United States District Court, S.D. Ohio, Eastern Division
OPINION & ORDER
ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff's Motion in
Limine (ECF No. 36) and Defendants' Supplemental Trial
Brief (ECF No. 44). The Court issued oral decisions on the
motions at the Wednesday, May 24, 2019 Final Pretrial
Conference, but sets forth its reasoning more fully herein.
For the following reasons, the Court DENIES
Plaintiff's Motion to limit the Defendants' opinion
witness testimony. The Court HOLDS IN
ABEYANCE Plaintiff's Motion to exclude Dr.
Atkinson's statement in Mrs. Tucker's medical record.
The Court GRANTS Defendants' Motion to
exclude cross-examination on Dr. Nelson's failed attempts
at board certification.
Tucker, a citizen of West Virginia, went to the Holzer Clinic
in Gallipolis, Ohio, for an angiogram, angioplasty, and
stenting of her left common iliac artery on November 2, 2015.
(ECF No. 1 at 2). Dr. Dean Siciliano performed the procedure.
About an hour after the procedure, Mrs. Tucker's right
foot began to hurt, and her foot appeared pale. The doctors
put Mrs. Tucker on a heparin drip. Her foot pain intensified,
and Dr. Nelson performed surgery on Mrs. Tucker.
alleges that Mrs. Tucker experienced an arterial bleed, and
Dr. Nelson negligently treated the bleed. Mrs. Tucker died
following the surgery. Johnnie Tucker, as Administrator of
Mrs. Tucker's estate, brought this action for wrongful
STANDARD OF REVIEW
general rule, “a court should exclude evidence on a
motion in limine only when that evidence is
determined to be clearly inadmissible on all potential
grounds.” Delay v. Rosenthal Collins Grp.,
LLC, No. 2:07-CV-568, 2012 WL 5878873, at *2 (S.D. Ohio
Nov. 21, 2012). Thus, when the “court is unable to
determine whether . . . certain evidence is clearly
inadmissible, evidentiary rulings should be deferred until
trial so that questions of foundation, relevancy and
potential prejudice can be resolved in the proper
context.” Id. Orders on motions in limine that
exclude broad categories of evidence should rarely be
employed; the better practice is to deal with questions of
admissibility of evidence as they arise. Sperberg v.
Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th
Cir. 1975); see also Morrison v. Stephenson, No.
2:06-CV-283, 2008 WL 343176, at *1 (S.D. Ohio Feb. 5, 2008)
(“Courts . . . are generally reluctant to grant broad
exclusions of evidence in limine, because “a
court is almost always better situated during the actual
trial to assess the value and utility of evidence.”).
Whether to grant a motion in limine falls within the sound
discretion of the trial court. Delay, 2012 WL
5878873, at *2.
LAW & ANALYSIS
relevant evidence is admissible. Fed.R.Evid. 402. Evidence is
relevant if “it has any tendency to make a fact more or
less probable, ” and “the fact is of consequence
in determining the action.” Fed.R.Evid. 401. “The
standard for relevancy is ‘extremely liberal' . . .
.” Dortch v. Fowler, 588 F.3d 396, 400 (6th
Cir. 2009) (internal citation omitted). “[A] piece of
evidence does not need to carry a party's evidentiary
burden in order to be relevant; it simply has to advance the
ball.” Id. at 401. Additionally, evidence can
be relevant even if it does not relate to a fact in dispute,
provided the evidence supplies background information about a
party or issue. See Advisory Committee Notes to 1972
Proposed Rules (“Evidence which is essentially
background in nature can scarcely be said to involve disputed
matter, yet it is universally offered and admitted as an aid
to understanding.”). Relevant evidence is admissible
unless excluded under a specific provision of the
Constitution, a federal statute, Federal Rules of Evidence,
or other rules prescribed by the Supreme Court. Fed.R.Evid.
403 can operate to bar otherwise relevant evidence. Rule 403
grants trial courts discretion to exclude evidence “if
its probative value is substantially outweighed” by the
risk of “unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Fed.R.Evid. 403.
Information Contained in Medical Records
moves to exclude Dr. Sarah Atkinson's statement in Mrs.
Tucker's medical records. Dr. Atkinson states:
“Given results of aortogram and CT this is likely a
venous bleed.” Plaintiff argues that Dr. Atkinson never
saw Mrs. Tucker and that the statement goes to an ultimate
issue in the case-where Mrs. Tucker was bleeding. (ECF No. 36
at 1). Plaintiff also argues that this statement is hearsay
not subject to any exception. Defendants argue that this
statement is admissible as a business record under Rule
803(6) and that Dr. Atkinson was involved in diagnosing and
treating Mrs. Tucker. (ECF No. 39 at 3).
is any out of court statement “offer[ed] in evidence to
prove the truth of the matter asserted in the
statement.” Fed.R.Evid. 801(c). The statement here is
hearsay: Dr. Atkinson made the out of court statement, and
the Defendants are offering it for the truth of the matter
asserted in the ...