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Motion in Limine: An Effective Pretrial Tool and Weapon (Part 5)

Here are a few additional topics to cover in your motion in limine to keep red herrings from finding their way into your case:


Defendants should be prohibited from expressing any apologies or statements of regret to the jury in connection with the above-referenced matter, as whether one is sorry or not for injuring a person constitutes neither a defense, nor is it relevant to any issue concerning whether or not to grant compensatory damages. The sole purpose of making such a statement to a jury is to encourage them to return a reduced verdict because the Defendants are sorry about what happened. General appeals to sympathy or prejudice on the part of a jury are inappropriate and should be prohibited by this Court.

Any references made to this effect should not be permitted as they are calculated to mislead and confuse the jury and would clearly be immaterial and irrelevant to any issue in this cause. See Rules of Evidence 402 and 403. See generally, King’s Indiana Billiard Co. v. Winters, 123 Ind. App. 110, 127, 106 N.E.2d 713, 721 (1952).


Defendants should be prohibited from introducing any evidence of offers to make payments of medical expenses or similar costs. Rule 409 of the Indiana Rules of Evidence specifically prohibits such evidence. It provides that:

Evidence of paying or furnishing, or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury, or damage to property is not admissible to prove liability for such injury or damages. [Emphasis Added].

Any references made to this effect should not be permitted. Simon v. Clark, 660 N.E.2d 634, 1263 (Ind. Ct. App. 1996). Also, such evidence is calculated to mislead and confuse the jury and would clearly be immaterial and irrelevant to any issue in this cause. See Rules of Evidence 402 and 403.


The defense has raised the affirmative defense of mitigation and may assert that Plaintiff has failed to mitigate his damages by not having surgery performed. The affirmative defense of failure to mitigate damages has two elements, both of which the defendant must prove by a preponderance of the evidence:

(1) the plaintiff failed to exercise reasonable care to mitigate his or her post-injury damages, and

(2) the plaintiff’s failure to exercise reasonable care caused the plaintiff to suffer an identifiable item of harm not attributable to the defendant’s negligent conduct.

Willis v. Westerfield, 839 N.E.2d 1179, 1188 (Ind. 2006). When a defendant seeks a failure to mitigate damages instruction based on a plaintiff’s failure to follow a treating doctor’s recommendations, whether expert medical opinion testimony is required is to be determined on a case-by-case basis. Willis v. Westerfield, 839 N.E.2d 1179, 1182 (Ind. 2006). Expert testimony is required where the question involves medical factors beyond the common knowledge of the layman such that the jury could only speculate in its findings. Willis, 839 N.E.2d at 1188-89. Here, the testimony of the treating physician has established that Plaintiff’s decisions concerning the course of his treatment to be reasonable. There is no testimony from any doctor that Plaintiff’s decision to delay surgery at this point in time is unreasonable or has resulted in probable harm to him. As such, any argument to this effect should be prohibited because such argument requires expert testimony.


The defense should be prohibited from making any mention of write-offs, discounts and/or reductions as to Plaintiff’s past or future medical bills, as no such reductions/deductions have occurred and any evidence of the same is speculative in nature. There is no proof that this is likely to occur in the future. This information would simply cloud the issues in the present case and lead to distracting and confusing side issues. Ind. Rule of Evid. 403.

Keep these topics in mind next time you file a motion in limine. You may thwart an attempt to confuse and mislead a jury by the defense.

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