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Joseph X v. Liberty Mutual Group, Inc.

United States District Court, W.D. Kentucky, Louisville Division

February 1, 2018

KING JOSEPH X PLAINTIFF
v.
LIBERTY MUTUAL GROUP, INC. DEFENDANT

          ORDER

          Joseph H. Mckinley, Jr., Chief Judge United States District Court.

         This matter is before the Court on motions in limine and objections to depositions by Plaintiff, King Joseph X [DN 34]. Fully briefed, these matters are ripe for decision.

         I. BACKGROUND

         On May 9, 2015, Plaintiff was injured in a car accident when the car in which he was riding was hit by another vehicle. At the time of the accident, Plaintiff was the passenger in a vehicle that was insured under a policy of insurance issued by Defendant that contained underinsured motorist (UIM) coverage. Plaintiff was treated at Jewish Hospital with complaints of head, neck, and back pain. Plaintiff received PIP benefits paid by Defendant. Plaintiff settled his claim against the driver that caused the accident and his insurance company, Nationwide, for the policy limits of $25, 000. Plaintiff then made a demand for the underinsured motorist coverage “policy limits” against Defendant on February 16, 2016. After reviewing Plaintiff's medical records, Defendant denied the claim. As a result of the denial of the UIM benefits, Plaintiff filed the current action.

         II. PLAINTIFF'S MOTIONS IN LIMINE

         A. Plaintiff's Criminal Record

         The motion by Plaintiff to preclude the Defendant from mentioning in the presence of the jury that Plaintiff has been arrested or convicted of a crime is GRANTED IN PART AND DENIED IN PART.

         The record reflects that Plaintiff was charged with heroin distribution and tampering with physical evidence for events that occurred on August 6, 2016. On October 26, 2017, Plaintiff entered a guilty plea to Trafficking in a Controlled Substance - Heroin and Tampering with Physical Evidence. A sentencing hearing was set for December 20, 2017. Both parties agree that the evidence of Plaintiff's past arrests and convictions is not properly admissible to establish Plaintiff's character pursuant to Fed.R.Evid. 404 and Fed.R.Evid. 608.

         However, Defendant contends that if Plaintiff testifies during the trial, evidence that he has been convicted of a felony within the past 10 years would be admissible for the purpose of reflecting on his credibility. Fed.R.Evid. 609. Defendant also seeks to introduce evidence that Plaintiff has been unable to work and earn income during the past two years because he was incarcerated and under indictment to rebut Plaintiff's claim that he has lost wages as a result of the injuries from a motor vehicle accident. Finally, Defendant argues that evidence that Plaintiff has earned his income from selling heroin is admissible to rebut his claim that the accident caused a reduction in his earned income.

         First, Fed.R.Evid. 609(a)(1)(A) provides that when “attacking a witness's character for truthfulness by evidence of a criminal conviction[] for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence[ ] must be admitted, subject to Rule 403, in a civil case [.]” Rule 403 states a “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.” Fed.R.Evid. 403.

         “Felony convictions are presumptively admissible for purposes of impeachment subject to the dictates of Rule 403.” Thomas v. McDowell, 2014 WL 5305501, at *7 (S.D. Ohio Oct. 15, 2014). Here, Plaintiff was convicted of one count of trafficking heroin and one count of tampering with physical evidence which satisfy Rule 609(a)(1)(A)'s requirements. The Court must determine whether evidence of his convictions is admissible under Rule 403.

         “‘Rule 609(a)(1) presumes that all felonies are at least somewhat probative of a witness's propensity to testify truthfully, ' United States v. Estrada, 430 F.3d 606, 617 (2d Cir. 2005), and reflects the ‘proposition that one who has transgressed society's norms by committing a felony is less likely than most to be deterred from lying under oath, ' Cummings v. Malone, 995 F.2d 817, 826 (8th Cir. 1993) (citing Campbell v. Greer, 831 F.2d 700, 707 (7th Cir. 1987)).” Thomas v. McDowell, 2014 WL 5305501, at *7 (S.D. Ohio Oct. 15, 2014). In further examining the probative value of conviction evidence, the Court examines “the degree to which the evidence is logically probative of untruthfulness and the extent to which this credibility evidence is needed, given the context in which that evidence is offered.” 28 Fed. Prac. & Proc. Evid. § 6134 (2d ed.) For example, many courts have concluded that crimes of impulse, or simple narcotics or weapons possession are “not highly probative of credibility.” Thomas, 2014 WL 5305501, at *7 (S.D. Ohio Oct. 15, 2014).

         In the present case, the Court finds that in the context of an UIM motorist claim, the fact that Plaintiff has been convicted of heroin trafficking and tampering with physical evidence is not highly probative of credibility. Additionally, the Court concludes that the probative value of the disclosure of these convictions is substantially outweighed by the unfair prejudice. Evidence that Plaintiff has been convicted of trafficking heroin or tampering with the evidence may induce the jury to refrain from finding in favor of Plaintiff or to award less damages than incurred because the jury does not want to award money to a drug dealer or addict. Furthermore, the facts underlying the tampering with physical evidence charge involves evidence that when officers approached the Plaintiff's vehicle he threw a knotted plastic bag out the front passenger window. As correctly noted by Plaintiff, this action would not include an aspect of dishonesty or falseness. KRS § 524.100; Fed.R.Evid. 609(a)(2).

         Accordingly, pursuant to Fed.R.Evid. 609(a) and Fed.R.Evid. 403, the Plaintiff's motion to exclude his criminal convictions is GRANTED.

         Second, Defendant seeks to introduce evidence that Plaintiff has been unable to work and earn income during the past two years because he was incarcerated and under indictment to rebut his claim that he has lost wages as a result of the injuries from a motor vehicle accident. Assuming Plaintiff makes a claim for lost wages during the time of his incarceration, the fact that he was incarcerated and unable to work might be relevant to impeach his claim of lost wages, depending on the length of the incarceration. The length of Plaintiff's incarceration will be discussed further at the pretrial hearing. Again, the Plaintiff's status as a convicted felon is not admissible, nor shall the reason for Plaintiff's incarceration be disclosed to the jury.

         Third, Defendant argues that evidence of Plaintiff's felony convictions is relevant to his claim for lost wages. Defendant maintains that the Plaintiff did not suffer lost wages as a result of the accident because he supplemented his income with his heroin distribution. Even if this evidence was somehow relevant, the probative value of it is substantially outweighed by the unfair prejudice. The Court addresses this argument below in further detail.

         B. Plaintiff's Marijuana Use

         The motion by Plaintiff to preclude the introduction of Plaintiff's marijuana use is GRANTED. Defendant does not intend to offer evidence or comment regarding Plaintiff's marijuana use.

         C. Impeachment of Plaintiff - Prior Criminal Conviction

         The motion by Plaintiff to preclude the impeachment of Plaintiff through prior criminal convictions pursuant to Fed.R.Evid. 609 is GRANTED consistent with the discussion set forth above.

         D. Collateral Source Doctrine

         PLAINTIFF moves to prohibit Defendant from stating that any of Plaintiff's losses have been paid by a collateral source. Kentucky's collateral source rule “precludes courts from reducing a plaintiff's medical damages based on insurance payments made for [his] care, so long as the associated premiums were paid by the plaintiff [himself] or a third party other than the tortfeasor.” Fulcher v. United States, 2014 WL 7375557, at *4 (W.D. Ky. Dec. 29, 2014) (citing O'Bryan v. Hedgespeth, 892 S.W.2d 571, 576 (Ky. 1995)). In Baptist Healthcare Systems, Inc. v. Miller, “the Kentucky Supreme Court stated that the collateral source rule ‘allows the plaintiff to (1) seek recovery for the reasonable value of medical services for an injury, and (2) seek recovery for the reasonable value of medical services without consideration of insurance payments made to the injured party.'” Dossett v. Wal-Mart Stores East, Ltd. Partnership, 2016 WL 183923, *1 (W.D. Ky. Jan. 14, 2016)(quoting Baptist Healthcare Systems, Inc. v. Miller, 177 S.W.3d 676, 682 (Ky. 2005)). In response, Defendant represents that it does not intend to offer evidence or comment that Plaintiff has received collateral source benefits. Accordingly, the motion in limine is GRANTED.

         E. Burden of Proof

         PLAINTIFF seeks to exclude any evidence or argument concerning the burden of proof. Defendant objects arguing that the authorities cited by Plaintiff are limited to state court actions and are procedural in nature. Kentucky law provides that juries are not to be instructed on the burden of proof in a civil case. See Utilities Appliance Co. v. Toon's Adm'r, 45 S.W.2d 478, 479 (Ky. 1932)(“[T]he jury should not be told specifically upon whom the burden rests.”). However, under Kentucky law, the instructions are to “be framed so as to approximately indicate which litigant has the affirmative burden of persuasion.” Rankin v. Blue Grass Boys Ranch, Inc., 469 S.W.2d 767, 773 (Ky. 1971). Palmore's Kentucky Instructions to Juries, § 13.11[F] (“[I]t is necessary for the instructions to reflect that the burden of proof by requiring that the jury be convinced of a certain fact in order to find in favor of the party whose burden it is to prove it is so . . . .”).

         While aware of this case law, the Court's practice in diversity cases is to instruct the jury on the preponderance of the evidence standard. The Court recognizes that the allocation of the burden of proof is a matter governed by state law. Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)(the federal court is to apply state substantive law in a diversity case); Safeco Ins. Co. of America v. City of White House, Tennessee, 191 F.3d 675, 681 (6th Cir. 1999). However, the Court is of the view that the form or manner of giving the instruction is controlled by federal law. See Broadcast Satellite Intern, Inc. v. National Digital Television Center, Inc., 323 F.3d 339, 347 (5th Cir. 2003) (citing Turlington v. United States Fidelity & Guar., 795 F.2d 434, 439, 441 (5th Cir. 1986)); King v. Ford Motor Co., 209 F.3d 886, 897 (6th Cir. 2000)(“In a diversity action, state law determines the substance of the jury instructions; however, questions regarding the propriety of the instructions are governed by federal procedural law.”). See also Asher v. Unarco Material Handling, Inc., 2008 WL 6808437, *1 (E.D. Ky. October 15, 2008)(denying plaintiffs' motion in limine to preclude mention of the burden of proof); Harman v. Sullivan University System, Inc., 2006 WL 861269, *2 (W.D. Ky. March 29, 2006)(same); Niles v. Owensboro Med. Health Sys., Inc., 2011 WL 3205369, at *2-3 (W.D. Ky. July 27, 2011).

         For these reasons, the motion by Plaintiff to exclude any evidence or argument concerning the burden of proof is DENIED.

         F. Evidence of Effect of a Damage Award on Plaintiff

         PLAINTIFF moves to exclude any reference to, suggestion of, or evidence demonstrating that a damages award “will not undo any injuries and harm” caused by the Defendant or the tortfeasor, including any suggestions that a damage award will act as a windfall for the Plaintiff. Plaintiff argues this ...


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