Powers v. Memorial Sloan Kettering Cancer Center

Background

The defendants filed seventeen motions in limine, which are requests to decide before trial whether particular evidence or arguments may be presented to the jury. The court ruled on each motion under the Federal Rules of Evidence and, where noted, the Federal Rules of Civil Procedure. The order concerned evidence in Scott Powers’s claims relating to Ms. Zak’s medical care, including a liver ablation.

Rulings on the Motions

1. NeuWave information and spoliation. Motion No. 1 was granted in part and denied in part. The NeuWave information was admissible subject to the hearsay rulings. Powers could use it to argue that Dr. Sofocleous used more probes, higher settings, and longer treatment periods than the manufacturer recommended, but could not argue that the manual’s examples of expected results alone established the medical standard of care. “Call Home” data were admissible as business records. A statement in the Katrana declaration about the “cauterizing” setting was excluded as hearsay, although Powers could seek to introduce the evidence through a qualified live witness. The identified pages of the User Reference Manual and Instructions for Use were admissible, including the expected-results page under the residual hearsay exception. Evidence of Dr. Sofocleous’s consulting relationship with NeuWave Medical, Inc. and Johnson & Johnson was excluded. Any spoliation claim was excluded because it was not pleaded and there was no evidence of a culpable intent to destroy evidence, but Powers could still try to prove that data were not preserved or were destroyed.

2. Rebuttal experts. Motion No. 2 was granted in part and denied in part. It was granted as unopposed as to Drs. Cousins and Israel. It was denied as to Drs. Shah and Coakley because Powers disclosed them timely. Powers could use Shah’s and Coakley’s evidence only in rebuttal and only on matters covered in their reports. The defendants could depose Coakley for up to two hours and Shah for up to one hour before trial.

3. Dr. DeMatteo’s expertise. Motion No. 3 was denied. Dr. DeMatteo could testify about the challenged matters, including Dr. Sofocleous’s decision to proceed with the ablation and the procedure’s risks as they related to informed consent. The defendants could cross-examine him about the extent of his relevant knowledge and expertise.

4. Dr. DeMatteo’s opinions about Ms. Zak’s later condition and care. Motion No. 4 was granted in part and denied in part. Dr. DeMatteo could testify about the cause of Ms. Zak’s eventual liver dysfunction and the role of Dr. Sofocleous’s ablation. He could not offer the opinion that, from the end of 2018 until her death in August 2019, her cancer posed no threat to her life because it was under control. The court found that he was not involved in her care during that period and that his report did not sufficiently disclose the basis for that opinion.

5. Cumulative expert testimony. Motion No. 5 was denied. The request was denied as moot as to evidence related to a multidisciplinary tumor board. The court imposed time limits at trial and would not allow excessive cumulative evidence, but found that the challenged evidence about the lesion’s location, the decision to proceed with the ablation, and injuries related to the ablation was central and not shown to be excessive.

6. Economist’s lost-earnings testimony. Motion No. 6 was denied. Dr. Stan V. Smith could testify about calculating lost future earnings for each year the jury found appropriate based on other evidence. He was not offering an opinion about whether or how long Ms. Zak would work in the future. The court stated that the jury would be instructed that Powers had to prove future earning capacity with reasonable certainty. The ruling was without prejudice to a later application concerning the jury instructions on damages or a motion challenging the sufficiency of the evidence.

7. Claims concerning Dr. Kemeny. Motion No. 7 was granted. The court barred evidence offered to support claims that Dr. Kemeny departed from the standard of care by failing to present Ms. Zak’s case to a multidisciplinary tumor board or by failing to offer immunotherapy in March and April 2017. No claims were alleged against Dr. Kemeny, and Powers had not provided expert testimony supporting the immunotherapy theory as required by New York law.

8. Letter and arguments that Ms. Zak’s cancer was cured. Motion No. 8 was granted as unopposed as to the letter from Dr. Mayo. The remainder was denied as moot because Powers represented that he would not argue that Ms. Zak was cured of cancer when she died.

9. Multidisciplinary tumor board evidence. Motion No. 9 was granted. Powers could not present evidence or argument that the defendants departed from the medical standard of care by failing to present Ms. Zak’s case to a multidisciplinary tumor board before the April 10, 2017, ablation. The court found that Powers had not established the required expert support for both a departure from accepted medical standards and proximate causation.

10. Changes to MSK policies or protocols. Motion No. 10 was denied as moot based on Powers’s representation that he would not present evidence of a change in hospital policy. The court separately ruled that Powers could not present evidence that no policy changes had been made to prevent a similar event, finding that evidence irrelevant and, if relevant, more prejudicial than probative.

11. UNOS document. Motion No. 11 was denied in part and granted in part. Most of the document was admissible as a statement made for medical treatment. The sentence stating that Ms. Zak was in liver failure because of complications from a previous 2017 ablation was excluded as hearsay within hearsay and as more prejudicial than probative. If the document was offered, the entire sentence had to be redacted.

12. Numerical rankings of medical care. Motion No. 12 was denied as to Dr. DeMatteo. He could use numerical rankings in his report because the court found that they conveyed his assessments in a manner similar to adjectives and adverbs and were not unduly inflammatory.

13. Damages evidence. Motion No. 13 was granted in part and denied in part. The request to limit damages witnesses to Powers, his experts, and deposed treating physicians was denied; family members or others with firsthand knowledge of Powers’s damages could testify. News articles, social-media posts, and other publicity were excluded as hearsay. Certain pages of Ms. Zak’s writing were admitted as relevant to her pain and suffering, while other pages were excluded as cumulative and more prejudicial than probative. Ms. Zak’s self-recorded video was excluded because of the risk of juror confusion and undue prejudice.

14. MSK’s payment for Dr. DeMatteo’s deposition counsel. Motion No. 14 was granted. Evidence that MSK paid for and provided counsel to Dr. DeMatteo for his deposition was excluded because its probative value was outweighed by the time, confusion, and prejudice it could cause.

15. Other relevance objections. Motion No. 15 was granted in part and denied in part. Testimony from MSK’s designated witness about information-technology matters was excluded. The 2018 European Review article was excluded to the extent it concerned the barred multidisciplinary-tumor-board theory. Evidence that Dr. Sofocleous was away after the treatment was excluded, but his communications with others at MSK about Ms. Zak while he was away were not excluded by this motion. Evidence that Powers was disabled could be offered only as relevant to damages, including his inability to work and his expectation of financial support from Ms. Zak.

16. Dr. Goldberg’s deposition testimony. Motion No. 16 was denied. Powers could call Dr. Goldberg in his direct case and use the deposition under the rule allowing deposition testimony from an unavailable witness. The parties had to submit deposition designations, counter-designations, and objections as directed by the court.

17. Treating physicians and Dr. Mayo’s materials. Motion No. 17 was granted in part and denied in part. Dr. Mayo’s email to his OHSU team, statement at Ms. Zak’s memorial service, and statements to CNN advocating insurance coverage for her liver transplant were excluded. His testimony about his general practices, indications for ablation, and performance of ablations, as well as the CNN article and video, was also excluded, with that portion granted as unopposed. Dr. Lopez could testify that he was not consulted about treatment options for Ms. Zak in March 2017, but could not testify about the options because he was not consulted. His testimony about informed consent and multidisciplinary tumor boards was excluded as unopposed. Ms. Macuiba could not testify about whether Ms. Zak was cured, the cause of her liver injuries, or informed consent, as that portion was unopposed.

Disposition and Classification

Judge Lorna G. Schofield ordered that the defendants’ motions in limine were GRANTED IN PART AND DENIED IN PART as stated above. The clerk was directed to enter that disposition and close the motions at Docket Nos. 289, 291, 293, 295, 297, 299, 301, 303, 305, 307, 309, 311, 313, 315, 317, 319, and 321. This was an evidentiary and trial-management order, not a decision resolving the underlying medical-malpractice claims.