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Ehrenberg v. State Farm Mutual Auto. Ins. Co.

United States District Court, E.D. Louisiana

April 11, 2018

TINA EHRENBERG
v.
STATE FARM MUTUAL AUTO. INS. CO.

         SECTION “L” (1)

          ORDER & REASONS

         Before the Court are Defendant's motions in limine, R. Docs. 29, 30, and Plaintiffs' motion for partial summary judgment, R. Doc. 34, and motion to exclude, R. Doc. 36. After hearing oral argument and considering the parties' briefs and the applicable law, the Court issues this Order & Reasons.

         I. BACKGROUND

         This case arises from injuries Plaintiff Tina Ehrenberg allegedly sustained when she was struck by a car while crossing Canal Street in New Orleans, Louisiana. R. Doc. 1 at 1. Plaintiffs initially filed suit in the City District Court for Orleans Parish, and Defendants timely removed. This Court has diversity jurisdiction pursuant to 28 U.S.C. 1332. R. Doc. 1 at 2.

         Plaintiff Ehrenberg claims that, on or about October 31, 2014, she was a pedestrian crossing Canal Street when Mr. George Blair crashed into Plaintiff with his car. R. Doc. 1-4 at 1-2. Blair carried a liability policy with Progressive Insurance. R. Doc. 1-4 at 2. As a result of the accident, Plaintiff claims she suffered injuries to her back, neck, and right shoulder. R. Doc. 1-4 at 2. On December 10, 2014, Progressive settled with Plaintiff for the policy limit of $25, 000.00, which Plaintiff avers is an insufficient amount to cover all of her losses. R. Doc. 1-4 at 3. As such, Plaintiff seeks to recover from her liability insurer, State Farm; State Farm has already made an unconditional tender based on Plaintiff's injuries. R. Doc. 1-4 at 2. Plaintiff seeks to recover damages, including past, present, and future medical care, lost wages, loss of earning capacity, pain and suffering, residual disabilities, mental anguish, in addition to penalties and attorney fees. R. Doc. 1-4 at 3.

         Defendant raised various defenses in the status letter they submitted to the Court. Defendant explains Plaintiff has not provided State Farm with satisfactory proof of loss, or demonstrated that Mr. Blair was at fault in the accident. State Farm also explains it disputes the nature and extent of Plaintiff's injuries, and explains that she suffered from several degenerative conditions at the time of the accident. Finally, State Farm avers that Plaintiff has not provided requested medical records in this case.

         Defendant answered the petition for damages and trial by jury. R. Doc. 4-1. Defendant denies Plaintiff's allegations of liability. R. Doc. 4-1 at 1. Defendant also argues that Plaintiff has no claim against Defendant to the extent she failed to mitigate damages. R. Doc. 4-1 at 2

         II. PENDING MOTIONS

         a. Defendant's Motion to Preclude Testimony and Report of John Smith (R. Doc. 29)

         Defendant asks the Court to exclude the testimony and report of John Smith, Plaintiff's accident reconstruction and biomechanics expert. R. Doc. 29. Defendant argues that Mr. Smith's opinions and report do not meet the Daubert standard and will not assist the jury. R. Doc. 29-1 at 3. Plaintiff responds in opposition. R. Doc. 48.

         b. Defendant's Motion to preclude Certain Witness Testimony and Evidence (R. Doc. 30)

         Defendant moves to exclude expert witness testimony and evidence related to Plaintiff's claims for lost wage and/or lost earning capacity. R. Doc. 30. Plaintiffs do not oppose this motion and has notified the Court that they will not bring claims for lost wages or loss of earning capacity. Therefore, this motion is granted.

         c. Plaintiff's Motion for Partial Summary Judgment (R. Doc. 34)

         Plaintiff moves for partial summary judgment on the issue of liability. R. Doc. 34. Plaintiff alleges that Defendant has not produced any evidence to show that George Blair, the driver, was not at fault in the accident. R. Doc. 34-1 at 2. Plaintiff argues that Mr. Blair told police he did not see Plaintiff in the crosswalk before the accident and that Mr. Blair has refused to participate in discovery or attend a deposition. R. Doc. 34-1 at 2. For these reasons, Plaintiff ...


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