A strategic and thoughtfully prepared motion in limine can allow a party to assert control over the facts that will be presented to a jury and are a commonly used tool for raising evidentiary issues relating to expert witness testimony.  A successful motion in limine can shape the course of a trial. In Valderrama v. Beautologie Cosmetic Surgery, Inc., the use of thoughtful motions in limine to preclude irrelevant testimony and prevent plaintiffs’ experts from relying on the irrelevant testimony, allowed defendants to succeed at trial.[i]

In Valderrama, plaintiffs (husband and three minor children of decedent – a 40-year-old wife and mother) filed suit against Dr. Zach Barnes and his practice, Beautologie, for wrongful death based on medical malpractice.  Dr. Barnes preformed cosmetic surgery on plaintiffs’ decedent on July 22, 2016.  Four days later, on July 26, 2016, decedent’s husband called Dr. Barnes and reported his wife had a low-grade fever and a cough.  Dr. Barnes responded by stating the symptoms were normal based on the recent surgery, he did not request decedent come in for an exam or go to an ER, and he advised decedent’s husband he (Dr. Barnes) would see her at her upcoming appointment in a few days.  Decedent died approximately twelve hours later from a pulmonary embolism.

At trial, the jury was asked to consider two essential elements of plaintiffs’ case:

1. 1. 1. 1. 1. 1. 1. “Whether Dr. Barnes met the standard of care under the circumstances, including when he was informed of decedent’s symptoms (i.e., cough and low-grade temperature) at the time of the phone call from her husband; and”

1. 1. 1. 1. 1. 2. “If Dr. Barnes failed to meet the standard of care, whether that failure proximately caused decedent’s death.”

Since the professional standard of care in a medical malpractice case must be established by expert testimony, plaintiffs’ reliance on their designated experts’ testimony was crucial in presenting their prima facie case.  Defendants’ motions in limine were strategically designed to limit plaintiffs’ experts’ ability to testify regarding the standard of care issue, the crux of plaintiffs’ case, ultimately leading to defendants’ success at trial.

Relying on California Evidence Code Sections 350 and 352, defendants moved in limine to prevent plaintiffs’ experts from relying on testimony obtained in deposition from two Beautologie staff members.  The staff members, an RN and a practicing physician, testified about the internal practices, policies, and procedures at Beautologie regarding nurse training on postoperative concerns such as infection, clotting, and pulmonary embolism.  Defendants argued in their motions “such internal policies or practices at Beautologie were not relevant to the precise issue of what the physician’s (Dr. Barnes’s) standard of care was under the circumstances involved and that to admit such evidence would risk misleading or confusing the jury with respect to the standard of care.”  The trial court agreed, ruling the testimony sought to be introduced as evidence was related to the nursing staff, which was separate and distinct from the standard of care applicable to Dr. Barnes.

Following a jury trial, a verdict was returned on behalf of the defendants. Plaintiffs appealed the jury’s verdict, challenging the correctness of the trial court’s evidentiary rulings on the motions in limine that excluded the evidence of the internal policies of Beautologie and the related testimony.  “Plaintiffs argued the trial court abused its discretion because this testimony was relevant to the issue of Dr. Barnes’s standard of care.  Plaintiffs argued Dr. Barnes’s failure to follow the policies and practices of the facility where he practiced was relevant to a proper determination of the standard of care and such evidence should have been admissible to impeach defendants’ experts on standard of care, and/or to support plaintiffs’ experts.

The appellate court disagreed, stating the evidence of internal policies, practices and/or training at the facility regarding postoperative follow-up by nurses or other non-physicians of patients was irrelevant in this case and was properly excluded by the trial court.  The Court concluded no abuse of discretion was demonstrated by plaintiffs and in fact,  “the trial court was correct to exclude the evidence both because [1)] it was irrelevant to the standard of care issue in this case and [2)] because it would likely have confused or misled the jury on that same issue.”

The attorneys for Dr. Barnes were thoughtful and strategic in working up their motions in limine on the very distinct issue of standard of care. The skilled presentation in the motions in limine allowed the trial court to easily understand the issue and ultimately rule in their favor, excluding both the irrelevant lay testimony and plaintiffs’ experts’ reliance thereon. In a case such as this, where the facts are extremely emotional and sympathetic and could have easily gone the way of plaintiffs, expertly utilizing the tool of the motion in limine allowed the jury to receive the evidence without confusion or undue prejudice to defendants.  It allowed for a truly fair decision by the jury on the applicable and correct law in the case.

[i] Valderrama v. Beautologie Cosmetic Surgery, Inc., F079565, (Cal. Ct. App. Sep. 21, 2021).

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