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1 BRIAN H. O’DRISCOLL (SBN 191248)
LAW OFFICES OF SCHNEIDER & HOSMER
2 333 University Avenue, Suite 210
Sacramento, CA 95825
3 Direct Line: (559) 417-2859
Office Line: (916) 921-9353
4 Facsimile: (855) 214-7884
E-service: odriscb@nationwide.com; salazb1@nationwide.com; tdsacnew@nationwide.com
5
6
7 Attorneys for Defendants, MARIN JOHN ARTUKOVICH, ARTUKOVICH FAMILY
LIMITED PARTNERSHIP I (erroneously sued herein as ARTUKOVICH FAMILY
8 PARTNERSHIP), SURFSIDE RENTAL MANAGEMENT LLC, JONNA MELINAUSKAS,
DOMINIQUE ARTUKOVICH and JOHN ARTUKOVICH
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF SANTA CRUZ
12
13 TRICIA KIRBY ) Case No.: 19CV01267
)
14 Plaintiff, ) DEFENDANTS’ MOTIONS IN LIMINE
)
15 vs. )
) 4th Amended Complaint filed: September 15,
16 BRENT C. LAY; MJA VINEYARDS LLC; ) 2023
MARIN JOHN-ARTUKOVICH; ) Trial Date: June 24, 2024
17 ARTUKOVICH FAMILY PARTNERSHIP ) Assigned Dept: TBA
and DOES 1 to 20, inclusive, ) Assigned Judge: Timothy Volkmann
18 )
Defendants. )
19
20 COMES NOW Defendants, MARIN JOHN ARTUKOVICH, ARTUKOVICH FAMILY
21 LIMITED PARTNERSHIP I, SURFSIDE RENTAL MANAGEMENT LLC, JONNA
22 MELINAUSKAS, DOMINIQUE ARTUKOVICH and JOHN ARTUKOVIC (“Defendants”),
23 who, before the beginning of the voir dire examination of the jury panel, respectfully moves the
24 Court in limine for an order that counsel, the parties herein, and all witnesses refrain from
25 making any mention, directly or indirectly in any manner whatsoever, concerning the matters
26 hereinafter set forth, at all stages of the trial including jury voir dire, opening statements and
27 thereafter until further order of this Court.
28 ///
1
Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267
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1 These motions are made on the grounds that injection of the following matters into the
2 trial of this case, including but not limited to references during voir dire, opening statements,
3 questions to witnesses, comments on evidence, objections and/or closing arguments, will result
4 in irreparable prejudice and harm to Defendant’s case which no instruction by the Court to the
5 jury could properly cure.
6 Defendants request the Court order that no mention be made of the fact that these
7 motions have been filed or of any ruling by the Court in response to these motions. This
8 includes any suggestions or implications to the jury that Defendants have moved to “hide”
9 relevant evidence or proof of Plaintiff’s allegations, or that the Court has excluded evidence or
10 proof on any issue. To comment upon any of the matters set forth hereafter, or to attempt to
11 introduce such testimony or evidence by implication, suggestion or insulation would be highly
12 improper and unfairly prejudicial to Defendants. This would be so even if the Court were to
13 sustain an objection thereto and properly instruct the jury not to consider such facts.
14 Defendants also respectfully request that the Court order all counsel, parties and
15 witnesses (including “independent” witnesses) to comply with the Court’s rulings and to abstain
16 from any reference to any of the following areas without first obtaining the permission of the
17 Court outside the presence of the jury.
18 LEGAL AUTHORITY REGARDING MOTIONS IN LIMINE
19 A motion in limine is an appropriate method to preclude prejudicial or objectionable
20 evidence before it is presented to the jury. (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 608.)
21 Such motions may reach any kind of evidence that could be objected to at trial on the grounds
22 that it is irrelevant or subject to discretionary exclusion as unduly prejudicial and time-
23 consuming. (Cal. Evid. Code Section 352; Kelly v. New West Federal Savings (1996) 49
24 Cal.App.4th 659. 669-670; Clemens v. American Warranty Corp. (1987) 193 Cal.App.3rd 444,
25 451-452.) Although not expressly authorized by statute, case law recognizes the inherent
26 authority of a trial court to entertain and grant motions in limine. (Ulloa v. McMillin Real
27 Estate & Mortgage, Inc. (2007) 149 Cal.App.4th 333, 337.)
28 The purpose of such motions is “to avoid the obviously futile attempt to ‘unring the bell’
2
Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267
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1 in the event a motion to strike is granted in the proceedings before the jury.” (Fergus v. Songer
2 (2007) 150 Cal.App.4th 552, 569.) It is therefore appropriate for a party to move to preclude or
3 limit the introduction of evidence by presenting motions in limine prior to the start of trial and
4 before the empanelment of the jury. (See People v. Morris (1991) 53 Cal.3d 152, 188,
5 disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn.1; Eckert v.
6 Superior Court (1999) 69 Cal.App4th 262,266-267.) By resolving critical evidentiary issues at
7 the outset, motions in limine enhance the efficiency of the trial process and also promote
8 settlements. People v. Morris, supra, 53 Cal.3d at p. 188.)
9
MOTION IN LIMINE NO. 1
10 EXCLUDE REFERENCE TO DEFENDANTS’ LIABILITY INSURANCE
11 GRANTED: _________
12
GRANTED AS MODIFIED: _________
13
REFUSED: _________
14
15 Defendants move that Plaintiff, his witnesses, and attorneys, and all agents thereof, be
16 ordered not to mention, infer or otherwise suggest Defendants’ insurance coverage in any
17 context. The insurance coverage of Defendants is not relevant to this case and reference to
18 insurance is expressly prohibited pursuant to Evidence Code section 1155.
19
MOTION IN LIMINE NO. 2
20 OFFERS TO COMPROMISE/SETTLEMENT NEGOTIATIONS
21 GRANTED: _________
22
GRANTED AS MODIFIED: _________
23
REFUSED: _________
24
25 Offers to compromise are not relevant and reference to such offers are prohibited
26 pursuant to Evidence Code §1152. This prohibition includes conduct or statements made in
27 settlement negotiations, and any documents such as mediation briefs and MSC statements
28 submitted as part of the negotiations. Therefore, Defendants request that this Court issue an
3
Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267
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1 order excluding Plaintiff, her counsel, and any witnesses from referring to and/or mentioning in
2 any way any offers of settlement by any party and/or any conduct of or statements by any party
3 during settlement negotiations. The order would also include any reference to or mention of the
4 mediation briefs submitted by any party as part of the settlement negotiations.
5
MOTION IN LIMINE NO. 3
6 EXCLUDE ALL NON-PARTY WITNESSES FROM TRIAL
7 GRANTED: _________
8
GRANTED AS MODIFIED: _________
9
REFUSED: _________
10
11 California Evidence Code section 777 provides that the Court “may exclude from the
12 courtroom any witnesses not at the time under examination, so that such witnesses cannot hear
13 the testimony of other witnesses.” (Evid. Code section 777 (a).) However, a party to the action
14 cannot be excluded.…” (Evid. Code section 777 (b).) Defendants respectfully requests that the
15 Court grant this motion to exclude all non-party witnesses from the courtroom unless such non-
16 party witnesses are being examined. This will serve to ensure that each non-party witness will
17 offer their own individual testimony, as opposed to testimony which they may have overheard
18 from another witness during proceedings.
19
MOTION IN LIMINE NO. 4
20 PLAINTIFFS’ INTRODUCTION OF ANY
DOCUMENTARY EVIDENCE SHOULD BE TENDERED TO
21
OPPOSING COUNSEL OUTSIDE THE PRESENCE OF THE JURY
22
GRANTED: _________
23
GRANTED AS MODIFIED: _________
24
25 REFUSED: _________
26
If Plaintiff wishes to introduce any writings (as defined in Evidence Code section 250)
27
into evidence, then she should first tender the writing to the Court and Defendants’ counsel
28
outside the presence of the jury so that there can be a determination by the Court of the writing’s
4
Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267
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1 relevance and suitability for introduction to evidence. Plaintiff needs to follow this procedure
2 before she informs the jury as to the writing’s existence. (Evid. Code section 352.)
3
MOTION IN LIMINE NO. 5
4 EVIDENCE NOT PREVIOUSLY DISCLOSED
5 GRANTED: _________
6
GRANTED AS MODIFIED: _________
7
REFUSED: _________
8
9 Discovery in this case has centered around Plaintiff’s claims, and any and all
10 documentation which would substantiate Plaintiff’s claims for purported damages. Throughout
11 this case, Plaintiff has responded to Defendants’ Interrogatories and Requests for Production of
12 Documents, by verifying that she has provided to Defendants herein, any and all documents,
13 papers, things and other information related to his claims in this matter.
14 Obviously, the production by Plaintiff at trial, of any documents which were not
15 previously produced, would raise serious questions concerning the candor of Plaintiff’s previous
16 responses to Defendants’ previous requests for identification and production of documents, as
17 well as significantly prejudicing Defendants in his ability to confront these issues at the time of
18 trial. Defendants would have no opportunity to prepare for cross examination nor would
19 Defendants’ experts have the ability to assess any additional information not previously provided
20 to Defendants through this point in time.
21 As this Court is aware, the principal purpose of discovery is to do away with "the
22 sporting theory of litigation - - namely, surprise at trial." (Chronicle Publishing Company v.
23 Superior Court (1960) 54 Cal.2d 548, 561.) This purpose is accomplished by requiring the
24 parties to comply with all applicable discovery rules prior to trial, and by refusing to sanction
25 discovery abuses by ensuring that no party shall benefit at trial, from his, her and/or its failure to
26 comply with applicable discovery rules.
27 As expressly noted in the discovery statutes, and as construed by decisional law, our
28 California Courts have the express authority at the time of trial to exclude evidence or
5
Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267
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1 information which has been withheld and/or otherwise “not produced” during the discovery
2 process. (See Code Civ. Proc. section 2017 et. seq, and in particular, sections 2025, 2030, 2031
3 and 2034 (Civil Discovery Act).) As recognized by California Courts, the power to exclude such
4 evidence at trial “is an inherently necessity if the purposes of the Discovery Act are to be
5 achieved.” (Thoren v. Johnson and Washer (1972) 29 Cal.App.3d 270, 273.) In this regard,
6 California’s Appellate Court upheld the exclusion of certain financial evidence which a husband
7 had refused to supply to a Court-appointed accountant before trial. (See also In Re Marriage of
8 Stallcup (1979) 97 Cal.App.3d 294.)
9 In the case at bar, if Plaintiff is allowed to introduce any documents and/or other evidence
10 which she has not previously produced, including any testimony based upon any documents not
11 previously produced by Plaintiff, then Defendants would be severely prejudiced by such
12 testimony and/or documents. To allow such a practice would condone Plaintiff’s refusal to
13 supply such information to Defendants, even though the same was properly requested through
14 the discovery process, thus enabling, allowing and permitting Plaintiff to take advantage during
15 trial, of such previous failure and refusal to comply with prior discovery. Such conduct cannot
16 and should not be sanctioned by this Court.
17
MOTION IN LIMINE NO. 6
18 EXCLUDE TESTIMONY OF LAY WITNESSES WHOSE
IDENTITY HAS NOT BEEN PREVIOUSLY DISCLOSED IN DISCOVERY
19
GRANTED: _________
20
21 GRANTED AS MODIFIED: _________
22 REFUSED: _________
23
Defendants moves for a Motion in Limine to prevent Plaintiff from presenting the
24
testimony of any lay witnesses whose identity has not been previously disclosed in discovery.
25
This Court has the inherent authority to exclude a witness’ testimony at Trial if that
26
witness’ name has been willfully excluded from answers to interrogatories which request the
27
names of all witnesses. (Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, 273.) This is
28
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Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267
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1 also true where it is necessary to exclude such testimony in order to accomplish the purposes of
2 civil discovery. (Crumpton v. Dickestein (1978) 82 Cal.App.3d 166, 170-174; Thoren v.
3 Johnston & Washer, supra, at page 275.)
4 Therefore, Defendants requests that this Court issue an order excluding the testimony of
5 lay witnesses whose identity has not been previously disclosed by Plaintiff in discovery.
6
MOTION IN LIMINE NO. 7
7 TESTIMONY OF LAY WITNESSES
8 GRANTED: _________
9
GRANTED AS MODIFIED: _________
10
REFUSED: _________
11
12 Defendants moves for a Motion in Limine to prevent Plaintiff from offering any expert
13 testimony or opinions from lay or unqualified witnesses.
14 Calif. Evidence Code Section 800 expressly limits the opinions of lay witnesses to those
15 that are:
16 (a) Rationally based on the perception of the witness; and
17 (b) Helpful to a clear understanding of his testimony.
18 A lay witness may neither answer questions nor give opinion testimony upon areas where
19 expert testimony must be elicited. Such testimony must be barred from the case. (See Nolan v.
20 Nolan (1909) 155 Cal. 476.) By virtue of the above, Defendants respectfully opposes the use
21 and/or admission into evidence, of any such “expert testimony” and/or opinions from witnesses
22 who are not held by the Court to be qualified as an expert witness
23 Accordingly, Defendants, respectfully requests that this Court issue an order precluding
24 Plaintiff from asking opinion questions of lay and/or other witnesses who are not qualified by
25 this Court, as experts with adequate training, experience and sufficient expertise in the specific
26 area in which they intend to testify, in compliance with Evidence Code Section 800.
27 ///
28 ///
7
Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267
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1
MOTION IN LIMINE NO. 8
2 EXCLUDE TESTIMONY FROM ANY EXPERT NOT DESIGNATED
PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 2034.210
3
GRANTED: _________
4
5 GRANTED AS MODIFIED: _________
6 REFUSED: _________
7
Defendants moves for a Motion in Limine to prevent Plaintiff from presenting the
8
testimony of any non-designated expert witnesses.
9
Code of Civil Procedure Section 2034.300 provides that upon objection of any party, the
10
trial court must exclude a witness’s expert opinion at trial if the party offering the testimony did
11
not designate the witness as an expert. (Code Civ. Proc. section 2034.300 (a)-(c).) The
12
designation process involves timely identifying the expert’s name and address, providing a
13
supporting expert witness declaration, and upon request, producing copies of the expert’s reports
14
and other writings. (Code Civ. Proc. sections 2034.260, 2034.270.)
15
There are only two exceptions to the prohibition against non-designated expert witness
16
testimony. Pursuant to Code of Civil Procedure section 2034.310, a party may call an expert to
17
testify at trial if another party in the case previously designated the same expert witness and the
18
expert was previously deposed. (Code Civ. Proc. section 2034.310(a).) Non-designated experts
19
may also testify for the limited purpose of impeaching the testimony of an opponent’s expert
20
witness. (Code Civ. Proc. section 3024.310(b).) Otherwise, permitting a non-designated expert
21
to testify at trial deprives the opposing party of the opportunity to prepare for cross-examination
22
and rebuttal. (Bonds v. Roy (1999) 20 Cal.4th 140, 147.)
23
Based on the above, Defendants specifically move to preclude any non-retained medical
24
provider that Plaintiff saw as part of her medical treatment after the subject incident. In
25
Plaintiff’s Designation of Expert Witnesses; Declaration of S. Colin Brown in Support of Expert
26
Witness Disclosure and Designation, Plaintiff indicated that “she reserves the right to name and
27
call additional experts . . .” including “Any of Tricia Kirby’s health care providers, including
28
8
Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267
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1 treating or examining physicians, nurses, physicians assistants or other practitioners of the
2 healing arts.” (Exhibit “A” to BHO DECL.) But Plaintiff failed to comply with Code of Civil
3 Procedure Section 2034.260 for these non-retained expert witnesses. (Ibid.) Under Section
4 2034.260 Plaintiff is required to include “[a] list setting forth the name and address of a person
5 whose expert opinion that party expects to offer in evidence of trial.” (Code Civ. Proc.
6 §2034.260(b)(1).) This requirement covers both retained expert witnesses, and non-retained
7 expert witnesses such as Plaintiff’s health care providers, physicians, nurses, physician
8 assistants, or other practitioners of the healing arts. Since Plaintiff did not include the names or
9 addresses of any of these providers, she had failed to comply with Section 2034.260. “Where, as
10 here, the treating physicians are not listed or identified by name but simply referred to in the
11 designation as ‘all past or present examining and/or treating physicians,’ there has been no
12 compliance with the letter or the spirit of section 2034, and the trial court acts within its
13 discretion when it excludes expert testimony by the non-designated doctors.” (Kalaba v. Gray
14 (2002) 95 Cal.App.4th 1416, 1423.)
15
MOTION IN LIMINE NO. 9
16 EXCLUDE TESTIMONY FROM PLAINTIFF’S RETAINED
EXPERTS STEVEN SCHRAIBMAN AND DR. DAVID MILES
17 ATKINS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 2034.300
18
GRANTED: _________
19
GRANTED AS MODIFIED: _________
20
21
REFUSED: _________
22
Defendants moves for a Motion in Limine to prevent Plaintiff from presenting the
23
testimony of retained expert witnesses Steven Schraibman and Dr. David Miles Atkins.
24
Code of Civil Procedure Section 2034.270 provides that if a demand for exchange of
25
witness information includes a demand for production of reports and writings, all parties must
26
produce and exchange all discovery reports and writings. Code of Civil Procedure Section
27
2034.300 provides that upon objection of any party, the trial court shall exclude a witness’s
28
expert opinion at trial if the party offering the testimony did not produce the reports and writings
9
Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267
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1 pursuant to Section 2034.270. (Code Civ. Proc. Section 2034.300(c).)
2 In their September 20, 2023 Demand for Exchange of Information Concerning Expert
3 Trial Witness Defendants included a provision stating “f) A production for inspection and
4 copying of all discoverable reports and writings, if any, made by any expert in the course of
5 preparing that expert’s opinion;” (Exhibit “B” to BHO DECL.) In Plaintiff’s Expert Witness
6 Disclosure Plaintiff’s counsel stated in his Declaration that Steven Schraibman “has written a
7 declaration and a report this action, both of which have been produced.” (Exhibit “A” to BHO
8 DECL.) Defendants believe that Plaintiff’s counsel is referencing documents from Mr.
9 Schraibman that were included in Plaintiff’s Motion for Summary Adjudication. However, a
10 review of Plaintiff’s moving papers reveals that she did not include a copy of any report from
11 Mr. Schraibman. Plaintiff only provided a Declaration from Mr. Schraibman. In fact, as detailed
12 in Defendants’ Objections to Evidence Proffered by Plaintiff in support of her Motion for
13 Summary Adjudication, in his Declaration Mr. Schraibman referred to his resume, report, site
14 photographs, and diagrams, but none of these items were actually included with the Declaration.
15 Thus, Plaintiff did not produce a copy of Mr. Schraibman’s two reports even though Defendants
16 expressly included a request for such materials in their expert witness demand.
17 Plaintiff’s counsel did include a copy of Mr. Schraibman’s Declaration in the Motion for
18 Summary Judgment, but this does not constitute the production of a discoverable writing made
19 by Mr. Schraibman in the course of preparing his opinions (Code of Civ. Proc. §2034.270.)
20 Thus, Plaintiff also failed to produce a copy of Mr. Schraibman’s Declaration even though
21 Defendants included a request for such materials in their expert witness demand.
22 With regards to retained expert Dr. David Miles Atkins, in his Declaration Plaintiff’s
23 counsel indicated that Dr. Atkins “has written a declaration and a summary report on his record
24 review and examination of Ms. Kirby of which have been previously produced.” (Exhibit “A”
25 to BHO DECL.) Defendants believe that Plaintiff’s counsel is referencing documents from Dr.
26 Atkins that were included in Plaintiff’s Motion for Summary Adjudication. This does not
27 constitute the production of a discoverable writing made by Dr. Atkins in the course of preparing
28 his opinions (Code of Civ. Proc. Section 2034.270.) Thus, Plaintiff’s counsel failed to produce a
10
Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267
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1 copy of Dr. Atkins’ Declaration or report even though Defendants included a request for such
2 materials in their expert witness demand.
3 Defendants would point out that on November 3, 2023 they served an Objection to
4 Plaintiff’s Designation of Expert Witnesses and Declaration of Colin Brown in Support of Expert
5 Witness Disclosure or Designation in which they pointed out Plaintiff’s failure to comply with
6 Section 2034.270 with regards to Mr. Schraibman and Dr. Atkins. (Exhibit “C” to BHO
7 DECL.) However, instead of seeking permission from the Court to correct the deficiencies in
8 her designation, or even serving an amended expert witness designation that included the missing
9 materials, Plaintiff did nothing. Defendants did not get copies of the required materials until Dr.
10 Atkins’ and Mr. Schraibman’s case files were produced shortly before their respective
11 depositions (Dr. Atkins was deposed on February 22, 2024, and Mr. Schraibman was deposed on
12 May 28, 2024.) This resulted in significant prejudice to Defendants.
13 In light of Plaintiff’s failure to comply with Section 2034.270 and her subsequent failure
14 to make any effort to correct the deficiencies in her expert designation, the Court should exclude
15 Plaintiff from presenting the testimony of both Mr. Schraibman and Dr. Atkins at trial.
16
MOTION IN LIMINE NO. 10
17 EXCLUDE TESTIMONY FROM DR. BRENT C.
LAY AS A NON-RETAINED EXPERT WITNESS
18
GRANTED: _________
19
20 GRANTED AS MODIFIED: _________
21 REFUSED: _________
22
Defendants move to exclude Plaintiff from presenting the testimony of DR. BRENT
23
LAY as a non-retained expert witness.
24
In Plaintiff’s October 13, 2023 Expert Witness Disclosure Plaintiff designated DR.
25
BRENT LAY as a non-retained expert witness. Specifically, Plaintiff indicated that DR.
26
BRENT LAY’s opinions may be sought:
27
28 On accessibility, legal or architectural compliance of his office, the availability of
11
Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267
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a new patient chair or other equipment, including for patient room 3: actions or
1
steps taken or contemplated to remediate the dental office or keep it in legal
2 compliance; expenses and options considered or incurred for same: safety and
equipment considerations including office management, personnel, ergonomics,
3 or configuration; American with Disabilities Act and other legal compliance
evaluation(s), status or considerations: costs and benefits of office and dental
4
equipment: ability or cost to remediate the office and equipment. (Exhibit “A” to
5 BHO DECL.)
6 Defendants are not familiar with any statute or case law that authorizes a party to designate
7 another party as an expert witness, or to offer up testimony from that party at trial as an expert
8 witness. In addition, the deposition of DR. BRENT LAY clearly demonstrated that he is not
9 qualified testify as an expert witness on any of the topics Plaintiff listed in her expert witness
10 designation. For these reasons, the Court should exclude Plaintiff from offering any testimony of
11 DR. BRENT LAY as an expert witness at trial.
12 MOTION IN LIMINE NO. 11
EXCLUDE TESTIMONY FROM PLAINTIFF’S
13 RETAINED EXPERT STEVEN SCHRAIBMAN THAT IS NOT
14
RELEVANT PURSUANT TO EVIDENCE CODE SECTIONS 210, 350, AND 352
15 GRANTED: _________
16 GRANTED AS MODIFIED: _________
17
REFUSED: _________
18
19 Defendants move to exclude Plaintiff from presenting the testimony of retained expert
20 witness Steven Schraibman that is not relevant to the claims being asserted by Plaintiff.
21 In her Fourth Amended Complaint Plaintiff alleged causes of action for a Violation of
22 California Labor Code Section 3706 et seq. negligence, premises liability, and violations of the
23 Unruh Civil Rights Act. In support of these causes of action Plaintiff alleged the same
24 description of her February 8, 2018 fall incident:
25 21./25./31. While in the course and scope of her employment by LAY, KIRBY’s
26 foot became entangled in a dangerous loose and unrestrained cord or tube
dangling from the dental procedure tools near, on or about the floor are by the
27 patient chair and table where she was working. As she walked carrying and
removing a tray of dirty dental instruments from the dental procedure area,
28
KIRBY was tripped by the unreasonably dangerous cord or tube, and fell to the
12
Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267
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floor, causing bodily injury to her person. (Exhibit “D” to BHO DECL.)
1
2 In support of her Unruh Civil Rights Act cause of action Plaintiff further alleged:
3 37. The design and configuration of the subject dental treatment room and
operatory area, including floor space, dental operatory unit, and dental chair,
4
dental full and equal access to persons with disabilities including KIRBY . . .
5
39. . . . The cords, pedals, and tubes which were located on or near the floor
6 varied in elevation, were not firm or stable, and caused KIRBY, on the singular
7
occasion she fell on February 8, 2018, to at first be caught by the foot by an
unstable implement to be suddenly released from the implement and to fall
8 forward on the floor . . . . The dental chair was in a fixed location. The wall and
cabinet structure were in a fixed location. The dental operatory unit, while
9 mounted on wheels included semi-flexible plumbing lines, including an exhaust
10 line fixed to the wall of the room which adhered it to the wall; it could not be
moved or the room reconfigured so as to remove its effect as an accessibility
11 barrier. Walking access to the operatory unit was a necessary part of the dental
and hygiene practice, . . . . (Exhibit “D” to BHO DECL.)
12
Based on these descriptions it is apparent that Plaintiff’s causes of action have to do solely with
13
the equipment found in the room where she performed her work as a dental hygienist. More
14
specifically, Plaintiff’s allegations deal with the dental operatory unit in that room which
15
Plaintiff’s alleges she tripped and fell over. Plaintiff did not include any allegations about
16
conditions found in any other part of the property. Not surprisingly all of the discovery in this
17
case has focused on the room where Plaintiff worked and the dental operatory unit.
18
But, when Mr. Schraibman was deposed and a copy of his case file was produced which
19
included his two reports on the property (the ones not produced as part of Plaintiff’s expert
20
designation), his reports showed that he had identified and documented multiple alleged ADA
21
and Building Code violations throughout the entire property. This included the room where
22
Plaintiff worked and fell, along with the parking lot, front walkway, main entrance, patient
23
waiting room, work counters, hallways, and bathroom.
24
Evidence Code Section 350 establishes that no evidence is admissible at trial except
25
relevant evidence. Evidence Code Section 210 defines “relevant evidence” to mean evidence
26
“having any tendency in reason to prove or disprove any disputed fact that is of consequence to
27
the determination of the action.” As detailed above, in her Complaint Plaintiff did not allege any
28
13
Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267
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1 dangerous conditions or ADA access violations anywhere else in the property except for the
2 room where she worked. All of the discovery to date has focused on that room and the
3 equipment, particularly the operative unit, found in that room. Plaintiff has never asserted that
4 any conditions found on the rest of the property had anything to do with the incident. During his
5 deposition Mr. Schraibman confirmed that none of these other conditions he identified had any
6 connection to Plaintiff’s fall incident. (Exhibit “E” to BHO DECL.) Thus, none of Mr.
7 Schraibman’s opinions about alleged ADA and Building Code violations throughout the rest of
8 the property can be considered relevant evidence as it does not have any tendence to prove or
9 disprove any disputed fact of consequence.
10 Furthermore, Evidence Code 352 provides that the Court may exclude evidence if the
11 probative value is substantially outweighed the probability that its admission will create the
12 substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. Mr.
13 Schraibman’s opinions about alleged ADA and Building Code violations throughout the rest of
14 the property clearly fall under this exclusion. The probative value of this evidence is non-
15 existent since it has nothing to do with the February 8, 2018 fall incident or Plaintiff’s
16 allegations. In contrast there is a significant danger that if Mr. Schraibman’s opinions about
17 multiple violations at the property are admitted at trial that the jury will develop a negative and
18 unfair opinion about the Defendants. Mr. Schraibman’s opinions also have the serious risk of
19 confusing issues for the jury. Mr. Schraibman would be testifying about multiple statutory and
20 code provisions relating to these other violations, and this technical evidence could easily lead to
21 confusion for the jury as they try to sift out the provisions relating to the Plaintiff’s allegations
22 from the ones unrelated to those allegations. Finally, Mr. Schraibman’s opinions could mislead
23 the jury as they may improperly conclude that if there are violations throughout the rest of the
24 property, then there must also be violations in the room where the incident occurred, regardless
25 of any evidence specifically presented about that room.
26 Based on the above the Court should exclude any testimony from Mr. Schraibman about
27 his observations and opinions relating to any other areas of the property besides the room and
28 equipment that form the basis for Plaintiff’s allegations in her Complaint.
14
Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267
19-013810
1 MOTION IN LIMINE NO. 12
EXCLUDE TESTIMONYAND EVIDENCE FROM PLAINTIFF’S RETAINED BUT
2
DE-DESIGNATED EXPERT WITNESSES TATE KUBOSE AND KATERINA BLAZEK
3
GRANTED: _________
4
GRANTED AS MODIFIED: _________
5
6 REFUSED: _________
7
Defendants move to exclude Plaintiff from presenting any testimony and evidence from
8
retained expert witnesses Tate Kubose and Katerina Blazek.
9
In her Expert Witness Disclosure Plaintiff identified multiple retained expert witnesses
10
include Mr. Kubose and Ms. Blazek. On February 2, 2024 Plaintiff’s communicated to
11
Defendants’ counsel that he was withdrawing Mr. Kubose and Ms. Blazek as expert witnesses.
12
Based on Plaintiff’s counsel’s representation Defendants’ counsel subsequently de-designated
13
Dennis Chimich and Bong J. Walsh as expert witnesses who Defendants had originally
14
designated in response to Mr. Kubose and Ms. Blazek. Defendants’ counsel also did not notice
15
the depositions of Mr. Kubose and Ms. Blazek.
16
In light of Plaintiff’s counsel’s representation and Defendants’ reliance on those
17
representations, the Court should exclude any testimony from Mr. Kubose and Ms. Blazek at
18
trial. In addition, the Court should exclude any opinions, materials or information, including any
19
photographs, measurements, or other data, that these two experts may have secured, produced, or
20
generated as part of their work on this case. These items should not be presented at trial by Mr.
21
Kubose or Ms. Blazek, nor should they be presented indirectly by some other witness such as
22
Mr. Schraibman. Likewise, none of Plaintiff’s experts witnesses should be allowed to provide
23
any testimony or opinions that relies upon any opinions, materials or information secured,
24
produced, or generated by these two experts. Plaintiff’s counsel withdrew Mr. Kubose and Ms.
25
Blazek as expert witnesses and Defendants had no opportunity to secure their case files or take
26
their depositions, so it would be completely improper for any other expert witness to present
27
their opinions, materials, or information at trial.
28
15
Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267
19-013810
MOTION IN LIMINE NO. 13
1
PRECLUDE EVIDENCE FROM DR. DAVID
2 MILES ATKINS THAT PLAINTIFF SUFFERED FROM
A DISABILITY/MEDICAL CONDITION THAT LIMITED MAJOR
3 LIFE ACTIVITIES PRIOR TO HER FEBRUARY 8, 2018 FALL INCIDENT
4
GRANTED: _________
5
GRANTED AS MODIFIED: _________
6
7
REFUSED: _________
8
In his reports and deposition testimony Dr. Atkins has opined that at the time of her
9
February 8, 2018 fall, Plaintiff suffered from severe cervical degenerative disc disease and
10
cervical spinal stenosis. Dr. Atkins also opined that because of these conditions Plaintiff would
11
have experienced impairment with work and activities of daily living prior to the February 8,
12
2018 fall. In addition, due to her cervical stenosis Plaintiff also would have faced a higher risk
13
of fall in comparison to the general population. Dr. Atkin has also opined that the higher risk of
14
falls would be due to Plaintiff’s disc disease and spinal stenosis affecting her ability to stay
15
upright while walking, bending, or carrying an object and affecting her balance. Dr. Atkin has
16
further opined that Plaintiff’s medical conditions substantially interfered with major life
17
activities such as walking lifting or bending. It is these opinions that form the basis for Plaintiff’s
18
claim under the Unruh Act.
19
During his February 22, 2024 deposition Dr. Atkin was about the factual basis for his
20
opinions. Dr. Atkin testified to the following:
21
That he had not seen any medical records relating to Plaintiff’s physical condition or any
22
orthopedic injuries prior to her February 8, 2018 fall. (Exhibit “F” to BHO DECL,
23
22:18-23:14.)
24
That during his examination of Plaintiff he had asked her if she had suffered from any
25
problems in her neck or back prior to the February 8, 2018 fall and she had told him no.
26
(Exhibit “F” to BHO DECL, 26:2-20.)
27
That he had not asked Plaintiff if prior to the February 8, 2018 fall she had ever
28
experienced any other falls. (Exhibit “F” to BHO DECL, 28:15-18.)
16
Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267
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1 That he has no medical evidence that prior to the February 8, 2018 fall Plaintiff was
2 suffering from any sort of pain or discomfort from her cervical spine conditions. (Exhibit
3 “F” to BHO DECL, 40:13-17.)
4 That prior to the February 8, 20918 fall Plaintiff was performing her normal and
5 customary work without restrictions. (Exhibit “F” to BHO DECL, 40:18-23.)
6 That when he asked Plaintiff if prior to the February 8, 2018 fall if she experienced any
7 impairments with work activities, she only mentioned increased fatigue and difficulty
8 with endurance. (Exhibit “F” to BHO DECL, 61:6-16.)
9 That he had not asked Plaintiff if prior to the February 8, 2018 fall if she had experienced
10 any impairments with activities of daily living. (Exhibit “F” to BHO DECL, 61:17-20.)
11 That he had not asked Plaintiff if prior to the February 8, 2018 fall if she had experienced
12 any problems walking. (Exhibit “F” to BHO DECL, 66:4-8.)
13 That he had not asked Plaintiff if prior to the February 8, 2018 fall if she had experienced
14 any problems bending. (Exhibit “F” to BHO DECL, 66:12-15.)
15 That he had not asked Plaintiff if prior the February 8, 2018 fall if she had experienced
16 any problems carrying an object. (Exhibit “F” to BHO DECL, 66:17-19.)
17 That he had not asked Plaintiff if prior the February 8, 2018 fall if she had experienced
18 any balance problems. (Exhibit “F” to BHO DECL, 66:20-23.)
19 That he had not asked Plaintiff if prior the February 8, 2018 fall if she had experienced
20 any close calls where she had almost fallen. (Exhibit “F” to BHO DECL, 66:24-67:3.)
21 California case law has established that “[t]he value of opinion evidence rests not in the
22 conclusion reached but in the factors considered and the reasoning employed. [Citations.] Where
23 an expert bases his conclusion upon assumptions which are not supported by the record, upon
24 matters with are not reasonably relied upon by other experts, or upon factors which are
25 speculative, remote or conjectural, then his conclusion has no evidentiary value.” (Pacific Gas
26 Electric Co. v. Zuckerman (1987), 189 Cal.App.3d, 1113, 1115.) Based on Dr. Atkin’s
27 testimony it is apparent that there he lacks a sufficient factual basis for his opinions that
28 Plaintiff’s cervical conditions increased her risk of falls, impaired her work and activities of daily
17
Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267
19-013810
1 living, and interfered with major life activities prior to the February 8 2018 fall. As noted above,
2 Dr. Atkins did not review any pre-fall medical records for Plaintiff, he knew of no medical
3 evidence that she was suffering from any sort of pain or discomfort from her conditions, and
4 when he asked her about prior neck or back problems she denied having any such problems. As
5 also noted above, during his examination Dr. Atkins did not ask Plaintiff if prior to her February
6 8, 2018 fall she had suffered any other falls or near falls, balance problems, problems walking,
7 problems bending over, problems carrying an object, or if she had experienced any impairments
8 with her activities of daily living. Finally Dr. Atkins confirmed that Plaintiff was performing her
9 regular and customary work duties without any restrictions prior her February 8, 2018 fall. In
10 light of this evidence, it is clear that Dr. Atkins’ opinions are based on assumptions not supported
11 by the record and on factors that are speculative and conjectural in nature. Therefore, Plaintiff
12 should be excluded from presenting any testimony and evidence from Dr. Atkin about Plaintiff’s
13 cervical conditions and their impact on her life, activities of daily living, or major life activities
14 prior to her February 8, 2018 fall.
15
MOTION IN LIMINE NO. 14
16 EVIDENCE ON SPECIAL DAMAGES
17 GRANTED: _________
18
GRANTED AS MODIFIED: _________
19
REFUSED: _________
20
21 If the Plaintiff is entitled to recover as special damages for medical services, then it is
22 only for the amount actually paid on her behalf, and which the medical service providers have
23
accepted in full payment, but no more. In Hanif v. Housing Authority (1988) 200 Cal.App.3d
24
635, a Medicare case, the California Court of Appeal held that damages awarded to a plaintiff for
25
past medical expenses cannot exceed the actual cost of the services rendered. (Id. At 643.) This
26
rule applies regardless of whether the expenses were paid by the plaintiff or an independent
27
source, and regardless of whether the cost of medical services may have been less than the
28
18
Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267
19-013810
1 prevailing market rate, (Id. at 641.) The Court also explained that “an award of damages for past
2 medical expenses in excess of what the medical care and services actually cost constitutes
3 overcompensation.” (Ibid.)
4 The California Supreme Court in Howell v. Hamilton Meats & Provisions, Inc. (2011)
5 Cal.4th 541, held that an injured plaintiff whose medical expenses are paid by private insurance
6 can recover damages for past medical expenses in an amount no greater than the amount that the
7 plaintiff’s medical providers, pursuant to prior agreement, accepted as full payment or, to the
8 extent that payment is still owing, the amount that the medical provider had agreed to accept as
9 full payment for the services provided. (Id. at p. 566.) the plaintiff’s pecuniary loss is limited to
10 the amount paid or incurred for past medical services, so the plaintiff cannot recover damages in
11 excess of that amount. (Id. at p. 555) Howell approved the general rule of Hanif v. Housing
12 Authority (1988) 200 Cal. App.3d 63, 640-641 and Nishihama v, City and County of San
13 Francisco (2001) 93 Cal.App.4th 298, 306-307, in this regard. (Howell, supra, at pp. 553-555.)
14 The California Court of Appeal, in Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308,
15 held that “…the full amount billed for past medical services is not relevant to a determination of
16 the damages for either past or future medical services if the medical providers had agreed to
17 accept a lesser amount as full payment. We conclude that evidence of the full amount billed is
18 not admissible for the purpose of providing plaintiff’s counsel an argumentative construct to
19 assist a jury in its difficult task of determining the amount of noneconomic damages and is
20 inadmissible for the purpose of proving noneconomic damages.”
21 It is anticipated that Plaintiff’s counsel may try to introduce evidence of bills or testimony
22 from experts as to the cost of various past and future medical care without regard to the amount
23 that was actually paid for the medical treatment he received. Such figures do not accurately
2
Preview
1 BRIAN H. O’DRISCOLL (SBN 191248) LAW OFFICES OF SCHNEIDER & HOSMER 2 333 University Avenue, Suite 210 Sacramento, CA 95825 3 Direct Line: (559) 417-2859 Office Line: (916) 921-9353 4 Facsimile: (855) 214-7884 E-service: odriscb@nationwide.com; salazb1@nationwide.com; tdsacnew@nationwide.com 5 6 7 Attorneys for Defendants, MARIN JOHN ARTUKOVICH, ARTUKOVICH FAMILY LIMITED PARTNERSHIP I (erroneously sued herein as ARTUKOVICH FAMILY 8 PARTNERSHIP), SURFSIDE RENTAL MANAGEMENT LLC, JONNA MELINAUSKAS, DOMINIQUE ARTUKOVICH and JOHN ARTUKOVICH 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF SANTA CRUZ 12 13 TRICIA KIRBY ) Case No.: 19CV01267 ) 14 Plaintiff, ) DEFENDANTS’ MOTIONS IN LIMINE ) 15 vs. ) ) 4th Amended Complaint filed: September 15, 16 BRENT C. LAY; MJA VINEYARDS LLC; ) 2023 MARIN JOHN-ARTUKOVICH; ) Trial Date: June 24, 2024 17 ARTUKOVICH FAMILY PARTNERSHIP ) Assigned Dept: TBA and DOES 1 to 20, inclusive, ) Assigned Judge: Timothy Volkmann 18 ) Defendants. ) 19 20 COMES NOW Defendants, MARIN JOHN ARTUKOVICH, ARTUKOVICH FAMILY 21 LIMITED PARTNERSHIP I, SURFSIDE RENTAL MANAGEMENT LLC, JONNA 22 MELINAUSKAS, DOMINIQUE ARTUKOVICH and JOHN ARTUKOVIC (“Defendants”), 23 who, before the beginning of the voir dire examination of the jury panel, respectfully moves the 24 Court in limine for an order that counsel, the parties herein, and all witnesses refrain from 25 making any mention, directly or indirectly in any manner whatsoever, concerning the matters 26 hereinafter set forth, at all stages of the trial including jury voir dire, opening statements and 27 thereafter until further order of this Court. 28 /// 1 Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267 19-013810 1 These motions are made on the grounds that injection of the following matters into the 2 trial of this case, including but not limited to references during voir dire, opening statements, 3 questions to witnesses, comments on evidence, objections and/or closing arguments, will result 4 in irreparable prejudice and harm to Defendant’s case which no instruction by the Court to the 5 jury could properly cure. 6 Defendants request the Court order that no mention be made of the fact that these 7 motions have been filed or of any ruling by the Court in response to these motions. This 8 includes any suggestions or implications to the jury that Defendants have moved to “hide” 9 relevant evidence or proof of Plaintiff’s allegations, or that the Court has excluded evidence or 10 proof on any issue. To comment upon any of the matters set forth hereafter, or to attempt to 11 introduce such testimony or evidence by implication, suggestion or insulation would be highly 12 improper and unfairly prejudicial to Defendants. This would be so even if the Court were to 13 sustain an objection thereto and properly instruct the jury not to consider such facts. 14 Defendants also respectfully request that the Court order all counsel, parties and 15 witnesses (including “independent” witnesses) to comply with the Court’s rulings and to abstain 16 from any reference to any of the following areas without first obtaining the permission of the 17 Court outside the presence of the jury. 18 LEGAL AUTHORITY REGARDING MOTIONS IN LIMINE 19 A motion in limine is an appropriate method to preclude prejudicial or objectionable 20 evidence before it is presented to the jury. (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 608.) 21 Such motions may reach any kind of evidence that could be objected to at trial on the grounds 22 that it is irrelevant or subject to discretionary exclusion as unduly prejudicial and time- 23 consuming. (Cal. Evid. Code Section 352; Kelly v. New West Federal Savings (1996) 49 24 Cal.App.4th 659. 669-670; Clemens v. American Warranty Corp. (1987) 193 Cal.App.3rd 444, 25 451-452.) Although not expressly authorized by statute, case law recognizes the inherent 26 authority of a trial court to entertain and grant motions in limine. (Ulloa v. McMillin Real 27 Estate & Mortgage, Inc. (2007) 149 Cal.App.4th 333, 337.) 28 The purpose of such motions is “to avoid the obviously futile attempt to ‘unring the bell’ 2 Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267 19-013810 1 in the event a motion to strike is granted in the proceedings before the jury.” (Fergus v. Songer 2 (2007) 150 Cal.App.4th 552, 569.) It is therefore appropriate for a party to move to preclude or 3 limit the introduction of evidence by presenting motions in limine prior to the start of trial and 4 before the empanelment of the jury. (See People v. Morris (1991) 53 Cal.3d 152, 188, 5 disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn.1; Eckert v. 6 Superior Court (1999) 69 Cal.App4th 262,266-267.) By resolving critical evidentiary issues at 7 the outset, motions in limine enhance the efficiency of the trial process and also promote 8 settlements. People v. Morris, supra, 53 Cal.3d at p. 188.) 9 MOTION IN LIMINE NO. 1 10 EXCLUDE REFERENCE TO DEFENDANTS’ LIABILITY INSURANCE 11 GRANTED: _________ 12 GRANTED AS MODIFIED: _________ 13 REFUSED: _________ 14 15 Defendants move that Plaintiff, his witnesses, and attorneys, and all agents thereof, be 16 ordered not to mention, infer or otherwise suggest Defendants’ insurance coverage in any 17 context. The insurance coverage of Defendants is not relevant to this case and reference to 18 insurance is expressly prohibited pursuant to Evidence Code section 1155. 19 MOTION IN LIMINE NO. 2 20 OFFERS TO COMPROMISE/SETTLEMENT NEGOTIATIONS 21 GRANTED: _________ 22 GRANTED AS MODIFIED: _________ 23 REFUSED: _________ 24 25 Offers to compromise are not relevant and reference to such offers are prohibited 26 pursuant to Evidence Code §1152. This prohibition includes conduct or statements made in 27 settlement negotiations, and any documents such as mediation briefs and MSC statements 28 submitted as part of the negotiations. Therefore, Defendants request that this Court issue an 3 Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267 19-013810 1 order excluding Plaintiff, her counsel, and any witnesses from referring to and/or mentioning in 2 any way any offers of settlement by any party and/or any conduct of or statements by any party 3 during settlement negotiations. The order would also include any reference to or mention of the 4 mediation briefs submitted by any party as part of the settlement negotiations. 5 MOTION IN LIMINE NO. 3 6 EXCLUDE ALL NON-PARTY WITNESSES FROM TRIAL 7 GRANTED: _________ 8 GRANTED AS MODIFIED: _________ 9 REFUSED: _________ 10 11 California Evidence Code section 777 provides that the Court “may exclude from the 12 courtroom any witnesses not at the time under examination, so that such witnesses cannot hear 13 the testimony of other witnesses.” (Evid. Code section 777 (a).) However, a party to the action 14 cannot be excluded.…” (Evid. Code section 777 (b).) Defendants respectfully requests that the 15 Court grant this motion to exclude all non-party witnesses from the courtroom unless such non- 16 party witnesses are being examined. This will serve to ensure that each non-party witness will 17 offer their own individual testimony, as opposed to testimony which they may have overheard 18 from another witness during proceedings. 19 MOTION IN LIMINE NO. 4 20 PLAINTIFFS’ INTRODUCTION OF ANY DOCUMENTARY EVIDENCE SHOULD BE TENDERED TO 21 OPPOSING COUNSEL OUTSIDE THE PRESENCE OF THE JURY 22 GRANTED: _________ 23 GRANTED AS MODIFIED: _________ 24 25 REFUSED: _________ 26 If Plaintiff wishes to introduce any writings (as defined in Evidence Code section 250) 27 into evidence, then she should first tender the writing to the Court and Defendants’ counsel 28 outside the presence of the jury so that there can be a determination by the Court of the writing’s 4 Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267 19-013810 1 relevance and suitability for introduction to evidence. Plaintiff needs to follow this procedure 2 before she informs the jury as to the writing’s existence. (Evid. Code section 352.) 3 MOTION IN LIMINE NO. 5 4 EVIDENCE NOT PREVIOUSLY DISCLOSED 5 GRANTED: _________ 6 GRANTED AS MODIFIED: _________ 7 REFUSED: _________ 8 9 Discovery in this case has centered around Plaintiff’s claims, and any and all 10 documentation which would substantiate Plaintiff’s claims for purported damages. Throughout 11 this case, Plaintiff has responded to Defendants’ Interrogatories and Requests for Production of 12 Documents, by verifying that she has provided to Defendants herein, any and all documents, 13 papers, things and other information related to his claims in this matter. 14 Obviously, the production by Plaintiff at trial, of any documents which were not 15 previously produced, would raise serious questions concerning the candor of Plaintiff’s previous 16 responses to Defendants’ previous requests for identification and production of documents, as 17 well as significantly prejudicing Defendants in his ability to confront these issues at the time of 18 trial. Defendants would have no opportunity to prepare for cross examination nor would 19 Defendants’ experts have the ability to assess any additional information not previously provided 20 to Defendants through this point in time. 21 As this Court is aware, the principal purpose of discovery is to do away with "the 22 sporting theory of litigation - - namely, surprise at trial." (Chronicle Publishing Company v. 23 Superior Court (1960) 54 Cal.2d 548, 561.) This purpose is accomplished by requiring the 24 parties to comply with all applicable discovery rules prior to trial, and by refusing to sanction 25 discovery abuses by ensuring that no party shall benefit at trial, from his, her and/or its failure to 26 comply with applicable discovery rules. 27 As expressly noted in the discovery statutes, and as construed by decisional law, our 28 California Courts have the express authority at the time of trial to exclude evidence or 5 Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267 19-013810 1 information which has been withheld and/or otherwise “not produced” during the discovery 2 process. (See Code Civ. Proc. section 2017 et. seq, and in particular, sections 2025, 2030, 2031 3 and 2034 (Civil Discovery Act).) As recognized by California Courts, the power to exclude such 4 evidence at trial “is an inherently necessity if the purposes of the Discovery Act are to be 5 achieved.” (Thoren v. Johnson and Washer (1972) 29 Cal.App.3d 270, 273.) In this regard, 6 California’s Appellate Court upheld the exclusion of certain financial evidence which a husband 7 had refused to supply to a Court-appointed accountant before trial. (See also In Re Marriage of 8 Stallcup (1979) 97 Cal.App.3d 294.) 9 In the case at bar, if Plaintiff is allowed to introduce any documents and/or other evidence 10 which she has not previously produced, including any testimony based upon any documents not 11 previously produced by Plaintiff, then Defendants would be severely prejudiced by such 12 testimony and/or documents. To allow such a practice would condone Plaintiff’s refusal to 13 supply such information to Defendants, even though the same was properly requested through 14 the discovery process, thus enabling, allowing and permitting Plaintiff to take advantage during 15 trial, of such previous failure and refusal to comply with prior discovery. Such conduct cannot 16 and should not be sanctioned by this Court. 17 MOTION IN LIMINE NO. 6 18 EXCLUDE TESTIMONY OF LAY WITNESSES WHOSE IDENTITY HAS NOT BEEN PREVIOUSLY DISCLOSED IN DISCOVERY 19 GRANTED: _________ 20 21 GRANTED AS MODIFIED: _________ 22 REFUSED: _________ 23 Defendants moves for a Motion in Limine to prevent Plaintiff from presenting the 24 testimony of any lay witnesses whose identity has not been previously disclosed in discovery. 25 This Court has the inherent authority to exclude a witness’ testimony at Trial if that 26 witness’ name has been willfully excluded from answers to interrogatories which request the 27 names of all witnesses. (Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, 273.) This is 28 6 Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267 19-013810 1 also true where it is necessary to exclude such testimony in order to accomplish the purposes of 2 civil discovery. (Crumpton v. Dickestein (1978) 82 Cal.App.3d 166, 170-174; Thoren v. 3 Johnston & Washer, supra, at page 275.) 4 Therefore, Defendants requests that this Court issue an order excluding the testimony of 5 lay witnesses whose identity has not been previously disclosed by Plaintiff in discovery. 6 MOTION IN LIMINE NO. 7 7 TESTIMONY OF LAY WITNESSES 8 GRANTED: _________ 9 GRANTED AS MODIFIED: _________ 10 REFUSED: _________ 11 12 Defendants moves for a Motion in Limine to prevent Plaintiff from offering any expert 13 testimony or opinions from lay or unqualified witnesses. 14 Calif. Evidence Code Section 800 expressly limits the opinions of lay witnesses to those 15 that are: 16 (a) Rationally based on the perception of the witness; and 17 (b) Helpful to a clear understanding of his testimony. 18 A lay witness may neither answer questions nor give opinion testimony upon areas where 19 expert testimony must be elicited. Such testimony must be barred from the case. (See Nolan v. 20 Nolan (1909) 155 Cal. 476.) By virtue of the above, Defendants respectfully opposes the use 21 and/or admission into evidence, of any such “expert testimony” and/or opinions from witnesses 22 who are not held by the Court to be qualified as an expert witness 23 Accordingly, Defendants, respectfully requests that this Court issue an order precluding 24 Plaintiff from asking opinion questions of lay and/or other witnesses who are not qualified by 25 this Court, as experts with adequate training, experience and sufficient expertise in the specific 26 area in which they intend to testify, in compliance with Evidence Code Section 800. 27 /// 28 /// 7 Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267 19-013810 1 MOTION IN LIMINE NO. 8 2 EXCLUDE TESTIMONY FROM ANY EXPERT NOT DESIGNATED PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 2034.210 3 GRANTED: _________ 4 5 GRANTED AS MODIFIED: _________ 6 REFUSED: _________ 7 Defendants moves for a Motion in Limine to prevent Plaintiff from presenting the 8 testimony of any non-designated expert witnesses. 9 Code of Civil Procedure Section 2034.300 provides that upon objection of any party, the 10 trial court must exclude a witness’s expert opinion at trial if the party offering the testimony did 11 not designate the witness as an expert. (Code Civ. Proc. section 2034.300 (a)-(c).) The 12 designation process involves timely identifying the expert’s name and address, providing a 13 supporting expert witness declaration, and upon request, producing copies of the expert’s reports 14 and other writings. (Code Civ. Proc. sections 2034.260, 2034.270.) 15 There are only two exceptions to the prohibition against non-designated expert witness 16 testimony. Pursuant to Code of Civil Procedure section 2034.310, a party may call an expert to 17 testify at trial if another party in the case previously designated the same expert witness and the 18 expert was previously deposed. (Code Civ. Proc. section 2034.310(a).) Non-designated experts 19 may also testify for the limited purpose of impeaching the testimony of an opponent’s expert 20 witness. (Code Civ. Proc. section 3024.310(b).) Otherwise, permitting a non-designated expert 21 to testify at trial deprives the opposing party of the opportunity to prepare for cross-examination 22 and rebuttal. (Bonds v. Roy (1999) 20 Cal.4th 140, 147.) 23 Based on the above, Defendants specifically move to preclude any non-retained medical 24 provider that Plaintiff saw as part of her medical treatment after the subject incident. In 25 Plaintiff’s Designation of Expert Witnesses; Declaration of S. Colin Brown in Support of Expert 26 Witness Disclosure and Designation, Plaintiff indicated that “she reserves the right to name and 27 call additional experts . . .” including “Any of Tricia Kirby’s health care providers, including 28 8 Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267 19-013810 1 treating or examining physicians, nurses, physicians assistants or other practitioners of the 2 healing arts.” (Exhibit “A” to BHO DECL.) But Plaintiff failed to comply with Code of Civil 3 Procedure Section 2034.260 for these non-retained expert witnesses. (Ibid.) Under Section 4 2034.260 Plaintiff is required to include “[a] list setting forth the name and address of a person 5 whose expert opinion that party expects to offer in evidence of trial.” (Code Civ. Proc. 6 §2034.260(b)(1).) This requirement covers both retained expert witnesses, and non-retained 7 expert witnesses such as Plaintiff’s health care providers, physicians, nurses, physician 8 assistants, or other practitioners of the healing arts. Since Plaintiff did not include the names or 9 addresses of any of these providers, she had failed to comply with Section 2034.260. “Where, as 10 here, the treating physicians are not listed or identified by name but simply referred to in the 11 designation as ‘all past or present examining and/or treating physicians,’ there has been no 12 compliance with the letter or the spirit of section 2034, and the trial court acts within its 13 discretion when it excludes expert testimony by the non-designated doctors.” (Kalaba v. Gray 14 (2002) 95 Cal.App.4th 1416, 1423.) 15 MOTION IN LIMINE NO. 9 16 EXCLUDE TESTIMONY FROM PLAINTIFF’S RETAINED EXPERTS STEVEN SCHRAIBMAN AND DR. DAVID MILES 17 ATKINS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 2034.300 18 GRANTED: _________ 19 GRANTED AS MODIFIED: _________ 20 21 REFUSED: _________ 22 Defendants moves for a Motion in Limine to prevent Plaintiff from presenting the 23 testimony of retained expert witnesses Steven Schraibman and Dr. David Miles Atkins. 24 Code of Civil Procedure Section 2034.270 provides that if a demand for exchange of 25 witness information includes a demand for production of reports and writings, all parties must 26 produce and exchange all discovery reports and writings. Code of Civil Procedure Section 27 2034.300 provides that upon objection of any party, the trial court shall exclude a witness’s 28 expert opinion at trial if the party offering the testimony did not produce the reports and writings 9 Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267 19-013810 1 pursuant to Section 2034.270. (Code Civ. Proc. Section 2034.300(c).) 2 In their September 20, 2023 Demand for Exchange of Information Concerning Expert 3 Trial Witness Defendants included a provision stating “f) A production for inspection and 4 copying of all discoverable reports and writings, if any, made by any expert in the course of 5 preparing that expert’s opinion;” (Exhibit “B” to BHO DECL.) In Plaintiff’s Expert Witness 6 Disclosure Plaintiff’s counsel stated in his Declaration that Steven Schraibman “has written a 7 declaration and a report this action, both of which have been produced.” (Exhibit “A” to BHO 8 DECL.) Defendants believe that Plaintiff’s counsel is referencing documents from Mr. 9 Schraibman that were included in Plaintiff’s Motion for Summary Adjudication. However, a 10 review of Plaintiff’s moving papers reveals that she did not include a copy of any report from 11 Mr. Schraibman. Plaintiff only provided a Declaration from Mr. Schraibman. In fact, as detailed 12 in Defendants’ Objections to Evidence Proffered by Plaintiff in support of her Motion for 13 Summary Adjudication, in his Declaration Mr. Schraibman referred to his resume, report, site 14 photographs, and diagrams, but none of these items were actually included with the Declaration. 15 Thus, Plaintiff did not produce a copy of Mr. Schraibman’s two reports even though Defendants 16 expressly included a request for such materials in their expert witness demand. 17 Plaintiff’s counsel did include a copy of Mr. Schraibman’s Declaration in the Motion for 18 Summary Judgment, but this does not constitute the production of a discoverable writing made 19 by Mr. Schraibman in the course of preparing his opinions (Code of Civ. Proc. §2034.270.) 20 Thus, Plaintiff also failed to produce a copy of Mr. Schraibman’s Declaration even though 21 Defendants included a request for such materials in their expert witness demand. 22 With regards to retained expert Dr. David Miles Atkins, in his Declaration Plaintiff’s 23 counsel indicated that Dr. Atkins “has written a declaration and a summary report on his record 24 review and examination of Ms. Kirby of which have been previously produced.” (Exhibit “A” 25 to BHO DECL.) Defendants believe that Plaintiff’s counsel is referencing documents from Dr. 26 Atkins that were included in Plaintiff’s Motion for Summary Adjudication. This does not 27 constitute the production of a discoverable writing made by Dr. Atkins in the course of preparing 28 his opinions (Code of Civ. Proc. Section 2034.270.) Thus, Plaintiff’s counsel failed to produce a 10 Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267 19-013810 1 copy of Dr. Atkins’ Declaration or report even though Defendants included a request for such 2 materials in their expert witness demand. 3 Defendants would point out that on November 3, 2023 they served an Objection to 4 Plaintiff’s Designation of Expert Witnesses and Declaration of Colin Brown in Support of Expert 5 Witness Disclosure or Designation in which they pointed out Plaintiff’s failure to comply with 6 Section 2034.270 with regards to Mr. Schraibman and Dr. Atkins. (Exhibit “C” to BHO 7 DECL.) However, instead of seeking permission from the Court to correct the deficiencies in 8 her designation, or even serving an amended expert witness designation that included the missing 9 materials, Plaintiff did nothing. Defendants did not get copies of the required materials until Dr. 10 Atkins’ and Mr. Schraibman’s case files were produced shortly before their respective 11 depositions (Dr. Atkins was deposed on February 22, 2024, and Mr. Schraibman was deposed on 12 May 28, 2024.) This resulted in significant prejudice to Defendants. 13 In light of Plaintiff’s failure to comply with Section 2034.270 and her subsequent failure 14 to make any effort to correct the deficiencies in her expert designation, the Court should exclude 15 Plaintiff from presenting the testimony of both Mr. Schraibman and Dr. Atkins at trial. 16 MOTION IN LIMINE NO. 10 17 EXCLUDE TESTIMONY FROM DR. BRENT C. LAY AS A NON-RETAINED EXPERT WITNESS 18 GRANTED: _________ 19 20 GRANTED AS MODIFIED: _________ 21 REFUSED: _________ 22 Defendants move to exclude Plaintiff from presenting the testimony of DR. BRENT 23 LAY as a non-retained expert witness. 24 In Plaintiff’s October 13, 2023 Expert Witness Disclosure Plaintiff designated DR. 25 BRENT LAY as a non-retained expert witness. Specifically, Plaintiff indicated that DR. 26 BRENT LAY’s opinions may be sought: 27 28 On accessibility, legal or architectural compliance of his office, the availability of 11 Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267 19-013810 a new patient chair or other equipment, including for patient room 3: actions or 1 steps taken or contemplated to remediate the dental office or keep it in legal 2 compliance; expenses and options considered or incurred for same: safety and equipment considerations including office management, personnel, ergonomics, 3 or configuration; American with Disabilities Act and other legal compliance evaluation(s), status or considerations: costs and benefits of office and dental 4 equipment: ability or cost to remediate the office and equipment. (Exhibit “A” to 5 BHO DECL.) 6 Defendants are not familiar with any statute or case law that authorizes a party to designate 7 another party as an expert witness, or to offer up testimony from that party at trial as an expert 8 witness. In addition, the deposition of DR. BRENT LAY clearly demonstrated that he is not 9 qualified testify as an expert witness on any of the topics Plaintiff listed in her expert witness 10 designation. For these reasons, the Court should exclude Plaintiff from offering any testimony of 11 DR. BRENT LAY as an expert witness at trial. 12 MOTION IN LIMINE NO. 11 EXCLUDE TESTIMONY FROM PLAINTIFF’S 13 RETAINED EXPERT STEVEN SCHRAIBMAN THAT IS NOT 14 RELEVANT PURSUANT TO EVIDENCE CODE SECTIONS 210, 350, AND 352 15 GRANTED: _________ 16 GRANTED AS MODIFIED: _________ 17 REFUSED: _________ 18 19 Defendants move to exclude Plaintiff from presenting the testimony of retained expert 20 witness Steven Schraibman that is not relevant to the claims being asserted by Plaintiff. 21 In her Fourth Amended Complaint Plaintiff alleged causes of action for a Violation of 22 California Labor Code Section 3706 et seq. negligence, premises liability, and violations of the 23 Unruh Civil Rights Act. In support of these causes of action Plaintiff alleged the same 24 description of her February 8, 2018 fall incident: 25 21./25./31. While in the course and scope of her employment by LAY, KIRBY’s 26 foot became entangled in a dangerous loose and unrestrained cord or tube dangling from the dental procedure tools near, on or about the floor are by the 27 patient chair and table where she was working. As she walked carrying and removing a tray of dirty dental instruments from the dental procedure area, 28 KIRBY was tripped by the unreasonably dangerous cord or tube, and fell to the 12 Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267 19-013810 floor, causing bodily injury to her person. (Exhibit “D” to BHO DECL.) 1 2 In support of her Unruh Civil Rights Act cause of action Plaintiff further alleged: 3 37. The design and configuration of the subject dental treatment room and operatory area, including floor space, dental operatory unit, and dental chair, 4 dental full and equal access to persons with disabilities including KIRBY . . . 5 39. . . . The cords, pedals, and tubes which were located on or near the floor 6 varied in elevation, were not firm or stable, and caused KIRBY, on the singular 7 occasion she fell on February 8, 2018, to at first be caught by the foot by an unstable implement to be suddenly released from the implement and to fall 8 forward on the floor . . . . The dental chair was in a fixed location. The wall and cabinet structure were in a fixed location. The dental operatory unit, while 9 mounted on wheels included semi-flexible plumbing lines, including an exhaust 10 line fixed to the wall of the room which adhered it to the wall; it could not be moved or the room reconfigured so as to remove its effect as an accessibility 11 barrier. Walking access to the operatory unit was a necessary part of the dental and hygiene practice, . . . . (Exhibit “D” to BHO DECL.) 12 Based on these descriptions it is apparent that Plaintiff’s causes of action have to do solely with 13 the equipment found in the room where she performed her work as a dental hygienist. More 14 specifically, Plaintiff’s allegations deal with the dental operatory unit in that room which 15 Plaintiff’s alleges she tripped and fell over. Plaintiff did not include any allegations about 16 conditions found in any other part of the property. Not surprisingly all of the discovery in this 17 case has focused on the room where Plaintiff worked and the dental operatory unit. 18 But, when Mr. Schraibman was deposed and a copy of his case file was produced which 19 included his two reports on the property (the ones not produced as part of Plaintiff’s expert 20 designation), his reports showed that he had identified and documented multiple alleged ADA 21 and Building Code violations throughout the entire property. This included the room where 22 Plaintiff worked and fell, along with the parking lot, front walkway, main entrance, patient 23 waiting room, work counters, hallways, and bathroom. 24 Evidence Code Section 350 establishes that no evidence is admissible at trial except 25 relevant evidence. Evidence Code Section 210 defines “relevant evidence” to mean evidence 26 “having any tendency in reason to prove or disprove any disputed fact that is of consequence to 27 the determination of the action.” As detailed above, in her Complaint Plaintiff did not allege any 28 13 Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267 19-013810 1 dangerous conditions or ADA access violations anywhere else in the property except for the 2 room where she worked. All of the discovery to date has focused on that room and the 3 equipment, particularly the operative unit, found in that room. Plaintiff has never asserted that 4 any conditions found on the rest of the property had anything to do with the incident. During his 5 deposition Mr. Schraibman confirmed that none of these other conditions he identified had any 6 connection to Plaintiff’s fall incident. (Exhibit “E” to BHO DECL.) Thus, none of Mr. 7 Schraibman’s opinions about alleged ADA and Building Code violations throughout the rest of 8 the property can be considered relevant evidence as it does not have any tendence to prove or 9 disprove any disputed fact of consequence. 10 Furthermore, Evidence Code 352 provides that the Court may exclude evidence if the 11 probative value is substantially outweighed the probability that its admission will create the 12 substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. Mr. 13 Schraibman’s opinions about alleged ADA and Building Code violations throughout the rest of 14 the property clearly fall under this exclusion. The probative value of this evidence is non- 15 existent since it has nothing to do with the February 8, 2018 fall incident or Plaintiff’s 16 allegations. In contrast there is a significant danger that if Mr. Schraibman’s opinions about 17 multiple violations at the property are admitted at trial that the jury will develop a negative and 18 unfair opinion about the Defendants. Mr. Schraibman’s opinions also have the serious risk of 19 confusing issues for the jury. Mr. Schraibman would be testifying about multiple statutory and 20 code provisions relating to these other violations, and this technical evidence could easily lead to 21 confusion for the jury as they try to sift out the provisions relating to the Plaintiff’s allegations 22 from the ones unrelated to those allegations. Finally, Mr. Schraibman’s opinions could mislead 23 the jury as they may improperly conclude that if there are violations throughout the rest of the 24 property, then there must also be violations in the room where the incident occurred, regardless 25 of any evidence specifically presented about that room. 26 Based on the above the Court should exclude any testimony from Mr. Schraibman about 27 his observations and opinions relating to any other areas of the property besides the room and 28 equipment that form the basis for Plaintiff’s allegations in her Complaint. 14 Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267 19-013810 1 MOTION IN LIMINE NO. 12 EXCLUDE TESTIMONYAND EVIDENCE FROM PLAINTIFF’S RETAINED BUT 2 DE-DESIGNATED EXPERT WITNESSES TATE KUBOSE AND KATERINA BLAZEK 3 GRANTED: _________ 4 GRANTED AS MODIFIED: _________ 5 6 REFUSED: _________ 7 Defendants move to exclude Plaintiff from presenting any testimony and evidence from 8 retained expert witnesses Tate Kubose and Katerina Blazek. 9 In her Expert Witness Disclosure Plaintiff identified multiple retained expert witnesses 10 include Mr. Kubose and Ms. Blazek. On February 2, 2024 Plaintiff’s communicated to 11 Defendants’ counsel that he was withdrawing Mr. Kubose and Ms. Blazek as expert witnesses. 12 Based on Plaintiff’s counsel’s representation Defendants’ counsel subsequently de-designated 13 Dennis Chimich and Bong J. Walsh as expert witnesses who Defendants had originally 14 designated in response to Mr. Kubose and Ms. Blazek. Defendants’ counsel also did not notice 15 the depositions of Mr. Kubose and Ms. Blazek. 16 In light of Plaintiff’s counsel’s representation and Defendants’ reliance on those 17 representations, the Court should exclude any testimony from Mr. Kubose and Ms. Blazek at 18 trial. In addition, the Court should exclude any opinions, materials or information, including any 19 photographs, measurements, or other data, that these two experts may have secured, produced, or 20 generated as part of their work on this case. These items should not be presented at trial by Mr. 21 Kubose or Ms. Blazek, nor should they be presented indirectly by some other witness such as 22 Mr. Schraibman. Likewise, none of Plaintiff’s experts witnesses should be allowed to provide 23 any testimony or opinions that relies upon any opinions, materials or information secured, 24 produced, or generated by these two experts. Plaintiff’s counsel withdrew Mr. Kubose and Ms. 25 Blazek as expert witnesses and Defendants had no opportunity to secure their case files or take 26 their depositions, so it would be completely improper for any other expert witness to present 27 their opinions, materials, or information at trial. 28 15 Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267 19-013810 MOTION IN LIMINE NO. 13 1 PRECLUDE EVIDENCE FROM DR. DAVID 2 MILES ATKINS THAT PLAINTIFF SUFFERED FROM A DISABILITY/MEDICAL CONDITION THAT LIMITED MAJOR 3 LIFE ACTIVITIES PRIOR TO HER FEBRUARY 8, 2018 FALL INCIDENT 4 GRANTED: _________ 5 GRANTED AS MODIFIED: _________ 6 7 REFUSED: _________ 8 In his reports and deposition testimony Dr. Atkins has opined that at the time of her 9 February 8, 2018 fall, Plaintiff suffered from severe cervical degenerative disc disease and 10 cervical spinal stenosis. Dr. Atkins also opined that because of these conditions Plaintiff would 11 have experienced impairment with work and activities of daily living prior to the February 8, 12 2018 fall. In addition, due to her cervical stenosis Plaintiff also would have faced a higher risk 13 of fall in comparison to the general population. Dr. Atkin has also opined that the higher risk of 14 falls would be due to Plaintiff’s disc disease and spinal stenosis affecting her ability to stay 15 upright while walking, bending, or carrying an object and affecting her balance. Dr. Atkin has 16 further opined that Plaintiff’s medical conditions substantially interfered with major life 17 activities such as walking lifting or bending. It is these opinions that form the basis for Plaintiff’s 18 claim under the Unruh Act. 19 During his February 22, 2024 deposition Dr. Atkin was about the factual basis for his 20 opinions. Dr. Atkin testified to the following: 21 That he had not seen any medical records relating to Plaintiff’s physical condition or any 22 orthopedic injuries prior to her February 8, 2018 fall. (Exhibit “F” to BHO DECL, 23 22:18-23:14.) 24 That during his examination of Plaintiff he had asked her if she had suffered from any 25 problems in her neck or back prior to the February 8, 2018 fall and she had told him no. 26 (Exhibit “F” to BHO DECL, 26:2-20.) 27 That he had not asked Plaintiff if prior to the February 8, 2018 fall she had ever 28 experienced any other falls. (Exhibit “F” to BHO DECL, 28:15-18.) 16 Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267 19-013810 1 That he has no medical evidence that prior to the February 8, 2018 fall Plaintiff was 2 suffering from any sort of pain or discomfort from her cervical spine conditions. (Exhibit 3 “F” to BHO DECL, 40:13-17.) 4 That prior to the February 8, 20918 fall Plaintiff was performing her normal and 5 customary work without restrictions. (Exhibit “F” to BHO DECL, 40:18-23.) 6 That when he asked Plaintiff if prior to the February 8, 2018 fall if she experienced any 7 impairments with work activities, she only mentioned increased fatigue and difficulty 8 with endurance. (Exhibit “F” to BHO DECL, 61:6-16.) 9 That he had not asked Plaintiff if prior to the February 8, 2018 fall if she had experienced 10 any impairments with activities of daily living. (Exhibit “F” to BHO DECL, 61:17-20.) 11 That he had not asked Plaintiff if prior to the February 8, 2018 fall if she had experienced 12 any problems walking. (Exhibit “F” to BHO DECL, 66:4-8.) 13 That he had not asked Plaintiff if prior to the February 8, 2018 fall if she had experienced 14 any problems bending. (Exhibit “F” to BHO DECL, 66:12-15.) 15 That he had not asked Plaintiff if prior the February 8, 2018 fall if she had experienced 16 any problems carrying an object. (Exhibit “F” to BHO DECL, 66:17-19.) 17 That he had not asked Plaintiff if prior the February 8, 2018 fall if she had experienced 18 any balance problems. (Exhibit “F” to BHO DECL, 66:20-23.) 19 That he had not asked Plaintiff if prior the February 8, 2018 fall if she had experienced 20 any close calls where she had almost fallen. (Exhibit “F” to BHO DECL, 66:24-67:3.) 21 California case law has established that “[t]he value of opinion evidence rests not in the 22 conclusion reached but in the factors considered and the reasoning employed. [Citations.] Where 23 an expert bases his conclusion upon assumptions which are not supported by the record, upon 24 matters with are not reasonably relied upon by other experts, or upon factors which are 25 speculative, remote or conjectural, then his conclusion has no evidentiary value.” (Pacific Gas 26 Electric Co. v. Zuckerman (1987), 189 Cal.App.3d, 1113, 1115.) Based on Dr. Atkin’s 27 testimony it is apparent that there he lacks a sufficient factual basis for his opinions that 28 Plaintiff’s cervical conditions increased her risk of falls, impaired her work and activities of daily 17 Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267 19-013810 1 living, and interfered with major life activities prior to the February 8 2018 fall. As noted above, 2 Dr. Atkins did not review any pre-fall medical records for Plaintiff, he knew of no medical 3 evidence that she was suffering from any sort of pain or discomfort from her conditions, and 4 when he asked her about prior neck or back problems she denied having any such problems. As 5 also noted above, during his examination Dr. Atkins did not ask Plaintiff if prior to her February 6 8, 2018 fall she had suffered any other falls or near falls, balance problems, problems walking, 7 problems bending over, problems carrying an object, or if she had experienced any impairments 8 with her activities of daily living. Finally Dr. Atkins confirmed that Plaintiff was performing her 9 regular and customary work duties without any restrictions prior her February 8, 2018 fall. In 10 light of this evidence, it is clear that Dr. Atkins’ opinions are based on assumptions not supported 11 by the record and on factors that are speculative and conjectural in nature. Therefore, Plaintiff 12 should be excluded from presenting any testimony and evidence from Dr. Atkin about Plaintiff’s 13 cervical conditions and their impact on her life, activities of daily living, or major life activities 14 prior to her February 8, 2018 fall. 15 MOTION IN LIMINE NO. 14 16 EVIDENCE ON SPECIAL DAMAGES 17 GRANTED: _________ 18 GRANTED AS MODIFIED: _________ 19 REFUSED: _________ 20 21 If the Plaintiff is entitled to recover as special damages for medical services, then it is 22 only for the amount actually paid on her behalf, and which the medical service providers have 23 accepted in full payment, but no more. In Hanif v. Housing Authority (1988) 200 Cal.App.3d 24 635, a Medicare case, the California Court of Appeal held that damages awarded to a plaintiff for 25 past medical expenses cannot exceed the actual cost of the services rendered. (Id. At 643.) This 26 rule applies regardless of whether the expenses were paid by the plaintiff or an independent 27 source, and regardless of whether the cost of medical services may have been less than the 28 18 Kirby v. Lay, et al. DEFENDANTS’ MIL Case No. 19CV01267 19-013810 1 prevailing market rate, (Id. at 641.) The Court also explained that “an award of damages for past 2 medical expenses in excess of what the medical care and services actually cost constitutes 3 overcompensation.” (Ibid.) 4 The California Supreme Court in Howell v. Hamilton Meats & Provisions, Inc. (2011) 5 Cal.4th 541, held that an injured plaintiff whose medical expenses are paid by private insurance 6 can recover damages for past medical expenses in an amount no greater than the amount that the 7 plaintiff’s medical providers, pursuant to prior agreement, accepted as full payment or, to the 8 extent that payment is still owing, the amount that the medical provider had agreed to accept as 9 full payment for the services provided. (Id. at p. 566.) the plaintiff’s pecuniary loss is limited to 10 the amount paid or incurred for past medical services, so the plaintiff cannot recover damages in 11 excess of that amount. (Id. at p. 555) Howell approved the general rule of Hanif v. Housing 12 Authority (1988) 200 Cal. App.3d 63, 640-641 and Nishihama v, City and County of San 13 Francisco (2001) 93 Cal.App.4th 298, 306-307, in this regard. (Howell, supra, at pp. 553-555.) 14 The California Court of Appeal, in Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 15 held that “…the full amount billed for past medical services is not relevant to a determination of 16 the damages for either past or future medical services if the medical providers had agreed to 17 accept a lesser amount as full payment. We conclude that evidence of the full amount billed is 18 not admissible for the purpose of providing plaintiff’s counsel an argumentative construct to 19 assist a jury in its difficult task of determining the amount of noneconomic damages and is 20 inadmissible for the purpose of proving noneconomic damages.” 21 It is anticipated that Plaintiff’s counsel may try to introduce evidence of bills or testimony 22 from experts as to the cost of various past and future medical care without regard to the amount 23 that was actually paid for the medical treatment he received. Such figures do not accurately 2