MEMORANDUM OPINION AND ORDER

SHARON LOVELACE BLACKBURN, District Judge.

This case is presently pending before the court on plaintiff's Motion in Limine, (doc. 59),1 and defendant's Motion in Limine and Memorandum of Law, (doc. 60). For the reasons set forth herein, the court GRANTS IN PART and DENIES IN PART the parties' Motions in Limine, (docs. 59 and 60).

TABLE OF CONTENTS

I. MOTION IN LIMINE STANDARD

In general, the term "in limine" "refer[s] to any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered." Luce v. United States, 469 U.S. 38, 40 n.2 (1984). A ruling on evidence in limine "aid[s] the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial. [It] also may save the parties time, effort and cost in preparing and presenting their cases." Bowden ex rel. Bowden v. Wal-Mart Stores, Inc., No. CIV. A. 99-D-880-E, 2001 WL 617521, *1 (M.D. Ala. Feb. 20, 2001)(internal citations and quotations omitted). Nevertheless, "it is the better practice to wait until trial to rule on objections when admissibility substantially depends upon what facts may be developed there. Thus, the motion in limine is an effective approach only if the evidence at issue is clearly inadmissible." Id. (citations omitted).

II. DISCUSSION

A. EXPERT TESTIMONY

1. Failure to Disclose

The parties each seek an Order excluding expert testimony based on the other party's failure to comply with the disclosure requirements of Fed. R. Civ. P. 26(a)(2). (Doc. 59 ¶4; doc. 60 ¶ 30.) As amended in 2010, Rule 26(a)(2) states, in pertinent part:

Fed. R. Civ. P. 26(a)(2)(A)-(C)(footnote added). "If a party fails to provide information or identify a witness as required by Rule 26(a) . . ., the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless."3 Fed. R. Civ. P. 37(c)(1). "Substantially justified means that reasonable people could differ as to the appropriateness of the contested action." Knight v. Miami-Dade Cty., 856 F.3d 795, 812 (11th Cir. 2017)(quoting Maddow v. Procter & Gamble Co., 107 F.3d 846, 853 (11th Cir. 1997)). A "harmless" violation "involves an honest mistake on the part of a party coupled with sufficient knowledge on the part of the other party." Burney v. Rheem Mfg., 196 F.R.D. 659, 692 (M.D. Ala. 2000)(quoting Vance v. United States, 182 F.3d 920, 1999 WL 455435, *5 (6th Cir. June 25, 1999)(Unpublished)). "The burden of establishing that a failure to disclose was substantially justified or harmless rests on the nondisclosing party." Mitchell v. Ford Motor Co., 318 Fed. Appx. 821, 824 (11th Cir. 2009)(quoting Leathers v. Pfizer, Inc., 233 F.R.D. 687, 697 (N.D. Ga. 2006)). "It is within a court's discretion to preclude a party from relying on an expert's report to overcome summary judgment and preclude said expert from testifying at trial when the party fails to comply with Rule 26(a)(2) or carry its burden under Rule 37(c)(1)." Mitchell v. City of Mobile, Civil Action No. 15-0360-CG-C, 2017 WL 1740364, *2 (S.D. Ala. May 3, 2017) (citing Reese v. Herbert, 527 F.3d 1253, 1266 (11th Cir. 2008)).

a. Dr. Voss

Plaintiff asks the court to preclude "Any evidence from experts who were not identified as testifying experts and whose testimony was not disclosed in accordance with Fed. R. Civ. P. 26 and/or not designated by the time set forth in the Court's Scheduling Order as amended, specifically Dr. Nicholas F. Voss." (Doc. 59 ¶ 4.) In response, defendant contends:

(Doc. 68 at 2-3 [internal citations omitted].)

Neither party has provided Dr. Voss's deposition testimony or otherwise informed the court of the details of his anticipated testimony regarding the cause of Mr. Murphy's brain hemorrhage. Nevertheless, the court finds that Dr. Voss's testimony regarding the cause of Mr. Murphy's hemorrhage will be expert opinion testimony as defined by Fed. R. Evid. 702. The record is clear that Dr. Voss was not present when Mr. Murphy suffered his hemorrhage; therefore, his testimony as to the cause of the hemorrhage is not based on his first-hand observations. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993)("Unlike an ordinary witness, see Rule 701, an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation. See Rules 702 and 703. Presumably, this relaxation of the usual requirement of firsthand knowledge . . . is premised on an assumption that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline."). Moreover, defendant does not contend that the determination of the cause of the hemorrhage was necessarily part of Dr. Voss's treatment and care of Mr. Murphy. See Wilson v. Taser Int'l, Inc., 303 Fed. Appx. 708, 712-13 (11th Cir. 2008)(holding a treating physician's "opinion regarding the cause of [plaintiff's] injuries was not needed to explain his decision making process, nor did it pertain to [plaintiff's] treatment;" therefore, "[t]estimony regarding his diagnosis of the injury itself. . . would be permissible as lay testimony without the Daubert analysis, but his statement about the cause of the injury was an hypothesis" and expert opinion testimony); see also Trinidad v. Moore, No. 2:15CV323-WHA, 2016 WL 5341777, at *4 (M.D. Ala. Sept. 23, 2016)("[W]hen a treating physician offers an opinion as to causation, unless that opinion was formed and given as part of treatment, that testimony is expert testimony by the treating physician and triggers the requirements of Rule 26(a)(2)(C)."). The court finds that Dr. Voss's testimony regarding the cause of Mr. Murphy's pontine hemorrhage is expert opinion testimony under Fed. R. Evid. 702.

Because Dr. Voss is not a retained expert and because his causation testimony is expert testimony, defendant was required to disclose "(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify." Fed. R. Civ. P. 26(a)(2)(C). As set forth above, defendant's disclosure regarding Dr. Voss states, "Defendant may elicit expert opinion(s) from Dr. Nicholas Voss. Dr. Voss has not been specially retained or employed as an expert in this case but treated Jerry L. Murphy March 5-8, 2014. . . . It is expected that Dr. Voss will be qualified as a licensed medical doctor and that he will testify concerning his treatment of Jerry L. Murphy." (Doc. 68-3 at 2 [emphasis added].) This disclosure does not mention that Dr. Voss will present expert opinion testimony as to the cause of Mr. Murphy's pontine hemorrhage as required by Fed. R. Civ. P. 26(a)(2)(C).

"If a party fails to provide information or identify a witness as required by Rule 26(a). . ., the party is not allowed to use that information or witness to supply evidence . . . at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). Defendant has not shown that the failure to disclose Dr. Voss's expert testimony regarding causation of the brain hemorrhage was substantially justified or harmless.

Therefore, plaintiff's Motion in Limine, seeking to prohibit Dr. Voss from testifying as to the cause of Mr. Murphy's pontine hemorrhage, (doc. 59 ¶ 4), is GRANTED. Dr. Voss is prohibited from offering any testimony regarding his opinion as to the cause of Mr. Murphy's pontine hemorrhage.

b. Dr. Rothrock and Dr. Garcia — Opinions Regarding Medical Clearance

Defendant asks the court to prohibit John F. Rothrock, M.D., and Ruben R. Garcia. M.D., from testifying as to their "opinion[s] . . . concerning medical clearance" because these opinions were not "included in the Plaintiff's Rule 26 disclosures." (Doc. 60 ¶ 30.) Dr. Rothrock's expert report does not include any opinion concerning medical clearance. (See generally doc. 21-3.) However, Dr. Garcia's expert report states that he intends to testify as follows regarding medical clearance:

(Doc. 21-4 at 4-6.) The court finds that Dr. Garcia's testimony concerning medical clearance was properly disclosed in his expert report.

Therefore, defendant's Motion in Limine, (doc. 60 ¶ 30), is GRANTED IN PART and DENIED IN PART. The Motion in Limine based on failure to disclose is GRANTED as to Dr. Rothrock; his testimony concerning medical clearance is excluded. The Motion in Limine based on failure to disclose is DENIED as to Dr. Garcia.

2. Expert Testimony Regarding the Standard of Care

Defendant asks the court to preclude plaintiff from offering "[a]ny testimony concerning the standard of care or reasonableness of any action or inaction by Dr. Precise and/or his employees from any witness who is not a `similarly situated health care provider' as defined by the Alabama Medical Liability Act [AMLA]."4 (Doc. 60 ¶ 2 [citing Ala. Code § 6-5-548].) Defendant seeks to preclude Mr. Murphy's treating physician, Dr. Ruben Garcia, from "criticiz[ing] Dr. Precise's care and treatment of the decedent because he is not similarly situated to Dr. Precise under Alabama Code § 6-5-548," including "any testimony concerning . . . what level a patient's blood pressure should be to undergo this procedure or whether Mr. Murphy was a candidate to undergo the procedure at issue in this case, as such testimony is improper standard of care testimony and must be excluded." (Id.)

Pursuant to Alabama Medical Liability Act —

Ala. Code § 6-5-548(a)-(b).

The court agrees that Dr. Garcia is precluded from testifying as to the standard of care or breach of the standard of care applicable to a dentist because Dr. Garcia, a medical doctor, is not similarly situated to defendant, a dentist. Dr. Garcia may testify as to his care and treatment of Mr. Murphy and, to the extent pre-clearance of Mr. Murphy becomes relevant, Dr. Garcia can testify as to whether he would have cleared Mr. Murphy for the procedure at issue, even if this testimony could be deemed, ultimately, to be "criticism" of defendant's actions or omissions.

Defendant's Motion in Limine, (doc. 60 ¶ 2), is GRANTED IN PART and DENIED IN PART. The Motion is GRANTED to the extent it seeks to prohibit testimony regarding the standard of care and the breach of the standard of care offered by witnesses who are not similarly-situated health care providers. However, defendant's Motion is DENIED as to defendant's request to prohibit all testimony that could possibly or conceivably concern reasonableness and/or that, ultimately, criticizes defendant. This request is simply too broad.

Plaintiff's Motion in Limine, asking the court to prohibit "[a]ny and all testimony of any non-similarly situated expert witnesses in this case regarding the standard of care for a dentist," specifically "testimony from Dr. Wendy L. Wright; Dr. Nicholas F. Voss; Dr. Marcelo Branco; Dr. Joseph Shalit; Dr. David Herf; [and] Dr. Clyde Pence . . . as to the standard of care or the breach of the standard of care," (doc. 59 ¶¶ 2-3), and defendant's Motion in Limine, asking the court to prohibit testimony regarding the standard of care as it existed after March 5, 2014, (doc. 60 ¶ 27), are GRANTED without opposition.

3. Use of Epinephrine

Defendant asks the court to exclude "[a]ny statement that the use of epinephrine violated the standard of care or that is otherwise critical of Dr. Precise for using epinephrine." (Doc. 60 ¶ 9.) He argues, "This Court has previously held that the Plaintiff's medical experts are precluded from providing any opinions at trial that epinephrine caused the decedent's brain stem hemorrhage. (Doc. 34) Thus, any such evidence would be immaterial, irrelevant, likely to confuse or mislead the trier of fact, see Fed. R. Evid. 401-03, and would violate Section 6-5-551 of the Alabama Medical Liability Act."5 (Id.)

The court notes that the prior Report and Recommendation and Order, (docs. 34 and 62), concerned only the opinions of Dr. Rothrock and Dr. Garcia that the use of epinephrine caused Mr. Murphy's death. However, the plaintiff's similarly-situated health care provider, Dr. Rodney Baier, stated in his expert report that he is "familiar with the potential health risks associated with the administration of epinephrine to a patient with Mr. Murphy's age, medical history (including stroke history and stroke risks), health status, and medications." (Doc. 72-1 at 52.) He opined:

(Doc. 72-1 at 56.) This testimony is relevant and its unfair prejudice, if any, does not outweigh its probative value. To the extent evidence is offered regarding the physiological effects of epinephrine, such evidence is admissible and helpful to jury.

Defendant's Motion in Limine, (doc. 60 ¶ 9), is GRANTED IN PART and DENIED IN PART. Defendant's Motion in Limine is DENIED to the extent he seeks to exclude (1) evidence from Dr. Baier and (2) evidence from experts that are not similarly situated to defendant that may testify regarding the physiological effects of epinephrine assuming such evidence is relevant and material. The Motion in Limine is GRANTED as to opinion testimony from Dr. Rothrock and Dr. Garcia that the use of epinephrine caused Mr. Murphy's pontine hemorrhage, and as to testimony from other experts that are not similarly-situated to defendant that use of epinephrine during Mr. Murphy's procedure was a breach of the applicable standard of care.

4. Cause of Death

Defendant asks the court to limit any questions or testimony regarding the cause of Mr. Murphy's death to licensed medical physicians. (Doc. 60 ¶ 28.) Plaintiff does not oppose this Motion.

Therefore, defendant's Motion in Limine, (doc. 60 ¶ 28), is GRANTED. Testimony regarding the cause of Mr. Murphy's death shall be provided by licensed medical physician witnesses.

5. Opinion Testimony Concerning Medical Clearance

Defendant asks the court to preclude Dr. Rothrock and Dr. Garcia from testifying concerning medical clearance because such testimony "constitutes improper standard of care testimony."6 (Doc. 60 ¶ 30.) The Motion in Limine with regard to Dr. Rothrock's testimony is MOOT. That testimony is excluded on other grounds.7 See, supra, p. 9.

According to plaintiff, "On March 5, 2014, Dixieland Dental had a written policy for `EXTRACTION AND SURGERY PATIENTS' which provided "if you have a heart condition, allergies to certain drugs, or any other physical illness, a written statement from a medical doctor approving the surgery should be obtained.'" (Doc. 72 at 16 [emphasis in original].) Whether Dr. Garcia, Mr. Murphy's treating physician, would have provided such a written statement or otherwise cleared Mr. Murphy for the extraction procedure is not testimony regarding whether the standard of care required defendant to seek medical clearance or whether defendant had a policy requiring such medical clearance for patients like Mr. Murphy. However, assuming evidence at trial supports a finding that medical clearance is at issue — either because it is required as part of the standard of care and/or failure to clear Mr. Murphy violated the standard of care, Dr. Garcia may testify that he was not asked to clear Mr. Murphy for the extraction and that he would not have cleared Mr. Murphy for the extraction.

Defendant's Motion in Limine as to Dr. Garcia's testimony concerning medical clearance, (doc. 60 ¶ 30), is DENIED.

6. Dr. Wendy Wright

a. Misrepresentation

Defendant asks the court to preclude "[a]ny reference to Dr. Wendy Wright misrepresenting anything on her CV or `academic document.'" (Doc. 60 ¶ 20.) He argues that "[t]here is no evidence in support of any such statement or reference and any such evidence would be completely irrelevant to the issues in this case and would visit undue prejudice on Dr. Precise." (Id.) In response, "Plaintiff's counsel concede that it would be improper to reference or comment on Dr. Wright's misrepresenting anything in her CV or academic documents during voir dire or opening statements. However, Plaintiff reserves the right to impeach Dr. Wright with regard to said evidence during cross examination." (Doc. 72 at 15.)

Neither party has suggested the nature of the alleged misrepresentation. However, evidence of a witness's untruthfulness and an expert's qualifications are always relevant. Plaintiff may cross-examine Dr. Wright regarding her qualifications and the accuracy of her representations of those qualifications. See Davis v. Alaska, 415 U.S. 308, 316-17 (1974) ("Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.")

Defendant's Motion in Limine, (doc. 60 ¶ 20), is DENIED.

b. Husband's Name

Defendant asks the court to prohibit plaintiff from making any reference to the fact that Dr. Wright did not take her husband's name. (Doc. 60 ¶ 21.) Plaintiff does not oppose this Motion.

Defendant's Motion in Limine, (doc. 60 ¶ 21), is GRANTED. The parties are prohibited from making any reference to the fact that Dr. Wright did not take her husband's name.

7. Dr. Rosenstiel

a. Divorces

Defendant asks the court to prohibit "[a]ny reference to Dr. Guy Rosenstiel's divorces. (Doc. 60 ¶ 23.) Plaintiff does not oppose this Motion.

Defendant's Motion in Limine, (doc. 60 ¶ 23), is GRANTED. The parties are prohibited from making reference to Dr. Rosenstiel's divorces.

b. Amount Paid to Teach Course

Defendant seeks to exclude evidence of the fact that Dr. Rosenstiel is paid or the amount he is paid to teach a class about dental implants on the ground that such evidence is irrelevant. (Doc. 60 ¶ 25.) Plaintiff's counsel state that they will not ask Dr. Rosenstiel about how much he is paid, but that they do intend to inquire about defendant paying $25,000 to attend the Dr. Rosenstiel's course. (Doc. 72 at 15-16.)

"Although an expert witness would not necessarily succumb to business pressures, and most experts endeavor to remain faithful to the facts as viewed through the lens of their specialized knowledge, when formulating their opinion, a jury nonetheless is entitled to know of the potential influences that are brought to bear on the witness when [the jury is] called upon to assess credibility." Great Lakes Anesthesia, PLLC v. State Farm Mut. Auto. Ins. Co., No. 11-10658, 2011 WL 4507417, *5 (E.D. Mich. Sept. 29, 2011)(citing Collins, 621 F.2d at 784). The court finds that this evidence is relevant to showing bias or interest on the part of Dr. Rosenstiel.

Therefore, defendant's Motion in Limine, (doc. 60 ¶ 25), is GRANTED IN PART and DENIED IN PART. The Motion is DENIED as to evidence that defendant took Dr. Rosenstiel's course and the amount he paid for the course. The Motion is GRANTED, without opposition, as to the amount Dr. Rosenstiel was paid to teach in general and to teach this course in particular.

8. Amount of Money Any Expert Makes in Their Professional Practice

Defendant argues that any reference to the amount of money earned by an expert in his or her professional practice is "irrelevant to any issue in this case." (Doc. 60 ¶ 24.) The court agrees generally. However, according to plaintiff, two of defendant's experts — Dr. Rosenstiel and Dr. Michael Koslin — testified during their depositions that, if requested to appear at trial, they would base their fee for attendance at trial on the amount of money that they would lose from their practice. (Doc. 72 at 15.)

Each retained expert is required to provide "a statement of the compensation to be paid for the study and testimony in the case," as part of his or her expert report. Fed. R. Civ. P. 26(a)(2)(B)(vi). The amount an expert witness earns for his or her work on the case is relevant to the issue of the expert's interest and/or bias. See Reynolds v. Gen. Motors Corp., No. CIV.A. 2:04-CV-0106R, 2007 WL 2908564, at *2 (N.D. Ga. Sept. 28, 2007)(citing Collins v. Wayne Corp., 621 F.2d 777, 784 (5th Cir. 1980), superseded on non-pertinent grounds by Fed. R. Evid. 103(a), as recognized in Mathis v. Exxon Corp., 302 F.3d 448, 459 n.16 (5th Cir. 2002). Therefore, to the extent the amount of money an expert earns in his/or her practice is the basis for the expert's compensation for appearing as a trial witness in the case, such evidence is admissible.

Defendant's Motion in Limine, (doc. 60 ¶ 24), is GRANTED IN PART and DENIED IN PART. Evidence of the amount earned by expert witnesses in their professional practices is excluded, unless the expert witnesses' compensation for study and testimony in this case is based on a percentage of the income earned and/or income lost due to providing expert study and testimony in this case.

9. Expert as a Party in Other Cases

Plaintiff asks the court to prohibit the parties from questioning whether "any expert may be, is, has or may have been a defendant in a medical negligence case." (Doc. 59 ¶ 7.) Defendant does not oppose this Motion. Defendant asks the court to prohibit "[a]ny reference to Dr. Michael Koslin's involvement as a plaintiff and/or a defendant in other lawsuits." (Doc. 60 ¶ 22.) Plaintiff does not oppose this Motion.

Therefore, plaintiff's Motion in Limine, (doc. 59 ¶ 7), and defendant's Motion in Limine, (doc. 60 ¶ 22), are GRANTED. The parties are prohibited from making any reference or questioning any expert about whether he or she "may be, is, has or may have been a defendant in a medical negligence case" and from referencing Dr. Koslin's involvement as a party in other lawsuits.

(Doc. 60 ¶ 5.) Plaintiff does not oppose this Motion.

Therefore, defendant's Motion in Limine, (doc. 60 ¶ 5), is GRANTED. The parties are prohibited from making any reference or mention of medical literature (including any book or other publication) that is not specifically identified on the parties' exhibit lists and is not first shown, by qualified expert testimony, to be a reliable authority reflecting the standard of care applicable to the care and treatment rendered by defendant.9

11. Conspiracy of Silence

Defendant asks the court to prohibit plaintiff from making "[a]ny reference to an alleged `conspiracy of silence' concerning malpractice testimony that supposedly exists among medical professionals with respect to criticisms of care or testimony." (Doc. 60 ¶ 6.) Plaintiff does not oppose this Motion.

Therefore, defendant's Motion in Limine, (doc. 60 ¶ 6), is GRANTED. The parties may not make reference to a "conspiracy of silence" concerning malpractice testimony that supposedly exists among medical professionals with respect to criticisms of care performed by other medical professionals.

12. Defendant's Recommendation of Expert Witness

Defendant asks the court to prohibit "[a]ny reference to any dentists or physicians that [defendant] recommended as potential expert witnesses." (Doc. 60 ¶ 26.) Plaintiff does not oppose this Motion.

Therefore, defendant's Motion in Limine, (doc. 60 ¶ 26), is GRANTED. The parties shall not make any reference to whether defendant recommended a dentist or physician as an expert witness in this case.

13. Plaintiff's Experts Residing Outside Alabama

Plaintiff asks the court to prohibit defendant from "suggest[ing] that Plaintiff's experts are different or unqualified just because they do not reside in Alabama." (Doc. 59 ¶ 9.) In response, defendant states that he does not oppose the Motion in Limine "as phrased," because he "does not intend to argue that any of Plaintiff's experts are `different or unqualified' solely by virtue of the fact that `they do not reside in Alabama.'" (Doc. 68 at 5.)

Therefore, plaintiff's Motion in Limine, (doc. 59 ¶ 9), is GRANTED. Defendant is prohibited from suggesting that plaintiff's experts are unqualified or "different" solely because they reside outside Alabama.

B. CHARACTER EVIDENCE

1. Prior Negligence, Bad Acts, or Omissions by the Defendant

Defendant asks the court to prohibit —

(Doc. 60 ¶ 7.) He also asks the court to prohibit "[a]ny reference whatsoever, to establish or imply that Dr. Precise or any of his employees or agents, acted negligently, wantonly or improperly, committed malpractice, or breached the applicable standard of care in any way, or at any time other than as specifically alleged in Plaintiff's Complaint, as amended, and supported by competent expert testimony." (Doc. 60 ¶ 1.) Plaintiff does not oppose this Motion.10 However, plaintiff asks the court to prohibit defendant from offering evidence of the absence of any alleged acts or negligence. (Doc. 59 ¶ 11.) In response, defendant argues:

(Doc. 68 at 5.)

Under Alabama law, "The plaintiff shall include in the complaint filed in [an AMLA] action a detailed specification and factual description of each act and omission alleged by plaintiff to render the health care provider liable to plaintiff and shall include when feasible and ascertainable the date, time, and place of the act or acts." Ala. Code § 6-5-551. "Any party [in an action brought pursuant to the AMLA is] prohibited from conducting discovery with regard to any other act or omission or from introducing at trial evidence of any other act or omission." Id. This provision applies to both plaintiffs and defendants. Id.; see also Leiser v. Raymond R. Fletcher, M.D., P.C., 978 So.2d 700, 710 (Ala. 2007)(Cobb, C.J., concurring in part and concurring in result)(citing Ex parte Pfizer, Inc., 746 So.2d 960, 966 (Ala. 1999)(Johnstone, J., dissenting)).

Obviously, evidence that defendant has never had a patient, other than Mr. Murphy, suffer a brain stem hemorrhage during a dental procedure requires admission of evidence of his acts and omissions related to the care of patients other than Mr. Murphy on occasions other than that alleged in plaintiff's Complaint. The court finds defendant's testimony that he has never had a patient experience a brain-stem hemorrhage is evidence of his treatment and care of patients other than Mr. Murphy. Such evidence is barred by Ala. Code § 6-5-551.

Plaintiff's Motion in Limine, (doc. 59 ¶ 11), and defendant's Motion in Limine, (doc. 60 ¶¶ 1, 7), are GRANTED. The parties are prohibited from referencing and/or offering evidence of defendant's treatment and care of patients other than Mr. Murphy including, but not limited to, testimony that he has never had a patient, other than Mr. Murphy, that suffered a brain-stem hemorrhage during a dental procedure, and any claims and complaints from other patients regarding defendant's care and treatment.

2. Evidence of or References to the Defendant's Good Character

Plaintiff asks the court to prohibit defendant from offering evidence and referencing his good character. (Doc. 59 ¶ 12.) Specifically, she asks the court to prohibit defendant from offering evidence or testimony that (1) "Defendant is a caring, dedicated, etc., health care professional," (id. ¶ 14(d)), (2) "Defendant has dedicated his life to trying to take care of patients safely," (id. (e)), and (3) "all of the good that the Defendant does in treating patients," (id. (f)). Defendant contends that he "does not intend to offer evidence of his good character for the purpose of establishing that he acted in conformity therewith;" rather he intends to elicit "entirely proper" testimony "pertaining to Dr. Precise's personal background, his general and professional education, training, experience, and his general involvement in the community." (Doc. 68 at 5-6.) Also, he contends that he should be allowed to offer "any personal depiction" of himself because plaintiff "will no doubt devote energies to personal depictions of Mr. Murphy."11 (Id. at 6.)

Rule 404(a) states, "Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait." Fed. R. Evid. 404(a). "An analysis of the admissibility of character evidence necessarily begins, then, with an examination of the purposes for which the evidence is proffered. If the evidence is introduced for the purpose of showing that a person acted in accordance with his character on a given occasion, then the evidence is inadmissible unless it falls within one of the exceptions noted in Rule 404." Reyes v. Missouri Pac. R. Co., 589 F.2d 791, 794 (5th Cir. 1979)(footnote omitted). "Character evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good man and to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened." Id. at 793 n.6 (quoting California Law Revision Commission, Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence, quoted in Notes of Advisory Committee on Proposed Rules, Fed. R. Evid. 404, 28 U.S.C.A. at p. 109); see also United States v. Reed, 700 F.2d 638, 645 (11th Cir. 1983)("Rules 404 and 405 (and their common law predecessors) are designed to insure that the ultimate decision of the factfinder is based on the merits of the case and not on the personalities involved. This is especially important in a criminal case where the state must be compelled to convict a defendant on the basis of a particular act and not because the defendant is generally a `bad' or `evil' person. Rule 404(a), therefore, generally excludes the introduction of character evidence, subject only to limited exceptions.")(footnote omitted).

Defendant has not stated the purpose for which he seeks to admit evidence of his treatment of other patients and/or his good works in his community. The court finds the obvious reason for this evidence is to prove the improper purpose of propensity — he is a good and careful dentist; therefore, he did not breach the standard of care and cause Mr. Murphy's death. The court finds that the evidence defendant seeks to admit is inadmissible character evidence.

Therefore, plaintiff's Motion in Limine, (doc. 59 ¶¶ 12 and 14(d)-(f)), will be GRANTED. Defendant is prohibited from offering evidence of good character for the purpose of proving propensity and/or prejudicing the jury.

Defendant asks the court to prohibit "[a]ny reference to the fact that [defendant] did not contact the family [of Mr. Murphy] following the care at issue in this case." (Doc. 60 ¶ 15.) Plaintiff contends that such evidence is relevant to rebut defendant's evidence and argument regarding his good character testimony. As the court has excluded such evidence, defendant's Motion in Limine, (doc. 60 ¶ 15), is GRANTED. The parties are prohibited from making any reference to the fact that defendant did not contact the family following Mr. Murphy's procedure and subsequent death.

3. Admission to Dental School

Defendant asks the court to prohibit "[a]ny questioning or reference concerning [defendant] being denied admission to dental school on his first attempt." (Doc. 60 ¶ 14.) Plaintiff does not oppose this Motion.

Therefore, defendant's Motion in Limine, (doc. 60 ¶ 14), is GRANTED. The parties shall not question any witness nor otherwise reference the fact that defendant was denied admission to dental school on his first attempt.

C. CRIMINAL AND CIVIL STANDARDS

1. Burden of Proof

Defendant asks the court to prohibit plaintiff from presenting "[a]ny reference to the burden of proof which exists in a criminal case, on the grounds that any such reference would be confusing to the jury and prejudicial to Dr. Precise." (Doc. 60 ¶ 4.) In response, plaintiff contends

(Doc. 72 at 8.)

In her Motion in Limine, plaintiff asks the court to prohibit defendant from testifying or offering evidence "[t]hat the Defendant `pleads not guilty'; that `medical malpractice[`] is the most `serious charge' that can be brought against a dentist and/or that the Plaintiff has accused the Defendant of `practicing bad medicine.'" (Doc. 59 ¶ 6.) In response, defendant argues:

(Doc. 68 at 4-5.)

Under the AMLA, "the plaintiff shall have the burden of proving by substantial evidence that the health care provider failed to exercise such reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice ordinarily have and exercise in a like case." Ala. Code § 6-5-548(a). Also, "In the case of a jury trial, the jury shall be instructed that in order to return a verdict against a health care provider, the jury shall be reasonably satisfied by substantial evidence that the health care provider failed to comply with the standard of care and that such failure probably caused the injury or death in question." Ala. Code § 6-5-549. Needless to say, the standard of proof required in a criminal case — proof beyond a reasonable doubt — requires a much higher quantum of proof.

Defendant's Motion in Limine, (doc. 60 ¶ 4), is GRANTED. Obviously, both parties are precluded from presenting evidence or arguing that the burden of proof in this case is other than that set forth in Ala. Code § 6-5-549. Plaintiff's Motion in Limine, (doc. 59 ¶ 6), is DENIED. Defendant may refer to the Complaint as a "charge," may argue that he pleads "not guilty" or is "not guilty," and may refer to the claim as an "accusation." He may also argue and testify that malpractice is a serious claim, that the claim is denied, and that the plaintiff alleges that he practiced bad medicine or dentistry, which he denies.

2. Mischaracterizing Defendant's Duty.

Plaintiff asks the court to prohibit "Defendant or Defendant's counsel from introducing evidence of or making references that the Plaintiff's burden is anything other than proving that the Defendant failed to comply with the standard of care," (doc. 59 ¶ 14), including the following statements: "Defendant did the best he could do," (id. (a)); "Defendant had [Mr. Murphy's] well being in mind at all times, (id. (b)); "Defendant did not intend to do anything to injure or damage the Plaintiff," (id. (c)); "there has been only one true healer," (id. (g)); and "Defendant used his best judgment, (id. (h)). Defendant responds that, although "[i]t would be inappropriate for any party to mischaracterize Dr. Precise's duty," the listed phrases do not mischaracterize defendant's duty. (Doc. 68 at 6.)

The court disagrees. Defendant's duty toward Mr. Murphy was "to comply with the standard of care." Ala. Code § 6-5-549. This is an objective standard and defendant's subjective intent is not an issue. For example, should the proof establish without contradiction that some action of defendant's breached the standard of care and that this breach caused Mr. Murphy's death, the jury could not return a verdict for defendant simply because they believed he had done "the best he could and used his best judgment," he had Mr. Murphy's well being in mind at all time, and he did not intend to cause Mr. Murphy's death. Defendant's subjective intent and subjective effort on Mr. Murphy's behalf is irrelevant to the issue of whether he complied with the standard of care applicable to similarly situated dentists. Under the facts of this case, neither party has suggested that the defendant breached a standard of care requiring dentists not to intentionally injure their patients. Therefore, the court finds that the phrases at issue in plaintiff's Motion in Limine, (doc. 59 ¶ 14(a)-(c) and (g)-(h)), mischaracterize defendant's duty and suggest an improper basis for the jury's verdict.

Therefore, plaintiff's Motion in Limine, (doc. 59 ¶ 14(a)-(c) and (g)-(h)), is GRANTED.

D. FINANCIAL CONDITION OR EFFECT OF VERDICT

1. Effect of the Verdict on Defendant.

Plaintiff asks the court to prohibit "Defendant, his attorneys or witnesses from making any comment about how a verdict for the Plaintiff in this case might impact or adversely affect the Defendant," including "a. [the] financial impact (given the availability of liability insurance); or b. professional licensure (there is no evidence or suggestion that anyone's license is in jeopardy)." (Doc. 59 ¶ 15.) Defendant opposes the Motion to the extent it seeks to prohibit him from arguing that the Alabama Board of Dental Examiners [the Board] has the authority to discipline him if the jury returns a verdict for plaintiff.12 (Doc. 68 at 6-7.) Defendant "agrees with Plaintiff that it would be improper for any party to make any comment regarding the financial impact of a plaintiff's verdict on [defendant]." (Id. at 7.)

The court finds that the unfair prejudice of admitting evidence that the Board "might" discipline defendant outweighs any slight probative value of such evidence. See Fed. R. Evid. 403.13 Certainly evidence of the Board's authority to sanction negligent dentists and that the Board could sanction defendant in the event of a plaintiff's verdict in no way supports an inference that defendant in this case breached the standard of care in his treatment of Mr. Murphy. Indeed, the court does not perceive any material fact that is made more or less probable because of the Board's authority. Rather, such evidence would only serve to invite the jury to base its judgment on facts unrelated to defendant's actions at issue — such as whether or not defendant would be subject to sanctions by the Board.

Therefore, plaintiff's Motion in Limine, (doc. 59 ¶ 15), is GRANTED. Defendant is prohibited from offering any evidence or argument regarding the potential effect of a plaintiff's verdict on defendant, his finances, and/or his dental license.

3. Financial Status of Either Party

Defendant asks the court to prohibit "[a]ny reference to the financial status of the Plaintiff or Defendant, including any reference to any purported wealth of Defendant or any defense witness, including direct references to any amounts of money made, earned, billed, or any indicia of wealth." (Doc. 60 ¶ 11.) He also asks the court to prohibit Dr. Garcia or other witnesses from testifying about "any financial problems or `insurance issues' that [Mr. Murphy] may have had." (Id. ¶ 32.) In response, plaintiff contends that she does not intend to offer testimony regarding Mr. Murphy's financial problems and/or insurance issues. (Doc. 72 at 16-17.) Also, she "does not intend to make any reference to the `purported wealth of the defendant,'" except to show "the fact that the husband of the Dixieland Dental employee who altered Mr. Murphy's chart post-stroke (Sandra Jane Davis) is the longtime manager of Dr. Precise's father's cattle operation," which is "obviously relevant to show interest, bias or prejudice" of Ms. Davis, a witness in this case. (Id. at 13.) Based on the record, the court assumes that plaintiff and defendant both intend to offer evidence and/question the retained experts regarding their compensation for work in this case.

Defendant's Motion in Limine, (doc. 60 ¶ 11), is GRANTED IN PART and DENIED IN PART; his Motion in Limine, (doc. 60 ¶ 32), is GRANTED. The parties are prohibited from referencing the financial status of plaintiff, Mr. Murphy, defendant, or witnesses except the parties may question Ms. Davis regarding her husband's employment as the manager of Precise Farms and may question retained expert witnesses regarding compensation for their work in this case.

4. Cattle Farmers

Defendant asks the court to prohibit "[a]ny reference to Precise Farms or to Robert and Michael Precise being cattle farmers." (Doc. 60 ¶ 13.)

For the reasons set forth above, defendant's Motion in Limine, (doc. 60 ¶ 13), is GRANTED IN PART. The parties are prohibited from offering evidence that defendant and his father own a cattle farm, except to the extent Ms. Davis may be questioned regarding her husband's employment.

5. Malpractice Insurance

Plaintiff asks the court to prohibit any testimony or evidence regarding medical malpractice liability insurance. (Doc. 59 ¶ 10.) Defendant agrees. Defendant asks the court to prohibit the parties from making —

(Doc. 60 ¶ 3.) Plaintiff does not oppose this Motion.

Plaintiff's Motion in Limine, (doc. 59 ¶ 10), and defendant's Motion in Limine, (doc. 60 ¶ 3), are GRANTED. The parties are prohibited from making any reference to malpractice insurance.

6. Billing Practices and Financial Operation of Dixieland Dental

Defendant asks the court to prohibit —

(Doc. 60 ¶ 10.) He also asks that the court prohibit "[a]ny reference to litigation over payment of fees for services between Dixieland Dental and other patients." (Id. ¶ 12.) Plaintiff does not oppose these Motions.

Therefore, defendant's Motion in Limine, (doc. 60 ¶¶10, 12), is GRANTED. The parties are prohibited from making "[a]ny reference to the billing practices or financial operations of Dixieland Dental, including but not limited to evidence that Dixieland Dental does not process insurance claims, the means by which Dixieland Dental accepts payments for its services, how Dixieland Dental sets prices for its services, any mention of [defendant's] salary or how [defendant's] salary is calculated," (id. ¶ 10), as well as any litigation of fees for services provided patients other than Mr. Murphy, (id. ¶ 12).

E. SUBSEQUENT REMEDIAL MEASURES

1. Lowered Blood Pressure Threshold

Defendant asks the court to prohibit "[a]ny testimony or other evidence of subsequent remedial measures, including but not limited to evidence that Dr. Precise has lowered the blood pressure threshold for conducting dental extractions and maintains lists of medications in patient records after the events at issue in this case." (Doc. 60 ¶ 8.)

Fed. R. Evid. 407.

Therefore, defendant's Motion in Limine, (doc. 60 ¶ 8), is GRANTED. However, should such evidence become relevant during the course of the trial, such as if defendant denies the feasibility of lowering the blood-pressure threshold, plaintiff may seek to admit such evidence outside the presence of the jury.

2. Dixieland Dental's Failure to Develop Written Policies

Defendant seeks to exclude evidence "that Dr. Precise was negligent or breached the applicable standard of care by not developing `written policies.'" (Doc. 60 ¶ 16.) Plaintiff in response contends that she does not intend to argue or present evidence that defendant breached the standard of care by not developing written policies; rather, she intends to prove that Dixieland Dental had a written notice regarding approval of a physician before treatment of certain patients. (Doc. 72 at 4, 14, 16.) Defendant's Motion in Limine does not seek to exclude evidence of this document and such evidence is admissible, subject to a proper foundation being established. From the parties' submissions, the court finds that plaintiff does not intend to offer evidence that Dixieland Dental did not develop written policies; therefore, defendant's Motion in Limine, (doc. 60 ¶ 16), is GRANTED without opposition.

F. MR. MURPHY'S MEDICAL RECORD

1. Altering the Medical Record

Defendant seeks to preclude plaintiff from offering any statement referring to defendant or anyone at Dixieland Dental "improperly altering" Mr. Murphy's medical records. (Doc. 60 ¶ 17 ["Any reference to someone `doctoring the record,' `fessing up' to making entries in the chart, `manipulating' the record, `interfering' with recordkeeping, or otherwise improperly altering the decedent's medical records."].) He argues, "Any such statements would serve no purpose but to evoke passion and prejudice." (Id.) Plaintiff, however, contends that such statements and evidence —

(Doc. 72 at 14 [emphasis in original].)

The court finds evidence that defendant and/or someone else at Dixieland Dental altered Mr. Murphy's records after the incident at issue in this case is relevant to credibility as it tends to show deceit or a cover-up after the fact and that may be relevant to showing consciousness of wrongdoing. Therefore, defendant's Motion in Limine, (doc. 60 ¶ 17), is DENIED.14

2. "Incredibly Amazing"

Defendant seeks to prohibit plaintiff's witnesses from testifying that is was "incredibly amazing" that Mr. Murphy's blood pressure readings were not saved in his chart. (Doc. 60 ¶ 18.) He contends that "[a]ny such statement would serve no purpose but to evoke passion and prejudice." (Id.) Plaintiff responds that "[s]uch references and arguments are relevant in this case." (Doc. 72 at 14 [emphasis in original].)

The court assumes that defendant objects to the specific use of the phrase "incredibly amazing," and not to all opinion evidence that defendant's failure to record and save blood pressure readings in Mr. Murphy's chart was unusual or a breach of the standard of care. Nevertheless defendant's Motion in Limine, (doc. 60 ¶ 18), is DENIED. Testimony that the failure to chart blood pressures is "incredibly amazing" is subject to cross-examination of any witness so testifying regarding the basis for his or her opinion. The phrase "incredibly amazing" shall not be used in opening argument, but may be used in closing arguments if supported by testimony.

G. HEARSAY

Defendant asks the court to prohibit testimony regarding certain hearsay statements: "Any reference to Dr. Rodney Baier discussing this case with his oral surgeon or anything the oral surgeon may have stated," (doc. 60 ¶ 29); "Any statements made to Dr. Garcia by the decedent's family after the care at issue in this case," (id. ¶ 31); "Any hearsay statements made to Cindy Murphy or Mr. Murphy's daughters by Dr. Garcia, Dr. Voss or any other physicians or persons, including anyone at Dixieland Dental other than [defendant]," (id. ¶ 33); and "Any hearsay statements made by Cindy Murphy regarding what she assumed employees of Dixieland Dental told Mr. Murphy, including but not limited to any statement that she assumed an employee of Dixieland Dental told Mr. Murphy to stop taking Plavix at the time that Mr. Murphy called to make the appointment," (id. ¶ 34). Plaintiff does not oppose defendant's Motion in Limine, except as to the "hearsay statements made to Cindy Murphy or Mr. Murphy's daughters by Dr. Garcia, Dr. Voss or any other physicians or persons, including anyone at Dixieland Dental other than [defendant]," that she may use as impeachment.

Defendant's Motion in Limine, (doc. 60 ¶¶ 29, 31, 33, and 34), is GRANTED. During the course of trial, should plaintiff wish to impeach a witness using statements made to her or Mr. Murphy's daughters, she should first seek the court's permission outside the presence of the jury.

H. LITIGATION

1. Settlement Discussions

Plaintiff asks the court to prohibit all references to "settlement negotiations or the lack of any settlement offer(s)." (Doc. 59 ¶ 5.) Defendant does not oppose the Motion.

Therefore, plaintiff's Motion in Limine, (doc. 59 ¶ 5), is GRANTED. The parties are prohibited from making any reference to settlement negotiations or the lack of a settlement offer.

2. "Malpractice Lawyers"

Plaintiff asks the court to prohibit defendant from arguing that "Plaintiff's lawyers are `malpractice lawyers' who travel across this state suing health care providers." (Doc. 59 ¶8.) Defendant does not oppose this Motion.

Therefore, plaintiff's Motion in Limine, (doc. 59 ¶ 8), is GRANTED. The parties are prohibited from arguing that "plaintiff's lawyers are `malpractice lawyers' who travel across this state suing health care providers."

3. "Jackpot"

Plaintiff asks the court to prohibit defendant from arguing or suggesting "to the jury that by bringing this lawsuit Plaintiff hopes to hit the `Jackpot' or `Lottery'." (Doc. 59 ¶ 13.) Defendant does not oppose this Motion.

Therefore, plaintiff's Motion in Limine, (doc. 59 ¶ 13), is GRANTED. The parties are prohibited from arguing or suggesting to the jury that, by filing this lawsuit, plaintiff hopes to hit the jackpot or win the lottery.

I. OBJECTIONS TO EXHIBITS

Defendant asks the court to prohibit "[a]ny reference to any of the Exhibits or Documents to which the Defendant has objected in Defendant's Objections to Plaintiff's Exhibits." (Doc. 60 ¶ 35 [citing doc. 49].)

The mere filing of an objection to an exhibit is not a ground for excluding that exhibit. To the extent the court rules on the admissibility of an exhibit before or during trial, the parties shall abide by that ruling. However, defendant's overly broad Motion seeking to exclude all references to all exhibits to which he has objected before the court has ruled on those objections, (doc. 60 ¶ 35), is DENIED. J. DYING IN THE DENTAL CHAIR

Defendant asks the court to prohibit "[a]ny reference to decedent `dying in the dental chair.'" (Doc. 60 ¶ 19.) Plaintiff does not oppose this Motion.

Therefore, defendant's Motion in Limine, (doc. 60 ¶ 19), is GRANTED. The parties are prohibited from referencing Mr. Murphy "dying in the dental chair." (Id.)

CONCLUSION

For the foregoing reasons, the court ORDERS the parties' Motions in Limine, (docs. 59 and 60), are GRANTED IN PART and DENIED IN PART. Plaintiff's Motion in Limine, (doc. 59), paragraphs 2-5 and 7-14, are GRANTED and paragraph 6 is DENIED. Defendant's Motion in Limine, (doc. 60), paragraphs 1, 3-8, 10, 12, 14-16, 19, 21-23, 26-29, and 31-34 are GRANTED, paragraphs 3, 5, 17-18, and 20, are DENIED, and paragraphs 2, 9-11, 13, 24-25, and 30 are GRANTED IN PART and DENIED IN PART.