Preview
FILED
3/25/2022 4:28 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Kellie Juricek 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.
DEFENDANT( S)’ MOTION IN LIMINE
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY,
hereinafter referred to as "Defendant," and before any proceedings before the jury, makes and
files this MOTION IN LIMINE, and respectfully moves the Court to instruct P1aintiff(s) and
Plaintiff(s)' counsel to refrain from either directly or indirectly, upon voir dire examination,
opening statement, interrogation of Witnesses, introduction of any evidence, argument, objections
before the jury, reading of any portion of the pleadings, or by any other means or in any other
manner, informing the jury, or bringing to the jury's attention, any of the matters set forth in the
numbered paragraphs below, unless and until such matters have been first called to the attention
of the Court, out of the presence and/or hearing of the jury, and a favorable ruling has been
obtained from the Court as to the admissibility and relevance of any such matters:
Defendant would also note that due t0 the current pandemic climate and the premium
being placed on getting a live jury to Show up for jury selection, that these matters be strictly
enforced. A mistrial in this atmosphere is no more 0r less justified based upon violation of the
parties’ motions in limine, but it may be more costly to all parties involved and the community
and courts as a whole.
Rhea vs. Allstate PAGE 1
DEFENDANT’S MOTION IN LIMINE
1. Criminal Offenses. That any party or Witness has been suspected of, anested for,
charged with or convicted of any criminal offense unless there is evidence of a
specific conviction that the Court has previously ruled is admissible in the case.
2. Alcohol or Drug Use. That any party or witness uses or abuses alcohol, tobacco, or
any controlled substance, unless and until such alleged use or abuse is shown to be
specifically relevant to the matters in controversy. Amoco Chemicals Corp. vs.
Stafford, 663 S.W.2d 147 (Tex. App—Houston [15‘ Dist.] 1983, no writ).; TRCE
801(d); TRCE 403.
3. Settlement Negotiations or Mediation. Any negotiations, offers or demands with
respect to any attempted settlement or mediation. TRCE 408; Beutel vs. Paul, 741
S.W.2d 510 (Tex. App.iHouston [14th Dist] 1987, no writ).
4. Discovery Disputes. 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.
5. Hearsay Medical Opinions. 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 physician or other health care provider.
Such would be an attempt to introduce before the jury expert testimony without a
proper predicate concerning the expert’s qualifications and abilities to give such
testimony. Defendant would note that TRE 803(4) specifically excepts statements
made to a medical provider for diagnosis or treatment from the hearsay rule. This
does not apply to statements by a medical provider to the patient. The idea is that an
individual is unlikely to lie to a medical provider since they want an accurate
diagnosis and appropriate treatment. Conversely, there is not the same reassurance of
truthfulness when it comes to an individual stating what the doctor told them in the
middle of a personal injury jury trial for money damages.
6. Reguests for Stipulations. Any request or demand in the presence of the jury for a
stipulation to any fact, or that counsel admit or deny any fact.
7. Reguests for Files. Any request or demand in the presence of the jury that opposing
counsel produce any document or thing, or that opposing counselor any party or
witness exhibit, turn over 0r allow examination of the contents of any file 0r 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 has used previously
to refresh his/her recollection).
8. Discrimination. 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 (except in the second phase of a bifurcated
trial).
9. Hardship or Privation. Any argument or suggestion that a failure to award damages
will cause a Plaintiff privation or financial hardship except that Plaintiff s counsel
Rhea vs. Allstate PAGE 2
DEFENDANT’S MOTION IN LIMINE
may certainly argue that Plaintiff has a particular amount of money outstanding for
past medical bills.
10. Golden Rule. Any argument or suggestion that the jurors should put themselves in
the positionof a party. World Wide Tire Co. vs. Brown, 644 S.W.2d 144 (Tex. App.-
Houston [14th Dist.] 1982, writ ref’d n.r.e.).
11. Effect of Answers to Jurv Questions. 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. Cooper vs. Argonaut
Insurance C0,, 430 S.W. 2d. 35 (Tex. Civ. App—Dallas 1968, writ ref’d n.r.e.).
Such argument is improper under the Texas special verdict system because it advises
the jury of the effect of its answers.
12. Obi ections to Evidence Not Produced in Discovery. Any objection based on failure
to disclose evidence in pre-trial discovery. Any party desiring to urge any such
objection shall request to approach the bench and urge such objection outside the
hearing of the jury. To the extent possible or predictable, such matters should be
addressed and a ruling sought at pretrial once the case is assigned for trial, although
the objection may be urged for the record outside the hearing of the jury at the time
such evidence is offered in the event the Court has overruled the objection at pretrial.
13. malifving Expert Witness. Calling any witness to testify as an expert without
having first been qualified as an expert for those matters which were disclosed in
response to Request for Disclosure. In addition, prior to the expert stating any
opinion he must be required to disclose the underlying facts or data which forms his
“expert” opinion pursuant to Rule 705 of the Texas Rules of Evidence.
14. Available Assets. Any inquiry into or reference to the assets Defendant has available
for investigating, preparing and defending this cause. First Nat ’l Bank of Marshall
vs. Beavers, 619 S.W.2d 288 (Tex. Civ. App.—Texarkana 1981, writ ref’d n.r.e.);
Wimoth vs. Limestone Prods. Co., 255 S.W.2d 532, 534 (Tex. App—Waco 1953,
writ ref’ d n.r.e.).
15. Superseded Pleadings. The contents of any pleadings which have been superseded
by the current pleadings on file in this case. Zock vs. Bank of the Southwest National
Association, Houston, 464 S.W.2d 375 (Tex. Civ. App—Houston [14th Dist.] 1971,
no writ).
16. Voir Dire — Pre-testin2 Evidence / Previewing Verdict. Any inquiry attempting to
determine the weight jurors will give to the evidence. If a question does not seek to
discover a disqualifying bias or prejudice but seeks to determine the weight jurors
Will give to the evidence, such question is an improper attempt to pre-test the
evidence and preview the verdict and therefore objectionable. Hflndai Motor Co. v.
Vasquez, 189 S.W.3d 743 (Tex. 2006).
Rhea vs. Allstate PAGE 3
DEFENDANT’S MOTION IN LIMINE
17. Photographs. Showing any photographs to the jury until the same has been tendered
to opposing counsel and admitted into evidence.
18. Comments on “sending a message.” Plaintiff be prohibited from making any
argument, comment or inference during any phase of this trial that Defendant should
be held accountable or responsible for the purpose of sending a message on behalf of
society as a whole. This is because it appeals to a juror’s fear and plays upon bias,
prejudice or sympathy rather than a principled weighing of What the credible evidence
shows.
19. Acceptance of responsibility. Plaintiff not make any argument that the Defendant
has failed to take responsibility for the accident or that Defendant has taken no
responsibility or any such similar argument, as such argument suggests prior
negotiations or a failure of the Defendant to make any offers of settlement.
Furthermore, Defendant requests that Plaintiff not be allowed to question Defendant
as to whether Defendant accepts “responsibility” for the occurrence in question. The
term “responsibility” is vague and ambiguous and such argument opens the door to
negotiations, settlement and insurance. Any suggestion of prior negotiations and
offers are irrelevant and inadmissible during trial. This does not prohibit Plaintiff
from questioning Defendant about the facts of the motor vehicle collision and
whether or not they were being careful or exercising ordinary care or whether
Defendant’s actions were consistent with those of a reasonably prudent person under
the circumstances as they existed at the time of the collision.
20. Lost Wages or Lost Wage Earning Capacity. Any inquiry or reference to whether
Plaintiff missed time from work or whether they lost their job as a result of this motor
vehicle collision and any alleged injuries from it. This is being requested as lost wage
earning capacity calculations are a form of economic damages that must be itemized
and calculated in Plaintiff’ s initial disclosures or in response to Defendant(s) Request
for Disclosure (D).
21. Future Medical Expenses. Any testimony, documentary evidence, argument,
inquiry, or reference as to Plaintiff’s future medical that is not itemized and calculated
in Plaintiff(s)’ disclosure responses. This is being requested as future medical
damages are a form of economic damages that must be itemized and calculated in
Plaintiff(s)’ initial disclosures or in response to Defendant(s) Request for Disclosure
(D)-
22. Redaction of any “future” expenses. The Medical Records exception to the hearsay
rule (Rule 803(6)) “is intended to include routine, systematic entries in a patient’s
medical records that are necessary for the proper rendition of medical services.”
i
Grove V Overby, 2004 Tex. App. LEXIS 6822 (Tex. App. Austin July 29, 2004, no
pet.). Within the medical records may be “opinions” regarding the necessity and cost
of future care. While past medical expenses can be proved up Via CPRC 18.001
Affidavit (in effect, making an exception to the hearsay rule for admission of
otherwise inadmissible material), future medical expenses and the need for such care
must be proved up Via live expert testimony, to a “reasonable medical probability”, a
Rhea vs. Allstate PAGE 4
DEFENDANT’S MOTION IN LIMINE
standard which is not mentioned in the plaintiffs records, nor are those opinions
sworn by an appropriate medical professional. Defendant requests that any “future
costs” or treatment be redacted from any medical records, absent any sworn
testimony supporting that expert testimony.
23. Exclusion of written report as not “true” medical records. Plaintiffs counsel be
prohibited from attempting to include any written report by a medical provider that
was not done in the regular course of medical care provided to the plaintiff. The
Medical Records exception to the hearsay rule (Rule 803(6)) “is intended to include
routine, systematic entries in a patient’s medical records that are necessary for the
proper rendition of medical services.” Grove v Overby, 2004 Tex. App. LEXIS 6822
(Tex. App. 7 Austin July 29, 2004, no pet). Texas Rules of Evidence, Rule 902(10)
indicates that business records proved up by affidavit must be made by the affiant
“with knowledge of the act, event, condition, opinion, or diagnosis, recorded to make
the record or to transmit information thereof to be included in such record; ...” Any
such “report” is NOT done for the purpose of treatment, but rather for litigation
purposes, thus they are not true “business records”, but hearsay documents and should
be excluded from inclusion at “business records” under Texas Rules of Evidence,
Rule 802.
24. 18.001 Affidavits without live testimony. Plaintiff’s counsel be prohibited from
referencing or entering into evidence any 18.001 affidavits that were controverted
with a counter-affidavit without live testiomony. TEXAS CIVIL PRACTICE AND
REMEDIES CODE Sec. 18.001.
25. Uncommon Causation. Plaintiffs counsel be prohibited from making any statements
regarding any relationship between any medical condition outside the common
knowledge and experience of jurors and the accident made the basis of this lawsuit.
Specifically, Plaintiff, Plaintiffs attorney or any witness for the Plaintiff be
prohibited from telling the jury that any injury or condition of the Plaintiff outside the
common knowledge of jurors was caused by the accident made the basis of this
lawsuit until such time as there is expert testimony to establish causation and unless
such injury was an obvious overt injury that could have been caused by the accident
such as broken bones or lacerations. (See Guevara vs. Ferrer, 247 S.W.3d 662 (Tex.
2007)).
26. Denial of Claim/Pavment of Premiums. Counsel be prohibited from making any
statements that Defendant denied Plaintiff s claim. Additionally, Counsel be
prohibited from eliciting facts or mentioning how long Plaintiff (or the policy holder
if Plaintiff was not the policy holder) has been insured with Defendant or paid
premiums to Defendant since Defendant has stipulated that Plaintiff is a “covered
person” under the contract of insurance on the date of the incident made the basis of
this lawsuit.
27. Advertising of Allstate. Any evidence concerning advertising or sales promotions of
Allstate, including but not limited to, “good hands” or “mayhem” in any manner.
Rhea vs. Allstate PAGE 5
DEFENDANT’S MOTION IN LIMINE
28. Size of Allstate. Any evidence as to the size of Allstate, how many insurance policies
Allstate has outstanding, the profits of Allstate, how much money Allstate has paid
out on claims or has retained in profits, or any other subject relating to the financial
dealings, status, conditions, or reserves of Allstate or any other insurance company or
the insurance industry at large.
29. Claims Handling / Breach of Contract / Bad Faith. Counsel be prohibited from
making any statements related to how Defendant evaluated this claim or that
Defendant breached the policy of insurance or is avoiding responsibility of paying a
just amount due under the insurance contract unless there are allegations and/or
evidence of a breach of the contract and/or evidence/allegations of bad faith under the
common law or any statute.
Respectfully submitted,
WW
LISA CHASTAIN & ASSOCIATES
YOUNG C. JENKINS
TBN: 24034505
P.O. Box 655441
Dallas, TX 75265
E-Service Only: DallasLegal@allstate.com
(214) 659-4346
(877) 678-4763 (fax)
ATTORNEY FOR DEFENDANT(S)
ALLSTATE FIRE AND CASUALTY
INSURANCE COMPANY
Rhea vs. Allstate PAGE 6
DEFENDANT’S MOTION IN LIMINE
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been served in
compliance with Rules 21 and 21a of the Texas Rules of Civil Procedure on March 25, 2022 to:
Constance Mutong
Ben Abbott & Associates, PLLC
1934 Pendleton Drive
Garland, TX 75041
Attorney for Plaintiff
YOUNG C. JENKINS
Rhea vs. Allstate PAGE 7
DEFENDANT’S MOTION IN LIMINE
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.
Young Jenkins
Bar No. 24034505
yjena@allstate.com
Envelope ID: 62981173
Status as of 3/28/2022 8:19 AM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Young Jenkins dallaslegal@allstate.com 3/25/2022 4:28:51 PM SENT
Associated Case Party: CLENDON RHEA
Name BarNumber Email TimestampSubmitted Status
Constance Mutong eservice@benabbott.com 3/25/2022 4:28:51 PM SENT
Preview
FILED 3/25/2022 4:28 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Kellie Juricek 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. DEFENDANT( S)’ MOTION IN LIMINE TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, hereinafter referred to as "Defendant," and before any proceedings before the jury, makes and files this MOTION IN LIMINE, and respectfully moves the Court to instruct P1aintiff(s) and Plaintiff(s)' counsel to refrain from either directly or indirectly, upon voir dire examination, opening statement, interrogation of Witnesses, introduction of any evidence, argument, objections before the jury, reading of any portion of the pleadings, or by any other means or in any other manner, informing the jury, or bringing to the jury's attention, any of the matters set forth in the numbered paragraphs below, unless and until such matters have been first called to the attention of the Court, out of the presence and/or hearing of the jury, and a favorable ruling has been obtained from the Court as to the admissibility and relevance of any such matters: Defendant would also note that due t0 the current pandemic climate and the premium being placed on getting a live jury to Show up for jury selection, that these matters be strictly enforced. A mistrial in this atmosphere is no more 0r less justified based upon violation of the parties’ motions in limine, but it may be more costly to all parties involved and the community and courts as a whole. Rhea vs. Allstate PAGE 1 DEFENDANT’S MOTION IN LIMINE 1. Criminal Offenses. That any party or Witness has been suspected of, anested for, charged with or convicted of any criminal offense unless there is evidence of a specific conviction that the Court has previously ruled is admissible in the case. 2. Alcohol or Drug Use. That any party or witness uses or abuses alcohol, tobacco, or any controlled substance, unless and until such alleged use or abuse is shown to be specifically relevant to the matters in controversy. Amoco Chemicals Corp. vs. Stafford, 663 S.W.2d 147 (Tex. App—Houston [15‘ Dist.] 1983, no writ).; TRCE 801(d); TRCE 403. 3. Settlement Negotiations or Mediation. Any negotiations, offers or demands with respect to any attempted settlement or mediation. TRCE 408; Beutel vs. Paul, 741 S.W.2d 510 (Tex. App.iHouston [14th Dist] 1987, no writ). 4. Discovery Disputes. 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. 5. Hearsay Medical Opinions. 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 physician or other health care provider. Such would be an attempt to introduce before the jury expert testimony without a proper predicate concerning the expert’s qualifications and abilities to give such testimony. Defendant would note that TRE 803(4) specifically excepts statements made to a medical provider for diagnosis or treatment from the hearsay rule. This does not apply to statements by a medical provider to the patient. The idea is that an individual is unlikely to lie to a medical provider since they want an accurate diagnosis and appropriate treatment. Conversely, there is not the same reassurance of truthfulness when it comes to an individual stating what the doctor told them in the middle of a personal injury jury trial for money damages. 6. Reguests for Stipulations. Any request or demand in the presence of the jury for a stipulation to any fact, or that counsel admit or deny any fact. 7. Reguests for Files. Any request or demand in the presence of the jury that opposing counsel produce any document or thing, or that opposing counselor any party or witness exhibit, turn over 0r allow examination of the contents of any file 0r 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 has used previously to refresh his/her recollection). 8. Discrimination. 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 (except in the second phase of a bifurcated trial). 9. Hardship or Privation. Any argument or suggestion that a failure to award damages will cause a Plaintiff privation or financial hardship except that Plaintiff s counsel Rhea vs. Allstate PAGE 2 DEFENDANT’S MOTION IN LIMINE may certainly argue that Plaintiff has a particular amount of money outstanding for past medical bills. 10. Golden Rule. Any argument or suggestion that the jurors should put themselves in the positionof a party. World Wide Tire Co. vs. Brown, 644 S.W.2d 144 (Tex. App.- Houston [14th Dist.] 1982, writ ref’d n.r.e.). 11. Effect of Answers to Jurv Questions. 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. Cooper vs. Argonaut Insurance C0,, 430 S.W. 2d. 35 (Tex. Civ. App—Dallas 1968, writ ref’d n.r.e.). Such argument is improper under the Texas special verdict system because it advises the jury of the effect of its answers. 12. Obi ections to Evidence Not Produced in Discovery. Any objection based on failure to disclose evidence in pre-trial discovery. Any party desiring to urge any such objection shall request to approach the bench and urge such objection outside the hearing of the jury. To the extent possible or predictable, such matters should be addressed and a ruling sought at pretrial once the case is assigned for trial, although the objection may be urged for the record outside the hearing of the jury at the time such evidence is offered in the event the Court has overruled the objection at pretrial. 13. malifving Expert Witness. Calling any witness to testify as an expert without having first been qualified as an expert for those matters which were disclosed in response to Request for Disclosure. In addition, prior to the expert stating any opinion he must be required to disclose the underlying facts or data which forms his “expert” opinion pursuant to Rule 705 of the Texas Rules of Evidence. 14. Available Assets. Any inquiry into or reference to the assets Defendant has available for investigating, preparing and defending this cause. First Nat ’l Bank of Marshall vs. Beavers, 619 S.W.2d 288 (Tex. Civ. App.—Texarkana 1981, writ ref’d n.r.e.); Wimoth vs. Limestone Prods. Co., 255 S.W.2d 532, 534 (Tex. App—Waco 1953, writ ref’ d n.r.e.). 15. Superseded Pleadings. The contents of any pleadings which have been superseded by the current pleadings on file in this case. Zock vs. Bank of the Southwest National Association, Houston, 464 S.W.2d 375 (Tex. Civ. App—Houston [14th Dist.] 1971, no writ). 16. Voir Dire — Pre-testin2 Evidence / Previewing Verdict. Any inquiry attempting to determine the weight jurors will give to the evidence. If a question does not seek to discover a disqualifying bias or prejudice but seeks to determine the weight jurors Will give to the evidence, such question is an improper attempt to pre-test the evidence and preview the verdict and therefore objectionable. Hflndai Motor Co. v. Vasquez, 189 S.W.3d 743 (Tex. 2006). Rhea vs. Allstate PAGE 3 DEFENDANT’S MOTION IN LIMINE 17. Photographs. Showing any photographs to the jury until the same has been tendered to opposing counsel and admitted into evidence. 18. Comments on “sending a message.” Plaintiff be prohibited from making any argument, comment or inference during any phase of this trial that Defendant should be held accountable or responsible for the purpose of sending a message on behalf of society as a whole. This is because it appeals to a juror’s fear and plays upon bias, prejudice or sympathy rather than a principled weighing of What the credible evidence shows. 19. Acceptance of responsibility. Plaintiff not make any argument that the Defendant has failed to take responsibility for the accident or that Defendant has taken no responsibility or any such similar argument, as such argument suggests prior negotiations or a failure of the Defendant to make any offers of settlement. Furthermore, Defendant requests that Plaintiff not be allowed to question Defendant as to whether Defendant accepts “responsibility” for the occurrence in question. The term “responsibility” is vague and ambiguous and such argument opens the door to negotiations, settlement and insurance. Any suggestion of prior negotiations and offers are irrelevant and inadmissible during trial. This does not prohibit Plaintiff from questioning Defendant about the facts of the motor vehicle collision and whether or not they were being careful or exercising ordinary care or whether Defendant’s actions were consistent with those of a reasonably prudent person under the circumstances as they existed at the time of the collision. 20. Lost Wages or Lost Wage Earning Capacity. Any inquiry or reference to whether Plaintiff missed time from work or whether they lost their job as a result of this motor vehicle collision and any alleged injuries from it. This is being requested as lost wage earning capacity calculations are a form of economic damages that must be itemized and calculated in Plaintiff’ s initial disclosures or in response to Defendant(s) Request for Disclosure (D). 21. Future Medical Expenses. Any testimony, documentary evidence, argument, inquiry, or reference as to Plaintiff’s future medical that is not itemized and calculated in Plaintiff(s)’ disclosure responses. This is being requested as future medical damages are a form of economic damages that must be itemized and calculated in Plaintiff(s)’ initial disclosures or in response to Defendant(s) Request for Disclosure (D)- 22. Redaction of any “future” expenses. The Medical Records exception to the hearsay rule (Rule 803(6)) “is intended to include routine, systematic entries in a patient’s medical records that are necessary for the proper rendition of medical services.” i Grove V Overby, 2004 Tex. App. LEXIS 6822 (Tex. App. Austin July 29, 2004, no pet.). Within the medical records may be “opinions” regarding the necessity and cost of future care. While past medical expenses can be proved up Via CPRC 18.001 Affidavit (in effect, making an exception to the hearsay rule for admission of otherwise inadmissible material), future medical expenses and the need for such care must be proved up Via live expert testimony, to a “reasonable medical probability”, a Rhea vs. Allstate PAGE 4 DEFENDANT’S MOTION IN LIMINE standard which is not mentioned in the plaintiffs records, nor are those opinions sworn by an appropriate medical professional. Defendant requests that any “future costs” or treatment be redacted from any medical records, absent any sworn testimony supporting that expert testimony. 23. Exclusion of written report as not “true” medical records. Plaintiffs counsel be prohibited from attempting to include any written report by a medical provider that was not done in the regular course of medical care provided to the plaintiff. The Medical Records exception to the hearsay rule (Rule 803(6)) “is intended to include routine, systematic entries in a patient’s medical records that are necessary for the proper rendition of medical services.” Grove v Overby, 2004 Tex. App. LEXIS 6822 (Tex. App. 7 Austin July 29, 2004, no pet). Texas Rules of Evidence, Rule 902(10) indicates that business records proved up by affidavit must be made by the affiant “with knowledge of the act, event, condition, opinion, or diagnosis, recorded to make the record or to transmit information thereof to be included in such record; ...” Any such “report” is NOT done for the purpose of treatment, but rather for litigation purposes, thus they are not true “business records”, but hearsay documents and should be excluded from inclusion at “business records” under Texas Rules of Evidence, Rule 802. 24. 18.001 Affidavits without live testimony. Plaintiff’s counsel be prohibited from referencing or entering into evidence any 18.001 affidavits that were controverted with a counter-affidavit without live testiomony. TEXAS CIVIL PRACTICE AND REMEDIES CODE Sec. 18.001. 25. Uncommon Causation. Plaintiffs counsel be prohibited from making any statements regarding any relationship between any medical condition outside the common knowledge and experience of jurors and the accident made the basis of this lawsuit. Specifically, Plaintiff, Plaintiffs attorney or any witness for the Plaintiff be prohibited from telling the jury that any injury or condition of the Plaintiff outside the common knowledge of jurors was caused by the accident made the basis of this lawsuit until such time as there is expert testimony to establish causation and unless such injury was an obvious overt injury that could have been caused by the accident such as broken bones or lacerations. (See Guevara vs. Ferrer, 247 S.W.3d 662 (Tex. 2007)). 26. Denial of Claim/Pavment of Premiums. Counsel be prohibited from making any statements that Defendant denied Plaintiff s claim. Additionally, Counsel be prohibited from eliciting facts or mentioning how long Plaintiff (or the policy holder if Plaintiff was not the policy holder) has been insured with Defendant or paid premiums to Defendant since Defendant has stipulated that Plaintiff is a “covered person” under the contract of insurance on the date of the incident made the basis of this lawsuit. 27. Advertising of Allstate. Any evidence concerning advertising or sales promotions of Allstate, including but not limited to, “good hands” or “mayhem” in any manner. Rhea vs. Allstate PAGE 5 DEFENDANT’S MOTION IN LIMINE 28. Size of Allstate. Any evidence as to the size of Allstate, how many insurance policies Allstate has outstanding, the profits of Allstate, how much money Allstate has paid out on claims or has retained in profits, or any other subject relating to the financial dealings, status, conditions, or reserves of Allstate or any other insurance company or the insurance industry at large. 29. Claims Handling / Breach of Contract / Bad Faith. Counsel be prohibited from making any statements related to how Defendant evaluated this claim or that Defendant breached the policy of insurance or is avoiding responsibility of paying a just amount due under the insurance contract unless there are allegations and/or evidence of a breach of the contract and/or evidence/allegations of bad faith under the common law or any statute. Respectfully submitted, WW LISA CHASTAIN & ASSOCIATES YOUNG C. JENKINS TBN: 24034505 P.O. Box 655441 Dallas, TX 75265 E-Service Only: DallasLegal@allstate.com (214) 659-4346 (877) 678-4763 (fax) ATTORNEY FOR DEFENDANT(S) ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY Rhea vs. Allstate PAGE 6 DEFENDANT’S MOTION IN LIMINE CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been served in compliance with Rules 21 and 21a of the Texas Rules of Civil Procedure on March 25, 2022 to: Constance Mutong Ben Abbott & Associates, PLLC 1934 Pendleton Drive Garland, TX 75041 Attorney for Plaintiff YOUNG C. JENKINS Rhea vs. Allstate PAGE 7 DEFENDANT’S MOTION IN LIMINE 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. Young Jenkins Bar No. 24034505 yjena@allstate.com Envelope ID: 62981173 Status as of 3/28/2022 8:19 AM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Young Jenkins dallaslegal@allstate.com 3/25/2022 4:28:51 PM SENT Associated Case Party: CLENDON RHEA Name BarNumber Email TimestampSubmitted Status Constance Mutong eservice@benabbott.com 3/25/2022 4:28:51 PM SENT