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Passarella v. NFI Interactive Logistics, LLC

United States District Court, N.D. Illinois, Eastern Division

October 20, 2016

JOSEPH PASSARELLA, Plaintiff,
v.
NFI INTERACTIVE LOGISTICS, LLC, Defendant.

          MEMORANDUM OPINION AND ORDER

          Sidney I. Schenkier, Magistrate Judge

         Plaintiff Joseph Passarella filed this lawsuit seeking recovery for injuries he suffered on March 17, 2010, when he was struck by a commercial motor vehicle being operated by an employee of Defendant in the parking lot of a distribution center in Bolingbrook, Illinois. The matter is set for a jury trial to begin on November 14, 2016.

         Plaintiff filed a consolidated document containing seventeen motions in limine (doc. # 147), and Defendant filed fifteen separately docketed motions in limine (doc. #s 132-146). Plaintiffs Motions in Limine Nos. 2-8, 10, and 13-17 are granted without opposition, and Defendant's Motions in Limine Nos. 5-8, and 12 are granted without opposition. Our rulings on Plaintiffs Motions in Limine Nos. 1, 9, 11, and 12 and Defendant's Motions in Limine Nos. 1-4, 9-11, and 13-15 are set forth below.

         I. Plaintiffs Motions in Limine A.

         Plaintiffs Motion in Limine No. 1.

         Plaintiff seeks to bar any comment, argument or evidence that any verdict awarded for noneconomic damages would provide a "stream of income" or "how Plaintiff could invest" or "what Plaintiff could do" with the money awarded or that Plaintiff could live on accrued interest. Plaintiff argues that these types of comments would improperly suggest that elements of noneconomic damage should be reduced to present case value. Under Illinois law, damages for pain and suffering, disability, and disfigurement are not to be discounted to present case value. Schaffner v. Chicago & Northwestern, 541 N.E.2d 643, 652 (Ill. S.Ct. 1989). In Schaffner, the plaintiff sought to preclude any argument that would have suggested to the jury that they should consider, in determining damages, any income that could be obtained by investment of the sums of future damages. The Illinois Supreme Court held that allowing any argument that noneconomic damages awarded to the plaintiff could be invested to produce a stream of income would have been error. Id. at 652-53.

         In its response, Defendant says that it does not seek to argue to the jury that noneconomic damages should be reduced to present value. Instead, Defendant objects that Plaintiff is essentially seeking to bar Defendant from, in any way, commenting or arguing that the amount of damages he intends to request is excessive or disproportional to the injuries he actually suffered. Defendant points out that compensatory damages are intended to make Plaintiff whole, but not to enable him to make a profit or windfall from the transaction. Defendant argues that if Plaintiffs request for damages at trial is such that he would never have to work again due to the time value of that money, it should be able to argue that Plaintiffs request is excessive and not fair and reasonable.

         Given the established Illinois law that noneconomic damages should not be reduced to present value, we grant Plaintiffs Motion in Limine No. 1. This ruling does not bar Defendant from arguing that Plaintiffs request for damages is excessive or disproportional to the injuries and harm suffered by Plaintiff; however, Defendant may not make that argument by making any reference to the time value of money.

         B.

         Plaintiffs Motion in Limine No. 9.

         Plaintiff seeks to bar any comment, argument, evidence or reference that Plaintiff is required to prove (or that the Plaintiff himself has to testify to) a certain specific dollar amount in order to be compensated for noneconomic damages, pain and suffering, disability, loss of normal life and any other noneconomic damages. Plaintiff contends that he need only present evidence from which the jury can determine the amount to be awarded for noneconomic damages that would appropriately compensate him for any such injuries. Defendant objects to this motion in limine to the extent that it seeks to bar Defendant from arguing against any dollar amount Plaintiff may choose to place on any aspect of his damages, or that Plaintiff has failed to introduce evidence justifying a particular amount of damages.

         Defendant's objection is nonresponsive to Plaintiffs actual argument. Defendant says that it should be able to argue against any particular dollar amount Plaintiff places on his damages, but Plaintiff is arguing that he need not testify to a specific dollar amount to be compensated for noneconomic damages. Accordingly, we grant Plaintiffs Motion in Limine No. 9, to the extent that it seeks a ruling that Plaintiff is not required to request or testify to a certain specific dollar amount for noneconomic damages. Our ruling does not preclude Defendant from arguing that Plaintiff has not offered evidence to support his requested damage award, offering its own evidence indicating a different amount of damages, or arguing that the damages amount suggested by Plaintiff is not necessary to compensate him.

         C.

         Plaintiffs Motion in Limine No. 11.

         Plaintiff seeks to bar any comment, argument or evidence regarding Plaintiffs motives for filing and prosecuting this action. Defendant objects, claiming that the evidence at trial will show that (1) the shoulder and elbow injuries Plaintiff claims to have suffered as a result of the occurrence at issue pre-existed that occurrence and (2) that while Plaintiff claims he was unable to work as a result of the claimed injuries, the real reason he stopped working shortly after the occurrence was because of a disagreement with his employer. Defendant argues that one can reasonably infer from this evidence that Plaintiffs motivation in bringing this suit was to obtain money and/or effectively free medical treatment for pre-existing ailments.

         We defer a decision as to Plaintiffs Motion in Limine No. 11 until trial. Defendant cannot raise the issue of the Plaintiffs motives in filing and prosecuting this action during voir dire or opening statements. If Defendant intends later to offer argument that Plaintiffs motivation in bringing this suit was to obtain money and/or free medical treatment for preexisting ailments, then defense counsel must first approach the bench for a ruling and demonstrate how that argument is supported by the evidence.

         D. Plaintiffs Motion in Limine No. 12.

         Plaintiffs Motion in Limine No. 12 seeks to bar any comment, argument, evidence, or mention that some or all of the Plaintiffs medical expenses have been paid by a third party including recovery from the Plaintiffs own insurance, the government, Medicaid, Medicare, social security, worker's compensation, or any other source. Plaintiffs motion is based on the collateral source rule, which under Illinois law is both a rule of evidence and a substantive rule of damages. Klesowitch v. Smith, 52 N.E.3d 365, 375 (Ill.App. March 17, 2016). As a rule of evidence, the rule prevents the jury from learning anything about collateral income. Id. "As a substantive rule of damages, the rule bars a defendant from reducing the plaintiffs compensatory award by the amount the plaintiff received from the collateral source." Id. (quoting Wills v. Foster, 892 N.E.2d 1018, 1023 (Ill. S.Ct. 2008)).

         Part 1 of Plaintiffs Motion in Limine No. 12 seeks to bar any comment, argument, or evidence that some or all of Plaintiff s medical expenses have been paid by a third party such as insurance, government aid programs, or workers' compensation. That part of the motion is unopposed, and we grant it.

         Turning to Part 2 of Plaintiff s Motion in Limine No. 12, Defendant argues that under the circumstances of this case, Plaintiff may not seek damages for the full amounts of his medical bills that have not been paid in full because he has failed to properly disclose any witness who will be able to offer the requisite expert testimony that the full amounts of those bills are fair and reasonable. See Defendant's Motions in Limine Nos. 1, 14. Again, the parties talk past each other in the briefing of the motion. We do not view Defendant's argument as one that violates the collateral source rule. Defendant is not arguing that Plaintiff is barred from recovering for bills because they were paid by a third party, but rather, because Plaintiff has identified no witness or other competent evidence that certain bills were paid at all or in full, or that the charges on the bills not paid in full were reasonable and necessary. Thus, we deny Part 2 of Plaintiff s Motion in Limine No. 12; however, that ruling does not permit Defendant to offer evidence or argument about sources of payment for Plaintiffs medical bills. We discuss more fully in connection with Defendant's Motion in Limine Nos. 1 and 14 what evidence may-and may not-be offered in connection with Plaintiffs medical bills.

         II. Defendant's Motions in Limine

         A.

         Defendant's Motion in Limine No. 1.

          Pursuant to Federal Rules of Civil Procedure 26(a) and 37(c)(1), Defendant moves to bar Plaintiff from calling any witness whose identity has not been properly disclosed from testifying at trial. In his Rule 26(a) disclosures, Plaintiff listed, but did not name, the "Keeper of Records" and the "Patient Account Representative" of various health care providers from which he has received medical or physical therapy treatment that he claims was necessitated by the accident in this case. Plaintiff states that he expects to elicit "factual and opinion testimony" from each of these unnamed witnesses regarding the accuracy and genuineness of the health care providers' records and bills. Plaintiff further states that "Patient Account Representatives" will testify that services provided by their respective principals were "reasonable and necessary treatment for injuries and medical conditions caused by the subject incident." Plaintiff also expects these unnamed witnesses to testify that their respective principals' bills for services provided to Plaintiff represent "fair and reasonable charges for services performed." Defendant contends that Plaintiff should be barred from calling as witnesses the "Keeper of Records" and "Patient Account Representatives, " because these several listings did not sufficiently identify the witnesses as required by Rule 26(a).

         In his response brief, Plaintiff objects to Defendant's Motion in Limine No. 1, stating only that "[b]y way of separate motion, Plaintiff will be seeking leave to provide a supplemental witness disclosure which would obviate Defendant's motion" (doc. # 165 at 1). Plaintiff offers no substantive response to Defendant's argument that generically listing the "Keeper of Records" and the "Patient Account Representatives" of ...


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