Preview
MARCIE ISOM FITZSIMMONS (SBN: 226906)
HIEU T. WILLIAMS (SBN: 280585)
MN
GORDON REES
275 Battery Street,
SCULLY MANSUKHANI,
Suite 2000
LLP imam-swam a»
San Francisco, CA 94111 .
‘ RK OF THE couRT ,
Telephone: (415) 986-5900 _ ERIOR COURT OF'CA
Facsimile: (415) 986-8054 00‘ NW OF SANTA CLARA
UTY
MIsom@grsm.com BY__~_..._..___...__BE‘
HWilliams@grsm.com
p)
.CBX‘V’fl
Attorneys for Defendant €06,
PALO ALTO FOUNDATION MEDICAL GROUP, INC.
\DOOQQUI-F-
LINDBERGH PORTER (SBN: 100091)
LITTLER MENDELSON, RC.
333 Bush Street, 34th Floor
San Francisco, CA 94104
Telephone: (415) 433-1940
10 Facsimile: (415) 399-8490
LLP
LPorter@litt1er.com
11
MAIKO NAKARAI-KANIVAS (SBN: 271710)
2000
MANSUKHANI,
12 LITTLER MENDERLSON, RC.
94111
1255 Treat Blvd., Suite 600
Suite 13 Walnut Creek, CA 94597
CA
Telephone: (925) 932—2468
Street,
14 Facsimile: (925) 946-9809
MNakaraikanivas@littler.com
Francisco,
SCULLY
15
Battery Attorneys for Defendants
16 SUTTER HEALTH and PALO ALTO MEDICAL FOUNDATION
REES San
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17 SUPERIOR COURT OF CALIFORNIA
GORDON
18 COUNTY OF SANTA CLARA
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20 DIANA P. BLUM, M.D., ) CASE NO. 115CV277582
21 Plaintiff, ; DEFENDANTS’ JOINT
)
MOTION IN LIMINE
22 vs.
)
T0 LIMIT THE TESTIMONY OF
PLAINTIFF’S EXPERT
) DR. LORNE S. LABEL
23 SUTTER HEALTH, a California corporation;
PALO ALTO FOUNDATION MEDICAL )
24 GROUP, NC, a California corporation; ) No. 5 of 16
PALO ALTO MEDICAL FOUNDATION, a )
25 California corporation; and DOES 1 through ) Date: January 8, 2018
20, Time: 8:45 am. D CPL. _
16
26 ;
Defendants. )
27 ) Complaint Filed: March 4, 2015
) FAC Filed: August 7, 2015
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DEFENDANTS’ JOINT MOTION IN LIMINE NO. 5
TO LIMIT THE TESTIMONY OF PLAINTIFF'S EXPERT DR. LORNE S. LABEL
TABLE OF CONTENTS
Page
I. INTRODUCTION ............................................................................................................... 5
II. RELEVANT FACTS ........................................................................................................... 6
\OOOVONUI-PUJIQv—t
A. Plaintiff’s Expert Disclosure .................................................................................... 6
B. Dr. Lorne’s Qualifications ....................................................................................... 6
C. Dr. Label’s Testimony Regarding Defendants’ Purported Policies and
Practices ................................................................................................................... 7
1. Productivity .................................................................................................. 7
2. Throughput (i.e., Patient Visits) ................................................................... 8
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3. Leakage ........................................................................................................ 8
4. Lean .............................................................................................................. 9
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D. Dr. Label’s Testimony That Defendants Retaliated Against Plaintiff ................... 10
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10
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275 A. Dr. Label’s Testimony About Defendants” Purposed Policies and Practices
is Inadmissible Hearsay and Should Be Excluded ................................................. 10
NNNNNNNNNHn—‘p—p—Ap—np—np—np—nu—nr—n
GORDON
1. Dr. Label Never Reviewed or Confirmed The Existence
Defendants’ ll
Policies and Practices ........................................................
2.
“\IONUI-FUJNt—‘OWOOQONUI-hWNHO
Dr. Label’s Testimony that Plaintiff “Complained and Protested”
15 Based on the Assumption that, Plaintiff is Telling the Truth .................. 12
Dr. Label’s Testimony Is Not Relevant and Should Be Excluded ........................ 13
Dr. Label Cannot Testify As To Legal Conclusions Or Subjects That Are
Of Common Knowledge ........................................................................................ 14
D. Dr. Label Is Not Qualified As an Expert in Medical Group Policies and
Practices and His Testimony Is Beyond the Scope of His Expertise and
Should Be Excluded ............................................................................................... 16
I. Dr. Label Has No Special Knowledge, Skill, Experience, Training,
or Education Regarding “Physician Productivity” or RVUs ..................... 16
2. Dr. Label Has No Special Knowledge, Skill, Experience, Training,
or Education Regarding “Leakage” ........................................................... 17
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DEFENDANTS’ JOINT MOTION IN LIMINE NO. 5
TO LIMIT THE TESTIMONY OF PLAINTIFF’S EXPERT DR. LORNE S.LABEL
3. Dr. Label Has No Special Knowledge, Skill, Experience, Training,
or Education Regarding “Lean” .......................................................... ....... 1 8
_
4. Dr. Label Has No Special Knowledge, Skill, Experience, Training,
#WN or Education Regarding Billing and Coding .............................................. 18
5. Dr. Label Is Not Qualified as an Expert in Constructive
Termination, Retaliation or Human Resources .......................................... 19
E. The Testimony Will Cause Unfair Prejudice, Confuse the Issues, and
Waste Time ............................................................................................................ 19
IV. CONCLUSION .................................................................................................................. 20
\DOOVOSLI-
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GORDON
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DEFENDANTS’ JOINT MOTION IN LIMINE NO. 5
TO LIMIT THE TESTIMONY 0F PLAINTIFF’S EXPERT DR. LORNE S.LABEL
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TABLE OF AUTHORITIES
Page(s)
Cases
Bushling v. Fremont Medical Center
(2004) 117 Ca1.App.4th 493 ............................................................................................. : .......
11
\lONUI-IRUJN
Dee v. PCS Property Mgmt., Inc.
(2009) 174 Ca1.App.4th 390 .....................................................................................................
11
Downer v. Bramet et al.
(1984) 152 Cal.App.3d 837 ........................
14
00
Ellenberger v. Karr
(1982) 127 Ca].App.3d 423 ......................................................................................................
19
Flowers v. Torrance Memorial Hospital Medical Center
10 (1994) 8 Cal.4th 992 .................................................................................................................
13
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11 Jennings v. Palomar Pomerado Health Systems, Inc.
(2003) 114 Ca1.App.4th 1108 ...................................................................................................
11
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12
94111 Khajavi v. Feather River Anesthesia Med. Group
Suite 13 (2000) 84 Ca1.App.4th 32 ...................................................................................................
13, 14
CA
Street,
14‘ Kotla v. Regents of the Univ. of Calif.
Francisco,
(2004) 115 Ca1.App.4th 283 ...............................................................................................
14, 15
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Battery People v. Gardeley
16 (1996) 14 Cal.4th 605 ...............................................................................................................
11
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17 People v. Hogan
(1982)31 16,17
Ca1.3d 817 ..........................................................................................................
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18
People v. Louie
19 (1984) 158 Ca1.App.3d Supp. 28 ..............................................................................................
13
20 People v. McDowell
(2012), 54 Cal.4th 395 ..............................................................................................................
16
21
People v. Monteil
22 (1993) 5 Cal.4th 877 ...................................................................................................
11
23 People v. Prince
(2007) 40 Cal.4th 1179 .............................................................................................................
14
24
People v. Richardson
25 (2008) 43 Cal.4th 959 ...............................................................................................................
11
26 People v. Torres
(1995) 33 Ca1.App.4th 37 .........................................................................................................
15
27
People v. Watson
28 (2008) 43 Cal.4th 652 ...............................................................................................................
16
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DEFENDANTS’ JOINT MOTION IN LIMINE NO. 5
To LIMIT THE TESTIMONY OF PLAINTIFF’S EXPERT DR. LORNE s. LABEL
Sanchez v. Brooke
(2012), 204 Ca1.App.4th 126 ....................................................................................................
16
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Sarka v. The Regents of the Univ. of Calif
(2006) 146 Cal.App.4th 261 .....................................................................................................
13
Summers v. A.L. Gilbert Co.
(1999) 69 Ca1.App.4th 1155 ...............................................................................................
14, 15
Statutes
\DOOQQUI-bm
Business and Professions Code
Section 2056 ...................................................................................................................
6, 13, 14
Evidence Code
Section 312 ...............................................................................................................................
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Evidence Code
10 Section 350 .........................................................................................................................
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Section 352 ......
10, 19
2000
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MANSUKHANI,
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Evidence Code
Suite 13 Section 608 ...............................................................................................................................
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Street,
14 Evidence Code
Section 720 .............................................................................................................
16, 17, 18, 19
Francisco,
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16 Section 801 .........................................................................................................................
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17 Evidence Code
Section 805 ...............................................................................................................................
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DEFENDANTS’ JOINT MOTION IN LIMINE NO. 5
TO LIMIT THE TESTIMONY OF PLAINTIFF’S EXPERT DR. LORNE s. LABEL
I. INTRODUCTION
Plaintiff Diana Blum disclosed Dr. Lorne S. Label as an expert on the reasonableness of
Dr. Blum’s protests and Defendants’ purported business policies, procedures, practices. (See
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Plaintiff‘s Amended Designation of Experts, pg. 3:7-13, Ex. 27 to Declaration of Marcie I.
Fitzsimmons in Support of Defendants’ Motions in Limine [“Fitzsimmons Decl.”].) Dr. Label’s
overly expansive opinions are not the proper subject for expert opinion and he is not qualified to
render them. Dr. Label’s opinions on these topics will cause undue prejudice, mislead the jury,
confuse the issues, and waste time. Specifically, Dr. Label provided ten (10) opinions during his
\000q
deposition that should be excluded at trial because they are outside the scope of his expertise and
10 not the proper subiect for expert testimony:
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(I) Defendants had a policy and practice of “putting productivity over patient care” by “telling
12 [Plaintiff] that she had to see more patients and shorter visits and less frequent visits, that
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she was told to increase her RVUs” to make “more money for the group”;
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Sulte 13
CA 2 Plaintiff“ Protested, basicall y , that she couldn't do her J'ob effectivel y . That she wasn't being
Street,
14 given enough time. That it was harming patient care. And that the organization was putting
Francisco,
RVUs over taking care of patients or, let's say, monetary productivity over patient care”;
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(3) Defendants had a policy and practice to “see as many people as you can as fast as you can,
16
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17 you can, because new patients bring in more productivity” that was “very harmful” to
patients;
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18
(4) Defendants had a policy and practice of “leakage” that prohibited the referral “of patients
19 for services not provided by Sutter/PAMF or referring patients to physicians who are not
part of the Sutter/PAMF network”;
2o
(5) Defendants had a policy and practice known as “lean” which adversely impacts a doctor’s
21
ability to provide medically appropriate health care;
22
(6) Defendants required Plaintiff to prescribe generic medication and that Plaintiff “[w]asn't
23 able to even give brand-name medications. And she was forced to use generics, as opposed
to brand name”;
24
(7) Defendants prohibited Plaintiff from providing medication samples;
25
(8) Defendants were “upcoding” for services provided and “ripping [patients] off” on their
26
medical bills;
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(9) Defendants “indirectly penalized Plaintiff,” “pressured her” which is a form of
28 “harassment” and she “had to resign”;
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DEFENDANTS’ JOINT MOTION IN LIMNE N0. 5
TO LIMIT THE TESTIMONY OF PLAINTIFF’S EXPERT DR. LORNE S.LABEL
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(10) That Plaintiff protested and complained about the above policies and practices.
Accordingly, Defendants PALO ALTO FOUNDATION MEDICAL GROUP, INC. (“the
Physician Group”), SUTTER HEALTH and PALO ALTO MEDICAL FOUNDATION
(“PAMF”) (collectively referred to hereinafier as “Defendants”) jointly move for an order
limiting Dr. Lome’s testimony solely to matters for which he is qualified and which are the
proper subject for expert testimony, and excluding any testimony related to the ten (10) opinions.
II. RELEVANT FACTS
\OOOQON
A. Plaintiff’s Expert Disclosure
Plaintiff disclosed Dr. Lorne as an expert who will proffer the following testimony:
10 [T]he reasonableness and/or medical appropriateness of Dr. Blum’s protests and
complaints about various of defendants’
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business policies, procedures, practices
11 and decisions, as well as whether various of defendants’ business policies,
procedures, practices and decisions would and/or could have impaired a
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12 physician’s ability to provide medically appropriate heal care to patients.
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Suite 13 (See Plaintiff 5 Amended Designation of Experts, pg. 3:7-13, Ex. 27 to Fitzsimmons Decl.)
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14 B. Dr. Lorne’s Qualifications
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15 Dr. Label admittedly is not an expert in group medical practices or the foundation
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16 practice model. (See Transcript of the Deposition of Dr. Lorne S. Label [“Label Depo.”] pp.
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17 66:5-14, 208:22-24, Ex. 30 to Fitzsimmons Decl.) Nor has he testified as an expert in a case
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18 involving Business and Professions Code section 2056 and as of the date of his deposition, has
19 never even read the statute. (Id. at pp. 70:10-12, 95:9-11.) He is a Clinical Professor of
20 Neurology at the University of California, Los Angeles (“UCLA”). (See CV, Ex. 31 to}
21 Fitzsimmons Decl.; See Label Depo. pp. 24:12-18, Ex. 30 to Fitzsimmons Decl.) Dr. Label
22 currently works with only one colleague at UCLA. (Label Depo. pp. 24:20—24, 2625-8, Ex. 30 to
23 Fitzsimmons Decl.) Prior to working for UCLA in or about 2014, Dr. Label had a private
24 medical practice. (Id. at. 24:25-25 :4.) Despite the fact that he is now an employee of UCLA, he
25 has continued to practice medicine as he has always done for the last 35 years and “little” has
26 changed. (Id. at 63 :8-9, 205:15-18.) In fact, Dr. Label continues to describe his practice at
27 UCLA as a “private practice.” (See CV, Ex. 31 to Fitzsimmons Decl.) He testified that there are
28 “probably. . .policies and practices” related to providing patient care at UCLA, but that “no one
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DEFENDANTS’ JOINT MOTION IN LIMNE NO. 5
T0 LIMIT TIE TESTIMONY OF PLAINTIFF’S EXPERT DR. LORNE S. LABEL
has ever shown, told [him], or told [him] anything on what to do or how to run [his] practice or
how to take care of [his] patients.” (Label Depo. pp. 205:3-9, Ex. 30 to Fitzsimmons Decl.) He
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testified that he has been working under the Relative Value Units (“RVUs”) payment system for
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the last three years at UCLA. (Id. at 8822-6.) Nor does he know if UCLA has a Managed Care
Department. (Id. at 21321-8.)
C. Dr. Label’s Testimony Regarding Defendants’ Purported Policies and Practices
\OOOQQU:
Prior to his deposition, Dr. Label was n_ot “given any of the written policies of the way
[Defendants’] practice runs.” (Id. at 185:1-2.) He admitted that he would “have to read the
policies to know the policies.” (Id. at 198:11-12.) His opinions regarding Defendants’ purported
1o policies and practices are based on conversations he had with Plaintiff’s counsel, his review of
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11 two of the five volumes of Plaintiff‘s deposition transcripts, Plaintiff‘s interrogatory responses,
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12 and a limited number of documents provided to him by Plaintiff’s counsel. (Id. at 45 :25-4623;
94111
Suite 13 80:16-81z7, 9624—9727, 1069-16.) Dr. Label did not read the deposition transcripts for any of
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14 the other neurologists working in the Neurology Department at PAMF to corroborate Plaintiff‘s
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15 testimony or to confirm the existence of any of Defendants’ purported policies and practices.
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16 (Id. at 91:10-13.)
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17 1. Productivity
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18 Dr. Label has never testified as an expert about physician productivity. (Id. at 57: 6-10.)
19 He admittedly is not an expert in RVUs. (Id. at 88:22-23.) Dr. Label nevertheless testified that
20 Defendants placed “productivity ahead of patient care”:
21 [B]y telling Dr. Blum that she had to see more patients and shorter visits and less
frequent visits, that she was told to increase her RVUs. . . Pushing productivity,
22 pushing RVUs, pushing RVUs for making more money for the group[. . .] I'm not
aware of any organization or group putting productivity over patient care as in
23 this case.
24 (Id. at 81 :2-14, 81:18-19 8224-8.) He admitted that he did not know how the productivity levels
25 of physician in Defendant the Physician Group or Plaintiff compared to national averages. (Id. at
26 90:15-20.) Dr. Label finther testified that Plaintiff:
27 [P]rotested, basically, that she couldn't do her job effectively. That she wasn't
being given enough time. That it was banning patient care. And that the
28 organization was putting RVUs over taking care of patients or, let's say, monetary
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DEFENDANTS’ JOINT MOTION IN LIMNE N0. 5
TO LHVHT THE TESTIMONY OF PLAINTIFF ’S EXPERT DR. LORNE S. LABEL
productivity over patient care.
(Id. at 8425—8525.) Dr. Label did not see any of Defendants’ purported policies related to
productivity and he did not read the depositions of other physicians working with Defendants in
I
preparation for rendering his opinions. (Id. at 81 :2-7.) Instead, he relied entirely on Plaintiffs
deposition testimony and her interrogatory responses. (Id. at 80:16-81 :7.)
2. Throughput (i.e., Patient Visits)
Dr. Label has never testified as an expert regarding new-patient visits, the length of time
\OOOQON
provided for new-patient visits, or any issues involving scheduling of patients. (Id. at 56:3-
57:25.) Yet, he testified that Defendants required Plaintiff to:
10 See as many people as you can as fast as you can, and see as many new patients
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as you can, and don't see as many follow-ups as frequently as you can, because
11 new patients bring in more productivity.
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12 (Id. at pp. 106:1-8.) He also testified that this was “very harmfial to patients.” (Id. at 108:11-22.)
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Suite 13 However, Dr. Label did not actually see an actual policy of Defendants’ regarding new patient
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14 visits or the frequency of patient visits. (Id.at 105 218-23.) He admitted that he did not see any
evidence that Defendants required Plaintiff to reduce her new patient visits to 30 minutes, the
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16 time between her patients, or the frequency of patient visits; but that “that’s what he read in
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17 [Plaintiff’s] deposition” and what he learned from Plaintiff’s attorney. (Id. at 98:15-19, 99:2-15,
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18 106: l -1 6.)
19 3. Leakage
20 Dr. Label testified that Defendants had policies and procedures to reduce or prevent
21 “leakage” which he testified “is the referring of patients for services not provided by
22 Sutter/PAMF or referring patients to physicians who are not part of the Sutter/PAMF network.”
23 (Id. at 110:13-18.) He opined that under Defendants’ policy or practice; Plaintiff was not “able
24 to refer certain of her patients to providers that were outside of the system.” (Id. at 111220-22.)
25 Dr. Label admitted that prior to being retained in this case he had never even heard the term
26 “leakage” as it is used in this case. (Id. at 110:11-24.) He also admitted that he never saw any of
27 Defendants’ purported written policies regarding “leakage” and he did not know if Defendants’
28 actually had such policies. (Id. at 113:3-10, 148:12-17.) He testified that his opinions regarding
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DEFENDANTS’ JOINT MOTION IN LIA/[INE NO. 5
TO LHVIIT TESTIMONY 0F PLAINTIFF’S EXPERT DR. LORNE
TI-H'E S. LABEL
“leakage” are based solely on “[Plaintiff’s] deposition testimony and interrogatory responses and
what [he was] told by [Plaintiffs Counsel].” (Id. at 11224-9.) Dr. Label has never testified as an
expert on referral practices or policies. (Id. at 56225-5724.)
4. Lean
Dr. Label testified that Defendants had a policy and practice known as “lean” which ,
DONONM-FWN
consist of processes to increase efficiency and speed. (Id. at 151:17—152:1 1, 215:4-6.) He
admitted that he did not see any written policies about “lean” and instead relied on his
interpretation of a Pov'ver Point presentation provided by Plaintiff‘s counsel. (Id. at 1535-11.)
RD Prior to being retained in this case, Dr. Label had never heard of the term “lean” being
10 used in any industry, including the medical industry. (Id. at 150:10-16.) In fact, he has never
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11 testified about “lean” before in any capacity. (Id. at 57:12-16, 15422-4.) He does not know if
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12 any other medical practices use the “lean” philosophy. (Id. at 153114-17.) Nor does he employ
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Suite 13 any “lean” type practices in his medical practice at UCLA. (Id. at 1549-15.) Indeed, he has
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14 never worked anywhere that employed any “lean” methodologies nor has he read or seen any
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15 literature about how “lean” improves patient outcomes. (Id. at 214:9-14.) He is not aware of
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16 whether there are advocates within the medical community for the “lean” model in health care.
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17 (Id. at 15422-4.)
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18 5. Medication
19 Dr. Label has never testified as an expert about generic medication policies or practices.
20 (Id. at 56:22-24.) Dr. Label testified that under Defendants’ purported policies and practices,
21 Plaintiff “[w]asn’t able to even give brand—name medications. And she was forced to use
22 generics, as opposed to brand name” because “generics are less expensive and brand names take
23 money out of the system.” (Id. at 171:8-13, I71:20-172:1.) He also testified that Defendants
24 prohibited Plaintiff from providing sample medications. (Id. at 18424—9.) Dr. Label later
25 admitted in his deposition that he did not see any written policy that “required” physicians to
26 provide generic medications. (Id. at 174124—175111.) He also admitted that he did not see any
27 written policies related to medication samples. (Id. at 184:23-25.)
28 M
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DEFENDANTS’ JOINT MOTION IN LIMINE NO. 5
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. 6. Coding and Billing
Dr. Label has never testified in a civil matter as an expert regarding medical billing and
coding. (Id. at 58:3-20.) Dr. Label testified that Defendants were allegedly “up coding” for
services provided to patients and “ripping [patients] off” on their medical bills. (Id. at 90:21-
91:4.) However, he admitted that he did not see any actual evidence of “up coding.” (Id. at
915-17, 193213-16.) He also acknowledged that Defendants’ coding and billing policies “don’t
\OOOVOfiUI-b
directly affect [patient] care.” (Id. at 191216-22.) He further admitted that he had never read any
of Defendants’ coding policies and that he could not provide an opinion, one way or the other, as
to whether Defendants’ alleged coding policies or practices were inappropriate. (Id. at 91 :5-
10 92:8, 92225-9322, 93:14—17.)
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11 D. Dr. Label’s Testimony That Defendants Retaliated Against Plaintiff
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12 Dr. Label testified that Plaintiff “protested” Defendants’ policies and practices related to
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Suite 13 “putting productivity over patient care,” “leakage,” medication policies and practices, and
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14 “billing and coding.” (Id. at 52:14-22, 53:11-22, 8322-8, 8427-12, 111216-22, 92:5-8.) He
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15 testified that in response, Defendants “indirectly penalized Plaintiff because they were still
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16 forcing her to practice in a manner that was not good for patient care or safety.” (Id. at 95:18-
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17 9629.) He further testified:
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18 [An] indirect way of punishment by not allowing someone to do what they are
trained to do....But by modulating her practice in a way that was not the way she
19 wanted to practice, in my mind, that would be punishment.
20 (Id. at 96:15, 96:21-23.) He opined that Dr. Blum “had to resign because of the situation that
21 was going on.” (Id. at 105:7-16.) However, Dr. Label repeatedly testified that he did not know
22 if Plaintiff was actually reprimanded for raising concerns about any of Defendants alleged
23 policies and practices. (Id. at 115:3-10, 115:20-24, 18622-6, 191123-19211, 192:3-6
Preview
MARCIE ISOM FITZSIMMONS (SBN: 226906) HIEU T. WILLIAMS (SBN: 280585) MN GORDON REES 275 Battery Street, SCULLY MANSUKHANI, Suite 2000 LLP imam-swam a» San Francisco, CA 94111 . ‘ RK OF THE couRT , Telephone: (415) 986-5900 _ ERIOR COURT OF'CA Facsimile: (415) 986-8054 00‘ NW OF SANTA CLARA UTY MIsom@grsm.com BY__~_..._..___...__BE‘ HWilliams@grsm.com p) .CBX‘V’fl Attorneys for Defendant €06, PALO ALTO FOUNDATION MEDICAL GROUP, INC. \DOOQQUI-F- LINDBERGH PORTER (SBN: 100091) LITTLER MENDELSON, RC. 333 Bush Street, 34th Floor San Francisco, CA 94104 Telephone: (415) 433-1940 10 Facsimile: (415) 399-8490 LLP LPorter@litt1er.com 11 MAIKO NAKARAI-KANIVAS (SBN: 271710) 2000 MANSUKHANI, 12 LITTLER MENDERLSON, RC. 94111 1255 Treat Blvd., Suite 600 Suite 13 Walnut Creek, CA 94597 CA Telephone: (925) 932—2468 Street, 14 Facsimile: (925) 946-9809 MNakaraikanivas@littler.com Francisco, SCULLY 15 Battery Attorneys for Defendants 16 SUTTER HEALTH and PALO ALTO MEDICAL FOUNDATION REES San 275 17 SUPERIOR COURT OF CALIFORNIA GORDON 18 COUNTY OF SANTA CLARA 19 20 DIANA P. BLUM, M.D., ) CASE NO. 115CV277582 21 Plaintiff, ; DEFENDANTS’ JOINT ) MOTION IN LIMINE 22 vs. ) T0 LIMIT THE TESTIMONY OF PLAINTIFF’S EXPERT ) DR. LORNE S. LABEL 23 SUTTER HEALTH, a California corporation; PALO ALTO FOUNDATION MEDICAL ) 24 GROUP, NC, a California corporation; ) No. 5 of 16 PALO ALTO MEDICAL FOUNDATION, a ) 25 California corporation; and DOES 1 through ) Date: January 8, 2018 20, Time: 8:45 am. D CPL. _ 16 26 ; Defendants. ) 27 ) Complaint Filed: March 4, 2015 ) FAC Filed: August 7, 2015 28 DEFENDANTS’ JOINT MOTION IN LIMINE NO. 5 TO LIMIT THE TESTIMONY OF PLAINTIFF'S EXPERT DR. LORNE S. LABEL TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................................... 5 II. RELEVANT FACTS ........................................................................................................... 6 \OOOVONUI-PUJIQv—t A. Plaintiff’s Expert Disclosure .................................................................................... 6 B. Dr. Lorne’s Qualifications ....................................................................................... 6 C. Dr. Label’s Testimony Regarding Defendants’ Purported Policies and Practices ................................................................................................................... 7 1. Productivity .................................................................................................. 7 2. Throughput (i.e., Patient Visits) ................................................................... 8 LLP 3. Leakage ........................................................................................................ 8 4. Lean .............................................................................................................. 9 2000 MANSUKHANI, 94111 5. Medication ................................................................................................... 9 Suite CA 6. Coding and Billing ....... 10 Street, Francisco, D. Dr. Label’s Testimony That Defendants Retaliated Against Plaintiff ................... 10 SCULLY Battery IH. LEGAL ARGUMENT ....................................................................................................... 10 REES San 275 A. Dr. Label’s Testimony About Defendants” Purposed Policies and Practices is Inadmissible Hearsay and Should Be Excluded ................................................. 10 NNNNNNNNNHn—‘p—p—Ap—np—np—np—nu—nr—n GORDON 1. Dr. Label Never Reviewed or Confirmed The Existence Defendants’ ll Policies and Practices ........................................................ 2. “\IONUI-FUJNt—‘OWOOQONUI-hWNHO Dr. Label’s Testimony that Plaintiff “Complained and Protested” 15 Based on the Assumption that, Plaintiff is Telling the Truth .................. 12 Dr. Label’s Testimony Is Not Relevant and Should Be Excluded ........................ 13 Dr. Label Cannot Testify As To Legal Conclusions Or Subjects That Are Of Common Knowledge ........................................................................................ 14 D. Dr. Label Is Not Qualified As an Expert in Medical Group Policies and Practices and His Testimony Is Beyond the Scope of His Expertise and Should Be Excluded ............................................................................................... 16 I. Dr. Label Has No Special Knowledge, Skill, Experience, Training, or Education Regarding “Physician Productivity” or RVUs ..................... 16 2. Dr. Label Has No Special Knowledge, Skill, Experience, Training, or Education Regarding “Leakage” ........................................................... 17 -1 _ DEFENDANTS’ JOINT MOTION IN LIMINE NO. 5 TO LIMIT THE TESTIMONY OF PLAINTIFF’S EXPERT DR. LORNE S.LABEL 3. Dr. Label Has No Special Knowledge, Skill, Experience, Training, or Education Regarding “Lean” .......................................................... ....... 1 8 _ 4. Dr. Label Has No Special Knowledge, Skill, Experience, Training, #WN or Education Regarding Billing and Coding .............................................. 18 5. Dr. Label Is Not Qualified as an Expert in Constructive Termination, Retaliation or Human Resources .......................................... 19 E. The Testimony Will Cause Unfair Prejudice, Confuse the Issues, and Waste Time ............................................................................................................ 19 IV. CONCLUSION .................................................................................................................. 20 \DOOVOSLI- 1o LLP 11 2000 12 MANSUKHANI, 94111 Sulte 13 CA Street, 14 Francisco, SCULLY 15 Battery 16 REES San 275 17 GORDON 18 19 20 21‘ 22 23 24 25 26 27 28 -2- DEFENDANTS’ JOINT MOTION IN LIMINE NO. 5 TO LIMIT THE TESTIMONY 0F PLAINTIFF’S EXPERT DR. LORNE S.LABEL x ./ TABLE OF AUTHORITIES Page(s) Cases Bushling v. Fremont Medical Center (2004) 117 Ca1.App.4th 493 ............................................................................................. : ....... 11 \lONUI-IRUJN Dee v. PCS Property Mgmt., Inc. (2009) 174 Ca1.App.4th 390 ..................................................................................................... 11 Downer v. Bramet et al. (1984) 152 Cal.App.3d 837 ........................ 14 00 Ellenberger v. Karr (1982) 127 Ca].App.3d 423 ...................................................................................................... 19 Flowers v. Torrance Memorial Hospital Medical Center 10 (1994) 8 Cal.4th 992 ................................................................................................................. 13 LLP 11 Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Ca1.App.4th 1108 ................................................................................................... 11 2000 MANSUKHAN], 12 94111 Khajavi v. Feather River Anesthesia Med. Group Suite 13 (2000) 84 Ca1.App.4th 32 ................................................................................................... 13, 14 CA Street, 14‘ Kotla v. Regents of the Univ. of Calif. Francisco, (2004) 115 Ca1.App.4th 283 ............................................................................................... 14, 15 SCULLY 15 Battery People v. Gardeley 16 (1996) 14 Cal.4th 605 ............................................................................................................... 11 REES San 275 17 People v. Hogan (1982)31 16,17 Ca1.3d 817 .......................................................................................................... GORDON 18 People v. Louie 19 (1984) 158 Ca1.App.3d Supp. 28 .............................................................................................. 13 20 People v. McDowell (2012), 54 Cal.4th 395 .............................................................................................................. 16 21 People v. Monteil 22 (1993) 5 Cal.4th 877 ................................................................................................... 11 23 People v. Prince (2007) 40 Cal.4th 1179 ............................................................................................................. 14 24 People v. Richardson 25 (2008) 43 Cal.4th 959 ............................................................................................................... 11 26 People v. Torres (1995) 33 Ca1.App.4th 37 ......................................................................................................... 15 27 People v. Watson 28 (2008) 43 Cal.4th 652 ............................................................................................................... 16 -3- DEFENDANTS’ JOINT MOTION IN LIMINE NO. 5 To LIMIT THE TESTIMONY OF PLAINTIFF’S EXPERT DR. LORNE s. LABEL Sanchez v. Brooke (2012), 204 Ca1.App.4th 126 .................................................................................................... 16 N Sarka v. The Regents of the Univ. of Calif (2006) 146 Cal.App.4th 261 ..................................................................................................... 13 Summers v. A.L. Gilbert Co. (1999) 69 Ca1.App.4th 1155 ............................................................................................... 14, 15 Statutes \DOOQQUI-bm Business and Professions Code Section 2056 ................................................................................................................... 6, 13, 14 Evidence Code Section 312 ............................................................................................................................... 14 Evidence Code 10 Section 350 ......................................................................................................................... 13, 19 LLP 11 Evidence Code Section 352 ...... 10, 19 2000 12 MANSUKHANI, 94111 Evidence Code Suite 13 Section 608 ............................................................................................................................... 14 CA Street, 14 Evidence Code Section 720 ............................................................................................................. 16, 17, 18, 19 Francisco, SCULLY 15 Battery Evidence Code 16 Section 801 ......................................................................................................................... 14, 15 REES San 275 17 Evidence Code Section 805 ............................................................................................................................... 14 GORDON 18 1 19 2o 21 22 23 24 25 26 27 28 -4- DEFENDANTS’ JOINT MOTION IN LIMINE NO. 5 TO LIMIT THE TESTIMONY OF PLAINTIFF’S EXPERT DR. LORNE s. LABEL I. INTRODUCTION Plaintiff Diana Blum disclosed Dr. Lorne S. Label as an expert on the reasonableness of Dr. Blum’s protests and Defendants’ purported business policies, procedures, practices. (See Ui-bblN Plaintiff‘s Amended Designation of Experts, pg. 3:7-13, Ex. 27 to Declaration of Marcie I. Fitzsimmons in Support of Defendants’ Motions in Limine [“Fitzsimmons Decl.”].) Dr. Label’s overly expansive opinions are not the proper subject for expert opinion and he is not qualified to render them. Dr. Label’s opinions on these topics will cause undue prejudice, mislead the jury, confuse the issues, and waste time. Specifically, Dr. Label provided ten (10) opinions during his \000q deposition that should be excluded at trial because they are outside the scope of his expertise and 10 not the proper subiect for expert testimony: LLP 11 (I) Defendants had a policy and practice of “putting productivity over patient care” by “telling 12 [Plaintiff] that she had to see more patients and shorter visits and less frequent visits, that 2000 MANSUKHANI, she was told to increase her RVUs” to make “more money for the group”; 94111 Sulte 13 CA 2 Plaintiff“ Protested, basicall y , that she couldn't do her J'ob effectivel y . That she wasn't being Street, 14 given enough time. That it was harming patient care. And that the organization was putting Francisco, RVUs over taking care of patients or, let's say, monetary productivity over patient care”; SCULLY 15 Battery (3) Defendants had a policy and practice to “see as many people as you can as fast as you can, 16 REES San and see as many new patients as you can, and don't see as many follow-ups as frequently as 275 17 you can, because new patients bring in more productivity” that was “very harmful” to patients; GORDON 18 (4) Defendants had a policy and practice of “leakage” that prohibited the referral “of patients 19 for services not provided by Sutter/PAMF or referring patients to physicians who are not part of the Sutter/PAMF network”; 2o (5) Defendants had a policy and practice known as “lean” which adversely impacts a doctor’s 21 ability to provide medically appropriate health care; 22 (6) Defendants required Plaintiff to prescribe generic medication and that Plaintiff “[w]asn't 23 able to even give brand-name medications. And she was forced to use generics, as opposed to brand name”; 24 (7) Defendants prohibited Plaintiff from providing medication samples; 25 (8) Defendants were “upcoding” for services provided and “ripping [patients] off” on their 26 medical bills; 27 (9) Defendants “indirectly penalized Plaintiff,” “pressured her” which is a form of 28 “harassment” and she “had to resign”; -5- DEFENDANTS’ JOINT MOTION IN LIMNE N0. 5 TO LIMIT THE TESTIMONY OF PLAINTIFF’S EXPERT DR. LORNE S.LABEL \L x \« / (10) That Plaintiff protested and complained about the above policies and practices. Accordingly, Defendants PALO ALTO FOUNDATION MEDICAL GROUP, INC. (“the Physician Group”), SUTTER HEALTH and PALO ALTO MEDICAL FOUNDATION (“PAMF”) (collectively referred to hereinafier as “Defendants”) jointly move for an order limiting Dr. Lome’s testimony solely to matters for which he is qualified and which are the proper subject for expert testimony, and excluding any testimony related to the ten (10) opinions. II. RELEVANT FACTS \OOOQON A. Plaintiff’s Expert Disclosure Plaintiff disclosed Dr. Lorne as an expert who will proffer the following testimony: 10 [T]he reasonableness and/or medical appropriateness of Dr. Blum’s protests and complaints about various of defendants’ LLP business policies, procedures, practices 11 and decisions, as well as whether various of defendants’ business policies, procedures, practices and decisions would and/or could have impaired a 2000 MANSUKHANI, 12 physician’s ability to provide medically appropriate heal care to patients. 94111 Suite 13 (See Plaintiff 5 Amended Designation of Experts, pg. 3:7-13, Ex. 27 to Fitzsimmons Decl.) CA Street, 14 B. Dr. Lorne’s Qualifications SCULLY Francisco, 15 Dr. Label admittedly is not an expert in group medical practices or the foundation Battery 16 practice model. (See Transcript of the Deposition of Dr. Lorne S. Label [“Label Depo.”] pp. REES San 275 17 66:5-14, 208:22-24, Ex. 30 to Fitzsimmons Decl.) Nor has he testified as an expert in a case GORDON 18 involving Business and Professions Code section 2056 and as of the date of his deposition, has 19 never even read the statute. (Id. at pp. 70:10-12, 95:9-11.) He is a Clinical Professor of 20 Neurology at the University of California, Los Angeles (“UCLA”). (See CV, Ex. 31 to} 21 Fitzsimmons Decl.; See Label Depo. pp. 24:12-18, Ex. 30 to Fitzsimmons Decl.) Dr. Label 22 currently works with only one colleague at UCLA. (Label Depo. pp. 24:20—24, 2625-8, Ex. 30 to 23 Fitzsimmons Decl.) Prior to working for UCLA in or about 2014, Dr. Label had a private 24 medical practice. (Id. at. 24:25-25 :4.) Despite the fact that he is now an employee of UCLA, he 25 has continued to practice medicine as he has always done for the last 35 years and “little” has 26 changed. (Id. at 63 :8-9, 205:15-18.) In fact, Dr. Label continues to describe his practice at 27 UCLA as a “private practice.” (See CV, Ex. 31 to Fitzsimmons Decl.) He testified that there are 28 “probably. . .policies and practices” related to providing patient care at UCLA, but that “no one —6- DEFENDANTS’ JOINT MOTION IN LIMNE NO. 5 T0 LIMIT TIE TESTIMONY OF PLAINTIFF’S EXPERT DR. LORNE S. LABEL has ever shown, told [him], or told [him] anything on what to do or how to run [his] practice or how to take care of [his] patients.” (Label Depo. pp. 205:3-9, Ex. 30 to Fitzsimmons Decl.) He W'N testified that he has been working under the Relative Value Units (“RVUs”) payment system for 4:- the last three years at UCLA. (Id. at 8822-6.) Nor does he know if UCLA has a Managed Care Department. (Id. at 21321-8.) C. Dr. Label’s Testimony Regarding Defendants’ Purported Policies and Practices \OOOQQU: Prior to his deposition, Dr. Label was n_ot “given any of the written policies of the way [Defendants’] practice runs.” (Id. at 185:1-2.) He admitted that he would “have to read the policies to know the policies.” (Id. at 198:11-12.) His opinions regarding Defendants’ purported 1o policies and practices are based on conversations he had with Plaintiff’s counsel, his review of LLP 11 two of the five volumes of Plaintiff‘s deposition transcripts, Plaintiff‘s interrogatory responses, 2000 MANSUKHANI, 12 and a limited number of documents provided to him by Plaintiff’s counsel. (Id. at 45 :25-4623; 94111 Suite 13 80:16-81z7, 9624—9727, 1069-16.) Dr. Label did not read the deposition transcripts for any of CA Street, 14 the other neurologists working in the Neurology Department at PAMF to corroborate Plaintiff‘s SCULLY Francisco, 15 testimony or to confirm the existence of any of Defendants’ purported policies and practices. Battery 16 (Id. at 91:10-13.) REES San 275 17 1. Productivity GORDON 18 Dr. Label has never testified as an expert about physician productivity. (Id. at 57: 6-10.) 19 He admittedly is not an expert in RVUs. (Id. at 88:22-23.) Dr. Label nevertheless testified that 20 Defendants placed “productivity ahead of patient care”: 21 [B]y telling Dr. Blum that she had to see more patients and shorter visits and less frequent visits, that she was told to increase her RVUs. . . Pushing productivity, 22 pushing RVUs, pushing RVUs for making more money for the group[. . .] I'm not aware of any organization or group putting productivity over patient care as in 23 this case. 24 (Id. at 81 :2-14, 81:18-19 8224-8.) He admitted that he did not know how the productivity levels 25 of physician in Defendant the Physician Group or Plaintiff compared to national averages. (Id. at 26 90:15-20.) Dr. Label finther testified that Plaintiff: 27 [P]rotested, basically, that she couldn't do her job effectively. That she wasn't being given enough time. That it was banning patient care. And that the 28 organization was putting RVUs over taking care of patients or, let's say, monetary -7- DEFENDANTS’ JOINT MOTION IN LIMNE N0. 5 TO LHVHT THE TESTIMONY OF PLAINTIFF ’S EXPERT DR. LORNE S. LABEL productivity over patient care. (Id. at 8425—8525.) Dr. Label did not see any of Defendants’ purported policies related to productivity and he did not read the depositions of other physicians working with Defendants in I preparation for rendering his opinions. (Id. at 81 :2-7.) Instead, he relied entirely on Plaintiffs deposition testimony and her interrogatory responses. (Id. at 80:16-81 :7.) 2. Throughput (i.e., Patient Visits) Dr. Label has never testified as an expert regarding new-patient visits, the length of time \OOOQON provided for new-patient visits, or any issues involving scheduling of patients. (Id. at 56:3- 57:25.) Yet, he testified that Defendants required Plaintiff to: 10 See as many people as you can as fast as you can, and see as many new patients LLP as you can, and don't see as many follow-ups as frequently as you can, because 11 new patients bring in more productivity. 2000 MANSUKHANI, 12 (Id. at pp. 106:1-8.) He also testified that this was “very harmfial to patients.” (Id. at 108:11-22.) 94111 Suite 13 However, Dr. Label did not actually see an actual policy of Defendants’ regarding new patient CA Street, 14 visits or the frequency of patient visits. (Id.at 105 218-23.) He admitted that he did not see any evidence that Defendants required Plaintiff to reduce her new patient visits to 30 minutes, the Francisco, SCULLY 15 Battery San 16 time between her patients, or the frequency of patient visits; but that “that’s what he read in REES 275 17 [Plaintiff’s] deposition” and what he learned from Plaintiff’s attorney. (Id. at 98:15-19, 99:2-15, GORDON 18 106: l -1 6.) 19 3. Leakage 20 Dr. Label testified that Defendants had policies and procedures to reduce or prevent 21 “leakage” which he testified “is the referring of patients for services not provided by 22 Sutter/PAMF or referring patients to physicians who are not part of the Sutter/PAMF network.” 23 (Id. at 110:13-18.) He opined that under Defendants’ policy or practice; Plaintiff was not “able 24 to refer certain of her patients to providers that were outside of the system.” (Id. at 111220-22.) 25 Dr. Label admitted that prior to being retained in this case he had never even heard the term 26 “leakage” as it is used in this case. (Id. at 110:11-24.) He also admitted that he never saw any of 27 Defendants’ purported written policies regarding “leakage” and he did not know if Defendants’ 28 actually had such policies. (Id. at 113:3-10, 148:12-17.) He testified that his opinions regarding -8- DEFENDANTS’ JOINT MOTION IN LIA/[INE NO. 5 TO LHVIIT TESTIMONY 0F PLAINTIFF’S EXPERT DR. LORNE TI-H'E S. LABEL “leakage” are based solely on “[Plaintiff’s] deposition testimony and interrogatory responses and what [he was] told by [Plaintiffs Counsel].” (Id. at 11224-9.) Dr. Label has never testified as an expert on referral practices or policies. (Id. at 56225-5724.) 4. Lean Dr. Label testified that Defendants had a policy and practice known as “lean” which , DONONM-FWN consist of processes to increase efficiency and speed. (Id. at 151:17—152:1 1, 215:4-6.) He admitted that he did not see any written policies about “lean” and instead relied on his interpretation of a Pov'ver Point presentation provided by Plaintiff‘s counsel. (Id. at 1535-11.) RD Prior to being retained in this case, Dr. Label had never heard of the term “lean” being 10 used in any industry, including the medical industry. (Id. at 150:10-16.) In fact, he has never LLP 11 testified about “lean” before in any capacity. (Id. at 57:12-16, 15422-4.) He does not know if 2000 MANSUKHANI, 12 any other medical practices use the “lean” philosophy. (Id. at 153114-17.) Nor does he employ 94111 Suite 13 any “lean” type practices in his medical practice at UCLA. (Id. at 1549-15.) Indeed, he has CA Street, 14 never worked anywhere that employed any “lean” methodologies nor has he read or seen any SCULLY Francisco, 15 literature about how “lean” improves patient outcomes. (Id. at 214:9-14.) He is not aware of Battery 16 whether there are advocates within the medical community for the “lean” model in health care. REES San 275 17 (Id. at 15422-4.) GORDON 18 5. Medication 19 Dr. Label has never testified as an expert about generic medication policies or practices. 20 (Id. at 56:22-24.) Dr. Label testified that under Defendants’ purported policies and practices, 21 Plaintiff “[w]asn’t able to even give brand—name medications. And she was forced to use 22 generics, as opposed to brand name” because “generics are less expensive and brand names take 23 money out of the system.” (Id. at 171:8-13, I71:20-172:1.) He also testified that Defendants 24 prohibited Plaintiff from providing sample medications. (Id. at 18424—9.) Dr. Label later 25 admitted in his deposition that he did not see any written policy that “required” physicians to 26 provide generic medications. (Id. at 174124—175111.) He also admitted that he did not see any 27 written policies related to medication samples. (Id. at 184:23-25.) 28 M -9- DEFENDANTS’ JOINT MOTION IN LIMINE NO. 5 TO LIMIT THE TESTIMONY OF PLAINTIFF’S EXPERT DR. LORNE s. LABEL . 6. Coding and Billing Dr. Label has never testified in a civil matter as an expert regarding medical billing and coding. (Id. at 58:3-20.) Dr. Label testified that Defendants were allegedly “up coding” for services provided to patients and “ripping [patients] off” on their medical bills. (Id. at 90:21- 91:4.) However, he admitted that he did not see any actual evidence of “up coding.” (Id. at 915-17, 193213-16.) He also acknowledged that Defendants’ coding and billing policies “don’t \OOOVOfiUI-b directly affect [patient] care.” (Id. at 191216-22.) He further admitted that he had never read any of Defendants’ coding policies and that he could not provide an opinion, one way or the other, as to whether Defendants’ alleged coding policies or practices were inappropriate. (Id. at 91 :5- 10 92:8, 92225-9322, 93:14—17.) LLP 11 D. Dr. Label’s Testimony That Defendants Retaliated Against Plaintiff 2000 MANSUKHANI, 12 Dr. Label testified that Plaintiff “protested” Defendants’ policies and practices related to 94111 Suite 13 “putting productivity over patient care,” “leakage,” medication policies and practices, and CA Street, 14 “billing and coding.” (Id. at 52:14-22, 53:11-22, 8322-8, 8427-12, 111216-22, 92:5-8.) He SCULLY Francisco, 15 testified that in response, Defendants “indirectly penalized Plaintiff because they were still Battery 16 forcing her to practice in a manner that was not good for patient care or safety.” (Id. at 95:18- REES San 275 17 9629.) He further testified: GORDON 18 [An] indirect way of punishment by not allowing someone to do what they are trained to do....But by modulating her practice in a way that was not the way she 19 wanted to practice, in my mind, that would be punishment. 20 (Id. at 96:15, 96:21-23.) He opined that Dr. Blum “had to resign because of the situation that 21 was going on.” (Id. at 105:7-16.) However, Dr. Label repeatedly testified that he did not know 22 if Plaintiff was actually reprimanded for raising concerns about any of Defendants alleged 23 policies and practices. (Id. at 115:3-10, 115:20-24, 18622-6, 191123-19211, 192:3-6