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Medical Malpractice Motion 16 - motion to bar expert testimony

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Defendant, Northwest Heart Specialists, S.C.'s Motion in Limine to BAR Certain Testimony of Lewis Hays, M.D.

Respectfully submitted, One of the Attorneys for Defendants, Northwest, Heart Specialists, S.C.

James J. Stamos, Esq., Julie B. Zogbaum, Esq., Stamos & Trucco LLP, One East Wacker Drive, Third Floor, Chicago, Illinois 60601, (312) 630-7979, Firm ID No. 18324.

Defendant, Northwest Heart Specialists, S.C. by and through its attorneys James J. Stamos and Julie B. Zogbaum of STAMOS & TRUCCO, LLP moves this court in limine to bar certain testimony of Lewis, M.D. In support thereof, defendant states as follows:

1. Dr. Lewis Hays, one of plaintiff's disclosed experts, specializes in pain management and palliative care.

2. At his deposition, Dr. Hays testified among other things:

(1) That Mr. Cupidro's pain management would have benefited from a course of Methadone and that Mr. Cupidro would have agreed to take the Methadone, had it been offered to him. (Dr. Hays' Dep. Tr., pg. 42).

(2) That Mr. Cupidro would have had less anxiety and would have preferred to have known about his diagnosis of terminal cancer in March, 2003. (Dr. Hays' Dep. Tr., p. 52).

(3) That there were other non-medical modalities of treatment available to Mr. Cupidro from music to massage to rakee to acupuncture, but that he had no way of knowing whether Mr. Cupidro would have been interested in those modalities (Dr. Hays, Dep. Tr., p. 38).

(4) That Hospice care also benefits to loved ones of the patient. (Dr. Hays, Dep. Tr., p. 46-47).

3. Dr. Hays should be barred from testifying to the above.

4. First, it is speculation on the part of Dr. Hays whether Mr. Cupidro would have taken Methadone, would have had less anxiety had he known of a diagnosis of terminal cancer in March, 2003, and whether he would have chosen to undergo these other non-medical modalities of treatment.

5. Dr. Hays has no basis other than sheer speculation for his testimony that Mr. Cupidro would have agreed to take Methadone, had it been offered to him. Mr. Cupidro's family members have testified that Mr. Cupidro did not like taking the narcotic Oxycontin and that he split the pills in half so that he did not take the full prescribed dosage. It is pure speculation on the part of Dr. Hays that Mr. Cupidro would have taken the opioid Methadone (synthetic Heroin) had he known of the cancer diagnosis in March, 2003. Additionally, Mr. Cupidro's medical records document that he suffered from and received treatment for anxiety as early as 1996, long before he developed his significant co-morbidities and terminal lung cancer. Clearly, Mr. Cupidro's anxiety was related to issues in his life that existed before he developed terminal lung cancer or underwent a chest x-ray. Because of this, there is no basis other than speculation for Dr. Hays to connect his anxiety to the fact that he did not know he had terminal lung cancer or contend that his anxiety would have been alleviate by knowing his diagnosis. Finally, Dr. Hays admitted that he had no way of knowing whether Mr. Cupidro would have been interested in those non-medical modalities of treatment. (Dr. Hays', Dep. Tr. Pg. 38).

6. Testimony that the loved ones of Mr. Cupidro would have benefited from Hospice care is irrelevant to the issue of damages in this case, because such a benefit accruing to the family members is not compensable under either the Survival Act or Wrongful Death Act. This irrelevant testimony should be barred. In re Kenneth D., 364 Ill.App.3d 797, 804, 847 N.E.2d 544, 550 (1 st Dist. 2006) (“[a]ll evidence must be relevant to be admissible”).

WHEREFORE, the defendant, Northwest Heart Specialists, S.C., respectfully requests that the court enter an order in limine barring Dr. Hays from giving the above referenced testimony.

Respectfully submitted,


One of the Attorneys for Defendants, Northwest

Heart Specialists, S.C.

James J. Stamos, Esq.

Julie B. Zogbaum, Esq.


One East Wacker Drive

Third Floor

Chicago, Illinois 60601

(312) 630-7979

Firm ID No. 18324

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