A.Y.O. v. Enloe Medical Center ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 | A.Y.O., a minor, by and through his guardian No. 2:21-CV-00285-KJM-JDP ad litem, Francis Ocasio, 12 ORDER B Plaintiff, 14 v: 15 Enloe Medical Center, doing business as Enloe Medical Center - Esplanade, 16 Defendant. 17 18 Presently there are four motions in limine pending in this medical malpractice action. 19 | Def. MIL No. 1, ECF No. 23; Def. MIL No. 3, ECF No. 25; Def. MIL No. 6, ECF No. 28; Pl. 20 | MIL No. 1, ECF No. 30. The court submits the motions without oral argument and resolves them 21 | on the papers. 22 First, defendant moves to preclude any evidence or argument that Dr. Akiba Green, the 23 | obstetrician/gynecologist who delivered plaintiff, was an agent of defendant. Def. MIL No. 1. 24 | The parties previously stipulated that plaintiff may not claim defendant is liable for Dr. Green’s 25 | actions or omissions under an ostensible agency theory. ECF No. 20. Defendant claims it did not 26 | realize plaintiff was pursuing an actual agent theory until reviewing the Joint Pretrial Statement. 27 | Def. MIL No. 1 at 2. Defendant now argues plaintiff's complaint “does not state a claim for 28 | agency” and Dr. Green “was not an agent of [defendant] as a matter of law.” Jd. at □□□ 1 Plaintiff’s complaint alleges that “[d]efendant and its employees were the agents of each other.” 2 Compl. ¶ 7, ECF No. 1. It does not indicate plaintiff is solely pursuing claims based on an 3 ostensible agency theory. Defendant’s arguments amount to “improperly seeking a dispositive 4 ruling . . . through a motion in limine” filed after the dispositive motion deadline. Hana Fin., Inc. 5 v. Hana Bank, 735 F.3d 1158, 1162 n.4 (9th Cir. 2013). The court denies the motion. 6 Defendant is not precluded from presenting evidence at trial in an effort to refute plaintiff’s claim 7 that Dr. Green is an actual agent of defendant. 8 Second, defendant argues the plaintiff should be limited to one obstetrician witness to 9 testify concerning the standard of care and causation. Def. MIL No. 3. Plaintiff argues that while 10 both Dr. Howard Mandel and Dr. Joseph Ouzounian are obstetricians, the two are properly 11 disclosed experts who have varying perspectives on the standard of care. Pl. Opp’n to MIL No. 3 12 at 4, ECF No. 40. Given the plaintiff’s proposal to limit the testimony of each expert to avoid any 13 overlap and the presentation of cumulative evidence, id, the court denies this motion without 14 prejudice. Defendant may object during trial should it believe the testimony of these experts is 15 unnecessarily cumulative. See Fed. R. Evid. 403. 16 Third, defendant requests plaintiff be physically present at voir dire. Def. MIL No. 6. 17 Plaintiff’s counsel insists plaintiff’s condition would make it difficult for him to travel from his 18 current home in San Antonio, Texas. Pl. Opp’n to MIL No. 6 at 2, ECF No. 41. Plaintiff is 19 wheelchair and gastrostomy-tube dependent, and receives almost daily therapy. Id. Plaintiff’s 20 counsel has not determined whether plaintiff, who is only 3 years old and unable to sit 21 independently, will be able to be present for any part of trial. Id. The court denies this motion. 22 The parties are directed to meet and confer regarding how to provide an appropriate visual 23 representation of plaintiff’s physical condition to the jury, with the goal of providing a report to 24 the court by the first morning of trial. 25 Lastly, plaintiff moves to preclude defendant from arguing Electronic Fetal Monitoring 26 (EFM) has no predictive value in diagnosing Cerebral Palsy (CP). Pl. MIL No. 1. Defendant 27 argues “[t]he efficacy of fetal heart monitoring in the prevention of cerebral palsy is a proper 28 subject for cross-examination.” Def. Opp’n, ECF No. 42. As defendant represents it will not 1 seek to elicit evidence or argue that “fetal heart monitoring has no value,” id., the court grants 2 the motion as unopposed. 3 In conclusion, the court denies defendant’s Motion in Limine Numbers 1 (ECF No. 23), 3 4 (ECF No. 25), and 6 (ECF No. 28). 5 The court grants plaintiff’s Motion in Limine Number 1 (ECF No. 30). 6 The court vacates the motion in limine hearing currently scheduled for June 17, 2022, at 7 10:00 a.m. 8 IT IS SO ORDERED. 9 DATED: June 7, 2022. 10