Discovery might produce juicy information, but can you actually get that information into evidence? If not, then that juicy information is worthless. Discovery needs to not only find that juicy information, but then support an argument that it should be admissible.
A typical fact pattern gets a lot more entertaining.
A car accident happened and the Plaintiff began receiving narcotic pain medication. 15 months later she started receiving these medications from one specific physician. During her first visit with that physician, she signed an acknowledgement of conditions to receive narcotics prescriptions. She agreed “to comply with random urine drug tests at any time and at my own expense…. I will not use illicit drugs or controlled substance mediations not prescribed by this practice. I understand that controlled substance medications should not be taken in conjunction with alcohol and/or recreational drugs.” She acknowledged the potential risks of pain medications included tolerance, dependence and/or addiction. Finally, she acknowledged “if I violate any of the conditions above, my prescriptions for controlled substance medications may be terminated immediately and I may be reported to other physicians, pharmacies, and law enforcement.”
39 months post accident Plaintiff is still getting narcotic pain medications from this physician. But on this particular visit, the physician collected a urine drug screen from her and renewed her Percocet prescription. The physician reviewed the drug screen findings at the next monthly visit. “Her last urine drug screen from last month came back positive for methamphetamine and negative for Percocet that she is being prescribed. The patient indicates no knowledge of this.” The physician had independently confirmed the finding. “I sent it off to a reference lab and the findings were confirmed.” As a consequence, the physician “advised her that I can no longer prescribe opiates for her. I will refer her to Las Vegas Rehab.”
At the next monthly appointment the physician noted the positive finding could not be a result of medications he prescribed to Plaintiff. “Her last UDS was negative percocet and positive methamphetamines (100% DL isomer which means this is not from her OTC reported medications below).” It got worse, a month or two later Plaintiff told the physician the test result was because she had taken her son’s Adderall, an ADHD prescription. The physician wrote this could not explain the test result.
To the extent any explanation is needed, these are really bad facts for a personal injury plaintiff, even when there are other good facts in the case. Plaintiff’s counsel did the only thing that could be done and moved to exclude all that evidence from trial.
The drug test was coming in.
The standard for the motion was whether the evidence was 1) relevant; and 2) more probative than prejudicial. Plaintiff skipped arguing relevance; there wasn’t much hope of winning that argument anyway. I argued it anyway because it was a strong point for my client.
“‘[R]elevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Plaintiff’s failed drug test was definitely relevant. The drug test addressed Plaintiff’s pain levels since she stopped receiving opioid medications. If her pain levels increased or her condition worsened afterwards, it would be fair to ask her why she is unable to obtain pain medications and her understanding of the physician refused to prescribe them. The drug test was also relevant to the defense damages theory, articulated before the drug test occurred, that Plaintiff’s ongoing symptoms and complaints were the result of something other than the accident at issue.
The local federal court addressed a similar issue in Roberts v. Smith’s Food & Drug Ctrs., Inc. In Roberts, the plaintiff asked to “exclude evidence indicating that she improperly used pain medication. Defendant points out that the degree to which plaintiff previously used pain medication is relevant to determining to what degree plaintiff’s injuries can be attributed to something other than the incident at issue in this case.” The evidence was admitted “[b]ecause plaintiff’s use of pain medication prior to the incident is probative of an essential element of the claims in this matter….”
Plaintiff instead focused on the probative v. prejudicial argument. “Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues or of misleading the jury.” We argued the failed drug test’s probative value was significant because it went to Plaintiff’s compliance with her doctor’s instructions, her ongoing pain symptoms, and why she was unable to obtain prescriptions that she believed would help control her pain levels. As Roberts stated, “plaintiff’s use of pain medication prior to the incident is probative of an essential element of the claims in this matter….”
The mere fact that the evidence may be adverse to a party is insufficient to exclude it. “‘[U]nfair prejudice’ … is not to be equated with testimony simply adverse to the opposing party. Virtually all evidence is prejudicial or it isn’t material. The prejudice must be ‘unfair’” Here, Plaintiff was aware she would be required to submit to drug tests as a condition of her pain management treatment. She voluntarily submitted to the test that found she took methamphetamine rather than the Percocet she was prescribed. Her physician independently confirmed the result and used it to determine his recommended course of treatment. Her resulting inability to obtain opiate pain medication reflected upon her current and future medical treatment. The prejudice Plaintiff would suffer was a result of a drug test she knew she had to take, voluntarily took, and then failed. The prejudice was of her own making and did not substantially outweigh the test’s probative value.
Creative alternative arguments to exclude also failed.
Plaintiff’s motion got creative and argued the failed drug test should be excluded as extrinsic evidence. “Impeachment by use of extrinsic evidence is prohibited when collateral to the proceedings. Collateral facts are by nature ‘outside the controversy, or are not directly connected with the principal matter or issue in dispute.’” The drug test wasn’t a collateral fact. It was a condition of the very pain management treatment that Plaintiff claimed was a result of this accident. Whether Plaintiff was complying with her physician’s instructions and adhering to the terms of her pain management treatment was directly related to the damages she alleges. The failed drug test was very much at the center of the controversy in the case.
Plaintiff alternatively argued the jury could simply be informed she didn’t take prescribed medicine (Percocet) during a specific period, which would eliminate the need to discuss the failed drug test. We replied that alternative twisted the facts in a manner that distorted the truth. Plaintiff’s methamphetamine use was indicative of potential addiction and is consistent with the defense damages theory that her injuries were related to something other than the accident. Informing the jury merely that she did not take prescribed medication during a certain period of time implied that she chose not to take the medication. However, she denied having any knowledge of why methamphetamine was found in her drug test but not the Percocet that she was prescribed. The proposed explanation also failed to account for why Plaintiff continued treating with a pain manager who refused to prescribe opiate medications to her.
We also noted there are many legitimate reasons a patient may not take prescribed medications during a specific period. The pain medication acknowledgement Plaintiff executed discussed some of them. “If my medications are misplaced, stolen, or run out early, I understand that the medication will not be replaced regardless of circumstances.” Plaintiff didn’t claim any such excuses here. She never claimed that she ingested methamphetamine because she ran out of Percocet.
judge ultimately denied Plaintiff’s motion, so it was coming in. The point of
the post though is that the failed drug test was a juicy fact but it was
admissible only because it tied into other admissible arguments that had been
developed in discovery.
 These facts are all relatively standard and boring.
 These facts are anything but relatively standard and boring.
 When you find yourself in a hole, continuing to dig generally will not improve the situation.
 To say the least, the potential settlement value cratered.
 Been there, done that. It’s all that you can do.
 NRS 48.015.
 2:11-cv-1917, 2014 U.S. Dist. LEXIS 72609, 2014 WL 12802901 (D. Nev. May 28, 2014).
 NRS 48.035(1)
 Dollar v. Long Mfg., N. C., Inc., 561 F.2d 613, 618 (5th Cir. 1977).
 Lobato v. State, 120 Nev. 512, 518, 96 P.3d 765, 770 (2004).
 There was a settlement conference shortly after this motion was decided. The settlement conference judge started in the defense room, which is slightly unusual. The judge walked in, looked at me, and asked something to the effect of “are you going to be disappointed if this case settles today because you won’t get to cross the plaintiff?” I grinned and acknowledged that would be a lot of fun, but there were still reasons to settle the case. The judge then left the room. Ultimately, the case never settled (meth is expensive I guess), Plaintiff’s counsel withdrew, and the case was dismissed because the now pro se Plaintiff failed to appear for the pre-trial conference.