Zhai v. Central Nebraska Orthopedics & Sports Medicine, P.C.
4:16-cv-03049
| D. Neb. | Mar 23, 2018Background
- Plaintiff Wenjia Zhai sued Central Nebraska Orthopedics & Sports Medicine, P.C. and Dr. Philip Cahoy for allegations arising from medical treatment; defendants moved in limine to exclude certain evidence and arguments.
- The motion in limine was addressed to numerous categories of evidence and argument the defendants sought to bar at trial.
- The magistrate judge issued an order on March 23, 2018 granting or accepting stipulations to exclude several categories as irrelevant, prejudicial, hearsay, or otherwise inadmissible.
- Exclusions include evidence of defendants’ malpractice insurance, prior malpractice suits, unrelated disciplinary proceedings, references to defendants’ wealth, and the Nebraska Hospital-Medical Liability Act/damage caps.
- Court also excluded undisclosed expert opinions, undisclosed medical literature, hearsay statements from non-testifying physicians, subsequent remedial measures, certain safety/duty language, inflammatory jury-appeal arguments (e.g., "conscience of the community," punish/send a message), and commentary implying physician solidarity among experts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of defendants' malpractice insurance | Zhai might argue insurance evidence shows ability to pay or context | Defendants: insurance is irrelevant and prejudicial | Excluded (Fed. R. Evid. 411) |
| Hearsay statements by non-testifying physicians | Zhai may offer out-of-court physician statements to support care issues | Defendants: such statements are hearsay without live expert testimony | Excluded as hearsay (Fed. R. Evid. 802) |
| Use of medical articles/treatises not produced in discovery | Zhai: new literature may be relevant to standard of care or causation | Defendants: undisclosed materials unfairly surprise and prejudice defense | Excluded if not previously identified/produced during discovery |
| Prior malpractice lawsuits against defendants | Zhai: prior suits may show pattern | Defendants: prior suits irrelevant and unfairly prejudicial | Excluded (irrelevant/prejudicial) |
| Reference to Nebraska Hospital-Medical Liability Act / damage caps | Zhai might reference statutory scheme or caps for context | Defendants: statute/cap irrelevant to issues before jury | Excluded (irrelevant/prejudicial) |
| Evidence of unrelated disciplinary proceedings | Zhai: disciplinary history could bear on credibility or care | Defendants: unrelated proceedings are irrelevant and prejudicial | Excluded (irrelevant/prejudicial) |
| Undisclosed expert testimony | Zhai: may seek to elicit opinions from previously undisclosed experts | Defendants: undisclosed experts violate disclosure rules | Excluded (inadmissible) |
| Subsequent remedial measures or changed practices after incident | Zhai: post-incident changes show prior deficiency | Defendants: post-event changes inadmissible to prove negligence | Excluded (Fed. R. Evid. 407; prejudicial) |
Key Cases Cited
- Jones v. Transii, 212 Neb. 843 (recognizing exclusion of evidence of prior malpractice suits as unduly prejudicial)
- Rheimer v. Surgical Servs. of the Great Plains, 258 Neb. 671 (limiting relevance of Nebraska Hospital-Medical Liability Act references at trial)
- Hoffert v. Hodge, 9 Neb. App. 161 (explaining prejudice concerns relating to statutory damage caps)
- Paulk v. Cent. Lab. Assocs., 262 Neb. 838 (addressing admissibility of opinions from undisclosed experts)