United States District Court, D. North Dakota
ORDER RE DEFENDANTS' MOTIONS IN LIMINE
Charles S. Miller, Jr., Magistrate Judge
the court are several motions in limine brought by defendants
at Doc. No. 87. The following are the court's rulings:
Motion to exclude testimony from plaintiff's experts John
Hughett and Donald Pellow that requires speculation, ipse
dixit, or legal conclusions.
motion is DENIED to the extent that some of
what the two experts may opine on appears to be relevant and
likely admissible as expert testimony. That being said, the
court will not allow any expert (whether it be
plaintiff's or defendants') to speculate or give what
amounts to simply legal conclusions. Further, the court will
not permit the experts to opine on what happened when expert
testimony on the subject is not required. For example, it is
doubtful the court will allow an expert to offer an opinion
on who instructed Decker to enter the substructure of Rig 20
based on that expert having read accounts of other fact
witnesses. The jurors are fully capable of deciding this
disputed fact based on the evidence. On the other hand, there
may be instances in which expert testimony may be helpful to
the jury in sorting out what likely happened. For example, if
an expert offers an opinion that the kelly hose likely had to
have been under pressure for it to have struck plaintiff in
the manner he described and that is based on engineering
principles and or familiarity with kelly hoses, this may be
of assistance to the jury and admissible, keeping in mind the
jury has the right to believe or not believe plaintiff's
account of the accident and that other experts may disagree.
point, the court will not parse every question that was posed
at the depositions of the experts or all of the opinions
contained in their reports since not all may be asked or
offered at trial. Also, the subject matter may be presented
in a manner that makes some of the complained about testimony
not objectionable. In short, the court will address the
objections to the expert testimony as it is presented.
Motion to prohibit plaintiff from presenting evidence that
I.E. Miller and TForce are no longer in business or no longer
motion is GRANTED on Fed.R.Evid. 402 grounds
to the extent that neither party may mention or offer
evidence that I.E. Miller and TForce are either still in
business or no longer in business unless the matter is first
raised with the court outside the presence of the jury.
Motion to exclude mention that the Social Security
Administration has determined plaintiff to be disabled.
motion, which is unopposed, is GRANTED on
Fed.R.Evid. 402 grounds. Neither party may make mention or
offer evidence of the fact that plaintiff is receiving Social
Security disability benefits or that the Social Security
Administration has determined that plaintiff is disabled
without first seeking the approval of the court outside the
presence of the jury.
Motion to exclude all evidence of amounts billed by
plaintiff's medical care providers.
motion is DENIED. In Klein v.
Harper, 186 N.W.2d 426 (N.D. 1971), the North Dakota
Supreme Court held that an injured plaintiff can recover the
reasonable value of the medical services provided and is not
limited strictly to what is paid. Id. at 432.
Rather, under Klein, it appears that what is billed
and what is paid are both relevant evidence of the reasonable
value of the services. Id. A number of state
district courts have read Klein in the same fashion.
E.g., Feist v. Kaufman Enterprises, Inc.,
No. 51-20130-cv-011061, Order dated August 20, 2015 (N.D.
Dist. Ct., North Central Jud. Dist.) (Hagar, D.J.,
unpublished); Rodakowski v. Meduna, No.
45-2013-cv-00104, Order dated Nov. 12, 2013 (N.D. Dist. Ct.,
Southwest Jud. Dist.) (Greenwood, D.J., unpublished);
Coin v. Baskerville, No. 30-2011-cv-00646, Order
dated October 21, 2012 (N.D. Dist. Ct., South Central Jud.
Dist.) (Hagerty, D.J., unpublished). Further, this reading is
consistent with the North Dakota Supreme Court's decision
in South v. Nat'l R.R. Passenger Corp., 290
N.W.2d 819, 841 (N.D. 1980) where the court held that the
plaintiff could recover the reasonable value of the medical
care afforded, even if it was provided gratuitously and not
paid for by the plaintiff.
IS SO ORDERED.