Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McCon v. Perez

United States District Court, S.D. Mississippi, Southern Division

August 20, 2018

JAMETRIUS MCCON, LARRY HENDERSON, LAMARIO HENDERSON, and DARYL D. WILLIAMS PLAINTIFFS
v.
ADOLFO PEREZ and D&D EXPRESS TRANSPORT DEFENDANTS D&D EXPRESS TRANSPORT COUNTER-PLAINTIFF
v.
DARYL D. WILLIAMS COUNTER-DEFENDANT

          ORDER CONCERNING DEFENDANTS' MOTIONS IN LIMINE

          Louis Guirola, Jr. United States District Judge.

         BEFORE THE COURT are the following Motions filed by the defendants D&D Express Transport and Adolfo Perez: [330] Motion in Limine to Preclude Documents Not Produced in Discovery, [332] Motion in Limine to Preclude Reference to Defendants Not Personally Appearing at Trial and Mentioning the Existence of Insurance, [334] Motion in Limine to Preclude Prejudicial Evidence and Dismissed Claims, [336] Motion in Limine to Limit Medical Bills and Non-Economic Damages, and [338] Motion in Limine Precluding Evidence Relative to Property Damage to Williams' Vehicle. The plaintiffs have filed responses to the Motions. After reviewing the submissions of the parties, the record in this matter, and the applicable law, the Court finds as follows:

         BACKGROUND

         This lawsuit arose out of a motor vehicle accident involving a tractor trailer driven by D&D Express Transport employee Adolfo Perez and a car driven by the plaintiff Daryl D. Williams. The plaintiffs Jametrius McCon, Larry Henderson, and Lamario Henderson were passengers in Williams' vehicle.

         DISCUSSION

         I. Defendants' Motion in Limine to Preclude Documents Not Produced in Discovery

         The defendants ask the Court to prohibit the plaintiffs from offering evidence and argument at trial regarding documents that were not produced during discovery. The only specific documents referenced in the defendants' Motion are documents obtained via subpoena by McCon that were never produced to the defendants. McCon does not appear to dispute that the documents were not timely provided to the defendants, but he states that he has now provided all of the available documents referenced in the defendants' Motion.

         The defendants filed their Motion pursuant to Fed.R.Civ.P. 37(c)(1), which provides, “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence . . . at a trial, unless the failure was substantially justified or is harmless . . . .” This Court's Local Rules explain:

If a party fails to make a disclosure required by this section, any other party must move to compel disclosure and for appropriate sanctions under Fed.R.Civ.P. 37(a). The failure to take immediate action and seek court intervention when a known fact disclosure violation other than as to expert witnesses occurs will be considered by the court in determining the appropriate sanctions to be imposed regarding a subsequent motion filed under Fed.R.Civ.P. 37(c).

         Uniform Local Rule 26(a)(3). The defendants never filed a motion to compel pursuant to Fed.R.Civ.P. 37(a), even though they knew that McCon served the subpoenas in September and October 2017. “The Court will not use the procedural device of a motion in limine to enforce the provisions of Federal Rule of Civil Procedure 37.” United States ex rel. Jamison v. McKesson Corp., No. 2:08cv214-SA-DAS, 2012 WL 12931443, at *2 (N.D. Miss. Feb. 14, 2012); see also Caldwell v. Wal-Mart Stores East, LP, No. 3:10cv651-DPJ-FKB, 2012 WL 1712377, at *1-2 (S. D. Miss. May 14, 2012) (denying a motion in limine seeking relief pursuant to Fed.R.Civ.P. 37(c) where the defendant did not file a motion to compel). The defendants' Motion in Limine to Preclude Documents Not Produced in Discovery is denied.

         II. Defendants' Motion in Limine to Preclude Reference to Defendants Not Personally Appearing at Trial and Mentioning the Existence of Insurance

         The defendants explain that they live in Miami-Dade County Florida and attendance at trial may cause a hardship for them. The defendants argue, “Should Defendants be unavailable to appear at trial, such lack of appearance is not material or relevant to any issue before the Court, and therefore, Plaintiffs should be prohibited from making any argument or reference at trial to their absence.” (Defs.' Mem. 2, ECF No. 333). The Court will grant this portion of the Motion and will provide further explanation and instruction to the parties at the pretrial conference.

         The defendants also ask the Court to prevent the plaintiffs from making any reference, directly or indirectly, to the defendant's insurance coverage. The defendants further seek to prevent the plaintiffs from calling David Wilton, the independent adjuster hired by the defendants' insurer, to testify. Fed.R.Civ.P. 411 provides, “Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness's bias or prejudice or proving agency, ownership, or control.” Therefore, the Court will grant the defendants' Motion to this extent. The plaintiffs will be prohibited from referencing the defendants' insurance coverage in any way. If the plaintiffs wish to introduce evidence or testimony concerning insurance “for another purpose” under Fed.R.Evid. 411, the plaintiffs believe that the defendants have opened the door to admissibility of evidence or testimony concerning insurance, or the plaintiffs wish to call David Wilton to testify, the plaintiffs must first notify the Court outside the presence of the jury, so that the Court can determine whether the evidence or testimony is admissible.

         III. Defendants' Motion in Limine to Preclude Prejudicial ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.