RightCHOICE Managed Care, Inc. v. Hosp. Partners

Decision Date17 September 2021
Docket Number5:18-cv-06037-DGK
PartiesRIGHTCHOICE MANAGED CARE, INC., et al., Plaintiffs, v. HOSPITAL PARTNERS, INC., et al., Defendants.
CourtU.S. District Court — Western District of Missouri
ORDER REGARDING MOTIONS IN LIMINE

GREG KAYS, JUDGE

This lawsuit arises out of an alleged fraudulent pass-through billing scheme for laboratory tests billed from Putnam County Memorial Hospital ("Putnam"), a fifteen-bed hospital in rural Missouri. Plaintiffs, a group of licensees or subsidiaries of independent licensees of Blue Cross and Blue Shield Association, are suing a variety of Defendants who allegedly participated in, or benefitted from, the alleged scheme, including the laboratories who conducted the testing. This civil case is related to an ongoing criminal case in the Middle District of Florida, United States v David Lane Byrns, No. 3:19-CR-166-J-32JRK (M.D. Fla.).

Now before the Court are Defendants SeroDynamics, LLC, LabMed Services, LLC, Beau Gertz, and Mark Blake's (the "Sero Defendants") motions in limine (ECF No. 638) as well as Plaintiffs' motions in limine (ECF Nos 627-36). For the reasons stated below, the parties' motions in limine are GRANTED IN PART and DENIED IN PART. The Court also ORDERS the Sero Defendants and Plaintiffs to provide additional briefing on the issue of witnesses' invocations of their Fifth Amendment rights by noon on September 19, 2021.

I. The Sero Defendants' motions in limine are granted in part and denied in part.

The Sero Defendants have moved to exclude thirteen different categories of evidence, argument, and/or testimony. Each category is addressed in turn below.

1. The parties are prohibited from making "Golden Rule" arguments.

The Sero Defendants first move to preclude Plaintiffs from making so-called "Golden Rule" arguments to jurors or venire persons that implore them to place themselves in Plaintiffs' shoes. ECF No. 641 at 2. Plaintiffs do not oppose this request; rather, they simply argue that the Sero Defendants should also be prohibited from advancing the same arguments. ECF No. 642.

The Court agrees with the parties. Golden Rule arguments are "universally condemned because [they] encourage[] the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on evidence." Lovett ex rel. Lovett v. Union Pac. R. Co., 201 F.3d 1074, 1083 (8th Cir. 2000) (internal quotation marks omitted).

Accordingly, the Sero Defendants' motion is GRANTED. No. party in this case shall make a Golden Rule argument.

2. The parties are prohibited from introducing evidence or referencing the discovery disputes in front of the jury.

The Sero Defendants next move to exclude evidence and arguments about pre-trial discovery disputes and orders involving the parties. ECF No. 641 at 3. Plaintiffs "partially oppose" the motion, arguing that they have no problem with the Court excluding evidence and arguments regarding the parties' discovery disputes and the Court's orders. ECF No. 657 at 1. But Plaintiffs contend that the Court should not preclude them from using pre-trial discovery from the case or otherwise arguing that the Court's prior orders are "law of the case." Id. at 1-2.

Evidence and testimony regarding pre-trial discovery disputes and the orders resolving the same are inadmissible at trial. See Sanfordv. EkteIon/Prince Sports Grp., Inc., No. 8:97-cv-368, 1999 WL 33544436, *4 (D. Neb. 5, 1999). This is because such evidence is not only irrelevant, id, but it also creates the serious risk of unfair prejudice to the parties that may have been ruled against (or sanctioned) by the Court, see Fed. R. Civ. P. 403. Discovery in this case was marred by repeated discovery disputes among the parties that resulted in the Court issuing twelve discovery orders, including some that resulted in varying degrees of sanctions. See ECF Nos. 171, 208, 255, 277, 301, 302, 430, 431, 444, 448, 452, 461. Reference by the parties to these orders in front of the jury are not relevant to the trial issues and could mislead and unfairly prejudice the jury against one of the offending parties. And contrary to Plaintiffs' intimations, the Court does not read the Sero Defendant's motion as requesting the exclusion of all pretrial discovery or precluding the Court's prior discovery orders from having law-of-the-case effect. Indeed, the Sero Defendants simply request that there be no evidence or arguments presented to the jury that refers to the discovery disputes or the Court's orders.

The Court, thus, GRANTS the Sero Defendants' motion. The parties shall not make arguments or introduce evidence in front of the jury about the discovery disputes or the Court's orders on the same. To the extent an issue arises during trial that implicates the Court's prior discovery orders, the parties should approach the bench to discuss the issue away from the jury.

3. The motion to exclude "other litigations and lawsuits" is denied without prejudice.

The Sero Defendants argue that the Court should broadly prohibit Plaintiffs from "referencing any other litigation or lawsuits against any of the Defendants." ECF No. 641 at 4. Plaintiffs partially oppose the motion, claiming that some litigations involving some defendants may be relevant. ECF No. 657 at 2.

"Motions in limine should be directed at specific evidence, not broad, vague categories of evidence or testimony." See Linstrom v. Quiktrip Corp., No. 4:19-cv-00454-DGK, 2020 WL 6140553, at *1 (W.D. Mo. Oct. 19, 2020) (citing Sappington v. Skyjack, Inc., No. 04-5076-CV- SW-FJG, 2008 WL 895222, at *7 (W.D. Mo. Mar. 27, 2008)). The Sero Defendants' motion suffers from this defect: It never addresses specifically which litigation (if any) against which Defendants (if any) should be excluded from evidence.

The Court, thus, cannot decide this issue due to the lack of specificity. See Kirk v. Schaeffler Grp. USA, Inc. No. 3:13-cv-5032-DGK, 2016 WL 740300, at * 4 (W.D. Mo. Feb. 24, 2016). The motion is DENIED WITHOUT PREJUDICE.

4. The parties are precluded from submitting evidence of or referencing the settlements with the other Defendants.

The Sero Defendants seek to exclude evidence and arguments regarding the settlements and the associated negotiations between Plaintiffs and former Defendants and alleged coconspirators Lucenta Labs, LLC, LifeBrite Laboratories, LLC, Christian Fletcher, and James F. Porter. ECF No. 641 at 5. Plaintiffs argue that they do not intend to introduce the settlement agreements at trial, but the jury should be "informed of the existence" of the settlements to explain why those defendants are not at trial. ECF No. 657 at 3.

Settlement offers, agreements, and negotiations are generally inadmissible to "prove or disprove the validity or amount of a disputed claim." Fed. Rule Evid 408(a). This prohibition extends to settlements between a defendant and non-party in a litigation where it revolves around the same facts being litigated at trial against the defendant. See Dahlgren v. First Nat. Bank of Holdrege, 533 F.3d 681, 699 (8th Cir. 2008). The rationale behind the exclusion is that admitting this evidence may result in the jury believing that if the defendant settled with the non-party in the same circumstances, they must be at fault for the claims against them at trial. See Id. This logic applies with equal force here: The former co-defendants' and co-conspirators' settlements with Plaintiffs may impute liability to the Sero Defendants since it all revolves around the same general factual circumstances. This weighs in favor of excluding the evidence of the co-conspirator settlements under Rule 408.

Of course, Rule 408 contains an exception: Evidence of settlements is admissible for other purposes than establishing the validity or amount of a disputed claim. Fed.R.Evid. 408(b). Plaintiffs argue that some courts have allowed juries to be informed of settlements to explain a settled party's absence from trial. This is true, but the primary cases that Plaintiffs rely on for this proposition are distinguishable. In those cases, the co-defendants settled after the jury actually saw them during voir dire or trial. See Arhart v. Micro Switch Mfg. Co., 798 F.2d 291, 295 (8th Cir. 1986); Kennon v. Slipstreamer, Inc., 794 F.2d 1067, 1069 (5th Cir. 1986). In those circumstances, it makes sense for a judge to give some instruction addressing the fact that a co-defendant who was previously in front of them in court has suddenly disappeared. It is an unavoidable, elephant-in-the-room fact. But that's not the case here: The settling Defendants that Plaintiffs seek to inform the jury about settled long before trial; the jury has never seen them so there is no sudden absence at trial that begs for an explanation.

The Court also sees some Rule 403 risk in admitting or informing the jury about the settlements. This case involves allegations of a conspiracy between the Sero Defendants and the Defendants who have settled. Informing the jury of the other Defendants' settlements risks the jury mistakenly inferring that settlements are a concession of liability. See Fed. R. Civ. P. 403; cf Dahlgren, 533 F.3d at 699. This risk far outweighs the marginal value of informing the jury of their absence to avoid potential confusion here.

The Court GRANTS the Sero Defendants' motion. Plaintiffs shall not reference or introduce evidence as to the settlements with the other Defendants. Should the need arise, the Court may reconsider this ruling and instruct the jury accordingly.

The Court is also open to instructing the jury that they should not consider the presence or absence of a particular Defendant in determining the liability of any of the Sero Defendants.

5. Plaintiffs are prohibited from introducing David Byrns' plea agreement into...

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