Thompson et al v. Polaris Industries Incorporated et al

Filing 271

ORDER that Plaintiffs' Motions in Limine (Docs. 186 , 187 , 188 , 189 , 206 , 209 , 210 , 213 , 215 , 216 , 217 , 218 , 221 , 223 , 225 and 227 ), and Defendants' Motions in Limine (Docs. 190 , 194 , 196 , 200 , 201 , 202 , 205 , 207 and 208 ) are DENIED without prejudice. ORDERED that Plaintiffs' Motions in Limine (Docs. 203 , 204 , 224 and 226 ), and Defendants' Motions in Limine (Docs. 192 , 193 , 198 , and 211 ) are GR ANTED. IT IS FURTHER ORDERED that Defendants' Motions in Limine (Doc. 191 , 195 , 197 , 199 and 212 ) are GRANTED in part and DENIED in part as set forth in this Order. Signed by Judge Diane J Humetewa on 5/17/2019. (See Order for details.) (LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael Thompson, et al.,
Plaintiffs,

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ORDER

v.

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No. CV-16-02868-PHX-DJH

Polaris Industries Incorporated, et al.,

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Defendants.

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Before the Court are Plaintiffs’ twenty Motions in Limine (Docs. 186-89, 203, 204,

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206, 209, 210, 213-27) and Defendants’ Responses in Opposition (Docs. 230-42, 244, 245-

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49), and Defendants’ eighteen Motions in Limine (Doc. 190-202, 205, 207, 208, 211, 212)

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and Plaintiffs’ Responses in Opposition (Docs. 288, 229, 250-254, 255, 256-65).

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I.

LEGAL STANDARD

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“Although the Federal Rules of Evidence do not explicitly authorize in limine

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rulings, the practice has developed pursuant to the district court’s inherent authority to

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manage the course of trials.” Luce v. United States, 469 U.S. 38, 40 n.4 (1984). The Ninth

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Circuit has explained that motions in limine “allow parties to resolve evidentiary disputes

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ahead of trial, without first having to present potentially prejudicial evidence in front of a

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jury.” Brodit v. Cabra, 350 F.3d 985, 1004–05 (9th Cir. 2003) (citations omitted).

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Generally, motions in limine that seek exclusion of broad and unspecific categories of

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evidence are disfavored. See Sperberg v. Goodyear Tire and Rubber Co., 519 F.2d 708,

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712 (6th Cir. 1975). Motions in limine are “entirely within the discretion of the Court.”

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Jaynes Corp. v. American Safety Indem. Co., 2014 WL 1154180, at *1 (D. Nev. March 20,

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2014) (citing Luce, 469 U.S. at 41–42). Moreover, “[a] motion in limine is not the proper

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vehicle for seeking a dispositive ruling on a claim, particularly after the deadline for filing

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such motions has pass.” Hana Fin., Inc. v. Hana Bank, 735 F.3d 1158, 1162 (9th Cir.

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2013), aff’d, 135 S. Ct. 907, 190 L. Ed. 2d 800 (2015) (citing Dubner v. City & Cnty. of

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S.F., 266 F.3d 959, 968 (9th Cir. 2001).

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Motions in limine are “provisional” in nature. Goodman v. Las Vegas Metro. Police

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Dep’t, 963 F.Supp.2d 1036 (D. Nev. 2013), aff’d in part, rev’d in part, and dismissed in

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part on other grounds, 613 F. App’x 610 (9th Cir. 2015). The Court issues its rulings on

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motions in limine based on the record currently before it. Therefore, rulings on such

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motions “‘are not binding on the trial judge [who] may always change his [or her] mind

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during the course of a trial.’” Id. (quoting Ohler v. United States, 529 U.S. 753, 758 n.3

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(2000) (citing Luce, 469 U.S. at 41 (noting that in limine rulings are always subject to

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change, especially if the evidence unfolds in an unanticipated manner))). “‘Denial of a

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motion in limine does not necessarily mean that all evidence contemplated by the motion

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will be admitted to trial. Denial merely means that without the context of trial, the court is

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unable to determine whether the evidence in question should be excluded.’” Id. (quoting

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Ind. Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d 844, 846 (N.D. Ohio 2004)).

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II.

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DISCUSSION
A.

Plaintiffs’ Motions in Limine
1.

Doc. 186

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In this Motion in Limine, Plaintiffs argue that because they have withdrawn their

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claim of “defect predicated upon inadequate warnings[,]” the Court should preclude the

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testimony of Defendants’ expert, Dr. Dorris, because his opinions regarding the Polaris

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RZR warnings are irrelevant. (Doc. 186 at 1-2). Defendants contend that there were

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warning labels affixed to the Polaris RZR that “clearly stat[ed] that the RZR [could]

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overturn, resulting in serious injury or death.” (Doc. 231 at 2). Defendants further argue

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that evidence of the warning labels is essential to its assumption of the risk defense.

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In Arizona, the two recognized affirmative defenses to a strict products liability

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claim are: (1) assumption of risk and (2) product misuse. See Jimenez v. Sears, Roebuck

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& Co., 904 P.2d 861, 864 (Ariz. 1995) (en banc). Thus, the Court finds that Dr. Dorris’s

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testimony may be relevant to Defendants’ defenses of misuse or assumption of the risk.

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Furthermore, as discussed infra Sections II(A)(18) and II(A)(20), whether Plaintiffs

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misused the product or assumed the risk, under Arizona law, is an issue that must be

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submitted to a jury (if the requisite evidence for an instruction on the defense is adduced).

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See Sw. Pet Products, 273 F. Supp. 2d at 1061 n.31. See States Aviation Underwriters, Inc.

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v. Aerospatiale, Societe Nationale Industrielle, 2005 WL 8161454, at *2 (D. Ariz. Nov. 1,

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2005). Accordingly, Plaintiffs’ Motion is denied without prejudice.
2.

Doc. 187

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In this Motion in Limine, Plaintiffs argue that the Court should exclude any

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reference to Exponent’s Incident Specific Orientation Inversion Test (“Spit Test”). (Doc.

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187 at 1). Specifically, Plaintiffs contend that the Spit Test did not rotate the Polaris RZR

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twice, the surrogate used in the test was two inches taller than Mr. Thompson, and the test

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was not filmed. (Id. at 2). Defendants contend that the Spit Test was “conducted by

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[Defendants’] experts to demonstrate and illustrate engineering principles that will be

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helpful to the jury’s understanding of the experts’ testimony, as well as the physics at work

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during the subject accident.” (Doc. 230 at 1). Defendants further argue that “Plaintiffs’

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critiques of the [Spit] Test go solely to the weight, not to the admissibility, of the evidence.”

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(Id. at 2). The Court agrees. As previously discussed in the Court’s Order on the parties’

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Daubert motions (Doc. 268), Plaintiffs’ challenges to the Spit Test go to the weight of the

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testimony and its credibility, not its admissibility. See Primiano v. Cook, 598 F.3d 558,

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564 (9th Cir. 2010), as amended (Apr. 27, 2010) (“Shaky but admissible evidence is to be

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attacked by cross examination, contrary evidence, and attention to the burden of proof, not

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exclusion.”). Accordingly, Plaintiffs’ Motion is denied without prejudice.

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3.

Doc. 188

In this Motion in Limine, Plaintiffs argue that the Court should exclude all

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“testimony, opinions, and arguments by [D]efendants regarding [Mr.] Thompson’s alleged

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fault” because, “[i]n Arizona, the defense of contributory negligence and/or comparative

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fault is not available in a claim based on strict product liability.” (Doc. 188 at 1-2). In

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other words, Plaintiffs urge the Court to find that Arizona’s bar of the contributory

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negligence defense in strict products liability actions requires the exclusion of evidence of

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Plaintiffs’ conduct.

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Defendants contend that under Arizona law, a comparative fault instruction for

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misuse can be proper, even if there is no negligence theory.1 See Jimenez, 904 P.2d at 867–

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68 (“Thus, a comparative fault instruction for misuse, as well as one for assumption of risk,

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would be proper even if negligence theories have not been alleged . . . .”). Specifically,

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Defendants argue that Plaintiffs misused the Polaris RZR and, therefore, they are entitled

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to introduce evidence of Plaintiffs’ conduct.

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“A prima facie case of strict products liability is established by showing that when

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the product left the defendant’s control, it was in a defective condition that made it

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unreasonably dangerous and the defect was a proximate cause of plaintiff’s injuries.”

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Jimenez, 904 P.2d at 864. As Plaintiffs note, contributory negligence is not a defense to a

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strict products liability suit. See id. “Contributory negligence is not applicable to strict

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liability because, under the doctrine of strict liability, no duty rests upon the ultimate

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consumer or user to search for or guard against the possibility of product defects.” Id.

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Rather, the Court found that the two recognized affirmative defenses to a strict products

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liability claim are: (1) assumption of risk and (2) product misuse. Id. Arizona defines

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these various liabilities as follows:
(1) Failure to discover a defect in the product which the plaintiff should, if
he was reasonably diligent, have discovered is contributory negligence; (2)
notwithstanding the discovery of such a defect, if the plaintiff nevertheless
uses the article it is assumption of risk; and (3) the plaintiff’s use of the
product for certain purposes or in a manner not reasonably foreseen by the

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As an initial matter, the Court finds that Plaintiffs’ notification to the Court and
Defendants in their motion in limine that they intend to dismiss their negligence claim to
be improper. Thus, if Plaintiffs wish to dismiss their negligence claim they must do so in
a proper manner.
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manufacturer is misuse.
Id. (emphasis added; internal quotations and brackets deleted).

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Thus, Arizona law provides that a defendant in a strict products liability action shall
not be liable if it proves that the proximate cause of the plaintiff’s injury was “a use or
consumption of the product that was for a purpose, in a manner or in an activity other than
that which was reasonably foreseeable or was contrary to any express and adequate
instructions or warnings appearing on or attached to the product . . . .” A.R.S. § 12-683(3);
see also Monje v. Spin Master Inc., 2015 WL 13648554, at *6 (D. Ariz. July 24, 2015),
aff’d, 679 Fed. Appx. 535 (9th Cir. 2017). Arizona law defines a reasonably foreseeable
use as one “that would be expected of an ordinary and prudent purchaser, user or consumer
and that an ordinary and prudent manufacturer should have anticipated.” A.R.S. § 12681(8). “[S]ome abnormal, or unintended uses will not constitute a legal misuse of the
product, if they are reasonably foreseeable.” Kavanaugh v. Kavanaugh, 641 P.2d 258, 263
(Ariz. Ct. App. 1981) (citations omitted). “Whether misuse of a product is reasonably
foreseeable is generally a question of fact for the jury.” Adams v. Pac. Cycle, L.L.C., 2009
WL 532629, at *7 (Ariz. Ct. App. Mar. 3, 2009).

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Therefore, under Arizona law, Plaintiffs’ conduct is relevant to the defenses of
assumption of the risk and product misuse. United States Aviation Underwriters, 2005 WL
8161454, at *2. Thus, the Court finds that Plaintiffs’ conduct is relevant to prove that he
used the product in a manner not reasonably foreseen by the product manufacturer. Id.
Additionally, Plaintiffs’ conduct is the type of evidence that is relevant to proving what
caused the accident, an essential element of a strict products liability claim and arguably a
matter for the jury to determine.2 Accordingly, Plaintiffs’ Motion is denied without
prejudice.

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4.

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Doc. 189

In this Motion in Limine, Plaintiffs argue that the Court should exclude “any

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However, the Court notes that “not every improper use of a product will constitute misuse
rather than contributory negligence. Careless and thus improper handling or operation of
the product is negligent use but not misuse.” Jimenez, 904 P.2d at 870.
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evidence or argument regarding the absence of other similar incidents (“OSIs”) on the

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grounds that: (1) such evidence is without proper foundation; and (2) such evidence, if

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presented, permits an improper inference.” (Doc. 189 at 1-2). Defendants contend that

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Plaintiffs’ Motion is premature because, as long as Defendants lay proper foundation,

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evidence regarding the absence of other similar accidents is admissible. (Doc. 233 at 2).

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The Court agrees. At this time, this Motion is too speculative and vague. Plaintiffs can

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object to specific testimony or evidence at the appropriate time during trial. Accordingly,

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Plaintiffs’ Motion is denied without prejudice.

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5.

Doc. 203

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In this Motion in Limine, Plaintiffs argue that the Court should exclude “the use of

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the ‘risk-benefit test’ . . . and any evidence pertinent to that legal test and move for the

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application of the ‘consumer expectation’ test . . . to gauge whether the Polaris RZR was

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defective and not crashworthy.” (Doc. 203 at 1). Defendants contend that Plaintiffs are

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asserting negligence and product liability theories based on design defect claims and under

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Arizona law the risk-benefit test is appropriate in determining if a design defect is

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unreasonably dangerous. (Doc. 234 at 1-2).3

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“A manufacturer is strictly liable for injuries caused by use of any product that was

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in a ‘defective condition unreasonably dangerous.’” Golonka v. GM Corp., 65 P.3d 956,

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962 (Ariz. Ct. App. 2003) (quoting Dart v. Wiebe Mfg., Inc., 709 P.2d 876, 878 (Ariz.

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1985)). In Arizona, two models may be used to determine whether a product was

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defectively designed: the consumer expectation test and risk-benefit analysis. See Long v.

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TRW Vehicle Safety Sys., Inc., 796 F. Supp. 2d 1005, 1009 (D. Ariz. 2011). Under the

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consumer expectation test, “the fact-finder determines whether the product ‘failed to

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perform as safely as an ordinary consumer would expect when used in an intended or

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Defendants further provide that “Plaintiffs blatantly misstate the law in an attempt to
mislead the Court by making up quotes to suit their argument.” (Id. at 2). The Court notes
that Plaintiffs expanded the applicability of the holding in Feuerstein v. Home Depot,
U.S.A., Inc., 2014 WL 2557122 *4 (D. Ariz. June 6, 2014); however, the Court does not
agree with Defendants’ characterization of Plaintiffs’ motives. Nonetheless, the Court will
take this opportunity to remind both parties that they are responsible for accurately citing
authority and evidence to this Court.
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reasonable manner.’”

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Application of the consumer expectation test is warranted where “the ordinary consumer,

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through the use of a product, has developed an expectation regarding the performance

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safety of the product.” Brethauer v. GM Corp., 211 P.3d 1176, 1183 (Ariz. Ct. App. 2010).

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The risk-benefit analysis tests asks the fact-finder to decide, in light of relevant factors,

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whether “the benefits of [a] challenged design . . . outweigh the risk of danger inherent in

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[the] design.” Dart, 709 P.2d at 879. If not, the design was defective and unreasonably

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dangerous. Id. Courts apply the consumer expectation test when an ordinary customer

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through use of a product develops “an expectation regarding the performance safety of the

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product.” Brethauer, 211 P.3d at 1183. However, “when application of the consumer

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expectation test is unfeasible or uncertain . . . courts additionally or alternatively employ

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the risk/benefit analysis to determine whether a design is defective and unreasonably

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dangerous.” Golonka, 65 P.3d at 962.

Golonka, 65 P.3d at 962 (quoting Dart, 709 P.2d at 879).

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The Court finds persuasive the conclusion reached in Brethauer, and several other

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cases, that consumers have developed reasonable expectations about how safely seatbelts

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should perform. See Nance v. Toyota Motor Sales USA, Inc., 2014 WL 4702781, at *2 (D.

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Ariz. Sept. 22, 2014) (“In Arizona, the consumer expectation test applies to claims that

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seatbelts were defectively designed and unreasonably dangerous when they failed to

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restrain belted passengers.”); Brethauer, 211 P.3d at 1183 (“We are persuaded that

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consumers have expectations about how safely seatbelts will perform.”). Thus, the Court

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finds that under Arizona law—the applicable law in this case—the consumer expectation

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test applies to claims that seatbelts were defectively designed in that they failed to restrain

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belted passengers. See Brethauer, 211 P.3d at 1183–84; see also Nance, 2014 WL

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4702781, at *2 (“It is for the jury to decide whether ordinary consumers expect that

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properly functioning seatbelts will keep a passenger’s head inside a vehicle during a

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rollover crash.”). The Court recognizes that this case concerns not only the design of the

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restraint harness system/seatbelt, but also the design of the entire ROPS; nonetheless, the

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Court finds that the ordinary consumer could reasonably expect, similar to a seatbelt, that

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ROPS should restrain a passenger body within the confines of the vehicle during a rollover

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crash. See Nance, 2014 WL 4702781, at *2 (“Ordinary consumers could reasonably expect

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that a seatbelt should restrain a passenger’s body within the confines of the vehicle.”).

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Therefore, the Court will provide the consumer expectation test jury instruction.
Accordingly, Plaintiffs’ Motion is granted.

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6.

Doc. 204

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In this Motion in Limine, Plaintiffs argues that the Court should preclude

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“[D]efendants from making any reference to, or from cross-examining Plaintiffs’ expert

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Alan Cantor regarding issues that arose more than 21 years ago in a case styled Wiley v.

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General Motors Corporation, including whether Mr. Cantor was sanctioned in that case.”

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(Doc. 204 at 2). Specifically, Plaintiffs argue that “evidence of the granting of a mistrial

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and the basis for it, as well as any alleged conduct by Mr. Cantor in an unrelated 21-year

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old case is simply not relevant.” (Id. at 3). Defendants contend that “Mr. Cantor’s prior

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sworn testimony may be used to impeach him” and that “[s]pecific instances of a witness’s

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misconduct are also admissible to undermine his or her character for veracity.” (Doc. 235

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at 1-2).

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In Wiley v. General Motors, a mistrial was declared based on the defendant’s

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objection that Mr. Cantor had removed seventeen seconds from a demonstrative videotape

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that he had shown to the jury during his testimony. See Pierson v. Ford Motor Co., 2008

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WL 7084522, at *5 (N.D. Cal. Aug. 1, 2008), supplemented, 2008 WL 7074289 (N.D. Cal.

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Oct. 3, 2008), and supplemented, 2009 WL 1034233 (N.D. Cal. Apr. 16, 2009). The court

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in Wiley v. General Motors did not make a finding that Mr. Cantor engaged in intentional

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misconduct.

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The Court finds that the probative value of this material is far outweighed by the

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prejudice that will occur if it is allowed. The mistrial took place more than twenty years

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ago and involved a piece of demonstrative evidence that Plaintiffs are not offering at this

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trial. To explain the circumstances around the seventeen second omission in the videotape

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would require the parties to spend a considerable amount of resources and time responding

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to an issue that is of marginal relevance to Mr. Cantor’s testimony here. Thus, these factors

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weigh in favor of excluding this information. See Milne v. Volkswagen AG, 2009 WL

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10702722, at *2 (D. Vt. Jan. 22, 2009). However, pursuant to Rule 801(d), Defendants

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may of course use Mr. Cantor’s prior recorded testimony for impeachment purposes should

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his testimony in this trial be different than prior testimony. See Pierson, 2008 WL

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7084522, at *5. Accordingly, Plaintiffs’ Motion is granted.

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7.

Doc. 206

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In this Motion in Limine, Plaintiffs argue that the Court should exclude any mention

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of claims that were pled in Plaintiffs’ original Complaint that have been withdrawn or

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dismissed, including Plaintiffs’ negligence, warnings, and punitive damages claims. (Doc.

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206 at 1). Specifically, Plaintiffs provide that they “have informed the [D]efendants that

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the evidence proffered at trial will be limited to the legal theory of strict products liability-

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crashworthiness-design defects. (Count One of Plaintiffs’ Complaint).”

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contend that the “evidence of the existence of warnings is clearly relevant to [Defendants’]

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defenses of misuse and assumption of the risk, while evidence of nonparties Jet Rent and

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its owner Mark Frandsen’s (jointly, ‘Jet Rent’) fault is expressly permitted by the law.”

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(Doc. 239 at 1).

Defendants

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On January 23, 2017, Defendants filed a Notice of Nonparty at Fault pursuant to

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A.R.S. § 12-2506(b)(5), which provided notice to Plaintiffs “that they intend to assert that

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Jet Rent and/or its owners, employees, or agents, is at fault, in whole or in part, for the

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damages alleged in [P]laintiffs’ Complaint.” (Doc. 24). Plaintiffs argue that “because an

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allegation of comparative fault of a non-party is an affirmative defense, the defendant must

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prove the nonparty was causatively at fault” and because “the issues in this case relate to

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the design of the product, fault requires expert testimony.” (Doc. 206 at 2). Plaintiffs

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provided no case law that supports that position. Thus, as of now, the Court finds this

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request to be too vague and speculative. Plaintiffs can object at the appropriate time during

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trial. As to evidence regarding warnings, the Court finds that this evidence is admissible

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because it may be relevant to [Defendants’] defenses of misuse and assumption of the risk.

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See United States Aviation Underwriters, 2005 WL 8161454, at *2.

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Plaintiffs’ Motion is denied without prejudice.

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Accordingly,

Doc. 209

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In this Motion in Limine, Plaintiffs argue that Defendants should be precluded

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“from making any comments, reference to, or argument regarding any alleged ‘agreement’

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with Mark Frandsen relating to the subject RZR and the alleged fault of nonparties Jet Rent

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or Mark Frandsen.” (Doc. 209 at 1). Specifically, Plaintiffs provide that during Mr.

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Frandsen’s deposition, he

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testified that he believed he had an agreement with Plaintiffs that Jet Rent
would not be named as party in the lawsuit. In fact, a letter was sent to Mr.
Frandsen confirming that it was Plaintiffs’ counsel’s plan— at the time—not
to name Jet Rent as a defendant. This letter and any discussions between
counsel and Mr. Frandsen regarding the acquisition of the remnants of the
RZR constitute inadmissible hearsay that is irrelevant to the issues in this
case.

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(Id. at 2). Defendants contend that “evidence of the agreement and Jet Rent’s negligence

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is not only relevant; the jury is entitled by law to consider it.” (Doc. 240 at 3). Plaintiffs

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have provided no authority to support their position and at this time the Court finds their

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concerns speculative. Accordingly, Plaintiffs’ Motion is denied without prejudice.

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9.

Doc. 210

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In this Motion in Limine, Plaintiffs argue that the Court should preclude

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“[D]efendants, their counsel, and witnesses from making any comments, reference to, or

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argument that the 2011 RZR 800 complied with voluntary standards written by the industry

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and/or complied with irrelevant industry practices or customs on the grounds that: (1) there

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were no industry standards applicable to the crashworthiness of the RZR; and, (2) evidence

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of industry practices or customs is not relevant in a strict liability case.” (Doc. 210).

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Defendants contend that, in a strict liability case in Arizona, both state of the art and

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industry standards may be considered on the issue of whether a product is in a defective

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condition unreasonably dangerous to the user. (Doc. 241 at 2).

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“A manufacturer is strictly liable for injuries caused by use of any product that was

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in a ‘defective condition unreasonably dangerous.’” Golonka v. GM Corp., 65 P.3d 956,

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962 (Ariz. Ct. App. 2003) (quoting Dart v. Wiebe Mfg., Inc., 709 P.2d 876, 878 (Ariz.

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1985)). In any products liability case in Arizona, a defendant is not liable if it proves that

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“the defect in the product is alleged to result from inadequate design or fabrication, and if

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the plans or designs for the product or the methods and techniques of manufacturing,

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inspecting, testing and labeling the product conformed with the state of the art at the time

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the product was first sold by the defendant.” A.R.S. § 12–683(2). State of the art is defined

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as “the technical, mechanical and scientific knowledge of manufacturing, designing,

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testing or labeling the same or similar products that was in existence and reasonably

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feasible for use at the time of manufacturing.” A.R.S. § 12–681(10); see also Bauerline v.

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Equity Residential Properties Mgmt. Corp., 2006 WL 3834285, at *8 (D. Ariz. Dec. 29,

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2006).

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Plaintiffs argue that customs of an industry are not the same as the state of the art

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defense and Defendants’ compliance with voluntary standards written by the industry is

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irrelevant. (Doc. 210 at 3). Under Arizona law, customs of an industry are not the same

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as the state of the art defense; however, the Court nonetheless finds them relevant. See

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Bauerline, 2006 WL 3834285, at *8. Voluntary industry standards may be admissible

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because these standards may constitute substantive evidence on the strict liability issue of

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whether a product is in a defective condition unreasonably dangerous to the user. See

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Hohlenkamp v. Rheem Mfg. Co., 655 P.2d 32, 36 (Ariz. Ct. App. 1982). Accordingly,

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Plaintiffs’ Motion is denied without prejudice.

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10.

Doc. 213

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In this Motion in Limine, Plaintiffs argue that the Court should limit the testimony

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of Defendants’ expert, Eddie Cooper. (Doc. 213). Defendants contend that “Plaintiffs’

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challenges go - if at all - to the weight of Cooper’s testimony, not its admissibility.” (Doc.

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236). The Court agrees. See Primiano, 598 F.3d at 564 (9th Cir. 2010) (“Shaky but

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admissible evidence is to be attacked by cross examination, contrary evidence, and

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attention to the burden of proof, not exclusion.”). Moreover, the Court finds that this

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Motion is akin to a Daubert motion and that the deadline for Daubert motions has since

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passed. (Doc. 174). Accordingly, Plaintiff’s Motion is denied without prejudice.

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11.

Doc. 215

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In this Motion in Limine, Plaintiffs argue that the Court should exclude “a riding

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Demonstration” that was conducted by Defendants’ expert, Dr. Graeme Fowler, and

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exclude materials that were not timely disclosed. (Doc. 215 at 1). Specifically, Plaintiffs

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argue that the “Riding Demonstration” conducted on May 9, 2018, near the area where the

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subject accident occurred, should be excluded because it is not reliable and “is nothing

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more than ‘junk science.’” (Id. at 2). Additionally, Plaintiffs provide that Dr. Fowler was

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deposed on August 22, 2018, and on September 28, 2018, and October 1, 2018, Defendants

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provided several YouTube videos that support Dr. Fowler’s opinion. (Id.) Defendants

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contend that the “Riding Demonstration” show similar circumstances as on the day of the

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accident and that the challenged YouTube videos simply serve as general background

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information for Dr. Fowler and that even if “the videos themselves are excluded from

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evidence in this matter, Plaintiffs have provided no basis upon which the Court should limit

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Dr. Fowler’s ability to offer his full opinions in this case as stated in his report and

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expanded upon in his deposition.” (Doc. 237 at 2-3).

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The Court finds that the majority of this Motion is akin to a Daubert motion and

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that the deadline for Daubert motions has since passed. (Doc. 174). Moreover, concerns

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regarding the admission of “shaky” evidence are resolved through the trial process through

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“[v]igorous cross-examination, presentation of contrary evidence, and careful instruction

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on the burden of proof.” Daubert, 509 U.S. at 596; see also Tavilla v. Cephalon Inc., 2012

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WL 1190828, at *4 (D. Ariz. Apr. 10, 2012) (“vigorous cross-examination is still the

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preferred method for determining the truth of questionable opinion evidence.”). Plaintiffs

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have failed to specifically identify how the “Riding Demonstration” differs from the

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accident scene. Moreover, while “it must ordinarily be shown that the experiments were

27

conducted under substantially similar conditions to those prevailing during the occurrence

28

in controversy[;]” the Court notes that “the conditions do not need to be identical.” Herbert

- 12 -

1

v. Lumbermens, Inc., 2010 WL 2403754, at *6 (Ariz. Ct. App. June 15, 2010). Minor

2

differences in the conditions go to the weight of the evidence, not its admissibility. As to

3

the materials that Plaintiffs contend were not timely disclosed, the Court finds that

4

Plaintiffs have not identified with specificity what videos were not timely disclosed;

5

therefore, this request is too vague for the Court to render a decision on. Accordingly,

6

Plaintiffs’ Motion is denied without prejudice.

7

12.

Doc. 216

8

In this Motion in Limine, Plaintiffs argue that the Court should limit the testimony

9

of Defendants’ expert, Dr. Elizabeth Raphael. (Doc. 216). Specifically, Plaintiffs argue

10

that the “third-party testing known as the ‘Malibu Tests’ and ‘Controlled Rollover Impact

11

System[,]” Dr. Raphael’s opinions from the Exponent testing that she was not physically

12

present for, and duplicative testimony should all be excluded. (Id. at 1-2). The Court finds

13

that this Motion is essentially a Daubert motion and that the deadline for Daubert motions

14

has passed. (Doc. 174). Moreover, Plaintiffs did in fact file a Daubert motion to exclude

15

Dr. Raphael, which addressed the majority of Plaintiffs arguments here. (Doc. 179). Thus,

16

the Court refers the parties to its Order on the parties’ Daubert Motions. (Doc. 268).

17

Accordingly, Plaintiffs’ Motion is denied without prejudice.

18

13.

Doc. 217

19

In this Motion in Limine, Plaintiffs argue that the Court should preclude

20

“[D]efendants, their counsel, and witnesses from making references to irrelevant and

21

inadmissible health and disability insurance payments, Medicare, and other collateral

22

sources.” (Doc. 217). Defendants contend that Plaintiffs’ Motion is grossly overbroad and

23

at odds with Arizona law. (Doc. 238). Specifically, Defendants argue that the collateral

24

source rule should not be so broadly applied because “some of the evidence at issue,

25

including the testimony of [Defendants’] expert Reg Gibbs, is admissible to prove whether

26

Plaintiffs’ medical bills were reasonable.” (Id. at 1). The Court agrees. Thus, at this time,

27

Plaintiffs’ Motion is too broad and speculative. Plaintiffs can object at the appropriate time

28

during trial. Accordingly, Plaitniffs’ Motion is denied without prejudice.

- 13 -

1

14.

Doc. 218

2

In this Motion in Limine, Plaintiff argues that the Court should “limit[] the

3

[D]efendants, their counsel, and [Defendants’ expert,] Dr. Rosen to those opinions

4

expressed by Dr. Rosen in his letter report and as identified” in Defendants’ expert’s, Mr.

5

Gibb, May 10, 2018 Plan.” (Doc. 218 at 2). Specifically, Plaintiff argues that as “the

6

parties are now preparing the case for trial, it would be prejudicial to the Plaintiffs now at

7

this late date to receive new opinions and the bases for such new opinions.” (Id. at 2).

8

Defendants argue that “Plaintiffs knowingly chose, as part of their legal strategy, not to

9

depose Dr. Rosen or Mr. Gibbs. As such, they cannot expect him to simply read his written

10

opinions at trial when they cross-examine him.” Defendants further argue that “[w]hile

11

Dr. Rosen will not be providing new, undisclosed opinions, he is free to elaborate on his

12

proffered opinions and to opine on any information received after his expert reports were

13

drafted.” (Doc. 244 at 2). The Court agrees. See party Harrelson v. Dupnik, 2014 WL

14

2510530, at *4 (D. Ariz. Mar. 12, 2014), report and recommendation adopted as modified,

15

2014 WL 2510569 (D. Ariz. June 4, 2014) (finding that Rule 26(a)(2)(B) “does not limit

16

an expert’s testimony simply to reading his report[;]” rather Rule 26(a)(2)(B)

17

“contemplates that the expert will supplement, elaborate upon, [and] explain and subject

18

himself to cross-examination upon his report in his oral testimony.”) (internal quotation

19

and citation omitted). The Court finds that Plaintiffs’ concerns regarding Dr. Rosen’s

20

testimony are speculative and vague because Plaintiffs have failed to identify specific

21

information or opinions that they wish to exclude. Plaintiffs can object at the appropriate

22

time during trial. Accordingly, Plaintiffs’ Motion is denied without prejudice.

23

15.

Doc. 221

24

In this Motion in Limine, Plaintiffs argue that the Court should “limit[] the

25

cumulative, vague, speculative, and irrelevant opinions and testimony of the [Defendants’]

26

expert witness, Kevin Breen.” (Doc. 221 at 1). Specifically, Plaintiffs argues that “Mr.

27

Breen’s anticipated testimony on these topics does not comport with the evidentiary

28

standards for admissibility. Further, it is significantly duplicative of other defense expert

- 14 -

1

testimony.” (Id. at 2). Defendants contend that “Mr. Breen’s opinions in this matter are

2

both supported and have been disclosed. Plaintiffs’ challenges go to the weight his opinions

3

should be given by the trier of fact, not to their admissibility.” (Doc. 242 at 2).

4

The Court finds that this Motion is essentially a Daubert motion and that the

5

deadline for Daubert motions has since passed. (Doc. 174). Additionally, the Court finds

6

that Plaintiffs’ concerns are better resolved through the trial process through “[v]igorous

7

cross-examination, presentation of contrary evidence, and careful instruction on the burden

8

of proof.” Daubert, 509 U.S. at 596; see also Tavilla v. Cephalon Inc., 2012 WL 1190828,

9

at *4 (D. Ariz. Apr. 10, 2012) (“vigorous cross-examination is still the preferred method

10

for determining the truth of questionable opinion evidence.”). As to the duplicative nature

11

of Mr. Breen’s testimony, the Court finds that, while Plaintiff may be right, the Court will

12

reserve judgment on whether an expert is duplicative until trial, when it will be in a better

13

position to evaluate the issue of whether the testimony is duplicative. Accordingly,

14

Plaintiffs’ Motion is denied without prejudice.

15

16.

Doc. 223

16

In this Motion in Limine, Plaintiffs argue that the Court should exclude the Accident

17

Report and the personal opinions and conclusions of two of the three responding officers

18

from the Yuma County Sheriff’s Officer. (Doc. 223). Specifically, Plaintiffs argue that

19

the Accident Report contains hearsay and that neither of the two officers have first-hand

20

knowledge of what happened in the accident and therefore the lay opinions must be

21

precluded. (Id. at 3). Defendants contend that in Arizona, police reports, and the

22

statements therein, qualify for the public records hearsay exception and that the two

23

responding officers, who will testify as lay witnesses, do have personal knowledge of the

24

accident. (Doc. 245).

25

Rule 801(c) define hearsay as “a statement that: (1) the declarant does not make

26

while testifying at the current trial or hearing; and (2) a party offers in evidence to prove

27

the truth of the matter asserted in the statement.” A police report, including the police

28

officer’s statements and observations, are admissible in civil cases under the public records

- 15 -

1

hearsay exception. See Fed. R. Evid. 803(8); see also Colvin v. United States, 479 F.2d

2

998, 1003 (9th Cir. 1973) (“Entries in a police report based on an officer’s observation and

3

knowledge may be admitted, but statements attributed to other persons are clearly

4

hearsay.”); Blanton v. Cnty. of Sacramento, 2012 WL 2798920, at *1 n.4 (E.D. Cal. 2012)

5

(“The police officer’s statements and observations recorded in a police report are

6

admissible, as is the summary of [plaintiff’s] statement made to Officer Bricker under the

7

public-records hearsay exception contained in Fed. R. Evid. 803(8)”); Josfan v. Indochine,

8

2012 WL 113371, at *2 (C.D. Cal. 2012) (“A police officer’s statements and observations

9

recorded in a police report are admissible under the public-records hearsay exception

10

contained in Federal Rule of Evidence 803(8).”).

11

Here, Plaintiffs argue that the Accident Report (Doc. 223-1 at 2-10) contains

12

hearsay, but they do not dispute that the responding officers arrived on scene and

13

investigated the accident.

14

responding officers contained in the Accident Report are not hearsay and are admissible

15

under Rule 803(8).

16

statements that Ms. Thompson, a Plaintiff in this matter, made to the officers, which the

17

Court finds to be admissible pursuant to Rule 801(d)(2)(A). Thus, the Court finds that the

18

Accident Report is admissible pursuant to Rules 801(d)(2)(A) and 803(8).

Thus, the personal observations and knowledge of the

Additionally, the Accident Report also contains summaries of

19

Sergeant Terry Owens, Deputy Arturo Oviedo, and Sergeant Scott Bjornstad all

20

responded to the incident for Yuma County Sherriff’s Office and all three have been

21

designated as lay witnesses. (Doc. 222 at 10-11, 15-16). Plaintiffs only seek to limit the

22

testimony of Sergeant Owens and Deputy Oviedo because they argue that their testimony

23

is based on speculation, not personal observation. Under Rule 701, lay witnesses may offer

24

testimony that is “rationally based” on his/her perception, “helpful” to understanding the

25

testimony or a fact at issue, and “not based on scientific, technical, or other specialized

26

knowledge within the scope of Rule 702.” At this time, Court finds that Plaintiffs’ concerns

27

are too speculative. Plaintiffs can object at the appropriate time during trial. However, the

28

Court reminds the parties that must avoid duplicate testimony. Accordingly, Plaintiffs’

- 16 -

1

Motion is denied without prejudice.

2

17.

Doc. 224

3

In this Motion in Limine, Plaintiffs argue that the Court should preclude any

4

“reference to the terms on the back of the rental Agreement—labeled ‘Waiver of

5

Liability’.” (Doc. 224 at 1). Specifically, Plaintiffs argue that they never read or signed

6

the waiver Jet Rent purportedly showed them, the waiver document does not reference

7

Defendants, and therefore Defendants should be precluded from offering this document as

8

evidence. (Id. at 3). Defendants contend that Arizona law recognizes assumption of the

9

risk as an affirmative defense to products liability actions, and therefore, the liability waiver

10

is relevant to their assumption of risk defense. (Doc. 246 at 2). Defendants further argue

11

that whether Plaintiffs read the agreement is a disputed fact and should be left to the jury.

12

(Id. at 3).

13

The Court finds that the dispositive fact in this Motion is that the Rental Agreement

14

and the Waiver of Lability (Doc. 246-1 at 2-3) was a contract only between Jet Rent and

15

Plaintiffs. Defendants were not a party to the Rental Agreement and the Waiver of Lability.

16

Therefore, the contract is irrelevant to Defendants’ defenses. Accordingly, Plaintiffs’

17

Motion is granted.

18

18.

Doc. 225

19

In this Motion in Limine, Plaintiffs argue that the Court should exclude all

20

“evidence or argument that operating off-highway recreational vehicles (‘OHRV’) like the

21

Polaris RZR is an ‘inherently risky or dangerous activity’ and as such, paralyzing injuries

22

such as those suffered by [Mr.] Thomson are a well-known risk that the Plaintiffs

23

assumed.” (Doc. 225 at 1). Defendants contend that “[a]ssumption of the risk is a question

24

of fact for the jury, which is entitled to consider evidence that the [Plaintiffs] assumed the

25

risks of operating a RZR at an unsafe speed, in an unfamiliar environment, with little or no

26

prior experience operating a RZR.” (Doc. 247 at 1).

27

In order for the doctrine of assumption of risk to be applicable in Arizona, a general

28

knowledge of a danger is not sufficient but, rather, the plaintiff must have actual knowledge

- 17 -

1

of the specific risk which injured him and appreciate its magnitude. See Sw. Pet Products,

2

Inc. v. Koch Indus., Inc., 273 F. Supp. 2d 1041, 1061 n.31 (D. Ariz. 2003); Jimenez v.

3

Sears, Roebuck & Co., 904 P.2d 861, 865 (1995) (“knowledge of a product’s defect is not

4

necessary to establish misuse but is essential for assumption of risk.”). The Court finds

5

that whether Plaintiffs assumed the risk is, under Arizona law, an issue that must be

6

submitted to a jury (if the requisite evidence for an instruction on the defense is adduced).

7

See Sw. Pet Products, 273 F. Supp. 2d at 1061 n.31. Accordingly, Plaintiffs’ Motion is

8

denied without prejudice.

9

19.

Doc. 226

10

In this Motion in Limine, Plaintiffs argue that the Court “exclude any references or

11

argument by [Defendants] that the Plaintiffs have any responsibility for the spoliation of

12

the RZR[.]” (Doc. 226 at 1). Specifically, Plaintiffs argue “that: (1) the Plaintiffs did not

13

own or control the RZR; (2) the changed condition of the RZR was not caused in any way

14

by the Plaintiffs; and (3) the changed condition of the RZR has in no way hampered Polaris’

15

ability to understand the circumstances of this accident[.]” (Id.) Defendants contend that,

16

in Arizona, the duty to preserve arises when a party knows or should know that certain

17

evidence is relevant to pending or future litigation and that Plaintiffs took no steps to

18

preserve the RZR. (Doc. 248 at 2).

19

In diversity cases,4 state law determines a party’s duty to preserve evidence that is

20

outcome-determinative, but federal rules govern sanctions for breach of that duty. State

21

Farm Fire & Cas. Co. v. Broan Mfg. Co., Inc., 523 F. Supp. 2d 992, 995 (D. Ariz. 2007).

22

Arizona law imposes upon litigants a duty to preserve evidence which they know or should

23

know is relevant in the action or is reasonably likely to be requested during discovery.

24

Souza v. Fred Carries Contracts, Inc., 955 P.2d 3, 6 (Ariz. Ct. App. 1997). Sanctions in

25

the Ninth Circuit are left to the broad discretion of the district courts “to make discovery

26

and evidentiary rulings conducive to the conduct of a fair and orderly trial.” Unigard Sec.

27

Ins. Co. v. Lakewood Eng’g & Mfg. Corp., 982 F.2d 363, 368 (9th Cir. 1992); see also

28
4

This case was removed from state court on the basis of diversity jurisdiction. (Doc. 1).
- 18 -

1

Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993) (“A federal trial court has the

2

inherent discretionary power to make appropriate evidentiary rulings in response to the

3

destruction or spoliation of relevant evidence.”).

4

Here, the Polaris RZR was owned by Jet Rent and rented to Plaintiffs on the day of

5

the accident. After the accident, the Polaris RZR was photographed at the scene by the

6

responding police officers and then it was released to Jet Rent’s representative. Defendants

7

have not provided any evidence that the Polaris RZR was in Plaintiffs’ control or

8

possession after the accident. Moreover, Defendants have not provided any authority to

9

suggest that Plaintiffs have an affirmative duty to seek out and preserve evidence that is

10

not in their control or possession. See Souza, 955 P.2d at 6 (finding that “plaintiff and her

11

counsel had an affirmative duty to preserve relevant evidence within their control”)

12

(emphasis added)). Accordingly, the Court will grant Plaintiffs’ Motion.

13

20.

Doc. 227

14

In this Motion in Limine, Plaintiffs argue that the Court should “preclude Polaris,

15

their attorneys and witnesses from referring to any allegations of misuse concerning the

16

subject RZR.” (Doc. 227 at 1). Defendants contend that “[m]isuse is an affirmative

17

defense to a strict liability action and a question of fact for the jury.” (Doc. 249 at 1).

18

As previously discussed, under Arizona law the two recognized affirmative defenses

19

to a strict products liability claim are: (1) assumption of risk and (2) product misuse.

20

“Misuse has been variously referred to as use for a purpose or in a manner that, from the

21

manufacturer or seller’s view, was unintended, unforeseeable, unanticipated, unexpected,

22

non-customary, or abnormal.” Jimenez v. Sears, Roebuck & Co., 904 P.2d 861, 865 (1995).

23

The Court finds that whether Plaintiffs misused the product, under Arizona law, is an issue

24

that must be submitted to a jury (if the requisite evidence for an instruction on the defense

25

is adduced). See Sw. Pet Products, 273 F. Supp. 2d at 1061 n.31. Accordingly, Plaintiffs’

26

Motion is denied without prejudice.

27
28

B.

Defendants’ Motions in Limine
1.

Doc. 190

- 19 -

1

In this Motion in Limine, Defendants argue that the Court should preclude all

2

“testimony, evidence, or argument related to the ‘Golden Rule,’ public/community safety,

3

and similar ‘Reptile’ tactics.” (Doc. 190). Plaintiffs aver that this Motion in Limine is

4

Defendants’ attempt “to unnecessarily limit Plaintiffs’ counsel’s ability to present our case

5

the way [they] deem best[,]” and “ask the Court to defer adjudication and to instruct defense

6

counsel to object to specific testimony at trial.” (Doc. 190). The “Golden Rule” argument

7

essentially asks the jury to put itself in the position of the party and “Reptile” strategy uses

8

tactics to appeal to jurors’ most primitive instincts of safety and self-preservation so that

9

they override the portion of the brain that uses logic.

10

At this time, the Court will deny this Motion. Defendants have not provided any

11

specific evidence which they wish to be excluded; thus, the Court finds the Motion to be

12

too speculative. Accordingly, Defendants’ Motion is denied without prejudice.

13

2.

Doc. 191

14

In this Motion in Limine, Defendants argue that the Court should preclude all

15

“testimony, evidence, or argument related to the financial status of [Defendants] or

16

Plaintiffs . . . ., including the net-worth, size, or market share of Polaris and its ability to

17

pay a settlement or judgment.” (Doc. 191). Plaintiffs contend that “[D]efendants’ net

18

worth, size, or market share are all irrelevant factors in a product liability claim, [but]

19

references to the size of Polaris may be relevant with respect to the design defect claim.”

20

(Doc. 255 at 1). In other words, Plaintiff is arguing that “Polaris should not be exempted

21

from the rules that apply to everyone else when the alleged tort is attributed to economic

22

motivations.” (Id. at 2).

23

At this time, Plaintiffs’ concerns regarding what arguments Defendants may make

24

in relation to economic motivations are speculative. Thus, the Court finds that Defendants’

25

net-worth, size, and market share, and Defendants’ ability—or inability—to pay a

26

settlement or judgment is irrelevant to Plaintiffs’ claims and therefore will be precluded.

27

However, if Defendants introduced evidence of economic motivations, Plaintiff may at that

28

time argue as to the admissibility of Defendants’ size and financial resources. Accordingly,

- 20 -

1
2

Defendants’ Motion is granted in part and denied in part.
3.

Doc. 192

3

In this Motion in Limine, Defendants argue that the Court should exclude “from

4

evidence all videos of Polaris vehicles that Polaris did not create, produce, endorse, or

5

sponsor all.” (Doc. 192 at 1). Defendants provide that “proffered by Plaintiffs as Exhibit

6

Nos. 0067–0085 are countless amateur videos of Polaris vehicles with which Polaris is not

7

associated[,]” and “[s]uch videos are inadmissible under Federal Rules of Evidence 401,

8

402, 403, 901, and 1002 because they are irrelevant, unfairly prejudicial, and incapable of

9

being authenticated.” (Id.) Plaintiffs contend “that excerpts of films are relevant because

10

they provide information [their] experts relied upon to explain the handling characteristics

11

of these vehicles and their foreseeable uses off-road, including the risks of rollover and the

12

importance of well-designed roll cages and seat belt systems.” (Doc. 262 at 1).

13

The Court shares Defendants’ concerns regarding the authentication of these videos.

14

“Authentication is a condition precedent to admissibility.” Orr v. Bank of Am., NT & SA,

15

285 F.3d 764, 773 (9th Cir. 2002). Under Rule 901(a), to satisfy the requirement of

16

authentication, “the proponent must produce evidence sufficient to support a finding that

17

the item is what the proponent claims it is.” Orr, 285 F.3d at 773. This rule requires the

18

proponent of the evidence to make a prima facie showing of authenticity such that a

19

reasonable juror could find in favor of authenticity. United States v. Yin, 935 F.2d 990,

20

996 (9th Cir. 1991). Evidence can be authenticated through testimony from a “person with

21

knowledge” or testimony about the “appearance, contents, substance, internal patterns, or

22

other distinctive characteristics of the item, taken together with all the circumstances.” Fed.

23

R. Evid. 901(b)(1), (4). Plaintiffs argue its experts, Mr. Uhl and Mr. Cantor, will be able

24

to authenticate the videos and that Messrs. Uhl and Cantor will be able to testify that the

25

videos “do indeed depict the typical off-road operation of these side-by-side vehicles.”

26

(Doc. 262 at 2). The Court disagrees. There is no way for Messrs. Uhl and Cantor to know

27

whether these videos have been edited or whether the side-by-side vehicles have been

28

altered in any way. Thus, the Court finds that the videos are not capable of being

- 21 -

1

authenticated under Rule 901.

2

Plaintiffs also attempt to invoke Rule 703 as grounds for the admission of this

3

evidence. (Doc. 262 at 2-3). Rule 703 provides that “[a]n expert may base an opinion on

4

facts or data in the case that the expert has been made aware of or personally observed. If

5

experts in the particular field would reasonably rely on those kinds of facts or data in

6

forming an opinion on the subject, they need not be admissible for the opinion to be

7

admitted.” Fed. R. Evid. 703. Plaintiffs’ reliance on Rule 703 is misplaced. Rule 703

8

simply permits an expert witness to rely on inadmissible facts or data to base their

9

conclusions or inferences; it does not allow the admittance of evidence that is otherwise

10
11

inadmissible. Accordingly, Defendants’ Motion is granted.
4.

Doc. 193

12

In this Motion in Limine, Defendants argue that the Court should bar any “reference

13

to the size or location of the law firms representing [Defendants] or Plaintiffs . . . at trial,

14

as well as the number of attorneys at the firms, their billing rates, experience, or amount of

15

fees incurred.” (Doc. 193 at 1). Specifically, Defendants “anticipate[] that Plaintiffs will

16

make such references to garner animosity from jurors towards the large, out-of-town law

17

firm that represents [Defendants] and to ingratiate themselves with the jury via a ‘home-

18

court’ bias towards the local firm that represents Plaintiffs.” (Id. at 1-2). In Response,

19

Plaintiffs provide that they “agree that the resources of the law firm representing any given

20

party in this matter are wholly irrelevant to any fact of consequence.” (Doc. 264 at 1).

21

Plaintiffs however aver that “during voir dire, it is appropriate to identify the lawyers and

22

witnesses for the venire panel to determine whether anyone knows any of these people[,]”

23

and “in cross-examination of experts it is appropriate to ask questions of experts regarding

24

the extent of their work for lawyers representing [Defendants].” While the Court finds that

25

Defendants’ Motion does not cover those situations raised by Plaintiffs, the Court

26

nonetheless agrees that the parties may explore the nature of the relationship between each

27

party and their experts. Additionally, the parties should be aware that the Court will

28

conduct voir dire and will ascertain whether any of the potential jurors know any of the

- 22 -

1

counsel for either party. Therefore, the parties are prohibited from referring to the size,

2

location, number of attorneys, their billing rates, experience, and amount of fees incurred

3

by the law firms representing Defendants and Plaintiffs, as it is irrelevant to the litigation.

4

Accordingly, Defendant’s Motion is granted.

5

5.

Doc. 194

6

In this Motion in Limine, Defendants argue that because Plaintiffs have already

7

dismissed their punitive damages claims against Defendants, the Court should bar any

8

“comments by counsel for Plaintiffs . . . that the jury should ‘send a message,’ ‘teach a

9

lesson,’ ‘make a statement,’ or deter others with its verdict, punish Polaris, act as the

10

conscience of the community, or similar statements.” (Doc. 194 at 1). Plaintiffs contend

11

that although they “do not have any intention of making any argument that supports their

12

dismissed punitive damages claim, Plaintiffs reserve their right to make targeted statements

13

that the [D]efendants should be held responsible for the consequences of its own

14

misconduct.” (Doc. 256 at 1).

15

At this time, the Court will deny this Motion. Defendants’ request is overly broad

16

and they have not provided any specific evidence which they wish to be excluded; thus,

17

the Court finds the Motion to be too speculative. Defendants can object at the appropriate

18

time during trial. Accordingly, Defendants’ Motion is denied without prejudice.

19

6.

Doc. 195

20

In this Motion in Limine, Defendants argue that “all nonparty witnesses who may

21

be called to testify in this matter” should be excluded from the courtroom for the entire

22

duration of the trial. (Doc. 195). Defendants further provide that “[a] sequestration Order

23

is especially appropriate where many of Plaintiffs’ fact witnesses are family members,

24

including their children and step-children.” (Id. at 3). Plaintiffs contend that “Defendants

25

make this assertion without any factual basis—because there is none—that the Plaintiffs’

26

children or step-children . . . would attempt to tailor, shape or fabricate their testimony, or

27

engage in collusion.” (Doc. 260 at 1). Plaintiffs also argue that “to the extent that none of

28

the Plaintiffs’ children or step-children will be called as witnesses at the trial, Rule 615

- 23 -

1

would not apply to them.” (Id.)

2

Rule 615 states that “[a]t a party’s request, the court must order witnesses excluded

3

so that they cannot hear other witnesses’ testimony.” Rule 615 goes on, however, to

4

explain that it does not authorize exclusion of: “(b) an officer or employee of a party that

5

is not a natural person, after being designated as the party’s representative by its attorney;

6

[or] (c) a person whose presence a party shows to be essential to presenting the party’s

7

claim or defense.” The purpose of a Rule 615 exclusion order is to “reduce the danger that

8

a witness’s testimony will be influenced by hearing the testimony of other witnesses, and

9

to increase the likelihood that the witness’s testimony will be based on her own

10

recollections.” United States v. Hobbs, 31 F.3d 918, 921 (9th Cir. 1994).

11

First, the Court finds that Plaintiffs are correct that Rule 615 only applies to non-

12

party witnesses; therefore, any of Plaintiffs’ children or step-children that are not witnesses

13

will be permitted to be present in the courtroom for the entirety of the trial. However,

14

Plaintiffs have designated Mr. Thompson’s sons, Michael Thompson and Camryn

15

Thompson, and Ms. Thompson’s daughters, Amber Cahue and Regina Cahue, as

16

witnesses. (Doc. 222 at 9-10). Plaintiffs provide no authority that Mr. Thompson’s sons

17

or Ms. Thompson’s daughters meet any of Rule 615’s exceptions. Thus, Plaintiffs’

18

children and step-children that have been designated as witnesses are excluded from the

19

courtroom prior to their testimony; however, the Court will permit them to be present in

20

the courtroom after they have completed testifying. Aside from Plaintiffs’ children and

21

step-children, all other non-party witnesses are excluded from the courtroom for the entire

22

duration of the trial pursuant to Rule 615. Accordingly, Defendants’ Motion is granted in

23

part and denied in part.

24

7.

Doc. 196

25

In this Motion in Limine, Defendants request the Court “bar the personal opinions

26

of Plaintiffs’ Counsel at trial.” (Doc. 196 at 1). Defendants provide that they “anticipate

27

that Plaintiffs’ Counsel will attempt to argue and interject their own personal opinions

28

during the course of the trial of this matter.” (Id.) Plaintiffs contend that Defendants “fail[]

- 24 -

1

to specify the personal opinions they anticipate Plaintiffs’ counsel will attempt to argue

2

and interject during the trial. Nor have Defendants identified any topic on which they

3

anticipate that Plaintiffs’ counsel will attempt to argue and interject their own personal

4

opinions.” (Doc. 258 at 1-2). The Court agrees. At this time, the Court will deny this

5

Motion. Defendants’ have not provided any specific evidence which they wish to be

6

excluded; thus, the Court finds the Motion to be speculative. Defendants can object at the

7

appropriate time during trial.

8

prejudice.

9

8.

Accordingly, Defendants’ Motion is denied without

Doc. 197

10

In this Motion in Limine, Defendants request the Court “bar any lay witness from

11

opining, concluding, speculating, implying, or otherwise testifying as to the nature and

12

extent of [Mr. Thompson’s] alleged injuries, disabilities, physical conditions, diagnoses,

13

prognoses, and/or otherwise concerning his physical capabilities.” (Doc. 197 at 1).

14

Specifically, Defendants argue that “[n]o lay witness, including [Ms. Thompson], is

15

competent to testify as to [Mr. Thompson’s] medical prognosis and the extent of his

16

claimed disability. (Id. at 2). Plaintiffs contend a “[l]ay witnesses may testify to their own

17

physical injuries, including when the injuries started or worsened, if the injuries are

18

typically observable by an ordinary person.” (Doc. 254 at 3).

19

A witness is permitted to testify as to “scientific, technical or other specialized”

20

information if the witness is “qualified as an expert by knowledge, skill, experience,

21

training or education” and the testimony is based upon sufficient facts or data, the

22

testimony is based upon reliable analysis and the witness applies this reliable analysis to

23

the data. Fed. R. Evid. 702. However, an individual lacking such qualifications may only

24

testify as to opinions “rationally based on the witness’s perception” and that are “not based

25

on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed.

26

R. Evid. 701.

27

Plaintiffs will not be permitted to offer any medical opinion or to report what any

28

medical professionals told them about Mr. Thompson’s injuries or prognosis. However,

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1

Mr. Thompson may testify about his own perceptions of what he felt when the injury

2

occurred, how it felt over time and how it feels now, how his condition has impacted his

3

life, and as to any other information that is within his own personal knowledge and based

4

upon his own perceptions. See Nehara v. California, 2013 WL 1281618, at *9 (E.D. Cal.

5

Mar. 26, 2013) (holding that plaintiff could testify as to any information that was within

6

his own personal knowledge and based upon his own perceptions, but could not offer

7

opinions or report on what medical professionals told him about his condition). Likewise,

8

Ms. Thompson may testify about how Mr. Thompson’s injuries have impacted her life and

9

as to any other information that is within her own personal knowledge and based upon her

10

own perceptions. Accordingly, Defendants’ Motion is granted in part and denied in part.

11

9.

Doc. 198

12

In this Motion in Limine, Defendants argue that the Court should bar “all evidence

13

or references to the existence of insurance coverage or lack thereof for [Defendants],

14

including but not limited to policy amounts and liability or umbrella coverage.” (Doc. 198

15

at 1). Plaintiffs provide that they “agree that any collateral sources [are] inadmissible in

16

this case.” (Doc. 257 at 1). Specifically, Plaintiffs “request the Court preclude both sides

17

from making reference to the existence of insurance coverage for any of the parties.” (Id.

18

at 2). In light of the parties’ representations, Defendants’ Motion is granted.

19

10.

Doc. 199

20

In this Motion in Limine, Defendants argue that the Court should bar “Plaintiffs,

21

their attorneys, witnesses, agents, and anyone else from discussing, mentioning, alluding

22

or referring to in any manner during trial or in the presence of the jury any notion that

23

[Defendants’] conduct was intentional, reckless, willful or wanton, or in conscious

24

disregard of Plaintiff’s [sic] rights or safety, or from using any inflammatory terms directed

25

against Polaris’s conduct in allegedly causing the injuries.” (Doc. 199 at 1). Specifically,

26

Defendants argue that, as Plaintiffs have already dismissed their punitive damages claims

27

against Defendants, “[a]ny suggestion that Polaris’s conduct was intentional, reckless,

28

willful or wanton, or in conscious disregard of Plaintiffs’ rights or safety, raises the specter

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1

of a wrong far beyond Plaintiffs’ allegations.” (Id. at 2). Plaintiffs contend that they do

2

not intend to offer any evidence or testimony in support of an award of punitive damages

3

and that Defendants have not identified what evidence would constitute “inflammatory

4

terms.” (Doc. 263 at 1-2). Additionally, Plaintiffs provide “that this case will be tried on

5

a theory of strict liability-crashworthiness only. To this end, Plaintiffs will move to dismiss

6

their negligence claim.” (Id. at 1).

7

Plaintiffs appear to agree that they will not argue that Defendants’ conduct was

8

intentional, reckless, willful or wanton, or in conscious disregard of Plaintiff’s rights or

9

safety. The only issue Plaintiffs take with this Motion, is the prohibition on the use of

10

“inflammatory terms” without defining what an inflammatory term is. The Court finds

11

that, without a definition, the phrase “inflammatory terms” is too broad and vague.

12

Defendants can object at the appropriate time in trial to specific testimony. Therefore,

13

Defendants’ Motion is granted in part and denied in part.

14

11.

Doc. 200

15

In this Motion in Limine, Defendants argue that pursuant to Rule 407, the Court

16

should “exclude[] all evidence, reference, or testimony related to any subsequent remedial

17

measures taken by Polaris and any argument that Polaris engaged in such subsequent

18

remedial measures.” (Doc. 200 at 1). Plaintiffs contend Defendants failed to identify the

19

supposed remedial measures and therefore this Motion should be denied. (Doc. 228 at 1).

20

Rule 407 provides that “[w]hen measures are taken that would have made an earlier

21

injury or harm less likely to occur, evidence of the subsequent measures is not admissible

22

to prove: negligence; culpable conduct; a defect in a product or its design; or a need for a

23

warning or instruction. But the court may admit this evidence for another purpose, such as

24

impeachment or—if disputed—proving ownership, control, or the feasibility of

25

precautionary measures.”

26

The Court agrees that subsequent remedial measures are precluded by Rule 407;

27

however, Rule 407 does have exceptions. Thus, as Defendants have not provided the

28

specific evidence they seek to exclude, the Court cannot determine if the evidence is

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1

precluded by Rule 407 or if it fits into an exception. Without reference to specific evidence,

2

the Court cannot determine the applicability of Rule 407, or even conduct a relevancy and

3

prejudice analysis. Accordingly, Defendants’ Motion is denied without prejudice.

4

12.

Doc. 201

5

In this Motion in Limine, Defendants argue that the Court should “exclude[] all

6

evidence, reference, testimony, or argument related to other accidents, incidents,

7

complaints, and lawsuits involving Polaris and/or all terrain and other recreational vehicles,

8

whether or not designed and manufactured by Polaris that are not the subject of this case.”

9

(Doc. 201 at 1). Plaintiffs contend that Defendants do “not identify what specific evidence

10

it asks the Court to exclude, and it implicitly argues that all accidents are dissimilar and

11

therefore they must be excluded— even if similarity is proven—because of unfairness.”

12

(Doc. 229 at 1). The Court agrees.

13

As Defendants provide:

14

Evidence related to other accidents to prove a design defect or Polaris’s
notice of same is not admissible unless competent evidence establishes that
such other accidents are substantially similar to the underlying accident.
White v. Ford Motor Co., 312 F.3d 998, 1009 (9th Cir. 2000). Evidence of a
dissimilar accident or lawsuit involving such accidents is irrelevant because
it may involve different circumstances or theories of causation. FED. R. EVID.
402; see also Jaramillio v. Ford Motor Co., 116 Fed. App’x 76, 79 (9th Cir.
2004) (new trial in products liability rollover defect case was warranted
because district court admitted evidence of other accidents in violation of
Rule 402).

15
16
17
18
19
20
21

(Doc. 201 at 2) (emphasis added).

22

incidents, complaints, and lawsuits” that they wish to preclude; therefore, the Court cannot

23

determine whether the “accidents, incidents, complaints, and lawsuits” are substantially

24

similar or dissimilar to the underlying accident. Defendants can object at the appropriate

25

time in trial to specific testimony. Accordingly, Defendants’ Motion is denied without

26

prejudice.

27
28

13.

Defendants have not identified any “accidents,

Doc. 202

In this Motion in Limine, Defendants argue that the Court should exclude the “‘Day-

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1

In-The-Life’ Video depicting [Mr.] Thompson . . . that Plaintiffs intend to admit as Exhibit

2

No. 0063.” (Doc. 202 at 1). Specifically, Defendants argue that the Video is not relevant,

3

the Video’s probative value is substantially outweighed by the danger of unfair prejudice,

4

the Video is cumulative of other medical records, and the Video is inadmissible hearsay.

5

(Doc. 202 at 1-3). Plaintiffs contend that “[a] day-in-the-life video is akin to a photograph

6

and admissible if a foundation is laid by someone having personal knowledge of the filmed

7

object and that the video is an accurate portrayal of that.” (Doc. 251 at 2). Specifically,

8

Plaintiffs argue that the Video is “relevant because they corroborate the Plaintiffs’

9

testimony regarding [Mr. Thompson’s] recurring complications and ongoing (daily)

10

physical challenges since the accident.” (Id. at 3).

11

The Court notes that it has not watched the Video. However, Plaintiffs provide that

12

the Video does not have audio and depicts Mr. Thompson “rising in the morning, being

13

dressed and groomed, leaving the house to attend outpatient rehabilitation before returning

14

home where he is assisted by his caregiver with showering. A small portion of the [V]ideo

15

shows how [Mr. Thompson] operates his modified vehicle.” (Id. at 1). Defendants have

16

not specified how the Video is unduly prejudicial, nor have they identified portions of the

17

Video that are edited or that do not depict a typical day in the life of Mr. Thompson. Contra

18

Pages-Ramirez v. Hosp. Espanol Auxilio Mutuo De Puerto Rico, Inc., 2008 WL 11357891,

19

at *2 (D.P.R. Apr. 29, 2008) (“After carefully reviewing a portion of the video, and in light

20

of the substantial editing the film underwent, the Court finds that the video is more unfairly

21

prejudicial to [defendant’s] interests than it is probative to [p]laintiffs’ case.”); Bolstridge

22

v. Cent. Maine Power Co., 621 F. Supp. 1202, 1203 n.1 (D. Me. 1985) (finding defendants

23

specifically identified “several aspects of the film indicate that the day depicted is not

24

typical for the [p]laintiff and is unduly prejudicial”). Additionally, as Mr. Thompson will

25

be subject to cross-examination, the possibility that the Video will be prejudicial is

26

significantly reduced. See Bannister v. Town of Noble, Okl., 812 F.2d 1265, 1269–70 (10th

27

Cir. 1987) (“While it is true that opposing counsel will not be present to question the victim

28

during the making of a film, this difficulty is lessened if the victim can be cross-examined

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1

at trial regarding the events depicted in the film. Films are frequently used at trial in

2

conjunction with live testimony.”). Thus, at this time, the Court does not find that the

3

Video is unduly prejudicial.

4

Defendants generally argue that the Video is cumulative of Mr. Thompson’s

5

medical records, but do not point to specific medical records. Thus, the Court does not

6

have the necessary information to determine whether the Video is cumulative. However,

7

the Court does note that the Video, as described by Plaintiffs, depicts more than just Mr.

8

Thompson’s injuries; it shows how those injuries effect his daily life.

9

As to Defendants’ argument that the Video is inadmissible hearsay, the Court finds

10

that because it has not seen the Video, it cannot determine whether it is hearsay. However,

11

the Court notes that the general conclusion is that such videos are not hearsay and are

12

admissible if subject to cross-examination through the witness who verifies and uses the

13

film. See Grimes v. Employers Mut. Liab. Ins. Co. of Wisconsin, 73 F.R.D. 607, 610 (D.

14

Alaska 1977). Moreover, some courts have concluded that, although these videos might

15

contain some elements of hearsay, they are admissible under Rule 807. See id. at 611

16

(“However, even though the plaintiff’s film is hearsay, the evidence is admissible in this

17

instance under Rule [807]5.”).

18

Accordingly, Defendants’ Motion is denied without prejudice.

19

14.

Doc. 205

20

In this Motion in Limine, Defendants argue that the Court should “instruct the jury

21

that they are permitted to draw an adverse inference from the destruction or spoliation of

22

evidence against the party or witness responsible for that behavior.” (Doc. 205 at 1). As

23

discussed in Section II(A)(19) of this Order, the Defendants have not established that

24

Plaintiffs had control of the Polaris RZR and helmet. See Souza, 955 P.2d at 6 (finding

25

that “plaintiff and her counsel had an affirmative duty to preserve relevant evidence within

26

their control”) (emphasis added)). Accordingly, Defendants’ Motion is denied without

27

5

28

Rule 803(24) has been transferred to Rule 807. See. Fed. R. Evid. 803 advisory
committee’s note (“The contents of Rule 803(24) and Rule 804(b)(5) have been combined
and transferred to a new Rule 807. This was done to facilitate additions to Rules 803 and
804. No change in meaning is intended.”).
- 30 -

1

prejudice.

2

15.

Doc. 207

3

In this Motion in Limine, Defendants argue that the Court should “bar Plaintiffs’

4

liability expert Alan Cantor from testifying regarding an alleged ‘Volvo study’ about which

5

he has no personal knowledge and which he failed to disclose until his rebuttal report.”

6

(Doc. 207 at 1). Specifically, Defendants argue that that the Volvo Study was “conducted

7

by Volvo car company in which Volvo purportedly ‘conducted a series of inverted drop

8

tests (more severe than an inverted roll) and measured seat belt excursion of a dynamic test

9

dummy’s movement in a 3-point seat belt . . . .’” (Id. at 1-2) (alteration in original)).

10

Defendants also provide that they have “no objection to Cantor testifying about his own

11

testing and results, which were allegedly consistent with the Volvo study.” (Doc. 207 at

12

3).

13

Plaintiffs represent that Mr. Cantor relied on the Volvo study when forming his

14

opinions and that it will be offered to demonstrate general principles of kinematics in

15

rollover accidents and how restraint systems can and should be designed to minimize

16

vertical excursion in rollover accidents. (Doc. 265 at 2-3). Moreover, Defendants concede

17

that Mr. Cantor testified that “he validated the results of the Volvo study with a test

18

program that he ran and for which he could provide supporting data.” (Doc. 207 at 3).

19

Thus, at this time, the Court finds that the Volvo test appears to be sufficiently reliable and

20

relevant to the facts in this case for the jury to consider it. Accordingly, Defendants’ Motion

21

is denied without prejudice.

22

16.

Doc. 208

23

In this Motion in Limine, Defendants argue that the Court should bar “Plaintiffs’

24

expert Brian Benda, Ph.D. from testifying to facts, conclusions, and opinions contained in

25

his ‘Clarifying Addendum.’” (Doc. 208 at 1). Specifically, Defendants provide that

26

Plaintiffs’ expert disclosure deadline was April 13, 2018; Plaintiffs disclosed Dr. Benda

27

and produced his expert report on April 13, 2018; Defendants deposed Dr. Benda on June

28

28, 2018, at which Dr. Benda testified that he had no opinion regarding whether an

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1

alternative ROPS alone would have prevented the injury; and on August 1, 2018, Plaintiffs

2

produced a “Clarifying Addendum” from Dr. Benda, in which he rendered an opinion

3

regarding whether an alternative ROPS alone would have prevented the injury. (Id. 2-3).

4

Plaintiffs contend that, upon review of the Dr. Benda’s transcript, which was

5

obtained on July 19, 2018, Dr. Benda realized that the testing he had performed and

6

produced to the Defendants provided an answer to the hypothetical question posed. In

7

other words, Plaintiffs argue that Dr. Benda’s August 1, 2018 Clarifying Addendum is

8

simply Dr. Benda clarifying his answer to this hypothetical question and identifying the

9

previously disclosed data that supported that opinion. (Doc. 250 at 2).

10

Rule 26(a)(2) requires parties to produce a written report by each expert witness that

11

includes “a complete statement of all opinions to be expressed [by that witness] and the

12

basis and reasons therefor.” This report must be “detailed and complete” and state “the

13

testimony the witness is expected to present during direct examination, together with the

14

reasons therefor.” Fed. R. Civ. P. 26 advisory committee’s note. A party that fails to

15

disclose expert testimony in compliance with these rules may not present the expert’s

16

testimony at trial unless the failure to disclose was substantially justified or harmless. See

17

Fed. R. Civ. P. 37(c)(1).

18

Rule 26(e)(1) permits, indeed requires, that an expert supplement his or her report

19

and disclosures in certain limited circumstances. Those circumstances are when the party

20

or expert learns the information previously disclosed is incomplete or incorrect in some

21

material respect. See Fed. R. Civ. P. 26(e); Collinge v. IntelliQuick Delivery, Inc., 2017

22

WL 3887337, at *2 (D. Ariz. Sept. 6, 2017). Supplementation, however, is “not intended

23

to provide an extension of the expert designation and report production deadlines” and may

24

not be used for this purpose. Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d

25

320, 324 (5th Cir. 1998). Permissible supplementation under the Rules instead “means

26

correcting inaccuracies, or filling the interstices of an incomplete report based on

27

information that was not available at the time of the initial disclosure.” Keener v. United

28

States, 181 F.R.D. 639, 640 (D. Mont. 1998). Parties should, and are required to, provide

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1

additional or corrective information for an expert's opinions, but they cannot submit reports

2

“significantly different from the original reports and, in affect, alter[] their theories.” Beller

3

ex rel. Beller v. United States, 221 F.R.D. 689, 695 (D.N.M. 2003).

4

After reviewing the Dr. Benda’s Clarifying Addendum in conjunction with his

5

deposition testimony and expert report, the Court concludes that the Clarifying Addendum

6

is a permissible supplementation. Accordingly, Defendants’ Motion is denied without

7

prejudice.

8

17.

Doc. 211

9

In this Motion in Limine, Defendants argue that the Court should bar “Plaintiffs’

10

expert Guy Fried, M.D. from testifying to facts, conclusions, and opinions contained in his

11

Addendum Report. (Doc. 211 at 1). Specifically, Defendants provide that Plaintiffs’

12

expert disclosure deadline was April 13, 2018; Plaintiffs disclosed Dr. Fried and produced

13

is expert report on August 29, 2017; Defendants deposed Dr. Fried on July 11, 2018; and

14

on July 30, 2018, Plaintiffs produced an “Addendum Report” from Dr. Fried, which for the

15

first time addresses Mr. Thompson’s medical bills. (Id. 2 -3). Plaintiffs contend that Dr.

16

Fried’s August 27, 2017 Report specifically provided “that all of Mr. Thompsons’ [sic]

17

medical services to date were both necessary and reasonable.” (Doc. 252 at 1). Plaintiffs

18

further provide that “[m]ore than a week before Dr. Fried’s deposition, Plaintiffs produced

19

to the [D]efendants a copy of Dr. Fried’s entire expert file, which included three CDs of

20

Mr. Thompson’s accident-related medical and billing records and a summary of the same

21

that had been reviewed by Dr. Fried to date.” (Id.)

22

As discussed above, Rule 26(e)(1) permits, indeed requires, that an expert

23

supplement his or her report and disclosures in certain limited circumstances. Those

24

circumstances are when the party or expert learns the information previously disclosed is

25

incomplete or incorrect in some material respect. See Fed. R. Civ. P. 26(e). The Court

26

finds that Dr. Fried’s Addendum Report is an impermissible supplementation and therefore

27

he cannot testify to the facts, conclusions, and opinions contained in his Addendum Report.

28

In his Addendum Report, Dr. Fried opines that:

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1
2
3
4
5
6
7
8
9
10
11
12

[t]he acute and rehabilitative in-patient care provided was essential and those
costs were reasonable. [St. Joseph’s Hospital Medical Center and
Rehabilitation Institute of Chicago.] Further, the charges for emergency
transportation, equipment, medications, medical diagnostic tests, physician
charges and in-home care were necessary and reasonable. Additional
emergent hospital charges were likewise necessary and reasonable. . . In
2015, it was reported (SCIMS) that the average first year cost of treatment
for a high tetraplegic was $1,064,716. In my experience, these published
estimates are on the low-side (average) because they do not account for a
variety of factors including the actual charges, out-of-pocket expenses and
variability of levels of care and costs in different geographic regions of the
country. In my experience, the ordinary costs of care for a C-5/C-6
quadriplegic with expected medical complications and extensive
rehabilitation in-patient care in major metropolitan communities has, over
the past several years, ranged from $1.5 to $2 Million Dollars in the first 2
years post-injury. And, certainly, Mr. Thompson's past costs of care are in
align with these typical expenses.

14

Finally, as previously mentioned, the Life Care Plan provides for
reasonable and necessary costs of care that in my opinion Mr. Thompson will
need for the rest of his life.

15

(Doc. 211-4 at 1-2). The only reference to the reasonableness of Mr. Thompson’s medical

16

costs in Dr. Fried’s Report was his opinion that “[t]he medical services provided to date

17

have been reasonable and necessary in relation to the patient’s injury and accident

18

occurring on 2/19/2014.” (Doc. 211-2 at 15). The Court finds that Dr. Fried’s Addendum

19

Report offers new and expanded opinions and discussion that were not contained in his

20

prior Report or discussed at his deposition, and therefore exceeds the bounds of permissible

21

supplementation and must be excluded.

13

22

Plaintiffs further argue that if “the Court views the disclosure as untimely . . . the

23

Court [should] exercise its discretion and allow for this supplementation” and that the “late

24

disclosure is harmless[.]” (Doc. 252 at 3). The Court disagrees. Rule 37(c)(1) requires

25

that “[a] party that without substantial justification fails to disclose information required

26

by Rule 26(a) . . . is not, unless such failure is harmless, permitted to use as evidence at a

27

trial, at a hearing, or on a motion any witness or information not so disclosed.” Fed. R.

28

Civ. P. 37(c)(1); see also Wong v. Regents of Univ. of Cal., 410 F.3d 1052, 1062 (9th Cir.

- 34 -

1

2005) (exclusion of evidence from a witness that was not timely disclosed unless

2

substantial justification for failure to timely disclose is shown, and the failure is not

3

harmless). Plaintiffs have not met these requirements. Therefore, Dr. Fried’s testimony

4

will be limited to the scope of his August 29, 2017 Report and July 11, 2018 deposition.

5

Accordingly, Defendants’ Motion is granted.

6

18.

Doc. 212

7

In this Motion in Limine, Defendants argue that the Court should exclude “all

8

graphic photographs depicting [Mr.] Thompson’s . . . injuries that he allegedly sustained

9

in this case.

(Doc. 212 at 1). Specifically, Defendants have moved to exclude photos

10

(Docs. 212-1, 212-2, 212-3, 212-4, 212-5, 212-6, 212-7, 212-8, 212-9, 212-10, 212-11, and

11

212-12) that they argue are irrelevant and because the danger of unfair prejudice

12

substantially outweighs any probative value. Plaintiffs contend that Defendants’ motion is

13

“predicated upon an inaccurate characterization of the photographs at issue and the highly

14

relevant importance of these photos.” (Doc. 253 at 1).

15

Under Rule 401, evidence is relevant if it has any tendency to make the existence of

16

a fact of consequence more or less probable. However, pursuant to Rule 403, relevant

17

evidence may be excluded if its probative value is substantially outweighed by the risk of

18

unfair prejudice. The Court finds Defendants’ arguments regarding the admissibility of the

19

photos to be unpersuasive. Here, most of the photos depict the Polaris RZR and its

20

positioning after the incident, the positioning of Mr. Thompson after incident, and the

21

features of the terrain. Thus, the Court finds these photos to be relevant and that the

22

probative value is not substantially outweighed by the risk of unfair prejudice. However,

23

since the nature of Mr. Thompson’s injuries is uncontested, the photographs of Mr.

24

Thompson in his hospital bed following the incident (Doc. 212-9 and 212-10) are irrelevant

25

to Plaintiffs’ claims or Defendants’ defenses. Accordingly, Defendants’ Motion is denied

26

in part and granted in part as follows: Docs. 212-1, 212-2, 212-3, 212-4, 212-5, 212-6, 212-

27

7, 212-8, 212-11, and 212-12, subject to proper foundation, are admissible; and Doc. 212-

28

9 and 212-10 are irrelevant, and therefore inadmissible.

- 35 -

1

Accordingly,

2

IT IS ORDERED that Plaintiffs’ Motions in Limine (Docs. 186, 187, 188, 189,

3

206, 209, 210, 213, 215, 216, 217, 218, 221, 223, 225, and 227) and Defendants’ Motions

4

in Limine (Docs. 190, 194, 196, 200, 201, 202, 205, 207, and 208) are DENIED without

5

prejudice.

6

IT IS FURTHER ORDERED that Plaintiffs’ Motions in Limine (Docs. 203, 204,

7

224, and 226) and Defendants’ Motions in Limine (Docs. 192, 193, 198, and 211) are

8

GRANTED.

9

IT IS FINALLY ORDERED that Defendants’ Motions in Limine (Doc. 191, 195,

10

197, 199, and 212) are GRANTED in part and DENIED in part as set forth in this Order.

11

Dated this 17th day of May, 2019.

12
13
14
15

Honorable Diane J. Humetewa
United States District Judge

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