Free Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-02089-MSK-CBS

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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. _____________________________________________________________________ PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION IN LIMINE _____________________________________________________________________ Plaintiff, Dean A. Bramlet, M.D., by and through his attorneys, Leavenworth & Karp, P.C., responds to Defendant Aspen Valley Hospital District's Motion in Limine as follows: INTRODUCTION Defendant raises five issues in its motion in limine. Many of the objections require an evaluation of the testimony presented at trial and a decision. The admissibility of evidence should be reserved for trial. See e.g. Luce v. United States, 469 U.S. 38, 40-41, 105 S.Ct. 460, 462-63 (1984) (a ruling on a motion in limine is dependant upon the offer of proof and subject to change as the evidence in the case unfolds at trial.) Plaintiff requests that the Court reserve ruling on the evidence which Plaintiff may use to impeach witnesses until the testimony of the witnesses is presented at trial. ARGUMENT

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I. Joint Commission on Accreditation of Hospitals ("JCAHO") survey report. The JCAHO report is evidence relied upon by Plaintiff's hospital credentialing expert, Laura Voight. This report is the type of document relied upon by experts, such as ms. Voight. It is also a report that Plaintiff believes the Defendant relied upon for actions it undertook. It is the Defendant's accreditation agency. Plaintiff agrees that the provisions of the JCAHO report addressing AVH's deficiencies in areas such as "Medication Use" or "Surveillance, Prevention, and Control of Infection" are irrelevant to this action. These can easily be redacted. However, certain provisions of the JCAHO report are directly related to the claims in this case, and should be admitted through Ms. Voight's testimony. Fed. R. Evid. 401 & 402. Ms. Voight will testify that the JCAHO standards set forth in the "Comprehensive Accreditation Manual for Hospitals" set the standard of care for hospital policies and procedures in many areas. AVH's own expert relies on the JCAHO Standards in assessing the way the hospital handled Dr. Bramlet's application for privileges. (Exhibit 1, page 2) The Standards are a reliable reference for evaluating the conduct of hospital administrators and governing bodies as they appoint, renew privileges for and assess the medical professionals in their facility. The deficiencies noted in the JCAHO report for AVH in the areas of "Assessing Competence", "Organization, Bylaws, Rules and Regulations" and "Credentialing" are directly relevant to this case and Ms. Voight should be able to testify as to her assessment of the hospital's conduct in light of the JCAHO findings and recommendations. 2

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For example, the credentialing section of the report (pp. 7-9) indicates that the information sought from physicians applying for appointment and reappointment, and relied upon in making those appointments, did not comport with the information required by the hospital's own bylaws. This is exactly the claim that Dr. Bramlet makes against the hospital: that the hospital failed to follow its own procedures for making a decision on his application for privileges. The findings in the JCAHO report are relevant because they demonstrate the hospital's inaccuracies in applying procedures. Plaintiff argues that the deficiencies noted in the JCAHO report should be excluded as impermissible character evidence. It should be noted that the rules of evidence specifically limit character evidence to the character of a "person." See Fed. R. Evid. 404 & 405. If the Court is inclined to apply the character evidence rules here, however, the deficiencies noted in the JCAHO report are admissible pursuant to Fed. R. Evid. 404(b) to demonstrate knowledge, absence of mistake or motive. AVH's argument that the report should not be admitted because there will not be an opportunity to cross-examine the JCAHO investigators is mitigated by the fact that JCAHO provides an opportunity for a facility to make "a revision request of any portion" of the report. p. 5. Furthermore, AVH's counsel will have the opportunity to crossexamine Ms. Voight concerning the limitations of a JCAHO investigation and as to whether her reliance on this report was appropriate under the facts presented here. Similarly, AVH will be permitted to present their own expert's opinion that the hospital complied with JCAHO standards with respect to Dr. Bramlet. The evidence in this case

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can easily be presented in a way that will not confuse or unduly prejudice the jury. The JCAHO report addresses the conduct of AVH officials during the time period that Plaintiff's application for medical privileges was being assessed. Even though the report is dated July 8, 2002, the examiners investigated the practices of the hospital in years prior to the report date. In assessing the credentialing practices of AVH, the JCAHO report notes that JCAHO standards require that appointments should be made for a period of no longer than two years but that at AVH, "the range of late reappointment was one month to two years." P. 8. This conclusion indicates that the investigators reviewed credentialing information that covered at least the two years preceding the report. Whether the areas of criticism by JCAHO are proper impeachment is a question that cannot be answered until trial. That decision should be reserved until the Court has assessed the evidence this report may be used to contradict at trial. II. Curriculum Vitae and correspondence received in 1999 from candidates expressing an interest in relocating to Aspen, Colorado and all evidence relating to these exhibits. These documents were produced by AVH in response to a request to produce. They come from the files of the Defendant and were part of the documents possessed by Defendant when it was considering, and hiring, a cardiologist, Gr. Gerson. Defendant knew of these documents at the time of this consideration and at the time of the hiring decision.

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One of Dr. Bramlet's claims is that he was discriminated against, on the basis of his age, by AVH. Dr. Bramlet applied for a position with AVH as a contract cardiologist. AVH ultimately hired Dr. Gerson for the position, without properly considering any other applicant. The veracity of the information contained on the resumes is not a question for the jury in this case. The number of applicants, the treatment of the applicants and the state of mind of the decision-makers with respect to the other applicants is relevant to whether the procedure for hiring Dr. Gerson was appropriate. This evidence may be used to impeach any of the decision-makers with respect to the existence of additional applicants and the information available to the decisionmakers about the applicants. The evidence may also be used to rebut claims that the decision-makers were fully informed about the applicants. Plaintiff does not intend to offer the evidence to support a claim that AVH discriminated against these applicants on the basis of their national origin. III. Correspondence and fax sheet from John Wylie, of Merritt-Hawkins, to Randy Middlebrook, dated June 5, 2000. This document was produced from the records of the Defendant. It was the cover sheet for information submitted by AVH's agent for the hiring process of a cardiologist, along with information on the only cardiologist considered for the position, Dr. Gerson. Dr. Gerson was not in the protected age group when hired. It indicates that Dr. Gerson was 37 years old and contains other damaging statements against the Defendant.

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Mr. Middlebrook, the hospital's administrator, testified at his deposition that he relied upon Merritt-Hawkins to screen applicants for the position Dr. Bramlet sought with the hospital. He testified to communications with Merritt-Hawkins concerning the position and indicated that he had no recollection of specifying any criteria for the applicants except that AVH wanted a board-certified cardiologist. Depo, pp. 40-41. The letter from Merritt-Hawkins directly contradicts Mr. Middlebrook's recollection of the discussions concerning the search and should be admitted to impeach Mr. Middlebrook on this point, if necessary. Whether this document will be admitted will depend on the testimony at trial. In the candidate search process, John Wylie acted as AVH's agent. The statements of John Wylie are, therefore, admissions attributable to AVH and should be admitted pursuant to Fed. R. Evid. 801(d)(2). Under 801(d)(2)(D), if a statement is offered against a party and the statement is "a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship" then the statement is not hearsay. The issue of agency requires a factual determination by the court as to the relationship between Mr. Wylie and AVH and should, therefore, be reserved for trial. See e.g. 2 Charles T. McCormick, McCormick on Evidence § 259 (John William Strong ed., 4th ed. 1992)(the party offering evidence of the admission must first prove the agency relationship.) Furthermore, this letter was obviously prepared in the ordinary course of business and should be admitted pursuant to Fed.R. Evid. 803(6). AVH has not raised

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any objection as to the authenticity of this document, and if such objection was made it could easily be cured by certifying the document under Fed.R.Evid. 902(11). Since the issue of authenticity was not raised until this motion was filed, if AVH will not stipulate to the authenticity of this document, then Plaintiff requests leave of court to provide a certification of the document which complies with rule 902(11). IV. Snowmass Village Sun newspaper article dated August 9, 2000. On August 9, 2000, AVH was in the process of hiring a cardiologist. Dr. Bramlet expressed serious interest and a desire to be considered for this position. Plaintiff asserts he was not even considered. Ultimately, AVH hired Dr. Gerson to fill that position and, in this lawsuit, Dr. Bramlet claims that AVH's decision was based on age, in violation of the ADEA. Dr. Cohen's statement that "we are very optimistic we're going to find a young, dedicated doctor" (emphasis added) is evidence that the hospital based the hiring decision on the age of the candidate. At the time he made the statement, Dr. Cohen was participating in the hiring process as a member of the Medical Staff Development Committee of AVH. He was also a member of the Board of Directors of AVH and the Medical Executive Committee. It was the Board that apparently approved the hiring of Gerson, although it was "rubber-stamped." Dr. Cohen's statements, in the newspaper article, will be offered at trial against the hospital and are admissions, not hearsay. Fed.R.Evid. 801(d)(2). Dr. Cohen testified at his deposition that he made the statements included in the newspaper article published in the Snowmass Village Sun on August 9, 2000. Those

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statements are, therefore, prior statements by a witness which may be used to impeach the witness if he denies having made the statements at trial. Fed.R.Evid. 801(d)(1). V. Evidence and testimony relating to how AVH would have been harmed or hurt by granting consulting medical privileges to Plaintiff and any related argument. It is unclear from AVH's motion in limine exactly what evidence AVH seeks to exclude by asserting this argument. AVH does not specify any statements made by witnesses or any evidence included in the exhibits which AVH seeks to exclude. The Court should not, therefore, rule on this issue prior to trial. A broad ruling excluding evidence of potential harm to AVH would encompass testimony by witnesses about their motives throughout the hiring and credentialing process. The motives of the witnesses are relevant to Dr. Bramlet's claims and should not be excluded prior to trial. As stated in AVH's motion, the hospital's credentialing standard requires the decision-makers to consider whether "the inclusion of the appointee would extend the type of care and enhance the overall quality of patient care at the Hospital." Medical Staff Bylaws, Art. II, § 2. AVH apparently seeks an Order which permits testimony as to whether the candidate would "enhance" the hospital's care but excludes testimony that a candidate would not harm the care. AVH seeks to limit the witness testimony and argument to the specified standard, regardless of whether the witnesses would testify that they followed the standard. AVH argues that this line of questioning shifts the burden of proof on Dr.

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Bramlet's claims. The jury instructions will address the burden of proof and provide the jury with the standards to apply in evaluating this case. A broad ruling excluding references to harm to the hospital is unnecessary and would unduly limit Plaintiff's ability to cross-examine the witnesses as to their motives, a crucial element of this case. CONCLUSION All aspects of the motion should be denied. Respectfully submitted, LEAVENWORTH & KARP, P.C. By: s/ Sander N. Karp__________ Sander N. Karp, Esq. 201 14th Street, Suite 200 P. O. Drawer 2030 Glenwood Springs, CO 81602 Phone (970) 945-2261 [email protected] Attorneys for Plaintiff

CERTIFICATE OF SERVICE I hereby certify that on the 7th day of April, 2006, I electronically filed the foregoing PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION IN LIMINE with the Clerk of Court through CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] s/ Sander N. Karp

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