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COMMONWEALTH OF MASSACHUSETTS
BARNSTABLE, SS. SUPERIOR COURT
CIVIL ACTION
NO. 1872CV00606
DOUGLAS A. CAPAK, PERSONAL REPRESENTATIVE
OF THE ESTATE OF DAWN MARIE ROBERTS,
Plaintiff,
Vv ,
CLOE F. SHELTON, M.D.,
ANTHONY CARAVELLO, M.D.,
SHARON MAHONEY, M._D.,
SUSAN ANDEREGG, M.D.,
CAPE COD HOSPITAL,
TRISTAN MEDICAL P.C.,
G. CURTIS BARRY, M.D., P.C., AND
CAPE OBSTETRICS & GYNECOLOGY, P.C.,
Defendants.
PLAINTIFF’S MOTION IN LIMINE REGARDING VARIOUS IRRELEVANT
MATTERS
NOW COMES the Plaintiff, Douglas Capak, and moves in limine to preclude any and all
of the following matters at trial:
A References or statements by defense counsel or any witness that this case has been
devasting to the Defendants professional or personally, that they have been under stress as
a result of this litigation, sought mental health treatment or therapy as a result of this
litigation, or any such statements to that effect;
References or statements by defense counsel in opening statements to the effect that if
everything that the Plaintiff's counsel claim was true, then we would not be here, or any
such statement to that effect;
References or statements by defense counsel in opening statements about the jury’s
sympathy or empathy for the Plaintiff, which would constitute improper argument in an
opening statement;
References by defense counsel during witness examinations or by any witness regarding
their review of Plaintiffs witnesses’ trial testimony;
References or statements by defense counsel or any witness regarding the Defendants’
personal lives, including that of their families;
Defense counsel’s reference to any prior sworn statements of an expert in the absence of
an inconsistent statement first being made; and
Evidence of, or references to, various irrelevant matters involving the decedent and her
family.
A. Statements Regarding the Effect of This Lawsuit on the Defendants
The issue of whether or not this case or the initiation of this lawsuit by the Plaintiff has
affected the Defendants in any way is irrelevant to the issues appropriate for the jury’s
consideration in this case. Relevant evidence is any evidence which has a “rational tendency to
prove an issue in the case.” Commonwealth v. Fayerweather, 406 Mass. 78, 83 (1989). Certainly,
counsel for the defense may inform the jury that this case is important to all parties; however, any
effect that this lawsuit has had or is having on the Defendants—either professionally or
personally—has no rational tendency to prove any issue in this case and, therefore, is neither
relevant nor probative. Specifically, the effect of the case on the Defendants’ practices or personal
lives has no relevance as to whether or not the Defendants complied with the standard of care owed
to Dawn Marie Roberts during their care and treatment of her, nor is it relevant to causation,
damages, or to any other claims being advanced in this case. Moreover, such statements, whether
they be made during opening statements, during the course of evidence, or during closing
argument, would be offered for the sole, improper purpose of evoking sympathy from the jury for
the Defendants, thus attempting to focus the jury on issues outside the scope of issues appropriate
for their deliberation. Thus, any such evidence or references should be precluded.
B. Statements by Counsel on the Truth or Veracity of Information in Opening Statements
Statements such as “there are two sides to every story” or that there can be a difference of
perspective on issues in the case are appropriate in the context of opening statements; however, it
would be improper for defense counsel to suggest that Plaintiff's counsel has been untruthful.
Attorneys giving opening statements are charged with the duty of informing the jury about what
they expect the evidence to show, and setting up a roadmap for their respective cases. Regardless
of that distinction, implied or express statements by opposing counsel that an attorney’s opening
statement contained untruths would be an inappropriate attack on the truthfulness of that attorney,
enticing prejudice against him and his client from the outset. There will be no evidence as to what
would have happened had the parties agreed on all of the facts (i.e., settlement or assessment of
damages), and such references are inappropriate. By their very nature, such statements are
speculative and, frankly, untrue. Such statements improperly suggest to the jury that a settlement
agreement could actually have been reached by the parties in this case, and that the Plaintiff would
have accepted money in lieu of proceeding with trial and opting for a jury’s assessment of
damages. Accordingly, such references should be excluded.
C. Statements by Counsel in Opening Statements Regarding the Jury’s
Sympathy/Empathy for the Plaintiff
An opening statement is an opportunity for an attorney to state facts he or she anticipates
will be admitted in evidence for the jury’s consideration. Argument in opening statements is not
permitted. The defense cannot reasonably anticipate that any witness will be discussing anyone,
let alone the jury, having “sympathy for the plaintiff” or “empathy for the plaintiff” because such
testimony would not be admissible, Thus, there should be no reference in the opening statement
to the jury having sympathy or empathy for the Plaintiff, nor should there be any argument
referencing (or not referencing) the Court’s later jury instructions that they are not to be swayed
by personal feelings, including sympathy for any party. Any statements in an opening statement
to the effect that “everyone in this courtroom feels sympathy for the plaintiff’ would be improper
and falls well outside the scope of what the attorney anticipates the evidence will be. It is solely
within the Court’s purview to instruct the jury on the law. Any such references should be excluded.
D. Eliciting Testimony of Witnesses Regarding Review of or Comment About Plaintiff's
Witnesses’ Trial Testimony
It is the province of the fact finder, not the witness, to determine the weight and credibility
of testimony. Commonwealth v. Dabrieo, 370 Mass. 728, 734 (1976). It is improper for a lawyer
to direct questions at a witness in an attempt to have the witness characterize the testimony of other
witnesses as truthful or lying. Commonwealth v. Ward, 15 Mass. App. Ct. 400, 401-2 (1983).
Whether a witness believes the testimony of another witness is irrelevant. Id. By employing a
line of questioning designed to cause a witness to comment upon the veracity of another witness’s
testimony, a lawyer implies to the jury that differences in the testimony of the witness and any
other witness “could only be the result of lying and not because of... [some] other innocent reason.”
Td., citing United States v. Narciso, 446 F.Supp. 252, 321 (E.D.Mich.1977).
In any civil action, it is the plaintiff's burden to prove his or her case before the defense
presents their case. The plaintiff therefore calls witnesses to testify first and can never review the
actual trial testimony of defense witnesses before doing so. The defendants enjoy the benefit of
going after hearing the plaintiffs case and it is now common practice for defense lawyers to
expedite transcripts (whether official transcripts or not) of the plaintiff's witnesses to show them
to the defense witnesses. However, it is improper and impermissible for defense counsel to then
ask their witnesses to implicitly or explicitly comment on the veracity ofplaintiff's witnesses’ trial
1
testimony.' Such line of questioning is exactly what the Massachusetts courts have held is
improper as it is nothing but an attempt to have one witness, such as the defendant’s expert witness,
comment on the veracity of another witness, such as the plaintiffs’ expert witness. It is patently
unfair to the Plaintiff, whose attorney cannot elicit similar testimony with his or her expert because
(a) to do so would be improper conduct and (b) even if not improper, the order of witnesses would
not allow for such testimony by the Plaintiffs’ expert.
Lastly, the defense expert’s testimony is required to be disclosed to the plaintiff in advance
and obviously all disclosures are required to be made before trial. Thus, there is no circumstance
where the defense can disclose to plaintiff the substance of his or her disagreement with plaintiffs’
expert’s trial testimony. If there is a disclosed disagreement to the substance of Plaintiffs’
expert’s testimony based on the defense expert’s review of plaintiffs’ expert disclosure, then he or
she can certainly testify to the disclosed opinion so disagreeing without any need to mention
plaintiffs’ expert’s trial testimony. It is solely the role of the jury, and not any witness— particularly
one who is generally not even present for the day of testimony in question — to determine the
weight and credibility of any trial testimony. Accordingly, any such statements or attempts to
elicit such testimony should be precluded.
' This is done in a variety of ways, but most commonly asking a defense expert if they have
reviewed the trial testimony of plaintiff's expert and then asking the witnesses to “assume that
plaintiff's expert has testified that [and they fill in the blank with a characterization of plaintiff's
expert’s testimony], is that correct?” This obviously seeks to have the defense expert comment
directly on the veracity of plaintiff's expert’s testimony and is improper. It also leads to trial
delays as sidebar conferences are often required
5
E. Statements Regarding the Defendants’ Personal Lives Including Their Families
For some reason, there seems to be a trend of defendants in medical malpractice trials
testifying to detailed aspects of the lives their family members.” Any testimony concerning the
personal lives of the Defendants, including that of their family members, is wholly irrelevant to
the issues of this case and is precluded by a straightforward application of the relevancy test.
Evidence is considered relevant if it has the tendency to make a fact at issue more or less probable
than the fact would be absent the evidence, and the fact is of consequence in determining the issues
ofthe case. See Mass. G. Evid. § 401; Commonwealth v. Tassinari, 466 Mass. 340, 351 (2013).
All evidence must satisfy the threshold of relevancy. Commonwealth v. Carey, 463 Mass. 378,
387 (2012). Irrelevant evidence is not admissible and even relevant evidence may be excluded if
its probative value is substantially outweighed by the danger of confusing the issues or misleading
the jury. See Mass. G. Evid. § 403 (2016).
The issue in this case is whether the Defendants deviated from the accepted standard of
care in treating Ms. Roberts and whether their deviations caused her death. The personal lives of
the Defendants, including the lives and activities of their family members, have no relevant bearing
on the matters of negligence or causation at issue in this case. Presenting such evidence in opening
or closing statements, or eliciting such evidence from the Defendants on the witness stand, serves
no purpose other than to attempt to evoke improper feelings of sympathy or empathy from the jury
for the Defendants. Alternatively, such testimony can have the effect of evoking feelings of anger
or bias toward the Plaintiff for bringing this lawsuit against the Defendants. While Plaintiffs does
not object to basic questions of whether the Defendants are married and have children, the details
2 In recent cases, Plaintiffs counsel has observed attempts by the defense to elicit detailed
testimony about the educational and professional achievements of a defendant doctor’s children.
6
’
of the lives of these individuals are wholly irrelevant. Accordingly, such testimony should be
excluded.
F. Utilization of Prior Sworn Testimony Absent an Inconsistent Statemen:
While it is certainly permissible to utilize a witness’ prior sworn statements for the purpose
of impeachment, it is impermissible for an attorney to simply read from a prior transcript of an
expert in the absence of an inconsistent statement made in the trial at bar. For example, an expert
may have conceded during cross examination in a previous trial that they have testified in 38 states
around the country. Defense counsel is not permitted to reference the prior transcript unless he or
she has (a) first asked the witness on the stand if he has testified in 38 states around the country
and (b) the expert disagrees or gives a substantively different answer than he or she did in the prior
trial. However, if the expert gives the same answer, there is no need for reference to any prior
testimony, which is hearsay without an exception. Failing to follow these basic rules of trial
advocacy results in trial delays and sidebar conferences as objections will need to be made.
G. Various Irrelevant Matters Pertaining to the Decedent and Her Family
The Plaintiff seeks to preclude any evidence, reference or statements by counsel or
witnesses regarding various irrelevant matters involving the decedent and family including: (1) the
decedent’s prior alcohol use and mental health issues; and (2) a GoFundMe page created after the
decedent’s death, which would be impermissible evidence of collateral source payments.
Evidence is considered relevant if it has the tendency to make a fact at issue more or less
probable than that fact would be absent the evidence, and the fact is of consequence in determining
the issues of the case. See Mass. G. Evid. § 401; see also Tassinari, 466 Mass. at 351. All evidence
must satisfy the threshold of relevancy. Carey, 463 Mass. at 387. _Trrelevant evidence is not
admissible. Id. Any evidence may be excluded if its probative value is substantially outweighed
by the danger of confusing the issues or misleading the jury. See Mass. G. Evid. § 403 (2016). It
is within the judge's discretion to decide whether the probative value of the evidence outweighs
the possibility that it would mislead or prejudice the jury. Kobico, Inc. v. Pipe, 44 Mass. App. Ct.
103, 109 (1997).
The issue in this case is whether the Defendants deviated from the standard of care required
of them in their treatment of Ms. Roberts and whether their substandard care caused her injuries
and premature and preventable death. The Plaintiff therefore seeks to preclude any evidence
pertaining to the aforementioned matters, as they have no relevant bearing on the matters of
negligence, causation, and damages at issue in this case and would only potentially confuse and
distract the jurors from the real issues in this matter. Specifically, evidence of Ms. Robert’s prior
history of alcohol use would only serve to distract the jury from the issues in this case of
negligence, causation and damages rather than make a fact at issue more or less probable.
Evidence pertaining to Ms. Robert’s mental health is not only statutorily protected under G.L. c.
233, § 20B but is immaterial to the issues in this case and would be highly prejudicial to the
Plaintiff in the absence of any probative value. Moreover, it this lawsuit, the plaintiff is pursuing
claims for garden variety emotional distress only.
Further, the fact that the decedent’s family received donations from a GoFundMe page
after Ms. Robert’s passing is likewise irrelevant to the issues in this trial, and should be precluded
under the collateral source rule, which bars evidence that a plaintiff has received other
compensation for his or her injuries from insurance, an employer, or any other sources. See, ¢.g.,
Goldstein v. Gontarz, 364 Mass. 800, 809 (1974). For these reasons, any such evidence should be
excluded.
WHEREFORE, the Plaintiff requests that this Honorable Court limit and preclude the
defendants, their counsel, and their witnesses from making reference to the above matters at trial.
Respectfully submitted,
The Plaintiff,
By his attorneys,
4s/ Adam R. Satin
Adam R. Satin, BBO# 633069
Lynn I, Hu, BBO# 690823
Lubin & Meyer, P.C.
100 City Hall Plaza
Boston, MA 02108
(617) 720-4447
satin@lubinandmeyer.cor
Ihu@lubinandmeyer.com
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COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, SS. SUPERIOR COURT CIVIL ACTION NO. 1872CV00606 DOUGLAS A. CAPAK, PERSONAL REPRESENTATIVE OF THE ESTATE OF DAWN MARIE ROBERTS, Plaintiff, Vv , CLOE F. SHELTON, M.D., ANTHONY CARAVELLO, M.D., SHARON MAHONEY, M._D., SUSAN ANDEREGG, M.D., CAPE COD HOSPITAL, TRISTAN MEDICAL P.C., G. CURTIS BARRY, M.D., P.C., AND CAPE OBSTETRICS & GYNECOLOGY, P.C., Defendants. PLAINTIFF’S MOTION IN LIMINE REGARDING VARIOUS IRRELEVANT MATTERS NOW COMES the Plaintiff, Douglas Capak, and moves in limine to preclude any and all of the following matters at trial: A References or statements by defense counsel or any witness that this case has been devasting to the Defendants professional or personally, that they have been under stress as a result of this litigation, sought mental health treatment or therapy as a result of this litigation, or any such statements to that effect; References or statements by defense counsel in opening statements to the effect that if everything that the Plaintiff's counsel claim was true, then we would not be here, or any such statement to that effect; References or statements by defense counsel in opening statements about the jury’s sympathy or empathy for the Plaintiff, which would constitute improper argument in an opening statement; References by defense counsel during witness examinations or by any witness regarding their review of Plaintiffs witnesses’ trial testimony; References or statements by defense counsel or any witness regarding the Defendants’ personal lives, including that of their families; Defense counsel’s reference to any prior sworn statements of an expert in the absence of an inconsistent statement first being made; and Evidence of, or references to, various irrelevant matters involving the decedent and her family. A. Statements Regarding the Effect of This Lawsuit on the Defendants The issue of whether or not this case or the initiation of this lawsuit by the Plaintiff has affected the Defendants in any way is irrelevant to the issues appropriate for the jury’s consideration in this case. Relevant evidence is any evidence which has a “rational tendency to prove an issue in the case.” Commonwealth v. Fayerweather, 406 Mass. 78, 83 (1989). Certainly, counsel for the defense may inform the jury that this case is important to all parties; however, any effect that this lawsuit has had or is having on the Defendants—either professionally or personally—has no rational tendency to prove any issue in this case and, therefore, is neither relevant nor probative. Specifically, the effect of the case on the Defendants’ practices or personal lives has no relevance as to whether or not the Defendants complied with the standard of care owed to Dawn Marie Roberts during their care and treatment of her, nor is it relevant to causation, damages, or to any other claims being advanced in this case. Moreover, such statements, whether they be made during opening statements, during the course of evidence, or during closing argument, would be offered for the sole, improper purpose of evoking sympathy from the jury for the Defendants, thus attempting to focus the jury on issues outside the scope of issues appropriate for their deliberation. Thus, any such evidence or references should be precluded. B. Statements by Counsel on the Truth or Veracity of Information in Opening Statements Statements such as “there are two sides to every story” or that there can be a difference of perspective on issues in the case are appropriate in the context of opening statements; however, it would be improper for defense counsel to suggest that Plaintiff's counsel has been untruthful. Attorneys giving opening statements are charged with the duty of informing the jury about what they expect the evidence to show, and setting up a roadmap for their respective cases. Regardless of that distinction, implied or express statements by opposing counsel that an attorney’s opening statement contained untruths would be an inappropriate attack on the truthfulness of that attorney, enticing prejudice against him and his client from the outset. There will be no evidence as to what would have happened had the parties agreed on all of the facts (i.e., settlement or assessment of damages), and such references are inappropriate. By their very nature, such statements are speculative and, frankly, untrue. Such statements improperly suggest to the jury that a settlement agreement could actually have been reached by the parties in this case, and that the Plaintiff would have accepted money in lieu of proceeding with trial and opting for a jury’s assessment of damages. Accordingly, such references should be excluded. C. Statements by Counsel in Opening Statements Regarding the Jury’s Sympathy/Empathy for the Plaintiff An opening statement is an opportunity for an attorney to state facts he or she anticipates will be admitted in evidence for the jury’s consideration. Argument in opening statements is not permitted. The defense cannot reasonably anticipate that any witness will be discussing anyone, let alone the jury, having “sympathy for the plaintiff” or “empathy for the plaintiff” because such testimony would not be admissible, Thus, there should be no reference in the opening statement to the jury having sympathy or empathy for the Plaintiff, nor should there be any argument referencing (or not referencing) the Court’s later jury instructions that they are not to be swayed by personal feelings, including sympathy for any party. Any statements in an opening statement to the effect that “everyone in this courtroom feels sympathy for the plaintiff’ would be improper and falls well outside the scope of what the attorney anticipates the evidence will be. It is solely within the Court’s purview to instruct the jury on the law. Any such references should be excluded. D. Eliciting Testimony of Witnesses Regarding Review of or Comment About Plaintiff's Witnesses’ Trial Testimony It is the province of the fact finder, not the witness, to determine the weight and credibility of testimony. Commonwealth v. Dabrieo, 370 Mass. 728, 734 (1976). It is improper for a lawyer to direct questions at a witness in an attempt to have the witness characterize the testimony of other witnesses as truthful or lying. Commonwealth v. Ward, 15 Mass. App. Ct. 400, 401-2 (1983). Whether a witness believes the testimony of another witness is irrelevant. Id. By employing a line of questioning designed to cause a witness to comment upon the veracity of another witness’s testimony, a lawyer implies to the jury that differences in the testimony of the witness and any other witness “could only be the result of lying and not because of... [some] other innocent reason.” Td., citing United States v. Narciso, 446 F.Supp. 252, 321 (E.D.Mich.1977). In any civil action, it is the plaintiff's burden to prove his or her case before the defense presents their case. The plaintiff therefore calls witnesses to testify first and can never review the actual trial testimony of defense witnesses before doing so. The defendants enjoy the benefit of going after hearing the plaintiffs case and it is now common practice for defense lawyers to expedite transcripts (whether official transcripts or not) of the plaintiff's witnesses to show them to the defense witnesses. However, it is improper and impermissible for defense counsel to then ask their witnesses to implicitly or explicitly comment on the veracity ofplaintiff's witnesses’ trial 1 testimony.' Such line of questioning is exactly what the Massachusetts courts have held is improper as it is nothing but an attempt to have one witness, such as the defendant’s expert witness, comment on the veracity of another witness, such as the plaintiffs’ expert witness. It is patently unfair to the Plaintiff, whose attorney cannot elicit similar testimony with his or her expert because (a) to do so would be improper conduct and (b) even if not improper, the order of witnesses would not allow for such testimony by the Plaintiffs’ expert. Lastly, the defense expert’s testimony is required to be disclosed to the plaintiff in advance and obviously all disclosures are required to be made before trial. Thus, there is no circumstance where the defense can disclose to plaintiff the substance of his or her disagreement with plaintiffs’ expert’s trial testimony. If there is a disclosed disagreement to the substance of Plaintiffs’ expert’s testimony based on the defense expert’s review of plaintiffs’ expert disclosure, then he or she can certainly testify to the disclosed opinion so disagreeing without any need to mention plaintiffs’ expert’s trial testimony. It is solely the role of the jury, and not any witness— particularly one who is generally not even present for the day of testimony in question — to determine the weight and credibility of any trial testimony. Accordingly, any such statements or attempts to elicit such testimony should be precluded. ' This is done in a variety of ways, but most commonly asking a defense expert if they have reviewed the trial testimony of plaintiff's expert and then asking the witnesses to “assume that plaintiff's expert has testified that [and they fill in the blank with a characterization of plaintiff's expert’s testimony], is that correct?” This obviously seeks to have the defense expert comment directly on the veracity of plaintiff's expert’s testimony and is improper. It also leads to trial delays as sidebar conferences are often required 5 E. Statements Regarding the Defendants’ Personal Lives Including Their Families For some reason, there seems to be a trend of defendants in medical malpractice trials testifying to detailed aspects of the lives their family members.” Any testimony concerning the personal lives of the Defendants, including that of their family members, is wholly irrelevant to the issues of this case and is precluded by a straightforward application of the relevancy test. Evidence is considered relevant if it has the tendency to make a fact at issue more or less probable than the fact would be absent the evidence, and the fact is of consequence in determining the issues ofthe case. See Mass. G. Evid. § 401; Commonwealth v. Tassinari, 466 Mass. 340, 351 (2013). All evidence must satisfy the threshold of relevancy. Commonwealth v. Carey, 463 Mass. 378, 387 (2012). Irrelevant evidence is not admissible and even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of confusing the issues or misleading the jury. See Mass. G. Evid. § 403 (2016). The issue in this case is whether the Defendants deviated from the accepted standard of care in treating Ms. Roberts and whether their deviations caused her death. The personal lives of the Defendants, including the lives and activities of their family members, have no relevant bearing on the matters of negligence or causation at issue in this case. Presenting such evidence in opening or closing statements, or eliciting such evidence from the Defendants on the witness stand, serves no purpose other than to attempt to evoke improper feelings of sympathy or empathy from the jury for the Defendants. Alternatively, such testimony can have the effect of evoking feelings of anger or bias toward the Plaintiff for bringing this lawsuit against the Defendants. While Plaintiffs does not object to basic questions of whether the Defendants are married and have children, the details 2 In recent cases, Plaintiffs counsel has observed attempts by the defense to elicit detailed testimony about the educational and professional achievements of a defendant doctor’s children. 6 ’ of the lives of these individuals are wholly irrelevant. Accordingly, such testimony should be excluded. F. Utilization of Prior Sworn Testimony Absent an Inconsistent Statemen: While it is certainly permissible to utilize a witness’ prior sworn statements for the purpose of impeachment, it is impermissible for an attorney to simply read from a prior transcript of an expert in the absence of an inconsistent statement made in the trial at bar. For example, an expert may have conceded during cross examination in a previous trial that they have testified in 38 states around the country. Defense counsel is not permitted to reference the prior transcript unless he or she has (a) first asked the witness on the stand if he has testified in 38 states around the country and (b) the expert disagrees or gives a substantively different answer than he or she did in the prior trial. However, if the expert gives the same answer, there is no need for reference to any prior testimony, which is hearsay without an exception. Failing to follow these basic rules of trial advocacy results in trial delays and sidebar conferences as objections will need to be made. G. Various Irrelevant Matters Pertaining to the Decedent and Her Family The Plaintiff seeks to preclude any evidence, reference or statements by counsel or witnesses regarding various irrelevant matters involving the decedent and family including: (1) the decedent’s prior alcohol use and mental health issues; and (2) a GoFundMe page created after the decedent’s death, which would be impermissible evidence of collateral source payments. Evidence is considered relevant if it has the tendency to make a fact at issue more or less probable than that fact would be absent the evidence, and the fact is of consequence in determining the issues of the case. See Mass. G. Evid. § 401; see also Tassinari, 466 Mass. at 351. All evidence must satisfy the threshold of relevancy. Carey, 463 Mass. at 387. _Trrelevant evidence is not admissible. Id. Any evidence may be excluded if its probative value is substantially outweighed by the danger of confusing the issues or misleading the jury. See Mass. G. Evid. § 403 (2016). It is within the judge's discretion to decide whether the probative value of the evidence outweighs the possibility that it would mislead or prejudice the jury. Kobico, Inc. v. Pipe, 44 Mass. App. Ct. 103, 109 (1997). The issue in this case is whether the Defendants deviated from the standard of care required of them in their treatment of Ms. Roberts and whether their substandard care caused her injuries and premature and preventable death. The Plaintiff therefore seeks to preclude any evidence pertaining to the aforementioned matters, as they have no relevant bearing on the matters of negligence, causation, and damages at issue in this case and would only potentially confuse and distract the jurors from the real issues in this matter. Specifically, evidence of Ms. Robert’s prior history of alcohol use would only serve to distract the jury from the issues in this case of negligence, causation and damages rather than make a fact at issue more or less probable. Evidence pertaining to Ms. Robert’s mental health is not only statutorily protected under G.L. c. 233, § 20B but is immaterial to the issues in this case and would be highly prejudicial to the Plaintiff in the absence of any probative value. Moreover, it this lawsuit, the plaintiff is pursuing claims for garden variety emotional distress only. Further, the fact that the decedent’s family received donations from a GoFundMe page after Ms. Robert’s passing is likewise irrelevant to the issues in this trial, and should be precluded under the collateral source rule, which bars evidence that a plaintiff has received other compensation for his or her injuries from insurance, an employer, or any other sources. See, ¢.g., Goldstein v. Gontarz, 364 Mass. 800, 809 (1974). For these reasons, any such evidence should be excluded. WHEREFORE, the Plaintiff requests that this Honorable Court limit and preclude the defendants, their counsel, and their witnesses from making reference to the above matters at trial. Respectfully submitted, The Plaintiff, By his attorneys, 4s/ Adam R. Satin Adam R. Satin, BBO# 633069 Lynn I, Hu, BBO# 690823 Lubin & Meyer, P.C. 100 City Hall Plaza Boston, MA 02108 (617) 720-4447 satin@lubinandmeyer.cor Ihu@lubinandmeyer.com