Nesbitt et al v. Bacot et al
Filing
62
ORDER dismissing as moot 36 Motion for Special Verdict Form; granting in part and denying in part 37 Motion in Limine. Signed by Judge William T. Moore, Jr on 9/28/17. (jlm)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
DALLAS NESBITT, individually
and as next friend of A.N., a
minor; and BRIANNA CORDOVA,
individually and as next
friend of A.N., a minor;
Plaintiffs,
CASE NO. CV416-009
V.
BRITTANY BACOT,
Defendant.
ORDER
Before the Court are Defendant Brittany Bacot's Motion
for Special Verdict Form (Doc. 36) and Motion in Limine
(Doc. 37). Plaintiffs have responded to both motions. (Doc.
43; Doc. 44.) In this case. Plaintiffs allege Defendant's
negligence contributed to the injuries suffered by A.N. as
the result of a multivehicle automobile accident. (Doc. 1.)
Defendant
Bacot
remains
the
sole
defendant
in
this
case
after all others were dismissed by stipulation.
After
careful
consideration.
Defendant's
Motion
for
Special Verdict Form (Doc. 36) is DISMISSED AS MOOT. The
parties
have
Consolidated
submitted
Pretrial
verdict
Order.
forms
(Doc.
in
61.)
their
The
Proposed
Court
will
adhere to its usual practice: deciding on an appropriate
draft verdict form after consulting with the parties in a
pretrial conference. Both parties will have an opportunity
to offer argument as to the verdict form at that time.
In
her
Motion
in
Limine,
Defendant
seeks
to
exclude
eight categories of potential evidence and testimony:
(1)
(2)
(3)
Liability insurance of Defendant;
Plaintiffs' anxiety, agony, concern, or worry
concerning medical expenses;
Conversations between Plaintiffs and any treating
physicians or medical care providers;
(4)
(5)
Objections of counsel made during depositions;
Potential jurors knowledge or affiliation with
(6)
insurance companies;
Settlements entered into between any Defendants'
liability insurer and Plaintiffs;
(7)
Lay
witness
testimony
concerning
causation
or
liability; and
(8)
Arguments or inferences that the jury should send
a message to the insurance industry.
Plaintiffs have no objections to Defendant's first, fifth,
sixth, and eighth requests. (Doc. 44.) Accordingly, those
portions of Defendant's motion are GRANTED.
In her second request. Defendant seeks to exclude all
evidence or testimony regarding
any anxiety, agony, concern or worry over the
payment of medical bills, any reference to having
to pay for medical bills, having to face medical
bills, paying for medical bills, medical or other
bills or expenses falling on the plaintiffs, or
burdening the plaintiffs, inability to afford or
pay medical bills or any similar reference or
testimony.
(Doc.
37
would
at
be
2-3.) According
immaterial.
(Id.
to
Defendant,
at
3.)
In
such
their
evidence
response,
Plaintiffs contend that they should be able to testify as
to
any
inability
Defendant
to
elicits
afford
testimony
additional
regarding
medical
care
Plaintiffs'
if
failure
to obtain such care. (Doc. 44 at 3.)
In light of Defendant's broad request and Plaintiffs'
narrow response, the Court is currently unable to conclude
that this evidence
Plaintiffs
only
would be inadmissible. It appears that
intend
to
offer
testimony
regarding
an
inability to afford medical care should Defendant suggest
that
Plaintiffs
failed
to
mitigate
their
damages
by
foregoing such care. Such evidence would be admissible if
offered
to
rebut
Defendant's
assertion
that
Plaintiffs
failed to mitigate their damages. See McGee v. Jones, 232
Ga. App. 1, 3, 499 S.E.2d 398, 400-01 (1998). Therefore,
Defendant's
request
is
DENIED.
If
necessary
due
context in which Plaintiffs offer this evidence.
to
the
Defendant
may renew her objection at trial.
In
her
Plaintiffs
third
from
request.
offering
Defendant
any
seeks
"reference
to
to
prevent
or
any
recitation of any conversation between the plaintiffs and
any treating physicians or medical care providers regarding
anything told to the plaintiffs by said treating physicians
or
medical
care
providers."
(Doc.
37
at
3.)
Defendant
contends that such testimony would be inadmissible hearsay.
(Id.) In response. Plaintiffs argue that statements offered
to
explain
their
subsequent
conduct
are
not inadmissible
hearsay. (Doc. 44 at 4.)
Generally, hearsay testimony is inadmissible at trial.
Fed.
R.
Evid.
statement
matter
802.
offered
asserted
statements
action
are
in
in
offered
not
Hearsay testimony is
evidence
the
to
to
prove
statement.
explain
inadmissible
why
Id.
a
hearsay
an
the
out
of court
truth
801(c).
witness
because
of the
However,
took
they
some
are
offered for a reason other than to prove the truth of the
matter asserted in the statement. See id.
In light of Plaintiffs' indication that this type of
testimony will be limited to only non-hearsay statements,
the Court is unable to grant Defendant's request at this
time.
Defendant is correct that much of what she seeks to
exclude
would
context in
qualify
which
as
hearsay.
Absent
the
specific
Plaintiffs offer this evidence at trial.
Defendant's request is DENIED at this time. If necessary,
Defendant may renew her objection at trial.
In her fourth request, Defendant seeks to exclude "any
reference to or evidence, testimony or argument concerning
objections of counsel during depositions." (Doc. 37 at 4.)
Defendant
contends
that
the
comments
or
objections
by
counsel "are not evidence and can only be used to inflame
or mislead the jury." (Id.) In response. Plaintiffs agree
that this type of evidence is inadmissible, but note that
Defendant failed to identify any specific statements that
should be excluded. (Doc. 44 at 4.)
As an initial matter, the Court notes that it rarely
permits lay witnesses to testify by deposition absent some
compelling
reason
the
has
Court
for
their
allowed
unavailability.
medical
On
professionals
occasion,
to
testify
remotely or by deposition. However, the party seeking to
use deposition testimony as part of its case-in-chief must
first obtain the Court's permission.
In
her
motion.
Defendant
failed
to
identify
any
objectionable portions of any deposition. As a result, the
Court is unable at this time to determine the admissibility
of any coinments in or portions of depositions. Accordingly,
Defendant's request is DENIED. If necessary, Defendant may
renew her objection prior to or at trial.
In her seventh request. Defendant seeks to exclude any
lay
witness
responsible
According
from
for
to
scientific
testifying
causing
the
Defendant,
or
about
accident.
this
specialized
who
type
of
knowledge
they
believed
(Doc.
37
testimony
that
can
at
was
7-8.)
requires
only
be
elicited through a qualified, expert witness. (Id. at 8.)
In their response. Plaintiffs state that they are unaware
of any lay testimony regarding fault. (Doc. 44 at 5-6.) In
addition. Plaintiffs argue that testimony based on personal
knowledge
may
be
admissible
to
establish
how
A.N.
was
unable
determine
the
injured. (Id. at 6-7.)
At
this
time, the
Court is
to
admissibility of any specific statement concerning injury
or cause. Expert testimony may be required to establish the
cause
of the
However,
which
accident
witnesses
they
have
may
and
its
testify
personal
relation
to
concerning
knowledge.
Fed.
any
injuries.
matters
R.
Evid.
about
602.
Absent the specific context in which Plaintiffs offer this
evidence
at
trial.
Defendant's
request
must
be
DENIED
at
this time. If necessary, Defendant may renew her objection
at trial.
SO ORDERED this
*"day of September 2017.
WILLIAM T. MOORE,
UNITED STATES
SOUTHERN
DISTRICT
COURT
DISTRICT OF GEORGIA
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