Bamber v. Prime Healthcare Kan. City - Physician's Servs., LLC, Case No. 17-00229-CV-W-ODS

• Decision Date: 31 July 2019
• Docket Number: Case No. 17-00229-CV-W-ODS
• Parties: NORMAN BAMBER, M.D. Plaintiff, v. PRIME HEALTHCARE KANSAS CITY - PHYSICIAN'S SERVICES, LLC, Defendant.
• Court: U.S. District Court — Western District of Missouri

NORMAN BAMBER, M.D. Plaintiff, v. PRIME HEALTHCARE KANSAS CITY - PHYSICIAN'S SERVICES, LLC, Defendant.

Case No. 17-00229-CV-W-ODS

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

July 31, 2019

ORDER (1) GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTIONS IN LIMINE, AND (2) GRANTING IN PART, DENYING IN PART, AND DEFERRING IN PART PLAINTIFF'S MOTIONS IN LIMINE

Pending are motions in limine filed by both parties. As set forth below, Defendant's motions (Doc. #125) are granted in part and denied in part, and Plaintiff's motions (Doc. #127) are granted in part, denied in part, and deferred in part. The parties are reminded these rulings are interlocutory. Thus, the denial of a request to bar evidence at this juncture preserves nothing for review, and the parties may re-assert their objections at trial if they deem it appropriate to do so. Evidence barred by this Order shall not be discussed in the jury's presence (including during opening statements) without leave of the Court. The parties are free to suggest (out of the jury's presence) that something has occurred during the trial justifying a change in the Court's interlocutory ruling.

A. DEFENDANT'S MOTIONS IN LIMINE(1) Issues Decided on Summary Judgment

Defendant moves to exclude evidence and argument beyond "the narrow issue of materiality of the breach to justify termination." Doc. #117. In deciding Defendant's motion for summary judgment, the Court stated:

I conclude that the contract is not ambiguous as to Dr. Bamber's pertinent duties, that there was an anticipatory breach of duty to perform inpatient consultations at the adjoining hospital, that he was terminated after being given adequate notice, but that there is a remaining question as to the materiality of the breach. Thus, only partial judgment in favor of defendant should be granted at this time.... The difficulty in the contract is not posed by conflicting or otherwise ambiguous terms but rather by terminology not immediately understandable by persons unfamiliar with hospital practice. Study of the filings and relying only on background that is not contested clarifies the situation....

Doc. #117, at 1-2.

Plaintiff argues Defendant's motion is vague, and therefore, it is unclear what evidence it seeks to exclude. He also contends he should be permitted to introduce evidence relevant to any aspect of his breach of contract claim. By way of example, Plaintiff points to the Medical Staff Bylaws and Rules and Regulations, which do not require physicians to perform inpatient consultations, and the On-Call Policy, which required physicians to perform inpatient consultations as part of the emergency department's call coverage. Plaintiff maintains these documents are relevant to the materiality of inpatient consultations as part of the employment agreement, and the jury needs to understand how the hospital and clinics operated.

As referenced in the Court's March 18, 2019 Order, Missouri courts are guided by the factors set forth in the Restatement (Second) of Contracts when determining whether a breach is material. Doc. #117, at 10-11 (citing Randy Kinder Excavating, Inc. v. J.A. Manning Constr. Co., 899 F.3d 511, 517 (8th Cir. 2018) (citations omitted)). These factors include (1) "the extent to which the injured party will be deprived of the benefit which he reasonably expected"; (2) "the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived"; (3) "the extent to which the party failing to perform or to offer to perform will suffer forfeiture"; (4) "the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances"; and (5) "the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing." Kinder Excavating, 899 F.3d at 517 (citations omitted).

At trial, the parties' evidence should relate to the materiality of the breach, and in that regard, the parties should be guided by the Restatement's factors. Other thannecessary background information, evidence other than materiality of the breach will be excluded. Accordingly, Defendant's motion in limine is granted.¹

(2) Call Pay

Defendant asks the Court to prohibit Plaintiff from presenting evidence or argument that Plaintiff is owed damages for emergency department on-call coverage because Defendant was no longer providing emergency care for neurological concerns at the time Defendant terminated the agreement it had with Plaintiff. Plaintiff argues call coverage compensation is relevant, and he should be allowed to offer testimony and evidence about call coverage compensation. Plaintiff states he does not intend to testify about call pay as an element of damages. Pursuant to Plaintiff's concession, Defendant's motion is granted. Plaintiff shall not argue or present evidence or testimony that he is owed damages for on-call coverage. Plaintiff will be permitted, however, to present evidence relating to on-call compensation as historical context for the present dispute.

(3) Special Damages

Defendant seeks to preclude Plaintiff from referencing or requesting special damages, including the cost Plaintiff incurred to reopen his practice and resume treatment of patients. Plaintiff argues Defendant seeks to contravene the Court's prior order, and Plaintiff "should be permitted to discuss all types of damages at trial." Doc. #141, at 3.

Previously, the Court granted Defendant's motion for summary judgment on Count II, which sought special damages for breach of contract. As the Court explained:

"Special" damages are those which may be allowed for the breach of certain types of contracts, and include amounts which are not considered to arise "naturally" or "usually" from the breach of contract. Special damages are damages that "actually result from a wrongful act but are the product of the special circumstances of the case or are peculiar to the non-breaching party." Raineri Const[r]. LLC v. Taylor, 63 F.Supp.3d 1017, 1033 (E.D. Mo. 2014) (quoting Porter v. Crawford & Co., 611 S.W.2d 265, 271 (Mo.Ct.App. [1981])). Included in Dr. Bamber's requestfor "special damages" are the costs he incurred "to reopen his practice and resume his treatment of patients" after the termination of his employment. He includes such items as malpractice insurance, clinic space, wages for his staff, billing services, storage of his items from his office while employed by Prime and a computer to keep his records moving forward. (Doc. 87, ¶ 13).

* * * *

Prime agrees that Dr. Bamber's alleged damages are "the amount of salary, benefits or other compensation to which he would have been entitled under the Agreement had it not been terminated, minus any income he actually earned (or should have earned)" for the three year period before the Agreement could have been terminated by either party. (Doc. 81, p.11-12). Thus, some of the items of damage Dr. Bamber claims as "special damages" are potentially included in calculating benefit of the bargain damages.... However, Dr. Bamber has not provided any evidence that staff wages, billing services, storage or other such expenses might have been contemplated by the parties.... Further, the record currently before this Court contains no evidence as to Dr. Bamber's current compensation package or practice structure, and thus, the items to be included as damages are best left to be determined at any trial. There is no evidence or cogent argument presented that actual or ordinary benefit of the bargain damages cannot fully compensate Dr. Bamber. He is entitled to be fully compensated for his alleged loss, but not recover a windfall. Ameristar Jet Charter, Inc. v. Dodson Int'l Parts, Inc., 155 S.W.3d 50, 54 (Mo. [b]anc. 2005). Prime's motion for partial summary judgment seeking dismissal of Count II is therefore GRANTED.

Doc. #110, at 15-16.

Pursuant to its earlier decision, the Court grants Defendant's motion. Plaintiff shall not introduce evidence or make arguments related to special damages. Instead, Plaintiff's recovery is limited to benefit of the bargain damages and those damages "naturally and proximately caused by the commission of the breach and for those that could have been reasonably contemplated by the defendant at the time of agreement." Gill Constr., Inc. v. 18th & Vine Auth., 157 S.W.3d 699, 717 (Mo. Ct. App. 2004) (citation omitted); see also Cason v. King, 327 S.W.3d 543, 548 (Mo. Ct. App. 2010) (citation omitted); Mo. Approved Instruction 4.01 (2012).

(4) Witnesses' Speculation and/or Improper Opinions

Defendant moves to prohibit Plaintiff and lay witnesses from testifying about (1) admittance of patients presenting neurological issues to reduce emergency room waittimes, (2) St. Joseph Medical Center being on "stroke diversion" when Plaintiff was not available for an emergency neurosurgical call, (3) someone needed to be on call in the emergency room for neurological services and/or Defendant needed to offer such services, (4) whether Defendant's rules and regulations required inpatient consults from Plaintiff, (5) Defendant looking for a reason to terminate Plaintiff's contract, and (6) cost-cutting and other evidence of Defendant's motive for terminating Plaintiff's contract. Plaintiff does not intend to offer opinion testimony regarding whether St. Joseph Medical Center was required to be on stroke diversion if he was unavailable for emergency neurosurgical department call coverage. But Plaintiff argues he should be permitted to testify about or discuss the other topics identified by Defendant.

"A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Fed. R. Evid. 602. To the extent Plaintiff has personal knowledge on the other matters identified by Defendant, he will...