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CAUSE NO. 2017 41522
Vandaven Johnson IN THE DISTRICT COURT OF
Plaintiff,
HARRIS COUNTY, TEXAS
Battleground Oil Specialty Terminal Company,
LLC; Kinder Morgan Battleground Oil, LLC;
Kinder Morgan, Inc.; Boone Towing, Inc.;
Atlantic Richfield Company
Defendants. 295th JUDICIAL DISTRICT
Plaintiff’s First Amended Motions in Limine
Prior to the voir dire examination of the jury panel, and out of the presence of and
hearing of the jury panel, Plaintiff asks the Court to instruct Defendant , Defendants counsel,
representatives, and all witnesses tendered by Defendant , including those who
may testify by deposition only, to refrain from, directly or indirectly, mentioning, referring, or
in any way alluding (by introducing evidence or otherwise), making any statement about, or
asking any questions about the matters set forth below in the presence of prospective jurors,
the jury panel, or the jury ultimately selected in this case. In the alternative, this Court should
require Defendant to raise the following matters with the Court outside the presence of the
jury panel or jury before they are injected into this case.
The matters to which this Motion is addressed are either inadmissible or so highly (and
unduly) prejudicial that, even though an objection were to be timely made and sustained,
irreparable harm would be done to Plaintiff which no jury instruction could cure.
1. Any evidence, reference to, or arguments in violation of the Court’s standing limine
order.
GRANTED _________ AGREED TO BY COUNSEL____________
DENIED _________ GRANTED AS MODIFIED ABOVE______
2. Any evidence, reference to, or insinuation that Plaintiff has received, is entitled to
receive, or may become entitled to receive benefits of any kind or character from a
collateral source not specifically mentioned in the Court’s standing limine order
including workers’ compensation benefits, disability benefits, attorney loans, bank
loans, advances issued by third party financers, “Obamacare”, the Affordable Care Act,
etc. Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 934-36 (Tex. 1999);
Taylor v. Am. Fabritech, Inc., 132 S.W.3d 613, 626 (Tex. App.—Houston [14th
Dist.] 2004, pet. denied) (collateral source rule is a “rule of evidence and damages”
that “precludes a tortfeasor from obtaining the benefit of, or even mentioning,
payments to the injured party from sources other than the tortfeasor.”) (emphasis
added); SeaRiver Maritime, Inc. v. Pike, 2006 WL 1553264 (Tex. App.—Corpus
Christi 2006, pet. denied).
GRANTED _________ AGREED TO BY COUNSEL____________
DENIED _________ GRANTED AS MODIFIED ABOVE______
3. Defendant shall make no statement concerning the probable testimony of a witness who
is absent or not called to testify in this case. TEX. R. CIV. P. 602, 801, and 802.
GRANTED _________ AGREED TO BY COUNSEL____________
DENIED _________ GRANTED AS MODIFIED ABOVE______
4. Any attempt to introduce written or recorded statements or the substance of such
statements that are hearsay that are not specifically mentioned in the Court’s standing
limine order. This generally includes any investigative statements by the Defendant’s
investigators, any written statements in accident reports, or any other statements that
are hearsay. TEX. R. EVID. 801, 802.
GRANTED _________ AGREED TO BY COUNSEL____________
DENIED _________ GRANTED AS MODIFIED ABOVE______
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5. Any mention or reference to the personal habits, character traits, political views, and
any crimes, arrests, convictions, wrongs or acts of Plaintiff, any witness called by
Plaintiffs, or Plaintiffs’ family members, including but not limited to smoking, fighting,
drinking alcoholic beverages, womanizing, adultery, prior marriages, illegitimate
children, traffic violations, illegal drug use, drug and/or alcohol rehabilitation
programs, and swearing. There is no evidence that those habits, character traits,
wrongs, or acts, in any, contributed in any way to the occurrence made the basis of this
suit or are relevant to the determination of any issue in this suit. In addition, any such
information and related documentation was requested by Plaintiff through written
discovery and to date no such information or documentation has been produced.
Furthermore, the probative value of these matters is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, and misleading the jury. This type
of evidence would only be offered for the impermissible purpose of portraying Plaintiff,
his witnesses, or his family members as bad persons. TEX. R. EVID. 403, 404, 608, and
609; Margo v. Ragsdale Bros., Inc. 721 S.W.2d 832, 834 (Tex. 1986); McCarty v.
Gappelberg, 273 S.W.2d 943 (Tex. App.–Fort Worth 1954, writ ref’d n.r.e.); Ramirez
v. Wood, 577 S.W.2d 278, 290 (Tex. App.–Corpus Christi 179, no writ).
GRANTED _________ AGREED TO BY COUNSEL____________
DENIED _________ GRANTED AS MODIFIED ABOVE______
6. References to or questioning about what effect the verdict or judgment in this lawsuit
will or could have on the cost of Defendant conducting business or on Defendant’s
ability or inability to compete in the marketplace. TEX. R. EVID. 401-403.
GRANTED _________ AGREED TO BY COUNSEL____________
DENIED _________ GRANTED AS MODIFIED ABOVE______
7. That Defendant be prohibited from claiming or stating that the nation’s court systems
are overloaded due to cases such as this or similar cases or references or statements like
“there are too many lawsuits” or “too much litigation.” References of this nature are
irrelevant and unfairly prejudicial. They are also prejudicial to Plaintiffs’ right to a fair
and impartial trial, would confuse the issues, and/or mislead the jury. TEX. R. EVID.
401, 402, and 403.
GRANTED _________ AGREED TO BY COUNSEL____________
DENIED _________ GRANTED AS MODIFIED ABOVE______
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8. Any reference by Defendant’s counsel to the fact that this motion (or similar motions)
have been filed, or any ruling by the Court has been made in response to this motion,
suggesting or inferring to the jury that Plaintiffs moved to prohibit proof or that the
Court has excluded proof of any particular matter. TEX. R. EVID. 401, 402, and 403.
GRANTED _________ AGREED TO BY COUNSEL____________
DENIED _________ GRANTED AS MODIFIED ABOVE______
9. That Defendant be prohibited from offering any testimony and evidence, asking any
questions, making any reference to, or arguing to the jury, any expert opinions that were
not timely disclosed to Plaintiff in accordance with the Texas Rules of Civil Procedure
or this Court’s Docket Control Order. This includes any defense expert attempting to
testify outside the scope of his/her designations and reports. TEX. R. CIV. P. 193.5, 193.6
& 195.6.
GRANTED _________ AGREED TO BY COUNSEL____________
DENIED_________ GRANTED AS MODIFIED ABOVE______
10. Offering into evidence or making reference to surveillance of Plaintiff or witness
statements from Plaintiff as such was requested of Defendant, but never produced.
TEX. R. CIV. P. 193.6; Lopez v. La Madeleine of Texas, 200 S.W.3d 854 (Tex. App.—
Dallas 2006, no pet.) (reversible error to admit surveillance not previously produced);
See also TEX. R. CIV. P. 192.5(c)(4) (“a photograph or electronic image of any sort that
a party intends to offer into evidence” is not protected by the work product privilege).
GRANTED _________ AGREED TO BY COUNSEL____________
DENIED _________ GRANTED AS MODIFIED ABOVE______
11. Offering into evidence or making reference to social media regarding Plaintiff
(Facebook, Instagram, Twitter, LinkedIn, Myspace, etc.) as such was responsive to
Plaintiff’s discovery requests, but never produced. TEX. R. CIV. P. 193.6; Lopez v. La
Madeleine of Texas, 200 S.W.3d 854 (Tex.App.—Dallas 2006, no pet.) (reversible
error to admit surveillance not previously produced); See also TEX. R. CIV. P.
192.5(c)(4) (“a photograph or electronic image of any sort that a party intends to offer
into evidence” is not protected by the work product privilege).
GRANTED _________ AGREED TO BY COUNSEL____________
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DENIED _________ GRANTED AS MODIFIED ABOVE______
12. References or arguments implying or suggesting to the jury that Defendant’s conduct
must be the sole cause of Plaintiff’s damages or injuries in order for Defendant to be
liable or for Plaintiff to recover damages. This argument would be a misstatement of
the law and only calculated to falsely and incorrectly mislead the jury. TEX. R. EVID.
403.
GRANTED _________ AGREED TO BY COUNSEL____________
DENIED _________ GRANTED AS MODIFIED ABOVE______
13. References to who paid for Plaintiff’s medical treatment necessitated by the incident
made the basis of this suit. Brown v. American Transfer & Storage Co., 601 S.W.2d
931, 934-36 (Tex. 1999); Taylor v. Am. Fabritech, Inc., 132 S.W.3d 613, 626 (Tex.
App.—Houston [14th Dist.] 2004, pet. denied); SeaRiver Maritime, Inc. v. Pike, 2006
WL 1553264 (Tex.App.—Corpus Christi 2006, pet. denied); TEX. R. EVID. 402 and
403
GRANTED _________ AGREED TO BY COUNSEL____________
DENIED _________ GRANTED AS MODIFIED ABOVE______
14. References to any litigation, past, present, or future involving any of Plaintiff’s treating
physicians. Reference to any such information is irrelevant, or to the extent it is
relevant, its probative value is outweighed by its prejudicial effect. TEX. R. EVID. 401-
403.
GRANTED _________ AGREED TO BY COUNSEL____________
DENIED _________ GRANTED AS MODIFIED ABOVE______
15. Any reference to expert designations, disclosures, affidavits, pleadings, briefs, exhibits,
compensation, or other documents in any other cases besides the instant action. TEX.
R. EVID. 802; 608; and 403.
GRANTED _________ AGREED TO BY COUNSEL____________
DENIED _________ GRANTED AS MODIFIED ABOVE______
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16. Any reference to the number of times Arnold & Itkin LLP has referred a patient to a
given doctor in any other cases besides the instant action. This includes, but is not
limited to, expert designations, disclosures, affidavits, pleadings, briefs, etc. from other
cases. TEX. R. EVID. 802; 608; and 403; See also In re Ford Motor Co., 427 S.W.3d
396, 398 (Tex. 2014); See also In re Central North Const., LLC, 2014 WL 1410548 at
*3 (Tex. App.—Dallas Apr. 10, 2014, no pet.) (“pre-trial discovery sought only to
establish financial interest [of an expert] for impeachment purposes is not allowed.”).
GRANTED _________ AGREED TO BY COUNSEL____________
DENIED _________ GRANTED AS MODIFIED ABOVE______
17. Any reference to the number of times Arnold & Itkin LLP has retained a given expert
on any other cases besides the instant action. This includes, but is not limited to, expert
designations, disclosures, affidavits, pleadings, briefs, etc. from other cases. TEX. R.
EVID. 802; 608; and 403; See also In re Ford Motor Co., 427 S.W.3d 396, 398 (Tex.
2014); See also In re Central North Const., LLC, 2014 WL 1410548 at *3 (Tex. App.—
Dallas Apr. 10, 2014, no pet.) (“pre-trial discovery sought only to establish financial
interest [of an expert] for impeachment purposes is not allowed.”).
GRANTED _________ AGREED TO BY COUNSEL____________
DENIED _________ GRANTED AS MODIFIED ABOVE______
18. That if any of the Defendant feel any area which is covered by this Motion in Limine
or any areas which by their nature are not admissible under the Rules of Evidence or
Rules of Civil Procedure such as privileged communications, collateral source, prior
settlement offer, etc. or that if the Defendant feel “a door has been opened,” that they
must, before saying or presenting or exhibiting anything in the jury’s presence
regarding same, that they approach the bench and make inquiry side bar without the
jury being able to hear same in a voice designed so that the jury will not hear same.
This particular limine subpart is to be followed regardless of the time of the trial,
including arguments.
GRANTED _________ AGREED TO BY COUNSEL____________
DENIED _________ GRANTED AS MODIFIED ABOVE______
19. Any reference by Defendant’s counsel to the fact that Plaintiff may have used a jury
consultant. TEX. R. EVID. 401-403
GRANTED _________ AGREED TO BY COUNSEL____________
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DENIED_________ GRANTED AS MODIFIED ABOVE______
20. Any request by Defendant’s to use Plaintiffs’ demonstratives, easels, “flip charts,” or
Court Room technology while the jury is present. TEX. R. EVID. 401-403
GRANTED _________ AGREED TO BY COUNSEL____________
DENIED_________ GRANTED AS MODIFIED ABOVE_______
21. That Defendant be prohibited from offering any testimony, asking any questions,
making any reference to, or arguing to the jury that Plaintiff’s prior health or physical
condition caused the injuries or damages which are the subject of this lawsuit. There
is no evidence that Plaintiff’s prior health or physical condition in any way contributed
to or caused the accident forming the basis of the lawsuit, or that Plaintiff’s prior health
or physical condition caused the injuries or damages which are the subject of this
lawsuit. TEX. R. EVID. 402 and 403.
GRANTED _________ AGREED TO BY COUNSEL____________
DENIED_________ GRANTED AS MODIFIED ABOVE______
22. Any argument, testimony, evidence, reference to, or insinuation that Plaintiff’s
recovery for past medical expenses be based on Plaintiff’s “out of pocket” costs (i.e.
the amount Plaintiff has paid himself) as such an argument is directly contrary to law.
TEX. R. EVID. 403; See Taylor v. Am. Fabritech, Inc., 132 S.W.3d 613, 626 (Tex.
App.—Houston [14th Dist.] 2004, pet. denied) (collateral source rule is a “rule of
evidence and damages” that “precludes a tortfeasor from obtaining the benefit of,
or even mentioning, payments to the injured party from sources other than the
tortfeasor.”) (emphasis added); TEX. CIV. PRAC. & REM. CODE § 41.0105 (a plaintiff
may recover past medical expenses that have been “actually paid or incurred by or on
behalf of the claimant.”); Haygood v. De Escabedo, 356 S.W.3d 390, 398 (Tex. 2012)
(Section 41.0105 of the CPRC only “excludes the difference between such amount and
charges the service provider bills but has no right to be paid.”) (emphasis added).
GRANTED _________ AGREED TO BY COUNSEL____________
DENIED_________ GRANTED AS MODIFIED ABOVE______
23. Any argument, testimony, evidence, reference to, or insinuation that Plaintiff’s should
have or could have) submitted his medical bills for payment by a private insurer,
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workers compensation carier, a government agency, Medicare, Medicaid, etc. TEX. R.
EVID. 403; Guzman v. Jones, 804 F.3d 707, 710-13 (5th Cir. 2015) (holding that Texas
law and Section 41.0105 of the CPRC does not require a plaintiff to mitigate his
damages by submitting medical expenses to Medicaid or workers compensation carrier
even when the plaintiff is eligible for such benefits)
GRANTED _________ AGREED TO BY COUNSEL____________
DENIED_________ GRANTED AS MODIFIED ABOVE______
24. Any argument, testimony, evidence, or insinuation that a medical bill that Plaintiff
“proved up” in accordance with TEX. CIV. PRAC. & REM. CODE § 18.001 does not reflect
the reasonable charge for the medical service at issue and/or that the medical service
was not necessary unless Defendants timely filed a counter-affidavit that complies with
TEX. CIV. PRAC. & REM. CODE § 18.001(e)-(f). Hong v. Bennett, 209 S.W.3d 795, 800
(Tex. App.—Fort Worth 2006, no pet.) (“Section 18.001 is an evidentiary statute that
accomplishes three things: (1) it allows for the admissibility, by affidavit, of evidence
of the reasonableness and necessity of charges that would otherwise be inadmissible
hearsay; (2) it permits the use of otherwise inadmissible hearsay to support findings of
fact by the trier of fact; and (3) it provides for exclusion of evidence to the contrary,
upon proper objection, in the absence of a properly-filed controverting affidavit.”)
(emphasis added).
GRANTED _________ AGREED TO BY COUNSEL____________
DENIED_________ GRANTED AS MODIFIED ABOVE______
25. Any argument, testimony, evidence, or reference to medical conditions and/or injuries
that are not at issue in this case. TEX. R. EVID. 403.
GRANTED _________ AGREED TO BY COUNSEL____________
DENIED_________ GRANTED AS MODIFIED ABOVE______
SIGNED this, the _____ day of ____________________________, 2020.
_______________________________________
Presiding Judge
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Respectfully submitted,
ARNOLD & ITKIN LLP
/s/ Cory Itkin
Jason A. Itkin
State Bar No. 24032461
Cory D. Itkin
State Bar No. 24050808
Ryan S. Macleod
State Bar No. 24068346
6009 Memorial Drive
Houston, Texas 77007
Telephone: (713) 222-3800
Facsimile: (713) 222-3850
jaiteam@arnolditkin.com
e-service@arnolditkin.com
jitkin@arnolditkin.com
citkin@arnolditkin.com
rmacleod@arnolditkin.com
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I certify that on October 12, 2020, a copy of the foregoing was served upon all counsel
of record in compliance with Texas Rules of Civil Procedure.
/s/ Cory Itkin_________________________
Cory Itkin
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CAUSE NO. 2017 41522 Vandaven Johnson IN THE DISTRICT COURT OF Plaintiff, HARRIS COUNTY, TEXAS Battleground Oil Specialty Terminal Company, LLC; Kinder Morgan Battleground Oil, LLC; Kinder Morgan, Inc.; Boone Towing, Inc.; Atlantic Richfield Company Defendants. 295th JUDICIAL DISTRICT Plaintiff’s First Amended Motions in Limine Prior to the voir dire examination of the jury panel, and out of the presence of and hearing of the jury panel, Plaintiff asks the Court to instruct Defendant , Defendants counsel, representatives, and all witnesses tendered by Defendant , including those who may testify by deposition only, to refrain from, directly or indirectly, mentioning, referring, or in any way alluding (by introducing evidence or otherwise), making any statement about, or asking any questions about the matters set forth below in the presence of prospective jurors, the jury panel, or the jury ultimately selected in this case. In the alternative, this Court should require Defendant to raise the following matters with the Court outside the presence of the jury panel or jury before they are injected into this case. The matters to which this Motion is addressed are either inadmissible or so highly (and unduly) prejudicial that, even though an objection were to be timely made and sustained, irreparable harm would be done to Plaintiff which no jury instruction could cure. 1. Any evidence, reference to, or arguments in violation of the Court’s standing limine order. GRANTED _________ AGREED TO BY COUNSEL____________ DENIED _________ GRANTED AS MODIFIED ABOVE______ 2. Any evidence, reference to, or insinuation that Plaintiff has received, is entitled to receive, or may become entitled to receive benefits of any kind or character from a collateral source not specifically mentioned in the Court’s standing limine order including workers’ compensation benefits, disability benefits, attorney loans, bank loans, advances issued by third party financers, “Obamacare”, the Affordable Care Act, etc. Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 934-36 (Tex. 1999); Taylor v. Am. Fabritech, Inc., 132 S.W.3d 613, 626 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (collateral source rule is a “rule of evidence and damages” that “precludes a tortfeasor from obtaining the benefit of, or even mentioning, payments to the injured party from sources other than the tortfeasor.”) (emphasis added); SeaRiver Maritime, Inc. v. Pike, 2006 WL 1553264 (Tex. App.—Corpus Christi 2006, pet. denied). GRANTED _________ AGREED TO BY COUNSEL____________ DENIED _________ GRANTED AS MODIFIED ABOVE______ 3. Defendant shall make no statement concerning the probable testimony of a witness who is absent or not called to testify in this case. TEX. R. CIV. P. 602, 801, and 802. GRANTED _________ AGREED TO BY COUNSEL____________ DENIED _________ GRANTED AS MODIFIED ABOVE______ 4. Any attempt to introduce written or recorded statements or the substance of such statements that are hearsay that are not specifically mentioned in the Court’s standing limine order. This generally includes any investigative statements by the Defendant’s investigators, any written statements in accident reports, or any other statements that are hearsay. TEX. R. EVID. 801, 802. GRANTED _________ AGREED TO BY COUNSEL____________ DENIED _________ GRANTED AS MODIFIED ABOVE______ 2 5. Any mention or reference to the personal habits, character traits, political views, and any crimes, arrests, convictions, wrongs or acts of Plaintiff, any witness called by Plaintiffs, or Plaintiffs’ family members, including but not limited to smoking, fighting, drinking alcoholic beverages, womanizing, adultery, prior marriages, illegitimate children, traffic violations, illegal drug use, drug and/or alcohol rehabilitation programs, and swearing. There is no evidence that those habits, character traits, wrongs, or acts, in any, contributed in any way to the occurrence made the basis of this suit or are relevant to the determination of any issue in this suit. In addition, any such information and related documentation was requested by Plaintiff through written discovery and to date no such information or documentation has been produced. Furthermore, the probative value of these matters is substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury. This type of evidence would only be offered for the impermissible purpose of portraying Plaintiff, his witnesses, or his family members as bad persons. TEX. R. EVID. 403, 404, 608, and 609; Margo v. Ragsdale Bros., Inc. 721 S.W.2d 832, 834 (Tex. 1986); McCarty v. Gappelberg, 273 S.W.2d 943 (Tex. App.–Fort Worth 1954, writ ref’d n.r.e.); Ramirez v. Wood, 577 S.W.2d 278, 290 (Tex. App.–Corpus Christi 179, no writ). GRANTED _________ AGREED TO BY COUNSEL____________ DENIED _________ GRANTED AS MODIFIED ABOVE______ 6. References to or questioning about what effect the verdict or judgment in this lawsuit will or could have on the cost of Defendant conducting business or on Defendant’s ability or inability to compete in the marketplace. TEX. R. EVID. 401-403. GRANTED _________ AGREED TO BY COUNSEL____________ DENIED _________ GRANTED AS MODIFIED ABOVE______ 7. That Defendant be prohibited from claiming or stating that the nation’s court systems are overloaded due to cases such as this or similar cases or references or statements like “there are too many lawsuits” or “too much litigation.” References of this nature are irrelevant and unfairly prejudicial. They are also prejudicial to Plaintiffs’ right to a fair and impartial trial, would confuse the issues, and/or mislead the jury. TEX. R. EVID. 401, 402, and 403. GRANTED _________ AGREED TO BY COUNSEL____________ DENIED _________ GRANTED AS MODIFIED ABOVE______ 3 8. Any reference by Defendant’s counsel to the fact that this motion (or similar motions) have been filed, or any ruling by the Court has been made in response to this motion, suggesting or inferring to the jury that Plaintiffs moved to prohibit proof or that the Court has excluded proof of any particular matter. TEX. R. EVID. 401, 402, and 403. GRANTED _________ AGREED TO BY COUNSEL____________ DENIED _________ GRANTED AS MODIFIED ABOVE______ 9. That Defendant be prohibited from offering any testimony and evidence, asking any questions, making any reference to, or arguing to the jury, any expert opinions that were not timely disclosed to Plaintiff in accordance with the Texas Rules of Civil Procedure or this Court’s Docket Control Order. This includes any defense expert attempting to testify outside the scope of his/her designations and reports. TEX. R. CIV. P. 193.5, 193.6 & 195.6. GRANTED _________ AGREED TO BY COUNSEL____________ DENIED_________ GRANTED AS MODIFIED ABOVE______ 10. Offering into evidence or making reference to surveillance of Plaintiff or witness statements from Plaintiff as such was requested of Defendant, but never produced. TEX. R. CIV. P. 193.6; Lopez v. La Madeleine of Texas, 200 S.W.3d 854 (Tex. App.— Dallas 2006, no pet.) (reversible error to admit surveillance not previously produced); See also TEX. R. CIV. P. 192.5(c)(4) (“a photograph or electronic image of any sort that a party intends to offer into evidence” is not protected by the work product privilege). GRANTED _________ AGREED TO BY COUNSEL____________ DENIED _________ GRANTED AS MODIFIED ABOVE______ 11. Offering into evidence or making reference to social media regarding Plaintiff (Facebook, Instagram, Twitter, LinkedIn, Myspace, etc.) as such was responsive to Plaintiff’s discovery requests, but never produced. TEX. R. CIV. P. 193.6; Lopez v. La Madeleine of Texas, 200 S.W.3d 854 (Tex.App.—Dallas 2006, no pet.) (reversible error to admit surveillance not previously produced); See also TEX. R. CIV. P. 192.5(c)(4) (“a photograph or electronic image of any sort that a party intends to offer into evidence” is not protected by the work product privilege). GRANTED _________ AGREED TO BY COUNSEL____________ 4 DENIED _________ GRANTED AS MODIFIED ABOVE______ 12. References or arguments implying or suggesting to the jury that Defendant’s conduct must be the sole cause of Plaintiff’s damages or injuries in order for Defendant to be liable or for Plaintiff to recover damages. This argument would be a misstatement of the law and only calculated to falsely and incorrectly mislead the jury. TEX. R. EVID. 403. GRANTED _________ AGREED TO BY COUNSEL____________ DENIED _________ GRANTED AS MODIFIED ABOVE______ 13. References to who paid for Plaintiff’s medical treatment necessitated by the incident made the basis of this suit. Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 934-36 (Tex. 1999); Taylor v. Am. Fabritech, Inc., 132 S.W.3d 613, 626 (Tex. App.—Houston [14th Dist.] 2004, pet. denied); SeaRiver Maritime, Inc. v. Pike, 2006 WL 1553264 (Tex.App.—Corpus Christi 2006, pet. denied); TEX. R. EVID. 402 and 403 GRANTED _________ AGREED TO BY COUNSEL____________ DENIED _________ GRANTED AS MODIFIED ABOVE______ 14. References to any litigation, past, present, or future involving any of Plaintiff’s treating physicians. Reference to any such information is irrelevant, or to the extent it is relevant, its probative value is outweighed by its prejudicial effect. TEX. R. EVID. 401- 403. GRANTED _________ AGREED TO BY COUNSEL____________ DENIED _________ GRANTED AS MODIFIED ABOVE______ 15. Any reference to expert designations, disclosures, affidavits, pleadings, briefs, exhibits, compensation, or other documents in any other cases besides the instant action. TEX. R. EVID. 802; 608; and 403. GRANTED _________ AGREED TO BY COUNSEL____________ DENIED _________ GRANTED AS MODIFIED ABOVE______ 5 16. Any reference to the number of times Arnold & Itkin LLP has referred a patient to a given doctor in any other cases besides the instant action. This includes, but is not limited to, expert designations, disclosures, affidavits, pleadings, briefs, etc. from other cases. TEX. R. EVID. 802; 608; and 403; See also In re Ford Motor Co., 427 S.W.3d 396, 398 (Tex. 2014); See also In re Central North Const., LLC, 2014 WL 1410548 at *3 (Tex. App.—Dallas Apr. 10, 2014, no pet.) (“pre-trial discovery sought only to establish financial interest [of an expert] for impeachment purposes is not allowed.”). GRANTED _________ AGREED TO BY COUNSEL____________ DENIED _________ GRANTED AS MODIFIED ABOVE______ 17. Any reference to the number of times Arnold & Itkin LLP has retained a given expert on any other cases besides the instant action. This includes, but is not limited to, expert designations, disclosures, affidavits, pleadings, briefs, etc. from other cases. TEX. R. EVID. 802; 608; and 403; See also In re Ford Motor Co., 427 S.W.3d 396, 398 (Tex. 2014); See also In re Central North Const., LLC, 2014 WL 1410548 at *3 (Tex. App.— Dallas Apr. 10, 2014, no pet.) (“pre-trial discovery sought only to establish financial interest [of an expert] for impeachment purposes is not allowed.”). GRANTED _________ AGREED TO BY COUNSEL____________ DENIED _________ GRANTED AS MODIFIED ABOVE______ 18. That if any of the Defendant feel any area which is covered by this Motion in Limine or any areas which by their nature are not admissible under the Rules of Evidence or Rules of Civil Procedure such as privileged communications, collateral source, prior settlement offer, etc. or that if the Defendant feel “a door has been opened,” that they must, before saying or presenting or exhibiting anything in the jury’s presence regarding same, that they approach the bench and make inquiry side bar without the jury being able to hear same in a voice designed so that the jury will not hear same. This particular limine subpart is to be followed regardless of the time of the trial, including arguments. GRANTED _________ AGREED TO BY COUNSEL____________ DENIED _________ GRANTED AS MODIFIED ABOVE______ 19. Any reference by Defendant’s counsel to the fact that Plaintiff may have used a jury consultant. TEX. R. EVID. 401-403 GRANTED _________ AGREED TO BY COUNSEL____________ 6 DENIED_________ GRANTED AS MODIFIED ABOVE______ 20. Any request by Defendant’s to use Plaintiffs’ demonstratives, easels, “flip charts,” or Court Room technology while the jury is present. TEX. R. EVID. 401-403 GRANTED _________ AGREED TO BY COUNSEL____________ DENIED_________ GRANTED AS MODIFIED ABOVE_______ 21. That Defendant be prohibited from offering any testimony, asking any questions, making any reference to, or arguing to the jury that Plaintiff’s prior health or physical condition caused the injuries or damages which are the subject of this lawsuit. There is no evidence that Plaintiff’s prior health or physical condition in any way contributed to or caused the accident forming the basis of the lawsuit, or that Plaintiff’s prior health or physical condition caused the injuries or damages which are the subject of this lawsuit. TEX. R. EVID. 402 and 403. GRANTED _________ AGREED TO BY COUNSEL____________ DENIED_________ GRANTED AS MODIFIED ABOVE______ 22. Any argument, testimony, evidence, reference to, or insinuation that Plaintiff’s recovery for past medical expenses be based on Plaintiff’s “out of pocket” costs (i.e. the amount Plaintiff has paid himself) as such an argument is directly contrary to law. TEX. R. EVID. 403; See Taylor v. Am. Fabritech, Inc., 132 S.W.3d 613, 626 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (collateral source rule is a “rule of evidence and damages” that “precludes a tortfeasor from obtaining the benefit of, or even mentioning, payments to the injured party from sources other than the tortfeasor.”) (emphasis added); TEX. CIV. PRAC. & REM. CODE § 41.0105 (a plaintiff may recover past medical expenses that have been “actually paid or incurred by or on behalf of the claimant.”); Haygood v. De Escabedo, 356 S.W.3d 390, 398 (Tex. 2012) (Section 41.0105 of the CPRC only “excludes the difference between such amount and charges the service provider bills but has no right to be paid.”) (emphasis added). GRANTED _________ AGREED TO BY COUNSEL____________ DENIED_________ GRANTED AS MODIFIED ABOVE______ 23. Any argument, testimony, evidence, reference to, or insinuation that Plaintiff’s should have or could have) submitted his medical bills for payment by a private insurer, 7 workers compensation carier, a government agency, Medicare, Medicaid, etc. TEX. R. EVID. 403; Guzman v. Jones, 804 F.3d 707, 710-13 (5th Cir. 2015) (holding that Texas law and Section 41.0105 of the CPRC does not require a plaintiff to mitigate his damages by submitting medical expenses to Medicaid or workers compensation carrier even when the plaintiff is eligible for such benefits) GRANTED _________ AGREED TO BY COUNSEL____________ DENIED_________ GRANTED AS MODIFIED ABOVE______ 24. Any argument, testimony, evidence, or insinuation that a medical bill that Plaintiff “proved up” in accordance with TEX. CIV. PRAC. & REM. CODE § 18.001 does not reflect the reasonable charge for the medical service at issue and/or that the medical service was not necessary unless Defendants timely filed a counter-affidavit that complies with TEX. CIV. PRAC. & REM. CODE § 18.001(e)-(f). Hong v. Bennett, 209 S.W.3d 795, 800 (Tex. App.—Fort Worth 2006, no pet.) (“Section 18.001 is an evidentiary statute that accomplishes three things: (1) it allows for the admissibility, by affidavit, of evidence of the reasonableness and necessity of charges that would otherwise be inadmissible hearsay; (2) it permits the use of otherwise inadmissible hearsay to support findings of fact by the trier of fact; and (3) it provides for exclusion of evidence to the contrary, upon proper objection, in the absence of a properly-filed controverting affidavit.”) (emphasis added). GRANTED _________ AGREED TO BY COUNSEL____________ DENIED_________ GRANTED AS MODIFIED ABOVE______ 25. Any argument, testimony, evidence, or reference to medical conditions and/or injuries that are not at issue in this case. TEX. R. EVID. 403. GRANTED _________ AGREED TO BY COUNSEL____________ DENIED_________ GRANTED AS MODIFIED ABOVE______ SIGNED this, the _____ day of ____________________________, 2020. _______________________________________ Presiding Judge 8 Respectfully submitted, ARNOLD & ITKIN LLP /s/ Cory Itkin Jason A. Itkin State Bar No. 24032461 Cory D. Itkin State Bar No. 24050808 Ryan S. Macleod State Bar No. 24068346 6009 Memorial Drive Houston, Texas 77007 Telephone: (713) 222-3800 Facsimile: (713) 222-3850 jaiteam@arnolditkin.com e-service@arnolditkin.com jitkin@arnolditkin.com citkin@arnolditkin.com rmacleod@arnolditkin.com ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I certify that on October 12, 2020, a copy of the foregoing was served upon all counsel of record in compliance with Texas Rules of Civil Procedure. /s/ Cory Itkin_________________________ Cory Itkin 9