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1 ROBERT H. ZIMMERMAN, Bar No. 84345
Schuering Zimmerman & Doyle, llp 12/4/2020
2 400 University Avenue
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 NEWTON, individually; HAROLD NO. 20CV01091
NEWTON, individually; SUZANNE
11 BOLDEN, individually, Assigned to Judge Tamara L.
Mosbarger for All Purposes
12 Plaintiffs,
ENLOE MEDICAL CENTER'S AMENDED
13 vs. MOTION IN LIMINE NO. 20
DISSATISFIED OTHER PATIENTS
14 ENLOE MEDICAL CENTER; and DOES 1 -
50, et al., Date: December 10, 2020
15 Time: 1:30 p.m.
Defendants. Dept: 1
16
Action Filed: May 29, 2020
17 Trial Date: December 14, 2020
18 I.
19 INTRODUCTION
20 Defendant ENLOE MEDICAL CENTER moves this Court for an Order, in limine,
21 instructing plaintiffs and their witnesses not to refer to, interrogate concerning, comment
22 upon, or attempt to suggest to the jury in any way the existence of, or the circumstances
23 surrounding, other patients allegedly dissatisfied with care and treatment rendered by
24 Defendant ENLOE MEDICAL CENTER or the fact that other patients at Enloe Medical
25 Center have been referred, seen and/or treated by other providers.
26 II.
27 STATUTORY AUTHORITY
28 Code of Civil Procedure section 128 provides:
01305155.WPD l
ENLOE MEDICAL CENTER'S AMENDED MOTION IN LIMINE NO. 20 - DISSATISFIED OTHER PATIENTS
1 "(a) Every court shall have the power to do all of the
2 following:
3
4 "(3) To provide for the orderly conduct of proceedings before
it,or its officers.
5
6
7 "(8) To amend and control its process and order so as to
make them conform to law and justice."
8
9 Evidence Code section 352 provides:
10 "The court in its discretion may exclude evidence if its
probative value is substantially outweighed by the probability
11 that its admission will (a) necessitate undue consumption of
(b) create substantial danger of undue prejudice, of
12 is the issues, or of misleading the jury."
13 III.
14 GENERAL AUTHORITY IN SUPPORT OF MOTION IN LIMINE
15 In Sacramento & San Joaquin Drainage Dist. ex rel. State Reclamation Board v.
16 Reed (1963) 215 Cal.App.2d 60, 68, the court stated:
17 "While the 'motion [at the outset of trial] to exclude'
[evidence] was not a conventional procedure, it was well
18 conceived under the circumstances. . .. The motion in this
case was precisely directed at a well-defined issue. It was an
19 entirely proper mode of objection. Once the trial court ruled
on it, no further objections or motions were necessary to
20 preserve the point for appeal purposes."
21 Following that decision, California courts and commentators have repeatedly
22 recognized and accepted the use of the motion in limine as a proper and effective
23 method to obtain an advance ruling excluding evidence before a motion of the subject
24 is made in front of a jury. (See Helfend v. Southern California Rapid Transit Dist. (1970)
25 2 Cal.3d. 1.)
26 The foregoing authorities support the proposition that a party may present or limit
27 the introduction of evidence by his opponent by making a motion in limine to the trial
28 court, in chambers, prior to trial of the matter.
01305155.WPD 2
ENLOE MEDICAL CENTER'S AMENDED MOTION IN LIMINE NO. 20 - DISSATISFIED OTHER PATIENTS
1 IV.
2 EVIDENCE RELATING TO OTHER PATIENTS IS
NOT RELEVANT TO THE ISSUES BEFORE THIS COURT
3
4 Evidence Code section 1 1 04 prohibits introduction of evidence of a trait of a
5 person's character with respect to care or skill where such evidence is used to prove the
6 quality of his conduct on a specific occasion. At issue in the instant case is the conduct
7 of defendants on a specific occasion; namely, the care and treatment giving rise to this
8 lawsuit. Evidence regarding other patients may not be used by plaintiffs to reflect on or
9 to prove the quality of the conduct of defendants in this case. Accordingly, any such
10 attempt is barred by the provisions of Evidence Code section 1 104.
11 Each medical malpractice case which may be filed and tried against a physician
12 defendant must be judged according to its own merits based on the facts and issues
13 presented by the particular case. (Gin Non Louie v. Chinese Hospital Asso. (1967) 249
14 Cal.App.2d 774, 787; see also, Valentin v. La Societe Francaise de Bienfaisance Mutuelle
15 (1946) 76 Cal.App.2d 1.)
16 The introduction of evidence of the existence of unidentified, allegedly displeased
17 patients violates the rules set forth in Louie, supra, by creating substantial danger that the
18 facts of the instant case will be judged in light of the fact that other patients have allegedly
19 been dissatisfied with defendants' care or sought care from other physicians regardless
20 of the dissimilarity of the issues and/or facts pertaining to those other patients.
21 In addition, the prior conduct of a defendant physician, whether proper or
22 improper, is inadmissible evidence whether offered on behalf of the plaintiff or the
23 defendant physician. ( Costa v. Regents of University of California (1 953) 1 1 6 Cal.App.2d
24 445, 463-464; see also, Burford v. Baker (1942) 53 Cal.App.2d 301 , 309-31 0; McCullough v.
25 Longer (1937) 23 Cal.App.2d 510, 520.)
26 The court is empowered pursuant to Evidence Code section 352 to exclude
27 evidence where the probability exists that its admission will confuse the issues or mislead
28 the jury. The danger of undue prejudice being created in the minds of the jury upon
01305155.WPD 3
ENLOE MEDICAL CENTER'S AMENDED MOTION IN LIMINE NO. 20 - DISSATISFIED OTHER PATIENTS
1 learning that other patients allegedly have been unhappy with care and treatment
2 rendered by defendants or have sought subsequent care and treatment from other
3 physicians, with the implication they were unhappy or suffered poor results in the hands
4 of defendants, substantially outweighs any possible probative value that such evidence
5 could have.
6 V.
INFLAMMATORY AND PREJUDICIAL INFERENCES
7 MAY NOT BE DRAWN BY PARTIES OR COUNSEL
8 Inflammatory and prejudicial inferences made by parties and/or counsel during
9 trial can have serious and detrimental effects upon the determination of the real issues
10 of a case. Where anticipated, the evidence from which such inferences may be drawn
11 is properly excluded pursuant to a motion in limine. (Sacramento & San Joaquin
12 Drainage Dist. ex rel The State Reclamation Board v. Reed (1 963) 2 1 5 Cal.App.2d 60.) In
13 view of the highly prejudicial and confusing effect that evidence of other allegedly
14 dissatisfied patients against defendants would create in the minds of the jury, there
15 appears no reason why such references should be permitted.
16 VI.
17 CONCLUSION
18 Based on the foregoing, this Court is requested to grant defendant's motion in
19 limine and instruct plaintiffs as requested.
20 Dated: December 4, 2020
21 Schuering Zimmerman & Doyle, llp
22
23 By v
ROBERT H. ZIMMERMAN
24 Attorneys for Defendant ENLOE MEDICAL
CENTER
25
26
27
28
01305155.WPD 4
ENLOE MEDICAL CENTER'S AMENDED MOTION IN LIMINE NO. 20 - DISSATISFIED OTHER PATIENTS
Preview
1 ROBERT H. ZIMMERMAN, Bar No. 84345 Schuering Zimmerman & Doyle, llp 12/4/2020 2 400 University Avenue 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 NEWTON, individually; HAROLD NO. 20CV01091 NEWTON, individually; SUZANNE 11 BOLDEN, individually, Assigned to Judge Tamara L. Mosbarger for All Purposes 12 Plaintiffs, ENLOE MEDICAL CENTER'S AMENDED 13 vs. MOTION IN LIMINE NO. 20 DISSATISFIED OTHER PATIENTS 14 ENLOE MEDICAL CENTER; and DOES 1 - 50, et al., Date: December 10, 2020 15 Time: 1:30 p.m. Defendants. Dept: 1 16 Action Filed: May 29, 2020 17 Trial Date: December 14, 2020 18 I. 19 INTRODUCTION 20 Defendant ENLOE MEDICAL CENTER moves this Court for an Order, in limine, 21 instructing plaintiffs and their witnesses not to refer to, interrogate concerning, comment 22 upon, or attempt to suggest to the jury in any way the existence of, or the circumstances 23 surrounding, other patients allegedly dissatisfied with care and treatment rendered by 24 Defendant ENLOE MEDICAL CENTER or the fact that other patients at Enloe Medical 25 Center have been referred, seen and/or treated by other providers. 26 II. 27 STATUTORY AUTHORITY 28 Code of Civil Procedure section 128 provides: 01305155.WPD l ENLOE MEDICAL CENTER'S AMENDED MOTION IN LIMINE NO. 20 - DISSATISFIED OTHER PATIENTS 1 "(a) Every court shall have the power to do all of the 2 following: 3 4 "(3) To provide for the orderly conduct of proceedings before it,or its officers. 5 6 7 "(8) To amend and control its process and order so as to make them conform to law and justice." 8 9 Evidence Code section 352 provides: 10 "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability 11 that its admission will (a) necessitate undue consumption of (b) create substantial danger of undue prejudice, of 12 is the issues, or of misleading the jury." 13 III. 14 GENERAL AUTHORITY IN SUPPORT OF MOTION IN LIMINE 15 In Sacramento & San Joaquin Drainage Dist. ex rel. State Reclamation Board v. 16 Reed (1963) 215 Cal.App.2d 60, 68, the court stated: 17 "While the 'motion [at the outset of trial] to exclude' [evidence] was not a conventional procedure, it was well 18 conceived under the circumstances. . .. The motion in this case was precisely directed at a well-defined issue. It was an 19 entirely proper mode of objection. Once the trial court ruled on it, no further objections or motions were necessary to 20 preserve the point for appeal purposes." 21 Following that decision, California courts and commentators have repeatedly 22 recognized and accepted the use of the motion in limine as a proper and effective 23 method to obtain an advance ruling excluding evidence before a motion of the subject 24 is made in front of a jury. (See Helfend v. Southern California Rapid Transit Dist. (1970) 25 2 Cal.3d. 1.) 26 The foregoing authorities support the proposition that a party may present or limit 27 the introduction of evidence by his opponent by making a motion in limine to the trial 28 court, in chambers, prior to trial of the matter. 01305155.WPD 2 ENLOE MEDICAL CENTER'S AMENDED MOTION IN LIMINE NO. 20 - DISSATISFIED OTHER PATIENTS 1 IV. 2 EVIDENCE RELATING TO OTHER PATIENTS IS NOT RELEVANT TO THE ISSUES BEFORE THIS COURT 3 4 Evidence Code section 1 1 04 prohibits introduction of evidence of a trait of a 5 person's character with respect to care or skill where such evidence is used to prove the 6 quality of his conduct on a specific occasion. At issue in the instant case is the conduct 7 of defendants on a specific occasion; namely, the care and treatment giving rise to this 8 lawsuit. Evidence regarding other patients may not be used by plaintiffs to reflect on or 9 to prove the quality of the conduct of defendants in this case. Accordingly, any such 10 attempt is barred by the provisions of Evidence Code section 1 104. 11 Each medical malpractice case which may be filed and tried against a physician 12 defendant must be judged according to its own merits based on the facts and issues 13 presented by the particular case. (Gin Non Louie v. Chinese Hospital Asso. (1967) 249 14 Cal.App.2d 774, 787; see also, Valentin v. La Societe Francaise de Bienfaisance Mutuelle 15 (1946) 76 Cal.App.2d 1.) 16 The introduction of evidence of the existence of unidentified, allegedly displeased 17 patients violates the rules set forth in Louie, supra, by creating substantial danger that the 18 facts of the instant case will be judged in light of the fact that other patients have allegedly 19 been dissatisfied with defendants' care or sought care from other physicians regardless 20 of the dissimilarity of the issues and/or facts pertaining to those other patients. 21 In addition, the prior conduct of a defendant physician, whether proper or 22 improper, is inadmissible evidence whether offered on behalf of the plaintiff or the 23 defendant physician. ( Costa v. Regents of University of California (1 953) 1 1 6 Cal.App.2d 24 445, 463-464; see also, Burford v. Baker (1942) 53 Cal.App.2d 301 , 309-31 0; McCullough v. 25 Longer (1937) 23 Cal.App.2d 510, 520.) 26 The court is empowered pursuant to Evidence Code section 352 to exclude 27 evidence where the probability exists that its admission will confuse the issues or mislead 28 the jury. The danger of undue prejudice being created in the minds of the jury upon 01305155.WPD 3 ENLOE MEDICAL CENTER'S AMENDED MOTION IN LIMINE NO. 20 - DISSATISFIED OTHER PATIENTS 1 learning that other patients allegedly have been unhappy with care and treatment 2 rendered by defendants or have sought subsequent care and treatment from other 3 physicians, with the implication they were unhappy or suffered poor results in the hands 4 of defendants, substantially outweighs any possible probative value that such evidence 5 could have. 6 V. INFLAMMATORY AND PREJUDICIAL INFERENCES 7 MAY NOT BE DRAWN BY PARTIES OR COUNSEL 8 Inflammatory and prejudicial inferences made by parties and/or counsel during 9 trial can have serious and detrimental effects upon the determination of the real issues 10 of a case. Where anticipated, the evidence from which such inferences may be drawn 11 is properly excluded pursuant to a motion in limine. (Sacramento & San Joaquin 12 Drainage Dist. ex rel The State Reclamation Board v. Reed (1 963) 2 1 5 Cal.App.2d 60.) In 13 view of the highly prejudicial and confusing effect that evidence of other allegedly 14 dissatisfied patients against defendants would create in the minds of the jury, there 15 appears no reason why such references should be permitted. 16 VI. 17 CONCLUSION 18 Based on the foregoing, this Court is requested to grant defendant's motion in 19 limine and instruct plaintiffs as requested. 20 Dated: December 4, 2020 21 Schuering Zimmerman & Doyle, llp 22 23 By v ROBERT H. ZIMMERMAN 24 Attorneys for Defendant ENLOE MEDICAL CENTER 25 26 27 28 01305155.WPD 4 ENLOE MEDICAL CENTER'S AMENDED MOTION IN LIMINE NO. 20 - DISSATISFIED OTHER PATIENTS