Decker v. I.E. Miller Services, Inc. et al

Filing 131

ORDER by Magistrate Judge Charles S. Miller, Jr. granting in part and denying in part 87 Motion in Limine. (BG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Scot Decker,
Plaintiff,
v.
I.E. Miller Services, Inc., n/k/a
Hemphill Trucking, Inc.;
TFI Holdings, USA, Inc.;
TransForce, Inc.;
TForce Energy Services, Inc. d/b/a
Specialized Crane & Rigging
Complete Production Services, Inc.; and
Superior Energy Services, Inc.,
Defendants.

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ORDER RE DEFENDANTS’
MOTIONS IN LIMINE

Case No. 4:14-cv-00088

Before the court are several motions in limine brought by defendants at Doc. No. 87. The
following are the court’s rulings:
1.

Motion to exclude testimony from plaintiff’s experts John Hughett and Donald
Pellow that requires speculation, ipse dixit, or legal conclusions.

This motion is DENIED to the extent that some of what the two experts may opine on
appears to be relevant and likely admissible as expert testimony. That being said, the court will not
allow any expert (whether it be plaintiff’s or defendants’) to speculate or give what amounts to
simply legal conclusions. Further, the court will not permit the experts to opine on what happened
when expert testimony on the subject is not required. For example, it is doubtful the court will allow
an expert to offer an opinion on who instructed Decker to enter the substructure of Rig 20 based on
that expert having read accounts of other fact witnesses. The jurors are fully capable of deciding
this disputed fact based on the evidence. On the other hand, there may be instances in which expert

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testimony may be helpful to the jury in sorting out what likely happened. For example, if an expert
offers an opinion that the kelly hose likely had to have been under pressure for it to have struck
plaintiff in the manner he described and that is based on engineering principles and or familiarity
with kelly hoses, this may be of assistance to the jury and admissible, keeping in mind the jury has
the right to believe or not believe plaintiff’s account of the accident and that other experts may
disagree.
At this point, the court will not parse every question that was posed at the depositions of the
experts or all of the opinions contained in their reports since not all may be asked or offered at trial.
Also, the subject matter may be presented in a manner that makes some of the complained about
testimony not objectionable. In short, the court will address the objections to the expert testimony
as it is presented.
2.

Motion to prohibit plaintiff from presenting evidence that I.E. Miller and TForce are
no longer in business or no longer operating.

This motion is GRANTED on Fed. R. Evid. 402 grounds to the extent that neither party may
mention or offer evidence that I.E. Miller and TForce are either still in business or no longer in
business unless the matter is first raised with the court outside the presence of the jury.
3.

Motion to exclude mention that the Social Security Administration has determined
plaintiff to be disabled.

This motion, which is unopposed, is GRANTED on Fed. R. Evid. 402 grounds. Neither
party may make mention or offer evidence of the fact that plaintiff is receiving Social Security
disability benefits or that the Social Security Administration has determined that plaintiff is disabled
without first seeking the approval of the court outside the presence of the jury.

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4.

Motion to exclude all evidence of amounts billed by plaintiff’s medical care
providers.

This motion is DENIED. In Klein v. Harper, 186 N.W.2d 426 (N.D. 1971), the North
Dakota Supreme Court held that an injured plaintiff can recover the reasonable value of the medical
services provided and is not limited strictly to what is paid. Id. at 432. Rather, under Klein, it
appears that what is billed and what is paid are both relevant evidence of the reasonable value of the
services. Id. A number of state district courts have read Klein in the same fashion. E.g., Feist v.
Kaufman Enterprises, Inc., No. 51-20130-cv-011061, Order dated August 20, 2015 (N.D. Dist. Ct.,
North Central Jud. Dist.) (Hagar, D.J., unpublished); Rodakowski v. Meduna, No. 45-2013-cv00104, Order dated Nov. 12, 2013 (N.D. Dist. Ct., Southwest Jud. Dist.) (Greenwood, D.J.,
unpublished); Coin v. Baskerville, No. 30-2011-cv-00646, Order dated October 21, 2012 (N.D.
Dist. Ct., South Central Jud. Dist.) (Hagerty, D.J., unpublished).1 Further, this reading is consistent
with the North Dakota Supreme Court’s decision in South v. Nat’l R.R. Passenger Corp., 290
N.W.2d 819, 841 (N.D. 1980) where the court held that the plaintiff could recover the reasonable
value of the medical care afforded, even if it was provided gratuitously and not paid for by the
plaintiff.
IT IS SO ORDERED.
Dated this 1st day of February, 2018.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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The unpublished orders from the state court district judges can be viewed at Doc. No. 88-2.

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