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Momeni-Kuric v. Metropolitan Property and Casualty Insurance Co.

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

July 29, 2019

TARANEH F. MOMENI-KURIC Plaintiff,
v.
METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY; METLIFE AUTO & HOME INSURANCE AGENCY, INC. AND REISERT INSURANCE, INC. Defendants

          MEMORANDUM OPINION AND ORDER

          Rebecca Grady Jennings, United States District Court District Judge

         This matter is before the Court on sixteen Motions in Limine and Objections to Admissibility filed by the parties. [DE 22, 34, 38, 47, 54-62, 64, 66, 77, 80, 82]. Briefing is complete, and these matters are ripe. Responses to the Motions in Limine and Objections to Admissibility and Reply Briefs in Support of Objections to Admissibility were also filed. [DE 23, 27, 65, 67, 69, 85, 88]. For the reasons below, Metropolitan's Motions in Limine [DE 54, 56, 57, 59, 62, 66] are GRANTED, Metropolitan's Motions in Limine [DE 55, 58, 60] are DENIED, Metropolitan's Motions in Limine [DE 22, 61, 64, 77, 80] are GRANTED IN PART and DENIED IN PART, Momeni-Kuric's Motion in Limine [DE 34] is DENIED, and Momeni-Kuric's Supplemental Motions in Limine [DE 38] are GRANTED IN PART and DENIED IN PART.

         I. BACKGROUND

         This case arises out of an automobile collision between Plaintiff, Dr. Taraneh Momeni-Kuric and Donna Thompson. [DE 1-2, State Ct. Rec., at 6, ¶ 2]. Momeni-Kuric sustained injuries from the collision. [Id. at 6, ¶ 3]. Momeni-Kuric filed litigation against Thompson. [Id. at 6, ¶ 4]. The matter was settled with payment of the full liability limits of Thompson's insurance policy. [Id.]. Momeni-Kuric released Thompson and received payment in the amount of $250, 000. [Id. at 7, ¶ 5].

         At the time of the collision, Momeni-Kuric also held an insurance policy with the Metropolitan Property and Casualty Insurance Company (“Metropolitan”) and Metlife Auto & Home Insurance Agency, Inc. (“Metlife”). [Id. at 7, ¶ 6]. After settling with Thompson, Momeni-Kuric sued Metropolitan, Metlife, and Reisert Insurance, Inc. (“Reisert”)[1] in Jefferson County Circuit Court for under-insured motorists (“UIM”) insurance coverage claiming bad faith, violations of the Unfair Claims Settlement Practices Act, violations of the Consumer Protection Act, breach of fiduciary obligations, and negligent misrepresentation. [DE 1-2]. Defendants MetLife and Reisert were dismissed with prejudice from the state court action. [DE 1, Notice of Removal at ¶ 2, DE 1-2 at 33, 35]. The state court then bifurcated the claims and held the bad faith and statutory claims in abeyance until determination of Momeni-Kuric's UIM claim. [DE 1-2 at 32]. Defendant removed the case to this Court on diversity jurisdiction. [DE 1 at 1]. This matter is set for jury trial on the bifurcated UIM claim. In advance of trial, parties have filed sixteen Motions in Limine and Objections to Admissibility.

         II. LEGAL STANDARD.

         Federal district courts have the power to exclude irrelevant, inadmissible, or prejudicial evidence in limine under their inherent authority to manage trials. Luce v. United States, 469 U.S. 38, 41 n.4 (1984) (citing Fed.R.Evid. 103(c)). Yet, the “better practice” is to defer evidentiary rulings until trial unless the evidence is clearly inadmissible on all potential grounds. Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). Courts favor this posture so that “questions of foundation, relevancy and potential prejudice may be resolved in proper context.” Gresh v. Waste Servs. of Am., Inc., 738 F.Supp.2d 702, 706 (E.D. Ky. 2010) (internal citations omitted). When this Court issues a ruling in limine, it is “no more than a preliminary, or advisory, opinion.” United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994) (citing United States v. Luce, 713 F.2d 1236, 1239 (6th Cir.1983), aff'd, 469 U.S. 38 (1984)). Thus, the Court may alter or amend a prior in limine ruling at trial. Luce, 713 F.2d at 1239.

         III. DISCUSSION

         A. Metropolitan's Evidentiary Motions.

         1. Defendant's Objection to Admissibility of Expert Testimony [DE 22].

         Defendant moves to limit the opinion testimony of Plaintiff's witnesses, Dr. Attaway, Dr. Slone, and Dr. Price, on grounds that portions of their opinions do not satisfy Federal Rules of Evidence 701 and 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). [DE 22, at 1]. Defendant argues that these witnesses are not qualified to opine on whether Plaintiff's injuries from the automobile accident prevent her from practicing dentistry. [Id.] Defendant also moves to exclude Dr. Price as an expert because he was not disclosed as an expert and has not provided a curriculum vitae or an expert report. [Id. at 2-3]. The Court agrees. Dr. Price appears as a lay witness on Plaintiff's witness list and was not previously disclosed as an expert. [DE 51, Pl Am. Witness List]. As a result, Dr. Price's testimony must be limited to that of a lay witness.

         “Under Rule 702 of the Federal Rules of Evidence, ‘a proposed expert's opinion is admissible . . . if the opinion satisfies three requirements. First, the witness must be qualified by knowledge, skill, experience, training, or education. Second the testimony must be relevant, meaning that it will assist the trier of fact to understand the evidence or to determine a fact in issue. Third, the testimony must be reliable.'” Burgett v. Troy-Bilt LLC, 579 Fed.Appx. 372, 376 (6th Cir. 2014) (quoting In re Scrap Metal Antitrust Litig., 527 F.3d 517, 528-29 (6th Cir. 2008)). As to the expert's qualifications, the Court does “not consider ‘the qualifications of a witness in the abstract, but whether those qualifications provide a foundation for a witness to answer a specific question.'” Id. (quoting Berry v. City of Detroit, 25 F.3d 1342, 1351 (6th Cir. 1994)). The Court must determine whether the witness is qualified to offer an opinion on the specific area of expertise. In re Welding Fume Prods. Liab. Litig., No. 1:03-CV-17000, 2005 WL 1868046, at * 33 (N.D. Ohio Aug. 8, 2005) (“An expert may be highly qualified to respond to certain questions and to offer certain opinions, but insufficiently qualified to respond to other, related questions, or to opine about other areas of knowledge.”) “Under the Federal Rules of Evidence, the only thing a court should be concerned with in determining the qualifications of an expert is whether the expert's knowledge of the subject matter is such that his opinion will likely assist the trier of fact in arriving at the truth. The weight of the expert's testimony must be for the trier of fact.” Mannino v. International Mfg. Co., 650 F.2d 846, 851 (6th Cir. 1981). Thus, this Court need only determine if the expert witness has the minimal qualifications to express the expert opinion. Id.

         Along with expert qualifications, “[t]he Court must determine whether evidence proffered under Rule 702 ‘both rests on a reliable foundation and is relevant to the task at hand.'” Powell v. Tosh, 942 F.Supp.2d 678, 686 (W.D. Ky. 2013) (quoting Daubert, 509 U.S. at 597). To assist with this determination, the Supreme Court in Daubert laid out several factors[2] for the courts to consider. Daubert, 509 U.S. at 592-594. Courts have “stressed, however, that Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case. . . . In some cases . . ., the factors may be pertinent, while in other cases the relevant reliability concerns may focus upon personal knowledge or experience.” First Tennessee Bank Nat. Ass'n v. Barreto, 268 F.3d 319, 335 (6th Cir. 2001) (finding the Daubert factors “unhelpful” in a case involving “expert testimony derived largely from [expert's] own practical experiences throughout forty years in the banking industry [because] [o]pinions formed in such a manner do not easily lend themselves to scholarly review or to traditional scientific evaluation”) (internal citations omitted). “[W]hether Daubert's specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine.” Id. That said, admissible expert testimony must be based on more than subjective belief and unsupported speculation. Roach v. Hughes, No. 4:13-CV-00136-JHM, 2015 WL 3970739, at *4 (W.D. Ky. June 30, 2015) (citing Graham v. Am. Cyanamid, Co., 350 F.3d 496, 510 (6th Cir. 2003).

         Defendant expects that Drs. Attaway and Slone will testify that Plaintiff cannot practice dentistry because of her physical limitations.[3] [DE 22 at 1-3]. Defendant argues that while Drs. Attaway and Slone will likely be qualified to opine on the practice of dentistry, they do not have the skills, training, or medical background to offer an expert opinion on whether Plaintiff can practice dentistry. [Id. at 6]. Defendant argues that any opinion would be based on “their comparisons of their personal experiences as practicing dentists with the physical complaints of Plaintiff detailed in her medical records and deposition testimony.” [Id. at 7].

         Rule 702 allows experts to compare the facts in the case to his or her own experience to draw a conclusion. See Fed.R.Evid. 702. This type of expert testimony is widely admitted. See First Tennessee Bank Nat. Ass'n, 268 F.3d at 334-35 (finding an expert, opining on whether the standard of care was met in a bank contract dispute, was qualified to give opinion based on his “technical or specialized knowledge” where he had over 40 years of experience in the banking industry and held various positions at several different banks).

         However, it is improper for Drs. Attaway and Slone to “evaluate Plaintiff's claimed injuries and determine her physical capabilities.” [DE 22 at 6]. They are not medical doctors, and thus, do not have this expertise. [Id.]. That said, Drs. Attaway and Sloan can rely on the testimony of other experts and Plaintiff to understand Plaintiff's physical limitations. See Eaves v. United States, No. 4:07CV-118-M, 2009 WL 3754176, at *9 (W.D. Ky. Nov. 5, 2009) (“The No. of sources on which experts in various fields of expertise might reasonably rely to obtain information for the formation of opinions and inferences is virtually infinite. A few of those that the courts have considered with regularity are the following . . . . opinions of other experts.”) (quoting Weinstein & Berger, Weinstein's Federal Evidence § 703.04).

         In fact, vocational experts often rely on medical expert opinions in opining on an individual's employment opportunities. See, e.g., Sturgeon v. Astrue, No. 1:07CV74-J, 2007 WL 4365398, at *4 (W.D. Ky. Dec. 12, 2007). In those cases, the vocational expert does not have the medical knowledge to determine the limitations of the person being evaluated but must base his or her opinion on the limitations described by the medical opinions. Thus, if they base their opinions about Plaintiff's physical limitations on the testimony of other experts, Drs. Attaway and Sloan, like a vocational expert, can opine on whether Plaintiff can practice dentistry based on their specialized knowledge and understanding of what it requires to be a practicing dentist. However, it is premature for the Court to rule on this issue. Whether Drs. Attaway and Sloan may opine on Plaintiff's ability to practice dentistry depends upon the foundation for their opinions which is developed at trial, including the opinions of other expert witnesses.

         For these reasons, Defendant's Objection to Admissibility of Expert Testimony [DE 22] is DENIED at this time as to Drs. Sloan and Attaway and GRANTED as to Dr. Price.

         2. Defendant's Motion in Limine for Exclusion of Witnesses Pursuant to FRE 615 [DE 54].

         Plaintiff does not object to excluding witnesses under FRE 615. [DE 69, Pl.'s Resp. to Def.'s Mot. in Limine, at 1; DE 86 Tr. July 22, 2019 at 24:8-15]. As a result, this Motion in Limine [DE 54] is GRANTED.

         3. Defendant's Motion in Limine to Exclude Open Testimony of Lay Witnesses Related to Medical Conditions, Medical Treatment, and Causation [DE 55].

         Defendant seeks to preclude Plaintiff and any lay witnesses from testifying about the “causal connection between the incident and Plaintiff's claimed injury, about any causal connection between the incident and the treatment, and about any medical diagnoses or causation opinions.” [DE 47, Def.'s Mot. in Limine, at 2]. Defendant alleges that this type of testimony by a lay witness would be improper under Fed.R.Evid. 701 and 802. [Id.]. Defendant argues that because a lay witness would not have the medical expertise to determine the cause of Plaintiff's injuries or the appropriate treatment, any such testimony would be improper expert testimony or based on hearsay. [Id. at 3-4]. Plaintiff argues that prohibiting all testimony of this type is too broad and improperly encompasses permissible testimony, such as the witnesses' own first-hand knowledge. [DE 69 at 2-3].

         Expert testimony is needed to prove causation of medical injuries. Auto-Owners Ins. v. Aspas, No. 3:16-CV-189-DJH-RSE, 2018 WL 4643190, at *3 (W.D. Ky. Sept. 27, 2018). That said, when “causation is so apparent that lay members of the jury could easily determine whether and to what extent the defendant's conduct caused the plaintiff's injuries-the so-called layman's exception”- courts permit lay witness testimony about causation. Id. (internal citations omitted). Additionally, there are many circumstances in which a lay witness may testify about their own injuries or injuries they personally observed either through their own perceptions or a hearsay exception. See generally Fed.R.Evid. 701, 803.

         The Court cannot exclude this testimony without the benefit of hearing it developed at trial. As a result, Defendant's Motion in Limine to Exclude Testimony of Lay Witnesses Related to Medical Conditions, Medical Treatment, and Causation [DE 55] is DENIED.

         4. Defendant's Motion in Limine to Preclude Introduction of Medical Records and/or Medical Billing not Produced in Discovery and Testimony Regarding the Same [DE 56].

         Plaintiff does not object to excluding medical records and/or medical billing not produced in discovery and testimony about the same. [DE 69 at 3; DE 86 Tr. July 22, 2019 at 30:6-10]. As a result, Defendant's Motion in Limine to Preclude Introduction of Medical Records and/or Medical Billing not Produced in Discovery and Testimony Regarding the Same [DE 56] is GRANTED.

         5. Defendant's Motion in Limine to Limit Testimony of Effect of Plaintiff's Alleged ...


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