Carpenter et al v. American Family Mutual Insurance Company
ORDER granting in part and denying in part 126 Plaintiff's Motion in Limine. By Judge Robert E. Blackburn on 9/23/2015.(mlace, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-01986-REB-CBS
AMERICAN FAMILY MUTUAL INSURANCE COMPANY,
ORDER CONCERNING MOTION IN LIMINE
This matter is before me on the Plaintiff’s Motion In Limine [#126]1 filed
October 10, 2014. No response was filed. I grant the motion in part and deny it in part.
Plaintiff Kimberly Carpenter seeks $500,000 in benefits from five separate
Underinsured Motorist coverage contracts purchased from the defendant. Ms.
Carpenter suffered an injury to her low back in a January 25, 2011, rear-end collision.
She says the impact herniated her L5-S1 disc, which injury required surgery. In
addition, she claims to suffer symptoms caused by the back injury.
Ms. Carpenter claims her insurer, American Family Mutual Insurance Company,
breached the insurance contracts, withheld covered benefits without a reasonable
basis, and was deliberately indifferent to all information concerning her claim. She
seeks contractual and extra-contractual damages along with statutory remedies as
“[#126]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
outlined by C.R.S. §§10-3-1115 and 10-3-1116. American Family disputes the nature
and extent of the alleged injuries of Ms. Carpenter as well as the relatedness of the
alleged injuries to the motor vehicle accident.
In the motion in limine, Ms. Carpenter seeks the exclusion of certain evidence
from trial. First, Ms. Carpenter seeks exclusion of evidence concerning Dr. Timothy
Kuklo, the doctor who surgically repaired the herniated lumbar disc of Ms. Carpenter.
Roughly six years ago, Dr. Kuklo was a U.S. Army surgeon. He was accused of
unauthorized research into and improper publication of his treatment of soldiers using a
bone graft product. The investigation closed without any conclusive finding that Dr.
Kuklo engaged in research misconduct. I grant this portion of the motion on both
procedural and substantive grounds.
Procedurally, the defendant has waived or forfeited any such challenge because
(1) the defendant did not file a response to the motion in limine; and (2) the defendant
did not file a motion under Fed. R. Evid. 702 challenging the expert opinion testimony of
Substantively, I find and conclude that such evidence is not relevant to the
qualifications of Dr. Kuklo or the reliability of his expert opinions. Further, such
evidence is not relevant to the credibility of Dr. Kuklo or any other consequential fact at
issue in this case. Fed. R. Evid. 401, 402. Thus, as to evidence of the allegation of
research misconduct against Dr. Kuklo, the motion in limine is granted.
Second, Ms. Carpenter seeks exclusion of evidence that some of her past and
future medical expenses have been or will be satisfied through her health insurance.
Under Wal-Mart Stores, Inc. v. Crossgrove, 276 P.3d 562, 566 (Colo. 2012),
“evidence of a plaintiff's receipt of collateral source benefits is not only inadmissible to
offset or mitigate damages, but also involves a substantial likelihood of prejudicial
impact if admitted for other purposes because evidence of collateral benefits is readily
subject to misuse by a jury. Thus, Colorado's common law collateral source rule
completely bars the admission of collateral source evidence.” Id. (internal quotation and
citation omitted). §13–21–111.6, C.R.S., abrogates parts of the post-verdict
component of the common law collateral source rule. Id. The present motion does not
implicate such post-verdict issues. Thus, any evidence that some of the past and future
medical expenses of Ms. Carpenter have been or will be satisfied through her health
insurance must be excluded.
Third, Ms. Carpenter seeks the exclusion of evidence of the financial
consequences of a jury determination that American Family withheld insurance benefits
without a reasonable basis. Under §10-3-1116(1), C.R.S., if a jury finds an insurer
withheld benefits without a reasonable basis, the court – not the jury – shall award two
times the covered benefit, plus reasonable attorney fees. The only factual findings the
jury must make with respect to such a claim is whether the covered benefit was
unreasonably delayed or denied and the amount of the covered benefit. Based on the
verdict of the jury, the court awards two times the covered benefit and reasonable
attorney fees. CJI-Civ. 4th 25:4, 25:10 and the concomitant Notes on Use and Source
and Authority. Evidence of the potential award of two times the covered benefit plus
reasonable attorney fees is not relevant to any determination a jury must make on such
a claim. Fed. R. Evid. 401, 402. Therefore, such evidence must be excluded from trial.
Fed. R. Evid. 104(d).
Fourth, Ms. Carpenter seeks to exclude photos of the car in which she was
injured, which photos show little property damage to the Carpenter car. Such photos,
Ms. Carpenter contends, invite juror speculation regarding the cause of her disc
herniation. While it may be that such photos are not relevant or invite such speculation,
it also is conceivable that photos of the car in which Ms. Carpenter was injured are
relevant to a fact of consequence in this case. I cannot make a conclusive
determination on these issues until the evidentiary landscape becomes clear at trial.
Concerning the photos of the Carpenter car, the motion in limine is denied without
THEREFORE, IT IS ORDERED as follows:
1. That the Plaintiff’s Motion In Limine [#126] filed October 10, 2014, is
granted as to (a) evidence of the allegation of research misconduct against Dr. Kuklo,
(b) evidence that past and future medical expenses of Ms. Carpenter have been or will
be satisfied through her health insurance, and (c) evidence of the potential award of two
times the covered benefit plus reasonable attorney fees under §10-3-1116(1), C.R.S.;
2. That otherwise, the Plaintiff’s Motion In Limine [#126] filed October 10,
2014, is denied without prejudice.
Dated September 23, 2015, at Denver, Colorado.
BY THE COURT:
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