Preview
1 ROBERT H. ZIMMERMAN, BAR No. 84345
SCHUERING ZIMMERMAN & DOYLE, LLP
2 400 University Avenue
Sacramento, California 95825-6502
3 (916) 567-0400 12/3/2020
FAX: 568-0400
4
5 Attorneys for Defendant ENLOE MEDICAL CENTER
6
7
8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE
9
10 PATSY NEWTON, individually; HAROLD NO. 20CV01091
NEWTON, individually; SUZANNE
11 BOLDEN, individually, Assigned to Judge Tamara L. Mosbarger
for All Purposes
12 Plaintiffs,
DEFENDANT'S MOTION IN LIMINE NO. 26 TO
13 vs. PRECLUDE PLAINTIFFS FROM
INTRODUCING EVIDENCE OF ALLEGED
14 ENLOE MEDICAL CENTER; and DOES 1 REGULATORY VIOLATIONS
50, et al.,
15 Date: December 10, 2020
Defendants. Time: 1:30 p.m.
16 Dept: 1
Action Filed: May 29, 2020
17 Trial Date: December 14, 2020
18 Defendant ENLOE MEDICAL CENTER hereby moves to preclude plaintiffs,
19 plaintiffs' counsel, witnesses, and experts from testifying or referencing in any way that
20 defendant violated any statutes. The introduction of alleged regulatory violations is
21 irrelevant, unduly prejudicial and usurps the function of the jury.
22 I.
23 INTRODUCTION
24 This is an alleged elder abuse action arising out of a ten day hospitalization.
25 During the hospitalization, plaintiff Patsy Newton developed a deep tissue injury.
26 During discovery plaintiffs, contended defendant violated multiple statutes and
27 regulations, many of which fall under California's Title 22. (See plaintiff's response to
28 form interrogatory 14.1, Exhibit A, to the Declaration of Robert H. Zimmerman.)
01303889.WPD
DEFENDANT'S MOTION IN LIMINE NO. 26_ TO PRECLUDE PLAINTIFFS FROM INTRODUCING EVIDENCE
OF ALLEGED REGULATORY VIOLATIONS
1 Plaintiffs have set forth one single cause of action for neglect. The standard of care
2 in an elder neglect case can only be set by expert testimony. The only issue in this case
3 is whether defendant met the standard of care. Therefore, breaches, violations, or alleged
4 failures to follow regulations or statutes are irrelevant, inappropriate and unduly
5 prejudicial.
6 Defendant moves for an order requested the standard of care only be set by expert
7 testimony. Furthermore, defendant requests that plaintiffs' counsel, plaintiffs, and their
8 witnesses refrain from commenting, insinuating, or referring to Joint Commission
9 Guidelines, Title 22 regulatory suggestions, "never events" and anything other than the
10 standard of care being breached or non-complied with.
11 II.
12 ARGUMENT
13 A. ONLY ALLEGED BREACHES IN THE STANDARD OF CARE ARE
APPLICABLE AND ADMISSIBLE
14
15 Evidence Code section 350 states, "no evidence is admissible except relevant
16 evidence." In defining relevant evidence, Evidence Code section 210 states:
17 Relevant evidence means evidence, including evidence
relevant to the credibility of the witness or hearsay declarant,
18 having any tendency and reason to prove or disprove any
disputed fact that is of consequence to the determination of
19 the action.
20 (See People v. Kelly (1992) 1 Cal. 4th 495, 523 (only relevant evidence is admissible).)
21 The court in its discretion may exclude evidence if its probative value is
22 substantially outweighed by the probability that its admission will (a) necessitate undue
23 consumption of time or (b) create substantial danger of undue prejudice, of confusing the
24 issues, or of misleading the jury. (Evid. Code, § 352; see also People v. Cardenas (1982)
25 31 Cal. 3d 897, 904 (if the prejudicial effect of admitting evidence outweighs the probative
26 value, the trial court should exclude the evidence).)
27 The breach of a "procedural" statute or regulation would not be relevant unless it
28 "result[ed] in harm." (Villano v. Waterman Convalescent Hospital, Inc. (2010) 181
01303889.WPD 2
DEFENDANT'S MOTION IN LIMINE NO. 26_ TO PRECLUDE PLAINTIFFS FROM INTRODUCING EVIDENCE
OF ALLEGED REGULATORY VIOLATIONS
1 Cal.App.4th 1189, 1194.) To illustrate the meaning of "procedural," the Villano court
2 described a hypothetical regulation and characterized an expert's opinion that plaintiff
3 should not have been given drug "A"because this regulation had not been complied with
4 as procedural, versus an expert's opinion that plaintiff should not have been given drug
5 "A" because it was not medically indicated, which would be substantive. (Id. at pp.
6 1194-1195.) Also, the court held that if a plaintiff was incompetent or incapacitated, the
7 failure to obtain informed consent from a surrogate, in compliance with statutorily
8 mandated procedure would be procedural. Accordingly, the court held that a failure to
9 follow those procedures would be irrelevant unless it resulted in harm. (Id. at p. 1195.)
10 Pursuant to Villano, evidence of alleged regulatory or statutory violations that caused no
11 harm is undeniably irrelevant. For this reason, the Court should preclude any such
12 evidence at time of trial. (Evid. Code, §§210, 3 5 0.)
13 This is an elder neglect case.Under Welf.& Inst.Code section 15 610.5 7, "neglect "
14 is generally defined as the "negligent failure ...to exercise that degree of care that a
15 reasonable person in a like position would exercise." (Welf. & Inst. Code, Section
16 15 610.5 7(a )(l).) The definition of neglect sounds in professional negligence, which
17 requires expert testimony to establish the standard of care.
18 As a general rule, the testimony of an expert witness is required in every
19 professional negligence case to establish the applicable standard of care, whether that
20 standard was met or breached by the defendant, and whether any negligence by the
21 defendant caused the plaintiffs damages.(Scott v. Rayhrer (20 10 ) 185 Cal.App.4th 15 3 5,
22 15 4 2-15 4 3,footnote and internal citations omitted.) It is beyond any dispute that the
23 standard of care can only be established by expert testimony. (Landeros v. Flood (197 6)
24 17 Cal.3d 399, 4 10.) Whether a hospital or its nurses and employee physicians acted in
25 a manner consistent with the applicable standard of care is an issue which can only be
26 established by the testimony of experts, unless the conduct required by the particular
27 circumstances is within the common knowledge of the layman. (Landeros v. Flood,
28 supra, 17 Cal.3d at p. 4 08.) The prevailing standard of care and the propriety of particular
01303889.WPD 3
DEFENDANT'S MOTION IN LIMINE NO. 26_ TO PRECLUDE PLAINTIFFS FROM INTRODUCING EVIDENCE
OF ALLEGED REGULATORY VIOLATIONS
1 conduct is not a matter of general knowledge. Expert testimony on such matters is
2 conclusive and cannot be disregarded. (Folk v. Kilk, supra, 53 Cal. App.3d at p. 185.)
3 As stated above, this is an elder neglect case. The trier of fact's role in this case is
4 to determine whether the care and treatment was within the standard of care.
5 Defendant's care for plaintiff Patsy Newton is separate and distinct from allegedly not
6 complying with state and federal regulations. Defendant's alleged actions that failed to
7 comply with regulations is irrelevant regarding the issues to be determined by the trier of
8 fact. The relevant issue is the standard of care. Therefore, any reference that defendant
9 failed to comply with a regulation or statute as grounds for liability is irrelevant and should
10 be excluded.
11 B. ANY REFERENCE TO THE SUBJECT CARE AND TREATMENT AS A "NEVER
EVENT" MUST BE PRECLUDED
12
13 According to the National Quality Forum (NQF), "never events" are errors in
14 medical care that are clearly identifiable, preventable, and serious in their consequences
15 for patients, and that indicate a real problem in the safety and credibility of a health care
16 facility. Examples of "never events" include surgery on the wrong body part; foreign body
17 left in a patient after surgery; mismatched blood transfusion; major medication error;
18 severe "pressure ulcer" acquired in the hospital; and preventable post-operative deaths.
19 NQF developed this list with support from Centers for Medicare and Medicaid Services.
20 (Eliminating Serious, Preventable, and Costly Medical Errors-Never Events,
21 https://www.cms.gov/Newsroom, May 18, 2006, see Exhibit B, Declaration of Robert H.
22 Zimmerman.)
23 It is anticipated plaintiff will seek to introduce evidence that a Hospital Acquired
24 Pressure Ulcer (HAPU) is a never event. In the same vein as the above arguments, such
25 an assertion is irrelevant, inflammatory, and misleading. (Evidence Code §§210, 350, and
26 352.) The only issues in this case is whether defendant complied with the standard of
27 care. The characterization of the HAPU as a "never event" is totally extraneous to the
28 issues at hand and will mislead the jury. Therefore, it has no probative value and must
01303889.WPD 4
DEFENDANT'S MOTION IN LIMINE NO. 26_ TO PRECLUDE PLAINTIFFS FROM INTRODUCING EVIDENCE
OF ALLEGED REGULATORY VIOLATIONS
1 be precluded.
2 C. PWNTIFF CANNOT INTRODUCE EVIDENCE OF AN ALLEGED
STATUTORYVIOLATION THAT CAUSED NO HARM
3
4 Fundamental to tort law in claims for negligence is the concept of proximate cause
5 or causation. Causation provides the essential link between the negligent act and the
6 damage suffered by the party seeking recovery. The breach of the duty or negligent act
7 or omission must be the "proximate" cause (termed "legal" cause in the Torts
8 Restatement) of a plaintiffs injury. (Witkin, Summary of California Law (9th ed.) 980,
9 Torts section 965 page 354.)
10 As noted by the court of appeal, 'We understand the law still to require that a plaintiff,
11 in order to establish liability, must prove more than abstract negligence unconnected to the
12 injury." (Noble v. Los Angeles Dodgers, Inc. (1985) 168 Cal.App.3d 912, 916.)
13 Plaintiffs bear the burden of pleading and proving the element of causation in their
14 claim for damages. Simply stated, before the plaintiff may be permitted to recover, a
15 negligent act which satisfies all of the elements is required, i.e., breach of duty, proximate
16 cause, and injury connected to the breach of duty. Since it is anticipated plaintiffs will
17 attempt to introduce evidence of alleged breaches of policies and procedures, TJC
18 guidelines, and California Code of Regulations, Title 22, which did not cause plaintiff Patsy
19 Newton's injury or change the outcome of her care, such evidence, even if assumed to
20 constitute a breach of duty, does not rise to the level of negligent conduct as it is
21 unconnected to any injury.
22 In Jones v. Ortho Pharmaceutical Co. (1985) 163 Cal.App.3d 396, the Court of
23 Appeal observed:
24 The plaintiff must therefore produce evidence which supports
a logical inference in his favor and which does more than
25 merely permit speculation or conjuncture. (Morgenroth v.
Pacific Medical Centers. Inc. (1976) 54 Cal.App.3d 521, 530, 531
26 [citations omitted].) If a plaintiff produces no substantial
evidence of liability or proximate cause then the granting of a
27 nonsuit is proper. (Rufo v. N.B. C. National Broadcasting
Company (1959) 166 Cal.App.2d 714, 720 [citations omitted].)
28 (Jones v. Ortho Pharmaceutical, supra, 163 Cal. App. at p.
402.)
01303889.WPD 5
DEFENDANT'S MOTION IN LIMINE NO. 26_ TO PRECLUDE PLAINTIFFS FROM INTRODUCING EVIDENCE
OF ALLEGED REGULATORY VIOLATIONS
1 In Jones, supra, the court was faced with plaintiff's claim that her cancerous
2 condition was caused by ingestion of defendant's contraceptive drug. The trial court
3 granted defendant's motion for nonsuit, which was affirmed on appeal. The Court of
4 Appeal described the testimony of the plaintiffs medical experts as "uncertain" and
5 speculative and noted: "[u]nder the circumstances, we can only conclude that the
6 plaintiff did not establish a prima fade case and that the motion for nonsuit was properly
7 granted." (Id. at p. 404.)
8 The following language from Jones is particularly appropriate for the facts of the
9 case herein:
10 In the instant case, the only evidence relating to the causal
connection between Ortho-Novum SQ and plaintiffs
11 precancerous condition is the highly conjectural and
ambiguous testimony of Ors. Catlin and Pohcar that the
12 ingestion of the drug may have had some effect on the
development or progression of the disease. The question is
13 whether such evidence meets the test of proximate cause.
We believe it does not.
14
The law is well settled that in a personal injury action,
15 causation must be proved within a reasonable medical
probability based upon competent expert testimony. Mere
16 possibility alone is insufficient to establish a prima fade case.
l Citations omitted.) That there is distinction between a
17 reasonable medical 'probability' and a medical 'possibility'
needs littlediscussion. There can be many possible causes
18 indeed, an infinite number of circumstances which can
produce an injury or disease. A possible cause only becomes
19 'probable' when, in the absence of other reasonable causal
connections, it becomes more likely than not, that the injury
20 was a result of its action. This is the outer limit of inference
upon which an issue may be submitted to the jury. [Citations
21 omitted.] (Id. at pp. 402-403.)
22 Thus, by disallowing any evidence of alleged statutory or regulatory violations,
23 which do not correlate to a specific harm to the plaintiff, negates the necessity of allowing
24 the jury to draw improper inferences as to causation or damage. Furthermore, because
25 this is an action related to the medical care provided, it is incumbent upon the plaintiff to
26 prove negligence including the elements of causation and injury through expert
27 testimony. (Landeros v. Flood, supra, 17 Cal.3d at p. 408; Jones v. Ortho Pharmaceutical
28 Corp., supra, 163 Cal.App.3d at p. 402.)
01303889.WPD 6
DEFENDANT'S MOTION IN LIMINE NO. 26_ TO PRECLUDE PLAINTIFFS FROM INTRODUCING EVIDENCE
OF ALLEGED REGULATORY VIOLATIONS
1 Evidence concerning alleged statutory or regulatory violations that caused no harm
2 to plaintiff undoubtedly fails to support plaintiffs claims. Instead, this evidence would
3 merely serve to prejudice defendant and confuse the issues, especially as they pertain to
4 the applicable standard of care, the breach thereof, and the causation of plaintiffs alleged
5 injuries. Consequently, the Court should exclude any such evidence pertaining to
6 defendant's alleged statutory or regulatory violations that caused no harm.
7 III.
8 CONCLUSION
9 Defendant respectfully requests an order in conformity with the above arguments
10 and precedents.
11 Dated: November30 ,2020
12 SCHUERING ZIMMERMAN & DOYLE, LLP
1urv--
13
14 By
Preview
1 ROBERT H. ZIMMERMAN, BAR No. 84345 SCHUERING ZIMMERMAN & DOYLE, LLP 2 400 University Avenue Sacramento, California 95825-6502 3 (916) 567-0400 12/3/2020 FAX: 568-0400 4 5 Attorneys for Defendant ENLOE MEDICAL CENTER 6 7 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE 9 10 PATSY NEWTON, individually; HAROLD NO. 20CV01091 NEWTON, individually; SUZANNE 11 BOLDEN, individually, Assigned to Judge Tamara L. Mosbarger for All Purposes 12 Plaintiffs, DEFENDANT'S MOTION IN LIMINE NO. 26 TO 13 vs. PRECLUDE PLAINTIFFS FROM INTRODUCING EVIDENCE OF ALLEGED 14 ENLOE MEDICAL CENTER; and DOES 1 REGULATORY VIOLATIONS 50, et al., 15 Date: December 10, 2020 Defendants. Time: 1:30 p.m. 16 Dept: 1 Action Filed: May 29, 2020 17 Trial Date: December 14, 2020 18 Defendant ENLOE MEDICAL CENTER hereby moves to preclude plaintiffs, 19 plaintiffs' counsel, witnesses, and experts from testifying or referencing in any way that 20 defendant violated any statutes. The introduction of alleged regulatory violations is 21 irrelevant, unduly prejudicial and usurps the function of the jury. 22 I. 23 INTRODUCTION 24 This is an alleged elder abuse action arising out of a ten day hospitalization. 25 During the hospitalization, plaintiff Patsy Newton developed a deep tissue injury. 26 During discovery plaintiffs, contended defendant violated multiple statutes and 27 regulations, many of which fall under California's Title 22. (See plaintiff's response to 28 form interrogatory 14.1, Exhibit A, to the Declaration of Robert H. Zimmerman.) 01303889.WPD DEFENDANT'S MOTION IN LIMINE NO. 26_ TO PRECLUDE PLAINTIFFS FROM INTRODUCING EVIDENCE OF ALLEGED REGULATORY VIOLATIONS 1 Plaintiffs have set forth one single cause of action for neglect. The standard of care 2 in an elder neglect case can only be set by expert testimony. The only issue in this case 3 is whether defendant met the standard of care. Therefore, breaches, violations, or alleged 4 failures to follow regulations or statutes are irrelevant, inappropriate and unduly 5 prejudicial. 6 Defendant moves for an order requested the standard of care only be set by expert 7 testimony. Furthermore, defendant requests that plaintiffs' counsel, plaintiffs, and their 8 witnesses refrain from commenting, insinuating, or referring to Joint Commission 9 Guidelines, Title 22 regulatory suggestions, "never events" and anything other than the 10 standard of care being breached or non-complied with. 11 II. 12 ARGUMENT 13 A. ONLY ALLEGED BREACHES IN THE STANDARD OF CARE ARE APPLICABLE AND ADMISSIBLE 14 15 Evidence Code section 350 states, "no evidence is admissible except relevant 16 evidence." In defining relevant evidence, Evidence Code section 210 states: 17 Relevant evidence means evidence, including evidence relevant to the credibility of the witness or hearsay declarant, 18 having any tendency and reason to prove or disprove any disputed fact that is of consequence to the determination of 19 the action. 20 (See People v. Kelly (1992) 1 Cal. 4th 495, 523 (only relevant evidence is admissible).) 21 The court in its discretion may exclude evidence if its probative value is 22 substantially outweighed by the probability that its admission will (a) necessitate undue 23 consumption of time or (b) create substantial danger of undue prejudice, of confusing the 24 issues, or of misleading the jury. (Evid. Code, § 352; see also People v. Cardenas (1982) 25 31 Cal. 3d 897, 904 (if the prejudicial effect of admitting evidence outweighs the probative 26 value, the trial court should exclude the evidence).) 27 The breach of a "procedural" statute or regulation would not be relevant unless it 28 "result[ed] in harm." (Villano v. Waterman Convalescent Hospital, Inc. (2010) 181 01303889.WPD 2 DEFENDANT'S MOTION IN LIMINE NO. 26_ TO PRECLUDE PLAINTIFFS FROM INTRODUCING EVIDENCE OF ALLEGED REGULATORY VIOLATIONS 1 Cal.App.4th 1189, 1194.) To illustrate the meaning of "procedural," the Villano court 2 described a hypothetical regulation and characterized an expert's opinion that plaintiff 3 should not have been given drug "A"because this regulation had not been complied with 4 as procedural, versus an expert's opinion that plaintiff should not have been given drug 5 "A" because it was not medically indicated, which would be substantive. (Id. at pp. 6 1194-1195.) Also, the court held that if a plaintiff was incompetent or incapacitated, the 7 failure to obtain informed consent from a surrogate, in compliance with statutorily 8 mandated procedure would be procedural. Accordingly, the court held that a failure to 9 follow those procedures would be irrelevant unless it resulted in harm. (Id. at p. 1195.) 10 Pursuant to Villano, evidence of alleged regulatory or statutory violations that caused no 11 harm is undeniably irrelevant. For this reason, the Court should preclude any such 12 evidence at time of trial. (Evid. Code, §§210, 3 5 0.) 13 This is an elder neglect case.Under Welf.& Inst.Code section 15 610.5 7, "neglect " 14 is generally defined as the "negligent failure ...to exercise that degree of care that a 15 reasonable person in a like position would exercise." (Welf. & Inst. Code, Section 16 15 610.5 7(a )(l).) The definition of neglect sounds in professional negligence, which 17 requires expert testimony to establish the standard of care. 18 As a general rule, the testimony of an expert witness is required in every 19 professional negligence case to establish the applicable standard of care, whether that 20 standard was met or breached by the defendant, and whether any negligence by the 21 defendant caused the plaintiffs damages.(Scott v. Rayhrer (20 10 ) 185 Cal.App.4th 15 3 5, 22 15 4 2-15 4 3,footnote and internal citations omitted.) It is beyond any dispute that the 23 standard of care can only be established by expert testimony. (Landeros v. Flood (197 6) 24 17 Cal.3d 399, 4 10.) Whether a hospital or its nurses and employee physicians acted in 25 a manner consistent with the applicable standard of care is an issue which can only be 26 established by the testimony of experts, unless the conduct required by the particular 27 circumstances is within the common knowledge of the layman. (Landeros v. Flood, 28 supra, 17 Cal.3d at p. 4 08.) The prevailing standard of care and the propriety of particular 01303889.WPD 3 DEFENDANT'S MOTION IN LIMINE NO. 26_ TO PRECLUDE PLAINTIFFS FROM INTRODUCING EVIDENCE OF ALLEGED REGULATORY VIOLATIONS 1 conduct is not a matter of general knowledge. Expert testimony on such matters is 2 conclusive and cannot be disregarded. (Folk v. Kilk, supra, 53 Cal. App.3d at p. 185.) 3 As stated above, this is an elder neglect case. The trier of fact's role in this case is 4 to determine whether the care and treatment was within the standard of care. 5 Defendant's care for plaintiff Patsy Newton is separate and distinct from allegedly not 6 complying with state and federal regulations. Defendant's alleged actions that failed to 7 comply with regulations is irrelevant regarding the issues to be determined by the trier of 8 fact. The relevant issue is the standard of care. Therefore, any reference that defendant 9 failed to comply with a regulation or statute as grounds for liability is irrelevant and should 10 be excluded. 11 B. ANY REFERENCE TO THE SUBJECT CARE AND TREATMENT AS A "NEVER EVENT" MUST BE PRECLUDED 12 13 According to the National Quality Forum (NQF), "never events" are errors in 14 medical care that are clearly identifiable, preventable, and serious in their consequences 15 for patients, and that indicate a real problem in the safety and credibility of a health care 16 facility. Examples of "never events" include surgery on the wrong body part; foreign body 17 left in a patient after surgery; mismatched blood transfusion; major medication error; 18 severe "pressure ulcer" acquired in the hospital; and preventable post-operative deaths. 19 NQF developed this list with support from Centers for Medicare and Medicaid Services. 20 (Eliminating Serious, Preventable, and Costly Medical Errors-Never Events, 21 https://www.cms.gov/Newsroom, May 18, 2006, see Exhibit B, Declaration of Robert H. 22 Zimmerman.) 23 It is anticipated plaintiff will seek to introduce evidence that a Hospital Acquired 24 Pressure Ulcer (HAPU) is a never event. In the same vein as the above arguments, such 25 an assertion is irrelevant, inflammatory, and misleading. (Evidence Code §§210, 350, and 26 352.) The only issues in this case is whether defendant complied with the standard of 27 care. The characterization of the HAPU as a "never event" is totally extraneous to the 28 issues at hand and will mislead the jury. Therefore, it has no probative value and must 01303889.WPD 4 DEFENDANT'S MOTION IN LIMINE NO. 26_ TO PRECLUDE PLAINTIFFS FROM INTRODUCING EVIDENCE OF ALLEGED REGULATORY VIOLATIONS 1 be precluded. 2 C. PWNTIFF CANNOT INTRODUCE EVIDENCE OF AN ALLEGED STATUTORYVIOLATION THAT CAUSED NO HARM 3 4 Fundamental to tort law in claims for negligence is the concept of proximate cause 5 or causation. Causation provides the essential link between the negligent act and the 6 damage suffered by the party seeking recovery. The breach of the duty or negligent act 7 or omission must be the "proximate" cause (termed "legal" cause in the Torts 8 Restatement) of a plaintiffs injury. (Witkin, Summary of California Law (9th ed.) 980, 9 Torts section 965 page 354.) 10 As noted by the court of appeal, 'We understand the law still to require that a plaintiff, 11 in order to establish liability, must prove more than abstract negligence unconnected to the 12 injury." (Noble v. Los Angeles Dodgers, Inc. (1985) 168 Cal.App.3d 912, 916.) 13 Plaintiffs bear the burden of pleading and proving the element of causation in their 14 claim for damages. Simply stated, before the plaintiff may be permitted to recover, a 15 negligent act which satisfies all of the elements is required, i.e., breach of duty, proximate 16 cause, and injury connected to the breach of duty. Since it is anticipated plaintiffs will 17 attempt to introduce evidence of alleged breaches of policies and procedures, TJC 18 guidelines, and California Code of Regulations, Title 22, which did not cause plaintiff Patsy 19 Newton's injury or change the outcome of her care, such evidence, even if assumed to 20 constitute a breach of duty, does not rise to the level of negligent conduct as it is 21 unconnected to any injury. 22 In Jones v. Ortho Pharmaceutical Co. (1985) 163 Cal.App.3d 396, the Court of 23 Appeal observed: 24 The plaintiff must therefore produce evidence which supports a logical inference in his favor and which does more than 25 merely permit speculation or conjuncture. (Morgenroth v. Pacific Medical Centers. Inc. (1976) 54 Cal.App.3d 521, 530, 531 26 [citations omitted].) If a plaintiff produces no substantial evidence of liability or proximate cause then the granting of a 27 nonsuit is proper. (Rufo v. N.B. C. National Broadcasting Company (1959) 166 Cal.App.2d 714, 720 [citations omitted].) 28 (Jones v. Ortho Pharmaceutical, supra, 163 Cal. App. at p. 402.) 01303889.WPD 5 DEFENDANT'S MOTION IN LIMINE NO. 26_ TO PRECLUDE PLAINTIFFS FROM INTRODUCING EVIDENCE OF ALLEGED REGULATORY VIOLATIONS 1 In Jones, supra, the court was faced with plaintiff's claim that her cancerous 2 condition was caused by ingestion of defendant's contraceptive drug. The trial court 3 granted defendant's motion for nonsuit, which was affirmed on appeal. The Court of 4 Appeal described the testimony of the plaintiffs medical experts as "uncertain" and 5 speculative and noted: "[u]nder the circumstances, we can only conclude that the 6 plaintiff did not establish a prima fade case and that the motion for nonsuit was properly 7 granted." (Id. at p. 404.) 8 The following language from Jones is particularly appropriate for the facts of the 9 case herein: 10 In the instant case, the only evidence relating to the causal connection between Ortho-Novum SQ and plaintiffs 11 precancerous condition is the highly conjectural and ambiguous testimony of Ors. Catlin and Pohcar that the 12 ingestion of the drug may have had some effect on the development or progression of the disease. The question is 13 whether such evidence meets the test of proximate cause. We believe it does not. 14 The law is well settled that in a personal injury action, 15 causation must be proved within a reasonable medical probability based upon competent expert testimony. Mere 16 possibility alone is insufficient to establish a prima fade case. l Citations omitted.) That there is distinction between a 17 reasonable medical 'probability' and a medical 'possibility' needs littlediscussion. There can be many possible causes 18 indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes 19 'probable' when, in the absence of other reasonable causal connections, it becomes more likely than not, that the injury 20 was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury. [Citations 21 omitted.] (Id. at pp. 402-403.) 22 Thus, by disallowing any evidence of alleged statutory or regulatory violations, 23 which do not correlate to a specific harm to the plaintiff, negates the necessity of allowing 24 the jury to draw improper inferences as to causation or damage. Furthermore, because 25 this is an action related to the medical care provided, it is incumbent upon the plaintiff to 26 prove negligence including the elements of causation and injury through expert 27 testimony. (Landeros v. Flood, supra, 17 Cal.3d at p. 408; Jones v. Ortho Pharmaceutical 28 Corp., supra, 163 Cal.App.3d at p. 402.) 01303889.WPD 6 DEFENDANT'S MOTION IN LIMINE NO. 26_ TO PRECLUDE PLAINTIFFS FROM INTRODUCING EVIDENCE OF ALLEGED REGULATORY VIOLATIONS 1 Evidence concerning alleged statutory or regulatory violations that caused no harm 2 to plaintiff undoubtedly fails to support plaintiffs claims. Instead, this evidence would 3 merely serve to prejudice defendant and confuse the issues, especially as they pertain to 4 the applicable standard of care, the breach thereof, and the causation of plaintiffs alleged 5 injuries. Consequently, the Court should exclude any such evidence pertaining to 6 defendant's alleged statutory or regulatory violations that caused no harm. 7 III. 8 CONCLUSION 9 Defendant respectfully requests an order in conformity with the above arguments 10 and precedents. 11 Dated: November30 ,2020 12 SCHUERING ZIMMERMAN & DOYLE, LLP 1urv-- 13 14 By