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