IN THE THIRD JUDICIAL DISTRICT COURT IN AND FOR SALT LAKE COUNTY, STATE OF UTAH : : : : : : : : : : : :

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1 Gregory J. Sanders, USB No Patrick C. Burt, USB No David R. Garner, USB No KIPP AND CHRISTIAN, P.C. Attorneys for Harmony Home Health 10 Exchange Place, 4 th Floor Salt Lake City, Utah Telephone (801) gjsanders@kippandchristian.com pburt@kippandchristian.com dgarner@kippandchristian.com IN THE THIRD JUDICIAL DISTRICT COURT IN AND FOR SALT LAKE COUNTY, STATE OF UTAH RASHAUNA KIRKLAND, an heir of NEDRA KIRKLAND, and personal representative of the estate of NEDRA KIRKLAND, deceased v. Plaintiffs, HARMONY HOME HEALTH, JOHN and JANE DOES 1-15, Defendants. MOTION IN LIMINE TO EXCLUDE ANY REFERENCE TO HEALTHINSIGHT OR THE CENTERS FOR MEDICARE & MEDICAID SERVICES Case No Discovery Tier III Judge Keith Kelly Defendant Harmony Home Health ( Harmony ), by and through counsel, hereby submits this Motion in Limine to exclude any reference to HealthInsight, the Centers for Medicare & Medicaid Services, or their investigations and reports. RELIEF REQUESTED Defendant hereby requests the Court grant this Motion in Limine to exclude any reference to HealthInsight, the Centers for Medicare & Medicaid Services ( CMS ), or their investigations

2 and reports. Any reports or statements generated by HealthInsight and CMS are hearsay and are misleading, confusing, and prejudicial since they speak to an issue not before the Court. FACTS 1. This action arises from the death of Nedra Kirkland on September 27, See Complaint, Nedra Kirkland had been suffering from a brain injury causing dementia and a decline in mental status since 2007, neurogenic bladder requiring catheter and frequent urinary tract infections since 2007, and diabetes. See Certificate of Death, attached hereto as Exh. A. 3. Harmony was providing health services starting approximately in December See Complaint, Nedra Kirkland had another urinary tract infection in September and Urosepsis was listed as the cause of death. See Exh. A. 5. Plaintiff claims that Harmony was negligent in their response to the urinary tract infection. See Complaint. 6. Plaintiff made complaints that generated two reviews and reports of the case. These reviews and reports were done by HealthInsight and the CMS. See Reports, attached hereto as Exh. B. 7. HealthInsight is an independent contractor that has contracted with CMS as a Quality Innovation Network-Quality Improvement Organization (QIN-QIO) for the state of Utah. See healthinsight.org, about us page. 2

3 8. The reports state, some of the care Nedra Kirkland received did not meet professionally recognized standards of care and Harmony should have at least followed up with a call to the MD on 9/20/2011. See Exh. B. ARGUMENT I. The Reports Prepared by HealthInsight and CMS Qualify as Hearsay and Should Be Excluded By URE 801 and 802. Utah Rule of Evidence ( URE ) 801 states, in relevant part, Hearsay is a statement that (1) the declarant does not make while testifying at the current trial or hearing; and a party offers in evidence to prove the truth of the matter asserted in the statement. See URE 801. Generally, hearsay testimony is inadmissible in trial unless subject to a hearsay exception. See URE 802. Here, it is believed that plaintiff plans to introduce into evidence information pertaining to the investigations and findings of HealthInsight and the CMS. The reports contain language such as some of the care Nedra Kirkland received did not meet professionally recognized standards of care and Harmony should have at least followed up with a call to the MD on 9/20/2011. None of the statements made in the reports were made while testifying in this current trial. So, the first element of hearsay is met. The only possible purpose of introducing this evidence, that could be argued as relevant, would be to assert that at least some of the care plaintiff received was deficient. In other words, it is clear that Plaintiff plans to introduce statements to prove the truth of the matter asserted. Therefore, the second element is met. This clearly qualifies as hearsay and should be excluded from evidence under URE 801 and

4 II. The Duties Under the Regulations Are Reviewed Under a Different Standard and for a Different Purpose Than the Standard of Review Used for Duties Under a Negligence Claim. Under the URE, [t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Utah R. Evid The reports filed by HealthInsight and CMS would create undue prejudice, confuse issues, and mislead the jury. The C.F.R. regulations pertinent to the investigations by HealthInsight and CMS are from part 484, the section for Home Health Services. This section describes the scope of the regulations as follows The provisions of this part serve as the basis for survey activities for the purpose of determining whether an agency meets the requirements for participation in the Medicare program. 42 C.F.R In other words, when HealthInsight and CMS are reviewing the actions taken by Harmony Home Health, they are reviewing everything in the context of whether Harmony s actions met the requirements for participating in Medicare. Neither HealthInsight or CMS have the focus of determining whether Harmony was negligent. Whether Harmony s actions were in line with the regulations for participation in Medicare is not at issue in this case. Therefore, there is no probative value gained from including this information. Further, producing any findings or reports would likely confuse the issues for the jury. The jury would misunderstand the focus of the reports versus the focus and duties under a standard of negligence. The findings would serve to unduly prejudice and mislead the jury. 4

5 The issue of misleading the jury is further amplified since this amounts to expert testimony. Expert testimony is even more likely to persuade a jury and, in this case, mislead them. Beyond being hearsay and unduly prejudicial, these reports violate the protections under Utah Rules of Civil Procedure ( URCP ) Rule 26. Among other protections, expert opinions are only allowed if properly disclosed and opposing counsel is given time to perform discovery and prepare rebuttal evidence. See Utah R. Civ. P. 26. Here, none of the proper procedural requirements under Rule 26 have been met. Given there is no probative value and the substantial undue prejudice, the information violates both URE Rule 403 and URCP Rule 26. The Court should grant Harmony s Motion in Limine to exclude any information pertaining to HealthInsight, CMS, or their reports and findings. CONCLUSION Based on the foregoing, Defendant s Motion in Limine should be granted. DATED this 9 th day of October, KIPP AND CHRISTIAN, P.C. /s/ David R. Garner GREGORY J. SANDERS PATRICK C. BURT DAVID R. GARNER Attorneys for Harmony Home Health 5

6 CERTIFICATE OF MAILING The undersigned hereby certifies that on the 9 th day of October, 2018, a true and correct copy of the foregoing MOTION IN LIMINE TO EXCLUDE ANY REFERENCE TO HEALTHINSIGHT OR THE CENTERS FOR MEDICARE & MEDICAID SERVICES was mailed, first class U.S. postage pre-paid, to the following Jared B. Stubbs Stephanie L. O Brien Macarthur Heder & Metler, PLLC 4844 N. 300 W., Suite 300 Provo, UT /s/ Cheryl Browning 6