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COMMONWEALTH OF MASSACHUSETTS
Hampden, ss. Superior Court Department
HAMPDEN COUNTY of the Trial Court
SUPERS ED Civil Action No. 15-679 SIMD
FRANCIS J. DUDA, M.D. MAY 29 2018 } p=
Plaintiff 23
DEFENDANT’S MOTION IN =
v. Lui LIMINE TO EXCLUDE CERTAIN ==> 7
) TESTIMONY OF LORI HINDS & CN
BAYSTATE MEDICAL PRACTICES, } AND LORI MILLER REGARDING 25 Wy
INC., f/k/a BAYSTATE MEDICAL ) THE SOUNDNESS OF &
EDUCATION AND RESEARCH TREATMENT DECISIONS MADE >
FOUNDATION, INC. } BY PLAINTIFF + ee
Defendant ) g@= oa
"wer
I. INTRODUCTION AND BACKGROUND
Defendant, Baystate Medical Practices, Inc., f/k/a Baystate Medical Education and
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Omran
wut]
Research Foundation, Inc. (“BMP”), moves in limine to exclude certain testimony of two co-
workers of the plaintiff, Francis J. Duda, M.D. (“Dr. Duda”), Lori Hinds (“Ms. Hinds”) and L'
ye
my yr
pd Quay
Miller (“Ms. Miller”), concerning their view of the soundness of treatment decisions made by
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Dr. Duda because that testimony would be irrelevant, would constitute inadmissible lay
testimony, and would be unduly prejudicial and confusing to the jury. Dr. Duda was employed
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HS)
as a pulmonologist by BMP from July 1992 to July 2015. On January 12, 2015, consistent with
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Navid
ang 4 Ar (nem) Wy
his employment agreement, BMP gave Dr. Duda written notice of the termination of his
employment effective July 12,2015. BMP terminated Dr. Duda’s employment after he had‘een
placed, in March 2014, on a performance improvement plan to address his continuing failureYo
q
consistently comply with certain medical practice standards, including failing to include
appropriate information in his medical notes, failing to record patient contact and treatment i
Evy
patient records, and failing to comply with other processes and procedures set by the pulmonar
pay AY b syobeayl
=Sdivision, all of which had the potential to adversely affect patient care and safety. After Dr.
Duda continued to consistently fail to comply with those practice standards, even after being
provided with a scribe, BMP terminated Dr. Duda’s employment. Dr. Duda claims that his
employment was not terminated for the reason stated by BMP, but because of discriminatory
animus against individuals of his age (70) and/or discriminatory animus against individuals with
cerebral palsy. In the alternative, Dr. Duda claims that his cerebral palsy, which makes it
difficult for Dr. Duda to type, prevented him from documenting patient encounters and treatment
in the electronic medical record, that a reasonable accommodation existed that would have
enabled him to document patient encounters and treatment in the electronic medical record, and
that BMP failed to provide him with that reasonable accommodation. Dr. Duda has identified as
trial witnesses two co-workers, Ms. Hinds, a respiratory therapist, and Ms. Miller, a scribe, who
assisted Dr. Duda by inputting information in patients’ electronic medical records as instructed
by Dr. Duda. Defendant anticipates that Ms. Hinds and Ms. Miller’s testimony may include
supportive statements about the soundness of Dr. Duda’s treatment decisions. Their testimony in
this regard should be excluded because it is irrelevant, constitutes inadmissible lay opinion and is
unduly prejudicial.
Il. ARGUMENT
“The purpose of a motion in limine is to prevent irrelevant, inadmissible or prejudicial
matters from being admitted in evidence.” City of Boston v. Bd. of Educ., 392 Mass. 788, 796
(1984) (quoting Comm. v. Hood, 389 Mass. 581, 594 (1983)). Testimony of Ms. Hinds and Ms.
Miller concerning the soundness of Dr. Duda’s treatment decisions would be all three of these—
irrelevant, inadmissible and prejudicial—and should, therefore, be excluded.A. Testimony of Ms. Hinds and Ms. Miller Concerning the Soundness of Dr.
Duda’s Treatment Decisions Is Irrelevant.
Irrelevant evidence is inadmissible. See Commonwealth v. Hampton, 91 Mass. App. Ct.
852, 854 (2017), citing Mass. G. Evid. § 402 (2017). “Relevant evidence is evidence having any
tendency to make the existence of any fact that is of consequence to the determination of the
action more or less probable than it would be without the evidence.” Comm. v. Schuchardt, 408
Mass. 347, 350 (1990). See also Mass. G. Evid. § 401 (2018). The reason stated by BMP for the
termination of Dr. Duda’s employment is that Dr. Duda failed to follow certain medical practice
standards involving documentation and staff communication, all of which had the potential to
adversely affect patient care and safety. Dr. Duda may seek to introduce the testimony of Ms.
Hinds and Ms. Miller concerning the soundness of Dr. Duda’s treatment decisions to show that
the reason stated by BMP for his termination is not true. The view of Ms. Hinds and Ms. Miller
that Dr. Duda made good treatment decisions does not make it more or less probable that BMP’s
stated reason for terminating Dr. Duda’s employment is untrue, however, because, to the extent
the soundness of Dr. Duda’s treatment decisions is relevant, it is the view of the decisionmaker
concerning the soundness of those treatment decisions that is relevant, not the view of his
coworkers.
“Tn assessing pretext, a court's ‘focus must be on the perception of the decision maker,’
that is, whether the employer believed its stated reason to be credible.” Charles v. Stop & Shop
Supermarket Co., LLC, 2012 WL 2402790, at *8 (D. Mass. June 25, 2012) (applying
Massachusetts law, quoting from Mesnick v. Gen. Elec. Co., 950 F.2d 816, 824 (1st Cir.1991).
How coworkers assessed the plaintiff's work is not relevant. See Merritt v. FirstEnergy Corp.,
2008 WL 89603, at *1 (N.D. Ohio 2008) (motion in limine granted because “[i]t is the
perception of the decision maker which is relevant, and not that of co-workers...unless they werepart of the decision to terminate plaintiff's employment.”); Dryanski v. Sloan Valve Co.,1986
WL 6951, at *2 (N.D. Ill. 1986) (“The issue here is whether [plaintiff's] employer, not his fellow
employees, thought Dryanski was performing his job in a satisfactory manner. That Dryanski's
co-workers thought he was doing a good job is not probative of the opinion held by Dryanski's
superiors.”). As neither Ms. Miller nor Ms. Hinds was a decisionmaker, their opinion of the
soundness of Dr. Duda’s treatment decisions is irrelevant and should be excluded.
B. Ms. Hinds and Ms. Miller’s Testimony Concerning the Soundness of Dr.
Duda’s Decisions Constitutes Improper Lay Opinion.
Ms. Hinds (medical transcriptionist) and Ms. Miller (respiratory therapist) are lay
witnesses that have not been disclosed as experts in discovery or the pretrial memorandum. Even
if their opinion of Dr. Duda’s patient care decisions were relevant, it should be excluded as
improper lay opinion. In order for the opinion of a lay witness to be admissible it must “not [be]
based on scientific, technical, or other specialized knowledge within the scope of Section 702.”
Mass. Guide to Evidence § 701(a). Whether Dr. Duda made appropriate treatment decisions
would require expert testimony by a physician with specialized training. See LeBlanc v. Logan
Hilton Joint Venture, 463 Mass. 316, 329 (2012), quoting Haggarty v. McCarthy, 344 Mass. 136,
139 (1962) (“We generally require expert testimony because ‘laymen ... could not be, and are
not, in a position to determine ... the requirements of professional conduct’”); Palandjian v.
Foster, 446 Mass. 100, 106 (2006) (An expert’s qualifications, such as training, board
certifications, specialized medical experience, attendance at seminars and meetings, familiarity
with medical literature, and discussions with other physicians “ensure that the expert has
sufficient knowledge of the practices of other physicians to assert that the average qualified
practitioner would, or would not, take a particular course of action in the relevant
circumstances”).Ms. Hinds and Ms. Miller were employed in the medical field, but they are not
pulmonologists, nor do they have the training, qualifications, and experience to opine as to the
level of care rendered by a pulmonologist. Further, they were not disclosed in this case as experts
in discovery or the pretrial memorandum. Therefore, their opinion testimony concerning the
soundness of Dr. Duda’s clinical judgment must be excluded.
C. Ms. Hinds and Ms. Miller’s Testimony Concerning the Soundness of Dr.
Duda’s Treatment Decisions Is Unduly Prejudicial.
“The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Mass. Proposed Guide to Evidence, § 403. Even if Ms. Hinds and Ms. Miller’s testimony
concerning the soundness of Dr. Duda’s treatment decisions were relevant, it should nevertheless
be excluded because it is unduly prejudicial.
The only purpose of Ms. Hinds and Ms. Miller’s testimony regarding their opinion of Dr.
Duda’s treatment decisions is to cast him in a positive light and elicit jury sympathy, distracting
them from the relevant issue of whether BMP terminated Dr. Duda’s employment for the reason
stated by it. It is improper to introduce evidence simply to cast a party in a positive light, and the
prejudice to BMP of such testimony far outweighs any probative value it might have, and it
should, therefore, be excluded. Cf U.S. v. Harris, 491 F. 3d 440, 449 (D.C. Cir. 2007) (“[the]
district court's toughest evidentiary rulings . . . show one persistent aim: to prevent testimony
whose purpose was, in the court's judgment, purely or mainly to cast [the Defendant] in the
sympathetic light of a dedicated family man” (relying on analysis under the cognate Fed. Rules
of Evidence 401 and 403)).I. | CONCLUSION
For all the foregoing reasons, this Court should exclude the testimony at trial of Ms.
Miller and Ms. Hinds as it relates to the soundness of Dr. Duda’s treatment decisions.
Dated: May 29, 2018 The Defendant
BAYSTATE MEDICAL PRACTICES,
INC. f/k/a BAYSTATE MEDICAL
EDUCATION AND RESEARCH
FOUNDATION, INC.
By Its Attorney:
Certificate of Servi id Compliance
Mary J. Kennedy — BBO No. 552345
I, Mary J. Kennedy, attorney for the Jennifer K. Cannon —- BBO No. 664431
defendant, Baystate Medical Practices, Bulkley, Richardson and Gelinas, LLP
Inc., f/k/a Baystate Medical Education 1500 Main Street - Suite 2700
and Research Foundation, Inc., in thi:
above matter, hereby certify that a true P.O. Box 15507
copy of the above document was served Springfield, MA 01115
upon the atomey of record foreach Tel: (413) 272-6242; Fax: (413) 272-6803
arty an livery on May 29,
and is being filed within the designated mkennedy@bulkley.com
time standards in accordance with jeannon@bulkley.com
Superior Court Department Standing
Order No. 1-88 or by Leave of the
Regional Administrative Justice.
Mary J. lease 4
2940382v1
Preview
COMMONWEALTH OF MASSACHUSETTS Hampden, ss. Superior Court Department HAMPDEN COUNTY of the Trial Court SUPERS ED Civil Action No. 15-679 SIMD FRANCIS J. DUDA, M.D. MAY 29 2018 } p= Plaintiff 23 DEFENDANT’S MOTION IN = v. Lui LIMINE TO EXCLUDE CERTAIN ==> 7 ) TESTIMONY OF LORI HINDS & CN BAYSTATE MEDICAL PRACTICES, } AND LORI MILLER REGARDING 25 Wy INC., f/k/a BAYSTATE MEDICAL ) THE SOUNDNESS OF & EDUCATION AND RESEARCH TREATMENT DECISIONS MADE > FOUNDATION, INC. } BY PLAINTIFF + ee Defendant ) g@= oa "wer I. INTRODUCTION AND BACKGROUND Defendant, Baystate Medical Practices, Inc., f/k/a Baystate Medical Education and yr Omran wut] Research Foundation, Inc. (“BMP”), moves in limine to exclude certain testimony of two co- workers of the plaintiff, Francis J. Duda, M.D. (“Dr. Duda”), Lori Hinds (“Ms. Hinds”) and L' ye my yr pd Quay Miller (“Ms. Miller”), concerning their view of the soundness of treatment decisions made by 2 war a) Dr. Duda because that testimony would be irrelevant, would constitute inadmissible lay testimony, and would be unduly prejudicial and confusing to the jury. Dr. Duda was employed | wa HS) as a pulmonologist by BMP from July 1992 to July 2015. On January 12, 2015, consistent with > Navid ang 4 Ar (nem) Wy his employment agreement, BMP gave Dr. Duda written notice of the termination of his employment effective July 12,2015. BMP terminated Dr. Duda’s employment after he had‘een placed, in March 2014, on a performance improvement plan to address his continuing failureYo q consistently comply with certain medical practice standards, including failing to include appropriate information in his medical notes, failing to record patient contact and treatment i Evy patient records, and failing to comply with other processes and procedures set by the pulmonar pay AY b syobeayl =Sdivision, all of which had the potential to adversely affect patient care and safety. After Dr. Duda continued to consistently fail to comply with those practice standards, even after being provided with a scribe, BMP terminated Dr. Duda’s employment. Dr. Duda claims that his employment was not terminated for the reason stated by BMP, but because of discriminatory animus against individuals of his age (70) and/or discriminatory animus against individuals with cerebral palsy. In the alternative, Dr. Duda claims that his cerebral palsy, which makes it difficult for Dr. Duda to type, prevented him from documenting patient encounters and treatment in the electronic medical record, that a reasonable accommodation existed that would have enabled him to document patient encounters and treatment in the electronic medical record, and that BMP failed to provide him with that reasonable accommodation. Dr. Duda has identified as trial witnesses two co-workers, Ms. Hinds, a respiratory therapist, and Ms. Miller, a scribe, who assisted Dr. Duda by inputting information in patients’ electronic medical records as instructed by Dr. Duda. Defendant anticipates that Ms. Hinds and Ms. Miller’s testimony may include supportive statements about the soundness of Dr. Duda’s treatment decisions. Their testimony in this regard should be excluded because it is irrelevant, constitutes inadmissible lay opinion and is unduly prejudicial. Il. ARGUMENT “The purpose of a motion in limine is to prevent irrelevant, inadmissible or prejudicial matters from being admitted in evidence.” City of Boston v. Bd. of Educ., 392 Mass. 788, 796 (1984) (quoting Comm. v. Hood, 389 Mass. 581, 594 (1983)). Testimony of Ms. Hinds and Ms. Miller concerning the soundness of Dr. Duda’s treatment decisions would be all three of these— irrelevant, inadmissible and prejudicial—and should, therefore, be excluded.A. Testimony of Ms. Hinds and Ms. Miller Concerning the Soundness of Dr. Duda’s Treatment Decisions Is Irrelevant. Irrelevant evidence is inadmissible. See Commonwealth v. Hampton, 91 Mass. App. Ct. 852, 854 (2017), citing Mass. G. Evid. § 402 (2017). “Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Comm. v. Schuchardt, 408 Mass. 347, 350 (1990). See also Mass. G. Evid. § 401 (2018). The reason stated by BMP for the termination of Dr. Duda’s employment is that Dr. Duda failed to follow certain medical practice standards involving documentation and staff communication, all of which had the potential to adversely affect patient care and safety. Dr. Duda may seek to introduce the testimony of Ms. Hinds and Ms. Miller concerning the soundness of Dr. Duda’s treatment decisions to show that the reason stated by BMP for his termination is not true. The view of Ms. Hinds and Ms. Miller that Dr. Duda made good treatment decisions does not make it more or less probable that BMP’s stated reason for terminating Dr. Duda’s employment is untrue, however, because, to the extent the soundness of Dr. Duda’s treatment decisions is relevant, it is the view of the decisionmaker concerning the soundness of those treatment decisions that is relevant, not the view of his coworkers. “Tn assessing pretext, a court's ‘focus must be on the perception of the decision maker,’ that is, whether the employer believed its stated reason to be credible.” Charles v. Stop & Shop Supermarket Co., LLC, 2012 WL 2402790, at *8 (D. Mass. June 25, 2012) (applying Massachusetts law, quoting from Mesnick v. Gen. Elec. Co., 950 F.2d 816, 824 (1st Cir.1991). How coworkers assessed the plaintiff's work is not relevant. See Merritt v. FirstEnergy Corp., 2008 WL 89603, at *1 (N.D. Ohio 2008) (motion in limine granted because “[i]t is the perception of the decision maker which is relevant, and not that of co-workers...unless they werepart of the decision to terminate plaintiff's employment.”); Dryanski v. Sloan Valve Co.,1986 WL 6951, at *2 (N.D. Ill. 1986) (“The issue here is whether [plaintiff's] employer, not his fellow employees, thought Dryanski was performing his job in a satisfactory manner. That Dryanski's co-workers thought he was doing a good job is not probative of the opinion held by Dryanski's superiors.”). As neither Ms. Miller nor Ms. Hinds was a decisionmaker, their opinion of the soundness of Dr. Duda’s treatment decisions is irrelevant and should be excluded. B. Ms. Hinds and Ms. Miller’s Testimony Concerning the Soundness of Dr. Duda’s Decisions Constitutes Improper Lay Opinion. Ms. Hinds (medical transcriptionist) and Ms. Miller (respiratory therapist) are lay witnesses that have not been disclosed as experts in discovery or the pretrial memorandum. Even if their opinion of Dr. Duda’s patient care decisions were relevant, it should be excluded as improper lay opinion. In order for the opinion of a lay witness to be admissible it must “not [be] based on scientific, technical, or other specialized knowledge within the scope of Section 702.” Mass. Guide to Evidence § 701(a). Whether Dr. Duda made appropriate treatment decisions would require expert testimony by a physician with specialized training. See LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 329 (2012), quoting Haggarty v. McCarthy, 344 Mass. 136, 139 (1962) (“We generally require expert testimony because ‘laymen ... could not be, and are not, in a position to determine ... the requirements of professional conduct’”); Palandjian v. Foster, 446 Mass. 100, 106 (2006) (An expert’s qualifications, such as training, board certifications, specialized medical experience, attendance at seminars and meetings, familiarity with medical literature, and discussions with other physicians “ensure that the expert has sufficient knowledge of the practices of other physicians to assert that the average qualified practitioner would, or would not, take a particular course of action in the relevant circumstances”).Ms. Hinds and Ms. Miller were employed in the medical field, but they are not pulmonologists, nor do they have the training, qualifications, and experience to opine as to the level of care rendered by a pulmonologist. Further, they were not disclosed in this case as experts in discovery or the pretrial memorandum. Therefore, their opinion testimony concerning the soundness of Dr. Duda’s clinical judgment must be excluded. C. Ms. Hinds and Ms. Miller’s Testimony Concerning the Soundness of Dr. Duda’s Treatment Decisions Is Unduly Prejudicial. “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Mass. Proposed Guide to Evidence, § 403. Even if Ms. Hinds and Ms. Miller’s testimony concerning the soundness of Dr. Duda’s treatment decisions were relevant, it should nevertheless be excluded because it is unduly prejudicial. The only purpose of Ms. Hinds and Ms. Miller’s testimony regarding their opinion of Dr. Duda’s treatment decisions is to cast him in a positive light and elicit jury sympathy, distracting them from the relevant issue of whether BMP terminated Dr. Duda’s employment for the reason stated by it. It is improper to introduce evidence simply to cast a party in a positive light, and the prejudice to BMP of such testimony far outweighs any probative value it might have, and it should, therefore, be excluded. Cf U.S. v. Harris, 491 F. 3d 440, 449 (D.C. Cir. 2007) (“[the] district court's toughest evidentiary rulings . . . show one persistent aim: to prevent testimony whose purpose was, in the court's judgment, purely or mainly to cast [the Defendant] in the sympathetic light of a dedicated family man” (relying on analysis under the cognate Fed. Rules of Evidence 401 and 403)).I. | CONCLUSION For all the foregoing reasons, this Court should exclude the testimony at trial of Ms. Miller and Ms. Hinds as it relates to the soundness of Dr. Duda’s treatment decisions. Dated: May 29, 2018 The Defendant BAYSTATE MEDICAL PRACTICES, INC. f/k/a BAYSTATE MEDICAL EDUCATION AND RESEARCH FOUNDATION, INC. By Its Attorney: Certificate of Servi id Compliance Mary J. Kennedy — BBO No. 552345 I, Mary J. Kennedy, attorney for the Jennifer K. Cannon —- BBO No. 664431 defendant, Baystate Medical Practices, Bulkley, Richardson and Gelinas, LLP Inc., f/k/a Baystate Medical Education 1500 Main Street - Suite 2700 and Research Foundation, Inc., in thi: above matter, hereby certify that a true P.O. Box 15507 copy of the above document was served Springfield, MA 01115 upon the atomey of record foreach Tel: (413) 272-6242; Fax: (413) 272-6803 arty an livery on May 29, and is being filed within the designated mkennedy@bulkley.com time standards in accordance with jeannon@bulkley.com Superior Court Department Standing Order No. 1-88 or by Leave of the Regional Administrative Justice. Mary J. lease 4 2940382v1