JOHN R. TUNHEIM, District Judge.
This case arises out of a surgery performed on Elliot Kaplan ("Kaplan") by a surgeon at Mayo Clinic to treat pancreatic cancer, a condition which post-surgery testing revealed that Kaplan never had. Kaplan and has wife Jeanne Kaplan (collectively, "the Kaplans") filed lawsuit against Mayo Clinic and its affiliated entities (collectively, "Mayo"), as well as Dr. David Nagorney ("Dr. Nagorney"), the doctor who performed Kaplan's surgery, and Dr. Lawrence J. Burgart ("Dr. Burgart"), the doctor who erroneously diagnosed Kaplan with pancreatic cancer. The Court granted summary judgment in favor of Dr. Nagorney. The case proceeded to trial against the other defendants on the Kaplans' claims of breach of contract and negligent failure to diagnose. At the close of the Kaplans' case, the Court granted judgment as a matter of law against them on their breach of contract claim. The jury returned a verdict for Mayo and Burgart
On appeal, the Eighth Circuit reversed as to the breach of contract claim concluding that a reasonable jury could find that Nagorney, on behalf of Mayo, formed a contract with Kaplan when Nagorney told Kaplan that he would perform an intraoperative biopsy to confirm the cancer diagnosis before proceeding with the surgery. The Eighth Circuit found that Nagorney breached this contract when he failed to perform the promised biopsy. The Eighth Circuit remanded for further proceedings on the breach of contract claim.
The case is now before the Court on Mayo's motions in limine regarding the presentation of damages evidence at the remand trial on the Kaplans' breach of contract claim. Mayo requests that the Court (1) preclude the Kaplans from presenting evidence of pain and suffering and emotional damages in support of their breach of contract claim; (2) dismiss Mrs. Kaplan's loss of consortium claim; and (3) limit the Kaplans' evidence of damages to documents and information disclosed prior to the December 30, 2012 disclosure deadline. For the reasons explained below, the Court will grant Mayo's motion to exclude evidence of pain and suffering and emotional damages and will dismiss Mrs. Kaplan's loss of consortium claim. The Court will deny Mayo's motion to limit the Kaplans' evidence to damages information disclosed prior to December 30, 2012.
In July 2003, Kaplan was hospitalized in Missouri after experiencing severe abdominal pain. A CT scan showed that Kaplan had an enlarged pancreas, and doctors in Missouri proceeded to perform a needle biopsy on the pancreas. A pathologist affiliated with the Missouri hospital reviewed the biopsy and, based on that review, Kaplan was diagnosed with pancreatic cancer.
In August 2003, Kaplan sought a second opinion from Mayo, and sent Mayo the pathology slides that the Missouri doctors had prepared in conjunction with the needle biopsy. Dr. Burgart, a Mayo pathologist, reviewed the pathology slides and diagnosed Kaplan with grade 2 infiltrating pancreatic cancer. Another Mayo doctor made an independent diagnosis of pancreatic cancer based on the slides. Given Dr. Burgart's diagnosis, Dr. Nagorney, a Mayo surgeon, recommended that Kaplan undergo a pancreatoduodenectomy, or "Whipple" procedure, which involves excising portions of the pancreas and stomach as well as the entire pylorus and duodenum.
Kaplan was concerned about the validity of the cancer diagnosis, and expressed this concern to Dr. Nagorney. When asked if he could confirm the diagnosis during the surgery, Dr. Nagorney allegedly replied that he would do a biopsy of the mass to verify that it was cancer, and if there was no cancer, Dr. Nagorney would not complete the procedure. On August 14, 2003, Dr. Nagorney performed the Whipple procedure on Kaplan. Dr. Nagorney did not perform an intraoperative biopsy on Kaplan's pancreatic tissue, and completed the Whipple procedure. After examining the pancreatic tissue postoperatively, Mayo pathologists concluded that Kaplan did not have pancreatic cancer.
In 2007, the Kaplans filed a complaint against Mayo, Dr. Nagorney, and Dr. Burgart, alleging claims for medical malpractice, negligent nondisclosure, breach of contract, and loss of consortium. (See Am. Compl., Sept. 17, 2007, Docket No. 4.)
In 2008, the Court granted summary judgment in favor of Dr. Nagorney, finding that the Kaplans' expert affidavit opined only on medical negligence with respect to Kaplan's medical diagnosis, and not with respect to the surgical procedure performed on Kaplan. (Order at 14-15, Oct. 27, 2008, Docket No. 87, 2008 WL 4755797.) Consequently, the Court dismissed all of the Kaplans' claims against Dr. Nagorney with prejudice. (Id. at 15.)
The case proceeded to trial against the other defendants on claims of breach of contract and negligent failure to diagnose. (See Pl.'s Statement of the Case at 5, Mar. 23, 2009, Docket No. 116.) Before conclusion of the trial, the Court granted defendants' motion for judgment as a matter of law on the breach of contract claims. (Minute Entry, Apr. 14, 2009, Docket No. 165.) The Court determined that the breach of contract claim, which arose "out of the diagnosis, care and treatment of [Kaplan]," failed because the Kaplans had not presented expert testimony relating to the standard of care to determine whether there had been a breach. (Tr. at 986-87, July 15, 2010, Docket No. 202.)
After the evidence was presented, the jury returned a verdict for Mayo and Dr. Burgart on the Kaplans' claims for negligent misdiagnosis. (Special Verdict Form at 1, Apr. 15, 2009, Docket No. 166.) Because the jury found that neither Mayo nor Dr. Burgart was negligent in the care or treatment of Kaplan, the jury did not answer any questions regarding damages. (Id. at 1-2.) The Court entered judgment on the verdict. (J., Apr. 17, 2009, Docket No. 169.) The Court then denied the Kaplans' motion for a new trial, and the Kaplans appealed. (Order, Apr. 20, 2010, Docket No. 184, 2010 WL 1576784; Notice of Appeal, May 20, 2010, Docket No. 190.)
On appeal, the Eighth Circuit denied the Kaplans' request for a new trial on their claim for negligent failure to diagnose, and affirmed the Court's judgment with respect to that claim. Kaplan v. Mayo Clinic, 653 F.3d 720, 724-26 (8th Cir.2011). The Eighth Circuit also affirmed the Court's grant of judgment in favor of Dr. Burgart on the Kaplans' breach of contract claim. Id. at 727. But the Eight Circuit concluded that the Court erred in granting judgment as a matter of law to Mayo on the Kaplans' breach of contract claim. Id. at 729.
Viewing the evidence in the light most favorable to the Kaplans, the Eighth Circuit reviewed the Court's grant of judgment as a matter of law to determine whether any reasonable jury could have found in favor of the Kaplans on their breach of contract claim. Id. at 727. To establish a claim for breach of contract the Kaplans were required to show formation of a contract, breach, and resulting damages. Id. at 726 (citing Briggs Transp. Co. v. Ranzenberger, 299 Minn. 127, 217 N.W.2d 198, 200 (1974)).
The Eighth Circuit first determined that a reasonable jury could have found that Dr. Nagorney, acting on behalf of Mayo, formed a contract when he allegedly told Kaplan that Dr. Nagorney would perform an intraoperative biopsy to confirm the cancer diagnosis. Id. at 727. As consideration "Mr. Kaplan authorized Dr. Nagorney and his colleagues to perform the Whipple procedure and paid them for that surgery." Id. Although Dr. Nagorney testified that he never made such a promise, the Eighth Circuit determined that "this testimony merely raises factual question for the jury as to whether there was an agreement." Id. The Eighth Circuit also determined that a jury could conclude the contract was breached, because it "is undisputed"
With respect to damages, the Eighth Circuit concluded that a reasonable jury could have made the requisite finding of damages. To recover on a breach of contract the damages must have resulted from the breach. Id. The Eighth Circuit determined that the Kaplans needed to demonstrate two different steps to show causation as to damages. Id. First, the Kaplans "had to offer evidence to support a finding that the intraoperative biopsy results would have been negative for cancer," and the Eighth Circuit concluded the Kaplans had made such a showing. Id. Second, the Kaplans would have to establish that "Dr. Nagorney would not have performed the Whipple procedure if the promised biopsy was negative." Id. Finally, the Eighth Circuit determined that the Kaplans had "provided sufficient evidence of economic damages resulting from that procedure — though the amount was greatly disputed — to meet the final requirement for making out their contract claim." Id.
The Eighth Circuit also found that the Kaplans' breach of contract claim did not simply restate a medical malpractice claim — a claim that would require expert testimony. Id. at 729. The Eighth Circuit noted that "Minnesota law requires plaintiffs to file an expert-witness affidavit in any action against a health care provider for `malpractice, error, mistake, or failure to cure, whether based on contract or tort,' if `expert testimony is necessary to establish a prima facie case' in that action." Id. at 728-29 (quoting Minn.Stat. § 145.682). The court concluded that expert testimony was unnecessary to support the Kaplans' "perfectly ordinary, garden-variety contract claim," and characterized the claim as "simply that a physician promised to perform a certain procedure and did not do it, resulting in damages to [the Kaplans]." Id. at 729.
Finally, the Eighth Circuit remanded for further proceedings on the Kaplans' breach of contract claim. Id.
During an October 2, 2012 phone conference, the Court granted Mayo's request to pursue limited additional discovery into the Kaplans' damages, and set a February 1, 2013 deadline for such discovery. (Minutes, Oct. 2, 2012, Docket No. 239.)
On October 11, 2012, Mayo served the Kaplans with interrogatories and document requests regarding damages. (See Defs.' Mem. in Supp. of Mot. for Sanctions at 1, Jan. 4, 2013, Docket No. 256.) After receiving no response, Mayo brought a motion to compel that discovery. (Mot. to Compel, Nov. 30, 2012, Docket No. 244.) United States Magistrate Judge Jeffrey Keyes granted the motion to compel and ordered the Kaplans to respond to the discovery requests by December 30, 2012. (Order, Dec. 11, 2012, Docket No. 250.) The Magistrate Judge also awarded Mayo its fees and costs incurred in bringing the motion to compel, which order this Court affirmed. (Id. at 3; Order, Jan. 3, 2013, Docket No. 252; Order, Feb. 8, 2013, Docket No. 279.)
The Magistrate Judge granted in part and denied in part Mayo's motion to compel. (Order, Feb. 7, 2013, Docket No. 277.) Of relevance to the present motions, the Magistrate Judge denied Mayo's request that the Kaplans be prohibited from introducing at trial any evidence not disclosed before December 30, 2012. (Order, Feb. 7, 2013, Docket No. 277.) This denial was, however, without prejudice because the Magistrate Judge concluded he was "not going to make that type of evidentiary ruling with respect to the trial of this case," and specifically stated he was not "precluding Judge Tunheim from deciding the issue at the appropriate motion that's made at the time of trial." (Tr. at 34, Feb. 12, 2013, Docket No. 281.) The Magistrate Judge granted Mayo's motion to compel the production of signed tax returns, supplemental answers to interrogatories, and a blank authorization for the release of Kaplan's medical records. (Order, Feb. 7, 2013, Docket No. 277.) With respect to the extension of time for discovery the Magistrate Judge treated the request as one to continue the trial date, and declined to do so, determining that issue was best left to "counsel to work ... out between themselves and with ... Judge Tunheim to determine whether or not any delay of the trial is warranted with respect to that matter." (Tr. at 37.)
The Court begins by determining whether the Kaplans may present evidence of pain and suffering and emotional distress to prove damages in relation to their breach of contract claim.
A damage award in a breach of contract action is intended to place the nonbreaching party "in the position in which he would be if the contract were performed." Lesmeister v. Dilly, 330 N.W.2d 95, 102 (Minn.1983); see also Jepson v. Gen. Cas. Co. of Wis., 513 N.W.2d 467, 472 (Minn.1994) ("[P]eople should get the benefit of the contracts they enter into, nothing less and nothing more."). Therefore, a plaintiff may recover those "damages sustained by reason of the breach which arose naturally from the breach or could reasonably be supposed to have been contemplated by the parties when making the contract as the probable result of the breach." Lesmeister, 330 N.W.2d at 103; see also Franklin Mfg. Co. v. Union Pac. R.R. Co., 311 Minn. 296, 248 N.W.2d 324, 325 (1976) ("When the damages are assessed as those which it is reasonable to suppose that the parties had in mind, what is really meant is that the law, aiming at compensation, considers it fair to hold a defendant for damages which as a reasonable man he ought to have foreseen as likely to follow from a breach. What he in fact foresaw or contemplated is immaterial."
"Liability for breach of contract requires proof that damages resulted from or were caused by the breach." Border State Bank of Greenbush v. Bagley Livestock Exch., Inc., 690 N.W.2d 326, 336 (Minn.Ct.App.2004). Whether a particular damage resulted from or was caused by a breach of contract is a question for the jury. See id.; see also Cashman v. Allied Prods. Corp., 761 F.2d 1250, 1254 (8th Cir.1985) (finding that "the jury could reasonably infer from the evidence presented" that the plaintiff had suffered lost profits due to the breach).
Extra-contractual damages, on the other hand, are those which do not flow naturally from the breach and are not reasonably anticipated by the parties to the contract. See Wild v. Rarig, 302 Minn. 419, 234 N.W.2d 775, 789 (1975). In Minnesota, extracontractual damages "are not recoverable for breach of contract except in exceptional cases where the breach is accompanied by an independent tort." Haagenson v. Nat'l Farmers Union Prop. & Cas. Co., 277 N.W.2d 648, 652 (Minn. 1979). "The accompanying independent tort must be willful." Lickteig v. Alderson, Ondov, Leonard & Sween, P.A., 556 N.W.2d 557, 561 (Minn.1996). The rule disallowing extra-contractual damages is designed "to insure that contract law is not swallowed by tort law." Deli v. Univ. of Minn., 578 N.W.2d 779, 782 (Minn.Ct.App. 1998).
A jury found in favor of the defendants on all of the Kaplans' tort claims and the Eighth Circuit affirmed the verdict. Therefore, there is no independent tort in the present case and the Kaplans cannot recover any extra-contractual damages. The difficulty, however, is determining whether pain and suffering and emotional distress damages constitute extra-contractual damages in the context of the alleged contract between Mayo and the Kaplans.
Although pain and suffering and emotional distress damages might seem to be the natural proximate cause of a breach in certain types of contracts, Minnesota courts have expanded the prohibition on recovering such damages in a breach of contract action, even where those damages could be reasonably within the contemplation of the parties based on the nature of the contract. See Lickteig, 556 N.W.2d at 561 (categorically defining emotional distress damages as "extra-contractual"); Francis v. W. Union Tel. Co., 58 Minn. 252, 59 N.W. 1078, 1081 (1894) (denying recovery of emotional distress damages even after recognizing that a contract to send a sensitive telegram relates "wholly to matters of sentiment or feeling" and therefore breach of such a contract could reasonably be expected to result in mental anxiety); Deli, 578 N.W.2d at 781-82 (finding emotional distress damages could not be awarded on a claim for an athletic director's breach of an oral promise not to view a videotape that contained footage of the plaintiff's sexual encounter with her husband, despite the "inherently personal nature" of the contract); Born v. Medico Life Ins. Co., 428 N.W.2d 585, 587, 590 (Minn.Ct.App.1988) (stating that pain and suffering were extra-contractual damages even though the breach alleged was for a contract to provide medical insurance).
Instead of examining solely the foreseeability of certain damages to determine whether such damages may be extra-contractual, Minnesota law appears to restrict recoverable contractual damages more generally to those that are pecuniary in nature. The Minnesota Supreme Court
It does not appear that the Minnesota Supreme Court has ever precisely addressed whether pain and suffering and emotional distress damages are recoverable for breach of a contract between a physician and his patient. Where the Court is faced with an undecided question of Minnesota law, its role is to predict how the Minnesota Supreme Court would resolve the question. See Spine Imaging MRI, L.L.C. v. Country Cas. Ins. Co., Civ. No. 10-480, 2011 WL 379100, at *6 (D.Minn. Feb. 1, 2011) (citing Midwest Oilseeds, Inc. v. Limagrain Genetics Corp., 387 F.3d 705, 715 (8th Cir.2004)).
Although many courts have recognized that "a surviving patient can maintain a cause of action for breach of an express or implied promise against a physician," Zostautas v. St. Anthony De Padua Hosp., 23 Ill.2d 326, 178 N.E.2d 303, 307 (1961), courts have disagreed about whether those surviving patients can recover damages for pain and suffering or emotional distress. Some courts have held that where "liability is predicated on the failure to perform an agreed undertaking rather than upon negligence... the damages are restricted to the payments made, the expenditure for nurses and medicines, or other damages that flow naturally from the breach (thereof), and do not include the patient's pain and suffering as in malpractice actions." Id. at 305 (citations and internal quotation marks omitted).
Other courts, however, when faced with a contract between a physician and patient have applied the general rule of contract law that a plaintiff may recover damages that were within the contemplation of the
Based upon Minnesota's general law governing contractual damages, the Court concludes that the Minnesota Supreme Court would likely follow the Zostautas court's approach, and preclude the Kaplans from recovering pain and suffering and emotional distress damages based upon the breach of any contract formed with Mayo. Although it is possible that pain and suffering and emotional distress could have reasonably been within the contemplation of Mayo and the Kaplans based upon the nature of the contract at issue, the Minnesota Supreme Court has expressly rejected the approach used in Stewart and Sullivan of examining the underlying nature of the contract to determine whether damages such as those for mental anguish and pain and suffering are recoverable. See Francis, 59 N.W. at 1081 (refusing to "allow damages for injury to the feelings resulting from a breach of contract — even one [relating wholly to matters of sentiment or feeling]"). Instead Minnesota law appears to limit damages in a contract action to those capable of measurement by "some definite rule or standard of compensation," and "to the actual pecuniary loss naturally and necessarily flowing from the breach." Beaulieu, 114 N.W. at 356.
The Court's conclusion that the Kaplans may not recover damages for pain and suffering or emotional distress is further supported by the Eighth Circuit's opinion in this case. The Eighth Circuit specifically determined that the Kaplans had "provided sufficient evidence of
Under Minnesota law, a spouse of a person "injured as a direct result of the negligence of another shall have a right of action against that same person for her loss of consortium," provided the injured person recovers against the tortfeasor and the spouse joins his or her claim in the same action as the injured person. Thill v. Modern Erecting Co., 284 Minn. 508, 170 N.W.2d 865, 869 (1969). "Loss of consortium is a derivative claim, failure of the tort claims underlying the loss of consortium claim will preclude recovery." Schanhaar v. EF Techs., Inc., Civ. No. 08-5382, 2010 WL 4056045, at *4 (D.Minn. Oct. 14, 2010); see also Peters v. Bodin, 242 Minn. 489, 65 N.W.2d 917, 922 (1954).
Although it does not appear that Minnesota courts have explicitly rejected a claim for consortium brought as a derivative to a breach of contract claim, the Kaplans have not cited to, nor has the Court found any Minnesota cases that
In its motion, Mayo appears to be requesting dismissal of Mrs. Kaplan's claim rather than simply the exclusion of evidence in support of that claim. Normally "motions in limine are not proper procedural devices for the wholesale disposition of theories or defenses." In re Levaquin Prods. Liab. Litig., Civ. No. 08-5743, 2010 WL 4676973, at *3 (D.Minn. Nov. 9, 2010) (internal quotation marks omitted); see also CardioVention, Inc. v. Medtronic, Inc., 483 F.Supp.2d 830, 842 (D.Minn.2007) (declining to decide a dispositive motion contained within a motion in limine). However, the Court finds that it is proper to dismiss Mrs. Kaplan's claim at this time because requiring Mayo to file a separate motion to dismiss would "only prolong a meritless position," and would require the parties to reargue the validity of the loss of consortium claim, which has been fully briefed in connection with the motion in limine. See SPX Corp. v. Bartec USA, LLC, No. 06-14888, 2008 WL 3850770, at *3 (E.D.Mich. Aug. 12, 2008) (deciding whether summary judgment should be granted on a claim, even though the issue was raised in a motion in limine).
Mayo also requests that the Court exclude all evidence of damages not produced by the Kaplans prior to the December 30, 2012 deadline set by the Magistrate Judge. Although this argument was presented to the Magistrate Judge, the Magistrate Judge specifically declined to rule, and left this determination for this Court.
Federal Rule of Civil Procedure 37 provides that where a party "fails to obey an order to provide or permit discovery" a court is permitted to "prohibit[] the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence." Fed.R.Civ.P. 37(b)(2)(A). "The district court is afforded great latitude in imposing sanctions for failure to comply with discovery orders[.]" Hazen v. Pasley, 768 F.2d 226, 229 (8th Cir.1985).
Mayo confirmed at oral argument on the present motion that it has received all requested discovery regarding the Kaplans' claimed damages. The trial is not set to begin until this fall, giving Mayo ample time to review the Kaplans' relatively small amount of new damages information. Although this information is undoubtedly important, it cannot be that the slight delay in receiving this information from the Kaplans will or has seriously hampered Mayo's ability to prepare for this trial. The Court concludes that precluding the Kaplans from presenting updated evidence of damages would be an overly harsh sanction given the nature of the information and the timeline of this case. Thus, the Court will allow evidence produced after December 30, 2012, to be used at trial, and the Court cautions counsel to comply with the Federal Rules and the Court's orders in the future.
Based on the foregoing, and all the files, records, and proceedings herein,
1. Defendants' Motion in Limine [Docket No. 269] is
2. Defendants' Motion to Strike Pleading [Docket No. 300] is
