3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 JESSE WAYNE FALLIN, JR., Case No. 3:23-cv-00512-ART-CLB
6 Plaintiff, ORDER ON MOTIONS IN LIMINE v. 7 UNITED STATES, et al., 8 Defendants. 9 10 11 This case concerns medical treatment for injuries suffered by Plaintiff Jesse 12 Wayne Fallin, Jr., after a postal van hit his vehicle. Plaintiff and Defendant 13 submitted motions in limine. The Court also held a calendar call in which each 14 party discussed their positions on their motions and responses. (See ECF No. 35.) 15 I. BACKGROUND 16 Plaintiff Jesse Wayne Fallin, Jr., was hit by a postal van while driving in 17 Fernley, Nevada, in 2021. (ECF No. 1.) Defendant argues that Plaintiff’s injuries 18 were not severe enough to justify the medical care that he received. (ECF No. 31 19 at 2.) Both sides expect the trial to focus on the severity of Plaintiff’s injuries from 20 the crash and whether medical treatment he received was necessary and 21 reasonable. The motions in limine focus entirely on these questions. The Court 22 addresses Plaintiff’s motion then Defendant’s. 23 II. DISCUSSION 24 A. Plaintiff’s Motion in Limine 25 Plaintiff’s omnibus motion includes five motions in limine. (ECF No. 28.) 26 Plaintiff seeks to preclude Defendant from questioning Plaintiff’s treatment 27 providers about medical liens except as a source of those providers’ bias in having 28 2 argument that Plaintiff’s counsel referred or recommended treatment to Plaintiff, 3 arguments about unreasonable billing practices employed by Plaintiff’s treatment 4 providers, and arguments that this is a “medical buildup” case. Plaintiff also 5 seeks to prevent Defendant’s medical expert from expressing conclusions about 6 the car crash that caused Plaintiff’s injuries. 7 1. Medical Liens 8 Plaintiff requests that the Court allow Defendant to put on evidence of 9 medical liens held by some of Plaintiff’s treating physicians only as a possible 10 source of bias for those treating physicians. (ECF No. 28 at 4–5.) Plaintiff seeks 11 to restrict Defendant from implying that Plaintiff could negotiate a lower price for 12 those bills or that Plaintiff’s other insurance coverage may cover the bills, as such 13 inferences would violate the collateral source rule. (Id. at 5 (citing Russo v. Matson 14 Nav. Co., 486 F.2d 1018, 1020 (9th Cir. 1973).) Defendant states that it plans to 15 ask about medical liens only to show possible bias of treating-physician 16 witnesses. (ECF No. 31 at 4–5.) At the calendar call, both parties agreed that 17 Defendant may ask medical providers about Plaintiff’s unpaid bills as a way to 18 show those providers’ interest in the outcome of the case, and Defendant stated 19 that it did not expect to ask questions beyond that. (ECF No. 35.) The Court 20 accordingly grants Plaintiff’s motion and notes that Defendant may use Plaintiff’s 21 medical liens to attack credibility or show bias based on those witnesses’ financial 22 interest in the outcome of the case and not to suggest that Plaintiff could 23 negotiate down his medical bills. 24 2. Plaintiff Referrals of Medical Providers 25 Plaintiff seeks to exclude evidence, argument, and inferences that Plaintiff’s 26 counsel referred or recommended treatment to Plaintiff. (ECF No. 28 at 5–6.) 27 Plaintiff argues that seeking communications between Plaintiff and Plaintiff’s 28 counsel would violate the attorney-client privilege. Plaintiff concedes that 2 substance of communications between Plaintiff and his counsel. (Id. at 6 (citing 3 Calvert v. Ellis, et al., No. 2:13-CV-00464-APG-NJK, 2016 WL 153044, at *4 (D. 4 Nev. Jan. 12, 2016).) Defendant responds that questions about when and why 5 Plaintiff retained counsel are not barred by the attorney-client privilege. See 6 Roberts v. Smith's Food & Drug Centers, Inc., No. 2:11-CV-1917-JCM-GWF, 2014 7 WL 12802901, at *4 (D. Nev. May 28, 2014) (permitting inquiry into “when and 8 why plaintiff sought legal representation . . . if [Defendant] can establish the 9 relevance of this evidence at trial”). 10 Defendant argues that Plaintiff may state whether Plaintiff’s counsel 11 referred him to medical providers because that is an underlying fact, not a 12 communication protected by the attorney-client privilege. (ECF No. 31 at 6 (citing 13 Upjohn v. United States, 449 U.S. 383, 395–96 (1981) (internal citation omitted) 14 (The answer to the question “[w]hat did you say or write to the attorney” is 15 privileged, while a relevant fact that has been incorporated into a communication 16 to an attorney is not.).) The Court holds that Defendant may ask Plaintiff or other 17 witnesses with personal knowledge whether a treatment-provider was referred to 18 Plaintiff by counsel, but Defendant may not seek to produce details about 19 Plaintiff’s confidential communications with counsel. Accordingly, the Court 20 denies Plaintiff’s motion while reminding Defendant to not seek or place into 21 evidence privileged communications between Plaintiff and Plaintiff’s counsel. 22 3. Unreasonable Billing Practices 23 Plaintiff seeks to limit Defendant from arguing or opining about Plaintiff’s 24 providers’ billing practices being unreasonable. (ECF No. 28 at 6–7.) Plaintiff 25 argues that Defendant did not provide an expert to establish that Plaintiff’s 26 providers’ billing was unreasonable. (Id.) Defendant points to reports and 27 testimony from defense experts in which those experts say that procedures were 28 unnecessary, arguing that unnecessary medical treatment is by definition 2 expert, which Plaintiff’s motion does not mention. (Id. at 8.) Defendant concedes 3 that their experts’ testimony is limited to their expertise, and the Court may 4 address any related objections during trial. (Id.) Accordingly, the Court denies 5 Plaintiff’s third motion. 6 4. Evidence Showing Medical Build Up 7 Plaintiff seeks to preclude Defendant from arguing, absent evidence, that 8 this case involves attorney-driven litigation or “medical buildup” because no 9 evidence exists to suggest this. (ECF No. 28 at 7.) Defendant responds that it has 10 probative evidence suggesting medical buildup. 11 Other courts in this district have held that a defendant may argue that a 12 plaintiff’s medical treatment is attorney driven as long as admissible evidence 13 exists to show it. See Roberts, 2014 WL 12802901 at *4; Peterson v. Evergreen 14 Trans, Inc., No. 3:19-CV-00442-ART-WGC, 2023 WL 1965691, at *3 (D. Nev. Feb. 15 13, 2023). 16 Defendant’s evidence of medical buildup consists of the following: a 17 declaration from Plaintiff’s orthopedic expert that many surgeons would not 18 provide Plaintiff with some of the back procedures he received based on his 19 diagnoses, statements from the Plaintiff that he went to certain providers at the 20 advice of his attorneys, and medical records from Plaintiff’s charts that record 21 Plaintiff’s counsel calling providers to ask, “what is going to be done next.” (ECF 22 No. 31 at 10.) At the calendar call, Plaintiff’s counsel conceded that Defendant 23 may make medical-buildup arguments based on these facts. Accordingly, the 24 Court denies Plaintiff’s motion but reminds Defendant that the Court may 25 entertain and grant specific objections relating to these topics during trial. 26 5. Appropriateness of Surgical Procedures 27 Plaintiff seeks to preclude Defendant’s expert witness Dr. Chavez from 28 testifying outside the scope of his expertise. (ECF No. 28 at 8.) Plaintiff points out 2 addiction. (Id.) Plaintiff further points out that Dr.
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3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 JESSE WAYNE FALLIN, JR., Case No. 3:23-cv-00512-ART-CLB
6 Plaintiff, ORDER ON MOTIONS IN LIMINE v. 7 UNITED STATES, et al., 8 Defendants. 9 10 11 This case concerns medical treatment for injuries suffered by Plaintiff Jesse 12 Wayne Fallin, Jr., after a postal van hit his vehicle. Plaintiff and Defendant 13 submitted motions in limine. The Court also held a calendar call in which each 14 party discussed their positions on their motions and responses. (See ECF No. 35.) 15 I. BACKGROUND 16 Plaintiff Jesse Wayne Fallin, Jr., was hit by a postal van while driving in 17 Fernley, Nevada, in 2021. (ECF No. 1.) Defendant argues that Plaintiff’s injuries 18 were not severe enough to justify the medical care that he received. (ECF No. 31 19 at 2.) Both sides expect the trial to focus on the severity of Plaintiff’s injuries from 20 the crash and whether medical treatment he received was necessary and 21 reasonable. The motions in limine focus entirely on these questions. The Court 22 addresses Plaintiff’s motion then Defendant’s. 23 II. DISCUSSION 24 A. Plaintiff’s Motion in Limine 25 Plaintiff’s omnibus motion includes five motions in limine. (ECF No. 28.) 26 Plaintiff seeks to preclude Defendant from questioning Plaintiff’s treatment 27 providers about medical liens except as a source of those providers’ bias in having 28 2 argument that Plaintiff’s counsel referred or recommended treatment to Plaintiff, 3 arguments about unreasonable billing practices employed by Plaintiff’s treatment 4 providers, and arguments that this is a “medical buildup” case. Plaintiff also 5 seeks to prevent Defendant’s medical expert from expressing conclusions about 6 the car crash that caused Plaintiff’s injuries. 7 1. Medical Liens 8 Plaintiff requests that the Court allow Defendant to put on evidence of 9 medical liens held by some of Plaintiff’s treating physicians only as a possible 10 source of bias for those treating physicians. (ECF No. 28 at 4–5.) Plaintiff seeks 11 to restrict Defendant from implying that Plaintiff could negotiate a lower price for 12 those bills or that Plaintiff’s other insurance coverage may cover the bills, as such 13 inferences would violate the collateral source rule. (Id. at 5 (citing Russo v. Matson 14 Nav. Co., 486 F.2d 1018, 1020 (9th Cir. 1973).) Defendant states that it plans to 15 ask about medical liens only to show possible bias of treating-physician 16 witnesses. (ECF No. 31 at 4–5.) At the calendar call, both parties agreed that 17 Defendant may ask medical providers about Plaintiff’s unpaid bills as a way to 18 show those providers’ interest in the outcome of the case, and Defendant stated 19 that it did not expect to ask questions beyond that. (ECF No. 35.) The Court 20 accordingly grants Plaintiff’s motion and notes that Defendant may use Plaintiff’s 21 medical liens to attack credibility or show bias based on those witnesses’ financial 22 interest in the outcome of the case and not to suggest that Plaintiff could 23 negotiate down his medical bills. 24 2. Plaintiff Referrals of Medical Providers 25 Plaintiff seeks to exclude evidence, argument, and inferences that Plaintiff’s 26 counsel referred or recommended treatment to Plaintiff. (ECF No. 28 at 5–6.) 27 Plaintiff argues that seeking communications between Plaintiff and Plaintiff’s 28 counsel would violate the attorney-client privilege. Plaintiff concedes that 2 substance of communications between Plaintiff and his counsel. (Id. at 6 (citing 3 Calvert v. Ellis, et al., No. 2:13-CV-00464-APG-NJK, 2016 WL 153044, at *4 (D. 4 Nev. Jan. 12, 2016).) Defendant responds that questions about when and why 5 Plaintiff retained counsel are not barred by the attorney-client privilege. See 6 Roberts v. Smith's Food & Drug Centers, Inc., No. 2:11-CV-1917-JCM-GWF, 2014 7 WL 12802901, at *4 (D. Nev. May 28, 2014) (permitting inquiry into “when and 8 why plaintiff sought legal representation . . . if [Defendant] can establish the 9 relevance of this evidence at trial”). 10 Defendant argues that Plaintiff may state whether Plaintiff’s counsel 11 referred him to medical providers because that is an underlying fact, not a 12 communication protected by the attorney-client privilege. (ECF No. 31 at 6 (citing 13 Upjohn v. United States, 449 U.S. 383, 395–96 (1981) (internal citation omitted) 14 (The answer to the question “[w]hat did you say or write to the attorney” is 15 privileged, while a relevant fact that has been incorporated into a communication 16 to an attorney is not.).) The Court holds that Defendant may ask Plaintiff or other 17 witnesses with personal knowledge whether a treatment-provider was referred to 18 Plaintiff by counsel, but Defendant may not seek to produce details about 19 Plaintiff’s confidential communications with counsel. Accordingly, the Court 20 denies Plaintiff’s motion while reminding Defendant to not seek or place into 21 evidence privileged communications between Plaintiff and Plaintiff’s counsel. 22 3. Unreasonable Billing Practices 23 Plaintiff seeks to limit Defendant from arguing or opining about Plaintiff’s 24 providers’ billing practices being unreasonable. (ECF No. 28 at 6–7.) Plaintiff 25 argues that Defendant did not provide an expert to establish that Plaintiff’s 26 providers’ billing was unreasonable. (Id.) Defendant points to reports and 27 testimony from defense experts in which those experts say that procedures were 28 unnecessary, arguing that unnecessary medical treatment is by definition 2 expert, which Plaintiff’s motion does not mention. (Id. at 8.) Defendant concedes 3 that their experts’ testimony is limited to their expertise, and the Court may 4 address any related objections during trial. (Id.) Accordingly, the Court denies 5 Plaintiff’s third motion. 6 4. Evidence Showing Medical Build Up 7 Plaintiff seeks to preclude Defendant from arguing, absent evidence, that 8 this case involves attorney-driven litigation or “medical buildup” because no 9 evidence exists to suggest this. (ECF No. 28 at 7.) Defendant responds that it has 10 probative evidence suggesting medical buildup. 11 Other courts in this district have held that a defendant may argue that a 12 plaintiff’s medical treatment is attorney driven as long as admissible evidence 13 exists to show it. See Roberts, 2014 WL 12802901 at *4; Peterson v. Evergreen 14 Trans, Inc., No. 3:19-CV-00442-ART-WGC, 2023 WL 1965691, at *3 (D. Nev. Feb. 15 13, 2023). 16 Defendant’s evidence of medical buildup consists of the following: a 17 declaration from Plaintiff’s orthopedic expert that many surgeons would not 18 provide Plaintiff with some of the back procedures he received based on his 19 diagnoses, statements from the Plaintiff that he went to certain providers at the 20 advice of his attorneys, and medical records from Plaintiff’s charts that record 21 Plaintiff’s counsel calling providers to ask, “what is going to be done next.” (ECF 22 No. 31 at 10.) At the calendar call, Plaintiff’s counsel conceded that Defendant 23 may make medical-buildup arguments based on these facts. Accordingly, the 24 Court denies Plaintiff’s motion but reminds Defendant that the Court may 25 entertain and grant specific objections relating to these topics during trial. 26 5. Appropriateness of Surgical Procedures 27 Plaintiff seeks to preclude Defendant’s expert witness Dr. Chavez from 28 testifying outside the scope of his expertise. (ECF No. 28 at 8.) Plaintiff points out 2 addiction. (Id.) Plaintiff further points out that Dr. Chavez’s expert report reaches 3 conclusions about the severity of the car accident that caused Plaintiff’s injuries, 4 the directness of the collision, the mechanics of airbag deployment in Plaintiff’s 5 vehicle, and injuries to other passengers in the vehicle. (Id.) Plaintiff seeks to 6 exclude all opinions in this report besides Section VII, which discusses pain 7 management medicine and the use of templates by Plaintiff’s treatment providers 8 for pain management, as outside the scope of Dr. Chavez’s expertise. (Id.) 9 At the calendar call, Defendant conceded that Dr. Chavez will not testify 10 about biomechanical issues, airbag deployment, or other technical matters 11 relating to the extent of injuries received in the accident. (ECF No. 35.) Defendant 12 stated that instead Dr. Chavez would testify to pain management, addiction as it 13 relates to pain management, and whether certain surgeries may cause or alleviate 14 pain. (Id.) Accordingly, the Court grants Plaintiff’s motion and bars Dr. Chavez 15 from testifying as to his conclusions regarding the nature of the automobile 16 accident but permits him to testify regarding medical treatment related to pain 17 management. 18 6. Cumulative Testimony 19 Plaintiff seeks to preclude Defendant’s two medical experts from providing 20 cumulative testimony. (ECF No. 28.) At the calendar call, both parties agreed that 21 they would avoid providing cumulative testimony and acknowledged that 22 attempts to elicit cumulative testimony would be objected to and disposed of 23 during trial. (ECF No. 35.) Accordingly, the Court grants this motion. 24 B. Defendant’s Motion in Limine 25 Defendant seeks to preclude Plaintiff’s treating doctors from testifying on 26 issues outside of the treatment that they provided to Plaintiff. (ECF No. 29 at 7.) 27 Plaintiff responded and stated at the calendar call that he does not expect to seek 28 testimony from these treatment providers outside of the treatment that they 1 || provided to Plaintiff and that these witnesses will basically serve as percipient 2 || witnesses. (ECF No. 30 at 3-5; ECF No. 35.) Accordingly, the Court grants 3 || Defendant’s motion. 4 IV. Conclusion 5 Accordingly, the Court grants Plaintiff’s first, fifth, and sixth motions as 6 || part of their omnibus motion in limine and denies all others. 7 The Court grants Defendant’s motion in limine as explained in the order 8 || above. 9 10 DATED THIS 7th day of April, 2025. 11 dan 12 2 4 / 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28