Motion in Limine Evidentiary in KIMBERLY HARDIN vs. ALLSTATE INDEMNITY COMPANY, et al| Trellis.Law

On July 09, 2020 a Motion,Ex Parte was filed involving a dispute between Hardin, Kimberly, and Allstate Indemnity Company, Veloz, Abraham, for MOTOR VEHICLE ACCIDENT in the District Court of Dallas County.

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FILED
12/2/2021 10:14 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Marissa Gomez DEPUTY

CAUSE NO. DC-20-09343

KIMBERLY HARDIN, § IN THE DISTRICT COURT

Plaintiff, g

vs. g 134T“ JUDICIAL DISTRICT
ALLSTATE INDEMNITY COMPANY and g
ABRAHAM VELOZ, §

Defendants. g DALLAS COUNTY, TEXAS

DEFENDANT ALLSTATE INDEMNITY COMPANY’S MOTION IN LIMINE AND
MEMORANDUM IN SUPPORT

Defendant Allstate Indemnity Company (“Allstate” or “Defendant”), moves the Court to

instruct Plaintiff, Plaintiff’s counsel, and Plaintiff’ s Witnesses not to mention or bring before the

jury, either directly or indirectly, upon voir dire, examination, opening statement, interrogation of

witnesses, introduction of any evidence, argument, objections before the jury, reading any portion

of the pleadings, or by any other means or in any other manner inform the jury, or bring to the

jury’s attention, any of the matters set forth in the numbered paragraphs set forth in part I, 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 obtained from the Court concerning the

admissibility and relevance of any such matters.

Each of the matters set forth in individual paragraphs of part I are inadmissible, irrelevant,

and prejudicial to Defendant’s right to a fair and impartial trial. A timely objection at trial, even

if sustained with an appropriate instruction to the jury to disregard such matters, would not cure

the prejudice that would be suffered by Defendant if Plaintiff’s attempt to interject such

inadmissible, irrelevant, and prejudicial matters into the trial of this lawsuit.

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I.
REQUESTS IN LIMINE
Defendant respectfully requests that the Court grant its motion in reference to the following

matters:

L 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).

GRANTED DENIED AGREED
I!“

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.

GRANTED DENIED AGREED

EX Parte Statements of Witnesses. Any reference to any ex parte statement of any witness
IE“

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

Testimonv of Absent Witness. Any statement or suggestion as to the probable testimony
I?

of any witness or alleged witness who is unavailable to testify, or whom the party
suggesting such testimony does not, in good faith, expect to testify in the trial. If the party
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. Ca, 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 of an opposing party to call any
IS"

to the failure
witness.

GRANTED DENIED AGREED

Hearsay Medical Opinions. Any hearsay statement offered for the truth of the statement
I?‘

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
concerning the expert’s qualiﬁcations and abilities to give such testimony.

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GRANTED DENIED AGREED

Reference to Future Medical Expenses. That Plaintiff not be permitted to testify about
I.“

any future medical expenses because she lacks any reliable basis to offer such testimony.
Tex. R. EVid 702. Furthermore, Plaintiff lacks the knowledge, skill, experience, training
and education to testify about such matters. Id.

GRANTED DENIED AGREED

Asking Jurors t0 put Themselves in the Shoes of Plaintiff. That counsel for Plaintiff
I.”

refrain from making any argument or reference which directs the jurors to place themselves
in the place of Plaintiff such as ““put yourself in the Plaintiff’s shoes” or “give Plaintiff
What the juror would want to receive if he or she were injured” for the reason that same is
an improper argument that cannot be cured by limiting instruction. World Wide Tire C0.
v. Brown, 644 S.W.2d 144, 146 (Tex. App. — Houston [14th Dist.] 1982, writ ref’d n.r.e.).

GRANTED DENIED AGREED

Reference to the Financial Status of Defendant. Plaintiff, Plaintiff’s counsel, and
IP

Plaintiff’s witnesses should be prohibited from offering testimony, argument or remarks
regarding insurance companies in general, the ﬁnancial status or size of Defendant, or to
referring or characterizing Plaintiff as a small person or individual going against a large
corporation or insurance company, or “us versus them” or any similar “David versus
Goliath” comparison. See, e. g., Eckman v. Centennial Savings Bank, 784 S.W.2d 672, 675
(Tex. 1990); First Nat’l Bank 0fMarshall v. Beavers, 619 S.W.2d 288, 289 (Tex. Civ. App.
— Texarkana
1981, writ refused n.r.e.).

GRANTED DENIED AGREED

10 Evidence Regarding Defendant’s Handling of Plaintiff’s UM Claim. Plaintiff,
Plaintiff’s counsel and Plaintiff’s witnesses should be prohibited from making any
reference or comment pertaining to Defendant’s investigation, adjustment, handling and
coverage decision on Plaintiff’ s uninsured motorist claims. Any testimony or evidence
pertaining to the extra-contractual claims and Defendant’s handling of the claims are not
relevant, premature and would be prejudicial to the defense of this case. Furthermore, the
parties have ﬁled an agreed motion to abate such claims. Plaintiff, Plaintiff” s counsel and
Plaintiffs witnesses should be prohibited from reference to any of the Defendant’s
advertising marking campaigns, including but not limited to, “In Good Hands” as such
information is irrelevant to any issue to be tried in this case.

GRANTED DENIED AGREED

11 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.
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GRANTED DENIED AGREED

12 Requests 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.

GRANTED DENIED AGREED

13 Hardshig or Privation. Any argument or suggestion that a failure to award damages will
cause a Plaintiff s privation or ﬁnancial hardship.

GRANTED DENIED AGREED

14 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 C0., 430 S.W. 2d. 35 (Tex.
CiV. App—Dallas 1968, writ ret‘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
15 Evidence Not Produced in Discovery Response to a Proper RealLst. 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

16 Obiections to Evidence Not Produced in Discoverv. 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

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17 Experts not Designated. Calling any expert to testify at trial, other than the experts
expressly identiﬁed in response to Request for Disclosure and Expert Designations. TRCP
194 and 195; Trubell vs. Patton, 582 S.W. 2d 606 (Tex. CiV. App-Tyler 1979, no writ).

GRANTED DENIED AGREED

18 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 and Expert Designations. 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.

GRANTED DENIED AGREED

19 Available Assets. Any inquiry into or reference to the assets Defendant has available for
investigating, preparing and defending this cause. First Nat ’l Bank ofMarshall 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 refd n.r.e.).

GRANTED DENIED AGREED

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. Burdick vs.
York Oil C0., 364 S.W.2d 766 (Tex. Civ. App—San Antonio 1963, writ refd n.r.e.).

GRANTED DENIED AGREED

21 Privileged Information. Any inquiry or discussion regarding matters protected by the
work product doctrine and the party communications privilege. Speciﬁcally, examination
regarding the preparation and review of documents or information generated or
accumulated after anticipation of litigation.

GRANTED DENIED AGREED

22 CalculLtion of Economic Damages. Plaintiff be prohibited from introducing any
evidence, offering any testimony, or making any argument regarding economic damages.
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

23 Burden of Proof. Plaintiff, Plaintiff’s counsel, and Plaintiff’ s witnesses should be
prohibited from offering any evidence, argument, suggestion, inference or contention that

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Defendant bears the burden of proof in this case, with the exception of its own afﬁrmative
defenses.

GRANTED DENIED AGREED

Breach 0f Contract: Plaintiff is not entitled to allege or make reference to any alleged
“breach” of contract by Defendant in this matter. There can be no breach of any
Contract of insurance between Plaintiff and Defendant until and unless Defendant fails
to pay uninsured motorist beneﬁts Which the jury in this case has determined to be due
and payable after the jury ﬁnds liability on the part of the underinsured/uninsured
motorist and ﬁnds the amount of the Plaintiffs damages. Brainard v. Trinity Universal
Ins. Ca, 216 S.W.3d 809 (Tex. 2006). Furthermore, the parties have ﬁled an agreed
motion to abate such claims.

GRANTED DENIED AGREED
Denial of Claim: Plaintiff is not entitled to allege or assert, in the presence of the jury,
that Defendant has “denied” her claim for uninsured motorist beneﬁts since Defendant has
not denied Plaintiff” s claim. Rather, a dispute has arisen as to the value of Plaintiff’ s claim.
To allow Plaintiff to contend, in the presence of the jury, that Defendant has denied her
claim would be unfairly prejudicial and contrary to law.

GRANTED DENIED AGREED
Premiums: that the jury in this case needs to teach the Defendant and other insurance
companies a lesson and to the effect that the Plaintiff has paid premiums for her insurance
coverage but is being mistreated by her insurance company, since such statements are
prejudicial and inﬂammatory and not relevant to the issues to be tried by the jury in this case.
This is no more appropriate than allowing the Defendant to argue that insurance policy
premiums will go up if the jury makes an award of damages in this case.

GRANTED DENIED AGREED

27 Paid or Incurred: Even assuming that the proper predicate has been laid by Plaintiff for
introduction of evidence concerning Plaintiffs medical expenses, she is not entitled to offer
into evidence medical expenses in excess of the amount actually paid by the Plaintiff and
her health insurance carrier, as such would be in Violation of §4l.0105 of the Texas Civil
Practice & Remedies Code. Such statute is an evidentiary statute. The amount charged by
the Plaintiffs healthcare providers has no bearing to the amount of money paid. In this
regard, Plaintiff is entitled to offer into evidence only medical expenses actually paid or
incurred by or on behalf of the Plaintiff. That is, the Plaintiff is entitled to testify only as to
charges for reasonable and necessary medical expenses actually paid by the Plaintiff and/or
any health insurance carrier, Medicaid, Medicare or other entity and the amount of charges
remaining owing and unpaid to each healthcare provider. §41.0105, Texas Civil Practice &
Remedies Code; Mills v. Fletcher, 229 S.W.3d 765, 769, 771 (Tex. App. - -San Antonio

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2007, no pet); Haygood v. de Escabedo, No. 09-0377 (Tex. 2011), Gore v. Faye,253
S.W.3d 685 (Tex. App. --Amarillo 2008, no writ);

GRANTED DENIED AGREED
Reference to Other Lawsgits or Claims Agajnst Defendant: That Defendant or any
other witness was involved in any lawsuit, incident, or had any complaint made against
them except the one which is the subject of this lawsuit, or that any such claims have been
settled or tried, or been the subject of any corrective action, either before or after the ﬁling
of this lawsuit. Missouri Pac. R. C0. v. Cooper, 563 S.W.2d 233, 236-37 (Tex. 1978);
Dallas Ry. & Terminal C0. v. Farnsworth, 227 S.W.2d 1017, 1020 (Tex. 1950); Nevauex
v. Park Place Hosp, Ina, 656 S.W.2d 923, 926 (Tex. App. — Beaumont 1983, writ ref‘d.
n.r.e.).

GRANTED DENIED AGREED

a Reference to Defendant Counsel’s Practice. From referring to the nature, size or
location of Defendant’s counsel’s practice, or when or how Defendant or an individual
Defendant employed defense counsel.

GRANTED DENIED AGREED

(1) Limits of Insurance Beneﬁts Potentially Available to Plaintiff. Plaintiff, Plaintiff’s
counsel, and Plaintiff’s witnesses should be prohibited from making any reference to or
offering any testimony or evidence concerning the amount of coverage provided under the
Defendant’s insurance policy at issue in this lawsuit. This information is not relevant to
the liability of the individuals involved in the car accident, or the Plaintiff‘s damages
proximately caused by the accident. The existence and limits of coverage under the
Defendant’s insurance policy has been stipulated to (subject to the terms and conditions of
the policies). Testimony concerning the amount of coverage available would be unfairly
prejudicial to Defendant because of the danger of inﬂuencing the jury’s evaluation of
Plaintiff s damages proximately caused by the accident. See Tex. R. Evid. 411. See also In
re Reynolds, 369 S.W.3d 638, 652(Tex. App. — Tyler, 2012) (a negligence claim and a
related UM claim have in common the facts and issues relating to whether the alleged
tortfeasor was negligent i.e. whether the alleged negligence proximately caused the
plaintiff’ s damages and the amount of the plaintiff’s damages. However, the remaining
elements of a UM claim—whether the plaintiff had UM coverage and whether the
tortfeasor had insurance coverage in at least the amount of the damages awarded —are
unrelated to the facts and issues pertaining to the negligence claim. While the two causes
of action have some overlapping facts and issues, they do not involve “the same facts and
issues.”

GRANTED DENIED AGREED

ﬂ Loss Wages: Plaintiff is not entitled to testify concerning lost earnings or wages until or
unless the proper predicate has been laid by Plaintiff and, further, any testimony or
evidence concerning lost wages or lost earning capacity on the part of the Plaintiff must

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be in “after tax” dollars, as per §18.091, Texas Civil Practice & Remedies Code, which
provides as follows:

Notwithstanding any other law, if any claimant seeks recovery for loss of earnings,
loss of earning capacity, loss of contributions of a pecuniary value, or loss of
inheritance, evidence to prove the loss must be presented in the form of a net loss
after reduction for income tax payments or unpaid tax liability pursuant to any
federal income tax law. Plaintiff is not entitled to testify concerning lost earnings
or wages as any testimony would be purely speculative in nature

Plaintiff, Plaintiff s counsel and Plaintiff’ s witnesses should be prohibited from attempting
to introduce any evidence regarding lost wages or lost earning capacity as such is nothing
more than mere speculation. Despite proper discovery requests, Plaintiff has failed to
produce any documents from Plaintiffs employer verifying her lost wages.

GRANTED DENIED AGREED

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Respectfully submitted,

/s/Ashlev B. Pedigo
Roger D. Higgins, State Bar No. 09601500
rhiggins@thompsoncoe.com
Tiffany Au, State Bar No. 24075 842
tau@thompsoncoe.com
Ashley B. Pedigo, State Bar No. 24095731
apedigo@thompsoncoe.com
THOMPSON, COE, COUSINS & IRONS, L.L.P.
Plaza of the Americas
700 North Pearl Street, 25th Floor
Dallas, Texas 75201-2832
Telephone: (2 l4) 871-8200
Fax: (214) 871-8209

ATTORNEYS FOR DEFENDANT
ALLSTATE INDEMNITY COMPANY

CERTIFICATE OF SERVICE
This is to certify that on December 2, 2021, a true and correct copy of the foregoing was
delivered to the following counsel for Plaintiff by electronic service:

David K. Mestemaker
Norman Straub
Jonathan Zumwalt
dkm@mandsattomeys.com
nstraub@mandattomeys.com
ibz@mandsattomeys.com
Mestemaker, Straub & Zumwalt
3100 Timmons Lane, Suite 455
Houston, Texas 77027
Telephone: (713) 626-8900
Facsimile: (713) 626-8910

ATTORNEYS FOR PLAINTIFF

/s/Ashlev B. Pedigo
Ashley B. Pedigo

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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.

Nikki Miller on behalf of Ashley Pedigo
Bar No. 24095731
NMiller@thompsoncoe.com
Envelope ID: 59631123
Status as of 12/2/2021 10:24 AM CST
Associated Case Party: ALLSTATE INDEMNITY COMPANY

Name BarNumber Email TimestampSubmitted Status

Roger Higgins rhiggins@thompsoncoe.com 12/2/2021 10:14:46 AM SENT
Doris A. Joiner djoiner@thompsoncoe.com 12/2/2021 10:14:46 AM SENT
Dagmar Reed dreed@thompsoncoe.com 12/2/2021 10:14:46 AM SENT
Pat Durn/vachter pdurn~achter@thompsoncoe.com 12/2/2021 10:14:46 AM SENT
Ashley Pedigo apedigo@thompsoncoe.com 12/2/2021 10:14:46 AM SENT
Tiffany Au tau@thompsoncoe.com 12/2/2021 10:14:46 AM SENT

Associated Case Party: KIMBERLY HARDIN

Name BarNumber Email TimestampSubmitted Status
Jonathan Zumwalt 24053570 jbz@mandsattorneys.com 12/2/2021 10:14:46 AM SENT
David Mestemaker 13974600 contact@mandsattorneys.com 12/2/2021 10:14:46 AM SENT
Norman Straub 793002 normanstraub@hotmail.com 12/2/2021 10:14:46 AM SENT

Case Contacts

Name BarNumber Email TimestampSubmitted Status
Francine Ly fly@dallascourts.org 12/2/2021 10:14:46 AM SENT

Case Info

Judge

TILLERY, DALE Track Judge’s New Case

Case No.

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Document Filed Date

December 02, 2021

Case Filing Date

July 09, 2020

County

Parties

ALLSTATE INDEMNITY COMPANY Defendant
AU, TIFFANY A Attorney for the Defendant
HARDIN, KIMBERLY Plaintiff
MESTEMAKER, DAVID KENT Attorney for the Plaintiff
STAINTON (PEDIGO), ASHLEY B. Attorney for the Defendant
VELOZ, ABRAHAM Defendant
Roger Higgins Attorneys for Defendants
Ashley Pedigo Attorneys for Defendants
Norman Straub Attorneys for Plaintiffs
Jonathan Zumwalt Attorneys for Plaintiffs
Michael Carey Attorney

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Motion,Ex Parte: KIMBERLY HARDIN vs. ALLSTATE INDEMNITY COMPANY, et al

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