Primo v. State Farm Mutual Automobile Insurance Company

Filing 73

ORDER finding as moot 57 Joint Motion to Allow Electronic Devices; granting 58 Joint Motion to Allow Paralegals Beyond the Bar; granting in part, denying in part, and withdrawing in part 61 Defendant's First Motion in Limine, 62 Defendant's Second Motion in Limine, 63 Plaintiff's First Motion in Limine, 64 Plaintiff's Second Motion in Limine, 65 Plaintiff's Third Motion in Limine, 66 Plaintiff's Fourth Motion in Limine, and 67 Plaintiff's Fifth Motion in Limine. See Order for details. Signed by Judge Timothy J. Corrigan on 8/11/2014. (BJB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
WILLIAM PRIMO,
Plaintiff,
v.

Case No. 3:13-cv-64-J-32MCR

STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY, a Florida insurance
corporation,
Defendant.
ORDER
This case comes before the Court on the parties’ motions in limine (Docs. 61, 62,
63, 64, 65, 66, 67) and two joint motions regarding trial logistics (Docs. 57, 58)
following a pretrial conference on July 23, 2014 (Doc. 71). At the pretrial conference,
the Court heard oral argument on the motions and ruled on most of the issues raised
therein.

(See id.)

The Court also took certain issues under advisement for

subsequent ruling, which it addresses now.
I.

WORKERS’ COMPENSATION RECORDS
In Primo’s First Motion in Limine, he requests the Court exclude all evidence

of his past and present workers’ compensation claims, including specific workers’
compensation records related to the injuries his allegedly sustained in the subject
accident in this case. (Doc. 63.) At the hearing, the parties agreed that evidence of
past workers’ compensation claims for injuries similar to those alleged here would be

admissible at trial, but not for different injuries (like a prior ankle injury).

The

parties also agreed to work together to redact any references to workers’ compensation
from records to be used at trial.
The parties disagreed, however, as to whether certain records prepared for
Primo’s workers’ compensation claim for the subject injuries should be excluded as
hearsay. Primo contends the documents were prepared for litigation and therefore
do not fall under the exception for medical records in Federal Rule of Evidence 803(4).
State Farm disagrees and contends that, in any event, they are business records under
Rule 803(6).
The Court has had the opportunity to review the workers’ compensation records
submitted by Primo with his motion and concludes that they are admissible under
Rule 803(4) or, alternatively, under Rule 803(6). The Court agrees, however, that the
parties should work together to redact references to workers’ compensation.
II.

ATTORNEY’S NAMES IN MEDICAL RECORDS
Primo moves in his second motion in limine to prohibit, among other things, any

mention or reference to attorney names contained in his medical records. (Doc. 64 at
1-2.) At the hearing, State Farm argued that it should be allowed to discuss the fact
that Primo was referred to a treater by his attorney, but agreed that the fact that his
attorney was copied on a medical record was of little probative value. The Court has
now had the opportunity to review the medical record submitted with the motion (see
Doc. 64-1) and agrees that the reference to “The patient’s attorney at Miller Skinner
& Jolly PA” should be redacted before the record is introduced at trial.

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III.

PRIMO’S STATEMENTS IN MEDICAL RECORDS
In his third motion in limine, Primo moves to exclude statements in his medical

records that purport to record his statements that the other vehicle in the accident
had a speed of 40 mph. (Doc. 65.) Primo argues these statements are not relevant
to his medical diagnosis and treatment and therefore not covered by the exception to
hearsay in Rule 803(4). State Farm responded at the hearing that any statements by
Primo are admissions under Rule 801(d)(2) and that the record itself is admissible
under Rule 803.
The Court finds that these statements are admissible. Primo’s statements are
excluded from the definition of hearsay as admissions under Rule 801(d)(2), covering
the first layer of hearsay. For the second layer, the medical records containing these
statements fall under Rule 803(4). The speed of the accident is potentially relevant
to a treater’s diagnosis and treatment of a post-accident injury. The cases Primo cites
are either not controlling in this federal case or are distinguishable. Nat’l Union Fire
Ins. Co. of Pittsburgh v. Blackmon, 754 So. 2d 840 (Fla. 1st DCA 2000) (finding
statement “had nothing to do with [declarant’s] diagnosis or treatment”); James A.
Cummings Inc. v. Larson, 588 So. 2d 1066 (Fla. 4th DCA 1991) (noting the unequivocal
testimony of the doctor was that the statement about speed was not relevant to
diagnosis or treatment); Brown v. Seaboard Airline R.R. Co., 434 F.2d 1101 (5th Cir.
1970) (same). Moreover, even if the records were hearsay, they may be covered by
Rule 803(6) and would, in any event, be admissible for impeachment purposes.
Primo’s motion on this issue is therefore due to be denied.

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IV.

DR. ROGOZINSKI AND DR. NORMAN
Finally, Primo moves to strike one or the other of the orthopedic experts State

Farm identified on its witness list. (Doc. 67.) Primo argues these witnesses offer
cumulative opinion testimony and should be excluded under Federal Rule of Evidence
403. State Farm responds that it has not run afoul of the one-expert-one-topic rule
because it has only specifically retained Dr. Norman in this case, not Dr. Rogozinksi,
who was retained by the carrier in Primo’s workers’ compensation claim. 1
From the Court’s review of the expert reports attached to the motion (Doc. 67,
Exs. A, B.), though marginally distinct, there is a good deal of overlap between the
likely testimony of Dr. Rogozinski and Dr. Norman. Neither doctor treated Primo,
though Dr. Rogozinski did actually examine Primo, while Dr. Norman’s reports
indicates he performed a record review to reach his opinions.
conclusions, however, are largely the same.

Their ultimate

The Court does find their testimony

cumulative and therefore is inclined to limit State Farm to presenting testimony from
either Dr. Rogozinski or Dr. Norman. However, depending on the evidence at trial
and the witnesses that Primo calls, State Farm may revisit this issue.
Accordingly, it is hereby
ORDERED:
1.

Defendant’s First Motion in Limine (Doc. 61), Defendant’s Second Motion

in Limine (Doc. 62), Plaintiff’s First Motion in Limine (Doc. 63), Plaintiff’s Second

State Farm also suggested at the hearing that the testimony of some of
Primo’s witness will overlap. State Farm has not moved in limine on that issue,
however, so the Court declines to address it pretrial.
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Motion in Limine (Doc. 64), Plaintiff’s Third Motion in Limine (Doc. 65), Plaintiff’s
Fourth Motion in Limine (Doc. 66), and Plaintiff’s Fifth Motion in Limine (Doc. 67) are
GRANTED in part, DENIED in part, and WITHDRAWN in part as set forth
above and at the pretrial conference.
2.

The Joint Motion to Allow Electronic Devices (Doc. 57) is MOOT. The

Court reiterates that, though cell phones, laptop computers, and similar electronic
devices generally are not permitted in the courthouse, attorneys may bring those items
with them upon presentation to Court Security Officers of proof of membership in The
Florida Bar or an Order of special admission pro hac vice. 2
3.

The Joint Motion to Allow Paralegals Beyond the Bar (Doc. 58) is

GRANTED.
DONE AND ORDERED at Jacksonville, Florida this 11th day of August,
2014.

bjb
Copies:
Counsel of record

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Cell phones must be turned off while in the courtroom.
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