Campbell v. Garcia

• Decision Date: 13 September 2016
• Docket Number: 3:13-cv-0627-LRH-WGC
• Parties: GARY G. CAMPBELL, Plaintiff, v. HEATHER GARCIA, as personal representative of THE ESTATE OF LARRY WAYNE KILBURN, Defendant.
• Court: U.S. District Court — District of Nevada

GARY G. CAMPBELL, Plaintiff, v. HEATHER GARCIA, as personal representative ofTHE ESTATE OF LARRY WAYNE KILBURN, Defendant.

3:13-cv-0627-LRH-WGC

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

September 13, 2016

ORDER

Before the court are defendant Heather Garcia's ("Garcia"), as personal representative of the Estate of Larry Wayne Kilburn ("the Estate"), motion in limine no. 1 (ECF No. 88) and motions in limine nos. 2-8 (ECF No. 89).

Also before the court are plaintiff Gary G. Campbell's ("Campbell") motion in limine to exclude references to an intervening event (ECF No. 90), motion in limine to exclude surveillance report (ECF No. 91), motion in limine to exclude past medical bills (ECF No. 92), motion in limine to limit testimony (ECF No. 93), motion in limine to allow reference to community conscience (ECF No. 94), motion in limine regarding the filings of motions in limine (ECF No. 95), motion in limine regarding hypothetical questions (ECF No. 96), motion in limine to exclude prior accidents (ECF No. 97), and motion in limine to permit reference to insurance (ECF No. 98).

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I. Facts and Procedural Background

On the morning of September 11, 2011, Larry Wayne Kilburn ("Kilburn") was driving southbound on US Route 95 in Mineral County, Nevada when he veered into the oncoming traffic lane and struck Campbell's vehicle. As a result of the accident, Campbell sustained injuries and Kilburn was killed.

On August 26, 2013, Campbell filed a complaint against the Estate. ECF No. 1, Exhibit 2, at 12-17. Campbell then filed a first amended complaint for negligence and negligence per se. ECF No. 7. In his complaint, Campbell seeks damages for pain and suffering stemming from the accident, including emotional damages related to alleged Post Traumatic Stress Disorder ("PTSD"). Id.

On March 18, 2015, Campbell filed a motion for partial summary judgment on the issue of liability (ECF No. 59), which the court granted (ECF No. 74). Subsequently, on May 4, 2015, defendant Garcia filed a motion for partial summary judgment on the issue of emotional damages (ECF No. 69), which the court denied (ECF No. 79). Thereafter, the parties filed the present motions in limine. ECF Nos. 88-98. Trial in this action is currently scheduled for Tuesday, November 1, 2016.

II. Legal Standard

A motion in limine is used to preclude prejudicial or objectionable evidence before it is presented to the jury. Stephanie Hoit Lee & David N. Finley, Federal Motions in Limine § 1:1 (2012). The decision on a motion in limine is consigned to the district court's discretion—including the decision of whether to rule on the motion prior to trial. See Hawthorne Partners v. AT&T Techs., Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993) (noting that a court may wait to resolve the evidentiary issues at trial, where the evidence can be viewed in its "proper context"). Motions in limine should not be used to resolve factual disputes or to weigh evidence, and evidence should not be excluded prior to trial unless "the evidence [is] inadmissible on all potential grounds." See, e.g., Ind. Ins. Co. v. Gen. Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004). Even then, rulings onpretrial motions in limine are not binding on the court, and the court may amend, renew, or reconsider such rulings in response to developments at trial. See Luce v. United States, 469 U.S. 38, 41 (1984).

Generally, all relevant evidence is admissible. Fed. R. Evid. 402. 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." Fed. R. Evid. 401. Further, the determination of whether evidence is relevant to an action or issue is expansive and inclusive. See Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384-87 (2008). However, the court may exclude otherwise relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice." Fed. R. Evid. 403. In such a case, relevant evidence may be excluded when there is a significant danger that the jury might base its decision on emotion or when non-party events would distract reasonable jurors from the real issues in a case. See Tennison v. Circus Circus Enters., Inc., 244 F.3d 684, 690 (9th Cir. 2001); United States v. Layton, 767 F.2d 549, 556 (9th Cir. 1985).

III. Discussion

A. Defendant Garcia's Motion in Limine No. 1 (ECF No. 88)

In her first motion in limine, Garcia seeks to (1) preclude Dr. David Antonuccio ("Dr. Antonuccio") from testifying about the reasonableness of Campbell's medical bills because no such opinion is included within his written report,¹ and (2) preclude Dr. Michael Song ("Dr. Song") from testifying about the reasonableness of Campbell's psychological treatment and/or the reasonableness of any bills incurred for that psychological treatment because it is outside the scope

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///of his particular expertise and because no such opinion is included in his expert report.² See ECF No. 88. In response, Campbell filed a non-opposition to Garcia's motion stating that he did not intend to elicit testimony from either Dr. Antonuccio or Dr. Song concerning the reasonableness of his prior medical bills. See ECF No. 110. Therefore, the court shall grant Garcia's motion in limine no. 1.

B. Defendant Garcia's Motion in Limine No. 2-8 (ECF No. 89)

In her second motion in limine, Garcia seeks to exclude seven additional categories of evidence or argument. The court shall address each evidentiary challenge below.

1. Reference to Insurance

Garcia seeks an order prohibiting Campbell from offering any evidence or making any direct or indirect reference to the fact that Kilburn had automotive liability insurance at the time of the accident. The court agrees.

Evidence that a person was or was not insured against liability is generally not admissible. See Nev. Rev. Stat. § 48.135(1) ("Evidence that a person was or was not insured against liability is not admissible upon the issue of whether he acted negligently or otherwise wrongfully."); Fed. R. Evid. 411 ("Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness's bias or prejudice or proving agency, ownership, or control."). Campbell's sole basis to admit evidence of Kilburn's insurance is to prevent an alleged bias he believes the jury will have toward him for suing Kilburn's Estate. However, there is no inherent jury bias in a suit against a decedent's estate. Nor will the admittance of evidence that Kilburn was insured at the time of the accident cure any perceived bias for suing the Estate. Thus, Campbell has not shown that there is a legitimate reason to admit evidence thatKilburn was insured at the time of the accident. Therefore, the court shall grant Garcia's motion as to this issue.

2. Reference to Settlement Negotiations

Garcia similarly seeks an order prohibiting Campbell from offering any evidence or making any direct or indirect reference to any settlement negotiations or settlement offers, including offers of judgment made prior to trial. Campbell does not oppose this motion in limine. See ECF No. 111 at 4. Therefore, the court shall grant Garcia's motion as to this issue.

3. Reference to Procedural History Litigation

Garcia also seeks an order precluding any evidence of the underlying procedural history as irrelevant under Federal Rule of Evidence 401. The court disagrees.

First, the court finds that the present motion is overbroad. The motion does not identify which part of the procedural history should be precluded as irrelevant or what part of the procedural history Campbell is expected to proffer at trial. Second, certain aspects of the procedural history of this case are relevant to this action because the court has already determined the issue of liability as a matter of law. Therefore, the court shall deny this motion in limine without prejudice. If Garcia has objections to specific portions of the procedural history being proffered at trial, such objections can be made at that time.

4. Jury Nullification

In her next motion in limine, Garcia requests an order precluding Campbell from making any arguments at trial that amount to improper jury nullification. See ECF No. 89.

Although the court agrees with exclusion of such argument or suggestion, Garcia fails to identify what specific arguments, if any, she is seeking to preclude. As such, the court finds that any necessary rulings related to improper argument constituting jury nullification can be made during the course of trial. The court shall deny this motion without prejudice.

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5. Workers' Compensation Benefits

At the time he was injured, Campbell was in the course and scope of his employment as a truck driver with non-party Knight Transportation ("Knight"). After the accident, the workers' compensation carrier for Knight paid for Campbell's medical treatment as well as lost income. In addition, the workers' compensation carrier paid Campbell a lump-sum payment of $15,000 in lieu of vocational rehabilitation. Garcia argues that, under Nevada's statutory exception to the collateral-source rule, evidence of Campbell's worker compensation must be introduced to the jury. See Nev. Rev. Stat. § 616C.215(10).

Nevada has "a per se rule barring the admission of a collateral source of payment for an injury into evidence for any purpose." Proctor v. Castelletti, 911 P.2d 853, 854 (Nev. 1996). "However, Nevada recognizes a limited exception to the collateral source rule for workers' compensation payments." Tri-Cty. Equip. & Leasing v. Klinke, 286 P.3d 593, 595 (Nev. 2012). "Pursuant to NRS 616C.215(10), '[i]n any trial of an action by the injured employee . . . against a person other than the employer or a person in the same employ, the jury must receive proof of the...