Opinion
NO. CIV-99-1524-T
May 29, 2002
ORDER
Before the court are the motions in limine filed jointly by all defendants. By separate orders, the court has ruled on defendants' Motion No. 15 seeking exclusion of videotapes and their Motion No. 20 concerning the temporary misplacement of the notes of Dr. Stephen L. Clark. Defendants seek exclusion of 19 additional items of evidence. In response, plaintiffs state that they do not object to the defendants' Motion Nos. 2, 4, 5 and 12 relating to, respectively, the "personalizing" of plaintiffs' case, prior malpractice claims, the fact that one of plaintiffs' attorneys is a physician, and any "attacks" regarding the conduct of defendants' counsel. Accordingly, defendants' motion as to these matters is granted.
The court finds as follows with respect to the remaining motions: Defendants' Motion No. 1:
Defendants' first motion seeks exclusion of evidence of professional liability insurance maintained by any defendant or expert witness testifying on defendants' behalf, arguing that Fed.R.Evid. 411 prohibits such evidence on the issue of negligence. Plaintiffs contend, however, that such evidence may be admissible under certain exceptions to the rule. Although plaintiffs do not identify the exception on which they rely, they offer to approach the bench at trial to seek a ruling prior to offering such evidence and suggest that the evidence may be admissible pursuant to Stout v. Wollmann, 967 P.2d 878 (Okla. 1998). In Wollmann, the court reversed a trial court decision excluding evidence that defendant's expert witness was also a member of the board of directors of defendant's malpractice insurer and served on its loss prevention committee, as such could show the bias of the witness, 967 P.2d at 879. In doing so, however, the court expressly noted that evidence concerning the witness' liability insurance is admissible only where the witness has "a substantial connection with the business of the common insurer." Id., citing Mills v. Grotheer, 957 P.2d 540, 543 (Okla. 1998).
Thus, if plaintiffs intend to show that a defendant's witness has the same insurer as the defendant, that relationship alone is not sufficient to render the evidence admissible. Defendants indicate that no closer relationship exists and plaintiffs have made no showing to the contrary in support of their position. Therefore, defendant's motion is granted. Defendants' Motion Nos. 3 and 18:
In their third and eighteenth motions, defendants seek to exclude certain evidence of the damages sought by the parents of Brittany Koval. Motion No. 3 seeks exclusion of evidence of their loss of enjoyment of life or "hedonic" damages caused by their daughter's condition. In Motion No. 18, defendants seek exclusion of specified damages which the parents seek to recover. These include the expenses of medical care, treatment and services incurred by the parents; those related to the differences in the parent-child relationship as it should have been and as it is: those attributable to the change in the nature and quality of the parents' lives because of Brittany's severe brain damage; and, the damages resulting from the loss of her mother's earnings and earning capacity.
Defendants contend that the recoverable damages must be limited to those authorized by the Oklahoma Uniform Jury Instructions ("OUJI"), Instruction No. 4.2, which delineates the elements of damages which may be considered by the jury in cases involving personal injuries to a minor child. The items sought by the parents are not included in that instruction. As plaintiffs point out, however, the notes to the Instruction expressly authorize the court to include other element of damages "allowed by law which is supported by the evidence," even though it is not listed in the instruction. Notes, OUJI Instructions Nos. 4.2, 4.3.
The court concludes that the express elements of damages list in the OUJI instruction is not exclusive and, according to the notes accompanying the OUJI, additional elements of damages may be recovered if the evidence warrants. Therefore, defendants' motion to exclude such evidence is denied.
Furthermore, recovery of the specific elements of damages sought by Brittany's parents and challenged by defendants is supported by Oklahoma law. As plaintiffs note, the Oklahoma Supreme Court has allowed a minor child to recover for loss of consortium resulting from a parent's permanent injury. Williams v. Hook, 804 P.2d 1131, 1138 (Okla. 1990). Plaintiffs suggest that the same reasoning should allow recovery of such damages by the parents where their child suffers permanent injury. The court agrees. Although the parties in this case have not submitted direct authority addressing this issue, and the court has located none, the court concludes that such recovery is reasonable and authorized by analogous authority.
Accordingly, defendants' motions in limine No. 3 and No. 18 are denied. In reaching this result, the court cautions plaintiffs that the evidence must be carefully submitted to avoid duplicative recovery for those damages claimed on behalf of Brittany Koval and those sought by her parents. Defendants' Motion No. 6:
Defendants' sixth motion in limine seeks exclusion of evidence that defendant Dr. Kincheloe has an interest in alternative medicine. Plaintiffs state that, during the time he treated plaintiff Sandy Koval, Dr. Kincheloe published articles concerning hypnosis, herbal medicine and acupuncture, and that his curriculum vitae includes a statement that he specializes in herbal medicine and acupuncture.
Although the court agrees that Dr. Kincheloe's training and background in medicine are relevant to the issues in this case, there is no evidence that he utilized alternative medicine in his treatment of Sandy Koval. In fact, there is no indication that plaintiffs contend that he did so or that his interest in such practices has any bearing whatsoever on the issues in this case. Absent such allegation, the court finds this evidence lacking in probative value. Accordingly, defendants' motion is granted.
Defendants' Motion No. 7:
In their seventh motion, defendants seek exclusion of evidence concerning the web site maintained by defendant Central Oklahoma Medical Group ("COMG"). Defendants state that the web site contains some inaccurate information concerning defendant Dr. Kincheloe's educational background; however, defendants contend, discovery has established that neither the plaintiffs nor their expert witness consulted the web site in connection with Dr. Kincheloe's treatment or any issue in this case. Notwithstanding that fact, plaintiffs argue that the errors in the web site are relevant to the issue of Dr. Kincheloe's credibility, as he apparently furnished the information contained on the site.
Plaintiffs do not specify the alleged inaccuracies. Defendants say the error relates to whether Dr. Kincheloe has a Ph.D. in psychology or simply has hours toward a Ph.D. in psychology.
Defendants' argue Dr. Kincheloe does not know who created or added information to this website.
The court finds the information was either provided by Dr. Kincheloe or that he knew or should have known of the information but did not correct it. Accordingly, the information may directly impact Dr. Kincheloe's credibility and is admissible. Therefore, defendants' motion is granted.
The website information, if it is admitted, should be redacted in compliance with the court's ruling on defendants' sixth motion
Defendants' Motion No. 8:
Defendants seek to exclude evidence that one or more of plaintiffs' expert witnesses has adopted children who are mentally retarded, arguing that such evidence is misleading and prejudicial. In response, plaintiffs state that they do not intend to offer such evidence with regard to their expert witness, Dr. Huddle; however, they contend that the evidence is relevant to the testimony of Dr. Erin Bigler, a neuropsychology expert who will testify concerning the challenges of raising a mentally impaired child. Plaintiffs contend that the fact he has a mentally impaired child renders him capable of testifying about such matters.
The court agrees with plaintiffs that the fact that Dr. Bigler has a mentally impaired child is a fact which affects his knowledge and experience regarding the subject of caring for such a child. Defendants' contention that this evidence is prejudicial and misleading is not persuasive. Although the court does not anticipate permitting extensive testimony concerning Dr. Bigler's child or his experience as the parent of a mentally retarded child, the fact that he has such a child and has such experience is admissible. Therefore, defendants' motion is denied.
Defendants' Motion No. 9:
In their ninth motion in limine, defendants seek to exclude evidence that Mr. Koval is a member of the National Guard who served in Bosnia. Defendants contend that this evidence is irrelevant and potentially prejudicial. Plaintiffs state that they intend to offer evidence that he is a National Guard member to show that, during periods of National Guard service, he cannot be present to assist Mrs. Koval in caring for Brittany. Thus, they argue, this fact is relevant to the claimed damages.
The court concludes that, while the fact that Mr. Koval's National Guard service may be relevant for this purpose, where he has served or the nature of his service has no bearing on the issues in this case. Therefore, plaintiffs may introduce evidence of his National Guard obligations for this limited purpose. To that extent, the defendants' motion is denied.
Defendants' Motion No. 10:
In their tenth motion, defendants refer to the fact that plaintiffs' experts testified in their depositions that they did not rely on medical literature in offering their opinions. Plaintiffs contend that this is incorrect, and that the experts stated that they consulted general pediatric neurology texts. Apparently, plaintiffs intend to offer some of this material as evidence at trial.
The court concludes that the parties' respective arguments concerning this motion are insufficiently clear to permit the court to rule at this time. Obviously, the court expects any exhibits on which witnesses rely to have been disclosed to the opposing parties; certainly, any exhibits to be offered at trial must have been exchanged as required by the rules of this court.
Accordingly, the parties are directed to confer and advise the court if there is a dispute regarding anticipated exhibits. The parties must do so no later than Thursday, May 30, 2002.
Defendants' Motion No. 11:
Defendants' eleventh motion seeks exclusion of references to discovery disputes which have occurred during the course of this litigation. In particular, defendants ask the court to prohibit counsel from accusing opposing counsel of withholding evidence or otherwise failing to conduct discovery in good faith. The court agrees that such references are inappropriate and will not be permitted at trial. Therefore, defendants' motion is granted.
Defendants' Motion No. 13:
Defendants' thirteenth motion seeks exclusion of references to the fact that defendants have elected not to call certain witnesses. They contend that such comments are misleading and prejudicial. In their supplemental response, plaintiffs clarify they are concerned with Dr. Walter Milton. the Baptist Hospital radiologist who interpreted a CT scan of Brittany Koval's brain approximately ten days after her birth. That defendants have not called him as a witness will be apparent, and the fact that defendants have not done so is not prejudicial or misleading to the jury. Defendants' motion is denied.
Defendants' Motion No. 14:
In their Motion No. 14, defendants seek to prohibit plaintiffs' neuropsychology expert, Dr. Erin Bigler, from testifying regarding the interpretation of neuroimaging films. They contend that he has no formal training in such interpretation or the correlation of the same to the causation of Brittany Koval's cerebral palsy. Plaintiffs counter that Dr. Bigler has authored books and articles on this subject and is qualified to testify on this subject.
Although defendants challenged the credentials of several expert witnesses in their motion for summary judgment, Dr. Bigler was not the focus of that motion. Based on the evidence before the court at this time, the court finds that Dr. Bigler is qualified to render the opinion suggested by plaintiffs. Defendants are, of course, free to challenge his expertise and experience in cross-examination and/or through the testimony of other witnesses. However, the court is not persuaded that his testimony should be excluded. Defendants' motion is denied.
Defendants' Motion No. 16:
Defendants' sixteenth motion seeks exclusion of evidence related to punitive damages until such time as the court determines whether such damages may be considered by the jury. Specifically, defendants ask the court to prohibit plaintiffs from using the phrase, "punitive damages," until the court determines that such damages may be considered.
In response, plaintiffs argue that some of the evidence which they believe will support such damages must be presented in their case in chief. The court appreciates the fact that such evidence must be presented; however, the court agrees with defendants that plaintiffs must avoid reference to a request to the jury that they consider "punitive damages" unless and until the court determines such damages may be recovered. Therefore, plaintiffs are directed to refrain from using that phrase or similar language regarding exemplary damages or punishment of the defendants until and unless the court determines that such damages may properly be considered. This ruling does not preclude the plaintiffs from introducing the evidence which they believe supports the availability of such damages in this case. Defendants' motion is thus granted in part and denied in part.
Defendants' Motion No. 17:
Defendants' next motion seeks to exclude evidence that one of plaintiffs' attorneys, Pat Ryan, was the United States Attorney who prosecuted the defendants in the trial related to the bombing of the Murrah Building. They also seek exclusion of evidence that Mrs. Koval was, at that time, employed by the United States Attorney's office and worked on the bombing trial.
In response, plaintiffs state that they do not intend to raise the fact that Mr. Ryan served as U.S. Attorney and prosecuted the case; however, they properly note that a juror may recognize him or be aware of his role Plaintiffs state that they do intend to present evidence of Mrs. Koval's former employment in connection with her claimed damages.
The court concludes that plaintiffs may introduce evidence of Mrs. Koval's former employment for this purpose. That does not, however, authorize evidence concerning the bombing trial, as such appears to have no relevance to her claimed damages. Similarly, the court agrees that plaintiffs have no control over the possibility that jurors may be aware of Mr. Ryan's former position. Although no such recognition was shown during voir dire. Plaintiffs are directed to avoid raising this point, as it has no relevance to the issues in this trial. Subject to these limitations, defendants' motion is denied.
Defendants' Motion No. 19:
Defendants' Motion No. 19 reiterates their argument, asserted in a motion for summary judgment, that plaintitis' expert witnesses' testimony must be excluded as scientifically unreliable. In denying defendants' motion for summary judgment, the court rejected that argument and ruled the evidence admissible. Therefore, defendants' Motion No. 19 is denied.
Defendants' Motion No. 21:
In their final motion, defendants seek to exclude or limit the presence of Brittany Koval at trial. In a prior order, the court has ruled that her presence for a limited time period is appropriate and will be allowed. To the extent that defendants seek a more restrictive ruling, their motion is denied.
In accordance with the foregoing, the defendants' motions in limine are granted in part and denied in part, as set forth above. With respect to defendants' Motion No. 10 concerning materials upon which plaintiffs' expert witnesses rely, the parties are directed to confer and advise the court no later than May 30, 2002 if there is any need for court intervention.
IT IS SO ORDERED this 29 day of May, 2002.
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