Motion in Limine: An Effective Pretrial Tool and Weapon (Part 2)
Here are some additional topics to consider:
Unnecessary Medical Treatment.
You should preclude or prohibit the defense counsel from alleging or arguing that plaintiff’s accident-related medical expenses are unnecessary or unreasonable. All damages directly attributable to the wrong are recoverable by the victim. The law also typically allows an injured plaintiff to recover reasonable costs of necessary medical treatment. Dee v. Becker, 636 N.E. 2d 176, 178 (Ind. App. 1994). The Indiana Supreme Court has held that the phrase “reasonable and necessary,” as a qualification for the damages recoverable by an injured party, means (1) that the amount of medical expense claimed must be reasonable, (2) that the nature and extent of the treatment claimed must be necessary in the sense that it proximately resulted from the wrongful conduct of another… . The Indiana Supreme Court observed and found that a defendant may not dispute the medical judgment of the plaintiff’s medical providers in choosing to administer the questioned studies and treatment. Sibbing v. Cave, 922 N.E.2d 594, 599-600 (Ind. 2010) Rule 413 of Evidence as adopted in Indiana eliminated the confusion regarding the evidence that is required to satisfy the “reasonableness” requirement. The very first sentence of IRE 413 asserts flatly that medical statements occasioned by an injury are admissible. Rule 413 provides that the bills shall constitute prima facie evidence that the charges are reasonable and medical bills come into evidence without any proof of reasonableness or necessity. In Indiana, personal injury plaintiffs no longer have to prove that they personally paid the medical bills or produce an expert as to the reasonableness of the charge, just necessity when it is contested. Normally , competent medical testimony is necessary to enable the jury to determine which of a plaintiff’s damages and medical expenses are related to a trauma and which are not. Sikora v. Fromm, 887, N.E.2d 499 (Ind. App. 2002). In Sikora, the Court of Appeals stated that expenditures for various medical treatments, drugs, and tests, like MRI’s, cannot be properly evaluated by the jury without a medical explanation that they were causally connected to the fall.
Depending on the state of the law in your jurisdiction, a defense counsel may be precluded from mentioning or offering any evidence concerning the plaintiff’s seat belt use or lack of seat belt use.
Relation of Propert Damage to Injuries.
Any argument or suggestion by defense counsel that there is a causal connection or correlation between the amount or degree of property damage to the vehicles and the severity or degree of injury to the plaintiff. Because the facts of the collision and the damage to the vehicles involved are not at issue in this case, photographs or the vehicles, property damage invoices, or other evidence regarding the extent or amount of property damage is not relevant. Rule of Evidence 401 defines relevant evidence as that which makes the existence of any fact of consequence more or less probably to be relevant. RE 401. Evidence that fails to meet that definition is irrelevant and is inadmissible. RE 402. Defense lawyers routinely introduce property damage estimates and property damage photographs to the jury and argue that minimal damage means little or no damage to the occupants. There is no reliable scientific basis for the argument that there is a direct and reliable correlation between the degree of property damage to a vehicle and the type/severity of injury to the occupants. Such photographs, if used for the purpose of disproving causation, are inadmissible because they are not relevant, may confuse or be misused and invite the jury to speculate on the issue of causation. There is a lot out there on this topic.
Settlement Discussions and Mediation
Any mention or suggestion to the jury that the plaintiff or defendant attempted to negotiate a settlement of this case or that the case is in trial because of greed or some other improper motive by plaintiff for not accepting an offer of settlement violate Rule 408. Any mention or suggestion to the jury that the case was submitted to mediation is normally proper except in case where the cause of action arises out of the settlement itself such as a claim of bad faith settlement practices, fraud or breach of the settlement agreement. Rule of Evidence 408 specifically states that evidence of conduct or statements made in compromise negotiations are not admissible and that compromise negotiations “encompass alternative dispute resolution”. Alternative Dispute Resolution Rules likewise limit the use of matter discussed during a settlement conference or mediation. Additional areas will be discussed in my next post.