STATE OF ___________ SUPERIOR COURT

COUNTY OF ___________

MARY JOHNSON )
)
v. ) C.A. No. ________________
)
DAVID SMITH )

WEST PALM BEACH CAR ACCIDENT PLAINTIFF'S MOTION IN LIMINE TO BAR DEFENSE INTRODUCTION OF EVIDENCE CONCERNING PRIOR INJURY

On (insert date of incident) West Palm Beach Car Accident Plaintiff was injured in a rear-end collision when her vehicle was struck by a vehicle owned and operated by the Defendant. West Palm Beach Car Accident Plaintiff sustained serious injury to her neck and spine, and was diagnosed as having a herniated disc at L4-L5. West Palm Beach Car Accident Plaintiff has incurred months of medical treatment and continues to be disabled from that injury.

In the course of discovery, Defendant asked an interrogatory concerning West Palm Beach Car Accident Plaintiff's prior health history and in response to that interrogatory, West Palm Beach Car Accident Plaintiff disclosed that nine years earlier she had suffered a job-related injury and received Workers' Compensation for a back strain. West Palm Beach Car Accident Plaintiff was not hospitalized for the injury and was out of work for 11 days. over nine years ago, West Palm Beach Car Accident Plaintiff's then treating physicians discharged her, noted in their records that the injury had fully and properly healed, and West Palm Beach Car Accident Plaintiff resumed work without incident for over nine years.

In his Pretrial Memorandum, Defendant has disclosed that he intends on offering evidence of the West Palm Beach Car Accident Plaintiff's prior work-related injury over nine years ago in an effort to "impeach the treating physician's diagnosis that the West Palm Beach Car Accident Plaintiff has suffered a herniated disc as a result of this accident." West Palm Beach Car Accident Plaintiff requests that this Court rule in limine that the records, and any testimony concerning the West Palm Beach Car Accident Plaintiff's prior health history as it relates to a work-related injury and a sprained back over nine years ago, are not relevant. Alternatively, even if relevant, any relevance is substantially outweighed by the risk of unfair prejudice, confusion and misleading the jury.

First, the evidence of the prior injury is not relevant. The applicable Rules of Evidence provide that relevant evidence is evidence that has a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Here, evidence of a prior injury that had fully healed over nine years ago; that had not re-manifested itself; and for which West Palm Beach Car Accident Plaintiff experienced no discomfort, disability or pain, is not relevant in determining whether the West Palm Beach Car Accident Plaintiff suffered a herniated disc in the subject incident with Defendant.

Accordingly, the introduction of the evidence concerning the prior injury is not relevant as it would not have any tendency to make the existence of any fact, including whether the West Palm Beach Car Accident Plaintiff's herniation at L4-L5 occurred as a result of this incident, more or less probable than it would be without the evidence. Rather, the determination of whether the herniation at L4-L5 was caused by this incident will be proved, or disproved, through the introduction of diagnostic and testing studies, the introduction of physician and health care provider records, and the expert opinion of treating and consulting physicians. None of the records in any way suggests or infers that the prior injury had any bearing on the diagnosis of the herniation at L4-L5 and the causation opinion given in respect to this incident.

Second, not even the impartial medical expert hired by the Defendant has in any way suggested that the prior injury bears any relationship, or is any way relevant, to the determination of whether the West Palm Beach Car Accident Plaintiff currently suffers from a herniation at L4-L5 which was caused by the Defendant's driving conduct.

Alternatively, even if this Court determines that in some manner the evidence of the prior injury is relevant, its relevance is clearly and substantially outweighed by its danger of unfair prejudice, confusion of the issues or misleading the jury. Here, the defense will attempt unfairly to prejudice the jury and confuse the issues by attempting to argue that an injury that occurred over nine years ago that had fully healed is somehow the cause of the West Palm Beach Car Accident Plaintiff's current complaints and injuries. There is no medical testimony or foundation for that proffered testimony and, accordingly, even if in some manner it could be deemed relevant, its probative value is extremely limited and its substantial for unfair prejudice and confusion is real.

Accordingly, this Court should rule in limine that any testimony concerning the prior injury of nine years ago is irrelevant under Rule 401, or, even if relevant, is barred under Rule 403 on the grounds of prejudice, confusion and the potential to mislead the jury.

WEST PALM BEACH CAR ACCIDENT PLAINTIFF By her attorneys

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