Motion in Limine Evidentiary in LIN, S EMANUEL vs. ESTATE OF KENNETH JAMES WILCHENSKI| Trellis.Law

On September 14, 2016 a Motion,Ex Parte was filed involving a dispute between Lin, S Emanuel, and Does 1-10, Estate Of Kenneth James Wilchenski, for Motor Vehicle Accident in the District Court of Harris County.

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CAUSE NO. 2016 62142

S. EMANUEL LIN IN THE DISTRICT COURT

HARRIS COUNTY, TEXAS

ESTATE OF KENNETH JAMES
WILCHENSKI, ROBERT FLOYD SUE
TRUCKING, INC., AND SENTRY
INSURANCE A MUTUAL C 269TH JUDICIAL DISTRICT

DEFENDANTS ROBERT FLOYD SUE TRUCKING, INC.
AND ESTATE OF KENNETH JAMES WILCHENSKI, DECEASED’S
FIRST AMENDED MOTION IN LIMINE AND MOTION TO EXCLUDE EVIDENCE

TO THE HONORABLE JUDGE OF SAID COURT:

COME ROBERT FLOYD SUE TRUCKING, INC. and ESTATE OF

KENNETH JAMES WILCHENSKI, DECEASED Defendants in the above styled and

numbered cause, after the case been assigned for trial and prior to the voir dire examination of the

jury panel in connection with such trial, and file this First Amended Motion in Limine and Motion

to Exclude Evidence, as grounds therefore would respectfully show and request as follows:

The matters described below are not admissible in evidence for any purpose and have no

bearing on the issues or rights of the parties in this lawsuit. Permitting interrogation of witnesses

about, comments to jurors or prospective jurors about, reference to, mention of, or offers of

evidence regarding any of these matters would prejudice the jury and result in undue confusion.

Sustaining objections to such questions, statements, or evidence will not prevent prejudice but will

reinforce the development of questionable evidence. If Plaintiff inserts these matters into the trial

though a party, attorney, or witness, they will cause irreparable harm that no jury instruction will

cure. An order on the issues identified in this motion at the outset of this case will implement
proper parameters for evidence to be presented in this trial. Defendants respectfully request that

the Court’s Order in Limine address and prohibit reference to the following matters from reference

before the jury. Defendants further request the Court exclude the following matters on the bases

set forth below.

Motion in Limine I

Reference to Defendants’ liability insurance coverage.

1. The Court should exclude from testimony any reference to or statement regarding

Defendants’ liability insurance coverage, including any testimony referring to Defendants’

liability insurer or adjusters and any written record reflecting or identifying Defendants’ insurer,

adjusters, and claim number(s).1 There is no dispute in this case regarding agency or ownership

and control and reference to insurance coverage is explicitly “not admissible upon the issue

whether the person acted negligently or otherwise wrongfully.”2 Such information is also not

relevant to any issue before the Court.3

GRANTED [ ] DENIED [ ]

2. In addition to the excluding any reference to the existence of insurance coverage,

the Court should exclude in limine any reference that an insurance company may be paying

Defendants’ counsel’s attorney fees, whether insurance would cover any judgment against

Defendants, and whether any investigation of the accident involved insurance or an insurance

adjuster. Any such statements would necessarily include an impermissible reference to insurance

1
See TEX. R. EVID. 403 and 411; see also Taylor v. Am. Fabritech, Inc., 132 S.W.3d 613, 625 (Tex. App.—Houston
[14th Dist.] 2004, pet. denied) (“It is generally considered error for insurance coverage of either party to be
mentioned by the other party during trial of a personal injury cause of action.”).
2
TEX. R. EVID. 411; see also Rojas v Vuocolo, 177 S.W.2d 962, 962-964 (Tex. 1944).
3
See TEX. R. EVID. 401 and 402.

2
coverage and are therefore inadmissible.4 As such, references to the foregoing must be prohibited

at trial.

GRANTED [ ] DENIED [ ]

3. While Defendants acknowledge, without waiving any objections, that some

testimony regarding offers of settlement may be relevant to the issues in dispute, the Court should

exclude and prohibit any statement by Plaintiff identifying or describing representatives of

Defendants’ insurance company using the terms “insurance” or “adjuster”. Any such statements

would necessarily include an impermissible reference to insurance coverage and are therefore

inadmissible.5 As such, references to the foregoing must be prohibited at trial, and Defendants

request Plaintiff be specifically instructed not to refer to Defendants’ insurer or identify any

representatives of Defendants’ insurer using the terms “insurance”, “insurer”, “Sentry”, “Sentry

Select Insurance”, or “adjuster”.

GRANTED [ ] DENIED [ ]

Motion in Limine II

The Procedural history of the case.

4. The Court should exclude any reference to any action by the Court in ruling upon

any matter prior to the actual trial of this cause, including this Motion in Limine and its filing. Pre-

trial rulings are not competent evidence of substantive matters at issue and are inadmissible.6

GRANTED [ ] DENIED [ ]

4
TEX. R. EVID. 411 and 403.
5
TEX. R. EVID. 411 and 403.
6
See TEX. R. EVID. 401, 402, and 403.

3
Motion in Limine III

Analysis of Plaintiff’s medical records and any claimed medical conditions by non-experts.

5. The Court should exclude any testimony or statements regarding interpretation of

medical records or medical causation by witnesses not qualified as experts in the specific medical

field at issue. Witnesses are only qualified to give an expert opinion if they are qualified by

“knowledge, skill, experience, training, or education.”7 Plaintiff may be permitted to testify as to

his physical sensations; however, he is not qualified to offer any diagnoses of injury or any

opinions regarding medical causation. Any such statements must therefore be prohibited at trial.

GRANTED [ ] DENIED [ ]

6. The Court should exclude any testimony by Plaintiff regarding possible future

injuries or treatment. Plaintiff’s sworn testimony was that he has not been diagnosed with any

physical injuries nor been recommended for any future treatment. Plaintiff is not qualified to offer

a medical opinion on any potential future treatment. Any such testimony would constitute nothing

more than speculation, is not competent evidence, and should therefore be excluded.8

GRANTED [ ] DENIED [ ]

Motion in Limine IV

Undisclosed economic damages.

7. The Court should exclude any testimony regarding claimed damages for future

medical expenses. The amounts or calculations used for any such claimed damages were not

disclosed during discovery as required by the Texas Rules of Civil Procedure.9 No evidence has

been produced as a basis for any claims for future medical expenses, the introduction of any such

7
See TEX. R. EVID. 702; see also Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006).
8
See TEX. R. EVID. 402, 602, and 702.
9
See TEX. R. CIV. PROC. 194.2(d).

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testimony at trial would constitute unfair surprise and would prejudice the Defendant, and so such

evidence should be excluded.10

GRANTED [ ] DENIED [ ]

Motion in Limine V

Evidence or testimony regarding the economic value of Plaintiff’s time.

8. The Court granted Defendants’ Motion for Summary Judgment as to Plaintiff’s

claim for the economic value of his personal time. As such, any evidence or testimony regarding

time spent by Plaintiff on this suit, as well as any evidence or testimony regarding Plaintiff’s

valuation of his time, are not relevant to any issue in dispute and should therefore be excluded.11

GRANTED [ ] DENIED [ ]

9. The probative value, if any, of evidence or testimony relating to Plaintiff’s time

spent working on this suit and his valuation of his time is substantially outweighed by the danger

of unfair prejudice to Defendants, confusion of the issues to the jury, and considerations of undue

delay. Any such evidence or testimony must therefore be excluded.12

GRANTED [ ] DENIED [ ]

Motion in Limine VI

References to the passing of Plaintiff’s mother-in-law.

10. In filings with the Court, Plaintiff indicated that his mother-in-law passed away on

January 13, 2018. The passing of Plaintiff’s mother-in-law is not related in any way to the accident

at issue, which occurred more than 3 years before, nor to Plaintiff’s claimed injuries. As such, any

10
See TEX. R. CIV. PROC. 193.6(a).
11
See TEX. R. EVID. 402.
12
See TEX. R. EVID. 403.

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testimony or statements regarding the passing of Plaintiff’s mother-in-law should therefore be

excluded.13

GRANTED [ ] DENIED [ ]

11. The probative value, if any, of any statements or testimony regarding the passing

of Plaintiff’s mother-in-law would be substantially outweighed by the danger of unfair prejudice

and confusion of the issues. Any such statements or testimony should therefore be excluded.14

GRANTED [ ] DENIED [ ]

Motion in Limine VII

Physical or medical conditions unrelated to the accident at issue.

12. In discovery, Plaintiff produced medical records, articles and news stories

describing medical conditions and treatment unrelated to the accident at issue, including an

enlarged prostate, hemorrhoids, intestinal diverticulosis, a colonoscopy, and a corneal ulcer. No

expert opinions have been produced or disclosed that the accident at issue caused, contributed to,

or exacerbated any of these conditions or necessitated this treatment. As such, evidence and

testimony describing or relating to these conditions and treatment are not relevant to any issue in

dispute and should therefore be excluded.15

GRANTED [ ] DENIED [ ]

13. Further, the probative value of any such evidence or testimony would be

substantially outweighed by the danger of unfair prejudice to Defendants, confusion of the issues

to the jury, and considerations of undue delay.16 Any such statements must therefore be prohibited.

GRANTED [ ] DENIED [ ]

13
TEX. R. EVID. 402.
14
TEX. R. EVID. 403.
15
TEX. R. EVID. 402.
16
TEX. R. EVID. 403.

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Motion in Limine VIII

Testimony or evidence indicating, suggesting or stating Plaintiff has post-traumatic stress
disorder (PTSD).

14. The Court excluded all opinions of Dr. John Hsieh, and Plaintiff has not designated

any other expert that could be qualified to offer expert testimony relating to PTSD or symptoms

of PTSD. Plaintiff is neither a physician nor a psychiatrist and is not qualified to make any such

diagnosis or express such an opinion. Testimony or evidence of this condition is not relevant to

any issue in dispute and any statements or reference to “PTSD”, “post-traumatic stress disorder,”

and “post-traumatic stress” must therefore be excluded.17

GRANTED [ ] DENIED [ ]

15. Without an expert opinion to establish medical causation, the probative value of

any lay testimony or records relating to PTSD or PTSD symptoms is substantially outweighed by

the danger of unfair prejudice to Defendants, confusion of the issues, and misleading the jury. Any

such testimony or records should therefore be excluded.18

GRANTED [ ] DENIED [ ]

Motion in Limine IX

Any testimony, statements or records stating or suggesting Kenneth Wilchenski was
intoxicated, under the influence of any substances, fatigued or impaired at the time of the
accident at issue.

16. Plaintiff’s sworn testimony is that he has no personal knowledge of Wilchenski’s

physical condition at the time of the accident, he has no personal knowledge of whether Wilchenski

was under the influence of alcohol at the time of the accident, he has no knowledge of whether

17
See TEX. R. EVID. 402; see, e.g., Guevara v. Ferrer, 247 S.W.3d at 668 (Tex. 2007) (expert testimony necessary to
support causation when condition complained of is beyond the general experience of the lay juror); see also State
Office of Risk Mgmt. v. Larkins, 258 S.W.3d 686, 691 (Tex. App.—Waco 2008, no pet.) (expert testimony required
to establish post-traumatic stress disorder causally related to incident/injury at issue).
18
TEX. R. EVID. 403.

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Wilchenski was under the influence of any drugs at the time of the accident, and has no knowledge

as to whether Wilchenski was fatigued at the time of the accident.19 Plaintiff has produced no

evidence that Wilchenski was under the influence of any intoxicating substance, was fatigued, or

was otherwise impaired at the time of the accident, and has designated no fact witnesses to testify

whether Wilchenski was under the influence, fatigued or impaired at the time of the accident.

17. As Plaintiff lacks personal knowledge of any substance use, fatigue, or impairment

by Wilchenski, Plaintiff’s testimony about this is not competent evidence and must be excluded,

as well as any argument Plaintiff may offer about any alleged impairment which is wholly

unsupported by any evidence.20

GRANTED [ ] DENIED [ ]

18. Plaintiff did not produce or disclose any evidence of, or witnesses with personal

knowledge of, any impairment or fatigue by Wilchenski which he could allege caused or

contributed to the accident at issue. Any such evidence or witness testimony would constitute

unfair surprise and prejudice to Defendants, and must therefore be excluded.21

GRANTED [ ] DENIED [ ]

Motion in Limine X

Testimony or evidence relating to Wilchenski’s death.

19. The accident at issue occurred on September 16, 2014. Kenneth Wilchenski died in

an unrelated motorcycle accident a year later on September 4, 2015. The time, location, cause and

manner of Wilchenski’s death are not relevant to any issue in dispute, and as such any evidence or

19
See deposition of Plaintiff S. Emanuel Lin, 64:5-64:25.
20
TEX. R. EVID. 602.
21
TEX. R. CIV. PROC. 193.6(a).

8
testimony relating to Wilchenski’s death beyond advising the jury that “he passed away” must

therefore be excluded.22

GRANTED [ ] DENIED [ ]

20. The probative value, if any, of any evidence relating to the time, place, cause or

manner of Wilchenski’s death is substantially outweighed by the danger of unfair prejudice to

Defendants, confusion of the issues, and misleading the jury. As such, any evidence or testimony

relating to Wilchenski’s death beyond advising the jury that “he passed away” should therefore be

excluded.23

GRANTED [ ] DENIED [ ]

21. The Court granted summary judgment to Defendants on Plaintiff’s direct

negligence claims against Robert Floyd Sue Trucking. The only claims remaining are direct

negligence against Wilchenski through his estate (including alleged vicarious liability) and gross

negligence claims against Wilchenski. Evidence of the time, place, cause or manner of

Wilchenski’s death is improper character evidence not admissible in support of negligence claims

against Wilchenski or his estate, and must therefore be excluded.24

GRANTED [ ] DENIED [ ]

Motion in Limine XI

Kenneth Wilchenski’s Driving Record

22. Plaintiff’s only remaining claims are negligence (including vicarious liability) and

gross negligence against Wilchenski, through his Estate, for allegedly causing the accident at issue.

As Defendants were granted summary judgment on Plaintiff’s direct and gross negligence claims

22
TEX. R. EVID. 402.
23
TEX. R. EVID. 403.
24
TEX. R. EVID. 404(b).

9
against Robert Floyd Sue Trucking, what Robert Floyd Sue Trucking knew or should have known

about Wilchenski’s driving record and ability is no longer at issue.

23. Wilchenski’s driving record, specifically including any citations, accidents, or

incidents other than the accident at issue in this suit, is not relevant to any issue in dispute and his

written record and any testimony or statements referring to that record should be excluded.25

GRANTED [ ] DENIED [ ]

24. The probative value, if any, of Wilchenski’s driving record reflecting citations,

accidents or incidents other than the accident at issue in this suit is substantially outweighed by the

danger of unfair prejudice to Defendants, misleading the jury, and confusion of the issues. His

written driving record and testimony or statements referring to it should therefore be excluded.26

GRANTED [ ] DENIED [ ]

25. Evidence of any citations and other accidents or incidents reflected on Wilchenski’s

driving record would constitute improper character evidence. As such, his written driving record

and any statements or testimony referring to his record and other citations, accidents or incidents

must therefore be excluded.27

GRANTED [ ] DENIED [ ]

26. The driving record produced by Plaintiff shows Wilchenski was cited in connection

with the accident at issue, but that record provides that there was “NO DISPOSITION”. As there

was no finding of guilt or admission of fault by Wilchenski, and the Court has already excluded

25
TEX. R. EVID. 402.
26
TEX. R. EVID. 403.
27
TEX. R. EVID. 404(b).

10
the opinions of investigating officer Donald Lee Van Zandt that are the basis for that citation 28,

this record stating or showing Wilchenski was cited should therefore be excluded.29

GRANTED [ ] DENIED [ ]

Motion in Limine XII

Any testimony or evidence of other motor vehicle accidents, other trucking companies, or
other accident or incidents.

27. Plaintiff produced several news articles relating to other motor vehicle accidents

not at issue in this case, including a 2014 fatality accident involving a Wal-Mart truck in New

York, an accident in which two individuals died in 2014 in Houston, and a 2011 accident in

Grayson, Texas. None of these incidents involved Robert Floyd Sue Trucking or Kenneth

Wilchenski in any way. Any evidence, testimony, or statements about motor vehicle accidents

other than the accident at issue in this suit or operations of drivers and companies which are not

parties to this suit are not relevant to any issue in dispute and should be excluded.30

GRANTED [ ] DENIED [ ]

28. The probative value, if any, of evidence or testimony is substantially outweighed

by the danger of unfair prejudice to Defendants, confusion of the issues, and misleading the jury,

and should therefore be excluded.31

GRANTED [ ] DENIED [ ]

28
See Court’s Order Granting Defendants’ Motion to Exclude Opinions of Officer Donald Lee Van Zandt signed
March 13, 2018.
29
TEX. R. EVID. 402.
30
TEX. R. EVID. 402.
31
TEX. R. EVID. 403.

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Motion in Limine XIII

Any evidence or testimony regarding Defendant Robert Floyd Sue Trucking’s policies,
procedures, or recordkeeping.

29. The Court granted Defendants summary judgment on Plaintiff’s direct and gross

negligence claims against Robert Floyd Sue Trucking. As such, Robert Floyd Sue Trucking’s

policies, procedures, and recordkeeping are not relevant to any issue in dispute and must be

excluded.32

GRANTED [ ] DENIED [ ]

30. The probative value, if any, of Robert Floyd Sue Trucking’s policies, procedures

and recordkeeping is substantially outweighed by the danger of unfair prejudice to Defendants,

confusion of the issues, and misleading the jury. Any evidence or testimony relating to or referring

to Robert Floyd Sue Trucking’s policies, procedures, and recordkeeping must therefore be

excluded.33

GRANTED [ ] DENIED [ ]

Motion in Limine XIV

Any reference to the Federal Motor Carrier Safety Regulations, Department of
Transportation Regulations, or any other laws, statutes or regulations governing motor
carriers.

31. The Court granted Defendants summary judgment on Plaintiff’s direct and gross

negligence claims against Robert Floyd Sue Trucking. As such, any alleged acts or omissions by

Robert Floyd Sue Trucking, and any laws, statutes or regulations governing Robert Floyd Sue

Trucking’s operations and any purported standard of care relating to those operations, are not

relevant to any issue in dispute. Evidence of and statements or testimony describing, referencing

32
TEX. R. EVID. 402.
33
TEX. R. EVID. 403.

12
or purporting to apply any laws, statutes, or regulations governing motor carriers should therefore

be excluded.34

GRANTED [ ] DENIED [ ]

32. As there are no remaining direct negligence claims against Robert Floyd Sue

Trucking at issue, the probative value, if any, of any laws, statutes or regulations governing motor

carriers is substantially outweighed by the danger of unfair prejudice to Defendants, confusion of

the issues, and misleading the jury. Any evidence or testimony relating to or referring to such laws,

statutes or regulations must therefore be excluded.35

GRANTED [ ] DENIED [ ]

33. As noted herein, no evidence has been produced that drug or alcohol use by

Wilchenski was related to the accident at issue in any way. As such, any reference to drug or

alcohol testing by Robert Floyd Sue Trucking, including any statutes or regulations requiring drug

testing and any evidence or testimony stating or suggesting that drug and alcohol tests were or

were not performed on Wilchenski, are not relevant to any issue in dispute and should therefore

be excluded.36

GRANTED [ ] DENIED [ ]

34. The probative value, if any, of any reference to drug or alcohol testing by Robert

Floyd Sue Trucking, including any statutes or regulations requiring drug testing and any evidence

or testimony stating or suggesting that drug and alcohol tests were or were not performed on

Wilchenski is substantially outweighed by the danger of unfair prejudice to Defendants,

34
TEX. R. EVID. 402.
35
TEX. R. EVID. 403.
36
TEX. R. EVID. 402.

13
misleading the jury, and confusion of the issues. Any such testimony or statements should

therefore be excluded.37

GRANTED [ ] DENIED [ ]

Motion in Limine XV

Testimony stating or suggesting Defendants failed to preserve or destroyed evidence or
records.

35. Any mention, statement, or implication that Defendants failed to produce

documents in response to discovery requests, including any suggestion that Defendants withheld

or hid documents or were secretive or non-compliant with regard to discovery materials, must be

excluded.38 Defendants’ compliance with discovery requests is a matter for the Court, not for the

jury. To suggest Defendants withheld or destroyed records is improper, and trial is not the time to

raise issues pertaining to discovery matters.39 This includes reading or otherwise attempting to

enter into evidence objections asserted by Defendants to Plaintiff’s requests, which are for the

Court, not the jury, to rule on. Any such statements are not relevant to any issue in dispute and

must be excluded.

GRANTED [ ] DENIED [ ]

Motion in Limine XVI

Any statements or materials from Defendants’ insurer indicating or stating acceptance of
Plaintiff’s bodily injury claim or offers to pay for settlement of the same.

36. It is undisputed that this case has not settled. Under Rule 408, offers by or on behalf

of Defendants are not admissible to prove liability or the invalidity of Defendants’ denial and

affirmative defenses. Plaintiff has presented no evidence and disclosed no other proper purpose

37
TEX. R. EVID. 403.
38
TEX. R. EVID. 402 and 403.
39
State Farm Fire & Cas. Co. v. Morua, 979 S.W.2d 616, 619-20 (Tex. 1998).

14
for admission of any settlement offers. Defendants therefore request that any evidence or testimony

Plaintiff would offer regarding offers of settlement made to him be excluded.

GRANTED [ ] DENIED [ ]

Motion in Limine XVII

Evidence, testimony or opinions of Dr. John Hsieh.

37. The Court granted Defendants’ Motion to Exclude Opinions, Testimony, and

Statements of Dr. John Hsieh. As such, any evidence, testimony, or opinions of Dr. John Hsieh

are not relevant to any issue in dispute and should therefore be excluded.

GRANTED [ ] DENIED [ ]

38. The probative value, if any, of evidence, testimony, or opinions of Dr. John Hsieh

is substantially outweighed by the danger of unfair prejudice to Defendants, confusion of the issues

to the jury, and considerations of undue delay. Any such evidence, testimony, or opinions must

therefore be excluded.

GRANTED [ ] DENIED [ ]

Motion in Limine XVIII

Opinions of Plaintiff S. Emanuel Lin regarding accident cause and sequence.

39. The Court granted Defendants’ Motion to Exclude Opinions, Testimony, and

Statements of Plaintiff S. Emanuel Lin regarding the cause and sequence of the accident that are

not based on his personal knowledge. As such, any evidence, testimony, or opinions of S. Emanuel

Lin regarding the cause and sequence of the accident that are not based on his personal knowledge

are not relevant to any issue in dispute and should therefore be excluded.

GRANTED [ ] DENIED [ ]

15
40. The probative value, if any, of evidence, testimony, or opinions of Plaintiff S.

Emanuel Lin regarding the cause and sequence of the accident that are not based on his personal

knowledge is substantially outweighed by the danger of unfair prejudice to Defendants, confusion

of the issues to the jury, and considerations of undue delay. Any such evidence, testimony, or

opinions must therefore be excluded.

GRANTED [ ] DENIED [ ]

Motion in Limine XIX

Evidence, testimony or opinions of Officer Donald Lee Van Zandt regarding accident cause
and sequence.

41. The Court granted Defendants’ Motion to Exclude Opinions, Testimony, and

Statements of Donald Lee Van Zandt regarding the cause and sequence of the accident. As such,

any evidence, testimony, or opinions of Officer Donald Lee Van Zandt regarding the cause and

sequence of the accident, including any such opinions contained in the Texas Peace Officer’s Crash

Report of the accident at issue, are not relevant to any issue in dispute and should therefore be

excluded.

GRANTED [ ] DENIED [ ]

42. The probative value, if any, of evidence, testimony, or opinions of Officer Donald

Lee Van Zandt regarding the cause and sequence of the accident is substantially outweighed by

the danger of unfair prejudice to Defendants, confusion of the issues to the jury, and considerations

of undue delay. Any such evidence, testimony, or opinions must therefore be excluded.

GRANTED [ ] DENIED [ ]

16
Motion in Limine XX

Evidence of Insurance Premiums.

43. The Court granted Defendants’ Motion to Exclude Evidence of Insurance

Premiums. As such, any evidence of any payment of health insurance premiums and any evidence

as to the amount of any premiums paid are not relevant to any issue in dispute and should therefore

be excluded.

GRANTED [ ] DENIED [ ]

44. The probative value, if any, of evidence of any payment of health insurance

premiums and any evidence as to the amount of any premiums is substantially outweighed by the

danger of unfair prejudice to Defendants, confusion of the issues to the jury, and considerations of

undue delay. Any such evidence, testimony, or opinions must therefore be excluded.

GRANTED [ ] DENIED [ ]

Motion in Limine XXI

Testimony and Evidence not timely disclosed or produced.

45. Plaintiff’s 5th Amended Exhibit List includes records and materials purportedly

prepared by Plaintiff for and received by Plaintiff from a Dr. Jimmy Sethna. Dr. Sethna was never

disclosed in discovery, Dr. Sethna’s opinions have never been disclosed in discovery, and Plaintiff

has never produced any records containing Dr. Sethna’s qualifications as an expert or the substance

or bases of any opinions he may have as required by Rule 194.2(f). Pursuant to Rule 193.6, Dr.

Sethna’s opinions and testimony must therefore be excluded.

GRANTED [ ] DENIED [ ]

46. In addition to being hearsay, the probative value, if any, of Plaintiff restating or

attempting to convey to the jury any statements or opinions by Dr. Sethna are substantially

17
outweighed by the danger of unfair prejudice to Defendants, confusion of the issues to the jury,

and considerations of undue delay. Any such evidence, testimony, or opinions must therefore be

excluded.

GRANTED [ ] DENIED [ ]

CONCLUSION

Any reference to the above matters, whether intentional or unintentional, direct or indirect,

could only serve the purpose of creating undue prejudice against the Defendants and would in all

reasonable probability cause the jury to reach a verdict based upon emotion or impermissible or

prohibited data rather than fact. Such matters are generally impermissible, irrelevant, and/or

prejudicial to the Defendants’ right to a fair and impartial trial and some are also hearsay. Should

any such matters become material and relevant, Plaintiff has the right to bring such matters to the

Court’s attention outside the presence and hearing of the jury to determine admissibility, limited

admissibility, and whether appropriate limiting jury instructions are warranted. Granting of this

Motion will prevent prejudicial effect of questions or statements made to the jury which may not

be curable, even if objection is made and sustained.

WHEREFORE, PREMISES CONSIDERED, Defendants, ROBERT FLOYD SUE

TRUCKING, INC. and ESTATE OF KENNETH JAMES WILCHENSKI, DECEASED,

pray that the Court consider each of the grounds for Motion in Limine and Motion to Exclude set

forth above and each and all of the Requests contained in such Motion and enter such orders and

issue such instructions as may be necessary to protect the trial of this case and to insure that there

will be no mistrial by reason of passion, prejudice, or otherwise, and of this Motion of Defendants

respectfully pray judgment of the Court, and that it have such other and further relief, general and

special, legal and equitable, to which Defendants may be justly entitled.

18
Respectfully submitted,

THE FUENTES FIRM, P.C.

/s/David Helmey
ROBERT FUENTES
State Bar No. 24005405
DAVID HELMEY
State Bar No. 24092504
5507 Louetta Road, Suite A
Spring, Texas 77379
Telephone: (281) 378-7640
Facsimile: (281) 378-7639
robert@fuentesfirm.com
david@fuentesfirm.com
ATTORNEYS FOR DEFENDANTS, ROBERT
FLOYD SUE TRUCKING, INC. AND ESTATE
OF KENNETH JAMES WILCHENSKI,
DECEASED

CERTIFICATE OF SERVICE

Pursuant to Texas Rules of Civil Procedure, a true and correct copy of the foregoing has
been served upon all counsel of record on this the June 17, 2019.

/s/ David Helmey
DAVID HELMEY

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CORY SEPOLIO Track Judge’s New Case

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Document Filed Date

June 17, 2019

Case Filing Date

September 14, 2016

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Parties

DOES 1-10 Defendant
ESTATE OF KENNETH JAMES WILCHENSKI Defendant
ESTATE OF KENNETH JAMES WILCHENSKI BY SERVING MRS STACEY Registered Agent
HELMEY, DAVID PATRICK Attorneys for Defendants
HELMEY, DAVID PATRICK Attorney for the Defendant
LIN, S EMANUEL Plaintiff
ROBERT FLOYD SUE TRUCKING INC Defendant Pro Se
ROBERT FLOYD SUE TRUCKING INC BY SERVING ITS REGISTERED AGENT Registered Agent
SENTRY INSURANCE A MUTUAL COMPANY Defendant Pro Se
SENTRY INSURANCE A MUTUAL COMPANY (CORPORATION) BY SERVING ITS Registered Agent
Juan Fuentes Attorneys for Defendants

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Motion,Ex Parte: LIN, S EMANUEL vs. ESTATE OF KENNETH JAMES WILCHENSKI

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