United States District Court, W.D. Kentucky, Louisville Division
TARANEH F. MOMENI-KURIC Plaintiff,
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
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.
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,
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”) 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.
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.
Metropolitan's Evidentiary Motions.
Defendant's Objection to Admissibility of Expert
Testimony [DE 22].
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.
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.
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 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).
expects that Drs. Attaway and Slone will testify that
Plaintiff cannot practice dentistry because of her physical
limitations. [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].
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).
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 §
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.
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.
Defendant's Motion in Limine for Exclusion of Witnesses
Pursuant to FRE 615 [DE 54].
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.
Defendant's Motion in Limine to Exclude Open Testimony of
Lay Witnesses Related to Medical Conditions, Medical
Treatment, and Causation [DE 55].
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].
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.
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.
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].
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.
Defendant's Motion in Limine to Limit Testimony of Effect
of Plaintiff's Alleged ...