Ernestine v. Hi-Vac Corp
ORDER granting in part, denying in part and deferring in part Plaintiff's 143 Motion in Limine. Defendant's 147 Motion in Limine is granted. Signed by District Judge Keith Starrett on October 12, 2016 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 2:15-CV-23-KS-MTP
LIBERTY MUTUAL FIRE INSURANCE COMPANY
LIONEL ERNESTINE and HI-VAC LLC
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion in Limine  filed by Plaintiff Lionel
Ernestine (“Plaintiff”), and the Motion in Limine  filed by Defendant Hi-Vac LLC
(“Defendant”). After considering the submissions of the parties, the record, and the relevant law, the
Court finds that Plaintiff’s Motion in Limine  should be granted in part, denied in part, and
deferred in part. The Court further finds that Defendant’s Motion in Limine  should be granted.
Plaintiff’s Motion in Limine 
Plaintiff makes multiple arguments for the exclusion of various pieces of evidence. Many of
these arguments are broad and made without particularity, leaving the Court to guess what Plaintiff
wishes to exclude. The Court will address each of these arguments to the extent that it can.
Plaintiff requests that the workers’ compensation payments made by the intervener, Liberty
Mutual Fire Insurance Company (“Liberty Mutual”), be excluded under the collateral source rule,
and that Liberty Mutual’s presence in the case be hidden from the jury. Plaintiff also makes a broad
request that all collateral sources be kept from the jury.
Under the collateral source rule, “a tort feasor is not entitled to have the damages for which
he is liable reduced by proving that an injured party has received compensation from a collateral
source wholly independent of the tort feasor.” Preferred Risk Mut. Ins. Co. v. Courtney, 393 So.2d
1328, 1332 (Miss. 1981). Defendant do not object to the application of the collateral source rule
insofar as they recognize that they are not allowed to introduce such evidence for the purpose of
reducing their damages. However, they argue that, “should the Plaintiff pursue an anticipated
argument regarding his financial difficulties in paying for medical bills” in order to garner undue
sympathy from the jury, they should be able to point to collateral sources to impeach such testimony.
(Response  at p. 11.) They also argue that they should be able to introduce the workers’
compensation claim for other purposes, such as to show that “a substantial portion [of] Plaintiff’s
psychological treatment” is related to the mishandling of this claim rather than Defendant’s actions.
(Id. at p. 10.)
The Court agrees with Plaintiff insomuch as the collateral source rule does apply to prevent
Defendant’s from introducing evidence of compensation from collateral sources in order to reduce
the amount of damages for which they can be found liable, and will grant his motion to that extent.
However, the motion will be denied in that Defendant will be allowed to introduce evidence of
collateral sources for other purposes, should they be deemed relevant. Furthermore, because Plaintiff
has taken the position that Liberty Mutual must be an active participant in the trial, the Court will
deny his request that Liberty Mutual’s presence as a party be hidden from the jury, as to do so would
force Liberty Mutual to participate as an unknown entity/party.
Unrelated Medical Conditions
Plaintiff argues that Defendant should be precluded from introducing any evidence regarding
his past medical history as such evidence is irrelevant under F.R.E. 401 and unduly prejudicial under
F.R.E. 403. Defendant counters this argument by stating that the credibility of Plaintiff is an issue
in this case and that such evidence should be allowed for impeachment purposes.
Defendant purports to present such evidence as proof of specific instances in the past where
Plaintiff has been untruthful about his injuries. Introduction of specific instances of conduct for
impeachment purposes is governed by F.R.E. 608(b), which holds that
extrinsic evidence is not admissible to prove specific instances of a witness’s conduct
in order to attack or support the witness’s character for truthfulness. But the court
may, on cross-examination, allow them to be inquired into if they are probative of the
character for truthfulness or untruthfulness of:
the witness; or
another witness whose character the witness being cross-examined has
Fed. R. Evid. 608(b). Therefore, if Defendant wishes to cross-examine Plaintiff concerning
his past inconsistent pain reporting, they may do so under F.R.E. 608(b). Plaintiff has not
shown that the danger of unfair prejudice to him if this type of cross-examination were
allowed, would substantially outweigh its probative value, other than to summarily state that
it would. Without further support of his F.R.E. 403 argument, the Court will deny Plaintiff’s
motion with regard to this argument, and the Defendant will be allowed to use Plaintiff’s past
medical history on cross-examination for impeachment purposes. However, they will not be
allowed to introduce extrinsic evidence of this history into the record.
Plaintiff contends that any testimony regarding the fact that his attorneys may have
referred him to any hospital or doctor be excluded as irrelevant under F.R.E. 401 and unfairly
prejudicial under F.R.E. 403. Defendant argues that there is evidence in the record to support
the fact that Plaintiff’s attorney did in fact refer him to one of his physicians and that this
evidence is relevant for impeachment of those physicians’ diagnoses. The Court agrees that
this evidence is relevant to show bias of Plaintiff’s physicians and does not find that this
relevance is substantially outweighed by a danger of unfair prejudice to Plaintiff. Therefore,
Plaintiff’s motion will be denied as to this argument.
Out of Court Medical Opinions
Plaintiff asks the Court to preclude medical records and opinions of non-testifying
doctors as improper. Plaintiff relies on Amiker v. Brakefield, 73 So.2d 939, for his contention
that the opinions of non-testifying physicians should not be used to cross-examine his treating
physician. In Amiker, as Plaintiff admits, the Mississippi Supreme Court held that this crossexamination was improper as the non-testifying physicians were within the subpoena power
of the Court. 73 So.2d at 940. In this case, though, the non-testifying physicians all reside
in Louisiana and are beyond the subpoena power of this Court. The reasoning from Amiker,
then, does not apply.
Furthermore, under F.R.E. 705, Defendant is allowed to cross-examine Plaintiff’s
experts as to the facts or data used in formulating their opinions. This includes crossexamining on facts or data not used in formulating their opinions, such as medical records of
The Court will not issue a blanket prohibition on the use of Plaintiff’s medical records
because Plaintiff classifies them as “opinions,” nor will it summarily deem them irrelevant
or unduly prejudicial without first examining them within the context in which they are
offered. Therefore, although the Court finds that Amiker does not apply to exclude crossexamination using non-testifying physician opinions not within its subpoena, it will defer
ruling as to the admissibility of the medical records until they are at issue at trial.
Plaintiff requests the Court preclude surveillance video and photographs not produced
during discovery from being introduced as evidence at trial. Plaintiff makes this request
pursuant to Federal Rule of Civil Procedure 37(d), and Defendant raises no argument against
it. However, Rule 37(d)(1) requires that the party requesting such a sanction certify that he
“in good faith conferred or attempted to confer with the party failing to act in an effort to
obtain the answer or response without court action.” Plaintiff makes no such certification,
and the Court will defer ruling on this issue until it is satisfied that the requirements of Rule
37(d) were met.
Prior Lawsuits, Claims, and Workers’ Compensation
Plaintiff asks the Court to preclude any testimony or argument concerning Plaintiff’s
prior lawsuits, claims, or legal settlements as they are irrelevant under F.R.E. 401 and unfairly
prejudicial under F.R.E. 403. Defendant mistakes Plaintiff’s argument and counters by
stating that they should be allowed to use his past medical history to impeach his testimony.
They do not, however, make any argument as to why any litigation in which Plaintiff was
involved would be relevant to this case. Finding that such litigation is irrelevant under F.R.E.
401, the Court will grant Plaintiff’s motion as to this issue. However, this holding should
not be construed as to preclude any evidence as to the underlying facts of that litigation,
insofar as they are established as relevant for impeachment purposes or otherwise.
Letter of Protections of Medical Providers
Plaintiff requests the Court preclude evidence relating to any guarantee of payment
of any medical expenses out of settlement or judgment in this case. Defendant makes no
objection to this preclusion, and the Court finds that such evidence would not be relevant
under F.R.E. 401. Plaintiff’s motion will therefore be granted as to this request.
Advertisement by Law Firms
Plaintiff asks that the Court exclude any evidence regarding the advertising practices
of his attorneys. Defendant makes no argument as to this request, and the Court finds that
such evidence would not be relevant under F.R.E. 401. Plaintiff’s motion will be granted
as to this request as well.
Photographs and Video Evidence
Plaintiff requests that any photographic or video evidence Defendant wishes to
introduce as evidence be viewed by the Court outside the presence of the jury in order to
determine its admissibility. Plaintiff further asks that the jury not be told this evidence exists
unless it is deemed admissible.
Finally, Plaintiff argues that any such evidence is
inadmissible as irrelevant under F.R.E. 401 and unfairly prejudicial under F.R.E. 403.
Without viewing the photographic or video evidence, it is impossible for the Court
to make a ruling as to its inadmissibility under F.R.E. 401 or 403. Therefore, it is appropriate
that this ruling be deferred.
However, finding no objection by the Defendant and the request to be appropriate, the
Court will grant Plaintiff’s motion in that the admissibility of this type of evidence will be
determined outside the jury’s presence and without the jury being informed of its existence.
Improper Motive Arguments
Relying on a South Dakota Supreme Court case, Plaintiff requests the Court preclude
Defendant from arguing that he is treating his lawsuit as the equivalent of “playing the
lottery.” In Schoon v. Looby, the South Dakota Supreme Court found that references to
“playing ‘lotto’ or ‘powerball’ or ‘rolling the dice’ were only meant to inflame the jury and
were beyond the bounds of proper final argument.” 670 N.W.2d 885, 891 (S.D. 2003). To
the extent Plaintiff wishes the Court to caution Defendant against using such improper
inflammatory language in their closing argument, his motion will be granted. However, it
will be denied in that Defendant will not be precluded from properly arguing that Plaintiff’s
motivation in this suit is opportunistic in nature.
Hiring of Attorney or Time Period of Hiring
Plaintiff argues that Defendant should be precluded from commenting on the timing
of his retainment of legal representation in this case. He claims that the date on which he
hired his attorney is privileged and that it is irrelevant. The Court does not find that the date
Plaintiff hired his attorney to be a privileged communication, as the date of hiring is not in
and of itself privileged information.
Defendant claims that the hiring date of Plaintiff’s attorney is relevant because they
intend to use it in order to show that he obtained legal advice before receiving an MRI and
that his attorney referred him to the physician who ordered the MRI. The Court has already
ruled that Defendant will be allowed to introduce evidence that Plaintiff’s attorney referred
him to his physicians, and that this evidence is relevant under F.R.E. 401 and not unfairly
prejudicial under F.R.E. 403. Because the date Plaintiff hired is attorney is simply another
piece of this evidence and also does not unfairly prejudice Plaintiff, the Court will deny his
motion with regards to this issue.
Prior Criminal Charges and/or Convictions
Plaintiff seeks to have the Court exclude evidence of his prior criminal convictions
as improper character evidence under F.R.E. 404(b), as irrelevant under F.R.E. 401, and
unfairly prejudicial under F.R.E. 403.
F.R.E. 404(b)(1) makes evidence of crimes, wrongs, or other acts inadmissible in
order to show character evidence. However, F.R.E. 404(b)(2) provides that such evidence
is admissible for other purposes. In this case, Defendant does not wish to introduce evidence
of Plaintiff’s crimes in order to show he has acted in compliance with his bad character, but
rather to show that his career prospects are limited by his criminal record and that any
assessment of his lost future income must take this into account. This is a proper purpose for
such evidence under F.R.E. 404, and is relevant to the issue of damages under F.R.E. 401.
However, the Court agrees with Plaintiff that the danger of unfair prejudice in allowing such
evidence for this purpose does substantially outweigh the probative value the convictions
would have with respect to Plaintiff’s future income. As such, the motion will be granted
in that Defendant will not be able to use Plaintiff’s convictions for this purpose.
However, Defendant is allowed to use Plaintiff’s past criminal convictions to attack
his credibility under F.R.E. 609. There are many considerations that go into the Court’s
analysis with respect to allowing past criminal convictions in for impeachment purposes.
Unfortunately, because parties seem to disagree as to the dates of Plaintiff’s convictions and
releases from confinement, it is difficult for the Court to judge their admissibility under
F.R.E. 609(b). The Court will therefore defer ruling on the admissibility of these convictions
under F.R.E. 609.
Plaintiff also asks that Defendant be precluded from impeaching his witness Paul
Mallet, Jr., with a distribution charge on which he was found not guilty. Defendant makes
no argument as to the admissibility of this charge, and the Court finds that it is not proper
impeachment evidence. Plaintiff’s motion will be granted with respect to this issue.
Social Drinker and Tobacco User
Plaintiff, without offering any justification, requests that Defendant be precluded from
inquiring into his alcohol and tobacco use. Defendant contends that this evidence is
admissible for impeachment purposes to show that Plaintiff repeatedly lied to his treating
physicians by telling them he never used such substances. Under F.R.E. 608(b), specific
instances of untruthfulness are allowed to be questioned on cross-examination, but extrinsic
evidence of these instances is inadmissible. Therefore, Plaintiff’s motion will be granted in
that extrinsic evidence of his alcohol and tobacco use is not admissible, and will be denied
in that Defendant will be allowed to ask on cross-examination about his alcohol and tobacco
Communications Between Plaintiff Attorney and Expert Witness
Plaintiff requests that Defendant be precluded from introducing evidence of his
attorney’s communications with his expert witness, Gene Barfield, except to the extent
allowed by Federal Rule of Civil Procedure 26(b)(4)(C). To the extent that Plaintiff is merely
asking the Court to enforce Rule 26(b)(4)(C), his motion is granted as to this issue. This
ruling makes no comment on whether any particular piece of evidence is allowed under Rule
26(b)(4)(C), as neither party has brought any specific communication between Plaintiff’s
attorney and his expert witness to the Court’s attention.
Under this argument, Plaintiff requests the Court to prevent Defendant from referring
to inadmissible hearsay in either opening statements or closing arguments. To the extent that
it is improper to reference inadmissible evidence of any kind in either opening statements or
closing arguments, the Court will grant this request. However, the Court stresses that this
ruling in no way addresses what is or is not inadmissible hearsay, as that has not been brought
before it for consideration.
Plaintiff asks the Court to preclude Defendant from referencing any legal loans or
monies Plaintiff may have borrowed as they are irrelevant. Defendant counters by admitting
they have no such evidence at this time, but that should evidence of these loans be discovered,
they would be “relevant and admissible to counter Plaintiff’s contentions relative to financial
difficulty, stress, inability to afford his bills, and psychological difficulties.” (Response 
at p. 26.) The Court agrees that this evidence would be relevant to rebut Plaintiff’s claims
and will deny Plaintiff’s motion as to this issue.
Defendant’s Motion in Limine 
In his Motion in Limine , Defendant argues that portions of the expert report of
Plaintiff’s safety and hazards expert, Gene Barfield, should be excluded and his testimony
limited accordingly. Plaintiff filed no timely response to this motion.1
Defendant argues that Barfield’s report contains numerous improper references to
inadmissible hearsay, speculative testimony, lay opinions, and irrelevant conclusions and
Pursuant to the Case Management Order , responses to motions in limine are due
seven (7) days before the pretrial conference, here set for October 13, 2016. This made Plaintiff’s
response due by October 6, 2016. Plaintiff did not submit a response  until October 11,
2016. As such, it untimely and will not be considered by the Court.
commentary beyond his expertise. While experts are allowed to rely on such inadmissible
evidence in their opinion, the proponent of the opinion “may disclose them to the jury only
if their probative value in helping the jury evaluate the opinion substantially outweighs their
prejudicial effect.” Fed. R. Evid. 703 (emphasis added). Finding that such evidence as relied
upon in Barfield’s report is otherwise inadmissible, the Court finds that Plaintiff, as the
proponent of the report, bears the burden of showing that the probative value of its inclusion
substantially outweighs its prejudicial effect. By failing to timely respond, Plaintiff has failed
to meet this burden.
Therefore, finding that this motion is both meritorious and unopposed, the Court finds
that it should be granted. Those portions of Barfield’s report that detail inadmissible
hearsay, speculative testimony, lay opinions, and irrelevant conclusions and commentary
beyond his expertise will be excluded from evidence, and Barfield shall be precluded from
testifying to as much.
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff’s Motion in Limine
 is granted in part, denied in part, and deferred in part as outlined above.
IT IS FURTHER ORDERED AND ADJUDGED that Defendant’s Motion in Limine
 is granted.
SO ORDERED AND ADJUDGED this the 12th day of October, 2016.
UNITED STATES DISTRICT JUDGE
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