Kie et al v. Williams et al

Filing 96

MEMORANDUM ORDER granting in part and denying in part 61 Motion in Limine; granting in part and denying in part 62 Motion in Limine and Incorporated Memorandum; denying 63 Second Motion in Limine and Incorporated Memorandum; s triking 66 Motion in Limine Concerning the 6/7/16 and 6/20/16 Reports and Corresponding Testimony of Dr. John Ledbetter; denying 68 Motion to Strike Defendants' Untimely Supplemental Exhibit and Addendum to Expert Report; granting 71 Motion to Strike 66 Motion in Limine Concerning the 6/7/16 and 6/20/16 Reports and Corresponding Testimony of Dr. John Ledbetter. Signed by Magistrate Judge Joseph H L Perez-Montes on 10/23/16. (crt,Keller, J)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
ALVIN KIE, ET AL.
Plaintiffs

CIVIL ACTION NO. 3:15-CV-02304

VERSUS

JUDGE JAMES

TORY WILLIAMS, ET AL.
Defendants

MAGISTRATE JUDGE PEREZ-MONTES

MEMORANDUM ORDER
I.

Defendants’ Omnibus Motion in Limine (Doc. 61)
IT IS ORDERED that Defendants’ Omnibus Motion in Limine is GRANTED

IN PART in the following respects:


Any argument about or any reference to the relative financial positions of
Defendants and Plaintiffs will be EXCLUDED at trial.



Any evidence or testimony related to Plaintiffs’ claims for property damage to the
pick-up truck driven by Alvin Kie (“Plaintiff”) at the time of the accident,
specifically including property damage appraisals or estimates, will be
EXCLUDED at trial. Plaintiffs are not precluded from offering photographs of
Plaintiff’s vehicle following the accident, or testimony or other evidence regarding
the general extent of the damage to Kie’s vehicle.



Any evidence or testimony concerning Plaintiffs’ claim for future lost wages or loss
of earning capacity, including evidence or testimony of Plaintiff’s future damages,
but not including evidence of future medical expenses, will be EXCLUDED at
trial.
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

Any reference to punitive or exemplary damages will be EXCLUDED at trial.
Defendants’ Omnibus Motion in Limine (Doc. 61) is DENIED IN PART in the

following respects:


Any lay testimony regarding the physical condition or work capacity of Plaintiff.
Under Federal Rule of Evidence 701, “[i]f a witness is not testifying as an expert,
testimony in the form of an opinion is limited to one that is: (a) rationally based
on the witness's perception; (b) helpful to clearly understanding the witness's
testimony or to determining a fact in issue; and (c) not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702.” Applying
these standards, IT IS ORDERED that lay witnesses may testify concerning facts
and opinions based solely upon their perceptions, such as the level or type of
Plaintiffs’ activities before and after the accident.

Lay witnesses may not,

however, offer opinion testimony concerning the cause or extent of Plaintiffs’
injuries, Plaintiffs’ medical condition, or Plaintiffs’ ability to work, all of which
require specialized medical knowledge within the scope of Rule 702.


All claims and lawsuits involving Defendants. IT IS ORDERED that Plaintiffs
may offer fact testimony from witnesses who asserted other claims or lawsuits
arising from the accident underlying this lawsuit (hereinafter, the “Accident”), but
only to the extent that such testimony concerns the facts of the Accident. Plaintiffs
may not offer testimony or evidence concerning: (1) the litigation or settlement of
any other claims against Defendants arising from the Accident; or (2) any
information regarding other accidents involving Defendants.

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

Evidentiary exhibits.
o Defendants object to six categories of exhibits listed by Plaintiffs.

As

discussed during the Final Pretrial Conference, Plaintiffs’ exhibit list was
apparently neither complete nor filed with the Court. Plaintiffs agreed to
correct, resubmit, and file their exhibit list, and Defendants agreed that
Plaintiffs’ corrections will likely resolve many of their objections listed in
the Joint Pretrial Order (Doc. 89). Many of those objections appear to be
duplicative of, or related to, the objections listed in Defendants’ Omnibus
Motion in Limine.
o To provide some clarification at this point, however, IT IS ORDERED that:
(1) any evidentiary exhibits not disclosed prior to the applicable discovery
and exchange deadlines in the Court’s Scheduling Order (Doc. 10) will be
EXCLUDED at trial; (2) any charts, diagrams, or demonstrative exhibits
not exchanged prior to November 21, 2016, will be EXCLUDED at trial; (3)
all resumes or “CVs” of testifying experts will be EXCLUDED at trial,
unless a party offers a resume or “CV” in accordance with an applicable
exclusion or exception to the hearsay rules; (4) as stated above, all vehicle
appraisals and property damage estimates as to any vehicle involved in the
accident underlying this lawsuit will be EXCLUDED at trial; (5) any
reports, graphs, figures, or correspondence offered by testifying medical
expert which was not produced before the applicable discovery and expert
report deadlines, and which was not otherwise timely according to the

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Scheduling Order or an applicable procedural rule, will be EXCLUDED at
trial.
o Either party may make more specific objections to admissibility at trial if
Plaintiffs’ modified exhibit list does not resolve additional evidentiary
issues.
II.

Plaintiffs’ Motion in Limine (Doc. 62)
IT IS ORDERED that Plaintiffs’ Motion in Limine (Doc. 62) is GRANTED IN

PART in the following respects:


Arrests, suspended license, lack of insurance, DWI and/or misdemeanor
convictions, expunged convictions and/or felony convictions more than (10) ten
years old and convictions or criminal record. Under Federal Rule of Evidence 609,
only convictions for felonies or crimes involving a dishonest act or false statement
which occurred within the past 10 years are admissible. All other evidence of
arrests, convictions, criminal records, suspended license, lack of insurance, DWI,
and/or misdemeanor convictions, expunged convictions, and/or felony convictions
more than 10 years old will be EXCLUDED at trial.



Attorney’s referring client to doctor. All details concerning referrals of Plaintiff to
physicians for purposes of this litigation, rather than for purposes of Plaintiff’s
health, will be EXCLUDED at trial as protected by the attorney-client privilege.
See, e.g., Tolliver v. U-Haul Co. of Texas, 2:09 CV 313, 2011 WL 3626328, at *3
(W.D. La. Aug. 17, 2011 ([W]hen an attorney refers a physician to a client, the
physician crosses the line from a treating physician into the realm of a specially

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retained expert whose report must be provided.”); Soriano v. Treasure Chest
Casino, Inc., CIV.A. 95-3945, 1996 WL 736962, at *2 (E.D. La. Dec. 23, 1996) (“To
the extent the discussions regarding referrals to doctors and other experts dealt
with this litigation, such as referrals for expert opinion to be utilized for this
matter, the discussions are protected. To the extent the discussions did not
facilitate legal issues, such as referrals simply for the health of the plaintiff, the
discussions are not protected.”). The limited evidence before the Court indicates
that Plaintiffs’ counsel referred Plaintiff for treatment at Elite Healthcare
Alliance and Monroe Medical Clinic for purposes of litigation, rather than for
Plaintiffs’ health. As such, information concerning Plaintiffs’ counsel’s referrals
to these physicians is inadmissible as protected by the attorney-client privilege.


Collateral Source Payments.
o It is well-settled that “[e]vidence that the injured party received benefits
from a collateral source is inadmissible under the rules of relevancy.” Glob.
Petrotech, Inc. v. Engelhard Corp., 58 F.3d 198, 202 (5th Cir.1995) (internal
citation and quotation omitted). It is also now settled that “the collateral
source rule does not apply to attorney-negotiated write-offs or discounts of
medical expenses obtained through the litigation process.”

Wesley v.

Jackson, CV 14-537-RLB, 2015 WL 9581825, at *1 (M.D. La. Dec. 30, 2015)
(citing Hoffman v. 21st Century N. Am. Ins. Co., 2014-2279 (La. 10/2/15),
reh'g denied (Dec. 7, 2015)). Stated otherwise, Plaintiffs may not recover
for attorney-negotiated write-offs. See id.

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o Evidence of the total amounts billed before attorney-negotiated discounts
is irrelevant and inadmissible, and will be EXCLUDED at trial. See Wesley
v. Jackson, CV 14-537-RLB, 2015 WL 9581825, at *2 (M.D. La. Dec. 30,
2015); contra Thibodeaux v. Wellmate, CV 12-1375, 2016 WL 2983950, at
*4 (E.D. La. May 23, 2016) (“The Court, however, will allow Thibodeaux to
inform the jury of the total amount billed, including the ‘write-off’ amounts,
in addition to the amount actually paid. The Court finds that evidence of
the total amount of past medical expenses billed has some probative value
that is not substantially outweighed by any risk of unfair prejudice.”). The
parties are ORDERED to stipulate, wherever possible, as to the medical
expenses actually paid on Plaintiffs’ behalf to streamline the issues
presented at trial.
o Evidence of attorney payments of medical bills is likewise irrelevant and
inadmissible, and will be EXCLUDED at trial.

Howard v. Offshore

Liftboats, LLC, CV 13-4811, 2016 WL 232241, at *3 (E.D. La. Jan. 19, 2016)
(“Insofar as the Defendants plan to introduce evidence with respect to
attorney loans or attorney payment of medical, travel, or other expenses;
attorney scheduling and arrangement for medical care; and attorney letters
of protection, the motion in limine is GRANTED. This evidence is irrelevant
to the issues to be decided at trial.”). This exclusion includes any testimony
by Dr. Ledbetter regarding the same, which should not be presented to the
jury.

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

All details of any crime will be EXCLUDED at trial under Fed. R. Evid. 609(A).



Failure to file income tax returns and/or tax liens. Because Plaintiffs are not
asserting claims for lost wages, any evidence concerning Plaintiffs’ failure to file
income tax returns and/or tax liens will be EXCLUDED at trial as irrelevant.



Lack of insurance, poverty, or inability to pay a judgment, of any Defendant. As
decided above, all evidence of the parties’ relative financial conditions – including
lack of insurance, poverty, or inability to pay a judgment – will be EXCLUDED at
trial.



Creditor judgments and/or wage garnishments. Any evidence concerning creditor
judgments and/or wage garnishments will be EXCLUDED at trial.
IT IS ORDERED that Plaintiffs’ Motion in Limine (Doc. 62) is DENIED IN

PART in the following respects:


Alcohol use and/or drug use or treatment for alcohol usage and/or drug usage
and/or positive alcohol and/or drug screens/tests.

The Court DENIES AS

PREMATURE Plaintiffs’ Motion in Limine to the extent it seeks exclusion of
alcohol use, drug use, and prior treatment or test results for the same. If Plaintiff
presents lay (non-medical) evidence or testimony that he has suffered memory loss
as a result of the Accident, Defendants may be entitled to present lay evidence,
and to cross-examine Plaintiff, regarding potential alternative causes of Plaintiff’s
alleged memory loss, including evidence that Plaintiff may have abused alcohol or
illicit drugs in the past. However, the undersigned is not able to evaluate the
potential probative value or prejudicial effect of any such evidence at this time

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under Fed. R. Evid. 403. The parties may re-urge their objections before the
District Judge at trial.


“Fraudulent” injuries or “lawyer-driven” or “lawsuit driven” medical treatment by
plaintiffs. Defendants may present evidence and testimony concerning Plaintiffs’
medical treatment and subjective complaints, including evidence which draws
into question the veracity of Plaintiffs’ subjective complaints and secondary gain
as a contributing factor. If supported by evidence, Defendants may argue, based
upon reasonable inferences to be drawn from the evidence, that secondary gain
was a contributing factor in Plaintiffs’ medical treatment and subjective
complaints.



Other lawsuits or claims by Plaintiffs and/or other personal injury claims.
Plaintiffs’ Motion in Limine is DENIED AS MOOT as to this issue, because the
argument is discussed and ruled upon below.



Any expert reports filed and/or exchanged after the Court Scheduling Order
deadline, and the discovery deposition of Dung Le, M.D., taken after the discovery
deadline. Plaintiff’s Motion in Limine is DENIED AS MOOT as to this issue, as
all outstanding expert report issues (aside from those raised in Doc. 68) were ruled
upon during the Final Pretrial Conference, including the taking of Dr. Le’s video
trial deposition.



Any surveillance video and/or images of the Plaintiffs performed and/or obtained
by any agent of the Defendants. Plaintiff’s Motion in Limine is DENIED AS
MOOT as to this issue, as Defendants have represented that no such video or

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images exist, and as the Court does not interpret Plaintiffs’ Motion to seek
exclusion of images recovered from Plaintiffs’ Facebook profile(s).
III.

Plaintiffs’ Second Motion in Limine (Doc. 63)

IT IS ORDERED that Plaintiffs’ Second Motion in Limine (Doc. 63) is DENIED
for the following reasons:


Evidence of Plaintiffs’ unrelated injuries to those presently claimed in this
litigation, and specifically, a thumb injury. Defendants may present evidence that
Plaintiff incurred an injury to his thumb on July 6, 2015, which resulted in
treatment and surgery. This evidence is relevant because it: (1) may constitute a
preexisting injury which could impact the issue of causation of Plaintiffs’ claim
that he experienced numbness in his hand a result of the Accident, as well as the
general course of treatment for injuries Plaintiff sustained in the Accident; and
(2) may be used to attack Plaintiff’s credibility.



Evidence that Plaintiff was involved in prior unrelated accidents. Defendants
may present evidence concerning Plaintiff’s involvement in an earlier accident –
and specifically, an accident which occurred approximately twenty years ago – as
well as evidence of Plaintiffs’ ongoing medical treatment prior to the Accident, as
such evidence is relevant to the issues of causation, damages, and credibility. The
evidence may tend to show Plaintiff received medical treatment before the
Accident to areas of his body at issue in this litigation, including injuries to his
head, back, and ankles. See, e.g., Pratt v. Culpepper, 49,627 (La.App. 2 Cir.
2/27/15, 12), 162 So.3d 616, 623, reh'g denied (Apr. 9, 2015).

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IV.

Defendants’ Motion in Limine Concerning the 6/7/16 and 6/20/16 Reports and
Corresponding Testimony of Dr. John Ledbetter (Doc. 66) and Plaintiffs’
Motion to Strike Motion in Limine (Doc. 71)
The Deadline for filing motions in limine was September 16, 2016. (Doc. 10, p.

6). Defendants filed the Motion in Limine (Doc. 66) seven days later, on September
23, 2016. Defendants offer three justifications for the late filing.
First, Defendants argue they “had no knowledge plaintiffs would attempt to
include these untimely expert reports in their trial exhibits allegedly as part of
plaintiff’s (sic) certified medical records from Louisiana Pain Care until they received
a Bates stamped copy of plaintiffs’ trial exhibits late in the evening on September 20,
2016.” (Doc. 78, p. 2). However, Defendants received both reports in June 2016.
Defendants suggest that the reports were prepared in anticipation of a mediation to
be held on June 21, 2016. Plaintiffs seem to concede that point. But there is no
indication that the reports – which clearly express medical opinions regarding
Plaintiff’s injuries and anticipated future medical treatment – were to be used
exclusively for the purpose of the settlement conference, and were thereafter to
simply disappear. Defendants had knowledge that the reports existed, that Dr.
Ledbetter prepared them, and that they formed a portion of Dr. Ledbetter’s
conclusions in this case, well before the deadline to file motions in limine. The reinclusion of the reports with Plaintiffs’ trial exhibits is irrelevant.
Second, Defendants state that the reports were not designated as expert
reports, but were merely produced by email which merely instructed counsel to “see
attached.” While true – and while counsel for Plaintiffs failed to observe even the

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most basic formalities in so producing the reports – the Court cannot find that this
fact prevented Defendants from filing a timely motion in limine. Again, Defendants
were well aware of the reports and their import. Even a casual review makes the
nature of the reports clear.
Finally, Defendants suggest that their timely-filed Omnibus Motion in Limine
(Doc. 61) effectively preserved their right to argue that Dr. Ledbetter’s supplemental
reports should be excluded.

In the Omnibus Motion, Defendants “object to any

reports . . . that were not previously produced as both the discovery and expert report
deadlines have passed.” (Doc. 61-1, p. 13). Defendants concede, however, that Dr.
Ledbetter is a treating physician.

The Scheduling Order clarifies that treating

physicians are not subject to its deadlines for expert physicians, and that the reports
of treating physicians should simply “be furnished to opposing counsel immediately
upon receipt.” (Doc. 10, p. 4). There is no indication that counsel for Plaintiffs failed
to comply with this requirement.
Moreover, although not technically relevant to the Motion in Limine, the Court
observes that Defendants were not otherwise prejudiced by Dr. Ledbetter’s reports.
Defendants had ample opportunity to review the reports, present the reports to their
own experts, assail the factual basis (or lack thereof) of the reports, cross examine
Dr. Ledbetter regarding the reports, and to otherwise challenge Dr. Ledbetter’s
conclusions. Counsel’s brief aptly illustrates as much.
Accordingly, Plaintiffs’ Motion to Strike Defendants’ Untimely/Late Filed
Motion in Limine (Do. 71) is GRANTED, and Defendants’ Motion in Limine

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Concerning the 6/7/16 and 6/20/16 Reports and Corresponding Testimony of Dr. John
Ledbetter (Doc. 66) is hereby STRICKEN from the record.
V.

Plaintiffs’ Motion to Strike Defendants’ Untimely Supplemental Exhibit and
Addendum to Expert Report (Doc. 68)
Plaintiffs seek to exclude an addendum to the expert report of Dr. Curtis

Partington, an expert retained by Defendants. Defendants disclosed the addendum
on September 29, 2016.
The addendum only addresses x-rays of Plaintiff’s cervical and lumbar spine
taken on June 4 and June 5, 2014. Defendants maintain – and offer a line of
correspondence which proves – that they diligently attempted to obtain these x-rays
well before the initial deadline to exchange expert reports, but were unable to do so.
Defendants further note that Plaintiffs did not themselves produce the x-rays. Once
Defendants received the x-rays on July 21, 2016, counsel for Defendants immediately
forwarded them to Dr. Partington for review.
The Scheduling Order provides that, “[i]f there is any subsequent change in
the expert’s opinion or its basis [after an initial report is exchanged], the offering
attorney must notify all counsel within 7 days.” Moreover, Fed. R. Civ. P. 26(e)(2)
requires that any such subsequent be exchanged at least 30 days before trial. The
Court finds no bad faith or dilatory motive on Defendants’ part.

Defendants’

disclosure of the addendum complied with both the Scheduling Order and Fed. R. Civ.
P. 26(e)(2). And because Plaintiffs will have the opportunity to cross examine Dr.
Partington regarding the addendum, and had or will have the opportunity to question
their own experts regarding the addendum, Plaintiffs have not been prejudiced.
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Accordingly, Plaintiffs’ Motion to Strike Defendants’ Untimely Supplemental
Exhibit and Addendum to Expert Report (Doc. 68) is DENIED.
THUS DONE AND SIGNED in chambers in Alexandria, Louisiana, this 23rd
day of October, 2016.
______________________________
Joseph H.L. Perez-Montes
United States Magistrate Judge

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