Preview
FILED
8/14/2023 12:00 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Elizabeth Ferguson DEPUTY
CAUSE NO. DC-20-05169
TODD OFFEN, IN THE DISTRICT COURT
§§§§§§§§§§§
Plaintifi’,
V.
DALLAS COUNTY, TEXAS
CARLA KENYON, JOHN KENYON,
PROGRESSIVE COUNTY MUTUAL
INSURANCE COMPANY, and STATE
FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY
Defendants. 134TH JUDICIAL DISTRICT
DEFENDANT PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY’S
MOTION IN LIMINE
COMES NOW, PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY,
Defendant in the above styled and numbered cause, and before the commencement of the voir dire
examination of the venire or jury panel, respectfully moves that the counsel for Plaintiff and
through said counsel any and all of Plaintiff’s witnesses, be instructed by appropriate order of this
Honorable Court to refrain from making any mention or interrogation, directly or indirectly, in any
manner whatsoever concerning any of the matters hereinafter set forth, without first approaching
the bench and obtaining a ruling from the Court, outside the presence and hearing of all prospective
jurors and jurors ultimately selected in this cause, in regard to any alleged theory of admissibility
of such matters, to-wit:
1. Defendant further specifically moves the Court to instruct Plaintiff’s counsel to refrain
from making any reference to or statement, either directly or indirectly, that any offer of settlement
was made by representatives of Defendant or that any compromise settlement negotiations were
conducted between the parties prior to the filing of this lawsuit or after such lawsuit was filed.
Rule 408, Texas Rules of Evidence.
Sustained Denied
2. Defendant further specifically moves the Court to instruct Plaintiff’s counsel to refrain
from making any reference to the Court's rulings on any of the pretrial motions or matters
previously filed herein, including any reference to the fact that this motion was filed with the Court.
Sustained Denied
DEFENDANT PROGRESSIVE’S MOTION IN LIMINE Page 1 0f7
90401
3. Defendant further specifically moves the Court to instruct Plaintiff’s counsel to refrain
from making any statement or propound any question relating to the failure of Defendant to call
any Witness during the trial of this cause, unless it be shown that said Witness was Within the control
of Defendant and was not equally available to all parties.
Sustained Denied
4. Defendant further specifically moves the Court to instruct Plaintiff’s counsel to refrain
from inquiring of Defendant’s counsel the names of witnesses that Defendant may or may not call
in that such could have been obtained through the discovery process and at this point it is a matter
of trial strategy on the part of Defendant to which Plaintiff is not entitled. Defendant cannot know
for sure who it will or will not call until it has heard the Plaintiff’s case. To allow such improper
conduct can make it appear that Defendant has something to hide which would unduly prejudice
the jury by injecting a matter before them which they will not be called to pass upon thereby
denying Defendant a fair and impartial trial.
Sustained Denied
5. Defendant further specifically moves the Court to instruct Plaintiff’s counsel to refrain
from making any statement that out of any recovery, Plaintiff is to pay Plaintiff’s attorney.
Sustained Denied
6. Defendant further specifically moves the Court that, should the Plaintiff wish to introduce
any photographs, motion picture films, or Video tapes into evidence, same be tendered to the Court
and opposing counsel outside the presence of the jury and shown or exhibited to determine their
relevance and suitability for introduction into evidence.
Sustained Denied
7. Defendant requests that the Court deny any offer or attempt to offer testimony from any
experts or fact witnesses not timely designated pursuant to the last valid Agreed Scheduling Order,
including any report, finding, opinion, diagnosis, or prognosis of any expert, or the text of any
expert testimony, or any opinion of any expert witness unless such expert has been properly and
timely designated by Plaintiff and Plaintiff has disclosed the general substance of the expert’s
mental impressions and opinions and a brief summary of the basis for them, or if the expert is not
retained by Plaintiff or otherwise subject to the control of the Plaintiff, documents reflecting such
information as required by Tex. R. Civ. P. 194.2.
Sustained Denied
8. Defendant requests that the Court instruct Plaintiff, Plaintiff’s counsel and Plaintiff’s
witnesses not to refer to or discuss in any way any reference to the financial condition or wealth
of the Defendant or ability of the Defendant to pay any judgment herein.
Sustained Denied
DEFENDANT PROGRESSIVE’S MOTION IN LIMINE Page 2 0f7
90401
9. Defendant requests that the Court instruct Plaintiff, Plaintiff’s counsel and Plaintiff’s
witnesses not to refer to or discuss in any way or to make any statements or suggestions that the
Plaintiff is poor or is struggling to make ends meet or is in great financial hardship.
Sustained Denied
10. Defendant requests that the Court instruct Plaintiff not to make any reference to or
introduction into evidence of "out-of-pocket expenses" incurred by Plaintiff relating to this cause.
Sustained Denied
11. Defendant requests that the Court instruct Plaintiff not to make any mention or allegation
or introduction of evidence regarding any form or element of damages not specifically included in
Plaintiff s live pleadings.
Sustained Denied
12. Defendant requests that the Court instruct Plaintiff not to engage in any questioning of
prospective jurors during voir dire attempting to commit them to award a specific amount of
damages “if the evidence supported or justified it” should not be allowed. Typically, the questions
are propounded in the form “Do you have a bias or prejudice against awarding ten million dollars
in mental anguish damages if the evidence supported such an award?” This type of questioning is
improper. The general rule is that it is improper to ask prospective jurors what their verdict would
be if certain facts were proved. Hyundai Motor Company v. Vasquez, 189 S.W.3d 743 (Tex. 2006).
Excluding jurors for cause based upon the weight they may or may not give specific evidence,
infiinges upon the right to trial by a fair and impartial jury. Id. Questions which “pre-test” the
opinions of jurors about relevant evidence. See z'a’ at 751 (“...this Court has refused to hold the
statements that reflect a juror's judgment about the facts of a case as presented, rather than an
external unfair bias or prejudice, amount to a disqualifying bias”). It is improper for an attorney to
summarize the evidence during voir dire and then inquire of the jurors whether either party was
“starting out ahead.” Cortez v. HCCI - San Antonio, Ina, 159 S.W.3d 87, 94 (Tex. 2005). See also
Campbell v. Campbell, 215 S.W. 134 (Tex. App. - Dallas 1919, writ denied) (“To require him to
say that he will or will not let a given material fact influence him in reaching a conclusion, if
chosen, is simply to commit him to or against that material fact in advance”); see also Atkins v.
State, 951 S.W.2d 787 (Tex. Crim. App. 1997) (“It is improper to inquire how a venireman would
respond to particular circumstances as presented in a hypothetical question”). Such questions
improperly require the prospective jurors to arrive at opinions or conclusions without first hearing
any evidence and do not form a proper basis for the exclusion of potential jurors on a challenge
for cause. The only proper question to venire persons at this time is whether they could award as
little or as much in damages in this case as the evidence might show. Powers v. Palacz'os, 794
S.W.2d 493, 496 (Tex. App.--Corpus Christi 1990, no writ). Counsel should be limited to asking
prospective panelists merely if they have a bias or prejudice against awarding mental anguish
damages irrespective of the evidence and the Court's instructions.
Sustained Denied
DEFENDANT PROGRESSIVE’S MOTION IN LIMINE Page 3 0f7
90401
13. Any testimony or argument suggesting Defendant asserted claims of privilege during
discovery. Claims of privilege are not admissible as evidence. See TEX. R. EVID. 513(a), (b).
Sustained Denied
l4. Any comment, statement or reference that Defendant’s counsel’s firm specializes in the
defense of insurance cases, large companies, or personal injury litigation or represents insurance
companies.
Sustained Denied
15. Any attempt to introduce any evidence of any economic damages which may be claimed
by the Plaintiff other than those identified and for which a specific calculation was provided in
Plaintiff’s response to the applicable Request for Disclosure.
Sustained Denied
l6. Offer or attempt to offer testimony from any experts or witnesses not disclosed in response
to requests for disclosures complying with Rule 194.2 that were timely made in compliance with
the Uniform Scheduling Order entered in this case, or from any other persons not disclosed in
response to disclosures, production or interrogatories inquiring as to persons with knowledge of
relevant facts.
Sustained Denied
17. Making any reference to “David and Goliath” or “little guy versus big company” or other
similar type reference.
Sustained Denied
18. Any reference, statement or testimony regarding the global charges for Plaintiff” s medical
treatment. Defendant would show that Plaintiff’ s recovery for medical expenses shall be limited
to those actually incurred or paid by the Plaintiff or on the Plaintiff s behalf.
Sustained Denied
19. Any attempt to introduce any evidence of any economic damages not disclosed in response
to requests for disclosures complying with Rule 194.2 that were timely made in compliance with
the Uniform Scheduling Order entered in this case.
Sustained Denied
DEFENDANT PROGRESSIVE’S MOTION IN LIMINE Page 4- 0f 7
90401
20. That Plaintiff or Plaintiff’s counsel make no reference to, mention of, or use in any form,
a Golden Rule Argument or request that the jurors put themselves in the Plaintiff’s shoes. See
World Wide Tire C0. v. Brown, 644 S.W.2d 144, 145-46 (Tex. App.- Houston [14th Dist.] 1982,
writ ref’ d n.r.e.); Beckett v. State, 2012 Tex. App. LEXIS 2293 * 17-18 (Tex. App. — Dallas 2012).
Sustained Denied
21. Any use of the "Reptile Theory" method at the trial of this cause, including in voir dire,
opening or closing, and questioning because it violates the aforementioned Golden Rule
prohibition, it encourages jurors to disregard and/or minimize jury instructions, it encourages
jurors to apply improper standards of care, it encourages jurors to improperly evaluate Defendants'
alleged acts and/ or omissions with the benefit hindsight and it improperly encourages jurors to act
F
as the "conscience" or guardians of the community rather than impartial jurors. See armbrough
v. Wagley, I 69 S. W.2d 4 78, 481-82 (Tex. 1943) (finding arguments which invoke the Golden Rule
or ask jurors to consider a case from an improper viewpoint, such as putting them in place of a
party to decide a case, is improper because it does not employ the reasonably prudent standard).
Sustained Denied
22. Plaintiff’s counsel should also not be allowed to advocate to the jury that its verdict gives
the jury an opportunity to speak out, an opportunity to protect themselves, an opportunity to protect
the public or society, an opportunity to eliminate threats against themselves, an opportunity to
eliminate threats to the public or society, an opportunity to diminish danger in the community or
be the subject of publicity as the conscience of the community. See Westbrook v. General Tire &
Rubber Co., 754 F.2d 1233, 1238-39 (5th Cir. I985) (en banc) (holding arguments regarding the
jury acting as the community's conscience or guardian, such that the jury had a communal
responsibility to find a defendant liable, and arguments which are impassioned and prejudicial that
F
intend to evoke a sense of community loyalty, duty and expectation were improper); armbrough
v. Wagley, I 69 S. W2d 478, 481-82 (Tex. I943) (finding arguments which invoke the Golden Rule
or ask jurors to consider a case from an improper viewpoint, such as putting them in place of a
party to decide a case, is improper).
Sustained Denied
23. The amount of damages awarded must be based on evidence, and Plaintiff’s counsel should
not be allowed to suggest to the jury damage amounts based on examples with no rational
connection to the facts of the case. “Unsubstantiated anchoring,” a tactic whereby attorneys
suggest damages amounts by reference to objects or values with no rational connection to the facts
of the case, has been specifically condemned by the Texas Supreme Court. Gregory v. Chohan,
_ S.W.3rd_; 2023 Tex. LEXIS 528*19-20 (Tex. 2023). Unsubstantiated anchors have nothing
to do with the emotional injuries suffered by the Plaintiff and cannot rationally connect the extent
of the injuries to the amount awarded. Id, at *20. “Unsubstantiated anchors introduced as a way
to assist a jury in ‘valuing a human life’ are not the type of information a jury can rightfully rely
on when crafting a verdict.” Id. at *21.
Sustained Denied
DEFENDANT PROGRESSIVE’S MOTION IN LIMINE Page 5 0f7
90401
24. Any reference, statement or testimony regarding Personal Injury Protection (P1P) benefits
under the Progressive County Mutual Insurance Company Whether the benefits were previously
rejected or paid, and amount of same, if any.
Sustained Denied
25. Any reference, statement or testimony that Progressive County Mutual Insurance Company
has offered, paid, refused or otherwise not paid Plaintiff’s claim because such matters are not
relevant to the damages issues in this case.
Sustained Denied
26. Any reference, statement or testimony regarding the amount or existence of the
uninsured/underinsured policy limit of the Progressive County Mutual Insurance Company policy.
Sustained Denied
27. Any reference, statement or testimony regarding the amount of the policy limit, existence
of a policy, payment, non-payment, or partial payment of any liability policy by any tortfeasor or
driver in connections with the accident made the basis of the lawsuit.
Sustained Denied
WHEREFORE, PREMISES CONSIDERED, Defendant prays that this Honorable Court
enter its Order on Defendant’s Motion in Limine requiring the Plaintiff and Plaintiff‘s witnesses
and attorneys, to refrain from mentioning or bringing out in any manner such matters at any time
during the trial of the cause in the presence of the jury without first taking the matter up with the
Court.
DEFENDANT PROGRESSIVE’S MOTION IN LIMINE Page 6 0f7
90401
Respectfully submitted,
WALTERS, BALIDO & CRAIN, L.L.P.
BY: /S/ Randall G. Walters
RANDALL G. WALTERS — 20819480
randy.walters@wbclawfirm.com
Service of Documents:
WaltersEDocsNotifications@wbclawfirm.com
Meadow Park Tower, Suite 1500
10440 North Central Expressway
Dallas, Texas 75231
214/204-2101 — FAX
214/204-2400 — DIRECT
214/204-2100 — MAIN
ATTORNEY FOR DEFENDANT
PROGRESSIVE COUNTY MUTUAL
INSURANCE COMPANY
CERTIFICATE OF SERVICE
This is to certify that on this 13th day of August, 2023, a copy of the above and foregoing
was served on all counsel of record in accordance with the Texas Rules of Civil Procedure.
_/s/ Randall G. Walters
RANDALL G. WALTERS
DEFENDANT PROGRESSIVE’S MOTION IN LIMINE Page 7 0f7
90401
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.
Envelope lD: 78475371
Filing Code Description: Motion - In Limine
Filing Description: DEF PROGRESSIVE'S
Status as of 8/14/2023 10:12 AM CST
Associated Case Party: TODD OFFEN
Name BarNumber Email TimestampSubmitted Status
Collen AClark eservice@cvpalaw.com 8/13/2023 6:59:38 PM SENT
Associated Case Party: PROGRESSIVE CASUALTY INSURANCE COMPANY
Name BarNumber Email TimestampSubmitted Status
Randall GWalters waItersedocsnotifications@wbclawfirm.com 8/13/2023 6:59:38 PM SENT
Associated Case Party: STATEFARM MUTUAL AUTOMOBILE INSURANCE
COMPANY
Name BarNumber Email TimestampSubmitted Status
Michael P.Gross mgross@harrisonhull.com 8/13/2023 6:59:38 PM SENT
Angelica Paluch apaluch@harrisonhull.com 8/13/2023 6:59:38 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Francine Ly f|y@dallascourts.org 8/13/2023 6:59:38 PM SENT
Preview
FILED 8/14/2023 12:00 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Elizabeth Ferguson DEPUTY CAUSE NO. DC-20-05169 TODD OFFEN, IN THE DISTRICT COURT §§§§§§§§§§§ Plaintifi’, V. DALLAS COUNTY, TEXAS CARLA KENYON, JOHN KENYON, PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY, and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Defendants. 134TH JUDICIAL DISTRICT DEFENDANT PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY’S MOTION IN LIMINE COMES NOW, PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY, Defendant in the above styled and numbered cause, and before the commencement of the voir dire examination of the venire or jury panel, respectfully moves that the counsel for Plaintiff and through said counsel any and all of Plaintiff’s witnesses, be instructed by appropriate order of this Honorable Court to refrain from making any mention or interrogation, directly or indirectly, in any manner whatsoever concerning any of the matters hereinafter set forth, without first approaching the bench and obtaining a ruling from the Court, outside the presence and hearing of all prospective jurors and jurors ultimately selected in this cause, in regard to any alleged theory of admissibility of such matters, to-wit: 1. Defendant further specifically moves the Court to instruct Plaintiff’s counsel to refrain from making any reference to or statement, either directly or indirectly, that any offer of settlement was made by representatives of Defendant or that any compromise settlement negotiations were conducted between the parties prior to the filing of this lawsuit or after such lawsuit was filed. Rule 408, Texas Rules of Evidence. Sustained Denied 2. Defendant further specifically moves the Court to instruct Plaintiff’s counsel to refrain from making any reference to the Court's rulings on any of the pretrial motions or matters previously filed herein, including any reference to the fact that this motion was filed with the Court. Sustained Denied DEFENDANT PROGRESSIVE’S MOTION IN LIMINE Page 1 0f7 90401 3. Defendant further specifically moves the Court to instruct Plaintiff’s counsel to refrain from making any statement or propound any question relating to the failure of Defendant to call any Witness during the trial of this cause, unless it be shown that said Witness was Within the control of Defendant and was not equally available to all parties. Sustained Denied 4. Defendant further specifically moves the Court to instruct Plaintiff’s counsel to refrain from inquiring of Defendant’s counsel the names of witnesses that Defendant may or may not call in that such could have been obtained through the discovery process and at this point it is a matter of trial strategy on the part of Defendant to which Plaintiff is not entitled. Defendant cannot know for sure who it will or will not call until it has heard the Plaintiff’s case. To allow such improper conduct can make it appear that Defendant has something to hide which would unduly prejudice the jury by injecting a matter before them which they will not be called to pass upon thereby denying Defendant a fair and impartial trial. Sustained Denied 5. Defendant further specifically moves the Court to instruct Plaintiff’s counsel to refrain from making any statement that out of any recovery, Plaintiff is to pay Plaintiff’s attorney. Sustained Denied 6. Defendant further specifically moves the Court that, should the Plaintiff wish to introduce any photographs, motion picture films, or Video tapes into evidence, same be tendered to the Court and opposing counsel outside the presence of the jury and shown or exhibited to determine their relevance and suitability for introduction into evidence. Sustained Denied 7. Defendant requests that the Court deny any offer or attempt to offer testimony from any experts or fact witnesses not timely designated pursuant to the last valid Agreed Scheduling Order, including any report, finding, opinion, diagnosis, or prognosis of any expert, or the text of any expert testimony, or any opinion of any expert witness unless such expert has been properly and timely designated by Plaintiff and Plaintiff has disclosed the general substance of the expert’s mental impressions and opinions and a brief summary of the basis for them, or if the expert is not retained by Plaintiff or otherwise subject to the control of the Plaintiff, documents reflecting such information as required by Tex. R. Civ. P. 194.2. Sustained Denied 8. Defendant requests that the Court instruct Plaintiff, Plaintiff’s counsel and Plaintiff’s witnesses not to refer to or discuss in any way any reference to the financial condition or wealth of the Defendant or ability of the Defendant to pay any judgment herein. Sustained Denied DEFENDANT PROGRESSIVE’S MOTION IN LIMINE Page 2 0f7 90401 9. Defendant requests that the Court instruct Plaintiff, Plaintiff’s counsel and Plaintiff’s witnesses not to refer to or discuss in any way or to make any statements or suggestions that the Plaintiff is poor or is struggling to make ends meet or is in great financial hardship. Sustained Denied 10. Defendant requests that the Court instruct Plaintiff not to make any reference to or introduction into evidence of "out-of-pocket expenses" incurred by Plaintiff relating to this cause. Sustained Denied 11. Defendant requests that the Court instruct Plaintiff not to make any mention or allegation or introduction of evidence regarding any form or element of damages not specifically included in Plaintiff s live pleadings. Sustained Denied 12. Defendant requests that the Court instruct Plaintiff not to engage in any questioning of prospective jurors during voir dire attempting to commit them to award a specific amount of damages “if the evidence supported or justified it” should not be allowed. Typically, the questions are propounded in the form “Do you have a bias or prejudice against awarding ten million dollars in mental anguish damages if the evidence supported such an award?” This type of questioning is improper. The general rule is that it is improper to ask prospective jurors what their verdict would be if certain facts were proved. Hyundai Motor Company v. Vasquez, 189 S.W.3d 743 (Tex. 2006). Excluding jurors for cause based upon the weight they may or may not give specific evidence, infiinges upon the right to trial by a fair and impartial jury. Id. Questions which “pre-test” the opinions of jurors about relevant evidence. See z'a’ at 751 (“...this Court has refused to hold the statements that reflect a juror's judgment about the facts of a case as presented, rather than an external unfair bias or prejudice, amount to a disqualifying bias”). It is improper for an attorney to summarize the evidence during voir dire and then inquire of the jurors whether either party was “starting out ahead.” Cortez v. HCCI - San Antonio, Ina, 159 S.W.3d 87, 94 (Tex. 2005). See also Campbell v. Campbell, 215 S.W. 134 (Tex. App. - Dallas 1919, writ denied) (“To require him to say that he will or will not let a given material fact influence him in reaching a conclusion, if chosen, is simply to commit him to or against that material fact in advance”); see also Atkins v. State, 951 S.W.2d 787 (Tex. Crim. App. 1997) (“It is improper to inquire how a venireman would respond to particular circumstances as presented in a hypothetical question”). Such questions improperly require the prospective jurors to arrive at opinions or conclusions without first hearing any evidence and do not form a proper basis for the exclusion of potential jurors on a challenge for cause. The only proper question to venire persons at this time is whether they could award as little or as much in damages in this case as the evidence might show. Powers v. Palacz'os, 794 S.W.2d 493, 496 (Tex. App.--Corpus Christi 1990, no writ). Counsel should be limited to asking prospective panelists merely if they have a bias or prejudice against awarding mental anguish damages irrespective of the evidence and the Court's instructions. Sustained Denied DEFENDANT PROGRESSIVE’S MOTION IN LIMINE Page 3 0f7 90401 13. Any testimony or argument suggesting Defendant asserted claims of privilege during discovery. Claims of privilege are not admissible as evidence. See TEX. R. EVID. 513(a), (b). Sustained Denied l4. Any comment, statement or reference that Defendant’s counsel’s firm specializes in the defense of insurance cases, large companies, or personal injury litigation or represents insurance companies. Sustained Denied 15. Any attempt to introduce any evidence of any economic damages which may be claimed by the Plaintiff other than those identified and for which a specific calculation was provided in Plaintiff’s response to the applicable Request for Disclosure. Sustained Denied l6. Offer or attempt to offer testimony from any experts or witnesses not disclosed in response to requests for disclosures complying with Rule 194.2 that were timely made in compliance with the Uniform Scheduling Order entered in this case, or from any other persons not disclosed in response to disclosures, production or interrogatories inquiring as to persons with knowledge of relevant facts. Sustained Denied 17. Making any reference to “David and Goliath” or “little guy versus big company” or other similar type reference. Sustained Denied 18. Any reference, statement or testimony regarding the global charges for Plaintiff” s medical treatment. Defendant would show that Plaintiff’ s recovery for medical expenses shall be limited to those actually incurred or paid by the Plaintiff or on the Plaintiff s behalf. Sustained Denied 19. Any attempt to introduce any evidence of any economic damages not disclosed in response to requests for disclosures complying with Rule 194.2 that were timely made in compliance with the Uniform Scheduling Order entered in this case. Sustained Denied DEFENDANT PROGRESSIVE’S MOTION IN LIMINE Page 4- 0f 7 90401 20. That Plaintiff or Plaintiff’s counsel make no reference to, mention of, or use in any form, a Golden Rule Argument or request that the jurors put themselves in the Plaintiff’s shoes. See World Wide Tire C0. v. Brown, 644 S.W.2d 144, 145-46 (Tex. App.- Houston [14th Dist.] 1982, writ ref’ d n.r.e.); Beckett v. State, 2012 Tex. App. LEXIS 2293 * 17-18 (Tex. App. — Dallas 2012). Sustained Denied 21. Any use of the "Reptile Theory" method at the trial of this cause, including in voir dire, opening or closing, and questioning because it violates the aforementioned Golden Rule prohibition, it encourages jurors to disregard and/or minimize jury instructions, it encourages jurors to apply improper standards of care, it encourages jurors to improperly evaluate Defendants' alleged acts and/ or omissions with the benefit hindsight and it improperly encourages jurors to act F as the "conscience" or guardians of the community rather than impartial jurors. See armbrough v. Wagley, I 69 S. W.2d 4 78, 481-82 (Tex. 1943) (finding arguments which invoke the Golden Rule or ask jurors to consider a case from an improper viewpoint, such as putting them in place of a party to decide a case, is improper because it does not employ the reasonably prudent standard). Sustained Denied 22. Plaintiff’s counsel should also not be allowed to advocate to the jury that its verdict gives the jury an opportunity to speak out, an opportunity to protect themselves, an opportunity to protect the public or society, an opportunity to eliminate threats against themselves, an opportunity to eliminate threats to the public or society, an opportunity to diminish danger in the community or be the subject of publicity as the conscience of the community. See Westbrook v. General Tire & Rubber Co., 754 F.2d 1233, 1238-39 (5th Cir. I985) (en banc) (holding arguments regarding the jury acting as the community's conscience or guardian, such that the jury had a communal responsibility to find a defendant liable, and arguments which are impassioned and prejudicial that F intend to evoke a sense of community loyalty, duty and expectation were improper); armbrough v. Wagley, I 69 S. W2d 478, 481-82 (Tex. I943) (finding arguments which invoke the Golden Rule or ask jurors to consider a case from an improper viewpoint, such as putting them in place of a party to decide a case, is improper). Sustained Denied 23. The amount of damages awarded must be based on evidence, and Plaintiff’s counsel should not be allowed to suggest to the jury damage amounts based on examples with no rational connection to the facts of the case. “Unsubstantiated anchoring,” a tactic whereby attorneys suggest damages amounts by reference to objects or values with no rational connection to the facts of the case, has been specifically condemned by the Texas Supreme Court. Gregory v. Chohan, _ S.W.3rd_; 2023 Tex. LEXIS 528*19-20 (Tex. 2023). Unsubstantiated anchors have nothing to do with the emotional injuries suffered by the Plaintiff and cannot rationally connect the extent of the injuries to the amount awarded. Id, at *20. “Unsubstantiated anchors introduced as a way to assist a jury in ‘valuing a human life’ are not the type of information a jury can rightfully rely on when crafting a verdict.” Id. at *21. Sustained Denied DEFENDANT PROGRESSIVE’S MOTION IN LIMINE Page 5 0f7 90401 24. Any reference, statement or testimony regarding Personal Injury Protection (P1P) benefits under the Progressive County Mutual Insurance Company Whether the benefits were previously rejected or paid, and amount of same, if any. Sustained Denied 25. Any reference, statement or testimony that Progressive County Mutual Insurance Company has offered, paid, refused or otherwise not paid Plaintiff’s claim because such matters are not relevant to the damages issues in this case. Sustained Denied 26. Any reference, statement or testimony regarding the amount or existence of the uninsured/underinsured policy limit of the Progressive County Mutual Insurance Company policy. Sustained Denied 27. Any reference, statement or testimony regarding the amount of the policy limit, existence of a policy, payment, non-payment, or partial payment of any liability policy by any tortfeasor or driver in connections with the accident made the basis of the lawsuit. Sustained Denied WHEREFORE, PREMISES CONSIDERED, Defendant prays that this Honorable Court enter its Order on Defendant’s Motion in Limine requiring the Plaintiff and Plaintiff‘s witnesses and attorneys, to refrain from mentioning or bringing out in any manner such matters at any time during the trial of the cause in the presence of the jury without first taking the matter up with the Court. DEFENDANT PROGRESSIVE’S MOTION IN LIMINE Page 6 0f7 90401 Respectfully submitted, WALTERS, BALIDO & CRAIN, L.L.P. BY: /S/ Randall G. Walters RANDALL G. WALTERS — 20819480 randy.walters@wbclawfirm.com Service of Documents: WaltersEDocsNotifications@wbclawfirm.com Meadow Park Tower, Suite 1500 10440 North Central Expressway Dallas, Texas 75231 214/204-2101 — FAX 214/204-2400 — DIRECT 214/204-2100 — MAIN ATTORNEY FOR DEFENDANT PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY CERTIFICATE OF SERVICE This is to certify that on this 13th day of August, 2023, a copy of the above and foregoing was served on all counsel of record in accordance with the Texas Rules of Civil Procedure. _/s/ Randall G. Walters RANDALL G. WALTERS DEFENDANT PROGRESSIVE’S MOTION IN LIMINE Page 7 0f7 90401 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. Envelope lD: 78475371 Filing Code Description: Motion - In Limine Filing Description: DEF PROGRESSIVE'S Status as of 8/14/2023 10:12 AM CST Associated Case Party: TODD OFFEN Name BarNumber Email TimestampSubmitted Status Collen AClark eservice@cvpalaw.com 8/13/2023 6:59:38 PM SENT Associated Case Party: PROGRESSIVE CASUALTY INSURANCE COMPANY Name BarNumber Email TimestampSubmitted Status Randall GWalters waItersedocsnotifications@wbclawfirm.com 8/13/2023 6:59:38 PM SENT Associated Case Party: STATEFARM MUTUAL AUTOMOBILE INSURANCE COMPANY Name BarNumber Email TimestampSubmitted Status Michael P.Gross mgross@harrisonhull.com 8/13/2023 6:59:38 PM SENT Angelica Paluch apaluch@harrisonhull.com 8/13/2023 6:59:38 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Francine Ly f|y@dallascourts.org 8/13/2023 6:59:38 PM SENT