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McGill v. Correctional Healthcare Companies, Inc.

United States District Court, D. Colorado

November 20, 2014

KENNETH MCGILL, Plaintiff.
v.
CORRECTIONAL HEALTHCARE COMPANIES, INC. d/b/a/ " CORRECTIONAL HEALTHCARE MANAGEMENT, INC."; CORRECTIONAL HEALTHCARE PHYSICIANS, P.C.; CHC COMPANIES, INC.; TED MINK, in his official capacity as Jefferson County Sheriff only; JAMES BRILL, individually; and GINA BATTENHOUSE, individually, Defendants

For Kenneth McGill, Plaintiff: Erica Tick Grossman, John R. Holland, Anna C. Holland-Edwards, Holland Holland Edwards & Grossman, P.C., Denver, CO.

For Correctional Healthcare Companies, Inc., doing business as Correctional Healthcare Management, Inc., Correctional Healthcare Physicians, P.C., CHC Companies, Inc., Gina Battenhouse individually, Defendants: C. Gregory Tiemeier, Daniel Lawrence Mauk, Tiemeier & Stich, P.C., Denver, CO.

For Ted Mink, in his official capacity as Jefferson County Sheriff only, Defendant: Rebecca Philana Klymkowsky, Writer Mott, Jefferson County Attorney's Office, Golden, CO.

ORDER

R. Brooke Jackson, United States District Judge.

This matter is before the Court on several motions in limine filed by both parties. The Court has considered the motions and the responses. Bearing in mind that each of the following rulings is subject to reconsideration if counsel or a witness " opens the door" to the admission of evidence that has preliminarily been excluded, the Court addresses the motions as follows:

Plaintiff's Motion in Limine to Exclude Evidence of Plaintiff's Criminal History and Any Expert Testimony Related Thereto [ECF No. 135].

Mr. McGill's prior criminal history does not fit the categories of Fed.R.Evid. 609 as impeachment evidence. Defendant's response suggests that he was in jail for his third DUI conviction and had been revoked from the inmate-outmate program. The defendant has not, however, indicated that it has any evidence that the DUI history is likely to affect his employability. If defendant has such evidence, the Court might reconsider that part of this ruling. However, based on what is before the Court at this time, the motion is GRANTED as to his criminal history.

Near the end of the motion plaintiff inserts a short paragraph concerning " the jail file of several witnesses, " seemingly almost by way of an afterthought. The motion does not explain what these files are or for what purpose the defendant might wish to use them. The response does not elaborate either. The Court is in no position to make an in limine ruling on the so-called jail files.

Plaintiff's Motion in Limine to Exclude the Westword Article Relating to this Case [ECF No. 136].

The motion is GRANTED. To the extent that the article might be offered to prove the truth of any of its contents, it is inadmissible as hearsay, and its reporting of the statements of other witnesses would be double hearsay. The Court is not persuaded that a newspaper article of this nature has such circumstantial guarantees of trustworthiness as to be admitted under Rule 807. If any of the persons quoted in the article is called as a trial witness, and if either party believes that the witness has testified contrary to statements quoted in the article, the reporter (whom defendant represents in its response will be available for testimony at trial) will have to be called to attest to the alleged prior inconsistent statement.

Plaintiff's Motion to Strike Portions of Dr. Garlick's Expert Report and Preclude Testimony Regarding the Same [ECF No. 137].

The motion is GRANTED. The Court has reviewed Dr. Garlick's report. ECF No. 137-1. The problem with the opinions described in the second paragraph under the " Miscellaneous" heading (report p. 5) -- concerning whether plaintiff's PTSD, if any, might have been caused by alcoholism or the fact that the plaintiff was adopted or by some other childhood trauma -- is not that he is not qualified, at least as to alcohol addiction. The problem is that the opinions are not based on any disclosed factual foundation. As such, these opinions are nothing more than speculation and cannot pass even the relatively low threshold for relevance and reliability under Rule 702. Accordingly, the motion to strike that portion of the report is granted.

The portion of the report wherein Dr. Garlick expresses the opinion that Dr. Brill's actions were within the standard of care (which is inconsistent with CHC's wish to designate him as a nonparty at fault, as discussed below) appears to have been provided at a time when Dr. Brill was a named defendant. Plaintiff has dismissed his claim against Dr. Brill. Accordingly, this opinion does not appear to be relevant, and the motion is granted as to it. This is an example, however, where if plaintiff or counsel suggests or implies that Dr. Brill might have been negligent in any way, the door will have been opened to admit this evidence.

As for whether Dr. Garlick has the expertise to express the opinions contained under the heading " Timing of the Onset of Stroke" (page 4 of the report), the Court does not have sufficient information to answer that question. If the defendant maintains a desire to have Dr. Garlick express these opinions, then it ...


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