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)

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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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