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SCHMIDT v. KLINMAN

December 2, 2005.

CRAIG SCHMIDT, Plaintiff,
v.
STEVEN M. KLINMAN, M.D. and RANVIR S. AHLAWAT, M.D., Defendants.



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.

DISCUSSION

  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 court authorization.

  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 report

  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 be granted.

  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 ...


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