Dixon v. Verhey et al

Filing 68

MEMORANDUM AND ORDER - The plaintiff's motion in limine (Filing No. 55 ) is granted in part and denied in part as set forth in this order. The defendants' motion in limine (Filing No. 57 ) is granted in part and denied in part as set forth in this order. Ordered by Judge Joseph F. Bataillon. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LINDA M. DIXON,
Plaintiff,

8:13CV111

vs.
MEMORANDUM AND ORDER
BRIAN LEE VERHEY, an individual, and
JOHNSON FEED, INC., a corporation;
Defendants.

This matter is before the court on the parties’ motions in limine, Filing No. 55 and
Filing No. 57.
Although the motion in limine is an important tool available to the trial judge to
ensure the expeditious and evenhanded management of the trial proceedings,
performing a gatekeeping function and sharpening the focus for later trial proceedings,
some evidentiary submissions, cannot be evaluated accurately or sufficiently by the trial
judge in such a procedural environment.

Jonasson v. Lutheran Child and Family

Servs., 115 F.3d 436, 440 (7th Cir. 1997).

A motion in limine is appropriate for

“evidentiary submissions that clearly ought not be presented to the jury because they
clearly would be inadmissible for any purpose.” Id. In other instances, it is necessary to
defer ruling until during trial, when the trial judge can better estimate the impact of the
evidence on the jury. Id. To the extent that a party challenges the probative value of
the evidence, an attack upon the probative sufficiency of evidence relates not to
admissibility but to the weight of the evidence and is a matter for the trier of fact to
resolve. United States v. Beasley, 102 F.3d 1440, 1451 (8th Cir. 1996). The court finds
as follows.

I. Plaintiff’s Motion:
A. Evidence of the plaintiff’s preexisting asymptotic injuries and/or
alternative causes of her present physical or mental symptoms
The plaintiff seeks exclusion of evidence of the plaintiff’s preexisting asymptotic
injuries and/or alternative causes of her present physical or mental symptoms. The
defendants argue there is evidence that the plaintiff sought treatment for the same type
of injuries before the accident. They argue that she denied any prior neck or back
injuries under oath in her deposition and that her expert witness based his opinion on
the fact that she did not have any preexisting symptoms. They contend the medical
records of previous injuries to her neck and back directly contradict the plaintiff’s
testimony and are directly relevant to the causation of her current injuries.
The court is unable to evaluate the relevance of the challenged evidence in the
context of a pretrial motion.

The court will admit the evidence at issue only on a

showing that it is relevant to the issues in the case, and only to the extent that the
relevance of the evidence outweighs its potential to cause prejudice or confusion under
Fed. R. Evid. 403. The court finds the motion can be adequately resolved at trial, either
in a hearing immediately prior to commencement of the trial, as an objection with a
sidebar, or with a review of the evidence outside the presence of the jury. Accordingly,
the court finds that the motion to exclude preexisting injury evidence will be overruled at
this time, without prejudice to its reassertion via timely objection at trial.

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B. Reference to medical records or information that is not related to
the plaintiff’s present complaints of neck pain, mid-back pain and lower
back pain
The defendants agree that the plaintiff’s medical records that are not related to
the controversy at issue are irrelevant and should not be admitted. Accordingly, the
court will deny the motion without prejudice to reassertion at trial. Evidence must be
relevant to plaintiff’s current injuries to be admissible.
C. Evidence of or reference to the plaintiff’s motor vehicle license
plate identification
The plaintiff seeks exclusion of evidence that her motor vehicle license plate
stated “GANGSTA,” which would be unduly prejudicial. The defendants do not oppose
exclusion of the evidence, on the condition that removal of “GANGSTA” in any
photographic exhibit will not remove, inhibit, or blur the visibility of any other portion of
the photograph. Accordingly, the court finds the motion should be granted to the extent
the alteration does not interfere with the photographs.
D. Physical evidence and characterizations of the motor vehicle
collision as a “minor impact” or “minor property damage” collision, or in
alternative, request for limiting instruction to jury
The plaintiff seeks exclusion of evidence that the collision involved a minor
impact or minor damage to the plaintiff’s vehicle, as irrelevant to the severity of her
injuries. Defendant agues the photographs of the vehicle are relevant to show the force
of impact.
The court finds the evidence is relevant to show the force of impact and the
plaintiff’s objection goes more to the weight than to the admissibility of the evidence.
The relevance of the evidence appears to outweigh its potential for prejudice.
Defendants’ concerns may warrant a cautionary or limiting instruction, but the court
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cannot determine the ambit of such an instruction at this time. Accordingly, the court
finds the motion should be denied at this time.
II. Defendants’ Motion:
A. Statements regarding insurance or insurance coverage
The defendants seek exclusion of evidence or argument concerning insurance
coverages.

The plaintiff concedes such evidence is inadmissible. Accordingly, the

court finds the motion in limine should be granted.
B. Reference to the financial disparities of the parties in this action,
the relative size of the parties, or the defendants’ ability to pay a judgment
The defendants argue that the parties’ financial conditions, relative size and
ability to pay are irrelevant to any issues in the litigation.

The plaintiff argues that

evidence of plaintiff’s financial condition may be relevant to refute the defendants’
anticipated arguments concerning the plaintiff’s failure to seek medical treatment. She
also states that she does not seek damages for lost income, but intends to present
evidence that she was unable to work for a time after the accident.
The court finds the financial conditions of both the plaintiff and the defendants
are generally irrelevant.

Accordingly, the motion in limine should be granted with

respect to both parties’ financial condition, unless the defendants raise the issue and
the evidence becomes relevant to refute evidence or argument presented by the
defendants. The size of the defendant corporation, or how large its operation is, may
properly be the subject of argument, but the plaintiff will not be allowed to present
evidence of the defendants’ financial solvency.

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C. Any reference to or documents containing causation opinions
from Dr. McClellan for the reason that Dr. McClellan is not expected to
testify at trial and the admission of such opinions would be hearsay
The defendants seek exclusion of evidence that relates to Dr. McClellan’s
opinions as hearsay. The plaintiff argues that its expert, Dr. Wik, relied on the opinion
and records of Dr. McClellan in forming his opinion.
The court finds the evidence is not inadmissible hearsay if the expert relied on it
in forming his opinion. Fed. R. Evid. 703. Dr. Wik’s report sets forth his independent
findings and basis for the opinion that the November 23, 2010, collision is the proximate
cause of plaintiff’s injuries, including her lower back injuries.

He refers to medical

opinion and records of Dr. McClellan as part of the information that he based his own
treatment or diagnosis. Accordingly, the court finds the motion in limine should be
denied.
D. Reference to past or future lost wages or loss of earning capacity
The plaintiff concedes this motion. She states she does not seek damages for
lost wages or earning capacity. Accordingly, the court finds the motion in limine should
be granted.
E. Any exhibits or evidence not produced or otherwise identified
during discovery.
The plaintiff concedes this motion and the court finds the motion in limine should
be granted. Therefore,
IT IS HEREBY ORDERED:
1. The plaintiff’s motion in limine (Filing No. 55) is granted in part and denied in
part as set forth in this order.

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2. The defendants’ motion in limine (Filing No. 57) is granted in part and denied
in part as set forth in this order.
Dated this 17th day of July, 2014.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge

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