Free Reply to Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-CV-2089-MSK-CBS DEAN A. BRAMLET, M.D., Plaintiff, v. ASPEN VALLEY HOSPITAL DISTRICT, Defendant.

DEFENDANT'S REPLY BRIEF IN SUPPORT OF MOTION IN LIMINE

The primary purpose of motions in limine is rooted in Fed. R. Evid. 103(c): "In jury case, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means . . . ." (Emphasis added). [M]otions in limine prevent the jury from being exposed to prejudicial, inadmissible or irrelevant evidence. Trial lawyers understand that once prejudicial evidence is placed before jurors, the damage may be irreversible. Objecting to prejudicial evidence may only draw the jury's attention to it, and a subsequent "curative" instruction given by the court is unlikely to be effective because it is difficult for a juror to ignore what she [or he] has already heard. Motions in Limine in Federal Civil Trials, SE56 ALI-ABA 1, ¶ III(A)(b) (American Law Institute 2000). Thus, motions in limine are a mechanism to avoid or minimize the potential for mistrials. Motions in limine also provide a vehicle to shorten and streamline the trial process by "avoid[ing] mid-trial delays caused by sidebars or removal of the jury while objectionable evidence is discussed." Id. at III(A)(a). Further, they permit the parties to adjust their trial

strategy in light of the court's decisions. Id. at III(A)(c); Wilson v. Williams, 182 F.3d 562, 566

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(7th Cir. 1999); Jonasson v. Lutheran Child and Family Services, 115 F.3d 436, 440 (7th Cir. 1997). Here, Defendant's motion in limine seeks either a definitive or, alternatively, a prophylactic ruling on the issues addressed. Thus, Plaintiff's reliance on the Luce case is misplaced. Even if the Court elects to postpone a definitive ruling on all or any portion of Defendant's motion until trial, the Court, nonetheless, should issue prophylactic rulings to prevent Plaintiff's counsel from mentioning the objectionable evidence during opening statement, and from presenting such evidence at trial without first obtaining the Court's permission to do so. Id. at III(A)(b); see also United States v. Hochschild, 1997 U.S. App.

LEXIS 30583, *5-6 (6th Cir. Nov. 5, 1997) (upholding decision to grant motion in limine and prohibit party from directly or indirectly referencing certain evidence without first obtaining court's permission); Cf. United States v. Crowder, No. 92-4014, 1993 WL 261952, * 2 (10th Cir. June 30, 2003) (arguments can be waived at trial based on statements at motion in limine hearing). 1. The JCAHO Report Plaintiff concedes Defendant's hearsay, foundation, speculation, and Fed. R. Evid. 403, 404(b) & 608(b) objections to the JCAHO Report, as Plaintiff has provided no argument or supporting authority in opposition to these objections. On these bases, alone, the Court should grant Defendant's motion as to the JCAHO Report. Plaintiff's responses to Defendant's remaining objections lack merit. That expert

witnesses often rely upon many types of reports simply begs the question. At issue here is whether the court should permit Ms. Voight to smear the Hospital and its staff through testimony

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about a report that is irrelevant, foundationless, speculative, hearsay and character evidence, relating to unrelated "bad acts" of the Hospital, that cannot be subjected to cross-examination and would prejudice and confuse the jury. Significantly, Ms. Voight does not draw any connection between the JCAHO Report's findings and Plaintiff or his claims. The JCAHO standards that Ms. Voight claims the Hospital violated as to Plaintiff are entirely different standards than those JCAHO found fault with, years later, in the JCAHO Report. Compare Voight Report with JCAHO Report. Moreover, the facts upon which the infractions in the JCAHO Report are based are completely different from those at issue in this case or addressed in Ms. Voight's report. Id. Thus, the JCAHO Report has no relevance to Plaintiff or his claims. None of the JCAHO Report's specific findings has anything to do with Plaintiff or his causes of action. Consequently, the findings are irrelevant to Plaintiff's case and are highly prejudicial. The "Assessing Competence" section of the JCAHO Report falls under the

organizational function of "Management of Human Resources" and pertains exclusively to the Hospital's performance evaluations of its employees. JCAHO Report, Exhibit F10 at p. 2 (Accreditation Decision Grid). Indeed, the JCAHO standard addressed in the report under this heading is HR.5, which relates to the Hospital's assessment of "each staff member's ability to meet the performance expectations stated in his or her job description." Id. at pp. 5 & 6 of the Official Accreditation Decision Report (at HR.5). Thus, the JCAHO Report's conclusion that performance appraisals of Hospital employees, during the twelve months preceding the July 8, 2002, report, were timely only 60% of the time has no connection to Plaintiff, who was never employed by the Hospital and who had left the Hospital over two years before the report was

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issued.

This is further confirmed by the report's finding that other assessment delinquencies

existed only as to a pharmacist and a registered nurse. Id. Plaintiff is neither. Similarly, the report's only infraction under the heading "Organization, Bylaws, Rules and regulations" pertains solely to JCAHO's conclusion that the "Medical Staff Bylaws did not define the conditions for removal of officers." Id. at p. 7 of the Official Accreditation Decision Report (at MS.2.3.4.1.3). None of Plaintiff's allegations relates to the conditions, or lack of conditions, for the removal of officers. Likewise, the report's findings under the "Credentialing" heading bear no connection to Plaintiff or his claims. Plaintiff has no claim relating to any failure of the Hospital to require him to complete an attestation form relating to voluntary changes in his memberships. Id. at pp. 7-8 of the Official Accreditation Decision Report (at MS.5.5.2). Similarly irrelevant is the report's conclusion that the reappointments and renewals of some physicians' medical staff privileges had exceeded the two-year limit that any physician can hold medical staff privileges without obtaining a renewal or reappointment of those privileges. Id. at p. 8 of the Official

Accreditation Decision Report (at MS.5.11). As Plaintiff concedes that he held medical staff privileges at the Hospital for less than two years, i.e., from November 1998 to August 2000, the two-year limit addressed in the report's finding never applied to Plaintiff. Equally irrelevant are the report's findings relating to: (1) aggregating data for medication utilization and clinical efficiency , collecting information on patient outcomes for invasive procedures, or making all PI information available at time of reappointment (at MS.5.12.3); (2) monitoring of outpatient services (MS.6.3); and (3) monitoring post-graduate, resident physicians and the care they provide (MS.6.9.11). Id. at pp. 8-9 of the Official Accreditation Decision Report.

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Plaintiff seeks to use the irrelevant infractions from the JCAHO Report as evidence of prior or subsequent misconduct by the Hospital and its staff, hoping the jury will conclude that the actions of the Hospital and its staff with regard to Plaintiff were in conformance with unrelated actions toward other people at other times. Such evidence is inadmissible under Fed. R. Evid. 608(b) and 404(b). Any contention that the JCAHO Report, issued in July 2002, is probative of the Hospital's knowledge, absence of mistake, or motive two years before the report was issued defies credulity. Fed. R. Evid. 404(a) prohibits such impermissible character

evidence from being used against the Hospital's witnesses at trial, particularly where the JCAHO Report ascribes no fault or blame to any particular member or members of the Hospital's staff. Plaintiff seeks to place the JCAHO report and its contents before the jury for the truth of the matter asserted. Yet, Plaintiff failed to identify any hearsay exception applicable to the JCAHO report. Plaintiff's contention that JCAHO is "the Defendant's accreditation agency" is patently specious. Plaintiff is well aware that JCAHO is an independent agency that has no affiliation, whatsoever, with the Hospital. As the JCAHO Report provides no information as to which specific files, documents and other information JCAHO's investigators reviewed, Plaintiff cannot lay foundation for the report or its relevance to Plaintiff or his case. It would be purely speculative to conclude that JCAHO's investigators ever reviewed or considered any information relating to Plaintiff, who had left the Hospital over two years before the investigation commenced, or relied on any information about Plaintiff in forming their conclusions. It has long been held that a jury cannot be permitted to speculate and its verdict cannot be based on speculation. Franklin v. Skelly Oil Co., 141 F.2d 568, 570-71 (10th Cir. 1944).

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Defendant cannot cross-examine the JCAHO Report. Plaintiff has not listed any JCAHO investigator as a witness. That Defendant may cross-examine Ms. Voight about her opinion is beside the point. Ms. Voight cannot provide any information about the actions of the JCAHO investigators, as she has no first-hand knowledge of what they reviewed, what they considered, what they thought, how they reached their conclusions, or on what specific evidence their conclusions are based. Ms. Voight's testimony must be limited to her assessment of the way the Hospital handled Plaintiff's applications for privileges. While she may use JCAHO standards as a yardstick for the reasonableness of the Hospital's actions as to Plaintiff, she must not be allowed to testify about the JCAHO Report's findings, years later, that the Hospital violated other JCAHO standards as to individuals other than Plaintiff. 2. Resume Doctors Evidence Plaintiff concedes Defendant's speculation and Fed. R. Evid. 403, 404 & 608 objections to the Resume Doctors evidence, as Plaintiff has provided no argument or supporting authority in opposition to these objections. On these bases, alone, the Court should grant Defendant's motion as to the Resume Doctors evidence. Plaintiff fails to show how the curriculum vitae and other correspondence from the Resume Doctors is relevant. That Defendant possessed resumes it had received from other doctors in 1999---before any contract position for a cardiologist even existed---simply begs the question.1 The Hospital did not decide to recruit for a contract cardiologist until after Plaintiff went on leave of absence in May 2000, and elected to recruit for the position through a physician recruiting firm, Merritt-Hawkins. The Hospital considered only Plaintiff and Dr. Gerson for this
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The resumes of the Resume Doctors were for transmission to private, internal medicine practices in Aspen, for their consideration in hiring additional physicians for their groups.

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contract position. As a member of the Hospital's medical staff, Plaintiff asked to be considered for the position. The Hospital sent Plaintiff correspondence advising him that he was being considered and later correspondence advising him that he had not been selected for the position. Plaintiff contends the Hospital considered only Dr. Gerson, who had been presented to the Hospital through Merritt-Hawkins, for the position. Thus, the sole issue here is whether the Hospital did or did not consider Plaintiff for the position and whether that decision was based on Plaintiff's age. Whether the Hospital considered the Resume Doctors, who were not on the Hospital's medical staff and had submitted resumes the prior year, is not probative of whether the Hospital considered Plaintiff for the position. Likewise, whether the Hospital's procedure for selecting Dr. Gerson for the contract was otherwise "appropriate" is irrelevant. Moreover, as the Hospital did not consider the Resume Doctors for the position, it would be purely speculative to ask the Hospital's decision makers about the Resume Doctors evidence, or what impact, if any, consideration of the Resume Doctors evidence would have had on their ultimate decision. As most of the Resume Doctors were under forty years of age, the Resume Doctors evidence also fails to support Plaintiff's age discrimination claim. However, as the Resume Doctors evidence, on its face, shows that many of these doctors were foreign-born or foreigneducated, the Resume Doctors evidence poses a high risk of juror prejudice and confusion that far outweighs any probative value it may have. 3. Merritt-Hawkins Letter Plaintiff concedes Defendant's speculation and Fed. R. Evid. 403, 404 & 608 objections to the Merritt-Hawkins Letter, as Plaintiff has provided no argument or supporting authority in

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opposition to these objections. On these bases, alone, the Court should grant Defendant's motion as to the Merritt-Hawkins Letter. Contrary to Plaintiff's assertions, Exhibit P11 contains no information, whatsoever, about Dr. Gerson and was not the "cover sheet" for submitting any information about Dr. Gerson to the Hospital. See Exhibit P11. Merritt-Hawkins is an independent physician recruiting company that is in the business of placing candidates in medical positions. Merritt Hawkins is paid a fee for its services. The letter of John Wylie to Randy Middlebrook contains out-of-court statements that Plaintiff seeks to admit for the truth of the matter asserted. While Plaintiff may seek to impeach Mr. Middlebrook through letters that Mr. Middlebrook authored, he cannot properly impeach Mr. Middlebrook with a letter that Mr. Wylie authored. Moreover, as Merritt Hawkins is not a party to the suit, the letter is not admissible as a statement by a party opponent. See Jaramillo v. Colorado Judicial Dept., 427 F.3d 1303, 1314 (10th Cir. 2005) (person must be involved in the actual decisionmaking process). Here, Merritt-Hawkins was not a decisionmaker. Merritt-Hawkins simply presented Dr. Gerson as a candidate for the independent

contractor position in cardiology. The Hospital, not Merritt-Hawkins or Mr. Wylie, made the decision to select Dr. Gerson for the position. Moreover, the letter simply reflects Mr. Wylie's interpretations and understandings of what the Hospital was looking for in a cardiologist, and asks the Hospital's administrator to "read the following pages carefully" for accuracy. As such, it reflects Mr. Wylie's speculations about what the Hospital's administrator, Mr. Middlebrook, thinks. Such speculations are

inadmissible. Further, as Mr. Wylie's mental state is not at issue in this case, his interpretations and beliefs are irrelevant.

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Assuming arguendo that any agency relationship existed, it was not within the scope of that agency for Mr. Wylie to speculate about Mr. Middlebrook's desires, as evidenced by the letter's direct request for Mr. Middlebrook to review the letter's contents for accuracy. Further, the letter was not created in the ordinary course of the Hospital's business; rather, it was purportedly created in the ordinary course of Merritt-Hawkins' business. As Plaintiff chose not to name John Wylie as a witness in the case, he will not be present to authenticate the letter or otherwise lay foundation for the letter's contents, including the facts upon which Mr. Wylie relied in creating the letter, or the factual bases for his interpretations and conclusions, etc., or to be cross-examined about these topics. Yet, Plaintiff seeks to admit the letter and its contents precisely for the truth and prejudicial nature of the matters Mr. Wylie asserted in the letter; specifically, the letter's phrases "American-born, American trained" and that "age is not a significant factor." As the letter does not fall within any hearsay exception, it is inadmissible. 4. Newspaper Article As Plaintiff addressed only Defendant's hearsay objection, the Newspaper Article should be excluded based on the Hospital's remaining objections, which are uncontested. The Fed. R. Evid. 801(d)(2) hearsay exception upon which Plaintiff relies does not apply here, as Dr. Cohen is not a party and was not interviewed by the reporter in his capacity as a Hospital board member. Rather, he was interviewed as a private physician returning from retirement to practice cardiology. Assuming arguendo that Plaintiff is permitted to ask Dr. Cohen about the comment to the reporter, the Hospital does not challenge Plaintiff's right, under Fed. R. Evid. 801(d)(1), to ask Dr. Cohen if he made the comment to the reporter. As Dr. Cohen admitted, during his

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deposition, that he made a statement to this effect to the reporter, he may be impeached at trial with his deposition testimony, if he testifies to the contrary at trial. Thus, the Newspaper Article itself would be relegated to inadmissible extrinsic evidence. 5. Incorrect Standard Evidence Plaintiff concedes that the Hospital's standard for granting consulting medical staff privileges is whether the applicant's inclusion "would extend the type of care and enhance the overall quality of patient care at the Hospital." Response at 8; Medical Staff Bylaws, Art. II, §2 (emphasis added). The Hospital Board concluded that granting Plaintiff consulting medical staff privileges would not enhance the overall quality of patient care at the Hospital. Plaintiff may cross-examine the Hospital's witnesses about the reasons for their conclusions. Plaintiff may ask witnesses why they concluded Plaintiff would not have enhanced patient care. Plaintiff should not, however, be permitted to ask witnesses whether Plaintiff's inclusion would have harmed the Hospital, as this question presumes the existence of a nonexistent and irrelevant standard. Although the distinction between "harming" and "not enhancing" is generally a subtle one, this subtle distinction is of great significance in this case. The Hospital has no burden to prove that Plaintiff's inclusion on the consulting staff would have harmed the Hospital. Thus, such a standard is utterly irrelevant and permitting questions about such an irrelevant standard, through questions or argument, would be highly prejudicial to the Hospital and would confuse the jurors as to the correct standard that actually applied. Further, as "harm" was not the standard applied, none of the witnesses applied a "harm" standard. As such, witnesses would be impermissibly asked to speculate about a standard that they never considered.

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Respectfully submitted this 14th day of April, 2006.

s/Colleen M. Rea Colleen M. Rea, Esq. #024960 FORD & HARRISON LLP 1675 Broadway, Suite 2150 Denver, CO 80202 Telephone: (303) 592-8860 Facsimile: (303) 592-8861 E-Mail: [email protected] ATTORNEYS FOR DEFENDANT ASPEN VALLEY HOSPITAL DISTRICT

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CERTIFICATE OF MAILING (CM/ECF) I hereby certify that on April 14, 2006, I electronically filed the foregoing DEFENDANT'S REPLY BRIEF IN SUPPORT OF MOTION IN LIMINE with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following email addressee: Sander N. Karp, Esq.: [email protected]

s/ Colleen M. Rea Colleen M. Rea, (#024960 Ford & Harrison LLP 1675 Broadway, Suite 2150 Denver, CO 80202 Telephone: (303) 592-8860 Facsimile: (303) 592-8861 E-mail: [email protected] ATTORNEYS FOR DEFENDANT ASPEN VALLEY HOSPITAL DISTRICT
Denver:11283.1

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