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Weistock v. Midwestern Regional Medical Center

April 23, 2010

ROSE WEISTOCK, ET AL., PLAINTIFFS,
v.
MIDWESTERN REGIONAL MEDICAL CENTER AND ROBERT LEVIN, M.D., DEFENDANTS.



The opinion of the court was delivered by: Nan R. Nolan United States Magistrate Judge

Magistrate Judge Nan R. Nolan

MEMORANDUM OPINION AND ORDER

Plaintiffs Rose Weistock, Allan Weistock, and Janet Weistock bring this diversity medical malpractice action against Defendants Midwestern Regional Medical Center (Midwestern) and Dr. Robert Levin for the treatment rendered to their husband and father, Harvey Weistock. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and this case is set for trial on June 1, 2010. Before the Court is one motion in limine filed by the Plaintiffs and seven motions in limine filed by the Defendants. For the reasons stated, Plaintiffs' motion in limine (Doc. 160) is denied, Defendants' motions in limine Nos. 1 and 2 (Docs. 165 and 166) are granted as unopposed, Defendants' motions in limine Nos. 3 and 5 are denied (Docs. 167 and 169), Defendants' motions in limine Nos. 4 and 7 (Docs. 168 and 171) are reserved, and Defendants' motion in limine No. 6 (Doc. 170) is granted.

BACKGROUND

In April 2004, Harvey Weistock was formally diagnosed with advanced, stage IIIB non-small cell lung cancer. From approximately May 24, 2004 through April 6, 2005, Harvey Weistock received chemotherapy treatment prescribed by Dr. Levin at Midwestern. The parties have stipulated that Mr. Weistock was known to have chronic renal insufficiency and non-ischemic dilated cardiomyopathy. Plaintiffs allege that the course of chemotherapy treatment administered by Dr. Levin and Midwestern caused and/or exacerbated Harvey Weistock's various medical conditions, eventually leading to his death on September 8, 2005.

DISCUSSION

A motion in limine is "any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered." Luce v. United States, 469 U.S. 38, 40 n. 2 (1984). The Seventh Circuit has recognized that motions in limine are useful devices that "streamline trials and settle evidentiary disputes in advance, so that trials are not interrupted mid-course for the consideration of lengthy and complex evidentiary issues." United States v. Tokash, 282 F.3d 962, 968 (7th Cir. 2002). Trial judges have broad discretion when ruling on motions in limine. Jenkins v. Chrysler Motors Corp, 316 F.3d 663, 664 (7th Cir. 2002). The Court addresses each motion in limine in turn below.

I. Plaintiffs' Motion in Limine

Plaintiffs move to bar the admission of any evidence of the decedent Harvey Weistock's history of cigarette smoking as both irrelevant and prejudicial. Defendants say that Mr. Weistock had a history of smoking at least one pack of cigarettes per day for 44 years until 2003. Defendants contend that Mr. Weistock's smoking history contributed to his lung cancer and lung disease and contributed to other health conditions which Defendants allege lead to his death, including cardiac disease and respiratory disease.

"In a medical malpractice action, a plaintiff must provide: (1) the proper standard of care by which to measure the defendant's conduct; (2) a negligent breach of the standard of care; and (3) that the resulting injury was proximately caused by the defendant's lack of skill or care." Wilbourn v. Cavalenes, 923 N.E.2d 937, 949 (Ill.App. Feb. 19, 2010). The focus of this litigation is on whether the chemotherapy treatment Mr. Weistock received with the Defendants caused Mr. Weistock's injuries and death. Smoking evidence may be relevant to negate causation or to negate or reduce damages, but Defendants cannot introduce evidence of Mr. Weistock's smoking history without showing a causal connection between Mr. Weistock's smoking and his condition and death. Lagestee v. Days Inn Management Co., 709 N.E.2d 270, 279-80 (Ill. App. 1999); see also IPI 31.04. In Lagestee, the Illinois Appellate Court reversed the trial court's admission of evidence of plaintiff's smoking because "defendants offered no relevant evidence of a causal connection between [plaintiff's] smoking and his L5-S1 disk herniation [the injury for which plaintiffs were seeking compensation in the case]." Id. at 280. Here, Defendants' expert, Dr. Leon Dragon, provides sufficient evidence of a causal connection between Mr. Weistock's smoking history and his lung cancer, his condition post-mid April 2005, and his death. In his report dated January 8, 2010, Dr. Dragon states, in relevant part:

[A]ny alleged deviation from the standard of care was not a proximate cause of the death of Harvey Weistock. Harvey Weistock had a history of congestive heart failure as documented by his cardiologist in Maryland and as documented in the medical records and depositions. Mr. Weistock also had a history of recurrent bladder cancer, a history of smoking, hypertension, and had undergone a total colectomy. Mr. Weistock also had a history of cigarette smoking, and had stage IIIB lung cancer. From the date of his diagnosis in April, 2004, until his death in September, 2005, was approximately 17 months. As stated previously, the average life expectancy for stage IIIB lung cancer is 15 to 18 months. Therefore, given the history of Mr. Weistock, it does not appear that any treatment administered shortened his life expectancy.

Instead, the death of Harvey Weistock was due to complications of his heart disease and respiratory complications from his lung cancer.

Any prejudice from admitting evidence of Mr. Weistock's smoking history on the issues of causation and damages does not substantially outweigh its probative value, as required by Rule 403. ...


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