Collins v. Benton

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

WAYLAND COLLINS, et al. CIVIL ACTION

VERSUS NO. 18-7465

JOHN C. BENTON, et al. SECTION: “G”(5)

ORDER AND REASONS

Before the Court is Plaintiffs Wayland Collins and Alvin Polk’s (collectively, “Plaintiffs”)

“Omnibus Motion in Limine.”1 Defendants John C. Benton d/b/a Q & M Motor Transports, Mark

Ingle, and Northland Insurance Company (collectively, “Defendants”) oppose the motion.2

Considering the motion, the memoranda in support and in opposition, the record, and the

applicable law, the Court grants the motion in part and denies the motion in part.

I. Background

On August 7, 2018, Plaintiffs filed a complaint against Defendants in this Court, seeking

recovery for injuries and property damages that Plaintiffs allegedly sustained in an automobile

accident.3 According to the Complaint, on August 9, 2017, Plaintiff Wayland Collins was

operating a vehicle on Interstate 10 when, while exiting onto Interstate 510, he collided with an

1 Rec. Doc. 385.

2 Rec. Doc. 388.

3 Rec. Doc. 1 at 3. Candy Kelly was also originally named as a Plaintiff in this litigation. Id. On September

24, 2021, the Court granted a joint motion to dismiss Candy Kelly’s claims. Rec. Doc. 357.

18-wheeler driven by Ingle.4 Plaintiffs allege that Ingle was turning onto Interstate 510 and

negligently misjudged his clearance, resulting in the motor vehicle incident at issue.5 Plaintiffs

additionally allege that Ingle was cited for an “improper lane change.”6 Plaintiffs bring negligence

claims against Ingle and Q&M Motor, who is allegedly Ingle’s principal, under the doctrine of

respondeat superior.7 Plaintiffs also bring claims against Northland, who purportedly insured the

18-wheeler operated by Ingle.8

On November 19, 2019, Plaintiffs filed their first omnibus motion in limine.9 This Court

granted in part and denied in part Plaintiffs’ first motion.10 In that Order, this Court denied a

number of Plaintiffs’ requests because they were overly-broad, abstract, and failed to specify with

particularity the evidence which they sought to exclude.11 On November 2, 2021, Plaintiffs filed

the instant, second omnibus motion in limine.12 In the motion, Plaintiffs seek an Order of this

Court excluding additional evidence that Plaintiffs describe with greater particularity.13 On

November 5, 2021, Defendants filed an opposition to the motion.14 On November 9, 2021, with

4 Id.

5 Id.

6 Id. at 4.

7 Id. at 5.

8 Id.

9 Rec. Doc. 80.

10 Rec. Doc. 224.

11 See id. at 17–31.

12 Rec. Doc. 385.

13 Id. at 1.

14 Rec. Doc. 388.

leave of Court, Plaintiffs filed a reply brief in further support of the motion.15

II. Parties’ Arguments

A. Plaintiffs’ Arguments in Support of the Motion

Plaintiffs move the Court to exclude sixteen various categories of evidence.16 First,

Plaintiffs move to exclude police reports, statements, and/or testimony of other motor vehicle

accidents not related to Plaintiffs.17 Plaintiffs assert that the report of Defendants’ expert, Louis

Fey (“Fey”), relies on hearsay evidence of other similar accidents, which Plaintiffs argue should

be excluded.18 Second, Plaintiffs seek to exclude police reports of prior motor vehicle accidents

involving Plaintiffs.19 Plaintiffs contend that these prior accidents are not “substantially similar”

and are not probative.20

Third, Plaintiffs argue that Defendants should be prohibited from discussing whether

Plaintiffs’ medical bills were incurred in bad faith because Defendants did not raise that issue as

an affirmative defense.21 Fourth, Plaintiffs contend that no witness may discuss the cell phone

records relied upon in Fey’s expert report because they are irrelevant and prejudicial.22 Fifth,

15 Rec. Doc. 416.

16 Rec. Doc. 385 at 1–2.

17 Rec. Doc. 385-1 at 1

18 Id. at 2–6. Plaintiffs also re-argue that Fey’s reliance on other similar accidents is not an industry standard

and that other courts have prohibited different experts from testifying to similar accidents. Id. at 6 – 11. These

arguments were addressed in the Court’s Order denying Plaintiffs’ second motion in limine to exclude Fey’s

testimony. Rec. Doc. 445. For the reasons more fully explained in that Order, the Court will not reconsider this

argument.

19 Rec. Doc. 385-1 at 11–13.

20 Id.

21 Id. at 13–17.

22 Id. at 17–27.

Plaintiffs argue that Defendants may not introduce affidavits from three different witnesses: (1)

Stephanie Danielson, (2) Doris Pranicevic, and (3) Kenneth Fust.23 Plaintiffs assert that

Defendants have not attempted to subpoena these witnesses and that their affidavits may not be

admitted in lieu of live testimony.24

Sixth, Plaintiffs seek to exclude two email exchanges in Defendants’ proposed exhibit list:

(1) an exchange between Sean Alfortish and Eric Stein regarding treatment of Shirley Morgan,

and (2) an exchange between Loy Ernst and Jana Siles regarding treatment of Wayland Collins.25

Plaintiffs argue these emails contain inadmissible “hearsay within hearsay” and should be

excluded.26 Seventh, Plaintiffs seek to exclude five other items on Defendants’ proposed exhibit

list as inadmissible: (1) a settlement agreement from a prior accident involving Alvin Polk, (2) a

petition for damages filed by Alvin Polk arising from a different accident, (3) a letter of

representation by Lionel H. Sutton, (4) a letter of representation by Vanessa Motta, and (5) a

settlement demand letter from Christine Reitano.27

Eighth, Plaintiffs contend that photographs of property damage from other motor vehicle

accidents involving Plaintiffs should be excluded because they are hearsay and are more

prejudicial than probative.28 Ninth, Plaintiffs argue that Defendants’ expert Fey relies on

23 Id. at 27–29.

24 Id.

25 Id. at 29–31.

26 Id. at 30.

27 Id. at 31–35. Plaintiffs advance various theories of inadmissibility for each item. Plaintiffs assert the

settlement agreement is inadmissible under Fed. R. Evid. 408. Id. at 31. Plaintiffs aver the petition is hearsay, not

properly authenticated, and irrelevant. Id. at 32–33. Finally, Plaintiffs contend the remaining items are irrelevant

under Fed. R. Evid. 401. Id. at 33–35.

28 Id. at 35–36.

Facebook comments that constitute inadmissible hearsay and thus should be excluded.29 Tenth,

Plaintiffs move the Court to exclude medical records of Plaintiffs’ prior injuries, arguing that they

are irrelevant and unduly prejudicial.30 Eleventh, Plaintiffs request that the Court prohibit Fey

from making any reference to the fiancé of Plaintiffs’ counsel, Sean Alfortish, because Plaintiffs

assert his prior conviction is irrelevant.31 Twelfth, Plaintiffs seek to exclude Defendants from

discussing Plaintiffs’ counsel’s representation of other clients.32

Thirteenth, Plaintiffs argue that Melvin Robarts should be prohibited from testifying

regarding his surveillance of Plaintiffs because Defendants never disclosed such evidence.33

Fourteenth, Plaintiffs move to exclude the testimony of Eric Hernandez.34 Plaintiffs assert that

Hernandez was an EMT on the scene who attended only to Candy Kelly and, thus, should be

precluded from testifying about Collins or Polk’s lack of injuries.35 Fifteenth, Plaintiffs seek to

preclude Defendants from relying on materials produced by the National Insurance Crime Bureau

(“NICB”) or referencing a Special Investigative Unit (“SIU”).36 Plaintiffs argue that the NICB

materials deal with fraud, which this Court prohibited Fey from testifying to in any instance.37

29 Id. at 36–37. This argument was also addressed in the Court’s Order denying Plaintiffs’ second motion

in limine to exclude Fey’s testimony and will not be reconsidered. Rec. Doc. 445.

30 Rec. Doc. 385-1 at 37–41.

31 Id. at 41.

32 Id. at 41–42.

33 Id. at 42–43.

34 Id. at 43.

35 Id.

36 Id. at 44.

37 Id. See also Rec. Doc. 231.

Similarly, Plaintiffs assert that SIUs investigate fraud and therefore should not be discussed.38

Sixteenth, Plaintiffs request that the Court prohibit Defendants from mentioning Plaintiffs’

counsel’s advertising slogans, arguing that they are not probative.39

B. Defendants’ Arguments in Opposition to the Motion

In opposition, Defendants first note that some of Plaintiffs’ arguments are the basis of

separate motions in limine filed by the parties.40 Defendants assert that Plaintiffs’ medical bills

are the subject of a separate motion.41 Defendants contend that Plaintiffs should be limited to

introducing evidence of medical expenses that Plaintiffs (1) have agreed in writing to be

personally responsible for, or (2) have actually incurred.42 Similarly, Defendants contend that the

Pranicevic and Fust affidavits are dealt with in another motion.43 Nevertheless, Defendants assert

these affidavits are admissible because “only the amounts of medical expenses actually paid

should be admitted into evidence.”44

Turning to Plaintiffs’ remaining requests, Defendants assert that this evidence is

admissible. First, as to the police reports of prior accidents involving Plaintiffs, Defendants assert

that this evidence is admissible and relevant because Plaintiffs have put their credibility at issue.45

Defendants also contend that these police reports are admissible under the business records

38 Rec. Doc. 385-1 at 44. See also Rec. Doc. 231.

39 Rec. Doc. 385-1 at 44.

40 Rec. Doc. 388 at 1.

41 Id. at 5. See also Rec. Doc. 396.

42 Rec. Doc. 388 at 5.

43 Id. at 6. See also Rec. Doc. 396.

44 Rec. Doc. 388 at 6.

45 Id. at 2.

exception to hearsay.46 Finally, Defendants submit that the police reports of prior accidents are

admissible because they are sufficiently similar to the accident at issue here.47

Regarding Plaintiffs’ cell phone records, Defendants argue these records are “highly

relevant” to Defendants’ affirmative defense that this accident was staged or intentional.48

According to Defendants, this evidence is admissible under the business records exception to

hearsay.49 Defendants assert that the cases Plaintiffs cite in support of excluding this evidence

concern motions to quash subpoena duces tecum issued to a cell phone provider and are, therefore,

inapposite.50

Next, Defendants assert that certain evidence is relevant and admissible for impeachment

purposes. First, Defendants argue that the email exchanges of Alfortish and Stein “may be

admissible relative to cross-examination of Dr. Peter Lichety and/or Dr. Eric Lonseth . . . for

impeachment purposes.”51 Second, Defendants contend that the January 29, 2018 letter of

representation from Plaintiffs’ counsel to Progressive Insurance Company (“Progressive”) “is

admissible and relevant to impeach [P]laintiffs.”52 Likewise, Defendants aver that the February

1, 2018 Acknowledgement of Representation from Progressive to Plaintiffs’ counsel is relevant

46 Id. at 3. Defendants also argue that the police records are admissible as proof of a habit under Fed. R.

Evid. 406. Id. at 4.

47 Id. at 4–5. According to Defendants, the December 26, 2014 accident was a “quite similar” side-swipe

accident involving the same three Plaintiffs as here. Id. at 4. Defendants aver that the December 1, 2015 and February

26, 2016 accidents are also “quite similar” and involved Wayland Collins and Alvin Polk, respectively. Id. at 4–5.

48 Id. at 5–6.

49 Id.

50 Id. at 6.

51 Id. at 7.

52 Id.

and admissible for impeachment.53

Defendants argue that the photographs of damage to Polk’s vehicles from prior accidents

are admissible.54 Defendants point out that Plaintiffs cite no authority that these photographs

should be excluded.55 Defendants assert that the photographs are relevant and probative.56

Next, Defendants assert that the Facebook comments relied upon by Fey are indica of

whether an accident was staged or intentional.57 Defendants contend that, even if these comments

are inadmissible hearsay, they may be relied upon by Fey in rendering his opinion.58

Defendants agree59 to withdraw the following proposed trial exhibits:

1. Confidential Receipt and Release Agreement regarding settlement of Alvin

Polk’s claim resulting from February 22, 2016 accident (identified as AmTrust Polk

001669-001672);

2. Petition for Damages filed by Alvin Polk v. Southern Fastener & Tool

Company, Inc.– filed in the CDC for the Parish of Orleans;

3. Letter of Representation by Lionel H. Sutton dated July 13, 2016,

concerning representation of Alvin Polk;

4. Settlement demand letter from Christine Reitano dated November 1, 2018

regarding injuries sustained by Alvin Polk in a February 22, 2016 accident.

5. Certified medical records of Ochsner Health System concerning treatment

provided to Wayland Collins after a motorcycle accident in 2013;

6. Certified medical records of Leonard J. Chabert Medical Center concerning

treatment rendered to Wayland Collins in 2013;

53 Id. at 7–8.

54 Id. at 8.

55 Id.

56 Id.

57 Id.

58 Id.

59 Id. at 7–9.

7. Certified medical records of Versailles Health Clinic concerning medical

treatment provided to Alvin Polk;

8. Certified medical records of University Medical Center concerning

treatment provided to Alvin Polk on August 29, 2015 relative to a “burning

sensation” while he was in the bathroom;

9. Certified medical records of Touro Infirmary concerning an injury to Alvin

Polk’s shoulder in 2010; and

10. Certified medial records of Ochsner Health System concerning treatment

provided to Alvin Polk for a nasal injury60

11. Any surveillance evidence not produced to Plaintiffs

Additionally, Defendants agree to remove Eric Hernandez from their witness list because his

testimony is no longer relevant since Candy Kelly has been dismissed.61

Finally, Defendants assert that Fey should be permitted to rely on information from the

NICB.62 Defendants contend that the case relied upon by Plaintiffs to support this argument

concerned an accident reconstruction expert.63 Defendants aver that Fey is not testifying as an

accident reconstruction expert, and therefore this case inapplicable.64

III. Legal Standard

A. Relevancy and Prejudice

Federal Rule of Evidence 401 provides that evidence is relevant if: “(a) it has any tendency

to make a fact more or less probable than it would be without the evidence; and (b) the fact is of

60 In agreeing to withdraw these medical records, Defendants reserve the right to introduce any or all of

them for impeachment purposes. Id. at 9.

61 Id. at 9.

62 Id.

63 Id. at 9 (discussing Baham v. Lovorn & Lovorn Trucking, No. 18-8881, 2020 WL 1864848 (E.D. La. Apr.

13, 2020) (Zainey, J.)).

64 Id. at 9–10.

consequence in determining the action.” Under Federal Rule of Evidence 402, relevant evidence

is admissible unless the United States Constitution, a federal statute, the Federal Rules of

Evidence or other rules prescribed by the Supreme Court provide otherwise. Pursuant to Federal

Rule of Evidence 403, “the court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing

the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative

evidence.” The Fifth Circuit instructs that “[t]he exclusion of evidence under Rule 403 should

occur only sparingly[.]”65 “Relevant evidence is inherently prejudicial; but it is only unfair

prejudice, substantially outweighing probative value, which permits exclusion of relevant matter

under Rule 403.”66

B. Hearsay

Under the Federal Rules of Evidence, hearsay is defined as “a statement that: (1) the

declarant does not make while testifying at the current trial or hearing; and (2) a party offers in

evidence to prove the truth of the matter asserted in the statement.”67 Hearsay is not admissible

unless a federal statute, the Federal Rules of Evidence, or “other rules prescribed by the Supreme

Court” provide otherwise.68 After a party properly objects to the admission of evidence as

hearsay, the proponent of evidence bears the burden to show that statement is not offered as

hearsay or falls within an exception to the hearsay rule.69

65 United States v. Pace, 10 F.3d 1106, 1115 (5th Cir. 1993), cert. denied, 511 U.S. 1149 (1994).

66 Id. at 1115–16 (quoting United States v. McRae, 593 F.2d 700, 707 (5th Cir.), cert. denied, 444 U.S. 862

(1979)).

67 Fed. R. Evid. 801(c)(1)–(2). Federal Rule of Evidence 801(d) further provides that opposing party’s

statements and certain prior statements by declarant-witnesses used to impeach or rebut the witness are not hearsay.

68 Fed. R. Evid. 802.

69 See Bourjaily v. United States, 483 U.S. 171, 175 (1987) (“The preponderance standard ensures that

before admitting evidence, the court will have found it more likely than not that the technical issues and policy

IV. Analysis

Plaintiffs seek to have sixteen different categories of evidence excluded at trial.70 In

response, Defendants agree to withdraw certain exhibits, evidence, and witnesses, but contend

that the remaining evidence is admissible.71 For clarity, the Court addresses each category in turn.

A. Evidence of Other Similar Motor Vehicle Accidents Not Involving Plaintiffs

Plaintiffs move the Court to exclude evidence of similar motor vehicle accidents in the

New Orleans metropolitan area not involving Plaintiffs.72 Although they seek an order prohibiting

any witness from testifying to this evidence, Plaintiffs aver that this evidence will primarily be

admitted through Defendants’ expert Louis Fey (“Fey”).73

Plaintiffs advance three arguments why this evidence should be excluded. First, Plaintiffs

assert that Fey’s expert report does not list any documents related to these other accidents that

Fey relied upon in forming his opinion.74 Plaintiffs aver that Fey’s report details twenty allegedly

similar accidents that he is “personally aware of.”75 Plaintiffs contend that it is “blatantly obvious

concerns addressed by the Federal Rules of Evidence have been afforded due consideration.”); Loomis v. Starkville

Mississippi Pub. Sch. Dist., 150 F. Supp. 3d 730, 742–43 (N.D. Miss. 2015) (“Once a party has ‘properly objected

to [evidence] as inadmissible hearsay,’ the burden shifts to the proponent of the evidence to show, ‘by a

preponderance of the evidence, that the evidence [falls] within an exclusion or exception to the hearsay rule and was

therefore admissible.’” (citations omitted)); see also Randle v. Tregre, 147 F. Supp. 3d 581, 596 (E.D. La. 2015)

(Africk, J.); Broad. Music, Inc. v. Tex Border Mgmt., Inc., No. 10-2524, 2012 WL 4119111, at *4 (N.D. Tex. Sept.

18, 2012).

70 Rec. Doc. 385.

71 Rec. Doc. 388.

72 Rec. Doc. 385-1 at 1–11.

73 Id. at 1–2.

74 Id. at 2–3.

75 Id. at 3–6.

that Fey was ‘spoon-fed’” summaries of other accidents.76 Plaintiffs argue that this information

is hearsay, irrelevant, and prejudicial.77 Second, Plaintiffs argue that other state and federal courts

have prohibited experts from discussing evidence of other similar accidents.78 Third, Plaintiffs

assert that experts do not rely on other similar accidents.79

In opposition, Defendants note that Plaintiffs’ separate motion in limine to further exclude

Fey’s testimony80 raises many identical arguments.81 Defendants also assert that “it is well settled

that evidence of prior accidents, injuries, and claims is admissible insofar as the evidence bears

[on] any issue presently before the court.”82

Fey may testify generally about similar motor vehicle accidents occurring in the New

Orleans area. The Court has already explained that Fey may rely on evidence of other similar

accidents to the extent that such evidence is an indicia that a particular accident was staged or

intentional.83 Moreover, experts may rely on inadmissible evidence in reaching their ultimate

conclusions.84 Even assuming this evidence contains hearsay, Fey, as an expert, may rely on that

76 Id. at 6.

77 Id. at 6. Plaintiffs also assert that Fey relies on this evidence to opine that a fraud ring may exist. Id. To

the extent that Plaintiffs reiterate this objection to Fey’s testimony, this Court has already prohibited Fey from

discussing fraud in any instance and has limited Fey’s testimony to indicia of staged or intentional accidents. Rec.

Doc. 231.

78 Rec. Doc. 385-1 at 6–10.

79 Id. at 10–11.

80 Rec. Doc. 368.

81 Rec. Doc. 388 at 1–2.

82 Id. at 2 (discussing Davis v. Wheeler, 53,233 (La. App. 2 Cir. 3/4/20); 293 So. 3d 173 and Pratt v.

Culpepper, 49,627 (La. App. 2 Cir. 2/27/15); 162 So. 3d 616).

83 Rec. Doc. 445.

84 Sandifer v. Hoyt Archery, Inc., 907 F.3d 802, 808 (5th Cir. 2018) (quoting Daubert v. Merrell Dow

Pharms., Inc., 509 U.S. 579, 595 (1993)). See also Fed. R. Evid. 703.

hearsay in reaching his opinion. Therefore, Fey may testify generally about his personal

knowledge of other similar accidents, particularly to the extent that such evidence is an indicia

that an accident was staged or intentional.

Federal Rule of Evidence 703 provides that, when an expert relies on otherwise

inadmissible evidence in forming their opinion, “the proponent of the opinion may disclose [the

inadmissible evidence] to the jury only if [its] probative value in helping the jury evaluate the

opinion substantially outweighs [its] prejudicial effect.” Fey may testify generally about the

similarities between this accident and other accidents, particularly to the extent that those

similarities are indicia that this accident was staged. However, Fey may not describe these other

accidents in great detail because that would unduly conflate Plaintiffs’ case with other, unrelated

cases. The Court finds that the probative value of disclosing detailed evidence regarding unrelated

motor vehicle accidents to the jury is outweighed by its prejudicial effect.

B. Evidence of Similar Motor Vehicle Accidents Involving Plaintiffs

Plaintiffs also seek to exclude evidence of six prior motor vehicle accidents that involve

Plaintiffs for two reasons.85 First, Plaintiffs assert that in order to present evidence of an opposing

party’s prior accidents, the proponent “must establish relevance by showing that the incidents

involved ‘substantially similar’ circumstances.”86 Plaintiffs argue that these prior accidents are

not “substantially similar” to the underlying accident.87 Second, Plaintiffs argue that the police

reports detailing the prior accidents are inadmissible hearsay.88 Plaintiffs concede that these

85 Rec. Doc. 385-1 at 11–13.

86 Id. at 11 (quoting Avondale Indus., Inc. v. Bd. of Comm’rs of the Port of New Orleans, 94-2786, 1996

WL 280787, at *3 (E.D. La. May 24, 1996) (Sear, J.))

87 Id. at 12.

88 Id. at 12–13.

police reports “may fall under the business records exception,” but nevertheless assert that the

“report[s] cannot be introduced . . . to assert the truth of the matter.”89

In opposition, Defendants address only three prior accidents: (1) a December 26, 2014

accident, (2) a December 1, 2015 accident, and (3) a February 22, 2016 accident.90 Defendants

assert that these accidents are substantially similar because they involved Plaintiffs and similar

underlying facts.91 Defendants also argue that these reports are not hearsay.92 Defendants assert

that police reports of accidents are admissible as a public record under Federal Rule of Evidence

803(8).93 Defendants aver that these records are presumed trustworthy and admissible and that

Plaintiffs bear the burden of rebutting that presumption.94

The Court begins by noting that the parties misapply the case law. The “substantial

similarity” rule apples in the products liability context to “litigants seeking to admit evidence of

subsequent accidents.”95 Here, Defendants wish to introduce evidence of prior motor-vehicle

accidents. Nevertheless, the Court finds that the limited probative value of the accident reports

from Plaintiffs’ prior accidents is substantially outweighed by a danger of unfair prejudice. In

89 Id. at 12.

90 Rec. Doc. 388 at 4–5.

91 Id. Specifically, Defendants assert that the December 26, 2014 accident involved Wayland Collins, Alvin

Polk, and Candy Kelly, and concerned an alleged side-swipe accident, like the accident at issue here. Id. at 4.

Defendants aver that the December 1, 2015 accident involved Wayland Collins and a collision with another vehicle

allegedly changing lanes, like the accident here. Id. Finally, Defendants submit that the February 22, 2016 accident

involved Alvin Polk “and involved similarly suspicious circumstances.” Id. at 5.

92 Id. at 3.

93 Id. (discussing Williams v. Gaitsch, No. 08-772, 2011 WL 13286179 (W.D. La. May 26, 2011)).

94 Id. (citing Moss v. Ole S. Real Est., Inc., 933 F.2d 1300, 1305 (5th Cir. 1991)).

95 Rodriguez v. Crown Equip. Corp., 923 F.2d 416, 418 (5th Cir. 1991) (emphasis added). See also Jackson

v. Firestone Tire & Rubber Co., 788 F.2d 1070, 1082 (5th Cir. 1986) (explaining that the “substantially similar”

requirement for proof of similar accidents is defined “by the defect” of the product at issue).

Defendants’ opposition, Defendants respond to only three of six accidents that Plaintiffs seek to

exclude.96 Additionally, Defendants provide the Court with copies of only two of these accident

reports—the December 26, 2014 accident report and the February 22, 2016 accident report.97

Defendants generally assert these accidents are “quite similar.”98 However, neither of the

accidents involve an 18-wheeler, neither occurred in the vicinity of the accident at issue here, and

neither of these accidents occurred on the interstate. Moreover, both accidents occurred over a

year and a half before the accident made the basis of this litigation.

Defendants assert that “it is well settled that evidence of prior accidents, injuries, and

claims is admissible insofar as the evidence bears [on] any issue presently before the court.”99

Defendants continue that the credibility of the parties is at issue, and, thus, these prior accidents

are admissible.100 The Court does not find that evidence of prior accidents is probative of

Plaintiffs’ credibility. Therefore, the Court finds that the probative value of introducing these

accident reports is substantially outweighed by the potential for unfair prejudice.

C. Evidence That Plaintiffs’ Medical Bills Were Incurred in Bad Faith

Plaintiffs move the Court to exclude any evidence that Plaintiffs’ medical bills were

incurred in bad faith, arguing that Defendants did not plead bad faith as an affirmative defense.101

This is an identical argument to Plaintiffs’ Motion in Limine to Exclude Unpled Affirmative

96 Rec. Doc. 388 at 4–5.

97 Defendants did not include the accident report from December 1, 2015 in their bench book.

98 Rec. Doc. 388 at 4–5.

99 Id. at 2.

100 Id.

101 Rec. Doc. 385-1 at 13–14.

Defenses.102 Therefore, the Court will not address this argument here.

D. Cell Phone Records in Fey’s Report

Plaintiffs argue that no witness should be permitted to discuss, mention, or testify to the

cell phone records described in Fey’s report.103 Plaintiffs concede that Collins’ cell phone records

are admissible for the limited purpose of comparative fault.104 However, Plaintiffs contend that

Defendants seek to introduce the remaining cell phone records to lead the jury to believe Plaintiffs

are “guilty by association.”105 Thus, Plaintiffs assert that these cell phone records are unduly

prejudicial.106 Defendants assert that these records are the basis of Fey’s report.107 Defendants

also argue that these records are admissible under the business records exception.108

The Court finds that these records are admissible under the business records exception to

the hearsay rule. Defendants have included the proper authentication with the records. Fey may

discuss these records to the extent that they relate to an indicia that this accident was staged or

intentional. Additionally, the Court has already held that “Plaintiffs’ cell phone records are at

minimum relevant to Defendants’ defense that they are not at fault for the subject collision.”109

In that same Order, the Court also stated it would rule on the admissibility of specific cell phone

102 See Rec. Doc. 407.

103 Rec. Doc. 385-1 at 17–27.

104 Id. at 18 (discussing Rec. Doc. 224).

105 Id. at 19–20.

106 Id. at 23.

107 Rec. Doc. 388 at 5.

108 Id. (citing Fed. R. Evid. 803(6)).

109 Rec. Doc. 224 at 29.

records at trial.110 Accordingly, Plaintiffs’ request is denied.

E. Danielson, Pranicevic, and Fust Affidavits

Plaintiffs move to exclude three documents: (1) an affidavit of Stephanie Danielson,

records custodian of Crescent View Surgery Center, LLA; (2) a declaration of Doris Pranicevic

of MedPort LA, LLC; and (3) a declaration of Kenneth Fust of MedPort, LA, LLC.111 Plaintiffs

assert that Defendants will attempt to introduce these documents to the jury through an expert

witness or as an exhibit.112 Plaintiffs argue that these documents cannot be substituted for live

testimony and are only admissible if they are being used to impeach.113 In opposition, Defendants

address only the Pranicevic and Fust declarations.114 Defendants aver that these declarations

concern whether the payments to Plaintiffs’ healthcare providers by MedPort qualify as a

collateral source.115 Defendants submit that this issue is the subject of a separate motion in

limine.116

The Court agrees that these documents are not an adequate substitute for live testimony.

However, Defendants include Pranicevic and Fust in their witness list. Therefore, the declarations

may be admissible for purposes of impeachment. To the extent that Plaintiffs move the Court to

exclude the declarations, the Court denies that request as premature.

110 Id.

111 Rec. Doc. 385-1 at 27–29.

112 Id. at 27.

113 Id. at 27–29.

114 Rec. Doc. 388 at 6.

115 Id.

116 See Rec. Doc. 396.

F. Email Exchange of Alfortish and Stein, and of Ernst and Siles

Plaintiffs seek to exclude evidence of two different email exchanges concerning medical

treatment of Plaintiffs: one between Sean Alfortish and Eric Stein, and one between Loy Ernst

and Jana Siles.117 Plaintiffs argue these exchanges are “hearsay within hearsay” and are

irrelevant.118 Plaintiffs also argue that Defendants will not be able to authenticate these emails

because Defendants’ witness lists do not list any recipient, author, or custodian of records.119 In

opposition, Defendants assert “[t]hese documents may be admissible relative to cross-

examination of Dr. Peter Liechty and/or Dr. Eric Lonseth . . . for impeachment purposes.”120

Without more information about the purpose for which these email exchanges are introduced, the

Court cannot determine whether they are inadmissible hearsay, properly authenticated, or

impeach the testimony of Drs. Liechty or Lonseth. Accordingly, the Court will rule on this matter

at trial, if necessary.

G. Other Hearsay Documents

Plaintiffs move to exclude six items of “other hearsay documents” listed in Defendants’

proposed exhibit list.121 Defendants agree to withdraw four of the proposed trial exhibits: (1) the

confidential receipt and release agreement of Polk’s claim arising from February 22, 2016

accident, (2) a petition for damages filed by Polk in Polk v. Southern Fastener and Tool Co., Inc.,

(3) a letter of representation from Lionel Sutton, and (4) a settlement demand letter from Christine

117 Rec. Doc. 385-1 at 29–31.

118 Id.

119 Id. at 30.

120 Rec. Doc. 388 at 7.

121 Rec. Doc. 385-1 at 31–35.

Reitano.122 Therefore, the Court only addresses the two remaining items.

First, Plaintiffs argue the letter of representation from Plaintiffs’ counsel to Progressive

Insurance Co. dated January 29, 2018 is hearsay and is not probative.123 Defendants contend that

this letter is admissible and is relevant to impeach Plaintiffs.124 The Court finds that the letter of

representation is not hearsay. Federal Rule of Evidence 801(d)(2) excludes from the definition of

hearsay an opposing party’s statement.125 This includes statements made in a representative

capacity.126 The letter of representation is being offered against Plaintiffs, was made by Plaintiffs’

counsel in a representative capacity, is a statement that “the party manifested that it adopted or

believed to be true,” was made by a person authorized to make a statement on the subject, and

was made by Plaintiffs’ “agent or employee on a matter within the scope of that relationship and

while it existed.”127 Therefore, the letter of representation is not hearsay and is admissible.

However, at this juncture, the Court does not have sufficient information to determine if this letter

of representation impeaches a witness. Accordingly, the Court will reserve ruling upon the letter’s

impeachment value for trial, if necessary.

Second, Plaintiffs move to exclude an acknowledgement of representation from

Progressive to Plaintiffs’ counsel.128 Plaintiffs argue this document is hearsay and that no witness

122 Rec. Doc. 388.

123 Rec. Doc. 385-1 at 33–34.

124 Rec. Doc. 388 at 7.

125 Fed. R. Evid. 801(d)(2).

126 Id.

127 Id.

128 Rec. Doc. 385-1 at 33.

will “testify to its authenticity or relevance.”129 Defendants contend “this correspondence is

relevant and admissible for impeachment purposes.”130 Upon review of this evidence, it is unclear

to the Court whether it is hearsay because it is not clear the purpose for which the correspondence

would be offered. Moreover, it would be premature for the Court to rule on the impeachment

value of this evidence. Therefore, the Court will reserve this ruling for trial, if necessary.

H. Photographs of Other Motor Vehicle Accidents Involving Plaintiffs

Plaintiffs seek to exclude photographs of property damage from other motor vehicle

accidents involving Plaintiffs because Plaintiffs argue the photographs are hearsay and

irrelevant.131 Defendants assert that the photographs are probative and relevant, and that Plaintiffs

cite no authority for their exclusion.132 Hearsay is an out of court statement introduced for the

truth of the matter asserted by the declarant.133 For the purposes of hearsay, a statement is “(1) an

oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an

assertion.”134 Ordinarily, a photograph is non-assertive in nature and is not hearsay.135 Here, the

Court finds these photographs are not hearsay. The photographs do not contain statements or

make assertions. However, for the reasons explained above, the Court finds that the probative

129 Id. at 34–35. Plaintiffs’ motion is difficult to understand on this point. Plaintiffs’ motion refers to “the

document listed as Exhibit ‘h’, (sic) above.” Id. at 34. However, the list directly above this reference contains

numbers, not letters. Id. at 33. Plaintiffs’ motion then refers to “the 2/1/18 accident.” Id. at 35. Yet the

acknowledgement of representation form dated February 1, 2018 regards a loss from January 20, 2018.

130 Rec. Doc. 388 at 8.

131 Rec. Doc. 385-1 at 35.

132 Rec. Doc. 388 at 8.

133 United States v. Montes-Salas, 669 F.3d 240, 251 (5th Cir. 2012).

134 Id. (quoting Fed. R. Evid. 801(a)).

135 United States v. Oaxaca, 569 F.2d 518, 525 (9th Cir. 1978). See also CDx Holdings, Inc. v. Heddon, No.

12-126, 2012 WL 130189686 (N.D. Tex. Nov. 9, 2012).

value of presenting evidence of other accidents involving Plaintiffs to the jury is outweighed by

its prejudicial effect.136 Accordingly, the Court grants Plaintiffs’ request to exclude these

photographs.

I. Facebook Comments

Plaintiffs contend that Facebook comments discussed in Fey’s report should be excluded

as inadmissible hearsay.137 Defendants concede these comments “may constitute hearsay,” but

that Fey may rely on them because they are an indicia that an accident was staged or intentional.138

As explained above, experts may rely on inadmissible evidence in reaching their ultimate

conclusions.139 Fey may rely on these comments in forming his opinion. Additionally, Fey may

discuss these comments generally, to the extent that they are an indicia that an accident was staged

or intentional. However, for the reasons explained above, Fey may not repeat the content of these

comments before the jury because their probative value is substantially outweighed by their

prejudicial effect.

J. Medical Records of Plaintiffs’ Prior Injuries from Unrelated Accidents

Plaintiffs seek to exclude certain medical records of Plaintiffs’ prior injuries, arguing these

records will “confuse the jury about irrelevant prior accidents” and are prejudicial.140 “Defendants

agree to withdraw” six of the seven exhibits that Plaintiffs seek to exclude.141 Defendants reserve

136 See supra Part IV.B.

137 Rec. Doc. 385-1 at 36–37.

138 Rec. Doc. 388 at 8.

139 Sandifer, 907 F.3d at 808 (quoting Daubert, 509 U.S. at 595). See also Fed. R. Evid. 703.

140 Rec. Doc. 385-1

141 Rec. Doc. 388 at 8–9. Defendants expressly agree with withdraw the following exhibits, reserving the

right to introduce them for impeachment purposes if necessary:

1. Certified medical records of Ochsner Health System concerning treatment provided to Wayland

their right to introduce these records for impeachment purposes.142 Therefore, the Court grants

Plaintiffs’ motion as to these records. Defendants may introduce these records at trial for

impeachment purposes, if necessary.

However, Defendants do not address the “certified records of Metropolitan Health Group

concerning treatment provided to Wayland Collins” that Plaintiffs seek to exclude.143 The Court

has already held that evidence of similar injuries “is relevant because it addresses whether the

subject collision in fact caused the injuries in question.”144 The Court also noted that it did not

have sufficient information to “determine whether Plaintiffs’ pre-existing similar injuries were

asymptomatic [at the time of this accident].”145 To the extent that Defendants intend to introduce

these records for impeachment purposes, Plaintiffs’ request is denied.

K. Reference to Plaintiffs’ Counsel’s Fiancé

Plaintiffs move the Court to prohibit any reference to Plaintiffs’ counsel’s fiancé Sean

Collins after a motorcycle accident in 2013;

2. Certified medical records of Leonard J. Chabert Medical Center concerning treatment rendered

to Wayland Collins in 2013;

3. Certified medical records of Versailles Health Clinic concerning medical treatment provided to

Alvin Polk;

4. Certified medical records of University Medical Center concerning medical treatment provided

to Alvin Polk on August 29, 2015 relative to a “burning sensation” while he was in the

bathroom;

5. Certified medical records of Touro Infirmary concerning an injury to Alvin Polk’s shoulder in

2010; and

6. Certified medical records of Ochsner Health System concerning treatment provided to Alvin

Polk for a nasal injury.

Id. Defendants also reserve the right to introduce certified medical records of any injury or any issue made the basis

of this litigation. Id.

142 Id.

143 See Rec. Doc. 385-1 at 38.

144 Rec. Doc. 224 at 31.

145 Id.

Alfortish.146 Plaintiffs contend that the prior conviction of Alfortish discussed in Fey’s report is

over fifteen years old and irrelevant.147 Defendants do not address this argument in their

opposition. Under Federal Rule of Evidence 403, “[t]he court may exclude relevant evidence if

its probative value is substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence.” The Court finds that evidence of Alfortish’s prior conviction,

and, more particularly, his relationship to Plaintiffs’ counsel, is more prejudicial than probative

and therefore grants Plaintiffs’ request to have such evidence excluded.

L. Reference to Plaintiffs’ Counsel’s Representation of Other Clients

Similarly, Plaintiffs move the Court to exclude any discussion of Plaintiffs’ counsel’s

representation of other clients.148 Defendants do not address this argument. The Court agrees with

Plaintiffs and finds that any reference to Plaintiffs’ counsel’s representation of other clients would

be unduly prejudicial. Accordingly, the Court grants Plaintiffs’ request to prohibit any reference

to Plaintiffs’ counsel’s other clients.

M. Surveillance Footage or Testimony from Melvin Robarts

Plaintiffs move the Court to exclude the testimony of Melvin Robarts and any surveillance

footage he may have taken of Plaintiffs.149 Defendants agree to withdraw any surveillance

evidence not produced to Plaintiffs and will not call Melvin Robarts.150 Therefore, this evidence

146 Rec. Doc. 385-1 at 41.

147 Id.

148 Id. at 41–42.

149 Rec. Doc. 385-1 at 42.

150 Rec. Doc. 388 at 9.

is excluded.

N. Testimony of Eric Hernandez

Plaintiffs seek to exclude the testimony of Eric Hernandez, the EMT who attended to

Candy Kelly.151 Defendants concede this testimony is no longer relevant because Candy Kelly

settled her claims.152 Defendants agree to remove Hernandez from their Witness List.153

Therefore, this evidence is excluded.

O. Articles from the NICB or Reference to SIU

Plaintiffs move the Court to prohibit any witness from “mentioning or relying upon”

information from the National Insurance Crime Bureau (“NICB”) or from discussing a “Special

Investigative Unit” (“SIU”).154 Plaintiffs argue that the NICB is “dedicated exclusively to

insurance fraud and crime.”155 Likewise, Plaintiffs assert that SIUs are departments within an

insurance company that investigate “fraudulent activities.”156 In support, Plaintiffs cite Baham v.

Lovorn & Lovorn Trucking, where another district judge of this Court prohibited a defense expert

from relying on NICB materials.157 In opposition, Defendants assert that Plaintiffs’ reliance on

Baham is misplaced, because in that case, the defense expert was testifying as an accident

151 Rec. Doc. 385-1 at 43.

152 Rec. Doc. 388 at 9.

153 Id.

154 Rec. Doc. 385-1 at 44.

155 Id. (emphasis omitted).

156 Id. (emphasis omitted).

157 Id. (citing Baham v. Lovorn & Lovorn Trucking, No. 18-8881, 2020 WL 1864848 (E.D. La. Apr. 14,

2020) (Zainey, J.)).

reconstruction expert.158

As this Court has repeatedly explained, the Court has already ruled that Fey may not

testify regarding fraud in any instance.159 The Court agrees that Baham is distinguishable. In that

case, a defense expert was testifying as an expert in accident reconstruction.160 The Court ordered

portions of the expert’s report opining on whether the accident was staged to be redacted because

the Court had already “specifically . . . [prohibited] this type of testimony.”161 Here, unlike the

expert in Baham, Fey is not permitted to testify about accident reconstruction.162 Instead, Fey’s

expert testimony will discuss indicia of staged or intentional accidents. Fey may rely on materials

from the NICB or from SIUs to the extent those materials inform his expertise on indicia of staged

or intentional accidents. Accordingly, Plaintiffs’ request is denied.

P. Reference Plaintiffs’ Counsel’s Advertising Slogans

Plaintiffs seek to exclude “any comments as to the slogans” of Plaintiffs’ counsel, arguing

they are not probative and are prejudicial.163 Defendants do not address this argument in their

opposition.164 The Fifth Circuit has explained that whether or not an attorney chooses to advertise

158 Rec. Doc. 388 at 9.

159 Rec. Doc. 231 at 4.

160 Baham, 2020 WL 1864848, at *1.

161 Id. at *2.

162 Rec. Doc. 231 at 4.

163 Rec. Doc. 385-1 at 44. Plaintiffs also begin this section by stating that they “seek to exclude from

evidence the timing and purpose of retaining an attorney.” Id. The Court has already ruled on this request. Rec. Doc.

224 at 21–22. There, the Court said it could not determine if such information would be relevant and would revisit

the issue at trial, if necessary. Id. at 22. Plaintiffs present no new evidence, information, or argument to aid the Court

in making this determination in advance of trial. Therefore, the Court, as previously stated, reserves the matter for

trial.

164 See generally Rec. Doc. 388.

her practice is “obviously irrelevant” to the issue of liability.165 Therefore, the Court grants

Plaintiffs’ request and will prohibit any mention of Plaintiffs’ advertising slogans at trial.

V. Conclusion

Considering the foregoing reasons,

IT IS HEREBY ORDERED that Plaintiffs Wayland Collins and Alvin Polk’s “Omnibus

Motion in Limine”166 is GRANTED IN PART AND DENIED IN PART.

IT IS FURTHER ORDERED that the motion is GRANTED to the extent it seeks to

exclude: (1) accident reports of other accidents involving Plaintiffs; (2) photographs of other

accidents involving Plaintiffs; (3) Fey from repeating explicit details of inadmissible hearsay; (4)

reference to Plaintiffs’ counsel’s fiancé; (5) reference to Plaintiffs’ counsel’s representation of

other clients; (6) surveillance footage or testimony from Melvin Robarts; (7) testimony from Eric

Hernandez; (8) reference to Plaintiffs’ counsel’s advertising slogans; and (9) all evidence that

Defendants agreed to withdraw.167

IT IS FURTHER ORDERED that the motion is DENIED to the extent it seeks to

exclude the following: (1) Fey from testifying generally about evidence of similar motor vehicle

accidents not involving Plaintiffs; (2) Fey from testifying generally about evidence of similar

motor vehicle accidents involving Plaintiffs; (3) evidence that Plaintiffs’ medical bills were

incurred in bad faith; (4) cell phone records discussed in Fey’s report; (5) declarations from

Danielson, Pranicevic, and Fust; (6) email exchanges of Alfortish and Ernst; (7) Plaintiffs’

counsel’s letter of representation to Progressive Insurance Co.; (8) Progressive Insurance Co.’s

165 Mayes v. Kollman, 560 F. App’x 389, 395 (5th Cir. 2014).

166 Rec. Doc. 385.

167 Defendants reserve their right to introduce any withdrawn evidence for impeachment purposes, if

necessary.

acknowledgement of representation; (9) Fey from testifying generally about Facebook comments;

(10) medical records of Plaintiffs’ prior injuries from unrelated accidents; and (11) reliance on

materials from the NICB or reference to SIUs.

NEW ORLEANS, LOUISIANA, this!2*1 day of November, 2021.

NANNETTE J Net BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT

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