Free Motion in Limine - District Court of Colorado - Colorado

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

Document 223

Filed 03/28/2006

Page 1 of 19

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.

DEFENDANT'S MOTION IN LIMINE

Defendant Aspen Valley Hospital District (the "Hospital"), by and through its undersigned attorneys, moves in limine to exclude the evidence addressed below. D.C.Colo. LCivR 7.1 Certification Counsel undersigned hereby certifies that she and Plaintiff's counsel, Sander Karp, conferred on Friday March 24, 2002, by telephone, and attempted, in good faith, to resolve the matters addressed in this motion. A. 1. EVIDENCE TO BE EXCLUDED

Trial Exhibit F10, the Joint Commission on Accreditation of Hospitals

("JCAHO") survey report, dated July 8, 2002 ("JCAHO Report").1 The Hospital seeks to exclude the JCAHO Report and any questions to and testimony about or related to the JCAHO Report by or through Plaintiff's medical credentialing expert, Laura A. Voight, or any other
1

The Hospital filed an Amended Exhibit List this date. All references to Trial Exhibits refer either to the Amended Exhibit List or to Plaintiff's Exhibit List (which Plaintiff is in the process of amending).

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

Document 223

Filed 03/28/2006

Page 2 of 19

witness, or any references to the JCAHO Report in argument. See also Joint Rule 702 Motion re: Expert Laura Voight ("Voight 702 Motion"), filed this date. 2. Trial Exhibits 2 & 4-13, curriculum vitae and correspondence received in 1999

from various cardiologists who expressed an interest in relocating to Aspen, Colorado, and all evidence relating to these exhibits ("Resume Doctors"). The Hospital seeks to exclude the Resume Doctors evidence and any questions to and testimony about or related to the Resume Doctors evidence by or through any witness, or any references to the Resume Doctors evidence in argument. 3. Trial Exhibit P11, correspondence from Merritt-Hawkins representative, John

Wylie, to Randy Middlebrook, dated June 5, 2000, and fax cover sheet dated July 5, 2000 ("Merrit-Hawkins Letter"). The Hospital seeks to exclude the Merritt-Hawkins Letter and any questions to and testimony about or related to the Merritt-Hawkins Letter by or through any witness, or any references to the Merrit-Hawkins Letter in argument. In the alternative, the Hospital seeks to exclude or redact inadmissible portions of Merritt-Hawkins Letter. 4. Trial Exhibit 125, a newspaper article from the Snowmass Village Sun, dated

August 9, 2000 ("News Article"). The Hospital seeks to exclude the News Article and any questions to and testimony about or related to the News Article and its contents by or through any witness, or any references to the News Article in argument. 5. Any and all evidence and testimony, from any witness, relating in any way to

whether or how the Hospital would have been harmed or hurt by granting consulting medical staff privileges to Plaintiff ("Incorrect Standard Evidence"), and any argument relating to the Incorrect Standard Evidence.

2

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

Document 223

Filed 03/28/2006

Page 3 of 19

B. 1. JCAHO Report

LEGAL ARGUMENT

The Hospital seeks to exclude the JCAHO Report and any questions to and testimony about or related to the JCAHO Report by or through Plaintiff's medical credentialing expert witness, Laura A. Voight, or any other witness, or any argument relating to the JCAHO Report. Such evidence is inadmissible because: (a) it is irrelevant (Fed. R. Evid. 402); (b) it is hearsay (Fed. R. Evid. 801 & 802); (c) its prejudicial impact substantially outweighs its probative value, if any (Fed. R. Evid. 403); (d) it would confuse the issues or mislead the jury (Fed. R. Evid. 403); (e) it is improper character evidence or evidence of prior or subsequent bad acts of the Hospital and/or its staff (Fed. R. Evid. 404 & 608); (f) its admission would deprive the Hospital of its right to cross-examination; and (g) it lacks foundation and calls for speculation. Plaintiff's credentialing expert seeks to testify: On May 30, 2002, the JCAHO reviewed AVH [the Hospital] and their performance report is listed on the JCAHO website. AVH received an overall evaluation score of 81 points. 71% of all hospitals reviewed by JCAHO received a score between 90 to 100. Only 28% of reviewed hospitals received a score this low. The next lowest range of scores is between 70 and 79 and only 1% of hospitals reviewed received this score. AVH only missed that range by 2 points. AVH had 10 unacceptable areas and the JCAHO had to return to re-review the areas that needed improvement. Three of those areas were "Assessing Staff Competence," "Organization, Bylaws, Rules and regulations," and "Credentialing." It should be noted that on the second visit by the JCAHO on April 11, 2003, they again failed in the area of "Assessing Staff Competence" and the JCAHO had to again return to AVH on June 29, 2003, for this area. Expert Report of Laura A. Voight, dated September 22, 2004 ("Voight Report") at p. 9 (Voight 702 Motion). Significantly, Ms. Voight does not draw any connection between the JCAHO Report and Plaintiff or his claims. Instead, Plaintiff merely seeks to sling Ms. Voight's irrelevant JCAHO 3

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

Document 223

Filed 03/28/2006

Page 4 of 19

mud at the Hospital in an effort to prejudice the jury. Moreover, despite the problems and recommendations noted in the JCAHO Report, JCAHO was "pleased to award accreditation to [the Hospital] as a result of [the Hospital's] most recent survey, subject to the type I recommendations outlined in the attached report." JCAHO Report at July 8, 2002, cover letter. JCAHO's type I recommendations, none of which pertain to Plaintiff or his claims, are contained in the JCAHO Report at pp. 3-9. A. Relevance (Fed. R. Evid. 402)

The JCAHO Report relates to a survey that the Joint Commission on Accreditation of Hospitals conducted at the Hospital between May 28-30, 2002, and on June 7, 2002, over two years after the Hospital denied Plaintiff's application for consulting medical staff privileges and Plaintiff returned to Florida. JCAHO Report at Accreditation Decision Grid (following cover

letter), noting dates on survey. Supplemental JCAHO visits relating to the JCAHO Report occurred in April and June 2003, three years after Plaintiff's departure from the Hospital. Thus, the JCAHO Report and any subsequent JCAHO visits related to the report, do not cover the period of time that Plaintiff had or sought medical staff privileges at the Hospital. Further, the JCAHO Report contains no references to Plaintiff, Plaintiff's allegations against the Hospital, or the manner in which the Hospital addressed Plaintiff's applications for medical staff privileges. JCAHO Report, generally, and at pp. 5, 7 & 8, specifically. Neither does the JCAHO Report address any of Plaintiff's claims, or the issues relevant to Plaintiff's claims. Id. Plaintiff seeks to smear the general character and reputation of the Hospital and its staff through evidence of prior or subsequent bad acts of the Hospital and its staff. Plaintiff's expert first attacks the Hospital's overall JCAHO survey score by comparing it against the scores of

4

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

Document 223

Filed 03/28/2006

Page 5 of 19

other hospitals. Voight Report at 9. None of Plaintiff's claims relates to the Hospital's overall JCAHO score, or how that score relates to the scores obtained by other hospitals. Plaintiff's expert further smears the Hospital by commenting that the Hospital received unacceptable scores in "10 areas," despite the fact that none of the violations that resulted in the unacceptable scores in these areas relates to Plaintiff or any of his claims. Compare Voight Report at p. 9 with JCAHO Report, generally, and at pp. 5, 7 & 8, specifically. References to JCAHO's return visits concerning these irrelevant violations are equally irrelevant. Id. Plaintiff's expert specifically refers to three areas in which JCAHO found specific violations: 1. Credentialing: JCAHO requires hospitals to re-credential all members of their

medical staffs every two years. JCAHO MS.5.11. The JCAHO Report determined that the Hospital had failed to meet this requirement for a sample of five out of twenty medical staff members, none of whose names or circumstances are addressed in the JCAHO Report. Plaintiff was a member of the Hospital's medical staff for less than two years. The Hospital granted Plaintiff provisional medical staff privileges in November 1998, and denied his application for consulting medical staff privileges in August 2000, after which Plaintiff returned to Florida. Thus, the credentialing standard violation at issue in the JCAHO Report does not apply to Plaintiff or his claims. Similarly, none of the other credentialing standard violations addressed in the JCAHO Report apply to Plaintiff or his claims. violations of MS.5.5.2, 5.12.3, 6.3 & 6.9.1. 2. Organization, Bylaws, Rules and Regulations: The stated violation pertains See JCAHO Report at pp.7-9, stated

exclusively to the Hospital's failure to define the conditions for removal of Medical Executive

5

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

Document 223

Filed 03/28/2006

Page 6 of 19

Committee officers, noting that a draft of such conditions was ready for approval at an upcoming MEC meeting. JCAHO Report at p. 7, stated violation of MS.2.3.4.1.3. None of Plaintiff's claims relates to the conditions for the removal of MEC officers. 3. Assessing Staff Competence: The stated violation relates to JCAHO's assessment

of the Hospital's human resources files, which revealed that the Hospital had failed to timely complete job performance appraisals of some of its employees. JCAHO Report at p. 5, stated violation of H.R.5. None of Plaintiff's claims relate to employee job performance appraisals, timely or otherwise. Even assuming arguendo that if an expert's testimony otherwise complies with Fed. R. Evid. 702, an expert cannot testify to matters deemed irrelevant or otherwise inadmissible. Expert status does not provide carte blanche permission to testify to that which is deemed irrelevant, prejudicial or otherwise inadmissible. See Voight 702 Motion. B. Hearsay (Fed. R. Evid. 801 & 802)

The JCAHO Report consists of out of court statements made by JCAHO surveyors. It is comprised of their interpretations of their review of a host of documents and interviews with various Hospital employees and members of the Hospital's medical staff. Plaintiff is offering the JCAHO Report to prove the truth of the matters asserted within the report, i.e., that the Hospital received a low score from JCAHO and violated JCAHO standards. C. Right to cross-examination

The reasons and bases for the conclusions and interpretations reached in the JCAHO Report cannot be subjected to the rigors of cross-examination. Obviously, the Hospital cannot cross-examine the JCAHO Report itself. Further, the JCAHO Report does not identify the

6

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

Document 223

Filed 03/28/2006

Page 7 of 19

surveyors who conducted the survey, or the documents and witness interviews upon which the surveyors based their conclusions. D. Prejudice (Fed. R. Evid. 403). The JCAHO Report's prejudicial impact

substantially outweighs its probative value, if any. The JCAHO Report could cause substantial juror prejudice against the Hospital, despite the fact that its contents, as addressed above, are irrelevant to Plaintiff and his claims. Based on prejudice resulting from the Hospital's violation of some JCAHO standards and low JCAHO survey score, years after Plaintiff left the Hospital, jurors might conclude that the Hospital is bad or deficient, does not generally follow rules, or deserves to be punished. A substantial danger also exists that the jurors will give undue

deference to the JCAHO Report. Hall v. Western Production Co., 988 F.2d 1050, 1058 (10th Cir. 1993) (concluding that the only purpose to be served by admitting the evaluative report "would be to suggest to the jury that it should reach the same conclusion"). As the JCAHO Report was created by a commission that assesses hospitals, the jurors may presume that the JCAHO Report has a level of weight, confidence and expertise that is unwarranted. Thus, a substantial risk exists that the jurors would substitute the summaries and conclusions in the JCAHO Report for their own. Yet, as the JCAHO Report was issued before any hearing regarding its contents and was never subjected to rigorous cross-examination under the adversarial trial process, the trustworthiness of its contents cannot be assumed. Moreover, if the report itself is admitted into evidence, its contents are likely to be given undue weight by the jurors because they would be able to read and analyze it, at length, as they deliberate, unlike witness testimony that is merely heard by the jurors during trial. Further, although Colorado courts have not deemed JCAHO reports privileged from discovery, Colorado law contains ample support for maintaining the

7

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

Document 223

Filed 03/28/2006

Page 8 of 19

confidentiality of such reports and limiting their use to contexts in which their contents are not otherwise inadmissible. See, e.g., Sherman v. District Court of Denver, 637 P.2d 378, 383-84 (Colo. 1981) (recognizing, en banc, the important public interest in confidentiality of JCAHO hospital inspection reports). E. Confuse issues or mislead the jury (Fed. R. Evid. 403)

The JCAHO standards and the role of the Joint Commission in assessing hospital compliance with those standards is extremely complex. The Hospital's bylaws and credentialing guidelines are equally complex. Thus, there is a substantial likelihood of juror confusion

between the Hospital standards that do apply to Plaintiff and his claims, i.e., the Hospital's bylaws and credentialing guidelines, and the JCAHO standards determined to have been violated in the JCAHO Report, which do not apply to Plaintiff or his claims. F. Improper impeachment, character evidence, or evidence of prior or subsequent bad acts (Fed. R. Evid. 404 & 608)

Evidence that the Hospital violated JCAHO standards and received a low JCAHO survey score years after Plaintiff departed the Hospital is inadmissible. Fed. R. Evid. 404(a) & (b), 607, 608(b). Evidence of a defendant's character or trait of character is not admissible to prove

action in conformity therewith on a particular occasion, except as provided in Fed. R. Evid. 607609. Fed. R. Evid. 404 (a)(3). As the findings of the JCAHO Report do not relate to the

Hospital's credibility or that of its staff, they are equally inadmissible under Fed. R. Evid. 607. As they do not pertain to the character for truthfulness or untruthfulness of the Hospital or its staff, they are also inadmissible under Fed. R. Evid. 608(b). Fed. R. Evid. 609 is inapplicable, as no criminal convictions are at issue.

8

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

Document 223

Filed 03/28/2006

Page 9 of 19

G.

Lack of Foundation and Speculation (Fed. R. Evid. 602)

The JCAHO Report is inadmissible based on lack of foundation. The JCAHO Report is not based on any witness's personal knowledge; its findings are premised upon interpretations of unspecified hearsay by unnamed JCAHO surveyors. Further, it is purely speculative to assume that any of the Hospital's actions as to Plaintiff bear any connection to matters addressed in the JCAHO Report. Moreover, Plaintiff's expert simply reinterprets and further speculates about JCAHO's interpretations of prejudicial hearsay relating to irrelevant infractions that occurred two or three years after Plaintiff left the Hospital. 2. Resume Doctors Evidence The Hospital seeks to exclude the Resume Doctors evidence and any questions to and testimony about or related to the Resume Doctors evidence by or through any witness, or any references to the Resume Doctors evidence in argument. Such evidence is inadmissible because: (a) it is hearsay (Fed. R. Evid. 801 & 802); (b) it denies the Hospital its right to cross-examine the declarant; (c) its prejudicial impact substantially outweighs its probative value, if any (Fed. R. Evid. 403); (d) it would confuse the issues or mislead the jury (Fed. R. Evid. 403); (e) it is improper character evidence or evidence of prior or subsequent bad acts of the Hospital and/or its staff (Fed. R. Evid. 404 & 608); (f) Plaintiff lacks standing to assert claims on behalf of the Resume Doctors; and (g) it lacks foundation and calls for speculation. Plaintiff and Dr. Gerson were the only two applicants the Hospital considered for the contract position. As none of the Resume Doctors who sent resumes to the Hospital in 1999 was considered within the pool of applicants for the cardiology contract position that became available in 2000, the Resume Doctors and the resumes they submitted are irrelevant. Fed. R.

9

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

Document 223

Filed 03/28/2006

Page 10 of 19

Evid. 402; Dunlap v. City of Oklahoma City, 12 Fed. Appx. 831, 833 (10th Cir, 2001). Yet, Plaintiff seeks to offer the Resume Doctors evidence to prove that the Hospital discriminated against some of the Resume Doctors on the basis of their national origin. As Plaintiff claims that he was discriminated against on the basis of his age, not on the basis of his national origin, evidence of purported discrimination against the Resume Doctors on the basis of their national origins is irrelevant to Plaintiff's claims and highly prejudicial to the Hospital. Fed. R. Evid. 403. Such evidence would also confuse the jury as to the issues in the case, as the jury could improperly render a verdict in favor of Plaintiff on his age discrimination claim based on their conclusion that the Hospital discriminated against others on the basis of their national origin. Id. Plaintiff also lacks standing to assert claims on behalf of the Resume Doctors. The Resume Doctors evidence is also hearsay which lacks foundation and is speculative. Fed. R. Evid. 801, 802 & 602. The resumes submitted by the Resume Doctors are out-of-court statements and Plaintiff seeks to prove the truth of the matters asserted in those resumes, i.e., he seeks to prove from the resumes the national origins of the Resume Doctors. The Hospital cannot cross examine the resumes. The Resume Doctors are not listed witnesses and will not be present to be cross-examined. Plaintiff seeks to use the Resume Doctors evidence to show that the Hospital's actions with regard to Plaintiff conformed to their actions regarding the Resume Doctors. In essence, Plaintiff seeks to use the Resume Doctors evidence to prove that because the Hospital allegedly discriminated against the Resume Doctors based on their national origins, it is likely that the Hospital also discriminated against Plaintiff based on his age. This is precisely the type of improper character evidence or evidence of prior or subsequent bad acts precluded by Fed. R.

10

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

Document 223

Filed 03/28/2006

Page 11 of 19

Evid. 404 & 608; Wilson v. Muckala, 303 F.3d 1207, 1217 (10th Cir. 2002). Further, because the vast majority of the Resume Doctors appear, from the face of their resumes, to be under forty years of age, Plaintiff's assertions are inherently illogical and call for rank speculation that is unsupported by the information contained within the resumes. 3. Merritt-Hawkins Letter The Hospital seeks to exclude the Merritt-Hawkins Letter and any questions to and testimony about or related to the Merritt-Hawkins Letter by or through any witness, or any references to the Merrit-Hawkins Letter in argument. Such evidence is inadmissible because: (a) it is hearsay (Fed. R. Evid. 801 & 802); (b) it denies the Hospital its right to cross-examine the declarant; (c) its prejudicial impact substantially outweighs its probative value, if any (Fed. R. Evid. 403); (d) it would confuse the issues or mislead the jury (Fed. R. Evid. 403); (e) it is improper character evidence or evidence of prior or subsequent bad acts of the Hospital and/or its staff (Fed. R. Evid. 404 & 608); and (f) it lacks foundation and calls for speculation. In the alternative, the Hospital seeks to exclude or redact portions of the letter that contain references to "American born, American trained," and to Mr. Shepard's conclusion that "age is not a significant factor." The Merrit-Hawkins Letter is hearsay, as it is an out-of-court statement that Plaintiff offers for the truth of the matter asserted. Fed. R. Evid. 801 & 802; Lozano v. Ashcroft, 258 F.3d 1160, 1166 (10th Cir. 2001). Letters such as the Merrit-Hawkins Letter, which purport to reflect the intentions or views of someone other than the letter's author are inadmissible hearsay. Echo Acceptance Corp. v. Household Retail Services, Inc., 267 F.3d 1068, 1087-91 (10th Cir. 2001); Noble v. Alabama Dept. of Environmental Management, 872 F.2d 361, 365-6 (11th Cir. 1989).

11

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

Document 223

Filed 03/28/2006

Page 12 of 19

The Merrit-Hawkins Letter is comprised of the author's summary and interpretation of discussions he or someone else at Merritt-Hawkins had with Randy Middlebrook, or others at the Hospital. As such, it contains only his selected portions of those discussions and his capsule summaries of the substance of those discussions, described in words chosen by the author for reasons known solely to the author. Indeed, the Merritt-Hawkins Letter contains no direct quotes from any of the persons Mr. Wylie interviewed and, as such, is inherently untrustworthy. The Hospital cannot cross-examine the Merrit-Hawkins Letter and Plaintiff has not listed the letter's author, John Wylie, as a witness. Admitting the Merrit-Hawkins Letter as evidence without foundation and without affording the Hospital the right to cross-examine its author about the letter's contents would deprive the Hospital of the right to cross-examination and prevent the letter from being subjected to the scrutiny of rigors of cross-examination. It also calls for the jurors to speculate that the interviewees used the same words or content the letter's author chose to include in the letter. The author's interpretations and summaries of the out-of-court statements of other people is also irrelevant. Fed. R. Evid. 402. As the author's mental state is not at issue in this case, his interpretations and beliefs about the interviews and which portions of the interviews warranted reporting are equally irrelevant. Id. In contrast, if this evidence is admitted, Mr. Middlebrook,

the Hospital's former CEO, will testify that he expressed only the Hospital's preference for a physician who received his or her medical education in the United States, which is generally recognized to have the best medical schools in the world, and expressed no preferences as to the physician's national origin. Of course, such testimony is not relevant to Plaintiff claims of age discrimination.

12

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

Document 223

Filed 03/28/2006

Page 13 of 19

The prejudicial impact of the Merritt-Hawkins Letter substantially outweighs its probative value, if any. Fed. R. Evid. 403. There is a substantial risk that jurors would be

unduly swayed by the author's interpretation of his discussions with others, as contained in the Merritt-Hawkins Letter. The author included words and phrases in the Merritt-Hawkins Letter that are not quotes from those interviewed. As the author chose which words to use in the Merritt-Hawkins Letter, the jury cannot be asked to speculate that the author's word choices accurately reflect the words that were actually used by the persons interviewed, or even that the author accurately recorded the concerns or topics discussed. Thus, the danger of prejudice substantially outweighs any probative value of the Merritt-Hawkins Letter. Fed. R. Evid. 403. The author of the Merritt-Hawkins Letter used the phrase "American-born, American trained" in the letter. As Plaintiff has no claims for discrimination based on national origin, such evidence is irrelevant and inflammatory and very prejudicial to the Hospital. See discussion, supra, at § B.2. Further, the jury could confuse Plaintiff's claim of age discrimination with nonexistent claims of national origin discrimination by the Resume Doctors. Id. The jury could improperly render a verdict in favor of Plaintiff on his age discrimination claim based on its conclusion that the Hospital discriminated against others on the basis of their national origin. Id. Plaintiff also lacks standing to assert claims on behalf of other physicians who were trained outside of the United States. Id. Moreover, as addressed above, the jury cannot be asked to

speculate that the author's word choices accurately reflect the words that were actually used by the persons interviewed, or even that the author accurately recorded the concerns or topics discussed.

13

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

Document 223

Filed 03/28/2006

Page 14 of 19

The author of the Merritt-Hawkins Letter also selected the phrase "age is not a significant factor" for the letter. Mr. Middlebrook will testify at trial that he advised Merritt-Hawkins age was not a factor in any way. This word choice by the author of the Merritt-Hawkins Letter is also inadmissible, for the same reasons addressed above. In the alternative, the Hospital seeks to exclude from the Merritt-Hawkins Letter the author's references to "American-born, American trained" and "age is not a significant factor," based on the arguments detailed above. 4. News Article The Hospital seeks to exclude the News Article and any questions to and testimony about or related to the News Article by or through any witness, or any references to the News Article in argument. Such evidence is inadmissible because: (a) it is hearsay (Fed. R. Evid. 801 & 802); (b) its prejudicial impact substantially outweighs its probative value, if any (Fed. R. Evid. 403); (c) it would confuse the issues or mislead the jury (Fed. R. Evid. 403); (d) its admission would deprive the Hospital of its right to cross-examination; (e) it is irrelevant (Fed. R. Evid. 402); and (f) it lacks foundation and calls for speculation. Newspaper articles are inadmissible hearsay. Molina v. Spanos, No. 98-4119, 1999 WL 626126, *5 (10th Cir. Aug. 18, 1999); Jim Sowell Construction Co. v. City of Coppell, 61 F.Supp.2d 542, 550 (N.D. Tex. 1999); Fed. R. Evid. 801 & 802. The News Article is comprised of the reporter's summary and interpretation of various interviews. As such, it contains only her selected portions of those interviews, partial quotes from interviewees, and capsule summaries of the substance of the interviews, all taken out of context in the manner deemed appropriate by the reporter. Such evidence is rank hearsay. Id.

14

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

Document 223

Filed 03/28/2006

Page 15 of 19

The reporter's opinions, interpretations and summaries of the out-of-court statements of other people is also irrelevant. Fed. R. Evid. 402. As the reporter's mental state is not at issue in this case, her interpretations and beliefs about the interviews and which portions of the interviews warranted reporting are equally irrelevant. Id. The prejudicial impact of the News Article substantially outweighs its probative value, if any. Fed. R. Evid. 403. There is a substantial risk that jurors would be unduly swayed by the

reporter's interpretation of the interviews, as contained in the News Article. The reporter who wrote the News Article interviewed Dr. Cohen as a private physician, in the context of his return from retirement to cover the Aspen community's cardiology needs following Plaintiff's leave of absence, and not as a Hospital Board member. Thus, there is no basis for attributing any of Dr. Cohen's out-of-court statements to the reporter as statements made on behalf of the Hospital and it would be purely speculative to draw such a conclusion. However, because Dr. Cohen was a Hospital Board member at the time of the personal interview with the reporter, the jury could be confused about the capacity in which he was interviewed. Further, the jury could confuse the reporter's interpretation of her interviews with Dr. Cohen and other interviewees with the actual statements made by Dr. Cohen and other interviewees. The Hospital cannot cross-examine the News Article and Plaintiff has not listed the reporter as a witness. Thus, foundation for the News Article cannot be properly lain, the reporter will not be subjected to the rigors of cross-examination, and the trustworthiness of the News Article cannot be determined. Fed. R. Evid. 602.

15

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

Document 223

Filed 03/28/2006

Page 16 of 19

5.

Incorrect Standard Evidence The Incorrect Standard Evidence is inadmissible because: (a) it is irrelevant (Fed. R.

Evid. 402); (b) it lacks foundation and calls for speculation (Fed. R. Evid. 602); (c) its prejudicial impact outweighs its probative value, if any (Fed. R. Evid. 403); and (d) it would confuse the issues or mislead the jury (Fed. R. Evid. 403). The Hospital's standard for granting consulting medical staff privileges is whether the applicant has: been recognized by the Board, during appointment and reappointment, to be in a specialty which is underserved or not served by the Hospital's medical community, and 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. The standard is not whether granting the request for consulting medical staff privileges will harm or hurt the Hospital. Thus, such standard is irrelevant. Fed. R. Evid. 402. Moreover, Plaintiff can lay no foundation that the standard requires any determination that the Hospital would be harmed or hurt. Fed. R. Evid. 602. Thus, all questions and evidence to this effect are irrelevant and lack foundation. Moreover, such questions and evidence impermissibly ask

witnesses, and the jurors, to speculate about a standard that never applied and, as such, was never considered or addressed. Id. Plaintiff has the burden to prove that the Hospital's Board lacked discretion to conclude that the Hospital's standard for granting consulting medical staff privileges was not met. In effect, questions and evidence about whether the Hospital would have been "hurt" or "harmed" if Plaintiff's request for consulting medical staff privileges had been granted switch the burden of proof to the Hospital to show that Plaintiff's inclusion would have harmed the Hospital. The 16

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

Document 223

Filed 03/28/2006

Page 17 of 19

prejudicial impact of such questions and evidence substantially outweigh their probative value, which is nonexistent. Further, such questions and evidence have the substantial risk of confusing the jurors as to the correct standard that actually applied. Based on the foregoing, the Hospital requests that this Court grant its motion in limine and exclude the following evidence: 1. The JCAHO Report and any questions to and testimony about or related to the JCAHO Report by or through Plaintiff's medical credentialing expert, Laura A. Voight, or any other witness, or any references to the JCAHO Report in argument. See also Joint Rule 702 Motion re: Expert Laura Voight ("Voight 702 Motion"), filed this date; The Resume Doctors evidence and any questions to and testimony about or related to the Resume Doctors evidence by or through any witness, or any references to the Resume Doctors evidence in argument; The Merritt-Hawkins Letter and any questions to and testimony about or related to the Merritt-Hawkins Letter by or through any witness, or any references to the Merrit-Hawkins Letter in argument. In the alternative, the Hospital seeks to exclude or redact inadmissible portions of Merritt-Hawkins Letter; The News Article and any questions to and testimony about or related to the News Article and its contents by or through any witness, or any references to the News Article in argument; and The Incorrect Standard Evidence and any and all evidence and testimony, from any witness, relating in any way to the Incorrect Standard Evidence, and any argument relating to the Incorrect Standard Evidence.

2.

3.

. 4.

5.

17

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

Document 223

Filed 03/28/2006

Page 18 of 19

Dated this 28th day of March, 2006. Respectfully submitted,

s/Colleen M. Rea Colleen M. Rea, Esq. #024960 FORD & HARRISON LLP 1675 Broadway, Suite 2150 Denver, CO 80202 Telephone: (303) 592-8860 Facsimile: (303) 592-8861 E-Mail: [email protected] ATTORNEYS FOR DEFENDANT ASPEN VALLEY HOSPITAL DISTRICT

18

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

Document 223

Filed 03/28/2006

Page 19 of 19

CERTIFICATE OF MAILING (CM/ECF) I hereby certify that on March 28, 2006, I electronically filed the foregoing DEFENDANT'S MOTION IN LIMINE with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail addressee: Sander N. Karp, Esq.: [email protected]

s/ Colleen M. Rea Colleen M. Rea, (#024960 Ford & Harrison LLP 1675 Broadway, Suite 2150 Denver, CO 80202 Telephone: (303) 592-8860 Facsimile: (303) 592-8861 E-mail: [email protected] ATTORNEYS FOR DEFENDANT ASPEN VALLEY HOSPITAL DISTRICT
Denver:11110.1

19