Civil Action No. 02-318, Section "K" (1)
January 27, 2003
Before this Court is the plaintiffs' Motion to Extend Deadline Date for Completing Discovery and Taking Depositions. (Rec. Doc 63). For the reasons that follow, the Court GRANTS the motion in part, and DENIES the motion, in part.
The instant motion arises out of the plaintiffs' complaint for damages pursuant to an alleged incident of medical malpractice.
According to the complaint, on or about Thursday, October 15, 1998, 67 year old Judith Porter underwent a colonoscopy performed by Dr. Stephen McKenna and was discharged immediately after the procedure. (See Complaint ¶ 12). On or about Friday October 16, 1998, Ms. Porter went to the emergency room because she suffered from abdominal pain. (See Complaint ¶ 14). On October 21, 1998, Dr. McKenna informed Ms. Porter and her family that she had suffered a perforation in her colon and advised them that surgery may be an option, but that the perforation may ultimately seal without the necessity of surgery. (See Complaint ¶ 17). On October 22, 1998, Dr. McKenna advised Ms. Porter that her only option was to undergo surgery and performed the surgery the following day. (See Complaint ¶¶ 18, 19). Ms. Porter came out of the surgery with a colostomy and was to return in three months for a reversal of the colostomy. (See Complaint ¶ 19). On or about January 25, 1999, Ms. Porter underwent a reversal of the colostomy which was performed by Dr. McKenna. (See Complaint ¶ 20). After the reversal, Ms. Porter's condition continued to deteriorate and she exhibited signs of sepsis. (See Complaint ¶ 21). On January 2, 2000, after further complications including intra-abdominal abscesses and a second perforation, Ms. Porter died. The plaintiffs filed their complaint on February 5, 2002.
On January 21, 2003 the plaintiffs filed the instant Motion to Extend Deadline Date for Completing Discovery and Taking Depositions. The defendants filed an objection to the extension on January 23, 2003. The original discovery deadline was January 27, 2003. The Court, anticipating future discovery problems, called a telephonic status conference on 24, 2003 at 3:30 p.m. to discuss the grounds for the extension and the nature of discovery plaintiffs still needed to conduct. The plaintiffs informed the Court that they intended to depose four additional witnesses: Dr. Dwight McKenna, Lisa Cox, Pamela McKenna, and Claire Mortimer. Counsel for the plaintiffs informed the Court that they intend to introduce testimony from Dr. Dwight McKenna, Pamela McKenna, and Claire Mortimer that Dr. Stephen McKenna was in dire financial straits at the time he performed the surgery to repair Ms. Porter's perforated colon. Counsel seeks to establish that Dr. McKenna's motive in operating on Ms. Porter was the improvement of his financial condition, and that the operation was otherwise unnecessary and not likely to improve Ms. Porter's condition. Plaintiffs' counsel contend that the three witnesses, Dr. Dwight McKenna, Pamela McKenna, and Claire Mortimer, will testify to Dr. Stephen McKenna's financial problems.
Federal Rule of Evidence 404(b) states that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . ." The Fifth Circuit has developed a two step test to resolve these issues: "First it must be determined that the extrinsic evidence is relevant to an issue other than the defendant's character. Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet other requirements of rule 403." Buford v. Howe, 10 F.3d 1184, 1188 (5th Cir. 1994) (affirming the district court's exclusion of testimony pertaining to a physician's motive of financial gain in performing two surgeries on mother and daughter). Rule 403 of the Federal Rule of Evidence states that "[a]lthough relevant, evidence may be 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."
The plaintiffs argue that the evidence of Dr. Stephen McKenna's financial condition is relevant because it tends to show that Dr. McKenna's motive to operate was financial gain, and not the improvement of Judith Porter's colon condition. This contention arguably satisfies the first prong, of the Rule 404 test (that the deposition testimony is relevant to an issue other than the defendant's character); however, the Court finds that even if Dr. McKenna's financial condition is relevant to his motive in operating on Ms. Porter, its probative value is minimal. Evidence of Dr. McKenna's financial situation does not tend to explain his decision to operate on Judith Porter. Presumably, on a general level, all doctors operate for financial gain. Even if Dr. McKenna's financial distress made him anxious to perform more operations, this fact does not tend to prove that the operation was unnecessary or that he was negligent in choosing to operate. Because the Court finds that the connection between Dr. McKenna's financial situation and his decision to perform the elective procedure is attenuated, the plaintiffs fail to satisfy the second prong of the 404 test. The probative value of evidence regarding Dr. McKenna's financial condition is substantially outweighed by its undue prejudice.
The 403 inquiry also supports the exclusion of any evidence pertaining to Dr. McKenna's financial problems. The Advisory Committee Notes state that: "[e]xclusion for risk of unfair prejudice, confusion of issues, misleading the jury, or waste of time all find ample support in the authorities. `Unfair prejudice' within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily an emotional one." The Advisory Committee Note applies to the current situation. Extrinsic evidence demonstrating the doctor's financial turmoil is likely to mislead the jury, by confusing the issues, and potentially creating a mini-trial on the issue of Dr. McKenna's finances. The primary issue in a medical malpractice case is whether the physician deviated from the "standard of care." The focus of the fact finder should be on the medical testimony, not on testimony pertaining to Dr. McKenna's money problems. For these reasons, the Court finds that such evidence would be prejudicial and lacks probative value to the more pertinent issue: whether Dr. McKenna's his actions fell below the standard of care ordinarily exercised under similar circumstances by members of his profession. Therefore, the Court will only permit the plaintiffs to take the deposition testimony of Lisa Cox, whose testimony does not involve facts relating to Dr. McKenna's financial circumstances, and will not allow them to depose the other three witnesses. Accordingly,
IT IS ORDERED that the plaintiffs' Motion to Extend Deadline Date for Completing Discovery and Taking Depositions, (Rec. Doc. 63) is GRANTED with respect to Lisa Cox, but DENIED as to Dr. Dwight McKenna, Pamela McKenna, and Claire Mortimer. The plaintiffs may have until February 5, 2003 to depose Lisa Cox.