United States District Court, S.D. Mississippi, Eastern Division
OPINION AND ORDER
KEITH STARRETT, District Judge.
This matter is before the Court on the Plaintiff Jennifer Kaye Smith's Motion in Limine  and the Defendant State Farm Mutual Automobile Insurance Company's Motion in Limine . Having considered the submissions of the parties, the record, and the applicable law, the Court finds as follows:
Plaintiff seeks to recover uninsured/underinsured motorist benefits from State Farm Mutual Automobile Insurance Company ("State Farm") in connection with an automobile accident occurring on or about October 20, 2012, in Forrest County, Mississippi. Plaintiff was a guest passenger in a vehicle operated by Jessica (Lori) Myers at the time of the accident. Plaintiff alleges that Ms. Myers ran a stop sign, resulting in a collision with a vehicle operated by Charles Anderson. The fault of Ms. Myers for the accident and her status as an underinsured motorist do not appear to be contested issues between the parties.
Standard of Review
The United States Court of Appeals for the Fifth Circuit has provided the following guidance:
A motion in limine is a motion made prior to trial for the purpose of prohibiting opposing counsel from mentioning the existence of, alluding to, or offering evidence on matters so highly prejudicial to the moving party that a timely motion to strike or an instruction by the court to the jury to disregard the offending matter cannot overcome its prejudicial influence on the jurors' minds.
O'Rear v. Fruehauf Corp., 554 F.2d 1304, 1306 n.1 (5th Cir. 1977) (citation omitted). Further, numerous federal courts have found "that motions in limine may be used to secure a pretrial ruling that certain evidence is admissible." Bond Pharmacy, Inc. v. AnazaoHealth Corp., No. 3:11cv58, 2012 WL 3052902, at *2 (S.D.Miss. July 25, 2012) (citing cases).
Plaintiff's Motion in Limine 
Plaintiff requests that thirteen (13) subject matters be excluded from the jury at trial. Each request for exclusion will be addressed in turn.
1. That Plaintiff has received, may be entitled to receive, or will receive benefits of any kind or character from a collateral source including but not limited to collateral source insurance coverage, social security, or gratuitous benefits from members of her church
State Farm does not object to this request for exclusion. Therefore, this portion of the motion is granted as unopposed.
2. Plaintiff has failed to call any person as a witness to testify in her present action, if that person is equally available as a witness for Defendant
State Farm objects to the exclusion of any references or testimony concerning witnesses or other participants involved in the accident as overly broad. The Court does not read this request for exclusion as broadly as does State Farm. It appears that the Plaintiff is only seeking to prohibit State Farm and its counsel from stating in front of the jury that the Plaintiff has failed to call a witness who is equally available to both sides. Such a prohibition comports with Fifth Circuit precedent. "It is well-settled that it is impermissible to draw any inference from a party's failure to call witnesses that were equally available to both sides." United States v. Virgen-Moreno, 265 F.3d 276, 291 (5th Cir. 2001) (citing United States v. Iredia, 866 F.2d 114, 118 (5th Cir. 1989)); see also Verdin v. Sea-Land Serv., Inc., 8 F.3d 21, 1993 WL 455645, at *3 (5th Cir. 1993) (providing that the Federal Rules of Evidence and Federal Rules of Civil Procedure have rendered the uncalled witness rule, which creates a presumption that an uncalled witness would have offered unfavorable testimony, "an anachronism'") (quoting Herbert v. Wal-Mart Stores, 911 F.2d 1044, 1048 (5th Cir. 1990)); McQuaig v. McCoy, 806 F.2d 1298, 1303 (5th Cir. 1987) (finding harmless error in the trial court's refusal to sustain an objection to the defendant attempting to draw a negative inference from the plaintiffs' failure to call a witness). That said, "[w]hen a witness is controlled by one party, failure to call the witness, if his testimony would elucidate facts in issue, creates an inference which the jury is permitted to draw against that party.'" United States v. Foster, 298 Fed.Appx. 310, 311 (5th Cir. 2008) (quoting United States v. Chapman, 435 F.2d 1245, 1247 (5th Cir. 1970)). This portion of the motion is granted since the ...