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DALLAS COUNTY
1/6/2014 1:24:39 PM
GARY FITZSIMMONS.
DISTRICT CLERK
Cause No. DC-12-07708
MAMERTO A. FRANDO, JR. § IN THE DISTRICT COURT OF
§
VS. § DALLAS COUNTY, TEXAS
§
TROY CROSSON § 101ST JUDICIAL DISTRICT
DEFENDANT’S MOTION IN LIMINE
Defendant Troy Crosson files this Motion in Limine and respectfully moves the Court as
follows:
I
That Plaintiff and his attorneys be instructed not to mention or bring before the jury,
either directly or indirectly, upon voir dire, reading of pleadings, statement of the case,
interrogation of witnesses, argument, objections before the jury or in any other means or manner
inform the jury or bring to the jury’s attention any of the matters set forth in the paragraphs
below unless and until such matters have been first called to the Court’s attention out of the
presence and/or hearing of the jury and a favorable ruling received as to the admissibility and
relevance of such matters.
I.
Further, that plaintiff's counsel be specifically instructed to inform all witnesses called by
the Plaintiff or parties in the courtroom at the request of the parties, not to volunteer, inject,
disclose, state or mention to the jury any of the below enumerated matters unless specifically
questioned thereon after prior ruling by the Court.
Ti.
That the violation of any and/or all of these instructions would constitute harm to the
Defendant’s cause and deprive Defendant of a fair and impartial trial; therefore, the Court should
JEFENDANT’S MOTION IN LIMINE—PAGE 1.
instruct Plaintiff and Plaintiff's counsel the failure to abide by such order of the Court may
constitute contempt.
Iv.
That the matters hereafter set out would be inadmissible in evidence for any purpose on
proper and timely objection in that they have no bearing on the issues in this case or the rights of
the parties of this suit.
Vv.
That permitting interrogation of witnesses, comments or suggestions in the presence of
jurors or prospective jurors or offers of evidence concerning any of the matters set forth
hereinafter would be prejudicial, and sustaining objections to such questions, comments,
suggestions or evidence introduced by counsel or witnesses will not prevent prejudice, but will
reinforce the development of prejudicial and questionable evidence. Specifically, the following
matters should not be admissible for any purpose in this cause:
1 PRIOR STATEMENTS: Any use of or reference to (including publication to the jury)
of any prior statement, pleading, deposition, request for admission or declaration by
Defendant or other witness(es), including, but not limited to recorded or transcribed
statements and any question(s) and response(s) contained in any deposition taken in this
matter to which an objection was made, unless and until the party offering any such prior
statement, pleading, deposition, request for admission or declaration prove to the Court’s
satisfaction, outside the presence of the jury, its relevance, materiality and admissibility.
TEX. R. Evip. 104, 401, 402, 403.
GRANTED: DENIED: AGREED: MODIFIED:
USE OF DOCUMENTS AND/OR EXHIBITS: Any use of or comment or reference to
the contents of any photograph, video or digital recording, document or exhibit during
voir dire, opening statement, examination/cross-examination or publication to the jury
before document or exhibit is admitted into evidence. Ranger Ins. Co. v. Rogers, 530
S.W.2d 162, 170 (Tex. App. — Austin 1975, writ ref'd n.r.e.); Guerro v. Smith, 864
S.W.2d 797, 799-800 (Tex. App. — Houston [14th Dist.] 1993, no writ).
GRANTED: DENIED: AGREED: MODIFIED:
DEFENDANT’S MOTION IN LIMINE—PAGE 2
INSURANCE: Any comment, statement, argument or testimony that Defendant’s
attorney or the defense firm are employees of an insurance company or that they
regularly represent insurance companies.
GRANTED: DENIED: AGREED: MODIFIED:
INSURANCE: Any interrogation of the venire panel or any individual potential juror as
to any connection with the insurance industry or being self-insured because such
questioning improperly interjects insurance into the case. Tex. R. Evip. 411. If
Plaintiffs counsel is interested in determining whether any such connection exists, he can
do so by asking each individual potential juror about his or her current or past occupation
and that of those in his or her household, which should be sufficient for Plaintiff's
purposes without harming Defendant by injecting insurance into the case. Brockett v.
Tice, 445 S.W.2d 20 (Tex. Civ. App. — Dallas 1971, writ ref'd n.r.e.); Johnson v. Reed,
464 S.W.2d 689 (Tex. Civ. App. — Dallas 1971, writ ref'd n.r.e.).
GRANTED: DENIED: AGREED: MODIFIED:
INSURANCE: Any interrogation of the venire panel or any potential juror as to whether
they would answer the question on damages large or small if supported by the evidence
regardless of when or if such a judgment is paid or by whom, or any other version of such
question as well as, any jury argument which would be of similar import because such
inquiry/argument improperly injects insurance into the suit. TEx. R. Evip. 411; Griffith
v. Casteel, 313 8.W.2d 149 (Tex. Civ. App. - Houston 1958, writ ref'd n.r.e.).
GRANTED: DENIED: AGREED: MODIFIED:
INSURANCE: Any comment or reference that Defendant is or was covered by liability
insurance. Tex. R. Evip. 411; McGrede v. Coursey, 131 S.W.3d 189, 196 (Tex. App.-
San Antonio 2004, no pet.)
GRANTED: DENIED: AGREED: MODIFIED:
INSURANCE: Any comment, statement, argument, testimony, or reference that
Plaintiff did not have health insurance or his health insurance ran out or he was unable to
pay for medical care.
GRANTED: DENIED: AGREED: MODIFIED:
INSURANCE: Any comment, statement, argument or testimony regarding the actions,
statements, comments of any of the employees and/or agents of any insurance company
other those of the attorney handling the case as allowed by the Texas Rules of Evidence,
this Court, the Texas Rules of Civil Procedure and the law.
GRANTED: DENIED: AGREED: MODIFIED:
DEFENDANT’S MOTION IN LIMINE—PAGE 3
DISCOVERY: Any objection based on failure to disclose evidence in pretrial discovery.
Any party desiring to urge any such objection shall request to approach the bench and
urge such objection outside the hearing of the jury. To the extent possible or predictable,
such matters should be addressed and a ruling sought at pretrial once the case is assigned
for trial, although the objection may be urged for the record outside the hearing of the
jury at the time such evidence is offered in the event the Court has overruled the
objection at pretrial.
GRANTED: DENIED: AGREED: MODIFIED:
10. HEARSAY: Any inquiry, comment, statement, reference or argument about what
Plaintiffs may have been told by another person, whether or not such person has been or
will be called to testify, including, but not limited to, statements made to Plaintiffs by
their medical providers. TEx. R. Evip. 801, 802. Moreover, such hearsay statements
equate to unqualified expert medical opinions. TEx. R. Evip. 701, 703
GRANTED: DENIED: AGREED: MODIFIED:
11 UNDISCLOSED OR UNPLEAD LEGAL THEORIES: Any mention of a legal
theory which has not been disclosed to Defendant in a timely fashion pursuant to TEX. R.
Civ. P. 194.2(c) or found within the language of the live pleadings at the time of trial
because the introduction of a legal theory which has not been timely and properly
disclosed would unfairly surprise and/or prejudice Defendant. TEx. R. CIv. P. 63, 66:
Chapin & Chapin, Inc. v. Texas Sand & Gravel Co. 844 S.W.2d 664, 665 (Tex. 1992);
American Title Co. v. Bomac Mortg. Holdings, L.P., 196 $.W.3d 903, 910 (Tex. App. —
Dallas 2006, pet. granted, judgm’t vacated w.r.m.); see also, TEX. R. Civ. P. 193.6.
GRANTED: DENIED: AGREED: MODIFIED:
12. UNDISCLOSED OR UNPLEAD DAMAGES: Any evidence of damage claimed,
whether economic, general, special or otherwise, which has not been timely disclosed,
proven up and properly calculated as required by TEX. R. Civ. P. 194.2(d) prior to trial as
the same would unfairly surprise and/or prejudice Defendant. TEx. R. Civ. P. 193.6.
GRANTED: DENIED: AGREED: MODIFIED:
13 UNDISCLOSED WITNESSES: Any testimony from a witness not properly identified
as a person with knowledge of relevant facts or otherwise adequately described under
Rule 194.2(e) prior to trial and/or not identified on a party’s pre-trial testifying witness
list as the same would unfairly surprise and/or prejudice Defendant. TEx. R. Civ. P.
193.6.
GRANTED: DENIED: AGREED: MODIFIED:
DEFENDANT’S MOTION IN LIMINE—PAGE 4
14 MEDICAL BILLS: Any evidence of the amount of any medical, therapy, chiropractic
or other health care charges, bills or expenses allegedly attributable to the occurrence
absent competent testimony that such charges, bills or expenses are reasonable and
necessary in the county in which the treatment was provided and have been generated by
a properly designated healthcare provider and which charges, bills or expenses have not
been previously produced in discovery.
GRANTED: DENIED: AGREED: ——— MODIFIED:
15 CPRC §18.001 AFFIDAVITS: Any evidence by way of §18.001 Affidavit that does
not comply with the Texas Supreme Court’s ruling in Haygood v. Escabedo, 356 S.W.3d
390 (Tex. 2011). Plaintiff should not be allowed to introduce evidence of or to argue the
total amount of medical expenses billed where any portion of those expenses has been
deducted or written-off by the medical care provider. Id. Moreover, Plaintiff should not
be allowed to introduce evidence that states amounts have been adjusted because of
insurance. Jd. at 400.
GRANTED: DENIED: AGREED: MODIFIED:
16 LAY WITNESSES: Any comment or question to a lay witness that requires special skill
or expertise. TEX. R. Evip. 701, 703.
GRANTED: DENIED: AGREED: MODIFIED:
17. EXPERTS: Any testimony by a testifying expert whose impressions and opinions have
not been timely disclosed pursuant to TEX. R. Civ. P. 194.2(f) or any opinions or other
testimony based on information or other data reviewed after the deadline for disclosing
the impressions or opinions derived from such data or information, as well as any
reference or reliance on documents or materials relied upon by an expert that has not
been timely or properly disclosed pursuant to Rule 194. TEx. R. Cv. P. 193.6.
GRANTED: DENIED: AGREED: MODIFIED:
18 EXPERTS: Any testimony by an expert whose impressions and opinions are based on
information generated or supplied by persons with knowledge of relevant facts or
consulting experts who have not been timely disclosed pursuant to TEx. R. Civ. P.
194.2(e, f) or any opinions or other testimony based on information or other data
reviewed after the deadline for disclosing the impressions or opinions derived from such
data or information. TEX. R. CIv. P. 193.6.
GRANTED: DENIED: AGREED: MODIFIED:
19. EXPERTS: Any new opinion contrary to or an impermissible expansion of the previous
opinions provided by experts. The intent behind expert discovery (including expert
reports and depositions) is to allow the parties to discover the experts’ factual
observations, tests, supporting data, calculations, photographs and opinions. TEX. R. Clv.
DEFENDANT’S MOTION IN LIMINE—PAGE 5
P. 195.5; accord Tibbets v. Gagliardi, 2 S.W.3d 659, 663 n.1 (Tex.App. — Houston [14th
Dist.] 1999, pet. denied)(an expert’s report must provide the expert’s opinions and the
underlying bases for them). Alteration of the underlying bases for such opinions on the
eve of trial constitutes unfair surprise and/or prejudice. TEX. R. Civ. P. 193.6.
GRANTED: DENIED: AGREED: MODIFIED:
20 EXPERTS: Any mention, statement or testimony about what any party’s counsel may
have been told by any expert witness unless that witness is before the Court.
GRANTED: DENIED: AGREED: MODIFIED:
21 EXPERT REPORTS: Any report(s) prepared by an expert in this case as any such
report constitutes inadmissible hearsay. TEX. R. Evip. 801, 802.
GRANTED: DENIED: AGREED: MODIFIED:
22 MEDICAL TESTIMONY: Any inquiry, comment, statement, argument or testimony
from Plaintiff or Plaintiff's counsel about matters that require medical expertise as neither
Plaintiff nor his attorney is qualified to render expert medical opinions. TEX. R. Evip.
701, 703.
GRANTED: DENIED: AGREED: MODIFIED:
23. MEDICAL TESTIMONY: Any inquiry, comment, statement, argument or testimony
from Plaintiff or Plaintiffs counsel regarding the necessity, likelihood or costs of future
medical expenses or treatment as neither Plaintiff nor his attorney is (a) qualified to
render expert opinions on these matters or (b) designated as expert witnesses on such
matters. TEX. R. EvID. 701, 703; TEX. R. Civ. P. 194.2(f).
GRANTED: DENIED: AGREED: MODIFIED:
24. DAMAGES: Any comment, reference or question in voir dire regarding whether
potential jurors can award a specific dollar amount.
GRANTED: DENIED: AGREED: MODIFIED:
25 DAMAGES BASED ON EMOTION: Any argument, comment or reference by
Plaintiff or Plaintiff's counsel implying or suggesting the jury or venire should make
Defendant take responsibility for his actions or other such language which is calculated to
have the jury assess damages based upon an emotional response rather than the evidence
and the Court’s charge. TEX. R. Civ. P. 226a; Southwestern Greyhound Lines, Inc. v.
Dickson, 236 S.W.2d 115, 119 (Tex. 1951).
GRANTED: DENIED: AGREED: MODIFIED:
)EFENDANT’S MOTION IN LIMINE—PAGE 6
26 DAMAGES AIMED TO “HELP” PLAINTIFF: Any argument, comment or reference
by Plaintiff or Plaintiff's counsel in front of the jury, using phrases such as “Do all you
can to help Plaintiff’ or other appeals of a similar nature. Texas Employers’ Ins. Ass’n. v.
McCaslin, 317 S.W.2d 916, 921 (Tex. 1958). Texas law requires that the jury be
instructed it should not let bias, prejudice or sympathy play any part in its deliberations.
TEX. R. Civ. P. 226a.
GRANTED: DENIED: AGREED: MODIFIED:
27. STANDING IN THE PLAINTIFF’S SHOES: Any argument, comment or reference
asking the jurors or perspective jurors to place themselves in the position of Plaintiff.
TEX. R. Civ. P. 226a; World Wide Tire Co. v. Brown, 644 S.W.2d 144, 145-46 (Tex. App.
— Houston [14th Dist.] 1982, writ ref'd n.r.e.).
GRANTED: DENIED: AGREED: MODIFIED:
28, DEVIATION FROM COURT’S CHARGE: Any comment, statement, reference or
argument concerning Defendant’s refusal to accept “responsibility” or “fault” for the
accident, or any other term that does not mirror the appropriate legal standard for
negligence in the State of Texas and, therefore, conflicts with the Court’s charge to the
jury. TEX. R. Cv. P. 226a. In addition, any comment, statement, reference or argument
that Defendant is refusing to accept responsibility or to be held accountable is designed to
and likely will confuse or mislead the jury about the proper legal standards applicable to
this case. TEx. R. EviD. 401, 403. Moreover, any such comment, statement, reference or
argument also constitutes an impermissible indirect attempt to interject insurance and
information regarding settlement negotiations into this case. TEX. R. EviD. 408, 411.
GRANTED: DENIED: AGREED: MODIFIED:
29 SYMPATHY: Any argument, comment or reference that the outcome of this litigation
may affect the economic position of members of the Plaintiff's family or reference to any
hardships which may result to Plaintiff or Plaintiff's family as a result of a particular jury
verdict or answer to any specific issue.
GRANTED: DENIED: AGREED: MODIFIED:
30. CLOSING ARGUMENT: Any argument that any finding or failure to find in response
to a particular question will or will not result in a judgment favorable to any party. This
provision does not bar argument by counsel that a particular jury question should be
answered in a particular way.
GRANTED: DENIED: AGREED: MODIFIED:
JEFENDANT’S MOTION IN LIMINE—PAGE 7
31 CLOSING ARGUMENT: Any argument, comment or reference that this Honorable
Court would not have submitted questions for the jury’s consideration unless the Court
felt there was evidence to support the same, as any such argument or inference would
function as a comment on the weight of the evidence and would have the effect of
advising the jury panel or the jury of the effects of its answers and would further manifest
great prejudice to the Defendant. Tex. R. Evin. 403,
GRANTED: DENIED: AGREED: MODIFIED:
32. CLOSING ARGUMENT: Any use of the “Golden Rule” line of argument as such
would be irrelevant and unfairly prejudicial. TEx. R. Evip. 401, 403.
GRANTED: DENIED: AGREED: MODIFIED:
33 IMPEACHMENT: Any use of documents, pictures or videotapes as exhibits for the
purpose of impeachment which were not produced by Plaintiff in response to Defendant’s
written discovery.
GRANTED: DENIED: AGREED: MODIFIED:
34 OTHER CLAIMS/LAWSUITS: Any comment, statement, argument, testimony, or
reference to any other claims or lawsuits involving Defendant in Dallas County, or
anywhere else, including but not limited to, references to the outcome of such trials, or
the amounts of damages awarded by and jury or judge in such trials, the number of
lawsuits in which Defendant is involved or has been involved in, or referring to directly
or indirectly, the facts, evidence, results, settlement or verdicts pertaining to any other
lawsuit whatsoever. TEX. R. EVID. 401 and 403.
GRANTED: DENIED: AGREED: MODIFIED:
35 SETTLEMENT: Any negotiations, offers or demands with respect to any attempted
settlement or mediation. TEx. R. Evip. 408.
GRANTED: DENIED: AGREED: MODIFIED:
36 SETTLEMENT: Any comment, mention, or implication of Defendant’s and/or
Defendant’s agent’s statements that were made during settlement negotiations. TEX. R.
Evi. 408.
GRANTED: DENIED: AGREED: MODIFIED:
37 STIPULATIONS: Any request or demand in the presence of the jury for a stipulation of
fact or law.
GRANTED: DENIED: AGREED: MODIFIED:
DEFENDANT’S MOTION IN LIMINE—PAGE 8
38 WITNESSES: Any reference to any p statement of any witness or alleged
witness, other than an adverse party or agent of an adverse party, unless and until such
witness has been called to testify and has given testimony conflicting with such ex part
statement. A deposition or a statement in business or medical records that have been
proved up as required by the Texas Rules of Evidence is not an ex parte statement.
GRANTED DENIED AGREED. MODIFIED:
39 MOTIONS: Any comment or reference to this motion, including the fact Defendant
filed this motion, or that all or any portion of the relief requested herein has been granted
or denied. Burdick v. York Oil Co., 364 S.W.2d 766 (Tex. Civ. App. — San Antonio
1963, writ ref'd n.t.c.).
GRANTED DENIED AGREED MODIFIED.
‘ata
BPN ly submitted,
( Vii
JESSICA F.\STETTLER
a
State Bar No} 19178600
HOAGLA FARISH & PALMAROZZI
433 E. Li folinas Blvd., Suite 700
Irving, T. 5039
(817) 640-0465 - Metro
(214) 496-0235 — Fax
ATTORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE
J hereby certify a true and. correct copy of this document has been served on counsel of
record via hand delivery on this 6" day of January, 2014 as follows:
Lucas S. Lafitte
Ben Abbott, P.C.
1934 Pendleton Drive
Garland, TX 75041
JE ~
Oy STETTLER
él
DEFENDANT’S MOTION IN LIMINE—PAGE 9
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l DALLAS COUNTY 1/6/2014 1:24:39 PM GARY FITZSIMMONS. DISTRICT CLERK Cause No. DC-12-07708 MAMERTO A. FRANDO, JR. § IN THE DISTRICT COURT OF § VS. § DALLAS COUNTY, TEXAS § TROY CROSSON § 101ST JUDICIAL DISTRICT DEFENDANT’S MOTION IN LIMINE Defendant Troy Crosson files this Motion in Limine and respectfully moves the Court as follows: I That Plaintiff and his attorneys be instructed not to mention or bring before the jury, either directly or indirectly, upon voir dire, reading of pleadings, statement of the case, interrogation of witnesses, argument, objections before the jury or in any other means or manner inform the jury or bring to the jury’s attention any of the matters set forth in the paragraphs below unless and until such matters have been first called to the Court’s attention out of the presence and/or hearing of the jury and a favorable ruling received as to the admissibility and relevance of such matters. I. Further, that plaintiff's counsel be specifically instructed to inform all witnesses called by the Plaintiff or parties in the courtroom at the request of the parties, not to volunteer, inject, disclose, state or mention to the jury any of the below enumerated matters unless specifically questioned thereon after prior ruling by the Court. Ti. That the violation of any and/or all of these instructions would constitute harm to the Defendant’s cause and deprive Defendant of a fair and impartial trial; therefore, the Court should JEFENDANT’S MOTION IN LIMINE—PAGE 1. instruct Plaintiff and Plaintiff's counsel the failure to abide by such order of the Court may constitute contempt. Iv. That the matters hereafter set out would be inadmissible in evidence for any purpose on proper and timely objection in that they have no bearing on the issues in this case or the rights of the parties of this suit. Vv. That permitting interrogation of witnesses, comments or suggestions in the presence of jurors or prospective jurors or offers of evidence concerning any of the matters set forth hereinafter would be prejudicial, and sustaining objections to such questions, comments, suggestions or evidence introduced by counsel or witnesses will not prevent prejudice, but will reinforce the development of prejudicial and questionable evidence. Specifically, the following matters should not be admissible for any purpose in this cause: 1 PRIOR STATEMENTS: Any use of or reference to (including publication to the jury) of any prior statement, pleading, deposition, request for admission or declaration by Defendant or other witness(es), including, but not limited to recorded or transcribed statements and any question(s) and response(s) contained in any deposition taken in this matter to which an objection was made, unless and until the party offering any such prior statement, pleading, deposition, request for admission or declaration prove to the Court’s satisfaction, outside the presence of the jury, its relevance, materiality and admissibility. TEX. R. Evip. 104, 401, 402, 403. GRANTED: DENIED: AGREED: MODIFIED: USE OF DOCUMENTS AND/OR EXHIBITS: Any use of or comment or reference to the contents of any photograph, video or digital recording, document or exhibit during voir dire, opening statement, examination/cross-examination or publication to the jury before document or exhibit is admitted into evidence. Ranger Ins. Co. v. Rogers, 530 S.W.2d 162, 170 (Tex. App. — Austin 1975, writ ref'd n.r.e.); Guerro v. Smith, 864 S.W.2d 797, 799-800 (Tex. App. — Houston [14th Dist.] 1993, no writ). GRANTED: DENIED: AGREED: MODIFIED: DEFENDANT’S MOTION IN LIMINE—PAGE 2 INSURANCE: Any comment, statement, argument or testimony that Defendant’s attorney or the defense firm are employees of an insurance company or that they regularly represent insurance companies. GRANTED: DENIED: AGREED: MODIFIED: INSURANCE: Any interrogation of the venire panel or any individual potential juror as to any connection with the insurance industry or being self-insured because such questioning improperly interjects insurance into the case. Tex. R. Evip. 411. If Plaintiffs counsel is interested in determining whether any such connection exists, he can do so by asking each individual potential juror about his or her current or past occupation and that of those in his or her household, which should be sufficient for Plaintiff's purposes without harming Defendant by injecting insurance into the case. Brockett v. Tice, 445 S.W.2d 20 (Tex. Civ. App. — Dallas 1971, writ ref'd n.r.e.); Johnson v. Reed, 464 S.W.2d 689 (Tex. Civ. App. — Dallas 1971, writ ref'd n.r.e.). GRANTED: DENIED: AGREED: MODIFIED: INSURANCE: Any interrogation of the venire panel or any potential juror as to whether they would answer the question on damages large or small if supported by the evidence regardless of when or if such a judgment is paid or by whom, or any other version of such question as well as, any jury argument which would be of similar import because such inquiry/argument improperly injects insurance into the suit. TEx. R. Evip. 411; Griffith v. Casteel, 313 8.W.2d 149 (Tex. Civ. App. - Houston 1958, writ ref'd n.r.e.). GRANTED: DENIED: AGREED: MODIFIED: INSURANCE: Any comment or reference that Defendant is or was covered by liability insurance. Tex. R. Evip. 411; McGrede v. Coursey, 131 S.W.3d 189, 196 (Tex. App.- San Antonio 2004, no pet.) GRANTED: DENIED: AGREED: MODIFIED: INSURANCE: Any comment, statement, argument, testimony, or reference that Plaintiff did not have health insurance or his health insurance ran out or he was unable to pay for medical care. GRANTED: DENIED: AGREED: MODIFIED: INSURANCE: Any comment, statement, argument or testimony regarding the actions, statements, comments of any of the employees and/or agents of any insurance company other those of the attorney handling the case as allowed by the Texas Rules of Evidence, this Court, the Texas Rules of Civil Procedure and the law. GRANTED: DENIED: AGREED: MODIFIED: DEFENDANT’S MOTION IN LIMINE—PAGE 3 DISCOVERY: Any objection based on failure to disclose evidence in pretrial discovery. Any party desiring to urge any such objection shall request to approach the bench and urge such objection outside the hearing of the jury. To the extent possible or predictable, such matters should be addressed and a ruling sought at pretrial once the case is assigned for trial, although the objection may be urged for the record outside the hearing of the jury at the time such evidence is offered in the event the Court has overruled the objection at pretrial. GRANTED: DENIED: AGREED: MODIFIED: 10. HEARSAY: Any inquiry, comment, statement, reference or argument about what Plaintiffs may have been told by another person, whether or not such person has been or will be called to testify, including, but not limited to, statements made to Plaintiffs by their medical providers. TEx. R. Evip. 801, 802. Moreover, such hearsay statements equate to unqualified expert medical opinions. TEx. R. Evip. 701, 703 GRANTED: DENIED: AGREED: MODIFIED: 11 UNDISCLOSED OR UNPLEAD LEGAL THEORIES: Any mention of a legal theory which has not been disclosed to Defendant in a timely fashion pursuant to TEX. R. Civ. P. 194.2(c) or found within the language of the live pleadings at the time of trial because the introduction of a legal theory which has not been timely and properly disclosed would unfairly surprise and/or prejudice Defendant. TEx. R. CIv. P. 63, 66: Chapin & Chapin, Inc. v. Texas Sand & Gravel Co. 844 S.W.2d 664, 665 (Tex. 1992); American Title Co. v. Bomac Mortg. Holdings, L.P., 196 $.W.3d 903, 910 (Tex. App. — Dallas 2006, pet. granted, judgm’t vacated w.r.m.); see also, TEX. R. Civ. P. 193.6. GRANTED: DENIED: AGREED: MODIFIED: 12. UNDISCLOSED OR UNPLEAD DAMAGES: Any evidence of damage claimed, whether economic, general, special or otherwise, which has not been timely disclosed, proven up and properly calculated as required by TEX. R. Civ. P. 194.2(d) prior to trial as the same would unfairly surprise and/or prejudice Defendant. TEx. R. Civ. P. 193.6. GRANTED: DENIED: AGREED: MODIFIED: 13 UNDISCLOSED WITNESSES: Any testimony from a witness not properly identified as a person with knowledge of relevant facts or otherwise adequately described under Rule 194.2(e) prior to trial and/or not identified on a party’s pre-trial testifying witness list as the same would unfairly surprise and/or prejudice Defendant. TEx. R. Civ. P. 193.6. GRANTED: DENIED: AGREED: MODIFIED: DEFENDANT’S MOTION IN LIMINE—PAGE 4 14 MEDICAL BILLS: Any evidence of the amount of any medical, therapy, chiropractic or other health care charges, bills or expenses allegedly attributable to the occurrence absent competent testimony that such charges, bills or expenses are reasonable and necessary in the county in which the treatment was provided and have been generated by a properly designated healthcare provider and which charges, bills or expenses have not been previously produced in discovery. GRANTED: DENIED: AGREED: ——— MODIFIED: 15 CPRC §18.001 AFFIDAVITS: Any evidence by way of §18.001 Affidavit that does not comply with the Texas Supreme Court’s ruling in Haygood v. Escabedo, 356 S.W.3d 390 (Tex. 2011). Plaintiff should not be allowed to introduce evidence of or to argue the total amount of medical expenses billed where any portion of those expenses has been deducted or written-off by the medical care provider. Id. Moreover, Plaintiff should not be allowed to introduce evidence that states amounts have been adjusted because of insurance. Jd. at 400. GRANTED: DENIED: AGREED: MODIFIED: 16 LAY WITNESSES: Any comment or question to a lay witness that requires special skill or expertise. TEX. R. Evip. 701, 703. GRANTED: DENIED: AGREED: MODIFIED: 17. EXPERTS: Any testimony by a testifying expert whose impressions and opinions have not been timely disclosed pursuant to TEX. R. Civ. P. 194.2(f) or any opinions or other testimony based on information or other data reviewed after the deadline for disclosing the impressions or opinions derived from such data or information, as well as any reference or reliance on documents or materials relied upon by an expert that has not been timely or properly disclosed pursuant to Rule 194. TEx. R. Cv. P. 193.6. GRANTED: DENIED: AGREED: MODIFIED: 18 EXPERTS: Any testimony by an expert whose impressions and opinions are based on information generated or supplied by persons with knowledge of relevant facts or consulting experts who have not been timely disclosed pursuant to TEx. R. Civ. P. 194.2(e, f) or any opinions or other testimony based on information or other data reviewed after the deadline for disclosing the impressions or opinions derived from such data or information. TEX. R. CIv. P. 193.6. GRANTED: DENIED: AGREED: MODIFIED: 19. EXPERTS: Any new opinion contrary to or an impermissible expansion of the previous opinions provided by experts. The intent behind expert discovery (including expert reports and depositions) is to allow the parties to discover the experts’ factual observations, tests, supporting data, calculations, photographs and opinions. TEX. R. Clv. DEFENDANT’S MOTION IN LIMINE—PAGE 5 P. 195.5; accord Tibbets v. Gagliardi, 2 S.W.3d 659, 663 n.1 (Tex.App. — Houston [14th Dist.] 1999, pet. denied)(an expert’s report must provide the expert’s opinions and the underlying bases for them). Alteration of the underlying bases for such opinions on the eve of trial constitutes unfair surprise and/or prejudice. TEX. R. Civ. P. 193.6. GRANTED: DENIED: AGREED: MODIFIED: 20 EXPERTS: Any mention, statement or testimony about what any party’s counsel may have been told by any expert witness unless that witness is before the Court. GRANTED: DENIED: AGREED: MODIFIED: 21 EXPERT REPORTS: Any report(s) prepared by an expert in this case as any such report constitutes inadmissible hearsay. TEX. R. Evip. 801, 802. GRANTED: DENIED: AGREED: MODIFIED: 22 MEDICAL TESTIMONY: Any inquiry, comment, statement, argument or testimony from Plaintiff or Plaintiff's counsel about matters that require medical expertise as neither Plaintiff nor his attorney is qualified to render expert medical opinions. TEX. R. Evip. 701, 703. GRANTED: DENIED: AGREED: MODIFIED: 23. MEDICAL TESTIMONY: Any inquiry, comment, statement, argument or testimony from Plaintiff or Plaintiffs counsel regarding the necessity, likelihood or costs of future medical expenses or treatment as neither Plaintiff nor his attorney is (a) qualified to render expert opinions on these matters or (b) designated as expert witnesses on such matters. TEX. R. EvID. 701, 703; TEX. R. Civ. P. 194.2(f). GRANTED: DENIED: AGREED: MODIFIED: 24. DAMAGES: Any comment, reference or question in voir dire regarding whether potential jurors can award a specific dollar amount. GRANTED: DENIED: AGREED: MODIFIED: 25 DAMAGES BASED ON EMOTION: Any argument, comment or reference by Plaintiff or Plaintiff's counsel implying or suggesting the jury or venire should make Defendant take responsibility for his actions or other such language which is calculated to have the jury assess damages based upon an emotional response rather than the evidence and the Court’s charge. TEX. R. Civ. P. 226a; Southwestern Greyhound Lines, Inc. v. Dickson, 236 S.W.2d 115, 119 (Tex. 1951). GRANTED: DENIED: AGREED: MODIFIED: )EFENDANT’S MOTION IN LIMINE—PAGE 6 26 DAMAGES AIMED TO “HELP” PLAINTIFF: Any argument, comment or reference by Plaintiff or Plaintiff's counsel in front of the jury, using phrases such as “Do all you can to help Plaintiff’ or other appeals of a similar nature. Texas Employers’ Ins. Ass’n. v. McCaslin, 317 S.W.2d 916, 921 (Tex. 1958). Texas law requires that the jury be instructed it should not let bias, prejudice or sympathy play any part in its deliberations. TEX. R. Civ. P. 226a. GRANTED: DENIED: AGREED: MODIFIED: 27. STANDING IN THE PLAINTIFF’S SHOES: Any argument, comment or reference asking the jurors or perspective jurors to place themselves in the position of Plaintiff. TEX. R. Civ. P. 226a; World Wide Tire Co. v. Brown, 644 S.W.2d 144, 145-46 (Tex. App. — Houston [14th Dist.] 1982, writ ref'd n.r.e.). GRANTED: DENIED: AGREED: MODIFIED: 28, DEVIATION FROM COURT’S CHARGE: Any comment, statement, reference or argument concerning Defendant’s refusal to accept “responsibility” or “fault” for the accident, or any other term that does not mirror the appropriate legal standard for negligence in the State of Texas and, therefore, conflicts with the Court’s charge to the jury. TEX. R. Cv. P. 226a. In addition, any comment, statement, reference or argument that Defendant is refusing to accept responsibility or to be held accountable is designed to and likely will confuse or mislead the jury about the proper legal standards applicable to this case. TEx. R. EviD. 401, 403. Moreover, any such comment, statement, reference or argument also constitutes an impermissible indirect attempt to interject insurance and information regarding settlement negotiations into this case. TEX. R. EviD. 408, 411. GRANTED: DENIED: AGREED: MODIFIED: 29 SYMPATHY: Any argument, comment or reference that the outcome of this litigation may affect the economic position of members of the Plaintiff's family or reference to any hardships which may result to Plaintiff or Plaintiff's family as a result of a particular jury verdict or answer to any specific issue. GRANTED: DENIED: AGREED: MODIFIED: 30. CLOSING ARGUMENT: Any argument that any finding or failure to find in response to a particular question will or will not result in a judgment favorable to any party. This provision does not bar argument by counsel that a particular jury question should be answered in a particular way. GRANTED: DENIED: AGREED: MODIFIED: JEFENDANT’S MOTION IN LIMINE—PAGE 7 31 CLOSING ARGUMENT: Any argument, comment or reference that this Honorable Court would not have submitted questions for the jury’s consideration unless the Court felt there was evidence to support the same, as any such argument or inference would function as a comment on the weight of the evidence and would have the effect of advising the jury panel or the jury of the effects of its answers and would further manifest great prejudice to the Defendant. Tex. R. Evin. 403, GRANTED: DENIED: AGREED: MODIFIED: 32. CLOSING ARGUMENT: Any use of the “Golden Rule” line of argument as such would be irrelevant and unfairly prejudicial. TEx. R. Evip. 401, 403. GRANTED: DENIED: AGREED: MODIFIED: 33 IMPEACHMENT: Any use of documents, pictures or videotapes as exhibits for the purpose of impeachment which were not produced by Plaintiff in response to Defendant’s written discovery. GRANTED: DENIED: AGREED: MODIFIED: 34 OTHER CLAIMS/LAWSUITS: Any comment, statement, argument, testimony, or reference to any other claims or lawsuits involving Defendant in Dallas County, or anywhere else, including but not limited to, references to the outcome of such trials, or the amounts of damages awarded by and jury or judge in such trials, the number of lawsuits in which Defendant is involved or has been involved in, or referring to directly or indirectly, the facts, evidence, results, settlement or verdicts pertaining to any other lawsuit whatsoever. TEX. R. EVID. 401 and 403. GRANTED: DENIED: AGREED: MODIFIED: 35 SETTLEMENT: Any negotiations, offers or demands with respect to any attempted settlement or mediation. TEx. R. Evip. 408. GRANTED: DENIED: AGREED: MODIFIED: 36 SETTLEMENT: Any comment, mention, or implication of Defendant’s and/or Defendant’s agent’s statements that were made during settlement negotiations. TEX. R. Evi. 408. GRANTED: DENIED: AGREED: MODIFIED: 37 STIPULATIONS: Any request or demand in the presence of the jury for a stipulation of fact or law. GRANTED: DENIED: AGREED: MODIFIED: DEFENDANT’S MOTION IN LIMINE—PAGE 8 38 WITNESSES: Any reference to any p statement of any witness or alleged witness, other than an adverse party or agent of an adverse party, unless and until such witness has been called to testify and has given testimony conflicting with such ex part statement. A deposition or a statement in business or medical records that have been proved up as required by the Texas Rules of Evidence is not an ex parte statement. GRANTED DENIED AGREED. MODIFIED: 39 MOTIONS: Any comment or reference to this motion, including the fact Defendant filed this motion, or that all or any portion of the relief requested herein has been granted or denied. Burdick v. York Oil Co., 364 S.W.2d 766 (Tex. Civ. App. — San Antonio 1963, writ ref'd n.t.c.). GRANTED DENIED AGREED MODIFIED. ‘ata BPN ly submitted, ( Vii JESSICA F.\STETTLER a State Bar No} 19178600 HOAGLA FARISH & PALMAROZZI 433 E. Li folinas Blvd., Suite 700 Irving, T. 5039 (817) 640-0465 - Metro (214) 496-0235 — Fax ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE J hereby certify a true and. correct copy of this document has been served on counsel of record via hand delivery on this 6" day of January, 2014 as follows: Lucas S. Lafitte Ben Abbott, P.C. 1934 Pendleton Drive Garland, TX 75041 JE ~ Oy STETTLER él DEFENDANT’S MOTION IN LIMINE—PAGE 9