Smith v. Union Standard Insurance Group, LLC

Filing 204

ORDER granting in part and denying in part 170 Motion in Limine; granting 172 Motion in Limine; granting 174 Motion in Limine; granting 178 Motion in Limine; denying 180 Motion in Limine; granting 182 Motion in Limine; denying 184 Motion in Limine; granting 186 Motion in Limine. Signed by District Judge Michael P. Mills on 6/13/2017. (lpm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
ANTHONY SMITH

PLAINTIFF

v.

Civil Action No.: 3:15-cv-00162-MPM-RP

UNION INSURANCE COMPANY

DEFENDANT
ORDER

Presently before the Court are eight motions in limine filed by defendant Union Insurance
Company (“Union”). Plaintiff Anthony Smith (“Smith”) filed a response as to each motion,
conceding some of them and setting forth his arguments in opposition to many of them. The
Court has reviewed the parties’ submissions, in conjunction with relevant authorities, and is now
prepared to rule.1
Standard
“The purpose of a motion in limine is to allow the trial court to rule in advance of trial on
the admissibility and relevance of certain forecasted evidence.” Harkness v. Bauhaus U.S.A.,
Inc., 2015 WL 631512, at *1 (N.D. Miss. Feb. 13, 2015) (additional citations omitted). In this
context, “[e]vidence should not be excluded . . . unless it is clearly inadmissible on all potential
grounds.”2 Id. (quoting Fair v. Allen, 2011 WL 830291, at *1 (W.D. La. Mar. 3, 2011))
(emphasis added).

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Because the Court has set forth the underlying facts of the case multiple times in previous
orders, it will refrain from doing so again here. Rather, it will turn directly to the substance of
the present motions.
2
See also U.S. v. Porter, 2016 WL 740393, at *3 (E.D. La. Feb. 25, 2016) (quoting Harris v.
City of Circleville, 2010 WL 816974, at *2 (S.D. Ohio Mar. 5, 2010)) (“[A] court should not
make a ruling in limine unless the moving party meets its burden of showing that the evidence in
question is clearly inadmissible.”) (emphasis added).
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Evidentiary rulings “should often be deferred until trial so that questions of foundation,
relevancy and potential prejudice can be resolved in proper context.” Rivera v. Salazar, 2008
WL 2966006, at *1 (S.D. Tex. July 30, 2008) (citing Sperberg v. Goodyear Tire & Rubber Co.,
519 F.2d 708, 712 (6th Cir. 1975)). Moreover, the “[d]enial of a motion in limine does not
necessarily mean that all evidence contemplated by the motion will be admitted at trial. Denial
merely means that without the context of trial, the court is unable to determine whether the
evidence in question should be excluded.” Gonzalez v. City of Three Rivers, 2013 WL 1150003,
at *1 (S.D. Tex. Feb. 8, 2013) (quoting Hawthorne Partners v. AT&T Tech., Inc., 831 F.Supp.
1398, 1400 (N.D. Ill. 1993); Luce v. United States, 469 U.S. 38, 41 n.4, 105 S.Ct. 460, 83
L.Ed.2d 443 (1984)).
This Court has previously emphasized that “[t]he purpose of motions in limine is not to
re-iterate matters which are set forth elsewhere in the Rules of Civil Procedure or Rules of
Evidence, but, rather, to identify specific issues which are likely to arise at trial, and which, due
to their complexity or potentially prejudicial nature, are best addressed in the context of a motion
in limine.” Maggette v. BL Development Corp., 2011 WL 2134578, at *4 (N.D. Miss. May 21,
2011) (emphasis in original); see also Estate of Wilson v. Mariner Health Care, Inc., 2008 WL
5255819, at*1 (N.D. Miss. Dec. 16, 2008) (“[M]otions in limine should be narrowly tailored to
address issues which will likely arise at trial and which require a pre-trial ruling due to their
complexity and/or the possibility of prejudice if raised in a contemporaneous objection.”).
Additionally, a motion “set[ting] forth a lengthy laundry list of matters, most of them of a highly
vague nature . . . constitutes an improper ‘shotgun’ motion which fails to meet this court’s
standards for motions in limine.” Estate of Wilson, 2008 WL 5255819, at *1.

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Discussion
The Court will address each of Union’s eight motions in turn.
Motion to exclude testimony or other evidence regarding any physical injury [170]:
In this motion, Union argues that the Court should exclude any evidence relating to
Smith’s physical injuries or physical limitations, stating that the complaint “alleges that Union’s
actions resulted in pain, discomfort and emotional distress, including worry and axiety [sic]. . .
[but] does not make a claim for any physical injury, exacerbation of physical injury and/or
permanent physical limitations as a result of Union’s alleged delay.” Union additionally
emphasizes multiple responses to interrogatories, wherein Smith makes no mention of any
physical injury or limitations.
In response, Smith avers that “[t]o the extent that [Union’s] Motion seeks to exclude
damages for the physical aspect of worry, anxiety, emotional distress together with unnecessarily
incurred pain and discomfort caused by [Union’s] delay and constructive denial for medical
care[, Union’s] Motion is misplaced. It is conceded that there is no allegation of any permanent
physical limitation but Plaintiff has plainly alleged unnecessarily incurred pain and discomfort
caused by delay in medical care and immense and ongoing worry, anxiety and emotional distress
caused by that delay that are indeed physical injuries and should not be stricken.”
To the extent it is opposed, Union’s motion will be denied. In his prayer for relief, Smith
requests compensation for, among other things, “[p]ast unnecessarily incurred pain and
discomfort caused by Defendants [sic] delay and constructive denial for medical care[.]” In the
Court’s view, this prayer for relief shows Smith’s intent, from the outset, to seek recovery for
physical injuries suffered due to Union’s conduct—specifically, pain and discomfort. Although
his stated cause of action was for intentional/negligent infliction of emotional distress, he never

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stated that he did not wish to seek damages for the physical manifestations of his emotional
injuries, and Union’s assertions to the contrary are erroneous. As a result, this request will be
denied. Union may, however, submit proposed jury instructions concerning damages that
address its concerns, and the Court will entertain those submissions at the appropriate time.
Nevertheless, at the present time, the Court will grant the motion to the extent it is unopposed
and deny it in all other respects.
Motion to exclude evidence concerning the Mississippi Workers’ Compensation Act not
specifically pled in the complaint [172]:
The Court now turns to Union’s request that the Court exclude “any testimony or other
evidence regarding the denial or delay in authorizing or paying any benefits in the underlying
workers’ compensation claim that have not been specifically pled in the [c]omplaint.” In the
motion, Union contends that although this action has been narrowed to four specific alleged
instances of delay, Smith will likely attempt to offer evidence concerning other delays in
receiving benefits.
In his reply, Smith states that “[t]o the extent [Union] seeks to exclude damages not pled,
the Motion is conceded.”
Accordingly, the motion will be granted, and Smith will not be permitted to introduce
evidence concerning damages that were not pled.
Motion to exclude evidence regarding forty-five day period for scheduling and completion of
employer medical evaluations [174]:
In its next motion, Union asks the Court to exclude any testimony or other evidence
concerning a forty-five day requirement for scheduling or completing an employer medical
evaluation (“EME”). Union contends that “[t]here is no such requirement contained in any
statute, rule, fee schedule or other applicable authority that applies to the issues raised in

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[Smith’s] complaint.” This motion stems from Smith’s response to Union’s motion for summary
judgment, wherein Smith made reference to a forty-five day requirement for conducting an EME
in the 2013 medical fee schedule. However, the parties agree that the 2007 fee schedule—not
the 2013 schedule—is applicable to this action. Therefore, Union argues that any reference to
the new requirement in the 2013 fee schedule is irrelevant and should be excluded.
Smith states that he does not contest the motion. He does emphasize, however, that in
referencing the 2013 fee schedule, he was simply responding to Union’s motion for summary
judgment and pointing out that the conduct at issue in this case has now been banned by the
Mississippi Workers’ Compensation Commission.
The Court appreciates the point Smith made in his response to Union’s summary
judgment motion and recognizes that the 2013 fee schedule is not applicable in the case at hand.
Consequently, it will grant the motion and exclude any references to the requirements of the
2013 fee schedule.
Motion to exclude testimony and references to Smith’s loss of income [178]:
Union next requests that the Court prohibit testimony or reference to Smith’s loss of
income as an athletic trainer. At the time Smith was injured, he held a part-time job as an
athletic trainer for the sports teams of the Desoto County School District, in addition to his
teaching position.3 Because Smith was unable to complete the tasks required of an athletic
trainer due to the injuries he sustained in the accident, he was replaced in November 2009—
about three months after the accident occurred.
In the present motion, Union avers that any lost income Smith experienced due to his
inability to perform his duties as an athletic trainer can only be traced to his initial injuries when

3

For this position, Smith was employed and paid by Dr. Claiborne Christian—not the school
district.
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he fell from the ladder—not the alleged delays that form the basis for this action. Stated
differently, Union contends that Smith would not have been able to perform his duties as an
athletic trainer regardless of whether it had delayed or not and he therefore should not be
permitted to recover damages for that loss of income. Consequently, Union requests that any
evidence concerning income Smith would have earned in his capacity as an athletic trainer be
excluded as irrelevant.
In response, Smith states that “[t]here is not now nor has there ever been a claim in this
litigation for loss wages [sic] because [he] was not able to work as a personal trainer, only
because of delay in his being able to return to work, any kind of work.” Smith then concedes
that Union’s motion is proper and unopposed. It will be granted.
Motion to exclude testimony and reference to Smith’s familial loans, refinancing, or similar
expenses [180]:
Throughout discovery, Smith has contended that he was forced to borrow money from
family members, refinance his home, and incur litigation costs due to Union’s conduct, and that
these costs resulted in increased stress and anxiety for him. In the present motion, Union states
that evidence concerning these costs should be excluded because “[n]one of these alleged
financial damages/expenses have been formally identified, and no additional information
regarding the same has been produced.” Moreover, Union emphasizes Smith’s answer to a
supplemental interrogatory, wherein he was asked to provide a calculation of his alleged
monetary damages and responded as follows:
SUPPLEMENTAL ANSWER: The expenses and litigation costs required and as
set forth in my Complaint [1] Subparagraph d. page 10, are those related to
litigation expenses, expert witness fees, etc. They are not calculable until they are
allowed in a post-trial motion for these fees and expenses and are the only
expenses that I claim.

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Relying on this response and the fact that he has not provided any documentation of
expenses incurred, Union avers that Smith should be prohibited from introducing evidence or
referencing them at trial.
Smith opposes the motion. He states that no documentation concerning the money he
borrowed from family members was produced in discovery because no such documentation
exists. Moreover, he argues that while he “never provided the exact amount borrowed from his
in-laws, the fact he did indeed have to borrow is relevant to his claim as set forth in paragraph 16
of the Complaint [1] that ‘Plaintiff was required to remain unnecessarily in discomfort, pain and
unable to return for work for months and months, while [Union] simply did nothing to provide
authorized medical care.’” Thus, Smith’s position is that he suffered injuries, such as stress and
worry, because he was required to borrow money and refinance his assets while Union
unnecessarily delayed in authorizing medical treatment, preventing him from recovering more
quickly.
The Court finds Smith’s response persuasive. Despite the fact that he does not have
documentation showing that he borrowed money and has not disclosed the amounts of those
loans, the fact that he had to do so—regardless of the amount—is relevant to his damages. Of
course, if Union is concerned that Smith may not be telling the truth about the loans or suspects
that the loans were for an inconsequential amount, it may attempt to bring out those points at trial
on cross-examination. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595,
113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (“Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and appropriate means
of attacking shaky but admissible evidence.”). In the Court’s view, this avenue is sufficient to
address Union’s concerns. The motion will be denied.

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Motion to exclude testimony and references regarding the termination and personnel file of
Jorge Vallejo [182]:
Union’s next motion concerns the personnel file of Jorge Vallejo. Vallejo was employed
as an adjuster by Union at the time Smith’s injury occurred. He was assigned to Smith’s
workers’ compensation claim on February 10, 2010. Vallejo was ultimately terminated by
Union for ineffective job performance. His personnel file includes disciplinary write-ups,
evaluations, and other documentation concerning his job performance and termination. As to the
personnel file, Union states that “[d]espite Vallejo’s personnel file and termination
documentation making no reference to the handling of [Smith’s] claim, Union anticipates that
[he] will attempt to introduce this evidence at trial.” Union argues that the personnel file is
inadmissible because it is “irrelevant, prejudicial, and evidence of a subsequent remedial
measure.” Thus, its position is that the evidence should be excluded under FRE 401, 402, 403,
and 407.
In opposition, Smith states that he does not plan to introduce Vallejo’s entire personnel
file; rather, “he intends to introduce five (5) documents (P.42, 43, 44, 45, 46) that show, during
the time frame relevant to this action, that Vallejo did not return telephone calls or emails which
led to unnecessary delay in injured workers receiving timely medical care. He showed absolute
indifference to the well-being of workers’ compensation claimants insured by Union, of which
Smith was one.”
Union’s motion is well-taken. While the fact that Vallejo often failed to return phone
calls or emails may have some probative value, it is far outweighed by the potential prejudicial
effect that it may cause the jury. In the Court’s view, there is a significant probability that
admitting documents showing the adjuster assigned to Smith’s case often failed to return calls in

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other cases would unnecessarily inflame the jury and cause unwarranted prejudice against Union
in this case.
Additionally, the Court notes that it is not clear which documents Smith intends to
introduce from the file. As mentioned above, his response states that he “intends to introduce
five (5) documents (P. 42, 43, 44, 45, 46) that show . . . that Vallejo did not return telephone calls
or emails which led to unnecessary delay in injured workers receiving timely care.” Presumably,
Smith is referencing pages 42-46 of the personnel file attached to Union’s motion. The Court
has reviewed these specific documents, along with the rest of the file, and finds that their
probative value is minimal. The documents concern Vallejo’s job performance as a whole—not
his performance in this specific case. They will be excluded, and the motion will be granted.
Motion to exclude certain testimony of Deborah Moore [184]:
Union next argues for the exclusion of certain testimony of Deborah Moore. Moore is, or
was at the relevant time period, employed as a paralegal for Shane Tompkins—the attorney who
represented Smith during the administrative process in this case. The motion relates to
statements made by Moore in her deposition, wherein she stated that Jeff Skelton—Union’s
counsel during the administrative process—made comments to her about Jorge Vallejo’s
handling of Smith’s case. Moore’s deposition testimony relevant to this motion was:
Q. Did [Skelton] ever explain to you what was going on or why there was a
problem?
A. The majority of the time, he would say that he had been unable to reach Mr.
Jorge. He would be unable to reach him, or he wouldn’t call him back. And he
would say, “I’m doing the best I can. I can’t do much when my client won’t call
me back.”
...
Q. You mentioned it was the same conversation all the time when you called
[Skelton]. What would be his response?
A. “I’m waiting to hear back from my adjuster. My adjuster hasn’t called me
back yet. I haven’t been able to get in touch with my adjuster yet.”

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Union argues that “[a]ny testimony from Moore and/or arguments or references from
[Smith’s] counsel to such testimony regarding Skelton’s alleged inability to contact Vallejo are
irrelevant to the allegations in [Smith’s] Complaint.” Union’s contention is that it complied with
all utilization review guidelines, making the fact that Skelton was allegedly unable to make
contact with Vallejo concerning medical treatment and testing that had already been nonauthorized have no probative value.
The Court is unpersuaded by Union’s argument. Unlike the personnel file that the Court
addressed above, which related to Vallejo’s treatment of other cases, Moore’s proposed
testimony directly relates to Smith’s claim. In fact, part of Smith’s allegations is that he
attempted to contact Union but was unable to obtain any help to promptly resolve his concerns
regarding the non-authorizations. Therefore, the Court finds that this testimony, which
corroborates Smith’s theory that it was difficult to communicate with Union, is relevant.
However, it also recognizes that this testimony may possibly be inadmissible in some contexts,
and it will have to make such rulings in the context of trial. See Gonzalez, 2013 WL 1150003, at
*1 (“Denial of a motion in limine does not necessarily mean that all evidence contemplated by
the motion will be admitted at trial. Denial merely means that without the context of trial, the
court is unable to determine whether the evidence in question should be excluded.”). Therefore,
Union may raise its objection to this evidence at trial; however, without the context of trial, the
Court cannot definitively conclude that the testimony is inadmissible on all potential grounds.
Consequently, the motion will be denied.
Motion to prevent argument that assertion of privilege equates admission of liability, fault, or
other similar contention [186]:
Union’s final motion relates to a detailed log containing documents that “largely relate to
communications between Skelton and his employees.” Although Union produced the documents
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in discovery, it asserts that they are inadmissible at trial pursuant to FRE 502. In the motion,
Union states that “though the communications are lawfully protected, Union anticipates that
[Smith] will attempt to argue at trial the Union’s non-production of the communications provides
an inference that the documents contain damaging evidence. . . [and that] [a]ny testimony,
argument, reference, or mention, directly or indirectly, that Union’s non-production of privileged
communications provides an inference of liability, fault or similar contention, should [] be
excluded.”
In his response, Smith avers that “[w]hile it is certain these documents contain damaging
evidence, Plaintiffs [sic] attorney has never indicated they would attempt to make such an
assertion that hiding behind the privilege as Union has done in this matter provides an inference
of liability, fault or other contention.” Thus, it appears that, without explicitly stating so, Smith
concedes this motion. It is well-taken and will be granted.

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Conclusion
Relying on the foregoing analysis, it is hereby ORDERED that:
(a) Union’s Motion to exclude testimony or other evidence regarding any physical injury
[170] is GRANTED IN PART;
(b) Union’s Motion to exclude testimony or other evidence regarding any physical injury
[172] is GRANTED;
(c) Union’s Motion to exclude evidence regarding forty-five day period for scheduling
and completion of employer medical evaluations [174] is GRANTED;
(d) Union’s Motion to exclude testimony and references to Smith’s loss of income [178] is
GRANTED;
(e) Union’s Motion to exclude testimony and reference to Smith’s familial loans,
refinancing, or similar expenses [180] is DENIED;
(f) Union’s Motion to exclude testimony and references regarding the termination and
personnel file of Jorge Vallejo [182] is GRANTED;
(g) Union’s Motion to exclude certain testimony of Deborah Moore [184] is DENIED;
(h) Union’s Motion to prevent argument that assertion of privilege equates admission of
liability, fault, or other similar contention [186] is GRANTED.
SO ORDERED, this the 13th day of June, 2017.

/s/ MICHAEL P. MILLS
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI

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