Case Number: KC065365 Hearing Date: June 10, 2014 Dept: J

Re: Jerry McCabe v. Suresht P. Sharma, M.D. (KC065365)

TRIAL MOTIONS IN LIMINE

PLAINTIFF’S MOTIONS:

1. Limit Testimony of Defendant’s Experts to Opinions Expressed at Deposition, etc.:
The court cannot rule on this motion without knowing from the deposition transcript(s) that defendant’s expert(s) were adequately asked whether the opinions expressed were the only opinions that would be offered at trial, whether there was an agreement to notify counsel if other opinions were subsequently formed, etc. (See Kennemur v. State of California (1982) 133 Cal.App.3d 907; Jones v. Moore (2000) 80 Cal.App.4th 557, 564-565.) An in limine motion is improper when it would “merely be declaratory of existing law or would not provide any meaningful guidance for the parties or witnesses.” Additionally, “it may be difficult to specify exactly what evidence is the subject of the motion until that evidence is offered . . . In these kind of circumstances, an objection at the time the evidence is offered serves to focus the issue and to protect the record.” (Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 670-671.)

2. Preclude Display of or Reading Aloud From Medical Texts Without Proper Foundation: Such testimony is precluded on direct examination, and may be offered on cross-examination only if Evidence Code § 721 is complied with.

3. Exclude Expert Testimony Based on Hearsay Discussions and Publications: An expert may base an opinion upon inadmissible hearsay if it is of a type that may reasonably be relied upon by an expert in forming an opinion. (Evidence Code §§ 801 and 804.)

4. Prohibit Argumentative and Irrelevant Questions and Testimony: This motion is merely declarative of existing law. See 1, above.

5. Prohibit Mention of Settlement with Co-Defendant Glendora Digestive Disease Institute: Granted unless it becomes relevant on the issue of the credibility of a witness.

6. Prohibit Reference to MICRA Limitations: Granted.

7. Prohibit Use of Exhibits During Opening Statements: If either party wishes to use potential exhibits during opening statements, it must be done with either the agreement of both parties or prior court approval.

8. Exclude Expert Testimony Regarding the Standard of Care of Pediatric Gastroenterologists Versus Adult Gastroenterologists: Denied provided a sufficient foundation is established to demonstrate expertise in rendering such an opinion. The court cannot determine whether the standards of care differ as a matter of law.

DEFENDANT’S MOTIONS:

1. Preclude Reference to Insurance: Granted as unopposed.

2. Preclude Reference to Other Lawsuits: Granted as unopposed.

3. Preclude Reference to MICRA: Granted as unopposed.

4. Preclude Lay and Hearsay Criticism of Medical Care: Granted. (This ruling does not apply to hypothetical questions posed to expert witnesses.)

5. Limit Plaintiff’s Experts to Opinions Expressed at Deposition: (See discussion regarding Plaintiff’s Motion No. 1, above.)

6. Preclude Plaintiff From Examining Experts as to Their Personal Practices: Granted as unopposed.

7. Preclude Expert Testimony From Witnesses Not Designated: Granted as unopposed.

8. Preclude Improper Expert Testimony on Direct Examination About Literature and Third-Party Opinions: Granted as unopposed.

9. Preclude Testimony Regarding Whether S. Paul Sharma, M.D. Held a Financial Interest in Glendora CA Endoscopy ASC, LP: Granted. Plaintiff’s counsel may question Dr. Sharma about performing the colonoscopy in a facility lacking an x-ray machine or CAT-scan without bringing up his financial interest in the facility.

10. Apply Civil Code §§ 3333.1, 3333.2 and CCP § 667.7: Granted as unopposed.

11. Preclude Plaintiff From Introducing Evidence of Improper Special Damages, Including Medicare Bills: Granted as unopposed.

12. Preclude Introduction of Evidence Relating to Janice McCabe’s Pension or Retirement Account: Granted as unopposed.