United States District Court, W.D. Kentucky, Paducah
OPINION AND ORDER
B. Russell, Senior Judge.
matter is before the Court on Plaintiff's, Sherrie
Griffey, Motion In Limine to Exclude Testimony of
Defendants' Expert, (R.67). The Defendants have failed to
respond. This matter is ripe for adjudication, and, for the
reasons that follow, Griffey's Motion is HEREBY GRANTED.
September 15, 2015, Dr. William Adams, II performed surgery
on Sherrie Griffey for problems associated with plantar
fasciitis. Dr. Adams was supposed to operate on the left
foot. However, he cut into Griffey's right foot. Upon the
anesthesiologist alerting Dr. Adams that he had started
surgery on the wrong foot, Dr. Adams stitched up
Griffey's right foot and, while Griffey was still under
anesthesia, performed the operation as scheduled on the left
brought suit based on the botched surgery, lodging six claims
against Adams and Lourdes Ambulatory Surgery Center, LLC: (1)
negligence against Adams; (2) willful and wanton negligence
against Adams; (3) battery against Adams; (4) negligence
against Lourdes; (5) willful and wanton negligence against
Lourdes; and (6) battery against Lourdes. On June 6, 2018,
the Court granted Griffey's motion for partial summary
judgment, finding that both Defendants had stipulated Dr.
Adams acted negligently in beginning surgery on the wrong
foot. Damages, apportionment of fault between Lourdes and Dr.
Adams, and whether Adams is guilty of willful/wanton
negligence all remain to be resolved by jury. Trial is
scheduled for June 17, 2019.
the trial date approaching, Griffey now moves in limine to
exclude the testimony of Defendants' expert, Dr. John F.
Grady, DPM, from trial. Dr. Grady's expert report reads
in pertinent part:
[I]t is my opinion, that Dr. Adams provided reasonably
competent and appropriate care to Mrs, Griffey by proceeding
to operate on her left (correct) foot, for which informed
consent had been given, while she was still under the effects
of anesthesia. Following the incision which had been made
upon the right foot. it was medically reasonable to proceed
to finish the procedure which had been planned and
authorized, as opposed to allowing time for Mrs. Griffey to
sufficiently awaken from anesthesia to discuss the situation
and obtain informed consent a second time, thereby avoiding
further exposure to anesthesia.
Defendants have not responded to Griffey's Motion.
in limine provided in advance of trial are appropriate if
they eliminate evidence that has no legitimate use at trial
for any purpose. Jonasson v. Lutheran Child & Family
Servs., 115 F.3d 436, 440 (7th Cir.1997); Bouchard v. Am.
Home Products Corp., 213 F.Supp.2d 802, 810 (N.D.Ohio 2002)
(“The court has the power to exclude evidence in limine
only when evidence is clearly inadmissible on all potential
grounds.” (citing Luce v. United States, 469 U.S. 38,
41 n. 4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984))). Only where
the evidence satisfies this high bar should the court exclude
it; if not, “rulings [on evidence] should be deferred
until trial so that questions of foundation, relevancy and
potential prejudice may be resolved in proper context.”
Gresh v. Waste Servs. of Am., Inc., 738 F.Supp.2d 702, 706
(E.D.Ky.2010) (quoting Ind. Ins. Co. v. GE, 326 F.Supp.2d
844, 846 (N.D.Ohio 2004)). Even if a motion in limine is
denied, the court may revisit the decision at trial when the
parties have more thoroughly presented the disputed evidence.
See Id. (“Denial of a motion in limine does
not guarantee that the evidence will be admitted at trial,
and the court will hear objections to such evidence as they
arise at trial.”).
argues that “based upon the Court's granting of
Plaintiff's motion for partial summary judgment,
Defendants' expert testimony is no longer relevant to the
remaining issues, primarily Plaintiff's damages, to be
adjudicated at trial and thus Dr. Grady's testimony
should be barred.” Given the Defendants' failure to
respond, the Court agrees.
to Federal Rule of Evidence 401, “[e]vidence 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.”
Relatedly, Fed.R.Evid. 402 explains that “[i]rrelevant
evidence is not admissible.”
Defendants expect Dr. Grady to testify that Dr. Adams
“provided reasonably competent and appropriate care to
Mrs. Griffey.” (R. 36). Adams has already been found
liable for negligence and medical battery. (R. 59). Thus, Dr.
Grady's expected testimony is no longer relevant.
Ultimately, the Court can think of no possible testimony that
Dr. Grady might give that would be relevant to any issue left
to be decided at trial. Presumably, nor can ...