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Pacheco v. United States

United States District Court, W.D. Washington, Seattle

January 7, 2020

YESENIA PACHECO, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER GRANTING IN PART PLAINTIFFS' AMENDED MOTIONS IN LIMINE

          ROBERT S. LASNIK, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on “Plaintiffs' Amended Motions in Limine.” Dkt. # 109. Having reviewed the memoranda, declarations, and exhibits submitted by the parties, the Court finds as follows:

         1. Domestic Violence

         The parties agree that evidence of domestic violence is not relevant to the liability determination in this matter. Plaintiffs' first motion in limine is GRANTED as to the first phase of trial.

         2. Citizenship or Immigration Status

         The parties agree that evidence of plaintiffs' citizenship and/or immigration status is not relevant to the liability determination in this matter. Plaintiffs' second motion in limine is GRANTED as to the first phase of trial.

         3. Testimony Regarding Incident That is Not Based on Memory

         Medical Assistant (“MA”) Gloria Rodriguez does not recall her conversation or interaction with plaintiff Yesenia Pacheco on September 30, 2011, but she may nevertheless testify regarding her habits and practices when administering injections. She has personal knowledge of her habits and practices, and “[e]vidence of a person's habit . . . may be admitted to prove that on a particular occasion the person . . . acted in accordance with the habit . . . . The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.” Fed. R. Ev. 406. Plaintiffs' third motion in limine is DENIED.

         4. Sufficiency of Evidence of Habit

         Almost three years ago the Court determined that there is sufficient evidence regarding MA Rodriguez' practice when administering injections to admit the evidence in support of defendant's claim of pattern or practice. Dkt. # 36 at 5-7. Plaintiffs' fourth motion in limine belatedly challenges the Court's prior ruling, recharacterizing the relevant conduct from “administering injections” to “injecting a patient with a vaccine or medication in lieu of that which the patient was scheduled to receive” and arguing that the conduct was not regular or frequent enough to be admitted as evidence of a habit. Plaintiffs' fourth motion in limine is DENIED for both procedural and substantive reasons. It is procedurally improper as an untimely motion for reconsideration. On the merits, plaintiffs' recharacterization of the relevant conduct is unwarranted given the facts and issues in this case. Plaintiffs' fourth motion in limine is DENIED.

         5. Evidence of Illegal Conduct to Excuse Negligence

         Plaintiffs seek to exclude evidence or argument that would explain defendant's conduct on September 30, 2011, if the explanation involved a violation of state or federal law. For example, plaintiffs argue that defendant should not be permitted to show that Ms. Pacheco consented to a flu vaccination because there is no signed consent form in her medical records, and the creation and maintenance of such a form is required by law. No. legal authority is provided for this extraordinary motion, nor would such a ruling be logical. Whatever happened at NeighborCare Health on September 30, 2011, happened regardless of whether the parties complied with all applicable legal requirements. While the lack of a signed consent form in the medical records may undercut defendant's contention that Ms. Pacheco consented to the flu shot, it does not make consent an impossibility. Ms. Pacheco could have orally consented, or her written consent form could have been lost. Any regulatory violation that may or may not have occurred did not alter the actual events at issue. Plaintiffs' fifth motion in limine is DENIED.

         6. Contributory Negligence

         Plaintiffs seek an order excluding evidence or argument suggesting that one or more of the named plaintiffs was contributorily negligent, based on a bare assertion that there is no evidence to support the affirmative defense. Dkt. # 109 at 16. If that is the case, no evidence will be offered. If, however, there is evidence of contributory negligence, ...


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