Guy v. Fornea 5, LLC

Filing 55

ORDER granting in part and denying in part 46 Motion in Limine Signed by District Judge Keith Starrett on 2/14/2017 (dtj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
ROBERT E. GUY
V.

PLAINTIFF
CIVIL ACTION NO. 2:15-CV-146-KS-MTP

FORNEA 5, LLC

DEFENDANT
ORDER

For the reasons and in the manner provided below, the Court grants in part
and denies in part Defendant’s Motion in Limine [46].
A.

Evidence Not Disclosed During Discovery
First, Defendant made a scattershot request to exclude “any witness, testimony,

documents or evidence not previously identified during discovery,” listing a few broad
categories of evidence. Additionally, Defendant specifically seeks to exclude the
following evidence: a death certificate, testimony from any witness other than Robert
Guy, any document not identified in Plaintiff’s response to Interrogatory No. 7, and any
economic damages not identified in Plaintiff’s response to Interrogatory No. 15.
This Court has explained the rules regarding disclosure of evidence, including
expert testimony, on numerous occasions. See, e.g. Walker v. Target Corp., 2016 U.S.
Dist. LEXIS 172138, at *2-*3 (S.D. Miss. Dec. 12, 2016); Barnett v. Deere & Co., No.
2:15-CV-2-KS-MTP, 2016 U.S. Dist. LEXIS 123114, at *2-*6 (S.D. Miss. Sept. 11,
2016); Seibert v. Jackson County, No. 1:14-CV-188-KS-MTP, 2015 U.S. Dist. LEXIS
113106, at *3-*6 (S.D. Miss. Aug. 26, 2015). The Court has likewise explained the
analysis to determine whether undisclosed evidence should be excluded from trial. See,

e.g. Walker, 2016 U.S. Dist. LEXIS 172138 at *2-*3; Emerald Coast Finest Produce Co.
v. Sunrise Fresh Produce, LLC, No. 2:14-CV-166-KS-MTP, 2016 U.S. Dist. LEXIS
57403. *4-*8 (S.D. Miss. Apr. 29, 2016).
Among other things, the Court must consider the importance of the evidence and
the potential prejudice to the party seeking exclusion – determinations that can not be
made with regard to broad categories, rather than specific items, of evidence.
Therefore, in the absence of more detailed argument from Defendant as to specific
evidence to be introduced at trial – whether in the form of testimony, documents, or
otherwise – this request is denied without prejudice. The Court notes, though, that the
issue appears to be moot, insofar as Plaintiff’s counsel represented in briefing that he
has identified all evidence that he plans to introduce at trial.
The Court grants Defendant’s request to exclude any “statement that Defendant
failed to call any particular witness available equally to all parties herein.” An “adverse
inference is not appropriate when the witness is equally available to both parties.”
United States v. Heard, 709 F.3d 413, 421 (5th Cir. 2013); see also Smith v. State Farm
Mut. Auto. Ins. Co., No. 2:13-CV-35-KS-MTP, 2014 U.S. Dist. LEXIS 40994 at *3-*5
(S.D. Miss. Mar. 27, 2014). But determining whether a witness is“equally available”
to both sides is not always a straightforward question. See, e.g. United States v. MMR
Corp., 907 F.2d 489, 501-502 (5th Cir. 1990). Therefore, if any attorney plans to make
any such argument or statement, they must first raise the issue outside the presence
of the jury so the Court can determine whether the uncalled witness is actually
“equally available” to both sides.
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B.

Property Damage Settlement
Defendant requests that the Court exclude any evidence of Plaintiff’s property

damage settlement with any insurer or party, pursuant to Rule 408's prohibition of
evidence of compromise offer and negotiations. In response, Plaintiff represents that
he presently has no intention of offering such evidence, but that if he does, he will offer
it pursuant to the exceptions of Rule 408(b). Defendant’s request is granted pursuant
to Rule 408(a). FED. R. EVID. 408(a). If Plaintiff intends to offer evidence of any
compromise offer or negotiation pursuant to the exceptions of Rule 408(b), his counsel
shall bring it up at trial outside the jury’s presence.
C.

Miscellaneous Records
Defendant seeks the exclusion of all evidence of its driver’s (Thomas J. Owens)

history and records related to his training, employment, personnel matters, criminal
arrests or convictions, traffic citations, medical conditions, alcohol or drug use, and
driver qualifications. The Court can not assess the admissibility of evidence that is not
before it. Therefore, the Court denies this request without prejudice to Defendant’s
right to raise it again at or before trial with respect to specific items of evidence.
D.

“Good Driver” Evidence
Defendant seeks to exclude any testimony that Plaintiff was a “good driver” or

any evidence of prior acts introduced as character evidence, pursuant to Rule 404.
However, Defendant contends that prior and subsequent acts of Plaintiff should still
be admissible under Rule 406 as evidence of a habit or routine practice. Defendant has
not directed the Court to any specific evidence, and the Court can not assess the
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admissibility of evidence not before it. This request is denied without prejudice to
Defendant’s right to raise it again at or before trial as to specific items of evidence.
E.

Expert Testimony
Defendant contends that Plaintiff did not disclose any expert testimony or

designate any experts by his designation deadline. In response, Plaintiff argues that
he has, in fact, designated experts. As the Court noted above, there are several factors
the Court must consider to determine whether it should exclude evidence because a
party failed to disclose it during discovery. The Court can not make that determination
with the scant information provided by the parties. The Court denies this request
without prejudice to Defendant’s right to raise it again at or before trial as to specific
expert testimony.
F.

Medical Testimony
Defendant argues that Plaintiff did not designate any medical providers as

expert witnesses. Accordingly, Defendant argues that Plaintiff may not introduce any
medical opinion testimony at trial. In response, Plaintiff contends that he has, in fact,
designated medical experts. Once again, there is a specific analysis the Court must
apply to determine the admissibility of undisclosed expert testimony, including
testimony by a treating physician. See, e.g. Barnett, 2016 U.S. Dist. LEXIS 123114 at
*2-*8; Gerald v. Univ. of S. Miss., No. 2:12-CV-147-KS-MTP, 2013 U.S. Dist. LEXIS
146728, at *10-*20 (S.D. Miss. Oct. 10, 2013). The Court can not make this
determination based on the vague information provided in briefing. The Court denies
this request without prejudice to Defendant’s right to raise it again at or before trial
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as to specific expert testimony.
G.

Lay Opinions
Defendant argues that the Court should exclude any opinion testimony from lay

persons – including Plaintiff – regarding the cause of Plaintiff’s wife’s death. In
response, Plaintiff represents that he has no intention of presenting such testimony.
The Court can not apply the analysis required by Rule 701 to testimony that is not
currently before it. See Seibert, 2015 U.S. Dist. LEXIS 113106 at *7-*10 (providing lay
opinion analysis). The Court denies this request without prejudice to Defendant’s right
to raise it again at or before trial as to specific testimony.
H.

Medical Records, Bills, Etc.
Defendant argues that any evidence concerning medical records, medical bills,

or other documentary evidence in support of Plaintiff’s damages that was not produced
during discovery must be excluded from trial. In response, Plaintiff argues that
Defendant does, in fact, have Plaintiff’s medical records, having received a HIPAA
authorization and acquired them directly from medical providers. As explained many
times above, the Court can not apply the required analysis to evidence which is not
before it. The Court denies this request without prejudice to Defendant’s right to raise
it again at or before trial as to specific medical records.
I.

Liability Insurance
Defendant argues that the Court must exclude all evidence of its liability

insurance pursuant to Rule 411. In response, Plaintiff contends that such information
may be relevant to his claims, but he failed to articulate the basis of such alleged
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relevance. Rule 411 provides that evidence of liability insurance is not admissible to
prove negligence or other wrongful acts, but can be admissible to show “bias or
prejudice or prov[e] agency, ownership, or control.” FED. R. EVID. 411. Insofar as
Plaintiff intends to present evidence that Defendant was insured as part of his case-inchief, such evidence must be excluded under Rule 411. However, barring any other
issues affecting its admissibility, it will not be excluded if offered to prove “bias or
prejudice or prov[e] agency, ownership, or control.” Id.
J.

Inflammatory Comments/Evidence
Defendant argues that the Court must exclude any references to Defendant’s

size or wealth, any appeals to local prejudice against it or its driver, and any argument
which invites the jury to act as a “conscience of the community.” In response, Plaintiff’s
counsel generally represents that he “certainly intends to do everything in its power
at trial to attempt to inflame the jury and encourage the jury to decide the case on the
basis of passion and prejudice against Defendant.”
A “conscience-of-the-community” argument is “any impassioned and prejudicial
plea intended to evoke a sense of community loyalty, duty, and expectation,” which
“invokes the parties’ relative popular appeal, identities, or geographical locations to
prejudice the viewpoint of the jury against an out-of-state corporation.” Learmonth v.
Sears, Roebuck & Co., 631 F.3d 724, 732 (5th Cir. 2011). Such arguments are improper.
Id. Accordingly, the Court grants Defendant’s motion in limine with respect to such
comments and arguments.
Plaintiff specifically represented that he intends to elicit testimony as to the
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domicile of the Defendant and its driver. Such testimony is wholly irrelevant to
Plaintiff’s claims. Accordingly, the Court grants Defendant’s motion as to such
questioning, comments, arguments, or evidence.
Plaintiff also represented that he intends to elicit testimony as to where and how
much Defendant’s expert witness was paid for his testimony. Where Defendant’s expert
witness was paid is irrelevant to any issue in this case, and, therefore, such evidence
must be excluded. However, how much Defendant’s expert was paid is relevant to his
credibility and may be offered to impeach his testimony. See Fleming v. Bruce Marine
Transp., Inc., No. 91-3460, 1993 U.S. App. LEXIS 39044, at *18-*19 (5th Cir. 1993).
K.

Accident Report
Defendant argues that any evidence or argument related to any opinion by

Officer Hunter Forbes related to the underlying automobile accident should be
excluded as hearsay and as improper lay opinion testimony. It is not clear whether
Defendant seeks the exclusion of the entire report, or just portions of it. Likewise,
Defendant did not specify which sections of the report it believes to be improper
opinion testimony. Although a copy of the accident report is in the record [40-5],
Defendant did not refer to it. Without a more specific argument from Defendant, the
Court declines to address this issue. Accordingly, the Court denies this request without
prejudice to Defendant’s right to raise it again at or before trial.
L.

Medical Bills
Defendant argues that the Court should exclude all evidence and argument

relating to the medical bills of Plaintiff and his deceased wife. Defendant contends that
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Plaintiff violated Rule 26 by failing to provide an itemization of damages. Defendant
also argues that Plaintiff failed to lay a proper foundation for the medical necessity of
such medical treatment.
Once again, Defendant has not provided the Court with sufficient information
to conduct the proper analysis to determine whether Plaintiff’s alleged failure to
comply with Rule 26 merits exclusion of the evidence. Likewise, the Court can not
make any determination regarding the proper foundation for such medical billing
without having the bills and supporting testimony for its consideration. The Court
denies this request without prejudice to Defendant’s right to raise it again at or before
trial.
M.

Settlement
Defendant argues that the Court should exclude all evidence or argument

related to any settlement negotiations or offers to compromise among the parties in
this matter. The Court grants this motion pursuant to Rule 408(a). FED. R. EVID.
408(a). To the extent Plaintiff intends to offer any evidence of compromise offers or
negotiations pursuant to Rule 408(b), the Court directs Plaintiff’s counsel to bring it
up at trial outside the presence of the jury.
N.

Hearsay in Medical Records
Defendant argues that the Court should exclude any evidence in the medical

records as to the cause of the accident that was not “communicated directly from
[Plaintiff] Robert Guy to medical care personnel” on the basis that it is hearsay. In
response, Plaintiff represents that he has no intention of introducing such evidence.
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Defendant did not refer to any specific medical record or statement therein. The
Court declines to address the admissibility of evidence that is not before it. Therefore,
the Court denies this request without prejudice to Defendant’s right to raise it again
at or before trial.
O.

Conclusion
For the reasons and in the manner provided above, the Court grants in part

and denies in part Defendant’s Motion in Limine [46]. The Court declined to address
a substantial portion of Defendant’s motion because Defendant had not provided
specific arguments or the disputed evidence for the Court’s consideration. To the extent
the parties wish to resolve these disputes before trial, Defendant may raise them again
– with greater specificity – via motion before trial, despite the expiration of applicable
case deadlines. The Court advises the parties to consider its opinions cited above when
preparing to argue such issues.
SO ORDERED AND ADJUDGED, on this, the

14th

day of February, 2017.

s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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