Motion in Limine on Medical Animation Video

Below is a sample opposition to a motion in limine in a case where the hospital tried unsuccessfully to exclude our ability to put on medical video animation that depicted how the victim died as a result of the hospital’s malpractice. The video was permitted and the jury ultimately awarded the victim’s family $10 million.

Plaintiffs’ attorney are increasing using technology to better educate jurors on the how the victim as harmed. Because educating juries tends to help us, defense lawyer have been trying to develop new tactics and strategies to prevent us for providing this education. It is important that we not only keep coming up with new ways to provide information about our case to jurors but to also stop defense efforts to impede us.

The Opposition to Defendant’s Motion in Limine

IN THE CIRCUIT COURT FOR BALTIMORE CITY
Civil DivisionCYNTHIA TAYLOR, Individually, and as Personal Representative of the Estate of Dennis Taylor, et al.

Plaintiffs,

v.

Case No.: 24-C-15-003384 MM

MEGAN BURKS, M.D., et al.

Defendants.

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO EXCLUDE THE VIDEO ANIMATION AND REQUEST FOR A HEARING Plaintiffs, by and through their attorneys, Miller & Zois, LLC, files this Opposition to the Defendants’ Motion in Limine to exclude the Plaintiffs’ video and in support thereof states as follows:

INTRODUCTION AND ARGUMENT Defendants have moved to exclude the Plaintiffs’ medical video animation. However, the Defendants have misunderstood the purpose of the video animation and have misrepresented what it actual illustrates. The amination is simply a depiction of the Kayexalate/Sorbitol mixture being ingested by Mr. Taylor on March 18, 2013 and traveling through his body. It also depicts how the mixture removed potassium from Mr. Taylor’s body and demonstrates the destruction of his colon which was surgically removed from his body on March 19, 2013. It does not depict, as Defendants claim, that the Kayexalate crystals destroyed Mr. Taylor’s colon; it shows the presence of the crystals in the tissue of the colon.

The Defendant claims that no one can provide testimony that Kayexalate, with sorbitol, actually caused Mr. Taylor’s intestinal necrosis; therefore, the Plaintiffs should be precluded from using the video animation which depicts the destruction of Mr. Taylor’s colon after he drank the Kayexalate. However, the Defendants have admitted through their own published Hyperkalemia Guidelines that the major complications from Kayexalate with Sorbitol are “intestinal necrosis and bowel perforation” which is exactly what is depicted in the animation. See Ex 1. The Defendants own pharmacist, David Bates, testified that it is the Sorbitol in the mixture which causes the intestinal ischemia. Pharmacist Bates said, “The sorbitol level, the sorbitol part is the one that can cause ischemia after the bowel obstruction.” See Ex. 2 at page 28.

The evidentiary foundation necessary in order for the Plaintiffs to use this exhibit is simply that “[T]he evidence is ‘sufficient to support a finding that the matter in question is what its proponent claims.’” Washington v. State, 406 Md. 642(2008). Under Washington v. State, the Plaintiffs must produce some evidence that the animation in this case fairly and accurate depicts the destruction of Mr. Taylor’s colon after he ingested the Kayexalate/Sorbitol mixture.

The amination is simply a collection of moving pictures. “Typically, photographs are admissible to illustrate the testimony of a when the witness testifies from first-hand knowledge that the photographs fairly and accurately represents the object it purports to delict….” Dept. of Safety v. Cole, 342 Md. 12. The same requirement applies to videotape evidence because a ‘videotape is considered a photograph for admissibility purposes. It is admissible in evidence and is subject to the same general rules of admissibility as a photograph. See Washington v. State at.

In this case, the Plaintiffs will establish the evidentiary foundation for the admission of the animation through many of their medical experts. One of these experts is Robert Evans, M.D., who is a board certified pathologist. Dr. Evans actually examined the pathology slides of Mr. Taylor’s dead colon which was removed on March 19, 2013 and found Kayexalate crystals in the tissue from Mr Taylor’s colon. See Ex. 3. Dr. Evans depo. Dr. Evans also personally reviewed the animation and will testify that: 1) the medical animation is a fair and accurate representation of the administration of the Kayexalate/Sorbitol medication which was given to Dennis Taylor on March 18, 2013; 2) the medical animation fairly and accurately illustrates the passage of the Kayexalate/Sorbitol medication through Mr. Taylor’s body; 3) the medical animation fairly and accurately illustrates how potassium is removed from the human body by the Kayexalate/Sorbitol solution; 4) the medical animation fairly and accurately depicts the presence of Kayexalate crystals which were found in the tissues of the colon which was removed from Dennis Taylor’s body during the surgery on March 19, 2013; 5) the medical animation fairly and accurately illustrates what happened to Dennis Taylor’s colon as a direct result of drinking the Kayexalate/Sorbitol medication on March 18, 2013; and 6) it would be helpful for him to use this medical video animation in order to explain his opinions to the members of the jury. See Ex. 4, Affidavit of Dr. Ozde.

Based upon the affidavit of Dr Evans that is attached hereto and incorporated by reference as Exhibit 2, the Plaintiffs have met their evidentiary burden for the admission of this animation. Dr. Evans will offer additional opinions at trial that explain in great detail the factual basis for his opinion that the Sorbitol contained in the Kayexalate caused the destruction of Mr. Taylor’s colon. See Ex 3, Deposition of Dr. Evans.

WHEREFORE: The Plaintiffs will be able to supply the testimony necessary to establish the evidentiary foundation required for the admission of the demonstrative medical animation into evidence.

Respectfully submitted,
Miller & Zois, LLC
_________________________________
Laura G. Zois
Rodney M. Gaston
Justin P. Zuber
1 South Street, Suite 2450
Baltimore, Maryland 21202
T: (410) 553-6000
F: (844) 712-5151
Attorney for Plaintiffs

CERTIFICATE OF GOOD-FAITH ATTEMPTS TO RESOLVE THE DISCOVERY DISPUTE Undersigned counsel hereby affirms that he sent Defendant’s counsel emails on August 24, 2016 and on August 25, 2016 explaining why the two documents which UBMC produced did not comply with the Court Order. Undersigned counsel requested copies of all drop down and scroll across boxes and offered to travel to the Hospital in order for UBMC to produce these items in the presence of a UBMC Representative. As of this date, UBMC has refused to produce the documents ordered by this Court and the parties are unable to resolve this dispute and require court intervention.

_________________________________
Rodney M. Gaston

REQUEST FOR A HEARING Plaintiffs respectfully request an emergency hearing on this matter.

_________________________________
Rodney M. Gaston

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 29^th day of August 2016, a copy of the foregoing Plaintiffs’ Motion to Compel and Motion for Sanctions and Request for a Hearing was sent via electronic delivery and first-class mail, postage prepaid, to:

Ronald U. Shaw, Esquire
Shaw & Morrow, P.A.
11350 McCormick Road
Executive Plaza III, Suite 1200
Hunt Valley, MD 21031
Attorneys for Defendants Taylor Burks, M.D. and University of Maryland Medical System Corp.

_________________________________
Rodney M. Gaston

IN THE CIRCUIT COURT FOR BALTIMORE CITY
Civil DivisionCYNTHIA TAYLOR, Individually, and as P.R. of the Estate of Dennis Taylor, et al.

Plaintiffs,

v.

Case No.: 24-C-15-003384 MM

TAYLOR BURKS, M.D., et al.

Defendants.

ORDER In consideration of Plaintiffs’ Motion to Compel and Motion for Sanctions, and any response thereto, it is this _________ day of ___________________ 2016, by the Circuit Court for Baltimore City, HEREBY ORDERED:

1. That the Plaintiffs’ Motion is granted, and that on or before September _______ 2016, that:
2. UBMC shall permit undersigned counsel to actually sit at a UBMC computer screen with a UBMC representative present; and
3. The UBMC representative shall access the Hyperkalemia Order Set on the computer in the presence of Plaintiffs’ counsel; and
4. The UBMC representative shall access each of the remaining 21 drop down boxes and all of the scroll across boxes on the Hyperkalemia Order Set in the presence of Plaintiffs’ counsel; and
5. The UBMC representative shall, at the same time the drop down and scroll across boxes are accessed, immediately print each computer screen shot of each drop down and scroll across boxes and immediately provide Plaintiffs’ counsel with paper copies of these screen shots; and
6. UBMC shall pay the sum of $500.00 to the law firm of Miller & Zois, LLC.

___________________________________
Judge of the Circuit Court for Baltimore City

 

Cc: Rodney M. Gaston
Ronald U. Shaw

More Malpractice Trial Preparation Materials

• More Malpractice Related Forms and Motions
• Sample Motions (other sample motions)
• More Sample Motions in Limine