Meanwhile the hospital has confirmed Dr. Chaudhry still works at Community Regional Medical Center. 25 (Id.) 26 A Fresno Bee article published March 2, 2014, entitled “Accusations mount against 27 Fresno doctor accused of leaving surgery” states, 28 18 1 A Fresno heart surgeon who two years ago allegedly left an open-heart surgery at Community Regional Medical Center before a patient was stable now is at the 2 center of two lawsuits that allege he walked out of more than one operating room before procedures were complete -- and that hospital officials knew about it. 3 According to a wrongful termination lawsuit filed last month in Fresno County 4 Superior Court, Dr. Pervaiz Chaudhry ignored a Fresno Heart Surgical Hospital manager’s plea to return to an operating room. The suit claims Chaudhry 5 threatened he could get people fired and would stop doing surgeries at the hospital, which would result in a loss of “significant revenue.” 6 The lawsuit brought by former manager Valerie Villalobos alleges she was among 7 employees targeted for a layoff that was “aimed at removing any persons that would interfere with Dr. Chaudhry continuing to bring an unusually high number 8 of patients and corresponding revenue to Fresno Heart.” Villalobos was rehired after the layoff but later resigned, citing a hostile work environment and concerns 9 about potential retaliation. 10 The alleged Fresno Heart incident occurred weeks before Chaudhry allegedly left a physician assistant to close the chest of Silvino Perez at Community Regional 11 on April 2, 2012, according to a lawsuit filed by Perez’s wife and stepson. When bleeding occurred, the Sanger man went into cardiac arrest. Perez, 72, has been in 12 a vegetative state in a Fresno nursing home ever since. 13 In December, Perez’s wife and stepson sued Chaudhry, Community Regional Medical Center and Valley Cardiac Surgery, the doctor’s medical group, for 14 unspecified damages. 15 In an amended complaint filed Feb. 13, the family alleges the hospital knew or should have known that the doctor routinely “cut corners” in the course of 16 surgery, including leaving the operating room while patients were under anesthesia and leaving chest closures to a physician assistant without a medical 17 doctor to supervise. 18 In California, physician assistants attend a specialized program associated with a medical school and receive an academic degree or certificate. To practice, they 19 must pass a national examination before receiving a license from the Physician Assistant Board. State regulations say they can act as first or second assistants 20 during surgery, but surgical procedures requiring other than local anesthesia may be performed only in the personal presence of an approved supervising physician. 21 Chaudhry has not responded to numerous interview requests by The Bee, but his 22 medical group spokesman said the allegations are baseless. His attorney denied the allegations in the Perez lawsuit and declined to comment on the Villalobos 23 suit because Chaudhry is not a named defendant. The hospital said it could not comment on ongoing litigation, but stands by its cardiac surgery program. 24 The latest allegations raise questions about whether Community Medical Centers, 25 which operates Fresno Heart Surgical and Community Regional Medical Center, took action on complaints against Chaudhry before the Community Regional 26 incident, or, as lawyers assert, stepped aside and gave him latitude because cardiac surgeries are one of the biggest revenue sources for hospitals. 27 Busy surgeon 28 19 1 What’s certain is that Chaudhry, 53, is one of the busiest cardiac surgeons in California. 2 According to the Office of Statewide Health Planning and Development, he 3 performed 345 bypass surgeries in 2009-10, making him “one of the top five” heart surgeons in total surgeries. 4 The report, the latest available, also showed that Chaudhry was listed as one of 5 seven doctors statewide whose patient death rate was worse than the state average. The state took overall patient health into consideration in calculating the 6 rates. Chaudhry's death rate was 3.62. The statewide rate was 2.0. 7 At the time of the report’s release in April 2013, Chaudhry disputed the accuracy of the state data. Plus, he said, he operated on high-risk patients. When other 8 doctors could not do anything for a patient, “that’s when they call me,” he said then. 9 On Thursday, Bruce Eliason, chief operating officer for Chaudhry’s medical 10 group, said Chaudhry’s death rate for bypass surgeries was 1.6 in 2013, which is comparable to the national average of over 2%. 11 Chaudhry is a money-maker for the hospital, said attorney Jeff Mitchell, who 12 represents Maria Arteaga Alvarez and Cristobal Arteaga, the wife and stepson of Perez, the Community Regional patient. 13 However, Perez’s surgery did prompt the hospital to suspend Chaudhry for 14 14 days, Perez’s family alleges. 15 Perez’s case was investigated last year by the state Department of Public Health, which levied a $75,000 fine against Community Regional, Mitchell said. The 16 state does not name patients and doctors in investigations, but Mitchell has said Perez’s case led to the fine. 17 According to the state report, health authorities learned from an anonymous 18 complaint on April 11, 2012, about the allegation that a surgeon had left the operating room before closing the patient’s chest. 19 The incident occurred April 2, 2012 -- the same day as Perez’s surgery. An 20 “operative report” among documents from the state investigation that were obtained by The Bee through a Public Records Act request cites April 2, 2012, as 21 the date of the surgery and names Chaudhry as the physician. 22 In a separate narrative of the state’s investigation, which does not name the surgeon or others interviewed, the cardiac surgeon said he allowed the physician 23 assistant to close the chest with wires but was “always there when she did this, until this time.” 24 Community Regional, in a written response to the state’s investigation, said that 25 an investigation was authorized on April 2, 2012, by the president of the hospital’s medical staff and the chair of surgery. On Aug. 15, 2012, a doctors’ 26 committee met to review the findings of the investigation. 27 The committee sent the case to an outside expert with cardiovascular surgery experience for review. The committee’s actions included suspending the surgeon, 28 who was not named, from the medical staff for 14 days and ordering the surgeon 20 1 to undergo additional training. 2 All surgeries under the care of the physician also were monitored from April 3, 2012, through June 1, 2012, to ensure his “compliance with surgeon attendance 3 during surgery.” And beginning on Aug. 15, 2012, cases were randomly selected and reviewed, and monitoring continued through November 2012, the hospital 4 response said. 5 Mitchell, attorney for the Perez family, said the hospital was compelled to take corrective action by the state. 6 Chaudhry has no suspension or disciplinary action against his license, according 7 to the California Medical Board. Doctor peer review committees are not required to report suspensions of 14 days or fewer. 8 Chaudhry continues to perform surgeries at Community Regional and Fresno 9 Heart, said Mary Lisa Russell, a Community Medical Centers spokeswoman. 10 On Friday, Russell said Community had not received the amended complaint to the Perez lawsuit that alleges the hospital was aware of Chaudhry routinely 11 leaving the operating room. Russell would not comment on the allegations. 12 But to the extent that the legal complaints raise quality issues, she said, “it should be pointed out that we monitor and benchmark our programs against the highest 13 standards, and recently received notice from the Society of Thoracic Surgeons National Adult Cardiac Surgery Database that Community Regional’s cardiac 14 surgery performance ranked in the top 15% of hospitals nationally.” 15 The Perez lawsuit also alleges that hospital and medical staff knew that Chaudhry has a substance abuse problem, which includes alcohol, “sufficient to impair 16 medical judgment and surgical acumen.” 17 Chaudhry’s lawyer, Andrew Weiss of Fresno, said Feb. 20 that he had not seen the amended complaint, but the allegations against the doctor are false. “We deny 18 that Dr. Chaudhry has any kind of substance-abuse problem,” he said. 19 Chaudhry did not leave surgeries before they were complete, Weiss said. And the allegation that he left the operating room with Perez’s chest still open “is not 20 true,” he said. 21 Eliason of Valley Cardiac Surgery said in emails last month that allegations in the Perez lawsuit are “baseless and unsubstantiated.” 22 As to the lawsuit alleging a substance-abuse problem, Eliason said, “we can state 23 unequivocally that the unsubstantiated allegations of substance abuse are completely false and without any basis in fact.” 24 The medical care provided by Valley Cardiac Surgery and Chaudhry at 25 Community Regional have been recognized by the Society of Thoracic Surgeons as among the best in California, Eliason said. “This recognition comes after years 26 of practice and consistent success for our patients, and has resulted in a higher than national average of successful outcomes for extremely complicated, high-risk 27 heart surgery.” 28 Complaints surface 21 1 Allegations of misconduct involving Chaudhry began to surface in late 2011 at 2 Fresno Heart, according to Villalobos’ wrongful termination lawsuit. 3 She began receiving complaints from nursing staff and others about Chaudhry, including how he would routinely leave the operating room before heart surgeries 4 were completed and would leave the hospital premises before patients were stabilized in the post-anesthesia care unit, the lawsuit says. Villalobos, 53, was 5 director of cardiology, surgery and outpatient services and managed the surgical staff. 6 Among the complaints cited in the lawsuit: 7 Chaudhry made discriminatory comments to a homosexual staff member, telling 8 her “she was not wanted in the operating room because she wasn’t ‘a real woman.’ ” 9 He threatened staff members that if they “reported him for any malfeasance, he 10 would find out their identity and they would be fired.” 11 The lawsuit also says Chaudhry sometimes failed to respond to pages in a timely fashion when his patients required immediate attention. On at least one occasion, 12 a patient with no heart rhythm “flat-lined” for 40 minutes before Chaudhry responded and returned to the bedside, the lawsuit says. He began “futile 13 lifesaving efforts in order to conceal” his neglect and the patient’s death, and “blamed subordinate nursing staff for the demise of his patient, despite his 40- 14 minute delay in returning to the patient’s bedside,” the lawsuit says. 15 Villalobos encouraged nurses and staff to report complaints through the hospital’s confidential reporting system, the lawsuit says, but she had reason to believe that 16 on at least one occasion Chaudhry learned the identity of a complainant. 17 According to the lawsuit, Villalobos had a personal run-in with Chaudhry around February 2012 when she learned from a physician that a doctor was not present in 18 an operating room and the operation was still in progress. It was Chaudhry’s operating room, the lawsuit says. Villalobos found him at hospital elevators. 19 When Villalobos asked Chaudhry to return to the operating room, he refused, the 20 lawsuit says, and when Villalobos persisted, he threatened: “Don't you know I can wipe you all out? I can have you all fired, including your stupid doctors.” 21 According to the lawsuit, Chaudhry also threatened to stop scheduling surgeries at 22 the hospital and told Villalobos “to inform the CEO of Fresno Heart, Wanda Holderman, that it was all plaintiff’s fault that he would not be performing further 23 surgeries there and the hospital would therefore lose significant revenue.” Holderman’s assistant referred calls seeking comment to Community Medical 24 Centers’ communications department. 25 The incident was reported, the lawsuit says. But approximately two weeks later Chaudhry allegedly left an operating room at Community Regional before Perez’s 26 surgery was completed. 27 Villalobos believes that Chaudhry “continued to leave the operating room before cardiac surgeries were completed, despite the reporting of this conduct to Fresno 28 Heart and Community Medical Centers,” the lawsuit says. 22 1 Villalobos’ lawyer, Maureen Harrington of San Francisco, said that the issue was 2 raised at Fresno Heart “up to the corporate level.” 3 Weiss said it would be inappropriate for him to provide a comment about the Villalobos lawsuit because Chaudhry, his client, is not a defendant. But, he said, 4 “I would make the general observation that allegations in a complaint are just that, mere allegations, and are not proof of anything. Oftentimes, they are intentionally 5 exaggerated and phrased in inflammatory terms to support a particular type of recovery sought, and ultimately prove to be untrue and without any basis in fact.” 6 Cristobal Arteaga, the stepson of Silvino Perez, said he had been unaware of 7 Villalobos’ allegation that Chaudhry left a surgery at Fresno Heart before his stepfather’s surgery at Community Regional. 8 “I’m so happy she’s coming out and making this public,” he said. “Ultimately, 9 it’s to everybody’s benefit that this doctor be exposed.” 10 Hospital layoffs 11 Villalobos was laid off on June 14, 2013. The lawsuit alleges the layoff was in retaliation for her participation in reporting Chaudhry’s harassment of employees, 12 lapses in patient care and his creation of a hostile work environment, and her insistence that the lapses be corrected by the hospital. 13 The lawsuit says Villalobos was targeted for a layoff that was “aimed at removing 14 any persons that would interfere with Dr. Chaudhry continuing to bring an unusually high number of patients and corresponding revenue to Fresno Heart.” 15 In late August 2013, The Bee reported that 25 employees had been laid off at 16 Fresno Heart. Holderman, the hospital’s CEO, said the layoffs included some management jobs. She said the layoffs were necessary to lower costs in the face 17 of declining revenues “and pending legislation that would negatively impact hospitals, especially ones of our size.” 18 The hospital also was re-evaluating merit and other pay increases, delaying or not 19 filling certain jobs, reducing some services and decreasing other operational costs by centralizing some administrative functions, she said. 20 Villalobos, a longtime Fresno Heart employee who had been on medical leave 21 after being diagnosed with Stage IV breast cancer, contested the layoff and got her job back. But the lawsuit says she “had no choice” but to resign on Aug. 6, 22 2013, to escape a hostile workplace. 23 She declined to comment on the suit and referred questions to Harrington. 24 For a long time, Villalobos “believed the hospital would do the right thing in relation to the issues related to Dr. Chaudhry,” Harrington said. “But she came to 25 the realization that that wasn’t going to happen, and she didn’t have any choice other than to resign her position because things weren’t going to change.” 26 The suit alleges that Villalobos’ resignation was a “necessary resignation,” 27 sparked by concern about retaliation she might suffer after returning to work. 28 In February, she filed a complaint with the California Department of Fair 23 1 Employment and Housing for discrimination and received a right-to-sue letter on Feb. 13, the lawsuit says. 2 Villalobos has suffered financial loss and severe emotional and physical distress, 3 the lawsuit says. 4 She is suing Fresno Heart for wrongful termination, discrimination, retaliation, unpaid wages, declaratory relief and fraud. She is asking for unspecified 5 damages, including punitive damages. 6 Community received the Villalobos lawsuit on Thursday. 7 Officials said they could not comment on personnel matters, but Community is not responsible for physician oversight, said John Zelezny, Community Medical 8 Centers senior vice president of communications. Doctors are self-governing “and have the responsibility to monitor and enforce rules of conduct and oversee 9 medical quality of their staff members’ practices,” he said. 10 Actions taken by doctor committees, called “peer review actions,” are confidential, Zelezny said. The hospital can only become involved if there is 11 evidence that the medical staff is not fulfilling its duties, he said. “Community Medical Centers has a very active and committed medical staff that carries out its 12 responsibilities in an appropriate way,” he said. 13 Harrington said she disagrees. “The hospital is responsible for the working environment of all its employees, and doctors are obviously part of that working 14 environment.” 15 (ECF No. 93-1 at 14-17.) 16 4. Media reports are excluded under Rule 403 17 To the extent that these three media reports are relevant in this action, the Court finds that 18 they should be excluded under Rule 403 of the Federal Rules of Evidence on the basis that they 19 would confuse the jury, waste time at trial, and the media reports are substantially more 20 prejudicial than probative. 21 Defendants argue that the media reports contain highly sensational and inflammatory 22 statements about Plaintiff Chaudhry that were not made by nor can they be attributed to the 23 defendants. In reviewing the media reports, the Court agrees. The media reports largely include 24 statements from the lawsuits and the individuals involved in the suits about Plaintiff Chaudhry. If 25 the media reports were shown to the jury, the defendants would be entitled to present evidence to 26 explain the statements contained within and the lawsuits that were filed against Plaintiff 27 Chaudhry. Plaintiffs conceded at the February 7, 2020 hearing that if the media reports are 28 admitted the result would be mini-trials regarding the statements included within the reports. This 24 1 would result in a waste of the jury’s time. 2 Further, admission of the reports is likely to confuse the jury. The media articles largely 3 contain the statements of third parties that cannot be attributed to defendants. If the reports are 4 placed in evidence at trial, there is a likelihood that the jury would attribute these statements to 5 the defendants. The Defendants would have to parse out the statements made within the report to 6 explain to the jury why they cannot be held liable for the third-party hearsay statements included 7 within. 8 The Court finds that admitting the media reports would create a risk of confusion of the 9 jury and would result in a waste of time. These risks substantially outweigh the probative value 10 of the limited references to the State 2567 report that are included within the media reports. 11 Plaintiffs’ motion in limine no. 3 to admit the negative media reports is denied; and Defendants’ 12 motion in limine no. 5 to exclude the negative media reports is granted. 13 C. Witness Testimony 14 The parties bring motions to allow or exclude specific witnesses expected to testify during 15 the trial of this matter. A witness may testify to a matter where they have personal knowledge of 16 the matter. Fed. R. Evid. 602. A lay witness may offer testimony in the form of an opinion where 17 it is “(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the 18 witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or 19 other specialized knowledge within the scope of Rule 702.” Fed. R. 701. 20 An expert witness is defined as: 21 A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: 22 (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; 23 (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and 24 (d) the expert has reliably applied the principles and methods to the facts of the case. 25 26 Fed. R. Evid. 702. 27 1. Defendants’ rebuttal witnesses 28 Plaintiffs’ fourth motion in limine seeks to exclude Defendants from presenting evidence 25 1 from Kristoffer Hall and Dr. Edmunds. Plaintiffs argue that since they did not disclose any 2 experts, Defendants cannot present rebuttal experts. Defendants counter that Plaintiffs designated 3 four non-retained experts and Defendants’ disclosed their rebuttal experts as required by Rule 4 26(a)(2)(D). 5 Federal Rule of Civil Procedure 26(a)(2)(D) provides that a party must make its expert 6 witnesses disclosures at the times and in the sequences that the court orders. Absent other 7 direction from the court, the opposing party is required to disclose a rebuttal expert within thirty 8 days after receiving another party’s disclosure. Fed. R. Civ. P. 26(a)(2)(D)(ii). Rule 37(c)(1) 9 gives teeth to these requirements by forbidding the use at trial of any information required to be 10 disclosed by Rule 26(a) that is not properly disclosed. Yeti by Molly, Ltd. v. Deckers Outdoor 11 Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). Rule 37(c) does provide that a party may be excused 12 from the failure to disclose where the failure was substantially justified or is harmless. Fed. R. 13 Civ. P. 37(c)(1). 14 Here, Plaintiffs only argue that, since they did not designate an expert and their witnesses 15 will only be testifying from their personal knowledge, rebuttal experts are not permitted. 16 Contrary to Plaintiffs contention, they did designate four non-retained experts to testify at trial of 17 this matter. (See Plaintiffs’ Non-Retained Expert Witness Disclosure, ECF No. 91-4.) The 18 Federal Rules of Evidence provide for the testimony of two types of expert witnesses: those who 19 are retained and those who are not retained. Cantu v. United States, No. CV 14-00219 MMM 20 (JCGx), 2015 WL 12743881, at *3 (C.D. Cal. Apr. 6, 2015). Plaintiffs present no authority to 21 support their argument that Defendants are not entitled to present an expert witness to rebut their 22 non-retained experts’ testimony. The Rules provide that “[a] party need not disclose an expert 23 within the deadline for initial expert reports, and can instead disclose an expert as a ‘rebuttal 24 expert,’ when the expert’s testimony is ‘intended solely to contradict or rebut evidence on the 25 same subject matter identified by an initial expert witness.’ ” People v. Kinder Morgan Energy 26 Partners, L.P., 159 F.Supp.3d 1182, 1191 (S.D. Cal. 2016) (citations omitted). Defendants are 27 entitled to present expert witnesses to rebut the testimony of Plaintiffs’ non-retained experts. 28 Plaintiffs do not argue that Defendants’ rebuttal expert disclose was untimely or improper 26 1 in any other respect. Accordingly, Plaintiffs’ motion in limine no. 4 is denied. To the extent that 2 Plaintiffs argued at the February 7, 2020 hearing that the testimony of Defendants’ rebuttal 3 experts is beyond the scope of the testimony to be presented at trial, this is an issue that cannot be 4 decided until Plaintiffs’ witnesses testify. 5 2. Testimony of Plaintiffs’ percipient witnesses 6 Plaintiffs’ eleventh motion in limine seeks to allow Plaintiff Chaudhry, Mr. Engelbert, and 7 Dr. Chaudhry’s doctors to testify regarding their percipient knowledge. 8 Defendants counter that Plaintiff Chaudhry’s testimony regarding what occurred during 9 the surgery is irrelevant in this action. This is not a medical malpractice action and the only 10 testimony that is relevant is when Plaintiff Chaudhry left the operating room and Mr. Perez’s 11 status at the time that Plaintiff Chaudhry left. Defendants contend that no witness should be 12 allowed to provide extensive technical testimony regarding Mr. Perez’s operation. 13 Defendants contend that Mr. Englebert’s testimony should only be permitted as to the 14 preparation of Plaintiffs’ 2016 tax returns. Defendants argue that without a causal connection 15 between Defendants’ conduct and Plaintiffs’ decreasing revenue, his testimony is irrelevant in this 16 action. Similarly, Defendants argue that Plaintiffs’ medical providers can only testify to their 17 personal knowledge and without a causal connection between Defendants’ conduct and Plaintiff 18 Chaudhry’s cluster headaches their testimony is irrelevant. 19 Plaintiffs have not set forth any specific testimony that is sought to be allowed by this 20 motion. Until such testimony is offered and an objection to the specific testimony is proffered, 21 the Court is unable to determine the admissibility of the testimony at issue. Hitesman, 2016 WL 22 3523854, at *2; Jonasson, 115 F.3d at 440. Plaintiffs’ motion in limine no. 11 is denied. 23 3. Testimony of non-retained experts 24 Defendants’ third motion in limine seeks to preclude Mr. Engelbert and the three doctors 25 who treated Plaintiff Chaudhry from testifying or to limit their testimony to matters within their 26 personal knowledge. 27 a. Testimony of Mr. Engelbert regarding Plaintiffs’ financial losses 28 Defendants contend that Plaintiffs disclosed that Mr. Engelbert provided financial services 27 1 to them and they expect him to testify as to Plaintiffs’ economic damage following the publication 2 of the report, Plaintiffs’ lost income and profits, the financial impact of the malpractice cases filed 3 against Plaintiff Chaudhry, lost contracts, and his removal from his position as medical director. 4 However, Defendants argue that Mr. Engelbert, who is an enrolled agent and not an accountant, 5 business valuation expert or economist, is not qualified to opine on any of these subject matters. 6 Additionally, Defendants contend that Mr. Engelbert only provided tax services to Plaintiffs in 7 2016 and he has no personal knowledge as to Plaintiffs’ financial status and tax filings before 8 2016. 9 Plaintiffs counter that Mr. Engelbert, as a lay witness, can present testimony beyond his 10 preparation of Plaintiffs’ 2016 tax returns. Plaintiffs contend that Mr. Engelbert reviewed 11 Plaintiffs’ 2014 and 2015 tax information to address tax carryovers and to ensure the consistency 12 and completeness of his tax preparations. Plaintiffs expect Mr. Engelbert to offer his observations 13 of the decline in income between the different tax years. At the February 7, 2020 hearing, 14 Plaintiffs agreed that Mr. Engelbert cannot testify as to the cause of Plaintiffs’ economic decline. 15 Plaintiffs state that Plaintiff Chaudhry will be able to testify regarding his observations and 16 knowledge based upon his many years of medical practice and that he is not precluded from 17 projecting what he or his practice would have earned and what caused their economic losses. 18 Defendants’ motion in limine as to Mr. Engelbert is granted in part. Plaintiffs have not 19 shown that Mr. Engelbert, as an enrolled agent, is qualified to offer testimony regarding the cause 20 of any loss of revenue or the impact of any event on Plaintiffs’ financial situation. Mr. 21 Engelbert’s testimony shall be limited to his knowledge obtained in the preparation of Plaintiffs’ 22 tax returns.7 23 At the February 7, 2020 hearing, Plaintiffs stated that Mr. Engelbert will only be testifying 24 to his personal knowledge gained in preparation of Plaintiffs’ tax returns. Defendants moved to 25 exclude this evidence arguing that it is cumulative if Plaintiff’s tax returns are admitted into 26 7 The Court’s ruling does not mean that Mr. Engelbert can testify as to causation based upon knowledge that was unnecessary for the preparation of the tax returns. For example, Mr. Engelbert cannot testify that Plaintiff Chaudhry 27 informed him that his business revenues decreased after the State 2567 report was issued. This would be hearsay and unnecessary to the preparation of Plaintiffs’ tax returns. Mr. Engelbert is limited to testimony regarding the 28 preparation of the tax returns themselves. 28 1 evidence at trial. The issue of whether Mr. Engelbert’s testimony is cumulative will need to be 2 addressed based on the testimony presented at trial. If Defendants believe that Mr. Engelbert’s 3 testimony is cumulative after hearing the evidence submitted during the trial of this matter, they 4 may raise an objection at that time. 5 b. Testimony of Drs. Mehdi, Raskin, and Huang 6 Defendants seek to exclude the testimony of Dr. Mehdi who treated Plaintiff Chaudhry for 7 his headaches beginning in 2012, Dr. Ruskin who treated Plaintiff twice in 2016, and Dr. Huang 8 who saw Plaintiff Chaudhry one time for his headaches. Defendants argue that none of these 9 treating physicians opined while treating Plaintiff Chaudhry that his headaches were caused by 10 Defendants or the published reports. Defendants contend that without a diagnosis connecting his 11 headaches to the defendants their testimony is irrelevant. Further Defendants argue that none of 12 these doctors can opine at trial regarding a nexus between Plaintiff Chaudhry’s headaches and 13 Defendants’ conduct because that is beyond the scope of treatment provided and for which Rule 14 26 reports were required. 15 Plaintiffs counter that Drs. Mehdi, Raskin, and Huang are expected to testify as to their 16 treatment of Plaintiff Chaudhry before and after the publication of the State 2567 report and the 17 loss of his medical privileges. They will testify as to his generally excellent health prior to the 18 report and the subsequent disabling cluster headaches subsequent to the report and its effects on 19 his ability to practice medicine. 20 It is undisputed that Drs. Mehdi, Raskin, and Huang did not provide an expert report and 21 therefore are limited to testimony as a treating physician. Generally, treating physicians are 22 excused from the requirement that they provide a written expert report. Goodman v. Staples The 23 Office Superstore, LLC, 644 F.3d 817, 819 (9th Cir. 2011). “As a treating physician, [the doctor] 24 may describe what she has seen, describe and explain her diagnosis and the treatment she 25 prescribed . . . without running afoul of the constraints of Rules 26 and 37 of the Federal Rules of 26 Civil Procedure.” Bynum v. MVM, Inc., 241 F.R.D. 52, 54 (D.D.C. 2007) (quoting Riddick v. 27 Washington Hospital Center, 183 F.R.D. 327, 330 (D.D.C.1998)). The Ninth Circuit has held that 28 “a treating physician is only exempt from Rule 26(a)(2)(B)’s written report requirement to the 29 1 extent that his opinions were formed during the course of treatment.” Goodman, 644 F.3d at 826. 2 A treating physician may testify within a permissive core on issues pertaining to 3 treatment, without providing an expert report, based on what he or she learned through actual 4 treatment and from the plaintiff’s records up to and including that treatment.” Fielden v. CSX 5 Transp., Inc., 482 F.3d 866, 871 (6th Cir. 2007), as amended on denial of reh’g and reh’g en banc 6 (July 2, 2007); see also Goodman, 644 F.3d at 819 (a treating physician may testify to and opine 7 on what they saw and did without the necessity of the proponent of the testimony furnishing a 8 written expert report). 9 Since expert reports were not provided by Drs. Mehdi, Raskin, and Huang, the scope of 10 these witnesses’ testimony is limited to information learned from and opinions developed during 11 their actual treatment and they may not offer forward-looking speculation or any other conclusion 12 reached with the benefit of hindsight. To the extent Plaintiffs may attempt to elicit testimony 13 from the physicians that strays beyond the scope of their course of treatment, and delves into 14 opinions developed at a later time or upon a hypothetical set of facts, the Court will provisionally 15 grant the motion in that regard. Such would be inadmissible opinion testimony, given a Rule 16 26(a)(2)(B) report was required. Defendants’ motion in limine no. 3 is granted in part and 17 Plaintiffs’ physicians may offer testimony regarding the treatment and opinions that were 18 developed during their actual treatment of Plaintiff Chaudhry. 19 4. Testimony from Plaintiff Chaudhry and his lay witnesses regarding his economic loss and any causal connection between the report and the reduction in revenue 20 21 Defendants’ fourth motion in limine seeks to preclude Plaintiff Chaudhry or other lay 22 witnesses, such as his prior attorneys, from testifying regarding Plaintiffs’ economic loss and any 23 causal connection between the report and a reduction in revenue. Defendants argue that Plaintiff 24 Chaudhry can offer testimony about his personal experiences and knowledge following the 25 publication, such as his increased malpractice insurance costs, removal from various positions and 26 boards, and loss of contracts, but he cannot place a value on his practice, project what he or his 27 practice would have earned, or offer other opinions about his and his practice’s economic loss. 28 Similarly, Defendants argue that Plaintiffs’ attorneys are similarly not qualified to opine about the 30 1 cause of the financial demise, whether the Perez family or others would have sued but for the 2 report and what Plaintiffs’ future income would have been but for the report. 3 Plaintiffs argue that Defendants view is entirely too restrictive of the testimony that would 4 be permissible to establish Plaintiffs’ economic loss. 5 Plaintiffs’ do not address the motion to the extent that it seeks to preclude Plaintiffs prior 6 attorneys from providing testimony regarding his economic loss and any casual connection to the 7 State 2567 report. Plaintiffs’ have offered no argument that their prior attorneys are qualified to 8 opine regarding such issues. Accordingly, the Court grants the motion to the extent that it seeks 9 to preclude Plaintiffs’ prior attorneys from testifying regarding their economic loss or the cause of 10 such loss. 11 “An owner, because of his ownership, is presumed to have knowledge of the property and 12 may testify as to its value.” Fourth Inv. LP v. United States, No. 08-CV-110-BTM BLM, 2011 13 WL 227564, at *1 (S.D. Cal. Jan. 21, 2011) (quoting United States v. 10,031.98 Acres of Land, 14 850 F.2d 634, 636 (10th Cir. 1988)). Further, as Plaintiffs point out, the Advisory Notes to 2000 15 amendments of Rule 701 of the Federal Rules of Evidence state, 16 For example, most courts have permitted the owner or officer of a business to 17 testify to the value or projected profits of the business, without the necessity of qualifying the witness as an accountant, appraiser, or similar expert. See, e.g., 18 Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153 (3d Cir. 1993) (no abuse of discretion in permitting the plaintiff’s owner to give lay opinion testimony as to 19 damages, as it was based on his knowledge and participation in the day-to-day affairs of the business). Such opinion testimony is admitted not because of 20 experience, training or specialized knowledge within the realm of an expert, but 21 because of the particularized knowledge that the witness has by virtue of his or her position in the business. 22 23 Based upon his partnership in the surgical practice, Plaintiff Chaudhry may testify to the 24 value of his business, losses and projected losses that are within his personal knowledge. See 25 Nevada Rest. Serv., Inc. v. City of Las Vegas, No. 2:15-CV-02240-GMN-GWF, 2018 WL 26 3973402, at *4 (D. Nev. Aug. 20, 2018) (chief financial officer has personal knowledge to testify 27 to the affect that the reduction in gaming machines had on the plaintiff’s business). But such 28 testimony may not stray into an area that would require scientific, technical, or other specialized 31 1 knowledge that would fall within the scope of Rule 702. Defendants’ motion in limine no. 4 is 2 denied as to Plaintiff Chaudhry’s testimony regarding business valuation based upon his personal 3 involvement in the partnership. 4 5. Communications between Plaintiffs’ attorneys and DPH staff concerning amendment of the report 5 6 Defendants’ second motion in limine seeks to preclude evidence of Plaintiffs’ prior 7 attorney’s communication with CDPH attorney Tze Ming U and others to have the State 2567 8 report amended after it was published. Defendants contend that this evidence is irrelevant, will 9 confuse the jury and waste time. Defendants argue that neither Defendants Lopez nor Campbell 10 were involved in the decision to amend or not amend the State 2567 report. Defendants state that 11 Plaintiffs and their attorneys’ efforts to correct the State 2567 report does not tend to prove or 12 disprove that the report was false or that it caused Plaintiffs’ harm. Defendants contend that to 13 the extent Plaintiffs argue it is relevant to punitive damages, Plaintiffs have no evidence that they 14 requested Defendants Lopez or Campbell to amend the report and without some causal 15 connection to these defendants this evidence is irrelevant. 16 Plaintiffs counter that they have no idea who made the decision not to amend the report or 17 if the defendants made recommendations or comments or otherwise participated in the decision 18 not to amend the report. Plaintiffs argue that the defendants should not be allowed to claim 19 attorney-client privilege to hide the information regarding who made the decision not to amend 20 the report. Plaintiffs contend that the communications with Mr. U are important because 1) the 21 decision not to amend the State 2567 report is relevant to the issue of punitive damages; 2) there 22 was a ripple effect caused by the defendants knowing refusal to amend the report; and 3) 23 Plaintiffs presented contrary facts and evidence and CDPH, with or without the involvement of 24 the defendants, refused to amend the report. 25 Relatedly, Plaintiffs’ tenth motion in limine seeks to permit inquiry at trial as to the 26 individuals who made the decision not to alter the State 2567 report and to prohibit Mr. U from 27 asserting attorney client privilege regarding the identity of the individual who made the final 28 decision regarding the report. 32 1 Defendants contend that the communication between Plaintiffs’ attorneys and Mr. U is not 2 relevant in this matter and argue Plaintiffs present no evidence or argument that Defendants 3 Campbell or Lopez were involved in the communications regarding amending the State 2567 4 report. Further, the communications have no tendency to prove or disprove that any defendant 5 knew that the State 2567 report contained inaccurate information prior to it being published. 6 Defendants argue that without some nexus between the defendants and the communications, such 7 communications are irrelevant, unduly prejudicial, and will confuse the jury and waste time. 8 Defendants also contend that Plaintiffs’ argument that the attorney client privilege was 9 waived is incorrect because the privilege belongs to the client not the attorney and Plaintiffs have 10 submitted no evidence that the CDPH waived or intended to waive attorney client privilege. 11 Defendants also argue that any statements made by Mr. U are hearsay because neither he or 12 CDPH are parties to this action so the party admission exception does not apply. 13 a. Relevance 14 Defendants argue that the communication between Mr. U and Plaintiffs’ attorneys are not 15 relevant in this action. Plaintiffs allege that the failure to amend the report is relevant to punitive 16 damages. Defendants argue that there is no evidence that Defendants Lopez or Campbell made 17 the decision not to amend the report so there is no evidence to establish a causal connection 18 between the defendants and Plaintiffs’ attorneys. 19 Plaintiffs argue that the failure to amend the report is relevant because CDPH made the 20 decision not to amend the report after being provided with information by Plaintiffs’ attorneys 21 that the findings were wrong. Plaintiffs are not seeking damages against Defendant Smith and 22 cannot get punitive damages against Defendant Smith who is sued in her official capacity. “The 23 Eleventh Amendment bars suits for money damages in federal court against a state, its agencies, 24 and state officials acting in their official capacities.” Aholelei v. Dept. of Public Safety, 488 F.3d 25 1144, 1147 (9th Cir. 2007). While “punitive damages are available under section 1983,” “state 26 officials sued in their official capacities are immune from punitive damages.” David v. Giurbino, 27 488 F.Supp.2d 1048, 1060 (S.D. Cal. 2007) (citing Mitchell v. Dupnik, 75 F.3d 517, 527 (9th Cir. 28 1996)). Therefore, whether the decision not to amend the report is relevant here depends on if the 33 1 decision not to amend the report can be connected to Defendants Lopez or Campbell. 2 Plaintiffs assert that they have no information as to who made the final decision not to 3 amend the report. They argue that they do not have to accept Defendants Lopez and Campbell’s 4 statements that they were not involved in the decision to amend the report. Discovery in this 5 matter has closed. In the February 6, 2017 scheduling order, the parties were advised that all non- 6 expert discovery was to be completed on or before the discovery cut-off date. (ECF No. 17 at 2.) 7 Non-expert discovery closed on April 9, 2018. (ECF No. 30.) Expert discovery closed on August 8 20, 2018. (ECF No. 34.) On October 31, 2018, the dispositive motion deadlines were extended 9 and the parties were advised that no further modifications would be granted. (ECF No. 45.) 10 Plaintiffs were provided with the opportunity to conduct discovery on the issue of who made the 11 final decision not to amend the report and Defendants Campbell and Lopez’s involvement in the 12 decision. Plaintiffs have asserted that they do not know who made the final decision to amend the 13 report and have not demonstrated that Defendants Campbell or Lopez had any involvement in the 14 decision. Plaintiffs have failed to show that the communications between their attorneys and Mr. 15 U regarding amending the State 2567 report are relevant in this action. 16 The Court finds that Plaintiffs have not demonstrated their attorneys attempts to have the 17 State 2567 report corrected is relevant to the claims proceeding in this action. Defendants’ 18 motion in limine no. 2 to exclude the communication between Plaintiffs’ prior attorneys and Mr. 19 U is granted. 20 Plaintiffs’ motion in limine no. 10 seeks to permit inquiry at trial as to the individuals who 21 made the decision not to alter the State 2567 report and to prohibit Mr. U from asserting attorney 22 client privilege. The Court finds that Plaintiffs’ motion is premature. This motion is more 23 appropriately addressed during the trial of this matter where the evidence can be considered in its 24 proper context. Hitesman, 2016 WL 3523854, at *2; Jonasson, 115 F.3d at 440. Accordingly, 25 Plaintiffs’ motion to permit inquiry into the individuals who made the decision not to alter the 26 State 2567 report and to prohibit Mr. U from asserting attorney client privilege is denied. 27 D. Plaintiff Chaudhry’s Prior Alcohol Use 28 Plaintiffs’ fifth motion in limine seeks to exclude evidence of prior alcohol use by Plaintiff 34 1 Chaudhry as improper character evidence. Plaintiffs contend that the parties have met and 2 conferred and Defendants have agreed that they will not mention this issue during the 3 proceedings. Defendants do not oppose the motion, but contend that if Plaintiff Chaudhry “opens 4 the door” by discussing what occurred at the lunch meeting on April 2, then inquiry into Plaintiff 5 Chaudhry’s alcohol use that day would be proper. 6 As defendants do not oppose motion in limine no. 5, the motion to exclude evidence of 7 Plaintiff Chaudhry’s prior alcohol use is granted. To the extent that Plaintiffs bring this motion to 8 ensure that counsel advises the witnesses not to mention prior alcohol use, all parties are expected 9 to advise their witnesses of all issues on which the parties have agreed or the Court has ordered 10 shall not be disclosed during trial. 11 E. Evidence that Plaintiff Chaudhry Left the Operating Room While Mr. Perez was Unstable 12 13 Plaintiffs’ sixth motion in limine seeks to preclude Defendants from presenting any 14 evidence that Plaintiff Chaudhry left the operating room while Mr. Perez was unstable. Plaintiffs 15 argue that since the parties have stipulated that Plaintiff Chaudhry left the operating room prior to 16 Mr. Perez developing arrhythmias they have stipulated that his instability did not commence until 17 after Plaintiff Chaudhry had left the hospital. 18 Defendants counter that Plaintiffs seek to distort the purpose and meaning of the 19 undisputed facts. Defendants did not stipulate that Mr. Perez was stable when Plaintiff Chaudhry 20 left the operating room, and the undisputed facts only address what transpired after Plaintiff 21 Chaudhry left the operating room relative to Mr. Perez’ condition. Defendants contend there is no 22 conflict with the presentation of evidence that Mr. Perez was not stable at the time that Plaintiff 23 Chaudhry left the hospital and the undisputed facts. Defendants state that the hospital determined 24 that Mr. Perez was not stable when Plaintiff Chaudhry left the operating room and hospital and 25 Defendants are entitled to argue that it was reasonable for them to rely on the Medical Executive 26 Committee’s conclusion. 27 The Court finds that Defendants’ disputed fact of whether Mr. Perez’s medical condition 28 was stable when Plaintiff Chaudhry left the operating room does not conflict with the undisputed 35 1 fact that the arrhythmias did not develop until after Plaintiff Chaudhry left. A finding that Mr. 2 Perez was unstable at the time that Plaintiff Chaudhry left the operating room is not precluded by 3 the stipulation that Mr. Perez’ arrythmias developed after Plaintiff Chaudhry left the hospital. 4 Defendants contend that Mr. Perez was still bleeding when his chest was closed and this bleeding 5 increased until Mr. Perez went into cardiac arrest due to a tear in his heart that was bleeding 6 profusely. It is clear that whether Mr. Perez was stable when Plaintiff Chaudhry left the operating 7 room is a disputed fact in this matter. 8 Further, Plaintiffs argue that Defendants have not designated an expert to opine on this 9 issue. However, this was the issue that was investigated and Defendants may present testimony 10 based on their personal knowledge of and the conclusions that were developed during the 11 investigation. 12 Accordingly, Plaintiffs’ motion in limine no. 6 to preclude any evidence that Plaintiff 13 Chaudhry left the operating room while Mr. Perez was unstable is denied. 14 F. Evidence of Other Lawsuits Filed Involving Plaintiff Chaudhry or His Medical Practice 15 16 1. Evidence of other malpractice lawsuits 17 Plaintiffs’ seventh motion in limine seeks to preclude all evidence related to other lawsuits 18 involving Plaintiff Chaudhry or his medical practice. Plaintiffs contend that these malpractice 19 lawsuits are either time barred or were settled following the Perez trial. Plaintiffs argue that this 20 evidence is inadmissible character evidence, hearsay, and the lawsuits have no relevance in this 21 matter. Further, Plaintiffs contend that the probative value of the evidence is outweighed by the 22 prejudice to Plaintiffs. 23 Defendants counter that evidence of the other medical malpractice suits filed against 24 Plaintiff Chaudhry are relevant to his damage claim. Plaintiff is alleging that he suffered damage 25 as a result of the State 2567 report, including that he lost contracts with other major hospitals in 26 Fresno, his annual income substantially decreased following Mr. Perez’s surgery, several lawsuits 27 were filed against him, and his medical malpractice insurance became unaffordable. Defendants 28 contend that they are entitled to present evidence that Plaintiffs’ economic damages are not a 36 1 result of their conduct but due to other malpractice lawsuits that were filed against Plaintiffs 2 before and after the incident with Mr. Perez and the publishing of the State 2567 report. 3 Defendants argue that they can present this evidence to provide a reasonable alternative to 4 Plaintiff Chaudhry’s anticipated testimony regarding the decrease in revenue and the increase in 5 his medical malpractice insurance. Defendants state that they do not intend to introduce 6 testimony as to how the lawsuits were resolved unless Plaintiff opens the door to such testimony. 7 Defendants only intend to inquire into the existence of the lawsuits, when they were filed, 8 whether the lawsuit was for medical malpractice or another cause of action related to the 9 provision of medical care, and whether the case was resolved or is still pending. 10 The Court finds that the fact that these lawsuits may be relevant to Plaintiffs’ damages in 11 this action. To the extent that Plaintiff alleges prejudice if evidence of the lawsuits is admitted, 12 the parties shall include a limiting instruction in their proposed jury instructions addressing the 13 proper use of this evidence. Plaintiffs have not shown that the prior lawsuits are inadmissible in 14 this matter on all potential grounds. Plaintiffs’ motion in limine no. 7 to preclude all evidence 15 related to other malpractice lawsuits involving Plaintiff Chaudhry or his medical practice is 16 denied. 17 2. Evidence related to other non-medical lawsuits involving Dr. Chaudhry or his medical practice 18 19 Plaintiffs’ eighth motion in limine seeks to exclude evidence of non-medical lawsuits that 20 were filed against Plaintiff Chaudhry. Specifically, Plaintiffs seek to exclude evidence of an 21 employment related lawsuit filed by James Robillard as irrelevant to the investigation that is the 22 subject of this case and is impermissible character evidence. 23 Defendants argue that several nonmedical lawsuits were filed against Plaintiff Chaudhry 24 before and after the incident with Mr. Perez. Defendants contend that these lawsuits are relevant 25 to Plaintiff Chaudhry’s claim for physical and economic damages. Specifically, Plaintiff 26 Chaudhry claims that he developed cluster headaches due to the emotional distress from the 27 investigation and publishing of the State 2567 report. Defendants argue that the jury is entitled to 28 hear evidence that Plaintiff Chaudhry had other stressors during this time period, including that 37 1 there were other pending litigation matters. Since any such testimony will be brief and concise, 2 Defendants state that any potential for prejudice shall be substantially curtailed. 3 The Court finds that the fact that the lawsuits were filed may be relevant to Plaintiffs’ 4 damages in this action. However, the evidence would be limited by Rule 403 as to the allegations 5 in and the nature of the suit. Plaintiffs have not shown that the prior lawsuits are inadmissible in 6 this matter on all potential grounds. Plaintiffs’ motion in limine no. 8 to preclude all evidence 7 related to other non-medical lawsuits involving Plaintiff Chaudhry or his medical practice is 8 denied. 9 G. Evidence That the Closure of Mr. Perez By Bella Albakova Was Not Within Standard and Accepted Medical Care 10 11 Plaintiffs’ ninth motion in limine seeks to preclude evidence that it was improper for 12 Plaintiff Chaudhry to permit PA Albakova to close Mr. Perez’s chest because she was not 13 authorized or qualified to do so. Plaintiffs argue that this is irrelevant given that the only issue is 14 whether Plaintiff Chaudhry left the operating room while Mr. Perez was unstable which has been 15 established by the stipulation of the parties and because Dr. Bhatt was present, assisted PA 16 Albakova, and was fully authorized to close Mr. Perez’ chest. 17 Defendants counter that they have no intention of arguing that having PA Albakova close 18 Mr. Perez was below the standard of medical care or was unacceptable. However, Defendants 19 contend that they can present evidence that allowing PA Albakova to close the chest violated the 20 hospital’s by-laws and thus state and federal regulations. Further, Defendants argue that they are 21 entitled to argue that Plaintiff Chaudhry left the operating room while PA Albakova and Dr. 22 Dhillon, neither of whom were qualified to oversee Mr. Perez’s surgery, were still suturing the 23 chest. The hospital determined that Plaintiff Chaudhry violated its by-laws by leaving the 24 operating room without designating a qualified cardiac surgeon to take over Mr. Perez’s care. 25 The hospital provided this information to Defendants and it was included in the State 2567 report. 26 Defendants state that this information is relevant to their conduct and whether they reasonably 27 relied on the hospital’s finding as being true. 28 To the extent that Plaintiffs seek to preclude evidence that PA Albakova was closing Mr. 38 1 Perez after Plaintiff Chaudhry left the surgery room, this is a disputed fact that is relevant to the 2 finding in the report that the hospital violated state and federal regulations by Plaintiff Chaudhry 3 leaving the operating room before the patient was stable and with an individual not qualified to be 4 in charge. However, the parties agree that the issue of whether allowing PA Albakova to close 5 Mr. Perez’s chest is not relevant to the issues to be decided in this case. Plaintiffs’ motion in 6 limine no. 9 to preclude evidence that allowing PA Albakova to close was not within standard and 7 acceptable medical care is granted. 8 H. Evidence That Plaintiff Chaudhry and Bella Albakova Had a Personal Relationship or That Plaintiff Chaudhry Was Involved in an Extra-Marital 9 Affair 10 Plaintiffs’ twelfth motion in limine seeks to preclude evidence that Plaintiff Chaudhry was 11 involved in a personal relationship with PA Albakova and that he had additional extramarital 12 affairs as irrelevant. 13 Defendants do not oppose the motion to exclude evidence of any extramarital affair by 14 Plaintiff Chaudhry or a romantic relationship between Plaintiff Chaudhry and PA Albakova. 15 However, Defendants state that if Plaintiff attempts to impugn PA Albakova’s testimony by 16 portraying her as a woman scorned, then they will be entitled to elicit testimony from Plaintiff 17 Chaudhry and PA Albakova regarding their personal relationship and Plaintiff Chaudhry’s extra- 18 marital affairs. 19 Due to Defendants’ lack of opposition, the motion in limine no. 12 to exclude evidence 20 that Plaintiff Chaudhry was engaged in extra-marital affairs and that he had a relationship with 21 PA Albakova is granted. 22 I. Revocation of Defendant Lopez’s Medical License and Prior Convictions 23 Defendants contend that Plaintiffs’ attorneys have indicated that they intend to introduce 24 evidence that Defendant Lopez had convictions for driving under the influence, public urination, 25 and possession of cocaine which resulted in the revocation of his medical license by the 26 California Medical Board in 1994. Defendants’ first motion in limine seeks to preclude such 27 evidence on the ground that it is inadmissible, irrelevant and unduly prejudicial. 28 Plaintiffs counter that, while the convictions themselves are not relevant as governed by 39 1 Rules 609 and 404, they are significant because they resulted in the revocation of Defendant 2 Lopez’s medical license. Plaintiffs argue that it would confuse the jury if it were to be informed 3 that Defendant Lopez lost his medical license but was not advised as to why it was revoked. 4 Plaintiffs set forth four reasons why the convictions are relevant in this matter. First, Plaintiffs 5 contend that they reveal a troubling lack of judgment by Defendant Lopez regarding matters 6 concerning the medical profession that could have affected his decision to approve the State 2567 7 report. Second, Plaintiffs argue that even though Defendant Lopez was not required to hold a 8 medical license for his positions at CDPH, his testimony will require medical knowledge and 9 allowing him to testify without the jury considering the revocation of his medical license 10 represents manifest injustice. Third, Plaintiffs argue that the convictions raise questions about 11 Defendant Lopez’s truthfulness in reporting the license revocation which reflects on his 12 credibility as a witness. Fourth, Plaintiff contend that Defendant Lopez could have been 13 motivated by animus toward Plaintiff Chaudhry that resulted from the loss of his medical license 14 as is evidenced by the “hatchet job” report that was produced regarding Plaintiff Chaudhry. 15 1. Convictions 16 Defendant Lopez contends that his convictions were misdemeanors or were not punishable 17 for more than one year and are not admissible under Rule 609 of the Federal Rules of Evidence. 18 Further, Defendant Lopez argues that even if the convictions were admissible under Rule 609(a), 19 Plaintiffs did not provide written notice of their intent to introduce evidence of these convictions 20 as required under Rule 609(b). Defendants also contend that there is no evidence that Defendant 21 Lopez has a substance abuse problem in 2012 which affected his judgment or cognitive abilities. 22 The convictions have no probative value on Defendant Lopez’s credibility and should be 23 excluded. 24 Plaintiffs concede that the convictions are not admissible under Rules 609 or 404. Rule 25 609 provides that, regardless of the punishment, a crime for which a witness has been convicted 26 “must be admitted if the court can readily determine that establishing the elements of the crime 27 required proving--or the witness’s admitting--a dishonest act or false statement.” Fed. R. Evid. 28 609(a)(2). A conviction where more than 10 years have passed since the conviction or release 40 1 from confinement is only admissible where “(1) its probative value, supported by specific facts 2 and circumstances, substantially outweighs its prejudicial effect; and (2) the proponent gives an 3 adverse party reasonable written notice of the intent to use it so that the party has a fair 4 opportunity to contest its use.” Fed. R. Evid. 609(b). 5 Plaintiffs argue that these convictions reveal a troubling lack of judgment by Defendant 6 Lopez regarding matters concerning the medical profession that could have affected his decision 7 to approve the State 2567 report. Yet the convictions at issue are more than 20 years old, 8 Plaintiffs concede that they do not prove a dishonest act or false statement, and to the extent any 9 of the convictions would fall within section 609(b) and there could be probative value in this 10 action, Plaintiffs did not provide written notice of intent to use the convictions. 11 2. Revocation of Medical License 12 Defendant Lopez moves to exclude evidence regarding the revocation of his medical 13 license on the ground that it is inadmissible character evidence. Defendant Lopez contends that 14 the only reason to allow such evidence is to prove that he was a drunk, a convict and engaged in 15 unlawful behavior which is improper under Rule 404(b). Defendant Lopez states that Plaintiffs 16 have argued that the revocation of his medical license is admissible to show that he was not 17 qualified to review and approve the State 2567 report that was published because his medical 18 license was revoked. However, Defendant Lopez argues that this is incorrect and no medical 19 license is required for his position as a Health Facilities Evaluator Supervisor or for his position 20 as a Staff Services Manager I. 21 Citing Welden v. Hale, No. 2:15-CV-2410, 2017 WL 3479622, at 7–8 (S.D. Ohio, Aug. 22 14, 2017) report and recommendation adopted No. 2:15-CV-2410, 2017 WL 3769346.) (S.D. 23 Ohio, Aug. 29, 2017), Plaintiffs counter that, while the misdemeanor convictions are not relevant 24 by themselves, they are significant because they resulted in the revocation of Defendant Lopez’s 25 medical license. Plaintiff contend that the convictions possess the probative value that overcomes 26 its prejudice under section 609(a)(1)(2). 27 In Welden, a physician had his medical license revoked after a finding that he was 28 impaired in his ability to practice according to acceptable and prevailing standards of care because 41 1 of habitual or excessive use or abuse of drugs or alcohol, failure to provide required 2 documentation of compliance, and failure to submit to random urine screens and processes. 2017 3 WL 3479622 at *8. The physician was incarcerated and brought a medical deliberate indifference 4 claim against the physicians who treated him in prison. Id. at *5. On summary judgment, he 5 sought to exclude evidence of the revocation of his medical license and the defendants argued that 6 it was admissible under Rule 803(8) of the Federal Rules of Evidence. Id. at *8. The court 7 agreed finding the revocation of the medical license was admissible and relevant. Id. The 8 revocation of the medical license was relevant because the physician was seeking to present 9 evidence as a medical expert in the case. Id. at *10. The court found that “Plaintiff is not a 10 licensed physician in good standing with the Ohio Medical Board. Accordingly, ‘Plaintiff’s 11 assertions regarding his interpretation of the medical evidence and recitation of treatment received 12 since his release from ODRC do not constitute medical expert testimony.’ ” Id. (internal citation 13 omitted). 14 This case is distinguishable because Defendant Lopez is not testifying as a medical expert 15 regarding the appropriateness of Plaintiff Chaudhry’s treatment of Mr. Perez. Unlike the 16 physician in Welden, the revocation of Defendant Lopez’s license did not include a finding that 17 he was impaired in his ability to practice according to acceptable and prevailing standards of care 18 because of habitual or excessive use or abuse of drugs or alcohol. (ECF No. 91-1.) More 19 importantly, Defendant Lopez is not offering medical testimony in this action. Since Defendant 20 Lopez is not testifying regarding medical issues or as a medical expert the revocation of his 21 license is not relevant. 22 Mr. Lopez is testifying in his position as a Health Facilities Evaluator Supervisor (HFES) 23 and Plaintiffs have presented no evidence that a medical license is required for Defendant Lopez 24 to work as a HFES or a Staff Services Manager. (See Duty Statement for Health Facilities 25 Evaluator II (Supervisor), ECF No. 91-2; Duty Statement, Staff Services Manager I, ECF No. 91- 26 3.) 27 [A HFES] provides the first level of supervision to a field staff (Health Facilities Evaluator Nurses (HFEN) and Health Facilities Evaluator I) responsible for 28 surveying health care facilities and enforcing licensing and certification standards 42 1 in accordance with State, Federal, and local laws and regulations. The HFE II (Sup) reviews all reports, surveys and correspondence prepared by field staff, 2 including consultant and State Fire Marshall input. The Supervisor communicates with the public and health facility operators/administrators on policy, procedures 3 and regulatory interpretations for the health facilities in his/her assigned area. The HFE II (Sup) is responsible for working together with all Program personnel 4 to assure quality work and performance, in order to achieve established goals and objectives and fulfill the mission of the Department. 5 6 (Id. at 2.) Since Defendant Lopez is testifying as to compliance of the heath care facility with 7 licensing and certification standards with State, Federal, and local laws and regulations and not as 8 a medical expert, the revocation of his medical license is not relevant to his testimony. 9 Plaintiffs argue that even though Defendant Lopez was not required to hold a medical 10 license for his positions at CDPH, his testimony will require medical knowledge and allowing 11 him to testify without the jury considering the revocation of his medical license represents 12 manifest injustice. But Plaintiffs have not presented any evidence or explained why allowing 13 Defendant Lopez to testify to CRMC’s compliance with its own bylaws or state or federal 14 regulations will require medical knowledge. The Court rejects the argument that it would result 15 in manifest injustice to allow his testimony in this matter without admission of the fact that his 16 medical license was revoked. 17 Plaintiffs also argue that the convictions raise questions about Defendant Lopez’s 18 truthfulness in reporting the license revocation which reflects on his credibility as a witness. Rule 19 608 of the Federal Rules of Evidence allows examination into “specific instances” of a witness’s 20 conduct if it is probative or the witnesses truthfulness or untruthfulness. United States v. Dickens, 21 775 F.2d 1056, 1058 (9th Cir. 1985). Rule 608(b) only allows impeachment by specific acts that 22 have not resulted in a criminal conviction. United States v. Osazuwa, 564 F.3d 1169, 1175 (9th 23 Cir. 2009). Neither Defendant Lopez’s arrest for possession of cocaine or the revocation of his 24 medical license are probative as to his character for truthfulness. Further, Plaintiffs’ argument 25 that Defendant Lopez may not have reported his license revocation when required to do so is 26 speculative. Evidence of the revocation of his medical license is not probative as to Defendant 27 Lopez’s truthfulness, would be confusing to the jury and prejudicial. Fed. R. Evid. 403. 28 Finally, Plaintiff contends that Defendant Lopez could have been motivated by animus 43 1 toward Plaintiff Chaudhry that resulted from the loss of his medical license as is evidenced by the 2 “hatchet job” report that was produced regarding Plaintiff Chaudhry. “Evidence helpful in 3 evaluating the credibility of a witness is of consequence to the determination of the action. 4 Evidence is relevant to a matter of consequence to the determination of the case if it has a mere 5 tendency to impeach a witness’ credibility by a showing of bias or coercion.” United States v. 6 Hankey, 203 F.3d 1160, 1171 (9th Cir. 2000). “Proof of bias is almost always relevant because 7 the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all 8 evidence which might bear on the accuracy and truth of a witness’ testimony.” United States v. 9 Abel, 469 U.S. 45, 52 (1984). Neither Plaintiffs’ speculation regarding possible bias nor their 10 characterization of the investigation as a “hatchet job” are sufficient to show animus by Defendant 11 Lopez such that the revocation of his medical license would be relevant here.8 12 The Court finds that the revocation of Defendant Lopez’s medical license is not relevant 13 in this matter. 14 3. Conclusion 15 Defendant Lopez’s prior misdemeanor convictions, arrest for possession of cocaine, and 16 the revocation of his medical license are not relevant in this matter and admission of the evidence 17 would be prejudicial to Defendant Lopez and confusing to the jury. Defendants’ motion in limine 18 no. 1 to preclude evidence of the revocation of Defendant Lopez’s medical license, his prior 19 convictions, and his arrest for cocaine possession is granted. 20 J. Documents That Have Not Been Timely Disclosed 21 Defendants’ sixth motion in limine seeks to exclude any documents that Plaintiffs did not 22 timely disclose in discovery. Specifically, Defendants contend that Plaintiffs have indicated that 23 they intend to admit an audio recording of Plaintiff Chaudhry’s dictation during the operation on 24 Mr. Perez and a transcript of the recording which were not disclosed during discovery. Similarly, 25 8 The Court recognizes that it is conceivable that Defendant Lopez harbored animosity toward Plaintiff Chaudhry due 26 to the revocation of his medical license and such evidence may go towards bias. However, Plaintiff Chaudhry has not presented any evidence of such animosity, such as deposition testimony or statements by Defendant Lopez that would 27 exhibit bias in this matter. Plaintiffs’ argument is based on pure speculation and conjecture. This is insufficient for impeachment purposes as to bias and frankly also falls within the purview of Rule 403 to the extent that there is any 28 probativeness based upon mere speculation and conjecture. 44 1 Defendants argue that Plaintiffs have included other items on the exhibit list that were disclosed 2 in Perez, but were not disclosed in this case. Defendants state that they were not parties to the 3 Perez case and were not provided with an opportunity to conduct discovery on the documents or 4 to challenge their accuracy. Defendants contend that the failure to timely disclose was neither 5 harmless nor justified and the documents should be excluded in this matter. 6 Plaintiffs argue that they submitted their proposed exhibit list to Defendants over four 7 months ago and Defendants refused to exchange documents at that time. Plaintiffs contend that 8 Defendants were aware of the dictation and transcript because the majority of the exhibits are 9 drawn from the Perez case. Plaintiffs further argue that the documents were disclosed in their 10 pretrial report and Defendants waived any objection to the recording or the transcript by failing to 11 object sooner. 12 First, the Court considers Plaintiffs’ argument that Defendants waived any objection to the 13 recording and transcript because the documents were disclosed in their pretrial report and no 14 objection was made. Plaintiffs have submitted no authority in support of their argument that 15 failure to object to the exhibits waived any objection. Neither the Local Rules or the pretrial 16 order establish a timeline for objections to the exhibits listed in a party’s pretrial report. 17 Plaintiffs’ exhibits are listed, as relevant here, as 18 13. Post-operative brief note; 14. Post-operative orders (Other Orders (continued)); 19 15. Operative report; 16. Post-surgical dictation transcript[.] 20 21 (ECF No. 88 at 32.) Vague descriptions of documents are insufficient to meet the disclosure 22 requirements under Rule 26. Cervantes v. Zimmerman, No. 17-CV-1230-BAS-NLS, 2019 WL 23 1598219, at *5 (S.D. Cal. Apr. 15, 2019). Plaintiffs’ identification of the transcript as “post- 24 surgical dictation transcript” would not reasonably inform the defendants that the document was 25 an audio recording of the surgery of Mr. Perez. At the February 7, 2020 hearing, Defendants 26 stated that it was not until the meet and confer approximately one month ago that they realized 27 that the transcript and dictation at issue were different than the operative report. In this instance, 28 Plaintiffs have not demonstrated that Defendants waived any objection to the dictation and report 45 1 by failing to object earlier. 2 Rule 26 of the Federal Rules of Civil Procedure requires a party to produce without a 3 discovery request, “a copy--or a description by category and location--of all documents, 4 electronically stored information, and tangible things that the disclosing party has in its 5 possession, custody, or control and may use to support its claims or defenses, unless the use 6 would be solely for impeachment.” Fed. R. Civ. P. 26(a)(1)(ii). The parties are required to 7 supplement their initial disclosures or discovery responses “(A) in a timely manner if the party 8 learns that in some material respect the disclosure or response is incomplete or incorrect, and if 9 the additional or corrective information has not otherwise been made known to the other parties 10 during the discovery process or in writing; or (B) as ordered by the court.” Fed. R. Civ. P. 26(e). 11 Rule 36(c)(1) gives teeth to the expert disclosure “requirements by forbidding the use at trial of 12 any information required to be disclosed by Rule 26(a) that is not properly disclosed.” Yeti v. 13 Molly, Ltd., 259 F.3d at 1106. Rule 36 provides that a party is not allowed to use information or 14 witnesses that are not disclosed or supplemented as required by Rule 26(a) or (e) unless the 15 failure was substantially justified or harmless. Fed. R. Civ. P. 36(c)(1). “The Advisory 16 Committee Notes describe [this] as a ‘self-executing,’ ‘automatic’ sanction to ‘provide[ ] a strong 17 inducement for disclosure of material. . . .’ ” Yeti by Molly, Ltd., 259 F.3d at 1106 (quoting Fed. 18 R. Civ. P. 37 advisory committee’s note (1994)). But Rule 37(c)(1) did not “strip the district 19 courts of discretion to allow expert testimony in appropriate circumstances; to the contrary, it 20 contains an express exception under which a failure timely to serve an expert report may be 21 excused if the failure was substantially justified or is harmless.” Lanard Toys Ltd. v. Novelty, 22 Inc., 375 F. App’x 705, 713 (9th Cir. 2010). The burden is on the party seeking to admit the 23 evidence to demonstrate that the failure to disclose was substantially justified or harmless. Yeti 24 by Molly, Ltd., 259 F.3d at 1107; R & R Sails, Inc. v. Ins. Co. of Pennsylvania, 673 F.3d 1240, 25 1246 (9th Cir. 2012). 26 “Among the factors that may properly guide a district court in determining whether a 27 violation of a discovery deadline is justified or harmless are: (1) prejudice or surprise to the party 28 against whom the evidence is offered; (2) the ability of that party to cure the prejudice; (3) the 46 1 likelihood of disruption of the trial; and (4) bad faith or willfulness involved in not timely 2 disclosing the evidence.” Lanard Toys Ltd., 375 F. App’x at 713 (citing David v. Caterpillar, 3 Inc., 324 F.3d 851, 857 (7th Cir. 2003)); Monroe v. Davis, No. 2:13-CV-00863-GMN, 2014 WL 4 3845121, at *2 (D. Nev. Aug. 4, 2014). 5 Here, the pretrial order provided that the parties were to make all initial disclosures 6 required by Fed. R. Civ. P. 26(a)(1) by May 5, 2017, with all non-expert discovery to be 7 completed by November 6, 2017. (ECF No. 17 at 2.) The order advised the parties, “The 8 provisions of Fed. R. Civ. P. 26(e) regarding a party’s duty to timely supplement disclosures and 9 responses to discovery requests will be strictly enforced. (Id.) Subsequently, the non-expert 10 discovery deadline was extended and non-expert discovery closed on April 9, 2018, with a further 11 extension for the limited purpose of deposing Defendant Kappmeyer by July 20, 2018. (ECF 12 Nos. 30, 34.) 13 At the February 7, 2020 hearing, Plaintiffs’ counsel stated he is not aware if the audio 14 recording and transcription were produced during discovery, however, in their motion Defendants 15 state that the evidence was not produced during discovery. Plaintiffs argue that Defendants were 16 aware of the recording and transcript because it was used during the Perez action. However, 17 Defendants in this action were not parties in the Perez action so disclosure in that case is not 18 sufficient to demonstrate that the defendants here had knowledge of the recording and transcript. 19 Plaintiffs have not demonstrated that Defendants were aware of the recording or transcript prior to 20 the filing of the joint pretrial report. 21 The audio recording was created by Plaintiff Chaudhry at the time of Mr. Perez’s surgery 22 in 2012. Plaintiffs assert that the evidence was used in the Perez case which was tried to a jury in 23 March 2018.9 Therefore, it is clear that the recording and transcript were in Plaintiff Chaudhry’s 24 custody and control prior to discovery closing in this action. Further, that the recording could be 25 used to support Plaintiffs’ defense to the statements in the State 2567 report would have been 26 obvious. Rule 26(a)(1)(A)(ii) “requires a party to disclose all documents which are relevant to his 27 9 The Court takes judicial notice of the records of the Fresno County Superior Court. See Superior Court of California, County of Fresno, Smart Search, enter case number 13CECG03906, 28 https://publicportal.fresno.courts.ca.gov/FRESNOPORTAL/Home/WorkspaceMode?p=0 (last visited Feb. 13, 2020). 47 1 claims and defenses.” Cervantes v. Zimmerman, No. 17-CV-1230-BAS-NLS, 2019 WL 2 1598219, at *5 (S.D. Cal. Apr. 15, 2019) (quoting Estakhrian v. Obenstine, No. CV11-3480-FMO 3 (CWx), 2016 WL 6868178, at *8 (C.D. Cal. Feb. 29, 2016).). The audio recording of Mr. Perez’s 4 surgery was clearly relevant in this action and should have been disclosed pursuant to Rule 26(a). 5 Plaintiffs have offered no why the audio recording of the surgery or the transcript were not 6 produced during discovery in this action. Plaintiffs have not met their burden to demonstrate that 7 the failure to produce the recording or transcript was substantially justified. 8 Defendants have sufficiently alleged that the production of the transcript and recording 9 was a surprise and that they were unable to cure any prejudice because discovery has been closed 10 and trial is imminent. Based on Defendants motion and argument at the February 7, 2020 11 hearing, Defendants were unaware of this recording and transcript until approximately one month 12 prior to the filing of the motions in limine. The Court construes Plaintiffs’ argument to be that the 13 failure to produce the evidence was harmless because they submitted their exhibit list over four 14 months ago and they offered to exchange exhibits but Defendants refused. However, Defendants 15 argue that they were not afforded the opportunity to conduct any discovery as to the recording or 16 to challenge the accuracy of the evidence. 17 Discovery in this matter has been closed for almost two years and trial is imminent. To 18 reopen discovery at this time would require the trial date in this matter to be continued yet again. 19 The trial of this matter has been continued on three prior occasions. (ECF Nos. 67, 70, 85, 95.) 20 The Court has informed that parties on numerous occasions that no further continuances will be 21 granted in this matter. To continue the trial a fourth time based on the last-minute disclosure of 22 evidence that Plaintiffs have had in their possession and control for several years would be 23 prejudicial to defendants. See Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 863 24 (9th Cir. 2014) (exclusion of 38 relevant witnesses disclosed on the eve of trial not abuse of 25 discretion); Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175, 1180 (9th Cir. 2008), as 26 amended (Sept. 16, 2008) (affirming preclusion of evidence of damages disclosed on the eve of 27 trial); Ingenco Holdings, LLC v. Ace Am. Ins. Co., 921 F.3d 803, 821–22 (9th Cir. 2019) (late 28 disclosure was not harmless because it disrupted both defendant’s and the court’s schedules); ); 48 1 Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175, 1180 (9th Cir. 2008), as amended 2 (Sept. 16, 2008) (late disclosure was not harmless where it would likely require court to create a 3 new briefing schedule and re-open discovery); Nat’l R.R. Passenger Corp. v. Young’s 4 Commercial Transfer, Inc., No. 1:13-CV-01506-DAD-EPG, 2016 WL 1573262, at *6 (E.D. Cal. 5 Apr. 19, 2016) (excluding testimony where all discovery had closed, the time for the filing of 6 dispositive law and motion had passed, and final pretrial conference was less than six weeks 7 away). The Court finds that Defendants have demonstrated prejudice due to the late disclosure of 8 the recording and transcript. Plaintiffs have failed to meet their burden to show that the failure to 9 produce the recording and transcript is harmless. 10 Plaintiffs have failed to meet their burden to demonstrate that the failure to disclose was 11 substantially justified or harmless. Yeti by Molly, Ltd., 259 F.3d at 1107. Accordingly, 12 Defendants’ motion in limine no. 6 to exclude the audio recording and transcript is granted. 13 K. Relitigating the Negligence Cause of Action Tried and Determined in Perez 14 Defendants’ seventh motion in limine seeks to preclude Plaintiffs from relitigating the 15 negligence cause of action that was tried in Perez in which Plaintiff Chaudhry was found liable 16 for medical malpractice. Defendants move to exclude witnesses on Plaintiffs’ list that were not 17 involved in the investigation which resulted in the issuance of the State 2567 report on the ground 18 that their testimony is irrelevant, will confuse the jury and will waste time. Defendants seek an 19 order requiring Plaintiffs to make an offer of proof as to each witness before that individual takes 20 the stand to show that they have unique and relevant information pertinent to the due process 21 claim being tried in this action. 22 Plaintiffs counter that this action cannot be tried without discussing the medical details of 23 what happened the day of the surgery. Plaintiffs argue that Defendants have not specified which 24 witnesses or evidence they seek to exclude and therefore, Plaintiffs are unable to offer a 25 substantial opposition to the motion.10 26 The Court finds that whether a specific witness should be excluded is an issue that will 27 10 In their opposition to Defendants’ motion in limine, Plaintiffs raise a “newly discovered issue” regarding Plaintiff Chaudhry’s licensure. At the February 7, 2020 hearing, Defendants asserted that they do not intend to bring this issue 28 up in front of the jury. 49 1 need to be addressed at trial. Defendants may raise an objection to any specific witness at the 2 time that the witness is called to testify. Defendants’ motion in limine no. 7 is denied without 3 prejudice. 4 IV. 5 CONCLUSION AND ORDER 6 Based on the foregoing, IT IS HEREBY ORDERED that: 7 1. Plaintiffs’ motions in limine nos. 5, 9, and 12 are GRANTED; 8 2. Plaintiffs’ motions in limine nos. 1, 2, 3, 4, 6, 7, 8, 10, and 11, are DENIED; 9 3. Defendants’ motions in limine nos. 1, 2, 5, 6 are GRANTED; 10 4. Defendants’ motions in limine no. 7 is DENIED without prejudice; and 11 5. Defendants’ motion in limine no. 3 is GRANTED IN PART and Plaintiffs’ expert 12 witnesses may only testify as to their percipient knowledge developed in treating 13 Plaintiff Chaudhry or preparing Plaintiffs’ tax return; 14 6. Defendants’ motion in limine no. 4 is GRANTED IN PART AND DENIED IN 15 PART as follows: 16 a. The motion to exclude testimony from Plaintiffs’ former attorneys as to 17 economic loss or causation is GRANTED; and 18 b. The motion to exclude Plaintiff Chaudhry’s testimony regarding business 19 valuation or losses is DENIED. 20 IT IS SO ORDERED. 21 22 Dated: February 21, 2020 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 50