DEFENDANT'S MOTION IN LIMINE

DEFENDANT, XX, M.D., makes this motion in limine, requesting the court to order opposing counsel, and through opposing counsel all witnesses called on behalf of the opposing party, to refrain from directly or indirectly inquiring of, testifying to, mentioning, or alluding to, or in any other manner referring to, by word, act, deed, or innuendo, in the presence of the jury panel or the jury, as follows:

1. PLAINTIFF, opposing counsel, and all of their witnesses should be restrained from making any reference that this motion has been filed, granted, or denied and from stating that the court has prevented, or that this DEFENDANT has attempted to prevent opposing counsel from mentioning or discussing certain matters before the jury. Burdick v. York Oil Co., 364 S.W.2d 766 (Tex. Civ. App.--San Antonio 1963, writ ref'd n.r.e.); TEIA v. Phillips, 255 S.W.2d 364 (Tex. Civ. App.--Eastland 1953, writ ref'd n.r.e.).

2. PLAINTIFF, opposing counsel, and all of their witnesses should be restrained from making any reference that this DEFENDANT may or may not be protected in any manner by professional liability insurance, or from posing any question to the jury panel or any member thereof if he or she would make an award "regardless of who pays" or the like, as such comments could only be prejudicial to the defendant as they clearly inject insurance into the proceedings; such evidence would be highly prejudicial and irrelevant to the material issues of this case and liability insurance is specifically not admissible in a personal injury case. Rule 411, Tex. R. Civ. Evid.; Griffith v. Castell, 313 S.W.2d 149 (Tex. Civ. App.--Houston 1958, writ ref'd n.r.e.); Hurley v. McMillan, 268 S.W.2d 229 (Tex. Civ. App.--Galveston 1954, writ ref'd n.r.e.).

3. PLAINTIFF, opposing counsel, and all of their witnesses should be restrained from making any reference to any pretrial matter in this cause, including but not limited to, occurrences during pre-trial hearings, the outcome of any hearings, the conduct of counsel or witnesses, and the comments or rulings of the court, for the reasons that such matters are wholly irrelevant to the jury's fact-finding mission, and would only be injected to attempt to prejudice the jury improperly against DEFENDANT. The reference to same would also tend to confuse the jurors as to their role.

4. PLAINTIFF, opposing counsel, and all of their witnesses should be restrained from making any reference to any prior claims, grievances, investigations, citations, reprimands, or lawsuits against DEFENDANT, by any public or private agency, unless it can first be shown, outside the presence of the jury, that the acts or omissions giving rise to such matters were: (a) proven at trial; and (b) so similar and repetitive to the facts of the case at hand that they prove that DEFENDANT acted in accordance with a particular habit in that regard. Rule 404(b), Tex. R. Civ. Evid. ("Evidence of other wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith....). See also First Southwest Lloyd's Ins. Co. v. MacDowell,769 S.W.2d 954, 956 (Tex. App.- Texarkana 1989, writ denied); Tex. Farm Bur. Mut. Ins. Co. v. Baker, 596 S.W.2d 639, 643 (Tex. Civ. App. - Tyler 1980, writ ref'd n.r.e.). The admission of any other claims, lawsuits, grievances, investigations, or the like would not reasonably be calculated to be probative of any issue in dispute and would unfairly prejudice DEFENDANT.

5. PLAINTIFF, opposing counsel, and all of their witnesses should be restrained from making any reference that this defendant asserted claims of privilege during discovery. Claims of privilege are not admissible as evidence. See Tex. R. Civ. Evid. 513(a) and (b).

6. PLAINTIFF, opposing counsel, and all of their witnesses should be restrained from making any reference to anticipated testimony, ex parte statements, or reports of any witness who is absent, unavailable, or otherwise not called to testify at trial of this cause.

7. PLAINTIFF, opposing counsel, and all of their witnesses should be restrained from offering any photographs which depict the plaintiff's alleged injuries. The probative value, of such photographs would be substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by consideration of undue delay, and needless presentation of cumulative evidence. Tex. R. Evid. 403. Such photographs are merely calculated to arouse the sympathy, prejudice, or passion of the jury, and do not serve to illustrate the disputed issues or aid the jury in understanding the case.

8. PLAINTIFF, opposing counsel, and all of their witnesses should be restrained from offering any videotape excerpts depicting the plaintiff's alleged injuries, specifically the colostomy. The probative value, of such testimony would be substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by consideration of undue delay, and needless presentation of cumulative evidence. Tex. R. Evid. 403. The use of the videotape excerpts is merely calculated to arouse the sympathy, prejudice, or passion of the jury, and do not serve to illustrate the disputed issues or aid the jury in understanding the case.

Respectfully submitted,