Kirksey v. Schindler Elevator Corporation et al

Filing 143

ORDER granting in part and denying in part 128 Motion in Limine. Signed by Chief Judge William H. Steele on 12/6/2016. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TYRA KIRKSEY,
Plaintiff,
v.
SCHINDLER ELEVATOR
CORPORATION, et al.,
Defendants.

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CIVIL ACTION 15-0115-WS-N

ORDER
This matter comes before the Court on Defendants’ 25-part Motion in Limine (doc. 128).
The Motion has been subject to extensive briefing, and is now ripe for disposition.1 Each subissue identified in the Motion in Limine will be addressed sequentially.
I.

Motion to Exclude “Other Falls” Evidence.
As the first component of their Motion in Limine, defendants request that evidence of

prior escalator falls be excluded “unless Plaintiff carries her burden of demonstrating that the
prior incidents are substantially similar to the instant case and that all of the other requirements
for admissibility, including Rule 403, are satisfied.” (Doc. 128, at 2.) A hotly contested issue in
this case is whether (and when) defendants knew about the allegedly defective condition of the
escalator in the Sears store in Mobile, Alabama, the danger of falls over the side of the
escalator’s handrail and into the open atrium, and the availability of alternative guarding
solutions. On this point, plaintiff, Tyra Kirksey, intends to present evidence of previous falls
1

Both sides have exceeded, without prior leave of court, the page limitations on
briefing established by Civil L.R. 7(e), inasmuch as plaintiff’s principal brief is 40 pages long
and defendants’ reply weighs in at 34 pages. Additionally, plaintiff attached more than 150
pages of exhibits to her principal brief without furnishing a courtesy copy to the Court, as
required by Civil L.R. 7(g) and Paragraph 14(c) of the Rule 16(b) Scheduling Order (doc. 31).
Nonetheless, the Court in its discretion will consider and resolve the Motion in Limine in its
present form.

from escalators at other Sears stores and escalators maintained by Schindler in order to show that
defendants were on notice of “an inherent issue with relying solely on handrails for protection
against falls from escalators installed in atrium settings.” (Doc. 133, at 4.) Defendants oppose
the introduction of such evidence.
Both sides agree that admissibility of “other falls” evidence is evaluated using the
“substantial similarity” doctrine. (Doc. 128, at 2; doc. 133, at 4.) It is well settled that “[t]his
evidentiary doctrine applies when one party seeks to admit prior accidents or occurrences
involving the opposing party, in order to show, for example notice, magnitude of the danger
involved, the party’s ability to correct a known defect, the lack of safety for intended uses,
strength of a product, the standard of care, and causation.” Heath v. Suzuki Motor Corp., 126
F.3d 1391, 1396 (11th Cir. 1997) (citation, footnote, and internal marks omitted). The two
prongs of the “substantial similarity” doctrine have been summarized as follows:
“Because of the potential prejudicial impact of prior accidents, courts have
developed limitations governing their admissibility. First, conditions substantially
similar to the occurrence in question must have caused the prior accident. …
Second, the prior accident must not have occurred too remote in time. …
Determining the remoteness of evidence is within the trial judge’s discretion.”
Jones v. Otis Elevator Co., 861 F.2d 655, 661-62 (11th Cir. 1988) (citations omitted). Thus,
“before evidence of prior accidents or occurrences is admitted into evidence, the proponent of
such evidence must show that conditions substantially similar to the occurrence cause[d] the
prior accidents.” Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1287 (11th Cir. 2015) (citation
omitted). In addition to the substantial similarity and remoteness inquiries, “[t]he admission of
such evidence is also subject to the reasonable discretion of the trial court … as to whether the
prejudice or confusion of issues which may probably result from such admission is
disproportionate to the value of the evidence.” Heath, 126 F.3d at 1396 n.13 (citation omitted).
To be clear, “substantial similarity” does not require that the prior occurrence be an
identical match to the accident that forms the basis of the plaintiff’s claims; to the contrary, the
inquiry is flexible and context-specific. See, e.g., Sorrels, 796 F.3d at 1287 (“The ‘substantial
similarity’ doctrine does not require identical circumstances, and allows for some play in the
joints depending on the scenario presented and the desired use of the evidence.”); Borden, Inc. v.
Florida East Coast Ry. Co., 772 F.2d 750, 755 (11th Cir. 1985) (“The conditions surrounding the
two incidents were similar enough to allow the jury to draw a reasonable inference concerning
FEC’s ability to foresee this type of vandalism and its results. … Although the results of the two
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incidents were dissimilar, this difference is insubstantial in considering the issue of the
foreseeability of this type of vandalism.”). Thus, the evidentiary question at the heart of
Kirksey’s attempt to introduce evidence of other escalator falls is not whether those “other falls”
were identical in all respects to the one that resulted in the death of 11-year old Jakobe Kirksey at
the Sears escalator at Bel Air Mall in Mobile, Alabama on June 14, 2014; rather, the key inquiry
is whether those “other falls” were similar to Jakobe’s in the ways that matter, given the
evidentiary purposes for which plaintiff is offering that evidence (namely, to show that
defendants were on notice of the inadequacy of handrails to protect against falls from escalators
in atrium settings, and the foreseeability that catastrophic injuries might result).
Defendants’ Motion in Limine identifies the following “other falls” from escalators at
Sears stores prior to June 14, 2014: (i) a 2005 incident in Hawaii in which a small child fell over
the side of an escalator; (ii) a 2008 incident in California in which a man with Lou Gehrig’s
disease lost his balance and slipped at the top of the escalator; (iii) a 2013 incident in Chicago in
which a teenage girl leaning over an escalator handrail fell to the level below; (iv) a 2011
incident in Massachusetts in which a four-year old boy tried to ride the escalator from the outside
of the handrail but was unable to hold his weight; and (v) escalator falls from Schindlermaintained equipment (evidently not at Sears stores) in Indiana, Atlantic City and Philadelphia.
(Doc. 128, at 3.)
With respect to each of these “other falls,” defendants posit that “strike one against
substantial similarity” is that “none of the prior incidents occurred at the Sears store in Mobile.”
(Id.) Insofar as defendants would suggest that the different geographic location of the “other
falls” evidence suffices to flunk the “substantial similarity” test, the Court cannot agree. Many
factors play into the “substantial similarity” analysis, and escalator falls in other locations could
place defendants on notice of allegedly defective conditions, risks of falls, and the need for
additional guarding at the Mobile store just as easily as falls at the Mobile store could. Thus, the
whereabouts of the “other falls” evidence identified by plaintiff is neither dispositive nor even
particularly significant in the “substantial similarity” inquiry here.
Next, defendants propose a laundry list of criteria that they say must be aligned before the
“other falls” evidence may be deemed “substantially similar” to Jakobe’s fall, so as to be
admissible under the Federal Rules of Evidence. In particular, defendants cite considerations of
escalator “configuration, setting, safety measures, and alleged defect,” as well as “accident

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victims’ personal characteristics and their pre-fall behavior.” (Doc. 128, at 4.) The Court
declines to adopt such an arbitrary, mandatory checklist of factors, given the purposes for which
Kirksey seeks to admit such evidence (namely, to show that defendants were on notice of
escalator defect, the danger of catastrophic falls over the side of escalators, and the need for
additional guarding beyond the handrail). Rather, the Court concurs with plaintiff’s assessment
that the appropriate criteria for purposes of the substantial similarity test in this case are whether
the prior incidents occurred “on an escalator, in an[] atrium or open-sided installation without
guarding, and the fall of a victim over the side of the escalator handrail.” (Doc. 133, at 5.)
Defendants have advanced no meaningful argument or showing to explain why the other factors
they propose are germane to the “substantial similarity” inquiry given the particular purposes for
which plaintiff seeks to introduce such evidence here.2
Nor have defendants – who are, after all, movants in the Motion in Limine – come
forward with specific facts or evidence as to most of the proposed “other falls” that might permit
a finding as to “substantial similarity” vel non at this time. If, after conducting extensive and
wide-ranging discovery and preparing their case for trial, defendants possess some reason to
believe that a particular “other fall” incident designated by Kirksey flunks the substantial
similarity test, then it is incumbent on them to explain why in their Motion in Limine; otherwise,
the Motion serves no meaningful purpose in resolving any evidentiary dispute that may exist.

2

For example, defendants posit that “other falls” evidence could not satisfy the
substantially similar test unless those other incidents took place on escalators “configured in a
crisscrossing pattern.” (Doc. 128, at 4.) But defendants offer no explanation – and, frankly, it
makes little sense – for their assertion that a customer falling over the side of escalator handrail
at another Sears store in an atrium or open-sided setting could not have placed Sears on notice of
the danger of customer falls over the side of escalator handrails in the atrium setting at its Mobile
store unless the other store utilized crisscrossing escalators. This detail is simply not significant
to the “substantial similarity” inquiry here. Likewise, contrary to defendants’ conclusory
assertion, the age or personal characteristics of the other victims would not necessarily deprive
Sears of notice of the risks of falls at the Mobile store if those victims were dissimilar in age and
other characteristics to Jakobe Kirksey. Irrespective of whether the “other fall” involved an
elderly person, an intoxicated person, a teenager, or a child playing on the handrail, a finder of
fact in this case could reasonably, properly conclude that such an occurrence placed Sears on
notice of the need to do more to protect customers at its Mobile store from falling over the side
of the escalator handrails.

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Instead, their Motion in Limine trades predominantly in unhelpful generalities questioning what
“Plaintiff can prove outside the presence of the jury.” (Doc. 128, at 7.)
That said, defendants do make a compelling argument for exclusion of evidence of one
particular “other fall,” to-wit: the 2011 incident at a Sears escalator in Massachusetts. The facts
of that fall, as represented by defendants, involved “a four-year-old who purposefully grabbed
the outside of the handrail and rode down on the outside [of] the escalator well.” (Doc. 128, at
4.) Plaintiff concedes that the decedent in the Massachusetts incident “did not fall over an
escalator handrail,” but instead “fell through the gap between the escalator handrail and the
building fabric.” (Doc. 133, at 8.) Nothing about that incident could have placed Sears on notice
of the dangers of people falling over escalator handrails in open-atrium or open-sided settings
because, again, the victim did not fall over an escalator handrail at all; therefore, the 2011
Massachusetts incident is not substantially similar to the accident that resulted in Jakobe
Kirksey’s death in June 2014.3 Evidence of that “other fall” is properly excluded at trial.
Defendants also seek exclusion of the “other falls” evidence of the incident in Hawaii in
2005 in which a small child fell over the escalator handrail. Defendants contend that this
3

In arguing for admissibility, plaintiff does not attempt to show that the
Massachusetts fall passes muster under the “substantial similarity” test governing admissibility
of “other falls” evidence. Instead, plaintiff theorizes that the Massachusetts fall evidence is
relevant because it demonstrates “Schindler’s ability to react and respond to falls by inspecting
escalators and executing remedial measures,” inasmuch as Schindler “sent out a ‘product letter’
to a wide variety of divisions and employees” after the Massachusetts fall and launched “an
immediate nationwide campaign to identify and remedy any similar problems.” (Doc. 133, at 8.)
Plaintiff contends that such facts are relevant here because “Schindler should long ago have
undertaken such a remedial campaign involving the risk of falls over escalator handrails.” (Id.)
However, no such failure-to-remediate claim is asserted against Schindler in this action. This
evidence is inadmissible insofar as plaintiff seeks to use it in furtherance of a cause of action that
has not been joined for trial. The same goes for plaintiff’s arguments that the Massachusetts
evidence should be admissible because the Mobile store suffered from the same defect (i.e.,
excessive gap between handrail and building fabric), Schindler never corrected it at the Mobile
store following the Massachusetts incident, and this was a “code violation” that should have
resulted in the escalator being taken out of service. The fundamental shortcomings in plaintiff’s
position are that this purported defect is not alleged to have proximately caused Jakobe Kirksey’s
fall, and there are no claims asserted against Schindler for failing to correct a defect at the
Mobile escalator between 2011 and 2014. As such, the Massachusetts evidence is neither
relevant nor admissible on plaintiff’s alternate theories, setting aside the “substantial similarity”
mechanism.

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evidence is too remote in time because it “is more than a decade old and should be excluded on
that ground.” (Doc. 128, at 4.) Under the particular circumstances of this case, however, the
undersigned concludes that the 2005 Hawaii incident is not too remote in time for purposes of
the “substantial similarity” doctrine. After all, plaintiff’s evidence is that the 2005 Hawaii
incident was one of a series of falls over the side of escalator handrails at Sears stores over a tenyear period preceding Jakobe’s fall. The 2005 Hawaii incident is probative of Sears’ knowledge
of the particular danger that resulted in Jakobe’s death some nine years before it happened.
Given the types of claims and specific hazard involved here, the 2005 Hawaii “other fall”
evidence will not be excluded on remoteness grounds.
Separate and apart from the “substantially similar” doctrine, defendants advance two
additional arguments in support of their Motion in Limine seeking exclusion of “other falls”
evidence. First, defendants express alarm that allowing Kirksey to introduce evidence of
escalator falls in other states “raises a grave risk that the jury, if it finds Sears and/or Schindler
liable, will punish them for out-of-state conduct,” in violation of due process. (Doc. 128, at 5.)
This concern is grossly overstated. Kirksey has asserted no claims against defendants for
punitive damages for accidents that occurred in states other than Alabama. The jury in this case
will be asked only to determine whether defendants are liable for the June 2014 escalator
accident at the Sears store in Mobile, Alabama that resulted in Jakobe Kirksey’s death. Evidence
of events that occurred in other states may be admitted for the limited purpose of establishing
Sears’ knowledge that its open-sided escalator in Mobile, Alabama was a hazardous condition
and that the existing handrail was inadequate to prevent invitees from being seriously injured or
killed by falling over the side. Any fear by defendants that the jury may misinterpret this
evidence as providing a factual predicate to heap punishment on defendants for alleged misdeeds
at other times and places in other states may be effectively allayed via limiting instruction that
defendants are welcome to propose at an appropriate time.4
4

In their reply, defendants balk that a limiting instruction is inadequate to protect
them “because out-of-state designs and configurations are subject to different codes, standards,
and regulations,” and the Sears escalators in those other states may have been “created to comply
with different codes and standards in different states.” (Doc. 136, at 9.) This argument is a red
herring that misstates both the issues joined for trial and the narrow purpose for which “other
falls” evidence is being admitted. The jury in this case will not be asked to decide whether Sears
and Schindler were culpable as to the escalators in Hawaii, California, Chicago or anywhere else.
(Continued)
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Second, defendants pose the query of how “other falls” evidence is relevant as to
Schindler. After all, Kirksey’s “other falls” evidence with respect to both Schindler escalators in
Sears stores and Schindler-maintained escalators located elsewhere appears confined to the time
frame of 2005 to 2014. As stated in the Joint Pretrial Document, Kirksey’s sole claims against
Schindler are for “common law negligence, common law wantonness, and also product liability
under the [AEMLD] related to the sale, design, manufacture, and installation of the subject
escalator in 1997.” (Doc. 139, at 2.) Yet plaintiff would introduce evidence of “other falls”
from 2005 to 2014 against Schindler to show “Defendants’ knowledge of the danger, and …
Defendants’ failure, in spite of the foreseeability and their knowledge, to correct the danger.”
(Doc. 133, at 9.) Such evidence is inadmissible for that purpose. What Schindler knew after
1997 is irrelevant to Kirksey’s claims against it. What Schindler did or did not do after 1997 “to
correct the danger” is irrelevant to Kirksey’s claims against it. Again, plaintiff is suing Schindler
solely for its alleged acts and omissions “related to the sale, design, manufacture, and installation
of the subject escalator in 1997.” (Doc. 139, at 2 (emphasis added).) Plaintiff will not be
allowed to muddy the waters by arguing to the jury about what Schindler knew after 1997 or
what she thinks Schindler should have done to mitigate the risk after 1997 because no such claim
remains in this case today. Thus, the proffered “other falls” evidence is inadmissible to show
Schindler’s knowledge of the danger or failure to take corrective action. It is, however,
admissible against Schindler to show the existence of a danger, given defendants’ litigation
position that the Mobile, Alabama escalator was not defective at all.

Whether those escalators complied with – or were designed especially to conform to – regulatory
provisions in other states is irrelevant. Again, the primary purpose for which “other falls”
evidence is admissible in this case is to show that Sears was on notice years before the fact that
the Mobile, Alabama escalator was unreasonably dangerous because of the open-atrium design
and the inadequacy of the handrail to prevent people from falling over the side. Whether Sears
was at fault – or should be punished – for escalator falls in places like California is simply not at
issue in this case. Kirksey’s introduction of “other falls” evidence for the limited purpose of
establishing notice to Sears does not alter that conclusion. To the extent that defendants worry
that the jury may misuse the “other falls” evidence to decide that Sears should be punished here
for wrongdoing in California and elsewhere, defendants are free to propose a suitable limiting
instruction calculated to clear up any such hypothetical (and unlikely) misunderstanding.

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In sum, defendants’ Motion in Limine to Exclude “Other Falls” Evidence is granted in
part, and denied in part. The Motion is granted insofar as plaintiff seeks to introduce evidence
of the 2011 Massachusetts incident that resulted in the death of a four-year old boy. The Motion
is further granted insofar as plaintiff seeks to introduce “other falls” evidence to show
Schindler’s knowledge of or failure to correct a defect in the subject escalator. In all other
respects, the Motion is denied as to the “other falls” issue.
II.

Motion to Exclude Evidence Concerning Foreign Escalator Standards or Designs.
Next, defendants’ Motion in Limine seeks exclusion of “evidence concerning foreign

escalator or elevator standards” that Kirksey may use “to show that foreign nations require
particular design elements.” (Doc. 128, at 7.) Defendants argue at length that evidence of
foreign legal standards and regulations would be irrelevant and confusing to a jury, because the
escalator from which Jakobe fell was subject to Alabama law and regulations, not those of
Norway or some other sovereign. In response, Kirksey expressly states that she “is not
attempting to introduce foreign law or standards.” (Doc. 133, at 10.) Because defendants seek
an order excluding evidence that plaintiff has disclaimed any intent to present, this aspect of the
Motion in Limine is denied as unnecessary.5
What plaintiff does plan to introduce at trial is evidence of “foreign designs and the
timeframe of their appearance” in order to show that “alternative, feasible designs were available
and existed at the time of installation of Sears’ escalator in Mobile.” (Doc. 133, at 10.) Such
evidence is highly relevant, given that a significant factual dispute in this case concerns whether
alternative, feasible escalator designs existed at relevant times.6 Evidence of foreign designs has
been ruled admissible by federal courts in products cases on the issue of feasibility. See, e.g.,
Kramer v. Ford Motor Company, 2016 WL 827746, *9 (D. Minn. Feb. 29, 2016) (“Here, Mr.
5

In their reply brief, defendants contend that the Motion in Limine should be
granted on this issue “[b]ecause Plaintiff agrees that foreign standards and regulations are not
relevant to this case.” (Doc. 136, at 9.) However, that is not a fair characterization of plaintiff’s
response. Kirksey has not stipulated that foreign standards and regulations are irrelevant; rather,
she has simply represented that she does not intend to introduce any such evidence.
6

For example, the Joint Pretrial Document recites as a disputed fact pertaining to
Kirksey’s wrongful death claim against Schindler “whether a safer, practical alternative design
existed in 1997.” (Doc. 139, at 3.)

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Hannemann has pointed to the fact that Ford equipped the vehicles that it sold in Europe with a
brake override system starting with 2005 model year vehicles. Accordingly, Mr. Hannemann has
sufficiently demonstrated that the proposed alternative design was used by Defendant in similar
products and would not interfere with the vehicles’ utility.”).7 This is simply an extension of the
more general, widely accepted premise that evidence of alternative designs actually being
utilized in the marketplace is admissible to show feasibility. See, e.g., Dixon v. International
Harvester Co., 754 F.2d 573, 584 (5th Cir. 1985) (“The evidence of alternatively designed
tractors having additional protection thus was admissible to prove feasibility.”).8
Nonetheless, in their reply brief, defendants argue for the first time that Kirksey’s foreign
design evidence should be excluded pursuant to Rule 403, Fed.R.Evid., because “[t]he designs
are based on irrelevant foreign standards” and “[e]vidence of foreign designs – based on foreign
standards – would confuse the jury.” (Doc. 136, at 10.) As an initial matter, this argument is

7

See also Stallings v. Black & Decker Corp., 2008 WL 4530695, *9 (S.D. Ill. Oct.
7, 2008) (recognizing that evidence “of riving knives on European portable circular saws and on
American portable circular saws in the 1970s … may demonstrate the addition of a riving knife
is technologically feasible”); Sherry v. Massey-Ferguson, Inc., 1997 WL 480893, *2 (W.D.
Mich. June 5, 1997) (“Evidence that an alternate tractor design was in production [in Europe] at
the time of the subject tractor’s manufacture unquestionably is relevant to the feasibility of
plaintiff’s design theory.”); see generally Cardenas v. Dorel Juvenile Group, Inc., 230 F.R.D.
611, 621-22 (D. Kan. 2005) (evidence of engineering changes to car seats sold outside the United
States deemed relevant because “one of the issues in this case is whether a safer, feasible
alternative design was available”); Brownlow v. General Motors Corp., 2007 WL 2712925, *7
(W.D. Ky. Sept. 13, 2007) (evidence of alternative design “routinely used in the European
brands of GM products” deemed to be “highly relevant” in products liability case).
8

See also Goodner v. Hyundai Motor Co., 650 F.3d 1034, 1033 (5th Cir. 2011)
(recognizing that “the use of an alternative design by another manufacturer may establish
technological feasibility”); Simo v. Mitsubishi Motors North America, Inc., 245 Fed.Appx. 295,
299 (4th Cir. Aug. 15, 2007) (plaintiff adequately established existence of alternative feasible
design via evidence that “several other SUVs already on the market had centers of gravity
sufficiently low that the vehicles would not roll over untripped”); Maxwell v. Howmedica
Osteonics Corp., 713 F. Supp.2d 84, 91-92 (N.D.N.Y. 2010) (feasibility of alternative designs
may be shown by “identifying makers of similar equipment who have already put into use the
alternative design”) (citation and internal quotation marks omitted); Fisher v. Kawasaki Heavy
Industries, Ltd., 854 F. Supp. 467, 474 (E.D. Mich. 1994) (“the fact that the alternative designs
are not in use would be a factor in determining feasibility of these proposed alternative designs”).

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improper because it is newly raised in a reply although it was available earlier.9 If defendants
sought to exclude foreign design evidence (as opposed to foreign legal standards evidence), then
they should have developed and presented such an argument in their Motion in Limine, rather
than waiting until their reply to spring it on plaintiff. Even if this argument were procedurally
proper (which it is not), it remains unconvincing. Under the Rule 403 balancing test, foreign
escalator design evidence is highly relevant in this case. Again, a critical issue here is whether
safer alternative escalator designs existed at the relevant times. Evidence that manufacturers in
other countries were building and installing such safer designs during the relevant time period
would be probative on issues of feasibility and knowledge. On the other side of the Rule 403
ledger, defendants’ vague suggestions of jury confusion arising because the foreign designs “are
based on irrelevant foreign standards” appear unfounded. The Court perceives no reason why it
would be necessary or even likely that the jury would hear about foreign standards in connection
with these foreign designs, the admissibility of which would be for the limited purposes of
showing that safer escalators were feasible and (perhaps) that defendants knew or should have
known about them.10 Defendants have not shown that the probative value of the “foreign
design” evidence is substantially outweighed by a danger of jury confusion or undue prejudice;
therefore, it will not be excluded on Rule 403 grounds.
For the foregoing reasons, defendants’ Motion in Limine to Exclude Evidence of Foreign
Escalator Standards or Designs is denied. Plaintiff does not intend to introduce evidence of
foreign standards, and the evidence of foreign designs may be highly relevant and admissible.
III.

Motion to Exclude Evidence of Actions or Knowledge of Defendants’ Parents,
Subsidiaries or Affiliates.
Part three of defendants’ Motion in Limine seeks to bar evidence of the actions or mental

state of companies related to defendant Schindler Elevator Corporation. In support of this

9

See, e.g., Brown v. CitiMortgage, Inc., 817 F. Supp.2d 1328, 1332 (S.D. Ala.
2011) (explaining that “it is improper for a litigant to present new arguments in a reply brief” and
that “[n]ew arguments presented in reply briefs are generally not considered by federal courts”).
10

Of course, if defendants want to argue that safety features found on European
escalator designs were forbidden by the laws or regulations of the United States or Alabama
during the relevant time period, they may present evidence to that effect. But evidence of
foreign standards themselves would remain irrelevant.

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Motion, defendants argue that Schindler Elevator Corporation is a “separate corporation and the
North American operating entity of the Switzerland-based Schindler Group,” which is a global
corporation. (Doc. 128, at 10.) Defendants object that the knowledge or actions of Schindler
Group or other affiliated Schindler companies cannot be imputed to “Schindler Elevator
Corporation” and that such knowledge and actions are therefore irrelevant. Defendants also tout
a substantial likelihood of confusion if evidence of the actions of affiliated corporations with
similar names is presented to the jury.
Plaintiff’s response is twofold. First, she disclaims any intent to present evidence of the
“actions” of Schindler Group. (Doc. 133, at 16 (“Plaintiff has is [sic] not alleging any actions of
the Schindler [G]roup, unless knowledge and design of guarding, and its use in other markets, is
considered action.”).) To be sure, as defendants assert, Alabama law generally does forbid one
corporate entity from being held liable for the actions of another. See generally Ford v. Carylon
Corp., 937 So.2d 491, 498 (Ala. 2006) (“[a] parent corporation generally cannot be held liable
for the acts of its subsidiary”). But plaintiff’s response unambiguously specifies that she does
not seek to hold Schindler Elevator Corporation liable for the acts or omissions of any other
Schindler entity.
Second, plaintiff maintains that the close working relationship between Schindler
Elevator Corporation and other Schindler entities on issues of design means that “Schindler’s
United States operations had pre-existing knowledge, or had that knowledge readily available, as
to guarding solutions for escalators.” (Doc. 133, at 15.) In support of this proposition, plaintiff
points to evidence that “the various Schindler entities operate collectively.” (Id.) For example,
plaintiff cites the testimony of defendant Schindler’s employee David Evans, who works in
application engineering. Evans testified that “[t]he initial designs for our product types” are
created at Schindler Group facilities in Vienna, Austria, and Shanghai, China, the latter of which
also contains “our global R and D center.” (Doc. 133, Exh. 1E, at 14.) Evans’ group at
Schindler Elevator Corporation then “take[s] the designs that exist and change[s] them … to
specific site conditions.” (Id.) Evans explained that Schindler Group designs new products in
Vienna and Shanghai, and that Evans and his office at Schindler Elevator Corporation rely on
those Schindler Group R&D offices for their research and development needs. (Id. at 36-37.)
He further indicated that those Schindler Group R&D offices send Evans’ team new designs as a
matter of course when they are finished. (Id. at 37-38 (“We see designs coming through, we are

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in receipt of the designs, we don’t just receive them when we want to use that design, we receive
them as a matter of course when a design is complete.”).
Plaintiff’s point, then, is that Schindler Group’s knowledge of escalator designs may be
attributed to defendant Schindler Elevator Corporation in this case because of the manner in
which those entities work together and the fact that Schindler Group’s R&D centers in Austria
and China forward their designs (which would include designs for guarding and safety features)
to Schindler Elevator Corporation as a matter of course when they are complete. This is a far cry
from defendants’ characterization that Kirksey is trying to impute the knowledge of nonparty
Schindler Group to defendant Schindler Elevator Corporation for no reason other than their
parent / subsidiary relationship. Plaintiff is not asking the jury to conclude that Schindler
Elevator Corporation knows what Schindler Group knows through some magic or alchemy
inherent in their status as affiliated entities, but is rather asking the jury to conclude that such
knowledge exists because specific testimony shows that Schindler Elevator Corporation relies on
Schindler corporate for all R&D, and Schindler corporate sends all designs (which would
presumably include guarding and safety features) to Schindler Elevator Corporation in the
ordinary course of business without the latter even requesting them. That would be a reasonable
and permissible inference to draw from such evidence.
The wrinkle, of course, lies in the temporal aspect of this testimony. As noted, Kirksey’s
sole claim against defendant Schindler Elevator Corporation relates to “sale, design,
manufacture, and installation of the subject escalator in 1997.” (Doc. 139, at 2-3.) What
matters, then, for purposes of knowledge being passed on from Schindler Group to Schindler
Elevator Corporation is not whether and to what extent that happens in 2016 (which is apparently
the time frame of David Evans’ testimony cited by Kirksey), but whether and to what extent that
happened in 1997 and earlier. The knowledge of one company or the other today – and the
pathways, conduits and linkages between them – is not relevant to that inquiry. In briefing the
Motion in Limine, neither side offers evidence tending to show whether the intercorporate
relationship, allocation of labor, and information flows described in Evans’ testimony as of 2016
held equally true in 1997. If plaintiff can make such a showing at trial, then evidence of
Schindler Group’s knowledge about guarding and alternative designs may be relevant and

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admissible.11 If she cannot, then it will not. Defendants, as movants, have presented no
evidence either way; therefore, the Motion in Limine is denied on this point, provided, however,
that defendants may renew their objection to evidence of other Schindler entities’ knowledge at
trial to the extent that plaintiff does not make a showing that such knowledge would have been
passed to Schindler Elevator Corporation in 1997.
IV.

Motion to Exclude “Safe Ride” Video and Literary Articles.
As the next subpart of their Motion in Limine, defendants seek to exclude the following

exhibits on grounds of hearsay: (i) the “Safe Ride Video” created by the Elevator Escalator
Safety Foundation (the “Video”); (ii) a 2011 report by plaintiff’s expert David Cooper entitled
“An Investigation into Falls Over or From the Side of Escalators: Recommendations for Fall
Prevention Involving Minors” (the “Cooper Report”); (iii) a 1993 article written by Dr. John
Fruin and published in a magazine called Elevator World, entitled “Open Side Guarding of
Escalators” (the “Fruin Article”); and (iv) a 1966 Toronto Star article about boys riding handrails
on escalators (the “Toronto Star Article”). Defendants’ position is that such materials are
inadmissible hearsay that do not qualify under any exceptions to exclusion.
With regard to the Video, Kirksey maintains that it is not hearsay because it is the
statement of an opposing party, pursuant to Rule 801(d)(2), Fed.R.Evid. A superficial weakness
in this argument is that everyone agrees the Video was created by the Elevator Escalator Safety
Foundation, which is not a party to this action. Kirksey responds that that the Video nonetheless
qualifies as an opposing party’s statement because it “is one the party manifested that it adopted
or believed to be true.” Rule 801(d)(2)(B). To show that Schindler adopted the Video, plaintiff
points to a screen-capture from Schindler’s website containing the following language:
“Materials available from Schindler
11

Defendants’ alternative Rule 403 objection to such evidence is overruled.
Contrary to defendants’ contention, the Court perceives no reasonable likelihood that the jury
may be confused or misled, or that defendants will be unfairly prejudiced, if evidence about what
a different Schindler entity knew is presented at trial. Defendants’ position that such confusion
will arise “because many affiliated corporations share similar names” (doc. 128, at 11) is not
well taken. The Court is confident that the parties are capable of presenting their evidence and
arguing their case in a manner that does not jumble “Schindler Elevator Corporation” into
“Schindler Group” and that enables the jury to remain cognizant of the distinctions between and
among particular Schindler entities.

-13-

“Schindler has prepared a number of useful tools which can help passengers, as
well as those who own and manage buildings, use elevators and escalators more
safely and efficiently. These materials are available from Schindler at no charge,
and may be ordered directly from Schindler.
*

*

*

“A Safe Ride: DVD and companion pamphlet produced by the Elevator Escalator
Safety Foundation, with considerable support from Schindler. Similar to our ‘Ups
& Downs’ with added emphasis on usage by children and seniors.
“Please contact us to order any of the above materials from Schindler, at no
charge.”
(Doc. 133, Exh. 4A.) Under any reasonable interpretation, this language on Schindler’s website
evinces adoption of the Video. Not only was the Video produced “with considerable support by
Schindler,” but also Schindler’s prefatory remarks described it as being among “a number of
useful tools” that “Schindler has prepared.” Moreover, in two places, Schindler volunteered to
supply a copy of the Video to any member of the public “at no charge” upon request. Faced with
these representations manifesting adoption or belief, Schindler’s insistence that it “merely placed
a description of the video on its website and provided a copy to opposing counsel when
requested” (doc. 136, at 13) understates its manifestations of adoption and belief by a
considerable margin.12 Accordingly, the Video is properly admissible pursuant to Rule 801(d)(2)
as a statement in which Schindler manifested its adoption or belief. The Motion in Limine is
denied as to this evidence.
With regard to the Cooper Report and the Fruin Article, plaintiff apparently intends to
introduce both documents (which she has designated Plaintiff’s Exhibits 51 and 1, respectively)
into evidence. Defendants maintain that these exhibits are inadmissible hearsay. Plaintiff’s
initial response is to invoke the “learned treatise” exception to hearsay; however, even if plaintiff

12

This conclusion is reinforced by a July 21, 1997 letter from Schindler’s President,
James L. Cocca, to the Consumer Product Safety Commission, in which he indicated that
Schindler “provides both financial and extensive non-financial support” to the Elevator Escalator
Safety Foundation, and boasts that Schindler’s own “Ups & Downs” safety video “has become
the backbone of ‘A Safe Ride’, the Foundation’s recently released videotape promoting safety
and educating passengers regarding proper escalator usage.” (Doc. 133, Exh. 4C, at 3.) This
letter undermines Schindler’s present contention that it never manifested that it adopted the “A
Safe Ride” Video or believed it to be true. After all, by Schindler’s admission, the “backbone”
of the “A Safe Ride” Video was generated by Schindler itself.

-14-

were correct as to the application of that exception, it would not allow her to introduce the
Cooper Report and the Fruin Article into evidence. See Rule 803(18), Fed.R.Evid. (“If admitted,
the statement may be read into evidence but not received as an exhibit.”) (emphasis added).13
Plaintiff also proposes to introduce the Cooper Report and Fruin Article pursuant to Rule
703, Fed.R.Evid. Defendants’ objection on this point is that an expert’s “mere reliance on
inadmissible evidence does not render such evidence admissible.” (Doc. 128, at 12.) That
statement is accurate as far as it goes; however, Rule 703 does allow such evidence to be
disclosed in appropriate circumstances. Indeed, the Federal Rules of Evidence allow an expert to
13

For what it is worth, plaintiff appears capable of laying the proper foundation to
qualify the Cooper Report and Fruin Article as “learned treatises” within the meaning of Rule
803(18). See generally Allen v. Safeco Ins. Co. of America, 782 F.2d 1517, 1520 (11th Cir. 1986)
(adopting a “liberal interpretation of Rule 803(18), favoring admissibility”); Costantino v. David
M. Herzog, M.D., P.C., 203 F.3d 164, 170-71 (2nd Cir. 2000) (“The rationale for this exception is
self-evident: so long as the authority of a treatise has been sufficiently established, the factfinder
should have the benefit of expert learning on a subject, even though it is hearsay.”). Under Rule
803(18), “[a] statement contained in a treatise, periodical, or pamphlet” falls within the “learned
treatise” exception to hearsay if it is “relied on by the expert on direct examination” and “the
publication is established as a reliable authority by the expert’s admission or testimony, by
another expert’s testimony, or by judicial notice.” Rule 803(18), Fed.R.Evid. Both the Cooper
Report and the Fruin Article are “contained in a treatise, periodical, or pamphlet;” plaintiff’s
expert David Cooper will testify that he relied on them; and he will testify that they are “reliable
authorities.” That appears sufficient to trigger the liberal Rule 803(18) exception,
notwithstanding defendants’ objections that these materials lack “sufficient assurances of
trustworthiness,” that Cooper himself is a paid expert witness, and that the Fruin Article “is
merely a magazine article” (doc. 136, at 14-15). See generally Costantino, 203 F.3d at 172-73
(recognizing that “the authoritativeness inquiry is governed by a ‘liberal’ standard” and that “the
authoritativeness inquiry is a freewheeling one and may be conducted by ‘any means’”).
Accordingly, if plaintiff lays the anticipated foundation at trial and wishes to read portions of the
Cooper Report and Fruin Article into evidence pursuant to Rule 803(18), she may do so,
provided, however, that the exhibits themselves will not be received into evidence for the jury’s
perusal. See Advisory Committee Note to Rule 803(18) (“the great weight of authority has been
that learned treatises are not admissible as substantive evidence” and the rule creates a
“limitation upon receiving the publication itself physically in evidence”) (emphasis added). This
conclusion is not affected by plaintiff’s reliance on the residual hearsay exception found at Rule
807 of the Federal Rules of Evidence. In particular, the Court finds that admitting the Cooper
Report and Fruin Article as substantive evidence would comport with neither Rule 807(a)(3)
(requiring that evidence admitted under residual exception be “more probative on the point for
which it is offered than any other evidence that the proponent can obtain through reasonable
efforts”) nor Rule 807(a)(4) (requiring that “admitting it will best serve the purposes of these
rules and the interests of justice”).

-15-

engage in hearsay testimony based on the type of evidence reasonably relied on by those in his or
her field. See, e.g., United States v. Floyd, 281 F.3d 1346, 1349 (11th Cir. 2002) (“hearsay
testimony by experts is permitted if it is based upon the type of evidence reasonably relied upon
by experts in the particular field.”); Rule 703, Fed.R.Evid. (“An expert may base an opinion on
facts or data in the case that the expert has been made aware of or personally observed. If
experts in the particular field would reasonably rely on those kinds of facts or data in forming an
opinion on the subject, they need not be admissible for the opinion to be admitted.”). The upshot
is that, insofar as plaintiff’s experts have relied on the Cooper Report and Fruin Article in
forming their expert opinions in this case, they may disclose portions of those documents to the
jury. See Rule 703 (“if the facts or data would otherwise be inadmissible, the proponent of the
opinion may disclose them to the jury” under certain circumstances) (emphasis added).14
What this means is that upon a proper foundational showing, plaintiff may elicit
testimony from expert witnesses that discloses certain relied-upon contents of both the Cooper
Report and the Fruin Article. To the extent that defendants’ Motion in Limine seeks
categorically to bar such disclosure on hearsay grounds, it is denied. To the extent, however,
that the Motion seeks to prevent plaintiffs from admitting those documents (i.e., Plaintiff’s
Exhibits 51 and 1) into evidence, the Motion in Limine is granted because nothing in Rule 703
would allow the written materials themselves to be admitted, as opposed to certain portions of
such “basis evidence” being disclosed by plaintiff’s testifying experts.15
14

See also Williams v. Illinois, --- U.S. ----, 132 S.Ct. 2221, 2239-40, 183 L.Ed.2d
89 (2012) (under Rule 703, “‘basis evidence’ that is not admissible for its truth may be disclosed
even in a jury trial under appropriate circumstances”); United States v. An Easement and Rightof-way Over 6.09 Acres of Land, 140 F. Supp.3d 1218, 1258 (N.D. Ala. 2015) (“in giving their
opinions, experts are authorized to consider and at times reference evidence that is hearsay or
that would otherwise be inadmissible as independent evidence”) (emphasis added).
15

Plaintiff’s alternative theory that the Fruin Article is admissible under the “ancient
documents” exception to the hearsay rule is not persuasive. To be sure, that exception covers
“[a] statement in a document that is at least 20 years old and whose authenticity is established.”
Rule 803(16), Fed.R.Evid. The Court is unaware of any case in which a party has successfully
relied on Rule 803(16) to obtain admissibility of a hearsay article in a trade publication; rather,
the rule is typically confined to ancient letters, contracts, maps, title documents, wills and so on.
Even if the exception were appropriately extended to reach any written article that happens to be
more than 20 years old, the Court would still exclude the Fruin Article itself as substantive
evidence pursuant to Rule 403, Fed.R.Evid.

-16-

Finally, with respect to the Toronto Star Article from 1966, plaintiff properly invokes the
“ancient documents” exception to the hearsay rule, as found at Rule 803(16) of the Federal Rules
of Evidence. Contrary to defendants’ objection, Rule 803(16) has been held applicable in the
context of newspaper articles. See, e.g., Ammons v. Dade City, Fla., 594 F. Supp. 1274, 1280 n.8
(M.D. Fla. 1984) (“The Advisory Committee notes to Rule 803(16) specifically embrace the
inclusion of 20 year old newspaper articles under the ancient document exception …. Other
courts have similarly relied upon newspaper accounts in interpreting history.”) (citations
omitted); Advisory Committee Note to Rule 803(16) (observing that in Dallas County v.
Commercial Union Assur. Co., 286 F.2d 388 (5th Cir. 1961), the court was “upholding
admissibility of 58-year-old newspaper story”). The Motion in Limine is therefore denied
insofar as defendants seek exclusion of the Toronto Star Article on hearsay grounds.
V.

Motion to Exclude ASME Meeting Minutes.
As part five of their Motion in Limine, defendants oppose plaintiff’s use of evidence of

ASME Sub-Committee Meeting Minutes from August 26, 1997 (the “ASME Minutes”).
Defendants’ objections are twofold, to-wit: (i) the ASME Minutes are hearsay and “Plaintiff
should be required to lay a proper foundation” for their admission; and (ii) the ASME Minutes
are “wholly irrelevant to any issue remaining for trial” because the subject escalator was
designed, manufactured and installed before those minutes were created. (Doc. 128, at 13-14.)
As to relevance, defendants’ objection is overruled and their Motion in Limine is
denied. It is true enough that the ASME Minutes are dated August 26-27, 1997 (see doc. 70,
Exh. W), which postdates installation of the Sears escalator at the Mobile, Alabama store.
However, the relevant contents of those ASME Minutes include references to a March 1995
meeting at which the A17/B44 Escalator and Moving Walk Committee made certain proposals
and offered certain rationales pertaining to escalator guardrails, which matters were referred to
the A17 Code Coordination Committee (the “Committee”).16 Those proposals and rationales are

16

One member of this Committee was George A. Kappenhagen, Code Consultant
North America for Schindler Elevator Corporation. (Doc. 70, Exh. W.) The ASME Minutes
reflect that Kappenhagen reported on the proposal at a June 1995 meeting. Thus, plaintiff’s
theory is that the ASME Minutes demonstrate Kappenhagen’s actual knowledge and awareness
of the unreasonable risk of falls over the side of escalator handrails and the need for additional
guarding solutions in 1995, thereby placing Schindler on notice of the issue well before
(Continued)
-17-

probative of Schindler’s knowledge and foreseeability prior to the manufacture and installation
of the subject escalator; therefore, defendants’ relevance objection is misplaced.
With respect to hearsay, plaintiff challenges defendants’ conclusion by asserting that the
ASME Minutes are not hearsay because they are not offered for the truth of the matter asserted
and because they qualify as statements of a party opponent. Neither assertion is persuasive. The
“truth of the matter asserted” argument overlooks the reality the ASME Minutes cannot be
probative of “Schindler’s knowledge of the history of falls and the need for guardrails” (doc.
133, at 24) in 1997 – the purposes for which plaintiff purports to seek their admission into
evidence – unless the contents of those ASME Minutes are true (i.e., that the Committee actually
received, considered and discussed this specific proposal prior to 1997; and that one or more
Schindler representatives were part of that committee and in attendance). Notwithstanding
plaintiff’s denial, there is no reasonable question that Kirksey seeks to introduce the ASME
Minutes to prove the truth of the matter asserted. As for plaintiff’s suggestion that the ASME
Minutes are non-hearsay pursuant to Rule 801(d)(2) because they are an opposing party’s
statement, the evidence does not support a conclusion that Schindler ever manifested its adoption
or belief in the validity of the proposals described in the ASME Minutes, much less the accuracy
of those Minutes. Merely because a Schindler employee (George Kappenhagen) voted in favor
of the proposal does not constitute adoption of the ASME Minutes by Schindler; therefore, Rule
801(d)(2)(B) does not apply. Nor are the ASME Minutes admissible under Rule 801(d)(2)(D)
(covering statements “made by the party’s agent or employee on a matter within the scope of that
relationship and while it existed”) because (i) the ASME Minutes are not a statement made by
Kappenhagen, and (ii) even if they were, there is no factual basis for a conclusion that
Kappenhagen was acting as Schindler’s agent or employee in connection with his Committee
service when that statement was made.
In light of the foregoing, plaintiff cannot introduce the ASME Minutes into evidence
unless she satisfies an exception to the hearsay exclusion. The exception she apparently intends
to invoke is Rule 803(6), Fed.R.Evid., which applies to business records made at or near the time

Schindler built and installed the subject escalator. Defendants’ Motion in Limine does not rebut
this reasoning.

-18-

of the event, kept in the course of a regularly conducted activity, and as a regular practice of that
activity. The potential sticking point is the rule’s requirement that “all these conditions [must be]
shown by the testimony of the custodian or other qualified witness,” with certain exceptions not
addressed by the parties here. See Rule 803(6)(D). The Court agrees with defendants that
plaintiff cannot introduce the ASME Minutes into evidence unless she meets the specific
foundational prerequisites of Rule 803(6)(D). Curiously, however, defendants’ Motion in
Limine merely asks that Kirksey be required to lay such a foundation, and makes no arguments
(until the reply, which is too late) that she is incapable of meeting that burden. On this record
and these briefs, the Court cannot discern how plaintiff intends to establish the necessary
predicate, or indeed if she intends to go that route at all. It is therefore impossible to determine
on the strength of the briefs whether Kirksey will or will not be able to lay the requisite
foundation. Accordingly, the Motion in Limine is denied insofar as defendants seek exclusion
of the ASME Minutes at this time, provided, however, that the issue may be revisited at trial
upon an appropriate showing.17
VI.

Motion to Exclude “Golden Rule” Arguments.
Defendants next seek a ruling that precludes plaintiff from eliciting prejudicial sympathy

from the jury by asking them to put themselves in the shoes of Jakobe Kirksey, his friends or his
family, effectively suggesting to jurors that they could also be victims of defendants’ alleged
17

Notwithstanding the foregoing, the parties are hereby given the following
guidance with regard to admissibility of the ASME Minutes at trial: (i) in response to plaintiff’s
representations that her experts relied on the ASME Minutes as part of the basis for their
opinions and will testify at trial that such records were of a type reasonably relied on by those in
their expert fields, such a predicate may pave the way for disclosure of the relied-upon contents
of the ASME Minutes (not admissibility of the ASME Minutes themselves) pursuant to Rule
703, Fed.R.Evid.; (ii) defendants’ objections to the ASME Minutes are not waived or timebarred; (iii) nothing in the information provided by plaintiff in her Response (doc. 133) would
support a determination that defendants ever stipulated that the specific foundational
requirements of Rule 803(6) are satisfied with respect to the ASME Minutes; (iv) the Court has
already ruled that Joseph Stabler may testify only in rebuttal in his expert capacity, but that
plaintiff is free to call him in her case-in-chief to offer fact testimony authenticating the ASME
Minutes and meeting other foundational requirements of Rule 803(6); and (v) the Court has been
given no evidence or argument that might reasonably support application of the Rule 807
residual exception to hearsay with respect to the ASME Minutes. The parties should govern
themselves accordingly with respect to any arguments or disputes vis a vis admissibility of the
ASME Minutes.

-19-

wrongdoing. These so-called “golden rule” arguments have been held improper. See, e.g.,
McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1071 n.3 (11th Cir. 1996) (“an impermissible
golden rule argument is an argument in which the jury is exhorted to place itself in a party’s
shoes with respect to damages”) (citation and internal quotation marks omitted); United States v.
Hunte, 559 Fed.Appx. 825, 833 (11th Cir. Mar. 13, 2014) (“There is no doubt that these ‘golden
rule’ remarks were improper, as they directly suggested that the jurors had personal stakes in the
outcome of the case and they placed the prosecution together with the jury in a joint effort to
combat fraud.”). Plaintiff consents to this Motion. (Doc. 133, at 24.) Accordingly, the Motion
in Limine is granted insofar as both parties are barred at trial from making “golden rule”
arguments with respect to damages.
VII.

Motion to Exclude “Unit of Time” or Per Diem Arguments.
Part seven of defendants’ Motion in Limine would exclude plaintiff from arguing or

suggesting that the jury use “an arbitrary figure to [sic] on a per day basis to determine an
ultimate damages award.” (Doc. 128, at 15.) Defendants reason that, because Kirksey’s claims
are confined to wrongful death, her sole remedy is punitive damages and it would be improper
and speculative for the jury to award such damages pursuant to a “per diem penalty.” In
response, plaintiff states that she consents to this request, as long as it applies equally to
defendants. For that reason, the Motion in Limine is granted as to this issue. Both sides are
precluded from arguing, referencing or mentioning “per diem” or “unit of time” concepts with
respect to computation of damages.
VIII. Motion to Exclude Evidence that Escalator was Improperly Maintained.
Another sub-issue raised in defendants’ Motion in Limine relates to evidence that the
subject escalator was improperly maintained at the time of Jakobe’s fall. In particular,
defendants seek exclusion of “improper maintenance” evidence on relevance grounds because
Kirksey’s negligent maintenance claim against Schindler was dismissed on summary judgment,
and there is no evidence that any deficiencies in the escalator’s maintenance were related to,
much less proximately caused, Jakobe’s accident.
Kirksey responds by confirming that she “does not intend to attempt to make a ‘negligent
maintenance’ claim at trial.” (Doc. 133, at 25.) Nonetheless, she asserts that if defendants were
to present argument or evidence that “the escalator was in fact properly maintained” (id.), then
that action would open the door for plaintiff to present “improper maintenance” evidence in

-20-

rebuttal. The Court has previously alluded to precisely this scenario in rulings in this case.18
Defendants balk that plaintiff should not be able to put on such evidence merely because
defendants offer evidence that the escalator was “code-compliant,” by which they mean only that
“the escalator complied with all applicable design codes and that Sears was never cited by the
State of Alabama for any code violations prior to the incident.” (Doc. 136, at 20-21.)
This counterargument highlights the imprecision problem which the Court has addressed
separately in adjudicating plaintiff’s motions in limine. At the risk of redundancy, the
undersigned again points out that the term “code-compliant” can mean different things to
different people, because of the divergent array of “codes” (state codes, international codes,
proposed codes, design codes, building codes, escalator codes, and so on) potentially in play.
The parties are strongly encouraged to avoid imprecise, overbroad language, and to use
appropriate qualifiers and descriptors to specify what kind of codes they are talking about if and
when they raise evidence and argument that the escalator was or was not “code-compliant.”
Should defendants present evidence or argument that might reasonably cause the jury to believe
that the escalator was “well-maintained” or compliant with all codes (or even all state escalator
codes), then such a showing may open the door for plaintiff to present evidence that the escalator
was not well-maintained or not compliant with Alabama escalator codes, even if those violations
were not cited by the State of Alabama and did not proximately cause Jakobe’s fall. If the
parties tread carefully, use precise language, and ask appropriate follow-up, narrowing questions
of their witnesses to eliminate confusion about what is and is not meant by the term “codecompliant,” then this issue may never come to the fore. If, however, they do not, then the Court
will not categorically foreclose plaintiff from the ability to set the record straight if defendants
have led or allowed the jury to gain a contrary impression. For that reason, the Motion in Limine
is denied as to defendants’ request for an absolute bar on evidence that the escalator was
improperly maintained or in violation of any codes.

18

See Order dated September 20, 2016 (doc. 137), at 29 (“If defendants put on
expert testimony that the Sears escalator complied with all applicable code requirements (even as
to escalator features that did not proximately cause Jakobe’s fall), then it is neither irrelevant nor
unhelpful for plaintiff to put on expert testimony in rebuttal of those opinions.”).

-21-

IX.

Motion to Exclude Evidence of Retailer’s Standard of Care as to Design, Purchase,
Installation or Maintenance of Escalator.
In part nine of their Motion in Limine, defendants seek an order precluding Kirksey from

offering any expert testimony concerning “retail industry standards of care and/or a retailer’s
duty to provide safe retail premises.” (Doc. 128, at 17.) As grounds for this request, defendants
posit that plaintiff’s designated experts are not qualified to testify as to “a retailer’s standard of
care regarding the design, purchase, installation or maintenance of an escalator.” (Id.)
In the Order of September 20, 2016 resolving defendants’ Daubert challenges to
plaintiff’s expert witnesses, the Court excluded plaintiff’s expert Traci Campbell’s opinion that
Sears failed to “provide a safe place of business which was free from recognized hazards that
were likely to cause death or serious physical harm to its business invitees.” (Doc. 137, at 17.)
As grounds for that ruling, the September 20 Order explained that Campbell’s excluded “opinion
amounts to a commentary on a retailer’s standard of care and whether Sears breached that
standard of care,” but “nothing in Campbell’s CV or expert report establishes any qualifications
she might have to offer those particular opinions.” (Id.) Insofar as defendants’ Motion in
Limine is taking aim at this particular opinion of Campbell’s, the Motion is redundant of the
previously-decided Daubert motions. Aside from that one isolated opinion, defendants have not
identified language in any of plaintiff’s expert reports or depositions where any of them have
professed any intent to testify to opinions within the scope of this aspect of the Motion in Limine
(i.e., Sears’ standard of care as to escalator design, purchase, installation or maintenance).
Plaintiff has responded by defending a number of her experts’ opinions, but defendants reply that
none of those opinions lie within the ambit of this Motion. By all appearances, then, we are left
with a Motion in Limine that seeks to suppress expert opinions that none of plaintiff’s expert
witnesses have ever rendered or sought to render in this case. The Motion is therefore denied as
unnecessary.19

19

Of course, should any of plaintiff’s experts go “off script” at trial and offer
opinions that defendants believe relate to “a retailer’s standard of care regarding the design,
purchase, installation or maintenance of an escalator,” then defendants are free to renew their
objections that the proponent of such an opinion is not qualified to offer it. For now, however,
the briefing vividly demonstrates that plaintiff is unable to discern the types of testimony
contemplated by defendants’ Motion because she has not marshaled any expert testimony (with
the possible exception of the one already-excluded opinion from Campbell) falling within its
(Continued)
-22-

X.

Motion to Exclude Caroline T. Pryor as a Plaintiff’s Witness.
Next, defendants ask that the Court preclude Kirksey from calling Caroline T. Pryor,

Esq., as a witness at trial. Defendants correctly observe that plaintiff has named attorney Pryor
(who works at the Carr Allison firm in Daphne, Alabama) on her “may call” witness list in the
Joint Pretrial Document. (Doc. 139, at 11.) On June 14, 2014, Pryor took responsibility for
overseeing and coordinating Sears’ internal investigation of Jakobe’s fatal fall from the escalator
at the Bel Air Mall store. (Doc. 128, Exh. A, ¶ 5.) She did so because Sears retained Pryor “as
its legal counsel to protect its interests in advance of potential litigation” arising from Jakobe’s
accident. (Id., ¶ 7.) Sears’ “initial investigation” was undertaken at Pryor’s request and under
her in-person supervision as Sears’ counsel, and all of her actions in this regard “were performed
on behalf of Sears as legal its [sic] counsel and in anticipation of litigation.” (Id., ¶¶ 8-10.)
Based on these facts, defendants insist that Kirksey may not call Pryor at trial because any
testimony plaintiff might seek to elicit from her would be protected by attorney-client privilege
and/or work product doctrine.
The parties devote considerable effort in their briefs to addressing the principles of the
attorney-client and work product privileges. Unfortunately, without knowing specifically what
information plaintiff’s counsel might attempt to elicit from Pryor at trial, it is not possible to
apply those doctrines reliably, or to ascertain with any degree of certainty whether such
testimony is properly excluded. Plaintiff does not even state definitively whether she will call
Pryor to testify. If Pryor is called as a witness, then plaintiff vows to be “careful not to seek
disclosure of actually privileged attorney-client communications.” (Doc. 133, at 27.) At this
time, the Court has no information and no reason to believe that plaintiff’s counsel – who are, by
their own reckoning, “sensitive to the attorney-client privilege” and intent on taking care not to
encroach upon it (id.) – intends to ask Pryor a single question that will call for information
protected by the attorney-client privilege. Defendants have not shown otherwise.
With respect to work product, the landscape is murkier. Plaintiff implies that if she does
call Pryor, it will be because “Pryor personally observed the condition of the accident scene

contours. The Court will not issue hypothetical rulings in limine to block expert opinions that
plaintiff has never offered or expressed any intent to offer.

-23-

starting the immediate next day … as well as observing the actions of the State inspector, the
Lerch Bates inspector, and the Schindler mechanics.” (Doc. 133, at 28.) Plaintiff further
indicates that Pryor’s testimony may be useful “[t]o the extent that the accident scene’s condition
or other facts from that limited post-accident time period become material at trial.” (Id.) From
these broad outlines of possible topics, it appears that plaintiff might wish to have Pryor testify
about purely factual matters relating to the investigation. Such testimony may not be subject to
work product protection. See Schreib v. American Family Mut. Ins. Co., 304 F.R.D. 282, 287-88
(W.D. Wash. 2014) (“[c]ourts have consistently held that the work product doctrine furnishes no
shield against discovery, by interrogatories or by deposition, of the facts that the adverse party’s
lawyer has learned, or the person from whom he has learned such facts”) (citations omitted).20
Depending on the particular questions that plaintiff’s counsel may ask Pryor and the particular
information requested, then, the work product doctrine may have no application here.21
20

See also Resolution Trust Corp. v. Dabney, 73 F.3d 262, 266 (10th Cir. 1995)
(“Because the work product doctrine is intended only to guard against divulging the attorney’s
strategies and legal impressions, it does not protect facts concerning the creation of work product
or facts contained within work product. … Thus, work product does not preclude inquiry into the
mere fact of an investigation.”); Spirit Master Funding, LLC v. Pike Nurseries Acquisition, LLC,
287 F.R.D. 680, 687 (N.D. Ga. 2012) (observing that “underlying facts do not enjoy the
protection of the work product doctrine” and that “[t]he work product doctrine does not protect
factual information from disclosure”); State Farm Fire and Cas. Co. v. Nokes, 263 F.R.D. 518
(N.D. Ind. 2009) (“Factual information may not be withheld under the work product doctrine, but
must be produced through interrogatories, depositions or other discovery.”) (citation omitted);
Suggs v. Whitaker, 152 F.R.D. 501, 507 (M.D.N.C. 1993) (“while the work product document
itself may be privileged, the facts underlying it are not …. Therefore, a witness may be
interrogated at his deposition concerning the facts contained in the work product report ….”).
21

In so concluding, however, the Court does not adopt plaintiff’s unpersuasive
contentions that (i) the work product doctrine is inapplicable because defendants have not shown
that Pryor’s involvement was “in anticipation of litigation;” and (ii) the “death knell” of
defendants’ invocation of work product privilege is their failure to produce a privilege log. As to
the former point, the circumstances identified by defendants (and Pryor’s averments in her
affidavit) make clear that the only reason she went to the Sears store and coordinated the June
2014 accident investigation was in anticipation of litigation. As to the latter point, defendants
posit (with no contrary showing from plaintiff) that plaintiff never requested information from
Pryor during discovery that lay within the scope of the work product privilege. Indeed, it
appears that plaintiff neither took Pryor’s deposition nor subpoenaed documents from her;
therefore, plaintiff has done nothing that might trigger an obligation by defendants to produce
such a privilege log.

-24-

Rather than get bogged down in hypothetical exercise about whether these privileges will
or will not apply if certain kinds of questions are asked, the Court finds that the most efficient
course of action is simply to deny the Motion in Limine on this point. It appears that Kirksey
intends to question Pryor at trial about matters that lie outside the proscriptions of attorney-client
and work product privileges. That said, nothing herein forbids defendants from renewing these
objections at trial in the event that plaintiff does call Pryor as a witness and asks questions that
implicate principles of attorney-client privilege or work product.
XI.

Motion to Exclude Deposition Testimony of Jon Halpern.
The eleventh category of information covered by defendants’ omnibus Motion in Limine

is the deposition testimony of Jon Halpern. In the initial iteration of the Joint Pretrial Document
(doc. 103) filed on July 18, 2016, plaintiff disclosed for the first time her intent to rely on
excerpts from Halpern’s deposition taken in August 2012 in a fatal escalator fall case in New
Jersey styled Vellanti v. Game On! Atlantic City (the “Vellanti Case”). (Doc. 103, Exh. 3, at 1;
doc. 133, Exh. 11A.) The parties agree that Halpern testified in the Vellanti Case as an expert
witness retained by Schindler (which was also a named defendant in that case), but that Halpern
was neither an officer nor an employee of Schindler at the time he was deposed. Importantly,
Halpern was not designated by Schindler as a Rule 30(b)(6) witness in the Vellanti Case, but
rather was a retained expert who testified only to his own opinions. Kirksey intends to read into
the record a number of potentially damaging statements made by Halpern in that deposition.22
In response to the Motion in Limine, plaintiff explains that she intends to use Halpern’s
deposition from the Vallenti Case under Rule 32(a)(8), Fed.R.Civ.P. (Doc. 133, at 33.) That rule
allows a deposition taken in an earlier action to be “used in a later action involving the same
22

For example, Halpern testified that, as to falls over handrails of escalators in open
wellways, “[m]y opinion is foreseeable by everyone,” and that it was foreseeable by Schindler
both that someone could fall over the rail of an escalator and that such a fall could lead to serious
injury or death. (Doc. 133, Exh. 11A, at 65-66.) Halpern further testified that he had read the
Fruin Article in the 1990s (he worked for a Schindler entity in Switzerland in 1990-92 and 199598), and that he understood that escalators could be fully enclosed. (Id. at 83, 87-88.) Halpern
also opined in the Vellanti Case that “any escalator in the world can have a running guardrail
placed next to it,” and that Schindler must have been aware of that fact because “it’s pretty
reasonable.” (Id. at 98.) And Halpern testified that escalator codes are just “minimum
requirements” and that Schindler was free to implement additional safety measures so long as
they do not violate the code. (Id. at 125.)

-25-

subject matter between the same parties, or their representatives or successors in interest, to the
same extent as if taken in the later action.” Id. This provision does not authorize Kirksey’s use
of the Halpern deposition because this is not “a later action involving the same subject matter
between the same parties.” Id. (emphasis added). The subject matter differs because the
Vallenti Case concerned a 2009 escalator fall in New Jersey, whereas this case involves a 2014
escalator fall in Alabama. And the parties differ because Kirksey was not a party to the Vallenti
Case, the Vallenti plaintiff is not a party here, and there is no overlap among the defendants other
than Schindler. Nonetheless, plaintiff pins her hopes on the second sentence of Rule 32(a)(8),
which provides that “[a] deposition previously taken may also be used as allowed by the Federal
Rules of Evidence.” Id.
Plaintiff contends that the Federal Rules of Evidence would allow the Halpern deposition
from the Vallenti Case to be used at trial here as an opposing party’s statement. The Federal
Rules of Evidence allow for admission of a statement offered against an opposing party if it “is
one the party manifested that it adopted or believed to be true” or “was made by a person whom
the party authorized to make a statement on the subject.” Rule 801(d)(2)(B)-(C). With respect
to Rule 801(d)(2)(B), plaintiff points to nothing in the record supporting a reasonable inference
that Schindler ever manifested that it adopted or believed to be true any of Halpern’s statements
in the subject deposition excerpts from the Vallenti Case. Although plaintiff insists that
Schindler’s acts of hiring Halpern as an expert in the Vallenti Case, disclosing his opinions in
that case and making him available for deposition in that case must mean that Schindler adopted
or believed his statements to be true, Kirksey offers neither law nor facts to support such a
conclusion. Indeed, plaintiff identifies not a single decisional authority that has ever construed
Rule 801(d)(2)(B) as automatically covering all opinions and testimony offered by an expert
retained by a party in previous unrelated litigation. And with regard to the facts, plaintiff does
not show that Schindler had any idea Halpern would offer the specific opinions Kirksey seeks to
use here until he uttered the words during the Vellanti Case deposition. It is common sense that
a litigant does not manifest that it adopted or believed to be true a witness’s statements simply by
designating that individual as a witness, where the litigant was unaware of those specific

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statements at the time of such designation.23 Thus, Kirksey has not shown that Halpern’s
deposition excerpts from the Vallenti Case would be admissible pursuant to Rule 801(d)(2)(B).
As for Rule 801(d)(2)(C), that exception applies to statements “made by a person whom
the party authorized to make a statement on the subject.” Id. Plaintiff has not shown that
Schindler authorized Halpern to speak for it in the Vallenti Case. Certainly, Schindler did not
designate Halpern as a Rule 30(b)(6) witness to testify on Schindler’s behalf. The mere fact that
Halpern was a retained expert does not imply that Schindler specifically authorized him to speak
for the company on all topics raised at his deposition; rather, Halpern was speaking only for
himself in his capacity as a retained expert. Thus, Rule 801(d)(2)(C) has no application here.
See, e.g., Kirk v. Raymark Industries, Inc., 61 F.3d 147, 164 (3rd Cir. 1995) (“[O]ne can call an
expert witness even if one disagrees with the testimony of the expert. Rule 801(d)(2)(C) requires
that the declarant be an agent of the party-opponent against whom the admission is offered, and
this precludes the admission of the prior testimony of an expert witness where, as normally will
be the case, the expert has not agreed to be subject to the client’s control in giving his or her
testimony.”).24 Plaintiff has identified not a single case authority to the contrary, and no
23

An example illustrates the point. Party A designates Witness X as an expert
based on certain opinions Witness X has given Party A. Party B takes Witness X’s deposition.
During that deposition, Party B asks questions of Witness X that go beyond the specific opinions
Witness X previously gave Party A. Witness X answers those questions in a manner that he had
never previously expressed to Party A and that Party A did not anticipate. Party A does not call
Witness X to testify at trial. In those circumstances, Party A cannot rationally be said to have
manifested agreement or belief in the truth of those specific deposition responses simply by
designating Witness X as an expert; after all, Party A was unaware of them until the moment the
testimony was given. Stated differently, a party does not, by the simple act of designating an
expert witness, automatically and irrevocably adopt everything that witness may say in the case.
24

See also N5 Technologies LLC v. Capital One N.A., 56 F. Supp.3d 755, 765 (E.D.
Va. 2014) (“An expert report therefore is not admissible under Rule 801(d)(2) absent a
showing—not present here—that the expert was acting as the party’s agent or employee or was
specifically authorized to make a statement on that subject.”); Durham v. County of Maui, 804 F.
Supp.2d 1068, 1072 (D. Haw. 2011) (“Plaintiffs did not authorize Dr. Blair to make the
particular statements in the Blair Report. Rather, the Blair Report provides Dr. Blair’s
independent opinions regarding Jessica’s medical care; Plaintiffs may or may not ultimately
adopt such statements as their own. The court therefore finds that Rule 801(d)(2)(C) does not
apply to the Blair Report.”); Glendale Federal Bank, FSB v. United States, 39 Fed.Cl. 422
(Fed.Cl. 1997) (“The expert witness, testifying under oath, is expected to give his own honest,
independent opinion. Even at the time of his deposition he remains autonomous. … [Only] when
(Continued)
-27-

evidence that Schindler specifically authorized Halpern to make the particular statements in the
excerpts from his Vallenti deposition. Moreover, the record contains not a shred of evidence that
Schindler has ever authorized Halpern to speak for it in this case. Schindler has not retained
Halpern as an expert and has not identified him as a witness in this matter (except that it does
intend to call him if Kirksey is allowed to introduce his Vallenti Case deposition testimony).
Simply put, Halpern is not authorized to speak for Schindler in the matter of Jakobe Kirksey’s
fatal fall; therefore, his deposition testimony in the Vallenti Case is not admissible against
Schindler as a statement authorized by an opposing party pursuant to Rule 803(d)(2)(C).
For all of these reasons, the Motion in Limine is granted on this point, and the deposition
excerpts containing testimony of Jon Halpern in the Vallenti Case are excluded as hearsay not
falling within any recognized exception, and as being otherwise inadmissible under Rule
32(a)(8), Fed.R.Civ.P.
XII.

Motion to Exclude Evidence of Schindler’s Post-Installation Actions.
Next, defendants request that evidence of Schindler’s post-installation actions be

excluded as irrelevant to any issues joined for trial. As grounds for this component of the
Motion in Limine, defendants correctly observe that Kirksey’s only remaining causes of action

an expert is put forward for trial is it reasonable and fair to presume they have been
authorized.”); Skyhook Wireless, Inc. v. Google, Inc., 2015 WL 10015295, *5 (D. Mass. Feb. 27,
2015) (“Because Google withdrew Dr. Boriello before the trial – and even engaged replacement
experts to offer opinions on the same topics … – Dr. Boriello’s report and deposition are not
party admissions by Google.”); Mann v. Lincoln Electric Co., 2010 WL 11234292, *2 (N.D.
Ohio May 5, 2010) (“When an expert is put forward as a testifying expert at the beginning of
trial, the prior deposition testimony of that expert in the same case is an admission against the
party that retained him. Where an expert witness is withdrawn prior to trial, however, the prior
deposition testimony of that witness may not be used. That deposition testimony is hearsay.”)
(citations omitted); Minebea Co., Ltd. v. Papst, 2005 WL 6271045, *1 (D.D.C. Aug. 2, 2005)
(“Because, therefore, Minebea withdrew Mr. Wagner as an expert witness prior to trial, his
deposition testimony will not be treated as an admission by a party-opponent and is therefore
hearsay. It will not be admitted.”). The old Fifth Circuit case of Collins v. Wayne Corp., 621
F.2d 777 (5th Cir. 1980) – which neither party cited in briefing this issue – is distinguishable
because in that case the court made an express finding that a consultant hired by Wayne to
investigate a bus accident acted as the party’s agent in that endeavor. See id. at 782 (“In this
case, Greene was Wayne’s agent as Wayne employed Greene to investigate and analyze the bus
accident.”). Here, by contrast, Kirksey has never argued, much less shown, that Halpern was
acting as Schindler’s agent when he gave a deposition in the Vallenti Case.

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against Schindler specifically relate to “the sale, design, manufacture, and installation of the
subject escalator in 1997.” (Doc. 139, at 2.)
Plaintiff’s counterarguments are unpersuasive. Initially, plaintiff points to a discrepancy
between the heading of this section of the Motion (which refers to “Schindler’s post-incident
actions”) and the body of this section of the Motion (which refers to “Schindler’s postinstallation actions”). Contrary to plaintiff’s assertion, this inconsistency in no way renders the
Motion violative of Rule 7(b)(1), Fed.R.Civ.P. From a fair reading of the Motion, it is plain that
defendants seek exclusion of all evidence of what Schindler did or failed to do following the
March 1997 installation of the subject escalator. Alternatively, Kirksey balks that she should be
allowed to present evidence of “Schindler’s ongoing obligation under its maintenance contract”
and to argue that “Schindler surely had a duty to inform its customer that the product was unsafe
and in need of modification.” (Doc. 133, at 35.) But no such claims are joined for trial in this
case. The jury will not be asked to decide whether Schindler breached an obligation under an
escalator maintenance contract or failed to fulfill a duty to warn Sears post-installation. Those
theories simply are not part of the case. As such, evidence that Schindler failed to maintain the
escalator properly or failed to warn Sears of known dangers to the escalator is not relevant. Nor
can plaintiff present evidence that “Schindler has assumed a duty to perform post-installation
retrofits of escalators with safety devices” (id.) because the Joint Pretrial Document identifies no
such failure-to-retrofit claim or cause of action. All of this evidence is properly excluded on
relevance grounds.
For the foregoing reasons, the Motion in Limine is granted as to defendants’ request to
exclude evidence of Schindler’s post-installation actions, with two caveats. First, nothing herein
forbids Kirksey from introducing evidence of Schindler’s post-March 1997 conduct for the
limited purposes of demonstrating Schindler’s pre-1997 knowledge of defects or foreseeability
(such as, for example, the ASME Minutes). Second, if defendants were to open the door (by, for
example, commenting or presenting evidence that “Schindler never can or never has installed
post-installation retrofits of safety devices” (doc. 133, at 35)), then Kirksey may be permitted to
introduce limited evidence to rebut that proposition and set the record straight. Otherwise,
however, plaintiff must tailor her evidentiary presentation and arguments at trial to the specific
claims against Schindler identified in the Joint Pretrial Document (all of which are “related to the

-29-

sale, design, manufacture, and installation of the subject escalator in 1997” (doc. 139, at 2)), and
no others.
XIII. Motion to Exclude Evidence that Plaintiff Has Not Disclosed under Rule 26(e).
Part thirteen of defendants’ Motion in Limine is a request for exclusion of “[a]ny
information not previously provided by Plaintiff per Defendants’ discovery requests to Plaintiff,
for which Plaintiff has a duty under Federal Rule of Civil Procedure 26(e) to supplement her
responses.” (Doc. 128, at 24.) Defendants’ Motion identifies no specific documents or
information that they contend should be excluded; rather, they simply request a generic
declaration that plaintiff will not be allowed to use information that she should have disclosed to
defendants but did not. In essence, then, defendants are asking for a blanket ruling that this
Court will enforce the provisions of Rule 26(e). Such an advisory statement – essentially,
confirming that the Federal Rules of Civil Procedure govern this case – would not be
constructive and would provide no meaningful guidance to the parties for their evidentiary
presentations at trial. Accordingly, the Motion in Limine is denied on this point as unhelpful
and unnecessary. Any assertions that one side or the other has failed to supplement or disclose
as required by Rule 26(e) will be addressed on a case-by-case basis during trial, as appropriate.
XIV. Motion to Exclude Evidence of Defendants’ Insurance Status.
Defendants also request exclusion of “[t]he fact that Defendants are insured or may have
insurance regarding any damages awarded Plaintiff in this matter.” (Doc. 128, at 24.) Plaintiff
consents to this request; therefore, the Motion in Limine is granted in this regard.
XV.

Motion to Exclude Evidence of Settlement Negotiations.
Both sides are in agreement that the jury should not hear evidence or argument

referencing “[t]he fact that settlement discussions have been unsuccessful and/or the terms of any
settlement discussions.” (Doc. 128, at 24; doc. 133, at 36; doc. 136, at 30.) Accordingly,
defendants’ Motion in Limine is granted on this issue and all parties are precluded from
introducing such evidence or mentioning such facts at trial.
XVI. Motion to Exclude Evidence of Filing of Motion in Limine.
Both sides further agree that the jury should not hear information or receive evidence
about the parties’ filing of Motions in Limine in this case to attempt to exclude certain evidence
and arguments. The Court does not perceive any valid reason why it would be appropriate to
inform the jury about pretrial motion practice in this case, particularly as it relates to evidentiary

-30-

matters or categories of arguments and information that the jury will or will not be allowed to
receive; therefore, the Motion in Limine is granted on this topic, and all such evidence and
references are excluded from trial.
XVII. Motion to Exclude Correspondence between Counsel, Court Staff and Mediator.
By agreement of the parties, the Motion in Limine is granted to exclude all parties from
introducing into evidence or otherwise referencing at trial any “[c]orrespondence by and between
counsel for the parties of record, [c]ourt staff, and mediators.” (Doc. 128, at 25.)
XVIII. Motion to Exclude References to Plaintiff’s Obligation to Pay Counsel or Expenses.
Via Motion in Limine, defendants ask that plaintiff be excluded from making “[a]ny
reference to the fact that Plaintiff will have to pay her attorney or pay litigation expenses out of
any recovery had in this case.” (Doc 128, at 25.) Plaintiff consents to this restriction. On that
basis, the Motion in Limine is granted to preclude any such references during trial.
XIX. Motion to Bar Plaintiff from Requesting Stipulations in Presence of Jury.
The next component of defendants’ Motion in Limine is a request “[t]hat Plaintiff not be
permitted to request stipulations in the presence of the jury.” (Doc. 128, at 25.) Plaintiff
opposes this Motion as having no value and potentially delaying the trial. The Court agrees with
defendants that stipulation discussions between counsel are best conducted either when trial is in
recess or at sidebar conferences. There is no proper reason why counsel should be proposing or
discussing possible stipulations in front of the jury; furthermore, such discussions raise
unreasonable risks of unfair prejudice or contamination of the jury. More broadly, it is expected
that the parties will work together before trial to identify topics for potential stipulation, and that
they will confer as appropriate before trial to ascertain whether any such stipulations are
achievable and, if so, what their contours will be. The Motion in Limine is granted to prohibit
both sides from requesting in the jury’s presence that opposing counsel agree to stipulations.
XX.

Motion to Bar Plaintiff from Referencing Refusal to Stipulate.
Just as it is inappropriate for counsel to broach the topic of potential stipulations with

opposing counsel in front of the jury, so too it is improper for either side to introduce evidence
of, or otherwise reference, their adversary’s declination of any proposed stipulations. Whether a
party has refused to enter into a stipulation to which another party thinks they should have agreed
is not a proper subject for examination of witnesses or closing argument. The Motion in Limine

-31-

is granted to bar all parties from making any reference or introducing any evidence to show that
another party failed or refused to enter into any proposed stipulations.
XXI. Motion to Forbid Plaintiff from Referencing Discovery Disputes.
As an additional element to their Motion in Limine, defendants ask for a ruling that
“Plaintiff not be permitted to bring up alleged discovery disputes.” (Doc. 128, at 25.) All parties
are in agreement that the jury should not hear anything about discovery disputes that may have
occurred earlier in this litigation. Accordingly, the Motion is granted on this point. The parties
are barred from offering into evidence or referencing in the presence of the jury any discovery
disputes they may have encountered at any time during the lifespan of these proceedings, from
the date of Jakobe’s fall through the date of trial.
XXII. Motion to Preclude References to Ethical or Moral Obligations.
Part twenty-two of defendants’ Motion in Limine seeks to exclude plaintiff from
introducing evidence or referencing “any moral or ethical obligation on the part of Defendants’
[sic].” (Doc. 128, at 25.) Defendants do not identify any witness or evidence that Kirksey has
disclosed regarding the ethical or moral obligations of Sears and Schindler. It appears no such
evidence exists. The Motion is denied insofar as it seeks to bar plaintiff from introducing
evidence that Kirksey has never suggested she intends to present at trial.25 To the extent that
defendants seek an order barring plaintiff from making any argument impugning the ethics or
morality of defendants’ conduct, the Court declines to do so. It is, after all, a cornerstone of
applicable law that punitive damages awards are properly based on the jury’s assessment of the
reprehensibility of the defendants’ conduct. See, e.g., Target Media Partners Operating Co. v.
Specialty Market Corp., 177 So.3d 843, 880 (Ala. 2013) (for purposes of punitive damages
award, “[t]he degree of reprehensibility of the defendants’ conduct should be considered. The
25

The cases defendants cite in their reply are inapposite. In Davis v. Duran, 277
F.R.D. 362 (N.D. Ill. 2011), the plaintiff sought to introduce expert testimony from a police
practices specialist that the defendant police officer “had a moral and ethical obligation to testify
honestly and accurately about what happened.” Id. at 373. Similarly, in In re Trasylol Products
Liability Litigation, 2010 WL 1489793 (S.D. Fla. Feb. 24, 2010), the court excluded expert
testimony that the defendant had breached “ethical standards” to conduct additional
pharmaceutical safety trials. Id. at *7-9. Here, by contrast, there is no indication that Kirksey
intends to elicit opinion testimony from any expert or fact witness about whether Sears and
Schindler behaved in a manner that comports with ethical or moral standards.

-32-

relation of this conduct, the degree of the defendants’ awareness of any such conduct and any
concealment or cover-up, and the existence and frequency of similar past conduct should all be
relevant in determining this degree of reprehensibility.”) (citations omitted); Ross v. RosenRager, 67 So.3d 29, 42 (Ala. 2010) (“Perhaps the most important indicium of the reasonableness
of a punitive damages award is the degree of reprehensibility of the defendant’s conduct.”)
(citation omitted). Defendants have identified no authority that would forbid a plaintiff from
arguing reprehensibility of conduct for purposes of punitive damages in moral or ethical terms.
Because arguments that defendants behaved immorally or unethically bear on the
reprehensibility analysis, and because the degree of reprehensibility of defendants’ conduct is
perhaps the most important indicium of reasonableness of a punitive damages award under
Alabama law, defendants’ Motion in Limine is denied to the extent that defendants seek to
preclude plaintiff from couching reprehensibility arguments in moral or ethical terms.
XXIII. Motion to Exclude References to Defendants’ Counsel’s Areas of Specialization or
Representation of the Same or Similar Parties in Other Matters.
The parties concur that plaintiff should not make any references or present any evidence
on the topic of whether defendants’ attorneys represent Sears and/or Schindler in other matters,
why they represent other manufacturers or insurance companies in other lawsuits, or whether
they specialize in escalator litigation. (Doc. 128, at 25; doc. 133, at 38.) Accordingly, the
Motion in Limine is granted on this point. Each side must refrain from commenting on
opposing counsel’s areas of specialization, client list, and involvement in other similar cases.
XXIV. Motion to Exclude References to Apologies or Lack Thereof.
In part twenty-four of their Motion in Limine, defendants move that Kirksey be forbidden
from requesting or demanding that defendants apologize, or from characterizing defendants as
“unapologetic.” For her part, plaintiff has no intent “to request that Defendants or their counsel
‘apologize’ for their misconduct.” (Doc. 133, at 38.) The Motion in Limine is unnecessary to
forbid plaintiff from doing something she has no intention of doing, and is therefore denied as to
the request to bar plaintiff from asking defendants to apologize. As for the portion of this
Motion seeking to preclude plaintiff from describing defendants as unapologetic, defendants’
remorse (or lack thereof) appears germane to the reprehensibility inquiry that applies in the
punitive damages analysis. (See § XXII, supra.) Certainly, defendants have come forward with
no authority that would limit or prevent a plaintiff in a wrongful death case under Alabama law
from introducing evidence that Sears did not apologize to Kirksey and from arguing that Sears
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was unapologetic. Such facts and argument appear germane to the question of reprehensibility,
which is a critical indicium for the award of punitive damages. On this showing, the Motion in
Limine is denied as to plaintiff’s ability to introduce evidence or make arguments that Sears did
not apologize or was not apologetic.
XXV. Motion to Exclude References to Defendants’ Financial Status.
Finally, defendants request in their Motion in Limine that the Court enter an order
precluding plaintiff from making “[a]ny reference to Defendants’ net worth, sales, revenues,
amount of assets, or other financial information, including the net worth of any owner, employee,
or witness of Defendants.” (Doc. 128, at 25.) Plaintiff agrees to this limitation; therefore, the
Motion in Limine is granted on this point. That said, nothing herein forbids or in any way
constrains plaintiff from introducing evidence or argument reflecting Schindler Group’s stature
in the escalator industry.26
XXVI. Conclusion.
For all of the foregoing reasons, defendants’ 25-part Motion in Limine (doc. 128) is
granted in part, and denied in part, as set out in detail herein.
DONE and ORDERED this 6th day of December, 2016.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

26

In their reply, defendants protest that any reference to Schindler Group as “a
leading global provider of escalators” would be improper because Kirksey should not be allowed
to present evidence about other Schindler entities at all. This matter has already been addressed
supra. Evidence concerning other Schindler entities is relevant insofar as Schindler Elevator
Corporation (the named defendant in this case) relied on those other Schindler entities for R&D
and received product designs and/or safety information from those Schindler entities as a matter
of course during the relevant time period. The industry stature of those other Schindler entities
supplying information to defendant Schindler may therefore be relevant as bearing on the
knowledge provided to, or otherwise made available to, defendant Schindler.

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