Powers v. Memorial Sloan Kettering Cancer Center

Background

Scott Powers filed seven motions in limine, which are requests for rulings about evidence before it is presented. The order states that the defendants’ motions in limine would be addressed separately. The court applied the Federal Rules of Evidence.

Rulings on the Motions

Motion in Limine No. 1: Collateral-Source Evidence

The motion was granted in part and denied in part.

- Disability benefits: The court granted the request to exclude evidence of Social Security and Cigna disability benefits. The defendants may nevertheless present, in substance, that Ms. Zak stopped working in 2014 because she was determined to be disabled and never returned to work, because that evidence is relevant to lost earnings. - Health-insurance benefits: The court granted this part in part and denied it in part. If United Healthcare’s subrogation claim is against Powers, he may seek to recover at trial expenses subject to that claim. If the claim is solely against the defendants, Powers may not seek to recover those expenses at trial. - Social Security survival benefits and voluntary charitable contributions: The court denied this part as moot because the defendants said they did not intend to introduce the evidence.

Motion in Limine No. 2: Dr. Mayo’s Testimony

The motion was denied as moot. The defendants agreed that Dr. Skye Mayo’s testimony would be limited to his personal knowledge of Ms. Zak’s treatment. The parties also agreed that Dr. Mayo could not testify about consent discussions in which he did not participate. He could testify about tumor boards in which he participated, including explanatory testimony needed to provide context for his treatment of Ms. Zak.

Motion in Limine No. 3: Mr. Schefelker’s Testimony

The motion was denied. The defendants were ordered to disclose by February 10, 2023, the subject matter of Mr. Schefelker’s possible testimony. Unless the defendants represented that they would not call him at trial, Powers could depose him for up to four hours at a mutually convenient time before March 3, 2023.

Motion in Limine No. 4: Powers’s Dating Relationship

The motion was granted under Rule 403. The court excluded evidence about Scott Powers’s dating relationship after his wife’s death because it could cause juror speculation about irrelevant issues, confuse the jury, and waste time on evidence with little or no value in proving the case.

Motion in Limine No. 5: Evidence Concerning the Defendants and Dr. Sofocleous

The motion was granted in part and denied in part.

- Memorial Sloan Kettering Cancer Center’s character, reputation, and nonprofit status: The court denied the request to exclude this evidence. It allowed the evidence as background relevant to Ms. Zak’s decision to receive treatment there and to the organization’s status. - Potential adverse effects on Memorial Sloan Kettering or the community: The court denied this part as moot because the defendants did not intend to present the evidence. The court cautioned Powers not to state, imply, or elicit evidence about the defendants’ liability insurance. - Dr. Sofocleous’s character and reputation: The court granted the request to exclude this evidence because the defendants offered no argument supporting its admission. The ruling did not bar evidence about Dr. Sofocleous’s competence, including his education, background, experience, honors, awards, and appointments. - Apologies or expressions of sympathy: The court denied the request to exclude this evidence. It allowed the evidence because excluding it could create a misleading impression and unfairly affect the jury’s assessment of defense witnesses or their credibility.

Motion in Limine No. 6: Prior Ablation Procedure

The motion was denied. The court allowed evidence about a prior ablation procedure that Dr. Sofocleous performed on Ms. Zak and related discussions between them. The court found the evidence relevant to what a reasonable medical practitioner would have disclosed and what a reasonably prudent person in Ms. Zak’s position would have done. The court also found the evidence highly probative and not likely to mislead or confuse a properly instructed jury.

Motion in Limine No. 7: Newspaper Opinion Article

The motion was denied. Powers sought to admit an opinion article written in Ms. Zak’s voice, bearing a byline for Ms. Zak and Mr. Powers, and partly written by a Washington Post editor. The court excluded the article as hearsay. It did not qualify for the dying-declaration exception because Ms. Zak did not write it alone, it was unknown which portions she wrote and when, and the article appeared to have been written over several years rather than under the required imminent and urgent circumstances.

Disposition

Judge Lorna G. Schofield ordered that Powers’s Motions in Limine Nos. 1 through 7 were granted in part and denied in part as set forth in the order. The clerk was directed to enter that sentence as the docket disposition and close the motion at Docket Number 260.