Hodge et al v. Stan Koch & Sons Trucking, Inc. et al

Filing 73

OPINION AND ORDER by Magistrate Judge Kimberly E. West: granting in part and denying in part Plaintiffs' Motion in Limine (Dkt No 47 ). (neh, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
LAUREN HODGE and
DELORES MCDANIEL,
Plaintiffs,
v.
STAN KOCH & SONS
TRUCKING, INC. and
NICK BRESHEARS,
Defendants.

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Case No. CIV-13-071-KEW

OPINION AND ORDER
This matter comes before the Court on Plaintiffs’ Motion im
Limine (Docket Entry #47).

Plaintiffs seek to exclude or preclude

the introduction into evidence at trial of several specific items
of evidence.

Plaintiffs first request that evidence of collateral

source payments be excluded from evidence.

These sources include:

1. Benefits under a private group insurance policy.
2. Benefits under insurance policies generally.
3. Benefits from state or federal governmental programs
including social security, Veteran’s Administration
benefits, tax exemptions, military medical benefits,
public assistance/welfare, Medicare, or Medicaid.
4. Services furnished without charge.
5. The fact of any suit or the settlement or amount of
settlement therein related to any third party claims
arising out of the incident made the basis of this
lawsuit.
6. Compensation for time not actually worked.
7. Benefits from pensions or retirement plans.
8. Benefits from charitable organizations.

Defendants assert that the Social Security disability records
may be used to challenge Plaintiff Delores McDaniel’s claimed
symptoms, injury complaints, and level of activity.

Additionally,

because Oklahoma law now only allows a plaintiff to recover the
amount actually paid for services and not the billed amounts,
Defendants anticipate that it may be necessary to refer to the
billing records contained in the insurance, Medicare, and Medicaid
files in order to establish the amount paid.
Generally, collateral source payments are not admissible at
trial.

Rucker v. Mid Century Ins. Co., 945 P.2d 507, 510 (Okla.

Civ. App. 1997).

Defendants will not be permitted to introduce

evidence of these payments unless Plaintiffs open the door by
claiming that an amount was paid in excess of that which was
actually paid.

Okla. Stat. tit. 12 § 3009.1.

The Court will,

therefore, reserve ruling on this issue until it becomes relevant
at

trial.

However,

before

introducing

any

such

evidence,

Defendants will inform the Court of their intention to do so out of
the presence of the jury.

Additionally, should Plaintiff McDaniel

claim injuries which deviate without justification from those
claimed during her Social Security disability proceedings, the
Court will entertain a request from Defendants to use the records
for impeachment purposes.
Plaintiffs also seek to exclude evidence of taxation on any
recovery

and

statements

concerning

2

a

resulting

increase

in

insurance premiums or taxes.

Defendants do not oppose this

request.
Plaintiffs also request that evidence of injuries sustained by
occupants of other vehicles be excluded. Since Defendant Breshears
is the only known “occupants of other vehicles”, it is presumed
Plaintiffs seek to exclude any evidence of injury to him.

This

Court could perceive of some relevance of injuries sustained by
Defendant Breshears in evaluating the speed and severity of the
impact.

This Court will reserve ruling on this issue until more

specifics are developed at trial.
Plaintiffs seek to exclude reference to motions or rulings.
Defendants do not make mention of this request in their response
and, therefore, it is admitted.
Plaintiffs request that testimony concerning the credibility
of any witness be excluded as prejudicial and irrelevant.

This

Court is unsure as to the specific testimony Plaintiffs seek to
exclude.

As a result, this Court reserves ruling on this area

until more specific instances of such testimony is revealed at
trial.
References to the probable testimony of a witness who is
absent, unavailable, or not called to testify is also identified
for exclusion by Plaintiffs.

Such references are irrelevant and

potentially unduly prejudicial and will excluded.
Defendants

do

not

oppose

Plaintiffs’

3

request

to

exclude

matters touching upon work product or privileged communications as
well as the failure to call a witness. Therefore, these references
will be excluded.
Plaintiffs also refer to the exclusion of references to
“special issues.”

This Court cannot rule upon this issue as it is

at a loss as to the subject matter of the request.
Plaintiffs seek to limit any expert testimony to those areas
identified in the disclosure of the experts to which this Court
agrees. This Court does not agree, however, that an expert will be
required to provide the underlying facts or date for their opinion
at trial before rendering that opinion.

Typically, the opinion is

rendered and then subject to challenge by exploring the underlying
basis for the opinion through examination and cross examination.
Plaintiffs

assert

Defendants

cannot

challenge

the

reasonableness of medical expenses without an expert witness.
Defendants

can

certainly

question

the

reasonableness

of

the

expenses incurred without an expert since Plaintiffs bear the
burden of demonstrating that the expenses incurred are reasonable
and necessary.
This Court also declines to require Plaintiffs to have an
expert

witness

negligence

at

action.

trial
The

to

testify

jury

may

as

to

causation

evaluate

the

in

facts

this
and

circumstances that occurred and determine fault and causation.
Defendants do not intend to reference the “clogged court

4

systems” in their offering to the jury.

Plaintiffs request to

exclude the same will be granted.
Plaintiffs seek to exclude collateral source payments.

This

Court has previously ruled upon such evidence in this Order.
Plaintiffs request that evidence that they have been involved
in prior accidents or had prior hospitalizations or injuries be
excluded.

Defendants contend they are entitled to question the

experts and fact witnesses concerning such injuries.

Before doing

so, Plaintiffs must demonstrate that any previous conditions or
accidents have relevance to the facts and claims in this case. For
instance, if on Plaintiff previously suffered an arm injury and her
arm was not involved in this accident, reference generally to the
fact that she was previously injured would have no relevance to
this action.

This Court will reserve ruling on this issue until

the specifics are developed at trial.
Finally, Plaintiffs seek to exclude evidence of the property
damage to Defendants’ vehicle involved in the accident. Generally,
such evidence is irrelevant. However, as Defendants state, the use
of photographs of the vehicles’ conditions after the accident is
not prohibited by this ruling.
Issues XXI and XXII identified in the Motion are partially
duplicative of issues XV and XVI, respectively. Defendants will be
permitted to explore the issues of the reasonableness of the
medical expenses incurred and the cause of the accident at trial.

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IT IS THEREFORE ORDERED that Plaintiffs’ Motion im Limine
(Docket Entry #47) are hereby GRANTED, in part, and DENIED, in
part, as more fully explained herein.
IT IS SO ORDERED this 9th day of February, 2015.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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