Franke v. TIG INSURANCE COMPANY

Filing 39

ORDER Regarding Motions In Limine 27 & 28 . Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NATASHA FRANKE,
Plaintiff,
Case No. 13-CV-13432-DT
v.
HONORABLE DENISE PAGE HOOD
TIG INSURANCE COMPANY,
Defendant.
_________________________________________/
ORDER REGARDING MOTIONS IN LIMINE
I.

BACKGROUND
A.

Procedure

This matter was removed from the Washtenaw County Circuit Court, State of
Michigan, on August 9, 2013. Plaintiff Natasha Franke (“Plaintiff”) seeks to recover
No-Fault insurance benefits from Defendant TIG Insurance Company (“Defendant”).
This matter is before the Court on Defendant’s Motion in Limine to Exclude
Evidence Regarding Prior Benefits Paid and Previous Settlements between the Parties
in Prior Lawsuits and Defendant’s Motion in Limine to Exclude Testimony of Steven
Hinderer, MD on the Issue of Causation. (Doc. No. 27 and 28, respectively) The two
motions are fully briefed. (Doc. Nos. 31/36 and 32/35, respectively) The Court,
having concluded that the decision process would not be significantly aided by oral

argument, previously ordered that the motion be resolved on the motion and briefs
submitted by the parties. E.D. Mich. L.R. 7.1(f)(2). (Doc. No. 37)
B.

Facts

Plaintiff was diagnosed with spinal muscular atrophy (“SMA”) at the age of
three and patients with SMA are “not able to regain those muscular atrophies once
lost.” (Doc. No. 29, Pg ID 561) Plaintiff alleges that on or about July 23, 1997, she
was an occupant of a motor vehicle that was involved in a collision, wherein she
sustained accidental bodily injuries “within the meaning of Defendant’s policy and the
statutory provision, M.C.L. § 500.3105.” (Compl. ¶ 7) More specifically, Plaintiff
states that on July 23, 1997, she was in a wheelchair transporting by bus when the bus
driver suddenly braked and because the wheelchair she was in was not properly
secured, she fell to the floor “sustaining bilateral distal femur fractures that were not
surgically able to be repaired.” (Doc. No. 29, Pg ID 561) Plaintiff claims that, (a) as
a result of that accident, she “suffers from chronic pain, fixation of the knee joints, and
an inability to pivot transfer” and (b) the substantial period of hospitalization
necessitated by the accident “caused a greater deterioration of other muscles and
throughout her body.” Id.
Plaintiff contends that, at the time of the accident, she was insured with the
Defendant under the provisions of an automobile insurance policy which was then in
2

effect under and in accordance with the provisions of M.C.L. §500.3101, et. seq. (the
“No-Fault Act”) and should be awarded Michigan No-Fault insurance benefits
including payment for medical bills and attendant care due to the injuries sustained
in the motor vehicle accident. (Compl. ¶¶ 7-9) Plaintiff claims that the Defendant
has “unreasonably refused to pay . . . or has unreasonably delayed in making proper
payments” contrary to M.C.L. § 500.3148, and seeks declaratory judgment to
determine:
(a) The applicability of the No-Fault Act to the claims of
the Plaintiff;
(b) The amount of wage loss benefits, replacement service
expenses, medical expenses, no-fault interest, actual
attorney fees and other benefits owed to the Plaintiff;
(c) whether, and in what amount, any reduction, set offs or
reimbursements are entitled to be claimed by the
Defendant; and
d) Such other determinations, orders and judgments as are
necessary to·fully adjudicate the rights of the parties.
(Compl. ¶¶ 11, 13)
II.

ANALYSIS

A.

Legal Standard

District courts have broad discretion over matters involving the admissibility
of evidence at trial. See, e.g., United States v. Seago, 930 F.2d 482, 494 (6th Cir.
1991).
B.

Evidence of Prior Benefits Paid and Previous Settlements
3

Defendant argues that the Court should preclude the introduction at trial of any
evidence related to No-Fault benefits paid to Plaintiff and prior settlements, including:
(a) any reference or discussion of the fact that benefits were paid, (b) the fact that
there were prior settlements, and (c) the terms of the settlements. (Doc. No. 27, Pg ID
433) Defendant further argues that prior payment of benefits by an insurer: (1) is not
proof that current claims are payable under section 500.3107 of the No-Fault Act, and
(2) does not preclude an insurer from later asserting that it is not liable if the insured
party files suit. Id. (citing Calhoun v. Auto Club Ins. Ass’n, 177 Mich.App. 85 (1989);
Hammermeister v. Riverside Ins. Co., 116 Mich.App. 552 (1982)). Finally, Defendant
argues that prior settlement agreements are inadmissible by Federal Rule of Evidence
408 and that evidence of prior settlements is irrelevant and prejudicial, and therefore
inadmissible under Federal Rules of Evidence 401, 402, and 403.
Plaintiff’s responds that: (1) she should be allowed to produce reasonable
evidence that past benefits (including settlements) were paid in order to explain why
the claims she is pursuing in this matter only start on June 25, 2012 (relying on Dunn
v. State Farm Mut. Auto. Ins. Co., 264 F.R.D. 266 (E.D. Mich. 2009)) (Doc. No. 31,
Pg Id 1165), (2) Plaintiff should be able to introduce payments logs to show what
benefits are being voluntarily paid and what is considered reasonable and customary
in accordance with the No-Fault Act (id. at 1170), (3) she should be able to show past
4

voluntary payments and settlements because they are relevant to show how past
litigations were resolved, not to prove reasonable liability in this case (relying on
Hammermeister and Calhoun, supra, for the proposition that “evidence of past
voluntary payments or resolutions of claims is admissible”). (Doc. No. 31, Pg Id
1174)
The Court agrees with Defendant that evidence of past litigation, including past
settlements (and settlement amounts), is not admissible. First, contrary to Plaintiff’s
contention, neither the Hammermeister or Calhoun court held that “evidence of past
voluntary payments or resolutions of claims is admissible” at trial. In fact, in both
cases, the court was deciding a dispositive motion. Second, whether admitted to show
liability or solely for the purpose of explaining that benefits were paid in the past, the
Court finds that the introduction of past litigation and/or settlements would would
unfairly prejudice Defendant and is inadmissible pursuant to Rule 403. Third, the
Court finds that evidence of settlements is barred by Rule 408, which states:
Evidence of the following is not admissible–on behalf of any
party–either to prove or disprove the validity or amount of a disputed
claim or to impeach by a prior inconsistent statement or a contradiction:
(1) furnishing, promising, or offering–or accepting, promising to
accept, or offering to accept–a valuable consideration in
compromising or attempting to compromise a claim.
Moreover, as all prior litigation between the parties has settled, the Court also
5

concludes Rule 408 precludes the introduction of all such past litigation between the
parties. Absent a future order of the Court, the Court holds that Plaintiff shall not offer
evidence of any past litigation or settlements between Plaintiff and Defendant.
Although evidence of past litigation and settlements is to be excluded, the Court
concludes that the fact that Defendant has paid Plaintiff No-Fault benefits over the last
17 years is relevant and admissible. In fact, the Court finds that it would be unfairly
prejudicial to Plaintiff to exclude all evidence that Defendant has paid Plaintiff NoFault benefits during that period. Presumably, the parties can agree on a stipulation
to be read to the jury to the effect that: (1) Defendant has paid Plaintiff No-Fault
benefits through June 21, 2012, (2) the fact that Defendant has paid No-Fault benefits
to Plaintiff in the past does not bear on whether Defendant is or is not liable for
payment of No-Fault benefits to Plaintiff from June 25, 2012 going forward, and (3)
the jury is only responsible for determining whether Defendant is liable to Plaintiff for
No-Fault benefits beginning June 25, 2012 through the trial in this case.
For the reasons set forth above, Defendant’s motion in limine to exclude
evidence of prior benefits paid and previous settlement is granted in part and denied
in part.
C.

Testimony of Dr. Hinderer on Issue of Causation

Plaintiff has named several medical professionals to serve as witnesses in this
6

case, including Steven Hinderer, MD. Defendant argues that, in order for No-Fault
benefits to be payable, they must be causally connected to an accidental bodily injury
arising out of an automobile accident. See, e.g., M.C.L. 500.3107; Griffith v. State
Farm Mut. Auto. Ins. Co., 472 Mich. 521 (2005). Defendant further argues that
because Dr. Hinderer “cannot establish to what extent, if any, Plaintiff’s current
condition is the result of the [1997] motor vehicle accident, [he must be] preclude[d]
. . . from testifying in this case as to whether a causal connection exists” because his
testimony “would be purely speculative.” See Fed.R.Evid. 702; Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993) (testimony of a scientific or
specialized nature is permitted only when it will assist the trier of fact in
understanding the evidence or to determine a material fact in issue; therefore, such
testimony must be “relevant to the task at hand,” based on sound science, and be
“more than subjective believe or unsupported speculation”); Skinner v. Square D Co.,
445 Mich. 153 (1994) (plaintiff must elicit proofs that are based on reasonable
inferences and not mere conjecture and speculation).
Notwithstanding Defendant’s motion, it is unclear whether Plaintiff will tender
Dr. Hinderer as an expert witness. First, Plaintiff’s witness list includes Dr. Hinderer
under “Medical Experts/Witnesses.” Second, Plaintiff states in her response that Dr.
Hinderer is “her treating physical medicine and rehabilitation doctor” and at no point
7

states that he will be offered as an expert (though she states that her “evidence has met
the FRE 702 requirement” and has attached Dr. Hinderer’s curriculum vitae for
review). The Court also notes that Dr. Hinderer’s testimony does not appear to be
much different from, or inconsistent with, other physicians who will testify in this
case. Finally, although Defendant seems to desire to preclude Dr. Hinderer from
“quantifying [with] a degree of medical certainty the extent to which the need for
attendant care is related to” the 1997 motor vehicle accident, Defendant does not
appear to challenge Dr. Hinderer’s testimony as it relates to causal connection
between the 1997 motor vehicle accident and the deconditioning of Plaintiff’s tone
thereafter.
In light of the foregoing, the Court finds that, at this time, it would be premature
to rule on the scope of Dr. Hinderer’s possible testimony. Dr. Hinderer has not been
offered as an expert witness, and it is not clear he will be offered as one. As such,
there is no basis for excluding or allowing any “expert” testimony he may or may not
offer. To the extent Plaintiff tenders Dr. Hinderer as an expert or seeks to introduce
opinion testimony through Dr. Hinderer, Defendant will have an opportunity to voir
dire Dr. Hinderer regarding his qualifications as an expert, object to his testimony,
and/or cross-examine Dr. Hinderer regarding his testimony. Therefore, the Court
denies without prejudice Defendant’s motion in limine to exclude any testimony Dr.
8

Hinderer may be asked to provide regarding causation.
III. CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Defendant TIG Insurance Company’s Motion in Limine
to Exclude Evidence Regarding Prior Benefits Paid and Previous Settlements between
the Parties in Prior Lawsuits (Doc. No. 27) is GRANTED IN PART and DENIED IN
PART.
IT IS FURTHER ORDERED that Defendant’s Motion in Limine to Exclude
Testimony of Steven Hinderer, MD on the Issue of Causation (Doc. No. 28) is
DENIED WITHOUT PREJUDICE.
S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: September 29, 2015
I hereby certify that a copy of the foregoing document was served upon counsel of
record on September 29, 2015, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

9