Common Issues for Motions in limine

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With over 16 years of experience in litigating assisted living abuse and neglect cases, the Los Angeles nursing home and assisted living neglect lawyers at the Law Offices of Ben Yeroushalmi in Los Angeles have faced several common issues for motions in limine when preparing for trial. The following issues discuss the topics and methods that our knowledgeable attorneys have confronted in order to have achieved maximum results for our clients.

A motion in limine generally seeks to preclude disputably inadmissible or highly prejudicial evidence before trial. These motions are brought before trial, outside the presence of the jury, to avoid needing to "unring the bell" should the jury be exposed to prejudicial evidence. (See See People v. Morris (1991) 53 Cal.3d 152.) Motions in limine are governed by California Rules of Court Rule 3.1112, although there are usually specific local rules and even courtroom rules pertaining to these motions that should be considered when preparing to file.

Because each case has its own specific facts, motions in limine can be based on a variety of issues. However, the following are topics that are generally included in a plaintiff's motions in limine in nursing home and assisted living cases.

Although motions in limine are more commonly used to preclude evidence from being presented in front of a jury, they can also be used to admit evidence that is likely to be objected to by a defendant. Motions in limine can permit more careful pre-trial consideration of evidentiary issues than if the issues were presented during trial, help to minimize disruptions and sidebar conferences during trial, and foster efficiency of the trial process by resolving critical evidentiary issues prior to trial. (People v. Morris (1991) 53 Cal.3d 152, 188.) This minimizes trial disruption and promotes efficiency by permitting the thoughtful resolution of potentially difficult evidentiary issues at the outset, in a manner that may not be possible under the time constraints and pressures of trial. (People v. Morris, supra, 53 Cal.3d at 188; Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 669 - 670.)

A plaintiff may want to admit substantiated complaints, deficiencies, and citations issued by the California Departments of Public Health (CDPH) or Social Services (CDSS) that involve the same types of violations that a defendant committed in the neglect of the specific plaintiff. It should be argued that a deficiency or citation is admissible under California Evidence Code Section 1101(b) as evidence of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident in the abuse and/or neglect of the facility's patients or residents. Hickman v. Arons (1960) 187 Cal.App.2d 167 stated that the inspector's notice regarding dangerous conditions of the building following a fire was admissible to prove notice and knowledge of that danger in an action for damages by the family of a man killed when the wall of the building collapsed two weeks later. These reports can show that a defendant was on notice and had knowledge of dangerous conditions pertaining to patient care, quality of care and various deficiencies in the performance of its staff, and that it ratified those deficiencies by failing to intercede and correct them before a plaintiff was injured from the same dangerous conditions.

Usually, substandard nursing homes and assisted living facilities have long histories of deficiencies. A defendant may subject a plaintiff to the same dangerous conditions even though it knew its patients or residents have been injured in the past. These facts are relevant to prove a plaintiff's claims of malice, recklessness and ratification on part of a defendant, which in turn is directly relevant to an Elder Abuse claim and punitive damage liability. For more information regarding these issues pertaining to the Elder Abuse Act's enhanced remedies and punitive damage liability, refer to our Resources section. Generally, a plaintiff must prove that a defendant had knowledge of a high degree of probability that dangerous consequences would result from its conduct, and that it acted with deliberate disregard of that probability or with a conscious disregard of the probable consequences. Statements of deficiencies can be admitted for the purpose of showing that a defendant's conduct rose to the level of a "conscious choice of a course of action…with knowledge of the serious danger to others involved in it."

Nevarrez v. San Marino Skilled Nursing and Wellness Center (2013) 221 Cal.App.4th 102 held that "citations tainted the verdict on negligence and therefore were prejudicial." However, in Nevarrez, the plaintiff asked the court to admit the citation involving his own incident for the purposes of proving the defendant's liability and negligence Per Se. Admission of prior statements of deficiencies of a specific facility does not violate Nevarrez. Rather, it is important to illustrate that a defendant had a pattern of the same violations, was aware of and on notice of the problems in its facility, and subsequently failed to address them when the plaintiff was injured. Establishing a defendant's knowledge of the persisting problems of the same types of violations that a plaintiff claims does not resemble the facts and conclusions of the Nevarrez case, and therefore, it is not prejudicial to a defendant to admit this kind of evidence.

A continual pattern of violating regulations applicable to caring for elders in skilled nursing facilities can also constitute elder abuse and neglect under the Elder Abuse Act. (See Fenimore v. Regents of the University of California (2016) 245 Cal.App.4th 1339.) A continuous and regular practice of violating federal and state regulations pertaining to adequate facility staffing, in conjunction with allegations that the understaffing was the cause of an elderly patient's injury, has been held to be sufficient to state a viable cause of action for elder abuse. (Id.) A plaintiff should indicate which specific deficiencies and citations to include as evidence at trial in order to prove that the injuries and neglect suffered were not isolated incidents at a nursing home or assisted living facility, but rather a pattern of neglect that eventually caused preventable harm.

A redacted investigation report for the specific incident concerning a plaintiff may also be relevant for its non-hearsay purpose as evidence of prior inconsistent statements. A specific report may be admitted for its non-hearsay purpose when it is not submitted for proving a defendant's liability for a plaintiff's harms in a specific case. A plaintiff can intend to submit a specific portion of a statement of deficiency issued as a result of his or her incident specifically, not as evidence of fault but rather as evidence of prior inconsistent statements and/or grounds for impeachment. In contrast to Nevarrez, a plaintiff may not submit such evidence to prove that a defendant did in fact commit Elder Abuse in a specific case, but rather to prove that the statements made by a defendant to the CDPH or CDSS in the subsequent investigation of the subject incident are not consistent with the statements made by a defendant to the plaintiff during discovery and at trial.

Conversely, a plaintiff may wish to exclude the deficiency or citation that involved the specific injury attributed to the plaintiff in a given case. These reports may have findings that negatively impact a plaintiff's case. Regardless, admission of these reports directly contradicts the holding in Nevarrez, which held that the citation was improperly used to taint the jury's finding of elder abuse and negligence where the "citation was offered essentially as an endorsement by the government of [the plaintiff's] case against [the nursing home]" and where it was used to "predetermine the case and confuse the jury."

The Nevarrez court further held that the citation was not admissible under Evidence Code § 1280 because the citation relied on sources other than the investigator's personal observation. It also held that there was no justification for not ordering the plan of corrections redacted since it is inadmissible under Health and Safety Code § 1280(f) and is a remedial measure under Evidence Code § 1151. Nevarrez noted that the admission of the citation was inadmissible under Evidence Code § 352 because it created undue prejudice to defendants by insinuating that appellants must be liable because the state issued a citation against the nursing home. In fact, the Court of Appeal held that the citation was largely used to confuse the jury into believing the negligence issues were already established by the citation.

Normally, it is the intent of the plaintiff to seek admission of past citations in elder abuse and negligence cases to establish knowledge on part of the defendant of a pattern of dangerous conditions. Regardless, Nevarrez strictly holds that evidence of a citation associated with the plaintiff is not admissible because it taints the jury's finding of elder abuse and negligence to "predetermine the case and confuse the jury."

A plaintiff may also seek to admit substantiated complaints, deficiencies, and citations issued by the CDPH or CDSS subsequent to the subject incident which forms the basis of the litigation, involving the same types of violations that a defendant committed in the neglect of the plaintiff. The purpose is to infer conscious willfulness by a defendant from CDPH or CDSS findings of failure to follow regulations. This is strong evidence of a defendant's "conscious disregard" for purposes of punitive damage liability under Civil Code § 3294, as well as the award of enhanced remedies under the Elder Abuse Act.

If a defendant's conscious disregard of residents' rights and safety continues after the subject incident and through the time of trial, that is particularly strong evidence of reprehensible conduct that should be deterred. (Boeken v. Philip Morris, Inc. (2005) 127 CA4th 1640, 1701.) The plaintiff should emphasize in the motion that the deficiencies or citations are only submitted for their non-hearsay purpose and not as evidence proving a defendant's liability for the plaintiff's injuries in a specific case in order to conform with the ruling in Nevarrez.

Often, defendants proffer speculative expert testimony in order to prevent a plaintiff from establishing the cause of injury. In this regard, the defendant's expert seeks to tell the jury why the plaintiff was harmed at the defendant's facility. However, this is for the jury to decide, who can and should determine for themselves the reasons why the plaintiff was injured based on the evidence in this case. (See Westbrooks v. State of Cal., (1985) 173 Cal.App.3d 1203, 1210 ("If the jurors would be able to draw a conclusion from the facts testified to as easily and as intelligently as the expert, the opinion testimony of the expert is not admissible.")

Such testimony usurps the role of the jury by reaching a conclusion any lay person could draw but giving it the appearance of "expertise." (See Kotla v. Regents of Univ. of Cal., 115 Cal.App.4th 283, 293 (2004) (finding prejudicial error to permit expert testimony about "indicators" of retaliation that "created an unacceptable risk that the jury paid unwarranted deference to [the expert's] purported expertise when in reality [the expert] was in no better position than they were to evaluate the evidence concerning retaliation.") Evidence Code § 801 states that expert testimony must "relate to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." In contrast to typical areas of expert testimony, such as medicine, environmental impact, and damages, this type of testimony is not "beyond common experience." (See Kennemur v. State of California, (1982) 133 Cal.App.3d 907, 925-26) (stating that if jurors are fully capable of deciding the issue based on their own experience then there is no need for an expert to give his opinion on the issue.) Such testimony is improper and should be excluded from evidence at trial.

Generally, the jury is instructed at the close of trial. "Increasingly, however, judges are giving general instruction to the jury before they receive any evidence in the case to educate them on general legal principles before they receive any evidence in the case. This helps jurors understand their role and duties in the case and educates them on general legal principles...so they will not receive evidence in a legal vacuum." (2-31 California Trial Handbook Sect. 32:09.) "Appellate Courts have actually commended the astute judge who tries to give the jury advance notice of law applicable to the case." (Id., citing People v. Valenzuela (1977) 7 6 Cal.App.3d 218, 222.)

A plaintiff may seek to prove that a defendant's consistent violation of regulations governing nursing home or assisted living care were a causative factor in the plaintiff's injuries. Numerous cases have held that these regulations provide the "standard of care" for such facilities. (See, e.g., Gregory v. Beverly Enterprises (2000), 80 Cal.App.4th 514, 523 [holding that regulations are a factor to be considered by the jury in determining the reasonableness of the conduct in question]; see also Housley v. Godinez (1992) 4 Cal.App.4th 737, 741.) Norman v. Life Care Centers of America, Inc., (2003) 107 Cal.App.4th 1233 specifically held that the California Code of Regulations define those facilities' duty of care owed to their resident and therefore define duties of care applicable to elder abuse of those residents. Fenimore v. Regents of the University of California (2016) 245 Cal.App.4th 1339 also stated that a hospital's violation of regulations - combined with allowing the decedent to fall within minutes after entering the facility and failing to treat the fractured hip for days - amounted to a valid elder abuse claim.

Therefore, it may be important for a plaintiff to request that a court issue pre-instruction on applicable federal and state statutes and regulations so that the jury will be able to put the testimony in context. It may be further helpful to attach copies of those applicable statutes and regulations as an exhibit to the motion.

A defendant's violation of federal and state regulations is additionally relevant to prove a plaintiff's claim of negligence Per Se. The failure of a defendant to exercise due care is presumed if: (1) he or she violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted. (Evid. Code § 669(a); Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc. (2010) 190 Cal.App.4th 1502, 1526.) Although compliance with the law does not prove the absence of negligence, violation of the law does raise a presumption that the violator was negligent. (Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc. (2010) 190 Cal.App.4th 1502, 1526; see also Cal. Law Revision Com. to Evid. Code § 669.) It therefore may be helpful, if not necessary, to pre-instruct the jury on the applicable federal and state regulations that the defendant violated in order to prove a negligence Per Se theory of liability.

For additional information regarding common issues for motions in limine, get in touch with an experienced attorney. The nursing home and assisted living neglect lawyers of the Law Offices of Ben Yeroushalmi in Los Angeles are dedicated to elder abuse and neglect cases and can be contacted online or at (310) 623-1926.