Smith v. State Farm Mutual Automobile Insurance Company

Filing 35

ORDER granting in part and denying in part Plaintiff's 27 Motion in Limine; and granting Defendant's 28 Motion in Limine as outlined in this Order. Signed by District Judge Keith Starrett on March 27, 2014 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
JENNIFER KAYE SMITH

PLAINTIFF

V.

CIVIL ACTION NO. 2:13cv35-KS-MTP

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY

DEFENDANT

OPINION AND ORDER
This matter is before the Court on the Plaintiff Jennifer Kaye Smith’s Motion in
Limine [27] and the Defendant State Farm Mutual Automobile Insurance Company’s
Motion in Limine [28]. Having considered the submissions of the parties, the record,
and the applicable law, the Court finds as follows:
Background
Plaintiff seeks to recover uninsured/underinsured motorist benefits from State
Farm Mutual Automobile Insurance Company (“State Farm”) in connection with an
automobile accident occurring on or about October 20, 2012, in Forrest County,
Mississippi. Plaintiff was a guest passenger in a vehicle operated by Jessica (Lori)
Myers at the time of the accident. Plaintiff alleges that Ms. Myers ran a stop sign,
resulting in a collision with a vehicle operated by Charles Anderson. The fault of Ms.
Myers for the accident and her status as an underinsured motorist do not appear to be
contested issues between the parties.
Standard of Review
The United States Court of Appeals for the Fifth Circuit has provided the
following guidance:
A motion in limine is a motion made prior to trial for the purpose of prohibiting

opposing counsel from mentioning the existence of, alluding to, or offering
evidence on matters so highly prejudicial to the moving party that a timely
motion to strike or an instruction by the court to the jury to disregard the
offending matter cannot overcome its prejudicial influence on the jurors'
minds.
O’Rear v. Fruehauf Corp., 554 F.2d 1304, 1306 n.1 (5th Cir. 1977) (citation omitted).
Further, numerous federal courts have found “that motions in limine may be used to
secure a pretrial ruling that certain evidence is admissible.” Bond Pharmacy, Inc. v.
AnazaoHealth Corp., No. 3:11cv58, 2012 WL 3052902, at *2 (S.D. Miss. July 25, 2012)
(citing cases).
Plaintiff’s Motion in Limine [27]
Plaintiff requests that thirteen (13) subject matters be excluded from the jury at
trial. Each request for exclusion will be addressed in turn.
1.

That Plaintiff has received, may be entitled to receive, or will receive
benefits of any kind or character from a collateral source including but not
limited to collateral source insurance coverage, social security, or
gratuitous benefits from members of her church

State Farm does not object to this request for exclusion. Therefore, this portion
of the motion is granted as unopposed.
2.

Plaintiff has failed to call any person as a witness to testify in her present
action, if that person is equally available as a witness for Defendant

State Farm objects to the exclusion of any references or testimony concerning
witnesses or other participants involved in the accident as overly broad. The Court
does not read this request for exclusion as broadly as does State Farm. It appears that
the Plaintiff is only seeking to prohibit State Farm and its counsel from stating in front of
the jury that the Plaintiff has failed to call a witness who is equally available to both
sides. Such a prohibition comports with Fifth Circuit precedent. “It is well-settled that it
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is impermissible to draw any inference from a party’s failure to call witnesses that were
equally available to both sides.” United States v. Virgen-Moreno, 265 F.3d 276, 291
(5th Cir. 2001) (citing United States v. Iredia, 866 F.2d 114, 118 (5th Cir. 1989)); see
also Verdin v. Sea-Land Serv., Inc., 8 F.3d 21, 1993 WL 455645, at *3 (5th Cir. 1993)
(providing that the Federal Rules of Evidence and Federal Rules of Civil Procedure
have rendered the uncalled witness rule, which creates a presumption that an uncalled
witness would have offered unfavorable testimony, “‘an anachronism’”) (quoting Herbert
v. Wal-Mart Stores, 911 F.2d 1044, 1048 (5th Cir. 1990)); McQuaig v. McCoy, 806 F.2d
1298, 1303 (5th Cir. 1987) (finding harmless error in the trial court’s refusal to sustain
an objection to the defendant attempting to draw a negative inference from the plaintiffs’
failure to call a witness). That said, “‘[w]hen a witness is controlled by one party, failure
to call the witness, if his testimony would elucidate facts in issue, creates an inference
which the jury is permitted to draw against that party.’” United States v. Foster, 298
Fed. Appx. 310, 311 (5th Cir. 2008) (quoting United States v. Chapman, 435 F.2d 1245,
1247 (5th Cir. 1970)). This portion of the motion is granted since the Court finds that
the Plaintiff’s request for relief only pertains to witnesses equally available to both sides.
Therefore, State Farm and its attorneys are prohibited from stating in front of the jury
that the Plaintiff failed to call a witness who is equally available to State Farm. Any
argument to the effect that an uncalled witness is controlled by one side, resulting in a
request for a negative inference, must first be raised outside the presence of the jury.
3.

Testimony and/or opinions of any individuals not previously identified
(specifically and/or timely) as having knowledge of facts relevant to this
matter

State Farm does not object to this request for exclusion. Therefore, this portion
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of the motion is granted as unopposed.
4.

The time or circumstances under which Plaintiff employed her attorney,
including any reference of any kind to the fee basis or the existence of
contingency fee contracts

State Farm does not object to this request for exclusion. Therefore, this portion
of the motion is granted as unopposed.
5.

Expert witness opinions that were not revealed in response to a discovery
request

State Farm does not object to this request for exclusion. Therefore, this portion
of the motion is granted as unopposed.
6.

Impeachment of Plaintiff on any matter which is collateral to this lawsuit
and which is not relevant nor germane to the claims of Plaintiff or
defenses alleged by the Defendant, without a predicate for the relevancy
of such matters first being demonstrated to the satisfaction of this Court

State Farm opposes this request for exclusion on the basis that it is vague and
overly broad. The Court agrees. Plaintiff’s request is too broad and indefinite to enable
an exclusionary ruling at this time. Consequently, this portion of the motion is denied
without prejudice to the Plaintiff’s ability to assert specific objections at trial.
7.

Any questions, comments, or evidence showing that Plaintiff may have
had previous lawsuits or claims of any type that were brought, litigated, or
settled

State Farm opposes this request on the basis of Judge Barbour’s ruling in
Francois v. Colonial Freight Sys., Inc., No. 3:06cv434, 2007 WL 4564866 (S.D. Miss.
Dec. 21, 2007). In Francois, the plaintiff sought to exclude evidence regarding prior
lawsuits and claims as irrelevant and prejudicial. 2007 WL 4564866, at *10. Judge
Barbour denied the motion since the subject evidence was relevant on the issues of
credibility and damages, specifically whether the plaintiff suffered from preexisting
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injuries. Id. Judge Barbour deferred ruling on the extent to which the details of the prior
lawsuits would be admitted into evidence at trial. Id.
The details of any prior lawsuits or claims involving the Plaintiff are not before
this Court. Thus, the Court is unable to make any pretrial determination as to whether
those claims or lawsuits are relevant to any issue remaining to be tried in this cause.
However, given that evidence of separate lawsuits/claims often raises Federal Rule of
Evidence 403 concerns,1 the Court will err on the side of caution and partially grant this
portion of the motion. Counsel for State Farm shall not mention nor attempt to place
before the jury, through witnesses or otherwise, any information about other lawsuits or
claims involving the Plaintiff without first securing a ruling from the Court on its
admissibility.
8.

Any questions, comments, or evidence showing that Plaintiff previously
filed tax returns that may or may not have contained errors, or asking any
questions or making any comments that would suggest Plaintiff
intentionally falsified income tax returns

State Farm argues that the Plaintiff has placed her wage history at issue in this
lawsuit by seeking lost wages, and that her tax returns are relevant to the wage loss
claim. The Complaint asserts that the Plaintiff has suffered lost wages and a loss of
opportunity to earn wages. (Compl. [1-1] at ¶ VI.) The Plaintiff’s tax returns are not
before the Court. However, the returns are likely relevant to the Plaintiff’s wage loss
claim if they, like most individual returns, list her income from wages, salaries, and/or

1

See, e.g., Batiste-Davis v. Lincare, Inc., 526 F.3d 377, 380-81 (8th Cir. 2008);
Jackson-Hall v. Moss Point Sch. Dist., No. 3:11cv42, 2012 WL 1098524, at *4 (S.D.
Miss. Apr. 2, 2012); Aiken v. Rimkus Consulting Group, Inc., No. 1:06cv741, 2007 WL
4245906, at *2 (S.D. Miss. Nov. 29, 2007), aff’d, 333 Fed. Appx. 806 (5th Cir. 2009).
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tips. Furthermore, evidence that the Plaintiff falsified her tax returns would go toward
her credibility. See Hopson v. Deffenbaugh Disposal Serv., Inc., No. 07-2232, 2009 WL
151589, at *1 (D. Kan. Jan. 21, 2009) (denying the plaintiff’s request to exclude her tax
information since proof that she provided false information under oath was probative of
her veracity); Gaillard v. Jim’s Water Serv., Inc., No. 04-5062, 2007 WL 5396427, at *5
(D.S.D. Aug. 13, 2007) (“[E]vidence that suggests Gaillard filed false tax returns is
relevant to his ‘character for truthfulness’ as a witness under Rule 608(b).”). Plaintiff’s
present argument in favor of exclusion fails to persuade the Court that the probative
value of the tax returns is substantially outweighed by any danger of unfair prejudice or
jury confusion. See Fed. R. Evid. 403. Therefore, this portion of the motion is denied
without prejudice to the Plaintiff’s ability to raise specific objections at trial.
9.

Opinions or evidence showing or intending to show that the driver of the
automobile in which Plaintiff was a passenger at the time of the accident
was intoxicated, impaired, or under the influence of alcohol or drugs as the
same would cause undue prejudice, improperly influence the jury, and
confuse the issues now before this Court

State Farm posits that “even though liability is not at issue, such an extreme
limitation would omit basic facts that are necessary to complete the facts surrounding
the accident.” (State Farm’s Resp. to Mot. in Limine [33] at p. 4.) The Court disagrees.
In light of State Farm’s concession as to liability, the relevance of the driver’s
impairment or intoxication to any issue remaining for trial is virtually nonexistent.
Moreover, any marginal benefit associated with the jury hearing this background
information is substantially outweighed by the risk of unfair prejudice to the Plaintiff, jury
confusion, and wasted time. Upon hearing that the driver was under the influence of
alcohol or drugs at the time of the accident, the jury may question whether the Plaintiff
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was in a similar state or fault the Plaintiff for riding in a vehicle with the impaired driver.
A verdict influenced by these considerations would be improper since the Plaintiff’s fault
is not at issue in this action. The presentation of opinions or evidence regarding the
driver’s impairment would also distract from, and needlessly delay the resolution of the
central issue of the Plaintiff’s damages resulting from the subject accident. Accordingly,
this portion of the motion is granted. State Farm and its attorneys are prohibited from
making any statements in front of the jury or introducing any evidence showing or
intending to show that the driver of the automobile in which the Plaintiff was a
passenger at the time of the accident was intoxicated, impaired, or under the influence
of alcohol or drugs.
10.

Any references to statements of witnesses or other persons contained
within the Mississippi Uniform Accident Report arising out of the accident
which is the subject matter of this litigation, to include opinions and
conclusions as such statements are excludable as hearsay

State Farm does not object to this request for exclusion. Therefore, this portion
of the motion is granted as unopposed.
11.

That Plaintiff is not an insured under the subject automobile policy
applicable to the claim for damages in this proceeding, or that Plaintiff has
been paid or received in part compensation from other insurers or
collateral sources including payments made by the Defendant voluntarily
for her damages claimed in this proceeding

State Farm does not object to this request for exclusion. Therefore, this portion
of the motion is granted as unopposed.
12.

That Plaintiff has made objection to documents as set forth by Defendant
in its Pretrial Order or that Plaintiff has failed to fully comply with discovery
requests made by the Defendant insurance company

State Farm does not object to this request for exclusion. Therefore, this portion
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of the motion is granted as unopposed.
13.

That all identifying information, social security numbers, drivers’ license
numbers, Medicaid, or other irrelevant or identifying information be
properly redacted from any and all exhibits, medical records, medical bills,
etc.

State Farm does not object to this request for exclusion. Therefore, this portion
of the motion is granted as unopposed. The parties, as opposed to the Clerk or the
Court, are responsible for ensuring that all exhibits are properly redacted. See
L.U.Civ.R. 5.2.
State Farm’s Motion in Limine [28]
State Farm seeks a pretrial ruling prohibiting the Plaintiff from presenting
arguments or evidence to the jury regarding four subjects of information:
1.

State Farm’s tender of $35,000.00 to the Plaintiff;

2.

Any evidence of the underinsured motorist policy limits;

3.

Any evidence or testimony regarding State Farm’s handling of the
Plaintiff’s underinsured motorist claim, including any mention of State
Farm’s corporate trial representative not being involved in the adjusting of
the claim; and

4.

The payment of $50,000.00 to the Plaintiff by the at-fault driver’s liability
carrier.

The Plaintiff’s Response [32] to this motion only addresses State Farm’s third request
for exclusion. Therefore, State Farm’s first, second, and fourth requests are granted as
confessed.
As to request for exclusion number three (3), State Farm chiefly contends that
evidence concerning its handling of the Plaintiff’s claim is irrelevant to any issue
remaining for trial since the Plaintiff agreed to dismiss her bad faith claim. (See Agreed
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Order [22].) As a corollary, State Farm argues that the Plaintiff should be prohibited
from mentioning “that State Farm’s corporate trial representative was not involved in the
handling of the her [sic] underinsured motorist claim.” (State Farm’s Mem. Brief. in
Supp. of Mot. in Limine [29] at p. 5.) Plaintiff appears to object only to State Farm’s
corollary argument being extended to preclude the questioning of its corporate
representative as to the valuation of the Plaintiff’s damages. Defendant’s “Motion in
Limine should not go so far as to prohibit or disallow inquiry of State Farm’s trial
representative regarding whether or not Plaintiffs [sic] own valuation of damages are
[sic] correct, and if incorrect, just how State Farm may challenge that valuation at trial.”
(Pl.’s Resp. to Mot. in Limine [32] at p. 2.)
The Court finds that evidence of State Farm’s handling of the Plaintiff’s insurance
claim is irrelevant to the issues remaining for the jury’s consideration due to the
dismissal of the Plaintiff’s bad faith claim. Therefore, the Plaintiff and her counsel are
prohibited from presenting evidence or asserting arguments in front of the jury regarding
State Farm’s handling of the Plaintiff’s underinsured motorist claim for insurance
benefits. This ruling extends to any evidence of State Farm’s corporate trial
representative not being involved in the adjusting or handling of the Plaintiff’s claim.
This ruling does not extend to the Plaintiff’s questioning of State Farm’s trial
representative on the valuation of her damages, as the Court determines that this
information falls outside the scope of State Farm’s Motion in Limine [28]. State Farm
may assert specific objections at trial to any questioning of its corporate representative
by the Plaintiff.
Conclusion
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IT IS THEREFORE ORDERED AND ADJUDGED that the Plaintiff’s Motion in
Limine [27] is granted in part and denied part, as outlined above.
IT IS FURTHER ORDERED AND ADJUDGED that State Farm’s Motion in
Limine [28] is granted, as outlined above.
SO ORDERED AND ADJUDGED this the 27th day of March, 2014.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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