JOSEPH H. McKINLEY, JR., Chief District Judge.
This matter is before the Court on motions in limine and objections to depositions by Plaintiff, King Joseph X [DN 34]. Fully briefed, these matters are ripe for decision.
On May 9, 2015, Plaintiff was injured in a car accident when the car in which he was riding was hit by another vehicle. At the time of the accident, Plaintiff was the passenger in a vehicle that was insured under a policy of insurance issued by Defendant that contained underinsured motorist (UIM) coverage. Plaintiff was treated at Jewish Hospital with complaints of head, neck, and back pain. Plaintiff received PIP benefits paid by Defendant. Plaintiff settled his claim against the driver that caused the accident and his insurance company, Nationwide, for the policy limits of $25,000. Plaintiff then made a demand for the underinsured motorist coverage "policy limits" against Defendant on February 16, 2016. After reviewing Plaintiff's medical records, Defendant denied the claim. As a result of the denial of the UIM benefits, Plaintiff filed the current action.
The motion by Plaintiff to preclude the Defendant from mentioning in the presence of the jury that Plaintiff has been arrested or convicted of a crime is
The record reflects that Plaintiff was charged with heroin distribution and tampering with physical evidence for events that occurred on August 6, 2016. On October 26, 2017, Plaintiff entered a guilty plea to Trafficking in a Controlled Substance — Heroin and Tampering with Physical Evidence. A sentencing hearing was set for December 20, 2017. Both parties agree that the evidence of Plaintiff's past arrests and convictions is not properly admissible to establish Plaintiff's character pursuant to Fed. R. Evid. 404 and Fed. R. Evid. 608.
However, Defendant contends that if Plaintiff testifies during the trial, evidence that he has been convicted of a felony within the past 10 years would be admissible for the purpose of reflecting on his credibility. Fed. R. Evid. 609. Defendant also seeks to introduce evidence that Plaintiff has been unable to work and earn income during the past two years because he was incarcerated and under indictment to rebut Plaintiff's claim that he has lost wages as a result of the injuries from a motor vehicle accident. Finally, Defendant argues that evidence that Plaintiff has earned his income from selling heroin is admissible to rebut his claim that the accident caused a reduction in his earned income.
First, Fed. R. Evid. 609(a)(1)(A) provides that when "attacking a witness's character for truthfulness by evidence of a criminal conviction[] for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence[] must be admitted, subject to Rule 403, in a civil case [.]" Rule 403 states a "court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403.
"Felony convictions are presumptively admissible for purposes of impeachment subject to the dictates of Rule 403."
"`Rule 609(a)(1) presumes that all felonies are at least somewhat probative of a witness's propensity to testify truthfully,'
In the present case, the Court finds that in the context of an UIM motorist claim, the fact that Plaintiff has been convicted of heroin trafficking and tampering with physical evidence is not highly probative of credibility. Additionally, the Court concludes that the probative value of the disclosure of these convictions is substantially outweighed by the unfair prejudice. Evidence that Plaintiff has been convicted of trafficking heroin or tampering with the evidence may induce the jury to refrain from finding in favor of Plaintiff or to award less damages than incurred because the jury does not want to award money to a drug dealer or addict. Furthermore, the facts underlying the tampering with physical evidence charge involves evidence that when officers approached the Plaintiff's vehicle he threw a knotted plastic bag out the front passenger window. As correctly noted by Plaintiff, this action would not include an aspect of dishonesty or falseness. KRS § 524.100; Fed. R. Evid. 609(a)(2).
Accordingly, pursuant to Fed. R. Evid. 609(a) and Fed. R. Evid. 403, the Plaintiff's motion to exclude his criminal convictions is
Second, Defendant seeks to introduce evidence that Plaintiff has been unable to work and earn income during the past two years because he was incarcerated and under indictment to rebut his claim that he has lost wages as a result of the injuries from a motor vehicle accident. Assuming Plaintiff makes a claim for lost wages during the time of his incarceration, the fact that he was incarcerated and unable to work might be relevant to impeach his claim of lost wages, depending on the length of the incarceration. The length of Plaintiff's incarceration will be discussed further at the pretrial hearing. Again, the Plaintiff's status as a convicted felon is not admissible, nor shall the reason for Plaintiff's incarceration be disclosed to the jury.
Third, Defendant argues that evidence of Plaintiff's felony convictions is relevant to his claim for lost wages. Defendant maintains that the Plaintiff did not suffer lost wages as a result of the accident because he supplemented his income with his heroin distribution. Even if this evidence was somehow relevant, the probative value of it is substantially outweighed by the unfair prejudice. The Court addresses this argument below in further detail.
The motion by Plaintiff to preclude the introduction of Plaintiff's marijuana use is
The motion by Plaintiff to preclude the impeachment of Plaintiff through prior criminal convictions pursuant to Fed. R. Evid. 609 is
Plaintiff moves to prohibit Defendant from stating that any of Plaintiff's losses have been paid by a collateral source. Kentucky's collateral source rule "precludes courts from reducing a plaintiff's medical damages based on insurance payments made for [his] care, so long as the associated premiums were paid by the plaintiff [himself] or a third party other than the tortfeasor."
Plaintiff seeks to exclude any evidence or argument concerning the burden of proof. Defendant objects arguing that the authorities cited by Plaintiff are limited to state court actions and are procedural in nature. Kentucky law provides that juries are not to be instructed on the burden of proof in a civil case.
While aware of this case law, the Court's practice in diversity cases is to instruct the jury on the preponderance of the evidence standard. The Court recognizes that the allocation of the burden of proof is a matter governed by state law.
For these reasons, the motion by Plaintiff to exclude any evidence or argument concerning the burden of proof is
Plaintiff moves to exclude any reference to, suggestion of, or evidence demonstrating that a damages award "will not undo any injuries and harm" caused by the Defendant or the tortfeasor, including any suggestions that a damage award will act as a windfall for the Plaintiff. Plaintiff argues this evidence would be irrelevant and prejudicial. The motion is
Defendant objects to Plaintiff's motion arguing that if the evidence supports an inference that Plaintiff was not significantly injured in the subject accident, it would certainly be within the bounds of reasonable argument to suggest that he is not entitled to recover damage from Defendant. The Court agrees with Defendant. The Defendant is not prohibited from arguing at trial that Plaintiff's request for damages is excessive or disproportional to the injuries and harm suffered by Plaintiff and recovery of such would be a windfall. However, the Court will not permit an argument that the damage award "will not undo any injuries and harm caused" by the accident.
Plaintiff seeks to exclude any reference to, suggestion of, or evidence demonstrating frivolous lawsuits or the need for reform of the tort system pursuant to Fed. R. Evid. 401 and 403. Defendant agrees to limit the evidence and argument to matters at issue in the case at bar, rather than other lawsuits in general. Defendant objects to the prohibition of defense counsel from describing the Plaintiff's claim in this case as "frivolous." The motion in limine is
Defendant is prohibited from arguing to the jury that this case is an example of why tort reform should occur or from arguing that the claim asserted by Plaintiff is frivolous. The Court decides whether claims are frivolous as a matter of law. Fed. R. Civ. P. 12(b)(6). However, as discussed above, Defendant is not prohibited from arguing that the damages claimed by Plaintiff are excessive or disproportional to the injuries and harm suffered by Plaintiff.
Plaintiff seeks to exclude any references to, suggestion of, or evidence demonstrating the Plaintiff's retention of counsel and any agreements between Plaintiff and his counsel including, but not limited to, the timing of the engagement and fees pursuant to Fed. R. Evid. 401, 403, and 503. The Court will discuss this motion in limine below.
Any communications between Plaintiff and his attorney are protected and should not be introduced as evidence pursuant to Fed. R. Evid. 503. Defendant represents that it does not intend to offer evidence of any privileged communications. Accordingly, the motion is
Plaintiff seeks to exclude pursuant to Fed. R. Evid. 401 and 403 any injuries sustained in prior accidents or trauma or any other past medical conditions not supported by medical testimony as causally related to Plaintiff's current symptoms or conditions. Plaintiff argues that there must be medical testimony that any prior history of trauma or medical conditions is somehow related to the injuries he suffered in the incident that is the subject matter of the litigation. In response, Defendant objects to this motion to exclude evidence of other incidents. Defendant represents that the jury will be asked to determine whether the subject accident caused Plaintiff's claimed medical conditions, and evidence of other possible causes is admissible on that issue.
For the reasons set forth today in another Memorandum Opinion and Order, the motion in limine is
Plaintiff seeks to exclude any reference or evidence of the fact that Plaintiff was represented by counsel for past unrelated incidents. Plaintiff argues that the fact that Plaintiff has been represented by counsel when injured by the negligence of others or in other unrelated situations does not make any fact in the present case more likely than not. Additionally, Plaintiff argues that such evidence would be highly prejudicial. Defendant objects arguing that the evidence in this case will show that Plaintiff was pursuing a previous personal injury lawsuit at the time of the accident at issue in this case, and that he used the same lawyer, doctor, and injury claims in both cases in an effort to obtain duplicative damage awards.
The motion is limine is
Plaintiff requests the Court to instruct counsel that they may not suggest or imply to the jury by argument or otherwise that Plaintiff has sought to exclude certain matters from the jury consideration. Defendant represents that it does not intend to comment on the Court's rulings or refer to evidence that has been excluded. Accordingly, the motion is
Plaintiff seeks to exclude "any reference or suggestion as to the contents of any ex parte statements or report of any person not being there present in the court to testify and be crossexamined." (Motion at 6.) Assuming Plaintiff seeks by this motion to prohibit any hearsay statements, the motion is
Plaintiff seeks to exclude any reference or suggestion that he has not called to testify any witness equally available to both parties in this case. In response, Defendant objects arguing that Plaintiff bears the burden of proof and his failure to produce evidence to satisfy that burden is fair game. This issue is better addressed at trial. Counsel should approach the bench before commenting on the failure of opposing counsel to call a witness.
Plaintiff seeks to exclude any reference or suggestion that Plaintiff has had unrelated, prior, or subsequent claims, suits, or settlements or the amounts thereof. Further, Plaintiff once again seeks to exclude any reference or suggestion that Plaintiff has any other unrelated injuries, diseases, conditions, or illness, or the effects thereof, which are wholly disassociated from and do not relate to defense of the present claim.
Defendant objects arguing that Plaintiff's other personal injury claims, accidents, and injuries are relevant and probative on the issue of injury causation and witness credibility.
The motion in limine is
The Court has previously addressed this motion in limine in the Memorandum Opinion and Order addressing DN 33.
Plaintiff objects to portions of the deposition testimony of himself and Dr. Gregory Bronner. The Court assumes that the Plaintiff will testify at trial. Therefore, the Court will treat the objections to his deposition testimony as motions in limine to preclude certain evidence at the trial of this matter.
Plaintiff moves to strike the line of questioning by defense counsel pertaining to Plaintiff's prior drug distribution. (King Joseph X Dep. at page 26, lines 2-4.) Specifically, defense counsel asked:
(King Joseph X Dep. at page 26.)
In response, Defendant represents that it does not intend to offer the deposition testimony unless Plaintiff gives inconsistent testimony at trial. The deposition testimony was given on May 17, 2017, and on October 26, 2017, Plaintiff entered a guilty plea to Trafficking in a Controlled Substance — Heroin and Tampering with Physical Evidence. Defendant contends that with the change of plea, Defendant agreed that the evidence was sufficient to convict him of selling drugs on August 5, 2016. Defendant maintains that evidence that Plaintiff has earned income from selling heroin is admissible to rebut his claim that he has not be able to earn any income since the accident. Furthermore, Defendant argues that the fact that Plaintiff gave false testimony during his deposition is probative of his credibility and relevant to his claim of lost earnings.
The Court
Plaintiff moves to strike the line of questioning by defense counsel pertaining to alleged heroin distribution and tampering with physical evidence. (
Plaintiff moves to strike the line of questioning by defense counsel of Dr. Bronner pertaining to secondary gain and incentives to exaggerate an injury. (Gregory Bronner Dep. at page 21, lines 15 through 25; page 22, lines 1 through 14; page 23, lines 1 through 17.)
(Bronner Dep. at 21-22).
Plaintiff argues that this line of questioning is irrelevant to the current suit and could be misconstrued by the jury to apply to Plaintiff. Plaintiff argues that Dr. Bronner did not even know what secondary gain was. Plaintiff contends that allowing the Defendant to present this part of the record is not only irrelevant, but prejudicial.
The Court
Plaintiff moves to strike the following line of questioning by defense counsel of Dr. Bronner related to: (a) Louisville Injury Clinics as a corporation, information on its stockholder, and how much income was received
Plaintiff argues that this evidence has no relevance in this action and is prejudicial. Plaintiff contends that Defendant attempted a fishing expedition into Dr. Bronner and Louisville Injury Clinics' business practices, records, and dealings at the deposition. Plaintiff maintains that these issues are completely irrelevant to Plaintiff's injuries or the medical expenses that Dr. Bronner's clinic charged for Plaintiff's care. In response, Defendant argues that the jury is entitled to consider Dr. Bronner's income derived from litigation-related services, his financial agreements with Plaintiff and Plaintiff's attorney, the method by which he obtains clients through advertising and referrals, and the timing of Plaintiff's engagement of his attorney in order to gauge Dr. Bronner's bias, access the credibility of Plaintiff, and determine the extent to which their testimony may be believed. The parties should be prepared to address these issues at the pretrial conference.
For the reasons set forth above,
