United States District Court, W.D. Kentucky, Louisville Division
H. Mckinley, Jr., Chief Judge United States District Court.
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.
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
PLAINTIFF'S MOTIONS IN LIMINE
Plaintiff's Criminal Record
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
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.
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.
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.
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.
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,
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).
pursuant to Fed.R.Evid. 609(a) and Fed.R.Evid. 403, the
Plaintiff's motion to exclude his criminal convictions is
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.
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.
Plaintiff's Marijuana Use
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.
Impeachment of Plaintiff - Prior Criminal Conviction
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.
Collateral Source Doctrine
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.
Burden of Proof
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 . . .
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).
these reasons, the motion by Plaintiff to exclude any
evidence or argument concerning the burden of proof is
Evidence of Effect of a Damage Award on 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