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Tucker v. Nelson

United States District Court, S.D. Ohio, Eastern Division

June 3, 2019

KAREN NELSON, et al., Defendants.

          Jolson Magistrate Judge

          OPINION & ORDER


         This 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.

         I. BACKGROUND

         Brenda 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.

         Plaintiff 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 death.


         As a 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.

         III. LAW & ANALYSIS

         Only 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. 402.

         Rule 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.

         A. Information Contained in Medical Records

         Plaintiff 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).

         Hearsay 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 ...

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