Motion in Limine Evidentiary in DAVID HILL vs. DICKY LEE HALE, et al| Trellis.Law

On March 14, 2017 a Motion,Ex Parte was filed involving a dispute between Hill, David, and Hale, Dicky Lee, for MOTOR VEHICLE ACCIDENT in the District Court of Dallas County.

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FILED
7/16/20213:19 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Darling Tellez DEPUTY

CAUSE NO. DC-17-03053

DAVID HILL; IN THE DISTRICT COURT

P1aintiff(s),
101 ST JUDICIAL DISTRICT
vs.

DICKY LEE HALE; and HEATH DALLAS COUNTY, TEXAS
WHITESIDE;

Defendant(s).

DEFENDANT’S MOTION IN LIMINE

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES DICKY LEE HALE, hereinafter referred to as "Defendant," and before any

proceedings before the jury, makes and ﬁles this MOTION [N 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:

l. 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.

GRANTED DENIED AGREED

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:
Hill vs. Hale, Whiteside PAGE 1

DEFENDANT, DICKY LEE HALE’S, MOTION IN LIMINE
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."

GRANTED DENIED AGREED

Collateral Source. That any portion of the damages sought by Plaintiff have been, or will
be, paid by any collateral source, including but not limited to:

a) health and accident or disability insurance.

b) any employee beneﬁt plan, formal or informal, including payment of wages for
time not actually worked.

c) social security or welfare.

d) veterans or other beneﬁts.

e) provisions of medical services free of charge or for less than reasonable and
customary charges, provided that the foregoing does not prohibit reference to
unpaid charges of any health care provider who actually testiﬁes for Plaintiff (or
whose medical records are offered by Plaintiff), or to any letter of protection
securing any such charges, if mention of such is contained within evidence admitted
in this case.

GRANTED DENIED AGREED

4. Retention of Attorney. The time or circumstances under which either party consulted or
retained an attorney provided that if any attorney referred a party to a health care provider
who testiﬁes in the case (or whose medical records are introduced by such party), such fact
may be a subject of inquiry if mention of such is contained within evidence admitted in
this case.

GRANTED DENIED AGREED

Prior Suits or Claims. That any party has been a party to any prior lawsuit, or has asserted
any prior claim, or that any prior claim has been asserted against a party; provided that this
clause does not prohibit inquiry about a prior injury that may have been the subject of a
claim, as distinguished from the claim, suit or settlement with reference thereto, if the
nature of injuries claimed in the present suit make the same relevant.

GRANTED DENIED AGREED

I-Iill vs. Hale, Whiteside PAGE 2
DEFENDANT, DICKY LEE HALE’S, MOTION 1N LIMINE
Q; Parte Statements of Witnesses. Any reference to any ex parte 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 parte statement. A deposition or a statement in business or medical records that
have been proved up as required by the Rules of Evidence is not an ex parte statement.

GRANTED DENIED AGREED

Testimony of Absent Witness. Any statement or suggestion as to the probable testimony
of any witness or alleged witness who is unavailable to testify, or Whom the party
suggesting such testimony does not, in good faith, expect testify in the trial. If the party
to
is expected to testify by deposition, this provision does not apply to testimony contained in
the deposition expected to be offered. Sanders v. St. Paul Fire & Marine Ins. C0,, 429
S.W.2d 516 (Tex. Civ. App.—Texarkana 1968, writ re’d n.r.e.).

GRANTED DENIED AGREED

Failure to Call Witness. Any reference to the failure of an opposing party to call any
witness.

GRANTED DENIED AGREED

Photographs and Visual Aids. Showing any documents, photographs or visual aids to
the jury, or displaying same in such manner that the jury or any member thereof can see
the same, unless and until the same has been tendered to opposing counsel, and has been
admitted in evidence or approved for admission or use before the jury, either by the Court
or by all counsel.

GRANTED DENIED AGREED

10. Hardship or Privation. Any argument or suggestion that a failure to award damages will
cause Plaintiff privation or ﬁnancial hardship.

GRANTED DENIED AGREED

11. 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
[14th Dist] 1982, writ rend n.r.e.).

GRANTED DENIED AGREED

12. ginsel’s Opinion of Credibility. Any expression of counsel's personal opinion
regarding the credibility of any witness. Wallace vs. Liberty Mutual Ins. C0,, 413 S.W.2d
787, 790 (Tex. Civ. App—Houston 1967, writ ref‘d n.r.e.).

GRANTED DENIED AGREED

Hill vs. Hale, Whiteside PAGE 3
DEFENDANT, DICKY LEE HALE’S, MOTION 1N LIMINE
13. Effect of Answers to Jug 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 C0., 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 it advises the jury of the effect of its answers.

GRANTED DENIED AGREED

14. Evidence Not Produced in Discovery Response t0 a Proper Reqgest. Calling any
Witness, or offering any document in evidence, if the identity of such witness or the
document has not been disclosed in response to a proper discovery request. If a party has
a good faith basis to urge that such Witness or document should be received either because
(a) no discovery request properly called for its disclosure, or (b) good cause existed for
failure timely to disclose, such party shall ﬁrst approach the bench and secure a ruling
thereon. Counsel are advised that to the extent possible or predictable, such matters should
be addressed and a ruling sought at pretrial once the case is assigned for trial. City of San
Antonio vs. Fulcher, 749 S.W.2d 217, 220 (Tex. App—San Antonio 1988, writ den).
TRCP 215.

GRANTED DENIED AGREED

15. 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.

GRANTED DENIED AGREED

16. Prior Automobile Accidents. Any inquiry into or disclosing that the Defendant has 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.

GRANTED DENIED AGREED

17. Prior Tickets. Any inquiry into or disclosing that the Defendant has ever been issued any
moving violations 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."

GRANTED DENIED AGREED

Hill vs. Hale, Whiteside PAGE 4
DEFENDANT, DICKY LEE HALE’S, MOTION 1N LIMINE
18. Existence of Motion in Limine. Any reference to this Motion in Limine being ﬁled or
that all or any portion of the relief requested herein has been granted or denied. Burdz'ck
vs. York Oil C0,, 364 S.W.2d 766 (Tex. Civ. App.—San Antonio 1963, writ refd n.r.e.).

GRANTED DENIED AGREED

19. Calculation of Economic Damages. Plaintiff be prohibited from introducing any
evidence, offering any testimony, or making any argument regarding economic damages
not timely disclosed in response to Request for Disclosures. Pursuant to TRCP 194.2,
Plaintiff is required to disclose the amount and method of calculating economic damages.
Pursuant to TRCP 193.6, information and material not disclosed through discovery may
not be introduced into evidence.

GRANTED DENIED AGREED

20. Statements of Law. Counsel be prohibited from making any statement of the law other
than that regarding the burden of proof and the basic legal deﬁnitions before the Charge
conference.

GRANTED DENIED AGREED

21. Cellphone Usage. Plaintiff and counsel be prohibited from making any argument or
testifying as to any alleged use of a cellphone/mobile device by the Defendant as there is
no evidence or records to support such allegation. There is no mention of cellphone usage
being a factor on the Crash Report, nor any evidence or admission of cellphone usage being
a factor. The clear prejudicial nature of such argument or testimony outweighs any
probative value.

GRANTED DENIED AGREED

22. Untimely CPRC 818.001 affidavits. That no Afﬁdavits pursuant to CPRC §18.001 be
introduced into evidence that were not timely produced and notice of same timely ﬁled.
Pursuant to CPRC 18.001(d), effective 1/ 1/2020, the party offering the afﬁdavit must
serve a copy of the afﬁdavit by the earlier of (1) 90 days after the date the defendant ﬁles
an answer; (2 and 3) the date the offering party must designate any expert witness.
Plaintiff failed to comply with the time constraints provided by statute, therefore has not
complied with the statute, making them inadmissible hearsay documents.

GRANTED DENIED AGREED

23. CPRC 818.001 afﬁdavits. That no Afﬁdavits pursuant to CPRC §18.001 be introduced
into evidence without the corresponding deductions or write-offs under the “paid vs
incurred” line of cases. In particular, that Plaintiff not be allowed to introduce evidence
or argue the total amount of medical expenses billed, but be limited to that amount that
was either paid or is still due and owing (not having been written off by the medical care
provider). Haygood V De Escabedo (Tex. 2011).

GRANTED DENIED AGREED
Hill vs. Hale, Whiteside PAGE 5
DEFENDANT, DICKY LEE HALE’S, MOTION 1N LIMINE
24. Statements of Law regarding 18.001 counter affidavits. Plaintiff’s counsel be
prohibited from making any statements regarding the legal procedures and legal effects
relating to the ﬁling of 18.001 Medical Billing Afﬁdavits under the Texas Civil Practice
and Remedies Code. Speciﬁcally, Plaintiff attorney be prohibited from telling the jury
that Defendant did not ﬁle counter afﬁdavits, as that “fact” is not in evidence at any trial.
Further, the Plaintiffs counsel be prohibited from stating that the 18.001 Afﬁdavits ﬁled
by Plaintiff are undisputed and/0r uncontroverted: such an argument improperly shifts
the burden of proof to the Defense. It is Plaintiff’s burden to prove the reasonableness
and necessity of medical treatment, not the Defense burden to “disprove” their
reasonableness or necessity.

GRANTED DENIED AGREED

25. Argument regarding 18.001 counter afﬁdavits. Defendant’s counsel be allowed to
argue the reasonableness and/or necessity of the medical billing and/or treatment given to
the plaintiff in this case. Statutory or case law does not preclude argument about the
reasonableness or necessity of medical treatment and/or cost, only the exclusion of
evidence to the contrary. See Grove V Overby, 2004 Tex. Ap. LEXIS 6822, 2004 WL
168326 (Tex. App. » Austin July 29, 2004, no pet); Gutierrez, et a1. v Martinez, 2008
Texas App. LEXIS 9632 (Tex. App. i Houston Dec. 19, 2008, no pet); Gunn V. McCoy,
489 S.W.3d 75 (Tex. App. — Houston, 2016); and Beauchamp v Hambrick, 901 S.W.2d
747, 749 (Tex.App. — Eastland 1995, no writ).

GRANTED DENIED AGREED

26. Exclusion of non-authors’ documents as business/medical records. Plaintiff’ s
counsel be prohibited from attempting to include records of one doctor or treating
provider within the records of another doctor or treating provider. Texas Rules of
Evidence, Rule 902(10) indicates that business records proved up by afﬁdavit must be
made by the afﬁant “with knowledge of the act, event, condition, opinion, or diagnosis,
recorded to make the record or to transmit information thereof to be included in such
record; ...” Throughout the “business records” afﬁdavits ﬁled in this case may be
documents NOT authored by the Afﬁant (or employee or representative of the medical
provider), nor can the afﬁant testify as to the “correctness” of the included documents,
thus they are not true “business records”, but hearsay documents and should be excluded
from inclusion as “business records” under Texas Rules of Evidence, Rule 802. They are
also duplicative and may confuse the jury be being found in multiple places, when the
sole place they should be is within the records sworn to by an appropriate custodial
individual. See Southwest Industries Investment Co. V. Scalf, 604 S.W.2d
33 (Tex.Civ.App.-Dallas 1980, no writ); Knollenberg v. Steel Tank Construction, 600
S.W.2d 347 (Tex.Civ.App-Houston (lst Dist.) 1980, no writ); Wills v. R. G. Beneke &
Q, 570 S.W.2d 79 (Tex.Civ.App.-Dallas 1978, writ ref‘d n. r. e.); Matrix Computing,
Inc. v. Davis, 554 S.W.2d 288 (Tex.Civ.App.-Amarillo 1977, no writ); Braswell Motor
Freight Lines, Inc. v. Tetens, 538 S.W.2d 224 (Tex.Civ.App.-Austin 1976, no
writ); Vahlsing Christina Corp. v. Ryman, 512 S.W.2d 803 (Tex.Civ.App.-Corpus Christi
1974, no writ).

Hill vs. Hale, Whiteside PAGE 6
DEFENDANT, DICKY LEE HALE’S, MOTION 1N LIMINE
GRANTED DENIED AGREED

27. Msion of written report as not “true” medical records. Plaintiff’ s counsel be
prohibited from attempting to include any written report by a medical provider that was
not done in the regular course of medical care provided to the plaintiff. The Medical
Records exception to the hearsay rule (Rule 803(6)) “is intended to include routine,
systematic entries in a patient’s medical records that are necessary for the proper
rendition of medical services.” Grove v Overby, 2004 Tex. App. LEXIS 6822 (Tex. App.
— Austin
July 29, 2004, no pet). Texas Rules of Evidence, Rule 902(10) indicates that
business records proved up by afﬁdavit must be made by the afﬁant “with knowledge of
the act, event, condition, opinion, or diagnosis, recorded to make the record or to transmit
information thereof to be included in such record; ...” Any such “report” is NOT done
for the purpose of treatment, but rather for litigation purposes, thus they are not true
“business records”, but hearsay documents and should be excluded from inclusion at
“business records” under Texas Rules of Evidence, Rule 802.

GRANTED DENIED AGREED

28. Redaction of any “future” expenses. The Medical Records exception to the hearsay
rule (Rule 803(6)) “is intended to include routine, systematic entries in a patient’s
medical records that are necessary for the proper rendition of medical services.” Grove v
Overby, 2004 Tex. App. LEXIS 6822 (Tex. App. 7 Austin July 29, 2004, no pet.).
Within the medical records may be “opinions” regarding the necessity and cost of future
care. While past medical expenses can be proved up Via CPRC 18.001 Afﬁdavit (in
effect, making an exception to the hearsay rule for admission of otherwise inadmissible
material), future medical expenses and the need for such care must be proved up Via live
expert testimony, to a “reasonable medical probability”, a standard which is not
mentioned in the plaintiffs records, nor are those opinions sworn by an appropriate
medical professional. Defendant requests that any “future costs” or treatment be redacted
from any medical records, absent any sworn testimony supporting that expert testimony.

GRANTED DENIED AGREED

29. Amount of Property Damage Expense. Plaintiff is not seeking any claim for the
amount of property damage. The actual dollar cost to repair a vehicle may not be
relevant for any admissible purpose, as the “cost of repair” of vehicle varies wildly
between cars of different models/makes/years. For example, a bumper scratch on a Rolls
Royce presumably would cost much more to repair than a bumper scratch on a Honda
Civic: without a reference (such as expert witness testimony), the “dollar cost” of repairs
is of no value to the trier of fact, and may be highly prejudicial.

GRANTED DENIED AGREED

30. Property Damage Photos. Plaintiff may not attempt to mention, show to the Jury, refer
to, or introduce into evidence the property damage photos taken at the scene of the incident
or shortly thereafter because Plaintiff is not claiming property damage, and therefore, such
evidence is not relevant under TEX. R. EVID. 401, and, alternatively, if determined relevant,
Hill vs. Hale, Whiteside PAGE 7
DEFENDANT, DICKY LEE HALE’S, MOTION IN LIMDIE
its probative value is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, per TEX. R. EVID. 403. Furthermore, Plaintiff has not
designated an expert on causation (i.e. that major or minor property damage can or cannot
proximately cause, Within reasonable degree of probability, the injuries Plaintiff alleges in
this suit).

GRANTED DENIED AGREED

31. Lizard Theogy. Any reference or insinuation that the jury should act as a conscience of
the community, protect the community from risk, consider community safety, cast the
Defendant as a danger to society, or punish the Defendant to discourage similar conduct.
Such references or insinuations Violate the golden rule, are irrelevant, and simply appeal to
the bias, prejudice, and fears of the jury.

GRANTED DENIED AGREED

32. Exclusion of unpaid medical costs more than 4 years old. Plaintiff may not seek to
introduce a claim for any unpaid medical bill/cost that has never been collected and is
more than 4 years from the date of service. Tex. Civ. Prac. & Rem. Code § 41.0105
limits a claimant’s recovery of medical expenses to those which have been or must be
paid by the claimant. Haygood v. Escobedo, S.W. 3d 2011, 54 Tex. Sup. Ct. J. 1377,
Tex., 2011 (emphasis added). Texas law states that a person seeking to collect a debt
must bring suit Within four years from the date the cause of action accrues. The accrual
date is the day the parties ceased their dealings for the purpose for which they were
interested together. Tex. Civ. Prac. & Rem. Code & 16.004.

GRANTED DENIED AGREED

Respectfully submitted,

LISA CHASTAIN & ASSOCLATES

aw WW
SCOTT A. WHITCOMB
TBN: 24053546

1201 Elm Street, Suite 5050
Dallas, TX
75270
E-Service Only: DallasLegal@allstate.com
(214) 659-4325
(877) 678-4763 (fax)

ATTORNEY FOR DEFENDANT
DICKY LEE HALE
Hill vs. Hale, Whiteside PAGE 8
DEFENDANT, DICKY LEE HALE’S, MOTION 1N LIMINE
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 the 16th day of July, 2021, to:

Attorney for Plaintiff Hill
Rachel Hatten Adams, Esquire
Eberstein & Witherite, LLP
10440 N Central Expy Ste 400
Dallas TX 75231-2228

ﬁmﬁ'
”KW
SCOTT A. WHITCOMB

Hill vs. Hale, Whiteside PAGE 9
DEFENDANT, DICKY LEE HALE’S, MOTION 1N LIMINE
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Scott Whitcomb
Bar No. 24053546
swhim@allstate.com
Envelope ID: 55436749
Status as of 7/20/2021 9:19 AM CST

Associated Case Party: DAVID HILL

Name BarNumber Email TimestampSubmitted Status
Rachel Hatten rachel.hatten@witheritelaw.com 7/16/2021 3:19:50 PM SENT

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Document Filed Date

July 16, 2021

Case Filing Date

March 14, 2017

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Motion,Ex Parte: DAVID HILL vs. DICKY LEE HALE, et al

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