Motion 3- General Remedial Measures made in Limine in Car Accident Case
Plaintiffs' Motions in Limine 1-26 (General Motions)
________________________, Attorney for Plaintiff(s).
NOW COMES the Plaintiffs, DONALD and SUADA BAKUNAS, by and through their attorneys, PARENTE & NOREM, P.C., prior to the selection of the jury in this cause; and moves the court in limine to instruct the defendants, through their counsel, and their counsel, individually, as set forth below not to mention or address these issues, as the following topics are inadmissible to any issue involved in this lawsuit, plaintiffs move that the defendants, their witnesses and/or their attorneys be precluded from using any remark, statement, questions, innuendo or testimony of any nature which might inform the jury or cause the jury to infer those circumstances, facts or topics which, if made known to the jury in any of the manners aforesaid, would be highly improper and prejudicial, even if the Court were to sustain an objection, strike the matter, and/or instruct the jury not to give consideration to the same. These topics are as follows:
1. The circumstances under which the attorney for the plaintiff was employed or referred or the fees or the contingent contract under which the attorney has been retained. Bowman v. Ill. Central Railroad, 11 Ill.2d 186 (1957); Hall v. Chicago & Northwestern Railway Company, 5 Ill.2d 135 (1955).
2. That the Defendant not be allowed to argue in closing argument “that the plaintiff has asked for a greater amount of money than she actually expects to be awarded” or any similar argument. Kallas v. Lee, 22 Ill. App. 3d 496, 317 N.E.2d 704 (1974); See also, Carlasare v. Wilhelmi, 134 Ill. App. 3d 1, 479 N.E.2d 1071 (1st Dist. 1985).
3. That there have been collateral source payments of the Plaintiffs' expenses. Brumley v. Federal Barge Lines, Inc., 78 Ill. App. 3d 799, 396 N.E.2d 1333 (5th Dist. 1979); Bireline v. Espenscheid, 15 Ill. App. 3d 368, 304 N.E.2d 508 (3d Dist. 1973); Wolf v. Whipple, 112 Ill. App. 2d 255, 251 N.E.2d 77 (3d Dist. 1969).
4. That the recovery of the plaintiffs is not subject to income tax. Klawonn v. Mitchell, 105 Ill.2d 450 (1985); Cibrowski v. Phillip Dressier & Associates, 110 Ill. App. 3d 981 (1st Dist. 1982).
5. That Defendant be barred from making any indication of any kind that Defendant personally will have to pay any judgment entered in this case or any suggestion that the jury place itself in Defendant's financial circumstances. Koonce v. Pacilio, 1-98-4446.
6. Any comparison to other “infamous” cases, e.g., the McDonald's coffee spill case, or that the damage award should be tested for excessiveness against other such cases. This form of argument is improper and held to unfairly prejudice the Plaintiff. Simmons v. University of Chicago Hospital, 247 Ill. App. 3d 177, 617 N.E.2d 278 (1993); Northern Trust Co. v. County of Cook, 135 Ill. App. 3d 329, 481 N.E.2d 957 (1985).
7. Addressing any juror by name other than during Voir Dire. Skelton v. Chicago Transit Authority, 213 Ill. App. 3d 554, 158 Ill. Dec. 130 (1st Dist. 1991).
8. That Plaintiffs' counsel has withheld evidence from the jury which would have been an important factor in its determination of the case. See Skelton v. CTA, supra.
9. That Plaintiff or his counsel, lack integrity.
10. That Plaintiff is asking the jury to take away Defendant's money and property. Schultz v. Siddens, 191 Ill. App. 3d 622, 548 N.E.2d 87 (5th Dist. 1989).
11. That Defense counsel is being “shocked” by Plaintiffs' damage request. Baumgartner v. Ziessow, 169 Ill. App. 3d 647, 523 N.E.2d 1010 (1st Dist. 1988).
12. Comments as to the truth or credibility of evidence based upon the personal opinion or on personal knowledge of Defendant's attorney. Central Information Financial Serv. Ltd. v. First Nat'l Bank of Decatur, 128 Ill. App. 3d 1052, 471 N.E.2d 992 (4th Dist. 1984).
13. That the jurors place themselves in the shoes of the Defendant or Plaintiffs. Offutt v. Pennoyer Merchants Transfer Co., 36 Ill. App. 3d 194, 343 N.E.2d 665 (1st Dist. 1975).
14. Any comment that the Plaintiff's case, damage request, or verdict places a burden upon the public as a whole and/or is responsible for a high cost of living for the public. This type of argument was found improper as unfair prejudice to the Plaintiff that does not comport with the “fair leeway” to be provided an attorney during argument. Lukich v. Angeli, 31 Ill. App. 3d 20, 175 N.E.2d 796 (1961).
15. That personal injury or wrongful death awards are too high. The mention that personal injury or wrongful death awards are generally too high only prejudices the Plaintiffs' case. Making statements which are based upon the subjective opinions of defense counsel and are pure generalizations and do not serve to amplify or clarify any issues involved in this case.
16. That Defendant be barred from presenting any witness, opinion, expert, or otherwise, not previously listed in answers to interrogatories or otherwise disclosed pursuant to the rules including S. Ct. Rule 213.
17. That Defendant be barred from admitting into evidence any documents or materials not previously produced or identified in response to requests for production of documents.
18. That the plaintiff has had similar accidents as the one in issue to show a likelihood of plaintiffs to have an accident. Herget National Bank of Pekin v. Johnson, 21 Ill. App. 3d 1024, 316 N.E.2d 191 (3d Dist. 1974). There is no evidence in this case to support such a contention nor would it be admissible even if there were.
19. That the Defendant be barred from asking questions of the Plaintiff or any other witness whether the Plaintiff wore a seat belt. Clarkson v. Wright, 108 Ill.2d 129, 483 N.E.2d 268 (1985).
20. That Defendant be barred from making any reference regarding any prior or subsequent accidents of the plaintiff DONALD BAKUNAS as there is no competent medical testimony offered by defendant establishing any relationship between a prior accident or any subsequent accident and the injuries claimed by plaintiff in this cause as required by Illinois law. See Voykin v. Estate of DeBoer, 192 Ill.2d 49, 733 N.E.2d 1275 (2000); Cancino v. White, 297 Ill. App.3d 422, 697 N.E.2d 749 (1st Dist. 1998); Brown v. Baker, 284 Ill. App. 3d 401, 672 N.E.2d 69 (5th Dist. 1996). This specifically includes automobile accidents in 1966, 1967, 2003, and any worker's compensation claims. There is no competent medical testimony in this case that would support such allegation. In fact Defendant's own retained medical expert Dr. Skaletksy has testified as follows:
Q. Do you have any opinions that those specific automobile accidents of 1966, 1967, or 2003 have anything to do with Mr. Bakunas's lumbar back injuries or conditions that he had in the years 2006, 2007, Or 2008?
A. As I have no information about those specific accidents, I would have no opinions with regard to them.
(Dr. Skaletsky Discovery Dep. P. 49, Ex. “A”).
21. To prohibit testimony that some third-person or entity not a party to this suit may have caused or contributed to cause the injury involved herein or may have been at fault. See, Grimming v. Alton and Southern Railway, 204 Ill. App. 3d 961, 562 N.E.2d 1086, 1101 (5th Dist. 1990); Soderquest v. St. Charles Mall Assoc., 177 Ill. App. 3d 207, 532 N.E.2d 903 (2d Dist. 1988); Lipke v. Celotex Corp., 153 Ill. App. 3d 498, 505 N.E.2d 1213 (1st Dist. 1987). In Lipke the court held “one guilty of negligence cannot avoid responsibility merely because another person is guilty of negligence contributing to the same injury.” Id. at 509, 1221. In the case at bar there is no evidence to support such a contention against any other person or entity including the other drivers involved in the accident as Defendant Rodbro has admitted negligence for the subject occurrence. (Ex. “B”).
22. To prohibit any statement or allegation by the defendants or their counsel that the plaintiffs were contributorily or comparatively negligent for the subject occurrence. Comparative fault is an affirmative defense which must be plead and proven. Coney v. J.L.G. Industries, 97 Ill.2d 197 (1983). Defendants have admitted Mr. BAKUNAS is free from contributory negligence. (Ex. “B”).
23. That Defendant or Defendant's counsel be barred from making any reference to the existence or presence of Plaintiffs' jury consultant who will be present during Voir Dire as it would only function to unduly prejudice the jury against plaintiffs' case and serves no legitimate evidentiary purpose as she will not be speaking to the jury.
24. To prohibit and exclude all witnesses during the trial proceedings except when said witnesses shall testify.
25. That Plaintiff's Counsel be granted leave to use exhibits in his opening and closing statements.
26. That Defendant or Defendant's counsel be bared from saying defendant is “sorry” or is “apologizing” for causing the accident or the injuries sustained by Mr. Bakunas as it would unfairly engender sympathy for the Defendant's admitted negligent conduct.
WHEREFORE, the Plaintiffs, respectfully requests the Court to instruct the defendant, through her counsel, and her counsel, individually, not to mention, refer to, interrogate concerning, voluntarily answer or attempt to convey before the jury at any time during these proceedings in any manner either directly or indirectly, the subject matters as stated above, and further to individually, not to make any reference or inference to the fact that this motion has been filed, argued or ruled upon by the Court, and further, that said counsel be instructed to warn and caution each and every witness appearing in this litigation to strictly comply with the ruling of this Court.
Attorney for Plaintiff(s)