In Moritz v. Horace Mann Prop. & Cas. Ins. Co., plaintiff sued to recover underinsured motorist benefits following a car accident.  Prior to trial, defendant filed a motion to preclude plaintiff from entering into evidence a life care plan that had been belatedly produced violating the local rules regarding expert disclosure.  Plaintiff filed a motion to preclude defendant’s medical expert from opining on plaintiff’s credibility, stating that credibility determinations should be left to the jury.

Regarding defendant’s motion, the court noted that plaintiff had not acted in bad faith in producing the late report.  Further, defendant had an opportunity to cure any prejudice since the report was produced four months prior to trial.  Moreover, defendant, in fact, had cured any potential prejudice by obtaining a supplemental expert report addressing the issues raised in the life care plan.  As such, based on the lack of prejudice suffered by defendant as compared to the importance of the expert report, defendant’s motion was denied.

Regarding plaintiff’s motion, defendant’s expert report noted that during his examination plaintiff denied any pre-accident treatment, which according to the expert was “patently untrue.”  The court concluded that defendant’s expert could testify regarding the statements plaintiff made to him regarding her lack of pre-accident treatment, but he could not opine on the credibility of these statements.  Consequently, plaintiff’s motion was granted.

Typically motions in limine are discretionary, and can turn on the way they are presented to the specific judge assigned.  A good lesson to take away is that for a report to be precluded in its entirety, prejudice and bad faith should be alleged.

Thanks to Colleen Hayes for her contribution to this post.