Ducheneaux v. Lower Yellowstone Rural Elec. Ass'n

EDWARD DUCHENEAUX and MAE KELLER,as Co-Personal Representatives of the ESTATEOF PAUL DUCHENEAUX, DECEASED, Plaintiffs, v. LOWER YELLOWSTONE RURAL ELECTRIC ASSOCIATION, INC.,a Montana Corporation d/b/aLower Yellowstone Rural Electric Cooperative, et al., Defendants.

CV 19-6-BLG-TJC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BILLINGS DIVISION

May 25, 2021

ORDER

A Motion Hearing was held in this matter on May 5, 2021. The Court heard oral argument on Defendant Elliot Equipment Company's Motion in Limine Under Rule 702 (Doc. 127); Elliott's Motion in Limine Omnibus (Doc. 130); Elliott's Motion in Limine Daubert - Ellsworth (Doc. 133); Elliott's Motion in Limine Daubert - Bezzant (Doc. 136); Elliott's Motion in Limine Daubert - Medlin (Doc. 139); Plaintiffs' Motion in Limine 6-13 (Doc. 142); Plaintiffs' Motion in Limine 14-17 (Doc. 145); Plaintiffs' Motion to Strike LYREC Animation/Video and Objection to Use (Doc. 148); Plaintiffs' Motion to Strike LYREC's Affirmative Defenses (Doc. 193); and Elliott's Motion to Strike Plaintiffs' March 11, 2021 Expert Disclosures (Doc. 219).

I. MOTIONS IN LIMINE

Motions in limine are procedural devices that may be used to exclude anticipated inadmissible or prejudicial evidence before it is actually offered at trial. Luce v. United States, 469 U.S. 38, 40 n.2 (1984). Motions in limine, however, do "not lie to exclude broad categories of evidence." Acad. of Motion Picture Arts & Scis. v. Godaddy.com, Inc., 2015 WL 12697750, *2 (C.D. Cal. Apr. 10, 2015). Rather, motions in limine must specifically "identify the evidence at issue and state with specificity why such evidence is inadmissible." Colton Crane Co., LLC v. Terex Cranes Wilmington, Inc., 2010 WL 2035800, *1 (C.D. Cal. May 19, 2010). See also Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975) ("Orders in limine which exclude broad categories of evidence should rarely be employed. A better practice is to deal with questions of admissibility of evidence as they arise.").

"A party cannot use a motion in limine to sterilize the other party's presentation of the case." Johnson v. Gen. Mills Inc., 2012 WL 13015023, *1 (C.D. Cal. May 7, 2012). Motions in limine also should not be used to resolve factual disputes or weigh evidence. C & E Services, Inc., v. Ashland Inc., 539 F.Supp.2d 316, 323 (D. D.C. 2008). To exclude evidence on a motion in limine, the evidence must be "clearly inadmissible on all potential grounds." Ind. Ins. Co. v. Gen. Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004). "Unlessevidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context." Hawthorne Partners v. AT & T Tech, Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993). Although rulings on motions in limine may save "time, costs, effort and preparation, a court is almost always better situated during the actual trial to assess the value and utility of evidence." Wilkins v. K-Mart Corp., 487 F. Supp. 2d 1216, 1219 (D. Kan. 2007).

Rulings on motions in limine are provisional and "are not binding on the trial judge [who] may always change his mind during the course of a trial." Ohler v. United States, 529 U.S. 753, 758 n.3 (2000); accord Luce v. United States, 469 U.S. 38, 41 (1984). Accordingly, the Court may readdress any of the parties' motions in limine as necessary at trial.

A. Elliott's Motion in Limine Under Rule 702 (Doc. 127)

Elliott broadly seeks to exclude any opinions that require expert testimony from two lay witnesses - Steve Schlosser, the owner-operator of Midwest Power and Jason Brothen, the CEO of Lower Yellowstone Rural Electric Association, Inc. (LYREC). (Doc. 127.) For the reasons stated on the record, Elliot's Motion in Limine Under Rule 702 is DENIED without prejudice. Elliott may object to specific evidence at trial, and the Court will determine the admissibility of such evidence in light of the factual context in which it is offered.

B. Elliott's Omnibus Motion in Limine (Doc. 130)

a. Motion in Limine A

Elliott broadly seeks to exclude any evidence of hypothetical post-accident remedial measures Elliot could have taken in response to this lawsuit. For the reasons stated at the hearing, the Court GRANTS in part and DENIES in part Elliott's Motion in Limine A. The Court finds the motion should be granted with respect to Dr. Medlin's opinion that Elliott should issue a recall or "needs to verify that all boom truck assemblies in the marketplace do not have similar unsafe designs, unauthorized weldments, modified fasteners, and were fabricated with improper practices." (Doc. 131 at 5.) In all other respects, Motion in Limine A is denied without prejudice.

b. Motions in Limine B-G, and J

For the reasons stated on the record, the Court DENIES without prejudice the following Motions in Limine:

B. Any statement concerning the "trial strategy" or the "real strategy" of Elliott's counsel;

C. Prohibiting Plaintiffs or their counsel from offering any evidence by their retained expert(s) that is outside the scope of the written opinion produced during discovery;

D. Prohibiting Plaintiffs or LYREC from offering any exhibits or evidence not produced or identified in discovery with the exception of information to be used for impeachment purposes only;

E. Any statement that Plaintiff had "given a number of years of his life" to his employer or that Plaintiff had "given the best years of his life" to working for his employer;F. Any references to Plaintiffs having no other remedy or no other way to be compensated;

G. Any questions by Plaintiff's counsel or testimony by a witness pertaining to a witness's opinion as to whether the witness believes another witness was or was not truthful;

J. Evidence or argument related to discovery disputes that came up during the course of litigation including, claims that the documents were not produced, documents not ultimately required to be produced, additional tests that could have been performed but were not agreed upon by the parties, and other "legal" disputes, motions, or discovery during the course of the lawsuit.

c. Motions in Limine H-I, K-S

Plaintiffs and LYREC did not oppose 11 of the Motions in Limine. Accordingly, Elliott's Motion in Limine is GRANTED with respect to the following:

H. References to any insurance policy or insurance payments on policies held by Elliott.

I. Settlement negotiations which have taken place at any time between Elliott and the Plaintiffs concerning the accident at issue in this case.

K. Evidence or argument by any party, witness, or counsel in any way referring to the probable testimony of a witness who is absent, unavailable, or not called to testify in this case;

L. Any reference to jury verdicts in other parts of the United States in civil or criminal actions;

M. Any references or statements regarding what type of law counsel practices, including what type of clients or specific clients that counsel has represented;

N. Any evidence or argument evoking anti-corporate or regional prejudice, such as characterizing Defendants as having neither conscience nor soul, insinuating or suggesting a witness is not credible because of that person resides outside of Montana or is an employee of either Defendant, orreferencing that Defendants or their counsel are not from Montana;

O. Any reference to the current job market, economic climate, or unemployment rates;

P. Any references to the financial status of Elliott or to the financial disparity between the parties;

Q. Any argument, comment, or suggestion that the jurors place themselves in a position of either Plaintiffs or the Decedent in assessing damages;

R. Any evidence or argument relating to damages allegedly sustained by third parties as a result of Defendant's alleged conduct;

S. Evidence or argument related to any alleged "immoral" act by Defendants or relating to any person or party's religious beliefs.

In sum, Elliott's Omnibus Motion in Limine (Doc. 130) is GRANTED in part and DENIED in part as to Motion in Limine A; GRANTED as to Motions in Limine H, I, K, L, M, N, O, P, Q, R, and S; and DENIED without prejudice as to Motions in Limine B, C, D, E, F, G, and J.

C. Elliott's Motions in Limine Daubert: Ellsworth (Doc. 133), Bezzant (Doc. 136) and Medlin (Doc. 139)

Federal Rule of Evidence 702 controls the admissibility of expert opinion testimony. It provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed.R.Evid. 702.

"For expert testimony to be admissible under Rule 702, it must satisfy three basic requirements: (1) the expert witness must be qualified; (2) the testimony must be reliable, and; (3) the testimony must be relevant." Johnson v. Am. Honda Motor Co. Inc., 923 F.Supp.3d 1269, 1272 (D. Mont. 2013). The trial court acts as a gatekeeper by excluding evidence that does not meet standards of relevance and reliability. Id. The proponent of the testimony bears the burden of establishing by a preponderance of the evidence that the testimony is admissible under Rule 702. Lust v. Merrell Dow Pharm. Inc., 89 F.3d 594, 598 (9th Cir. 1996).

Expert opinion testimony "is reliable if the knowledge underlying it has a reliable basis in the knowledge and experience of the relevant discipline." Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010). Assessing reliability requires the Court to consider whether the testimony reflects "scientific knowledge," whether the expert's findings were "derived by the scientific...