The opinion of the court was delivered by: SUZANNE CONLON, District Judge
MEMORANDUM OPINION AND ORDER
Craig Schmidt sues Drs. Steven M. Klinman and Ranvir S. Ahlawat
("defendants") for injuries allegedly sustained as a result of
defendants' negligence and medical malpractice. Specifically,
Schmidt claims that defendants deviated from the standard of care
by prescribing Xanax and Ultram for him through an internet
service without conducting a personal interview or a physical
examination. Schmidt and defendants move in limine to bar
evidence at trial.
Evidence is excluded on a motion in limine only if the
evidence is clearly inadmissible for any purpose. Hawthrone
Partners v. AT&T Technologies, 831 F.Supp. 1398, 1400 (N.D. Ill.
1993). Motions in limine are disfavored: admissibility
questions should be ruled upon as they arise at trial. Id.
Accordingly, if evidence is not clearly inadmissible, evidentiary
rulings must be deferred until trial to allow questions of
foundation, relevancy, and prejudice to be resolved in context.
Id. at 1041. Denial of a motion in limine does not mean
evidence contemplated by the motion will be admitted at trial.
Instead, denial of the motion means the court cannot or should
not determine whether the evidence in question should be excluded before trial. United
States v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989).
A. Schmidt's Motions in Limine
1. Motion to bar conviction of felony/misdemeanors
Schmidt moves to bar defendants from offering any evidence of
prior felony or misdemeanor convictions because, he argues, such
evidence is irrelevant. Schmidt also claims defendants are
precluded from offering criminal history evidence because it has
not been disclosed under Federal Rule of Civil Procedure 26(a).
In his deposition, Schmidt testified that he has never been
convicted of a felony or a crime involving dishonesty. Defendants
claim to have proof that Schmidt was in fact convicted of
possession of crack-cocaine, a felony. This evidence may be
relevant to plaintiff's credibility as it is contrary to
Schmidt's deposition testimony. Fed.R.Evid. 608. Further,
defendants are not required to disclose evidence that will be
used for impeachment purposes. Fed.R.Civ.P. 26(a)(1)(B). Nor
should Schmidt's own felony conviction be a prejudicial surprise
to him. Therefore, Schmidt's motion to bar evidence of his prior
convictions must be denied.
2. Motion to bar reference to suicide
Schmidt moves to bar defendants from referring to his attempted
suicide. He argues there is no evidence his injuries were the
result of attempted suicide and that any such argument would be
misleading and prejudicial. Defendants respond that the amount of
medicine Schmidt ingested is clearly relevant to the case and is
listed in his medical records, the Village of Bloomingdale and
the Village of Addison police reports.*fn1 The Village of
Addison police report, authored by a possible impeachment witness, states that Schmidt's wife advised the
paramedies that Schmidt's ingestion of Xanax and Ultram resulted
from his deep depression. The motion in limine is premature and
must be denied. The court's ruling shall be deferred until the
foundation for evidence concerning the suicide attempt is
presented at trial. Suicide may not be mentioned in opening
statements or otherwise in the jury's presence without prior
3. Motion to bar evidence of contributory negligence
Schmidt argues defendants' affirmative defenses alleging
contributory negligence are premised on negligence that occurred
after the alleged tortious conduct. Therefore, Schmidt argues,
defendants should be prohibited from arguing contributory
negligence to the jury. Contributory negligence is a question of
fact for the jury. Gruidl v. Schell, 519 N.E.2d 963, 967
(Ill.App. Ct. 1988). Contrary to Schmidt's assertions, a plaintiff's
actions subsequent to alleged tortious conduct can constitute the
basis for contributory negligence. Hobart v. Schin,
185 Ill.2d 283 (Ill. 1999) (patient's misuse of prescription following
doctor's appointment was proper basis for contributory negligence
defense). Thus, the motion in limine must be denied.
4. Motion to bar reference to the Village of Addison police
Schmidt argues that any mention of the Village of Addison
police report should be barred pursuant to the court's November
3, 2005 order. No. 05 C 2134, Dkt. No. 67. A motion to reconsider
is currently before the court concerning the Village of Addison
police report. Ruling on the report is reserved.
5. Motion to bar defendant Klinman from testifying at trial
Schmidt moves to bar Klinman from testifying at trial due to
the assertion of his Fifth Amendment privilege against self
incrimination in discovery responses. Klinman stated that he does not plan to testify at trial. Klinman Resp. to P's Motion in
limine #11, No. 05 C 2134, Dkt. No. 118 (Nov. 30, 2005). Thus,
the motion is moot.
Schmidt also requests that the court instruct the jury that
Klinman's testimony would be adverse to his interests. The Fifth
Amendment does not forbid adverse inferences against parties to a
civil action when they refuse to testify in response to probative
evidence offered against them. In re High Fructose Corn Syrup
Antitrust Litig., 295 F.3d 651, 663 (7th Cir. 2002); Central
States, et al. v. Wintz Properties, 155 F.3d 868, 871 (7th Cir.
1998) ("[I]nvoking the Fifth Amendment in a civil context invites
inference that witness' testimony would be adverse to his
interests."). The trial judge, however, has discretion under Rule
403 to decline an adverse inference instruction if its probative
value is outweighed by its prejudicial effect or its likelihood
of jury confusion. Id.; Daniels v. Pipefitters' Association
Local Union, 983 F.2d 800, 802 (7th Cir. 1993) (the adverse
inference is permissive, it is not required). Schmidt's request
for an adverse inference instruction is denied as premature. The
court reserves ruling until the probative value of an inference
can be weighed in the proper context.
6. Motion to bar evidence of arrest or conviction for DUI
prior to May 11, 2004
Schmidt moves to exclude evidence of his previous arrests or
convictions for driving under the influence of alcohol prior to
May 11, 2004. He argues that this evidence is irrelevant to any
issue under Rules 401 and 402. Further, he argues that any
relevance is outweighed by the potential prejudicial effect under
Rule 403. Defendants respond that previous arrests for driving
under the influence of alcohol are relevant to show Schmidt's
history of substance abuse.
Irrelevant evidence is inadmissible. Fed.R.Evid. 402.
Relevant evidence is defined as "evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence." Fed.R.Evid. 401. Although
relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, waste
of time, and jury confusion. Fed.R.Evid. 403. Evidence is
unfairly prejudicial if it will "induce the jury to decide the
case on an improper basis rather than on the evidence presented."
United States v. Miles, 207 F.3d 988, 992 (7th Cir. 2000).
Previous arrests for driving under the influence of alcohol are
not relevant to the issues in this case and are likely to
prejudice the jury against Schmidt. The motion in limine must
7. Motion to bar evidence of consumption of Paxil or Vicodin
Schmidt moves to exclude evidence that he may have consumed
Paxil or Vicodin. He denies taking either drug in the months
preceding his injuries at issue and argues there is no evidence
that these drugs proximately caused his injuries. Defendants
assert that Schmidt's use of Paxil is relevant because it
demonstrates his history of mental health issues, including anger
control, anxiety, and stress. Schmidt claims that his mental
health worsened as a result of his injuries from defendants'
medical malpractice. Defendants respond that it is necessary to
establish Schmidt's health prior to the alleged ...