Casaretto v. Geico Casualty Company
ORDER by Magistrate Judge Michael E. Hegarty on 5/26/17 DENYING without prejudice 50 Plaintiff's Motion in Limine Re: Improper Statements or Innuendo Regarding Plaintiff's Motives for Asserting Claims Against Defendant, such as Greed, Secondary Gain, Malingering or Other Such Matters; and GRANTING 51 Plaintiff's Motion in Limine to Preclude Evidence and Argument Re: the Required Damages Under C.R.S. § 10-3-1116. (nmarb, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00285-MEH
GEICO CASUALTY COMPANY,
ORDER ON PLAINTIFF’S MOTIONS IN LIMINE
Michael E. Hegarty, United States Magistrate Judge.
Before the Court are Plaintiff’s Motions in Limine. See ECF Nos. 50–51.
Plaintiff’s Motion in Limine Re: Improper Statements or Innuendo Regarding
Plaintiff’s Motives for Asserting Claims Against Defendant, such as Greed, Secondary
Gain, Malingering or Other Such Motives
Plaintiff’s Motion in Limine Re: Improper Statements or Innuendo Regarding Plaintiff’s
Motives for Asserting Claims Against Defendant, such as Greed, Secondary Gain, Malingering or
Other Such Motives [filed May 10, 2017; ECF No. 50] is denied without prejudice. Plaintiff seeks
to exclude all argument, testimony, and evidence regarding Plaintiff’s motivation for asserting
claims against Defendant. Pl.’s Mot. 4, ECF No. 50. Defendant contends that “[e]vidence regarding
secondary gain as a possible cause of pain and disability are relevant” to the determinations the jury
must make. Def.’s Resp. 3, ECF No. 52.
Without knowing the specific context in which the testimony arises and the extent of the
evidence presented beforehand, the Court cannot make a definitive determination on whether
evidence demonstrating Plaintiff’s motivations is admissible. Some of Plaintiff’s motivations for
bringing this lawsuit may be entirely irrelevant to the extent of Plaintiff’s injuries and whether they
were caused by the underlying accident. For example, testimony that Plaintiff continues to pursue
this lawsuit because of her greed or desire for financial benefits would likely be inadmissible. See
Caldwell v. Wal-Mart Stores, Inc., 229 F.3d 1162, at *5 (10th Cir. 2000) (Table) (holding that the
district court properly excluded testimony about the plaintiff’s financial motivations for pursuing
the action, because “absent some evidence of fraud . . . evidence of [the plaintiff’s] financial
motivation to bring this suit was not relevant to any of the issues in this case.”). However, it would
be permissible for Defendant to offer Plaintiff’s inconsistent statements regarding when and how
Plaintiff incurred her injuries to show that the accident was not the cause of the alleged harm.1
Indeed, evidence offered for this purpose would be directly relevant to Defendant’s theory of the
case—that the accident did not cause all the injuries of which Plaintiff complains.2
Because the admissibility of the evidence Plaintiff seeks to exclude depends on the facts
presented at trial and the context in which the evidence is presented, the Court will make real-time
determinations in response to specific objections Plaintiff raises. Accordingly, Plaintiff’s motion
is denied without prejudice.
To the extent Defendant intends the inconsistent statements to raise an inference that
Plaintiff’s injuries are caused, at least in part, by secondary gain, this would likely be
permissible. See Watson v. Taylor, 477 F. Supp. 2d 1129, 1136 (D. Kan. 2007) (“[E]vidence
regarding secondary gain, as a possible cause of plaintiff’s pain and disability, was relevant. . . .
Although evidence of secondary gain may reflect unfavorably on plaintiff’s motivation, its
probative value was not substantially outweighed by the risk of unfair prejudice.”).
Additionally, assuming Defendant can demonstrate that Plaintiff’s prior statements are
actually inconsistent with her testimony, Defendant may use those statements on crossexamination to impeach Plaintiff’s credibility under Rule 613.
Plaintiff’s Motion in Limine to Preclude Evidence and Argument Re: the Required
Damages Under C.R.S. § 10-3-1116
Plaintiff’s Motion in Limine to Preclude Evidence and Argument Re: the Required Damages
Under C.R.S. § 10-3-1116 [filed May 10, 2017; ECF No. 51] is granted. Plaintiff seeks to exclude
any mention of the statutory penalties provided by Colo. Rev. Stat. § 10-3-1116(1), which permits
a plaintiff to recover reasonable attorney fees and two times the covered benefit. Pl.’s Mot. 3, ECF
No. 51. Defendant does not oppose the requested relief, and the Court agrees that statutory penalties
are not relevant to the issues the jury must decide. Seidman v. Am. Family Mut. Ins. Co., No. 14-cv03193-WJM-KMT, 2016 WL 8201768, at *3 (D. Colo. Sept. 13, 2016) (“[T]he statutory penalty is
not relevant to the jury’s deliberations. The jury need only determine the amount of the delayed or
denied benefit.”); Toy v. Am. Family Mut. Ins. Co., No. 12-cv-01683-PAB-MJW, 2014 WL 486173,
at *1 (D. Colo. Feb. 6, 2014) (“Defendant fails to show that the penalty under § 10-3-1116(1) has
any probative value on the issue of whether defendant unreasonably delayed or denied payment of
the covered benefit.”). Accordingly, Plaintiff’s motion is granted.
Entered and dated at Denver, Colorado, this 26th day of May, 2017.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge
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