Preview
CAUSE NO. -283065
SHAMAR GEORGE, IN THE DISTRICT COURT OF
Plaintiff, §
FORT BEND COUNTY, TEXAS
MAIN EVENT ENTERTAINMENT, LP §
Defendant. § 268 JUDICIAL DISTRICT
DEFENDANT’S PRELIMINARY MOTION IN LIMINE
TO THE HONORABLE JUDGE OF THE COURT:
Defendant Main Event Entertainment, LP (“Main Event” or Defendant hereby files this
its Preliminary Motion in Limine and moves the Court prior to commencement of the voir dire
examination of the jury panel to instruct Plaintiff Shamar George Plaintiff”) or her counsel to
refrain from introducing any testimony or pleading, from asking any witness any question, or from
making any statement whatsoever with regard to each of the following matters without first
obtaining, outside the hearing and presence of the jury, permission of the Court to do so. The
matters discussed in the following paragraphs are irrelevant, prejudicial and incompetent to any of
the material issues in this cause. The injection of these matters into the trial of this cause by any
party, attorney, or witness would cause irreparable harm to Defendant cause, which no
instruction by the Court to the jury could cure. Should any of the matters be brought to the attention
of the jury, directly or indirectly, Defendant would be compelled to file a motion for mistrial.
Therefore, in an effort to avoid probable prejudice and possible mistrial of this cause, Defendant
moves this Court to in limine as follows:
EFENDANT RELIMINARY OTION IMINE PAGE
Insurance
Defendant move to exclude any reference that defendant is or is not protected, in whole
or in part, by liability insurance, or that defense counsel was retained by, or all or any part of the
costs of defense, or of any resulting judgment, are or will be paid by an insurance company, or any
other matter suggesting an involvement of any insurance company with the defense of this case.
Such a fact is irrelevant to any issue and any mentioning thereof directly or indirectly would be
extremely harmful and prejudicial to defendantThornhill v. Ronnie’s I 45 Truck Stop, Inc.
S.W.2d 780, 794 (Tex.App. Beaumont 1997, writ dism’d.); Great American Insurance Company
v. Murray, 437 S.W. 2d 264, 266 (Tex. 1969); VID
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Jurors’ Connection with Insurance Industry
Defendant move to prohibit inquiring of potential jurors as to present or past
employment or connection with the insurance industry, or present or past connection of any family
member with the insurance industry, except that:
If a potential juror’s juror information card discloses employment in the insurance
industry, such potential juror may be questioned concerning same.
Inquiry may be made of potential jurors concerning their experience (or that of
members of their family), if any, reviewing, adjusting or allowing/disallowing claims,
as long as no express reference is made to “insurance.”
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
EFENDANT RELIMINARY OTION IMINE AGE
Relationship Between Defendantand Defendant s Attorneys
Defendant move to exclude any statement, reference, comment, or question pertaining to
the relationship between defendant and the attorneys representing defendant in this or in any other
pending or previous matter or to the relationship between the attorneys representing defendant in
this matter and any insurance company. This includes any reference to the location of the law firm
representing defendant, the size of the law firm representing efendant, the number of attorneys
representing defendant, the attorneys' fees charged by defendant s counsel, the manner in which
this suit was handled by efendant s counsel, or the manner in which defendant s counsel was
hired. Such inquiry is totally irrelevant to the issues in this case, and, even if relevant, the probative
value of any such evidence is substantially outweighed by its prejudicial affect. TEX. R. CIV. P.
192; TEX. R. EVID. 401 403, 503; Watson v. Isern, 782 S.W.2d 546 (Tex. App. Beaumont 1989,
writ denied).
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Nature of Defendant s Counsel's Practice
Defendant move to prohibit Plaintiff from referring to defense counsel, or any member of
their firm, as one who regularly represents defendants in personal injury lawsuits, for the reason
that such collateral matters are not related to any material issue in this lawsuit and would be
inquired into solely for the purpose of prejudice and inflammation of the jury, and would be highly
prejudicial to efendant. TEX. R. EVID. 401 403.
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
EFENDANT RELIMINARY OTION IMINE AGE
Other Cases Involving Couns
Defendant move to prohibit Plaintiff from mentioning or commenting to the jury about
any other case in which counsel for defendant may or may not have been involved. Such
information is not probative of any material fact and would influence the jury, thus unfairly
prejudicing defendant . TEX. R. CIV. EVID. 401, 402.
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Liability or Non Liability for Judgment
Defendant move to exclude any statement that the named defendant may or may not have
to pay any resulting judgment.
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Attorneys’ Fees
Defendantmove to exclude any statement t hat any party will have to pay attorneys’ fees,
or any references to the amount or basis of any attorney’s fees, unless a claim for recovery of
attorneys’ fees in the case will be submitted to the jury.
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Criminal Offenses
Defendant move to exclude any statement that any party or witness has been suspected of,
arrested for, charged with or convicted of any criminal offense unless there is evidence of a specific
conviction that the Court has previously ruled is shown to be specifically relevant to the matters
in controversy.
AGREED: SUSTAINED: ________ OVERRULED: _________
EFENDANT RELIMINARY OTION IMINE AGE
Settlement Negotiations or Mediation
Defendant move to exclude reference to any negotiations, offers or demands with respect
to any attempted settlement or mediation. VID 408; Ford Motor Co. v. Leggat
S.W.2d 643, 649 (Tex. 1995).
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Discovery Disputes
Defendant move to exclude any reference to discovery disputes that arose during the
preparation of the case for trial, any position taken by any party with respect thereto, or to the
Court’s rulings thereon. Plaintiff s counsel may not inform the jury in any manner that defendant
or efendant counsel has objected to certain discovery attempts by Plaintiff because counsel may
not argue facts to the jury that have been excluded from evidence, either directly or indirectly, by
suggesting that facts could have been proved but for the objections by the opposing party.
VID 401, 403; Spratley v. Ziegenfuss, 2011 Tex. Dist. LEXIS 1827, at *4 (95th Dist. Ct., Dallas
Count, Tex. Jan 20, 2015) (granting motion in limine to exclude “[a]ny reference to discovery
disputes that arose during the preparation of the case for trial, any position taken by any party with
respect thereto, or to the Court’s rulings thereon.”).
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
No Demonstrative Aides in Voir DireNot Pre Marked or Pre Admitted
Defendant move to prohibit Plaintiff s counsel from utilizing demonstrative evidence
relating to this case during the voir dire portion of this trial that has not been pre marked or pre
admitted because utilizing such is inconsistent with voir dire principles and further may display
potential evidence that the court has not ruled on its admissibility. Further, the relevance, if any,
is substantially outweighed by the danger of unfair prejudice in misleading the jur VID
EFENDANT RELIMINARY OTION IMINE AGE
401 & 403.
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Damages During Voir Dire
Mentioning, suggesting, inquiring about or attempting to ask potential jurors whether they
would be willing to award damages to Plaintiff in millions. This sort of question is not a proper
commitment question. Questions that are not intended to discover bias against the law or prejudice
for or against the defendant, but rather seek only to determine how jurors would respond to the
anticipated evidence and commit them to a specific verdict based on the evidence is not proper.”
Hyundai Motor Co. v. Vasquez, 189 S.W. 3d 743. 753 (Tex. 2006). In a recent case, K.J. and V.J.
v. USA Water Polo. 383 S.W.3d 593 (Tex. App. Houston [14 Dist.] 2012), the Fourteenth District
Court of Appeals, specifically held that these sorts of commitment questions at voir dire are
improper, reasoning that when the law does not require a jury to award a statutory specified amount
of damages if liability is found, then these commitment type questions are improper. See also
generallyGreenman v. City of Fort Worth308 S.W.2d 553 (Tex. Civ. App. 1957).
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Hearsay Medical Opinions
Defendant move to exclude any hearsay statement offered for the truth of the statement
by an allegedly injured person concerning any diagnosis or medical opinions communicated to
such person by a physicianor other health care provider.
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Demonstrative Aides, Photographs and Visual AidsNot Pre Marked or
Pre Admitted
Defendant move to prohibit Plaintiff from showing any demonstrative aides, documents,
photographs or visual aids to the jury, or displaying same in such manner that the jury or any
EFENDANT RELIMINARY OTION IMINE AGE
member thereof can see the same, unless and until the same has been tendered to opposing counsel,
and has been admitted in evidence or approved for admission or use before the jury, either by the
Court or by all counsel.
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Requests for Stipulations
Defendant move to prohibit any request or demand in the presence of the jury for a
stipulation to any fact, or that counsel admit or deny any fact. The only purpose for such request
would be to harass or embarrass defendant s counsel before the jury and if necessary could have
been made prior to trial or can be made outside the presence of the jury.
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Requests for Files
Defendant move to prohibit any request or demand in the presence of the jury that
opposing counsel produce any document or thing, or that opposing counsel or any party or witness
exhibit, turn over or allow examination of the contents of any file or briefcase (except that a party
may demand to see a document used by a witness on the stand to refresh his/her recollection, or
that a witness testifies that he/she used previously to refresh his/her recollection). Additionally,
Plaintiff s counsel may not request for the production of items during the course of this trial from
the file of defendant s counsel, as such requests are improper and if such items were desired, then
they should have been sought during the discovery process and to allow this type of remark during
the course of the trial would place defendant in a position before the jury of appearing to have
something to hide. 193.1, 193.5, & 196.
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
EFENDANT RELIMINARY OTION IMINE AGE
Discrimination
Defendant move to prohibit any argument that a party should be treated more or less
favorably because of such party’s race, gender, national origin, nationality, religion, marital status,
occupation, or financial status.
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Social Cost of Award
Defendant move to prohibit any argument or suggestion that an award of damages will
affect insurance premiums, the price of any goods or services, or the level of taxation.
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Hardship or Privation
Defendant move to exclude any argument or suggestion that a failure to award damages
will cause Plaintiff privation or financial hardship. Such a fact is irrelevant and immaterial to
the issues involved and will cause extreme prejudice to the jury and incite them to render a verdict
not on the facts but on emotionWalgreen Texas Co v. Shivers, 154 S.W. 2d 625 (Tex. 1941);
First Nat l Bank of Marshall v. Beavers, 619 S.W. 2d 288 (Tex. App. Texarkana 1981, writ ref’
n.r.e.); Mortg of Am v. McCord, 466 S.W. 2d 868, 872 (Tex. App. ston [14th Dist]
1971, writ ref’d n.r.e.).
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Plaintiff s Lack of Insurance
Defendant move to prohibit mentioning or referencing that Plaintiff not have
insurance, or sufficient insurance, to compensate themfor any injuries and/or damages.
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
EFENDANT RELIMINARY OTION IMINE AGE
Golden Rule/ Trading Places / Personal, Family or Community Safety Arguments
Mentioning or referencing any statement calling upon jurors to treat the Plaintiff as they
would want to be treated as violative of the prohibition against evoking the “Golden Rule.” This
would include statements such as asking the jury to. “think about the person you love most in your
whole life do you understand that you would be asking twelve people in a jury to set a value on
your loved one's lifeor health ?” Additionally, suggesting or asking the jurors to place themselves
in Plaintiff s position or mentioning or referencing that the jury has the ability and/or responsibility
o further “personal safety.” family safety” or “community safety” by rendering a verdict that will
reduce or eliminate Defendant s alleged dangerous conduct. Any such references are akin to
“Golden Rule” arguments, improperly appealing to passions and sympathies. See TEX. R. Evid.
403; Lone Star Ford, Inc. v. Carter, 848 S.W.2d 850 (Tex. App. Houston [14th Dist.] 1993.
n.w.h.): Gulf, Colo. & Santa Fe Ry. Co. v. Hampton, 358 S.W.2d 690 (Tex. Civ. App. Eastland
1962. writ ref'd n.r.e.).
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Improper Damage Model
Any statement or argument with respect to a unit of time in which that unit of time is broken
into smaller parts of weeks, days or hours and multiplied by a dollar amount. Additionally, any
statement or argument attempting to reference facts not in evidence such as how much a celebrity
makes, how much an athlete makes in salary or endorsement deals, the price of a piece of chattel
i.e. the Mona Lisa), or similar type reference. This type of evidence or testimony is clearly not
permissible and would tend to produce an excessive damage verdict. See Westboro v. General Tire
& Rubber Co., 754 F.2d 1233 (5th Cir. 1985).
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
EFENDANT RELIMINARY OTION IMINE AGE
Counsel’s Opinion of Credibility
Defendant move to exclude any expression of counsel’s personal opinion regarding the
credibility of any witness.
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Witness Opinion of Credibility Without Foundation
Defendant move the Court preclude any testimony by any witnesses, both lay and
expert, as to the credibility of any witnesses, for the reason that it is not competent evidence, is
irrelevant, and is prejudicial. In re G.M.P, 909 S.W.2d 198, 206 (Tex App. Houston [14th
Dist.] 1995, no writ) ( n expert witness cannot be an expert on credibility.); VID 701 &
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Effect of Answers to Jury Questions
Defendant move to prohibit any argument that any finding or failure to find in response
to a particular jury question will or will not result in a judgment favorable to any party. This
provision does not bar argument by counsel that a particular jury question should be answered in
a particular way.
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Subsequent Remedial Measures
Defendantmove to exclude any statements made or evidence presented, or any reference
to meetings, agreements or actions taken by defendant after the incident made the basis of
Plaintiff lawsuit if any, because these matters are not admissible pursuant to VID 407.
Defendant would also point out to the Court, that there appears to be no purpose, other than an
attempt to sho efendant s liability for the incident in question, for which evidence of any
EFENDANT RELIMINARY OTION IMINE AGE
subsequent remedial measure could be admitted. If there is such other purpose, movant asks the
Court permit the evidence only for that limited purpose and to so instruct the jury. VID
407; E.V.R. II Assocs. v. Brundige, 813 S.W.2d 552, 556 (Tex.App.Dallas 1991, no writ).
AGREED: ________ SUSTAINED: ________ OVER RULED: _________
No Testimony of Improperly or Non Designated Experts
Defendant move to exclude testimony of any expert witness or other person purporting to
have knowledge of any matter involved in this case and whose identity was not disclosed during
the discovery phase of the litigation or timely made in accordance with the Court’s docket control
order for designating experts, because such evidence is barred under the provisions of Civil
Procedure Rule 193.6. ovant asked Plaintiff, by requests for disclosure, to identify all expert
witnesses and other persons having knowledge of facts who would be called as witnesses on h
behalf during the trial. By responses to these requests, specific names were disclosed. Movant
asks the Court to prohibit the Plaintiff from calling any other person to testify during trial.
Furthermore, defendant move to exclude testimony of any expert witness or
other person purporting to have knowledge of any matter involved in this case whom was
designated in Plaintiff’s requests for disclosure, but Plaintiff did not make available for deposition
prior to trial. To allow expert witnesses to give opinions testimony that has not met the required
threshold for admissibility would ambush, surprise and be unfair to defendant. Finally, Plaintiff
may not elicit expert testimony from any of his fact witnesses unless they have been properly
designated as experts as required by the Texas Rules of Civil Procedure. To allow fact witnesses
to give expert opinion testimony would ambush, surprise and be unfair to defendant. Baylor Med
Plaza S cs v. Kidd, 834 S.W.2d 69, 74 (Tex. App. exarkana 1992, writ denied) (esignation of
EFENDANT RELIMINARY OTION IMINE AGE
witness as a fact witness does not establish good cause to permit the witness to testify as an expert
when the witness is not listed as an expert witness during discovery)
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
No Reference to Motion in Limine
Defendant move to exclude any reference to the fact this Motion has been filed, that any
ruling has been made by the Court in response to this Motion, that defendant have moved to
prohibit proof, or that the Court has excluded proof of any particular matter. Burdick v. York Oil
, 364 S.W. 2d 766 (Tex. App.San Antonio, 1963, writ ref’ d n.r.e.); Gen Motors Corp. v.
Bryant, 582 S.W. 2d 521 (Tex.App. ston [1st Dist. ] 1979, writ ref’d n.r.e.).
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Side Bar
Defendant move to prohibit any questions or testimony or “side bar” remarks made by
Plaintiff counsel or witnesses regarding defendant legal representation or the number of
attorneys representing any efendant. Gonzalez v. Tex Emp rs Ins Ass , 419 S.W. 2d 203, 212
(Tex.App. ustin 1967, no writ).
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Counsel’s Personal Beliefs
Defendant move to prohibit Plaintiff s counsel from mentioning or stating to the jury
his/her personal belief concerning the justice of Plaintiff case and/or Plaintiff s right to recover
damages as opposed to stating what the facts will show or arguing the facts admitted into evidence.
Wallace v. Liberty Mut Ins , 413 S.W. 2d 787, 790 (Tex App. ouston 1967, writ ref’
n.r.e.).
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
EFENDANT RELIMINARY OTION IMINE AGE
“Hired Gun” Type Statements or Other Derogating Remarks Concerning
Defendant’s Counsel or Experts
Any statements by Plaintiff's counsel characterizing Defendant's counsel or experts as
“hired guns,” “a traveling road show” or “circus,” “a dog and pony show,” or other similar
derogating remarks. These statements are untrue and would be highly prejudicial to Defendant.
See e.g. Tennison v. Letto, 469 S.W.2d 287, 291 (Tex. App. Austin 1971, writ ref'd n.r.e.).
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Expert Medical Testimony Required for Causation
Defendant move that Plaintiff and Plaintiff s witnesses not be permitted to suggest,
discuss, or render an opinion as to the causation or correlation to this accident of any symptoms
reasonably requiring medical testimony to establish any correlation without first establishing that
causation or correlation by qualified medical witness and after properly predicating the opinion on
reasonable medical probability. VID
AGREED: ________ SUSTAINED: ________ OVERR ULED: _________
Future Medical Care Testimony
Defendant move to prohibit Plaintiff and Plaintiff s witnesses from suggesting
mentioning or discussing the need for future medical care or future medical expenses without first
establishing the proper predication and through a qualified medical witness that based on
reasonable medical probability those expenses and care are necessary for the treatment of the
injuries sustained and the accident in question and that those expenses are reasonable.
VID05.
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
EFENDANT RELIMINARY OTION IMINE AGE
Improper Medical Opinions
Defendant move to prohibit Plaintiff Plaintiff witnesses and Plaintiff s attorney from
mentioning, suggesting, or discussing any physical, medical, or mental condition reasonably
requiring medical testimony to establish correlation between the injuries sustained in the accident
in question until causation is established by proper predication and a qualified medical witness.
VID
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Improper Hypotheticals
Any hypothetical question that asks a witness to assume facts that are not in evidence. Such
questions are merely a vehicle for testimony by the lawyer asking the questions and are improper.
Tex. R. Evid. 702, 703 & 705. Clark Equipment Co. v. Pitner, 923 S.W.2d 117, 123 (Tex. App.
Houston [14th Dist.] 1996, writ denied) (“Hypothetical questions should be restricted to facts in
evidence.”); Crawford v. Deets, 828 S.W.2d 795, 799 (Tex. App. Fort Worth 1992, writ denied).
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Legal Conclusions by Expertsor any Other Witnesses
Any testimony by an expert that constitutes an opinion on a pure question of law. Tex. R.
Evid. 702. GTE Southwest v. Bruce, 998 S.W.2d 605, 620 (Tex. 1999)(expert opinion that
defendant's conduct was extreme and outrageous held inadmissible); Lyondell Petrochemical Co.
v. Fluor Daniel Inc., 888 S.W.2d 547, 554 55 (Tex. App. Houston [1st Dist.] 1994, writ denied).
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Statements of Defendant s Position
Defendant moves to prohibit ny attempted anticipation by the attorneys for the Plaintiff
of what a Defendant s position will be on any matter, such as “Defendantwill say this…” or “ the
EFENDANT RELIMINARY OTION IMINE AGE
railroad’sposition is ....” See TEX. R. EVID. 402,403;see e.g. Barn es v. Whittington
S.W.2d 493, 495 (Tex. 1988, orig. proceeding)(statements of counsel are not evidence).
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Financial Status of Defendant
Defendant move to exclude any evidence of or reference to the financial status of any
efendant, its officers and/or directors, or any of their related entities. This would include any
reference to gross and net income, profit, and net worth, because such evidence is not relevant to
any dispute in this litigation. VID401 & 402.
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Evidence or Testimony Relating to Plaintiff’s Claim for Lost Wages and/or
Lost Earning Capacity
Defendant move to exclude any evidence of or reference to Plaintiff s claim for lost wages
and/or lost earning capacity. Plaintiff has not produced any evidence relating to her claim for lost
wages. Similarly, Plaintiffhas not presented any evidence as a basis for her claim for lost earning
capacity or even designated any expert to opine on her claim for lost wages and lost earning
capacityPast lost wages or earnings are the actual loss of income due to an inability to perform a
specific job a party held form the time of injury to the date of the trial. Dawson v. Briggs, 107
S.W.3d 739, 749 50 (Tex.App.Fort Worth 2003, no pet.); Strauss v. Cont’l Airlines, Inc., 67
S.w.3d 428, 435 (Tex.App.Houston [14 ] 2002, no pet.). Proof of lost wages requires evidence
of plaintiff’s actual earnings before and after injury. City of San Antonio v. Vela, 762 S.W.2d 314,
319 (Tex.App.San Antonio 1988, writ denied). Plaintiff has not produced any evidence for past
loss wages.
Loss of future earning capacity is a plaintiff’s diminished capacity to earn a living after the
trial. Bituminous Cas. Corp. v. Cleveland, 223 S.W.3d 485, 491 (Tex. App.Amarillo 2006, no
EFENDANT RELIMINARY OTION IMINE AGE
pet.). To support an award of damages for loss of future earning capacity, the plaintiff must
introduce evidence sufficient to allow the jury to reasonably measure h earning capacity in
monetary terms. Bonney v. San Antonio Transit Co., 325 S.W.2d 117, 121 (Tex. 1959); Big Bird
Tree Servs. v. Gallegos, 365 S.W.3d 173, 178 (Tex. ADallas 2012, pet. denied). Loss of
earning capacity that a Plaintiff will suffer in the future is somewhat uncertain and thus is left to
the jury’s sound judgment and discretion. Border Apparel East, Inc. v. Guadian, 868 S.W.2d 894,
897 (Tex. App.El Paso 1993, no writ). However, w hile the amount of such damages is left to
the sound discretion and judgment of the jury, the jury should not be left to mere conjecture.
[T]he naked and unsupported opinion or conclusion of a witness does not constitute evidence of
probative force and will not support a jury finding even when admitted without objection.” Dallas
Ry. & Terminal Co. v. Gossett, 156 Tex. 252, 256, 294 S.W.2d 377, 380 (1956). Furthermore,
assuming Plaintiff had sufficient evidence, which she didn’t, evidence to prove loss of earnings or
earning capacity “must be presented in the form of a net loss after reduction for income tax
payments or unpaid tax liability pursuant to any federal income tax law.” See C.P.RC. §18.091(a).
It also requires the jury be informed on what elements of its award are subject to federal income
tax. See C.P.RC. §18.091(b). Therein, any such evidence or testimony pertaining to Plaintiff
claim for lost wages and/or lost earning capacity is not supported by the evidence and lacks a
proper foundatio VID As Plaintiff has not provided any evidence to substantiate
her claim for lost wages and/or lost earning capacity, any such evidence and/or testimony related
to Plaintiff s lost wages and/or lost earning capacity is not relevantand s hould be excluded
VID
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
EFENDANT RELIMINARY OTION IMINE AGE
Causation Medical Testimony
Defendant move to prohibit Plaintiff and Plaintiff s witnesses not be permitted to suggest,
discuss, or render opinion as to the causation or correlation to this accident of any aggravation of
a pre existing symptom reasonably requiring medical testimony to establish causation or
correlation without first establishing that causation or correlation by a qualified medical witness
and after properly predicating the opinion on reasonable medical probability. Similarly, Defendant
moves to prohibit Plaintiff and Plaintiff’s witnesses not be permitted to suggest, discuss or render
opinions as to the causation or correlation of any subsequent accident or injury being related to or
caused by the accident at issue. VID
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Other Litigation
fendant move to exclude any reference or inference that d fendant had been or is
involved in any other litigation generally including but not limited to settlement of any other
claim, the amount of any settlement, any jury verdict, any verdict for punitive damages, and/or any
jury finding that defendant has been found negligent or otherwise liable to pay damages. Such
collateral matters are not related to any material issue in this lawsuit and would be inquired into
solely for the purpose of prejudicing the jury with collateral matters, the merits of which could not
possibly be litigated in this suit, and whose relevance would be outweighed by the prejudicial valu
of such evidence on defendant s defense. VID 03; see St. Paul Fire & Marine Ins.
Co. v. Murphree, 357 S.W.2d 744, 747 48 (Tex. 1962); Wright v. Excalibur Ins. Co., 486 S.W.2d
35 (Tex. App. allas 1972, no writ).
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
EFENDANT RELIMINARY OTION IMINE AGE
Rules, Regulations, and Standards
Defendant move to exclude any evidence of any rules, regulations, or standards applicable
to any organization or promulgated by any organization without there first being a showing in the
evidence that such matters would be applicable to the facts and circumstances involved in this
case.
AGREED: ________ SUSTAINED: OVERRULED: _________
Prevention of Future Incidents
Defendant move to prohibit any comment, testimony, inference, or other evidence to the
effect that what happened to Plaintiff could happen to another in the future. Such evidence is totally
irrelevant to any issue in this case. Alternatively, even if such inquiry were relevant, which it is
not, the probative value of such evidence is substantially outweighed by the danger of prejudice,
confusion of the issues, and misleading the jury all of which would prejudice efendant. TEX. R.
EVID. 401
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Defendant s Payment of Medical Bills
Defendant move to exclude any reference that any efendant refused to pay for any
doctor appointment, medical treatment or any other medical care of the Plaintiff.
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Sympathy Testimony
Defendant move to prohibit Plaintiff and her attorney from offering the testimony of any
family member or other witness whose testimony is intended only to evoke sympathy from the
jury or constitutes improper character evidence. VID401 & 402.
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
EFENDANT RELIMINARY OTION IMINE AGE
Testimony of Absent Witness
Any reference to the probable testimony of a witness who is absent, unavailable or not
called to testify in this case. Tex. R. Evid. 802; Magaline v. J. V Harrison Truck Lines, Inc., 446
S.W.2d 920, 925 (Tex. App.Houston [14th Dist.] 1969, writ ref'd n.r .e.)(“Counsel may not
undertake to tell the jury what testimony the witness would give. That would be clearly improper
as getting unsworn testimony before the jury.”)
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Comment on Failure to Calla Witness
Any reference to Defendant's failure to call a witness or conclusion that such failure raises
a presumption that the testimony, if produced, would be unfavorable, unless it is properly shown
that the absent witness was under the control of, or standing in some relation to any Defendant,
and unless the absent witness has obtained or was clearly in a position to obtain, material
information on the point in issue. Johnson v. Smith, 4 46 S.W.2d 357, 359 (Tex. App. San Antonio
1969, writ ref'd n.r.e.
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Evidence of Plaintiff s Unadjusted Medical Expenses
To the extent that Plaintiff seek to introduce evidence of past medical expenses, Plaintiff
is only allowed to recover those medical expenses actually paid and incurred. Tex. Civ. Prac.
Rem. Code § 41.0105; Haygood v. Garza de Escabedo, 356 S.W.3d 390, 396 (Tex. 2011).
Similarly, Plaintiff is only entitled to present evidence of the medical expenses actually paid and
incurred See Haygood, 356 S.W.3d at 398. To the extent that Plaintiff attempt to present
evidence of unadjusted medical expenses, this evidence is inadmissible as it is not relevant.
Tex. R. Evid. 402. As only the actual paid and incurred medical expenses are recoverable, the
EFENDANT RELIMINARY OTION IMINE AGE
admissibility of evidence demonstrating the actually paid and incurred medical expenses comports
with the intent and express language of § 41.0105. see also Tex. Civ. Prac. & Rem. Code §
The cost that the plaintiff was initially billed for is irrelevant and should be excluded
from the purview of the fact finder. Haygood, 356 S.W.3d at 398; see generally Tex. Civ. Prac. &
Rem. Code § 41.0105; see Judge Randy Wilson, Paid or Incurred: An Engima Shrouded in a
Puzzle, 71 Tex. B.J. 812, 815 (2008). Thus, Plaintiff is only allowed to submit evidence that shows
Plaintiff s adjusted medical expenses.
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Questioning Whether Witness “Pass or Failed” Certain Training or Licensure
Mentioning, suggesting, inquiring about or attempting to introduce evidence of whether
witness passed or failed certain trainingor licensure that is not required by law. Passing or failing
such training is not a legal standard. Such evidence is irrelevant and thus, inadmissible.Tex. R.
Evid. 401
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Arguments, Lay Witness Opinion, and Evidence Relating to Industry Standards
“Industry standards” or “applicable standards of care” are not within the general or personal
knowledge of a lay witness, and neither are “applicable training requirements”. Further, a single
company’s standards and protocols are not representative of the industry as a whole, and are thus
insufficient evidence to establish an applicable standard of care for an industry as a whole. See
FFE Transp. Services, Inc. v. Fulgham, 154 S.W.3d 84 (Tex. 2004). Only a qualified expert
witness can testify as to industry standards, guidelines, training requirements, safety procedures,
standards of care, etc., and any attempt by opposing counsel to introduce such standards without a
qualified expert witness’s testimony should be excluded as a matter of law. Id.; See also Greater
EFENDANT RELIMINARY OTION IMINE AGE
San Antonio Transp. Co. v. Polito, No. 04 00330 CV, 2011 WL 2893080, at *4 (Tex. App.
San Antonio July 20, 2011, pet. denied). Any attempt to introduce such evidence without the use
of a qualified expert’s testimony should not be entertained by the Court because it has the strong
potential to prejudice the jury into a larger award based on emotional factors rather than an award
based solely on the facts presented. Such “Standard of Care” arguments, evidence, and lay witness
opinion testimony should be excluded as such represents an attempt by Plaintiff’s counsel to
circumvent the well established rules of this Court against the use of such improper and unduly
prejudicial trial tactics. Such would serve only to mischaracterize the Defendant and the facts and
confuse the jury with satellite issues not relevant to this case violating Texas Rule of Evidence
AGREED: ________ SUSTAINED: ________ OVERRULED: ________
Defendant s Policies and Procedures
Evidence of or references to Defendant internal policies or procedures and argument that
such policies or procedures establish the standard of care or are evidence of Defendant's
negligence. All such evidence and arguments should be excluded. First, the policies have no
bearing on whether Defendant (or anyone else) was negligent on the day of the accident.
Additionally, the Texas Supreme Court has refused to establish a standard of care based upon
internal policies and a defendant's failure to comply with those policies. FFE Transp. Services v.
Fulgham, 154 S. W.3d 84, 92 (Tex. 2004) (defendant's inspection schedule was not evidence of
the standard of care); Owens v. Comerica Bank, 229 S.W.3d 544, 547 (Tex. App. Dallas 2007,
no pet.)(same).
AGREED: ________ SUSTAINED: ________ OVERRULED: __
EFENDANT RELIMINARY OTION IMINE AGE
Self Imposed Policies “Safety First”
Mentioning, suggesting, inquiring about or attempting to introduce evidence of self
imposed policies, such as “safety first” standard. Texas courts have recognized that a company's
self imposed policies do not change the legally required standard of care. Fenley v. Hospice in the
Pines 4 S.W.3d 476, 481 (Tex. App. Beaumont 1999, pet. denied). Plaintiff s assertions
concerning any internal, self imposed policy or program cannot establish a legal duty or factor into
the negligence determination. Such evidence is irrelevant and thus, inadmissible. Tex. R. Evid.
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Emotional Response
Arguments or statements meant to evoke an emotional response from the jurors rather than
a decision based on the facts of this case. Rule 269(e) requires attorneys to confine their arguments
“strictly to the evidence and to the arguments of opposing counsel.” TEX. R. Civ. PROC. 269(e).
Improper arguments that are intended to elicit an emotional response include statements that, by
returning a verdict favorable to the plaintiff, jurors will “send Defendant a message,” “set a
standard,” protect themselves from harm or compel the defendant to take action. See Missouri
Kansas Texas R. Co. v. Hamilton, 314 S.W.2d 114, 119 20 (Tex. App.Dallas 1958, writ ref'd
n.r.e.) Stafford v. Steward, 295 S.W.2d 665 (Tex. App. Eastland 1956, dism'd by agr.)(argument
that, by returning a verdict for plaintiff jurors would protect their homes and their wives from
harm, held “of such a prejudicial and inflammatory nature that it was reasonably calculated to
cause and probably did cause the rendition of an improper verdict.”). Other improper arguments
include statements about the location of a defendant's business, a party's motives in bringing or
defending a lawsuit or the effect of a verdict on the local community. Prudential Fire Ins. Co. v.
EFENDANT RELIMINARY OTION IMINE AGE
United Gas Corp., 199 S.W.2d 767, 72 (Tex. 1946) (In a subrogation action brought by an
insurer, the court held it improper for counsel to argue that the plaintiff was an “Oklahoma
corporation coming down here … trying to recover off of your local concerns” and referring to an
insurance company witness as “hunting out people to sue.”); Levermann v. Cartall, 393 S.W.2d
931 (Tex. App. San Antonio 1965, writ ref'd. n.r.e.) (Holding references to the impact on
community's need for additional physicians by judgment in a medical malpractice action an
improper appeal to prejudice).
AGREED: ________ SUSTAINED: ________ OVERRULED: _________
Arguments, Evidence, or Testimony Relating to Plaintiff’s Use of the Reptile Theory
Defendant moves this Court to prohibit Plaintiff s attorney from making any statement or
argument encouraging the jury to decide this case based on the jurors’ community interest,
including but not limited to excluding “Reptile Theory” arguments, testimony, and other evidence
The Reptile Theory is a tactic utilized by plaintiff s counsel during trial to “elicit an emotional
‘fight or flight’ response from jurors,” persuading them to decide a case based on their instinctual
desire to protect themselves and others, rather than the evidence admitted at trial. See generally
David R. Kott, et al., Keep Reptile Theory Out of the Courtroom, 62 No. 9 DRIFTD 20, 20 (2020).
This tactic is premised on the idea that the primitive portion of the human brain, which is
“conditioned to pursue safety and survival” can be accessed and influenced by a series of questions,
persuading jurors to make emotional decisions rather than those based on logic and the merits of
the case. Id., at 21. It is quite clear that such conduct is improper, distasteful, and would present
substantial prejudice against the defendant.
As such, any arguments, testimony, or evidence presented by Plaintiff s counsel at trial
including references to “personal safety,” “community safety,” “danger to the community,
EFENDANT RELIMINARY OTION IMINE AGE
“common safety,” generalized statements about “safety rules, guidelines, standards, precautions,
etc.,” “common or industry safety standards, procedures and operating practices,” or “safe
instrumentalities, operations, precautions, etc.” improperly urge the jury to render a large award in
favor of the Plaintiff based on the jurors’ emotions and sense of self preservation, rather than the
evidence admitted at trial. See Whitehead v. Food Max, 163 F.3d 265, 277 78 (5th Cir. 1998)
(finding that counsel’s statements referencing facts not in evidence were highly prejudicial and
served no purpose other than for the jury to render a large award)
Additionally, any arguments, testimony or evidence presented by Plaintiff s counsel at
trial, including generalized statements attempting to refer to or purport there are any applicable
“safety rules, guidelines, standards, precautions, etc.,” “common or industry safety standards,
procedures and operating practices,” or “safe instrumentalities, operations, precautions, etc.” in
any way related to mowing operations generally or the mowing equipment at issue in this lawsuit
that are not specifically tied to or based on an actual “statute, regulation, rule or order regulating
equipment or conduct” adopted by the federal government, a local government, or a governmental
agency or authority over the facts at issue in this lawsuit should be prohibited and excluded.
RAC ODE §72.053 (Failure to Comply with Regulations or Standards)(defining
“regulation or standard” to be a “statute, regulation, rule or order regulating equipment or conduct
adopted or promulgated by the federal government, a state government, a local government, or a
governmental agency or authority
Such “Reptile Theory” arguments are substantially the same as the “conscience of the
community” arguments the Fifth Circuit has condemned for their “potential of substantial
injustice” and lack of “proper purpose” in trial. Westbrook v. Gen Tire & Rubber Co. 754 F.2d
39 (5th Cir. 1985) (noting the Court’s condemnation is not limited to arguments with
EFENDANT RELIMINARY OTION IMINE AGE
the specific words “community conscience but “it extends to all impassioned and prejudicial
pleas intended to evoke a sense of community loyalty, duty, and expectation.”). They are also
substantially similar to the “Golden Rule” arguments that consistently been found to be
improper and prejudicial in Texas courts See e.g., World Wide Tire Co. v. Brown, 644 S.W.2d
144, 145 (Tex. App.Houston [14th Dist.] Dec. 9, 1982, writ denied).
Such “Reptile Theory” arguments, evidence, and testimony should be excluded as such
represents an attempt by Plaintiff s counsel to circumvent the
Preview
CAUSE NO. -283065 SHAMAR GEORGE, IN THE DISTRICT COURT OF Plaintiff, § FORT BEND COUNTY, TEXAS MAIN EVENT ENTERTAINMENT, LP § Defendant. § 268 JUDICIAL DISTRICT DEFENDANT’S PRELIMINARY MOTION IN LIMINE TO THE HONORABLE JUDGE OF THE COURT: Defendant Main Event Entertainment, LP (“Main Event” or Defendant hereby files this its Preliminary Motion in Limine and moves the Court prior to commencement of the voir dire examination of the jury panel to instruct Plaintiff Shamar George Plaintiff”) or her counsel to refrain from introducing any testimony or pleading, from asking any witness any question, or from making any statement whatsoever with regard to each of the following matters without first obtaining, outside the hearing and presence of the jury, permission of the Court to do so. The matters discussed in the following paragraphs are irrelevant, prejudicial and incompetent to any of the material issues in this cause. The injection of these matters into the trial of this cause by any party, attorney, or witness would cause irreparable harm to Defendant cause, which no instruction by the Court to the jury could cure. Should any of the matters be brought to the attention of the jury, directly or indirectly, Defendant would be compelled to file a motion for mistrial. Therefore, in an effort to avoid probable prejudice and possible mistrial of this cause, Defendant moves this Court to in limine as follows: EFENDANT RELIMINARY OTION IMINE PAGE Insurance Defendant move to exclude any reference that defendant is or is not protected, in whole or in part, by liability insurance, or that defense counsel was retained by, or all or any part of the costs of defense, or of any resulting judgment, are or will be paid by an insurance company, or any other matter suggesting an involvement of any insurance company with the defense of this case. Such a fact is irrelevant to any issue and any mentioning thereof directly or indirectly would be extremely harmful and prejudicial to defendantThornhill v. Ronnie’s I 45 Truck Stop, Inc. S.W.2d 780, 794 (Tex.App. Beaumont 1997, writ dism’d.); Great American Insurance Company v. Murray, 437 S.W. 2d 264, 266 (Tex. 1969); VID AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Jurors’ Connection with Insurance Industry Defendant move to prohibit inquiring of potential jurors as to present or past employment or connection with the insurance industry, or present or past connection of any family member with the insurance industry, except that: If a potential juror’s juror information card discloses employment in the insurance industry, such potential juror may be questioned concerning same. Inquiry may be made of potential jurors concerning their experience (or that of members of their family), if any, reviewing, adjusting or allowing/disallowing claims, as long as no express reference is made to “insurance.” AGREED: ________ SUSTAINED: ________ OVERRULED: _________ EFENDANT RELIMINARY OTION IMINE AGE Relationship Between Defendantand Defendant s Attorneys Defendant move to exclude any statement, reference, comment, or question pertaining to the relationship between defendant and the attorneys representing defendant in this or in any other pending or previous matter or to the relationship between the attorneys representing defendant in this matter and any insurance company. This includes any reference to the location of the law firm representing defendant, the size of the law firm representing efendant, the number of attorneys representing defendant, the attorneys' fees charged by defendant s counsel, the manner in which this suit was handled by efendant s counsel, or the manner in which defendant s counsel was hired. Such inquiry is totally irrelevant to the issues in this case, and, even if relevant, the probative value of any such evidence is substantially outweighed by its prejudicial affect. TEX. R. CIV. P. 192; TEX. R. EVID. 401 403, 503; Watson v. Isern, 782 S.W.2d 546 (Tex. App. Beaumont 1989, writ denied). AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Nature of Defendant s Counsel's Practice Defendant move to prohibit Plaintiff from referring to defense counsel, or any member of their firm, as one who regularly represents defendants in personal injury lawsuits, for the reason that such collateral matters are not related to any material issue in this lawsuit and would be inquired into solely for the purpose of prejudice and inflammation of the jury, and would be highly prejudicial to efendant. TEX. R. EVID. 401 403. AGREED: ________ SUSTAINED: ________ OVERRULED: _________ EFENDANT RELIMINARY OTION IMINE AGE Other Cases Involving Couns Defendant move to prohibit Plaintiff from mentioning or commenting to the jury about any other case in which counsel for defendant may or may not have been involved. Such information is not probative of any material fact and would influence the jury, thus unfairly prejudicing defendant . TEX. R. CIV. EVID. 401, 402. AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Liability or Non Liability for Judgment Defendant move to exclude any statement that the named defendant may or may not have to pay any resulting judgment. AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Attorneys’ Fees Defendantmove to exclude any statement t hat any party will have to pay attorneys’ fees, or any references to the amount or basis of any attorney’s fees, unless a claim for recovery of attorneys’ fees in the case will be submitted to the jury. AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Criminal Offenses Defendant move to exclude any statement that any party or witness has been suspected of, arrested for, charged with or convicted of any criminal offense unless there is evidence of a specific conviction that the Court has previously ruled is shown to be specifically relevant to the matters in controversy. AGREED: SUSTAINED: ________ OVERRULED: _________ EFENDANT RELIMINARY OTION IMINE AGE Settlement Negotiations or Mediation Defendant move to exclude reference to any negotiations, offers or demands with respect to any attempted settlement or mediation. VID 408; Ford Motor Co. v. Leggat S.W.2d 643, 649 (Tex. 1995). AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Discovery Disputes Defendant move to exclude any reference to discovery disputes that arose during the preparation of the case for trial, any position taken by any party with respect thereto, or to the Court’s rulings thereon. Plaintiff s counsel may not inform the jury in any manner that defendant or efendant counsel has objected to certain discovery attempts by Plaintiff because counsel may not argue facts to the jury that have been excluded from evidence, either directly or indirectly, by suggesting that facts could have been proved but for the objections by the opposing party. VID 401, 403; Spratley v. Ziegenfuss, 2011 Tex. Dist. LEXIS 1827, at *4 (95th Dist. Ct., Dallas Count, Tex. Jan 20, 2015) (granting motion in limine to exclude “[a]ny reference to discovery disputes that arose during the preparation of the case for trial, any position taken by any party with respect thereto, or to the Court’s rulings thereon.”). AGREED: ________ SUSTAINED: ________ OVERRULED: _________ No Demonstrative Aides in Voir DireNot Pre Marked or Pre Admitted Defendant move to prohibit Plaintiff s counsel from utilizing demonstrative evidence relating to this case during the voir dire portion of this trial that has not been pre marked or pre admitted because utilizing such is inconsistent with voir dire principles and further may display potential evidence that the court has not ruled on its admissibility. Further, the relevance, if any, is substantially outweighed by the danger of unfair prejudice in misleading the jur VID EFENDANT RELIMINARY OTION IMINE AGE 401 & 403. AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Damages During Voir Dire Mentioning, suggesting, inquiring about or attempting to ask potential jurors whether they would be willing to award damages to Plaintiff in millions. This sort of question is not a proper commitment question. Questions that are not intended to discover bias against the law or prejudice for or against the defendant, but rather seek only to determine how jurors would respond to the anticipated evidence and commit them to a specific verdict based on the evidence is not proper.” Hyundai Motor Co. v. Vasquez, 189 S.W. 3d 743. 753 (Tex. 2006). In a recent case, K.J. and V.J. v. USA Water Polo. 383 S.W.3d 593 (Tex. App. Houston [14 Dist.] 2012), the Fourteenth District Court of Appeals, specifically held that these sorts of commitment questions at voir dire are improper, reasoning that when the law does not require a jury to award a statutory specified amount of damages if liability is found, then these commitment type questions are improper. See also generallyGreenman v. City of Fort Worth308 S.W.2d 553 (Tex. Civ. App. 1957). AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Hearsay Medical Opinions Defendant move to exclude any hearsay statement offered for the truth of the statement by an allegedly injured person concerning any diagnosis or medical opinions communicated to such person by a physicianor other health care provider. AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Demonstrative Aides, Photographs and Visual AidsNot Pre Marked or Pre Admitted Defendant move to prohibit Plaintiff from showing any demonstrative aides, documents, photographs or visual aids to the jury, or displaying same in such manner that the jury or any EFENDANT RELIMINARY OTION IMINE AGE member thereof can see the same, unless and until the same has been tendered to opposing counsel, and has been admitted in evidence or approved for admission or use before the jury, either by the Court or by all counsel. AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Requests for Stipulations Defendant move to prohibit any request or demand in the presence of the jury for a stipulation to any fact, or that counsel admit or deny any fact. The only purpose for such request would be to harass or embarrass defendant s counsel before the jury and if necessary could have been made prior to trial or can be made outside the presence of the jury. AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Requests for Files Defendant move to prohibit any request or demand in the presence of the jury that opposing counsel produce any document or thing, or that opposing counsel or any party or witness exhibit, turn over or allow examination of the contents of any file or briefcase (except that a party may demand to see a document used by a witness on the stand to refresh his/her recollection, or that a witness testifies that he/she used previously to refresh his/her recollection). Additionally, Plaintiff s counsel may not request for the production of items during the course of this trial from the file of defendant s counsel, as such requests are improper and if such items were desired, then they should have been sought during the discovery process and to allow this type of remark during the course of the trial would place defendant in a position before the jury of appearing to have something to hide. 193.1, 193.5, & 196. AGREED: ________ SUSTAINED: ________ OVERRULED: _________ EFENDANT RELIMINARY OTION IMINE AGE Discrimination Defendant move to prohibit any argument that a party should be treated more or less favorably because of such party’s race, gender, national origin, nationality, religion, marital status, occupation, or financial status. AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Social Cost of Award Defendant move to prohibit any argument or suggestion that an award of damages will affect insurance premiums, the price of any goods or services, or the level of taxation. AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Hardship or Privation Defendant move to exclude any argument or suggestion that a failure to award damages will cause Plaintiff privation or financial hardship. Such a fact is irrelevant and immaterial to the issues involved and will cause extreme prejudice to the jury and incite them to render a verdict not on the facts but on emotionWalgreen Texas Co v. Shivers, 154 S.W. 2d 625 (Tex. 1941); First Nat l Bank of Marshall v. Beavers, 619 S.W. 2d 288 (Tex. App. Texarkana 1981, writ ref’ n.r.e.); Mortg of Am v. McCord, 466 S.W. 2d 868, 872 (Tex. App. ston [14th Dist] 1971, writ ref’d n.r.e.). AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Plaintiff s Lack of Insurance Defendant move to prohibit mentioning or referencing that Plaintiff not have insurance, or sufficient insurance, to compensate themfor any injuries and/or damages. AGREED: ________ SUSTAINED: ________ OVERRULED: _________ EFENDANT RELIMINARY OTION IMINE AGE Golden Rule/ Trading Places / Personal, Family or Community Safety Arguments Mentioning or referencing any statement calling upon jurors to treat the Plaintiff as they would want to be treated as violative of the prohibition against evoking the “Golden Rule.” This would include statements such as asking the jury to. “think about the person you love most in your whole life do you understand that you would be asking twelve people in a jury to set a value on your loved one's lifeor health ?” Additionally, suggesting or asking the jurors to place themselves in Plaintiff s position or mentioning or referencing that the jury has the ability and/or responsibility o further “personal safety.” family safety” or “community safety” by rendering a verdict that will reduce or eliminate Defendant s alleged dangerous conduct. Any such references are akin to “Golden Rule” arguments, improperly appealing to passions and sympathies. See TEX. R. Evid. 403; Lone Star Ford, Inc. v. Carter, 848 S.W.2d 850 (Tex. App. Houston [14th Dist.] 1993. n.w.h.): Gulf, Colo. & Santa Fe Ry. Co. v. Hampton, 358 S.W.2d 690 (Tex. Civ. App. Eastland 1962. writ ref'd n.r.e.). AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Improper Damage Model Any statement or argument with respect to a unit of time in which that unit of time is broken into smaller parts of weeks, days or hours and multiplied by a dollar amount. Additionally, any statement or argument attempting to reference facts not in evidence such as how much a celebrity makes, how much an athlete makes in salary or endorsement deals, the price of a piece of chattel i.e. the Mona Lisa), or similar type reference. This type of evidence or testimony is clearly not permissible and would tend to produce an excessive damage verdict. See Westboro v. General Tire & Rubber Co., 754 F.2d 1233 (5th Cir. 1985). AGREED: ________ SUSTAINED: ________ OVERRULED: _________ EFENDANT RELIMINARY OTION IMINE AGE Counsel’s Opinion of Credibility Defendant move to exclude any expression of counsel’s personal opinion regarding the credibility of any witness. AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Witness Opinion of Credibility Without Foundation Defendant move the Court preclude any testimony by any witnesses, both lay and expert, as to the credibility of any witnesses, for the reason that it is not competent evidence, is irrelevant, and is prejudicial. In re G.M.P, 909 S.W.2d 198, 206 (Tex App. Houston [14th Dist.] 1995, no writ) ( n expert witness cannot be an expert on credibility.); VID 701 & AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Effect of Answers to Jury Questions Defendant move to prohibit any argument that any finding or failure to find in response to a particular jury question will or will not result in a judgment favorable to any party. This provision does not bar argument by counsel that a particular jury question should be answered in a particular way. AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Subsequent Remedial Measures Defendantmove to exclude any statements made or evidence presented, or any reference to meetings, agreements or actions taken by defendant after the incident made the basis of Plaintiff lawsuit if any, because these matters are not admissible pursuant to VID 407. Defendant would also point out to the Court, that there appears to be no purpose, other than an attempt to sho efendant s liability for the incident in question, for which evidence of any EFENDANT RELIMINARY OTION IMINE AGE subsequent remedial measure could be admitted. If there is such other purpose, movant asks the Court permit the evidence only for that limited purpose and to so instruct the jury. VID 407; E.V.R. II Assocs. v. Brundige, 813 S.W.2d 552, 556 (Tex.App.Dallas 1991, no writ). AGREED: ________ SUSTAINED: ________ OVER RULED: _________ No Testimony of Improperly or Non Designated Experts Defendant move to exclude testimony of any expert witness or other person purporting to have knowledge of any matter involved in this case and whose identity was not disclosed during the discovery phase of the litigation or timely made in accordance with the Court’s docket control order for designating experts, because such evidence is barred under the provisions of Civil Procedure Rule 193.6. ovant asked Plaintiff, by requests for disclosure, to identify all expert witnesses and other persons having knowledge of facts who would be called as witnesses on h behalf during the trial. By responses to these requests, specific names were disclosed. Movant asks the Court to prohibit the Plaintiff from calling any other person to testify during trial. Furthermore, defendant move to exclude testimony of any expert witness or other person purporting to have knowledge of any matter involved in this case whom was designated in Plaintiff’s requests for disclosure, but Plaintiff did not make available for deposition prior to trial. To allow expert witnesses to give opinions testimony that has not met the required threshold for admissibility would ambush, surprise and be unfair to defendant. Finally, Plaintiff may not elicit expert testimony from any of his fact witnesses unless they have been properly designated as experts as required by the Texas Rules of Civil Procedure. To allow fact witnesses to give expert opinion testimony would ambush, surprise and be unfair to defendant. Baylor Med Plaza S cs v. Kidd, 834 S.W.2d 69, 74 (Tex. App. exarkana 1992, writ denied) (esignation of EFENDANT RELIMINARY OTION IMINE AGE witness as a fact witness does not establish good cause to permit the witness to testify as an expert when the witness is not listed as an expert witness during discovery) AGREED: ________ SUSTAINED: ________ OVERRULED: _________ No Reference to Motion in Limine Defendant move to exclude any reference to the fact this Motion has been filed, that any ruling has been made by the Court in response to this Motion, that defendant have moved to prohibit proof, or that the Court has excluded proof of any particular matter. Burdick v. York Oil , 364 S.W. 2d 766 (Tex. App.San Antonio, 1963, writ ref’ d n.r.e.); Gen Motors Corp. v. Bryant, 582 S.W. 2d 521 (Tex.App. ston [1st Dist. ] 1979, writ ref’d n.r.e.). AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Side Bar Defendant move to prohibit any questions or testimony or “side bar” remarks made by Plaintiff counsel or witnesses regarding defendant legal representation or the number of attorneys representing any efendant. Gonzalez v. Tex Emp rs Ins Ass , 419 S.W. 2d 203, 212 (Tex.App. ustin 1967, no writ). AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Counsel’s Personal Beliefs Defendant move to prohibit Plaintiff s counsel from mentioning or stating to the jury his/her personal belief concerning the justice of Plaintiff case and/or Plaintiff s right to recover damages as opposed to stating what the facts will show or arguing the facts admitted into evidence. Wallace v. Liberty Mut Ins , 413 S.W. 2d 787, 790 (Tex App. ouston 1967, writ ref’ n.r.e.). AGREED: ________ SUSTAINED: ________ OVERRULED: _________ EFENDANT RELIMINARY OTION IMINE AGE “Hired Gun” Type Statements or Other Derogating Remarks Concerning Defendant’s Counsel or Experts Any statements by Plaintiff's counsel characterizing Defendant's counsel or experts as “hired guns,” “a traveling road show” or “circus,” “a dog and pony show,” or other similar derogating remarks. These statements are untrue and would be highly prejudicial to Defendant. See e.g. Tennison v. Letto, 469 S.W.2d 287, 291 (Tex. App. Austin 1971, writ ref'd n.r.e.). AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Expert Medical Testimony Required for Causation Defendant move that Plaintiff and Plaintiff s witnesses not be permitted to suggest, discuss, or render an opinion as to the causation or correlation to this accident of any symptoms reasonably requiring medical testimony to establish any correlation without first establishing that causation or correlation by qualified medical witness and after properly predicating the opinion on reasonable medical probability. VID AGREED: ________ SUSTAINED: ________ OVERR ULED: _________ Future Medical Care Testimony Defendant move to prohibit Plaintiff and Plaintiff s witnesses from suggesting mentioning or discussing the need for future medical care or future medical expenses without first establishing the proper predication and through a qualified medical witness that based on reasonable medical probability those expenses and care are necessary for the treatment of the injuries sustained and the accident in question and that those expenses are reasonable. VID05. AGREED: ________ SUSTAINED: ________ OVERRULED: _________ EFENDANT RELIMINARY OTION IMINE AGE Improper Medical Opinions Defendant move to prohibit Plaintiff Plaintiff witnesses and Plaintiff s attorney from mentioning, suggesting, or discussing any physical, medical, or mental condition reasonably requiring medical testimony to establish correlation between the injuries sustained in the accident in question until causation is established by proper predication and a qualified medical witness. VID AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Improper Hypotheticals Any hypothetical question that asks a witness to assume facts that are not in evidence. Such questions are merely a vehicle for testimony by the lawyer asking the questions and are improper. Tex. R. Evid. 702, 703 & 705. Clark Equipment Co. v. Pitner, 923 S.W.2d 117, 123 (Tex. App. Houston [14th Dist.] 1996, writ denied) (“Hypothetical questions should be restricted to facts in evidence.”); Crawford v. Deets, 828 S.W.2d 795, 799 (Tex. App. Fort Worth 1992, writ denied). AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Legal Conclusions by Expertsor any Other Witnesses Any testimony by an expert that constitutes an opinion on a pure question of law. Tex. R. Evid. 702. GTE Southwest v. Bruce, 998 S.W.2d 605, 620 (Tex. 1999)(expert opinion that defendant's conduct was extreme and outrageous held inadmissible); Lyondell Petrochemical Co. v. Fluor Daniel Inc., 888 S.W.2d 547, 554 55 (Tex. App. Houston [1st Dist.] 1994, writ denied). AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Statements of Defendant s Position Defendant moves to prohibit ny attempted anticipation by the attorneys for the Plaintiff of what a Defendant s position will be on any matter, such as “Defendantwill say this…” or “ the EFENDANT RELIMINARY OTION IMINE AGE railroad’sposition is ....” See TEX. R. EVID. 402,403;see e.g. Barn es v. Whittington S.W.2d 493, 495 (Tex. 1988, orig. proceeding)(statements of counsel are not evidence). AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Financial Status of Defendant Defendant move to exclude any evidence of or reference to the financial status of any efendant, its officers and/or directors, or any of their related entities. This would include any reference to gross and net income, profit, and net worth, because such evidence is not relevant to any dispute in this litigation. VID401 & 402. AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Evidence or Testimony Relating to Plaintiff’s Claim for Lost Wages and/or Lost Earning Capacity Defendant move to exclude any evidence of or reference to Plaintiff s claim for lost wages and/or lost earning capacity. Plaintiff has not produced any evidence relating to her claim for lost wages. Similarly, Plaintiffhas not presented any evidence as a basis for her claim for lost earning capacity or even designated any expert to opine on her claim for lost wages and lost earning capacityPast lost wages or earnings are the actual loss of income due to an inability to perform a specific job a party held form the time of injury to the date of the trial. Dawson v. Briggs, 107 S.W.3d 739, 749 50 (Tex.App.Fort Worth 2003, no pet.); Strauss v. Cont’l Airlines, Inc., 67 S.w.3d 428, 435 (Tex.App.Houston [14 ] 2002, no pet.). Proof of lost wages requires evidence of plaintiff’s actual earnings before and after injury. City of San Antonio v. Vela, 762 S.W.2d 314, 319 (Tex.App.San Antonio 1988, writ denied). Plaintiff has not produced any evidence for past loss wages. Loss of future earning capacity is a plaintiff’s diminished capacity to earn a living after the trial. Bituminous Cas. Corp. v. Cleveland, 223 S.W.3d 485, 491 (Tex. App.Amarillo 2006, no EFENDANT RELIMINARY OTION IMINE AGE pet.). To support an award of damages for loss of future earning capacity, the plaintiff must introduce evidence sufficient to allow the jury to reasonably measure h earning capacity in monetary terms. Bonney v. San Antonio Transit Co., 325 S.W.2d 117, 121 (Tex. 1959); Big Bird Tree Servs. v. Gallegos, 365 S.W.3d 173, 178 (Tex. ADallas 2012, pet. denied). Loss of earning capacity that a Plaintiff will suffer in the future is somewhat uncertain and thus is left to the jury’s sound judgment and discretion. Border Apparel East, Inc. v. Guadian, 868 S.W.2d 894, 897 (Tex. App.El Paso 1993, no writ). However, w hile the amount of such damages is left to the sound discretion and judgment of the jury, the jury should not be left to mere conjecture. [T]he naked and unsupported opinion or conclusion of a witness does not constitute evidence of probative force and will not support a jury finding even when admitted without objection.” Dallas Ry. & Terminal Co. v. Gossett, 156 Tex. 252, 256, 294 S.W.2d 377, 380 (1956). Furthermore, assuming Plaintiff had sufficient evidence, which she didn’t, evidence to prove loss of earnings or earning capacity “must be presented in the form of a net loss after reduction for income tax payments or unpaid tax liability pursuant to any federal income tax law.” See C.P.RC. §18.091(a). It also requires the jury be informed on what elements of its award are subject to federal income tax. See C.P.RC. §18.091(b). Therein, any such evidence or testimony pertaining to Plaintiff claim for lost wages and/or lost earning capacity is not supported by the evidence and lacks a proper foundatio VID As Plaintiff has not provided any evidence to substantiate her claim for lost wages and/or lost earning capacity, any such evidence and/or testimony related to Plaintiff s lost wages and/or lost earning capacity is not relevantand s hould be excluded VID AGREED: ________ SUSTAINED: ________ OVERRULED: _________ EFENDANT RELIMINARY OTION IMINE AGE Causation Medical Testimony Defendant move to prohibit Plaintiff and Plaintiff s witnesses not be permitted to suggest, discuss, or render opinion as to the causation or correlation to this accident of any aggravation of a pre existing symptom reasonably requiring medical testimony to establish causation or correlation without first establishing that causation or correlation by a qualified medical witness and after properly predicating the opinion on reasonable medical probability. Similarly, Defendant moves to prohibit Plaintiff and Plaintiff’s witnesses not be permitted to suggest, discuss or render opinions as to the causation or correlation of any subsequent accident or injury being related to or caused by the accident at issue. VID AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Other Litigation fendant move to exclude any reference or inference that d fendant had been or is involved in any other litigation generally including but not limited to settlement of any other claim, the amount of any settlement, any jury verdict, any verdict for punitive damages, and/or any jury finding that defendant has been found negligent or otherwise liable to pay damages. Such collateral matters are not related to any material issue in this lawsuit and would be inquired into solely for the purpose of prejudicing the jury with collateral matters, the merits of which could not possibly be litigated in this suit, and whose relevance would be outweighed by the prejudicial valu of such evidence on defendant s defense. VID 03; see St. Paul Fire & Marine Ins. Co. v. Murphree, 357 S.W.2d 744, 747 48 (Tex. 1962); Wright v. Excalibur Ins. Co., 486 S.W.2d 35 (Tex. App. allas 1972, no writ). AGREED: ________ SUSTAINED: ________ OVERRULED: _________ EFENDANT RELIMINARY OTION IMINE AGE Rules, Regulations, and Standards Defendant move to exclude any evidence of any rules, regulations, or standards applicable to any organization or promulgated by any organization without there first being a showing in the evidence that such matters would be applicable to the facts and circumstances involved in this case. AGREED: ________ SUSTAINED: OVERRULED: _________ Prevention of Future Incidents Defendant move to prohibit any comment, testimony, inference, or other evidence to the effect that what happened to Plaintiff could happen to another in the future. Such evidence is totally irrelevant to any issue in this case. Alternatively, even if such inquiry were relevant, which it is not, the probative value of such evidence is substantially outweighed by the danger of prejudice, confusion of the issues, and misleading the jury all of which would prejudice efendant. TEX. R. EVID. 401 AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Defendant s Payment of Medical Bills Defendant move to exclude any reference that any efendant refused to pay for any doctor appointment, medical treatment or any other medical care of the Plaintiff. AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Sympathy Testimony Defendant move to prohibit Plaintiff and her attorney from offering the testimony of any family member or other witness whose testimony is intended only to evoke sympathy from the jury or constitutes improper character evidence. VID401 & 402. AGREED: ________ SUSTAINED: ________ OVERRULED: _________ EFENDANT RELIMINARY OTION IMINE AGE Testimony of Absent Witness Any reference to the probable testimony of a witness who is absent, unavailable or not called to testify in this case. Tex. R. Evid. 802; Magaline v. J. V Harrison Truck Lines, Inc., 446 S.W.2d 920, 925 (Tex. App.Houston [14th Dist.] 1969, writ ref'd n.r .e.)(“Counsel may not undertake to tell the jury what testimony the witness would give. That would be clearly improper as getting unsworn testimony before the jury.”) AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Comment on Failure to Calla Witness Any reference to Defendant's failure to call a witness or conclusion that such failure raises a presumption that the testimony, if produced, would be unfavorable, unless it is properly shown that the absent witness was under the control of, or standing in some relation to any Defendant, and unless the absent witness has obtained or was clearly in a position to obtain, material information on the point in issue. Johnson v. Smith, 4 46 S.W.2d 357, 359 (Tex. App. San Antonio 1969, writ ref'd n.r.e. AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Evidence of Plaintiff s Unadjusted Medical Expenses To the extent that Plaintiff seek to introduce evidence of past medical expenses, Plaintiff is only allowed to recover those medical expenses actually paid and incurred. Tex. Civ. Prac. Rem. Code § 41.0105; Haygood v. Garza de Escabedo, 356 S.W.3d 390, 396 (Tex. 2011). Similarly, Plaintiff is only entitled to present evidence of the medical expenses actually paid and incurred See Haygood, 356 S.W.3d at 398. To the extent that Plaintiff attempt to present evidence of unadjusted medical expenses, this evidence is inadmissible as it is not relevant. Tex. R. Evid. 402. As only the actual paid and incurred medical expenses are recoverable, the EFENDANT RELIMINARY OTION IMINE AGE admissibility of evidence demonstrating the actually paid and incurred medical expenses comports with the intent and express language of § 41.0105. see also Tex. Civ. Prac. & Rem. Code § The cost that the plaintiff was initially billed for is irrelevant and should be excluded from the purview of the fact finder. Haygood, 356 S.W.3d at 398; see generally Tex. Civ. Prac. & Rem. Code § 41.0105; see Judge Randy Wilson, Paid or Incurred: An Engima Shrouded in a Puzzle, 71 Tex. B.J. 812, 815 (2008). Thus, Plaintiff is only allowed to submit evidence that shows Plaintiff s adjusted medical expenses. AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Questioning Whether Witness “Pass or Failed” Certain Training or Licensure Mentioning, suggesting, inquiring about or attempting to introduce evidence of whether witness passed or failed certain trainingor licensure that is not required by law. Passing or failing such training is not a legal standard. Such evidence is irrelevant and thus, inadmissible.Tex. R. Evid. 401 AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Arguments, Lay Witness Opinion, and Evidence Relating to Industry Standards “Industry standards” or “applicable standards of care” are not within the general or personal knowledge of a lay witness, and neither are “applicable training requirements”. Further, a single company’s standards and protocols are not representative of the industry as a whole, and are thus insufficient evidence to establish an applicable standard of care for an industry as a whole. See FFE Transp. Services, Inc. v. Fulgham, 154 S.W.3d 84 (Tex. 2004). Only a qualified expert witness can testify as to industry standards, guidelines, training requirements, safety procedures, standards of care, etc., and any attempt by opposing counsel to introduce such standards without a qualified expert witness’s testimony should be excluded as a matter of law. Id.; See also Greater EFENDANT RELIMINARY OTION IMINE AGE San Antonio Transp. Co. v. Polito, No. 04 00330 CV, 2011 WL 2893080, at *4 (Tex. App. San Antonio July 20, 2011, pet. denied). Any attempt to introduce such evidence without the use of a qualified expert’s testimony should not be entertained by the Court because it has the strong potential to prejudice the jury into a larger award based on emotional factors rather than an award based solely on the facts presented. Such “Standard of Care” arguments, evidence, and lay witness opinion testimony should be excluded as such represents an attempt by Plaintiff’s counsel to circumvent the well established rules of this Court against the use of such improper and unduly prejudicial trial tactics. Such would serve only to mischaracterize the Defendant and the facts and confuse the jury with satellite issues not relevant to this case violating Texas Rule of Evidence AGREED: ________ SUSTAINED: ________ OVERRULED: ________ Defendant s Policies and Procedures Evidence of or references to Defendant internal policies or procedures and argument that such policies or procedures establish the standard of care or are evidence of Defendant's negligence. All such evidence and arguments should be excluded. First, the policies have no bearing on whether Defendant (or anyone else) was negligent on the day of the accident. Additionally, the Texas Supreme Court has refused to establish a standard of care based upon internal policies and a defendant's failure to comply with those policies. FFE Transp. Services v. Fulgham, 154 S. W.3d 84, 92 (Tex. 2004) (defendant's inspection schedule was not evidence of the standard of care); Owens v. Comerica Bank, 229 S.W.3d 544, 547 (Tex. App. Dallas 2007, no pet.)(same). AGREED: ________ SUSTAINED: ________ OVERRULED: __ EFENDANT RELIMINARY OTION IMINE AGE Self Imposed Policies “Safety First” Mentioning, suggesting, inquiring about or attempting to introduce evidence of self imposed policies, such as “safety first” standard. Texas courts have recognized that a company's self imposed policies do not change the legally required standard of care. Fenley v. Hospice in the Pines 4 S.W.3d 476, 481 (Tex. App. Beaumont 1999, pet. denied). Plaintiff s assertions concerning any internal, self imposed policy or program cannot establish a legal duty or factor into the negligence determination. Such evidence is irrelevant and thus, inadmissible. Tex. R. Evid. AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Emotional Response Arguments or statements meant to evoke an emotional response from the jurors rather than a decision based on the facts of this case. Rule 269(e) requires attorneys to confine their arguments “strictly to the evidence and to the arguments of opposing counsel.” TEX. R. Civ. PROC. 269(e). Improper arguments that are intended to elicit an emotional response include statements that, by returning a verdict favorable to the plaintiff, jurors will “send Defendant a message,” “set a standard,” protect themselves from harm or compel the defendant to take action. See Missouri Kansas Texas R. Co. v. Hamilton, 314 S.W.2d 114, 119 20 (Tex. App.Dallas 1958, writ ref'd n.r.e.) Stafford v. Steward, 295 S.W.2d 665 (Tex. App. Eastland 1956, dism'd by agr.)(argument that, by returning a verdict for plaintiff jurors would protect their homes and their wives from harm, held “of such a prejudicial and inflammatory nature that it was reasonably calculated to cause and probably did cause the rendition of an improper verdict.”). Other improper arguments include statements about the location of a defendant's business, a party's motives in bringing or defending a lawsuit or the effect of a verdict on the local community. Prudential Fire Ins. Co. v. EFENDANT RELIMINARY OTION IMINE AGE United Gas Corp., 199 S.W.2d 767, 72 (Tex. 1946) (In a subrogation action brought by an insurer, the court held it improper for counsel to argue that the plaintiff was an “Oklahoma corporation coming down here … trying to recover off of your local concerns” and referring to an insurance company witness as “hunting out people to sue.”); Levermann v. Cartall, 393 S.W.2d 931 (Tex. App. San Antonio 1965, writ ref'd. n.r.e.) (Holding references to the impact on community's need for additional physicians by judgment in a medical malpractice action an improper appeal to prejudice). AGREED: ________ SUSTAINED: ________ OVERRULED: _________ Arguments, Evidence, or Testimony Relating to Plaintiff’s Use of the Reptile Theory Defendant moves this Court to prohibit Plaintiff s attorney from making any statement or argument encouraging the jury to decide this case based on the jurors’ community interest, including but not limited to excluding “Reptile Theory” arguments, testimony, and other evidence The Reptile Theory is a tactic utilized by plaintiff s counsel during trial to “elicit an emotional ‘fight or flight’ response from jurors,” persuading them to decide a case based on their instinctual desire to protect themselves and others, rather than the evidence admitted at trial. See generally David R. Kott, et al., Keep Reptile Theory Out of the Courtroom, 62 No. 9 DRIFTD 20, 20 (2020). This tactic is premised on the idea that the primitive portion of the human brain, which is “conditioned to pursue safety and survival” can be accessed and influenced by a series of questions, persuading jurors to make emotional decisions rather than those based on logic and the merits of the case. Id., at 21. It is quite clear that such conduct is improper, distasteful, and would present substantial prejudice against the defendant. As such, any arguments, testimony, or evidence presented by Plaintiff s counsel at trial including references to “personal safety,” “community safety,” “danger to the community, EFENDANT RELIMINARY OTION IMINE AGE “common safety,” generalized statements about “safety rules, guidelines, standards, precautions, etc.,” “common or industry safety standards, procedures and operating practices,” or “safe instrumentalities, operations, precautions, etc.” improperly urge the jury to render a large award in favor of the Plaintiff based on the jurors’ emotions and sense of self preservation, rather than the evidence admitted at trial. See Whitehead v. Food Max, 163 F.3d 265, 277 78 (5th Cir. 1998) (finding that counsel’s statements referencing facts not in evidence were highly prejudicial and served no purpose other than for the jury to render a large award) Additionally, any arguments, testimony or evidence presented by Plaintiff s counsel at trial, including generalized statements attempting to refer to or purport there are any applicable “safety rules, guidelines, standards, precautions, etc.,” “common or industry safety standards, procedures and operating practices,” or “safe instrumentalities, operations, precautions, etc.” in any way related to mowing operations generally or the mowing equipment at issue in this lawsuit that are not specifically tied to or based on an actual “statute, regulation, rule or order regulating equipment or conduct” adopted by the federal government, a local government, or a governmental agency or authority over the facts at issue in this lawsuit should be prohibited and excluded. RAC ODE §72.053 (Failure to Comply with Regulations or Standards)(defining “regulation or standard” to be a “statute, regulation, rule or order regulating equipment or conduct adopted or promulgated by the federal government, a state government, a local government, or a governmental agency or authority Such “Reptile Theory” arguments are substantially the same as the “conscience of the community” arguments the Fifth Circuit has condemned for their “potential of substantial injustice” and lack of “proper purpose” in trial. Westbrook v. Gen Tire & Rubber Co. 754 F.2d 39 (5th Cir. 1985) (noting the Court’s condemnation is not limited to arguments with EFENDANT RELIMINARY OTION IMINE AGE the specific words “community conscience but “it extends to all impassioned and prejudicial pleas intended to evoke a sense of community loyalty, duty, and expectation.”). They are also substantially similar to the “Golden Rule” arguments that consistently been found to be improper and prejudicial in Texas courts See e.g., World Wide Tire Co. v. Brown, 644 S.W.2d 144, 145 (Tex. App.Houston [14th Dist.] Dec. 9, 1982, writ denied). Such “Reptile Theory” arguments, evidence, and testimony should be excluded as such represents an attempt by Plaintiff s counsel to circumvent the