United States District Court, E.D. Arkansas, Jonesboro Division
LEE ANDRE MILLER, Special Administrator of the Estate of Annie Bell Miller PLAINTIFF
BROADWAY HEALTH AND REHAB LLC DEFENDANT
Marshall Jr., United States District Judge.
Dr. Klein. Broadway's motion to strike, No.
38, is partly granted and partly denied. The date of Dr.
Klein's deposition was agreed; and his opinions were
summarized in the timely one-page disclosure. No.
38-1. But the 55-page handwritten statement, first
disclosed at the deposition, was untimely. Fed.R.Civ.P.
26(a)(2)(D). It should have been made available earlier. Dr.
Klein's testimony will therefore be limited to the
opinions in the first disclosure. Fed.R.Civ.P. 37(c).
Bifurcation. Broadway's motion, No. 39,
is denied as moot. Punitive damages are no longer at issue.
Financial information. Broadway's motion,
No. 41, is granted. Punitive damages and joint
venture are no longer issues in this case. No. 60.
The entities' finances and financial relationships are
irrelevant to the remaining issues.
Prior acts and lawsuits. Broadway's motion,
No. 43, is granted with a caveat. The potential for
unfair prejudice here is great. Porous Media Corp. v.
Pall Corp., 173 F.3d 1109, 1117 (8th Cir. 1999).
Therefore, the estate shall not introduce evidence of other
acts or other lawsuits. But, if the estate demonstrates
substantial similarity to the Court outside the jury's
presence, the Court will reconsider under Rule 403. Hicks
v. Six Flags Over Mid-America, 821 F.2d 1311, 1315-16
(8th Cir. 1987). The estate must give Broadway, and the
Court, notice of any such proposed evidence by 28 February
Expert testimony by defendants. Broadway's
motion, No. 45, is granted. Medical providers cannot
be compelled to give expert opinion against themselves. Ark.
Code Ann. § 16-114-207(3); Bedell v. Williams,
2012 Ark. 75, 16-17, 386 S.W.3d 493, 504-05 (2012).
Expert testimony by Broadway's caregivers is out, unless
the door is opened. Csiszer v. Wren, 614 F.3d 866,
873-74 (8th Cir. 2010). Testimony about the facts is in.
Omnibus motion. Broadway's omnibus motion seeks
relief on fifteen embedded and various topics. No.
47. Miller's estate opposes the motion generally,
though there are some areas of agreement. No. 58 & No.
59. For the following reasons, Broadway's omnibus
motion is (as specified) partly granted and partly denied.
a. No adverse effect. Granted.
Neither party shall argue or imply any adverse effect, or
lack thereof, on the nursing home.
b. Regulations. Partly granted and
partly denied without prejudice. The Court will follow
Bedell, 386 S.W.3d at 499, as to 42 C.F.R.
§§ 483.1 et sea. But the Court reserves a
ruling about other regulations and statutes until it has
heard the proof and focused argument on specific state or
federal law, the violation of which may be evidence of
medical malpractice in Miller's care.
c. Residents' Rights Act.
Granted. The parties agree. No. 59 at 1.
Miller's estate should cite only the sections that are
relevant to this case.
d. "Governing body."
Granted. The estate shall not refer to a
"governing body." Bedell, 386 S.W.3d at
e. Abuse of Adults Act. Granted.
The Act doesn't apply to civil actions. ARK. CODE Ann.
The word is not complex. The Court will give a limiting
instruction, if ...