Thibodeaux v. Sterling

RAYMOND THIBODEAUX, et. ux. Plaintiffs, v. KATHLEEN STERLING, M.D., et. al. Defendants.

Case No. 8:17-cv-01352-PWG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

July 27, 2020

MEMORANDUM OPINION

Plaintiffs Raymond Thibodeaux and Emily Wax brought this medical malpractice action against Defendants for allegedly failing to timely diagnose Mr. Thibodeaux's cancer. The matter is scheduled for trial in 2021. Defendants filed twelve motions in limine seeking the exclusion of certain claims and testimony. Plaintiffs filed an omnibus motion in limine regarding four evidentiary and choice-of-law issues.¹ This Memorandum Opinion and Order addresses all of these motions, except for Defendant's motion to exclude Plaintiffs' experts' testimony on the issue of causation, ECF No. 70, which will be addressed in a separate opinion. For the reasons discussed below, Defendants' motions addressed herein are DENIED. Plaintiffs' motion is DENIED in part and GRANTED in part.

Background

Mr. Thibodeaux initially saw the Defendant physicians in the summer of 2014 after finding blood in his urine. Am. Compl. at 4, ECF No. 31. Plaintiffs, a married couple, allege that Drs. Edward Dunne, Kathleen Sterling, and Nizamuddin Maruf did not order orrecommend diagnostic procedures to screen for cancer in violation of professional standards of care. Id. at 2, 8. Mr. Thibodeaux was ultimately diagnosed with bladder cancer and metastatic kidney cancer in the fall of 2015. Id. at 6.

Plaintiffs allege medical negligence, lack of informed consent, and loss of consortium. Id. at 7-11. Defendants contend they acted in accordance with professional standards of care and assert affirmative defenses such as contributory negligence by Mr. Thibodeaux. See Defs.' Answers, ECF Nos. 32, 42. Ahead of trial, the parties filed motions in limine regarding expert testimony, choice of law, and presentation of evidence.

Discussion

A. Defendants' Motions in Limine

I.

Dr. Dunne asks the Court to preclude Plaintiffs from questioning him regarding or introducing evidence of information or videos from the website of his employer, Foxhall Urology.² Dr. Dunne argues that this information and the videos are not relevant to a jury's determination of whether Dr. Dunne complied with the standard of care or whether his alleged breach of the standard of care caused Mr. Thibodeaux's alleged injuries. ECF No. 82. At the time Dr. Dunne treated Mr. Thibodeaux, the Foxhall Urology website allegedly contained links and information from the Urological Care Foundation about potential symptoms of renal cancer. See ECF No. 102, Ex. 1, Dr. Dunne Depo. Tr., 81:4-12. It also allegedly contained a video about nephrectomy as a treatment for renal cancer. See id. at 34:10-35:11. During his deposition, Dr. Dunne stated that he did not know what was on the website at the time but then later said that the information was accurate unless there was something he was not aware of. See ECF No. 82, Ex.A, Dr. Dunne Depo. Tr., 33:5-8, 34:10-35:17. Mr. Thibodeaux stated in his deposition that he did not look at the links or videos on the website. See ECF No. 82, Ex. B, Thibodeaux Depo. Tr., 75:16-20. Because Dr. Dunne did not know what was on the website and Mr. Thibodeaux did not look at the website, Dr. Dunne argues that the information is not relevant under Federal Rule of Evidence 402.

In addition, Dr. Dunne argues that even if the information is relevant, it should be excluded under Federal Rule of Evidence 403 because it has no probative value and that any probative value it does have would be substantially outweighed by confusing the jury. Dr. Dunne cites Rodriguez v. Clarke, 926 A.2d 736, 755 (2007) and Greater Metro. Orthopaedics, P.A. v. Ward, 810 A.2d 534, 537-38 (2002) for the propositions that in Maryland, expert testimony is required to establish negligence, causation, and damages in medical malpractice cases. Dr. Dunne argues that allowing the jury to consider information from the website would lead the jury to consider improper evidence.

In response, Plaintiffs argue that the information is relevant and admissible under Federal Rule of Evidence 402 and it does not matter if Dr. Dunne recalled what was on the website at the time or if Mr. Thibodeaux viewed them. ECF No. 106. During his deposition, Dr. Dunne stated that the information on the website was accurate. Plaintiffs argue that the information on the website is relevant to Dr. Dunne's credibility about causes of blood in the urine and the availability of nephrectomy as a curative treatment for renal cancer. In addition, Plaintiffs argue the information is relevant to Dr. Dunne's knowledge and understanding of the causes of the blood in Mr. Thibodeaux's urine and the means of diagnosing and treating the cause.

The disputed information from the website is relevant under Federal Rules of Evidence 401 and 402 as to Dr. Dunne's credibility and his consideration of causes and treatment for Mr.Thibodeaux's renal cancer.³ For the same reasons, under Federal Rule of Evidence 403 its probative value is not substantially outweighed by prejudicial effect. The cases cited by Dr. Dunne do not provide to the contrary. In Rodriguez v. Clark, the Maryland Court of Appeals affirmed a grant of summary judgment by the Circuit Court where all of Plaintiffs' expert testimony was excluded. Rodriguez v. Clarke, 926 A.2d at 757. In Greater Metro. Orthopaedics, P.A. v. Ward, the Maryland Court of Special Appeals stated that "[w]hether expert testimony is necessary to prove the causal relationship between a defendant's negligence and a Plaintiffs' alleged damages is determined on a case-by-case basis." 810 A.2d at 537. But neither case dealt with relevance or probative versus prejudicial value of evidence or testimony at issue here. Therefore Dr. Dunne's motion to preclude testimony and evidence regarding information on his employer's website, ECF No. 82, is denied.

II.

Defendants ask the Court to exclude Plaintiffs' informed consent claim.⁴ They argue that an alleged failure to offer or recommend tests cannot form the basis of an informed consent claim under Maryland law, citing Reed v. Campagnolo, 630 A.2d 1145 (Md. 1993). ECF No. 84 at 1. Lack of informed consent is the second of three counts Plaintiffs allege, the others being medical negligence and loss of consortium. Am. Compl. at 10-11, ECF No. 31. Plaintiffs allege Mr. Thibodeaux was "never informed" of his cancer risk, nor testing and imaging options. Id. Defendants contend this allegation is properly asserted in a medical malpractice claim, not an informed consent claim. ECF No. 84 at 2. They ask for all testimony and opinions regarding the claim to be excluded. Id. at 3.

In Reed, the Maryland Court of Appeals answered certified questions of law from this Court. 630 A.2d at 1146. The Reeds alleged their physician failed to inform them of the availability and need for diagnostic testing that would have revealed birth defects in their fetus. Id. One of the questions concerned whether the continuation of a pregnancy required the informed consent of the patient. Id. at 1152. The court answered in the negative, holding that "one's informed consent must be to some treatment." Id.

Plaintiffs argue that Defendants' request actually is a dispositive motion masquerading as an in limine motion, and should not be granted at this late stage given that it is not based on new information. ECF No. 109 at 1. They also argue that Reed's holding was narrow and that the informed consent claim is allowed under both Maryland and District of Columbia law. Id. at 1-2. Plaintiffs point to McQuitty v. Spangler, 976 A.2d 1020, 1022 (Md. 2009), which held that a lack of informed consent claim may be viable even without an "affirmative violation of the patient's physical integrity." Plaintiffs argue Mr. Thibodeaux had a right to be informed of his evaluation and treatment options and of the possibility that cancer could be causing his symptoms. ECF No. 109 at 2-3.

Motions in limine are generally brought "to exclude anticipated prejudicial evidence before the evidence is actually offered." Luce v. United States, 469 U.S. 38, 40 n.2 (1984). Defendants here do not seek to limit potentially prejudicial evidence, but instead seek the wholesale exclusion of Plaintiffs' informed consent claim. A motion in limine is not the appropriate procedural vehicle to dismiss a claim. See 21 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 5037.18 (2d ed.). "The use of motions in limine to summarily dismiss a portion of a claim has been condemned." 75 Am. Jur. 2d Trial § 42. This Court has strongly discouraged such motions that "sneak up in limine clothing shortly beforetrial, after the deadline for orderly filing of summary judgment motions has passed." Banque Hypothecaire Du Canton De Geneve v. Union Mines, Inc., 652 F. Supp. 1400, 1401 (D. Md. 1987). A party generally cannot move for summary judgment more than 30 days after the close of all discovery. Fed. R. Civ. P. 56(b). That deadline in this case has passed. As indicated in the Scheduling Order in this case, ECF No. 19, which was extended several times, if any of the parties wanted to file a dispositive pretrial motion, they were required to indicate this in a status report at the close of discovery with a description of the factual and legal basis of such a motion. Here Defendants complied with these procedures with respect to their motion to exclude the causation opinions of Plaintiffs' experts, ECF No. 70, but did not otherwise indicate their intention to file a motion for summary judgment on the informed consent claim. ECF No. 47.

Even if the motion were timely brought, it would still be denied at this stage. It is true Reed held that informed consent must be in relation to some treatment. 630 A.2d at 1152. Whether health care providers have "a duty to offer or recommend the tests is analyzed in relation to the professional standard of care," meaning a...