Preview
Sean R. Laird (SBN 214916)
1
The Law Firm of Sean R. Laird
2 805 16th Street
Sacramento, CA 95814 6/2/2021
3 (916) 441-1636
4 (916) 760-9002
seanlairdlaw@gmail.com
5
6 Attorneys for Plaintiffs
7
8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE
9
10
PATSY NEWTON, individually; HAROLD Case No. 20CV01091
11 NEWTON; individually; SUZANNE
BOLEN, individually. PLAINTIFFS’ OPPOSITION TO
12 DEFENDANT’S MOTION IN LIMINE
Plaintiffs, #18 TO “PRECLUDE REPTILE
13 THEORY.”
14 vs.
15 DATE: June 4, 2021
ENLOE MEDICAL CENTER; and DOES 1 - TIME: 8:30 a.m.
16 50, inclusive, Dept. 1
17 Defendants, Hon. Tamara L. Mosbarger
18
Complaint Filed: 5/29/2020
19 Trial Date: 6/7/2021
20
21
22 I. INTRODUCTION
23 Defendants’ Motion in Limine No. 11 seeks to preclude plaintiffs’ from introducing
24 evidence or argument based on a book, the “Reptile Theory.” To be clear, this is a book plaintiffs’
25 trial counsel has not read and I have no idea what the “Reptile Theory” or its teachings are.
26 Defendant asserts that this “Reptile Theory” violates the “Golden Rule” by appealing to juror self-
27 interest. To make this argument, defendant’s boilerplate motion slanders plaintiffs’ attorneys
28
- 1!
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PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE #18 “ TO PRECLUDE REPTILE THEORY.”
1 generally, conflates the “Golden Rule” with admissible evidence, and fails to identify any issue or
2 concern specific to this case.
3 The Court should deny defendant’s motion in limine # 11 because (1) it is an improper
4 request that the parties “follow the law;” (2) much of the evidence presumably captured by
5 defendant’s vague and overbroad request is admissible to meet plaintiffs’ heightened burden; (3)
6 defendant distorts the “golden rule” to preclude admissible evidence; (4) and any specific
7 objections could and should be resolved at trial.
8 Jury trials in this Court are governed by the California Evidence Code and the California
9 Code of Civil Procedure – not trial advocacy books. Plaintiff’s counsel will conduct himself in
10 compliance with these rules and expect defense counsel to do the same.
11
12 II. ARGUMENT
13 A. Defendant’s Motion Improperly Seeks An Order Declaratory Of The
14 “Golden Rule”
15 Motions in limine should not be used for improper purposes. Kelly v. New West Federal
16 Savings, 49 Cal.App.4th 659, 671 (1996). Motions in limine that lack factual support, i.e. fail to
17 identify the evidence or testimony at issue, are improper because they would force the Court to
18 “rule in a vacuum.” Id. at 670. Likewise, requests for rulings “which would merely be declaratory
19 of existing law” are improper. Id.
20 An order granting defendants so-called “motion in limine” is improper because it “would
21 merely be declaratory of existing law.” See Kelly at 670. Indeed, plaintiffs do not dispute that the
22 “Golden Rule,” i.e. an argument that asks jurors to put themselves “in the shoes” of the client and
23 asks what compensation the jurors would personally expect for pain and suffering, is inappropriate.
24 Cassim v. Allstate Ins. Co., 33 Cal.4th 780, 797 (2004). Indeed, “[h]ow others would feel if placed
25 in the plaintiff’s position is irrelevant.” Id. at 797 n.4. A jury’s decision should be based on the
26 evidence and applicable law, not sympathy, emotions, prejudice, or some other inappropriate
27 matter.
28
- 2!
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PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE #18 “ TO PRECLUDE REPTILE THEORY.”
1 Plaintiffs understand and acknowledge the strict limitation against making the “Golden
2 Rule” argument and plaintiffs do not intend to make any such argument. Since defendant simply
3 asks this Court to follow the law, it is not a proper motion in limine and must be denied.
4
B. Defendant’s Overbroad Motion Would Preclude Evidence Directly
5
Admissible To Plaintiffs’ Heightened Burden Of Proof
6
7 Defendants’ inappropriately extrapolate the “Golden Rule” to include language like
8 “danger to the community.” Defendants go so far as to seek to preclude plaintiffs from mentioning
9 “community safety” (Defs’ MIL #18 at 2:21) to the jurors for fear that it is part of the “Reptile
10 Strategy.” But defendant fails to acknowledge that plaintiff bears a heightened burden that can
11 only be met if plaintiff shows conduct such as defendant’s conscious disregard of their residents’
12 safety.
13 As is addressed at length in plaintiffs’ oppositions to defendants’ motions in limine #3, #14
14 and #17, plaintiffs bear the burden to show that one of defendant’s managing agents engaged in,
15 approved of, or ratified conduct that was reckless, malicious, oppressive or fraudulent. Welf. &
16 Inst. Code § 15657; CACI 3104. To recover the enhanced remedies, Plaintiff must make a
17 showing that is “essentially equivalent” to the showing necessary to recover punitive damages.
18 Covenant Care, Inc. v. Superior Court, 32 Cal. 4th 771, 789 (2004). Accordingly, evidence
19 permissible to the showing in a punitive damage trial is permissible here. Importantly, plaintiffs
20 can show defendants’ conduct was malicious by identifying defendants’ disregard of both Mrs.
21 Newton and the community’s safety. Hilliard v. A.H. Robins Company, 148 Cal. App. 3d 374, 401
22 (1983) (“Any evidence that directly or indirectly shows or permits an inference that defendant
23 acted with conscious disregard of the safety or rights of others … is relevant evidence.”).
24 Here, plaintiff’s theory of the case is that the fate Mrs. Newton suffered was a direct result
25 of the defendant’s complete and systematic neglect to protect patients like her from the
26 development of an entirely avoidable, life-threatening pressure ulcer - even after having been put
27 on notice of numerous concerns regarding their pressure ulcer practices by the Department of
28 Public Health. Defendants’ overbroad and vague request would preclude plaintiffs from
- 3!
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PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE #18 “ TO PRECLUDE REPTILE THEORY.”
1 introducing evidence necessary to meet their heightened showing, the Court should deny
2 defendants’ motion.
3
C. Advocating For The Safest Conduct As Reasonable Care Is Not An
4 Improper “Golden Rule” Argument
5
As stated above, plaintiffs’ trial counsel has not read the “Reptile Theory,” nor do I intend
6
to and have not learned how to do trials by reading books, but by actually doing them. Declaration
7
of Sean R. Laird (“Laird Decl.”), ¶ 2. Plaintiff’s trial counsel has never attended a function where
8
the theory has been taught or discussed. Id. Plaintiffs’ lead trial counsel does not know the main
9
tenets of the book. Id. However, the undersigned researched the issue to properly respond to
10
defendants’ motion in limine #11, and their characterizations of the “Reptile Theory.” At its core,
11
defendants’ motion mischaracterizes the “Golden Rule” to attack classic theories of liability
12
integral to tort law. See, Laird Decl., ¶ 2 & Ex. 1 (“Reptile = Black Letter Law”).
13
Indeed, defendants treat the phrase “community safety” like a swear word. But deterrence
14
of careless, harmful conduct in the community is a central purpose of American tort law. Burgess
15
v. Superior Court (1992) 2 Cal.4th 1064, 1081; see also Reporter’s Notes to Section 3, comment d,
16
of the Third Restatement of Torts – Physical and Emotional Harm (2010). “To some extent, at
17
least, every tort rule is designed both to deter other wrongdoers and to compensate the injured
18
person.” Restatement Second of Conflict of Laws (1971) §145 (comment at page 416). The
19
“Golden Rule” cannot preclude jurors from using their own life experiences and common sense
20
when deciding whether harmful conduct should be deterred in their community. In fact, the Court
21
will instruct the jury to that effect. See CACI 5009 (instructing jurors to “use [their] common
22
sense” in reaching a verdict).
23
Further, defendants’ claims that safety cannot inform the standard of care must fail. CACI
24
401 (“A person is negligent if he or she does something that a reasonably careful person would not
25
do in the same situation[.]”). Counsel have wide latitude to persuade a jury about the
26
righteousness of the parties’ positions. Cassim v. Allstate Ins. Co., 33 Cal.4th 780, 795 (2004) (“In
27
conducting closing argument, attorneys for both sides have wide latitude to discuss the case … An
28
attorney is permitted to argue all reasonable inferences from the evidence. . . . Only the most
- 4!
-
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE #18 “ TO PRECLUDE REPTILE THEORY.”
1 persuasive reasons justify handcuffing attorneys in the exercise of their advocacy within the
2 bounds of propriety.”) (citations and internal quotations omitted). While there are some limits on
3 what counsel can argue (e.g. appeals to bigotry or prejudice, Kolaric v. Kaufman, 261 Cal.App.2d
4 20 (1968), or direct appeals to self-interest of jurors as taxpayers, Du Jardin v. Oxnard, 38
5 Cal.App.4th 174, 179, (1995) (action against municipality)), it is not improper to advocate safety
6 as the reasonable standard of care to be expected of all people.
7 The Court should reject defendants attempt to expand the “Golden Rule” to shackle
8 plaintiffs’ advocacy.
9
D. Defendants’ Motion Is Overly Broad, Vague and Premature
10
11 As discussed at length above, defendants’ motion in limine is vague and overly broad.
12 Indeed, it is nothing but a speculative attempt to predict how plaintiffs’ counsel will present and
13 argue this case to the jury. The Court cannot possibly limit how plaintiffs might present their case
14 to the jury based on rank speculation. Indeed, defendants are not requesting that plaintiffs be
15 precluded from introducing specific evidence. This is a matter that should be handled as a trial
16 objection, if necessary. Based on the foregoing, this is not a proper motion in limine and the Court
17 should deny it.
18
Dated: Tuesday, May 25, 2021 The Law Firm of Sean R. Laird
19
_________
20 Sean R. Laird
21 ________________________
22 Sean R. Laird
Attorney for Plaintiffs
23
24
25
26
27
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PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE #18 “ TO PRECLUDE REPTILE THEORY.”
Preview
Sean R. Laird (SBN 214916) 1 The Law Firm of Sean R. Laird 2 805 16th Street Sacramento, CA 95814 6/2/2021 3 (916) 441-1636 4 (916) 760-9002 seanlairdlaw@gmail.com 5 6 Attorneys for Plaintiffs 7 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE 9 10 PATSY NEWTON, individually; HAROLD Case No. 20CV01091 11 NEWTON; individually; SUZANNE BOLEN, individually. PLAINTIFFS’ OPPOSITION TO 12 DEFENDANT’S MOTION IN LIMINE Plaintiffs, #18 TO “PRECLUDE REPTILE 13 THEORY.” 14 vs. 15 DATE: June 4, 2021 ENLOE MEDICAL CENTER; and DOES 1 - TIME: 8:30 a.m. 16 50, inclusive, Dept. 1 17 Defendants, Hon. Tamara L. Mosbarger 18 Complaint Filed: 5/29/2020 19 Trial Date: 6/7/2021 20 21 22 I. INTRODUCTION 23 Defendants’ Motion in Limine No. 11 seeks to preclude plaintiffs’ from introducing 24 evidence or argument based on a book, the “Reptile Theory.” To be clear, this is a book plaintiffs’ 25 trial counsel has not read and I have no idea what the “Reptile Theory” or its teachings are. 26 Defendant asserts that this “Reptile Theory” violates the “Golden Rule” by appealing to juror self- 27 interest. To make this argument, defendant’s boilerplate motion slanders plaintiffs’ attorneys 28 - 1! - PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE #18 “ TO PRECLUDE REPTILE THEORY.” 1 generally, conflates the “Golden Rule” with admissible evidence, and fails to identify any issue or 2 concern specific to this case. 3 The Court should deny defendant’s motion in limine # 11 because (1) it is an improper 4 request that the parties “follow the law;” (2) much of the evidence presumably captured by 5 defendant’s vague and overbroad request is admissible to meet plaintiffs’ heightened burden; (3) 6 defendant distorts the “golden rule” to preclude admissible evidence; (4) and any specific 7 objections could and should be resolved at trial. 8 Jury trials in this Court are governed by the California Evidence Code and the California 9 Code of Civil Procedure – not trial advocacy books. Plaintiff’s counsel will conduct himself in 10 compliance with these rules and expect defense counsel to do the same. 11 12 II. ARGUMENT 13 A. Defendant’s Motion Improperly Seeks An Order Declaratory Of The 14 “Golden Rule” 15 Motions in limine should not be used for improper purposes. Kelly v. New West Federal 16 Savings, 49 Cal.App.4th 659, 671 (1996). Motions in limine that lack factual support, i.e. fail to 17 identify the evidence or testimony at issue, are improper because they would force the Court to 18 “rule in a vacuum.” Id. at 670. Likewise, requests for rulings “which would merely be declaratory 19 of existing law” are improper. Id. 20 An order granting defendants so-called “motion in limine” is improper because it “would 21 merely be declaratory of existing law.” See Kelly at 670. Indeed, plaintiffs do not dispute that the 22 “Golden Rule,” i.e. an argument that asks jurors to put themselves “in the shoes” of the client and 23 asks what compensation the jurors would personally expect for pain and suffering, is inappropriate. 24 Cassim v. Allstate Ins. Co., 33 Cal.4th 780, 797 (2004). Indeed, “[h]ow others would feel if placed 25 in the plaintiff’s position is irrelevant.” Id. at 797 n.4. A jury’s decision should be based on the 26 evidence and applicable law, not sympathy, emotions, prejudice, or some other inappropriate 27 matter. 28 - 2! - PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE #18 “ TO PRECLUDE REPTILE THEORY.” 1 Plaintiffs understand and acknowledge the strict limitation against making the “Golden 2 Rule” argument and plaintiffs do not intend to make any such argument. Since defendant simply 3 asks this Court to follow the law, it is not a proper motion in limine and must be denied. 4 B. Defendant’s Overbroad Motion Would Preclude Evidence Directly 5 Admissible To Plaintiffs’ Heightened Burden Of Proof 6 7 Defendants’ inappropriately extrapolate the “Golden Rule” to include language like 8 “danger to the community.” Defendants go so far as to seek to preclude plaintiffs from mentioning 9 “community safety” (Defs’ MIL #18 at 2:21) to the jurors for fear that it is part of the “Reptile 10 Strategy.” But defendant fails to acknowledge that plaintiff bears a heightened burden that can 11 only be met if plaintiff shows conduct such as defendant’s conscious disregard of their residents’ 12 safety. 13 As is addressed at length in plaintiffs’ oppositions to defendants’ motions in limine #3, #14 14 and #17, plaintiffs bear the burden to show that one of defendant’s managing agents engaged in, 15 approved of, or ratified conduct that was reckless, malicious, oppressive or fraudulent. Welf. & 16 Inst. Code § 15657; CACI 3104. To recover the enhanced remedies, Plaintiff must make a 17 showing that is “essentially equivalent” to the showing necessary to recover punitive damages. 18 Covenant Care, Inc. v. Superior Court, 32 Cal. 4th 771, 789 (2004). Accordingly, evidence 19 permissible to the showing in a punitive damage trial is permissible here. Importantly, plaintiffs 20 can show defendants’ conduct was malicious by identifying defendants’ disregard of both Mrs. 21 Newton and the community’s safety. Hilliard v. A.H. Robins Company, 148 Cal. App. 3d 374, 401 22 (1983) (“Any evidence that directly or indirectly shows or permits an inference that defendant 23 acted with conscious disregard of the safety or rights of others … is relevant evidence.”). 24 Here, plaintiff’s theory of the case is that the fate Mrs. Newton suffered was a direct result 25 of the defendant’s complete and systematic neglect to protect patients like her from the 26 development of an entirely avoidable, life-threatening pressure ulcer - even after having been put 27 on notice of numerous concerns regarding their pressure ulcer practices by the Department of 28 Public Health. Defendants’ overbroad and vague request would preclude plaintiffs from - 3! - PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE #18 “ TO PRECLUDE REPTILE THEORY.” 1 introducing evidence necessary to meet their heightened showing, the Court should deny 2 defendants’ motion. 3 C. Advocating For The Safest Conduct As Reasonable Care Is Not An 4 Improper “Golden Rule” Argument 5 As stated above, plaintiffs’ trial counsel has not read the “Reptile Theory,” nor do I intend 6 to and have not learned how to do trials by reading books, but by actually doing them. Declaration 7 of Sean R. Laird (“Laird Decl.”), ¶ 2. Plaintiff’s trial counsel has never attended a function where 8 the theory has been taught or discussed. Id. Plaintiffs’ lead trial counsel does not know the main 9 tenets of the book. Id. However, the undersigned researched the issue to properly respond to 10 defendants’ motion in limine #11, and their characterizations of the “Reptile Theory.” At its core, 11 defendants’ motion mischaracterizes the “Golden Rule” to attack classic theories of liability 12 integral to tort law. See, Laird Decl., ¶ 2 & Ex. 1 (“Reptile = Black Letter Law”). 13 Indeed, defendants treat the phrase “community safety” like a swear word. But deterrence 14 of careless, harmful conduct in the community is a central purpose of American tort law. Burgess 15 v. Superior Court (1992) 2 Cal.4th 1064, 1081; see also Reporter’s Notes to Section 3, comment d, 16 of the Third Restatement of Torts – Physical and Emotional Harm (2010). “To some extent, at 17 least, every tort rule is designed both to deter other wrongdoers and to compensate the injured 18 person.” Restatement Second of Conflict of Laws (1971) §145 (comment at page 416). The 19 “Golden Rule” cannot preclude jurors from using their own life experiences and common sense 20 when deciding whether harmful conduct should be deterred in their community. In fact, the Court 21 will instruct the jury to that effect. See CACI 5009 (instructing jurors to “use [their] common 22 sense” in reaching a verdict). 23 Further, defendants’ claims that safety cannot inform the standard of care must fail. CACI 24 401 (“A person is negligent if he or she does something that a reasonably careful person would not 25 do in the same situation[.]”). Counsel have wide latitude to persuade a jury about the 26 righteousness of the parties’ positions. Cassim v. Allstate Ins. Co., 33 Cal.4th 780, 795 (2004) (“In 27 conducting closing argument, attorneys for both sides have wide latitude to discuss the case … An 28 attorney is permitted to argue all reasonable inferences from the evidence. . . . Only the most - 4! - PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE #18 “ TO PRECLUDE REPTILE THEORY.” 1 persuasive reasons justify handcuffing attorneys in the exercise of their advocacy within the 2 bounds of propriety.”) (citations and internal quotations omitted). While there are some limits on 3 what counsel can argue (e.g. appeals to bigotry or prejudice, Kolaric v. Kaufman, 261 Cal.App.2d 4 20 (1968), or direct appeals to self-interest of jurors as taxpayers, Du Jardin v. Oxnard, 38 5 Cal.App.4th 174, 179, (1995) (action against municipality)), it is not improper to advocate safety 6 as the reasonable standard of care to be expected of all people. 7 The Court should reject defendants attempt to expand the “Golden Rule” to shackle 8 plaintiffs’ advocacy. 9 D. Defendants’ Motion Is Overly Broad, Vague and Premature 10 11 As discussed at length above, defendants’ motion in limine is vague and overly broad. 12 Indeed, it is nothing but a speculative attempt to predict how plaintiffs’ counsel will present and 13 argue this case to the jury. The Court cannot possibly limit how plaintiffs might present their case 14 to the jury based on rank speculation. Indeed, defendants are not requesting that plaintiffs be 15 precluded from introducing specific evidence. This is a matter that should be handled as a trial 16 objection, if necessary. Based on the foregoing, this is not a proper motion in limine and the Court 17 should deny it. 18 Dated: Tuesday, May 25, 2021 The Law Firm of Sean R. Laird 19 _________ 20 Sean R. Laird 21 ________________________ 22 Sean R. Laird Attorney for Plaintiffs 23 24 25 26 27 28 - 5! - PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE #18 “ TO PRECLUDE REPTILE THEORY.”