Fontenot v. Hudson Insurance Group et al

Filing 39

MEMORANDUM ORDER regarding 26 Motion in Limine. For the foregoing reasons, the Motion is GRANTED IN PART and DENIED IN PART as described herein. Signed by Magistrate Judge Kathleen Kay on 11/7/2017. (crt,Putch, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

JEREMI J. FONTENOT

:

DOCKET NO. 2:16-cv-584

VERSUS

:

UNASSIGNED DISTRICT JUDGE

WILLIAM RODOLFO GONZALEZ,
ET AL.

:

MAGISTRATE JUDGE KAY

MEMORANDUM ORDER
Before the court is a Motion in Limine [doc. 26] filed by plaintiff Jeremi J. Fontenot
(“Fontenot”), seeking to prohibit William Rodolfo Gonzalez (“Gonzalez”) and Hudson Insurance
Company (“Hudson) (collectively, “defendants”) from mentioning or introducing any evidence on
certain topics at trial. Defendants oppose the motion, and Fontenot has filed a reply. Docs. 34, 38.
I.
BACKGROUND
This action relates to a motor vehicle accident between Fontenot and Gonzalez on June 21,
2015, in Calcasieu Parish, Louisiana. Doc. 1, att. 1, pp. 1–2. Fontenot filed suit in the Fourteenth
Judicial District, Calcasieu Parish, Louisiana, and Hudson subsequently removed the action to this
court on the basis of federal diversity jurisdiction, 28 U.S.C. § 1332. Doc. 1, att. 1, pp. 1–4; doc.
1. On September 14, 2017, the court granted Fontenot’s unopposed motion for partial summary
judgment on the issue of liability. Doc. 25; see docs. 19, 22 (motion and response). Accordingly,
it is settled that the subject accident was due to Gonzalez’s negligence and the only issue to be
decided at trial in this matter is the amount of damages owed to Fontenot.

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II.
LAW & APPLICATION
Under Rule 104(a) of the Federal Rules of Evidence, “[t]he court must decide any
preliminary questions about whether a witness is qualified, a privilege exists, or evidence is
admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.”
Fontenot brings this motion to exclude evidence or mention of the following topics at trial:
1) his prior arrests and misdemeanor conviction; 2) his prior drug and alcohol usage; 3) evidence
not made known during discovery; 4) the fact that Fontenot retained an attorney shortly after the
accident; 5) the fact that Fontenot’s medical bills have been paid; 6) the fact that any award is not
taxable under federal and state income tax laws; 7) Fontenot’s failure to call anyone on his witness
list; 8) attorney file documents; 9) financial impact to defendants of an adverse verdict; 10)
probable testimony of an absent witness; and 11) the fact that Fontenot has filed this motion.
Defendants oppose the motion in all respects. Doc. 34.
A. Prior arrests and conviction
Fontenot admits that he pleaded guilty to a misdemeanor charge of attempted possession
of drug paraphernalia in the Fourteenth Judicial District Court, Calcasieu Parish, Louisiana, on
July 28, 2015. Doc. 26, att. 1, p. 1. The parties also state that he has been arrested as a result of
disagreements with his father. Id.; doc. 34, pp. 1–2. Fontenot argues that evidence of the arrests
and conviction should be excluded under Federal Rule of Evidence 609 and because its probative
value is substantially outweighed by the potential for prejudice, under Rule 403.
Rule 609 sets the limits on uses of a criminal conviction to attack a witness’s character for
truthfulness, and provides generally that a criminal conviction may not be used for that purpose
unless it is a felony or the court can readily determine from the elements that it involved a dishonest
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act or false statement. FED. R. EVID. 609(a). The defendants contend, however, that they would not
seek to introduce this evidence to attack Fontenot’s credibility. Doc. 34, p. 4. Instead, they would
use it to refute his allegations that his injuries in the accident have led to behavioral difficulties, by
showing that his behavioral issues (as expressed through fights with his father) preceded the
accident. Id.
Accordingly, this portion of the motion should be analyzed under Rule 404(b), which
allows evidence of prior wrongdoings for purposes other than proving the person’s character in
order to show that he acted in conformity with that character. FED. R. EVID. 404(b)(1). However,
evidence of a prior bad act may be admissible “for another purpose.”1 Id. at 404(b)(2). In such
cases the court must first determine whether the evidence is relevant to an issue other than
character, and then ensure that its probative value is not substantially outweighed by its potential
for undue prejudice. United States v. Cervantes, 706 F.3d 603, 615 (5th Cir. 2013).
Here the defendants argue that the prior bad acts are admissible to rebut a damages claim.
They do not provide any citation for their allegation that behavioral problems are part of Fontenot’s
claimed damages. See doc. 34, p. 4. However, Fontenot’s complaint shows that he has alleged
injuries including “[s]evere head injuries and trauma” and “[s]evere nervous shock.” Doc. 1, att.
1, p. 3. He also claims damages for, inter alia, “physical and mental pain, suffering, discomfort,
anxiety, distress, disability, disfigurement and inconvenience.” Id. In his interrogatory answers,
Fontenot listed three treating psychologists as possible witnesses and admitted that he has been
prescribed several medications since the accident, including sedatives and antidepressants.2 Id. at

1
The other purposes identified in the rule are illustrative rather than exclusive. Romain v. Governor’s Office of
Homeland Sec., 2017 WL 2438844 at *1 (M.D. La. Jun. 6, 2017) (citing Cervantes, 706 F.3d at 615).
2
Fontenot’s pretrial statement lists one of his treating psychologists as a witness and an expert report from that doctor
as an exhibit. Doc. 28, p. 3. It also mentions that Fontenot has sought psychological treatment and claims damages for
past and future mental pain and suffering. Id. at 1.

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12–14. Thus, as defendants argue, arrests relating to arguments with a family member, introduced
to show that Fontenot’s psychological issues preceded the accident, are both relevant to this issue
and sufficiently probative to outweigh the potential for prejudice. Defendants have not met their
burden, however, with regard to Fontenot’s misdemeanor drug conviction, as they fail to show that
it is sufficiently related to their claims of pre-accident behavioral problems.
Accordingly, this portion of the motion is DENIED as to Fontenot’s arrests and
GRANTED as to his misdemeanor conviction, subject to any limitations the trial court may wish
to place on references to or examination on the arrests in order to guard against their improper use
as character evidence.
B. Prior drug and alcohol use
Fontenot also seeks to exclude any evidence of his drug and alcohol abuse, to which he
apparently admitted at a deposition. Doc. 26, att. 1, p. 2. Defendants state that Fontenot has
admitted to abusing alcohol and specific types of drugs and that he now alleges he is experiencing
specific symptoms, which they argue are more likely a result of his substance use than the injuries
he sustained in the accident. Doc. 34, pp. 4–5. However, defendants do not provide any proof of
these admissions and claims. See id. “When the relevance of evidence depends on whether a fact
exists, proof must be introduced sufficient to support a finding that the fact does exist.” FED. R.
EVID. 104(b). Under this rule, the court “may admit the proposed evidence on the condition that
the proof be introduced later.” Id.
Fontenot contends that the defense has not retained an expert, required an independent
medical examination, or deposed Fontenot’s treating medical professionals. Doc. 38, pp. 2–3.
However, the cause of Fontenot’s alleged mental suffering is highly relevant to the question of
damages, and defendants may still bring this issue to light through cross-examination.

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Accordingly, the probative value of Fontenot’s substance use appears to outweigh its potential for
prejudice and the motion is DENIED.
C. Evidence not made known
Fontenot urges this court to make a preemptive ruling against any reference before the jury
to evidence not produced in discovery or deemed admissible by the court. Doc. 26, att. 1, p. 3.
Defense counsel states that he has no intent to mislead the jury or attempt to introduce any evidence
not already exchanged with plaintiff. Doc. 34, p. 5. However, he reserves his right to point out any
documents that he discovers plaintiff has concealed. Id. Accordingly, we decline to rule on this
request as there appears to be no issue in controversy. This subject will be addressed directly by
the trial judge if called upon to do so.
D. Time of retaining an attorney
Fontenot states that the defense “will likely attempt to portray [him] as litigious because
[he] retained an attorney shortly after this accident.” Doc. 26, att. 1, p. 3. He argues that the
probative value of such information is substantially outweighed by its potential for prejudice, and
thus seeks the exclusion of any questions on this topic. Id. at 3–4. He also seeks to prohibit defense
counsel from making anti-lawyer or anti-lawsuit references or comments before the jury. Id. at 4.
Prejudicial remarks before the jury about lawyers and lawsuits are obviously improper. As
to the other portion of this request, defendants state that while the timing of retaining an attorney
might ordinarily be irrelevant, it is probative in this case based on their argument that Fontenot is
“attempting to use the legal system for the purpose of falsifying injuries for pecuniary gain.” Doc.
34, pp. 5–6. However, their response does not provide any substantiated facts from which we could
hold that Fontenot is a special case such that his decision to retain counsel should be placed at
issue. Accordingly, Fontenot’s motion is GRANTED.

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E. Payment of medical bills
Fontenot seeks to exclude any reference to his medical bills having been paid as such
information might confuse the jury as to whether he is still entitled to compensatory damages for
those treatments. Defendants maintain this fact is relevant by alleging that Fontenot “has treated
this case as giving him an open checkbook,” and asserting that if he were required to pay the
medical bills himself, he would not be incurring these costs. Doc. 34, pp. 6–7.
Defendants have the right to attempt to rebut the reasonableness of Fontenot’s medical
bills, but they must do so through proper and admissible evidence. Johnson v. 21st Century
Centennial Ins. Co., 2016 WL 4471887 at *3 (S.D. Miss. Aug. 24, 2016). Evidence of attorney
payment of medical bills is irrelevant and inadmissible, and should be excluded at trial. See, e.g.,
Kie v. Williams, 2016 WL 6208692 at *3 (W.D. La. Oct. 23, 2016) (citing Howard v. Offshore
Liftboats, LLC, 2016 WL 232241 at *3 (E.D. La. Jan. 19, 2016)). Accordingly, the motion is
GRANTED.
F. Awards not being taxable
Fontenot seeks to exclude any reference to the fact that any award he receives will not be
taxed as income. Defendants contend that “the jury should have a right to know the law on that
issue” so as “[t]o avoid any confusion.” Doc. 34, pp. 7–8. However, defendants do not demonstrate
the relevance of this law to any issue before the court. Given the likelihood that such information,
if introduced, could confuse the jury or be used as another tactic of awakening anti-lawsuit
sentiments, the motion is GRANTED.

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G. Failure to call a witness
Fontenot requests that the court bar any reference by the defense to witnesses he does not
call at trial. Defendants argue that Fontenot will not call certain witnesses within his control to
call, as they possess adverse information about him, and that these witnesses might evade service
or disregard a subpoena if called by the defense. Doc. 34, p. 8. Fontenot maintains that neither he
nor his attorneys will do “anything to prevent properly subpoenaed witnesses from appearing at
trial.” Doc. 38, p. 4.
Generally, where there is no explanation for the absence of a witness that is “peculiarly
available” to one party in a civil case, counsel may properly comment on that party’s failure to call
the witness.3 E.g., Auto Owners Ins. Co. v. Bass, 684 F.2d 764, 769 (11th Cir. 1982) (citing United
States v. Certain Land in City of Fort Worth, Tex., 414 F.2d 1026, 1028 (5th Cir. 1969)). Here, we
cannot evaluate the explanation for the absence of these witnesses, if indeed they will manage to
evade a subpoena by defendants, until trial. Accordingly, this issue is too prospective to merit a
ruling. It will instead be handled by the trial court should the subject arise at trial.
H. Attorney file documents
Fontenot argues that defense counsel “should not be allowed, in the presence of the jury,
to request from plaintiff’s counsel documents that are contained in his file,” as this could lead the
jury to believe that plaintiff’s counsel has something to hide. Doc. 26, att. 1, p. 5. Defense counsel
states that “[i]t is not anticipated that this will occur, because it is believed and assumed that the
plaintiff has complied with his discovery obligations.” Doc. 34, p. 8.

3
See Harry v. Safeway Stores, Inc., 215 F.Supp. 324, 326 (D.D.C.1963) (“When a missing witness would thus
substantially aid in developing the truth at the trial, and when such witness was peculiarly available to one of the
parties, then the jury should be permitted to infer that such witness would have testified unfavorably to such party
unless the absence of the witness is satisfactorily explained. This is a salutary rule which helps to assure the presence
at the trial of all witness who have relevant testimony.”) 

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What we will order with respect to this issue is that both parties follow ordinary, proper
courtroom decorum and not address each other at all when court is in session whether in the
presence of the jury or not.
I. Ability to pay
Fontenot asserts that any argument by defense counsel on the financial “hurt” defendants
will incur from the judgment should be excluded. Defendants respond that they have no intention
of raising such an argument, but reserve their right to counter any arguments made by plaintiff
about their ability to pay. The parties agree that the defendants’ ability to satisfy a judgment is not
relevant to any issue before this court. Accordingly, we decline to rule on this request as there
appears to be no issue in controversy. This subject will be handled by the trial court if it should
arise at trial.
J. Probable testimony of an absent witness
Fontenot also seeks to exclude any comment on the probable testimony of absent witnesses.
Where counsel is permitted to comment on the absence of a witness peculiarly available to the
other side, supra, his argument may also indicate that if the witness had testified, his testimony
would have been unfavorable to the other side. Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47
F.3d 277, 285–86 (8th Cir. 1995). As above, we cannot determine the particular inferences
permitted by a witness’s absence when no witness has yet proven absent. Accordingly, this issue
is too prospective to merit a ruling. It will instead be handled by the trial court should the subject
arise at trial.
K. The fact of this motion
Finally, Fontenot requests that any reference to the fact that this motion was made be
excluded. The defendants respond that they have no intention of doing so, and would only mention

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this motion in the context of refuting any argument by Fontenot that he has not sought to exclude
any evidence. Accordingly, we decline to rule on this request as there appears to be no issue in
controversy. This subject will be handled if it arises at trial.
III.
CONCLUSION
For the foregoing reasons, the Motion in Limine [doc. 26] is GRANTED IN PART and
DENIED IN PART as described above.
THUS DONE this 7th day of November, 2017.

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