Preview
FILED
4/18/2023 4:44 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Cassandra Walker DEPUTY
CAUSE NO. DC-21-11880
CESAR ESPARZA, § 1N THE DISTRICT COURT
Plaintiff, g
V. g 191“ JUDICIAL DISTRICT
STEVE SKINNER and CP&Y INC., g
Defendants. g DALLAS COUNTY, TEXAS
DEFENDANTS’ MOTION IN LIMINE
TO THE HONORABLE JUDGE SLAUGHTER:
COME NOW Defendants Steve Skinner an CP&Y, Inc., defendants in the above-styled
and numbered cause, prior to announcing ready, and before any proceedings were had before a
jury or jury panel, and files this, their Motion in Limine/Motion to Exclude. Defendants reserve
the right to supplement, modify or withdraw any portion of this Motion in Limine, and would
respectfully show unto the Court the following:
I.
Defendants move that each of Plaintiff s attorneys, representatives and all Witnesses, be
instructed not to mention or bring before the jury, either directly or indirectly, upon voir dire,
reading of pleadings, statement of the case, interrogation of witnesses, arguments, objections
before the jury, or in other means or manner inform the jury, or bring to the jury’s attention, any
of the matters set forth in the paragraphs below, unless and until such matters have been first called
to the Court’s attention, out of the presence and/or hearing of the jury, and a favorable ruling
received as to the admissibility and relevant nature of such matters.
II.
Further, Defendants move that counsel for Plaintiff be specifically instructed to inform and
counsel all witnesses called by them to not volunteer, intelject, disclose, state or mention to the
jury any of the below enumerated matters, unless specifically questioned thereon after prior ruling
by the Court. Defendants move that the violation of any and/or all of these instructions would
constitute harm to Defendants’ cause, and would deprive Defendants of a fair and impartial trial.
III.
The matters set forth in Exhibit “A” attached hereto and incorporated herein by reference,
would not be admissible evidence for any purpose because they have no rational relationship to
any probable or controlling fact issue in dispute nor do they have a tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.
IV.
Permitting interrogation of witnesses, comments to jurors, or prospective jurors, or offers
of evidence concerning any of the matters set forth in Exhibit “A” would prejudice the jury and
sustaining objections to such questions, statements of evidence introduced by counsel or witnesses
will not prevent prejudice, but will reinforce the development of questionable evidence.
V.
Further, the probative value of the matters set forth in Exhibit “A” is substantially
outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury and
as such, should not be admissible for any purpose in the cause and to permit the mentioning of
such matters would prejudice the jury even with sustaining any objection to such matters.
DEFENDANTS’ MOTION IN LIMINE PAGE 2
WHEREFORE, PREMISES CONSIDERED, Defendants requests this Motion in
Limine/Motion to Exclude be granted and an appropriate order be signed and entered by the Court
consistent with this Motion.
Respectfully Submitted,
MILLER KNAUFF LAW FIRM
/s/ Clark S. Butler
MICHAEL A. MILLER
State Bar No. 14100650
mmz’ller@mklawgc. com
CLARK S. BUTLER
State Bar No. 00793437
cbuz‘lerngklawgc. com
Three Forest Plaza
12221 Merit Dr., Suite 1210
Dallas, Texas 75251
(469) 916-2552
(469) 916-2555 Facsimile
COUNSEL FOR DEFENDANTS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been forwarded
to all counsel of record in accordance with the Texas Rules of Civil Procedure this 18th day of
April, 2023.
/s/ Clark S. Butler
CLARK S. BUTLER
DEFENDANTS’ MOTION IN LIMINE PAGE 3
EXHIBIT “A”
1.
Insurance Coverage
The fact that Defendants are covered by some form of liability insurance with respect to
the incident in question, and any mention or inference thereof, directly or indirectly, would be
extremely harmful and prejudicial to Defendant. Rosjas v. Vuocolo, 177 S.W.2d 962 (Tex. 1944);
Texas C0. v. Betterton, 88 S.W.2d 1039 (Tex. Comm’n App. 1936, opinion adopted); Page v.
Thomas, 71 S.W. 2d 1039 (Tex. Comm’n App. 1936, opinion adopted); TEX. R. EVID. 411.
Sustained: Denied:
2.
Connection with Insurance Industry
From inquiring of any member of the venire as to any connection with the insurance
industry, and in this connection, Defendants would point out to the Court that if opposing counsel
is sincerely interested in determining whether there is any such connection for purposes of
exercising jury strikes, he can do so by asking individual jurors their occupation, past occupations,
of those in their household, which will provide relevant information. Johnson v. Reed,
and that
464 S.W.2d 689 (Tex. Civ. App—Dallas 1971, writ ref’d, n.r.e.); A. J. Miller Trucking Co. v.
Wood, 474 S.W.2d 763 (Tex. Civ. App—Tyler 1971, writ ref’d, n.r.e.); Brockett v. Tice, 445
S.W.2d 20 (Tex. Civ. App—Houston [lst Dist.] 1969, writ refd, n.r.e.); Green v. Ligon, 190
S.W.2d 742 (Tex. Civ. App—Fort Worth 1945, writ ref’ d, n.r.e.).
Sustained: Denied:
3.
Identity of Insurance Carrier
From inquiring about the identity of any insurance carrier for Defendants and whether they
have any feeling or belief that an adverse verdict against either Defendant would affect their
insurance rates. In Mendoza v. Varon, 563 S.W.2d 646 (Tex. Civ. App—Dallas 1978, writ ref’ d,
n.r.e.), the court refused to permit Plaintiff’ counsel to make this inquiry. Distinguishing the case
DEFENDANTS’ MOTION IN LIMINE PAGE 4
from Barton Plumbing C0. v. Johnson, 285 S.W.2d 780 (Tex. CiV. App—Galveston 1955, writ
ref’d) Where an expert medical witness was a stockholder and director of defendant’s automobile
liability insurance carrier, the court in Mendoza stated that:
In the present case, however, the witness had no direct interest in the outcome of the litigation, as
would an agent, owner or employee of the defendant’s insurer. While it is true that a large
judgment against any doctor will probably affect the insurance rates of other physicians, this
interest is remote, and any proof of bias based upon the interest is outweighed by the prejudice by
informing the jury of the defendant’s insurance protections.
563 S.W.2d at 649. Any inquiry by counsel about insurance would be highly prejudicial to both
Defendants. Id.; TEX. R. EVID. 403.
Sustained: Denied:
4.
Voir Dire
Any reference or comments made by counsel during voir dire or at any time during the trial
of this cause concerning the amount of time or money expended by Defendants in the defense of
this case, that the costs of defense of Defendants have been or will be paid by any liability
insurance, or concerning the amount of time or money the Plaintiff has expended in preparing this
case. TEX. R. EVID. 402, 403; Twin City Fire Ins. Co. v. Gibson, 488 S.W.2d 565, 580-81 (Tex.
Civ. App—Amarillo 1972, writ ref’ d n.r.e.).
Sustained: Denied:
5.
Answer Damage Issue “Regardless Who Pays”
From interrogating any member of the venire as to whether they would answer an issue on
damages in accordance with the evidence, regardless of who pays the damages or when they will
be paid, or whether they will ever be paid, or any similar version of such inquiry, for the reason
that the same improperly injects the implication of insurance and wealth into the suit, and
Defendants move the Court to instruct all other counsel not to make any such reference in jury
DEFENDANTS’ MOTION IN LIMINE PAGE 5
argument of similar import. Grijfith v. Casteel, 313 S.W.2d 149 (Tex. CiV. App—Houston 1958,
writ ref’d, n.r.e.); Hurley v. McMillan, 268 S.W.2d 229 (Tex. Civ. App—Galveston 1954, writ
ref’d, n.r.e.); Ulmer v. Mackey, 242 S.W.2d 679 (Tex. Civ. App—Fort Worth 1951, writ ref’d,
n.r.e).
Sustained: Denied:
6.
Other Opinions
That any individual called to testify concerning the facts surrounding his or her
investigation be precluded from giving an opinion as to the cause of said accident until the Court
has determined whether or not he or she has been designated properly and has had the opportunity
to determine whether said individual is qualified to give his opinion.
Sustained: Denied:
7.
Testimony of Absent Witness
Any reference, mention or statement to the jury of the probable testimony of a witness who
is absent, unavailable or not called to testify in this cause. Texas Power & Light C0. v. Walker,
559 S.W.2d 403 (Tex. Civ. App.—Texarkana 1977, no writ); Sanders v. St. Paul Fire & Marine
Ins. Co., 429 S.W.2d 516 (Tex. Civ. App.—Texarkana 1968, writ ref’d n.r.e.).
Sustained: Denied:
8.
Testimony of Witness Not Previously Identified
The offering of any expert testimony of any kind or character of any expert witness who
has not been properly and timely designated and identified. This includes any attempt to elicit any
testimony from any person not properly designated by Plaintiff. TEX. R. CIV. P. 195.6; Rainbo
Baking C0. v. Stafford, 787 S.W.2d 41, 41-42 (Tex. 1990); Morrow v. HEB, Inc., 714 S.W.2d
297 (Tex. 1986); Watson v.1sern, 782 S.W.2d 546, 555 (Tex. App—Beaumont 1989, writ denied)
DEFENDANTS’ MOTION IN LIMINE PAGE 6
(holding exclusion proper where Witness not identified in answers to interrogatories); see also
Collins v. Collins, 923 S.W.2d 569, 569 (Tex. 1996) (party has duty to amend and supplement
regarding expert’s mental impressions, opinions, and basis for them).
Sustained: Denied:
9.
Request for Stipulation in Jury Presence
Requesting either Defendant or Defendants’ attorneys to stipulate to either the admissibility
of any evidence or to stipulate to any facts or matters in front of the jury. TEX. R. EVID. 401-403.
Sustained: Denied:
10.
Attorneys’ Comments in Deposition
Any reading or reference to comments or statements, other than questions to witnesses,
contained in any deposition taken in this case because such constitutes unsworn testimony or
statements. TEX. R. EVID. 401-403, 801-802.
Sustained: Denied:
11.
Reference to Deposition Questions Not Answered
Any reference to questions asked in depositions to which the Court sustained objections,
since such matters are irrelevant, immaterial, or privileged, and it would be prejudicial to
Defendant to refer to such questions and objections in the presence of the jury. TEX. R. EVID. 401-
403.
Sustained: Denied:
12.
Jury Questions
Any statement by opposing counsel which is calculated to inform the jury of the effect of
DEFENDANTS’ MOTION IN LIMINE PAGE 7
its answer to jury questions. Magic Chef Inc. v. Sibley, 546 S.W.2d 851 (Tex. Civ. App.—San
Antonio 1977, writ ref’ d n.r.e.).
Sustained: Denied:
13.
Matters Not Supported by the Pleadings
Any testimony or evidence mentioning, referring to, arguing or offering evidence on any
matter and/or claims and/or causes of action not supported by the trial pleadings timely filed with
the court by Plaintiff in this case. Crain v. San Jacinta Savings Association, 781 S.W.2d 638, 639
(Tex. App—Houston [14th Dist.] 1989, writ granted); Erisman v. Thompson, 167 S.W.2d 731-33
(Tex. 1943).
Sustained: Denied:
14.
Ex Parte Statements of Witnesses
Any reference to any ex parte statement of any witness or alleged witness, other than an
adverse party or agent of any adverse party, unless and until such witness has been called to testify
and has given testimony conflicting with such ex parte statement. A deposition or a statement in
business or medical records which have been proved up as required by the Rules of Evidence is
not an ex parte statement.
Sustained: Denied:
15.
Photographs or Motion Pictures
Offering or attempting to offer any photographic evidence or showing any photographs to
the jury or jury panel not first shown, outside the jury’s presence, to be relevant to the cause of
action and properly authenticated.
Sustained: Denied:
16.
Photographs During Voir Dire
DEFENDANTS’ MOTION IN LIMINE PAGE 8
That Plaintiff, by and through his attorneys, will not display exhibits or photographs to the
jury during voir dire of the case. See TEX. R. CIV. P. 265; Ranger Ins. v. Rogers, 530 S.W.2d 162,
170 (Tex. App—Austin 1975, writ ref’d n.r.e).
Sustained: Denied:
17.
Facts Not in Evidence
Any questions, statements, remarks or inquiries which are predicated on statements which
assume facts not in evidence, or predicated on facts not in evidence, or are based on mixed
characterizations of the evidence, should be strictly curtailed for the reason that such questions are
designed to mislead and confuse the jury, have the effect of distorting the evidence and thereby
prevent the jury from properly evaluating the facts before them. Further, this type of question or
statement improperly allows counsel to interject his perception of and characterization of the facts
in evidence, and thus his opinion in argument, to the jury during the examination of the witness.
TEX. R. EVID. 401-403.
Sustained: Denied:
18.
Referring to Motion in Limine
Reference to the filing of this Motion in Limine or to any ruling by the Court in response
to this Motion, since such references are inherently prejudicial and suggest or infer that the movant
has sought to prohibit proof or that the Court has excluded proof of matters damaging to movant’s
case. Burdick v. York Oil C0., 364 S.W.2d 766 (Tex. Civ. App—San Antonio 1963, writ ref’ d,
n.r.e.); Texas Employers ’Ins. Ass ’n v. Phillips, 255 S.W.2d 364 (Tex. Civ. App. — Eastland 1953,
writ refd, n.r.e.); TEX. R. EVID. 401-403.
Sustained: Denied:
19.
Undisclosed Testimony and Documents
DEFENDANTS’ MOTION IN LIMINE PAGE 9
Seeking to introduce any testimony or documentary evidence of any nature which has not
been heretofore disclosed to Defendants’ attorneys prior to trial of this matter. See TEX. R. CIV. P.
195.6; see also Collins v. Collins, 923 S.W.2d 569, 569 (Tex. 1996); Alvarado v. Farah Mfg. C0.,
830 S.W.2d 911, 914 (Tex. 1942).
Sustained: Denied:
20.
Legal Concepts
Any question, statement or reference which would require a witness without proper
qualifications to draw a legal conclusion, including but not limited to, inquiries as to whether a
certain act or omission constitutes negligence and whether an act or omission was a proximate
cause of the accident for the reason that no lay witness is qualified to draw these legal conclusions
as doing so would invade the province of the jury. See Louder v. De Leon, 754 S.W.2d 148, 149
(Tex. 1988); Birchfield v. Texarkana Mem ’l Hosp, 747 S.W.2d 361, 365 (Tex. 1987); United Way
of San Antonio, Inc. v. Helping Hands Lifeline Found, Ina, 949 S.W.2d 707, 713 (Tex. App.—
San Antonio 1997, no writ); Puente v. A.S.I. Signs, 821 S.W.2d 400, 402 (Tex. App—Corpus
Christi 1991 , writ denied).
Sustained: Denied:
21.
Opinion Testimony
Offering any evidence or opinion testimony prior to the witness being first qualified as an
expert.
Sustained: Denied:
22.
Hypothetical Questions
That counsel refrain from asking a fact witness hypothetical questions or opinions.
DEFENDANTS’ MOTION IN LIMINE PAGE 10
Sustained: Denied:
23.
Personal Beliefs
Any mention or statement to the jury regarding the personal beliefs of Plaintiff‘s counsel
concerning the justice of Plaintiff’s case and/or Plaintiff’s right or entitlement to a recovery.
Wallace v. Liberty Mutual Insurance C0., 413 S.W.2d 787, 790 (Tex. Civ. App—Houston 1967,
writ ref’ d, n.r.e.).
Sustained: Denied:
24.
Jury Findings
Any mention or reference to the finding of fifty-one percent (51%) negligence on the part
of Plaintiff might bar recovery.
Sustained: Denied:
25.
Experts: Undisclosed Opinions
The offering of opinions at the trial of this cause by any of Plaintiffs expert witnesses
which have not heretofore been disclosed to Defendants in response to Defendant’s Requests for
Disclosure, or in depositions. See TEX. R. CIV. P. 195.6, 192.3 (party entitled to discover subject
matter on which expert will testify); see also Collins v. Collins, 923 S.W.2d 569, 569 (Tex. 1996)
(party has duty to amend and supplement deposition testimony of retained expert regarding mental
impressions, opinions, and basis for them); Rainbo Baking C0. v. Stafford, 787 S.W.2d 41, 41-42
(Tex. 1990); Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.l986); Watson v. Isern, 782 S.W.2d
546, 555 (Tex. App—Beaumont 1989, writ denied) (holding exclusion proper where witness not
identified in answers to interrogatories).
DEFENDANTS’ MOTION IN LIMINE PAGE 11
Sustained: Denied:
26.
Assumed Facts
Any fact witness or purported expert testimony of Plaintiff” s experts unless it is established
that the witness’s opinions have a basis in fact. “When an expert’s opinion is based on assumed
facts that vary materially from the actual, undisputed facts, the opinion is without probative value
and cannot support a verdict or judgment.” Burroughs Wellcome C0. v. Cifye, 907 S.W.2d 497,
499-500 (Tex. 1995), citing Schaefer v. Tex. Employers ’Ins. Ass ’n, 612 S.W.2d 199, 202-05 (Tex.
1980) (reviewing substance of medical expert’s testimony and holding testimony constituted no
evidence of causation, as it was based on assumptions, possibility, speculation, and surmise).
Thus, bare conclusions and assertions unsupported by facts of record, expert opinions based on
facts merely assumed and not proved, or facts different from those proved are no evidence to
support a finding of fact. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 420 (Tex. 1998)
(Hecht, J. dissenting), citing Schaefer, 612 S.W.2d at 202-05.
Sustained: Denied:
27.
Telling the Jury Someone Must be Blamed
Any argument or suggestion to the jury that someone must be found liable for the collision
at issue in this matter, as Plaintiff is required to prove a specific a specific act of negligence
proximately caused the collision and Plaintiff s alleged damages.
Sustained Overruled
28.
Purely Speculative or Conjectural Opinions
Any purported expert or opinion testimony of Plaintiff‘s expert witnesses unless the
Plaintiff establishes that the expert witnesses are qualified and that the expert’s testimony is
relevant to the issues in this case and is based upon reliable foundation. See Naegeli Transportation
DEFENDANTS’ MOTION IN LIMINE PAGE 12
v.GulfElectroquip. Inc., 853 S.W.2d 737 (Tex. App—Houston [14th district] 1993, writ denied).
This includes testimony regarding the value/cost of past and future medical services. S Gammill
v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (TeX. 1998).
Sustained Overruled
29.
Damage Testimony
Any testimony or evidence relating to elements of damages for which recovery has not
been properly pled.
Sustained Overruled
30.
Hearsay/Speculation
References and/or any evidence irrelevant to the case before the Court, is not supported by
the evidence and constitutes pure speculation and hearsay. See TEX. R. EVID. 401 and TEX. R.
EVID. 802. Assuming that any such evidence or reference has any probative value, any such value
would be outweighed by the danger of unfair prejudice to Defendant and the potential to confuse
or mislead the jury. See TEX. R. EVID. 403. Accordingly, the Court should exclude any such
evidence or reference.
Sustained Overruled
31.
Relationship Between Defendants and Defendants’ Attorneys
Any statement, reference, comment or question pertaining to the relationship between
Defendants and the attorneys representing Defendants in this cause of action, or to the relationship
between the attorneys representing Defendants and any insurance company, or any comment about
the fact that Defendants’ attorneys were retained by an insurance company.
DEFENDANTS’ MOTION IN LIMINE PAGE 13
Sustained: Denied:
32.
Relevance & Reliability
Any purported expert testimony of Plaintiffs’ experts unless it is established that the expert
witnesses are qualified and that the expert’s testimony is relevant to the issues in this case and is
based upon reliable foundation. See E.I. du Pont de Nemours and C0., Inc. v. Robinson, 923
S.W.2d 549 (Tex. 1995). Despite the use of “magic language” or “magic words” such as
reasonable probability, an expert’s testimony which is based on mere surmise or speculation is no
evidence. Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 712 (1997).
Sustained: Denied:
33.
Misconstruing Legal Standards
From misconstruing and/or expanding the legal standards of negligence to include issues
not required by the standards. By way of example, using terminology like something “as safe as
possible” or “safest possible” or suggesting the jury utilize a standard of community safety or
personal safety instead of the appropriate standard of care as such references are attempts to appeal
to the passions, sympathy, or prejudice of the jury. Use of such language and terminology and
misconstruing legal standards would be unfairly prejudicial to Defendants and has the potential to
confuse or mislead the jury. See TEX. R. EVID. 403. Thus, Defendants movs the Court to instruct
all other counsel not to make any such reference in jury argument of similar import.
Sustained: Denied:
34.
Golden Rule Arguments
From mentioning, referencing, commenting, or alluding, directly or indirectly, to a Golden
Rule-type argument or that jurors should put themselves in the shoes of or position of the Plaintiff
such references are attempts to appeal to the passions, sympathy, or prejudice of the jury. Use of
such language and arguments would be unfairly prejudicial to Defendants and has the potential to
DEFENDANTS’ MOTION IN LIMINE PAGE 14
confuse or mislead the jury. See TEX. R. EVID. 403. Thus, Defendants move the Court to instruct
all other counsel not to make any such reference in jury argument of similar import.
Sustained: Denied:
35.
Negligence Per Se
From mentioning, referencing, commenting, or alluding, directly or indirectly, that
Defendant Steve Skinner violated any provisions in the Texas Transportation Code. None of the
Texas Transportation Code cited in Plaintiffs current petition cannot serve as the basis of a
negligence per se claim as a matter of law. Use of such language and arguments would be unfairly
prejudicial to Defendants and has the potential to confuse or mislead the jury. See TEX. R. EVID.
403. Thus, Defendants move the Court to instruct all other counsel not to make any such reference
in jury argument of similar import.
Sustained: Denied:
36.
Property Damage Claims
From mentioning, referencing, commenting, or alluding, directly or indirectly, to any
claims for property damage. In order to recover for property damages, Plaintiff must have proof
that the repairs were necessary and the costs for them were reasonable in the form of expert
testimony. Plaintiff has not designated an expert on this topic. Use of such language and
arguments pertaining to any claim for property damage would be unfairly prejudicial to Defendants
and has the potential to confuse or mislead the jury. See TEX. R. EVID. 403. Thus, Defendants
move the Court to instruct all other counsel not to make any such reference in jury argument of
similar import.
Sustained: Denied:
DEFENDANTS’ MOTION IN LIMINE PAGE 15
37.
Causation Proof
From mentioning, referencing, commenting, or alluding, directly or indirectly, to any
medical condition of Plaintiff Without proper proof that said medical condition was proximately
caused by the subject incident. Such proof must be provided by expert testimony. Use of such
language and arguments would be unfairly prejudicial to Defendants and has the potential to
confuse or mislead the jury. See TEX. R. EVID. 403. Thus, Defendants move the Court to instruct
all other counsel not to make any such reference in jury argument of similar import.
Sustained: Denied:
SIGNED this day of , 2023.
HON. GENA SLAUGHTER
JUDGE PRESIDING
DEFENDANTS’ MOTION IN LIMINE PAGE 16
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
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Clark Butler on behalf of Michael Miller
Bar No. 14100650
cbutler@mklawpc.com
Envelope ID: 74779223
Filing Code Description: Exhibit List
Filing Description:
Status as of 4/19/2023 2:52 PM CST
Associated Case Party: CESAR ESPARZA
Name BarNumber Email TimestampSubmitted Status
Kristina N.Kastl kkastl@kastllaw.com 4/18/2023 4:44:51 PM SENT
Sandra Gomez sgomez@kastllaw.com 4/18/2023 4:44:51 PM SENT
Kristina N.Kastl eservice@kastllaw.com 4/18/2023 4:44:51 PM SENT
Sorana Ban sban@kastllaw.com 4/18/2023 4:44:51 PM SENT
Associated Case Party: CP&Y, INC.
Name BarNumber Email TimestampSubmitted Status
Michael Miller mmiller@mklawpc.com 4/18/2023 4:44:51 PM SENT
Clark Butler cbutler@mk|awpc.com 4/18/2023 4:44:51 PM SENT
Britanie Cruze bcruze@mk|awpc.com 4/18/2023 4:44:51 PM SENT
Roxana Esquivel resquivel@mklawpc.com 4/18/2023 4:44:51 PM SENT
Robyn Cruze rcruze@mklawpc.com 4/18/2023 4:44:51 PM ERROR
Case Contacts
Name BarNumber Email TimestampSubmitted Status
KRISTINA NKASTL eservice@kastllaw.com 4/18/2023 4:44:51 PM SENT
Preview
FILED 4/18/2023 4:44 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Cassandra Walker DEPUTY CAUSE NO. DC-21-11880 CESAR ESPARZA, § 1N THE DISTRICT COURT Plaintiff, g V. g 191“ JUDICIAL DISTRICT STEVE SKINNER and CP&Y INC., g Defendants. g DALLAS COUNTY, TEXAS DEFENDANTS’ MOTION IN LIMINE TO THE HONORABLE JUDGE SLAUGHTER: COME NOW Defendants Steve Skinner an CP&Y, Inc., defendants in the above-styled and numbered cause, prior to announcing ready, and before any proceedings were had before a jury or jury panel, and files this, their Motion in Limine/Motion to Exclude. Defendants reserve the right to supplement, modify or withdraw any portion of this Motion in Limine, and would respectfully show unto the Court the following: I. Defendants move that each of Plaintiff s attorneys, representatives and all Witnesses, be instructed not to mention or bring before the jury, either directly or indirectly, upon voir dire, reading of pleadings, statement of the case, interrogation of witnesses, arguments, objections before the jury, or in other means or manner inform the jury, or bring to the jury’s attention, any of the matters set forth in the paragraphs below, unless and until such matters have been first called to the Court’s attention, out of the presence and/or hearing of the jury, and a favorable ruling received as to the admissibility and relevant nature of such matters. II. Further, Defendants move that counsel for Plaintiff be specifically instructed to inform and counsel all witnesses called by them to not volunteer, intelject, disclose, state or mention to the jury any of the below enumerated matters, unless specifically questioned thereon after prior ruling by the Court. Defendants move that the violation of any and/or all of these instructions would constitute harm to Defendants’ cause, and would deprive Defendants of a fair and impartial trial. III. The matters set forth in Exhibit “A” attached hereto and incorporated herein by reference, would not be admissible evidence for any purpose because they have no rational relationship to any probable or controlling fact issue in dispute nor do they have a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. IV. Permitting interrogation of witnesses, comments to jurors, or prospective jurors, or offers of evidence concerning any of the matters set forth in Exhibit “A” would prejudice the jury and sustaining objections to such questions, statements of evidence introduced by counsel or witnesses will not prevent prejudice, but will reinforce the development of questionable evidence. V. Further, the probative value of the matters set forth in Exhibit “A” is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury and as such, should not be admissible for any purpose in the cause and to permit the mentioning of such matters would prejudice the jury even with sustaining any objection to such matters. DEFENDANTS’ MOTION IN LIMINE PAGE 2 WHEREFORE, PREMISES CONSIDERED, Defendants requests this Motion in Limine/Motion to Exclude be granted and an appropriate order be signed and entered by the Court consistent with this Motion. Respectfully Submitted, MILLER KNAUFF LAW FIRM /s/ Clark S. Butler MICHAEL A. MILLER State Bar No. 14100650 mmz’ller@mklawgc. com CLARK S. BUTLER State Bar No. 00793437 cbuz‘lerngklawgc. com Three Forest Plaza 12221 Merit Dr., Suite 1210 Dallas, Texas 75251 (469) 916-2552 (469) 916-2555 Facsimile COUNSEL FOR DEFENDANTS CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been forwarded to all counsel of record in accordance with the Texas Rules of Civil Procedure this 18th day of April, 2023. /s/ Clark S. Butler CLARK S. BUTLER DEFENDANTS’ MOTION IN LIMINE PAGE 3 EXHIBIT “A” 1. Insurance Coverage The fact that Defendants are covered by some form of liability insurance with respect to the incident in question, and any mention or inference thereof, directly or indirectly, would be extremely harmful and prejudicial to Defendant. Rosjas v. Vuocolo, 177 S.W.2d 962 (Tex. 1944); Texas C0. v. Betterton, 88 S.W.2d 1039 (Tex. Comm’n App. 1936, opinion adopted); Page v. Thomas, 71 S.W. 2d 1039 (Tex. Comm’n App. 1936, opinion adopted); TEX. R. EVID. 411. Sustained: Denied: 2. Connection with Insurance Industry From inquiring of any member of the venire as to any connection with the insurance industry, and in this connection, Defendants would point out to the Court that if opposing counsel is sincerely interested in determining whether there is any such connection for purposes of exercising jury strikes, he can do so by asking individual jurors their occupation, past occupations, of those in their household, which will provide relevant information. Johnson v. Reed, and that 464 S.W.2d 689 (Tex. Civ. App—Dallas 1971, writ ref’d, n.r.e.); A. J. Miller Trucking Co. v. Wood, 474 S.W.2d 763 (Tex. Civ. App—Tyler 1971, writ ref’d, n.r.e.); Brockett v. Tice, 445 S.W.2d 20 (Tex. Civ. App—Houston [lst Dist.] 1969, writ refd, n.r.e.); Green v. Ligon, 190 S.W.2d 742 (Tex. Civ. App—Fort Worth 1945, writ ref’ d, n.r.e.). Sustained: Denied: 3. Identity of Insurance Carrier From inquiring about the identity of any insurance carrier for Defendants and whether they have any feeling or belief that an adverse verdict against either Defendant would affect their insurance rates. In Mendoza v. Varon, 563 S.W.2d 646 (Tex. Civ. App—Dallas 1978, writ ref’ d, n.r.e.), the court refused to permit Plaintiff’ counsel to make this inquiry. Distinguishing the case DEFENDANTS’ MOTION IN LIMINE PAGE 4 from Barton Plumbing C0. v. Johnson, 285 S.W.2d 780 (Tex. CiV. App—Galveston 1955, writ ref’d) Where an expert medical witness was a stockholder and director of defendant’s automobile liability insurance carrier, the court in Mendoza stated that: In the present case, however, the witness had no direct interest in the outcome of the litigation, as would an agent, owner or employee of the defendant’s insurer. While it is true that a large judgment against any doctor will probably affect the insurance rates of other physicians, this interest is remote, and any proof of bias based upon the interest is outweighed by the prejudice by informing the jury of the defendant’s insurance protections. 563 S.W.2d at 649. Any inquiry by counsel about insurance would be highly prejudicial to both Defendants. Id.; TEX. R. EVID. 403. Sustained: Denied: 4. Voir Dire Any reference or comments made by counsel during voir dire or at any time during the trial of this cause concerning the amount of time or money expended by Defendants in the defense of this case, that the costs of defense of Defendants have been or will be paid by any liability insurance, or concerning the amount of time or money the Plaintiff has expended in preparing this case. TEX. R. EVID. 402, 403; Twin City Fire Ins. Co. v. Gibson, 488 S.W.2d 565, 580-81 (Tex. Civ. App—Amarillo 1972, writ ref’ d n.r.e.). Sustained: Denied: 5. Answer Damage Issue “Regardless Who Pays” From interrogating any member of the venire as to whether they would answer an issue on damages in accordance with the evidence, regardless of who pays the damages or when they will be paid, or whether they will ever be paid, or any similar version of such inquiry, for the reason that the same improperly injects the implication of insurance and wealth into the suit, and Defendants move the Court to instruct all other counsel not to make any such reference in jury DEFENDANTS’ MOTION IN LIMINE PAGE 5 argument of similar import. Grijfith v. Casteel, 313 S.W.2d 149 (Tex. CiV. App—Houston 1958, writ ref’d, n.r.e.); Hurley v. McMillan, 268 S.W.2d 229 (Tex. Civ. App—Galveston 1954, writ ref’d, n.r.e.); Ulmer v. Mackey, 242 S.W.2d 679 (Tex. Civ. App—Fort Worth 1951, writ ref’d, n.r.e). Sustained: Denied: 6. Other Opinions That any individual called to testify concerning the facts surrounding his or her investigation be precluded from giving an opinion as to the cause of said accident until the Court has determined whether or not he or she has been designated properly and has had the opportunity to determine whether said individual is qualified to give his opinion. Sustained: Denied: 7. Testimony of Absent Witness Any reference, mention or statement to the jury of the probable testimony of a witness who is absent, unavailable or not called to testify in this cause. Texas Power & Light C0. v. Walker, 559 S.W.2d 403 (Tex. Civ. App.—Texarkana 1977, no writ); Sanders v. St. Paul Fire & Marine Ins. Co., 429 S.W.2d 516 (Tex. Civ. App.—Texarkana 1968, writ ref’d n.r.e.). Sustained: Denied: 8. Testimony of Witness Not Previously Identified The offering of any expert testimony of any kind or character of any expert witness who has not been properly and timely designated and identified. This includes any attempt to elicit any testimony from any person not properly designated by Plaintiff. TEX. R. CIV. P. 195.6; Rainbo Baking C0. v. Stafford, 787 S.W.2d 41, 41-42 (Tex. 1990); Morrow v. HEB, Inc., 714 S.W.2d 297 (Tex. 1986); Watson v.1sern, 782 S.W.2d 546, 555 (Tex. App—Beaumont 1989, writ denied) DEFENDANTS’ MOTION IN LIMINE PAGE 6 (holding exclusion proper where Witness not identified in answers to interrogatories); see also Collins v. Collins, 923 S.W.2d 569, 569 (Tex. 1996) (party has duty to amend and supplement regarding expert’s mental impressions, opinions, and basis for them). Sustained: Denied: 9. Request for Stipulation in Jury Presence Requesting either Defendant or Defendants’ attorneys to stipulate to either the admissibility of any evidence or to stipulate to any facts or matters in front of the jury. TEX. R. EVID. 401-403. Sustained: Denied: 10. Attorneys’ Comments in Deposition Any reading or reference to comments or statements, other than questions to witnesses, contained in any deposition taken in this case because such constitutes unsworn testimony or statements. TEX. R. EVID. 401-403, 801-802. Sustained: Denied: 11. Reference to Deposition Questions Not Answered Any reference to questions asked in depositions to which the Court sustained objections, since such matters are irrelevant, immaterial, or privileged, and it would be prejudicial to Defendant to refer to such questions and objections in the presence of the jury. TEX. R. EVID. 401- 403. Sustained: Denied: 12. Jury Questions Any statement by opposing counsel which is calculated to inform the jury of the effect of DEFENDANTS’ MOTION IN LIMINE PAGE 7 its answer to jury questions. Magic Chef Inc. v. Sibley, 546 S.W.2d 851 (Tex. Civ. App.—San Antonio 1977, writ ref’ d n.r.e.). Sustained: Denied: 13. Matters Not Supported by the Pleadings Any testimony or evidence mentioning, referring to, arguing or offering evidence on any matter and/or claims and/or causes of action not supported by the trial pleadings timely filed with the court by Plaintiff in this case. Crain v. San Jacinta Savings Association, 781 S.W.2d 638, 639 (Tex. App—Houston [14th Dist.] 1989, writ granted); Erisman v. Thompson, 167 S.W.2d 731-33 (Tex. 1943). Sustained: Denied: 14. Ex Parte Statements of Witnesses Any reference to any ex parte statement of any witness or alleged witness, other than an adverse party or agent of any adverse party, unless and until such witness has been called to testify and has given testimony conflicting with such ex parte statement. A deposition or a statement in business or medical records which have been proved up as required by the Rules of Evidence is not an ex parte statement. Sustained: Denied: 15. Photographs or Motion Pictures Offering or attempting to offer any photographic evidence or showing any photographs to the jury or jury panel not first shown, outside the jury’s presence, to be relevant to the cause of action and properly authenticated. Sustained: Denied: 16. Photographs During Voir Dire DEFENDANTS’ MOTION IN LIMINE PAGE 8 That Plaintiff, by and through his attorneys, will not display exhibits or photographs to the jury during voir dire of the case. See TEX. R. CIV. P. 265; Ranger Ins. v. Rogers, 530 S.W.2d 162, 170 (Tex. App—Austin 1975, writ ref’d n.r.e). Sustained: Denied: 17. Facts Not in Evidence Any questions, statements, remarks or inquiries which are predicated on statements which assume facts not in evidence, or predicated on facts not in evidence, or are based on mixed characterizations of the evidence, should be strictly curtailed for the reason that such questions are designed to mislead and confuse the jury, have the effect of distorting the evidence and thereby prevent the jury from properly evaluating the facts before them. Further, this type of question or statement improperly allows counsel to interject his perception of and characterization of the facts in evidence, and thus his opinion in argument, to the jury during the examination of the witness. TEX. R. EVID. 401-403. Sustained: Denied: 18. Referring to Motion in Limine Reference to the filing of this Motion in Limine or to any ruling by the Court in response to this Motion, since such references are inherently prejudicial and suggest or infer that the movant has sought to prohibit proof or that the Court has excluded proof of matters damaging to movant’s case. Burdick v. York Oil C0., 364 S.W.2d 766 (Tex. Civ. App—San Antonio 1963, writ ref’ d, n.r.e.); Texas Employers ’Ins. Ass ’n v. Phillips, 255 S.W.2d 364 (Tex. Civ. App. — Eastland 1953, writ refd, n.r.e.); TEX. R. EVID. 401-403. Sustained: Denied: 19. Undisclosed Testimony and Documents DEFENDANTS’ MOTION IN LIMINE PAGE 9 Seeking to introduce any testimony or documentary evidence of any nature which has not been heretofore disclosed to Defendants’ attorneys prior to trial of this matter. See TEX. R. CIV. P. 195.6; see also Collins v. Collins, 923 S.W.2d 569, 569 (Tex. 1996); Alvarado v. Farah Mfg. C0., 830 S.W.2d 911, 914 (Tex. 1942). Sustained: Denied: 20. Legal Concepts Any question, statement or reference which would require a witness without proper qualifications to draw a legal conclusion, including but not limited to, inquiries as to whether a certain act or omission constitutes negligence and whether an act or omission was a proximate cause of the accident for the reason that no lay witness is qualified to draw these legal conclusions as doing so would invade the province of the jury. See Louder v. De Leon, 754 S.W.2d 148, 149 (Tex. 1988); Birchfield v. Texarkana Mem ’l Hosp, 747 S.W.2d 361, 365 (Tex. 1987); United Way of San Antonio, Inc. v. Helping Hands Lifeline Found, Ina, 949 S.W.2d 707, 713 (Tex. App.— San Antonio 1997, no writ); Puente v. A.S.I. Signs, 821 S.W.2d 400, 402 (Tex. App—Corpus Christi 1991 , writ denied). Sustained: Denied: 21. Opinion Testimony Offering any evidence or opinion testimony prior to the witness being first qualified as an expert. Sustained: Denied: 22. Hypothetical Questions That counsel refrain from asking a fact witness hypothetical questions or opinions. DEFENDANTS’ MOTION IN LIMINE PAGE 10 Sustained: Denied: 23. Personal Beliefs Any mention or statement to the jury regarding the personal beliefs of Plaintiff‘s counsel concerning the justice of Plaintiff’s case and/or Plaintiff’s right or entitlement to a recovery. Wallace v. Liberty Mutual Insurance C0., 413 S.W.2d 787, 790 (Tex. Civ. App—Houston 1967, writ ref’ d, n.r.e.). Sustained: Denied: 24. Jury Findings Any mention or reference to the finding of fifty-one percent (51%) negligence on the part of Plaintiff might bar recovery. Sustained: Denied: 25. Experts: Undisclosed Opinions The offering of opinions at the trial of this cause by any of Plaintiffs expert witnesses which have not heretofore been disclosed to Defendants in response to Defendant’s Requests for Disclosure, or in depositions. See TEX. R. CIV. P. 195.6, 192.3 (party entitled to discover subject matter on which expert will testify); see also Collins v. Collins, 923 S.W.2d 569, 569 (Tex. 1996) (party has duty to amend and supplement deposition testimony of retained expert regarding mental impressions, opinions, and basis for them); Rainbo Baking C0. v. Stafford, 787 S.W.2d 41, 41-42 (Tex. 1990); Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.l986); Watson v. Isern, 782 S.W.2d 546, 555 (Tex. App—Beaumont 1989, writ denied) (holding exclusion proper where witness not identified in answers to interrogatories). DEFENDANTS’ MOTION IN LIMINE PAGE 11 Sustained: Denied: 26. Assumed Facts Any fact witness or purported expert testimony of Plaintiff” s experts unless it is established that the witness’s opinions have a basis in fact. “When an expert’s opinion is based on assumed facts that vary materially from the actual, undisputed facts, the opinion is without probative value and cannot support a verdict or judgment.” Burroughs Wellcome C0. v. Cifye, 907 S.W.2d 497, 499-500 (Tex. 1995), citing Schaefer v. Tex. Employers ’Ins. Ass ’n, 612 S.W.2d 199, 202-05 (Tex. 1980) (reviewing substance of medical expert’s testimony and holding testimony constituted no evidence of causation, as it was based on assumptions, possibility, speculation, and surmise). Thus, bare conclusions and assertions unsupported by facts of record, expert opinions based on facts merely assumed and not proved, or facts different from those proved are no evidence to support a finding of fact. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 420 (Tex. 1998) (Hecht, J. dissenting), citing Schaefer, 612 S.W.2d at 202-05. Sustained: Denied: 27. Telling the Jury Someone Must be Blamed Any argument or suggestion to the jury that someone must be found liable for the collision at issue in this matter, as Plaintiff is required to prove a specific a specific act of negligence proximately caused the collision and Plaintiff s alleged damages. Sustained Overruled 28. Purely Speculative or Conjectural Opinions Any purported expert or opinion testimony of Plaintiff‘s expert witnesses unless the Plaintiff establishes that the expert witnesses are qualified and that the expert’s testimony is relevant to the issues in this case and is based upon reliable foundation. See Naegeli Transportation DEFENDANTS’ MOTION IN LIMINE PAGE 12 v.GulfElectroquip. Inc., 853 S.W.2d 737 (Tex. App—Houston [14th district] 1993, writ denied). This includes testimony regarding the value/cost of past and future medical services. S Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (TeX. 1998). Sustained Overruled 29. Damage Testimony Any testimony or evidence relating to elements of damages for which recovery has not been properly pled. Sustained Overruled 30. Hearsay/Speculation References and/or any evidence irrelevant to the case before the Court, is not supported by the evidence and constitutes pure speculation and hearsay. See TEX. R. EVID. 401 and TEX. R. EVID. 802. Assuming that any such evidence or reference has any probative value, any such value would be outweighed by the danger of unfair prejudice to Defendant and the potential to confuse or mislead the jury. See TEX. R. EVID. 403. Accordingly, the Court should exclude any such evidence or reference. Sustained Overruled 31. Relationship Between Defendants and Defendants’ Attorneys Any statement, reference, comment or question pertaining to the relationship between Defendants and the attorneys representing Defendants in this cause of action, or to the relationship between the attorneys representing Defendants and any insurance company, or any comment about the fact that Defendants’ attorneys were retained by an insurance company. DEFENDANTS’ MOTION IN LIMINE PAGE 13 Sustained: Denied: 32. Relevance & Reliability Any purported expert testimony of Plaintiffs’ experts unless it is established that the expert witnesses are qualified and that the expert’s testimony is relevant to the issues in this case and is based upon reliable foundation. See E.I. du Pont de Nemours and C0., Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1995). Despite the use of “magic language” or “magic words” such as reasonable probability, an expert’s testimony which is based on mere surmise or speculation is no evidence. Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 712 (1997). Sustained: Denied: 33. Misconstruing Legal Standards From misconstruing and/or expanding the legal standards of negligence to include issues not required by the standards. By way of example, using terminology like something “as safe as possible” or “safest possible” or suggesting the jury utilize a standard of community safety or personal safety instead of the appropriate standard of care as such references are attempts to appeal to the passions, sympathy, or prejudice of the jury. Use of such language and terminology and misconstruing legal standards would be unfairly prejudicial to Defendants and has the potential to confuse or mislead the jury. See TEX. R. EVID. 403. Thus, Defendants movs the Court to instruct all other counsel not to make any such reference in jury argument of similar import. Sustained: Denied: 34. Golden Rule Arguments From mentioning, referencing, commenting, or alluding, directly or indirectly, to a Golden Rule-type argument or that jurors should put themselves in the shoes of or position of the Plaintiff such references are attempts to appeal to the passions, sympathy, or prejudice of the jury. Use of such language and arguments would be unfairly prejudicial to Defendants and has the potential to DEFENDANTS’ MOTION IN LIMINE PAGE 14 confuse or mislead the jury. See TEX. R. EVID. 403. Thus, Defendants move the Court to instruct all other counsel not to make any such reference in jury argument of similar import. Sustained: Denied: 35. Negligence Per Se From mentioning, referencing, commenting, or alluding, directly or indirectly, that Defendant Steve Skinner violated any provisions in the Texas Transportation Code. None of the Texas Transportation Code cited in Plaintiffs current petition cannot serve as the basis of a negligence per se claim as a matter of law. Use of such language and arguments would be unfairly prejudicial to Defendants and has the potential to confuse or mislead the jury. See TEX. R. EVID. 403. Thus, Defendants move the Court to instruct all other counsel not to make any such reference in jury argument of similar import. Sustained: Denied: 36. Property Damage Claims From mentioning, referencing, commenting, or alluding, directly or indirectly, to any claims for property damage. In order to recover for property damages, Plaintiff must have proof that the repairs were necessary and the costs for them were reasonable in the form of expert testimony. Plaintiff has not designated an expert on this topic. Use of such language and arguments pertaining to any claim for property damage would be unfairly prejudicial to Defendants and has the potential to confuse or mislead the jury. See TEX. R. EVID. 403. Thus, Defendants move the Court to instruct all other counsel not to make any such reference in jury argument of similar import. Sustained: Denied: DEFENDANTS’ MOTION IN LIMINE PAGE 15 37. Causation Proof From mentioning, referencing, commenting, or alluding, directly or indirectly, to any medical condition of Plaintiff Without proper proof that said medical condition was proximately caused by the subject incident. Such proof must be provided by expert testimony. Use of such language and arguments would be unfairly prejudicial to Defendants and has the potential to confuse or mislead the jury. See TEX. R. EVID. 403. Thus, Defendants move the Court to instruct all other counsel not to make any such reference in jury argument of similar import. Sustained: Denied: SIGNED this day of , 2023. HON. GENA SLAUGHTER JUDGE PRESIDING DEFENDANTS’ MOTION IN LIMINE PAGE 16 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Clark Butler on behalf of Michael Miller Bar No. 14100650 cbutler@mklawpc.com Envelope ID: 74779223 Filing Code Description: Exhibit List Filing Description: Status as of 4/19/2023 2:52 PM CST Associated Case Party: CESAR ESPARZA Name BarNumber Email TimestampSubmitted Status Kristina N.Kastl kkastl@kastllaw.com 4/18/2023 4:44:51 PM SENT Sandra Gomez sgomez@kastllaw.com 4/18/2023 4:44:51 PM SENT Kristina N.Kastl eservice@kastllaw.com 4/18/2023 4:44:51 PM SENT Sorana Ban sban@kastllaw.com 4/18/2023 4:44:51 PM SENT Associated Case Party: CP&Y, INC. Name BarNumber Email TimestampSubmitted Status Michael Miller mmiller@mklawpc.com 4/18/2023 4:44:51 PM SENT Clark Butler cbutler@mk|awpc.com 4/18/2023 4:44:51 PM SENT Britanie Cruze bcruze@mk|awpc.com 4/18/2023 4:44:51 PM SENT Roxana Esquivel resquivel@mklawpc.com 4/18/2023 4:44:51 PM SENT Robyn Cruze rcruze@mklawpc.com 4/18/2023 4:44:51 PM ERROR Case Contacts Name BarNumber Email TimestampSubmitted Status KRISTINA NKASTL eservice@kastllaw.com 4/18/2023 4:44:51 PM SENT