Preview
FILED
12/2/2021 2:55 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Miranda Lynch DEPUTY
CAUSE NO. DC-20-07324
CLENDON RHEA, IN THE DISTRICT COURT
Plaintiff,
v. 95TH JUDICIAL DISTRICT
ALLSTATE FIRE AND CASUALTY
INSURANCE COMPANY, DALLAS COUNTY, TEXAS
Defendant.
PLAINTIFF'S MOTION IN LIMINE
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES CLENDON RHEA, Plaintiff, and before the voir dire examination of
the jury panel and out of the presence and hearing of the jury panel, makes this Motion in
Limine. Plaintiff seeks to exclude matters that are incompetent, irrelevant, or prejudicial
to the material issues in this case. If Defendant injects these matters into the trial of this
case through a party, an attorney, or a witness, it will cause irreparable harm to Plaintiff's
case, which no jury instruction could cure. If any of these matters are brought to the
attention of the jury, directly or indirectly, Plaintiff would be compelled to move for a
mistrial. In an effort to avoid prejudice and a possible mistrial, Plaintiff urges this Motion
in Limine.
Plaintiff asks the court to instruct Defendant and all counsel not to mention, refer to,
interrogate about, or attempt to convey to the jury in any manner, either directly or
indirectly, any of these matters without first obtaining the court's permission outside the
presence and hearing of the jury, and to instruct Defendant and all counsel to warn and
caution each of their witnesses to follow the same instructions.
1. Any evidence Defendant did not produce in discovery. Defendant should not
be permitted to present any witness not named in discovery responses, or any evidence
requested by Plaintiff but not produced by Defendant. See, e.g., Gee v. Liben‘y Mutual Fire
Ins. Co., 765 S.W.2d 394, 395 (Tex. 1989).
PLAINTIFF'S MOTION IN LIMINE Page 1
2. Any testimony or argument suggesting Defendant, through his attorney,
asserted claims of privilege during discovery. Claims of privilege are inadmissible as
evidence. See TEX. R. EVID. 513(a), (b).
3. Any testimony by Defendant's experts concerning their discussions with
another expert. See TEX. R. EVID. 801, 802; Birchfie/d v. Texarkana Memorial Hosp., 747
S.W.2d 361, 365 (Tex. 1987).
4. Any attempt to elicit testimony from Plaintiff about communications with his
lawyers. Such communications are privileged. TEX. R. EVID. 503.
5. Any comment by Defendant's attorney that informs the jury of the effect of
its answers to the questions in the charge. See Magic Chef, Inc. v. Sibley, 546 S.W.2d 851 ,
857 (Tex. App.--San Antonio 1977, writ ref'd n.r.e.).
6. Any mention of the probable testimony of a witness who is absent,
unavailable, not called to testify in this case, or not allowed to testify, in any manner, in this
case.
7. Any attempt in the presence of the jury to seek or request Plaintiff's attorneys
to produce documents, to stipulate to any fact, or to make any agreement.
8. Before the court rules on the law applicable to this case, any statement of the
law otherthan regarding the burden of proof and the basic legal definitions counsel believe
to be applicable.
9. Any statements in Voir Dire by directly referring to "you know why we are
here" or using the name of the Plaintiff directly in asking of questions other than asking the
panel whether they know any of the parties involved.
10. Any testimony or argument suggesting Plaintiff's attorney has a contingency
fee in the suit. See Azar Nut Co. v. Caille, 720 S.W.2d 685, 688 (Tex. App.--El Paso
1986), aff'd, 734 S.W.2d 667 (Tex. 1987).
PLAINTIFF'S MOTION IN LIMINE Page 2
11. Any mention Plaintiff's recovery wi|| not be subject to taxation. See Turner v.
General Motors Corp., 584 S.W.2d 844, 853 (Tex. 1979).
12. Any other reference to collateral sources, including but not limited to medical
insurance benefits.
13. Any mention that Plaintiff's medical provider(s) agreed to and/or entered into
a Letter of Protection for payment of their medical services.
14. Any mention the parties engaged in settlement negotiations. See TEX. R.
EVID. 408; Birchfie/d v. Texarkana Mem. Hosp., 747 S.W.2d 361, 365 (Tex. 1987).
15. Prior misconduct or criminal activity. Houston v. Watson, 376 S.W.2d 23, 33
(Civ. App.--Houston 1964, ref’d n.r.e.); TEX. R. CIV. EVID. 404, 609, 803(22).
16. Prior claims, suits or settlements and the amounts thereof. Scur/ock Oil Co.
v. Smithwick, 724 S.W.2d 1 (Tex. 1986); Employers Casualty Co. v. Peterson, 609 S.W.2d
579 (Tex. Civ. App.—-Dallas 1980, no writ); Austin Road Co. v. Ferris, 492 S.W.2d 64 (Tex.
Civ. App.--Fort Worth 1973, writ ref'd n.r.e.); TEX. R. CIV. EVID. 408.
17. Other unrelated injuries or illnesses and the effects thereof, including related
injuries that are older than ten years of the date of trial.
18. Personal habits of the Plaintiff including drinking habits, smoking habits or
drug use unconnected or associated with the occurrence in question and that all such
references in medical records be redacted.
19. Employment of Plaintiff's attorney, including time or circumstances or that
either a medical provider referred such Plaintiff to his/her/their attorney. Martinez v.
Williams, 312 S.W.2d 742 (Tex. Civ. App.--Houston 1958, no writ).
20. Comment regarding Plaintiff's failure to call a witness to testify equally
available to both parties. Sanders v. St. Paul Fire & Marine Ins. Co., 429 S.W.2d 516
(Tex. Civ. App.--Texarkana 1968, writ ref’d n.r.e.); TEX. R. CIV. EVID 802.
21. Prior employment rejection and/or any problems with prior employers.
PLAINTIFF'S MOTION IN LIMINE Page 3
22. Prior marital difficulties or controversies regarding children or custody.
23. Request for materials from Plaintiff's file.
24. Effect of the case, verdict orjudgment on insurance rates. TEX. R. CIV. EVID
402, 403.
25. Prior altercations, fights or general problems associated with the Plaintiff
unattached or unconnected with the occurrence in question.
26. Reference to the motion being filed or any ruling pertaining to the same. Ford
v. Carpenter, 147 Tex. 447, 216 S.W.2d 558 (1949); overruled on other grounds in Condra
Funeral Home v. Rollin, 158 Tex. 478, 314 S.W.2d 277 (1958); Burdick v. York Oil Co., 364
S.W.2d 766, 770 (Tex. Civ. App.--San Antonio 1963, ref’d n.r.e.).
27. Plaintiff's right to recover pre-judgment and post-judgment interest. TEX. R.
CIV. EVID. 402, 403.
28. Any inquiry into or references to how Plaintiff was referred or received a
referral by any attorney or person associated with any attorney to any medical chiropractor
or other healthcare providers.
29. Discussing whether Plaintiff's counsel has engaged in any form of
advertising. This includes any general questions of prospectivejurors during voir dire, such
as “Would you ever hire an attorney who advertises on television?,” which might infer that
Plaintiff's counsel uses certain forms of advertising.
30. Any testimony by medical expert to make opinions about chiropractic care
if he or she is not a chiropractor. In addition, any testimony by medical expert to make
opinions about medical treatment outside th realm of chiropractic treatment that is not a
medical doctor in the designated specialized field.
31. Discussing whether any medical provider has engaged in any form of
advertising. This would include any general questions of prospectivejurors during voir dire
PLAINTIFF'S MOTION IN LIMINE Page 4
such as “Would you ever go to a doctor who advertises on television?”, inferring that
Plaintiff's providers did so advertise.
32. Inquiring whether Plaintiff's medical bills have been paid.
33. Offering any testimony or evidence concerning the necessity of the treatment
rendered or the reasonableness of charges on a basis that is not set out in a properly
prepared and filed controverting affidavit per the requirements of Chapter 18 Texas Civil
Practice and Remedies Code.
34. Offering any testimony or evidence concerning any other doctor, physician,
or healthcare provider that Plaintiff could have gone to see, as that is not relevant to any
issue before the court.
35. Offering any testimony concerning the contents of documents not in
evidence, except to establish the predicate for admissibility or for impeachment of a
witness then on the witness stand.
36. Offering any testimony or evidence whether Plaintiff has failed to file an
income tax return with the IRS or has failed to report income to the federal government.
37. That Plaintiff's failure to attend trial is as a result of confinement for conviction
of a crime.
38. Any party's or witness's status regarding immigration to or residency in the
United States.
39. Any argument by Defense counsel generally that Plaintiff has the "burden of
proo ", or that Plaintiff has the "entire" burden of proof where Defendant has alleged the
affirmative defense of contributory negligence.
40. Any testimony, questions, or arguments stating or implying an improper
relationship between Plaintiff's medical providers and Plaintiff's counsel not supported by
evidence introduced during the trial.
PLAINTIFF'S MOTION IN LIMINE Page 5
41. Any argument that minimal vehicle property damage equals minimal or no
personal injury. The "no or minimal vehicle property damage equals no or minimal personal
injury" argument is not "common sense" or "lay person terms," but rather a scientific
argument interpreting Newtonian physics and quantam mechanics, therefore such
argument is barred by TEX. R. EVID. 702 and Daubert/Robinson.
42. Any argument that a low speed or minimal speed collision equals minimal or
no personal injury. The "low speed collision equals no or minimal personal injury" argument
is not "common sense" or "lay person terms," but rather a scientific argument interpreting
Newtonian physics and quantam mechanics, therefore such argument is barred by TEX.
R. EVID. 702 and Daubert/Robinson.
43. Inquiry during Voir Dire into where Plaintiff's attorney works, which would
open the door to insurance, thus, allowing Plaintiff's attorney to do the same.
44. Any reference to prior or subsequent accidents or lawsuits involving Plaintiff
, unless Defendant has satisfied the Court, outside of the presence of the jury, that the
conditions operation to produce the prior or subsequent accidents were substantially
similar to the occurrence in question and not too remote in time.
45. Offering evidence or questioning any civil litigation of any Plaintiff, attorney,
or healthcare provider has been involved in, without a showing of relevance.
PRAYER
Forthese reasons, Plaintiff asks the court to instruct Defendants and theirwitnesses
and counsel not to mention, refer to, interrogate about, or attempt to convey to the jury any
of the matters listed above without first asking for a ruling from the court out of the
presence of the jury.
PLAINTIFF'S MOTION IN LIMINE Page 6
Respectfully submitted,
Ben Abbott & Associates, PLLC
1934 Pendleton Drive
Garland, TX 75041
(972) 263-5555
(817) 263-5555
(972) 682-7586 Facsimile
eService@benabbott.com
WWW
Constance Mutchg
State Bar No. 24104765
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
This is to certify that on December 2, 2021, a true and correct copy of the foregoing
Plaintiff's Motion in Limine was served on all counsel of record in accordance with Rules
21 and 21a of the Texas Rules of Civil Procedure.
WWW
Constance Mutohg
PLAINTIFF'S MOTION IN LIMINE Page 7
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.
Donnabell Lathrom on behalf of Constance Mutong
Bar No. 24104765
donnabel|.|athrom@benabbott.com
Envelope ID: 59650632
Status as of 12/2/2021 4:05 PM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
CAMILO VALENCIA eService@benabbott.com 12/2/2021 2:55:15 PM SENT
Young Jenkins dallaslegal@allstate.com 12/2/2021 2:55:15 PM SENT
Preview
FILED 12/2/2021 2:55 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Miranda Lynch DEPUTY CAUSE NO. DC-20-07324 CLENDON RHEA, IN THE DISTRICT COURT Plaintiff, v. 95TH JUDICIAL DISTRICT ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, DALLAS COUNTY, TEXAS Defendant. PLAINTIFF'S MOTION IN LIMINE TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES CLENDON RHEA, Plaintiff, and before the voir dire examination of the jury panel and out of the presence and hearing of the jury panel, makes this Motion in Limine. Plaintiff seeks to exclude matters that are incompetent, irrelevant, or prejudicial to the material issues in this case. If Defendant injects these matters into the trial of this case through a party, an attorney, or a witness, it will cause irreparable harm to Plaintiff's case, which no jury instruction could cure. If any of these matters are brought to the attention of the jury, directly or indirectly, Plaintiff would be compelled to move for a mistrial. In an effort to avoid prejudice and a possible mistrial, Plaintiff urges this Motion in Limine. Plaintiff asks the court to instruct Defendant and all counsel not to mention, refer to, interrogate about, or attempt to convey to the jury in any manner, either directly or indirectly, any of these matters without first obtaining the court's permission outside the presence and hearing of the jury, and to instruct Defendant and all counsel to warn and caution each of their witnesses to follow the same instructions. 1. Any evidence Defendant did not produce in discovery. Defendant should not be permitted to present any witness not named in discovery responses, or any evidence requested by Plaintiff but not produced by Defendant. See, e.g., Gee v. Liben‘y Mutual Fire Ins. Co., 765 S.W.2d 394, 395 (Tex. 1989). PLAINTIFF'S MOTION IN LIMINE Page 1 2. Any testimony or argument suggesting Defendant, through his attorney, asserted claims of privilege during discovery. Claims of privilege are inadmissible as evidence. See TEX. R. EVID. 513(a), (b). 3. Any testimony by Defendant's experts concerning their discussions with another expert. See TEX. R. EVID. 801, 802; Birchfie/d v. Texarkana Memorial Hosp., 747 S.W.2d 361, 365 (Tex. 1987). 4. Any attempt to elicit testimony from Plaintiff about communications with his lawyers. Such communications are privileged. TEX. R. EVID. 503. 5. Any comment by Defendant's attorney that informs the jury of the effect of its answers to the questions in the charge. See Magic Chef, Inc. v. Sibley, 546 S.W.2d 851 , 857 (Tex. App.--San Antonio 1977, writ ref'd n.r.e.). 6. Any mention of the probable testimony of a witness who is absent, unavailable, not called to testify in this case, or not allowed to testify, in any manner, in this case. 7. Any attempt in the presence of the jury to seek or request Plaintiff's attorneys to produce documents, to stipulate to any fact, or to make any agreement. 8. Before the court rules on the law applicable to this case, any statement of the law otherthan regarding the burden of proof and the basic legal definitions counsel believe to be applicable. 9. Any statements in Voir Dire by directly referring to "you know why we are here" or using the name of the Plaintiff directly in asking of questions other than asking the panel whether they know any of the parties involved. 10. Any testimony or argument suggesting Plaintiff's attorney has a contingency fee in the suit. See Azar Nut Co. v. Caille, 720 S.W.2d 685, 688 (Tex. App.--El Paso 1986), aff'd, 734 S.W.2d 667 (Tex. 1987). PLAINTIFF'S MOTION IN LIMINE Page 2 11. Any mention Plaintiff's recovery wi|| not be subject to taxation. See Turner v. General Motors Corp., 584 S.W.2d 844, 853 (Tex. 1979). 12. Any other reference to collateral sources, including but not limited to medical insurance benefits. 13. Any mention that Plaintiff's medical provider(s) agreed to and/or entered into a Letter of Protection for payment of their medical services. 14. Any mention the parties engaged in settlement negotiations. See TEX. R. EVID. 408; Birchfie/d v. Texarkana Mem. Hosp., 747 S.W.2d 361, 365 (Tex. 1987). 15. Prior misconduct or criminal activity. Houston v. Watson, 376 S.W.2d 23, 33 (Civ. App.--Houston 1964, ref’d n.r.e.); TEX. R. CIV. EVID. 404, 609, 803(22). 16. Prior claims, suits or settlements and the amounts thereof. Scur/ock Oil Co. v. Smithwick, 724 S.W.2d 1 (Tex. 1986); Employers Casualty Co. v. Peterson, 609 S.W.2d 579 (Tex. Civ. App.—-Dallas 1980, no writ); Austin Road Co. v. Ferris, 492 S.W.2d 64 (Tex. Civ. App.--Fort Worth 1973, writ ref'd n.r.e.); TEX. R. CIV. EVID. 408. 17. Other unrelated injuries or illnesses and the effects thereof, including related injuries that are older than ten years of the date of trial. 18. Personal habits of the Plaintiff including drinking habits, smoking habits or drug use unconnected or associated with the occurrence in question and that all such references in medical records be redacted. 19. Employment of Plaintiff's attorney, including time or circumstances or that either a medical provider referred such Plaintiff to his/her/their attorney. Martinez v. Williams, 312 S.W.2d 742 (Tex. Civ. App.--Houston 1958, no writ). 20. Comment regarding Plaintiff's failure to call a witness to testify equally available to both parties. Sanders v. St. Paul Fire & Marine Ins. Co., 429 S.W.2d 516 (Tex. Civ. App.--Texarkana 1968, writ ref’d n.r.e.); TEX. R. CIV. EVID 802. 21. Prior employment rejection and/or any problems with prior employers. PLAINTIFF'S MOTION IN LIMINE Page 3 22. Prior marital difficulties or controversies regarding children or custody. 23. Request for materials from Plaintiff's file. 24. Effect of the case, verdict orjudgment on insurance rates. TEX. R. CIV. EVID 402, 403. 25. Prior altercations, fights or general problems associated with the Plaintiff unattached or unconnected with the occurrence in question. 26. Reference to the motion being filed or any ruling pertaining to the same. Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558 (1949); overruled on other grounds in Condra Funeral Home v. Rollin, 158 Tex. 478, 314 S.W.2d 277 (1958); Burdick v. York Oil Co., 364 S.W.2d 766, 770 (Tex. Civ. App.--San Antonio 1963, ref’d n.r.e.). 27. Plaintiff's right to recover pre-judgment and post-judgment interest. TEX. R. CIV. EVID. 402, 403. 28. Any inquiry into or references to how Plaintiff was referred or received a referral by any attorney or person associated with any attorney to any medical chiropractor or other healthcare providers. 29. Discussing whether Plaintiff's counsel has engaged in any form of advertising. This includes any general questions of prospectivejurors during voir dire, such as “Would you ever hire an attorney who advertises on television?,” which might infer that Plaintiff's counsel uses certain forms of advertising. 30. Any testimony by medical expert to make opinions about chiropractic care if he or she is not a chiropractor. In addition, any testimony by medical expert to make opinions about medical treatment outside th realm of chiropractic treatment that is not a medical doctor in the designated specialized field. 31. Discussing whether any medical provider has engaged in any form of advertising. This would include any general questions of prospectivejurors during voir dire PLAINTIFF'S MOTION IN LIMINE Page 4 such as “Would you ever go to a doctor who advertises on television?”, inferring that Plaintiff's providers did so advertise. 32. Inquiring whether Plaintiff's medical bills have been paid. 33. Offering any testimony or evidence concerning the necessity of the treatment rendered or the reasonableness of charges on a basis that is not set out in a properly prepared and filed controverting affidavit per the requirements of Chapter 18 Texas Civil Practice and Remedies Code. 34. Offering any testimony or evidence concerning any other doctor, physician, or healthcare provider that Plaintiff could have gone to see, as that is not relevant to any issue before the court. 35. Offering any testimony concerning the contents of documents not in evidence, except to establish the predicate for admissibility or for impeachment of a witness then on the witness stand. 36. Offering any testimony or evidence whether Plaintiff has failed to file an income tax return with the IRS or has failed to report income to the federal government. 37. That Plaintiff's failure to attend trial is as a result of confinement for conviction of a crime. 38. Any party's or witness's status regarding immigration to or residency in the United States. 39. Any argument by Defense counsel generally that Plaintiff has the "burden of proo ", or that Plaintiff has the "entire" burden of proof where Defendant has alleged the affirmative defense of contributory negligence. 40. Any testimony, questions, or arguments stating or implying an improper relationship between Plaintiff's medical providers and Plaintiff's counsel not supported by evidence introduced during the trial. PLAINTIFF'S MOTION IN LIMINE Page 5 41. Any argument that minimal vehicle property damage equals minimal or no personal injury. The "no or minimal vehicle property damage equals no or minimal personal injury" argument is not "common sense" or "lay person terms," but rather a scientific argument interpreting Newtonian physics and quantam mechanics, therefore such argument is barred by TEX. R. EVID. 702 and Daubert/Robinson. 42. Any argument that a low speed or minimal speed collision equals minimal or no personal injury. The "low speed collision equals no or minimal personal injury" argument is not "common sense" or "lay person terms," but rather a scientific argument interpreting Newtonian physics and quantam mechanics, therefore such argument is barred by TEX. R. EVID. 702 and Daubert/Robinson. 43. Inquiry during Voir Dire into where Plaintiff's attorney works, which would open the door to insurance, thus, allowing Plaintiff's attorney to do the same. 44. Any reference to prior or subsequent accidents or lawsuits involving Plaintiff , unless Defendant has satisfied the Court, outside of the presence of the jury, that the conditions operation to produce the prior or subsequent accidents were substantially similar to the occurrence in question and not too remote in time. 45. Offering evidence or questioning any civil litigation of any Plaintiff, attorney, or healthcare provider has been involved in, without a showing of relevance. PRAYER Forthese reasons, Plaintiff asks the court to instruct Defendants and theirwitnesses and counsel not to mention, refer to, interrogate about, or attempt to convey to the jury any of the matters listed above without first asking for a ruling from the court out of the presence of the jury. PLAINTIFF'S MOTION IN LIMINE Page 6 Respectfully submitted, Ben Abbott & Associates, PLLC 1934 Pendleton Drive Garland, TX 75041 (972) 263-5555 (817) 263-5555 (972) 682-7586 Facsimile eService@benabbott.com WWW Constance Mutchg State Bar No. 24104765 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE This is to certify that on December 2, 2021, a true and correct copy of the foregoing Plaintiff's Motion in Limine was served on all counsel of record in accordance with Rules 21 and 21a of the Texas Rules of Civil Procedure. WWW Constance Mutohg PLAINTIFF'S MOTION IN LIMINE Page 7 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. Donnabell Lathrom on behalf of Constance Mutong Bar No. 24104765 donnabel|.|athrom@benabbott.com Envelope ID: 59650632 Status as of 12/2/2021 4:05 PM CST Case Contacts Name BarNumber Email TimestampSubmitted Status CAMILO VALENCIA eService@benabbott.com 12/2/2021 2:55:15 PM SENT Young Jenkins dallaslegal@allstate.com 12/2/2021 2:55:15 PM SENT