Fontenot v. Gonzalez

• Decision Date: 07 November 2017
• Docket Number: DOCKET NO. 2:16-cv-584
• Parties: JEREMI J. FONTENOT v. WILLIAM RODOLFO GONZALEZ, ET AL.
• Court: U.S. District Court — Western District of Louisiana

JEREMI J. FONTENOT v. WILLIAM RODOLFO GONZALEZ, ET AL.

DOCKET NO. 2:16-cv-584

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAKE CHARLES DIVISION

November 7, 2017

UNASSIGNED DISTRICT JUDGE

MAGISTRATE JUDGE KAY

MEMORANDUM ORDER

Before the court is a Motion in Limine [doc. 26] filed by plaintiff Jeremi J. Fontenot ("Fontenot"), seeking to prohibit William Rodolfo Gonzalez ("Gonzalez") and Hudson Insurance Company ("Hudson) (collectively, "defendants") from mentioning or introducing any evidence on certain topics at trial. Defendants oppose the motion, and Fontenot has filed a reply. Docs. 34, 38.

I.BACKGROUND

This action relates to a motor vehicle accident between Fontenot and Gonzalez on June 21, 2015, in Calcasieu Parish, Louisiana. Doc. 1, att. 1, pp. 1-2. Fontenot filed suit in the Fourteenth Judicial District, Calcasieu Parish, Louisiana, and Hudson subsequently removed the action to this court on the basis of federal diversity jurisdiction, 28 U.S.C. § 1332. Doc. 1, att. 1, pp. 1-4; doc. 1. On September 14, 2017, the court granted Fontenot's unopposed motion for partial summary judgment on the issue of liability. Doc. 25; see docs. 19, 22 (motion and response). Accordingly, it is settled that the subject accident was due to Gonzalez's negligence and the only issue to be decided at trial in this matter is the amount of damages owed to Fontenot.

II.LAW & APPLICATION

Under Rule 104(a) of the Federal Rules of Evidence, "[t]he court must decide any preliminary questions about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege."

Fontenot brings this motion to exclude evidence or mention of the following topics at trial: 1) his prior arrests and misdemeanor conviction; 2) his prior drug and alcohol usage; 3) evidence not made known during discovery; 4) the fact that Fontenot retained an attorney shortly after the accident; 5) the fact that Fontenot's medical bills have been paid; 6) the fact that any award is not taxable under federal and state income tax laws; 7) Fontenot's failure to call anyone on his witness list; 8) attorney file documents; 9) financial impact to defendants of an adverse verdict; 10) probable testimony of an absent witness; and 11) the fact that Fontenot has filed this motion. Defendants oppose the motion in all respects. Doc. 34.

A. Prior arrests and conviction

Fontenot admits that he pleaded guilty to a misdemeanor charge of attempted possession of drug paraphernalia in the Fourteenth Judicial District Court, Calcasieu Parish, Louisiana, on July 28, 2015. Doc. 26, att. 1, p. 1. The parties also state that he has been arrested as a result of disagreements with his father. Id.; doc. 34, pp. 1-2. Fontenot argues that evidence of the arrests and conviction should be excluded under Federal Rule of Evidence 609 and because its probative value is substantially outweighed by the potential for prejudice, under Rule 403.

Rule 609 sets the limits on uses of a criminal conviction to attack a witness's character for truthfulness, and provides generally that a criminal conviction may not be used for that purpose unless it is a felony or the court can readily determine from the elements that it involved a dishonestact or false statement. FED. R. EVID. 609(a). The defendants contend, however, that they would not seek to introduce this evidence to attack Fontenot's credibility. Doc. 34, p. 4. Instead, they would use it to refute his allegations that his injuries in the accident have led to behavioral difficulties, by showing that his behavioral issues (as expressed through fights with his father) preceded the accident. Id.

Accordingly, this portion of the motion should be analyzed under Rule 404(b), which allows evidence of prior wrongdoings for purposes other than proving the person's character in order to show that he acted in conformity with that character. FED. R. EVID. 404(b)(1). However, evidence of a prior bad act may be admissible "for another purpose."¹ Id. at 404(b)(2). In such cases the court must first determine whether the evidence is relevant to an issue other than character, and then ensure that its probative value is not substantially outweighed by its potential for undue prejudice. United States v. Cervantes, 706 F.3d 603, 615 (5th Cir. 2013).

Here the defendants argue that the prior bad acts are admissible to rebut a damages claim. They do not provide any citation for their allegation that behavioral problems are part of Fontenot's claimed damages. See doc. 34, p. 4. However, Fontenot's complaint shows that he has alleged injuries including "[s]evere head injuries and trauma" and "[s]evere nervous shock." Doc. 1, att. 1, p. 3. He also claims damages for, inter alia, "physical and mental pain, suffering, discomfort, anxiety, distress, disability, disfigurement and inconvenience." Id. In his interrogatory answers, Fontenot listed three treating psychologists as possible witnesses and admitted that he has been prescribed several medications since the accident, including sedatives and antidepressants.² Id. at12-14. Thus, as defendants argue, arrests relating to arguments with a family member, introduced to show that Fontenot's psychological issues preceded the accident, are both relevant to this issue and sufficiently probative to outweigh the potential for prejudice. Defendants have not met their burden, however, with regard to Fontenot's misdemeanor drug conviction, as they fail to show that it is sufficiently related to their claims of pre-accident behavioral problems.

Accordingly, this portion of the motion is DENIED as to Fontenot's arrests and GRANTED as to his misdemeanor conviction, subject to any limitations the trial court may wish to place on references to or examination on the arrests in order to guard against their improper use as character evidence.

B. Prior drug and alcohol use

Fontenot also seeks to exclude any evidence of his drug and alcohol abuse, to which he apparently admitted at a deposition. Doc. 26, att. 1, p. 2. Defendants state that Fontenot has admitted to abusing alcohol and specific types of drugs and that he now alleges he is experiencing specific symptoms, which they argue are more likely a result of his substance use than the injuries he sustained in the accident. Doc. 34, pp. 4-5. However, defendants do not provide any proof of these admissions and claims. See id. "When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist." FED. R. EVID. 104(b). Under this rule, the court "may admit the proposed evidence on the condition that the proof be introduced later." Id.

Fontenot contends that the defense has not retained an expert, required an independent medical examination, or deposed Fontenot's treating medical professionals. Doc. 38, pp. 2-3. However, the cause of Fontenot's alleged mental suffering is highly relevant to the question of damages, and defendants may still bring this issue to light through cross-examination.Accordingly, the probative value of Fontenot's substance use appears to outweigh its potential for prejudice and the motion is DENIED.

C. Evidence not made known

Fontenot urges this court to make a preemptive ruling against any reference before the jury to evidence not produced in discovery or deemed admissible by the court. Doc. 26, att. 1, p. 3. Defense counsel states that he has no intent to mislead the jury or attempt to introduce any evidence not already exchanged with plaintiff. Doc. 34, p. 5. However, he reserves his right to point out any documents that he discovers plaintiff has concealed. Id. Accordingly, we decline to rule on this request as there appears to be no issue in controversy. This subject will be addressed directly by the trial judge if called upon to do so.

D. Time of retaining an attorney

Fontenot states that the defense "will likely attempt to portray [him] as litigious because [he] retained an attorney shortly after this accident." Doc. 26, att. 1, p. 3. He argues that the probative value of such information is substantially outweighed by its potential for prejudice, and thus seeks the exclusion of any questions on this topic. Id. at 3-4. He also seeks to prohibit defense counsel from making anti-lawyer or anti-lawsuit references or comments before the jury. Id. at 4.

Prejudicial remarks before the jury about lawyers and lawsuits are obviously improper. As to the other portion of this request, defendants state that while the timing of retaining an attorney might ordinarily be irrelevant, it is probative in this case based on their argument that Fontenot is "attempting to use the legal system for the purpose of falsifying injuries for pecuniary gain." Doc. 34, pp. 5-6. However, their response does not provide any substantiated facts from which we could hold that Fontenot is a special case such that his decision to retain counsel should be placed at issue. Accordingly, Fontenot's motion is GRANTED.

E. Payment of medical bills

Fontenot seeks to exclude any reference to his medical bills having been paid as such information might confuse the jury as to whether he is still entitled to compensatory damages for those treatments. Defendants maintain this fact is relevant by alleging that Fontenot "has treated this case as giving him an open checkbook," and asserting that if he were required to pay the medical bills himself, he would not be incurring these costs. Doc. 34, pp. 6-7.

Defendants have the right to attempt to rebut the reasonableness of Fontenot's medical bills, but they must do so through proper and admissible evidence. Johnson v. 21st Century Centennial Ins. Co., 2016 WL 4471887 at *3 (S.D. Miss. Aug. 24, 2016). Evidence of attorney payment of medical bills is irrelevant and inadmissible, and should be excluded at trial. See, e.g., Kie v. Williams, 2016 WL 6208692 at *3 (W.D. La. Oct. 23, 2016) (citing Howard...