United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
I. Schenkier, Magistrate Judge
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.
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
Plaintiffs Motions in Limine A.
Motion in Limine No. 1.
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.
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.
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.
Motion in Limine No. 9.
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.
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.
Motion in Limine No. 11.
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.
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.
Plaintiffs Motion in Limine No. 12.
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)).
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
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.
Defendant's Motions in Limine
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).
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