Preview
ROBERT H. ZIMMERMAN, Bar No. 84345 Superior Court of California F
SCHUERING ZIMMERMAN & DOYLE, LLP County of Butte
400 University Aven
Sacramento, California 95825-6502 12/3/2020
(916) 567-0400
FAX: 568-0400
KinGerty shy Clerk
By Deputy
Attomeys for Defendant ENLOE MEDICAL CENTER Electronically F: ED
SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE
10 PATSY NEWTON, individually; HAROLD NO. 20CV01091
NEWTON, individually; SUZANNE
11 BOLDEN, individually, Assigned to Judge Tamara L.
Mosbarger for | Purposes
12 Plaintiffs,
MOTION IN LIMINE NO. 7 TO
13 vs. PRECLUDE PLAINTIFFS’ EXPERTS
FROM OPINING PLAINTIFF’S CARE
14 ENLOE MEDICAL CENTER; and DOES 1 - WAS RECKLESS OR THE LIKE;
50, et al., DECLARATION OF ROBERT H.
15 ZIMMERMAN IN SUPPORT
Defendants.
16 Date: December 10, 2020
Time: 1:30 p.m.
17 Dept: 1
18 Action Filed: May 29, 2020
Trial Date: December 14, 2020
19
20
I
21
INTRODUCTION
22
This is an action brought by plaintiffs against ENLOE MEDICAL CENTER. Plaintiffs
23
allege Patsy Newton, was neglected during a 11 day hospitalization at Enloe Medical
24
Center from September 11, 2019 through September 21, 2019. Plaintiffs allege defendant's
25
staff was negligent in the care of Ms. Newton and violated the Patients’ Bill of Rights
26
pursuant to Health and Safety Code § 1250.
27
It is expected that plaintiffs will seek to present expert opinion on certain statutory
28
definitions, as well as opinions that certain statutes/regulations were violated.
01303861.WPD 1
MOTION IN LIMINE NO. 7 TO PRECLUDE RECKLESSNESS
1 Specifically, defendant expects plaintiffs will elicit testimony from their experts that the
defendant's actions were “reckless,”grossly negligent,” and that defendant “knowingly
disregarded” the risk of harm to Ms. Newton. Such testimony is not the proper subject of
expert opinion and should be found inadmissible.
II.
EVIDENCE SOUGHT TO BE EXCLUDED
A Statutory Definitions
It is expected that at least one of plaintiff's retained expert witnesses will provide
testimony as to whether actions by Enloe Medical Center’s personnel met statutory
10 definitions that a jury must decide in determining liability under the Welfare and
11 Institutions Code section 15657, which include intent/state of mind requirements. As set
12 forth below, any testimony by plaintiffs’ expert witnesses, or any other witness, regarding
13 statutory standards and/or the state of mind of others is inappropriate expert opinion.
14 B. Opinions Regarding Statutory Violations
15 It is also anticipated that plaintiffs’ experts will attempt to offer opinions on
16 statutory violations. Plaintiffs’ Complaint contains numerous citations to alleged
17 statutory/regulatory violations. (See Plaintiffs’ Complaint, attached as Exhibit A to the
18 Declaration of Robert H. Zimmerman (hereafter Zimmerman Decl.), at 111, 4, 14-39, 52,
19 & 56.) Defendant expects plaintiffs’ expert witnesses will attempt to offer testimony at
20 their upcoming depositions that certain acts/omissions were “reckless,”“grossly
21 negligent,” and “knowingly disregarded” the risk of harm to Ms. Newton and her rights,
22 health and welfare. (See Exhibit A to Zimmerman Decl., at 111, 7, 9, 13, 16, 17, 20, 21, 22,
23 24, 25, 26, 27, 29, 30, 31, 32, 35, 38, 39, 41, and 43.)
24 Ill.
25 LAW AND ARGUMENT
26 A. Expert Opinions
27 Pursuant to Evidence Code section 801, expert opinion is admissible when it is
28 “[rJelated to a subject that is sufficiently beyond common experience that the opinion of
01303861.WPD 2
MOTION IN LIMINE NO. 7 TO PRECLUDE RECKLESSNESS
) Moreover,
an expert would assist the trier of fact... .” (Evidence Code section 801(a.).
objectionable
“{t]estimony in the form of an opinion that is otherwise admissible is not
ce Code
because it embraces the ultimate issue to be decided by the trier of fact.” (Eviden
es an
section 805.) “However, the admissibility of expert opinion evidence that embrac
ultimate issue in a case does not bestow upon an expert carte blanche to express any
opinion he or she wishes to.” (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155,
1178.) “There are limits to expert testimony, not least of which is the prohibition against
admission of an expert’s opinion on a question of law.” (Ibid.) An expert also may not
draw “legal conclusions.” (Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC
10 (2013) 221 Cal.App.4th 102, 122.) Moreover, “[e]ven if an expert’s opinion does not go to
1] a question of law, itis not admissible if it invades the province of the jury to decide case.”
12 (Summers, supra, 69 Cal.App.4th at p. 1182.) As further explained,
13 Expert opinions which invade the province of the jury are not
14 tp
excluded because the’ embrace an ultimate issue but
because they are not he! ful (or perhaps too helpful). “ (T]he
rationale for admitting opinion testimony is that it will assist
15 the jury in reaching a conclusion called for by the case.
‘Where the jury is just as competent as the expert to consider
16 and weigh the evidence and ‘aw the necessary conclusions,
then the need for expert testimony evaporates.’” (/d. 1183.)
17
18 Such inadmissible expert opinions include testimony to the effect that certain
19 actions were contrary to the law, legal requirements, and liability for acts based on legal
20 Principles. (/d. at 1185.) The state of mind of an actor is also generally an inappropriate
21 subject of expert opinion. (Kotla v. Regents of University of California (2004) 115
22 Cal.App.4th 283, 293 [“Absent unusual facts, it must be presumed that jurors are capable
23 of deciding a party's motive for themselves without being told by an expert which finding
24 on that issue the evidence supports.”].) Itis inappropriate for an expert to be “advocating”
25 instead of “testifying.” (Ibid., Kotla, supra, 115 Cal.App.4th at p. 294 [in finding expert’s
26 opinion inadmissible, noting that it did “not offer the jury anything more than the lawyers
27 can offer in argument.”].)
28 The case of Intrieri v. Superior Court (2004) 117 Cal.App.4th 72 is instructive. This
01303861.WPD 3
MOTION IN LIMINE NO. 7 TO PRECLUDE RECKLESSNESS
.
case involved a cause of action under the Elder Abuse Act. The court noted that, in such
nt has
a cause of action, a plaintiff is entitled to enhanced remedies where the defenda
been “guilty of recklessness, oppression, fraud, or malice ... .” (Id. at 82, quoting Welfare
and Institutions Code section 15657.) In Intrieri, plaintiffs’ expert provided a declaration
in opposition to a motion for summary judgment. (Id. at 79. The declaration stated, in part,
that the defendant “acted with conscious disregard that [the plaintiff] would sustain
further injury when [defendant] failed to provide care planning, skin care reporting and
proper treatmentof...ulcers.” (/d. at 79.) Another expert provided a declaration stating that
the defendant’s conduct fell below the standard of care “and was done with a conscious
10 disregard of the high probability that her condition would worsen.” (/bid.) On appeal, the
11 defendant argued the expert’s statements that the defendant acted with conscious
12 disregard of the decedent’s safety constituted inadmissible opinion about a party’s state
13 of mind. (/d. at 83.) The Intrieri court agreed, noting that “the experts’ conclusions
14 regarding the [defendant's] state of mind cannot be considered in determining whether
15 a triable issue of material question of fact exists, because conclusions of fact or law do
16 not constitute evidentiary facts[.]” (/bid.)
17 B. Inadmissible Opinions Re Elder Abuse/Neglect
18 Plaintiffs’ Complaint, states a cause of action under Welfare and Institutions Code
19 section 15600 et seq. under a theory of neglect and abuse. Pursuant to statute, the
20 elements of this cause of action are:
21 [Name of _ plaintiff] claims that [he/she/nonbinary
ronoun/name of decedent] was neglected by [[name of
22 individual defendant]/ [and] [name of employer defendant} ]
in violation of the Elder Abuse and Dependent Adult Civil
23 Protection Act. To establish this claim, [name of plaintiff] must
prove all of the following:
24
1. That ([name of individual defendant]/[name
25 of employer defendant]’s employee] had a
substantial caretaking or custodial relationship
26 with [name of laintiff/decedent], involving
ongoing responsibility for [his/her/nonbinary
27 pronoun] basic needs, which an able-bodied
and fully competent adult would ordinarily be
28 capable of managing without assistance;
01303861.WPD 4
MOTION IN LIMINE NO. 7 TO PRECLUDE RECKLESSNESS
2. That [name of plaintiff/decedent] was [65
ears of age or older/a dependent adult] while
he/she/nonbinary pronoun] was in [{name of
individual defendant]’s/[name of employer
fe
defendant]’s e mM] loyee’s] care or custody] was
in [[name of de! fendant]’s/[name of employer
defendant]’s employee’s] care or custody;
3. That [[name of individual defendant]/[name
of employer defendant]’s employee] failed to
use the degree of care that a reasonable person
in the same situation would have used in
roviding for [name of plaintiff/decedent]’s
btheasicfollowing:
needs, including [insert one or more oO!
i
[assisting in personal hy: iene or in the provision
of food, clothing, or she! iter; ]
10
[providing medical care for physical and mental
1] health needs;
12 [protecting [name of plaintiff/decedent] from
health and safety hazards;]
13
[preventing malnutrition or dehydration;]
14
[insert other grounds for neglect;]
15
4. That [name of plaintiff/decedent] was harmed; and
16
5. That [[name of individual defendant]’s/[name of
17 employer defendant]’s employee’s] conduct was a
substantial factor in causing [name of
18 plaintiff/decedent]’s harm.
19 (CACI No. 3103.)
20 Additionally, in order to obtain enhanced remedies, the relevant jury instructions
21 provide:
22 [Name of plaintiff] also seeks to recover [attorney fees and
costs/ [and] damages for [name of decedent]’s pain and
23 suffering]. To recover these remedies, [name ofplaintiff] must
prove all of the requirements for neglect y clear and
24 convincing evidence, and must also prove by clear and
25
convincin:
with
i evidence that [[name
[recklessness/oppression/fraud/
of individual
defendant], name of employer defendant]’s employee] acted
[or] malice] in
26 neglecting [name of plaintiff/decedent].
27 (CACI No. 3104.)
28 [Name of individual defendant]/[Name of employer
defendant]’s employee acted with “recklessness” if
01303861.WPD 5
MOTION IN LIMINE NO, 7 TO PRECLUDE RECKLESSNESS
d
he/she/nonbinary pronoun] knewit was hi hly probable that
his/her/nonbinary pronoun] conduct woul cause harm and
[he/she/nonbinary pronoun] knowingly disregarded this risk.
“Recklessness” is more than just the failure to use reasonable
care.
(CACI No. 3113.)
“Malice” means that [[name of individual defendant]/[name
of emp! loyer defendant]’s employee] acted with intent to
cause injury or that [his/her/nonbinary pronoun] conduct was
despicable and was done with a willful and knowin;
A
disregard of the rights or safety of another. A person acts wit!
the person’s con duct
and
knowing disregard when the person is aware of th ie
dangerous consequences of
deliberately fails to avoid those consequences.
10
“Despicable conduct” is conduct that is so vile, base, or
11 contemptible that it would be looked down on and despised
by reasonable people.
12
13 (CACI No. 3114.)
14 “Oppression” means that [[name of individual
defendant]’s/[name of employer defendant]’s employee’s]
15 conduct was despicable and _ subjected name oO!
plaintiff/decedent] to cruel and unjust hardship in knowing
16 disregard of [his/her/nonbinary pronoun] rights.
17 “Despicable conduct” is conduct that is so vile, base, or
contemptible that it would be looked down on and despised
18 by reasonable people.
19 (CACI No. 3115.)
20 “Fraud” means an intentional misrepresentation, deceit, or
concealment of a material fact with the intention of depriving
21 [name of plaintiff/decedent] of property or of a legal right or
otherwise to cause [name of plaintiff/decedent] injury.
22
23 (CACI No. 3116.)
24 Here, all of the above-noted definitions and standards for enhanced remedies are
25 improper subjects for expert opinion. As defined, recklessness, malice, oppression, and
26 fraud) all concern the subjective state of mind of the actor, and these are ultimate facts
27 for a jury to decide based on inferences from the evidence. Moreover, given that a jury
28 is fully capable of arriving at conclusions regarding the state of mind of an actor, expert
01303861.WPD 6
MOTION IN LIMINE NO. 7 TO PRECLUDE RECKLESSNESS
able conduct,
opinions will not assist the jury. The same is true of the definition of despic
would
as the standard is one specifically designed to apply to how “reasonable people”
view the conduct. Accordingly, any expert opinion on the elements or definitions of
recklessness, malice, and/or fraud, should be excluded.
Experts should also be precluded from testifying on alleged statutory or regulatory
violations. These are likewise ultimate issues of law that a jury must decide based on the
evidence. and the subject of improper expert opinion. Accordingly, experts should be
precluded from offering opinions on statutory or regulatory violations.
Vv.
10 CONCLUSION
11 Based on the foregoing, defendant requests an orderin limine precluding experts
12 from offering testimony or opinions regarding the statutory definitions of recklessness,
13 oppression, malice, and fraud on plaintiffs’ cause of action for elder neglect. Defendant
14 also requests an order in limine precluding experts from offering testimony or opinions
15 as to whether any statutes or regulations were violated by the defendant and/or their
16 employees.
17 Dated: December 1, 2020
18 SCHUERING ZIMMERMAN & DOYLE, LLP
19
20 B
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ROBERT H. ZIMMERMAN, Bar No. 84345 Superior Court of California F SCHUERING ZIMMERMAN & DOYLE, LLP County of Butte 400 University Aven Sacramento, California 95825-6502 12/3/2020 (916) 567-0400 FAX: 568-0400 KinGerty shy Clerk By Deputy Attomeys for Defendant ENLOE MEDICAL CENTER Electronically F: ED SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE 10 PATSY NEWTON, individually; HAROLD NO. 20CV01091 NEWTON, individually; SUZANNE 11 BOLDEN, individually, Assigned to Judge Tamara L. Mosbarger for | Purposes 12 Plaintiffs, MOTION IN LIMINE NO. 7 TO 13 vs. PRECLUDE PLAINTIFFS’ EXPERTS FROM OPINING PLAINTIFF’S CARE 14 ENLOE MEDICAL CENTER; and DOES 1 - WAS RECKLESS OR THE LIKE; 50, et al., DECLARATION OF ROBERT H. 15 ZIMMERMAN IN SUPPORT Defendants. 16 Date: December 10, 2020 Time: 1:30 p.m. 17 Dept: 1 18 Action Filed: May 29, 2020 Trial Date: December 14, 2020 19 20 I 21 INTRODUCTION 22 This is an action brought by plaintiffs against ENLOE MEDICAL CENTER. Plaintiffs 23 allege Patsy Newton, was neglected during a 11 day hospitalization at Enloe Medical 24 Center from September 11, 2019 through September 21, 2019. Plaintiffs allege defendant's 25 staff was negligent in the care of Ms. Newton and violated the Patients’ Bill of Rights 26 pursuant to Health and Safety Code § 1250. 27 It is expected that plaintiffs will seek to present expert opinion on certain statutory 28 definitions, as well as opinions that certain statutes/regulations were violated. 01303861.WPD 1 MOTION IN LIMINE NO. 7 TO PRECLUDE RECKLESSNESS 1 Specifically, defendant expects plaintiffs will elicit testimony from their experts that the defendant's actions were “reckless,”grossly negligent,” and that defendant “knowingly disregarded” the risk of harm to Ms. Newton. Such testimony is not the proper subject of expert opinion and should be found inadmissible. II. EVIDENCE SOUGHT TO BE EXCLUDED A Statutory Definitions It is expected that at least one of plaintiff's retained expert witnesses will provide testimony as to whether actions by Enloe Medical Center’s personnel met statutory 10 definitions that a jury must decide in determining liability under the Welfare and 11 Institutions Code section 15657, which include intent/state of mind requirements. As set 12 forth below, any testimony by plaintiffs’ expert witnesses, or any other witness, regarding 13 statutory standards and/or the state of mind of others is inappropriate expert opinion. 14 B. Opinions Regarding Statutory Violations 15 It is also anticipated that plaintiffs’ experts will attempt to offer opinions on 16 statutory violations. Plaintiffs’ Complaint contains numerous citations to alleged 17 statutory/regulatory violations. (See Plaintiffs’ Complaint, attached as Exhibit A to the 18 Declaration of Robert H. Zimmerman (hereafter Zimmerman Decl.), at 111, 4, 14-39, 52, 19 & 56.) Defendant expects plaintiffs’ expert witnesses will attempt to offer testimony at 20 their upcoming depositions that certain acts/omissions were “reckless,”“grossly 21 negligent,” and “knowingly disregarded” the risk of harm to Ms. Newton and her rights, 22 health and welfare. (See Exhibit A to Zimmerman Decl., at 111, 7, 9, 13, 16, 17, 20, 21, 22, 23 24, 25, 26, 27, 29, 30, 31, 32, 35, 38, 39, 41, and 43.) 24 Ill. 25 LAW AND ARGUMENT 26 A. Expert Opinions 27 Pursuant to Evidence Code section 801, expert opinion is admissible when it is 28 “[rJelated to a subject that is sufficiently beyond common experience that the opinion of 01303861.WPD 2 MOTION IN LIMINE NO. 7 TO PRECLUDE RECKLESSNESS ) Moreover, an expert would assist the trier of fact... .” (Evidence Code section 801(a.). objectionable “{t]estimony in the form of an opinion that is otherwise admissible is not ce Code because it embraces the ultimate issue to be decided by the trier of fact.” (Eviden es an section 805.) “However, the admissibility of expert opinion evidence that embrac ultimate issue in a case does not bestow upon an expert carte blanche to express any opinion he or she wishes to.” (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1178.) “There are limits to expert testimony, not least of which is the prohibition against admission of an expert’s opinion on a question of law.” (Ibid.) An expert also may not draw “legal conclusions.” (Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC 10 (2013) 221 Cal.App.4th 102, 122.) Moreover, “[e]ven if an expert’s opinion does not go to 1] a question of law, itis not admissible if it invades the province of the jury to decide case.” 12 (Summers, supra, 69 Cal.App.4th at p. 1182.) As further explained, 13 Expert opinions which invade the province of the jury are not 14 tp excluded because the’ embrace an ultimate issue but because they are not he! ful (or perhaps too helpful). “ (T]he rationale for admitting opinion testimony is that it will assist 15 the jury in reaching a conclusion called for by the case. ‘Where the jury is just as competent as the expert to consider 16 and weigh the evidence and ‘aw the necessary conclusions, then the need for expert testimony evaporates.’” (/d. 1183.) 17 18 Such inadmissible expert opinions include testimony to the effect that certain 19 actions were contrary to the law, legal requirements, and liability for acts based on legal 20 Principles. (/d. at 1185.) The state of mind of an actor is also generally an inappropriate 21 subject of expert opinion. (Kotla v. Regents of University of California (2004) 115 22 Cal.App.4th 283, 293 [“Absent unusual facts, it must be presumed that jurors are capable 23 of deciding a party's motive for themselves without being told by an expert which finding 24 on that issue the evidence supports.”].) Itis inappropriate for an expert to be “advocating” 25 instead of “testifying.” (Ibid., Kotla, supra, 115 Cal.App.4th at p. 294 [in finding expert’s 26 opinion inadmissible, noting that it did “not offer the jury anything more than the lawyers 27 can offer in argument.”].) 28 The case of Intrieri v. Superior Court (2004) 117 Cal.App.4th 72 is instructive. This 01303861.WPD 3 MOTION IN LIMINE NO. 7 TO PRECLUDE RECKLESSNESS . case involved a cause of action under the Elder Abuse Act. The court noted that, in such nt has a cause of action, a plaintiff is entitled to enhanced remedies where the defenda been “guilty of recklessness, oppression, fraud, or malice ... .” (Id. at 82, quoting Welfare and Institutions Code section 15657.) In Intrieri, plaintiffs’ expert provided a declaration in opposition to a motion for summary judgment. (Id. at 79. The declaration stated, in part, that the defendant “acted with conscious disregard that [the plaintiff] would sustain further injury when [defendant] failed to provide care planning, skin care reporting and proper treatmentof...ulcers.” (/d. at 79.) Another expert provided a declaration stating that the defendant’s conduct fell below the standard of care “and was done with a conscious 10 disregard of the high probability that her condition would worsen.” (/bid.) On appeal, the 11 defendant argued the expert’s statements that the defendant acted with conscious 12 disregard of the decedent’s safety constituted inadmissible opinion about a party’s state 13 of mind. (/d. at 83.) The Intrieri court agreed, noting that “the experts’ conclusions 14 regarding the [defendant's] state of mind cannot be considered in determining whether 15 a triable issue of material question of fact exists, because conclusions of fact or law do 16 not constitute evidentiary facts[.]” (/bid.) 17 B. Inadmissible Opinions Re Elder Abuse/Neglect 18 Plaintiffs’ Complaint, states a cause of action under Welfare and Institutions Code 19 section 15600 et seq. under a theory of neglect and abuse. Pursuant to statute, the 20 elements of this cause of action are: 21 [Name of _ plaintiff] claims that [he/she/nonbinary ronoun/name of decedent] was neglected by [[name of 22 individual defendant]/ [and] [name of employer defendant} ] in violation of the Elder Abuse and Dependent Adult Civil 23 Protection Act. To establish this claim, [name of plaintiff] must prove all of the following: 24 1. That ([name of individual defendant]/[name 25 of employer defendant]’s employee] had a substantial caretaking or custodial relationship 26 with [name of laintiff/decedent], involving ongoing responsibility for [his/her/nonbinary 27 pronoun] basic needs, which an able-bodied and fully competent adult would ordinarily be 28 capable of managing without assistance; 01303861.WPD 4 MOTION IN LIMINE NO. 7 TO PRECLUDE RECKLESSNESS 2. That [name of plaintiff/decedent] was [65 ears of age or older/a dependent adult] while he/she/nonbinary pronoun] was in [{name of individual defendant]’s/[name of employer fe defendant]’s e mM] loyee’s] care or custody] was in [[name of de! fendant]’s/[name of employer defendant]’s employee’s] care or custody; 3. That [[name of individual defendant]/[name of employer defendant]’s employee] failed to use the degree of care that a reasonable person in the same situation would have used in roviding for [name of plaintiff/decedent]’s btheasicfollowing: needs, including [insert one or more oO! i [assisting in personal hy: iene or in the provision of food, clothing, or she! iter; ] 10 [providing medical care for physical and mental 1] health needs; 12 [protecting [name of plaintiff/decedent] from health and safety hazards;] 13 [preventing malnutrition or dehydration;] 14 [insert other grounds for neglect;] 15 4. That [name of plaintiff/decedent] was harmed; and 16 5. That [[name of individual defendant]’s/[name of 17 employer defendant]’s employee’s] conduct was a substantial factor in causing [name of 18 plaintiff/decedent]’s harm. 19 (CACI No. 3103.) 20 Additionally, in order to obtain enhanced remedies, the relevant jury instructions 21 provide: 22 [Name of plaintiff] also seeks to recover [attorney fees and costs/ [and] damages for [name of decedent]’s pain and 23 suffering]. To recover these remedies, [name ofplaintiff] must prove all of the requirements for neglect y clear and 24 convincing evidence, and must also prove by clear and 25 convincin: with i evidence that [[name [recklessness/oppression/fraud/ of individual defendant], name of employer defendant]’s employee] acted [or] malice] in 26 neglecting [name of plaintiff/decedent]. 27 (CACI No. 3104.) 28 [Name of individual defendant]/[Name of employer defendant]’s employee acted with “recklessness” if 01303861.WPD 5 MOTION IN LIMINE NO, 7 TO PRECLUDE RECKLESSNESS d he/she/nonbinary pronoun] knewit was hi hly probable that his/her/nonbinary pronoun] conduct woul cause harm and [he/she/nonbinary pronoun] knowingly disregarded this risk. “Recklessness” is more than just the failure to use reasonable care. (CACI No. 3113.) “Malice” means that [[name of individual defendant]/[name of emp! loyer defendant]’s employee] acted with intent to cause injury or that [his/her/nonbinary pronoun] conduct was despicable and was done with a willful and knowin; A disregard of the rights or safety of another. A person acts wit! the person’s con duct and knowing disregard when the person is aware of th ie dangerous consequences of deliberately fails to avoid those consequences. 10 “Despicable conduct” is conduct that is so vile, base, or 11 contemptible that it would be looked down on and despised by reasonable people. 12 13 (CACI No. 3114.) 14 “Oppression” means that [[name of individual defendant]’s/[name of employer defendant]’s employee’s] 15 conduct was despicable and _ subjected name oO! plaintiff/decedent] to cruel and unjust hardship in knowing 16 disregard of [his/her/nonbinary pronoun] rights. 17 “Despicable conduct” is conduct that is so vile, base, or contemptible that it would be looked down on and despised 18 by reasonable people. 19 (CACI No. 3115.) 20 “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact with the intention of depriving 21 [name of plaintiff/decedent] of property or of a legal right or otherwise to cause [name of plaintiff/decedent] injury. 22 23 (CACI No. 3116.) 24 Here, all of the above-noted definitions and standards for enhanced remedies are 25 improper subjects for expert opinion. As defined, recklessness, malice, oppression, and 26 fraud) all concern the subjective state of mind of the actor, and these are ultimate facts 27 for a jury to decide based on inferences from the evidence. Moreover, given that a jury 28 is fully capable of arriving at conclusions regarding the state of mind of an actor, expert 01303861.WPD 6 MOTION IN LIMINE NO. 7 TO PRECLUDE RECKLESSNESS able conduct, opinions will not assist the jury. The same is true of the definition of despic would as the standard is one specifically designed to apply to how “reasonable people” view the conduct. Accordingly, any expert opinion on the elements or definitions of recklessness, malice, and/or fraud, should be excluded. Experts should also be precluded from testifying on alleged statutory or regulatory violations. These are likewise ultimate issues of law that a jury must decide based on the evidence. and the subject of improper expert opinion. Accordingly, experts should be precluded from offering opinions on statutory or regulatory violations. Vv. 10 CONCLUSION 11 Based on the foregoing, defendant requests an orderin limine precluding experts 12 from offering testimony or opinions regarding the statutory definitions of recklessness, 13 oppression, malice, and fraud on plaintiffs’ cause of action for elder neglect. Defendant 14 also requests an order in limine precluding experts from offering testimony or opinions 15 as to whether any statutes or regulations were violated by the defendant and/or their 16 employees. 17 Dated: December 1, 2020 18 SCHUERING ZIMMERMAN & DOYLE, LLP 19 20 B