Preview
1 ROBERT H. ZIMMERMAN, BAR No. 84345
SCHUERING ZIMMERMAN & DOYLE, LLP
2 400 University Avenue 12/3/2020
Sacramento, California 95825-6502
3 (916) 567-0400
FAX: 568-0400
4
5 Attorneys for Defendant ENLOE MEDICAL CENTER
6
7
8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE
9
10 PATSY NEWfON, individually; HAROLD NO. 20CV01091
NEWfON, individually; SUZANNE
11 BOLDEN, individually, ASSIGNED TO JUDGE TAMARA L.
MOSBARGER FOR ALL PURPOSES
12 Plaintiffs,
MIL NO. 27
13 vs.
ENLOE MEDICAL CENTER'S MOTION
14 ENLOE MEDICAL CENTER; and DOES 1 - IN UMINE PRECLUDING PLAINTIFFS'
50, et al., COUNSEL FROM USING PHRASES
15 "IMPORTANT" OR "CRITICALLY
Defendants. IMPORTANT"
16
Date: December 10, 2020
17 Time: 1:30 p.m.
Dept: 1
18
Action Filed: May 29, 2020
19 Trial Date: December 14, 2020
20 Defendant ENLOE MEDICAL CENTER requests an order precluding plaintiffs'
21 counsel from questioning defense witnesses by phrasing the question as whether
22 something is ''important," or "critically important." This motion in limine is made pursuant
23 to Evidence Code sections 403, 765(a), and 702.
24 I.
25 INTRODUCTION
26 Over 40 individuals have been deposed in this matter. In the course of those
27 depositions, counsel for plaintiffs has repeatedly asked witnesses questions regarding
28 whether something is "important" or critically important." For example, during the
01304223.WPD
MIL NO. 27 - MOTION IN LIMINE PRECLUDING PLAINTIFFS' COUNSEL
FROM USING PHRASES "IMPORTANT" OR "CRITICALLY IMPORTANT"
1 deposition of Cynthia Barbo, R.N., Mr. Laird, counsel for plaintiffs, asked whether its
2 "important ... to see when the patient was turned and repositioned." (Deposition of
3 Cynthia Barbo (Barbo Deposition) at 95:14-23, Exhibit A to Declaration of Robert H.
4 Zimmerman (Zimmerman Declaration) filed herewith.) Mr. Laird also asked, "What's
5 more important, care rendered to a patient or documentation?" (Barbo Deposition at
6 131:11-12, Exhibit A.)
7 During the deposition of Marko Gutierrez, R.N., Mr. Laird asked, "Why is it critically
8 important to document every time you tum and reposition a patient?" (Deposition of
9 Marko Gutierrez (Gutierrez Deposition) at 22:14-15, Exhibit B to Zimmerman Declaration.)
10 Mr. Laird also asked, "Is it critically important to accurately chart the care that you give
11 when you're doing -when you're providing that care?" (Gutierrez Deposition at 40:16-18,
12 Exhibit 8.)
13 Such form of questioning should be excluded pursuant to Evidence Code sections
14 352, 403(a)(2), 702(a), and 765(a).
15 II.
16 ARGUMENT
17
A. Questions Seeking Testimony Relating to "Importance" or "Critical Importance"
18 Should Be Excluded Because They Are More Prejudicial Than Probative
19 The Court in its discretion may exclude evidence if its probative value is
20 substantially outweighed by the probability that its admission will create substantial
21 danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code,
22 §352.) Here, plaintiffs allege elder abuse pursuant to Welfare and Institutions Code
23 sections 15610,57, 15657, and Civil Code section 3294(b). To prove the standard of care
24 element of the elder abuse cause of action, plaintiffs must prove an Enloe Medical Center
25 employee failed to use that degree of care that a reasonable person in the same situation
26 would have used in assisting in personal hygiene or in the provision of food, clothing, or
27 shelter. (See CACI 3103.)
28 Ill
01304223.WPD 2
MIL NO. 27 - MOTION IN LIMINE PRECLUDING PLAINTIFFS' COUNSEL
FROM USING PHRASES "IMPORTANT" OR "CRITICALLY IMPORTANT"
1 Generally, in negligence cases arising from the rendering of professional services,
2 the standard of care against which the professional's acts are measured remains a matter
3 peculiarly within the knowledge of experts. (Unigard Ins. Group v. O'Flaherty & Be/gum
4 (1995) 38 Cal.App.4th 1229, 1239.) Mr. Laird's questions about "importance" when
5 inquiring of witnesses does nothing to address whether Enloe Medical Center employees
6 fell below the standard of care in the care and treatment of Patsy Newton. Furthermore,
7 such questions may be confusing to the jury, as there may potentially be an instance
8 where an employee failed to do an "important" act, but that failure was still not below the
9 standard of care. The jury may confuse "importance" with the standard of care if counsel
10 for plaintiffs asks questions as he did in deposing witnesses. As such, questioning of
11 "importance" should be excluded.
12
B. Questions Asking Whether Something Is "Important" or "Critically Important"
13 Should Be Excluded Because They Will Lack Foundation
14 The proponent of proffered evidence has the burden of producing evidence as to
15 the existence of the preliminary fact, and the proffered evidence is inadmissible unless
16 the court finds that there is evidence sufficient to sustain a finding of the existence of the
17 preliminary fact, when the preliminary fact is the personal knowledge of a witness
18 concerning the subject matter of his testimony. (Evid. Code, §403(a)(2).) If counsel's
19 conduct during deposition questioning is any indication, he will probably ask witnesses
20 whether something is "important" or "critically important" without laying foundation to
21 explain what that even means. Such questioning techniques should be excluded pursuant
22 to Evidence Code section 403(a)(2).
23 C. Questions Asking Whether Something Is "lm ortant" or "Critically Important"
Should Be Excluded Because The Witness WilrNot Have "Personal Knowledge"
24 Necessary to Answer the Question
25 "[T] he testimony of a witness concerning a particular matter is inadmissible unless
26 he has personal knowledge of the matter. Against the objection of a party, such personal
27 knowledge must be shown before the witness may testify concerning the matter." (Evid.
28 Code, §702(a).) Any question as to whether something is "important" or "critically
01304223.WPD 3
MIL NO. 27 - MOTION IN LIMINE PRECLUDING PLAINTIFFS' COUNSEL
FROM USING PHRASES 11IMPORTANT' OR "CRITICALLY IMPORTANT"
important" will assume the witness has knowledge as to what is meant by "important."
2 Thus, such questioning techniques should be excluded pursuant to Evidence Code
3 section 702(a).
4
D. Questions Asking Whether Something ls "Important" or "Critically Important"
5 Should Be Excluded Because They Are Vague and Ambiguous
6 A judge shall exercise reasonable control over the mode of interrogation of a
7 witness so as to make interrogation as rapid, distinct, and as effective for the
8 ascertainment of the truth. (Evid. Code, §765(a).) If counsel asks witnesses about
9 "importance" or "critical importance," without there being a definition for such verbiage,
10 then the witness will be required to assume their own definition of "importance" when
11 answering the question. That assumed definition of the term, of course, will not be
12 available for court, counsel, and jurors to evaluate.
13 If the court were to allow the witness to answer questions based on this assumed
14 definition, it would prohibit the effective ascertainment of truth. Such questioning
15 techniques should be excluded pursuant to Evidence Code section 765(a).
16 Ill.
17 CONCLUSION
18 Defendant Enloe Medical Center requests that all questions relating to "importance" or
19 "critical importance" be excluded at trial.
20 Dated: December 2, 2020
21 SCHUERING ZIMMERMAN & DOYLE, LLP
22
23 �ZtAtJt
By_--=-===-=--:--:, =-:-c==,....,....,...-=--=----
ROBERT H. ZIMMERMAN
24 Attorneys for Defendant ENLOE MEDICAL
CENTER
25
26
27
28
01304223.WPD 4
MIL NO. 27 - MOTION IN LIMINE PRECLUDING PLAINTIFFS' COUNSEL
FROM USING PHRASES "IMPORTANT" OR "CRITICALLY IMPORTANT"
Preview
1 ROBERT H. ZIMMERMAN, BAR No. 84345 SCHUERING ZIMMERMAN & DOYLE, LLP 2 400 University Avenue 12/3/2020 Sacramento, California 95825-6502 3 (916) 567-0400 FAX: 568-0400 4 5 Attorneys for Defendant ENLOE MEDICAL CENTER 6 7 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE 9 10 PATSY NEWfON, individually; HAROLD NO. 20CV01091 NEWfON, individually; SUZANNE 11 BOLDEN, individually, ASSIGNED TO JUDGE TAMARA L. MOSBARGER FOR ALL PURPOSES 12 Plaintiffs, MIL NO. 27 13 vs. ENLOE MEDICAL CENTER'S MOTION 14 ENLOE MEDICAL CENTER; and DOES 1 - IN UMINE PRECLUDING PLAINTIFFS' 50, et al., COUNSEL FROM USING PHRASES 15 "IMPORTANT" OR "CRITICALLY Defendants. IMPORTANT" 16 Date: December 10, 2020 17 Time: 1:30 p.m. Dept: 1 18 Action Filed: May 29, 2020 19 Trial Date: December 14, 2020 20 Defendant ENLOE MEDICAL CENTER requests an order precluding plaintiffs' 21 counsel from questioning defense witnesses by phrasing the question as whether 22 something is ''important," or "critically important." This motion in limine is made pursuant 23 to Evidence Code sections 403, 765(a), and 702. 24 I. 25 INTRODUCTION 26 Over 40 individuals have been deposed in this matter. In the course of those 27 depositions, counsel for plaintiffs has repeatedly asked witnesses questions regarding 28 whether something is "important" or critically important." For example, during the 01304223.WPD MIL NO. 27 - MOTION IN LIMINE PRECLUDING PLAINTIFFS' COUNSEL FROM USING PHRASES "IMPORTANT" OR "CRITICALLY IMPORTANT" 1 deposition of Cynthia Barbo, R.N., Mr. Laird, counsel for plaintiffs, asked whether its 2 "important ... to see when the patient was turned and repositioned." (Deposition of 3 Cynthia Barbo (Barbo Deposition) at 95:14-23, Exhibit A to Declaration of Robert H. 4 Zimmerman (Zimmerman Declaration) filed herewith.) Mr. Laird also asked, "What's 5 more important, care rendered to a patient or documentation?" (Barbo Deposition at 6 131:11-12, Exhibit A.) 7 During the deposition of Marko Gutierrez, R.N., Mr. Laird asked, "Why is it critically 8 important to document every time you tum and reposition a patient?" (Deposition of 9 Marko Gutierrez (Gutierrez Deposition) at 22:14-15, Exhibit B to Zimmerman Declaration.) 10 Mr. Laird also asked, "Is it critically important to accurately chart the care that you give 11 when you're doing -when you're providing that care?" (Gutierrez Deposition at 40:16-18, 12 Exhibit 8.) 13 Such form of questioning should be excluded pursuant to Evidence Code sections 14 352, 403(a)(2), 702(a), and 765(a). 15 II. 16 ARGUMENT 17 A. Questions Seeking Testimony Relating to "Importance" or "Critical Importance" 18 Should Be Excluded Because They Are More Prejudicial Than Probative 19 The Court in its discretion may exclude evidence if its probative value is 20 substantially outweighed by the probability that its admission will create substantial 21 danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, 22 §352.) Here, plaintiffs allege elder abuse pursuant to Welfare and Institutions Code 23 sections 15610,57, 15657, and Civil Code section 3294(b). To prove the standard of care 24 element of the elder abuse cause of action, plaintiffs must prove an Enloe Medical Center 25 employee failed to use that degree of care that a reasonable person in the same situation 26 would have used in assisting in personal hygiene or in the provision of food, clothing, or 27 shelter. (See CACI 3103.) 28 Ill 01304223.WPD 2 MIL NO. 27 - MOTION IN LIMINE PRECLUDING PLAINTIFFS' COUNSEL FROM USING PHRASES "IMPORTANT" OR "CRITICALLY IMPORTANT" 1 Generally, in negligence cases arising from the rendering of professional services, 2 the standard of care against which the professional's acts are measured remains a matter 3 peculiarly within the knowledge of experts. (Unigard Ins. Group v. O'Flaherty & Be/gum 4 (1995) 38 Cal.App.4th 1229, 1239.) Mr. Laird's questions about "importance" when 5 inquiring of witnesses does nothing to address whether Enloe Medical Center employees 6 fell below the standard of care in the care and treatment of Patsy Newton. Furthermore, 7 such questions may be confusing to the jury, as there may potentially be an instance 8 where an employee failed to do an "important" act, but that failure was still not below the 9 standard of care. The jury may confuse "importance" with the standard of care if counsel 10 for plaintiffs asks questions as he did in deposing witnesses. As such, questioning of 11 "importance" should be excluded. 12 B. Questions Asking Whether Something Is "Important" or "Critically Important" 13 Should Be Excluded Because They Will Lack Foundation 14 The proponent of proffered evidence has the burden of producing evidence as to 15 the existence of the preliminary fact, and the proffered evidence is inadmissible unless 16 the court finds that there is evidence sufficient to sustain a finding of the existence of the 17 preliminary fact, when the preliminary fact is the personal knowledge of a witness 18 concerning the subject matter of his testimony. (Evid. Code, §403(a)(2).) If counsel's 19 conduct during deposition questioning is any indication, he will probably ask witnesses 20 whether something is "important" or "critically important" without laying foundation to 21 explain what that even means. Such questioning techniques should be excluded pursuant 22 to Evidence Code section 403(a)(2). 23 C. Questions Asking Whether Something Is "lm ortant" or "Critically Important" Should Be Excluded Because The Witness WilrNot Have "Personal Knowledge" 24 Necessary to Answer the Question 25 "[T] he testimony of a witness concerning a particular matter is inadmissible unless 26 he has personal knowledge of the matter. Against the objection of a party, such personal 27 knowledge must be shown before the witness may testify concerning the matter." (Evid. 28 Code, §702(a).) Any question as to whether something is "important" or "critically 01304223.WPD 3 MIL NO. 27 - MOTION IN LIMINE PRECLUDING PLAINTIFFS' COUNSEL FROM USING PHRASES 11IMPORTANT' OR "CRITICALLY IMPORTANT" important" will assume the witness has knowledge as to what is meant by "important." 2 Thus, such questioning techniques should be excluded pursuant to Evidence Code 3 section 702(a). 4 D. Questions Asking Whether Something ls "Important" or "Critically Important" 5 Should Be Excluded Because They Are Vague and Ambiguous 6 A judge shall exercise reasonable control over the mode of interrogation of a 7 witness so as to make interrogation as rapid, distinct, and as effective for the 8 ascertainment of the truth. (Evid. Code, §765(a).) If counsel asks witnesses about 9 "importance" or "critical importance," without there being a definition for such verbiage, 10 then the witness will be required to assume their own definition of "importance" when 11 answering the question. That assumed definition of the term, of course, will not be 12 available for court, counsel, and jurors to evaluate. 13 If the court were to allow the witness to answer questions based on this assumed 14 definition, it would prohibit the effective ascertainment of truth. Such questioning 15 techniques should be excluded pursuant to Evidence Code section 765(a). 16 Ill. 17 CONCLUSION 18 Defendant Enloe Medical Center requests that all questions relating to "importance" or 19 "critical importance" be excluded at trial. 20 Dated: December 2, 2020 21 SCHUERING ZIMMERMAN & DOYLE, LLP 22 23 �ZtAtJt By_--=-===-=--:--:, =-:-c==,....,....,...-=--=---- ROBERT H. ZIMMERMAN 24 Attorneys for Defendant ENLOE MEDICAL CENTER 25 26 27 28 01304223.WPD 4 MIL NO. 27 - MOTION IN LIMINE PRECLUDING PLAINTIFFS' COUNSEL FROM USING PHRASES "IMPORTANT" OR "CRITICALLY IMPORTANT"