Lee v. Small, No. C 10-4034-MWB

• Court: U.S. District Court — Northern District of Iowa
• Writing for the Court: MARK W. BENNETT
• Parties: JOHN OWEN LEE, Plaintiff, v. SETH T. SMALL, Individually, and GREGORY TOFT, Individually and doing business as TOFT & SONS FARM, Defendants, SETH T. SMALL, Counterclaim Plaintiff, v. JOHN OWEN LEE, Counterclaim Defendant. SETH T. SMALL, Third-Part yPlaintiff/ Counterclaim Defendant, v. LLEWELLYN BROWN, Third-Party Defendant/ Counterclaim Plaintiff.
• Docket Number: No. C 10-4034-MWB
• Decision Date: 22 November 2011

JOHN OWEN LEE, Plaintiff,
v.
SETH T. SMALL, Individually, and GREGORY TOFT, Individually and
doing business as TOFT & SONS FARM, Defendants,
SETH T. SMALL, Counterclaim Plaintiff,
v.
JOHN OWEN LEE, Counterclaim Defendant.
SETH T. SMALL,
Third-Part yPlaintiff/ Counterclaim Defendant,
v.
LLEWELLYN BROWN, Third-Party Defendant/ Counterclaim Plaintiff.

No. C 10-4034-MWB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA WESTERN DIVISION

Date: November 22, 2011

MEMORANDUM OPINION AND ORDER REGARDING MOTIONS IN LIMINE
TABLE OF CONTENTS

I. INTRODUCTION ................................................... 4

A. Factual Background ................................................... 4
B. Procedural Background ................................................... 6

Page 2

II. LEGAL ANALYSIS .......................................................... 8

A. Preliminary Evidentiary Rulings Or Challenges To Claims And Defenses? ......... 8
B. Relevance And Prejudice Standards .......................................................... 9
C. Uncontested Categories .......................................................... 12

1. Evidence of settlement offers .......................................................... 12
2. Cross-examination by Small's counsel regarding Lee's damages ........... 13

D. Overlapping Categories .......................................................... 13

1. Evidence of liability insurance .......................................................... 14
2. Evidence of collateral source payments from Medicare ........................... 15

a. Arguments of the parties .......................................................... 16
b. Analysis .......................................................... 18

i. Billed vs. paid medical expenses ................................ 18
ii. Identity of the payor .......................................................... 23

c. Summary .......................................................... 24

E. Remaining Portions Of Lee's Motion In Limine .................................. 25

1. Evidence of the fault of any medical providers ..................................... 25

a. Arguments of the parties .......................................................... 25
b. Analysis .......................................................... 27

2. Evidence of correspondence from Medicare ................................. 33

a. Arguments of the parties .......................................................... 33
b. Analysis .......................................................... 34

3. Evidence of Brown's fault in causing Lee's damages ..................................... 35

a. Arguments of the parties .......................................................... 35
b. Analysis .......................................................... 36

4. Evidence relating to Lee's sex life .......................................................... 39

a. Arguments of the parties .......................................................... 39
b. Analysis .......................................................... 40

5. Evidence of alcohol consumption and recovery programs ................ 40

a. Arguments of the parties .......................................................... 41
b. Analysis .......................................................... 42

F. Remaining Portions Of Small And Toft's Motion In Limine ...................... 43

1. Damages evidence not disclosed in discovery ................................ 44

a. Arguments of the parties .......................................................... 44
b. Analysis .......................................................... 44

Page 3

2. Unidentified experts ................................................... 45

a. Arguments of the parties ................................................... 45
b. Analysis ................................................... 46

3. Evidence regarding dangerousness ................................................... 46

a. Arguments of the parties ................................................... 46
b. Analysis ................................................... 47

4. Evidence of traffic tickets ................................................... 50

a. Arguments of the parties ................................................... 50
b. Analysis ................................................... 51

G. Brown's Motion In Limine ................................................... 55

1. Toft's factual assertions beyond personal knowledge ................................................... 56

a. Arguments of the parties ................................................... 56
b. Analysis ................................................... 56

2. Evidence of Small's status as an EMT and Army Reservist .. 57

a. Arguments of the parties ................................................... 58
b. Analysis ................................................... 58

III. CONCLUSION ................................................... 59

Page 4

Two nighttime collisions in quick succession between a tractor pulling farm equipment across a bridge and oncoming passenger vehicles have brought this diversity action before me on pretrial evidentiary motions. While many of the issues presented are appropriate pretrial challenges to admissibility of evidence, some are dispositive motions dressed up as mere challenges to the admissibility of evidence at trial. Nevertheless, the expeditious resolution of the case requires me to address all of the issues on the footing presented.

I. INTRODUCTION
A. Factual Background

The following factual background is gleaned from the pleadings and the parties' statements of facts in their evidentiary motions.¹ Late in the evening on November 13, 2009, hours after sunset, Seth T. Small, a farm hand employed by Toft & Sons Farm, was driving a large farm tractor pulling an even wider implement known as a disc ripper or chisel plow westbound on Highway 18, near Spencer in Clay County, Iowa. There appears to be no dispute that Small had the "field lights" on the tractor turned on, but that the implement he was towing was unlit. There also appears to be no dispute that the

Page 5

implement extended well across the center line of the highway. The parties dispute whether the "field lights" blinded oncoming drivers.

Small attempted to cross a bridge, approximately 500 feet long, over the Little Sioux River a few miles east of Spencer. Other parties involved in the incident on November 13, 2009, contend that, at that point, less than a car's width remained between the implement that Small was towing and the guardrail of the bridge on the eastbound side of the bridge. When Small was about 100 feet onto the bridge, an eastbound vehicle, driven by Llewellyn Brown, approached and collided with the implement. Brown's vehicle was eventually deflected down the embankment into the north ditch where it struck a tree. Brown alleges that he suffered physical injuries and physical and mental pain and incurred medical expenses and damages to person and property as a result of this first collision.

Small stopped the tractor, either just before or as a result of the first collision. Just after Small, who was an emergency medical technician (EMT), climbed down from the cab of the tractor, intending to render aid to the driver of the vehicle involved in the first collision, a second eastbound vehicle, driven by John Owen Lee, collided with the tractor and implement and also struck Small. Small and Lee each allege that they suffered physical injuries, mental and physical pain and suffering, loss of function of mind and body, and other damages as a result of this second collision.

Somewhat more specifically—because his history of medical treatment is relevant to some of the motions in limine—Lee suffered a fractured left scapula, broken ribs, a lung contusion, and various abrasions. He was taken by ambulance to Spencer Hospital, but was soon transferred to Sanford Health Center in Sioux Falls, South Dakota. On November 18, 2009, while still at Sanford Health Center, Lee was diagnosed with a staphylococcus infection that eventually caused respiratory and renal failure and required a tracheostomy and mechanical ventilation over the next six weeks. Lee was eventually

Page 6

transferred from Sanford Health Center to Bethesda Hospital in Minneapolis, Minnesota, on January 11, 2010, then to Bayshore Health Center in Duluth, Minnesota, on January 22, 2010. On March 15, 2010, he was transferred again to an assisted living facility in Duluth, where he resided until his release on December 1, 2010. He alleges that he incurred expenses for hospitalizations and medical care as a result of the November 13, 2009, in excess of $600,000. Lee had private group health insurance in effect at the time of the collision and, effective December 1, 2009, he became eligible for and received Medicare coverage. Thus, his medical expenses have been paid, at least in part, by his private insurance and Medicare. The parties dispute the extent to which Lee's medical expenses were compromised and reduced by agreements between his providers and his insurer and Medicare and the precise amount ultimately paid for his care.

B. Procedural Background ...