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Baxter v. Anderson

United States District Court, M.D. Louisiana

January 2, 2018

NICHOLE LYNN BAXTER
v.
JASON MICHAEL ANDERSON, ET AL.

          RULING AND ORDER

          JUDGE JOHN W. deGRAVELLES UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

         On October 12, 2017, a pretrial conference was held. At that conference, the Court addressed the Plaintiff's Motion in Limine (Doc. 87). For oral reasons assigned, the motion was granted in part, denied in part, and deferred in part. (Doc. 90.)

         The Court hereby supplements its oral reasons with the following written reasons. The Court will first describe the evidence or argument sought to be excluded and will then briefly summarize its ruling on that issue.

         1. MOTION IN LIMINE NO. 1

         A. Evidence/Argument Sought to be Excluded

         Amounts received or benefits available from collateral sources such as health insurance benefits, workers compensation insurance benefits, or any other source of reimbursement for medical expenses or compensation for injuries of plaintiff including but not limited to: disability, social security, retirement, or Medicare benefits, whether or not applied for or received by the plaintiff. Further, that the plaintiff has received, has been entitled to receive, will receive or will become entitled to receive, benefits of any kind or character from a collateral source, including but not limited to, benefits from collateral insurance coverage, victims' assistance, social security or gratuitous benefits.

         B. Ruling

         Defendants represent that they do not intend to introduce evidence concerning any such collateral source. This motion is therefore DENIED AS MOOT.

         2. MOTION IN LIMINE NO. 2

         A. Evidence/Argument Sought to be Excluded

         Mention of or reference to medical expenses "actually incurred" or "actually paid" by the plaintiffs. (sic)

         B. Ruling

         The parties represent that they would work on a stipulation to resolve this motion and that it would consequently not be an issue at trial. Further, Defendants represent that they do not disagree with the principle that the measure of damages for medical expenses is the amounts incurred rather than what the health carrier actually pays. Accordingly, this motion is DENIED AS MOOT. If there is a problem on this issue before trial, the parties should bring it to the Court's attention.

         3. MOTION IN LIMINE NO. 3

         A. Evidence/Argument Sought to be Excluded

         Impeachment of the plaintiff on any matters which are collateral to this lawsuit and which are not relevant or germane to the claims of plaintiff or defenses alleged by the defendants, without first demonstrating to the satisfaction of the Court a predicate for the relevancy of such matters.

         B. Ruling

         This motion is DENIED. The Court cannot issue in advance a blanket ruling excluding all such impeachment material without knowing what that material is or the context in which it will be offered. The Court will rule on specific objections to particular impeachment material at trial.

         4. MOTION IN LIMINE NO. 4

         A. Evidence/Argument Sought to be Excluded

         Preclude evidence or testimony pertaining to attorney referrals to healthcare providers.

         B. Ruling

         The motion is GRANTED IN PART and DENIED IN PART. The motion is granted in that payments to healthcare providers by Plaintiff's counsel are collateral sources. See Francis v. Brown, 95-1241 (La.App. 3 Cir. 3/20/96); 671 So.2d 1041, 1047-48. The motion is denied in that the collateral source rule does not apply to attorney-negotiated medical discounts from a healthcare provider. Hoffman v. 21st Century N. Am. Ins. Co., 2014-2279 (La. 10/2/15); 209 So.3d 702, 706-07. The motion is also denied in that the Defendants are entitled to ask whether Plaintiff was referred to his health care provider by his attorney, as this is relevant and not unduly prejudicial.

         5. MOTION IN LIMINE NO. 5

         A. Evidence/Argument Sought to be Excluded

         Motion to limiting the testimony of defense expert J. Stuart Wood from offering any opinion at the trial of this matter with regards to economic loss of earning capacity.

         B. Ruling

         The motion is GRANTED IN PART and DENIED IN PART. The motion is granted in that Plaintiff represents that she is not seeking loss of future earning capacity or wages, so Mr. Wood is not permitted to testify on these issues. However, the motion is denied in that Mr. Wood can testify as to past lost wages, as Plaintiff is making this claim.

         6. MOTION IN LIMINE NO. 6

         A. Evidence/Argument Sought to be Excluded

         Any and all references to vocational rehabilitation specialist, Stephanie Chalfin in the expert report of J. Stuart Wood.

         B. Ruling

         The motion is DENIED. Federal Rule of Evidence 703 provides:

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, 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. Here, economists like J. Stuart Wood would reasonably rely on information from vocational rehabilitation specialists like Stephanie Chalfin in forming their opinions, so Chaflin's testimony and report need not be admissible. Moreover, even if that weren't the case, the probative value of Wood's testimony (which is high) substantially outweighs any prejudicial effect. Lastly, as the Fifth Circuit has stated:

Nevertheless, “[a]s a general rule, questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury's consideration.” United States v. 14.38 Acres of Land, More or Less Situated in Leflore County, 80 F.3d 1074, 1077 (5th Cir. 1996) (emphasis added) (internal quotations and citations omitted). It is the role of the adversarial system, not the court, to highlight weak evidence:
As the Court in [Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)] makes clear, . . . the trial court's role as gatekeeper is not intended to serve as a replacement for the adversary system: “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”

14.38 Acres of Land, 80 F.3d at 1078 (quoting Daubert, 113 S.Ct. at 2798). Primrose Operating Co. v. Nat'l Am. Ins. Co., 382 F.3d 546, 562 (5th Cir. 2004). Thus, Plaintiff's arguments should more appropriately be pursued in cross-examination.

         7. MOTION IN LIMINE NO. 7

         A. Evidence/Argument Sought to be Excluded

         Testimony, arguments, opinions or evidence pertaining to the list of documents reviewed by J. Stuart Wood in generating an expert report for the defense.

         B. Ruling

         The motion is DENIED, for the same reasons articulated in the previous ruling.

         8. MOTION IN LIMINE NO. 8

         A. Evidence/Argument Sought to be Excluded

         A. Questions calling for privileged information under the attorney and client, physician and patient, psychotherapist and patient, or counselor and client, or marital communications privileges.

         B. The assertion of any privilege.

         B. Ruling

         The motion is DENIED. The Court cannot issue such a blanket ruling in a vacuum and without hearing a specific question that is objectionable. Further, Defendants represent that they do not intend to ask for privileged information, so this motion is moot.

         9. MOTION IN LIMINE NO. 9

         A. Evidence/Argument Sought to be Excluded

         Mention of or reference to clients currently or previously represented by counsel in unrelated matters, and legal services provided by counsel in unrelated matters.

         B. Ruling

         The motion is DENIED IN PART in that references to Plaintiff's other accidents may be relevant and admissible. The Court will rule on these on a question by question basis. See Ruling on Motion in Limine #13. The motion is GRANTED in that references to other legal matters is irrelevant (and, in any event, Defendants represent that they do not intend to introduce such evidence). If Defendants seek to introduce evidence of other matters, then they must alert the Court, outside the presence of the jury, so that the Court can make a determination as to its admissibility.

         10. MOTION IN LIMINE NO. 10

         A. Evidence/Argument Sought to be Excluded

         Mention of any settlement discussions, mediations, or agreements relating to this case, including offers of compromise and promises to accept a compromise.

         B. Ruling

         The motion is GRANTED. Evidence of settlement negotiations is ...


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