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Nosal v. Martin

United States District Court, D. Nebraska

November 13, 2019

MYRISSA D. NOSAL, Plaintiff,
v.
LATRICE MARTIN, APRN-CNM; RACHAEL RICE, APRN-CNM; and THE MIDWIFE'S PLACE LLC, Defendants.

          MEMORANDUM AND ORDER

          Joseph F. Bataillon Senior United States District Judge.

         This matter is before the Court on the defendants' motion in limine, Filing No. 57 and the plaintiff's motions in limine, Filing Nos. 58 and 70. This is an action for medical malpractice.

         I. LAW

         Although the motion in limine is an important tool available to the trial judge to ensure the expeditious and evenhanded management of the trial proceedings, performing a gatekeeping function and sharpening the focus for later trial proceedings, some evidentiary submissions, cannot be evaluated accurately or sufficiently by the trial judge in such a procedural environment. Jonasson v. Lutheran Child and Family Servs., 115 F.3d 436, 440 (7th Cir. 1997). A motion in limine is appropriate for “evidentiary submissions that clearly ought not be presented to the jury because they clearly would be inadmissible for any purpose.” Id. In other instances, it is necessary to defer ruling until during trial, when the trial judge can better estimate the impact of the evidence on the jury. Id. To the extent that a party challenges the probative value of the evidence, an attack upon the probative sufficiency of evidence relates not to admissibility but to the weight of the evidence and is a matter for the trier of fact to resolve. United States v. Beasley, 102 F.3d 1440, 1451 (8th Cir. 1996).

         II. Defendants' Motion in Limine (Filing No. 57)

         The defendants seek preclusion of several categories of evidence. The plaintiff does not object to several of those categories and submits that it will not offer evidence on those matters. There remain disputes on the following:

Defendants' Motion in Limine No. 5: to preclude discussions regarding why the Midwife's Place closed

         Defendants contend that evidence of the reasons why The Midwife's Place closed and any apparent “political struggles between the midwives and the medical community” is not relevant and is unfairly prejudicial to Defendants. Fed.R.Evid. 401 & 403. Plaintiff argues that The Midwife's Place is a defendant in this lawsuit and contends that the contested statement was made in a letter sent by The Midwife's Place to all of its patients and is therefore a statement by a party opponent and not hearsay. Further, she argues the evidence is relevant and is not unfairly prejudicial.

         The Court is inclined to believe this evidence is not relevant and could be unfairly prejudicial or confusing. The Court will admit the evidence at issue only on a showing that it is relevant to an issue in this case. Without a showing that the closing is somehow connected to the issues in this case, the motion will be granted.

         Defendant's Motion in Limine No. 6: to preclude testimony regarding defendants' writing off any medical bills for the plaintiff

         Defendants contend this evidence is not relevant, is unfairly prejudicial, and inadmissible as part of settlement negotiations. The plaintiff contends the evidence constitutes an admission by a party-opponent-not hearsay, and argues it is relevant to how the defendants viewed the value of the services provided to Ms. Nosal. She disputes the defendants' contention that the matter was part of any settlement negotiations.

         The Court is unable to evaluate the relevance of the challenged evidence in the context of a pretrial motion. The Court will admit the evidence at issue only on a showing that it is relevant to the issues in the case, and only to the extent that the relevance of the evidence outweighs its potential to cause prejudice or confusion under Fed.R.Evid. 403. The Court finds the defendants' challenge is more in the nature of an objection to be raised at trial. Accordingly, the Court finds that the motion in limine should be overruled at this time, without prejudice to its reassertion via timely objection at trial.

         Defendant's Motion in Limine No. 8: to preclude any references by counsel for plaintiff to the jury acting as the “conscience of the community” or the “voice of the community” or suggesting a decision for plaintiff would be for the “betterment of the community” or improve the “safety” of medical care for others

         The defendants contend the references would be unduly prejudicial and would incite the jury. The plaintiff argues that the issues of the jury acting on behalf of the community and patient safety are central this case.

         The Court notes the statements are in the nature of argument and should not be raised in voir dire or opening statements. The Court will grant the motion in limine to that extent. The Court will reserve ruling on whether any such references, arguments, or statements can be raised later in the trial or in closing argument. Unless the defendants present the Court with Nebraska caselaw precluding such arguments, the Court will permit the plaintiff to argue such points in closing, assuming the evidence supports it. The Court will instruct the jury on the standard of care. To the extent counsel's comments misstate the law, such statements will not be allowed.

         Defendant's Motion in Limine No. 9: to preclude statements regarding the need to punish the defendants, or to send the defendants a message.

         Defendants contend such statements are inadmissible and improper as irrelevant and unduly prejudicial. The plaintiff concedes references to punishment should not be allowed, but objects to any limitation of statements about “sending a message.” Because punitive damages are not allowed in Nebraska, the Court will sustain the objection to that extent. “Sending a message” language may be appropriate depending on context. Again, the language appears to be argument. The motion will be denied without prejudice to reassertion at trial.

         Defendants' Motion in Limine No. 11: to preclude comments, statements or questions of witnesses regarding the experts for the defendants ‚Äústicking up for each other, ...


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