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Date: 09-08-2013

Case Style: Jennifer Sherment v. Monique Stokes

Case Number: CJ-2011-2386

Judge: Mary Fitzgerald

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Donald E. Smolen, II

Defendant's Attorney: Mark A. Warman

Description: Jennifer Sherment sued Monique Stokes on an auto negligence theory claiming to have been injured and/or damaged in a car wreck that occurred in Tulsa County, Oklahoma caused by the defendant.

This case arises out of motor vehicle accident that occurred on or about January 29, 2006. On said date, Defendant Monique Stokes was traveling northbound on 1st Street through Main Street in Jenks, Oklahoma, when she failed to yield, striking the Plaintiff who was traveling westbound on Main Street. The accident resulted in serious personal injury to Plaintiff.

Plaintiff filed a motion in limine.

Defendant responded as follows:

Defendants have filed a combined motion setting forth six (6) topics and areas they contend should be off limits during trial. As set forth below, Plaintiff does not contest two (2) of Defendants’ motions in limine, but objects to the remainder as the same are not supported by law.

ARGUMENT AND AUTHORITY

A motion in limine and its purpose

A motion in limine is a procedural device intended to isolate prejudice from the jury. 20 Am. Jur. Trials § 441. The motion in limine provides the “court with the opportunity to rule in advance of the trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial”. Wilkins a Kmart Corp., 487 F.Supp.2d 1216, 1218 (D.Kan.2007). “Through such rulings can work a savings in time, cost, effort and preparation, a court is almost always better situated during the actual trial to assess the value and utility of the evidence. Consequently, a court should reserve its ruling for those instances when the evidence plainly is inadmissible on all potential grounds.” Townsend v. Benya, 287 F.Supp.2d 868, 872 (N.D.Ill.2003); Wilkins, 487 F.supp.2d at 1218. Some courts suggest broad rulings on relevance and unfair prejudice are disfavored, and the preferred practice is to rule on evidentiary matters at trial in a developed factual context. Sperberg z.’. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). Additionally, district court judges, in the exercise of their discretion, are free to alter a previous motion in limine ruling based on developments at trial. Luce a United States, 469 U.S. 38, 42-41 (1984). “Further, district court are not required to make definite pretrial rulings on motions in limine seeking to exclude . . . evidence . - . [and] may change its ruling at any time for whatever reason it deems appropriate. United States v. Martinez, 76 F.3d 1145, 1151- 1152 (l0thCir. 1996).

Further, “the movant has the burden of demonstrating that the evidence is inadmissible on any relevant ground. The court may deny a motion in limine when it lacks the necessary specificity with respect to the evidence to be excluded.” Smith v. Board of County Com’rs of County of Lyon, 2003 WL 21293565, *1 (D.Kan.2003) (citations omitted). “All relevant evidence is admissible.” 12 O.S. § 2402. Evidence is relevant if it “has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” 12 O.S. § 2401. A Court should never enter an order in advance of trial that would preclude the admission of evidence that may for any purposes, make a fact of consequence more or less probable, even if that evidence is not conclusive. See e.g., Contemporary Mission, mc, v.

Famous Music Corp., 557 F.2d 912, 928 (2d Cir. 1977).

1. Plaintiff does not contest Defendants’ request that the Court prohibit Plaintiff from mentioning insurance or insurance coverage.

Defendants’ first motion in limine seeks an order prohibiting Plaintiff, her counsel and witnesses from making any mention of insurance or insurance coverage. Plaintiff finds the law well-settled in this area and will not make any mention of insurance or insurance coverage unless the Defendants open the door to such inquiry.

2. Plaintiff does not contest Defendants’ request that the Court prohibit Plaintiff from mentioning any settlement offers made during the course of this action. Defendants’ second motion in limine seeks an order prohibiting Plaintiff, her counsel and witnesses from making any mention of any settlement offers made during the course of this action. Again, Plaintiff finds the law well-settled in this area and will not make any mention of any settlement offers made during the course of this action unless the Defendants open the door to such inquiry.

3. The Court should not prohibit Plaintiff from mentioning whether any payments have been made to the Plaintiff for repair of any property damage involved in this action.

Defendants’ third motion in limine seeks an order prohibiting Plaintiff, her counsel and witnesses from making any mention of payments made to the Plaintiff for repair of any property damages involved in this action. Defendants argue that evidence that Defendants paid to repair Plaintiffs vehicle constitutes a “settlement” pursuant to 12 0_s. § 2408. Said section provides that evidence of furnishing or accepting “valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for the claim.” 12 0.5. 1978 § 2408 (emphasis added). Said section expressly provides that it “does not require exclusion of evidence when it is offered for another purpose, including proof of bias or prejudice of a witness.” Id.

Here, the triggering element of § 2408 has not been met. That is, Defendants have not demonstrated that Plaintiffs property damage claim was disputed as to validity or amount. Plaintiff simply took her vehicle to the shop for repair, an estimate was generated and submitted to Defendants (or rather, Defendants’ insurance carrier) and Defendants issued a check for that amount. Defendants did not dispute validity or amount and thus payment of Plaintiffs property damages is not a compromise settlement under § 2408.

Additionally, § 2408 provides that evidence of a compromise settlement is admissible for another purpose other than as direct evidence of liability. 12 OS. § 2807 provides that a witness’s credibility may be attacked by any party. If Defendants’ payment of Plaintiffs property damage were a compromise settlement as contemplated by § 2408, which Plaintiff denies, Plaintiff would be able to offer the same to impeach Defendants. While Plaintiff would not be able to offer the evidence as part of her case in chief, she absolutely may rely on the same in order to impeach Defendant Monique’s assertion that she did not cause the accident. See, e.g., 12 O.S. § 2801(B)(2).

4. The Court should not prohibit Plaintiff or her counsel from making any statement related to comments or statements made to Plaintiff by any health care provider.

Defendants’ fourth motion in. limine seeks an order prohibiting Plaintiff, her counsel and witnesses from making any mention of statements or comments made to Plaintiff by her health care providers. Oklahoma law is well-settled that plaintiffs are absolutely entitled to testify regarding their injuries. See, e.g., Godfry v. Meyer, 933 P.2d 942, 944 (Okla. Civ. App. 1996) (“[I]t is no longer the law that the mere fact an injury is subjective necessarily means expert testimony is required to prove the injury’s cause. As Reed v. Scott [820 P.2d 445 (Okla. 1991)1 teaches, even subjective injuries may be of a character that expert medical testimony is not necessary to prove the causal connection between the accident, injury, pain and suffering, medical treatment and expense.”). The Plaintiff is competent to testify regarding her own pain and suffering and the medical treatment she sustained and expenses she incurred.

Defendant’s contention that a plaintiff is not competent to testier regarding the medical treatment received because the same is inadmissible hearsay is without merit. Statements made by treating doctors to their patients fall within several exceptions to the general hearsay definition. For example, 12 0.5. § 2804(6) provides that a record of an opinion or diagnosis or condition is admissible if made at or near the time if kept in the course of a regularly conducted business activity. It is the regular practice of a physician to create a record of his or her opinion or diagnosis and of the condition of the patient. Thus, these records are admissible and the plaintiff may testify regarding such records. Additionally, out of court statements are only “hearsay” if they are offered for the proof of the matter asserted. 12 0.5. § 2801. If the statement is offered for any other purpose, such as the effect on the listener, it is not hearsay. See, e.g., State v. Rosales, 94 P.3d 768, 773 (N.M. 2004) (“Evidence is not hearsay if admitted as circumstantial evidence of the motive of the listener. See 2 Kenneth S. Broun et al., McCormick on Evidence § 249, at 102 & n.12 (John W. Strong ed., 5th ed. 1999)”). Here, the Plaintiff is seeking damages for the medical treatment she incurred and her physical condition that resulted from Defendant’s negligence; she must be able to explain to the jury her motive for seeking said damages. She must also be allowed to explain to the jury why she continued chiropractic care and physical therapy (i.e., because her doctor advised her to).

Plaintiff does not dispute that permanent injury and the need for future medical treatment must be established by a medical professional. Id. To establish her need for surgery, Plaintiff will rely on the testimony of Dr. Greg Wilson, who will be called at trial via video deposition. Thus, Plaintiff is competent to testify as to the pain and suffering, medical treatment and diagnoses she has incurred. Moreover, her claim regarding future medical needs will be supported by the testimony of Dr. Wilson and thus she should be permitted to testier regarding the same.

5. The Court should not prohibit Plaintiff or her counsel from mentioning any opinion about the medical causation of Plaintiffs damages.

Defendants’ fifth motion in. limin,e seeks an order prohibiting Plaintiff, her counsel and witnesses from making any mention of any opinion about the medical causation of her damages. As set forth above in Godfry u. Meyer, 933 P.2d 942, 944 (Okia. Civ. App. 1996) and Reed v. Scott 820 P.2d 445 (Okia. 199:1), a Plaintiff is absolutely allowed to testify as to the cause of her injuries as they are not the type of injury that would require expert testimony. 1 The Godfrey case also involved a motor vehicle accident. The plaintiff testified that he experienced no physical symptoms until the morning following the accident when he felt pain and stiffness in his shoulder area. Godfry, 933 P.2d at 942. He was diagnosed nine (9) days later with a shoulder strain/sprain. Id. at 942-43. Plaintiff testified at trial, four years later, that he continued to experience occasional shoulder pain. The plaintiff was the only witness in his case-in-chief. Relying on Scott, the Court of Civil Appeals determined that such circumstances did not require expert testimony: In the instant case, there was nothing about the accident, Appellant’s injuries and his treatment that were of such a character that made expert testimony necessary to prove the nature, cause and extent thereof. As noted above, Appellant was symptomatic the morning following the accident. He was seen by a doctor that day and was

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1 Defendants have not identified with specificity the evidence discovered in this case that they are seeking to exclude. Plaintiff is responding as best she can without the benefit of particularity but, as Defendants have only identified a broad category of evidence and opinions it is seeking to exclude, the better approach is for the Court to reserve its ruling for trial. See Walsh v. United States, 2009 U.S. Dist. LEXIS 27238, *5..6 (N.D. Okla. 2009) (The party moving in lirnine should identify with particularity the evidence at issue and articulate with specificity the arguments support exclusion. A court is within its discretion to deny a motion in. limine that fails to identify the evidence with particularity or to present arguments with specificity. Motions in limirie which exclude broad categories of evidence should rarely be granted. The better practice is to address the issues of admissibility as they arise).

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prescribed medication. Upon arrival at his home in New Jersey several days later he sought additional medical care and underwent a course of physical therapy. The medical records identify the injury he was being treated for as that which occurred in the automobile accident on May 11, 1991.

Id. at 944.

Here, Plaintiff became symptomatic immediately following the accident. She was seen by a doctor and immediately began treating for injuries sustained in the accident. The medical records reveal that her treatment was for injuries caused by this accident. As such, Defendants’ fifth motion in, litnine should be denied.

6. The Court should not prohibit Plaintiff or her counsel from mentioning Plaintiffs financial condition.

Defendants’ final motion in limine seeks an order prohibiting Plaintiff, her counsel and witnesses from making any mention of Plaintiffs financial condition. Specifically, Defendants are concerned that Plaintiff will testify that she has been unable to obtain additional medical treatment because of her financial status. Defendants contend that such evidence is “not relevant to the claims of Plaintiff, and Plaintiffs only reason for presenting such evidence would be to gain sympathy of the jury.” Defendant’s Motion in Limine, p. 4. Plaintiff will absolutely testify that the reason she has not obtained prescribed medical treatment is because she has not been financially able to do so. Plaintiff has been in physical discomfort as a result of being unable to obtain the treatment prescribed.

Defendant cites a string of cases with little or no relevance to the case at bar.2 None of these cases support the conclusion that the issue of Plaintiffs financial status is irrelevant in this particular case where it is probative of both claims and defenses. Both the Plaintiffs claims, and Defendant’s defenses, place Plaintiffs financial condition at issue in this case. A plaintiffs financial condition, to be sure, has been held relevant and admissible in Oklahoma in similar contexts. See, e.g., Coblentz v. Oklahoma Farm Bureau Mut. ins. Co., 1995 OK CIV APP 126, 915 P.2d 938, 940 (financial means of plaintiff are relevant to whether insurer can compel insured to accept less than the benefits to which he is entitled) (reversed on other grounds); Scaly a Republic Life Ins. Co., 1946 OK 228, 172 P.2d 620, 622 (bad faith insurance claim). Here, Plaintiffs financial condition, and her inability to independently afford an expensive surgery, is relevant to both the damages suffered by Plaintiff and to rebut Defendant’s defense that Plaintiff does not need the surgery that has been recommended (Defendant will undoubtedly argue that if Plaintiff really needed the recommended surgery, she would have had the surgery at some point during the last six (6) years). See, e.g., Sossa by and through Sossa a Newman, 647 So.2d 1018, 1019 (Fla.

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2 For instance, in Gandy v. Griffin, 169 S.E.2d 651 (Ga. Ct. App. 1969), the court held evidence of the father’s financial condition was not relevant to the damages sustained by the son in a case brought by the son against the defendant. 169 S.E.2d at 655 (The expenses incurred by the father in having his son treated could only be recovered in a suit by the father against the defendant.”). In fact, the unmistakeable implication in Gandy is that evidence of financial inability is relevant in a case brought by the obligor.

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Ct. App. 1994) (finding that the general rule that financial condition of a party is inadmissible is inappropriate where such testimony is necessary to explain why recommended medical treatment has not been obtained); Cruz v. Groth, 763 N.W.2d 810 (S.D. 2009) (holding that evidence of inability to afford additional medical treatment was admissible while refusing to admit collateral source evidence). In this case, the accident occurred over six (6) years prior to trial. The Plaintiff has to be able to explain why she has not had the recommended surgery. If she is not allowed to explain, the jurors will assume, and Defendant will infer, that the reason is because she is malingering, that she does not need or want the surgery. Such an inference would cause severe and unjust prejudice to the Plaintiff.

CONCLUSION

WHEREFORE, premises considered, Plaintiff prays the Court deny Defendant’s motions in limine as set forth herein.

Outcome: Settled and dismissed with prejudice.

Plaintiff's Experts:

Defendant's Experts:

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