McCorkle vs. La Habra Convalescent Hospital

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# Case Name Tentative

2023-1334802 Plaintiffs’ Motion in Limine No. 1 is GRANTED IN PART, McCorkle vs. subject to the limitations stated below. La Habra Convalescent Background Hospital Plaintiffs seek an order permitting their nursing expert, Aksel Abramyan, B.S.N., R.N., to testify concerning federal and state statutes and regulations applicable to Bonita Hills Post Acute. Plaintiffs contend those provisions establish minimum standards governing the care of skilled-nursing-facility residents and may support a negligence-per-se instruction. Defendants respond that an expert may not interpret statutes or regulations or instruct the jury on the law, and that the professional standard of care is determined through expert testimony rather than regulatory requirements.

Ruling Applicable statutes and duly authorized regulations governing skilled nursing facilities may be relevant in determining the duties owed to a resident and whether defendants’ conduct constituted neglect or fell below the applicable standard of care. (Conservatorship of Gregory (2000) 80 Cal.App.4th 514, 522-523; Norman v. Life Care Centers of America, Inc. (2003) 107 Cal.App.4th 1233, 1243-1246; Evid. Code, § 669.) Defendants’ categorical contention that the regulatory scheme has no bearing on the standard of care is therefore not persuasive.

That does not mean, however, that an expert may instruct the jury on the law. The Court determines the governing law and instructs the jury concerning it. An expert may not construe a statute or regulation, offer a legal conclusion concerning its meaning or applicability, or opine that a party “violated” the law. (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1178-1180; Elder v. Pacific Tel. & Tel. Co. (1977) 66 Cal.App.3d 650, 664.) Evidence Code section 805 does not authorize an expert to usurp that judicial function.

Subject to proper qualification and foundation, Abramyan may identify statutes and regulations of which he is aware and upon which he relied in forming his nursing-standard-of-care opinions. He may explain the practices required of a reasonably careful nurse or skilled nursing facility and may testify that identified regulatory requirements are consistent with, or inform, those professional standards. He may also offer otherwise admissible opinions concerning whether the care provided to Wilenken met the applicable nursing standard of care.

Limitations Abramyan may not independently interpret the legal meaning or scope of any statute or regulation; instruct the jury what the law requires; characterize a statute or regulation as legally applicable to a particular defendant; or state a legal conclusion that defendants violated a statute or regulation, were negligent per se, committed elder abuse, acted recklessly, or are legally liable. Counsel likewise may not use the expert as a vehicle to publish a lengthy body of statutes or regulations to the jury without first identifying the particular provisions at issue and obtaining a ruling on their relevance and proper use.

The Court reserves ruling on the precise statutory and regulatory provisions that may be presented, the manner in which they may be presented, and whether the evidence ultimately supports a negligence-per-se instruction under Evidence Code section 669 and CACI No. 418. Those issues will be determined outside the jury’s presence after plaintiffs identify the specific provisions and the evidentiary foundation is developed. Any jury instruction stating the governing legal requirements will be given by the Court, not by an expert witness.

Nothing in this ruling precludes a contemporaneous objection that a particular question calls for an improper legal conclusion, lacks foundation, exceeds the expert’s qualifications or disclosed opinions, is irrelevant, or should be excluded under Evidence Code section 352.

Plaintiffs’ Motion in Limine No. 2 is GRANTED IN PART and DEFERRED IN PART, as stated below.

Background

Plaintiffs seek to exclude evidence that Medicare or another collateral source paid Wilenken’s medical expenses. They contend the claims arise from custodial elder neglect and therefore do not fall within Civil Code section 3333.1, MICRA’s exception to the collateral-source rule. Defendants respond that Bonita Hills is a health care provider and that at least some of plaintiffs’ theories concern professional services, including infection control, catheter and wound care, assessment of changes in condition, physician notification, and medication administration.

Governing Law Ordinarily, compensation received from a source independent of the tortfeasor may not be used to reduce the damages otherwise recoverable from the tortfeasor, and evidence of such payments is generally inadmissible. (Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 6-14; Hrnjak v. Graymar, Inc. (1971) 4 Cal.3d 725, 729-733.)

Civil Code section 3333.1 creates a limited exception. In an action for personal injury against a health care provider based upon professional negligence, the defendant may elect to introduce evidence of specified collateral-source benefits. The exception applies to professional-negligence claims; it does not attach to every claim merely because a health care provider is a defendant. (Civ. Code, § 3333.1; Welf. & Inst. Code, § 15657.2; Smith v. Ben Bennett, Inc. (2005) 133 Cal.App.4th 1507, 1525-1526.)

A skilled nursing facility may act both as a health care provider and as a day-to-day custodian. MICRA applies only to acts or omissions in the former capacity. Failures involving basic assistance with hygiene, food, hydration, clothing, routine safety, or obtaining appropriate medical care may constitute custodial neglect even when the custodian is also a licensed health care provider. (Holland v. Silverscreen Healthcare, Inc. (2025) 18 Cal.5th 364, 378-381.) The Court therefore must examine the nature of the particular conduct and damages at issue rather than treating the mere presence of either an elder-abuse claim or a negligence claim as dispositive.

Ruling As to Sun Mar Management Services, Inc., the motion is GRANTED. Sun Mar maintains that it is not a licensed health care provider, did not render health care or direct patient care, and did not participate in Bonita Hills’ day-to-day operations. On the present showing, Sun Mar has not established that it may invoke Civil Code section 3333.1. It may not introduce or refer to Medicare, insurance, or other collateral-source payments without first obtaining leave of Court outside the jury’s presence.

As to La Habra Post Acute, LLC dba Bonita Hills Post Acute, the motion is DEFERRED to the extent Bonita Hills seeks to invoke section 3333.1. Plaintiffs’ categorical contention that the existence of an elder-abuse cause of action forecloses section 3333.1 is incorrect. Conversely, Bonita Hills has not shown that all of the alleged omissions or all resulting damages arise from professional negligence. Plaintiffs’ theories include both paradigmatic custodial functions and matters that may involve professional nursing judgment.

No party may mention Medicare, insurance, write-offs, payments by a third party, or any other collateral-source benefit during voir dire, opening statement, or examination of witnesses unless and until the Court rules that the evidence is admissible. Before offering such evidence, Bonita Hills must make an offer of proof outside the jury’s presence identifying: (1) the particular evidence; (2) the purpose for which it is offered; (3) the professional-negligence theory and damages to which it relates; and (4) why the evidence remains relevant in light of the parties’ reported stipulation that Wilenken’s reasonable and necessary medical expenses total $132,616.06.

If the professional-negligence and custodial-neglect theories remain for determination by the same jury, the Court will also consider whether admission of collateral-source evidence would create an unacceptable risk that the jury would use it in deciding claims or damages to which section 3333.1 does not apply, and whether bifurcation, a limiting instruction, or exclusion under Evidence Code section 352 is appropriate.

This ruling does not preclude evidence necessary to establish the recoverable amount of past medical expenses under Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541. Absent further order, however, evidence relevant to the amount paid or incurred shall not disclose that Medicare or another collateral source made the payment.

Plaintiffs’ Motion in Limine No. 3 is GRANTED IN PART, subject to the parties’ stipulation and the limitations stated below.

Background

Plaintiffs seek to preclude defendants’ medical experts from relating case-specific facts contained in Wilenken’s medical records unless those facts are independently established by competent evidence or fall within a hearsay exception. Plaintiffs rely principally on People v. Sanchez (2016) 63 Cal.4th 665. Defendants respond that the motion is moot because the parties executed a stipulation concerning authentication and admissibility of Wilenken’s medical records that purportedly includes a Sanchez waiver.

The opposition (ROA 399) cites the stipulation as Exhibit 1, but no exhibit is attached to the filed opposition. The filing contains only the opposition and proof of service. The Court therefore cannot determine from the papers the stipulation’s language, scope, or effect.

Governing Law An expert may rely upon otherwise inadmissible matter of a type reasonably relied upon by experts in the field and may state in general terms that the expert did so. (Evid. Code, §§ 801, subd. (b), 802; Sanchez, supra, at p. 685; Dix v. Live Nation Entertainment, Inc. (2020) 56 Cal.App.5th 590.) But an expert ordinarily may not relate as true case-specific facts contained in hearsay statements unless those facts are independently proved by competent evidence or the statements fall within a hearsay exception. (Sanchez, at pp. 676, 684-686.) Sanchez’s hearsay analysis applies in civil cases.

Admission of a medical record under the business-records exception generally permits an expert to discuss admissible observations, diagnoses, test results, treatment, and other case-specific information contained in that record. It does not automatically cure every additional level of hearsay embedded within the record. Each statement offered for its truth must either fall within the parties’ stipulation, qualify under an applicable exception, or be independently established. (Evid. Code, §§ 1200, 1201, 1271; Sanchez, at pp. 674-675.)

Ruling The parties shall lodge the complete executed stipulation before expert testimony begins. To the extent the stipulation expressly admits identified medical records for all purposes and waives Sanchez objections to specified case-specific statements or categories of statements, the motion is denied as moot within the scope of that waiver. A waiver will not be inferred beyond the stipulation’s language.

Outside the scope of the stipulation, defendants’ experts may rely on Wilenken’s medical records in forming their opinions and may identify the records reviewed. They may relate case-specific facts from portions of the records that have been admitted for their truth or that are otherwise supported by admissible evidence. They may not use expert testimony as a vehicle to place before the jury casespecific hearsay that remains inadmissible, nor may they recite another non-testifying provider’s inadmissible opinions merely by characterizing them as a basis for their own opinions.

The same restrictions apply equally to experts called by either side. Nothing in this ruling prevents an expert from testifying to the expert’s own opinions, explaining medical principles and other generally accepted background information, or responding to a properly framed hypothetical based upon facts supported by the evidence.

Plaintiffs’ request to exclude all medical records upon which defendants’ experts did not rely is denied as overbroad. A medical record may be independently relevant and admissible even if a retained expert did not rely upon it. The Court will determine relevance, foundation, hearsay, completeness, and Evidence Code section 352 objections as to particular records or testimony when presented. Counsel shall raise any anticipated dispute outside the jury’s presence before eliciting the challenged statement or publishing the challenged record.

Plaintiffs’ Unopposed Motion in Limine No. 4 is GRANTED, subject to the limitations stated below.

Background

Plaintiffs seek to preclude defendants’ retained medical experts, Irving Posalski, M.D., and Bruce Silver, M.D., from offering opinions concerning the standard of care applicable to Bonita Hills Post Acute and its nursing staff. No opposition was filed.

The motion relies on the experts’ deposition testimony. Dr. Posalski testified that he was not going to give standard-of-care opinions and identified his intended subjects as medical causation, life expectancy, cause of death, and Wilenken’s predispositions. (Posalski depo. 7:1-6.) Dr. Silver testified that his opinions concern causation of harm, injury, and death, and answered “No” when asked whether he would offer nursing-standard-of-care opinions. (Silver depo. 6:4-17.)

Governing Law Expert testimony is admissible only if the witness has special knowledge, skill, experience, training, or education sufficient to qualify the witness on the subject of the testimony, and the opinion is related to a subject beyond common experience and based on matter reasonably relied upon by an expert. (Evid. Code, §§ 720, 801.) A physician is not categorically barred from giving an opinion concerning nursing care; qualification turns on the witness’s demonstrated familiarity with the particular standard at issue. But the standard governing a nurse’s professional conduct is the level of skill, knowledge, and care ordinarily possessed and exercised by members of the nursing profession under similar circumstances. (Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215.)

A retained expert also may be confined to the subject matter and opinions disclosed in deposition. An affirmative representation that the expert has no additional opinions may justify excluding a materially new opinion first offered at trial. (Jones v. Moore (2000) 80 Cal.App.4th 557, 565.)

Ruling Drs. Posalski and Silver shall not testify that Bonita Hills or any nurse met, failed to meet, or breached the nursing standard of care. They shall not opine on the reasonableness of nursing conduct, the adequacy of staffing or nursing supervision, compliance with nursing regulations, or the adequacy of nursing assessments, care plans, charting, monitoring, hygiene, repositioning, nutrition or hydration assistance, catheter care, wound prevention, or other nursing interventions. They may not communicate such an opinion indirectly by characterizing nursing care as “appropriate,” “reasonable,” “adequate,” “proper,” or the converse.

This ruling does not exclude otherwise admissible testimony within either physician’s disclosed medical expertise. Subject to foundation and other objections, the experts may testify concerning diagnosis, disease processes, medical causation, prognosis, life expectancy, cause of death, predisposition, the medical significance of the records, and the medical consequences or likely efficacy of assumed acts or omissions. They may address whether a condition or injury was medically caused, avoidable, inevitable, or affected by the timing of treatment or transfer, and may answer properly framed hypotheticals grounded in evidence. Such testimony must remain a medical opinion and may not be used as a substitute for an opinion that nursing personnel complied with or breached their professional standard of care.

The absence of an opposition does not itself establish the motion’s merits. The motion is granted because the requested limitation is consistent with Evidence Code sections 720 and 801 and with the experts’ express deposition disclosures. If defendants contend that testimony at trial opens the door to a nursing-standard opinion or otherwise requires expansion beyond these limits, counsel shall first seek leave outside the jury’s presence.

Plaintiffs’ Motion in Limine No. 5 is DENIED as to the requested wholesale exclusion and GRANTED IN PART as to the specific limitations stated below.

Background

Plaintiffs seek to exclude all testimony from Dori Green and Michelle Pettay under Evidence Code sections 350 and 352. Plaintiffs emphasize that Pettay never visited Wilenken at Bonita Hills and Green visited only twice during his first admission and did not see him in 2023. Plaintiffs also identify deposition testimony in which Pettay speculated that McCorkle filed this action for money and expressed strong personal hostility toward her.

Defendants respond that both witnesses observed Wilenken before his admissions, Green personally observed him at Bonita Hills, and both have percipient knowledge bearing on Wilenken’s relationship with McCorkle. Defendants argue that the relationship evidence is relevant to McCorkle’s claimed wrongful-death damages for loss of love, companionship, comfort, care, assistance, protection, affection, society, and moral support.

Governing Law Relevant evidence is evidence having any tendency in reason to prove or disprove a disputed fact of consequence, and all relevant evidence is admissible except as otherwise provided by law. (Evid. Code, §§ 210, 350, 351.) A percipient witness may testify only to matters within the witness’s personal knowledge. (Evid. Code, § 702.) Even relevant evidence may be excluded when its probative value is substantially outweighed by the probability of undue consumption of time or a substantial danger of undue prejudice, confusing the issues, or misleading the jury. (Evid. Code, § 352.)

Wrongful-death damages include the pecuniary value of the heir’s lost companionship and related benefits. The nature and quality of the relationship between the decedent and heir therefore bears on damages, and a defendant may rebut the heir’s evidence of an exceptionally close relationship. (Code Civ. Proc., § 377.61; Corder v. Corder (2007) 41 Cal.4th 644, 661-663; Benwell v. Dean (1967) 249 Cal.App.2d 345, 349-350.) That principle does not make every criticism of the heir admissible. Remote or speculative relationship evidence may properly be excluded under Evidence Code section 352, particularly where it invites conjecture or a collateral character trial. (Benwell, at pp. 353-354; Corder, at pp. 662-664.)

Ruling The request to bar Green and Pettay from testifying altogether is denied. Subject to ordinary foundation and other objections, each may testify to firsthand observations of Wilenken’s physical or mental condition before his admissions. Green may also testify to what she personally observed during her two visits to Bonita Hills, including Wilenken’s apparent lucidity or confusion. Neither witness may offer medical diagnoses, expert opinions, or conclusions concerning the adequacy of defendants’ care, causation, or whether Wilenken was “well taken care of.” Pettay may not testify concerning care at Bonita Hills because she did not visit the facility and admitted that she lacks personal knowledge of that care.

The witnesses may testify concisely to their firsthand observations of interactions between Wilenken and McCorkle, the frequency and circumstances under which they personally saw them together, and other nonhearsay facts tending to show the nature and quality of that relationship. This evidence is relevant to wrongful-death damages and is not rendered inadmissible merely because it conflicts with McCorkle’s anticipated testimony that she and her father were best friends.

The motion is granted as to Pettay’s speculation that McCorkle filed this lawsuit after seeing a lawyer advertisement, is seeking to “get money,” is trying to “get one over” on Wilenken, or would leave Wilenken “appalled.” Those assertions lack personal knowledge, do not materially prove the father-daughter relationship before death, and present a substantial risk of unfair prejudice, jury distraction, and a collateral dispute. The witnesses also may not offer generalized character attacks, including that McCorkle is an “awful,” “terrible,” or “not a good” person, or recount collateral personal quarrels merely to disparage her.

Statements attributed to Wilenken remain subject to the hearsay rules. A statement expressing his then-existing feeling, affection, intent, or state of mind may be admissible for a proper noncharacter purpose if Evidence Code section 1250 and section 1252 are satisfied. A statement of memory or belief may not be used to prove the historical fact remembered or believed. Thus, testimony that Wilenken said McCorkle called and asked him for money is not admissible to prove that she did so merely by labeling it relationship evidence. Counsel shall raise anticipated hearsay disputes outside the jury’s presence before eliciting the statement.

The Court will not permit a trial within a trial concerning disputes between McCorkle and the witnesses’ family. Examination shall be focused, noncumulative, and confined to facts bearing materially on Wilenken’s condition, Green’s observations at Bonita Hills, or the nature and quality of the father-daughter relationship. This ruling is without prejudice to impeachment with otherwise admissible evidence if a witness’s testimony opens the door.

Plaintiffs’ Motion in Limine No. 6 is GRANTED IN PART and DENIED IN PART, as stated below.

Background

Plaintiffs seek to preclude defendants’ supplemental expert, economist John Bowblis, Ph.D., from offering opinions concerning Payroll-Based Journal (PBJ) data, resident acuity, and COVID-19. Defendants designated Bowblis to testify concerning staffing, staffing regulations, cost reports, and reports to Medicare after plaintiffs designated Aksel Abramyan, R.N., to offer nursing and staffing opinions. Abramyan relied in part on Bonita Hills’ PBJ data. Plaintiffs deposed Bowblis on August 10, 2026.

Bowblis proposes to criticize Abramyan’s use of PBJ census data, compare that data with Bonita Hills’ internal census and time records, and compare aggregate CMS/MDS acuity and staffing data for Bonita Hills with other Orange County skilled nursing facilities. He also proposes to discuss COVID-19 as a staffing factor. Plaintiffs contend the PBJ data is admittedly inaccurate, Bowblis lacks clinical qualifications to assess acuity, and COVID-19 falls outside the permissible scope of supplemental testimony. Defendants respond that these matters are components of the staffing subject disclosed by Abramyan and that plaintiffs’ objections concern weight, not admissibility.

Governing Law A timely supplemental expert may express an opinion on a subject to be covered by an expert designated by an adverse party if the supplementing party has not previously retained an expert on that subject. (Code Civ. Proc., § 2034.280, subd. (a).) The statute addresses the disclosed subject, not merely the precise conclusions or methodology ultimately chosen by the adverse expert. (Du-All Safety, LLC v. Superior Court (2019) 34 Cal.App.5th 485, 494-498.)

Expert opinion must be within the witness’s demonstrated expertise and based on matter reasonably relied upon by experts in the field. (Evid. Code, §§ 720, 801.) The Court must exclude an opinion based wholly or substantially on an improper matter and may inquire whether the reasoning connects the foundational material to the conclusion. The Court does not, however, choose between competing reasonable methodologies or decide credibility on a motion in limine. (Evid. Code, §§ 802, 803; Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 769-772.)

Ruling The motion is denied as to Bowblis’s supplemental designation. Staffing is a subject disclosed by plaintiffs’ expert. Bowblis’s use of PBJ data, staffing records, aggregate acuity measures, and economic or industry conditions as components of a staffing analysis does not create a new expert subject merely because Abramyan did not employ the same analysis or discuss every component. Plaintiffs received Bowblis’s opinions and bases at deposition. The Court considers the merits despite the motion’s eve-of-trial filing.

The motion is denied as to PBJ testimony. Subject to foundation and other evidentiary objections, Bowblis may explain the uses and limitations of PBJ data, identify an apparent census anomaly, compare PBJ census figures with admitted facility census and time records, describe his calculations, and criticize Abramyan’s staffing analysis. The asserted inconsistency in accepting reported staffing hours while adjusting reported census figures is a proper subject for cross-examination and competing expert testimony. Bowblis shall accurately disclose the assumptions and limitations of his method and may not present adjusted figures as raw PBJ data. Case-specific figures contained in records not admitted for their truth may not be recited to the jury merely because an expert relied on them.

The motion is denied in part and granted in part as to acuity. Bowblis may analyze published aggregate CMS/MDS acuity measures, compare Bonita Hills with identified peer facilities, and opine whether its reported staffing was higher, lower, or generally consistent with comparable facilities. He may not independently diagnose or assess the clinical acuity or care needs of Wilenken or any other resident. Because he reviewed no resident medical records or individual care plans, he also may not opine, based solely on peer comparisons, that Bonita Hills actually had sufficient nursing staff to meet the acuity and diagnoses of its resident population or that it complied with 42 Code of Federal Regulations section 483.35. Consistency with peers is not itself proof of compliance with an individualized acuity-based requirement.

The motion is denied in part and granted in part as to COVID-19. Bowblis may give otherwise admissible economic or industry-context testimony about the pandemic’s general effect on the skilled-nursing labor market during the relevant period and may consider supported facility-specific staffing evidence. He may not testify that COVID-19 excused compliance with a statutory or regulatory staffing minimum, that Bonita Hills possessed a waiver not shown by the evidence, or that COVID-19 caused any particular staffing level or deficiency at Bonita Hills without an adequate facilityspecific basis. He may not offer opinions concerning Wilenken’s COVID status, infection-control protocols, or medical causation.

Counsel shall not elicit a legal conclusion that defendants complied with a statute or regulation. Bowblis may explain applicable quantitative standards and his calculations, but the Court will instruct the jury on the law. Any anticipated dispute concerning a particular opinion beyond these limits shall be raised outside the jury’s presence before the opinion is elicited.

Defendants’ Unopposed Motion in Limine No. 1 is GRANTED, subject to the statutory exceptions and directions stated below.

Background

Defendants request an order excluding nonparty witnesses from the courtroom while they are not testifying so that they cannot hear the testimony of other witnesses. Defendants also request that counsel be prohibited from referring before the jury to the filing or granting of the motion. No opposition was filed.

Governing Law Evidence Code section 777, subdivision (a), permits the Court to exclude from the courtroom a witness who is not then under examination so the witness cannot hear the testimony of other witnesses. A party to the action may not be excluded. If a party is not a natural person, an officer or employee designated by its attorney is entitled to be present. (Evid. Code, § 777, subds. (b), (c).) Whether to sequester witnesses, including experts, otherwise rests within the Court’s discretion.

Sequestration reduces the risk that a witness will consciously or unconsciously conform testimony to evidence already presented. The lack of an opposition does not itself establish entitlement to relief, but the requested sequestration is appropriate here given the overlapping percipient and expert testimony anticipated at trial.

Ruling All witnesses who are not parties shall remain outside the courtroom until called to testify and shall leave the courtroom when excused unless the Court orders otherwise. This order applies to percipient and expert witnesses. It does not exclude Liza McCorkle as a natural-person party. Each entity party may have present the officer or employee designated by its attorney pursuant to Evidence Code section 777, subdivision (c). Counsel shall identify each designated representative on the record before opening statements.

Until released from this order, a sequestered witness shall not obtain the substance of trial testimony indirectly. Counsel shall instruct each witness not to discuss testimony with another witness; read or receive transcripts, summaries, notes, messages, or reports describing testimony; watch or listen to any live or recorded transmission of the proceedings; or review admitted exhibits in a manner intended to disclose another witness’s testimony. This order does not prohibit counsel from preparing a witness, including by discussing evidence and posing hypotheticals, so long as counsel does not disclose the substance of another witness’s trial testimony in a manner that defeats sequestration.

A party seeking an exception for a particular witness, including an expert whose presence is claimed to be necessary to assist counsel, shall request leave outside the jury’s presence before the witness attends other testimony. The Court will decide the request in light of the witness’s proposed role, the reason attendance is asserted to be necessary, and the risk that attendance could affect the witness’s testimony.

Counsel and witnesses shall not refer before the jury to the filing, argument, or granting of this motion, or suggest that sequestration reflects adversely on any witness or party. The order is a routine case-management measure and not evidence. The motion’s inexplicable citation to a “Los Angeles County local rule” and its stray reference to “Paramount Hospital” (ROA 421, page 3, lines 23- 28) are inapplicable to this action and form no basis for the ruling.

Defendants’ Unopposed Motion in Limine No. 2 is GRANTED IN PART, subject to the limitations and procedure stated below.

Background

Defendants seek to prohibit any evidence, reference, innuendo, or implication concerning other lawsuits involving La Habra Post Acute, LLC dba Bonita Hills Post Acute or Sun Mar Management Services, Inc. They argue that other lawsuits consist only of unproven allegations, invite an impermissible propensity inference, and would require time-consuming litigation of collateral matters. No opposition was filed. The motion does not identify any particular lawsuit or evidence plaintiffs may seek to offer.

Governing Law Evidence is admissible only if relevant, and relevant evidence may be excluded when its probative value is substantially outweighed by the probability of undue consumption of time or a substantial danger of undue prejudice, confusing the issues, or misleading the jury. (Evid. Code, §§ 210, 350, 351, 352.) Evidence that a party was accused in another lawsuit ordinarily does not prove the truth of the accusation or that the party acted similarly here. Use of prior claims merely to suggest a propensity for negligence or misconduct presents substantial risks of prejudice and collateral litigation. (Downing v. Barrett Mobile Home Transport, Inc. (1974) 38 Cal.App.3d 519, 524.)

The rule is not categorical. Evidence concerning other incidents may be admissible for a proper nonpropensity purpose, such as notice, knowledge, the existence of a condition, causation, bias, impeachment, or another disputed issue, if the proponent establishes an adequate foundation, including substantial similarity where required. (Evid. Code, § 1101, subd. (b).) The admissibility analysis depends on the particular evidence, purpose, and context.

Ruling Plaintiffs, their counsel, and their witnesses shall not mention before prospective or sworn jurors the existence, number, allegations, claims, filings, settlements, verdicts, or outcomes of other lawsuits involving either Defendant without first obtaining leave of Court outside the jury’s presence. Such matters may not be used to suggest that defendants have a litigious history, acted in conformity with accusations made elsewhere, or are negligent, abusive, reckless, or otherwise liable in this action because they have previously been sued.

The motion is denied to the extent it seeks an advance categorical ruling that no evidence connected to another lawsuit can be admissible for any purpose. If plaintiffs contend particular evidence is relevant to notice, knowledge, a substantially similar incident, corporate policy or practice, impeachment, bias, a prior inconsistent position, or another permissible issue, they shall make an offer of proof outside the jury’s presence. The offer shall identify the evidence, the nonpropensity purpose, the factual similarity and temporal proximity, any hearsay exception or nonhearsay use, and why the probative value is not substantially outweighed under Evidence Code section 352.

A complaint or other pleading from another action is not evidence that its allegations are true. Settlement negotiations and compromise evidence remain subject to Evidence Code section 1152 and other applicable law. Nothing in this order prevents use of otherwise admissible testimony or documents merely because they were also involved in another proceeding, provided the proponent does not disclose the other lawsuit without prior approval.

Counsel and witnesses shall not refer before the jury to the filing, argument, or disposition of this motion. If testimony unexpectedly opens the door to evidence implicating another lawsuit, counsel shall request a sidebar before pursuing the subject.

Defendants’ Motion in Limine No. 3 is GRANTED IN PART and DENIED IN PART, as stated below.

Background

Defendants seek to preclude any mention during voir dire of a specific dollar amount of damages. They argue that disclosing a damages figure would precondition prospective jurors. Plaintiffs oppose, contending that voir dire must permit inquiry into bias against noneconomic damages and the ability to return a substantial award if supported by the evidence and law. Plaintiffs propose questions ranging from whether a juror could award “millions of dollars” to whether a juror could return a verdict for “$1 million.”

Governing Law After the Court’s initial examination, counsel may directly question prospective jurors to permit the intelligent exercise of challenges. The Court must permit liberal and probing examination calculated to discover bias or prejudice, subject to reasonable limits in the Court’s sound discretion. A question is improper when its dominant purpose is to precondition prospective jurors to a particular result, indoctrinate them, or question them concerning the pleadings or applicable law. (Code Civ. Proc., § 222.5, subds. (b)(1), (b)(3); Cal. Rules of Court, rule 3.1540(c).)

A prospective juror’s attitude toward substantial damages may be a proper subject of bias inquiry. Jurors may be informed of the damages a plaintiff seeks, and limited questioning about a large demand is not necessarily improper preconditioning. At the same time, the trial court retains discretion over the form and extent of that inquiry and may prevent questions that seek a commitment or become argument. (Fernandez v. Jimenez (2019) 40 Cal.App.5th 482, 492-494.)

Ruling The motion is granted to the following extent: counsel shall not state a specific damages figure, present a concrete numerical range, or ask a prospective juror to commit to awarding or rejecting a particular sum during voir dire without first obtaining leave of Court outside the prospective jurors’ presence. Thus, counsel may not ask whether a juror could return a verdict for “$1 million,” identify the amount counsel expects to request in closing, or use a number to secure a promise concerning the verdict.

The motion is otherwise denied. Plaintiffs may neutrally inquire whether prospective jurors hold beliefs that would prevent them from awarding noneconomic damages, substantial damages, or damages in the millions of dollars if the evidence and the Court’s instructions support such an award. Defendants may similarly inquire whether prospective jurors could award no damages if the evidence and instructions require that result. Questions must be directed to bias and ability to follow the law; they may not assume disputed facts, argue the case, solicit a commitment, or suggest that any amount is presently established.

If a prospective juror’s response creates a need for follow-up using a more definite amount, counsel shall request permission before posing the question. Any permitted inquiry shall make clear that counsel’s request is not evidence, no amount has been determined, and the jury must decide damages solely from the evidence and the Court’s instructions. Counsel shall not refer before prospective or sworn jurors to the filing, argument, or disposition of this motion. This order governs voir dire only and does not decide what damages argument may be made after the close of evidence.

Defendants’ Motion in Limine No. 4 is GRANTED IN PART and DENIED IN PART, as stated below.

Background

Defendants seek to preclude lay witnesses from offering medical opinions. They identify deposition testimony in which plaintiff Liza McCorkle questioned the causes of death recorded on Robert Wilenken’s death certificate despite disclaiming personal knowledge that he had congestive heart failure or coronary artery disease. Plaintiffs oppose, arguing that family members must remain free to describe what they perceived, explain why they acted, and testify concerning promises or representations made during Wilenken’s residency. Plaintiffs also suggest that some family members possess medical training or experience, but identify no particular witness, opinion, or expert designation.

Governing Law A nonexpert witness may give an opinion only when it is rationally based on the witness’s perception and helpful to a clear understanding of the witness’s testimony. (Evid. Code, § 800.) Opinion on a subject sufficiently beyond common experience to assist the trier of fact requires expert qualification and an adequate basis. (Evid. Code, §§ 720, 801, 803.) Medical diagnosis, prognosis, professional standard of care, and medical causation ordinarily fall outside permissible lay opinion. (Jambazian v. Borden (1994) 25 Cal.App.4th 836, 849.)

These limits do not prevent a percipient witness from describing firsthand observations of a person’s appearance, conduct, symptoms, complaints, pain, mobility, alertness, eating, hydration, hygiene, wounds, or changes over time. Nor do they categorically prevent testimony concerning statements heard, communications made, actions taken, or the witness’s own state of mind, subject to relevance, hearsay, foundation, and other objections. A witness’s professional background does not, by itself, authorize undisclosed expert opinions at trial. (Code Civ. Proc., §§ 2034.210, 2034.260, 2034.300.)

Ruling The motion is granted to the extent that no witness testifying solely as a lay or percipient witness may offer an opinion concerning Wilenken’s medical diagnosis or prognosis; the medical cause or mechanism of any injury, deterioration, or death; the accuracy of a medical diagnosis or cause of death stated in a medical record or death certificate; whether particular care caused or contributed to an injury or death; whether defendants complied with a professional medical or nursing standard of care; or any other matter requiring specialized medical knowledge.

Accordingly, McCorkle may testify that she lacked personal knowledge that her father had congestive heart failure or coronary artery disease and may describe the facts she personally observed. She may not testify, based only on that lack of knowledge or her personal belief, that the death certificate is medically inaccurate or that another condition or act caused Wilenken’s death.

The motion is denied to the extent it seeks to exclude admissible percipient testimony. Family members and other lay witnesses may describe what they personally saw, heard, and did; Wilenken’s observable condition and changes in that condition; complaints or statements, subject to hearsay objections; communications with facility personnel; and their own reasons for acting or not acting, when relevant. They may use ordinary descriptive language and draw common-experience inferences that satisfy Evidence Code section 800, but counsel shall not use such testimony as a conduit for a medical opinion.

If Plaintiffs seek an opinion from a family member or other witness based on medical training, professional experience, or specialized knowledge, they shall first establish outside the jury’s presence that the witness may properly offer the opinion, that applicable expertdisclosure requirements were satisfied, and that the proposed opinion is within the witness’s qualifications and disclosed scope. This order does not determine the admissibility of testimony from a properly designated expert or a treating healthcare provider whose opinions were formed in the course of treatment.

Counsel shall advise their witnesses of these limits and shall request a sidebar before eliciting testimony that may cross from observation into medical opinion. Counsel and witnesses shall not refer before the jury to the filing, argument, or disposition of this motion.

Defendants’ Motion in Limine No. 5 is GRANTED IN PART and DENIED IN PART, as stated below.

Background

Defendants seek to limit expert testimony to opinions concerning the applicable standard of care and to exclude any “personal criticisms,” opinions about what an expert personally would have done, or opinions that defendants acted unethically. They also seek exclusion of opinions based on speculation, conjecture, or unsupported assumptions. Defendants identify no particular expert, deposition answer, proposed opinion, or evidentiary basis for a challenged opinion. Plaintiffs oppose, arguing that their experts may be qualified to address subjects other than standard of care and that “personal criticisms” is undefined.

Governing Law Expert opinion is admissible when it concerns a subject sufficiently beyond common experience that the opinion would assist the trier of fact and is based on matter reasonably relied upon by an expert in forming an opinion on that subject. (Evid. Code, § 801.) The expert must be qualified on the particular subject, and the opinion must remain within the scope of the expert’s disclosed testimony. (Evid. Code, § 720; Code Civ. Proc., §§ 2034.260, 2034.300.)

An expert does not have carte blanche to offer every opinion within a general field of expertise. An opinion founded on unsupported assumptions, speculation, or conjecture, or stated as a conclusion without a reasoned explanation connecting the facts to the opinion, has no evidentiary value and may be excluded. (Evid. Code, §§ 802, 803; Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117-1118; Sargon, supra, at pp. 770-772.) An expert also may not relate case-specific hearsay as true unless independently proven or covered by a hearsay exception. (Sanchez, supra, at p. 686.)

Ruling The motion is denied insofar as it seeks to confine all expert testimony to whether defendants breached a professional standard of care. Depending on the witness’s qualifications, disclosed opinions, foundation, and the evidence admitted at trial, expert testimony may assist the jury on other disputed subjects, including medical causation, injury, damages, staffing and operational practices, regulatory requirements, the significance of medical records, and issues bearing on knowledge, recklessness, or ratification. The Court cannot determine admissibility merely by labeling an opinion a “criticism.”

The motion is granted to the following limited extent. An expert may not offer a personal attack, characterize a party or witness as unethical, dishonest, greedy, uncaring, or otherwise morally blameworthy, or state merely what the expert personally would have done, unless the proponent first establishes outside the jury’s presence that the particular opinion is relevant to a disputed issue, within the expert’s qualifications and disclosed scope, based on an identified objective standard or other proper foundation, and not substantially outweighed by the dangers identified in Evidence Code section 352. An expert’s personal preference or practice, standing alone, does not establish the governing standard of care.

All expert opinions must be supported by facts shown by the evidence or by matter on which the expert may properly rely, and must include a reasoned explanation connecting the factual predicates to the conclusion. An expert may consider otherwise inadmissible material under Evidence Code section 801, subdivision (b), but may not use the witness stand to place inadmissible casespecific hearsay before the jury for its truth. The Court will address foundation, speculation, hearsay, and scope objections in the context of the actual question and testimony.

Before eliciting an opinion that arguably constitutes an ethical judgment, a personal-practice comparison, or criticism untethered to an identified legal, regulatory, professional, or operational standard, counsel shall request a sidebar. Counsel and witnesses shall not refer before the jury to the filing, argument, or disposition of this motion.

Defendants’ Unopposed Motion in Limine No. 6 is GRANTED IN PART and DENIED IN PART, as stated below.

Background

Defendants seek to preclude Plaintiffs’ experts and other witnesses from offering legal conclusions or opinions based on unsubstantiated, speculative, conjectural, or inadmissible hearsay. They specifically ask the Court to bar opinions that Defendants committed elder abuse or statutory neglect, acted with malice, fraud, or oppression, caused Wilenken pain and suffering, or caused his death. No opposition was filed. Defendants identify no particular expert testimony beyond these anticipated categories.

Governing Law Expert opinion is not objectionable merely because it embraces an ultimate issue. (Evid. Code, § 805.) But an expert may not instruct the jury on the law, define statutory terms for the jury, or apply a legal standard to the facts when doing so would merely tell the jury how to decide the case. The Court determines the governing law; the jury applies that law to the facts. (Summers, supra, at pp. 1178- 1183.)

A properly qualified expert may explain professional standards, regulatory requirements within the expert’s field, departures from those standards, medical causation, injury, prognosis, and other specialized matters that assist the jury. The opinion must rest on a proper basis and may not be speculative, conjectural, or conclusory. (Evid. Code, §§ 720, 801-803; Jennings, supra.) Although an expert may consider otherwise inadmissible matter of a type reasonably relied upon in the field, the expert may not relate case-specific hearsay as true unless independently proven or subject to a hearsay exception. (Sanchez, supra, at p. 686.)

Ruling The motion is granted to the extent that no expert or other witness may opine that Defendants committed “elder abuse” or “neglect” as those terms are legally defined under the Elder Abuse and Dependent Adult Civil Protection Act; that Defendants acted with “malice,” “fraud,” or “oppression” within the meaning of Civil Code section 3294; that the statutory elements of recklessness, authorization, or ratification have been proved; or that a party is legally liable. Witnesses also may not instruct the jury on the meaning of statutes, regulations, jury instructions, burdens of proof, or other governing law.

This limitation does not prevent a qualified expert from identifying acts or omissions, explaining the applicable medical, nursing, regulatory, or operational standard, stating whether conduct departed from that standard, or describing why the conduct created a risk of harm. Nor does it prevent properly founded testimony concerning staffing, policies, regulatory compliance, corporate practices, knowledge, injury, or facts bearing on recklessness or ratification. Counsel shall frame questions to elicit the expert’s specialized factual and professional analysis rather than a verdict expressed in statutory language.

The motion is denied as to medical causation. Subject to qualification, disclosed scope, and adequate foundation, an expert may opine whether particular acts or omissions caused or contributed to Wilenken’s pain, injury, deterioration, or death, and may explain the medical reasoning supporting that opinion. Such testimony does not become an impermissible legal conclusion merely because causation is an ultimate issue. Lay witnesses remain limited to permissible percipient testimony consistent with the Court’s ruling on Defendants’ Motion in Limine No.

4.

No witness may offer an opinion based on unsupported assumptions, speculation, or conjecture, or communicate inadmissible case-specific hearsay to the jury for its truth. The Court will rule on foundation and hearsay objections in the context of the testimony. Counsel shall request a sidebar before eliciting an opinion that uses the statutory terms identified above or otherwise may constitute a legal conclusion.

Counsel shall advise their witnesses of these limits. Counsel and witnesses shall not refer before the jury to the filing, argument, or disposition of this motion.

Defendants’ Unopposed Motion in Limine No. 7 is GRANTED, subject to the limitations stated below.

Background

Defendants seek to preclude Plaintiffs, their counsel, and their experts from defining malice, oppression, or fraud, or offering an opinion that Defendants’ conduct satisfies those standards under Civil Code section 3294. Defendants argue that the statutory standards are for the Court to instruct upon and for the jury to apply. No opposition was filed.

Governing Law Civil Code section 3294 permits punitive damages upon clear and convincing proof of oppression, fraud, or malice and supplies the controlling definitions. For a corporate employer, subdivision (b) separately requires proof involving an officer, director, or managing agent. The Court instructs the jury on those legal standards, and the jury determines whether the evidence satisfies them.

Expert opinion is not inadmissible merely because it embraces an ultimate issue. (Evid. Code, § 805.) An expert nevertheless may not instruct the jury on the law, substitute a personal definition for a statutory term, or apply a legal standard to the facts in a manner that merely tells the jury how to decide the issue. (Summers, supra; Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 865.) Proper expert testimony may address specialized underlying matters that assist the jury in making its own determination.

Ruling Plaintiffs, their counsel, and their witnesses shall not offer or solicit an expert or lay opinion that any Defendant acted with ‘malice,’ ‘oppression,’ or ‘fraud’ as those terms are defined by Civil Code section 3294. A witness may not define those terms, interpret section 3294, opine that its elements have or have not been established, or state that punitive damages should or should not be awarded. A witness likewise may not opine that the requirements of section 3294, subdivision (b), including managing-agent status, advance knowledge, authorization, or ratification, have been legally satisfied.

The order does not exclude otherwise admissible evidence or expert opinion concerning the underlying facts. Subject to qualification, disclosed scope, foundation, and other evidentiary rules, a witness may testify concerning professional standards and departures; staffing, policies, practices, and regulatory compliance; what information was known and by whom; the nature and duration of the conduct; the risks created; responses to complaints or known hazards; and acts or omissions bearing on conscious disregard, authorization, ratification, or corporate responsibility.

A properly qualified expert may explain the specialized significance of those facts without expressing the ultimate statutory conclusion. Counsel may argue reasonable inferences from the admitted evidence and, if punitive-damages issues are submitted to the jury, may argue that the evidence does or does not satisfy the Court’s instructions. Counsel shall not ask a witness to supply that legal conclusion. If a question or anticipated answer approaches the statutory terms, counsel shall request a sidebar before proceeding.

This ruling is consistent with, and does not expand, the Court’s ruling on Defendants’ Motion in Limine No.

6. Counsel shall advise their witnesses of these limitations. Counsel and witnesses shall not refer before the jury to the filing, argument, or disposition of this motion.

Defendants’ Motion in Limine No. 8 is GRANTED IN PART and DENIED IN PART, as stated below.

Background

Defendants seek to limit Plaintiffs’ experts at trial to the opinions, facts, and materials disclosed during their depositions. They contend any later expansion would defeat the expert-discovery statutes and impair preparation for cross-examination and rebuttal. Plaintiffs oppose, arguing that an expert is not categorically restricted to the precise testimony volunteered at deposition and that the deposing party bears responsibility to inquire into relevant opinion areas. Neither side identifies a particular proposed opinion or deposition exchange requiring a present witness-specific ruling.

Governing Law The expert-discovery scheme requires disclosure of the general substance of expected expert testimony and requires a retained expert to be sufficiently familiar with the case to submit to a meaningful deposition concerning the specific testimony, opinions, and bases expected at trial. (Code Civ. Proc., § 2034.260, subd. (c)(2), (4).) Its purpose is fair notice permitting the opposing party to investigate, cross-examine, and prepare rebuttal. (Bonds v. Roy (1999) 20 Cal.4th 140, 146-147; Kennemur v.

State of California (1982) 133 Cal.App.3d 907, 919.) An expert may be excluded from offering an opinion on a wholly undisclosed subject, particularly when the expert was asked and affirmatively disclaimed the opinion or stated that all opinions had been given, and the opponent had no fair opportunity to depose the expert or prepare rebuttal. (Bonds, supra, at pp. 143, 146-149; Jones, supra, at pp. 564-565.) But the deposition is not a verbatim script. If the deposing party did not inquire into an adequately disclosed subject, or if reasonable notice of a changed or additional opinion permitted a fair opportunity for supplemental discovery and preparation, exclusion is not automatic.

The inquiry centers on notice, opportunity, and prejudice. (Kennemur, supra, 133 Cal.App.3d at p. 919.)

Ruling Plaintiffs may not elicit from an expert a materially new opinion or an opinion on a wholly undisclosed subject when the expert was fairly asked at deposition for opinions on that subject and disclaimed having one, represented that all opinions had been disclosed, or otherwise deprived Defendants of reasonable notice and a meaningful opportunity to prepare cross-examination and rebuttal. Plaintiffs likewise may not base a trial opinion on material deliberately withheld despite a proper request when doing so would create unfair surprise or prejudice.

The motion is denied insofar as it seeks to freeze each expert to the precise words, examples, facts, or supporting explanations stated at deposition. Within a properly disclosed opinion area, an expert may explain, clarify, illustrate, or defend an opinion; respond to crossexamination or a proper hypothetical; account for evidence admitted at trial; and provide nonmaterial elaboration that does not alter the substance of the disclosed opinion. Failure to volunteer an opinion does not establish concealment where the expert was not fairly asked and the designation otherwise gave reasonable notice of the subject.

A changed or additional opinion timely disclosed before trial is not automatically excluded. The Court will consider the timing and completeness of notice, whether the opponent had a reasonable opportunity to take a supplemental deposition or obtain rebuttal, the reason for the change, the materiality of the opinion, and resulting prejudice. A change that merely affects credibility may be explored through deposition impeachment; a change that creates unfair surprise may be excluded or addressed through another appropriate remedy.

Counsel shall not mention a disputed new opinion before the jury. If Defendants contend a question will elicit an undisclosed or materially changed opinion, counsel shall request a sidebar and identify the deposition testimony, expert declaration, discovery response, or notice on which the objection rests. Plaintiffs shall then make an offer of proof identifying the opinion, its basis, prior disclosure, and any notice or opportunity for supplemental discovery. The Court will rule in context.

This order applies reciprocally to all retained experts. Counsel shall advise their witnesses of these limitations and shall not refer before the jury to the filing, argument, or disposition of this motion.

Defendants’ Unopposed Motion in Limine No. 9 is GRANTED, subject to the limitations and procedure stated below.

Background

Defendants seek to preclude any reference before the jury to the existence or nonexistence of liability insurance. They report that Plaintiffs stated during the parties’ meet and confer that they generally had no issue with the requested exclusion, but reserved the qualification, “unless the door is opened.” No opposition was filed.

Governing Law Evidence that a person was insured against loss arising from liability for the harm at issue is inadmissible to prove negligence or other wrongdoing. (Evid. Code, § 1155.) The rule guards against a verdict influenced by the perceived availability or absence of insurance rather than the evidence bearing on the claims and defenses. An effort to inject insurance by question, suggestion, or argument may be improper and prejudicial. (Neumann v. Bishop (1976) 59 Cal.App.3d 451, 469-470.)

Section 1155 does not make insurance evidence inadmissible for every conceivable purpose. If offered on a genuinely disputed issue other than negligence or wrongdoing – such as agency, ownership or control, or a witness’s bias or interest – the evidence remains subject to relevance, foundation, and Evidence Code section 352. Any permissible purpose must be considered outside the jury’s presence before insurance is disclosed.

Ruling No party, attorney, or witness shall mention, display, imply, solicit, or argue before prospective or sworn jurors that any party was or was not covered by liability insurance. This prohibition includes the identity of an insurer; policy terms or limits; coverage or reservation-of-rights disputes; defense or indemnity obligations; premiums; insurance payments or proceeds; and whether an insurer selected, retained, or paid counsel or any witness. Liability insurance or its absence may not be used to prove fault, wrongdoing, ability to pay, or the amount of damages.

The phrase “opening the door” is not self-executing. If a party contends that testimony or argument has made insurance evidence admissible for an independent purpose, counsel shall request a sidebar before mentioning insurance. Outside the jury’s presence, counsel shall identify the proposed evidence, the precise noncharacter purpose for which it is offered, its relevance to a disputed issue, and why that probative value is not substantially outweighed by the risks identified in Evidence Code section 352. Counsel shall also address whether the point can be made through a stipulation, redaction, or other less prejudicial evidence. An inadvertent or ambiguous reference does not itself authorize a responsive insurance reference.

This order does not prohibit otherwise admissible evidence merely because an insurer participated in obtaining it, provided that participation and any resulting inference of insurance are not revealed to the jury. If a party seeks to show that a witness’s employment, compensation, or relationship with an insurer demonstrates bias or interest, the party must first obtain leave under the procedure above.

The order applies reciprocally to all parties and to both the existence and absence of liability insurance. It addresses liability insurance only; evidence concerning health insurance, public benefits, or other collateral sources remains governed by the Court’s other rulings and applicable law. Counsel shall advise their witnesses of these limitations and shall not refer before the jury to the filing, argument, or disposition of this motion.

Defendants’ Motion in Limine No. 10 is DENIED without prejudice, subject to the procedure stated below.

Background

Defendants seek a blanket order excluding all evidence not furnished, and all witnesses not produced or identified, in response to discovery. They contend that any evidence or witness not previously disclosed would create unfair surprise and undue prejudice. The motion does not identify a particular witness, item of evidence, discovery request, response, or alleged discovery violation.

Plaintiffs oppose the motion as overbroad. They contend that, except for responses to requests for admission, discovery responses are not conclusive judicial admissions and may be explained or contradicted. They further argue that Defendants have supplied no competent factual foundation permitting the Court to evaluate any asserted nondisclosure or claimed prejudice.

Governing Law A motion in limine must identify the evidence sought to be excluded and provide a factual foundation that permits an informed ruling. A court should not issue an advance, categorical exclusion when the motion asks it to rule in a factual vacuum and the evidence’s relevance, purpose, and potential prejudice depend on the context in which it is offered. (Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 670–671.)

With the exception of matters conclusively established by admissions under Code of Civil Procedure section 2033.410, a party’s interrogatory or deposition responses ordinarily are evidentiary admissions, not binding judicial admissions. They may be used for impeachment or as substantive evidence, but the responding party generally may explain or contradict them. (Mason v. Marriage & Family Center (1991) 228 Cal.App.3d 537, 546; Code Civ. Proc., § 2025.620.) Thus, a difference between trial testimony and a discovery response does not, standing alone, make the trial testimony inadmissible.

A court nevertheless may exclude evidence or testimony as a discovery sanction when authorized by the Civil Discovery Act. (Code Civ. Proc., § 2023.030, subd. (c).) Exclusion may be appropriate where a party willfully conceals a witness or evidence in response to discovery and then attempts to present it at trial. (Campain v. Safeway Stores, Inc. (1972) 29 Cal.App.3d 362, 366– 367.) Whether exclusion is warranted depends on the particular request and response, the nature and circumstances of the nondisclosure, the resulting prejudice, and whether a lesser remedy can cure that prejudice. The sanction must be tailored to the discovery misuse and may not operate merely as punishment. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793.)

Ruling The requested blanket exclusion is denied. Defendants have not identified any particular witness or evidence allegedly withheld, the discovery request that required its disclosure, the response asserted to be incomplete or false, or facts showing willful concealment and resulting prejudice. The Court therefore cannot determine whether a discovery violation occurred or whether exclusion, impeachment, a continuance, reopening discovery, an instruction, monetary sanctions, or no remedy would be appropriate.

This ruling does not authorize either side to withhold discoverable witnesses, documents, opinions, damages computations, or other information and later present them by surprise at trial. Nor does it prevent the use of a discovery response as an evidentiary admission or for impeachment, or enforcement of a matter conclusively established by a response to a request for admission.

If Plaintiffs offer a witness, exhibit, opinion, damages theory, or other evidence that Defendants contend was improperly withheld, Defendants shall object and request a hearing outside the jury’s presence before revealing the alleged discovery violation to the jury. Defendants shall identify the precise evidence challenged; the pertinent discovery request, response, supplementation, deposition testimony, disclosure obligation, or discovery order; when and how the nondisclosure became known; and the prejudice that cannot be cured through cross-examination or a lesser remedy. Plaintiffs shall be permitted to address whether disclosure was required, whether the information was otherwise made known during discovery, whether any omission was willful, and what remedy, if any, is proportionate.

No party may argue or suggest to the jury that an opponent engaged in discovery abuse, concealed evidence, violated a discovery obligation, or attempted a ‘trial by ambush’ unless the Court first authorizes that line of inquiry or argument outside the jury’s presence. Counsel shall advise their witnesses of this limitation and shall not refer before the jury to the filing, argument, or disposition of this motion.

Defendants’ Motion in Limine No. 11 is GRANTED IN PART and DENIED IN PART, subject to the procedures stated below.

Background

Defendants request an order requiring each party to identify, at least 24 hours in advance, each witness it intends to call and each document it intends to use in examining a witness or offer into evidence. Defendants also ask that counsel refrain from referring to any document before the opposing party has had an opportunity to request an admissibility hearing outside the jury’s presence. They contend advance disclosure will reduce surprise, permit meaningful preparation, and promote an orderly trial involving numerous witnesses and voluminous records.

Plaintiffs agree, as a courtesy, to identify the witnesses they expect to call the following trial day and to provide the pages of voluminous exhibits proposed for use with a witness. They oppose a categorical requirement to identify every exhibit 24 hours in advance, emphasizing that the parties already possess one another’s exhibits, the complete records will be lodged electronically, and the parties have stipulated to the authenticity and admissibility of relevant records.

Governing Law The Court has authority to regulate the order of proof and the mode and sequence in which evidence is presented. (Evid. Code, §§ 320, 765, subd. (a).) It also may control proceedings to promote the orderly and expeditious conduct of trial and to prevent undue consumption of time, confusion, and unfair prejudice. (Code Civ. Proc., § 128, subd. (a)(3), (5); Evid. Code, § 352.) Evidence Code section 320 codifies the Court’s inherent authority to regulate the order of proof.

These authorities permit reasonable advance-notice procedures tailored to the needs of the trial. They do not require the Court to adjudicate every conceivable evidentiary issue before a document is mentioned, nor do they prevent a party from responding to developments at trial with proper impeachment, rebuttal, or previously unforeseen evidence. Authenticity and admissibility also remain distinct from the manner in which a voluminous record will be presented; a stipulation admitting relevant records does not eliminate the need to identify the particular portions counsel intends to publish or use with a witness.

Ruling The motion is granted as to advance identification of witnesses. By the conclusion of each trial day, each party shall identify the witnesses it then reasonably expects to call on the next trial day, in the anticipated order of appearance. If a party expects to call a witness whom another party is arranging to produce, counsel shall provide as much additional notice as reasonably practicable. The disclosure is a good-faith forecast, not an irrevocable election. Counsel shall promptly advise the Court and opposing counsel if circumstances require a change in order, an added witness, or the omission of a previously identified witness.

The motion is granted in modified form as to documents. By the conclusion of each trial day, each party shall identify the exhibits, and for any voluminous exhibit the particular pages or reasonably identifiable portions, that it then reasonably expects to display, publish, use in examining a witness, or offer into evidence on the next trial day. The complete exhibit need not be printed merely because selected pages will be used, provided the complete exhibit has been exchanged and is available to the Court and all parties in the agreed electronic format. Any demonstrative or marked excerpt shown to the jury must accurately reproduce the admitted or otherwise permissible source material and must comply with the Court’s other exhibit procedures.

The advance-notice requirement does not apply to material used solely for good-faith impeachment or rebuttal when its need could not reasonably have been anticipated. It also does not bar a party from using a different portion of a disclosed exhibit when testimony or another development at trial reasonably makes that portion relevant. In either circumstance, counsel shall give notice promptly and, if the opposing party claims surprise or prejudice, request a hearing outside the jury’s presence before displaying the material to the jury.

The motion is denied to the extent it seeks a blanket rule prohibiting any reference to every document until the Court has first conducted an admissibility hearing. The parties’ stipulations and the Court’s other evidentiary rulings govern documents already admitted or agreed admissible. For any disputed document or disputed portion, counsel shall raise a specific objection before displaying or describing the challenged material to the jury when the basis for the objection can reasonably be anticipated. Counsel need not obtain a separate advance ruling merely to ask a foundational question or to use a document whose admissibility is not genuinely disputed.

These requirements apply reciprocally to all parties. Counsel shall confer in good faith concerning daily witness and exhibit disclosures, shall raise foreseeable disputes promptly outside the jury’s presence, and shall not refer before the jury to the filing, argument, or disposition of this motion.

Defendants’ Unopposed Motion in Limine No. 12 is GRANTED, subject to the limitations stated below.

Background

Defendants seek to preclude Plaintiffs, their counsel, and their witnesses from asking jurors to place themselves in Plaintiffs’ position, to value damages according to what they personally would demand to endure the same injuries, to consider the “public good,” or to make any other “Golden Rule” argument. Defendants contend such appeals invite jurors to abandon impartial evaluation of the evidence and decide the case through personal interest, sympathy, or a desire to protect the public. No opposition was filed.

Governing Law A “Golden Rule” argument asks jurors to place themselves in the plaintiff’s position or to determine what compensation they personally would demand for equivalent pain or injury. Such argument is improper because it substitutes the jurors’ subjective self-interest for an impartial assessment of the evidence. (Beagle v. Vasold (1966) 65 Cal.2d 166, 182, fn. 11; Loth v. Truck-A-Way Corp. (1998) 60 Cal.App.4th 757, 764–765.) The objection is not to advocacy about the plaintiff’s proven experience; it is to asking jurors to become personal participants in the injury or valuation exercise.

Counsel may discuss the nature, duration, and consequences of a plaintiff’s proven injuries and may argue reasonable compensation for noneconomic harm. California prescribes no fixed formula for valuing pain and suffering, and the jury must rely on its collective judgment and common sense. (Beagle, supra, 65 Cal.2d at p. 172; Loth, supra, 60 Cal.App.4th at p. 764.) But counsel may not ask what price jurors would charge to undergo the injury, suggest that jurors imagine the injury happening to themselves or someone close to them, or otherwise invite an award based on personal identification rather than the plaintiff-specific evidence.

An appeal to protect the community, send a message, or advance the public good also may be improper when used to divert the jury from the elements, the evidence, and the compensatory task before it, or to invite punishment without a lawful punitive-damages basis. (See Neumann, supra, at pp. 484–485; Evid. Code, § 352.) That principle does not bar counsel from discussing admissible evidence concerning applicable safety duties, regulatory standards, the purposes of a statute when relevant to an issue the jury must decide, or the deterrent function of punitive damages if a punitive-damages claim is properly submitted. The line is between argument tied to the governing law and evidence and an appeal to jurors’ personal fears, self-protection, or generalized community sentiment.

Ruling No party, attorney, or witness shall ask prospective or sworn jurors to place themselves in the position of Robert Wilenken, Liza McCorkle, any other party, or any family member; imagine personally experiencing the alleged neglect, injury, pain, disability, loss, or death; determine what sum they would demand to endure the same experience; or value damages according to what they would want for themselves or someone close to them.

Counsel also shall not ask jurors to decide the case to protect themselves, their families, other nursing-facility residents, or the community; to act as the ‘conscience of the community’; to ‘send a message’; to make the community safer; or to serve a generalized public good, except to the extent a particular argument is authorized by the governing law on an issue actually submitted to the jury. Counsel may not use voir dire, questions, hypotheticals, demonstratives, witness examinations, or closing argument to accomplish indirectly what this order prohibits directly.

This order does not preclude Plaintiffs from presenting admissible evidence of Robert Wilenken’s actual condition, pain, suffering, disability, loss of enjoyment of life, or other recoverable harm, or from arguing reasonable compensation based on that evidence and the Court’s instructions. Counsel may ask jurors to use their judgment, experience, and common sense in evaluating the evidence. Counsel also may discuss duties intended to protect skilled-nursing-facility residents, applicable statutes or regulations, and evidence of Defendants’ practices when those matters are relevant to an element, defense, or properly submitted claim. Such argument must remain tied to the evidence and instructions and may not be converted into a personal appeal to jurors’ fears or selfinterest.

If a party contends that a proposed argument concerning community safety, deterrence, statutory purpose, or public protection is permissible in light of the claims and evidence actually submitted, counsel shall request a sidebar before making the argument. The party shall identify the precise argument, the issue to which it relates, and the evidence and instruction supporting it. No party may treat an arguable violation of this order as permission to respond in kind without first obtaining a ruling outside the jury’s presence. The order applies reciprocally to all parties. Counsel shall advise their witnesses of these limitations and shall not refer before the jury to the filing, argument, or disposition of this motion.

Defendants’ Unopposed Motion in Limine No. 13 is GRANTED, subject to the limitations stated below.

Background

Defendants seek to preclude Plaintiffs, their counsel, and their witnesses from employing so-called ‘Reptile Theory’ questions or arguments. More specifically, Defendants ask the Court to bar suggestions that jurors should protect themselves, their families, patients, or the community; use the verdict to promote public or patient safety; substitute a generalized community-safety rule for the legally applicable standard of care; or ‘send a message’ about the skilled-nursing care acceptable in the community. Defendants contend these tactics appeal to jurors’ fear and self-interest rather than the evidence and instructions. No opposition was filed.

Governing Law Counsel may not appeal to jurors’ personal self-interest or urge them to view the case from a personal rather than impartial perspective. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 796.) Nor may counsel pander to prejudice, passion, or sympathy or ask the jury to decide the case for an extraneous public purpose. (Regalado v. Callaghan (2016) 3 Cal.App.5th 582, 598–599.) In Regalado, counsel’s statements that the jurors were the ‘conscience of the community,’ should determine ‘what is safe,’ and were acting to keep the community safe were improper because they suggested that the verdict would affect community safety. (Id. at pp. 597–599.)

The label ‘Reptile Theory,’ however, does not itself define an evidentiary objection. The Court must distinguish an improper appeal to fear, self-protection, or community protection from proper proof and argument concerning the defendant’s duties, the applicable standard of care, regulatory requirements, the risks that made a precaution necessary, causation, and notice or conscious disregard. Evidence that a safety rule or professional standard was intended to prevent the type of harm alleged may bear directly on breach and causation. An expert also may be asked whether a proposed safety proposition accurately describes the applicable standard, so long as the question is supported by the evidence, is within the witness’s expertise, and does not ask the jury to adopt counsel’s generalized moral rule in place of the legal standard.

Evidence Code section 352 permits exclusion when probative value is substantially outweighed by undue prejudice, confusion, or consumption of time. But ‘prejudice’ does not mean the legitimate force of relevant evidence. The concern here is the risk that jurors will be diverted from deciding whether Plaintiffs proved the elements under the Court’s instructions and instead will treat the verdict as a means of protecting themselves or policing the community.

Ruling No party, attorney, or witness shall ask or suggest that jurors should decide the case to protect themselves, their families, other skilled-nursing-facility residents, patients generally, or the community; that a verdict for a particular party will make the community safer; that jurors should act as the “conscience of the community”; or that jurors should “send a message” about the care acceptable in Orange County or elsewhere. Counsel may not invoke jurors’ personal vulnerability to illness, aging, disability, hospitalization, or residence in a care facility, or suggest that they or their loved ones could be the next victims if they do not return a particular verdict.

No party may present a generalized “community safety,” “patient safety,” or “needless danger” proposition as though it were itself the governing standard of care. The standard of care and the elements of the claims will be determined from the admitted evidence and the Court’s instructions. Counsel may not ask a witness to agree that “any unnecessary risk is unacceptable,” that “safety must always be the highest priority,” or to endorse any similar abstract proposition merely to obtain a broad moral commitment untethered to the circumstances, applicable professional standard, and issues in this case.

This order does not prohibit relevant questions or argument concerning the actual standard of care; duties imposed by statutes, regulations, policies, or professional practice; the purpose of a particular safety requirement; whether a specific act or omission created a foreseeable risk to Robert Wilenken; whether a precaution would have reduced that risk; or whether Defendants complied with the applicable requirements. Counsel may use ordinary terms such as “safe,” “unsafe,” “risk,” “danger,” “protect,” and “patient safety” when relevant to those issues. The prohibition concerns the purpose and context of the question or argument, not isolated vocabulary. The Court is not the word police.

This order also does not foreclose argument concerning deterrence if punitive damages are properly submitted to the jury and the argument is consistent with the governing instructions. Before making any argument that the jury should deter future conduct, protect others, promote community safety, or send a message, counsel shall request a sidebar and identify the legal and evidentiary basis for the proposed argument.

If a party believes a proposed question or argument approaches the boundary described above, counsel shall raise the matter outside the jury’s presence. No party may characterize opposing counsel’s conduct before the jury as “Reptile Theory,” “reptile tactics,” manipulation, or an attempt to trigger fear. The order applies reciprocally to all parties. Counsel shall advise their witnesses of these limitations and shall not refer before the jury to the filing, argument, or disposition of this motion.

Defendants’ Unopposed Motion in Limine No. 14 is GRANTED, subject to the limitations and procedure stated below.

Background

Defendants seek to preclude any mention of statements of deficiency, plans of correction, citations, surveys, investigations, or similar materials generated by any local, state, or federal regulatory agency concerning Bonita Hills. They contend such materials are hearsay, include conclusions based on third-party statements, may concern events unrelated to Robert Wilenken, would require a collateral inquiry into the regulatory process, and would create undue prejudice and confusion. Defendants also rely on Health and Safety Code section 1280, subdivision (f), and the rules concerning subsequent remedial measures. No opposition was filed.

Governing Law Health and Safety Code section 1280, subdivision (f), provides that neither the act of furnishing a plan of correction, its contents, nor its execution may be used in a legal or administrative proceeding as an admission under Evidence Code sections 1220 through 1227 against the facility, licensee, or personnel. The statute forecloses treating regulatory compliance through a plan of correction as a party admission. Evidence Code section 1151 separately bars evidence of remedial or precautionary measures taken after an event when offered to prove negligence or culpable conduct in connection with that event, although such evidence may be admissible for another purpose recognized by law.

Regulatory citations and statements of deficiency are not automatically admissible merely because a public agency prepared them. In Nevarrez v. San Marino Skilled Nursing & Wellness Centre (2013) 221 Cal.App.4th 102, 121–124, the court held that portions of a Department of Public Health citation resting on statements from persons other than the investigator contained inadmissible multiple hearsay; the official-records exception did not eliminate the need for an exception covering each hearsay layer. The court also concluded that admitting extensive citation findings carried a substantial danger of confusing the jury and unfairly magnifying the agency’s conclusions. (Id. at pp. 126–130.)

The official-records exception may apply to a writing made by and within the scope of duty of a public employee, at or near the time of the act, condition, or event, when the sources and method and time of preparation indicate trustworthiness. (Evid. Code, § (coincidentally, also) 1280.) But the exception does not make every embedded witness statement, expert conclusion, or secondhand accusation admissible. Relevance also depends on the relationship between the surveyed conditions, time period, residents, personnel, and regulatory requirements and the issues actually being tried. Evidence Code section 352 permits exclusion where that limited probative value is substantially outweighed by undue prejudice, confusion, or the consumption of time required to litigate collateral regulatory matters.

Ruling Plaintiffs, their counsel, and their witnesses shall not mention, display, characterize, or elicit testimony before prospective or sworn jurors concerning any regulatory survey, complaint investigation, statement of deficiency, citation, plan of correction, enforcement action, fine, penalty, survey rating, or similar agency finding concerning Bonita Hills unless Plaintiffs first obtain a ruling outside the jury’s presence.

Plans of correction, their contents, and their execution may not be offered or used as admissions against Bonita Hills, its licensee, or its personnel. They also may not be used to prove negligence or culpable conduct to the extent they reflect subsequent remedial or precautionary measures. Counsel may not argue that submission or implementation of a plan of correction constituted a concession that the facility violated a regulation, breached the standard of care, caused harm, or previously operated unsafely.

Surveys, statements of deficiency, and citations concerning other residents, other incidents, unrelated regulatory subjects, or materially different time periods are excluded absent a particularized showing of relevance and admissibility. Plaintiffs may not use unrelated regulatory history to suggest that Defendants acted in conformity with a generally deficient character or that an agency’s prior criticism proves liability here.

This order is not a categorical determination that no fact appearing in a regulatory record could be admissible for any purpose. If Plaintiffs seek to use a particular record, excerpt, agency observation, or regulatory finding, they shall identify outside the jury’s presence: the precise material offered; the issue and noncharacter purpose for which it is offered; its connection to Robert Wilenken, the relevant personnel, condition, or time period; the foundation for authentication; the hearsay exception for the agency record and for every embedded statement; and why its probative value is not substantially outweighed under Evidence Code section 352. Plaintiffs shall also address Health and Safety Code section 1280, subdivision (f), and Evidence Code section 1151 when a plan of correction or remedial measure is implicated.

If the Court permits a limited use, counsel shall comply with any redaction, limiting instruction, or restriction on terminology imposed by the Court. An expert may not serve as a conduit for otherwise inadmissible agency findings or repeat them for their truth under the guise of explaining the basis of an opinion. Any permissible expert reliance and disclosure will be governed by Evidence Code sections 801 and 802 and the Court’s other rulings.

The order applies reciprocally to all parties. Defendants likewise may not selectively invoke favorable survey results, the absence of citations, regulatory approval, or compliance history without first obtaining a ruling under the same procedure. Counsel shall advise their witnesses of these limitations and shall not refer before the jury to the filing, argument, or disposition of this motion.

Defendants’ Unopposed Motion in Limine No. 15 is GRANTED, subject to the limitations and procedure stated below.

Background

Defendants seek to exclude any expert who was not properly designated under Code of Civil Procedure section 2034.010 et seq. and any expert opinion not properly disclosed in the expert designation or at deposition. They anticipate Plaintiffs may attempt to call an undesignated expert or have a designated expert expand, alter, or add opinions at trial. Defendants contend such testimony would defeat the expert-discovery statutes’ purpose of permitting informed deposition, cross-examination, and rebuttal preparation. No opposition was filed.

Governing Law An expert exchange must identify each expert whose opinion the party expects to offer at trial and, for a retained expert, include a declaration stating the expert’s qualifications and the general substance of the expected testimony, among other matters. (Code Civ. Proc., § 2034.260.) The expert must be sufficiently familiar with the action to submit to a meaningful deposition concerning the specific testimony, including the opinions and their bases, expected at trial. (Id., subd. (c)(4).)

The statutory purpose is fair notice: the opposing party must be able to decide whether to depose the expert, explore the relevant subject matter, and obtain responsive expert testimony. (Bonds, supra, at pp. 146–147.) On objection of a party who has made a complete and timely expert exchange, the Court must exclude expert opinion offered by a party who has unreasonably failed to list the witness, submit the required declaration, produce discoverable expert reports and writings, or make the expert available for deposition. (Code Civ.

Proc., § 2034.300.) Exclusion thus depends on an applicable statutory failure, its unreasonableness, and a proper objection; the statute does not create automatic exclusion for every technical defect.

A party may not use trial to unveil a material opinion that its expert expressly disclaimed or withheld when fairly asked at deposition. In Kennemur v. State of California (1982) 133 Cal.App.3d 907, 919– 920, exclusion was proper where an expert disclosed he would not offer a causation opinion and then attempted to give one at trial. Likewise, an expert who testified that all opinions had been stated could not later offer new opinions outside that disclosure. (Jones v. Moore (2000) 80 Cal.App.4th 557, 564–565.) These decisions protect against unfair surprise concerning a new subject or materially different opinion, not against every elaboration, refinement, explanation, or application of a disclosed opinion.

The expert declaration need disclose the general substance, not every detail, of the anticipated testimony. When the declaration provides fair notice of the subject and opinion, testimony within that disclosed substance is not barred merely because every supporting reason or formulation was not recited in the declaration. (Bonds, supra, at pp. 146–149; Easterby v. Clark (2009) 171 Cal.App.4th 772, 780–782.) An expert also may respond to admissible evidence presented at trial, answer proper hypotheticals, explain or defend a disclosed opinion, and address matters opened on crossexamination, provided the testimony does not become a genuinely new opinion that should have been disclosed and explored during expert discovery.

Ruling Plaintiffs shall not call an expert witness whose identity was required to be, but was not, disclosed in a timely expert exchange or permissible supplemental exchange. A retained expert may not testify unless the required expert declaration was served and the expert was made available for a meaningful deposition in compliance with the Civil Discovery Act, subject to any statutory exception, agreement, prior order, or showing that the asserted failure was not unreasonable.

A designated expert’s trial testimony shall remain within the general substance of the opinions fairly disclosed in the designation and deposition. An expert may not offer a new opinion on a materially different subject, reverse or materially alter an opinion, supply an opinion expressly disclaimed at deposition, or rely on a materially new theory or basis that the opposing party had no fair opportunity to explore. Counsel may not evade this limitation by recasting an undisclosed affirmative opinion as rebuttal, impeachment, explanation of the expert’s “basis,” or a response to a hypothetical.

This order does not freeze an expert’s testimony to the exact words used at deposition. An expert may explain, clarify, refine, illustrate, or apply a disclosed opinion; respond to admissible trial evidence; use demonstratives or calculations that fairly illustrate disclosed opinions; answer proper hypothetical questions supported by the evidence; and address matters elicited on cross-examination. Such testimony is permissible only if it remains within the disclosed subject matter and does not unfairly deprive the opposing party of the expert discovery contemplated by section 2034.010 et seq.

If Defendants contend that proposed testimony violates this order, they shall object before the challenged opinion is disclosed to the jury and request a hearing outside the jury’s presence. Defendants shall identify the opinion challenged, the disclosure or deposition testimony defining the asserted boundary, the question or answer showing nondisclosure, and the resulting prejudice. Plaintiffs shall identify where the opinion or its general substance was disclosed and explain why the testimony is a permissible elaboration, application, or response rather than a new opinion. The Court will consider the statutory requirements, the reasonableness of any failure, the adequacy of notice, prejudice, and whether a remedy short of exclusion is appropriate.

Experts may not remain in the courtroom merely to acquire undisclosed new opinions from other witnesses’ testimony. This order does not itself exclude experts from the courtroom; witness exclusion and any exception for a person whose presence is essential will be governed by Evidence Code section 777 and the Court’s other orders. If an expert hears trial testimony, any resulting opinion remains subject to the disclosure limits above. The order applies reciprocally to all parties and experts. Counsel shall instruct their experts concerning these limitations and shall not refer before the jury to the filing, argument, or disposition of this motion, expertdesignation disputes, or an asserted discovery violation unless the Court first authorizes the reference outside the jury’s presence.

Defendants’ Motion in Limine No. 16 is DENIED without prejudice, subject to the limitations and procedure stated below.

Background

Defendants seek to exclude photographs of Robert Wilenken’s sacral pressure injury taken at Providence St. Jude Medical Center on or after April 26, 2023, as well as testimony describing what the photographs depict. Defendants state that twelve photographs are at issue and contend they are gruesome, cumulative, and incapable of establishing when the wound originated, whether it was infected, whether care at Bonita Hills caused it, or whether it contributed to death. Once again, although the motion states the photographs are attached as Exhibits 1 through 12, no photographs are attached to the filed motion.

Plaintiffs oppose the motion. They contend photographs were taken before and after Mr. Wilenken’s admission to Bonita Hills and depict the progression and worsening of the pressure injury, including its condition near death. Because Plaintiffs allege failures to provide wound care and turning and repositioning caused skin breakdown and infection, they argue the photographs are directly relevant and may communicate the wound’s condition more efficiently and accurately than verbal descriptions alone.

Governing Law Photographs are relevant if they have any tendency in reason to prove or disprove a disputed fact of consequence. (Evid. Code, § 210.) Their admissibility requires authentication by evidence sufficient to sustain a finding that they accurately depict what the offering party claims. (Evid. Code, §§ 1400, 1401.) A witness with personal knowledge may authenticate a photograph as a fair and accurate depiction without having taken it, and may describe observed conditions; such testimony is not hearsay merely because it concerns what a photograph shows.

Evidence Code section 352 permits exclusion if probative value is substantially outweighed by undue consumption of time or a substantial danger of undue prejudice, confusion, or misleading the jury. “Undue prejudice” means a tendency to evoke an emotional bias against a party unrelated to the evidence’s legitimate probative force; it does not mean evidence is damaging or unpleasant. Graphic photographs are not inadmissible merely because they are disturbing if they materially assist the jury on a disputed issue. The Court must examine the particular images, their purpose, the disputed issues, available alternatives, and cumulative effect.

Defendants rely on Akers v. Miller (1998) 68 Cal.App.4th 1143, 1148–1150, which affirmed exclusion of photographs where their limited probative value was outweighed by the danger of prejudice and the matters depicted could be described adequately through testimony. But Akers does not establish a categorical rule excluding photographs of pressure injuries. The section 352 balance turns on the issues actually disputed and the evidentiary contribution of the particular photographs. Here, Plaintiffs assert that the wound’s progression, severity, and condition during the relevant period bear on breach, causation, and damages. Those asserted uses cannot be evaluated without reviewing the images, their dates, and the proposed foundation.

Ruling The request to exclude all photographs categorically is denied without prejudice. The photographs were not included with the motion, so the Court cannot assess their graphic character, clarity, dates, differences, cumulative nature, or probative value. Moreover, Defendants’ acknowledgement that Mr. Wilenken had a sacral wound does not necessarily remove from dispute its appearance, severity, progression, timing, infection, treatment, effect on suffering, or relationship to the claims. Plaintiffs are not required to prove those matters solely through sanitized verbal descriptions if properly authenticated photographs materially assist the jury.

The request to bar witnesses from describing what the photographs depict is also denied. A qualified witness with personal knowledge may describe Mr. Wilenken’s wound and may authenticate or explain a photograph, subject to ordinary limits on lay and expert opinion, foundation, hearsay, relevance, and section 352. A witness may not infer from appearance alone when the wound originated, who caused it, whether it was infected, or whether it contributed to death unless the opinion is otherwise admissible and supported by adequate expertise and foundation.

Before displaying any wound photograph to prospective or sworn jurors, Plaintiffs shall provide the Court and Defendants with the exact image, its exhibit and page number, date or approximate date, source, proposed authenticating witness, and the purpose for which it will be offered. The Court will review the images outside the jury’s presence. Plaintiffs shall identify a representative, noncumulative set rather than publish every substantially duplicative image. The Court may exclude particular photographs, limit the number shown, restrict enlargement or repeated display, require cropping or redaction, control the duration and manner of publication, or give a limiting instruction.

Counsel shall not characterize the photographs as “gruesome,” “horrific,” “shocking,” or similar terms before the jury, nor suggest that their emotional impact itself supports liability or damages. Defendants may contest what the images establish and may offer evidence concerning timing, causation, infection, treatment, or alternative explanations. Any dispute concerning a particular image or proposed descriptive testimony shall be raised outside the jury’s presence before disclosure.

The order applies reciprocally to all parties. Counsel shall advise their witnesses of these limitations and shall not refer before the jury to the filing, argument, or disposition of this motion.

Defendants’ Unopposed Motion in Limine No. 17 is GRANTED IN PART and DENIED IN PART, subject to the procedures stated below.

Background

Defendants request bifurcation under Code of Civil Procedure sections 598 and 1048, subdivision (b), and Civil Code section 3295. The motion describes two proposed phases: first, liability on Plaintiffs’ causes of action; and second, punitive damages and evidence of Defendants’ profits and financial condition. Defendants also seek to preclude during the first phase any reference to their wealth, financial condition, corporate structure, market power, or size. No opposition was filed.

Governing Law Code of Civil Procedure sections 598 and 1048, subdivision (b), authorize the Court to order separate trials of issues when doing so promotes convenience, avoids prejudice, or advances expedition and economy. Whether to separate liability from compensatory damages is discretionary and depends on the relationship between the evidence and issues. Where the same witnesses and proof bear on breach, causation, injury, and compensatory damages, a complete liability-damages separation may duplicate evidence and impede an intelligible presentation.

Civil Code section 3295, subdivision (d), imposes a narrower mandatory sequence upon a defendant’s application. Evidence of a defendant’s profits or financial condition must be withheld until the trier of fact has awarded actual damages and found the defendant guilty of malice, oppression, or fraud under Civil Code section 3294. Only then may evidence of profits and financial condition be admitted as to a defendant against whom both findings were made. The statute protects against the risk that evidence of wealth will influence liability, compensatory damages, or the predicate punitive-damages determination.

Section 3295 does not require all damages evidence to be severed from liability. Evidence bearing on the nature and extent of injury, causation, and compensatory damages belongs in the first phase. Nor does section 3295 categorically exclude every fact concerning corporate structure, organizational roles, staffing authority, ownership, control, policies, or decision-making. Such evidence may be relevant to direct liability, agency, control, notice, ratification, or whether an officer, director, or managing agent committed, authorized, or ratified the conduct under Civil Code section 3294, subdivision (b).

The Court must distinguish evidence genuinely offered to prove those issues from evidence whose only purpose or effect is to convey wealth, market dominance, or ability to pay.

Ruling The trial will be bifurcated as to the amount of punitive damages and evidence of profits or financial condition. Phase One will address liability on the substantive claims, causation, compensatory damages, and – if supported by the evidence – the predicate issues whether any Defendant acted with malice, oppression, or fraud and whether the requirements for corporate punitive liability under Civil Code section 3294, subdivision (b), are satisfied. Phase Two will occur only as to a Defendant for whom the jury awards actual damages and makes the findings required to permit punitive damages. Phase Two will address that Defendant’s financial condition and the amount, if any, of punitive damages.

The request to bifurcate all liability issues, to the extent it is made, from all damages issues is denied. Evidence of Mr. Wilenken’s condition, pain, injury, treatment, and death may bear simultaneously on breach, causation, damages, and the asserted degree of culpability. Requiring Plaintiffs to prove liability without presenting the resulting harm would create substantial overlap and risk a fragmented presentation. Compensatory damages therefore will be tried in Phase One.

During voir dire, opening statement, evidence, and argument in Phase One, no party shall mention or imply any Defendant’s net worth, profits, revenues, assets, cash reserves, insurance-funded ability to pay, overall financial condition, or the amount of money needed to punish that Defendant. No party may ask jurors to adjust compensatory damages because a Defendant is wealthy or is part of a large enterprise. Financial-condition documents and testimony shall not be displayed, described, or elicited before the jury until Phase Two.

The request to exclude all evidence of corporate structure, market power, or size is granted only to the extent such evidence is offered as a proxy for wealth, ability to pay, or a reason to punish. It is denied to the extent organizational evidence is relevant to a disputed Phase One issue, including ownership or operation of the facility, allocation of responsibilities, agency, control, staffing and budget authority, notice, policymaking, managing-agent status, authorization, or ratification. Before eliciting evidence that may reveal enterprise-wide revenues, facility count, market share, geographic scope, corporate resources, or similar indicators of wealth or size, the proponent shall request a hearing outside the jury’s presence and explain the precise nonwealth purpose and why a less prejudicial formulation will not suffice.

The parties shall prepare verdict forms that separate compensatory findings and the punitive-damages predicate from any determination of punitive amount. If Phase Two becomes necessary, the Court will determine outside the jury’s presence what financialcondition evidence is sufficiently current and admissible, what additional discovery or production is required, the order of proof, and the instructions and argument permitted. The order applies reciprocally to all parties. Counsel shall advise their witnesses of these limitations and shall not refer before the jury to the filing, argument, or disposition of this motion or to the existence of a separate punitive-damages phase.

Defendants’ Motion in Limine No. 18 is DENIED, subject to the limitations stated below.

Background

Defendants seek to preclude all trial testimony from David Johnson under the “apex” doctrine. They describe Johnson as the owner of Sun Mar Management Services, Inc., and assert that he did not provide care to Robert Wilenken, work at Bonita Hills, participate in its day-to-day operations, or possess unique firsthand knowledge concerning Mr. Wilenken’s treatment. Defendants contend Plaintiffs have not exhausted less intrusive sources or shown that Johnson has superior personal knowledge.

Plaintiffs oppose the motion. They represent that regulatory and cost-report documents identify Johnson as an owner, chief executive officer, and governing-board officer or member of Bonita Hills or La Habra Post Acute, LLC, and as chief executive officer of Sun Mar. They further contend Johnson executed the management agreement on behalf of both contracting entities and has material knowledge concerning their relationship, allocation of duties, and asserted joint venture. Plaintiffs agree that testimony concerning Defendants’ financial condition would be reserved for a separate punitivedamages phase.

Governing Law The apex doctrine is a discovery-protection doctrine developed to prevent harassment and undue burden from depositions of highranking corporate officers who lack unique firsthand knowledge. When a protective order is sought, the court considers whether the officer has direct or superior knowledge and whether the information can be obtained through less intrusive means. (Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1287–1289.) The doctrine regulates the method and sequence of pretrial discovery; it does not create a testimonial privilege or categorical rule rendering a senior executive incompetent to testify at trial.

Trial testimony is governed by relevance, personal knowledge, competency, subpoena and attendance requirements, and the Court’s authority to exclude cumulative, confusing, unduly timeconsuming, or unduly prejudicial evidence. (Evid. Code, §§ 210, 350, 352, 702.) A corporate officer’s position alone neither establishes relevance nor requires exclusion. The question is whether the witness has admissible knowledge bearing on a disputed issue and whether the proposed examination is appropriately confined to that knowledge.

Testimony concerning corporate ownership, management agreements, organizational authority, allocation of responsibilities, control, agency, joint venture, policymaking, notice, authorization, or ratification may be relevant even when the witness did not personally provide patient care. Those subjects also may bear on corporate punitive liability under Civil Code section 3294, subdivision (b). By contrast, an executive may not speculate about clinical events or facility operations outside personal knowledge, and a party may not call a prominent executive merely to create prejudice, parade status before the jury, or repeat evidence available from documents and more knowledgeable witnesses.

Ruling The apex doctrine does not justify categorical exclusion of David Johnson’s trial testimony. Defendants cite no California authority converting a discovery protective doctrine into a rule of trial incompetency, and their assertions that Johnson lacks relevant knowledge are not supported by a declaration or other evidence accompanying the motion (none was attached). Plaintiffs’ proffer, if supported at trial, identifies subjects on which Johnson may possess percipient and potentially distinctive knowledge: his roles in the relevant entities, execution and understanding of the management agreement, the relationship and allocation of responsibilities between Bonita Hills and Sun Mar, governance and control, and facts bearing on the alleged joint venture.

Plaintiffs may call Johnson and examine him concerning matters within his personal knowledge that are relevant to a claim, defense, agency or joint-venture theory, corporate responsibility, or an issue properly submitted to the jury. The Court is not now finding that the asserted documents establish Johnson’s roles, that a joint venture existed, or that every proposed subject is admissible. Plaintiffs must lay the ordinary foundation and establish relevance as the testimony proceeds.

Johnson may not be asked to opine about Mr. Wilenken’s clinical condition, care, treatment, charting, pressure injury, causation, or day-to-day events at Bonita Hills absent a showing of personal knowledge or other lawful basis. He may not be used to introduce hearsay, speculate about what facility personnel knew or did, or provide expert opinions for which he was not properly designated and qualified. The Court may limit cumulative examination if agreements, organizational documents, or testimony from other witnesses adequately establish a point.

Consistent with the Court’s ruling on Defendants’ Motion in Limine No. 17, Plaintiffs shall not elicit Johnson’s testimony concerning Defendants’ profits, revenues, net worth, assets, overall financial condition, market power, or ability to pay during Phase One. If a punitive-damages phase occurs, Plaintiffs may seek to call him concerning financial-condition evidence upon establishing foundation and after the Court determines the scope of admissible Phase Two proof outside the jury’s presence.

Before eliciting testimony likely to disclose enterprise-wide size, revenues, facility count, market share, or other potential indicators of wealth, Plaintiffs shall request a hearing outside the jury’s presence and identify the nonwealth purpose for the testimony. Defendants remain free to make specific objections based on relevance, foundation, personal knowledge, hearsay, privilege, cumulative proof, or Evidence Code section 352. Counsel shall not mention the “apex doctrine,” the filing or disposition of this motion, or any discovery dispute before the jury.

Defendants’ Motion in Limine No. 19 is DENIED, subject to the limitations stated in the ruling on Defendants’ Motion in Limine No.

18.

Background

Defendants seek to preclude all trial testimony from Frank Johnson under the ‘apex’ doctrine. They describe Johnson as an owner of Sun Mar Management Services, Inc., and assert that he did not provide care to Robert Wilenken, work at Bonita Hills, participate in its dayto-day operations, or possess unique firsthand knowledge concerning Mr. Wilenken’s treatment. Defendants contend Plaintiffs have not exhausted less intrusive sources or shown that Johnson has superior personal knowledge.

Plaintiffs oppose the motion. They represent that regulatory and cost-report documents identify Johnson as an owner, president, and governing-board officer or member of Bonita Hills or La Habra Post Acute, LLC, and as president of Sun Mar. They contend his leadership roles give him material knowledge concerning the management agreement, the relationship and allocation of duties between the entities, governance, and their asserted joint venture. Plaintiffs agree that testimony concerning Defendants’ financial condition would be reserved for a separate punitive-damages phase.

Ruling For the reasons explained in the Court’s ruling on Defendants’ Motion in Limine No. 18, the motion is denied. Frank Johnson’s testimony is subject to the same evidentiary and procedural limitations stated in that ruling, including its restrictions concerning personal knowledge, clinical opinions, cumulative testimony, financial-condition evidence in Phase One, and references before the jury to the apex doctrine or this motion. The Court does not find at this stage that Johnson’s asserted positions or knowledge have been established, that a joint venture existed, or that any particular subject of examination is admissible; Plaintiffs must establish foundation and relevance at trial.