Date: 12-09-2013

Case Style: Russell Davis v. Sharon Lynn Austin

Case Number: CJ-2012-1216

Judge: Dana Kuehn

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Greg Alex Farrar

Defendant's Attorney: David D. Wilson and Stephen Michael Coates

Description: Russell Davis sued Sharon Lynn Austin on an auto negligence theory claiming to have been injured and/or damaged in a car wreck in Tulsa County, Oklahoma caused by Austin.


I.

Sharon Austin is without sufficient information to admit or deny the allegation conned in Paragraph 1 of Plaintiff’s Petition and demands strict proof thereof.

II.

Sharon Austin admits the allegations contained in Paragraph 2 through 5 of Plaintiffs Petition.

III.

Sharon Austin admits the occurrence of a motor vehicle accident at the date and place alleged by Plaintiff in Paragraph 6 of his Petition and admits the Plaintiff, Russell Davis, was a passenger in a motor vehicle driven by Peggy Anne Smith. Sharon Austin denies generally and specifically all other allegations contained in Paragraphs 6, 7 and S of Plaintiffs Petition and demands strict proof thereof.

AFFIRMATIVE DEFENSES

For fithher answer and defense, the Defendant, Sharon Austin, alleges and states:

I.

This lawsuit is subject to the law of comparative negligence of the State of Oklahoma. Thus, the negligence, if any, of the Plaintiff, Russell Davis, must be compared to the negligence, if any, of all other parties and non-parties hereto, and Plaintiffs recovery, if any, must be reduced accordingly.

II.

Sharon Austin reserves her right to amend her Answer as discovery commences and continues.

The Pre-Trial Order provided:

2) General Statement of Facts:

On November 13, 2010, Plaintiff, Russell Davis was a passenger in a motor vehicle that was struck by a vehicle driven by Defendant, Sharon Lynn Austin in Tulsa County, Oklahoma. Defendant has admitted fault in this collision, but denies nature and extent of Plaintiff’s injuries.

3) Plaintiff, Russell Davis’ Contentions:

A. Grounds for Recovery Authority Relied Upon

i. Negligence 76 0.S. § 1 and Common Law

ii. Negligence Per Se 47 0.5. § 11-3 10 and Tulsa Mun. Code Title 37 § 618

B. Damages or Relief Sought:

i. Past medical expenses: $112,451.06

ii. Future medical expenses: To be determined by expert (s)

iii. Personal injury: In excess of $75,000.00

Plaintiff filed a motion in limine seeking a court order precluding Defendant's counsel from introducing evidence concerning the following:

1. To instruct Defendant and Defendant’s attorney not to mention, refer to or bring before the jury, directly or indirectly, upon voir dire examination, reading of the pleadings, statement of the case, interrogation of witnesses, argument, objections before the jury, or in any other manner, and of the matters set forth, unless and until such matters have first been called to the Court’s attention, out of the presence and hearing of the jury, and until a favorable ruling has been received regarding the admissibility and relevance of such matters.

2. To instruct Defendant’s counsel to inform all witnesses called by Defendant, not to mention in the presence or hearing of the jury any of the below enumerated matters, unless and until specifically permitted to do so by ruling of the Court.

3. To instruct counsel for Defendant that the failure to abide by such order of the court may constitute contempt of Court.

4. This Motion is made on the grounds that violation of any and all of these instructions would cause great harm to the Plaintiff’s case and would deprive Plaintiff of a fair and impartial trial.

The matters referred to hereinabove are as follows:

5. Any reference to the circumstances under which Plaintiff hired his attorneys. Plaintiff would show this evidence is irrelevant. Fed. R. Evid. 402. Alternatively, the relevancy is greatly outweighed by its prejudicial effect. Fed. R. Evid. 403.

6. Any reference to the fact that Plaintiff’s recovery, if any, may or may not be subject to Federal Income Tax or any other tax. This evidence is irrelevant to any issue and would be prejudicial if admitted. Fed. R. Evid. 402, 403.

7. That Plaintiff has received, has been entitled to receive, or will in the future be entitled to receive, or has applied for benefits of any kind from a collateral source, including but not limited to the following:

a. Benefits from hospitalization, medical, disability or other collateral insurance coverage.

b. Services furnished without charge.

c. Social Security and pensions, whether a union pension or otherwise. Porter v. Manes, 347 P.2d 210 (Okla. 1960); Huey v. Stephens, 275 P.2d 254 (Okla. 1954); Denco Bus Lines v. Hargis, 229 P.2d 560 (Okla. 1951).

8. Any reference to the Plaintiff’s character or a trait of character for purposes of proving action in conformity therewith on a particular occasion. Fed. R. Evid. 404. Alternatively, the relevancy is greatly outweighed by its prejudicial effect. Fed. R. Evid. 403.

9. Any reference to Plaintiffis alleged prior bad acts, crimes, or wrongs for purposes of proving action in conformity therewith on a particular occasion as its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues and would potentially mislead the jury. 12 O.S. § 2403 Alternatively, the relevancy is greatly outweighed by its prejudicial effect. Fed. R. Evid. 403.

10. Any reference to Mr. Davis’s divorce proceedings from Lynda Anne Melone. Plaintiff makes no claim that his post-divorce proceedings were in any way related to this accident or his injuries. Plaintiff would request that he be prohibited from testifying about their marital problems or the bitter allegations which have been exchanged before and after their divorce. Any such testimony is irrelevant to the liability and/or damages issues pending before the jury and the prejudicial effect far outweighs any probative value. 12 O.S. § 2403.

11. Any reference to other civil litigation or insurance claims unrelated to claims for personal injury to the neck as the prejudicial effect far outweighs any probative value. 12 O.S. § 2403.

12. Any opinion testimony from Dr. Rick Belier, Defendant’s medical expert. In this regard, Dr. Belier:

a. Never personally examined or evaluated Plaintiff. (See Deposition of Rick D. Belier marked as Exhibit No. 1, Pg. 28, Ln. 9 - 14)

b. Conducted a record review only. (See Dr. Belier deposition, Pg. 28, Ln. 18 - 21)

c. Did not review Piaintiffs deposition. (See Dr. Beller deposition, Pg. 27, Ln. 8 - Pg. 28, Ln. 5)

d. Has NEVER performed a surgery to the neck. (See Dr. Belier deposition, Pg. 9, En. 22—24 and Pg. 34, En. 1)

e. Has referred all patients who needed neck surgery to other surgeons. (See Dr. Belier deposition, Pg. 34, En. 8 - 11)

f. Has testified based upon record review only one or two times. (See Dr. Belier deposition, Pg. 29, Ln. 5 - 8)

In deposition testimony, Dr. Belier purports to give expert opinions to the effect that:

a. Plaintiff sustained no permanent injury or impairment.

b. That none of Plaintiff’s medical care was related to and necessitated by the November 13, 2010 accident.

c. That Plaintiff’s surgery on April 18, 2011 was not attributed to and necessitated by the November 13, 2010 accident.

d. That Plaintiff will not require any future treatment due to the accident.

e. The velocity of the impact based upon reviewing two photographs. (See Dr. Belier deposition, Pg. 24, Ln. 24— Pg. 26, En. 18)

Plaintiff anticipates Defendant will present testimony of Rick Belier, M.D. Dr. Belier is not qualified by practice, training or otherwise in the field of neck surgery. Therefore, his opinions as they relate to the neck surgeries performed on Plaintiff, including but not limited to his opinions as to why the surgeries were performed and why they were successful or unsuccessful, are unreliable, speculative and should be excluded.

The United States Supreme Court first stated in Daubert v. Merrell Dowel!

Pharmaceuticals, Inc., 509 U.S. 579 (1993), that before an expert will be allowed to testify in a case the trial court must determine the proposed expert testimony is both relevant and reliable. The Oklahoma Supreme Court adopted the Daubert rule in the case of Christian v. Gray, 2003 OK 10, 65 P.3d 591.

In Christian v. Gray, 2003 OK 10, the Oklahoma Supreme Court stated the Oklahoma Evidence Code has long recognized the trial court as the “gatekeeper” to evidence which has questionable reliability. Specifically, the Oklahoma Evidence Code has always allowed expert testimony if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. However, a witness qualified as an expert by knowledge, skill, experience, training or education will only be allowed to testify in the form of an opinion or otherwise if: (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case. 12 O.S. § 2702 (Emphasis added). The Christian court simply held that Daubert and Kumho refine the standard in 12 O.S. § 2702 and assist the Courts in admitting expert testimony. Id. at 598-599; citing 12 0.5. 2002 § 2015. In Daubert, the high court noted that when determining if expert testimony is relevant and reliable, the trial court must determine two things. First, the subject matter of the expert’s must be specialized, scientific knowledge. Daubert, 509 U.S. at 593. Additionally, the testimony must be of the sort which will assist the trier of fact to understand or determine a fact in issue. Id. Further reinforcing the “gatekeeper” role of the trial court, the Court in Christian held any ruling regarding admissibility of an expert witness will be upheld unless it can be shown that the Court’s decision was the result of “a clear abuse of judicial discretion.” Id. The Oklahoma Evidence Code places the burden on the party attempting to introduce expert testimony to show the evidence is in fact reliable. The proffering party must show the testimony to be reliable by a preponderance of the evidence. 12 O.S. § 2702.

Here, Defendant has hired Rick Beller, M.D. to testify as to causation, nature and extent of Plaintiffs injuries. Dr. Beller is a retired orthopedic surgeon who graduated medical school in 1976. On direct examination Dr. Belier will testify that during his career he did thousands of surgeries, including “spinal surgery.” However, when directly questioned, Dr. Belier admitted that during his career he never performed a neck surgery. (See Dr. Belier Deposition Pg. 33, Ln. 22-23) During his career, if a patient presented to Belier’s office with neck complaints that appeared surgical he referred the patient to a neck surgeon. (See Dr. Belier Deposition Pg. 34, Ln. 7 - 11) Belier quit doing other surgeries in 2005 and retired from active medical practice in 2010. (See Dr. Belier Deposition Pg. 6, En. 3 - 7) Since that time, Dr. Belier’s “medical practice” consists solely of performing Defense Medical Examinations and testif’ing for Defendants. (See Dr. Belier Deposition Pg. 6, Ln. 3 - 7)

Defendant has presented no evidence that Dr. Belier is an expert by training, experience or otherwise in the field of neck surgery. In fact, Dr. Belier is not qualified to state why Dr. Covington operated at the C4-5 level and whether the issue was present prior to the November 13, 2010 motor vehicle accident. (See Dr. Belier Deposition Pg. 20 Ln. 7 - 16). Dr. Beiler’s testimony regarding what he believes Dr. Covington was repairing inside the neck is also unreliable and purely speculative because Dr. Beiier admittedly has no experience in this particularized sector of the practice of medicine. His opinions are based upon reviewing MRI reports as opposed to actuaily examining the MRI films. (See Dr. Belier Deposition Pg. 58, En. 14 - 18). Dr. Belier has testified he has never performed a fusion and has failed to provide a single piece of evidence that he is qualified by some other means or method.

Defendant also attempts to offer opinion evidence through Dr. Belier as to whether Piaintiff’s injuries could have been caused by a low speed impact based upon photographs ONLY of the vehicles. (See Dr. Belier Deposition Pg. 13 En. 1 — 16 and Pg. 14, En. 1 -10).

Dr. Belier’s “training” in Bio-mechanicai, consisted of having a text book and weekly lecture during his residency in the 1970’s. (See Dr. Belier Deposition Pg. 14, En. 10 — 23) He admits to being unaware of the weights of the vehicles, friction coefficients, type of tires, wear on the tire tread, road surface or personal accounts of the accident from either driver or the Plaintiff.

(See Dr. Belier Deposition Pg. 48, En. 8 — Pg. 49, En. 15) Further, this “biomechanical” opinion was not included in the narrative report provided to Plaintiff’s counsel.

Defendant cannot be permitted to have her expert only review certain documents prior to deposition and then review additional information prior to trial in order to change and/or provide new opinions. To allow Defendant’s expert to rely upon any additional material and/or information would be unf surprise to Plaintiff and would be highly prejudicial.


Defendant filed a motion in liminie seeking the exclusion of certain evidence at trial stating:

1. Reference to or testimony regarding the presence of any liability insurance;

2. Reference to or testimony regarding any settlement offers;

3. Reference to or testimony regarding Plaintiff’s alleged attorney fees or costs;

4. Testimony from Plaintiff or other lay witnesses as to alleged statements made by Plaintiff’s health care providers, other than those statements made by health care providers during trial testimony, or statements which appear in other documentary evidence admitted at trial;

5. Testimony from Plaintiff or other lay witnesses regarding the cause of Plaintiff’s alleged past, present or future medical condition which requires scientific, specialized or technical knowledge;

6. Testimony from Plaintiff or other lay witnesses concerning any alleged future dcal condition, future treatment, permanent injury or permanent disability which is notrtl by expert medical testimony;

7. Lawsuits, liens and garnishments arising from Plaintiff’s medical bills;

8. Any loss of income to Plaintiff; and

9. Any mental or emotional injury to Plaintiff.

BRIEF IN SUPPORT

I. Motions in Limine Are Recognized Under Oklahoma Law

“Motions in limine are recognized by Oklahoma case law.” Clark v. Turner, 2004 OK CIV APP 69, ¶23, 99 P.3d 736, citing Messler v. Simmons Gun Specialities, Inc., 1984 OK 35, ¶15, 687 P.2d 121, 127. “A motion in limine is a motion preliminary to trial to preclude the introduction of prejudicial matters to the jury, and is advisory until finally determined at trial.” j., citing Christian v. Gray, 2003 OK 10, n.22, 65 P.3d 591.

II. Austin Seeks an Order Prohibiting the Introduction of the Following Matters at Trial

1. Reference to or Testimony Regarding the Presence ofAny Liability Insurance

The existence of any liability insurance is not relevant to any issue of law or fact to be determined in this action. Moreover, such evidence must be excluded at trial pursuant to Title 12 O.S. § 2411. No exceptions to this rule enumerated within § 2411 apply.

2. Reference to or Testimony Regarding Any Settlement Offers

The parties have previously discussed settling this lawsuit in order to avoid the risk and expense of protracted litigation and trial. The fact of any settlement offer is irrelevant to the subject matter of this case. It is irrelevant and inadmissible pursuant to Title 12 O.S. § 2401, et seq. Furthermore, “[e]vidence of conduct or statements made in compromise negotiations is not admissible.” Title 12 O.S. § 2408. Evidence of any settlement offers is not admissible to prove liability. Id. Any settlement offers or offers to allow judgment would likewise be inadmissible. Disclosure of such information to the jury should be presumed prejudicial to Austin.

3. Reference to or Testimony RegardingPlaintff’sAlleged Attorney Fees and Costs

Austin anticipates that Plaintiff may attempt to testify or make remarks through counsel regarding Plaintiff’s attorney fees and costs incurred in prosecuting this action. Plaintiffs alleged attorney fees and costs are not items of recoverable damages which can be awarded by the jury in this action. Therefore, alleged attorney fees and costs are not relevant to the subject matter of this action. Evidence of attorney fees or costs would also be unfairly prejudicial to Austin and would be misleading to the jury. Such evidence is clearly inadmissible.

“In Oklahoma, the right of a litigant to recover attorney fees is governed by the American Rule.” Barnes v. Oklahoma Farm Bureau Mutual Ins. Co., 2000 OK 55, ¶46, 11 P.3d 162, citing TRW/Reda Pump v. Brewington, 19920K 31, 829 P.2d 15, 22. “This Rule is firmly established in Oklahoma [Id.] and provides that courts are without authority to award attorney fees in the absence of a specific statute or a contractual provision allowing the recovery of such fees, with certain exceptions.” Id. “This Court has ruled that exceptions to the American Rule are narrowly defined.” Id., citing Kay v. Venezuelan Sun Oil Co., 1991 OK 16, 806 P.2d 648, 650.

Barnes involved claims of breach of contact pursuant to underinsured motorist coverage in a policy of insurance, together with a claim of breach of the implied covenant of good faith and fair dealing (“bad faith”). Id. at ¶1. The Oklahoma Supreme Court reversed the trial court’s post-trial award of an attorney fee, and remanded the issue for further proceedings to determine whether plaintiff could show herself entitled to an attorney fee. Id. at ¶56. On appeal, the insurance company defendant asserted that plaintiff had waived her right to recover attorney fees because she had not submitted her attorney fees to the jury as an element of her damages. Id. at ¶45. The Oklahoma Supreme Court rejected this argument, instructing as follows regarding attorney fee recovery as an element of damages in a tort or contract action:

Although there are situations where a plaintiff may be able to recover attorney fees as part of his/her damages in either a contract or tort claim, neither the situation existent in Brashier nor the instant matter is one of them. The easiest understood example of when attorney fees are recoverable as damages is where an attorney sues his client to recover a reasonable attorney fee for services rendered when the client refuses to pay. * * * Another example of when attorney fees are properly recoverable as an item of damage is when an insurance company has a contractual duty to defend its insured from lawsuits brought by third parties against the insured, but insurer wrongfully refuses to defend, necessitating the insured to employ his own counsel to defend the third party suit(s) brought against him. Timmons v. Royal Globe Ins. Co., 1982 OK 97, 653 P.2d 907 is an illustration of this situation and involved an insurance company’s wrongful refusal to defend a prior law action brought against the insured pilot by his passenger(s) after an airplane crash. 653 P .2d at 910 and 915. In other words, providing an attorney to defend claims made against the insured was part of the contractual duty of the insurance company, which was wrongfully and tortiously withheld.

* * *

Yet another example is where the wrongful acts of the defendant have involved the plaintiff in litigation with others, or have placed him in such relation with others as to make it necessary for him to incur attorney fees to protect his interests, attorney fees being recoverable in such cases as one of the elements of damages flowing from the original wrongful act of the defendant. Grffin v. Bredouw, 1966 OK 226, 420 P.2d 546, 547, Second Syllabus. Griffin involved a situation where the purchasers of a completed house and lot were required to defend a lien foreclosure suit brought by a subcontractor because the vendor of the house and lot wrongfully refused to pay the subcontractor’s bill for the erection of a fence — the vendor’s refusal to pay the subcontractor’s bill being in violation of his contract with the purchasers. Griffin held the purchasers were entitled to recover as an item of damage in a subsequent suit against the vendor, the attorney fees they were compelled to expend in defending the suit by the subcontractor. See also Security State Bank of Comanche v. W. R. Johnston & Co., Inc., 1951 OK 40, 228 P.2d 169. Other than in the above examples, attorney fees are not normally allowed — in the absence of a contractual provision or specific statute allowing their recovery — as an element of damage or otherwise in either an action based on contract or tort. See Hertzel v. Weber, 1926 OK 318, 246 P. 839. Id. atJ52-J53.

“The allowance of costs is based upon statute.” Voiles v. Santa Fe Minerals, Inc., 1996 OK 13, ¶35, 911 P.2d 1205. As an action for the recovery of money only, Plaintiff must establish that she is entitled to an award of costs as a prevailing party pursuant to Title 12 0.S. § 928.

Neither a contractual provision, nor any statute, permit Plaintiff to seek his alleged attorney fee or costs as an element of damages in this action. None of the examples set forth in Barnes applies in this action. The issue is not one forjury consideration. After the jury trial, this Court may receive briefs and argument concerning whether an attorney fee or costs may be awarded the prevailing party. During trial, reference to attorney fees or costs would be unfairly prejudicial to Austin, especially if the jury infers that attorney fees and costs should be considered and included in fixing any damages award in favor of Plaintiff.

4. Testimony from Plaint jff or Other Lay Witnesses as to Alleged Statements Made by Plaint jff’s Health Care Providers, Other than Those Statements Made by Health Care Providers During Trial Testimony, or Statements Which Appear in Other Documentary Evidence Admitted at Trial

Austin anticipates that Plaintiff will attempt to offer testimony at trial which purports to quote statements allegedly made by Plaintiff’s physicians or other health care providers. For example, Plaintiff may try to testif’ that, “my doctor told me...,” or similar statements which put words in the mouths of his health care providers.

Generally, such statements are unreliable and constitute inadmissible hearsay pursuant to Title 12 0. S. § 2801, et seq. To the extent that such statements have not been received in evidence directly from the trial testimony by Plaintiff’s health care providers, or where such statements are not reflected in medical records previously admitted into evidence at trial, such statements by Plaintiff or other lay witnesses are clearly hearsay and improper.

Such testimony threatens a significant danger of unfair prejudice to Austin as well. Regardless of how accurate an historian Plaintiff believes himself to be, allowing him or any other witness to put words into the mouths of treating physicians is clearly improper. The relevance of such statements is substantially outweighed by the danger of unfair prejudice and misleading the jury. Such testimony must be excluded pursuant to Title 12 O.S. § 2403.

5. Testimony from Plaint ff or Other Lay Witnesses Regarding the Cause of Plaintff’s Alleged Injuries or Conditions

Plaintiff is alleging that he sustained serious and permanent physical injuries as a result of the motor vehicle accident at issue. Plaintiff testified in deposition that he did not sustain an injury which can be seen. (See Plaintiffs Deposition at p.70, lines 7-9, attached as Exhibit 1). Therefore, evidence of the cause, nature and extent of his alleged injuries must be made by expert medical testimony. Clarkv. Woolley, 19600K 199, ¶15, 355 P.2d 864. Testimony from the Plaintiff, or any other witness not qualified to render opinion testimony consistent with the Oklahoma Evidence Code, regarding the cause of alleged cervical spine injury or other physical injury he allegedly sustained from the accident, requires the scientific, technical or other specialized knowledge of a medical expert. Such testimony from any lay witness must be excluded from trial. Opinion testimony which is not offered at trial by a properly qualified expert is not permitted by Title 12 0. S. § 2701. It also constitutes hearsay pursuant to Title 12 0.S. § 2801. Such hearsay statements are clearly inadmissible and should not be allowed at trial. See Title 12 O.S. § 2802.

6. Testimonyfrom Plaintff or Other Lay Witnesses ConcerningAnyAlleged Future Medical Condition, Future Treatment,

Permanent Inj ury or Permanent Disability Which Is Not Supported by Expert Medical Testimony Austin anticipates that Plaintiff or other lay witnesses called by Plaintiff will attempt to testify at trial regarding Plaintiffs alleged future medical condition, future medical treatment, permanent injury or permanent disability. Clearly, opinion testimony concerning Plaintiffs future medical condition and medical treatment is the province of an expert witness with scientific, technical or specialized knowledge. In Reed v. Scott, 1991 OK 113, 820 P.2d 445, the Oklahoma Supreme Court, “held that the reasonable certainty of future pain and suffering, permanent injury and future medical expense must be established by expert medical testimony.” Godfrey v. Meyer, 1996 OK CIV APP 124, ¶8, 933 P.2d 942, 943. Such testimony from Plaintiff or lay witnesses should be excluded from trial. Such testimony by Plaintiff or other lay witnesses is not permitted by Title 12 O.S. § 2701. Such testimony cannot assist the trier of fact and must be excluded as irrelevant. Title 12 0.S. § 2402. Testimony from Plaintiff or other lay witnesses as to any alleged future condition, future treatment, permanent injury or permanent disability also threatens unfair prejudice and will mislead the jury.

7. Lawsuits, Liens and Garnishments Arising from Plaintff’s Medical Bills

Evidence of lawsuits, liens, garnishments or other efforts to collect any of Plaintiff’s unpaid medical bills, if any, are not relevant to the issues in the case. Such evidence is not probative of whether an actual injury occurred, nor is it probative of the nature and extent of injury. The medical bills sought to be recovered are the best evidence of the existence and amount of said medical bills. Evidence of lawsuits, liens, garnishments or other efforts to collect any of Plaintiff’s unpaid medical bills, if any, would only serve to create unfairjury sympathy in favor of Plaintiff and against Austin. Therefore, any relevance such evidence could have is substantially outweighed by risk of unfair prejudice. Such evidence should be inadmissible pursuant to Title 12 O.S. § 2403.

8. Any Loss of Income to Plaintiff

Plaintiff is not seeking loss of income as a result of the accident. Plaintiff testified in deposition that he is “not making any claim that I have lost income because of the accident.” (See Plaintiff’s Deposition at p.79, line 24 to p.80, line 3, attached as Exhibit 1). Likewise, he is “not making any claim that my earning capacity has been decreased because of the accident.” (See Plaintiff’s Deposition at p.80, lines 4-7, attached as Exhibit 1). Austin has relied upon that testimony in discovery and trial preparation in this case. Therefore, there should be no reference to or suggestion by any attorney or witness at trial of any loss of past, present or future income or earning capacity to Plaintiff.

9. Any Mental or Emotional Inj uly to Plaintff

Plaintiff is not seeking to recover for any alleged mental or emotional injury. Plaintiff testified in deposition, “I’m not making any claim for mental, psychological or emotional injury.”

(See Plaintiffs Deposition at p.80, lines 20-22, attached as Exhibit 1). Austin has relied upon that testimony in discovery and trial preparation in this case. Therefore, there should be no reference to or suggestion by any attorney or witness at trial regarding any alleged mental, psychological or emotional injury to Plaintiff.

Wherefore, premises considered, Defendant Sharon Austin prays that the Court issue an order in limine which prohibits the offering or introduction into evidence of the foregoing matters, together with such additional relief as the Court deems just and equitable.

The Statement of the Case read to the jury by the judge before they began to deliberate the case provided:

The parties to this case are Russell Davis, Plaintiff, and Sharon Lynn Austin, Defendant. Plaintiff claims that he was injured as a result of a motor vehicle accident involving the Defendant which occurred on November 13, 2010 on State Highway 97 at its intersection with West 41st Street near Sand Springs, Oklahoma. Plaintiff asserts that the accident was the result of the Defendant’s failure to keep her vehicle stopped behind the vehicle occupied by the Plaintiff. As a result, Plaintiff asserts that he suffered physical injuries.

The Defendant, Sharon Austin, admits that she was at fault in the happening of the motor vehicle accident with the Plaintiff. However, Sharon Austin denies the nature and extent of the injuries claimed by the Plaintiff. Sharon Austin asserts that Plaintiff’s alleged injuries are due to pre-existing conditions, or subsequently developing condittçs not caused by the motor vehicle accident. Sharon Austin also asserts that some of the meical treatments and examinations obtained by Plaintiff were not medically necessary, and Were therefore not caused by the motor vehicle accident. Therefore, the issues in this case to be determined by you are:

1. What injuries, if any, did the Plaintiff, Russell Davis, sustain as a direct result of the November 13, 2010 motor vehicle accident; and

2. What damages, if any, should Plaintiff recover to compensate him for his injury. These are the issues you are to determine.

Outcome: 06-19-2013 CTFREE - 85826728 Jun 20 2013 11:18:59:613AM - $ 0.00

KUEHN, DANA: CASE CALLED FOR JURY TRIAL ON JUNE 18, 2013. BOTH SIDES PRESENT IN OPEN COURT AND ANNOUNCE READY FOR TRIAL. PLAINTIFF PRESENT AND REPRESENTED BY GREG FARRAR. DEFENDANT PRESENT AND REPRESENTED BY DAVID WILSON.

THE JURORS ARE CALLED AND SWORN TO QUALIFICATIONS. THE JURY IS IMPANELED AND EXAMINED FOR CAUSE. THE JURORS ARE ACCEPTED FOR CAUSE.

OPENING STATEMENTS ARE MADE. FIVE (5) WITNESSES SWORN. RULE WAS NOT INVOKED. COURT REPORTER-DIANA CAVENAH. PLAINTIFF PRESENTS EVIDENCE AND RESTS. DEFENDANT DEMURS AND DEMURRER IS OVERRULED. DEFENDANT PRESENTS EVIDENCE AND RESTS. PLAINTIFF MOVES FOR DIRECTED VERDICT AND IT IS SUSTAINED AS TO NEGLIGENCE. BOTH SIDES REST.

THE JURY IS INSTRUCTED AS TO THE LAW. CLOSING ARGUMENTS ARE MADE. THE SWEARING OF THE BAILIFF IS WAIVED AND ON JUNE 19, 2013, AT 5:00 P.M., THE JURY RETIRES FOR DELIBERATION IN CUSTODY OF THE BAILIFF. ON JUNE 19, 2013, AT 6:25 P.M., THE JURY RETURNS INTO OPEN COURT WITH THEIR VERDICT, WHICH IS READ IN OPEN COURT, ORDERED RECORDED AND FILED, AND IS, TO WIT:

“WE, THE JURY, IMPANELED AND SWORN IN THE ABOVE ENTITLED CAUSE, DO, UPON OUR OATHS, FIND THE ISSUES IN FAVOR OF THE PLAINTIFF, RUSSELL DAVIS, AND FIX THE DOLLAR AMOUNT OF HIS DAMAGES IN THE SUM OF $2,671.85.” SIGNED BY 10 JURORS. (FROM VERDICT FORM FOR PLAINTIFF)

JURY DISCHARGED.

Plaintiff's Experts:

Defendant's Experts: Dr. Rick Beller

Comments: