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Ervine v. Desert View Regional Medical Center Holdings, LLC

United States District Court, D. Nevada

September 13, 2017

SIE ERVINE, et al., Plaintiffs,
v.
DESERT VIEW REGIONAL MEDICAL CENTER HOLDINGS, LLC, et al., Defendants.

          ORDER

         Presently before the court are several motions in limine filed by defendants Georges Tannoury, M.D. (a corporation) and Dr. Georges Tannoury (an individual) (collectively, “defendants”). (ECF Nos. 127, 128, 129, 130, 131, 132, 133). Plaintiffs filed responses to defendants' first, second, third, fifth, and seventh motions.[1] (ECF Nos. 140, 141, 142, 143, 144).

         Also before the court are two motions in limine filed by plaintiff Sie Ervine, who is named in his personal capacity and as executor of the estate of Charlene Ervine (hereinafter referred to as “plaintiffs, ” to afford consistency with the parties' filings). (ECF Nos. 134, 135). Defendants filed a response to plaintiffs' second motion in limine.[2] (ECF No. 138).

         Also before the court is plaintiffs' request for amendment of the parties' joint pretrial statement. (ECF No. 145).

         I. Facts

         On September 14, 2010, plaintiffs filed an amended complaint. (ECF No. 4). Plaintiffs' amended complaint asserts federal causes of action under Section 504 of the Rehabilitation Act and Title III of the Americans with Disabilities Act (“ADA”), and state causes of action for negligent and intentional infliction of emotional distress. Id.

         On December 8, 2011, the court dismissed plaintiffs' federal claims as being filed outside of the relevant statute of limitations. (ECF No. 64). Plaintiffs timely appealed, and the Ninth Circuit vacated in part and reversed in part. (ECF No. 71). The Ninth Circuit decision held that plaintiffs lacked standing to bring claims under Title III of the ADA, and that plaintiffs' Section 504 claims were not time-barred. Id. Thus, plaintiffs' remaining federal claims concern only Section 504 of the Rehabilitation Act.

         On September 27, 2016, the court denied the parties' cross-motions for summary judgment on plaintiffs' Section 504 claims. (ECF No. 102). As to plaintiffs' state law claims, the court granted defendant Desert View's motion for summary judgment in part, thereby limiting the scope of plaintiffs' allowable claim for negligent infliction of emotional distress, but otherwise denied cross-motions for summary judgment. Id.

         The case is currently set for trial on September 25, 2017. In anticipation, the parties filed the instant motions in limine.

         II. Legal Standard

         i. Motion in limine

         “The court must decide any preliminary question about whether . . . evidence is admissible.” Fed.R.Evid. 104. Motions in limine are procedural mechanisms by which the court can make evidentiary rulings in advance of trial, often to preclude the use of unfairly prejudicial evidence. United States v. Heller, 551 F.3d 1108, 1111-12 (9th Cir. 2009); Brodit v. Cambra, 350 F.3d 985, 1004-05 (9th Cir. 2003).

         “Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 38, 41 n.4 (1980). Motions in limine may be used to exclude or admit evidence in advance of trial. See Fed. R. Evid. 103; United States v. Williams, 939 F.2d 721, 723 (9th Cir. 1991) (affirming district court's ruling in limine that prosecution could admit impeachment evidence under Federal Rule of Evidence 609).

         Judges have broad discretion when ruling on motions in limine. See Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002); see also Trevino v. Gates, 99 F.3d 911, 922 (9th Cir. 1999) (“The district court has considerable latitude in performing a Rule 403 balancing test and we will uphold its decision absent clear abuse of discretion.”). “[I]n limine rulings are not binding on the trial judge [who] may always change his mind during the course of a trial.” Ohler v. United States, 529 U.S. 753, 758 n.3 (2000); accord Luce, 469 U.S. at 41 (noting that in limine rulings are always subject to change, especially if the evidence unfolds in an unanticipated manner).

         “Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted at trial. Denial merely means that without the context of trial, the court is unable to determine whether the evidence in question should be excluded.” Conboy v. Wynn Las Vegas, LLC, No. 2:11-cv-1649-JCM-CWH, 2013 WL 1701069, at *1 (D. Nev. Apr. 18, 2013).

         ii. Relevance and the potential for unfair prejudice

         “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed.R.Evid. 401. “Irrelevant evidence is not admissible.” Fed.R.Evid. 402. Further “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403. . . .

         iii. Expert testimony

         If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Fed.R.Evid. 702.

         The district court serves a gatekeeper function in evaluating scientific testimony. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). When a district court is faced with a proffer of scientific testimony, it must make a preliminary determination under FRE 702 whether the reasoning or methodology underlying the testimony is scientifically valid. Id. at 592-93. A key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be tested. Id. at 593.

         The objective of this gatekeeping requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). This gatekeeping requirement applies not only to scientific testimony but to all expert testimony covered by FRE 702. Id. at 147-49.

         FRE 702 requires a valid connection to the pertinent inquiry as a precondition to admissibility. Id. at 149 (quoting Daubert, 509 U.S. at 592). And where such testimony's factual basis, data, principles, methods, or their application are called sufficiently into question . . . the trial judge must determine whether the testimony has a reliable basis in the knowledge and experience of [the relevant] discipline. Id. (citations omitted). “[W]here foundational facts demonstrating relevancy or qualification are not sufficiently established, exclusion of proffered expert testimony is justified.” LuMetta v. United States Robotics, Inc., 824 F.2d 768, 771 (9th Cir. 1987). . . .

         III. Discussion

         i. Defendants' ...


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