IN THE COURT OF COMMON P 3 15 CUYAHOGA COUNTY, OHIo'n, rr niirts

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1 Aj FILED IN THE COURT OF COMMON P 3 15 CUYAHOGA COUNTY, OHIo'n, rr niirts CLERn OS' LUUK I o JOHN BALLAS, ET AL. Case No: COUNT Y Plaintiff Judge: MICHAEL E JACKSON LORENZO S. LALLI, M.D. Defendant JOURNAL ENTRY DEFENDANT LORENZO S. LALLI, M.D. S MOTION IN LIMINE LEGAL AND LICENSURE ISSUES, FILED 04/04/2016, IS GRANTED AND DENIED IN PART. O.S.J. v/ "!>(, 04/11/2016 Page 1 of 1

2 IN THE COMMON PLEAS COURT CUYAHOGA COUNTY, OHIO JOHN BALLAS, et al CASE NO.: CV v. Plaintiffs, LORENZO S. LALLI, M.D., Defendant. JUDGE MICHAEL E. JACKSON JOURNAL ENTRY & OPINION: DEFENDANTS MOTION IN LIMINE REGARDING LICENSE, AND LEGAL ISSUES. On April 4, 2016, Defendant Lorenzo Lalli, M. D. (Defendant filed a motion in limine regarding legal and licensure issues. Plaintiffs John and Ellen Balias (collectively, Plaintiffs, or individually, Balias filed a Brief in Opposition to this motion. Issues not resolved in this order will be decided in a subsequent Journal Entry and Opinion. For the reasons that follow, Defendant's motion is granted and denied in part. Defendant s motion is granted concerning the use of "catchy phrases" and terms such as pill mill and the like that may be used to describe Defendant s conduct in treating patients or writing prescriptions, like Balias. Defendant s motion is also granted concerning his medical license that he surrendered to the State Medical Board of Ohio on November 5, This occurred after his physician-patient relationship with John Balias had ended.1 Plaintiffs and Plaintiffs' counsel are precluded from using any such terms or "catchy phrases" and from mentioning Defendant s surrender of his medical license at any time during this trial, including jury selection, opening statements and closing arguments, and questioning of any witnesses. i Further, Plaintiffs' counsel is instructed to inform each of his witnesses that such terms or 1 The Court notes that in Plaintiff s complaint, he alleged in paragraph 4 that Defendant provided medical care to John Balias from 1990 through July 30, 2013, approximately three months before Defendant surrendered his medical license. This ruling is based on the information and the case law presented in Defendant s motion; Plaintiff did not respond to this aspect of Defendant s motion in his Brief in opposition. 1

3 "catchy phrases" or mention of the surrender of the medical license may not be stated in ij responding to questions from either counsel. Defendant s motion is denied concerning use of Defendant's felony convictions for impeachment purposes pursuant to Evid.R This Court will hold the remaining issues in abeyance until the parties supplement their briefs on these issues. A decision will be made in a subsequent Journal Entry and Opinion. Defendant pled guilty to five felonies, three counts of Trafficking in violation of O. R. C (A(1, each a felony in the fourth degree, punishable by a prison term of six months to 18 months and any month in between, and two counts of Illegal Processing of Drug Documents, each a felony in the fifth degree, punishable by prison term of six months to 12 months and any month in between. Defendant s conduct regarding Trafficking occurred on or about February 14, 2012, March 31, 2012, and July 27, Defendant s conduct regarding Illegal Processing of Drug Documents occurred on or about October 23,2012 and January 15, Evid.R. 609(A provides that for the purpose of attacking the credibility of the witness, a conviction of crime is admissible for such purpose, subject to the conditions set forth in this rule. Subparts (1 and (3 apply in this situation. Subpart (1 states that Subject to Evid. R. 403, evidence that a witness... has been convicted of a crime is admissible if the crime is punishable by... imprisonment in excess of one year pursuant to the law which the witness was convicted. Evid.R. 609(A(1. Defendant s three convictions for Trafficking are covered by subpart (1 because he was subject to imprisonment in excess of one year, 18 months in his case for each one of these offenses. The fact that he was actually sentenced to only 11 months and each count running concurrently to the other is not determinative; his crimes were punishable in excess of one year. 2

4 Subpart (3 states that: Notwithstanding Evid. R. 403 (A, but subject to Evid. R. 403 (B, evidence that any witness... has been convicted of a crime is admissible if the crime involved dishonesty or false statement, regardless of the punishment... Evid.R. 609(A(3. Each one of the two charges in Defendant s Illegal Processing of Drug Documents state that he did make, utter, or sell, or knowingly possess a false or forged prescription. He pled guilty to and was sentenced on each of these counts. Such conduct constitutes a crime of dishonesty or false statement that satisfies subpart (3 of this rule. Even though these five convictions meet the requirements of Evid. R. 609, Defendant argues that none of his convictions should be mentioned during this trial because the probative value of using these convictions is substantially outweighed by the danger of unfair prejudice, confusion of issues, or of misleading jury. Evid. R. 403(A. Defendant contends that he has established one or more of these factors thereby precluding the use of these five convictions. Plaintiff disputes this contention, and argues that the jury should be made aware of Defendant s five convictions because none of the dangers stated in Evid. R. 403 apply to this situation. When using convictions to impeach the credibility of a witness, pursuant to Evid.R. 609, the jury only hears limited evidence of the conviction. Specific information about the conviction may be elicited, such as the nature of the crime, date and place of conviction, and sentence imposed. In order to minimize the prejudicial impact, the trial judge has broad discretion to limit anything further, but may allow additional questions when important details are omitted. State v. Wright (1990, Ohio St. 3d 5; State v. Taylor ( Ohio St. 3d 15. Typically, trial courts provide the jury with a jury instruction regarding this issue when these events occur during the trial. 3

5 Neither party submitted sufficient information for this Court to determine whether a jury will be made aware of the details concerning Defendant s five convictions pursuant to the provisions of Evid.R. 403, Evid. R. 404(B, and Evid.R Specifically, it is not clear whether Defendant s conduct concerning these convictions is exactly the same as Defendant s conduct regarding Plaintiffs' medical malpractice claim, similar conduct, or different conduct all together. This information is important to determine whether a jury may be confused or misled by the introduction of testimony concerning Defendant s five convictions, or if the evidence is necessary to prove some other purpose such as absence of mistake or accident, intent, motive, plan, etc. Evid.R. 403(A, and Evid.R 404(B. The information provided by Plaintiff in his Brief in opposition does not resolve this issue, and Defendant s Motion is extremely vague in this regard. Accordingly, the Court will order the transcript of the Defendant s sentencing hearing to understand the factual basis for these crimes that was presented by the Cuyahoga County assistant prosecuting attorney to the sentencing court for consideration when Defendant s sentence was imposed, as well as information provided by defense counsel, or others may have provided information to that court. This transcript will be made available to each party. When this information is available, the parties will brief these issues. The Court will finalize the details of its Order regarding permissible evidence concerning Defendant s five felony convictions, and whether Defendant s conduct arising out of or related to his five felony convictions will be admissible under Civil R. 404(B. Both of these issues will be decided before jury selection. Nevertheless, unless or until further order, this Court has determined that if Dr. Lalli is questioned about these convictions he may testify that: (1 he was convicted of five felony convictions that took place in Cuyahoga County; (2 two of his five felony convictions involve 4

6 ii dishonesty or false statements; (3 his conduct regarding these convictions occurred on or about February 14, 2012, March 13, 2012, July 27, 2012, October 23, 2012, and January 15, 2003; (4 U he was sentenced to prison for 11 months for all of these felonies by the sentencing judge (not this Court on July 29, 2014; and (5 he has completed his sentence and was released from prison. IT IS SO ORDERED. DATED:_ i-hf/ju THE CLERK OF COURT SHALL SERVE A COPY OF THE FOREGOING JOURNAL ENTRY AND OPINION ON ALL COUNSEL OF RECORD AT THE ADDRESS LISTED ON THE COURT DOCKET. 5

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