Plaintiffs’ Supplemental Motion In Limine

Summary: This case was a medical negligence case where the Plaintiff alleged that his wife died when her physician prescribed her fentanyl patches at an excessively high dose.  The defendant physician claimed that, prior to writing the prescription, the decedent misrepresented that she had been taking the high dose of fentanyl he prescribed.  In support, the Defendant sought to introduce evidence of medical records from a different doctor that the decedent had seen several years earlier.  Prior to trial, this brief was filed by Heygood, Orr & Pearson seeking preclusion of the admission of and reference to those medical records.

IN THE CIRCUIT COURT FOR KNOX COUNTY, TENNESSEE

CAUSE NO. 141-228829-08
SALVATOR MARTORELLI
Next of Kin of LISA MARTORELLI
Deceased, For the Benefit of Himself,
Individually, and John Martorelli,
Surviving SonPlaintiff

vs.

MYLAN, INC.; MYLAN
PHARMACEUTICALS, INC.;
MYLAN TECHNOLOGIES, INC.;
DR. RANDOLPH LOWRY; and,
PHELPS, PHELPS & LOWRY, PLLC

Defendants.

No. 3-145-09 Consolidate with
No. 3-222-09
JURY OF TWELVE DEMANDED

PLAINTIFFS’ SUPPLEMENTAL MOTION IN LIMINE

COMES NOW, Plaintiffs, Salvator Martorelli, Next of Kim of Lisa Martorelli, Deceased, for the benefit of himself, individually, and JOHN MARTORELLI, Surviving Son of Lisa Martorelli, and respectfully submits this supplemental motion in limine and would respectfully show the following:

Motion in Limine No. 11: The Court should exclude any evidence, including the testimony and medical records of Dr. James Gillespie, mentioning or suggesting that Mrs. Martorelli communicated to any physician that she was prescribed and/or taking a 100 mcg/hr fentanyl patch in March and June of 2006.

FACTUAL BACKGROUND

Dr. Lowry first wrote a fentanyl prescription for ten 50 mcg/h fentanyl patches for Lisa Martorelli on October 10, 2005. (See, Deposition of Randolph Lowry, M.D. (“Lowry Dep.”) at 36:8 – 36:19 (Ex. 1).) Several months went by and then he then re-filled her prescription for fentanyl patches on February 27, 2006 – providing her with her five additional patches (a fifteen-day supply). (Lowry Dep. at 36:8 – 36:19 (Ex. 1).) Dr. Lowry then refilled this prescription several months later on June 12, 2006. (Lowry Dep. at 38:10 – 39:10 (Ex. 1).) Yet, according to the medical records and testimony of her treating psychiatrist, Dr. James Gillespie, Mrs. Martorelli reported that she was taking 100 mcg/hr fentanyl patches on March 8 and June 14 of 2006. (See, Gillespie Medical Records (“Gillespie Records”) (Ex 2); (Deposition of James Gillespie (“Gillespie Dep.”) at 64:12 – 65:14 (Ex. 3).)

On March 8, 2008, Dr. Lowry prescribed Mrs. Martorelli 10 fentanyl patches at a 100 mcg/hr dosage. (Lowry Dep. at 56:4 – 10 – 59:2 (Ex. 1).) As nearly two years had passed since her last prescription for fentanyl, she would not have had sufficient opioid tolerance for a dose that high. (Affidavit of Dr. Grubb ¶ 13 (Ex. 4).) Dr. Lowry acknowledged in his deposition that starting a patient anew on a 100 mcg/h fentanyl dose could endanger a patient’s health by affecting respiratory status. (Lowry Dep. at 60:10 – 63:16 (Ex. 1).) However, Dr. Lowry contends that he only prescribed the 100 mcg/hr patch because Mrs. Martorelli misrepresented to him she had been previously prescribed the same dose from another doctor during the March 8 office visit. While this assertion is entirely unsupported by all of the records produced in this case , it is anticipated that Dr. Lowry will seek to admit Dr. Gillespie’s testimony and records indicating that Mrs. Martorelli communicated that she was taking a 100 mcg/hr patch in March and June of 2006. Further, and perhaps more significantly, such evidence will be sought to be introduced by Dr. Lowry as proof that she was deliberately untruthful or, at minimum, negligent in her communications to Dr. Lowry: It is undisputed that Mrs. Martorelli had not been prescribed and was not taking fentanyl at any dose in March, 2008. Yet, Dr. Lowry contends that she reported to him that she was taking fentanyl at 100 mcg/hr dose on March 8, 2008. Therefore, Dr. Lowry intends to claim at trial that Mrs. Martorelli lied in an effort to wrongfully secure a prescription for narcotics, and he will seek to use Dr. Gillespie’s records and testimony of Mrs. Martorelli’s actions two years prior as evidence in support thereof. This is clearly evidence of prior bad acts and should be excluded as irrelevant and improper character evidence. Furthermore, such evidence is speculative and any probative value is far outweighed by the danger of unfair prejudice.

ARGUMENT & AUTHORITIES

A. Dr. Gillespie’s testimony and records should be excluded as improper character evidence under Tenn. R. Evid. 404(b).

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity with the character trait. Tenn. R. Evid. 404(b). Rule 404(b) is generally one of exclusion, and exceptions to the rule only occur when otherwise inadmissible evidence is offered to prove motive, identity, intent, the absence of mistake or accident, opportunity, or common scheme or plan. State v. Toliver, 117 S.W.3d 216, 230 (Tenn. 2003); State v. McCary, 119 S.W.3d 226, 243 (Tenn. Crim. App. 2003). Tennessee law is clear in its disapproval of introducing prior bad acts as evidence of similar acts in conformity therewith in the underlying action. For instance, in Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439 (Tenn. 1992), the Tennessee Supreme Court considered the trial court’s exclusion of the plaintiff’s alleged prior fraudulent dealings with other insurance companies in a first party insurance dispute involving a home destroyed by fire. The insurance company in that case claimed that the plaintiff intentionally set fire to her own property and misrepresented facts concerning the claim during investigation, voiding the terms of her policy. The plaintiff filed suit to enforce the policy. At trial, the defendant sought to introduce plaintiff’s alleged fraudulent dealings with other insurers in order to prove her intent and motive to commit arson and defraud her carrier. The trial court excluded this evidence on the grounds that it was inadmissible under 404(b). The defendant appealed, claiming they were deprived it of the ability to show a conscious pattern of lying to insurance companies for monetary gain. The Supreme Court upheld the trial court’s ruling, concluding that “inquiries into character” should be excluded when they “weigh too much with the jury and so over-persuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.” Id. at 442, citing Michelson v. United States, 69 S. Ct. 213, 218, 335 U.S. 469, 475-6, 93 L. Ed. 168 (1948).

In another case interpreting the federal rule (after which the Tennessee rule is modeled) Walker v. Yellow Freight Sys., 1999 U.S. Dist. LEXIS 16128 (E.D. La. Oct. 19, 1999), the plaintiffs filed a wrongful death action alleging that a truck driver negligently backed his truck into their son, killing him. As part of their wrongful death case, Plaintiffs sought to introduce evidence that the driver had been involved several other accidents in the past, such as turning over his trailer, knocking over a signal light and running over a fire hydrant with his truck. The defendant filed a motion in limine. The Court concluded that while evidence of these accidents may have borne some relevance to the underlying case, they were nonetheless inadmissible to prove the negligence of the driver under Fed. R. Evid. 404(b). Id.

Like the defendant in Otis and plaintiffs in Walker, the only purpose for which Defendant seeks to admit evidence that Mrs. Martorelli told Dr. Gillespie she was taking 100 mcg/hr fentanyl patches in 2006 is to show action in conformity therewith two years hence; namely, that she made similar misrepresentations to Dr. Lowry about her fentanyl patch dosage in 2008. Defendant does not seek to offer this evidence under an exception to the general rule, such as to prove identity, intent, accident or opportunity. Rather, its presentation to the jury is sought only to prove that Mrs. Martorelli engaged in similar bad conduct at a later date, and lend support to Dr. Lowry’s claims that should have been (but are not) memorialized in the medical records. Furthermore, Mrs. Martorelli is deceased and cannot present her version of the facts or dispute Defendant’s characterization of events. This alone casts serious doubt on the probative value of Dr. Gillespie’s testimony and records. Such evidence should, therefore, it be excluded entirely as improper character evidence under Rule 404(b). See also, Steppach v. Thomas, 346 S.W.3d 488, (Tenn. Ct. App. Feb. 28, 2011) (Evidence that two city councilmen had accepted bribes in another matter was not admissible in a case challenging their votes in favor of a planned development and road closure.); Woodson v. Porter Brown Limestone Co., 916 S.W.2d 896 (Tenn. 1996) (In a wrongful death action against a truck driver, evidence that the driver was conscientious in the care and maintenance of his truck and had avoided a rear-end collision moments before the accident were not admissible.); State v. Rudd, 2007 Tenn. Crim. App. LEXIS 725 (Tenn. Crim. App. Sept. 13, 2007) (Defendant’s conviction for the first-degree murder of his wife was improper because the trial court improperly admitted evidence in violation of Tenn. R. Evid. 404(b) that defendant had shot a woman in 1991 in Mississippi under similar circumstances to the current case.)

B. Dr. Gillespie’s testimony and records should be excluded under Tenn. R. Evid. 403 because such evidence is speculative, confusing and will cause unfair prejudice.

Under Tenn. R. Evidence 403, even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Tenn. R. Evid. 403. As noted above, Dr. Lowry contends that Mrs. Martorelli reported to him that she was taking fentanyl at 100 mcg/hr dose on March 8, 2008, though there is zero documentary evidence to support such a claim in Dr. Lowry’s medical records, the pharmacy records, or any other records from another prescribing physician. (Lowry Dep. at 57:4 – 58:21 (Ex. 1).) In truth, Dr. Lowry has no actual memory of a discussion with Mrs. Martorelli in which she told him that she was taking a 100 mcg/hr patch in March, 2008. (Dr. Lowry’s Response to Plaintiffs’ Interrogatory No. 13[sic] at p. 6 (Ex. 7).) He simply claims that that such a prescription would naturally follow from the “standard way I prescribe fentanyl” and “how I know that I prescribe and practice relative to utilizing the fentanyl patch.” (Lowry Dep. at 56:23 – 57:17; 60:10-18 (Ex. 1).) In other words, Dr. Lowry contends that he must have been told by Mrs. Martorelli that she was on a 100 mcg/hr fentanyl patch – otherwise he would not have prescribed it. Dr. Lowry has no documentary proof of such communication, so he seeks to coopt two brief notations in Dr. Gillespie’s medical records about Mrs. Martorelli’s purported fentanyl patch dosage two years earlier, neither of which Mrs. Martorelli is here to deny, defend or explain. Further, such representations are said to have been made to Dr. Gillespie, an entirely different physician practicing in an entirely different specialty (psychiatry), who never once prescribed Mrs. Martorelli pain medications or, indeed, any other medications, at any time. (Gillespie Dep. at 73:21-23 (Ex. 3).) In this setting, it would require rank speculation for a jury to infer from the notations in Dr. Gillespie’s records that Mrs. Martorelli deceived Dr. Lowry into believing she was taking a 100 mcg/hr fentanyl patch in March, 2008. This is especially apparent when one considers that Dr. Lowry himself doesn’t actually remember any such conversation. The jury is simply not in a position to properly evaluate the full context of Mrs. Martorelli’s communications to Dr. Gillespie about her medication regimen in 2006, nor draw therefrom the inference that she made an identical communication to Dr. Lowry two years later. Such evidence is flatly unreliable and carries with it a significant danger of unfair prejudice against Plaintiffs. For these reasons, set forth more fully above, the Court should exclude any evidence, including the testimony and medical records of Dr. James Gillespie, mentioning or suggesting that Mrs. Martorelli communicated to any physician that she was prescribed and/or taking a 100 mcg/hr patch in March and June of 2006.

WHEREFORE, Plaintiffs pray that in order to ensure their right to a fair and impartial trial and to prevent the miscarriage of justice, that this honorable Court grant Plaintiff’s Motion in Limine No. 11 and specifically instruct Defendants and Defendants’ counsel to refrain from the mention or reference directly or indirectly to the matters stated above and for such other and further relief to which Plaintiff may be justly entitled.

Respectfully submitted this _____ day of October, 2012.

________________________________________

Robert. E. Pryor (BPR No. 001999)

Pryor, Flynn, Priest & Harber

Two Centre Square, Suite 600

P.O. Box 870

Knoxville, Tennessee 37901

(865) 522-4191

James C. Orr, Jr. (pro hac vice)

Heygood, Orr & Pearson

2331 W. Northwest Highway, 2nd Floor

Dallas, TX, 75220