West v. Drury Company

Filing 143

ORDER granting in part and denying in part 133 Motion in Limine. Signed by W. Allen Pepper on 5/19/2009. (pbs, USDC)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI DELTA DIVISION CHRISTOPHER WEST VERSUS DRURY COMPANY ORDER This cause is before the Court on the defendant's Motion in Limine Concerning Plaintiff's Trial Exhibits [133]. The Court, having reviewed the motion, the response, the authorities cited and being otherwise fully advised in the premises, finds as follows, to-wit: Plaintiff's Exhibit 1: The Court sustains defendant's objections to those certain medical records and medical bills identified in the defendant's motion as follows: Methodist Hospital Family Care Group Mid-South Ear, Nose and Throat ? Mid-South Imaging Pathology Group of the Mid-South Baptist and Baptist East Lab Work American Sleep Medicine Baptist Memorial Hospital - East Baptist Mid-South Imaging and Therapeutics Mobilcare Milburn May 2006 April - September 2007 May - June 2006 May - July 2006 June - July 2006 July 2006 July 2006 July 2006 May 2006 May 2006 May 2006 May 2006 June 2006 June 2006 Diabetes Diabetes Sinuses Sinuses Sinuses Sinuses Sinuses Sinuses Sleep apnea Heart Heart Heart ? ? PLAINTIFF CIVIL ACTION NO. 2:07CV215-P-A DEFENDANT

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Plaintiff's Exhibit 2: The Court reserves ruling on the defendant's objection to Dr. Howser's curriculum vitae until the time of trial. Dr. Howser's April 16, 2007 letter to plaintiff's counsel is hearsay which does not fall into any of the exceptions articulated in F.R.E. 803. It also fails the test for the residual hearsay exception outlined in F.R.E. 807. Accordingly, defendant's objections thereto are sustained. Nothing in the Court's ruling is to be interpreted as a ruling on the admissibility of Dr. Howser's testimony under F.R.E. 702. Plaintiff's Exhibit 3: The Court reserves ruling on the defendant's objection to Dr. Moskovitz's curriculum vitae until the time of trial. Dr. Moskovitz's March 30, 2007 and May 7, 2007 letters to plaintiff's counsel are hearsay which do not fall into any of the exceptions articulated in F.R.E. 803. They also fail the test for the residual hearsay exception outlined in F.R.E. 807. Defendant's objections thereto are sustained. Nothing in the Court's ruling is to be interpreted as a ruling on the admissibility of Dr. Moskovitz's testimony under F.R.E. 702. Plaintiff's Exhibit 4: The Court reserves ruling on the defendant's objection to Dr. Rizk's curriculum vitae until the time of trial. Dr. Rizk's April 27, 2006, June 22, 2006, July 27, 2006, August 10, 2006 and October 11, 206 letters to plaintiff's counsel are hearsay which do not fall into any of the exceptions articulated in F.R.E. 803. They also fail the test for the residual hearsay exception outlined in F.R.E. 807. Defendant's objections thereto are sustained. Nothing in the Court's ruling is to be interpreted as a ruling on the admissibility of Dr. Rizk's testimony under F.R.E. 702. Plaintiff's Exhibit 6: Billy Seward's undated expert report constitutes hearsay which does not fall into any of the exceptions articulated in F.R.E. 803. It also fails the test for the residual hearsay exception outlined in F.R.E. 807. Defendant's objections thereto are sustained. Nothing

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in the Court's ruling is to be interpreted as a ruling on the admissibility of Mr. Seward's testimony under F.R.E. 702. Plaintiff's Exhibit 7: Subject to the plaintiff establishing the requisite factors for admissibility pursuant to F.R.E. 803(6), defendant's objection to the admissibility of the promotional brochure from Caring Companions is overruled. Plaintiff's Exhibit 10: Defendant's objection to the admissibility of life expectancy tables is overruled. Plaintiff's Exhibit 12: The Court sustains Defendant's objection to the admissibility of Glen Greenwell's written report. The report is hearsay which does not fall into any of the exceptions articulated in F.R.E. 803. Nothing in the Court's ruling is to be interpreted as a ruling on the admissibility of similar testimony by Mr. Greenwell at the time of trial. IT IS, THEREFORE, ORDERED AND ADJUDGED that the defendant's Motion in Limine Concerning Plaintiff's Trial Exhibits [133] should be, and hereby is, GRANTED IN PART and DENIED IN PART, as set forth above. SO ORDERED, this the 19th day of May, 2009.

/s/ W. Allen Pepper, Jr. W. ALLEN PEPPER, JR. UNITED STATES DISTRICT JUDGE

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