The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
This case is before the court for ruling on the Motions in Limine (#44) filed by Defendant, Wal-Mart Stores, Inc., and the Motions in Limine (#45) filed by Plaintiffs, Candy L. Harris, Lynn Harris, and Candy L. Harris, as mother and next friend of Justin C. Harris. This court has carefully reviewed the Motions and the Responses (#49, #51). Following this court's careful consideration, Defendant's Motions in Limine (#44) are GRANTED in part and DENIED in part and Plaintiffs' Motions in Limine (#45) are GRANTED in part and DENIED in part.
I. DEFENDANT'S MOTIONS IN LIMINE
On March 26, 2009, Defendant filed its Motions in Limine (#44). Defendant first requested an order barring testimony from Plaintiff Candy Harris (Candy), or any other witnesses, that the clothing racks were "rearranged" after the incident at issue in this case. Defendant argued that this evidence is not probative and would constitute evidence regarding a subsequent remedial measure, which is inadmissible. In their Response (#51), Plaintiffs stated that they have no objection to this request and it is GRANTED.
Defendant's second request is for an order barring testimony from Candy regarding information she received from her physicians concerning the prognosis for the injury suffered by Justin Harris (Justin). Defendant noted that the parties have taken extensive depositions of Justin's treating physicians, who were subject to cross-examination. Defendant argued that Plaintiffs should not be allowed to present hearsay testimony regarding physicians' statements. Plaintiffs have no objection to this request and it is GRANTED.
Defendant's third request is for an order barring testimony from Candy concerning what jobs she believes Justin might be able to do in the future. Plaintiffs have no objection to this request and it is GRANTED.
Defendant's fourth request is for an order barring testimony by Plaintiffs concerning their alleged financial stress subsequent to the date of the accident. Plaintiffs have no objection to this request and it is GRANTED.
Defendant's fifth request is for an order barring any evidence or reference to the Social Security Administration's findings concerning Justin's claims of disability. Plaintiffs have no objection to this request and it is GRANTED.
On April 9, 2009, Defendant filed a Motion to Withdraw (#48) and asked to withdraw its sixth request included in its Motions in Limine. This court granted the Motion to Withdraw (#48) on April 14, 2009. Accordingly, no discussion of Defendant's sixth request is necessary.
Defendant's seventh request is for an order barring any and all testimony regarding Justin's future damages, future disability, future medical care, or testimony that his injuries and/or disability are permanent other than the opinions set forth in the testimony of the treating physicians who have given their depositions in this case. Plaintiffs have no objection to this request and it is GRANTED.
Defendant's eighth request is for an order barring any reference to the existence of insurance or the alleged existence of insurance in this case. Plaintiffs have no objection to this request and it is GRANTED.
Defendant's ninth request is for an order barring evidence or argument regarding any offers of settlement or refusals to make offers of settlement by Defendant. Plaintiffs have no objection to this request and it is GRANTED.
Defendant's tenth request is for an order barring any testimony or representation by Plaintiffs' counsel in the presence of the jury of any fact or the credibility of any witness based on his personal experience or knowledge. In support of this request, Defendant argued that it is not proper for counsel to testify at trial or, as an advocate, place his credibility at issue because Defendant has no means by which to cross-examine counsel. Defendant also argued that counsel may not endorse the credibility of any witness or express an opinion to the jury that he believes the testimony of any witness. Defendant cited no case law support for these arguments.
In their Response (#51), Plaintiffs objected to this request. Plaintiffs stated that, obviously, there would be no testimony from Plaintiffs' counsel. Plaintiffs argued that Defendant's request to bar "representations" is vague and unduly restrictive. Plaintiffs argued that their counsel should not be prohibited from arguing the inferences to be drawn by the establishment of any fact in evidence or the weight to be given the credibility of any witness based upon the witness's demeanor and the overall circumstances in which the testimony was presented. Plaintiffs noted that United States District Judge Jeanne E. Scott recently denied a similar request. Judge Scott stated:
Plaintiffs ask the Court to prohibit defense counsel from referring to their own opinions or knowledge when commenting on the truth or credibility of evidence. This motion is denied. While attorneys clearly cannot testify or vouch for the truthfulness of a witness's testimony, Plaintiffs make no attempt to explain why they believe defense counsel might inject personal ...