DENNIS v. D AND F EQUIPMENT SALES INC
Filing
56
ORDER granting in part, denying in part, and reserving ruling in part 44 Motion in Limine; granting in part and denying in part 45 Motion in Limine; granting in part and denying in part 52 Motion in Limine. Ordered by US DISTRICT JUDGE HUGH LAWSON on 7/11/2016. (aks)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
VONTRESSA DENNIS,
Plaintiff,
v.
Civil Action No. 7:14-CV-132 (HL)
D&F EQUIPMENT SALES, INC.,
Defendant.
ORDER
A pretrial conference was held in this case on June 22, 2016. During the
conference, Plaintiff’s Motion in Limine (Doc. 45) and Defendant’s Motion in
Limine (Doc. 44) were heard. The Court enters the following order on these
motions.
I.
PLAINTIFF’S MOTION IN LIMINE
A.
Testimony by John B. Holecek as to Defendant’s duty to install
an emergency stop device.
Plaintiff moves the Court for an Order prohibiting Defendant’s expert, John
B. Holecek, from giving an opinion or otherwise testifying that Defendant had no
duty to install an emergency stop device. Defendant consents to this motion, to
the extent that it relates to a legal duty as opposed to the Occupational Safety
and
Health
Administration
(“OSHA”)
regulations.
Plaintiff’s
motion
is
SUSTAINED. Defendant’s expert will not be permitted to provide an opinion or
to otherwise testify as to Defendant’s duty under the law.
B.
Evidence as to Nonparty Fault or Apportionment
Plaintiff moves to exclude evidence of nonparty fault and asks the Court to
prohibit Defendant from seeking to apportion damages to nonparties. Plaintiff
argues that Defendant failed to provide notice of nonparty fault in a pleading and
failed to assert nonparty fault in a timely manner. Further, Plaintiff avers that
Defendant has failed to produce evidence sufficient for a finding of nonparty fault.
The Court agrees that Defendant’s notice of nonparty fault with respect to
Knight’s Electric1 failed to provide an adequate statement of the basis for
believing Knight’s Electric was at fault. However, Defendant’s notice of nonparty
fault with respect to Sanderson Farms was sufficient.
Plaintiff also contends that the apportionment statute, OCGA § 51-12-33, is
inapplicable because this action is only against one defendant. Plaintiff argues
that the apportionment statute only applies “[w]here an action is brought against
more than one person. . . .” OCGA § 51-12-33(b). Plaintiff submitted a Trial
Brief (Doc. 54) on this issue, to which Defendant responded (Doc. 55). Plaintiff
1
Defendant provided the following notice of nonparty fault for Knight’s Electric:
“2. Knight’s Electric, 105 Circle Rd, Moultrie, GA 31768, (229) 9850724. This was the electrical contractor hired by Sanderson Farms
to supply power and controls to the vertical conveyor.”
2
relies on Alston & Bird, LLP v. Hatcher Management Holdings2. In Alston & Bird,
the trial court struck Alston & Bird’s notice of nonparty fault, holding that the
apportionment statute was inapplicable in cases involving a single defendant. In
a substitute opinion, the Georgia Court of Appeals held that the trial court erred in
striking the notice of nonparty fault. The Court acknowledged that OCGA § 5112-33(b) clearly and unambiguously limits apportionment of damages to cases
“[w]here an action is brought against more than one person . . . .” However, the
Court of Appeals explained that the issue presented involved apportioning fault,
not damages. The trier of fact could properly assign fault to a nonparty pursuant
to OCGA § 51-12-33(c).3
Here, as in Alston & Bird, Defendant’s notice of nonparty fault concerns the
apportionment of fault, not damages. Specifically, the Notice states: “Pursuant to
OCGA § 51-12-33(c), Defendant provides this notice and requests the Court to
instruct the trier of fact, in assessing percentages of fault, to consider the fault of
the following non-party entity which contributed to the injuries and damages
alleged in Plaintiffs’ [sic] Complaint.” (Def.’s Notice of Non-Party Fault, Doc. 30).
Thus, the Court holds that, to the extent Defendant can prove that Sanderson
2
3
Case No. A15A1677 (Ga. Ct. App. Mar. 1, 2016)
OCGA § 51-12-33(c) states: “In assessing percentages of fault, the trier of fact
shall consider the fault of all persons or entities who contributed to the alleged
injury or damages, regardless of whether the person or entity was, or could have
been, named as a party to the suit.”
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Farms breached a legal duty in tort that it owed Plaintiff, the breach of which is a
proximate cause of the injury that Plaintiff sustained, the trier of fact in this case
may be permitted under OCGA § 51-12-33(c) to assign fault to Sanderson
Farms. See Zaldivar v. Pritchett, 774 S.E.2d 688, 699 (Ga. 2015). Plaintiff’s
motion is SUSTAINED as to nonparty Knight’s Electric and OVERRULED as to
nonparty Sanderson Farms.
II.
DEFENDANT’S MOTION IN LIMINE
A.
OSHA’s applicability to Defendant
Defendant moves for a ruling that the regulations promulgated by OSHA
do not apply to Defendant, a manufacturer. Plaintiff counters that, while OSHA
does not apply to manufacturers, the regulations are relevant to the issues
presented in this case, because “Defendant’s failure to provide an OSHAcompliant DFM500 provides grounds for Plaintiff’s strict liability and negligence
claims.” (Pl.’s Resp. to Def.’s Mot. in Limine, Doc. 46, p. 2). Because Plaintiff
concedes that OSHA does not apply to manufacturers, such as Defendant, this
motion is SUSTAINED. The Court RESERVES ruling on any objections to the
relevance of OSHA regulations.
B.
Evidence that Defendant was Stubbornly Litigious and that
Plaintiff is Entitled to Attorney’s Fees
Defendant moves the Court to exclude testimony that Defendant “has
acted in bad faith, been stubbornly litigious, and has put Plaintiff to unnecessary
4
trouble and expense, authorizing an award of Plaintiff’s expenses of litigation,
including attorney’s fees.” (Def.’s Mot. in Limine, Doc. 44, p. 3). The Court
RESERVES ruling.
C.
Evidence Regarding Settlement Discussions
The parties consent to this motion. It is SUSTAINED.
D.
Evidence Regarding Insurance Coverage
Defendant moves the Court to exclude evidence of the existence of
insurance coverage, including in voir dire and the charge to the jury.
With
respect to the jury charge, Defendant moves to exclude a portion of Plaintiff’s
Request to Charge No. 1, which explains the factors the jury must consider in
determining whether the manufacturer acted reasonably in choosing a particular
product design.
The relevant portion, factor (8), states, “8) the feasibility of
spreading any increased cost through the product’s price or by purchasing
insurance.” (Pl.’s Request to Charge No. 1, Doc. 36, p. 32). Plaintiff verbally
withdrew factor (8) from the proposed jury charge at the pre-trial conference.
Thus, this portion of Defendant’s Motion in Limine is resolved. With respect to
other evidence of the existence of insurance coverage, including during voir dire,
the Court RESERVES ruling.
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E.
Evidence of Medical Bills in Excess of What a Medical Provider
Can Charge for a Workers’ Compensation Patient
Defendant moves to exclude evidence of the “retail rates” for medical
treatment endured by Plaintiff. Defendant argues that the reasonable cost of
Plaintiff’s medical treatment is limited to the amount paid for that treatment by
Plaintiff’s employer pursuant to the fee schedule promulgated by the State Board
of Workers’ Compensation (the “Board”).
In response, Plaintiff argues that
evidence of the Board’s fee schedule would violate the collateral source rule,
which provides that “the receipt of benefits or mitigation of loss from sources
other than the defendant will not operate to diminish the plaintiff’s recovery of
damages.” Polito v. Holland, 365 S.E.2d 273, 274 (Ga. 1988) (citation omitted).
Further, Plaintiff contends that the fee schedule is inapplicable because this case
is against a non-employer, and that the fee schedule is only intended as a
guideline for reasonable medical expenses.
In Georgia, a personal injury plaintiff is entitled to recover the “reasonable
and necessary” medical expenses arising from his or her injury. MCG Health,
Inc. v. Kight, 750 S.E.2d 813, 817 (Ga. Ct. App. 2013). The Court concludes that
“reasonable and necessary” medical expenses are the undiminished billed
charges for the treatment rendered. In this case, the “reasonable and necessary”
medical expenses were those paid by Plaintiff’s employer for her treatment
resulting from the injury. The Court acknowledges, however, that the collateral
6
source rule prohibits mention of the fact that these expenses were paid by
Plaintiff’s employer. See Hammond v. Lee, 536 S.E.2d 231, 234–35 (Ga. Ct.
App. 2000) (“the trial court properly excluded prejudicial references to the fact
that
Hammond
had
received
collateral
source
benefits
from
workers’
compensation insurance).
Accordingly, the Court holds that the “reasonable and necessary” medical
expenses in this case are those paid by Plaintiff’s employer for Plaintiff’s
treatment arising from her injury, not the “retail rates” for the treatment. The
Parties may choose to present evidence of these expenses in the method of their
choosing. However, the Court rules in limine that any evidence to the effect that
Plaintiff’s medical expenses were paid by her employer due to workers’
compensation insurance or that rates for Plaintiff’s medical expenses were
reduced pursuant to the Board’s fee schedule would violate the collateral source
rule and is therefore inadmissible. Defendant’s motion is SUSTAINED IN PART
and OVERRULED IN PART.
F.
Evidence of Financial Condition
The parties consent to this motion. It is SUSTAINED.
G.
Evidence of Plaintiff’s Worldly Circumstances and Inability to
Pay for Medical Treatment
The parties consent to this motion. It is SUSTAINED.
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H.
Any Expression by Plaintiff’s Attorney of His Opinion as to the
Credibility of a Witness or as to the Merits of Plaintiff’s Claims
The parties consent to this motion. It is SUSTAINED.
I.
Any Reference to Plaintiff’s Requirement to Pay Attorney’s Fees
The parties consent to this motion. It is SUSTAINED.
J.
Any Reference to Pretrial Discovery or Litigation Disputes
The parties consent to this motion. It is SUSTAINED.
K.
Any Demand for Items in Possession of Defendant
The parties consent to this motion. It is SUSTAINED.
L.
“Send a Message” Arguments
The parties consent to this motion. It is SUSTAINED.
M.
Invoking the Rule of Sequestration
The parties consent to this motion. It is SUSTAINED.
N.
Reports Regarding any Prior or Subsequent Dissimilar Incident
The parties consent to this motion. It is SUSTAINED.
O.
Any Comparison of this Case to Other Claims, Cases, Injuries,
Settlements or Verdicts
The parties consent to this motion. It is SUSTAINED.
P.
Any Improper Lines of Questioning in the Presence of the Jury,
Including Voir Dire
Defendant moves the Court for an Order instructing Plaintiff’s counsel to
refrain from asking improper and prejudicial questions to the jury on voir dire and
8
to refrain from certain comments in opening statements to the jury. Specifically,
Defendant asks that Plaintiff not be permitted to ask hypothetical questions
causing prospective jurors to prejudge the evidence, or to comment on or
question regarding a possible award of damages. The Court RESERVES ruling.
Q.
Medical Opinions by Plaintiff and Lay Witnesses
The parties consent to this motion. It is SUSTAINED.
R.
Lay Testimony Concerning Future Medical Expenses
The parties consent to this motion. It is SUSTAINED.
S.
Lay Testimony as to any Alleged Permanent Injury
The parties consent to this motion. It is SUSTAINED.
T.
Testimony Regarding “Anxiety” About Payment of Medical
Bills; Testimony Regarding Inability to Treat or Reductions in
Treatment Due to Financial Concerns
The parties consent to this motion. It is SUSTAINED.
U.
Conduct of Defendant After the Incident
The parties consent to this motion. It is SUSTAINED.
V.
Argument that the Jury Should Disregard the Apportionment
Statute, that the Jury Should Nullify the Apportionment Statute,
or that the Jury Should Consider the Apportionment Statute a
“Reduction of the Plaintiff’s Damages”
Defendant moves to exclude any argument by Plaintiff’s counsel that is
“designed to steer the jury towards any considerations other than the allocation
of fault of the parties and the correctly-designated nonparty,” because such
9
argument “would be asking the jury not to follow the law.” (Def.’s Mot. in Limine,
Doc. 44, p. 22). The Court RESERVES ruling.
W.
Any Reference to the Size or Financial Worth of Defendant
Defendant moves to exclude any evidence or comment regarding the size
of Defendant, the number of locations it has, or any other argument meant to
infer that Defendant has the financial means to satisfy any judgment. Plaintiff
counters that Defendant’s size may be relevant to other evidence presented
during the course of the trial, such as the reason Defendant knew or should have
known of the industry standards relating to the installation of e-stop devices on
DFM500s. The Court RESERVES ruling.
X.
Any Argument and Evidence Regarding Defendant’s Alleged
Moral or Ethical Obligations
The parties consent to this motion. It is SUSTAINED.
Y.
Any Questions Seeking to Elicit Any Legal Conclusions from
Witnesses
The parties consent to this motion. It is SUSTAINED.
Z.
Any Argument that Money is the Only Consequence
Defendant moves to exclude any argument by Plaintiff’s counsel that
money is the only consequence Defendant faces under the circumstances.
Plaintiff’s counsel explained during the pre-trial conference that he does not plan
to state that “money is the only consequence of this trial”; rather, he plans to tell
the jury that this is a civil case, and that “no one is going to jail” or that “no one is
10
going to lose their liberty” as a result of this lawsuit. The comments Plaintiff’s
counsel plans to make are matters on which the Court will charge the jury,
rendering such arguments unnecessary. Defendant’s motion is SUSTAINED.
SO ORDERED this 11th day of July, 2016.
s/ Hugh Lawson_______________
HUGH LAWSON, SENIOR JUDGE
les
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