On November 8, 2011, the court heard argument on the parties' motions in limine. Lawrence Bohm and Erika Gaspar appeared for plaintiff; Judith Clark Martin and David Ditora appeared for defendant. At the court's request, the parties provided additional briefing and information relating to some of the motions. On December 7, 2011, the court heard argument on defendant's motion in limine number six. On that date, Lawrence Bohm and Erika Gaspar appeared for plaintiff; David Ditora appeared for defendant.
I. Plaintiff's Motions In Limine
The following motions have been decided based upon the record presently before the court. Each ruling is made without prejudice and is subject to proper renewal, in whole or in part, during trial. If a party wishes to contest a pretrial ruling, it must do so through a proper motion or objection, or otherwise forfeit appeal on such grounds. See Fed. R. Evid. 103(a);
Tennison v. Circus Circus Enters., Inc., 244 F.3d 684, 689 (9th Cir. 2001) ("Where a district court makes a tentative in limine ruling excluding evidence, the exclusion of that evidence may only be challenged on appeal if the aggrieved party attempts to offer such evidence at trial.") (alteration, citation and quotation omitted). In addition, unless otherwise stated below, challenges to expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) are denied without prejudice. Should a party wish to renew a Daubert challenge at trial, it should alert the court, at which point the court may grant limited voir dire the day before such expert may be called to testify.
A. Plaintiff's Motion In Limine One (ECF No. 112)
Plaintiff seeks to exclude evidence that she violated medical privacy laws by incorporating patient information into a log book of procedures, event reports, an infection log, and a journal she began to keep shortly before she was terminated. She also asks to bar any testimony by Doris Frazier, defendant's expert on the Health Insurance Portability Accountability Act (HIPAA), about plaintiff's alleged violations of federal law. Plaintiff avers she maintained these records in part because of her concerns about patient safety and care and has not disclosed the material except to her lawyers, who in turn provided it to defendant during discovery. Declaration of Ani Chopourian, ECF No. 113 (Chopourian Decl.) ¶¶ 4-11. She argues she is protected by the whistleblower provisions of HIPAA, the evidence is not relevant to any issue in the case, and is prejudicial.
Defendant counters that plaintiff's actions were clear violations of HIPAA and of Mercy General's policies regarding patient information; that she is not entitled to whistleblower protection; and that Frazier is not a HIPAA expert per se, but rather an expert on how defendant handles HIPAA issues. ECF No. 129 at 4-5. Defendant argues that the information is relevant to its affirmative defenses of "after-acquired" evidence and the right to make business decisions.
The court does not address defendant's argument about its affirmative defenses here. Whether defendant may assert this defense is discussed below in connection with plaintiff's motion in limine eight. See pages 8-9 below. If there was a violation of patient privacy, it would be relevant as a defense to plaintiff's claim that defendant interfered with plaintiff's prospective economic relations.
HIPAA includes privacy provisions that govern the use and disclosure of protected health information. See Webb v. Smart Document Solutions, LLC., 499 F.3d 1078, 1084 (9th Cir. 2007) (HIPAA emphasizes privacy, efficiency and modernization); 45 C.F.R. §§160.103 (definitions), 164.502(a) (privacy provision); see generally 42 U.S.C. § 1320d-9(b)(3) (defining HIPAA privacy regulation). "As a general rule, HIPAA prohibits disclosure of private medical data. HIPAA reads, 'Except as otherwise permitted or required by this subchapter, a covered entity may not use or disclose protected health information without an authorization. . . .'" Prescott v. County of Stanislaus, 2011 WL 2119036, at *3 (E.D. Cal. May 23, 2011) (quoting 45 C.F.R. 164.508(a)). Protected information "includes all individually identifiable health information maintained or transmitted in any form." McEvoy v. Hillsborough County, 2011 WL 1813014, at *6 (D. N.H. May 5, 2011). "Disclosure means the release, transfer, provision of, access to or divulging in any other manner of information outside the entity holding the information," while "use means, with respect to individually identifiable health information, the sharing, employment, application, utilization, examination, or analysis of such information within an entity that maintains such information." 45 CFR § 160.103. Under HIPAA's privacy provisions, a covered entity may use or disclose protected information to the individual and in a few other defined situations. 45 CFR § 164.502(a)(1).
The regulations include a whistleblower provision: "a covered entity is not considered to have violated the requirements of this subpart if a member of its workforce disclosed protected health information" in the belief that the entity's conduct "violates professional or clinical standards" or that the care provided by the covered entity "potentially endangers one or more patients" and the disclosure is made to a health oversight agency or "to an attorney retained by . . .the workforce member . . .for purposes of determining the legal options with regard to the conduct described" in that subdivision. 45 CFR § 164.502(j).
Given the dearth of authority presented by either party, the court declines on the current record to determine whether plaintiff's transfer of patient information into her journal and reports constitutes use or disclosure of protected information. But see Vaughn v. Epworth Villa, 537 F.3d 1147, 1153 n.4 (10th Cir. 2008), cert. denied, 129 S.Ct. 1528 (2009). It similarly declines to decide whether plaintiff is entitled to claim the protection of the whistleblower provisions on these facts. The court will allow defendant to present evidence that plaintiff incorporated patient information into her journal and reports and then removed those documents from Mercy General, and that these actions violated defendant's policies regarding patient confidentiality and information. This evidence does not create a risk of unfair prejudice nor will it confuse the jury by forays into HIPAA regulations. See United States v. Hankey, 203 F.3d 1160, 1172 (9th Cir. 2000) ("[r]elevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter under Rule 403. . . . [T]he use of Rule 403 must be cautious and sparing.").
B. Plaintiff's Motion In Limine Two (ECF No. 109)
Plaintiff seeks to exclude any evidence regarding a meal break waiver that she purportedly signed. Defendant argues it could not locate the signed waiver, but offers a blank form and deposition testimony suggesting that plaintiff must have signed such a waiver. Defendant has not established a sufficient foundation for the admission of any blank waiver form or for any testimony that plaintiff signed such a waiver. See Burrows v. Orchid Island Trs., LLC. 2010 WL 2179108, at *2 (S.D. Cal. May 28, 2010).
C. Plaintiff's Motion In Limine Three (ECF No. 103)
Plaintiff seeks to bar admission of any evidence that she made claims of sexual harassment against Kaiser, a former employer; filed a lawsuit against Kaiser alleging wrongful termination; or that she lied about why she left Kaiser. Defendant argues that if plaintiff was disciplined at and terminated from Kaiser, as she claimed in an unidentified lawsuit, she should have included this information on her application to Mercy.
Under Rule 404(a) of the Federal Rules of Evidence, character evidence is not admissible to prove action in conformity with the character trait unless it is relevant to show something other than propensity. Generally, evidence of prior lawsuits is excluded under Rule 404(a) because it shows a propensity to sue. Rodriguez v. Chertoff, 2008 WL 4693395, at *3 (D. Ariz. Oct. 22, 2008) (evidence of prior complaint not admissible to show that plaintiff was hyper-sensitive individual; defendant did not bear burden of showing sufficient similarity to instant suit to support permissible purpose).
Citing to Gastineau v. Fleet Mortgage, 137 F.3d 490 (7th Cir. 1998), defendant argues that the evidence of a prior lawsuit demonstrates a modus operandi, specifically, that plaintiff claims she is subject to discriminatory conduct "when things don't go her way." ECF No. 128 at 5. In Gastineau, however, the defendant presented very specific information that the plaintiff, who claimed sexual harassment, had presented a forged document in a prior suit, also claiming sexual harassment, similar to the forged document presented in the current suit. In this case, defendant has presented absolutely no information about the prior lawsuit and so has not shown that it fits within one of the permissible purposes under Rule 404(b).
Defendant also claims that the suit alleging termination is also part of its affirmative defense of after-acquired evidence. As noted above, the court will address the defense of after acquired evidence below.
D. Plaintiff's Motion In Limine Four (ECF No. 120)
Plaintiff seeks to exclude evidence of her "private life," claiming there is little evidence that she shared details of her sex life at work and that, even if she did, such evidence is presumptively inadmissible. See Fed. R. Evid. 412. Defendant argues that the evidence is admissible to rebut plaintiff's hostile work environment showing, but concedes that such evidence is subject to Rule 412, which restricts the admission of evidence of an alleged victim's sexual behavior or predisposition in civil and criminal cases. See B.K.B. v. Maui Police Department, 276 F.3d 1091, 1104 (9th Cir. 2002). Defendant said it will file a Rule 412 motion within two weeks of trial.
E. Plaintiff's Motion In Limine Five (ECF No. 108)
Plaintiff seeks to exclude the testimony of David Moore, a forensic document examiner, who reviewed plaintiff's journals and drew several conclusions about the entries. Because the court does not have sufficient information to determine whether Moore's testimony addresses those portions of the journals the court finds relevant, see pages 12-13 below, the court grants the motion without prejudice to defendant's right to offer Moore as a witness, after alerting court and counsel in sufficient time to allow for voir dire outside the jury's presence.
F. Plaintiff's Motion In Limine Six (ECF No. 110)
Plaintiff seeks to exclude evidence she claims was not timely disclosed, including materials from her personnel files from earlier employment, slides from a HIPAA training session, and the files created when she sought privileges at two Mercy facilities after her termination. She argues that had she been given all the privileging files before her deposition of the person most knowledgeable about the privileging, she would have conducted the deposition differently and that she would have deposed additional people who provided information to the committee. She also argues she would have conducted additional depositions about the HIPAA training.
The motion is denied as to the personnel materials defendant obtained by subpoena. SEC v. Strauss, 2009 WL 3459204, at *11 (S.D.N.Y. Oct. 28, 2009) (party has an obligation to obtain materials from third parties on his own, even if it requires a subpoena). It is also denied as to the HIPAA training slides, to the extent they may remain relevant after the court's ultimate ruling on the entirety of plaintiff's motion in limine one.
As to the privileging files, the record shows that in plaintiff's March 2011 requests for documents, she asked for "any and all documents created after Plaintiff's termination regarding plaintiff" and "any and all documents regarding Plaintiff's attempt to be recertified after her termination." It appears that in June 2011, shortly before the discovery cutoff, she requested "the contents of any file maintained in conjunction with the clinical privileges of Plaintiff including but not limited to applications for privileges, notification of denial of privileges, and MEC's decision regarding privileging." ECF No. 110 at 2-3; ECF No. 146 at 10-15; compare ECF No. 122 at 2. In response to some of these requests, defendant asserted that the documents had been provided. ECF No. 146 at 11. On July 29, defendant wrote to plaintiff, noting it had believed that all of plaintiff's privileging files had been consolidated, but that it had learned the day before that there were four separate files, which it hoped to provide shortly. Id. at 17. It offered to postpone the scheduled deposition of Donna Sakach, the person most knowledgeable about the privileging process. Id. at 18. It ultimately provided the files to plaintiff on August 26, 2011, after discovery in this case had closed. Id. at 20; see ECF No. 58 (ordering all depositions to be completed by August 5, 2011).
Under Rule 26(e)(1)(A) of the Federal Rules of Civil Procedure, a party must supplement or correct a discovery response if it learns that the disclosure or response was incorrect or incomplete. If a party fails to provide information under Rule 26(e), the court may prevent the party from using that information or impose other sanctions "unless the failure was substantially justified or is harmless."
Although plaintiff's more specific request for the privileging files may have come close to the end of discovery, plaintiff earlier asked for "any and all documents created after Plaintiff's termination regarding Plaintiff." Defendant objected that the request was overbroad, but also responded that the material had previously been produced. ECF No. 146 at 11. Defendant does not now identify the documents it earlier produced or suggest that the request was too obscure for it to determine that the privileging files were covered. Defendant has not shown that its failure to timely supplement the discovery was "substantially justified."
The court does not enter a preclusion order lightly, but on the current record defendant has not made an adequate showing of harmlessness. See United States v. Sumitomo Marine & Fire Ins. Co., Ltd., 617 F.2d 1365, 1369 (9th Cir. 1980); Churchill v. U.S., 2011 WL 444849, at *5 (E.D. Cal. Feb. 8, 2011) (a party may avoid exclusion if it shows that the untimely disclosure was harmless; several factors should be considered: (1) prejudice or surprise to the party against whom the evidence is offered; (2) ability of the party to cure the prejudice; (3) likelihood of disruption of the trial; (4) bad faith or willfulness in failing to disclose). The court grants the motion to exclude the privileging files.
G. Plaintiff's Motion In Limine Seven (ECF No. 105)
Plaintiff seeks to preclude defendant from offering "cumulative witnesses," particularly others who worked in the cardiac unit where plaintiff was employed. Defendant counters that it should be able to present witnesses who can describe the work atmosphere as part of its showing that a reasonable person would not have been offended. See, e.g., Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000) (abusiveness and pervasiveness must be objectively and subjectively apparent). This motion will be denied, subject to focused objections at trial.
H. Plaintiff's Motion In Limine Eight (ECF No. 106)
Plaintiff argues that defendant should not be able to amend its answer to include the defense of after-acquired evidence. Defendant says its answer includes this defense, even though it did not use the term "after-acquired evidence," because it alleges "the termination of plaintiff was justifiable, and within the terms and conditions of the contract of employment between the parties" and "plaintiff was guilty of willful misconduct about matters referred to in the Second Amended Complaint, and that such willful misconduct on the part of plaintiff proximately or concurrently contributed to the happening of the loss or damage complained of by plaintiff. . . ." ECF No. 23 at 16 ¶¶ 23, 24.
In McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), a wrongful discharge case, the employer learned during discovery that plaintiff had violated company policy and so argued that plaintiff could not prevail on her discrimination claim because she would have been discharged had the company been aware of her misconduct. The Supreme Court said that "the employer could not have been motivated by knowledge it did not have and it cannot now claim that the employee was fired for the non-discriminatory reason." Id. at 359. It recognized, however, that evidence of the employee's wrong-doing was nevertheless relevant and "bears on the specific remedy to be ordered." Id. at 361. "Where an employer seeks to rely on after-acquired evidence of wrongdoing, it must first ...