Opinion
CIVIL ACTION NO: 99-2136 SECTION: "R" (3).
July 31, 2000.
ORDER AND REASONS
Before the Court are the motions in limine of plaintiff, Milton "Sonny" Fortier, and defendant, State Farm Mutual Automobile Insurance Co. Also before the Court are the parties' objections to exhibits and witnesses. The Court rules on the motions and objections as follows.
I. BACKGROUND
In this suit, plaintiff seeks to recover under an uninsured motorist policy he holds with defendant, State Farm Mutual Automobile Insurance Co. His claim against State Farm arises out of an automobile accident which occurred in New Orleans on June 19, 1998, when an automobile operated by Cleve Matthew Parry and owned by Dawn M. Davis allegedly struck plaintiff's automobile from the rear. plaintiff has settled his claims against Parry, Davis, and State Farm, in its capacity as liability insurer for Davis and/or Parry. He seeks damages against State Farm for lost wages, pain and suffering, loss of enjoyment of life, and past and future medical expenses.
II. DISCUSSION
A. Evidence of Minimal Impact
Plaintiff moves in limine to exclude any evidence regarding the degree or magnitude of the collision. In support, plaintiff cites Boykin v. Washington for the proposition that Louisiana courts have sought to avoid the precedent of attempting to measure an injury in direct proportion to the force of the collision when medical experts and lay witnesses establish that the plaintiff sustained some injuries. 401 So.2d 488, 489 (La.App. 2d Cir. 1981)( citing Seegers v. State Farm Mutual Automobile Ins. Co., 188 So.2d 166 (La.App. 2d Cir. 1966)). See also Starnes v. Caddo Parish Sch. Bd., 598 So.2d 472, 477 (La.App. 2d Cir. 1992); Simpson v. Caddo Parish Sch. Bd., 540 So.2d 997 (La.App. 2d Cir. 1989). The Louisiana Court of Appeal for the Second Circuit, the court which decided Boykin, has recently held that "[t]his jurisprudence, however, does support consideration of force-of-impact testimony as a relevant factor in determining causation or extent of injuries, although not as the sole or determinative element." Currie v. Myers, 750 So.2d 388, 392 (La.App. 2d Cir. 2000)( citing Harper v. Garcia, 739 So.2d 996 (La.App. 2d Cir. 1999)). See also Starnes, 598 So.2d at 477 (refusing to use force of impact "as the determining factor in assessing the severity of the plaintiff's injuries") A review of the Louisiana caselaw confirms that the minimal impact of an automobile accident is a factor, albeit not a determinative one, which may be considered by the jury. See Simon v. United States, 51 F. Supp.2d 739 (W.D. La. 1999) (finding degree of force or impact relevant factor when record does not clearly establish that plaintiff suffered injuries) White v. State Farm Mut. Auto. Ins. Co., 713 So.2d 618, 621 (La.App. 3d Cir.), writ denied, 724 So.2d 741 (La. 1998) (upholding jury instruction that "magnitude and nature of an automobile accident is a fact which may be considered by a jury in determining whether the plaintiff was injured in that accident"); Fletcher v. Langley, 631 So.2d 693, 695 (La.App. 3d Cir. 1994) ("minimal or minor nature of an automobile accident is a fact which may be considered by the jury") (citations omitted); Coleman v. United States Fire Ins. Co., 571 So.3d 213 (La.App. 3d Cir. 1990)(same); Delahoussaye v. State Farm Mut. Auto. Ins. Co., 520 So.2d 891, 893 (La.App. 3d Cir. 1987) (permitting expert testimony that impact of collision was slight); Gilbert v. Waddell, 501 So.2d 330 (La.App. 4th Cir. 1987) (affirming district court judgment against plaintiff and noting that accident was so minor that no property damage occurred to either vehicle); Fisher v. Knight, 381 So.2d 968, 969 (La.App. 4th Cir. 1980)("jury could logically conclude from the testimony that plaintiff suffered no injuries nor damage from this accident, which consisted of a minimal impact between the vehicles"). Based on the foregoing authority, the Court denies plaintiff's motion in limine to exclude evidence of the minimal impact of the accident.
B. Videotape Surveillance
Plaintiff also moves the Court in limine to exclude any videotape surveillance of him. Plaintiff's counsel asserts that he asked State Farm to produce any surveillance video during discovery. Although State Farm advised plaintiff that a surveillance videotape existed, it declined to produce the video due to its impeachment value. ( See Def.'s Opp'n Mot. Lim. Ex. A, Supp. Ans. Interrog. No. 1.)
Federal Rule of Civil Procedure 26(a)(3) provides for pretrial disclosure of certain information regarding evidence that will be presented at trial unless that evidence is to be used "solely for impeachment purposes." In Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 517 (5th Cir. 1993), the Fifth Circuit addressed the discoverability of videotape surveillance as impeachment evidence and adopted a narrow interpretation of "solely." According to Chiasson, whether such evidence must be disclosed to opposing counsel prior to trial depends upon whether it will be used solely for impeachment purposes or whether it is substantive evidence. See id. at 517. The court held that, regardless of whether a surveillance video has impeachment value, it must be disclosed prior to trial if it is at all substantive. See id. at 517-18. See also Klonoski v. Mahlab, 156 F.3d 255, 270 (1st Cir. 1998), cert. denied sub nom., Mary Hitchcock Mem. Hosp. v. Klonoski, 526 U.S. 1039, 119 S.Ct. 1334 (1999) ("Although some district courts have found video surveillance tapes to be "solely" impeachment evidence, the weight of authority seems to be that such evidence is both impeaching and substantive and should be disclosed.") "Substantive evidence is that which is offered to establish the truth of a matter to be determined by the trier of fact. See id. at 517 ( citing John P. Frank, Pretrial Conferences and Discovery — Disclosure or Suprise? 1965 INS. LAW J. 661, 664 (1965)). Thus, evidence tending to prove or disprove the severity of plaintiff's pain and his loss of enjoyment of life, key issues the jury must consider in determining his damages, must be considered substantive evidence. See id. See also Alfortish v. Shoney's, Inc., 1994 WL 449415 (E.D. La. Aug. 16, 1994)("any witnesses who shall testify regarding the plaintiff's physical condition, or any photographs or videotapes depicting same, must be disclosed prior to trial, as the evidence has bearing on the substantive issues to be decided by the factfinder")
After reviewing in camera the videotape and plaintiff's testimony, the Court finds that the tape is of a substantive nature. Plaintiff claims physical impairment and pain and suffering due to injuries to his left shoulder and his neck. He also seeks damages for loss of enjoyment of life. The surveillance videotape depicts plaintiff mowing his lawn and tending to yardwork for more than one hour. During this time, plaintiff pulled the lawnmower, lifted a gas jug, and emptied the grass catcher with his left arm. The Court finds that this documentation is evidence that goes to substantive issues in the case, namely the severity of his pain and the extent to which he has lost the enjoyment of normal activity. Accordingly, under Chiasson, defendant must produce the videotape to plaintiff before trial.
C. Evidence of Plaintiff's Marital and Child Custody Situation
Plaintiff moves the Court in limine to prevent defendant from raising any allegations regarding plaintiff's bitterly disputed divorce and ongoing child custody fight on the grounds that they are irrelevant and prejudicial. The Court doubts that any testimony on these collateral issues is relevant to the issues in this case. Plaintiff does not claim damages for loss of consortium. Moreover, even if such testimony were relevant, the Court finds that any probative value would be substantially outweighed by the danger of unfair prejudice. See FED. R. EVID. 403. Plaintiff's motion is granted.
D. Evidence Regarding State Farm's Administration of Plaintiff's Claim
Defendant moves the Court in limine to exclude any evidence that it increased plaintiff's pain and suffering by refusing to pay for medical treatment. It points to the pretrial order in which plaintiff listed as a contested issue of fact "Whether State Farm created medical confusion by refusing to pay for shoulder surgery thereby masking the neck pain component with the shoulder pain component." Defendant also asserts that plaintiff intends to inflame the jury by testifying about its alleged bad faith actions in the "administratibn of his claim."
On June 20, 2000, Magistrate Judge Africk denied plaintiff's belated motion to amend his complaint to add a claim for bad faith in the administration of his insurance claim pursuant to La. Rev. Stat. Ann. § 22:658. The issues in this case are thus confined to defendant's liability for plaintiff's injuries pursuant to an uninsured motorist policy. That claim arises under La. Rev. Stat. Ann. § 22:1406(D) and requires plaintiff to prove the underinsured status of the offending motorist and that he is "legally entitled to recover" damages from the owner or operator of the underinsured vehicle. See La. Rev. Stat. Ann. § 22:1406d(1)(d); Swift v. State Farm Mut. Auto. Ins. Co., 796 F.2d 120, 122 (5th Cir. 1986) (citing Loupe v. Tillman, 367 so.2d 1289, 1290 (La.App. 4th Cir. 1979)). In other words, plaintiff must establish (1) that the operator of the underinsured vehicle was at fault; (2) that the operator's fault caused his damages; and (3) the extent of those damages. See Hart v. Allstate Ins. Co., 437 So.2d 823, 828 (La. 1983)( citing Booth v. Fireman's Fund Ins. Co., 218 So.2d 580 (La. 1969)). The issues for trial thus are whether the alleged tortfeasor was underinsured, liability, injuries and the extent of damages, if any. Any testimony regarding defendant's alleged bad faith failure to pay does not "hav[e] 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. 402. Such testimony is thus not relevant and inadmissible. Defendant's motion is granted.
E. Report of Plaintiff's Economist Regarding Future Lost Wage Claim
Defendant also moves in limine to limit the testimony of plaintiff's expert economist, Melville Wolfson, Ph.D.. Defendant disputes Dr. Wolfson's projections of plaintiff's lost future wages based on assumptions that plaintiff will not return to any gainful employment, i.e., that plaintiff will be completely disabled, that plaintiff will earn only 50% of his prior income capacity or $10,712 in the future and that plaintiff would be entitled to recover a loss of medical insurance. The Court will reserve ruling on this motion pending the parties' efforts to reach a stipulation regarding Dr. Wolfson's testimony.
F. Plaintiff's Motion to Strike Defendant's Bench Book of Exhibits as Untimely Filed
Defendant was several hours late in filing certain exhibits. Plaintiff was not prejudiced. The motion is denied.
G. Plaintiff's Objections to Defendant's Exhibits
1. Objections to Exhibit (g) Myelogram and CT Scan film.
MOOT. Defendant does not intend to introduce any diagnostic films.
2. Objection to Exhibits(h),(1),(o). Reports of Dr. Richard Warren. Dr. Valerie Drnovesek, and Dr. Richard Meyer.
SUSTAINED. These reports are inadmissible hearsay.
3. Objection to Exhibit(k), Deposition of Dr. Tom Oelsner.
OVERRULED. Both plaintiff and defendant listed the deposition testimony of Dr. Tom Oelsner as exhibits on the pre-trial order. Also, both plaintiff and defendant have submitted marked copies of Dr. Oelsner's deposition testimony to be read to the jury. The plaintiff's objection is waived.
4. Objections to Exhibits (l),(m). Wyndham and Marriott Hotel Records for Payments to Plaintiff for Work
OVERRULED. These exhibits are invoices for work apparently done by plaintiff. Plaintiff seeks to exclude them because they were obtained after the discovery deadline. The record reveals that defendant, pursuant to interrogatories, sought all of plaintiff's records of income, including invoices, evidencing income for the five years preceding the date of loss. Plaintiff replied that none existed or was available. ( See Pl.'s Mem. Opp'n Mot. Compel, Jan. 7, 2000, Ex. 5, Ans. Request Prod., at 3.) The Court finds the invoices relevant and that plaintiff will not be prejudiced by their admission at trial. The invoices deal with work done by plaintiff, a matter peculiarly within his knowledge. Accordingly, the Court will permit their admission at trial.
5. Objection to Exhibit(n), Dr. Applebaum's Patient Information Form and March 2 and 4, 1999 Reports
SUSTAINED IN PART. Dr. Applebaum will testify at trial. His reports are admissible only on cross-examination and for impeachment. The patient information form completed by Mr. Fortier is admissible pursuant to Fed.R.Evid. 803(4) as a statement for medical diagnosis or treatment.
H. Plaintiff's Objections to Defendant's Witnesses Sandy Halpern, Marta Fortier, and Jamal Zoukari
MOOT. Defendant does not plan to call any of these witnesses at trial.
I. Defendant's Objections to Plaintiff's Exhibits
1. Objection to Exhibit C. Reports of Dr. Michael Howard (The Health Care Center).
SUSTAINED. Dr. Howard's report is inadmissible hearsay, unless it is used for impeachment.
2. Objections to Exhibits D. H. J. K. L
SUSTAINED. Dr. Aprill, Dr. Moss, and Dr. Kinnett will testify at trial. Their expert reports are inadmissible hearsay, unless used for impeachment.
3. Objection to Inclusion in Medical Specials of Bill from Dr. Aprill for $840 for Conference with Plaintiff's Counsel on July 21. 2000.
RULING RESERVED.
4. Objection to Any Testimony by Dr. Kinnett or Other Evidence Regarding July 11, 2000 MRI.
OVERRULED. Plaintiff seeks to introduce evidence concerning an MRI he had taken on July 11, 2000 as part of his ongoing treatment by Dr. Kinnett. In light of the trial continuance of this matter, the Court will permit the admission of testimony by Dr. Kinnett and other evidence regarding this MRI. However, the Court orders plaintiff to produce an updated report from Dr. Kinnett regarding the new MRI before his redeposition. Plaintiff is further ordered to make plaintiff available for an independent medical examination at defendant's convenience.
5. Objections to Cost Estimates of Future Medical Expenses Exhibit L Imaging Specialists of New Orleans) and Exhibit U(Bernard L. Mansion, III, Financial Counselor. Touro Infirmary).
SUSTAINED. These exhibits, letters from Cindy Boubede, Office Manager for Dr. Kinnett, Lynn Kyle of Imaging Specialists of New Orleans, and Bernard L. Mansion, Financial Counselor at Touro Infirmary, are inadmissible hearsay. These letters do not fall under the exception for regularly kept business records.
6. Objection to Exhibit T. Plaintiff's Diary
OVERRULED IN PART. Although the diary is not admissible evidence, plaintiff may use it to refresh his recollection if he testifies to a lack of memory. See FED. R. EVID. 612. The objection will be sustained as to the last twelve pages of diary if they were not produced.
III. CONCLUSION
The Court rules on the parties' motions in limine and objections to exhibits and witnesses as indicated above.