Preview
FILED
8/30/2021 10:03 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Terri Kilgore DEPUTY
CAUSE NO. DC-20-03614
ELADIO ROBLEDO-VARELA IN THE DISTRICT COURT
Plaintiff,
V. 44TH JUDICIAL DISTRICT
HECTOR ZARATE,
Defendant. DALLAS COUNTY, TEXAS
DEFENDANT’S MOTION IN LIMINE
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES HECTOR ZARATE, hereinafter referred to as "Defendant," and before
any proceedings before the jury, makes and files this MOTION IN LIMINE, and respectfully
moves the Court to instruct Plaintiff(s) and Plaintiff(s)' counsel to refrain from either directly or
indirectly, upon voir dire examination, opening statement, interrogation of witnesses,
introduction of any evidence, argument, objections before the jury, reading of any portion of the
pleadings, or by any other means or in any other manner, informing the jury, or bringing to the
jury's attention, any of the matters set forth in the numbered paragraphs below, unless and until
such matters have been first called to the attention of the Court, out of the presence and/or
hearing of the jury, and a favorable ruling has been obtained from the Court as to the
admissibility and relevance of any such matters:
Defendant would also note that due to the current pandemic climate and the premium
being placed on getting a live jury to Show up for jury selection, that these matters be strictly
enforced. A mistrial in this atmosphere is no more or less justified based upon violation of the
parties’ motions in limine, but it may be more costly to all parties involved and the community
and courts as a whole.
Robledo-Varela vs. Zarate PAGE 1
DEFENDANT’S MOTION IN LIMINE
1. Insurance. Unless an insurance company is a named Defendant, that the Defendant is or
is not protected, in whole or in part, by liability insurance, or that defense counsel was
retained by, or all or any part of the costs of defense, or of any resulting judgment, are or
will be paid by an insurance company, or any other matter suggesting an involvement of
any insurance company with the defense of the case.
2. Jurors' Connection with Insurance Industry. Inquiring of potential jurors as to their
present or past employment or connection with the insurance industry, or present or past
connection of any family member with the insurance industry, except that:
a) If a potential juror's juror information card discloses employment in the insurance
industry, such potential juror may be questioned concerning same.
b) Inquiry may be made of potential jurors concerning their experience (or that of
members of their family), if any, reviewing, adjusting or allowing/disallowing
claims, as long as no express reference is made to "insurance."
3. Liability or Non-Liabilitv for Judgment. That the named Defendant(s) may or may not
have to pay any resulting judgment.
4. Attorneys' Fees. That any party will have to pay attomeys' fees, or any reference to the
amount or basis of any attomeys' fees, unless a claim for recovery of attomeys' fees in the
case will be submitted to the jury.
5. Criminal Offenses. That any party or witness has been suspected of, arrested for,
charged with or convicted of any criminal offense unless there is evidence of a specific
conviction that the Court has previously ruled is admissible in the case.
6. Alcohol or Drug Use. That any party or witness uses or abuses alcohol, tobacco, or any
controlled substance, unless and until such alleged use or abuse is shown to be
specifically relevant to the matters in controversy. Amoco Chemicals Corp. vs. Stafford,
663 S.W.2d 147 (Tex. App—Houston [15‘ Dist.] 1983, no writ).; TRCE 801(d); TRCE
403.
7. Settlement Negotiations or Mediation. Any negotiations, offers or demands with
respect to any attempted settlement or mediation. TRCE 408; Beutel vs. Paul, 741
S.W.2d 510 (Tex. App—Houston [14th Dist] 1987, no writ).
8. Discovery Disputes. Any reference to discovery disputes that arose during the
preparation of the case for trial, any position taken by any party with respect thereto, or to
the Court's rulings thereon.
9. Hearsay Medical Opinions. Any hearsay statement offered for the truth of the
statement by an allegedly injured person concerning any diagnosis or medical opinions
communicated to such person by a physician or other health care provider. Such would
be an attempt to introduce before the jury expert testimony without a proper predicate
Robledo-Varela vs. Zarate PAGE 2
DEFENDANT’S MOTION IN LIMINE
concerning the expert’s qualifications and abilities to give such testimony. Defendant
would note that TRE 803(4) specifically excepts statements made t0 a medical provider
for diagnosis or treatment from the hearsay rule. This does not apply to statements
medical provider to the patient. The idea is that an individual is unlikely to lie to a
medical provider since they want an accurate diagnosis and appropriate treatment.
Conversely, there is not the same reassurance of truthfulness when it comes to an
individual stating what the doctor told them in the middle of a personal injury jury trial
for money damages.
10. Reguests for Stipulations. Any request or demand in the presence of the jury for a
stipulation to any fact, or that counsel admit or deny any fact.
11. Reguests for Files. Any request or demand in the presence of the jury that opposing
counsel produce any document or thing, or that opposing counselor any party or Witness
exhibit, turn over or allow examination of the contents of any file or briefcase (except
that a party may demand to see a document used by a witness on the stand to refresh
his/her recollection, or that a witness testifies that he/she has used previously to refresh
his/her recollection).
12. Discrimination. Any argument that a party should be treated more or less favorably
because of such party's race, gender, national origin, nationality, religion, marital status,
occupation, or financial status (except in the second phase of a bifurcated trial).
13. Hardship or Privation. Any argument or suggestion that a failure to award damages
will cause a Plaintiff privation or financial hardship except that Plaintiff’s counsel may
certainly argue that Plaintiff has a particular amount of money outstanding for past
medical bills.
14. Golden Rule. Any argument or suggestion that the jurors should put themselves in the
position of a party. World Wide Tire C0. vs. Brown, 644 S.W.2d 144 (Tex. App.-
Houston [l4‘h Dist] 1982, writ ref’ d n.r.e.).
15. Effect of Answers to Jurv Questions. Any argument that any finding or failure to find
in response to a particular jury 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. Cooper vs. Argonaut Insurance Co.,
430 S.W. 2d. 35 (Tex. Civ. App—Dallas 1968, writ ref’d n.r.e.). Such argument is
improper under the Texas special verdict system because itadvises the jury of the effect
of its answers.
16. Obiections to Evidence Not Produced in Discovery. Any objection based on failure to
disclose evidence in pre-trial 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.
Robledo-Varela vs. Zarate PAGE 3
DEFENDANT’S MOTION IN LIMINE
17. Qualifying Expert Witness. Calling any witness to testify as an expert Without having
first been qualified as an expert for those matters which were disclosed in response to
Request for Disclosure. In addition, prior to the expert stating any opinion he must be
required to disclose the underlying facts or data which forms his “expert” opinion
pursuant to Rule 705 of the Texas Rules of Evidence.
18. Available Assets. Any inquiry into or reference to the assets Defendant has available for
investigating, preparing and defending this cause. First Nat’l Bank of Marshall vs.
Beavers, 619 S.W.2d 288 (Tex. Civ. App—Texarkana 1981, writ ref’d n.r.e.); Wimoth
vs. Limestone Prods. C0., 255 S.W.2d 532, 534 (Tex. App—Waco 1953, writ ref’d
n.r.e.).
19. Superseded Pleadings. The contents of any pleadings which have been superseded by
the current pleadings on file in this case. Zock vs. Bank of the Southwest National
Association, Houston, 464 S.W.2d 375 (Tex. Civ. App—Houston [14th Dist.] 1971, no
writ).
20. Building 0r Floor of the Office of Defendant’s C(Alnsel. Any inquiry or reference to
what building Defendant’s counsel’s office is located in or what floor it is located on (it is
on the 50th floor of Renaissance Tower) as such would be irrelevant to the issues in this
dispute in this case. Furthermore, any inquiry or reference would be a back-door attempt
to communicate insurance’s involvement in this matter or portray Defendant as having
sufficient available assets to afford an attorney in such an office.
21. Voir Dire —
Pre—testing Evidence / Previewing Verdict. Any inquiry attempting to
determine the weight jurors will give to the evidence. If a question does not seek to
discover a disqualifying bias or prejudice but seeks to determine the weight jurors will
give to the evidence, such question is an improper attempt to pre-test the evidence and
preview the verdict and therefore objectionable. Hyundai Motor Co. v. Vasquez, 189
S.W.3d 743 (Tex. 2006).
22. Prior Automobile Accidents. Any inquiry into or disclosing that the Defendant(s)
has/have been involved in any prior or subsequent automobile accident. Any testimony
regarding previous or subsequent accidents is irrelevant and far too prejudicial to discuss
before the jury.
23. Prior Speeding Tickets. Any inquiry into or disclosing that the Defendant has ever been
issued any speeding tickets prior to or subsequent to this accident. As the Texas Supreme
Court wrote in Missouri-Kansas-Texas Railroad Co. vs. May, 600 S.W.2d. 755 (Tex.
1980), “as a general rule, evidence of similar acts is inadmissible on the issue of whether
someone was a negligent in doing or not doing a particular act.”
24. Investigative Officer’s Opinion. Any inquiry or reference to the fact that the
investigative officer has formed an opinion or determined a cause of the accident or that
one of the drivers was at fault until the qualifications of the officer has been established.
Pilgrim’s Pride Corp. vs. Smoak, 134 S.W. 3rd 880, (Tex. App.—Texarkana, 2004, pet.
denied) (investigating officer's testimony on accident causation was required to be given
by a qualified person in science of accident reconstruction.) See also DeLarue vs. State,
Robledo-Varela vs. Zarate PAGE 4
DEFENDANT’S MOTION IN LIMINE
102 S.W.3d 388, Tex. App—Houston, [14th Dist] 2003; and Ter—Vartanyan vs. R&R
Freight, Ina, 111 S.W. 3rd 779, Tex. App—Dallas, 2003, pet. denied).
25. Issuance of anv traffic ticket. Any inquiry or reference to the fact that Defendant was
issued a ticket for a traffic Violation arising out of the alleged negligence giving rise to
the charge, absent proof of a “guilty plea in open court”. Texas Rules of Evidence, Rule
410; Cox v. Bohman, 683 S.W.2d 757, (Tex.App. —
Corpus Christi 1984, writ refused
n.r.e.); Switzer v. Johnson, 432 S.W.2d 164 (Tex.App. — Houston, 1968 no writ).
26. Lost Wages or Lost Wage Earning Capacitv. Any inquiry or reference to Whether
Plaintiff missed time from work or the effect of their injuries on their job or whether they
lost their job as a result of this motor vehicle collision and any alleged injuries from it.
This is being requested since Plaintiff has not timely enumerated any lost wage or lost
wage earning capacity calculations in response to Defendant(s) Request for Disclosure
(D) as well as Defendant’s Interrogatory # 11.
27. Photographs. Showing any photographs to the jury until the same has been tendered to
opposing counsel and admitted into evidence.
28. Comments on “effects 0n society” and “sending a message” or “protecting societv as
a whole.” Plaintiff be prohibited from making any argument, comment or inference
during any phase of this trial that Defendant should be held accountable or responsible
for the purpose of sending a message on behalf of society as a whole, to protect
‘community safety’, or sending a message that a particular behavior will not be
tolerated. This is because it appeals to a juror’s fear and plays upon bias, prejudice or
sympathy rather than a principled weighing of what the credible evidence shows.
29. Acceptance of responsibility. Plaintiff not make any argument that the Defendant has
failed to take responsibility for the accident or that Defendant has taken no responsibility
or any such similar argument, as such argument suggests prior negotiations or a failure of
the Defendant to make any offers of settlement. Furthermore, Defendant requests that
Plaintiff not be allowed to question Defendant as to whether Defendant accepts
“responsibility” for the occurrence in question. The term “responsibility” is vague and
ambiguous and such argument opens the door to negotiations, settlement and insurance.
Any suggestion of prior negotiations and offers are irrelevant and inadmissible during
trial.This does not prohibit Plaintiff from questioning Defendant about the facts of the
motor vehicle collision and whether or not they were being careful or exercising ordinary
care or Whether Defendant’s actions were consistent with those of a reasonably prudent
person under the circumstances as they existed at the time of the collision.
Robledo-Varela vs. Zarate PAGE 5
DEFENDANT’S MOTION IN LIMINE
Respectfully submitted,
LISA CHASTAIN & ASSOCMTES
WW
YOUNG JENKINS
TBN: 24034505
1201 Elm Street, Suite 5050
Dallas, TX 75270
E-Service Only: DallasLegal@allstate.com
(214) 659-4318
(877) 67 8-4763 (fax)
ATTORNEY FOR DEFENDANT(S)
HECTOR ZARATE
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been served in
compliance with Rules 21 and 21a of the Texas Rules of Civil Procedure on August 30, 2021 to:
Griffin Scheumack
Ben Abbott & Associates, PLLC
1934 Pendleton Dr.
Garland, TX 75041
eSerVice@benabbott.com
ATTORNEYS FOR PLAINTIFF
WM
YOUNG JENKINS
Robledo-Varela vs. Zarate PAGE 6
DEFENDANT’S MOTION IN LIMINE
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Young Jenkins
Bar No. 24034505
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Envelope ID: 56802055
Status as of 8/31/2021 2:35 PM CST
Associated Case Party: ELADIO ROBLEDO-VARELA
Name BarNumber Email TimestampSubmitted Status
Griffin Scheumack eservice@benabbott.com 8/30/2021 10:03:41 PM SENT