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CAUSE NO. 2010-04488
GERARDO CRUZ IN THE DISTRICT COURT OF
Vv HARRIS COUNTY, TEXAS
CITY MASONRY, INC. 269™ JUDICIAL DISTRICT
DEFENDANT’S MOTION IN LIMINE
Before the voir dire examination of the jury panel, and out of the presence and hearing of
the jury panel, Defendant City Masonry, Inc. makes this Motion in Limine. Defendant seeks to
exclude matters that are inadmissible, irrelevant, or prejudicial in this case. If Plaintiff, Gerardo
Cruz, injects these matters into the trial of this case through a party, an attorney, or a witness, it
will cause irreparable harm to Defendant’s case, which no jury instruction could cure. If any of
these matters are brought to the attention of the jury, directly or indirectly, Defendant would be
compelled to move for a mistrial. In an effort to avoid prejudice and a mistrial, Defendant urges
this Motion in Limine.
1 Attorney/Client_Communications: Plaintiff should be prohibited from mentioning,
referring to, or attempting to elicit testimony from any representatives of Defendant regarding
communications with any of Defendant’s attorneys. Such communications are privileged. TEX.
R. Evin. 503.
2 Witnesses Not Revealed in Discovery: Plaintiff should not be permitted to present any
witness that he did not properly identify as trial witnesses in Answers to Interrogatories, or as
persons with knowledge of relevant facts in his Responses to Requests for Disclosure.
3 Failure to Call a Witness: Plaintiff should not be permitted to mention or make reference
to Defendant’s failure to call any witness equally available to any other party. This prohibition
should remain in place until such time as it is shown that the necessary legal prerequisite for such
comment exists: that such witness is within the exclusive control of, or stands in some special
relationship to, Defendant. Tex-Jersey Oil Corp. v. Beck, 305 S.W.2d 162 (Tex. 1957).
4 TRE 802: Ex Parte Statements: Plaintiff should not be permitted to mention, make
reference to, tender, read from, offer, or exhibit to the jury any hearsay or ex parte statement,
report, or exhibit from any witness who has not been present in Court to testify and be subject to
examination by Defendant’s counsel.
5 Documents Not Produced in Discovery: Plaintiff should not be permitted to mention,
make reference to, or attempt to offer evidence concerning any writings, recordings, videotapes,
photographs, or other documents, including diagrams, tests, studies, correspondence, or other
information, which have not been produced in response to any discovery request or which have
not timely been made available to Defendant’s attorneys in connection with this case prior to
trial. The introduction of such evidence or reference to such evidence, without revealing these
documents pursuant to proper discovery requests and the discovery orders of this Court
constitutes an abuse of the discovery process and prohibits the Defendant from having a fair
opportunity to prepare and meet the issues raised by the evidence. Plaintiff should not be
permitted to withhold relevant evidence or material from discovery and then "ambush" the
Defendant with such evidence at trial.
6 Documents and Exhibits Not Provided with Pre-Trial Order Requirements: Plaintiff
should not be permitted to exhibit, display, or mention in any way before the jury any
documents, maps, drawings, photographs, charts or other visual displays that have not been filed
and provided in compliance with the court’s pre-trial order.
7 Liability Insurance TRE 411: Any mention or statement that Defendant is, was, or may
be covered by some form of liability insurance with respect to the damages sought in this case.
Such information is entirely immaterial to any issue in this lawsuit and any direct or indirect
mention of insurance should not be permitted.
8 Evidence of Other Accidents, Claims, Lawsuits, Judgments, or Settlements Involving
Defendant: Any reference to, or testimony related to, any prior or subsequent accidents, claims,
lawsuits, judgments, or settlements involving Defendant. Subsequent acts are inadmissible on the
grounds that they are irrelevant, immaterial, and prejudicial. Evidence of subsequent accidents,
claims, lawsuits, judgments, and/or settlements would unfairly prejudice Defendant and cause
confusion of the issues in this case. Defendant would in fact be required to research or refute
whatever allegations might surround the other incidents, lawsuits, and/or judgments if such
evidence were made admissible. It would be costly and time consuming to do this, since it would
force Defendant to evaluate and "try" each and every other incident mentioned. The admissibility
of such evidence merely clouds the issues presented in this case and would unfairly prejudice the
defense. TEX. R. Evip. 403.
9 Medical Bills or Healthcare Expenses not actually paid or Incurred _by Plaintiff:
Recovery of medical or healthcare expenses incurred are limited to the amount actually paid or
incurred on behalf of the claimant. Tex. Civ. Prac. & Rem. Code, § 41.0105. Plaintiff should be
precluded from presenting evidence of medical and healthcare expenses which were not actually
paid or incurred.
10. Evidence of Prior or Subsequent Offenses: Plaintiff should not be permitted to make any
reference to, or present testimony related to, any prior or subsequent uncharged offenses or
crimes of Defendant or Defendant’ semployees. Evidence of any such acts is inadmissible on the
grounds that they are irrelevant, immaterial, and prejudicial. The admissibility of such evidence
merely clouds the issues presented in this case and would unfairly prejudice the defense.
11. Requests for Material from Trial Counsel’s File: Plaintiff should not be permitted to
request from Defendant’s counsel any document, memo, report, photo, or other item or
information from the files or briefcases of Defendant’s counsel while in the presence of the jury.
Such requests are improper, and can serve only to harass, embarrass, or cast Defendant’s counsel
in an unfavorable light before the jurors that will hear this cause.
12. Impairment Rating Testimony or Evidence: Any testimony by Plaintiff or any other
witness concerning an impairment rating; as such testimony is irrelevant and prejudicial to the
Defendant. In the workers compensation context, an “impairment rating” means the percentage
of permanent impairment of the whole body resulting from a compensable injury. TEX. LABOR
CobE § 401.011(24)(Vernon Supp. 2009). All impairment ratings must be assigned by doctors
based on a review of medical records and a certifying physical examination performed explicitly
to determine MMI and an impairment rating. Pacific Employers Ins. Co. v. Brown, 86 8.W.3d
353, 360 (Tex. App.-Texarkana 2002, no pet.)(citing TEX. LAB. CODE ANN. § 408.124 (Vernon
Supp. 2002); 28 TEx. ADMIN. CODE § 130.1(b)(2), (4)(B))(emphasis added). However, in the
‘jury charge” context, “physical impairment” is defined as the loss of a person's former lifestyle,
extending beyond pain, mental anguish, and earning capacity. Casas v. Paradez, 267 S.W.3d
170, 188 (Tex.App. —San Antonio 2008, pet. denied).
It is the jury's job to determine if Defendant was negligent. A cause of action for
negligence has three elements: (1) a legal duty; (2) a breach of that duty; and (3) damages
proximately resulting from the breach. Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex.
1998)(emphasis added). “Physical impairment” is an element of damages that can be awarded
when a claim is for negligence. PJC 8.2(d)(basic general damages question in personal injury
case). Since the jury will be asked to determine the damages awarded to Plaintiff, if it finds that
Defendant was negligent (which will likely include asking the jury if Plaintiff suffered a physical
impairment), allowing into evidence the impairment rating assigned by any of Plaintiff's medical
providers will infringe on the jury's role in this regard.
A doctor's letter to the insurance carrier in a workers compensation case was inadmissible
as a business record under TEX. R. EviD. 803(6) and was thus inadmissible hearsay because it did
not qualify as a routine entry in the claimant's medical history. Texas Employer’s Insurance
Association v. Sauceda, 636 S.W.2d 494, 498 (Tex.App. —San Antonio 1982, no writ)(business
of doctors is to care for patients and requires systematic keeping of records essential to proper
care). Similarly, a workers compensation doctor's impairment rating of Plaintiff was not part of
Plaintiff's treatment and care and does not constitute a routine entry in Plaintiff's medical history.
Accordingly, such evidence is inadmissible.
13. Indirect Medical Testimony: Any testimony by Plaintiff or any other witness concerning
what a medical doctor, physical therapist, or other health care professional has told them about
the cause of Plaintiff's injuries, diagnosis or prognosis; as such testimony would be hearsay. In
addition, Defendant would not have the opportunity to cross-examine the medical provider.
14. Lay Expert Testimony: Any testimony by or on behalf of Plaintiff about any matter that
calls for expert opinion if the witness has not been properly qualified as an expert. This includes,
but is not limited to, statements from Plaintiff or any lay witness about causation of the accident,
medical diagnosis, and/or medical prognosis.
15. Statements from Witnesses Not Presented at Trial: Any testimony regarding what
witnesses said at the scene regarding fault, causation or what happened in the incident. Any such
statements are hearsay and would be prejudicial to Defendant.
16. TRE 408 and 409: Plaintiff should not be allowed to mention offers of settlement or any
other evidence, if any, of furnishing or offering or promising to pay medical, hospital, or other
expenses which may have been incurred as a result of the incident.
17. Appeals to Bias, Sympathy, or Prejudice: Plaintiff should not be permitted to offer any
statement, argument, or testimony designed to appeal to bias, sympathy, or prejudice of the
jurors. Such factors are not to be considered by the jury in determining their verdict, and it is
consequently improper to inject such appeals into the trial of this cause.
18. Statements Regarding the Relative Worth of the Parties: Any statement, argument, or
testimony that raises or implies any alleged disparity in the economic worth of Defendant as
contrasted to the economic worth of Plaintiff, for the reason that such comment is not relevant to
any issue in this trial, and is offered only for the purpose of eliciting sympathy from the jury in
favor of Plaintiff. Further, no testimony or information regarding Defendant’s net worth is
appropriate or relevant as there is no evidence of any/acts or omissions on the part of the
Defendant that supports a finding of exemplary or punitive damages.
19. Testimony of Future Medical Expenses and/or Surgery and/or Disability: Plaintiff should
be precluded from presenting testimony regarding the need for future medical care and/or
surgery and the associated expenses with any contemplated future medical care and/or surgery
on the grounds of unreliability and speculation and failure to comply with the court’s order
following Defendant’s motion to compel. In Williams Distributing Co. v. Franklin, 884 S.W.2d
503 (Tex.App. —Dallas 1994), affd in part & rev'd in part on other grounds, 898 S.W.2d 816
(Tex. 1995)(per curiam), the Dallas Court of Appeals held that, to recover future medical
expenses, a plaintiff must show that “there is a reasonable probability expenses accruing from his
injury will be necessary in the future." /d. at 510 (citing Fisher v. Coastal Transp. Co., 149 Tex
224, 227-29, 230 S.W.2d 522, 523-25 (1950)). This showing requires proof of two elements: (1)
"a plaintiff must present evidence that he will incur in reasonable probability medical expense in
the future"; and (2) "a plaintiff must prove the probable reasonable amount of the future medical
expense." Williams Distrib. Co., 884 S.W.2d at 510. A jury determines whether future medical
expenses necessarily will be incurred "by considering the substance of a competent expert
witness's testimony." /d.; see Fibreboard Corp. v. Pool, 813 S.W.2d 658, 682 (Tex.App. —
Texarkana 1991, writ denied)(noting reasonable probability is determined by considering expert
witness's testimony), cert. denied, 509 U.S. 923 (1993); see also City of Houston v. Muras, 1997
WL 152641 (Tex.App. ~Houston [14th Dist.] 1997). Reasonable probability is determined by
the substance and context of an expert's opinion and does not turn on semantics or the use of a
particular term or phrase. See Williams Distrib. Co., 884 S.W .2d at 510 (quoting Lenger v.
Physician's Gen. Hosp., Inc., 455 S.W.2d 703, 707 (Tex.1970)). Future medical expenses are
probable rather than possible when proof of such expenses rises to the level of "more likely than
not" rather than "mere possibilit[y]." Mirick, 984 S.W.2d at 775; see Fibreboard, Corp. 813
S.W.2d at 681-82.
Considering the speculation and conflict from any testimony that Plaintiff is a candidate
for future medical care and/or surgery, the Court should strike this testimony and related records
concerning any future medical care and/or surgery and the related future medical expenses.
20. Irrelevant Evidence Regarding Defendants’ Employees: Defendant’s forktruck driver,
Maldonado, admitted to a prior conviction (1995 DWI, misdemeanor). Evidence of this
conviction should be excluded as it is not a felony or crime of moral turpitude and has no
relevance to the facts asserted in this case or Maldonado’s credibility as a witness. It should also
be excluded under TRE 609(f). In addition, the status of Maldonado’s motor vehicle driver's
license should be excluded under TRE 403, no driver’s license is required to operate a forktruck
and Maldonado received appropriate pre-accident training relative to that equipment. Last, the
citizenship and immigration status of any of Defendant’s employees is not relevant and should be
excluded on TRE 403.
21. Referring to Insurance Representative or Calling them to Testify: Defendant’s insurer
may have a representative monitor the trial. He/she does not have personal knowledge of the
facts of the case, and communications by which they have knowledge of the case are privileged.
Calling him/her to testify would be highly prejudicial to Defendant.
22. TRE _701-705:EXPERTS: Any evidence elicited from an expert that is not within the
expert’s field of knowledge or has not been adequately and timely disclosed should be excluded.
Any evidence from any individual that purports to be expert or opinion testimony, including but
not limited to any testimony concerning liability, medical causation or care, and reasonableness
and necessity of costs without proper foundations and qualifications, or having been previously
disclosed in discovery. TEX. R. EviD. 701 — 705; TEx. R. Civ. PRoc. 194.2 and 196.3.
23. CPRC _— 18.001: Defendant requests that Plaintiff not be allowed to enter medical
evidence or testimony by affidavit or records other than medical billing as permitted by 18.001
by timely notice or allow hearsay within business records into evidence. Any records which
contain or which are entirely hearsay should be excluded unless an exception is proven. Rule
802, 803, Tex. R. EviD. In light of Defendant’s counter-affidavits, Plaintiff's 18.001 affidavits
should be excluded from evidence.
24, Who Will Pay: Advising the Jury not to worry who will pay the judgment or whether it is
ever paid, or words to that effect. Murphy v. Waldrip, 692, S.W.2d 584.
25. Jury Commitment: Any evidence or argument which attempts to obtain a commitment
from the jury to do any act or give any particular weight to any particular evidence or witness,
for example, to write a specific dollar figure. Texas General Indemnity Co. v. Mannhalther, 290
S.W. 2d 360 (Tex. Civ. App. -Galveston 1956, no writ).
26. Demonstrative Evidence: Should Plaintiff wish to use any demonstrative evidence or
motion picture film, that the item be tendered to the Court and opposing counsel, outside of the
presence of the Jury, and shown or exhibited to determine relevance and suitability for
introduction into evidence prior to and before informing the Jury as to its existence.
27. Cost of Litigation: 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 the
opposing party in the preparation and/or defense of this case, the parties inability to adequately
prove their case due to cost or the amount of attorney fees to be paid.
28. Prior Pleadings or Un-supplemented Discovery: The contents of any superseded
pleadings or any matters not timely identified in the pleadings, discovery responses and
depositions, including economic damages, any new causes of action or un-supplemented
opinions of any expert offered by Plaintiff. Tex. R. Evip. 403 and 404; Tex. R. Civ. PRoc. 193.6.
Additionally, any efforts to elicit cross-examination from any witness regarding matters no
longer relevant based on amended pleadings.
29. Discovery Objections: Any reference to objections to written discovery or during
depositions as such is not relevant.
30. Discovery Disputes: Any reference, comment or question regarding any problems,
objections, or difficulties encountered during the discovery process, comments regarding “lack of
cooperation" during discovery or motions to compel, motions to strike, the amount of resources,
money or investigators used by Defendant in preparation of this case and/or defense.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court grant this
Motion In Limine in its entirety, that it grant the protection and relief sought herein by an
appropriate order binding all parties, all attorneys, all witnesses, and all persons appearing on
each party's behalf, and that it grant such other and further relief to which Defendant may show
itself justly entitled.
Respectfully submitted,
FULKERSON.
& WOLLAM. ie ERO
<7? C4
ERIK OLE.
TBN: 00788705
TODD C. FEDER
TBN: 00787455
1776 Yorktown, Suite 100
Houston, Texas 77056
Telephone: (713) 225-3400
Facsimile: (713) 225-3300
ATTORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE
I hereby certify that on the 25" day of Mar Of] ame and correct copy of the
foregoing was sent or delivered to all parties 1 of yecord pursuant to Rule 21a
T.R.C.P.
cL
CH R. WOLLAM
10
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CAUSE NO. 2010-04488 GERARDO CRUZ IN THE DISTRICT COURT OF Vv HARRIS COUNTY, TEXAS CITY MASONRY, INC. 269™ JUDICIAL DISTRICT DEFENDANT’S MOTION IN LIMINE Before the voir dire examination of the jury panel, and out of the presence and hearing of the jury panel, Defendant City Masonry, Inc. makes this Motion in Limine. Defendant seeks to exclude matters that are inadmissible, irrelevant, or prejudicial in this case. If Plaintiff, Gerardo Cruz, injects these matters into the trial of this case through a party, an attorney, or a witness, it will cause irreparable harm to Defendant’s case, which no jury instruction could cure. If any of these matters are brought to the attention of the jury, directly or indirectly, Defendant would be compelled to move for a mistrial. In an effort to avoid prejudice and a mistrial, Defendant urges this Motion in Limine. 1 Attorney/Client_Communications: Plaintiff should be prohibited from mentioning, referring to, or attempting to elicit testimony from any representatives of Defendant regarding communications with any of Defendant’s attorneys. Such communications are privileged. TEX. R. Evin. 503. 2 Witnesses Not Revealed in Discovery: Plaintiff should not be permitted to present any witness that he did not properly identify as trial witnesses in Answers to Interrogatories, or as persons with knowledge of relevant facts in his Responses to Requests for Disclosure. 3 Failure to Call a Witness: Plaintiff should not be permitted to mention or make reference to Defendant’s failure to call any witness equally available to any other party. This prohibition should remain in place until such time as it is shown that the necessary legal prerequisite for such comment exists: that such witness is within the exclusive control of, or stands in some special relationship to, Defendant. Tex-Jersey Oil Corp. v. Beck, 305 S.W.2d 162 (Tex. 1957). 4 TRE 802: Ex Parte Statements: Plaintiff should not be permitted to mention, make reference to, tender, read from, offer, or exhibit to the jury any hearsay or ex parte statement, report, or exhibit from any witness who has not been present in Court to testify and be subject to examination by Defendant’s counsel. 5 Documents Not Produced in Discovery: Plaintiff should not be permitted to mention, make reference to, or attempt to offer evidence concerning any writings, recordings, videotapes, photographs, or other documents, including diagrams, tests, studies, correspondence, or other information, which have not been produced in response to any discovery request or which have not timely been made available to Defendant’s attorneys in connection with this case prior to trial. The introduction of such evidence or reference to such evidence, without revealing these documents pursuant to proper discovery requests and the discovery orders of this Court constitutes an abuse of the discovery process and prohibits the Defendant from having a fair opportunity to prepare and meet the issues raised by the evidence. Plaintiff should not be permitted to withhold relevant evidence or material from discovery and then "ambush" the Defendant with such evidence at trial. 6 Documents and Exhibits Not Provided with Pre-Trial Order Requirements: Plaintiff should not be permitted to exhibit, display, or mention in any way before the jury any documents, maps, drawings, photographs, charts or other visual displays that have not been filed and provided in compliance with the court’s pre-trial order. 7 Liability Insurance TRE 411: Any mention or statement that Defendant is, was, or may be covered by some form of liability insurance with respect to the damages sought in this case. Such information is entirely immaterial to any issue in this lawsuit and any direct or indirect mention of insurance should not be permitted. 8 Evidence of Other Accidents, Claims, Lawsuits, Judgments, or Settlements Involving Defendant: Any reference to, or testimony related to, any prior or subsequent accidents, claims, lawsuits, judgments, or settlements involving Defendant. Subsequent acts are inadmissible on the grounds that they are irrelevant, immaterial, and prejudicial. Evidence of subsequent accidents, claims, lawsuits, judgments, and/or settlements would unfairly prejudice Defendant and cause confusion of the issues in this case. Defendant would in fact be required to research or refute whatever allegations might surround the other incidents, lawsuits, and/or judgments if such evidence were made admissible. It would be costly and time consuming to do this, since it would force Defendant to evaluate and "try" each and every other incident mentioned. The admissibility of such evidence merely clouds the issues presented in this case and would unfairly prejudice the defense. TEX. R. Evip. 403. 9 Medical Bills or Healthcare Expenses not actually paid or Incurred _by Plaintiff: Recovery of medical or healthcare expenses incurred are limited to the amount actually paid or incurred on behalf of the claimant. Tex. Civ. Prac. & Rem. Code, § 41.0105. Plaintiff should be precluded from presenting evidence of medical and healthcare expenses which were not actually paid or incurred. 10. Evidence of Prior or Subsequent Offenses: Plaintiff should not be permitted to make any reference to, or present testimony related to, any prior or subsequent uncharged offenses or crimes of Defendant or Defendant’ semployees. Evidence of any such acts is inadmissible on the grounds that they are irrelevant, immaterial, and prejudicial. The admissibility of such evidence merely clouds the issues presented in this case and would unfairly prejudice the defense. 11. Requests for Material from Trial Counsel’s File: Plaintiff should not be permitted to request from Defendant’s counsel any document, memo, report, photo, or other item or information from the files or briefcases of Defendant’s counsel while in the presence of the jury. Such requests are improper, and can serve only to harass, embarrass, or cast Defendant’s counsel in an unfavorable light before the jurors that will hear this cause. 12. Impairment Rating Testimony or Evidence: Any testimony by Plaintiff or any other witness concerning an impairment rating; as such testimony is irrelevant and prejudicial to the Defendant. In the workers compensation context, an “impairment rating” means the percentage of permanent impairment of the whole body resulting from a compensable injury. TEX. LABOR CobE § 401.011(24)(Vernon Supp. 2009). All impairment ratings must be assigned by doctors based on a review of medical records and a certifying physical examination performed explicitly to determine MMI and an impairment rating. Pacific Employers Ins. Co. v. Brown, 86 8.W.3d 353, 360 (Tex. App.-Texarkana 2002, no pet.)(citing TEX. LAB. CODE ANN. § 408.124 (Vernon Supp. 2002); 28 TEx. ADMIN. CODE § 130.1(b)(2), (4)(B))(emphasis added). However, in the ‘jury charge” context, “physical impairment” is defined as the loss of a person's former lifestyle, extending beyond pain, mental anguish, and earning capacity. Casas v. Paradez, 267 S.W.3d 170, 188 (Tex.App. —San Antonio 2008, pet. denied). It is the jury's job to determine if Defendant was negligent. A cause of action for negligence has three elements: (1) a legal duty; (2) a breach of that duty; and (3) damages proximately resulting from the breach. Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex. 1998)(emphasis added). “Physical impairment” is an element of damages that can be awarded when a claim is for negligence. PJC 8.2(d)(basic general damages question in personal injury case). Since the jury will be asked to determine the damages awarded to Plaintiff, if it finds that Defendant was negligent (which will likely include asking the jury if Plaintiff suffered a physical impairment), allowing into evidence the impairment rating assigned by any of Plaintiff's medical providers will infringe on the jury's role in this regard. A doctor's letter to the insurance carrier in a workers compensation case was inadmissible as a business record under TEX. R. EviD. 803(6) and was thus inadmissible hearsay because it did not qualify as a routine entry in the claimant's medical history. Texas Employer’s Insurance Association v. Sauceda, 636 S.W.2d 494, 498 (Tex.App. —San Antonio 1982, no writ)(business of doctors is to care for patients and requires systematic keeping of records essential to proper care). Similarly, a workers compensation doctor's impairment rating of Plaintiff was not part of Plaintiff's treatment and care and does not constitute a routine entry in Plaintiff's medical history. Accordingly, such evidence is inadmissible. 13. Indirect Medical Testimony: Any testimony by Plaintiff or any other witness concerning what a medical doctor, physical therapist, or other health care professional has told them about the cause of Plaintiff's injuries, diagnosis or prognosis; as such testimony would be hearsay. In addition, Defendant would not have the opportunity to cross-examine the medical provider. 14. Lay Expert Testimony: Any testimony by or on behalf of Plaintiff about any matter that calls for expert opinion if the witness has not been properly qualified as an expert. This includes, but is not limited to, statements from Plaintiff or any lay witness about causation of the accident, medical diagnosis, and/or medical prognosis. 15. Statements from Witnesses Not Presented at Trial: Any testimony regarding what witnesses said at the scene regarding fault, causation or what happened in the incident. Any such statements are hearsay and would be prejudicial to Defendant. 16. TRE 408 and 409: Plaintiff should not be allowed to mention offers of settlement or any other evidence, if any, of furnishing or offering or promising to pay medical, hospital, or other expenses which may have been incurred as a result of the incident. 17. Appeals to Bias, Sympathy, or Prejudice: Plaintiff should not be permitted to offer any statement, argument, or testimony designed to appeal to bias, sympathy, or prejudice of the jurors. Such factors are not to be considered by the jury in determining their verdict, and it is consequently improper to inject such appeals into the trial of this cause. 18. Statements Regarding the Relative Worth of the Parties: Any statement, argument, or testimony that raises or implies any alleged disparity in the economic worth of Defendant as contrasted to the economic worth of Plaintiff, for the reason that such comment is not relevant to any issue in this trial, and is offered only for the purpose of eliciting sympathy from the jury in favor of Plaintiff. Further, no testimony or information regarding Defendant’s net worth is appropriate or relevant as there is no evidence of any/acts or omissions on the part of the Defendant that supports a finding of exemplary or punitive damages. 19. Testimony of Future Medical Expenses and/or Surgery and/or Disability: Plaintiff should be precluded from presenting testimony regarding the need for future medical care and/or surgery and the associated expenses with any contemplated future medical care and/or surgery on the grounds of unreliability and speculation and failure to comply with the court’s order following Defendant’s motion to compel. In Williams Distributing Co. v. Franklin, 884 S.W.2d 503 (Tex.App. —Dallas 1994), affd in part & rev'd in part on other grounds, 898 S.W.2d 816 (Tex. 1995)(per curiam), the Dallas Court of Appeals held that, to recover future medical expenses, a plaintiff must show that “there is a reasonable probability expenses accruing from his injury will be necessary in the future." /d. at 510 (citing Fisher v. Coastal Transp. Co., 149 Tex 224, 227-29, 230 S.W.2d 522, 523-25 (1950)). This showing requires proof of two elements: (1) "a plaintiff must present evidence that he will incur in reasonable probability medical expense in the future"; and (2) "a plaintiff must prove the probable reasonable amount of the future medical expense." Williams Distrib. Co., 884 S.W.2d at 510. A jury determines whether future medical expenses necessarily will be incurred "by considering the substance of a competent expert witness's testimony." /d.; see Fibreboard Corp. v. Pool, 813 S.W.2d 658, 682 (Tex.App. — Texarkana 1991, writ denied)(noting reasonable probability is determined by considering expert witness's testimony), cert. denied, 509 U.S. 923 (1993); see also City of Houston v. Muras, 1997 WL 152641 (Tex.App. ~Houston [14th Dist.] 1997). Reasonable probability is determined by the substance and context of an expert's opinion and does not turn on semantics or the use of a particular term or phrase. See Williams Distrib. Co., 884 S.W .2d at 510 (quoting Lenger v. Physician's Gen. Hosp., Inc., 455 S.W.2d 703, 707 (Tex.1970)). Future medical expenses are probable rather than possible when proof of such expenses rises to the level of "more likely than not" rather than "mere possibilit[y]." Mirick, 984 S.W.2d at 775; see Fibreboard, Corp. 813 S.W.2d at 681-82. Considering the speculation and conflict from any testimony that Plaintiff is a candidate for future medical care and/or surgery, the Court should strike this testimony and related records concerning any future medical care and/or surgery and the related future medical expenses. 20. Irrelevant Evidence Regarding Defendants’ Employees: Defendant’s forktruck driver, Maldonado, admitted to a prior conviction (1995 DWI, misdemeanor). Evidence of this conviction should be excluded as it is not a felony or crime of moral turpitude and has no relevance to the facts asserted in this case or Maldonado’s credibility as a witness. It should also be excluded under TRE 609(f). In addition, the status of Maldonado’s motor vehicle driver's license should be excluded under TRE 403, no driver’s license is required to operate a forktruck and Maldonado received appropriate pre-accident training relative to that equipment. Last, the citizenship and immigration status of any of Defendant’s employees is not relevant and should be excluded on TRE 403. 21. Referring to Insurance Representative or Calling them to Testify: Defendant’s insurer may have a representative monitor the trial. He/she does not have personal knowledge of the facts of the case, and communications by which they have knowledge of the case are privileged. Calling him/her to testify would be highly prejudicial to Defendant. 22. TRE _701-705:EXPERTS: Any evidence elicited from an expert that is not within the expert’s field of knowledge or has not been adequately and timely disclosed should be excluded. Any evidence from any individual that purports to be expert or opinion testimony, including but not limited to any testimony concerning liability, medical causation or care, and reasonableness and necessity of costs without proper foundations and qualifications, or having been previously disclosed in discovery. TEX. R. EviD. 701 — 705; TEx. R. Civ. PRoc. 194.2 and 196.3. 23. CPRC _— 18.001: Defendant requests that Plaintiff not be allowed to enter medical evidence or testimony by affidavit or records other than medical billing as permitted by 18.001 by timely notice or allow hearsay within business records into evidence. Any records which contain or which are entirely hearsay should be excluded unless an exception is proven. Rule 802, 803, Tex. R. EviD. In light of Defendant’s counter-affidavits, Plaintiff's 18.001 affidavits should be excluded from evidence. 24, Who Will Pay: Advising the Jury not to worry who will pay the judgment or whether it is ever paid, or words to that effect. Murphy v. Waldrip, 692, S.W.2d 584. 25. Jury Commitment: Any evidence or argument which attempts to obtain a commitment from the jury to do any act or give any particular weight to any particular evidence or witness, for example, to write a specific dollar figure. Texas General Indemnity Co. v. Mannhalther, 290 S.W. 2d 360 (Tex. Civ. App. -Galveston 1956, no writ). 26. Demonstrative Evidence: Should Plaintiff wish to use any demonstrative evidence or motion picture film, that the item be tendered to the Court and opposing counsel, outside of the presence of the Jury, and shown or exhibited to determine relevance and suitability for introduction into evidence prior to and before informing the Jury as to its existence. 27. Cost of Litigation: 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 the opposing party in the preparation and/or defense of this case, the parties inability to adequately prove their case due to cost or the amount of attorney fees to be paid. 28. Prior Pleadings or Un-supplemented Discovery: The contents of any superseded pleadings or any matters not timely identified in the pleadings, discovery responses and depositions, including economic damages, any new causes of action or un-supplemented opinions of any expert offered by Plaintiff. Tex. R. Evip. 403 and 404; Tex. R. Civ. PRoc. 193.6. Additionally, any efforts to elicit cross-examination from any witness regarding matters no longer relevant based on amended pleadings. 29. Discovery Objections: Any reference to objections to written discovery or during depositions as such is not relevant. 30. Discovery Disputes: Any reference, comment or question regarding any problems, objections, or difficulties encountered during the discovery process, comments regarding “lack of cooperation" during discovery or motions to compel, motions to strike, the amount of resources, money or investigators used by Defendant in preparation of this case and/or defense. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court grant this Motion In Limine in its entirety, that it grant the protection and relief sought herein by an appropriate order binding all parties, all attorneys, all witnesses, and all persons appearing on each party's behalf, and that it grant such other and further relief to which Defendant may show itself justly entitled. Respectfully submitted, FULKERSON. & WOLLAM. ie ERO <7? C4 ERIK OLE. TBN: 00788705 TODD C. FEDER TBN: 00787455 1776 Yorktown, Suite 100 Houston, Texas 77056 Telephone: (713) 225-3400 Facsimile: (713) 225-3300 ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE I hereby certify that on the 25" day of Mar Of] ame and correct copy of the foregoing was sent or delivered to all parties 1 of yecord pursuant to Rule 21a T.R.C.P. cL CH R. WOLLAM 10