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					                     SOME THINGS ARE BEST LEFT UNSAID:
                    STRATEGIC USE OF MOTIONS IN LIMINE
                                 By: Lucy Inman
                                Zaytoun Law Firm
                              510 Glenwood Avenue
                                    Suite 301
                                Raleigh, NC 27603
                            Telephone (919) 832-6690
                            linman@zaytounlaw.com


                                     INTRODUCTION

       Motions in limine, translated from the Latin “at the threshold” or “at the very

beginning,” are motions to exclude or include evidence that generally are considered by

the court during a pre-trial conference or on the first day of trial. Rulings on motions in

limine, often rendered in a matter of minutes, can eviscerate essential elements of a claim

or defense, eliminate red herrings, or allow controversial evidence and argument that

makes the entre trial an uphill battle.

       Trial lawyers will find greater success in winning their motions in limine, and in

defeating opposing counsel’s motions in limine, by considering this procedural device

and its consequences at the earliest stages of litigation. The nature of evidence developed

through discovery and investigation often determines what the court will find probative,

and what the court will find extraneous. Thorough legal research and analysis is often

necessary to distill a powerful and concise argument on an evidentiary issue. Also,

where the resolution of key evidentiary issues will impact trial strategy or the potential

for settlement, it may be in your client’s interest to get a ruling as soon as possible. There

is no prohibition in the law against motions in limine being decided well in advance of

trial, although judges may out of habit and concern for considering the motion in context

be reluctant to hear these motions before trial.
       In the past decade, public opinion regarding medical malpractice cases has

become skeptical, even hostile to claims. Citizens drafted into jury service expect proof

as solid and succinct as seen on television legal dramas. They have little tolerance for

lengthy sidebars and recesses, and if they are kept waiting they tend to remember that it’s

the plaintiff, not the defendant, who brought the lawsuit and is compelling their

attendance. It is therefore more important than ever to confront and resolve as many

evidentiary disputes prior to jury voir dire.

                                       OVERVIEW

       Given the huge expense of bringing a medical negligence case to trial, it is

imperative that motions in limine be handled as effectively as possible in the first

instance. Evidentiary rulings are rarely reversed. Furthermore, even if a reversal is

granted, the cost of re-trying a case can be prohibitive.

       This paper will focus on practical, procedural, and strategic considerations

regarding motions in limine rather than analyzing the substantive underlying evidentiary

issues. Attached are motions in limine and briefs in medical negligence cases that

provide samples of legal analysis and cite the leading caselaw on evidentiary issues.

                   LEGAL AUTHORITY AND STANDARD OF REVIEW
                       OF RULINGS ON MOTIONS IN LIMINE

       Neither the North Carolina or Federal Rules of Civil Procedure or Rules of

Evidence expressly provide for motions in limine. Instead, these motions have developed

through caselaw over the past half century. They are usually governed by the Rules of

Evidence and allow counsel to object before the trial begins to anticipated testimony, trial

exhibits, and any statements by counsel about particular evidence. Arguing these issues

prior to trial minimizes frequent interruptions for arguments outside the presence of the



                                                2
jury, while also reducing the need to make objections in the presence of the jury (and

thereby highlighting the evidence counsel believes is improper). Motions in limine often

apply the Rules of Evidence regarding competency of witnesses, hearsay, and

information categorically prohibited from mention in trial. However, motions in limine

also are used to bar otherwise proper evidence on procedural grounds, such as the

exclusion of expert testimony by a witness who was not designated in compliance with a

discovery scheduling order or the exclusion of evidence that was wrongly withheld

during discovery.

       Rulings on motions in limine are subject to the same standard of review as all

other evidentiary rulings. Appellate courts generally will not reverse a trial court’s ruling

on the admissibility of evidence absent a showing that the trial court abused his or her

discretion. E.g., Gray v. Allen, 677 S.E.2d 862, 2009 N.C. App. LEXIS 709 (June 2009).

Even when an abuse of discretion is found, the decision will not be reversed absent a

showing that a different verdict would have resulted had the trial court ruled differently

on the evidentiary issue. Suarez v. Wotring, 155 N.C. App. 20, 30, 573 S.E.2d 746, 752

(2002). Rulings on motion in limine are by definition interlocutory, because they are

made prior to the conclusion of trial. Accordingly, these rulings are rarely subject to

appeal before entry of final judgment.

       If you are on the losing end of a motion in limine, you should try to preserve your

objection without drawing unnecessary attention to evidence in dispute and without

drawing the ire of the court or the jury. Raise the issue when the jury is out, at a time just

before the time evidence you object to is introduced, or after the introduction of evidence

that puts in context the evidence you have been excluded from presenting. Most trial




                                              3
judges prefer dispensing with objections and offers of proof in an orderly manner without

having to excuse the jury just for your objection or request for reconsideration of the

court’s prior evidentiary ruling.

                              TIMING OF MOTIONS IN LIMINE

       Because civil cases in North Carolina’s state courts typically are not assigned to a

single judge, a series of different judges may rule on pre-trial matters as they arise, and

the trial judge will have no involvement in a case pre-trial. Based on the argument that

evidentiary rulings must be made in the context of other evidence offered at trial, many

judges are reluctant to consider motions in limine at an earlier stage.

       Some plaintiffs’ lawyers defending against motions in limine do not want the

motions to be heard prior to trial because the trial court (1) does not have all the evidence

in to consider the context of what’s being offered and (2) may more readily exclude

testimony by a witness who is not in the courtroom. Once plaintiff’s out-of-state expert

has undertaken the effort and expense to travel to North Carolina for a trial, for example,

the argument goes, the Court may find it more difficult to turn the expert away. If

plaintiff is relying on unorthodox or attenuated evidence not plainly related to the case,

counsel may be wary of a challenge before the trial court understands how that evidence

relates to the claims and defenses at issue.

        I prefer early motions in limine because knowing my opponent’s best arguments

for excluding or including evidence helps me prepare for everything in the trial and may

 afford an opportunity to address evidentiary problems before it is too late to cure them.




                                               4
                    GET IT IN WRITING AND PRESERVE OBJECTIONS

       Motions in limine don’t have to be in writing, and orders granting or denying

motions in limine don’t have to be in writing. But putting motions in writing and getting

written orders provides a record for review in the event of an appeal. Written orders also

serve to clarify what exactly is prohibited if a motion is granted, or what is allowed, if a

motion is denied.

       In Floyd v. Allen, 2008 N.C. App. LEXIS 2000 (November 4, 2008) (unpublished

opinion), two days before trial defense counsel prevailed on a written motion in limine to

exclude one of plaintiff’s standard of care witnesses on the ground that he was not

sufficiently familiar with the applicable standard of care. Two days later, after jury

selection but before opening statements, defense counsel made an oral motion to exclude

plaintiff’s only remaining expert witness, also on the ground that he was not sufficiently

familiar with the standard of care applicable to defendants. The trial court granted the

motion, apparently without considering any affidavits, deposition transcript, or other

evidence (even though plaintiff submitted an affidavit by the expert). Defendants then

made an oral motion to dismiss, for summary judgment, and for directed verdict on the

ground that plaintiff had no expert witness. The trial court granted the motion and

dismissed the case. Months later, the trial court entered a written order granting

defendants’ motion to dismiss “on the grounds that both of the Plaintiff’s experts were

not competent to give standard of care testimony under N.C.G.S. ' 90-21.12.” The Court

of Appeals concluded that the “substance of the motion and order was summary

judgment on the grounds that plaintiffs failed to present evidence on an essential element




                                              5
of their claim – the standard of care.” The appellate panel determined the appropriate

standard of review for the evidentiary ruling was an abuse of discretion standard, but the

standard of review for the dismissal was de novo. Based on the absence of any record

that the trial court considered the expert’s affidavit, or his deposition testimony, before

finding the expert was incompetent, the Court of Appeals reviewed the record,

determined that the expert was competent, and held that the trial court had abused its

discretion in excluding the expert without reviewing any of the evidence in the record.

The Court of Appeals then reversed the dismissal which had been based on the exclusion

of the expert.

       If plaintiff’s counsel in Floyd had not submitted an affidavit of his expert, the

appellate court might not have found the record sufficient to reverse the trial court’s

rulings. If defense counsel in Floyd had submitted a written motion and had provided the

court with a proposed written order that recited a review of the expert’s affidavit, the trial

court’s decision likely would have withstood an abuse of discretion review. The lessons

of Floyd are to expect the unexpected at trial and to make an offer of proof if testimony is

excluded.

       In Lail v. Bowman Gray School of Medicine, 675 S.E.2d 370 (2009), the Court of

Appeals held that plaintiff waived his objection to the trial court’s exclusion of expert

deposition testimony because plaintiff’s counsel never offered the transcript into

evidence. Quoting an earlier decision which rejected a defense appeal to the granting of

a motion in limine, the court noted:

                 “A trial court’s ruling on a motion in limine is preliminary
                 and is subject to change depending on the actual evidence
                 offered at trial. The granting or denying of a motion in
                 limine is not appealable. To preserve the evidentiary issue



                                               6
               for appeal where a motion in limine has been granted, the
               non-movant party must attempt to introduce the evidence at
               trial.”

Id. (quoting Condellone v. Condellone, 129 N.C. App. 675, 501 S.E.2d 690, disc. review

denied, 349 N.C. 354, 517 S.E.2d 889 (1995); see also Kor Xiong v. Marks, 668 S.E.2d

594, 2008 N.C. App. LEXIS 2016. Similarly, if a motion in limine is denied, the moving

party must object to the evidence when it is presented at trial in order to preserve the

issue for appeal. Martin v. Benson, 348 N.C. 684, 500 S.E.2d 664 (1998).

       Counsel who has unsuccessfully moved to exclude evidence at trial faces a Catch-

22 in terms of trial strategy. Counsel might consider bringing out the unfavorable

evidence on direct examination in order to reduce the sting. To do so, however, waives

the objection to the introduction of the evidence.

                                 OPENING THE DOOR

       Rulings on motions in limine brought pre-trial or at the very beginning of trial are

generally considered preliminary, meaning that the trial court can revisit the issue once

other evidence has been introduced. In a recent non-medical negligence case, the Court

of Appeals found no error in the trial court allowing the introduction of evidence

previously excluded by its order granting a motion in limine, because the party who had

succeeded in excluding the evidence “opened the door” by introducing testimony that put

the evidence in issue. Everhart v. O’Charley’s Inc., 2009 N.C. App. LEXIS 1627

(October 6, 2009). Defendant O’Charley’s had successfully moved in limine to prohibit

plaintiff from introducing evidence about an earlier incident at another O’Charley’s

restaurant that was similar to the case at hand – in both instances a waiter poured cleaning

solution into a customer’s water glass. During examination of an O’Charley’s employee,




                                              7
defense counsel elicited testimony that the mishap involving plaintiff had been reported

to other restaurants in the chain to alert them to the danger and reduce the risk of it

happening again. Plaintiff’s counsel then argued that if defendant could put in evidence

that it was taking steps to protect against another mishap, plaintiff should be able to show

that O’Charley’s did not take those steps to prevent the incident in which plaintiff was

injured. The trial court agreed and reversed its earlier ruling.

                     PLAINTIFFS’ STANDARD MOTIONS IN LIMINE

       Counsel for plaintiffs in medical negligence cases should always bring motions in

limine to exclude the following categories of defense evidence:

       1.       Evidence of collateral sources of income or services for plaintiff including

health insurance, Medicare or Medicaid, and care by family members.         The collateral

source rule should apply to prohibit defense counsel and defense witnesses from any

reference to plaintiff benefiting from health insurance, government subsidies, free care

from family members, or other sources of income that have reduced the out-of-pocket

impact of the plaintiff’s injuries, or that might reduce plaintiff’s out-of-pocket expenses

for future care. N.C.R.Evid. 401, 402, 403.

       2.       Evidence of potential interest earnings of a damage award or calculation

of payments to plaintiff from an annuity. N.C.R.Evid. 403, 802.

       3.       Character evidence about plaintiff. N.C.R.Evid. 403, 404. Evidence that

plaintiff has acted badly in the past is highly prejudicial, because jurors will be less

inclined to award money damages to someone whom they believe is undeserving, and

because such evidence gives jurors an opportunity to blame the plaintiff for his or her

own injuries.




                                              8
       4.      Similarly, character evidence about defendants, such as witnesses’

opinions that they are “good doctors” or have “saved lives” should be excluded.

N.C.R.Evid. 402, 403, 405, 406, 408.

       5.      Statements by witnesses or arguments of counsel advocating “tort reform”

or implying that the outcome of the trial will cause economic harm to defendants or affect

healthcare costs. N.C.R.Evid. 402, 403.

       6.      Statements by witnesses or arguments of counsel suggesting that plaintiff

or his lawyers are greedy, only interested in money, are seeking to win a lottery, or

similar statements. N.C.R.Evid. 402, 403.

       7.      Criminal case terminology such as “charged, ” “accused,” or “guilty” in

reference to civil defendants. N.C.R. Evid. 402, 403.

       8.      Any argument by counsel or reference in the presence of the jury stating

or suggesting that a physician is not an “insurer”of diagnosis, judgment, or treatement, or

that a physician cannot guarantee a positive outcome. N.C.R. Evid. 402, 403.

       8.      Expert testimony on the standard of care or causation by witnesses not

properly designated or not made available for deposition in compliance with a discovery

scheduling order. N.C.R. Civ. Proc. 26(e) & (f1).

       9.      Expert testimony or argument that defense experts were not allowed to

examine the plaintiff, if the defense did not request an examination or if defense experts

were qualified to conduct a Rule 35 examination. N.C.R. Civ. Proc. 35, N.C.R.Evid. 403.

       10.     Evidence of controversies related to testimony by plaintiff’s experts in

previous cases, such as a professional association revoking the membership of a




                                             9
physician who testified for plaintiff in a trial against another member of the same

association. N.C.R. Evid. 402, 403, 404.

       11.     Any use of medical literature beyond that allowed by Evidence Rule

803(18). Medical literature may be read into evidence if it is admitted by an expert to be

reliable authority, but it may not be introduced as an exhibit.

                       STANDARD DEFENSE MOTIONS IN LIMINE

   To anticipate defense motions in limine, I recommend an inventory of the evidence

that is essential to your case. In medical negligence cases, expert testimony (about

whether the defendant breached a duty to plaintiff, causation, and/or the nature and extent

of the plaintiff’s damages) is most often targeted by defense counsel. Evidence about

prior claims or disciplinary actions against defendants is also often the subject of a

defense motion in limine. Below is a list of standard defense motions in limine.

        1.     Evidence of medical expenses that were not actually incurred by plaintiff.

This motion is the flipside of plaintiff’s motion to exclude evidence of collateral sources

of income and support.

        2.     Expert testimony by a witness who is not competent to testify under Rule

702 and under N.C.G.S. 90-21.12.

        3.     Expert testimony critical of defendant’s acts or omissions other than those

in violation of the standard of care as defined in N.C.G.S. 90-21.12, and any reference or

argument to defendant being negligent for any reason other than violating the applicable

standard of care.




                                             10
        4.     Testimony by any expert witness regarding how he or she treats other

patients in circumstances similar to plaintiff’s presentation at the time defendant is

alleged to have been negligent.

        5.     Testimony by any expert witness stating opinions or bases for opinions not

previously disclosed by the expert witness in deposition.

        6.     In a wrongful death case, testimony by any person other than a family

member who will recover damages describing the decedent’s contributions to the family,

to friends, or to community.

       The lists above are inclusive but not exhaustive, and the only scenario counsel can

count on with certainty is to expect the unexpected. However, preparing for all

evidentiary disputes that can reasonably be anticipated frees up time to scramble when

surprise comes in the form of a motion in limine, unanticipated trial testimony, or an

unexpected ruling by the court on an issue counsel thought was well settled.




                                             11
NORTH CAROLINA                                   IN THE GENERAL COURT OF JUSTICE
                                                       SUPERIOR COURT DIVISION
WAKE COUNTY                                                 96 CVS 03933


KRYSTINA REEVE,                                  )
                                                 )
                                 Plaintiff,      )
                                                 )
                 v.                              )       PLAINTIFF’S MOTIONS IN LIMINE
                                                 )
ERIC RAPPAPORT, M.D. and RALEIGH                 )
OB/GYN CENTRE, P.A.,                             )
                                                 )
                                 Defendants.     )



          Plaintiff respectfully moves this court for an order in limine excluding the following

matters from admission into evidence at the trial of this action and precluding any party, witness

or attorney from mentioning them in any way in the presence of the jury:

          1.     Any mention that plaintiff has spina bifida. This issue has been raised because

at approximately age 12 to 14 plaintiff was told by a chiropractor that her x-rays showed spina

bifida. She reported this in her prenatal records in 1993 and in her deposition. This was shown

conclusively to be incorrect by MRI and x-ray done in 1998 and 1999. See Exhibit A. The

material that should be excluded are plaintiff’s deposition testimony, testimony by Dr. Khoury,

reference in defendant’s medical records regarding this finding, and any arguments by or

questions to experts based thereon.

          2.     That plaintiff had a DUI in 1992. Plaintiff, since before she became preganant,

rarely drinks alcohol and has not had any health care issues related to alcohol consumption.

          3.     Any evidence, mention or argument regarding collateral source payments or

gratuitous family services in the past for medical care, hospital costs, treatment or services for

plaintiff Krystina Reeve.




15779-1
          4.    Any mention of a potential effect on the level of the defendant’s insurance

premium or that lawsuits in general or this lawsuit in particular will have any effect generally on

insurance rates, malpractice insurance rates or the cost of health care, or anything remotely

related to these issues.

          5.    Any suggestion that there is no insurance coverage for the acts complained of in

this action or that the defendant will have to pay "out of his pocket" or be personally financially

responsible for a judgment.

          6.    The effect or mention of any effect that this lawsuit, the filing of the complaint, the

service of the complaint or any result emanating from this lawsuit has had or may have on the

defendant, including but not limited to any emotional, professional or financial effect.

          7.    Defendants should not be permitted to use criminal terminology in reference to

the claims against them. For example, defendant should be prohibited from stating that plaintiff

has “charged” him with being negligent (rather, the plaintiff has “claims” against him); that the

plaintiff wishes the jury to find Dr. Rappaport “guilty” of malpractice (rather, she seeks that the

jury find him “liable”); that Dr. Rappaport is being “prosecuted” (rather, he’s being sued; that the

jury should find him “innocent” (rather, he may ask them to find that he is not negligent); and

other similar uses of criminal terminology.

          8.    The presentation of any testimony or evidence from any nurses or from any other

individuals as to the fact that this defendant doctor is a "good doctor" or "practices good

medicine" or "has practiced good medicine" or "has been a good doctor in the past."

          9.    Any argument that relates to plaintiffs' experts being from outside the State of

North Carolina or that none of plaintiffs' experts are from North Carolina.

          10.   Any mention of any lawsuit in which any of plaintiffs' experts have been named

as defendants.




15779-1                                            2
          This the 4th day of September, 2000.


                                                         ELIZABETH F. KUNIHOLM

                                                       /s/Elizabeth F. Kuniholm
                                                 __________________________
                                                       Elizabeth F. Kuniholm
                                                       State Bar No. 9314

                                                         Elizabeth F. Kuniholm
                                                         Attorneys at Law
                                                         4101 Lake Boone Trail, Ste 504
                                                         Raleigh, North Carolina 27607
                                                         (919) 782-4494

                                                         Attorneys for Plaintiff



                                    CERTIFICATE OF SERVICE

      I hereby certify that a copy of the foregoing Plaintiff’s Motions in Limine was this day
hand delivered to:

          Michael Hurley
          Dan J. McLamb
          YATES, MCLAMB & WEYHER
          Attorneys for Defendants
          One Hannover Square
          421 Fayetteville Street Mall, Suite 1200
          Raleigh, NC 27601
          P.O. Box 2889
          Raleigh, NC 27602-2889

          This the 4th day of September, 2000.



                                                         _________________________________
                                                         Elizabeth F. Kuniholm




15779-1                                              3
NORTH CAROLINA                                           IN THE GENERAL COURT OF JUSTICE
                                                              SUPERIOR COURT DIVISION
WAKE COUNTY                                                        02 CVS 16253

MELISSA POWELL,                                 )
                                                )
                               Plaintiff,       )
                                                )        PLAINTIFF’S MOTION IN LIMINE
               v.                               )         AND MEMORANDUM OF LAW
                                                )     SEEKING TO EXCLUDE INADMISSIBLE
BRIAN STEVEN QUIGLEY, M.D., and                 )    CHARACTER EVIDENCE OF PLAINTIFF’S
RALEIGH EMERGENCY MEDICINE                      )     VIOLENT OR AGGRESSIVE BEHAVIOR
ASSOCIATES, INC.,                               )
                                                )
                               Defendants.      )



        Plaintiff, pursuant to Rule 16 of the Rules of Civil Procedure and for reasons set forth

herein, moves this Court, in limine, for an Order absolutely prohibiting all defendants and their

counsel and witnesses from introducing into evidence, mentioning, testifying about, using

exhibits referring to, arguing about or in any other way bringing to the attention of the jury

directly or indirectly during any portion on the trial of this case or speaking with any

representative of the media during this trial, inadmissible character evidence alleging plaintiff’s

violent or aggressive behavior.

                                            RELEVANT FACTS

       This is an action for medical malpractice, in which plaintiff seeks damages for injuries

she suffered beginning in December 1999 as the result of defendants’ failure to treat her for

respiratory infection, resulting in severe and permanent respiratory damage. In the course of

discovery defendants have gathered witness testimony and medical records referencing

isolated incidents of violence or aggression by plaintiff, mostly more than a decade ago.

Plaintiff seeks to exclude from evidence this irrelevant and highly prejudicial material.

         A. Prior Mental Health Notes Regarding Violent or Aggressive Behavior

       In 1990, plaintiff admitted herself for inpatient psychiatric treatment at UNC Hospital in

Chapel Hill. A psychological evaluation report prepared during that course of treatment relays
Plaintiff’s report about a relationship that ended in 1986 after an episode during which she “lost

control of her anger and began beating her partner with her fist.” No expert witness in this

action has cited plaintiff’s self-reported behavior as the basis for expert opinion to be offered at

trial. Plaintiff does not seek to exclude the report in its entirety, but to require redaction and to

prohibit any testimony about the reported violent incident.

       In 1991, 1992, 1993, and 1994, plaintiff periodically saw Barry Ostrow, MD, a

psychiatrist, for medication evaluation. Plaintiff saw Dr. Ostrow approximately nine times over

that four-year period, at the suggestion of plaintiff’s psychotherapist, Judith Christopher. Dr.

Ostrow sent correspondence to Dr. Christopher concerning plaintiff’s medication in 1991 and in

1994. In the course of seeing plaintiff, Dr. Ostrow made handwritten notes which he did not

share with either plaintiff or Dr. Christopher. Dr. Ostrow’s notes, obtained in discovery in this

action, appear to reflect plaintiff’s report to him of her thoughts, feelings, and certain

occurrences and events in which she was involved. A note dated December 10, 1992 reflects

that plaintiff told Dr. Ostrow about an altercation between plaintiff and a pet bird belonging to

plaintiff and her girlfriend. The note reported, “I drowned him – then gave him to [her girlfriend].

I lied how he died then told her the next day.” This particular event appeared to have no impact

on plaintiff’s treatment. Neither Dr. Ostrow’s notes nor any other record by Dr. Ostrow reflects a

change in his diagnosis of plaintiff following that report. Plaintiff does not seek to exclude from

evidence Dr. Ostrow’s notes in their entirety, but to require redaction of the notes and to limit

any testimony regarding the reported drowning of the pet bird.

       Although plaintiff’s mental and emotional health at the time of defendant’s negligence

and thereafter is at issue in this action, no expert witness designated by any party has relied

upon above quoted passage in Dr. Ostrow’s 1992 notes. The only defense expert to rely on Dr.

Ostrow’s notes in forming an opinion in this case omits any mention of this passage or of any

violent or aggressive behavior by plaintiff. (Exhibit A, typed notes of Bruce Berger, M.D.,


                                                   2
expert witness designated by defendants.)

        In the course of four sessions of deposition of plaintiff, no defense counsel has

questioned plaintiff about any history of violence or aggression, or about either of the above-

referenced incidents. Experts in psychiatry and psychology designated as defense witnesses,

who have all been asked in deposition what further information they might need in forming their

opinions, have expressed no interest in information regarding any past violent or aggressive

behavior by plaintiff.

              B. Inadmissible Character Testimony by Elisabeth “Lissa” Mohr

        Plaintiff’s former girlfriend, Elisabeth “Lissa” Mohr, testified in deposition about plaintiff’s

personality traits and general tendencies.     Ms. Mohr brought to her deposition a list she had

prepared setting forth characteristics she disliked about plaintiff. (Exhibit B, document

prepared by Ms. Mohr for her deposition.) Ms. Mohr’s deposition lasted for hours because of

her narrative and nonresponsive answers to counsel’s questions. Ms. Mohr testified about

instances in which she was afraid of plaintiff or in which plaintiff’s behavior was aggressive. For

example, in response to defense counsel’s questions in deposition about the timing of her

breakup with plaintiff, Ms. Mohr testified that plaintiff once threw her keys across a bedroom,

putting a hole in the wall, and that plaintiff on other occasions “threw things” and “threw more

things.”

                                APPLICABLE EVIDENTIARY LAW

        Rule 401 provides that “relevant evidence” means “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.” N.C. R. Evid. 401. Rule 402

of the North Carolina Rules of Evidence provides that “evidence which is not relevant is not

admissible.” Id., Rule 402. Rule 403 provides for the exclusion of evidence, even if relevant, on

the grounds of prejudice, confusion or waste of time: “although relevant, evidence may be


                                                    3
excluded if its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of

time, or needless presentation of cumulative evidence.” Id., Rule 403. Rule 404 provides that

evidence of a person’s character or a trait of his character is not admissible for the purpose of

proving that he acted in conformity therewith on a particular occasion. Id., Rule 404.

                                            ARGUMENT

       Documents and testimony asserting that Plaintiff has exhibited violent or aggressive

behavior are not admissible at trial because (1) evidence regarding incidents in which Plaintiff

has been violent or aggressive is not relevant under Rules 401 and 402, (2) information

concerning Plaintiff’s exhibiting violence or aggression constitutes inadmissible character

evidence under Rule 404(a), and (3) Rule 403 allows the Court to exclude evidence when the

probative value of such information is substantially outweighed by the danger of unfair

prejudice.

       Plaintiff has made no claim that as a result of defendants’ negligence she has

dysfunctional personal relationships or loses her temper. Accordingly, information from decade-

old psychiatric notes and testimony such as that provided in Ms. Mohr’s deposition is irrelevant

and should be excluded pursuant to Rule 402. Evidence that plaintiff has acted violently or

aggressively in the past would risk distracting jurors’ attention from the real issues in this action.

Because this evidence will invite the jury to judge plaintiff based on morals rather than law, it

should be excluded pursuant to Rule 403.

1.     Prior events of plaintiff’s violent or aggressive behavior are not relevant because
       they do not make any element of a claim or defense more or less likely, pursuant
       to N.C. R. Evid. 401 and 402.

       Plaintiff has taken deposition testimony of all defense experts and has requested in

written discovery a forecast of these experts’ opinions to be provided at trial. No expert has

testified or provided any documents forecasting an opinion that any violent or aggressive


                                                  4
behavior by plaintiff is relevant to this case. Despite contentions by defense counsel that such

evidence is necessary for a complete picture of her history of dysfunction, such highly

inflammatory and prejudicial information cannot be made relevant in the guise of shedding light

on plaintiff’s psychiatric condition. Defendant in Johnson v. Amethyst Corp., 120 N.C.App. 529,

537, 463 S.E.2d 397, 403 (1995), contended that evidence of plaintiff’s prior drug abuse was

necessary “‘to develop the entire picture of a personality type’ because it directly related to the

issue of damages.” The Court of Appeals rejected that argument, holding that it was

inadmissible character evidence and irrelevant to plaintiff’s credibility. The same is true for any

evidence that could be proffered regarding past violent or aggressive behavior by plaintiff.

       A.      Isolated incidents reflected in the both the Hospital notes and Dr.
               notes are too remote in time to be probative.

       A key factor affecting the relevance of prior incidents is the amount of time that has

elapsed between those incidents and the events at issue in the lawsuit. In Adcock v. Life

Assur. Co. of N.C., 31 N.C. App. 97, 228 S.E.2d 654 (1976), the insured had died from a

gunshot wound, and the insurance company denied coverage on the theory that he had

committed suicide. In support of its defense, the insurance company attempted to introduce

hospital records showing that, six months before his death, the insured had been hospitalized

for depression and chronic alcoholism, and that, while hospitalized, he had talked of suicide.

The trial judge excluded these records on the ground that they were too remote in time to be

probative as to the insured’s state of mind six months later, and the Court of Appeals agreed.

Obviously, longer intervening periods of time make such evidence even more remote, and

therefore all the more irrelevant. See State v. Finch, 293 N.C. 132, 235 S.E.2d 819, 826-27

(1977) (evidence of mental condition during period of time that ended 4 years before trial was

properly excluded as being too remote); In re Hall, 252 N.C. 70, 113 S.E.2d 1, 7-8 (1960)

(evidence concerning testatrix’s bizarre behavior from 4 or more years prior to making her will



                                                 5
was properly excluded as too remote in time); State v. Cass, 55 N.C. App. 291, 285 S.E.2d 337,

344, disc. review denied, 305 N.C. 396, 290 S.E.2d 36 (1982) (evidence of repeated

hospitalizations for mental problems from 1958 through 1967 was properly excluded as being

too remote in time to have any relevance to mental condition in 1979).

        The UNC Hospital notes that plaintiff seeks to have redacted in this action reflect events

that took place in 1986, approximately nineteen (19) years ago. Dr. Ostrow’s notes pertain to

events that took place in 1992, over twelve (12) years ago. By the standards of the law and

common sense alike, that is simply too far back to permit any pertinent inferences to be drawn

in this action.

        The proper result here is therefore illustrated by McNabb v. Town of Bryson City, 82

N.C. App. 385, 346 S.E.2d 285 (1986), disc. review dismissed as improvidently allowed, 319

N.C. 397, 354 S.E.2d 239 (1987). The plaintiff in McNabb sued for personal injuries sustained

in an automobile collision. Among the injuries claimed was emotional distress and depression

resulting from the accident. The defense offered into evidence the plaintiff’s 11-year-old Army

medical record which revealed that he had threatened to commit suicide, and had actually

attempted suicide on at least one occasion. The trial judge excluded this evidence, and the

Court of Appeals, understandably skeptical that such remote evidence of isolated incidents

could have any legitimate bearing upon events more than a decade later, affirmed:

        The cornerstone of admissibility of all evidence is that it must be relevant. G.S.
        8C-1, Rule 402. . . . Defendant offered no evidence to establish the relevance of
        the eleven-year-old medical records to the issues in this case: defendant’s
        negligence and plaintiff’s damages resulting therefrom. And the relevancy of the
        offered evidence is not apparent from the records themselves. Defendant
        offered no evidence . . . to connect the eleven-year-old medical records with the
        injuries plaintiff claimed. . . . [T]he trial court correctly excluded the records of
        plaintiff’s attempted suicide and back pain in 1972.


Id., 346 S.E.2d at 289.

        Although plaintiff anticipates and accepts that defendants will introduce evidence of her


                                                  6
prior mental health diagnoses and treatment, evidence of these isolated incidents of violence

and aggression is unnecessary to prove plaintiff’s condition prior to her injuries at issue in this

action.

          B.     The testimony of         regarding plaintiff’s character is
          irrelevant to any issue in this case.

          Character evidence is inadmissible in civil trials. N.C. R. Evid. 404(a). Inadmissible

character evidence “tempts the jury to base its decision on emotion and to reward good people

or punish bad people, rather than render a verdict based upon the facts before them... The use

of character evidence by a party to a civil action ‘might move the jury to follow the principles of

poetic justice rather than rules of law.’” Holliday v. Cutchin, 311 N.C. 277, 316 S.E.2d 55 (1984),

citing Creech v. Creech, 222 N.C. 656, 664, 24 S.E.2d 642, 648 (1943).



2.        Even if found to be relevant of plaintiff’s prior mental health history, the probative
          value of plaintiff’s violent or aggressive behavior is substantially outweighed by
          the danger of unfair prejudice against plaintiff, pursuant to N.C. R. Evid. 403.

          Rule 403 provides that evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice. “ N.C. R. Evid. 403. ‘Unfair prejudice’ within its

context means an undue tendency to suggest decision on an improper basis, commonly, though

not necessarily, an emotional one.” Commentary, N.C. R. Evid. 403.

          Evidence that Plaintiff more than a decade ago acted violently toward a pet and another

person has no probative value with respect to any element of any defense in this action. Nor

does this evidence tend to disprove, impeach, or limit any evidence supporting any element of

Plaintiff’s claims in this action. Because specific incidents referred to in the UNC evaluation

note and Dr. Ostrow’s notes have no probative value create a substantial risk of inflaming

members of the jury against Plaintiff, these notes and any testimony about the specific incidents

referenced in these notes should be excluded. Similarly, evidence that plaintiff “threw things” at



                                                   7
a girlfriend do not make any element of plaintiff’s claims less likely and do not support any

element of any defense in this action, but such evidence will risk poisoning the jury’s view of

plaintiff.

                                            CONCLUSION

         Evidence and testimony regarding prior instances of plaintiff’s violent or aggressive

behavior should be excluded from evidence because (1) it is not relevant evidence, (2) it

constitutes inadmissible character evidence, and (3) the probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury.

Plaintiff prays that the Court will grant this Motion in Limine.

         This the     day of March, 2005.


                                                       KUNIHOLM LAW FIRM


                                                       __/s/ Lucy N. Inman
                                                       Elizabeth F. Kuniholm
                                                          State Bar No.: 9314
                                                       Lucy N. Inman
                                                          State Bar No.: 17462
                                                       KUNIHOLM LAW FIRM
                                                       1500 Sunday Drive, Suite 208
                                                       Raleigh, North Carolina 27607
                                                       (919) 854-4454
                                                       Attorneys for Plaintiff




                                                   8
STATE OF NORTH CAROLINA                  IN THE GENERAL COURT OF JUSTICE
                                             SUPERIOR COURT DIVISION
COUNTY OF DURHAM                                FILE NO.: 07 CVS 4135

PHILLIP EVANS, GUARDIAN AD          )
LITEM OF J. DOE, MINOR CHILD,       )
     Plaintiff,                     )
                                    )
vs.                                 )
                                    )
                                    )
DUKE UNIVERSITY HEALTH              )
SYSTEM, INC.,                       )
A North Carolina Corporation;       )
DUKE UNIVERSITY D/B/A DUKE          )
MEDICAL CENTER,                     )
A North Carolina Corporation;       )
PRIVATE DIAGNOSTIC CLINIC, PLLC )
A North Carolina Professional       )
Limited Liability Corporation;      )
JOHN ERIC JELOVSEK, M.D.; AND )
ELIZABETH G. LIVINGSTON, M.D.       )
        Defendants.
____________________________________________________________________________

              PLAINTIFF’S BRIEF IN SUPPORT OF MOTION IN LIMINE
                     TO PRECLUDE EVIDENCE REGARDING
                  THE NON-DUE PROCESS ACOG CENSURE OF
                 PLAINTIFF’S EXPERT DR. BARRY SHIFRIN, M.D.

_______________________________________________________________

                    I. STATEMENT OF THE CASE

      At the trial of this action, Plaintiffs intend to call Dr. Barry Shifrin, a renowned

expert in the fields of Obstetrics & Gynecology and Maternal-Fetal Medicine. Dr. Shifrin

is a highly respected, nationally known, widely published physician with impeccable

credentials. He is board certified in Obstetrics & Gynecology and in Maternal-Fetal

Medicine. He has been practicing in these fields for more than 30 years. He has

                                              1
authored over 100 peer-reviewed articles and written over 40 book chapters in the field

of obstetrics and gynecology. Dr. Shifrin has always maintained a professional license

in good standing and has never been the subject of any disciplinary action on his

medical license. 1

         In 2004, the American College of Obstetricians & Gynecologists (“ACOG”)

issued a “censure” ruling against Dr. Shifrin as a result of expert services Dr. Shifrin

performed on behalf of a child injured at birth. The “censure” was issued without any

due process, without any formal hearing and without any testimony from any

witnesses.2 The purported basis of the censure does not relate to any issues in this

case. Indeed the facts that ostensibly underlie the issuance of the censure have

nothing to do with patient care by Dr. Shifrin at all, nor with his qualifications or abilities

as a physician.

         ACOG is a voluntary, professional trade group comprised of members who pay

yearly dues. ACOG is an advocacy group for physician causes. ACOG is not a

licensing body, it serves no disciplinary function, nor does it hold any powers relating to

a physician’s license or ability to practice medicine. ACOG is a professional trade group

which has no official function or capacity. It is an association of professionals whose

purpose is to educate and protect its members, often through lobbying efforts on issues

which concern its membership, including medical malpractice lawsuits.

         According to its website, www.acog.org, ACOG “is a private, voluntary, nonprofit

membership organization.” One of its primary functions is to protect physicians against

medical malpractice lawsuits and to lobby on their behalf for reform of the tort liability

1
    Tab 1, Curriculum Vita of Dr. Barry Shifrin
                                                  2
system. ACOG publishes a textbook for its members titled: Professional Liability and

Risk Management: an Essential Guide for Obstetrician-gynecologists - 2nd Edition.

ACOG also has a Committee on Government Relations, which “recommends ACOG’s

federal and state legislative priorities and agenda to the Executive Board for approval at

the beginning of each year.” In the year 2005, one year after ACOG censured Dr.

Shifrin, its website identified Medical Liability Reform as the Committee’s “top legislative

priority.”

          It bears repeating that ACOG is not a government entity. ACOG has no

regulatory power over Dr. Shifrin nor any other physician, it does do not serve any legal

disciplinary function and it is not involved in any way with physician licensing. It has no

power to make a lawful “censure.” However, the practice of the organization in

threatening physicians who testify in Plaintiff’s cases either to discourage them from

testifying or to punish them for testifying them, is not uncommon.3           Indeed, ACOG’s

long-standing displeasure with Dr. Shifrin’s advocacy on behalf of birth-damaged infants

was evidenced by ACOG’s warnings to Dr. Shifrin that he should stop testifying as an

expert in such cases. 4 Dr. Shifrin refused and thereafter he was censured.

          Dr. Shifrin is no longer a member of ACOG, having resigned his membership in

2005. However, he is still asked by ACOG to speak at ACOG educational seminars and

annual meetings as a pre-eminent expert in maternal-fetal medicine.

          It is anticipated that at the trial of this action defense counsel will attempt to elicit

testimony relating to the ACOG censure and Dr. Shifrin’s resignation from the group,


2
    Tab 2, Kelly Transcript
3
    Tab 3, War on Experts
4
    Tab 2, Kelly Transcript
                                                  3
through cross-examination of Dr. Shifrin or otherwise. Plaintiff respectfully submits that

questioning and testimony relating to the ACOG censure, a non due process censure

issued by a non-licensing, trade group association, and the reasons for Dr. Shifrin’s

resignation from that group, should be precluded at trial as irrelevant, prejudicial and

hearsay.

         Since 2004, at least seven courts have issued rulings precluding reference to the

ACOG censure of Dr. Shifrin, including the following cases, which were decided under

evidentiary rules similar to or identical to the Rules of Evidence of North Carolina:5

         Shoaf v. Geiling, Case No. 2000-CA-201-09-K, Circuit Court, Seminole County,

Florida (Exhibit A, Order of Preclusion, May 2005).

         Kelley v. Overlake Hospital, Case No. 03-2-20486-2, SEA, King County, Superior

Court, State of Washington (Exhibit B, Transcript of Hearing, May 2005).

         Diamond-McGrail v. Graham, Case NO. 04 CV 4323, District Court City and

County of Denver, Colorado (Exhibit C, Order, September 2005).

         Hall v. Mansfield, Case No. X07CV02-78138, Connecticut Superior Court,

Tolland Judicial District, Rockville, CT (Exhibit D, Transcript of Hearing, May 2005).

         Brighton v. Tenet HealthSystem Hospital Dallas, Case No. 03-02797-E, 101st

Judicial District, Dallas County, Texas (Exhibit E, Transcript of Hearing, April 2005).

         Goliebiowski v. McDermott, Case No. 99 L 7753, Circuit Court, Cook County,

Illinois (Exhibit F, Transcript of Hearing, September 2005).

         Sanchez v. Columbia Hospital, Case No. 02-29069 CA 27, Circuit Court, 11th

Judicial Circuit, Miami-Dade County, Florida.


5
    Tab 4, Orders and Transcripts
                                             4
         In each of these cases, the trial court granted plaintiffs’ motion to preclude

reference to the ACOG censure of Dr. Shifrin, finding that the censure was inadmissible

hearsay, irrelevant to the issues in the case on trial, of no probative value and

prejudicial to the plaintiffs.

         By way of example, the Hon. Samuel J. Sferrazza’s ruling in the Hall case,

precluding reference to the censure is representative of the conclusions of each of the

other judges in the cases cited above:

                I’m going to exclude it. I feel that the prejudicial value outweighs any
         probative value, if any.

                 The ACOG is not a licensing or a disciplinary organization. There’s been
         no evidence to that effect. It is in the nature of a professional guild. It does have
         any – – If it does have any probative value, the censure, it would simply go to
         qualifications issue and not as to issues of credibility. That is clearly a hearsay
         issue that would be inadmissible.

                You couldn’t bring in a juror from another case that had found that this
         witness testified and they didn’t believe the witness, to say that they thought he
         had lied in that case. That would be hearsay and of the opinion evidence and
         inadmissible, and for the same reasons ACOG’s decision to issue a reprimand or
         a censure, whatever it was, is opinion and hearsay and is not admissible for the
         purposes of credibility.

                 Its only probative value would be as it reflects on this witness’s
         qualifications as an expert to testify in the case and it has very little value in that
         regard since it doesn’t have to do with his professional preparedness or his
         activities as a doctor, but his activities as testifying in a case, and the danger is
         that it may be missed by the jury to find that he is, in fact, not credible, that he
         had lied in an earlier case, which they could not do based on that testimony, and
         it’s that extraneous misuse of the testimony that’s the danger here and I found
         that that danger outweighs any probative value and, therefore, I am excluding it.6




6
    Tab 4, Exhibit D, pp. 2-3.
                                                5
       For the reasons enumerated in each of the cases cited above, reference to

ACOG’s “censure” of Dr. Shifrin should be precluded at trial, as well as any reference to

his resignation from that association.

                             II.    ANALYSIS

       A. The ACOG “Censure” is Inadmissible Hearsay Pursuant to Rule 801

       The ACOG censure is an out of court statement, and is clearly hearsay pursuant

to Rule 801 of the North Carolina Rules of Evidence. The purpose for the hearsay rule,

of course, is to ensure the opportunity for cross-examination. Here, admission or

reference to the ACOG censure would deprive plaintiff, and Dr. Shifrin, of an opportunity

to cross-examine ACOG as to the basis for its actions and whether or not the censure

was the result of a proper judicial hearing with the indices of reliability or simply the

result of a witch-hunt against a physician with which ACOG was displeased.

       B. There are no hearsay exceptions that permit the censure to be admitted

       Hearsay evidence may only be admitted pursuant to one of the specifically

enumerated exceptions found in G.S. 8C-1, Rule 804; FCX, Inc. v. Caudill, 85 N.C. App.

272, 354 S.E.2d 767 (1987). None of the enumerated exceptions in the statute permit

the hearsay ACOG censure to be admitted.

       Rule 405 and Rule 803(21) permit hearsay evidence to be received in limited

circumstances with regard to a witness’ reputation for truthfulness in the community.

However, any assertion by the defense that ACOG’s censure is admissible under Rule

405 and Rule 803(21) as evidence of Dr. Shifrin’s reputation in the medical community

is wrong. For a hearsay statement or document to be admitted under Rule 405 and

Rule 803(21), among other requirements the statement must specifically refer to the

                                              6
reputation of the witness. See, e.g., Auguste v. Sullivan, Case No. 03-CV-02256, 2009

WL 807446 (D.Colo. 2009)(the proffered document “makes no findings of fact regarding

defendant Field’s reputation among associates or in the community...and therefore Rule

803(21) is not applicable”).

            Here, the ACOG censure in no way refers to or establishes Dr. Shifrin’s

reputation in the medical community. Indeed, his reputation as a pre-eminent expert in

maternal-fetal medicine is never questioned by ACOG. Although he has resigned from

the organization, ACOG still calls upon Dr. Shifrin as a pre-eminent expert to speak at

its conventions and to educate its membership at seminars. The censure is inadmissible

hearsay and should be precluded as evidence in this case.


        C.       The ACOG “censure” is not admissible to attack the credibility of the
                 witness pursuant to Rules 405 and 608 of the North Carolina Rules of Civil
                 Procedure.

         Rule 608, Evidence of Character and Conduct of a Witness, provides:


        a) Opinion and reputation evidence of character. -- The credibility of a witness
may be attacked or supported by evidence in the form of reputation or opinion as
provided in Rule 405(a), but subject to these limitations: (1) the evidence may refer only
to character for truthfulness or untruthfulness, and (2) evidence of truthful character is
admissible only after the character of the witness for truthfulness has been attacked by
opinion or reputation evidence or otherwise.
       (b) Specific instances of conduct. -- Specific instances of the conduct of a
witness, for the purpose of attacking or supporting his credibility, other than conviction
of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may,
however, in the discretion of the court, if probative of truthfulness or untruthfulness, be
inquired into on cross-examination of the witness (1) concerning his character for
truthfulness or untruthfulness, or (2) concerning the character for truthfulness or
untruthfulness of another witness as to which character the witness being cross-
examined has testified.7

        7
           This rule is identical to Fed. R. Evid. 608 except for the addition of the phrase "as provided in
Rule 405(a)" to subdivision (a).

                                                     7
       Subsection (b) of this rule addresses the admissibility of specific instances of

conduct, as opposed to opinion or reputation evidence, only in the very narrow instance

where (1) the purpose of producing the evidence is to impeach or enhance credibility by

proving that the witness' conduct indicates his character for truthfulness or

untruthfulness; (2) the conduct in question is in fact probative of truthfulness or

untruthfulness and is not too remote in time; (3) the conduct in question did not result in

a conviction; and (4) the inquiry into the conduct takes place during cross-examination.

State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986). Inquiries concerning prior

criminal acts or specific acts of misconduct must be limited to conduct which bears upon

or is relevant to the witness' propensity to truthfulness or untruthfulness. State v. Bailey,

80 N.C. App. 678, 343 S.E.2d 434, petition for cert. improvidently allowed, 318 N.C.

652, 350 S.E.2d 94 (1986). Particular instances of conduct, though not the subject of

criminal conviction, to be inquired into on cross-examination are only permitted of the

principal witness himself.

       If the proffered evidence meets the four enumerated prerequisites for admission

under subsection (b) of this rule, before admitting the evidence the trial judge must

determine, in his discretion, pursuant to G.S. 8C-1, Rule 403, that the probative value of

the evidence is not outweighed by the risk of unfair prejudice, confusion of issues or

misleading the jury, and that the questioning will not harass or unduly embarrass the

witness. Even if the trial judge allows the inquiry on cross-examination, extrinsic




                                              8
evidence of the conduct is not admissible. State v. Morgan, 315 N.C. 626, 340 S.E.2d

84 (1986).

       While there are no North Carolina cases which address the specific issue of

censure, cases which have addressed the admissibility of disciplinary records have not

permitted their admission. For example, in In Re Oliver, 159 N.C. App. 451, 584

S.E.2d 86 (2003), defendant's confrontation rights under N.C. Const. art. I, § 23 were

not violated when the trial court refused to allow defendant to cross-examine the

witness about the witness's disciplinary record when defendant failed to show how the

disciplinary record was relevant to impeach the witness's credibility under G.S. 8C-1,

Rule 608(b). 8

       In the instant case, as stated above, ACOG is not a disciplinary body nor is it a a

professional licensing agency. ACOG is a non profit professional membership trade

group association. ACOG does not license physicians nor is it authorized or employed

to take disciplinary action against physician’s licenses.

       D.     The ACOG censure is prejudicial and its admission would engender a
              “Trial-Within-a-Trial”

       Even if a hearsay exception could be found which applied to the ACOG censure,

it still should not be admitted as evidence nor allowed to be used to cross-examine Dr.

Shifrin, since any reference to the censure would be unfairly prejudicial to the plaintiff

and would require the parties to embark on a lengthy “mini-trial” about the

circumstances giving rise to ACOG’s actions, whether they were justified, whether there

was due process for Dr. Shifrin, and of course, concerning his rebuttal of the charges


                                              9
against him by ACOG and his resignation from ACOG. In that case, even if grounds for

admission could be found, Rule 403 would apply to exclude reference to the censure:

         Although relevant, evidence may be excluded if its probative value is outweighed
         by the chance of unfair prejudice, confusion of the issues, or misleading of the
         jury, or by considerations of undue delay, waste of time or needless presentation
         of cumulative evidence.


         As stated by Judge Nelson in the Shoaf case, the issue of the censure was

irrelevant to the issues at trial, and would require a “trial within a trial” should the

censure be admitted:

                 I would have to have a mini trial to determine whether or not the action
         that was – – the disciplinary action that was given by ACOG to the doctor, would
         have to be a mini trial for me to determine whether or not that was a valid
         discipline. And I’m not going to do that, so I’m going to grant the Motion in
         Limine.9

                           III. CONCLUSION

         For the reasons stated above, Plaintiff respectfully submits that the ACOG

censure is as irrelevant, prejudicial and hearsay. The censure has no probative value

nor is it relevant to any issue before the jury in this case. Any claimed probative value is

greatly outweighed by its potential for creating confusion and misunderstanding before

the jury. Finally, it also bears repeating that the facts giving rise to the censure in no

way relate to any medical issues involved in this case. In sum, the censure is a red

herring designed solely to punish and embarrass Dr. Shifrin for his work on behalf of

birth-injured children and as such any reference to the censure or to Dr. Shifrin’s

resignation from ACOG should be precluded from the trial of this action.

8
    Tab 5, In Re Oliver, 159 N.C. App. 451, 584 S.E.2d 86 (2003)
                                                   10
         Respectfully submitted, this the ___ day of September 2009.



                                              HOLTKAMP LAW FIRM




                                              __/s/ Lynne M. Holtkemp__
                                              Lynne M. Holtkamp
                                              Counsel for Plaintiff
                                              312 West Franklin Street
                                              Chapel Hill North Carolina 27516
                                              Telephone: 919. 960.6840
                                              N.C. BAR NO.: 16359



                                              RHEINGOLD VALET RHEINGOLD
                                              SHKOLNICK & MCARTNEY L.L.P.


                                             ________________________________
                                             Paul D. Rheingold
                                             113 East 37th Street
                                             New York, New York 10016-3042
                                             Telephone: 212.684.1880



                                              RHEINGOLD VALET RHEINGOLD
                                              SHKOLNICK & MCARTNEY L.L.P.


                                             ________________________________
                                             Hunter S. Shkolnick
                                             113 East 37th Street
                                             New York, New York 10016-3042
                                             Telephone: 212.684.1880




9
    Tab 6, Exhibit A, p. 2. See also, the ruling of Judge Sferrazza in the Hall case, quoted above
                                                     11
12
STATE OF NORTH CAROLINA                 IN THE GENERAL COURT OF JUSTICE
                                            SUPERIOR COURT DIVISION
COUNTY OF DURHAM                               FILE NO.: 07 CVS 4135

PHILLIP EVANS, GUARDIAN AD          )
LITEM OF J. DOE, MINOR CHILD,       )
     Plaintiff,                     )
                                    )
                                    )
vs.                                 )
                                    )
                                    )
                                    )
DUKE UNIVERSITY HEALTH              )
SYSTEM, INC.,                       )
A North Carolina Corporation;       )
DUKE UNIVERSITY D/B/A DUKE          )
MEDICAL CENTER,                     )
A North Carolina Corporation;       )
PRIVATE DIAGNOSTIC CLINIC, PLLC )
A North Carolina Professional       )
Limited Liability Corporation;      )
JOHN ERIC JELOVSEK, M.D.; AND )
ELIZABETH G. LIVINGSTON, M.D.       )
        Defendants.
____________________________________________________________________________

     PLAINTIFF’S BRIEF IN SUPPORT OF MOTION TO EXCLUDE
           DEFENDANT’S ANNUITY EXPERT
_____________________________________________________________________

                     1. STATEMENT OF THE FACTS

       In this medical negligence action on behalf of a minor child, Defendants have

designated Robert Evans, an annuitist, vice president of an annuity company, as an

expert for the purpose of providing opinions with respect to “the cost and availability of

commercial annuity products to fund the needs of persons with disabilities or other

medical needs for the remainder of their lifetime, the accuracy of premium quotations for

annuities, and the security of such financial instruments.” (Defendant’s Expert

designation) A copy of Mr. Evan’s report is attached hereto as Exhibit 1.
                                            1
       II. ARGUMENT

       Testimony from any witness, whether it is an economist or annuitist, which states

that a life insurance company will make all payments set forth in plaintiff’s life care plan

assuming a certain percentage and cost of an annuity is not admissible under North

Carolina law

       A. TESTIMONY AS TO THE COST OF AN ANNUITY VIOLATES NORTH

CAROLINA LAW

       Annuity evidence has not been discussed by North Carolina courts except with

respect to the use of annuity tables which is not permitted. The North Carolina

Supreme Court has specifically held that the annuity tables contained in G.S. §8-47 are

not admissible as evidence. Hunt v. Wooten, 238 N.C. 42 (1953).

       [The annuity] tables have no place in an action to recover damages for personal

injuries tortuously inflicted for the very simple reason that the action does not

involve the establishment of the present worth of an annuity to any person.

Id. at 48-49 (emphasis added).

       Historically, North Carolina has not allowed the jury to consider the use of annuity

tables. Brown v. Lipe, 210 N.C. 199, 185 S.E. 681 (1936). As in 1906, it is still good

law that to recognize evidence of an annuity would confuse the jury. Poe v. Raleigh &

A. Air Line R. Co., 141 N.C. 525, 54 S.E. 406 (1906).

       Furthermore, under North Carolina law, only future damages are reduced to

present value. Testimony of the cost of annuity may incorrectly lead the jury to believe

that all elements of damages are reducible to the value of a present annuity. Moreover,

in North Carolina, the life expectancy of the plaintiff is a factual issue to be determined

                                              2
by the jury. Waggoner v. Waggoner, 246 N.C. 210 (1957). Allowing annuity evidence

would be allowing the insurance company or annuity witness opinion to be the basis of

the plaintiff*s life expectancy and not the jury. Even though North Carolina courts have

not addressed the admission of annuity evidence except as previously mentioned, there

has been much commentary and judicial review of these issues elsewhere.

       II. TREATMENT OF ANNUITY TESTIMONY OUTSIDE NORTH CAROLINA

       Historically, annuity testimony has not been the correct measure of recovery.

Traditionally, courts award a lump sum payable at the conclusion of litigation. Jones &

Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 103 S.Ct. 2541 (1983) ("The award could

in theory take the form of periodic payments, but in this country it has traditionally taken

the form of a lump sum, paid at the conclusion of litigation."); Frankel v. U.S., 466 F.2d

1226 (3rd Cir. 1972) (The court must award lump sum judgments and not a reversionary

trust for medical payments); Reilly v. U.S., 665 F.Supp. 976 (D. R.I. 1987) (The court

must award lump sum judgment and not an annuity); Farmers Union Federated Coop.

Shipping Assoc. v. McChesney, 251 F.2d 441, 442 (8th Cir. 1958) ("The cost of annuity

for the remainder of the injured person*s life is not the measure of recovery for lost or

diminished earning power. The measure is as we have stated, the gross amount of the

lost earnings reduced to their present cash value.); Kaczkowski v. Bolubasz, 491 Pa.

561, 421 A.2d 1027, 1030 (1980) ("Personal injury awards are usually lump-sum

payments, and are not paid in weekly or monthly installments."). Under a lump sum

payment method, tort victims have immediate access to the full amount of their awards,

and "courts have properly considered the victims* use of these lump sums to be their

own business." Smith v. Myers, 181 Ariz. 11, 887 P.2d 541 (Ariz. 1994).

                                             3
       Since the mid-1970s, however, a number of states have adopted laws granting

tortfeasors and their insurers an alternative method of paying damage awards where

plaintiff*s are awarded judgments specifying the amount they are entitled to receive

each succeeding week, month or year to cover that period*s expected damages. Smith

v. Myers, 181 Ariz. 11, 887 P.2d 541 (Ariz. 1994). Because the full amount of the

annuity is not available for the beneficiary*s use, it has less immediate worth than a

lump sum. Therefore, many courts have found after review of this alternate type of

damage award system that annuity testimony is not the correct measure of recovery for

lost or diminished earning power and should not be allowed. Caldwell v. Southern Pac.

Co., 71 F.Supp. 955 (S.D. Cal. 1947); Farmers Union Federated Coop. Shipping Assoc.

v. McChesney, 251 F.2d 441, 442 (8th Cir. 1958); Taylor v. Burlington Northern

Railroad Co., 787 F.2d 1309, 1315 (Third Cir. 1986); Reilly v. U.S., 665 F.Supp. 976

(D. R.I. 1987); Singh v. Air Ill., 165 Ill.App.3d 923, 930, 520 N.E.2d 852, 856 (1988);

North Broward Hospital Dist. v. Bates, 595 So.2d 578 (Fla. Dist. Ct. App. 1992); Smith

v. Myers, 181 Ariz. 11, 887 P.2d 541 (Ariz. 1994); Kaczkowski v. Bolubasz, 491 Pa.

561, 421 A.2d 1027, 1030 (1980); Muenstermann v. U.S., 787 F.Supp. 499, 526

(D.Maryland 1992);

       III. ARGUMENTS AGAINST ALLOWING ANNUITY TESTIMONY

       Annuity evidence is totally inconsistent with the law of damages, and there are

many arguments for its exclusion.

       First, annuity evidence is a "camouflaged way of introducing opinion evidence of

life expectancy, inflation rate, and interest rates without subjecting the opinion to the

safeguards set out in the Rules of Evidence." William L. Thorp, Annuity Evidence: Why

                                              4
it Has No Place in Personal Injury Actions, Trial Briefs (1990).

       Second, the rules of evidence do not allow annuity testimony. In deciding

present worth of future damages, the jury must determine the nature and extent of care

needed by the plaintiff over her life expectancy and the present cost of such care on

today*s market. These factual issues are to be decided by the jury, but by allowing

opinion testimony in the form of an annuity expert, this information would be allowed in

by someone who is not an expert in life expectancy or inflation rates or interest. An

annuitist is not qualified to render evidence on these issues; in fact, an annuitist is

simply a salesman. Further, in order to establish the cost of an annuity, the insurance

company makes certain assumptions. The persons forming these assumptions and

opinions as to plaintiff*s "rated age," "inflation rates," and "interest rates" will not take

the witness stand, and the plaintiff will not be able to cross-examine them. Insurance

brokers rely on final quotations from outside sources making them unable to be

effectively cross-examined as to the basis and legitimacy of their testimony. Singh v.

Air Ill., 165 Ill.App.3d 923, 930, 520 N.E.2d 852, 856 (1988). The court will have no way

of determining under Rules 702 and 703, whether they are qualified or whether there is

a factual basis for their opinion. Additionally, any annuity testimony would necessarily

be hearsay. The insurance company witness will not have had anything to do with

computing the cost of an annuity. Thus, all testimony will implicitly be relying on

another*s computation of life expectancy and interest rates. Under Rule 802, a witness

is not allowed to rely on hearsay opinion or out-of-court statements by unknown

persons, even if they are the type reasonably relief upon by experts in the field. Thus,

evidentiary objections based on hearsay, opinion evidence, and expert testimony can

                                               5
be raised against annuity evidence. William L. Thorp, Annuity Evidence: Why it Has No

Place in Personal Injury Actions, Trial Briefs (1990).

       Third, with an annuity, the risk of loss is on the plaintiff. There is no assurance

that the insurance company quotation will be firm or that the annuity will not go bankrupt

at some time during the life of the annuity. William L. Thorp, Annuity Evidence: Why it

Has No Place in Personal Injury Actions, Trial Briefs (1990). Also, the use of an annuity

company places the risk of annuity company bankruptcy on the plaintiff . Smith v.

Myers, 181 Ariz. 11, 887 P.2d 541 (Ariz. 1994).

       Fourth, lump sum payments are worth more money. "It is self evident that a

given sum of money is worth more than a like sum of money payable in the future."

Caldwell v. Southern Pac. Co., 71 F.Supp. 955, 960 (S.D. Cal. 1947).

       Fifth, annuities do not adequately provide for future changes in the plaintiff*s

medical condition. Smith v. Myers, 181 Ariz. 11, 887 P.2d 541 (Ariz. 1994). If an

unexpected medical emergency arises, plaintiff will not have access to any increase in

payment for that period under an annuity and may face penalties for early withdrawal of

the needed funds.

       Sixth, there are various pragmatic problems with annuity evidence. There is not

a contract between the plaintiff and the insurance company during the trial. Nor is there

a contract between the defendant and the insurance company. Thus, the plaintiff has

no assurance that the quote offered as evidence by the defendant will even actually be

available at the close of trial. Again, the risk is on the plaintiff. If the jury is allowed to

hear evidence of the existence of an annuity and so awards, there is no guarantee that

the plaintiff will be able to contract for a similar annuity after the judgment.

                                                6
       Seventh, annuity testimony is nothing more than defendant*s opinion on how

plaintiffs could best spend their recovery. As discussed earlier, the standard way of

determining present cash value has been by application of plaintiff*s prospective

damages to the statutory mortality tables with appropriate discount rate. By moving

beyond the standard figures to it*s own individualized speculations on life expectancy,

defendant has moved into the area of opinion. That opinion is nothing more than

defendant*s advice on the best investment plaintiffs could make on their money. Not

surprisingly, the "best investment" requires a jury verdict smaller than the present cash

value of plaintiff*s future damages.

       Eighth, if annuity testimony is allowed into evidence, it would be encumbant on

the plaintiff to show the jury how an annuity would be a poor investment. The law

places no such burden on plaintiffs. Recoveries are not required to be invested.

Plaintiffs are not required to risk their recoveries on contingent annuities developed by

defendants. Plaintiffs are not required to forego the flexibility that a lump-sum allows for

future unexpected emergencies or future increases in inflation.

       Finally, annuity evidence is misleading. The trial judge needs no other authority

for excluding annuity testimony than Rule 403. "[T]he jury might conclude that [the

plaintiff] had to purchase an annuity, and the jury might therefore be misled. Taylor v.

Burlington Northern Railroad Co., 787 F.2d 1309, 1315 (Th Cir. 1986). The prejudicial

effect of annuity testimony is unmistakable in that it seeks to have the jury believe that

the cost of an annuity is the same as the present value of future losses. This testimony

is calculated to deceive the jury into believing that a lesser sum, in the form of cost of

this particular annuity will fully compensate the plaintiff for their future damages. To

                                              7
suggest to the jury that they can further reduce the cash value to the possible lower cost

of purchasing an annuity is an attempt by the defendant at double reduction of damages

which is not proper. Annuity testimony is grossly misleading, prejudicial, confusing, and

a waste of time for the jury. William L. Thorp, Annuity Evidence: Why it Has No Place in

Personal Injury Actions, Trial Briefs (1990).

       The best argument against the "benefits" of annuity evidence is the law in North

Carolina. As earlier stated, North Carolina has not commented on allowing the award of

periodic payments, but the court has specifically excluded even the use of annuity

tables before the jury. It should be noted that even if North Carolina had allowed the use

of annuity tables, that would not mean that all annuity evidence would be allowed. "The

validity of such evidence [of annuity tables] does not signify that the cost of a particular

annuity is likewise admissible, or that it is representative of the present value of lost

earnings." Singh v. Air Ill., 165 Ill.App.3d 923, 930, 520 N.E.2d 852, 856 (1988).

                     IV. CONCLUSION

       In conclusion, North Carolina has not taken the first step towards allowing

annuity evidence before the jury which would be to include the admission of annuity

tables; therefore, annuity evidence should not be allowed.

       Respectfully submitted, this the 1st day of September 2009.


                                    HOLTKAMP LAW FIRM



                                    _/s/ Lynne M. Holtkamp_
                                    Lynne M. Holtkamp
                                    Counsel for Plaintiff
                                    312 West Franklin Street

                                                8
Chapel Hill North Carolina 27516
Telephone: 919.960.6840
N.C. BAR NO.: 16359



 RHEINGOLD VALET RHEINGOLD
 SHKOLNICK & MCARTNEY L.L.P.


_________________________
Paul D. Rheingold
Hunter S. Shkolnik
113 East 37th Street
New York, New York 10016-3042
Telephone: 212.684.1880


_________________________
Hunter S. Shkolnick
113 East 37th Street
New York, New York 10016-3042
Telephone: 212.684.1880




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