Mhire v. Remedial Construction Services L P et al
MEMORANDUM ORDER granting in part and denying in part 16 Motion in Limine, as described in the Memorandum Order. Signed by Judge James D Cain, Jr on 9/7/2021. (crt,Benoit, T)
Case 2:20-cv-00891-JDC-KK Document 18 Filed 09/07/21 Page 1 of 8 PageID #: 67
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
HANNAH P MHIRE
CASE NO. 2:20-CV-00891
JUDGE JAMES D. CAIN, JR.
REMEDIAL CONSTRUCTION SERVICES L
P ET AL
MAGISTRATE JUDGE KAY
Before the court is a Motion in Limine [doc. 16] filed by defendants Remedial
Construction Services LP (“Recon”) and Zurich American Insurance Company. Plaintiff
Hannah Mhire has failed to file a response within the time set forth by the court and so the
motion is regarded as unopposed.
This suit arises from a motor vehicle accident that occurred on November 11, 2019.
Doc. 1, att. 2. Plaintiff alleges that she was driving along Highway 384 in Cameron Parish
when she hit a patch of thick mud or clay in the road and lost control of her vehicle,
resulting in a violent crash into a nearby ditch. Id. She further asserts that the hazard was
caused by Recon through its negligence in removing fill material from a nearby property.
Id. Accordingly, she filed suit against Recon and its insurer in the 38th Judicial District
Court, Cameron Parish, Louisiana. The defendants then removed the suit to this court on
the basis of diversity jurisdiction, 28 U.S.C. § 1332.
Case 2:20-cv-00891-JDC-KK Document 18 Filed 09/07/21 Page 2 of 8 PageID #: 68
By scheduling order issued on December 8, 2020, this matter was set for jury trial
on October 18, 2021, with plaintiff expert report deadline on June 21, 2021. Doc. 12. On
August 19, 2021, defendants filed this Motion in Limine. Doc. 16. They seek to exclude:
(1) any evidence or mention of Post-Traumatic Stress Disorder, on the grounds that
plaintiff failed to make timely disclosures of evidence relating to this condition; (2) any
evidence of a chiropractic diagnosis, on the same grounds; (3) any opinion from the
investigating officer regarding the cause of the crash, unless he is qualified as an expert in
accident reconstruction; (4) any evidence or reference to the amount of Recon’s insurance
coverage; (5) any evidence or reference to Recon’s wealth or size; and (6) any argument
that the jury should apply the Golden Rule in ruling. Doc. 16, att. 1. They also argue that,
under the collateral source rule, plaintiff is not entitled to recover the portions of her
medical bills that have been gratuitously written off by her treatment providers. Id. Plaintiff
filed no response to the motion in the time set forth under the court’s order [doc. 17] and
the motion is therefore regarded as unopposed.
LAW & APPLICATION
A. Governing Law
Evidence is generally admissible so long as it is relevant and not barred by the
Constitution, a federal statute, the Federal Rules of Evidence, or other rules prescribed by
the Supreme Court. Fed. R. Evid. 402. Among other grounds, the court may exclude
relevant evidence where its probative value is substantially outweighed by a danger of
unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence. Id. at 403.
Case 2:20-cv-00891-JDC-KK Document 18 Filed 09/07/21 Page 3 of 8 PageID #: 69
Evidence should only be excluded in limine where it is “clearly inadmissible on all
potential grounds.” Hull v. Ford, 2008 WL 178890, at *1 (S.D. Tex. 2008) (citing
Hawthorne Partners v. AT&T Tech., Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993)).
“Motions in limine are frequently made in the abstract and in anticipation of some
hypothetical circumstance that may not develop at trial.” Looney Ricks Kiss Architects, Inc.
v. Bryan, 2010 WL 5174440, at *1 (W.D. La. Dec. 15, 2010) (quoting Collins v. Wayne
Corp., 621 F.2d 777, 784 (5th Cir. 1980)). Evidentiary rulings, however, “should often be
deferred until trial so that questions of foundation, relevancy and potential prejudice can
be resolved in proper context.” Id.; accord Baxter v. Anderson, 277 F.Supp.3d 860, 863
(M.D. La. 2017). Additionally, motion in limine rulings “are not binding on the trial judge
. . . and the judge may always change his mind during the course of a trial.” Ohler v. United
States, 529 U.S. 753, 764 n. 3 (2000).
1. Post-Traumatic Stress Disorder
Defendants state that plaintiff did not provide any expert reports by the court’s
deadline, and only noted anxiety and panic attacks as mental health symptoms in her
interrogatory responses on March 8, 2021. Doc. 16, att. 1, pp. 2–3. In a deposition on
August 10, 2021, however, she mentioned that she was seeing mental health counselor
Leigh Boyer as her “PTSD counselor.” Id. at 2. Defendants further assert that no records
or reports have been provided from Ms. Boyer and it is unknown whether she agrees with
Case 2:20-cv-00891-JDC-KK Document 18 Filed 09/07/21 Page 4 of 8 PageID #: 70
this diagnosis.1 Accordingly, they seek to exclude any evidence or reference to PostTraumatic Stress Disorder on the grounds that the alleged diagnosis was untimely
Plaintiff is required to disclose the identity of any physician, including a treating
physician not required to render an expert report, or other expert witness within the
deadline set by this court.2 She has not done so nor has she provided good cause for her
failure to do so. Post-Traumatic Stress Disorder is a mental health disorder; the court will
not accept lay testimony on whether the plaintiff is experiencing this condition.
Furthermore, the last-minute interjection of the issue deprives defendants of a fair
opportunity to investigate it before the October 18 trial setting. Accordingly, the motion
will be granted in this regard. Plaintiff may testify about her symptoms is barred from any
reference to or evidence of Post-Traumatic Stress Disorder at trial.
Defendants state that plaintiff disclosed Ms. Boyer as a pre-accident treatment provider. Doc. 16, att. 1, p. 2.
The court’s scheduling order provides, in relevant part:
A. Expert Reports: Plaintiff shall furnish to defendant the names and written reports of any
physician (other than a treating physician) or other expert witness plaintiff intends to call on or
before June 21, 2021 (120 days before trial). Defendant shall furnish to plaintiff the names and
written reports of any physician or other expert witness defendant intends to call no later than
July 6, 2021 (105 days before trial). No supplemental reports or additional expert witnesses
will be permitted outside of these deadlines without leave of court upon a showing of good
A treating physician may opine about diagnosis, prognosis, causation, or the need for future
medical treatment without producing a report under Rule 26(a)(2)(B) and without the proponent
providing a summary of facts and opinions under Rule 26(a)(2)(C). The brief summary
described in the main body of this order satisfies a party’s Rule 26 disclosure requirements for
treating physicians, so long as it is made within the party’s expert report deadline. A witness
will not be allowed to testify as a treating physician if he is not timely disclosed, absent leave
of court upon a showing of good cause. A party must still qualify a treating physician at trial if
the physician will testify to a medical opinion.
Doc. 12, p. 2 (emphasis in original).
Case 2:20-cv-00891-JDC-KK Document 18 Filed 09/07/21 Page 5 of 8 PageID #: 71
2. Chiropractic Diagnosis
Defendants state that plaintiff has provided a copy of a bill from Ward Chiropractic,
which describes the treatment modality she receives, but no records describing her
diagnosis or prognosis. She also made no Rule 26 disclosure regarding this treatment
provider or any chiropractic diagnosis. Accordingly, they seek to exclude any evidence or
mention of a chiropractic diagnosis or prognosis on the same grounds described above. The
court again agrees with the limitation and will GRANT the motion in this regard. Plaintiff
may describe the treatment she has undergone and her symptoms but may not introduce
evidence or argument regarding a diagnosis from her chiropractor or need for future
3. Investigating Officer
Defendants also seek to exclude any opinion testimony from the investigating
officer on the cause of the plaintiff’s accident, unless that officer is qualified as an expert
in accident reconstruction. “As a general rule, police officers’ lay opinions as to the cause
of an automobile accident formed by viewing subsequent evidence at the scene are
excluded under [Federal Rule of Evidence] 701.” Duhon v. Marceaux, 33 F. App’x 703
(5th Cir. 2002) (internal quotations omitted). When that officer is qualified as an expert by
virtue of his training and experience, however, he may offer an opinion on the accident’s
cause. E.g., Shao v. Yu Lei, 2019 WL 11637273, at *4 (W.D. Tex. Nov. 22, 2019)
(collecting cases). The court agrees and will only allow the investigating officer to testify
on the accident’s cause if he is qualified under Federal Rule of Evidence 702. Accordingly,
the motion is GRANTED in this regard.
Case 2:20-cv-00891-JDC-KK Document 18 Filed 09/07/21 Page 6 of 8 PageID #: 72
4. Insurance Coverage
Defendants seek to exclude any evidence or mention of Recon’s policy limits.
Evidence of a defendant’s insurance coverage is not admissible to prove negligent or
wrongful conduct, but may be admitted to show a witness’s bias or to prove agency,
ownership, or control. Fed. R. Evid. 411. Unless plaintiff can produce some argument
showing the relevance between Recon’s coverage and a permissible basis for this evidence
under the Rules, the court agrees that any mention or evidence of this coverage should be
excluded. The motion is therefore GRANTED in this regard.
5. Size or Wealth of Defendant
Defendants also request that the court bar any evidence or mention of their
respective size or wealth. Again, subject to any novel argument from plaintiff at trial, the
court agrees that the potential prejudice of such evidence will substantially outweigh its
probative value. The motion is GRANTED in this regard.
6. Golden Rule Argument
Defendants request that the court prohibit any argument that the jury should “do
unto others” and that it should likewise reject any evidence, argument, or insinuation that
the jury’s damages award should be calculated to “send defendant a message.” Doc. 16,
att. 1, p. 8. The court agrees that such arguments are impermissible on the question of
damages but may be allowed on the issue of liability. Baxter v. Anderson, 277 F.Supp.3d
860, 863 (M.D. La. 2017). Accordingly, the motion is GRANTED as it relates to
arguments on damages but DENIED in all other respects.
Case 2:20-cv-00891-JDC-KK Document 18 Filed 09/07/21 Page 7 of 8 PageID #: 73
7. Collateral Source Rule
Finally, defendant argues that the collateral source rule does not apply to gratuitous
write-offs plaintiff received of various medical bills and that she is therefore only entitled
to recover the amount paid.
As the Fifth Circuit recently summarized:
The collateral-source rule bars a tortfeasor from reducing his liability
by the amount plaintiff recovers from independent sources. It is a substantive
rule of law, as well as an evidentiary rule (disallowing evidence of insurance
or other collateral payments that may influence a fact finder).  In its
simplest form, the rule asks whether the tortfeasor contributed to, or was
otherwise responsible for, a particular income source. If not, the income is
considered “independent of (or collateral to) the tortfeasor,” and the
tortfeasor may not reduce its damages by that amount. In practice, the rule
allows plaintiffs to recover expenses they did not personally have to pay.
Deperrodil v. Bozovic Marine, Inc., 842 F.3d 352, 358–59 (5th Cir. 2016) (internal
citations omitted); see also Bozeman v. State, 879 So.2d 692 (La. 2004). Under Louisiana
jurisprudence, however, the rule does not apply to attorney-negotiated writeoffs or
discounts for medical bills obtained as a result of the litigation process. Hoffman v. 21st
Century N. Am. Ins. Co., 209 So.3d 702, 706–07 (La. 2015).
Defendants argue that “plaintiff received gratuitous write-offs from various medical
providers without herself negotiating the write-offs,” but submit no evidence of the terms
of these write-offs or how they were obtained. In the absence of conclusive evidence that
plaintiff’s patrimony has not and will not be diminished for an amount greater than what
was already paid, the court cannot determine whether the write-offs are a collateral source.
Accordingly, the motion is DENIED in this regard, without prejudice to defendants’ right
to reurge it.
Case 2:20-cv-00891-JDC-KK Document 18 Filed 09/07/21 Page 8 of 8 PageID #: 74
The Motion in Limine [doc. 16] is hereby GRANTED IN PART and DENIED IN
PART, as described above.
THUS DONE AND SIGNED in Chambers on this 7th day of September, 2021.
JAMES D. CAIN, JR.
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?