DOCTOR'S HOSP. OF JEFFERSON v. SOUTHEAST MED. ALL.
| Decision Date | 09 February 1995 |
| Docket Number | Civ. A. No. 93-2493. |
| Citation | 878 F. Supp. 884 |
| Parties | DOCTOR'S HOSPITAL OF JEFFERSON, INC. v. SOUTHEAST MEDICAL ALLIANCE, INC., and Jefferson Parish Hospital Service District No. 2. |
| Court | U.S. District Court — Eastern District of Louisiana |
Gene W. Lafitte, Sr., Frank E. Massengale, Marie Breaux, Shannon Skelton Holtzman, Liskow & Lewis, New Orleans, LA, for Doctor's Hosp. of Jefferson, Inc. Peter Joseph Butler, Donna DiMartino Fraiche, Aubrey B. Hirsch, Jr., Peter J. Butler, Jr., Richard G. Passler, Locke, Purnell, Rain & Harrell, P.C., Michael M. Meunier, Sullivan, Stolier & Daigle, Danielle Lombardo Trostorff, Lock, Purnell, Rain & Harrell, P.C., New Orleans, LA, for Southeast Medical Alliance, Inc.
ORDER AND REASONS
Pending before the Court are five motions in limine filed by plaintiff Doctor's Hospital of Jefferson, Inc. (hereinafter "Doctor's Hospital"). These motions were previously taken under submission without oral argument. Having reviewed the memoranda of the parties, the record and the applicable law, the Court grants one motion in part and denies the remainder of that motion and all other motions.
Doctor's Hospital filed this lawsuit against Southeast Medical Alliance, Inc. (hereinafter "SMA") and Jefferson Parish Hospital Service District No. 2, more commonly known as East Jefferson Hospital. Doctor's Hospital alleged violations of federal and state antitrust laws, the Louisiana Unfair Trade Practices and Consumer Protection Act, civil conspiracy, tortious interference with business relations and breach of contract.
Prior to the previous trial setting, Doctor's Hospital filed five motions in limine. Because the trial was continued, the judge of the section to which this case had been allotted did not rule on those motions. Subsequently, the case was transferred to this section. Trial in this matter is set for April 20, 1995.
In its supplemental memorandum in support of its motions in limine (Document 213), plaintiff has withdrawn this motion. Therefore, plaintiff's motion is denied as moot.
According to plaintiff's supplemental memorandum in support of its motions in limine, plaintiff has modified its request to lift the protective order entered in this matter, only seeking that the protective order be lifted as to exhibits previously prepared for trial. Plaintiff argues that once a protective order is entered, it is not immutable, citing Beckman Industries, Inc. v. International Ins. Co., 966 F.2d 470, 476 (9th Cir.1992). Further, Doctor's Hospital contends that the documents at issue are truly not confidential and the marking of documents as such has hampered trial preparation and will hamper the orderly administration of trial.
In opposition, defendants concede that plaintiff's modification of its motion reduces the "universe of documents" at issue but argues that the trial exhibits are several hundred documents that fill eight binders. Defendants are willing to consider lifting the Protective Order as to certain documents if Doctor's Hospital identifies these documents. Otherwise, defendants argue, the Protective Order itself provides for a mechanism to seek the Court's intervention.
On August 27, 1993, the parties jointly moved for the entry of the Protective Order at issue. (Document 27.) The judge of the section to which this matter had been allotted entered the order on August 31, 1993. (Document 28.) Section 3 of the Protective Order, entitled "Objections to Designation," provides that whenever a party objects to material being designated "Confidential Information," that party may apply to the Court for a hearing on whether such a designation is appropriate. The order further provides that the burden is on the party opposing the designation to show that the protective order should not apply.
While plaintiff has narrowed its request for lifting of the protective order, plaintiff has not identified specifically which documents it believes should not fall under the Protective Order. Further, Doctor's Hospital has not availed itself of the specific procedure to which it agreed by jointly moving to enter the Protective Order.
Beckman approved the modification of a protective order from a prior case that had been compromised in order that later intervenors could have access to six depositions. Id. at 471-72. In affirming, however, the Ninth Circuit panel recognized that one concern in modifying a protective order is the "reliance interests of the party opposing modification." Id. at 475. "The extent to which a party can rely on a protective order should depend on the extent to which the order induced the party to allow discovery or settle the case." Id.
Although the Beckman court found that reliance is less of a factor when a blanket protective order is issued, as here, Beckman is inapposite factually. In Beckman not only were the movers seeking a modification of a protective order from a case that had settled but also the documents at issue were specifically identified. Here plaintiff seeks modification of a protective order which it freely entered into without specifically identifying documents which it believes do not fall within the scope of the Protective Order.
Therefore, plaintiff's motion is denied without prejudice to revisit the issue in accord with the provisions of the Protective Order. Of course, should plaintiff identify documents which it believes should not be covered by the Protective Order, the Court encourages all parties to make a good-faith effort to determine if documents needlessly fall within the Protective Order.
Plaintiff moves to prevent the alleged improper introduction of survey evidence at trial through East Jefferson Hospital's expert, Dr. Hugh W. Long. Plaintiff also moves to prevent "mere commentary and argument" of Dr. Long from being offered in the guise of expert economic opinion.1 Defendants argue that they do not seek to introduce survey testimony and that Dr. Long will not offer any attorney comment or argument as expert opinion. The Court addresses these issues in turn.
According to defendants' memorandum in opposition to this motion in limine, defendants intend to offer Dr. Long as an expert in the field of health care and economics who will testify on the general business practices of managed care plans, basing his opinion partly on interviews with representatives of managed care plans. (Document 205, p. 2, and Document 210, p. 4.) The pertinent portion of Dr. Long's expert report in regard to the alleged survey evidence is as follows:
Plaintiff argues that these informal conversations do not adequately meet the requirements of a formal survey as required in this circuit. See, e.g., TDC Electronics, Inc. v. Jack B. Harper Contractor, 1992 WL 319490 *2 (E.D.La.1992), citing Amstar Corp. v. Domino's Pizza, Inc., 615 F.2d 252, 264 (5th Cir.1980). Plaintiff concedes the aptness of defendants' opposition that experts can rely on facts not ordinarily admissible, such as hearsay, see, e.g., Mac Sales v. E.I. DuPont de Nemours and Co., 1992 WL 396864 *4 (E.D.La.1992) (E.D.La.1992). However, plaintiff argues that these interviews are inherently unreliable.
Rule 703 of the Federal Rules of Evidence states:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Plaintiff has not shown that the interviews held by Dr. Long are not an information-gathering device reasonably relied on by experts such as Dr. Long. Further, the survey cases cited by plaintiff are inapposite as those surveys dealt with ultimate factual issues of confusion in trademark infringement cases. See, e.g., Amstar Corp., supra. Additionally, the Court finds that the interviews upon which Dr. Long bases his opinion go more toward the weight rather than admissibility of his opinion. Therefore, the motion is denied on this issue.
Doctor's Hospital also seeks to exclude Dr. Long's...
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