Johnson v. Walker

Filing 54

ORDER granting in part and denying in part 34 Defendant's Motion in Limine. Signed by Honorable Susan O. Hickey on June 10, 2015. (mll)

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

ANDREA JOHNSON

v.

PLAINTIFF
Case No. 4: 14-cv-04078

JOHN W. WALKER, P.A.

DEFENDANT

ORDER

Before the Court are Defendant's Motions in Limine 1-7. (ECF No. 34). Plaintiff has
responded. (ECF No. 48). This matter is ripe for the Court's consideration. The Motion will be
granted in part and denied in part as follows:
1. Defendant asks the Court to preclude plaintiff's counsel and plaintiff's witnesses from
referring to any punitive type evidence or punishment to "send a message," or to Defendant's
fmancial status. Plaintiff objects and contends that evidence related to Plaintiff's claim for
punitive damages is admissible and relevant because Plaintiffs causes of action include claims
for which punitive damages are recoverable. Defendant indicates that he has simultaneously
filed a motion to bifurcate the issues of liability and compensatory damages from the issue of
punitive damages; however, the Court does not see that this motion has been filed. Plaintiff has
pled punitive damages and there is evidence in the record to support the submission of the issue
of punitive damages to the jury. Accordingly, Defendant's motion is DENIED WITHOUT
PREJUDICE.

2. Defendant asks the Court to preclude all counsel from offering any witness to the
Court to be confinned as an "expert" when there has been no objection to the qualifications of
the expert. Defendant argues that it is improper and unnecessary for counsel to "offer" a witness

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to the Court to be confirmed as an "expert" because it suggests that the Court is commenting on
the qualifications of the witness and endorsing the witness to the jury. Plaintiff has no objection.
Accordingly, Defendant's motion is GRANTED. The parties are prohibited from offering any
witness to be confinned as an "expert" when there has been no objection to the qualifications of
the expert.
3. Defendant asks the Court to preclude Plaintiff, Plaintiff's counsel, and Plaintiff's
witnesses from making or suggesting the "Golden Rule" argument, i.e., an argument which asks
the jury to place itself in the position of Plaintiff, awarding to Plaintiff the amount the jurors
would like to receive themselves for similar circumstances.

Plaintiff does not object.

Accordingly, Defendant's motion is GRANTED. Plaintiff, Plaintiff's counsel, and Plaintiff's
witnesses are precluded from making or suggesting the "Golden Rule" argument.
4. Defendant asks the Court to exclude any testimony as to what duty was owed by
Defendant or what duty was owed by a party under certain circumstances, or what is the "law."
Defendant contends that whether a duty exists is a question of law for the Court and not a
question of fact for the jury. Defendant further argues that the "law" will be given by the Court
through instructions, not witnesses. Plaintiff objects because one of Plaintiff's claims is breach
of fiduciary duty, and whether Defendant breached his duty to Plaintiff will be an issue at trial.
The Court agrees with Defendant that the issue of what duty is owed is a question of law. Long
v. Lampton, 324 Ark. 511, 520, 922 S.W.2d 692, 698 (1996).

Defendant's motion is

GRANTED. The parties and witnesses are precluded from instructing the jury or testifYing as to
what duty was owed by Defendant or by a party. However, whether a fiduciary breached his
fiduciary duty is a question of fact for a jury to decide, and the parties. may introduce evidence as

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to whether Defendant breached his fiduciary duty. See Wal-Mart Stores, Inc. v. Coughlin, 369
Ark. 365, 374, 255 S.W.3d 424,431 (2007).
5. Defendant asks the Court to exclude any reference to a party's liability insurance or
reference to liability insurance. Plaintiff does not object. Defendant's motion is GRANTED.
The Parties and witnesses are precluded from making any reference to a party's liability
insurance or reference to liability insurance.
6. Defendant asks the Court to preclude any suggestion, mention, or reference to the
Model Rules of Professional Conduct.

Plaintiffs contend that evidence of a failure to comply

with the Model Rules of Professional Conduct can be considered, along with other evidence, in
determining whether actions constitute a breach of fiduciary duty. "No cause of action should
arise from a violation, nor should it create any presumption that a legal duty has been breached."
AI/en v. Allison, 155 S.W.3d 682, 690 (Ark. 2004); Orsini v. Larry Moyer Trucking, Inc., 833

S.W.2d 366, 369 (Ark. 1992) (citing "Scope," Model Rules of Professional Conduct, by per
curiam order of the Supreme Court of Arkansas, December 16, 1985). While Plaintiff might not
intend to offer evidence of failure to comply with the Model Rules of Professional Conduct as a
basis for civil liability, the evidence could create the presumption that a legal duty has been
breached. The probative value of references to the Model Rules of Professional Conduct is
outweighed by the unfair prejudice. Accordingly, Defendant's motion is GRANTED. The
parties and witnesses are precluded from suggesting, mentioning, or referencing the Model Rules
of Professional Conduct.
7. Defendant asks the Court to preclude any suggestion, mention, or reference to the
Arkansas Committee on Professional Conduct or the complaint filed with the Committee by
Plaintiff concerning Defendant. Plaintiff objects because Defendant has alleged in his Amended

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Answer that Plaintiff's claims should be barred by estoppel or waiver. Plaintiff contends that her
complaint with the Arkansas Committee on Professional Conduct is relevant as evidence to show
that Plaintiff did not waive any of her rights, nor is she estopped from pursuing this claim.
Defendant's motion is GRANTED IN PART and DENIED IN PART. If Defendant opens the
door at trial by claiming that Plaintiff has waived or is estopped from asserting her claims
because she did not object or take action to resolve her dispute with Defendant, then Plaintiff can
say that she complained to the Arkansas Committee on Professional Conduct. Otherwise, the
parties and witnesses are prohibited from making any references to the Arkansas Committee on
Professional conduct or Plaintiff's complaint filed with the Committee.
For the reasons stated above, the Court finds that Defendant's Motions in Limine Nos. 1­
7 (ECF No. 34) should be and hereby are GRANTED IN PART and DENIED IN PART.
IT IS SO ORDERED, this 10th day of June, 2015.
lsI Susan O. Hickey

Susan O. Hickey
United States District Judge

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