Nevis v. Rideout Memorial Hospital ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH DANIEL NEVIS, No. 2:17-cv-02295-DAD-AC 12 Plaintiff, 13 v. ORDER RULING ON MOTIONS IN LIMINE 14 RIDEOUT MEMORIAL HOSPITAL, et (Doc. Nos. 161, 162, 163, 165, 167, 168, 169, al. 171, 172, 173, 174, 175, 176, 178, 179, 180, 15 181, 182, 183, 184, 185, 186, 187, 188) Defendants. 16 17 The matter is before the court on the motions in limine filed on behalf of defendants 18 Rideout Memorial Hospital (“Rideout”) (Doc. Nos. 161, 162, 163), Dr. Hector Lopez (Doc. Nos. 19 165, 167, 168, 169, 171, 180, 184), National Railroad Passenger Corporation (“Amtrak”) (Doc. 20 Nos. 176, 178, 179, 181, 183, 185, 186), and plaintiff Joseph Daniel Nevis (Doc. Nos. 172, 173, 21 174, 175, 182, 187, 188). On September 30, 2022, the court issued tentative rulings addressing 22 all of the parties’ motions in limine (Doc. No. 300), and on October 3, 2022, the court heard 23 argument from the parties with respect to the motions and the court’s tentative rulings thereon. 24 At the hearing, attorney Raymond McElfish appeared on behalf of plaintiff; attorneys Robert 25 Zimmerman and Chad Couchot appeared on behalf of defendant Rideout Memorial Hospital; 26 attorneys Bradford Hinshaw and Peter Washington appeared on behalf of defendant Dr. Hector 27 Lopez; and attorneys Jason Schaff and Nicole Low appeared on behalf of defendant Amtrak. As 28 set forth below, and based on the arguments heard at the October 3, 2022 hearing, the court will 1 adopt most of its tentative rulings, defer some rulings until Daubert hearings are conducted 2 during trial outside the presence of the jury when the expert witnesses are made available, and 3 will modify two of its tentative rulings as specified below. 4 The following tentative rulings are hereby adopted as the court’s final ruling with any 5 clarifications provided by footnote: defendant Rideout’s motions in limine numbers one and three 6 (Doc. Nos. 161, 163); defendant Dr. Lopez’s motions in limine numbers three,1 four, seven, nine,2 7 and ten (Doc. Nos. 167, 168, 171, 180, 184); defendant Amtrak’s motions in limine one,3 two, 8 four, and six (Doc. Nos. 176, 178, 181, 185); and plaintiff’s motions in limine numbers one,4 two, 9 1 The court has reviewed the cases cited by counsel for defendant Rideout at the hearing and does 10 not agree that the issue of ostensible agency is a purely legal question based on Rideout’s 11 assertions that plaintiff stated in his deposition that he had “no recollection of his visit to Rideout Memorial Hospital on the early morning in question.” (Doc. No. 167 at 3.) Although reliance on 12 the apparent agency between the doctor and a hospital is a necessary element for establishing ostensible agency, “there is really only one relevant factual issue: Whether the patient had reason 13 to know that the physician was not an agent of the hospital. . . . [U]nless the patient had some reason to know of the true relationship between the hospital and physician—i.e., because the 14 hospital gave the patient actual notice or because the patient was treated by his or her personal 15 physician—ostensible agency is readily inferred.” Magallanes v. Drs. Med. Ctr. of Modesto, 80 Cal. App. 5th 914, 923 (2022) (quoting Markow v. Rosner, 3 Cal. App. 5th 1027, 1038 (2016)). 16 Indeed, “[i]n the physician-hospital-patient context, ostensible agency is a factual issue ‘[u]nless the evidence conclusively indicates that the patient should have known that the treating physician 17 was not the hospital’s agent[.]’” Id. Here, defendants Rideout and Dr. Lopez have failed to establish, based on their mere reference to plaintiff’s deposition testimony, that plaintiff 18 “conclusively” should have known that Dr. Lopez was not an agent of the hospital. Thus, the 19 court will not modify its tentative ruling as to this motion and instead adopts it as final. 20 2 To the extent plaintiff’s counsel wishes to seek to impeach defendant Dr. Lopez with a particular prior or subsequent lawsuit, plaintiff’s counsel is ordered to disclose that information in 21 advance of doing so. 22 3 Defendant Amtrak will be permitted to examine plaintiff’s experts Dr. Bong J. Walsh and Felix 23 Lee outside the presence of the jury regarding the statements made in their declarations submitted in support of plaintiff’s opposition to the present motion stating that, “[a]t no time did I step on 24 the train tracks, or enter, or cross the train or rail right of way or on the trestle, or any other private property for any purpose during my inspection. All of my observations and measurements 25 were taken from a public location.” (Doc. Nos. 254-6 at 3; 254-7 at 3.) 26 4 Plaintiff maintains that his one felony conviction may have been a felony conviction originally 27 but may have been later reduced to a misdemeanor. If plaintiff can show that his one felony conviction was in fact reduced to a misdemeanor and can provide relevant legal authority 28 supporting his position that the court should prohibit the use of a felony reduced conviction, then 1 three, four, five, and six (Doc. Nos. 172, 173, 174, 175, 182, 187, 188). 2 The court will defer its final rulings on the following motions in limine because Daubert 3 hearings will be conducted during trial, outside the presence of the jury, and the objecting parties 4 may re-raise their objections at that time after appropriate questioning of the challenged expert 5 witnesses: defendant Rideout’s motion in limine number two (Doc. No. 162);5 defendant Dr. 6 Lopez’s motion in limine number five (Doc. No. 169); defendant Amtrak’s motions in limine 7 number three (Doc. No. 179) and five (Doc. No. 183). 8 Lastly, the court will modify its tentative rulings with respect to defendant Dr. Lopez’s 9 motion in limine number one (Doc. No. 165) and defendant Amtrak’s motion in limine number 10 seven (Doc. No. 186) based on the argument at the hearing and upon further review. 11 Defendant Dr. Lopez’s motion in limine number one (Doc. No. 165) is now DENIED. 12 The court finds that the statement documented by paramedic Chalyssa Huebler that, “Yuba City 13 PD states he is too intoxicated to book into jail,” is one made for—and is reasonably pertinent 14 to—a medical diagnosis or treatment. See Fed. R. Evid. 803(4); Kitchen v. BASF, 952 F.3d 247, 15 255 (5th Cir. 2020) (finding that medical records reporting that plaintiff “had been having a 16 recent alcohol binge and drinking heavily for the previous ten days” fell within the hearsay 17 exception found in Federal Rule of Evidence 803(4)). To the extent that defendant Dr. Lopez’s 18 motion seeks to exclude other references of plaintiff being “too drunk for jail,” the motion is also 19 denied due to the lack of specificity regarding those particular references. 20 Defendant Amtrak’s motion in limine number seven (Doc. No. 186) is now DENIED. 21 After further consideration of plaintiff’s argument presented at the hearing, the court will change 22 its tentative ruling because it does not find the district court’s cursory analysis in Maharaj v. 23 California Bank & Trust, upon which defendant Amtrak relies, to be persuasive authority given 24 the facts in this case. 288 F.R.D. 458, 464 (E.D. Cal. 2013) (quoting Sandoval v. Am. Bldg. 25 the court will consider modifying its ruling on plaintiff’s motion in limine number one at that time. 26 27 5 Defendant Rideout’s motion in limine number two (Doc. No. 162) and defendant Dr. Lopez’s motion in limine five concern the same witness, the final ruling as to both motions will be 28 deferred until after the Daubert hearing is held as to plaintiff’s expert Dr. Epperson. 1 | Maint. Indus., Inc., 267 F.R.D. 257, 282 (D. Minn. 2007)). At the hearing, and as stated on the 2 || record, plaintiff’s counsel has provided substantial justification regarding the failure to make his 3 || initial disclosure of a specific emotional distress damages number—namely, that “emotional 4 || damages, because of their vague and unspecific nature, are oftentimes not readily amenable to 5 || computation.” Creswell vy. HCAL Corp., No. 04-cv-00388-BTM-RBB, 2007 WL 628036, at *2 6 || (S.D. Cal. Feb. 12, 2007). Moreover, defendant Amtrak did not point to any meaningful 7 || prejudice suffered stemming from plaintiffs failure to disclose the exact amount of non- 8 || economic damages being sought by plaintiff, further suggesting that plaintiffs failure to disclose 9 || a precise number was harmless. See Fed. R. Civ. Pro. 37(c)(1). Thus, plaintiff will be allowed to 10 || request a specific number for emotional distress/non-economic damages from the jury at trial. 11 Accordingly, for the reasons set forth above, the undersigned rules as follows: 12 1. The following tentative rulings on the motions in limine (Doc. No. 300) are 13 adopted: Doc. Nos. 161, 163, 167, 168, 171, 172, 173, 174, 175, 176, 178, 180, 14 181, 182, 184, 185, 187, 188; 15 2. The following tentative rulings on the motions in limine (Doc. No. 300) are 16 deferred as specified in this order: Doc. Nos. 162, 169, 179, 183; 17 3. The following tentative rulings on the motions in limine (Doc. No. 300) are 18 modified as specified in this order: Doc. Nos. 165, 186; and 19 4. The Clerk of the Court is directed to update the docket to reflect that defendant 20 Union Pacific Railroad Company was dismissed from this action on January 14, 21 2020 and has been terminated as a named defendant (see Doc. Nos. 89, 112). 22 IT IS SO ORDERED. *° | Dated: _ October 4, 2022 Dab A. 2, ayel 24 UNITED STATES DISTRICT JUDGE 25 26 27 28