Baxter v. Anderson et al

Filing 102

RULING and ORDER granting in part, denying in part and deferring in part 87 Motion in Limine. Signed by Judge John W. deGravelles on 1/2/2018. (EDC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
NICHOLE LYNN BAXTER
CIVIL ACTION
VERSUS
NO. 16-142-JWD-RLB
JASON MICHAEL ANDERSON, ET AL.

RULING AND ORDER
On October 12, 2017, a pretrial conference was held. At that conference, the Court
addressed the Plaintiff’s Motion in Limine (Doc. 87). For oral reasons assigned, the motion was
granted in part, denied in part, and deferred in part. (Doc. 90.)
The Court hereby supplements its oral reasons with the following written reasons. The
Court will first describe the evidence or argument sought to be excluded and will then briefly
summarize its ruling on that issue.
1. MOTION IN LIMINE NO. 1
A. Evidence/Argument Sought to be Excluded
Amounts received or benefits available from collateral sources such as health insurance
benefits, workers compensation insurance benefits, or any other source of reimbursement for
medical expenses or compensation for injuries of plaintiff including but not limited to: disability,
social security, retirement, or Medicare benefits, whether or not applied for or received by the
plaintiff. Further, that the plaintiff has received, has been entitled to receive, will receive or will
become entitled to receive, benefits of any kind or character from a collateral source, including
but not limited to, benefits from collateral insurance coverage, victims' assistance, social security
or gratuitous benefits.

1

B. Ruling
Defendants represent that they do not intend to introduce evidence concerning any such
collateral source. This motion is therefore DENIED AS MOOT.

2. MOTION IN LIMINE NO. 2
A. Evidence/Argument Sought to be Excluded
Mention of or reference to medical expenses "actually incurred" or "actually paid" by the
plaintiffs. (sic)
B. Ruling
The parties represent that they would work on a stipulation to resolve this motion and that
it would consequently not be an issue at trial. Further, Defendants represent that they do not
disagree with the principle that the measure of damages for medical expenses is the amounts
incurred rather than what the health carrier actually pays. Accordingly, this motion is DENIED
AS MOOT. If there is a problem on this issue before trial, the parties should bring it to the Court’s
attention.

3. MOTION IN LIMINE NO. 3
A. Evidence/Argument Sought to be Excluded
Impeachment of the plaintiff on any matters which are collateral to this lawsuit and which
are not relevant or germane to the claims of plaintiff or defenses alleged by the defendants, without
first demonstrating to the satisfaction of the Court a predicate for the relevancy of such matters.

2

B. Ruling
This motion is DENIED. The Court cannot issue in advance a blanket ruling excluding
all such impeachment material without knowing what that material is or the context in which it
will be offered. The Court will rule on specific objections to particular impeachment material at
trial.

4. MOTION IN LIMINE NO. 4
A. Evidence/Argument Sought to be Excluded
Preclude evidence or testimony pertaining to attorney referrals to healthcare providers.
B. Ruling
The motion is GRANTED IN PART and DENIED IN PART. The motion is granted in
that payments to healthcare providers by Plaintiff’s counsel are collateral sources. See Francis v.
Brown, 95-1241 (La. App. 3 Cir. 3/20/96); 671 So. 2d 1041, 1047-48. The motion is denied in
that the collateral source rule does not apply to attorney-negotiated medical discounts from a
healthcare provider. Hoffman v. 21st Century N. Am. Ins. Co., 2014-2279 (La. 10/2/15); 209 So.
3d 702, 706-07. The motion is also denied in that the Defendants are entitled to ask whether
Plaintiff was referred to his health care provider by his attorney, as this is relevant and not unduly
prejudicial.

5. MOTION IN LIMINE NO. 5
A. Evidence/Argument Sought to be Excluded
Motion to limiting the testimony of defense expert J. Stuart Wood from offering any opinion
at the trial of this matter with regards to economic loss of earning capacity.

3

B. Ruling
The motion is GRANTED IN PART and DENIED IN PART. The motion is granted in
that Plaintiff represents that she is not seeking loss of future earning capacity or wages, so Mr.
Wood is not permitted to testify on these issues. However, the motion is denied in that Mr. Wood
can testify as to past lost wages, as Plaintiff is making this claim.

6. MOTION IN LIMINE NO. 6
A. Evidence/Argument Sought to be Excluded
Any and all references to vocational rehabilitation specialist, Stephanie Chalfin in the
expert report of J. Stuart Wood.
B. Ruling
The motion is DENIED. Federal Rule of Evidence 703 provides:
An expert may base an opinion on facts or data in the case that the expert has been
made aware of or personally observed. If experts in the particular field would
reasonably rely on those kinds of facts or data in forming an opinion on the subject,
they need not be admissible for the opinion to be admitted. But if the facts or data
would otherwise be inadmissible, the proponent of the opinion may disclose them
to the jury only if their probative value in helping the jury evaluate the opinion
substantially outweighs their prejudicial effect.
Fed. R. Evid 703. Here, economists like J. Stuart Wood would reasonably rely on information
from vocational rehabilitation specialists like Stephanie Chalfin in forming their opinions, so
Chaflin’s testimony and report need not be admissible. Moreover, even if that weren’t the case,
the probative value of Wood’s testimony (which is high) substantially outweighs any prejudicial
effect. Lastly, as the Fifth Circuit has stated:
Nevertheless, “[a]s a general rule, questions relating to the bases and sources of an
expert's opinion affect the weight to be assigned that opinion rather than its
admissibility and should be left for the jury's consideration.” United States v. 14.38
Acres of Land, More or Less Situated in Leflore County, 80 F.3d 1074, 1077 (5th
4

Cir. 1996) (emphasis added) (internal quotations and citations omitted). It is the
role of the adversarial system, not the court, to highlight weak evidence:
As the Court in [Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 113 S. Ct. 2786, 125 L.Ed.2d 469 (1993)] makes clear, . .
. the trial court's role as gatekeeper is not intended to serve as a
replacement for the adversary system: “Vigorous crossexamination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate
means of attacking shaky but admissible evidence.”
14.38 Acres of Land, 80 F.3d at 1078 (quoting Daubert, 113 S. Ct. at 2798).
Primrose Operating Co. v. Nat'l Am. Ins. Co., 382 F.3d 546, 562 (5th Cir. 2004). Thus,
Plaintiff’s arguments should more appropriately be pursued in cross-examination.

7. MOTION IN LIMINE NO. 7
A. Evidence/Argument Sought to be Excluded
Testimony, arguments, opinions or evidence pertaining to the list of documents reviewed
by J. Stuart Wood in generating an expert report for the defense.
B. Ruling
The motion is DENIED, for the same reasons articulated in the previous ruling.

8. MOTION IN LIMINE NO. 8
A. Evidence/Argument Sought to be Excluded
A. Questions calling for privileged information under the attorney and client, physician
and patient, psychotherapist and patient, or counselor and client, or marital communications
privileges.
B. The assertion of any privilege.

5

B. Ruling
The motion is DENIED. The Court cannot issue such a blanket ruling in a vacuum and
without hearing a specific question that is objectionable. Further, Defendants represent that they
do not intend to ask for privileged information, so this motion is moot.

9. MOTION IN LIMINE NO. 9
A. Evidence/Argument Sought to be Excluded
Mention of or reference to clients currently or previously represented by counsel in
unrelated matters, and legal services provided by counsel in unrelated matters.
B. Ruling
The motion is DENIED IN PART in that references to Plaintiff’s other accidents may be
relevant and admissible. The Court will rule on these on a question by question basis. See Ruling
on Motion in Limine #13. The motion is GRANTED in that references to other legal matters is
irrelevant (and, in any event, Defendants represent that they do not intend to introduce such
evidence). If Defendants seek to introduce evidence of other matters, then they must alert the
Court, outside the presence of the jury, so that the Court can make a determination as to its
admissibility.

10. MOTION IN LIMINE NO. 10
A. Evidence/Argument Sought to be Excluded
Mention of any settlement discussions, mediations, or agreements relating to this case,
including offers of compromise and promises to accept a compromise.

6

B. Ruling
The motion is GRANTED. Evidence of settlement negotiations is inadmissible. Fed. R.
Evid. 408.

11. MOTION IN LIMINE NO. 11
A. Evidence/Argument Sought to be Excluded
Praise of counsel concerning matters such as the experience, success, skill, or performance
as counsel in this or other cases.
B. Ruling
The motion is DENIED AS MOOT. Defendants represent that this will not be an issue.

12. MOTION IN LIMINE NO. 12
A. Evidence/Argument Sought to be Excluded
Accusations or suggestions of impropriety, in any respect, by counsel.
B. Ruling
The motion is DENIED AS MOOT. Defendants represent that they do not intend to make
such accusations or suggestions.

13. MOTION IN LIMINE NO. 13
A. Evidence/Argument Sought to be Excluded
Any prior unrelated claim, motor vehicle collision or lawsuit by plaintiff.

7

B. Ruling
The motion is DEFERRED IN PART and DENIED IN PART. If Plaintiff was involved
in other motor vehicle accidents, then such accidents are relevant to this suit. However, if
Defendants seek to introduce evidence of other claims or lawsuits, then they must alert the Court,
outside the presence of the jury, so that the Court can make a determination as to its admissibility
on a question by question basis.

14. MOTION IN LIMINE NO. 14
A. Evidence/Argument Sought to be Excluded
Mention or suggestion that there may be matters that cannot be disclosed to the jury, or
that a party or their counsel has sought to keep matters from the jury's knowledge.
B. Ruling
This motion is DENIED AS MOOT. Defendants represent that they will not make any
such mention or suggestion.

15. MOTION IN LIMINE NO. 15
A. Evidence/Argument Sought to be Excluded
Prohibiting any use, reference to, mention of, or accusation, in the presence of the jury, of
or about any document or thing requested by a party during discovery in this action but not
produced to the requesting party before the commencement of trial. Also, prohibiting testimony
and/or opinions of any individuals not previously, specifically and/or timely identified as having
knowledge of facts relevant to the subject matter of this lawsuit.

8

B. Ruling
The motion is DENIED. The Court cannot issue a ruling such as this in advance and in a
vacuum without knowing the specific documents or witnesses at issue or the precise situation
involved. If Plaintiff believes that the Defendants are using evidence or attempting to call a witness
that was not previously disclosed in discovery, then she may object at trial, and the Court will
determine its admissibility.

16. MOTION IN LIMINE NO. 16
A. Evidence/Argument Sought to be Excluded
Mention of tax implications, or absence thereof, on the award of damages of any type.
B. Ruling
This motion is DENIED AS MOOT. This issue should be addressed by the final jury
instructions.

17. MOTION IN LIMINE NO. 17
A. Evidence/Argument Sought to be Excluded
Any mention of use or alleged use by plaintiff of marijuana or other illegal substances.
B. Ruling
This motion is DENIED AS MOOT. Defendants represent that they will not reference
any such conduct. If such evidence is found, the Defendants must, before seeking to introduce it,

9

alert the Court outside the presence of the jury so that the Court can make a ruling as to its
admissibility.

18. MOTION IN LIMINE NO. 18
A. Evidence/Argument Sought to be Excluded
Any use of the phrase "guilt" or "guilty" of negligence.
B. Ruling
The motion is DENIED. The Court will give extensive instructions throughout voir dire
and trial as to the burden of proof and legal standard in this case. There is simply not a risk of
substantial prejudice on this issue.

19. MOTION IN LIMINE NO. 19
A. Evidence/Argument Sought to be Excluded
Any mention of any violations of law, criminal charges, traffic violations or crimes
committed by, or allegedly committed by, any plaintiff at any time.
B. Ruling
The motion is DENIED. Again, the Court cannot issue such a broad ruling without
knowing what specific violation is at issue. Putting that aside, Plaintiff represents that she has
never been arrested or convicted of any crime, so the issue may be moot. If the Defendants wish
to introduce such evidence, they must alert the Court outside the presence of the jury so that the
Court can make a determination as to its inadmissibility.

10

20. MOTION IN LIMINE NO. 20
A. Evidence/Argument Sought to be Excluded
The time or circumstances under which the plaintiff employed their attorneys, including
any reference of any kind to the fee basis or the existence of contingent fees as part of attorneyclient contract.
B. Ruling
The motion is DEFERRED and TAKEN UNDER ADVISEMENT. If the Defendants
seek to introduce such evidence or make such an argument, they must alert the Court, outside the
presence of the jury, so that the Court can make a determination as to the evidence’s admissibility.

21. MOTION IN LIMINE NO. 21
A. Evidence/Argument Sought to be Excluded
That the plaintiff has had unrelated injuries to those presently claimed in this litigation,
for the reason that any such injuries would be immaterial and irrelevant to any issue in this cause,
and would be incurable prejudicial even though objections were timely made and sustained.
B. Ruling
The motion is DENIED. Again, the Court cannot rule without specifics. Further, Plaintiff
begs the question by saying that injuries are “unrelated.” The Court will rule on these on a question
by question basis. If Defendants seek to introduce such evidence, then they must alert the Court,
outside the presence of the jury, so that the Court can make a determination as to its admissibility.
See Rulings to Motion in Limine Nos. 9 & 13.

11

22. MOTION IN LIMINE NO. 22
A. Evidence/Argument Sought to be Excluded
Any social benefits, whether or not applied for, awarded, received, or denied, such as
unemployment compensation benefits, food stamps, Medicaid, low income assistance, aid to
families with dependent children, social security disability, and any and all other social welfare
benefits of any type.
B. Ruling
This motion is DEFERRED until trial. Evidence of payments for food stamps, Medicaid,
low income assistance, or families with dependent children is irrelevant and inadmissible. If there
are unemployment compensation benefits or social security benefits applied for during a relevant
period, then such payments may be relevant. Again, the Court cannot rule without knowing the
specifics of what benefits were received and what time periods were involved. If the Defendants
seek to introduce any such evidence, they must alert the Court outside the presence of the jury so
that the Court can determine its admissibility.

23. MOTION IN LIMINE NO. 23
A. Evidence/Argument Sought to be Excluded
Prohibiting more than one attorney for a party from examining a single witness, or
presenting argument on an issue, except upon a showing of good cause.
B. Ruling
This motion is DENIED AS MOOT. The Court’s standard practice is that only one
attorney for a party can examine a witness.

12

24. MOTION IN LIMINE NO. 24
A. Evidence/Argument Sought to be Excluded
Excluding from the courtroom all non-party witnesses, except expert witnesses expected to
testify at trial, until the time of final argument.
B. Ruling
This motion is GRANTED. Fed. R. Evid. 615. The parties are instructed to request
sequestration on the morning of trial. The parties will also be required to advise their own
witnesses about sequestration. Experts will be exempted. Fed. R. Evid. 615(c).

25. MOTION IN LIMINE NO. 25
A. Evidence/Argument Sought to be Excluded
Impact of an adverse verdict.
B. Ruling
This motion is DENIED. Similar to the Court’s ruling on the use of the reptile theory, the
Court finds that Plaintiff’s request is too nonspecific to rule on at this time. Again, the Court
cannot exclude in advance these types of arguments without hearing the specific context in which
the arguments are made.

13

26. MOTION IN LIMINE NO. 26
A. Evidence/Argument Sought to be Excluded
To the filing of this Motion in Limine or to any ruling by the court in response to this
Motion. Such references are inherently prejudicial in that they suggest or infer that the movant
has sought to prohibit proof or that the Court has excluded proof of matters damaging to movant's
Case.
B. Ruling
The motion is GRANTED, as such evidence is irrelevant and unduly prejudicial.

27. MOTION IN LIMINE NO. 27
A. Evidence/Argument Sought to be Excluded
That plaintiff claimed the privilege of attorney work-product immunity during the course
of pretrial discovery in this case.
B. Ruling
The motion is GRANTED, as such evidence is irrelevant and unduly prejudicial.

28. MOTION IN LIMINE NO. 28
A. Evidence/Argument Sought to be Excluded
Any mention of any old and unrelated injuries or medical ailments suffered by Nichole
Lynn Baxter.

14

B. Ruling
The motion is DENIED WITHOUT PREJUDICE. Plaintiff’s motion begs the question
as to what constitutes “old and unrelated” injuries. The Court will entertain specific objections to
particular injuries/ailments as they are presented at trial. If Defendants seek to introduce such
evidence, then they must alert the Court, outside the presence of the jury, so that the Court can
make a determination as to its admissibility. See Rulings to Motion in Limine Nos. 9, 13, & 21.

29. MOTION IN LIMINE NO. 29
A. Evidence/Argument Sought to be Excluded
That the plaintiff sought to exclude proof during pretrial discovery or that the court has
ruled concerning the scope of pretrial discovery or the existence of any pretrial discovery disputes.
B. Ruling
The motion is GRANTED, as such evidence is irrelevant and unduly prejudicial.

30. MOTION IN LIMINE NO. 30
A. Evidence/Argument Sought to be Excluded
That the plaintiff failed to call any person to testify as a witness in the present action, if
that person is equally available to the defendants.
B. Ruling
The motion is DENIED. The Court cannot rule on this issue in a vacuum. The Court
needs specifics as to particular witnesses and the circumstances surrounding those individuals.

15

31. MOTION IN LIMINE NO. 31
A. Evidence/Argument Sought to be Excluded
Any and all argument that Plaintiff failed to call all of her treating physicians.
B. Ruling
The motion is DENIED IN PART and DEFERRED IN PART. The motion is denied in
that this is a permissible argument by Defendants that is not unduly prejudicial. The motion is
deferred with respect to any request for an adverse inference.

32. MOTION IN LIMINE NO. 32
A. Evidence/Argument Sought to be Excluded
Through verbal remark, questioning or attempting introduction of documentary evidence
of anything relating to the character of any parties or witnesses until such time as the door has
been opened for such evidence and counsel has approached the bench outside the hearing of the
Jury and requested permission to pursue the line of evidence.
B. Ruling
The motion is DENIED. The Court cannot rule on this issue in a vacuum and without the
necessary particulars. Nevertheless, the Court will entertain specific objections to allegedly
improper lines of inquiry at trial. If Defendants seek to use character evidence, then they must
alert the Court outside the presence of the jury so that the Court can determine its admissibility.

16

33. MOTION IN LIMINE NO. 33
A. Evidence/Argument Sought to be Excluded
The plaintiffs' (sic) personal habits, such as drinking habits, or alleged use prior to or after
the date of the injury to the plaintiff, of drugs or other controlled substances, for the reason that
there is no allegation or contention that the plaintiff was intoxicated at the time of the occurrence
made the basis of this suit.
B. Ruling
The motion is DENIED. The Court cannot rule on this issue in a vacuum and without the
necessary particulars. Nevertheless, the Court will entertain specific objections to allegedly
improper lines of inquiry at trial. If Defendants seek to introduce such evidence, they must alert
the Court beforehand outside the presence of the jury so that the Court can determine its
admissibility.

34. MOTION IN LIMINE NO. 34
This motion was omitted.

35. MOTION IN LIMINE NO. 35
A. Evidence/Argument Sought to be Excluded
Any attempts by defense counsel to ask questions of lay witnesses (i.e., those not designated
as experts) that, either directly or by inference, elicit expert opinions regarding the cause of the
occurrence, the responsibilities (faults) of the parties, or other opinions which are the necessary
result of special training, experience or expertise.

17

B. Ruling
The motion is DENIED. The admissibility of lay opinion depends on the circumstances
and the specific questions asked. For example, a police officer will not be allowed to reconstruct
the accident, but he could possibly testify as to the point of impact. The Court will enforce the
Federal Rules of Evidence (including Rule 701, regarding opinion testimony by lay witnesses) and
rule on specific objections at trial.

36. MOTION IN LIMINE NO. 36
A. Evidence/Argument Sought to be Excluded
That insurance rates or premiums may or may not increase dependent upon the amount a
jury awards to the plaintiff. Such information would be prejudicial in leading jurors to believe that
they possess an indirect pecuniary interest in the outcome of the case, which would render them
per se incapable of the impartiality required of a juror.
B. Ruling
The motion is GRANTED. Such evidence would be irrelevant and unduly prejudicial.

37. MOTION IN LIMINE NO. 37
A. Evidence/Argument Sought to be Excluded
Any evidence, testimony, argument or otherwise concerning Plaintiff’s lack of automobile
liability insurance at the time of the subject crash.

18

B. Ruling
The motion is GRANTED. Plaintiff has conceded that Defendants are entitled to a credit
under La. Rev. Stat. § 32:866. As a result, such evidence is irrelevant. Further, this evidence
would be unduly prejudicial.

38. MOTION IN LIMINE NO. 38 (marked as NO. 34)
A. Evidence/Argument Sought to be Excluded
Any reference in the medical or clinical records to statements about how the instant
occurrence happened that are not demonstrated to be attributable to the plaintiff, as such entries
constitute impermissible hearsay.
B. Ruling
The motion is DENIED. Whenever a certified medical record is offered, it shall be
received in evidence as prima facie proof of its contents. La. Rev. Stat. § 13:3714(A).
Nevertheless, Plaintiff may object at trial to particular questions as being impermissible lay
opinion, and the Court will rule on these objections.

19

39. MOTION IN LIMINE NO. 39 (labeled as NO. 35)
A. Evidence/Argument Sought to be Excluded
Any testimony from any lay witness speculating as to possible ways in which the occurrence
in question could have occurred, since such speculation is inadmissible, irrelevant, and could only
serve to confuse and mislead the jury.
B. Ruling
The motion is DENIED. This issue depends on the particular questions involved. The
Court will rule on specific objections as they arise at trial.
Signed in Baton Rouge, Louisiana, on January 2, 2018.

S

JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

20