Allegro Ventures, Inc. v. Almquist

Filing 127

ORDER granting in part and denying in part Motions in Limine 59 , 60 , 61 , 62 , 63 , 64 , 65 , 66 , 68 , 69 , 70 , 71 , 72 , 73 , 74 , 75 . The Court recognizes that the truncated nature of motions in limine may mean that the Court i s unaware of important information regarding this motion. The Court is not foreclosing any further argument on these motions during trial by either side. This decision represents the Courts view of the issues at this time and is subject to reconsideration at any time prior to a final judgment being issued. Signed by Judge M. James Lorenz on 5/8/2014. (sjt)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 ALLEGRO VENTURES, INC., 14 Plaintiff, 15 v. 16 MICHAEL W. ALMQUIST, 17 Defendant. 18 19 ) ) ) ) ) ) ) ) ) ) ) Case No. 11-cv-2009-L(WVG) ORDER GRANTING IN PART AND DENYING IN PART THE PARTIES MOTIONS IN LIMINE [DOCS. 59, 60, 61, 62, 63, 64, 65, 66, 68, 69, 70, 71, 72, 73, 74, 75] On August 31, 2011, Allegro Ventures, Inc. (“AVI”) filed a complaint against 20 Michael Almquist (“Almquist”), seeking declaratory relief under general maritime law. 21 On July 24, 2013, this Court granted Almquist’s motion to realign parties for trial, 22 designating Almquist as the Plaintiff, and AVI the Defendant. (Doc. 53.) This admiralty 23 action arises out of a dispute concerning whether Almquist was employed as a seaman in 24 service of AVI’s vessel when he suffered from a seizure that eventually led to the 25 discovery of metastatic melanoma in his brain and lung. Now pending before the Court 26 are the parties’ motions in limine. 27 The Court found these motions suitable for determination on the papers submitted 28 and without oral argument. See Civ. L.R. 7.1(d.1). For the following reasons, and as 11cv2009 1 indicated below, the Court GRANTS IN PART and DENIES IN PART the parties 2 motions in limine. 3 4 I. BACKGROUND 5 AVI is incorporated in Nevada and owns the seventy-foot luxury motor yacht 6 ALLEGRO (“M/Y ALLEGRO”). (Frey Decl. [Doc. 29–2] ¶ 2.) AVI’s President, Leo 7 Frey (“Frey”), is principally responsible for the ownership, operation, and maintenance 8 of the M/Y ALLEGRO. (Id.) Almquist is a resident of Carlsbad, California, who works 9 in the maritime industry and is licensed by the United States Coast Guard to operate up 10 to 200-ton vessels for near-coastal voyages. (Almquist Decl.[Doc. 18-3] ¶¶ 1, 4.) 11 Since 1993, Almquist has been doing business as Almquist Yacht Management. 12 (Almquist Dep. [Doc. 29–7] Vol. I, 63:17–20.) Under this fictitious business name, 13 Almquist provides boat-maintenance and captain services to various yacht-owning 14 clients in the Southern California area. (Almquist Decl. ¶ 4.) When servicing their yachts, 15 Almquist charges clients an hourly rate plus expenses for all work performed on the 16 vessels. (Id. ¶ 10.) He also charges for his travel time if he is making an after-hours trip 17 for a specific client. (Id.) Additionally, Almquist provides captain services to his clients 18 at a flat rate of $300 per day, often for trips to Catalina Island or the area around San 19 Diego Bay. (Id. ¶ 7.) For several of these clients, he considered himself the “designated 20 captain,” where he has an agreement to regularly maintain and repair the clients’ luxury 21 yachts as needed while docked, and remain available to take owners and guests out on 22 voyages for his flat-rate fee. (Id. ¶ 4.) Almquist provided a similar combination of these 23 services to AVI over a period of approximately twelve years, and it is this relationship 24 that forms the basis of this dispute. 25 On Thursday, November 18, 2010, Almquist delivered the M/Y ALLEGRO to the 26 Shelter Island Boat Yard at the request of Frey for the vessel to be hauled out to receive 27 its biennial shipyard maintenance. (Almquist Decl. ¶ 13.) Because Frey wished to discuss 28 2 11cv2009 1 what work was going to be performed on the vessel, he scheduled a meeting with 2 Almquist to meet him at the boatyard over the weekend. (Id. ¶ 14.) 3 On Sunday, November 21, 2010, while driving to meet Frey at the boatyard, 4 Almquist suffered a “seizure-like episode” and lost consciousness, crashing his pickup 5 on the side of the freeway. (Almquist Decl. ¶ 15.) Emergency services transported 6 Almquist to a hospital where he was treated for his injuries. (Id. ¶ 16.) 7 While receiving treatment, a brain scan was undertaken to discover the cause of 8 the seizure. (Almquist Decl. ¶ 16.) It revealed a small lesion in Almquist’s left parietal 9 lobe. (Id.) Initially, doctors believed that the lesion may be some type of cerebral 10 parasite. (Id.) However, on May 13, 2011, a craniotomy was performed to remove the 11 lesion, and subsequent lab analysis determined that the lesion was a metastatic melanoma 12 brain tumor. (Id.) A second tumor was later discovered in Almquist’s right lung. (Id.) 13 However, the primary melanoma site has not been found. (Id.) Almquist has since 14 undergone chemotherapy and has accrued in excess of $700,000 in medical expenses 15 relating to his automobile injuries and cancer treatments. (Id. 18.) AVI initially paid 16 Almquist’s medical expenses for the craniotomy and lung biopsy after being informed 17 that Almquist was possibly infected with a parasite while working for AVI. (Id. ¶¶ 16, 18 18.) But after discovery of the melanoma, a dispute has arisen concerning whether AVI 19 is responsible for paying any further medical bills related to both the automobile injuries 20 and the cancer treatments. (Id. ¶ 18.) 21 On August 31, 2011, AVI commenced this action against Almquist. However, the 22 parties were realigned pursuant to this Court’s July 24, 2013 order. (Order Realigning 23 Parties [Doc. 53].) Almquist asserts two claims: (1) maintenance and cure benefits from 24 AVI for his injuries sustained in the automobile accident and for his cancer treatments, 25 and (2) the willful and arbitrary failure of AVI to pay maintenance and cure. (Answer 26 [Doc. 4] Part II.B. ¶¶ 8–18.) AVI seeks a declaratory judgment stating that Almquist was 27 not employed as a seaman in service of the M/Y ALLEGRO and therefore is not entitled 28 to maritime maintenance and cure benefits. (Compl. [Doc. 1] ¶¶ 15–18.) Additionally, 3 11cv2009 1 and alternatively, AVI asserts that Almquist is not entitled to maintenance and cure 2 benefits because his injury was the result of “wilful misbehavior.” (Def.’s Opp’n #1 3 [Doc. 77] 1.) 4 On June 6, 2013, this Court denied both parties’ cross motions for summary 5 judgment. In so doing the Court indicated that “this dispute in its entirety initially 6 depends on whether Mr. Almquist was employed as a seaman in service of the M/Y/ 7 ALLEGRO at the time of his injury.” (Order Denying Summ. J. [Doc. 47] 9.) In order 8 to make this determination, the Court first examined the “existence of an employer9 employee relationship between AVI and Mr. Almquist, and then analyze[d] whether Mr. 10 Almquist is entitled to seaman status as a matter of law.” (Id.) This Court concluded 11 that “a genuine issue of material fact exists as to whether an employment relationship 12 existed under maritime law.” (Id. 12.) The Court then found that Mr. Almquists’ 13 seaman status, which is a mixed question of fact and law, was inappropriate to decide on 14 summary judgment and should be left to the jury as well. (Id. 16-21.) 15 16 II. PLAINTIFF’S MOTIONS IN LIMINE 17 A. 18 19 Motion #1 - To Exclude Evidence of Plaintiff’s Smoking and Alcohol Use Almquist seeks to exclude evidence of his smoking and alcohol use under Rule 20 402 of the Federal Rules of Evidence. (Pl.’s Mot. #1 [Doc. 59] 5.) Almquist asserts that 21 any evidence of smoking and drinking is irrelevant because there is no evidence linking 22 smoking or drinking to metastatic melanoma. (Id. 5-6.) Alternatively, Almquist argues 23 that admitting this evidence would be unfairly prejudicial “by portraying him in a bad 24 light.” (Id. 10.) AVI opposes, asserting that such evidence is relevant because “the jury is 25 entitled to hear the cause of Plaintiff’s accident so that it can determine (1) whether 26 Plaintiff was in the ‘service of the ship’ at the time of the accident and (2) the viability of 27 AVI’s maintenance and cure defenses that Plaintiff is guilty of willful misconduct, of 28 4 11cv2009 1 concealing his pre-existing condition and that he could not have reasonably considered 2 himself fit for duty by virtue of his chronic alcoholism.” (Def.’s Opp’n #1 [Doc. 77] 1.) 3 First, it is clear that evidence of Almquist’s smoking and drinking do not bear on 4 the threshold issue of Almquist’s status as an employee or as a seaman. As previously 5 stated in this Court’s order denying summary judgment, the jury must determine (1) 6 whether Almquist was an employee of AVI, and, if so, (2) whether Almquist was 7 employed by AVI as a “seaman.” (Order Denying. Summ. J. 9.) However, such evidence 8 is relevant to other issues to be addressed at trial. 9 “A defense which a ship owner can assert . . . is wilful misconduct by the seaman 10 [citation], which is the sole cause of the illness or injury.” Smith v. Isthmian Lines, Inc., 11 205 F. Supp. 954, 955-56 (N.D. Cal. 1962)(emphasis added). Intoxication is considered 12 wilful misconduct that will bar recovery in some cases. Id. AVI asserts that due to 13 Almquist’s alleged drinking he was not in the “service of the ship,” (Def.’s Opp’n #1 914 10), because his accident was the result of his chronic alcoholism, which constitutes 15 willful misconduct. (Id. 6-9). 16 Here, Almquist seeks “cure” related to (1) the injuries he sustained as a result of 17 the automobile accident, and (2) expenses related to treatment of his metastatic 18 melanoma. (Answer Part II.B ¶ 12.) Evidence of Almquist’s history of alcohol use is 19 relevant in determining the “sole cause” of the automobile accident and the cure 20 expenses associated with those injuries. The parties both acknowledge that AVI plans to 21 introduce evidence of Almquist’s alcohol use to support its defense of willful 22 misconduct. (Pl.’s Mot. #1 8-9; Def.’s Opp’n #1 14,15). Both parties also appear to 23 agree that, such evidence does not address the “sole cause” of Almquist’s metastatic 24 melanoma, and, thus, is not relevant to the cure related to those medical expenses. (Pl.’s 25 Mot #1 8-9; Def.’s Opp’n #1 14 n. 7 (“That AVI’s expert physicians are not expected to 26 testify that Plaintiff’s melanoma was caused by smoking or alcohol abuse misses the 27 point.”)). 28 5 11cv2009 1 Almquist’s claim that such evidence “is not relevant to any ‘wilful misbehavior’ 2 defense, because there is no evidence that Plaintiff’s drinking or smoking caused his 3 metastatic melanoma” is accurate but incomplete. (Pl.’s Mot. #1 5.) Although the 4 evidence is not relevant to determining the cause of the melanoma, it is relevant to the 5 cause of the accident and the injuries sustained as a result of that accident, as explained 6 above. 7 Accordingly, the Court GRANTS IN PART and DENIES IN PART Almquist’s 8 motion in limine and ORDERS that evidence of Almquist’s drinking and smoking is 9 admissible only in regard to AVI’s “willful misconduct” defense with respect to 10 Almquist’s claims for damages relating to the injuries sustained in the automobile 11 accident, and not his damages in connection with his cancer. 12 13 B. Motion #2 - To Exclude Expert Testimony of James McMullen 14 Federal Rule of Evidence 702 allows expert opinion testimony so long as “(a) the 15 expert's scientific, technical, or other specialized knowledge will help the trier of fact to 16 understand the evidence or to determine a fact in issue; (b) the testimony is based on 17 sufficient facts or data; (c) the testimony is the product of reliable principles and 18 methods; and (d) the expert has reliably applied the principles and methods to the facts 19 of the case.” Fed. Rule Evid. 702. “Expert testimony is admissible pursuant to Rule 702 20 if it is both relevant and reliable.” Mukhtar v. Cal. State. Univ., 299 F.3d 1053, 1063 & 21 n. 7 (9th Cir. 2002) (internal quotation marks and citation omitted). 22 Almquist seeks to exclude the testimony of AVI’s attorney expert witness, James 23 McMullen, alleging the following: (1) the issue is not amenable to expert testimony; (2) 24 his testimony concerning the applicable law invades the province of the Court; (3) his 25 opinion on application of facts to the law invades the province of the jury; (4) his 26 opinions are not useful or legally helpful as required by Rule 702; and (5) his opinions 27 are argumentative and unreliable. (Pl.’s Mot. #2 [Doc. 60] 3.) Although listed as a 28 separate reason, Almquist’s first argument, that the issues in this case are not amenable 6 11cv2009 1 to expert testimony, appears to be a summary of the remaining four reasons. Thus, the 2 Court will consider each of those in turn. 3 Almquist asserts that Mr. McMullen should not be allowed to testify as an expert 4 on the law. The Court agrees. To the extent that Defendant seeks to have Mr. McMullen 5 testify about what the applicable law is for this case, this is not admissible.1 However, 6 Defendant asserts that Mr. McMullen is called to testify as an expert concerning the 7 maritime industry. To this extent, Mr. McMullen’s testimony does not invade the 8 province of the Court.2 9 Plaintiff next asserts that allowing Mr. McMullen “to testify as to his conclusion 10 on whether Captain Almquist was a seaman or not or whether he was had a sufficient 11 employment connection to the Yacht ALLEGRO to give rise to an obligation on the part 12 of the owner to pay maintenance and cure . . . would invade the province of the jury.” 13 (Pl.’s Mot. #2 7.) Although Almquist provides no legal basis for this assertion, he 14 appears to base his argument on an anachronistic law which disallowed expert opinion 15 on ultimate issues on the basis that it usurped the role of the jury. However, “[a]n 16 opinion is not objectionable just because it embraces an ultimate issue.” Fed. Rule Evid. 17 704. Thus, Mr. Mullen’s opinion based on the application of facts in this case to the 18 appropriate law does not invade the province of the jury.3 19 Almquist also asserts that Mr. McMullen’s testimony is inadmissible because it is 20 not helpful to the trier of fact. Rule 702(a) requires that “the expert's scientific, technical, 21 1 The Court notes that Mr. McMullen’s expert report does, in fact, contain a lengthy legal analysis, which is not admissible. It is within the sole purview of this Court to establish the law 23 applicable to this matter. An expert has no authority to usurp that function. 22 2 The Court notes that Mr. McMullen’s expert report begins by stating, “I was retained . . . to render opinions and provide a maritime lawyer’s understanding of the custom and practice in 25 the industry impacting the above-referenced case, as well as those industry standards impacting the issues in the above-referenced case.” It is debatable whether an expert retained in his 26 capacity as a lawyer has the adequate basis to provide information concerning custom and practice within the maritime industry. However, Plaintiff has not objected to Mr. McMullen’s 27 qualifications, so this issue is not before the Court. 24 28 3 Plaintiff appears to recognize this as he refers to the “abolition of the ultimate issue rule” on page 7 of his motion. 7 11cv2009 1 or other specialized knowledge will help the trier of fact to understand the evidence or to 2 determine a fact in issue.” Almquist’s argument centers on Mr. McMullen’s application 3 of the “wrong laws and legal standards. “ (Pl.’s Mot. #2 7.) As noted previously, to the 4 extent that Mr. McMullen’s testimony is in conflict with the applicable law previously 5 set out by this Court, such testimony is inadmissible. However, AVI asserts that Mr. 6 McMullen “is qualified to provide the jury with the background and customs of the 7 conduct of large yacht and other vessel owners, including the type of services that they 8 need performed, their crewing needs, and the way such marine vessels are operated and 9 managed.” (Def.’s Opp’n #2 [Doc. 78] 1.) AVI asserts that this information is relevant to 10 the issue of Almquist’s alleged employment by AVI and his status as a seaman. (Id. 3-7.) 11 The Court agrees with Defendant that such information would be helpful for the jury. 12 Finally, Plaintiff asserts that Mr. McMullen should not be allowed to testify 13 because his opinions are argumentative and unreliable, and should therefore be excluded 14 pursuant to Rule 403 because any probative value is outweighed by “undue prejudice to 15 Plaintiff, confusion of issues and a waste of time.” (Pl.’s Mot. #2 9.) Plaintiff provides no 16 additional argument beyond this conclusory statement to support this argument, and the 17 Court is unwilling to venture a guess as to Plaintiff’s intended argument. 18 Accordingly, the Court GRANTS IN PART and DENIES IN PART Almquist’s 19 motion in limine to exclude the testimony of attorney expert witness James McMullen. 20 Mr. McMullen’s expert testimony is allowed to the extent that his opinions are based on 21 the correct legal standards set out by this Court. 22 23 C. Motion #3 - To Exclude Expert Testimony of Richard Cogswell 24 Almquist seeks to exclude the testimony of defense expert Richard Cogswell for 25 the following reasons: “1) the two legal questions before the jury concerning seaman’s 26 status and the sufficiency of Plaintiff’s employment- related connection to the vessel are 27 not amenable to expert testimony; 2) Captain Cogswell’s opinions do not take into 28 account and are not based on the applicable legal test for employment in this 8 11cv2009 1 maintenance and cure context; 3) Captain Cogswell’s opinions about what he perceives 2 as practices in the ‘Yacht Industry’ are not relevant; and 4) Captain’s Cogswell’s 3 opinions, which do little more than tell the jury how the good captain thinks the 4 employment question should turn out, are simply not helpful to the trier of fact and, thus, 5 must be excluded pursuant to Rule 702 of the Federal Rules of Evidence.” (Pl.’s Mot. #3 6 [Doc 61] 2-3.) 7 Almquist also asserts that Mr. Cogswell’s testimony is not “helpful” to the jury, 8 and is thus inadmissible. (Pl.’s Mot. #3 4.) While recognizing that Rule 704 allows 9 “witnesses to give their opinions on ultimate issues,” Almquist also notes that such 10 opinions still “must be helpful to the trier of fact.” (Pl.’s Mot. #3 4-5.) AVI claims that 11 Mr. Cogswell’s testimony is helpful for the jury because “issues concerning the business 12 of, and work involved in, maintenance of numerous large motor yachts are not within the 13 common knowledge of the average layperson.” (Def.’s Opp’n #3 [Doc. 79] 4.) The 14 Courts agrees and finds that such testimony would be helpful for the jury. 15 Plaintiff next asserts that Mr. Cogswell should not be allowed to testify because 16 his opinions are not based on the proper law applicable to this case. To the extent that 17 Defendant seeks to have Mr. Cogswell provide opinions based on the application of the 18 incorrect law, this is not admissible. However, Defendant asserts that Mr. Cogswell is 19 called to testify as an expert concerning the maritime industry. To this extent, Mr. 20 McMullen’s testimony does not invade the province of the Court. 21 Almquist asserts Mr. Cogswell’s opinions concerning the practices in the “Yacht 22 Industry” are not relevant because (1) there is no allegation of negligence, and (2) the 23 yacht industry is not something separate and distinct from the maritime industry. (Pl.’s 24 Mot. #3 6.) First, although there is no need to show a deviation from industry customs 25 and practices in this case, as is relevant for negligence claims, customs and practices are 26 still relevant for the jury in looking at the “venture as a whole.” Glynn v. Roy Al Boat 27 Mgmt. Corp., 57 F.3d 1495, 1495 (9th Cir. 1995). Second, the customs and practices of 28 yacht owners and operators appear to be relevant to the “venture as a whole.” Id. 9 11cv2009 1 Plaintiff’s final argument, that Mr. Cogswell’s testimony simply tells the jury how 2 to decide, is little more than a summary of previous arguments. Further, as Plaintiff 3 himself conceded, and as this Court has already noted, “[a]n opinion is not objectionable 4 just because it embraces an ultimate issue.” Fed. Rule Evid. 704. 5 Accordingly, the Court GRANTS IN PART and DENIES IN PART Almquist’s 6 motion in limine to exclude the testimony of defense expert Richard Cogswell. Mr. 7 Cogswell’s expert testimony is allowed to the extent that his opinions are based on the 8 correct legal standards set out by this Court. 9 10 D. Motion #4 - To Exclude Witness Not Disclosed During Discovery 11 Almquist seeks to exclude the testimony of six witnesses that he contends were 12 not timely disclosed pursuant to Fed. R. Civ. P. 26. (Pl.’s Mot. #4 [Doc. 62] 3.) AVI 13 opposes on multiple grounds. (Def.’s Opp’n #4 [Doc. 82] 2.) 14 Rule 26(a)(1) requires each party to provide to the other party the name of each 15 individual likely to have discoverable information that the disclosing party may use to 16 support its claims or defenses. In addition to the initial disclosures required by Fed. R. 17 Civ. P. 26(a)(1), the parties must provide pretrial disclosures which includes “the name 18 and, if not previously provided, the address and telephone number of each 19 witness–separately identifying those the party expects to present and those it may call if 20 the need arises.” Fed. R. Civ. P. 26(a)(3)(A)(i). These disclosures must be made at least 21 30 days before trial. Id. Here, the Court ordered that these pretrial disclosures be made 22 by May 28, 2013. (Case Management Order [Doc. 15] ¶ 11.) The Court extended this 23 deadline to May 31, 2013. (Order Continuing Deadline to Comply with Pretrial 24 Disclosure Requirements [Doc. 40].) 25 Rule 37(c)(1) gives teeth to the initial disclosure requirements of Rule 26(a), by 26 forbidding the use of any information or witness that is not properly disclosed. Torres v. 27 City of Los Angeles, 548 F.3d 1197, 1212 (9th Cir.2008). District courts have wide 28 latitude to issue sanctions under Rule 37(c)(1): 10 11cv2009 1 2 3 4 5 6 [Rule 37(c) ] clearly contemplates stricter adherence to discovery requirements, and harsher sanctions for breaches of this rule ... [Rule 37(c) is] a “self-executing,” “automatic” sanction to provide a strong inducement for disclosure of material ... Courts have upheld the use of the sanction even when a litigant’s entire cause of action or defense has been precluded ... although the exclusion of an expert would prevent plaintiff from making out a case and was a “harsh sanction to be sure,” it was “nevertheless within the wide latitude of” Rule 37(c)(1). 7 Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir.2001). 8 According to Rule 37(c)(1), “the party is not allowed to use that information or witness 9 to supply evidence on a motion, at hearing, or at trial, unless the failure was substantially 10 justified or is harmless.” 11 Both parties were warned at the outset of this litigation that sanctions would result 12 if either party failed to comply with Rule 26(a). The Court’s February 29, 2012 set the 13 parties deadline to comply with rule 26(a)(1) as April 30, 2012, expressly stated that 14 failure “to comply with this Order will result in the imposition of sanctions.” (February 15 29, 2012 Order [Doc. 10] 2.) The parties were also warned that failure to comply with 16 the Pretrial Disclosure requirements of Fed. R. Civ. P. 26(a)(3) “could result in evidence 17 preclusion or other sanctions under Fed. R. Civ. P. 37.” (May 15, 2012 Order [Doc. 15] 18 ¶ 11.) 19 Almquist argues that on June 3, 2013, AVI filed its Fed . R. Civ. P 26(a)(3) 20 disclosures, “and, for the first time, identified four new fact witnesses it intended to call 21 at trial...Josh Frey, Brenda Boliba, Sam Eichenfield and Officer J.A. Contreras.” (Pl.’s 22 Mot. #4 2-3; AVI Pretrial Disclosures [Doc. 44] 2, 3.) Then, on July 11, 2013, AVI 23 revised its 26(a)(3) disclosures, adding two more witnesses: Jon Haynes and James 24 Blasic. (Pl.’s Mot. #4 3; AVI Revised Pretrial Disclosures [Doc. 50] 4, ¶ 3.) Almquist 25 suggests that the purportedly untimely disclosure of these witnesses was neither 26 substantially justified or harmless. (Pl.’s Mot. #4 3.) The Court disagrees. 27 AVI does not dispute that Brenda Boliba, J.A. Contreras, John Haynes and James 28 Blasic were not disclosed as witnesses until their June 3, 2013 pretrial disclosures, 11 11cv2009 1 effectively conceding that these disclosures were untimely, and thus subject to sanctions. 2 By not disclosing these witnesses, AVI prevented Almquist from taking discovery from 3 them. Under these circumstances, allowing their testimony would be patently unfair to 4 Almquist. AVI’s arguments that Almquist knew of these witnesses, and is simply 5 “invoking procedural niceties over witnesses he never would have deposed” rings 6 hollow. (Def.’s Opp’n #4 [Doc. 82] 5.) AVI, and the Court for that matter, cannot 7 speculate as to how Almquist would have used the information that AVI failed to 8 disclose. However, it is clear that AVI was required to disclose this information, and did 9 not. Due to this failure, Almquist had no idea that AVI planned to use the testimony of 10 any of these witnesses during trial. Moreover, AVI fails to provide any justification 11 whatsoever as to why they failed to timely disclose these witnesses. Their entire 12 argument focuses on whether their failure has harmed or will harm Almquist, but fails to 13 explain why witnesses that they intended to rely on during trial were not named until 14 after multiple discovery deadlines had passed. 15 AVI’s argument regarding Josh Frey and Sam Eichenfield is slightly different. In 16 addition to the arguments above, AVI contends that Almquist identified Josh Frey as a 17 witness that Almquist might use in his initial disclosures, so he is “hardly a ‘secret 18 witness’”. (Def.’s Opp’n 5.) In other words, it appears that AVI takes the position that it 19 satisfied its Rule 26 obligations with respect to Josh Frey by alluding to him during the 20 course of discovery, rather than exchanging specific witness lists as required. However, 21 the fact that Almquist knew the identify of Josh Frey does not demonstrate that AVI’s 22 failure to disclose him as a witness was substantially justified or harmless. AVI provides 23 no explanation as to why it could not have disclosed Josh Frey as a witness before the 24 relevant deadlines, and therefore, fails to show that this failure was substantially 25 justified. 26 AVI next argues that Sam Eichenfield should not be excluded because Almquist 27 has known Mr. Eichenfield for years and was identified in AVI’s initial disclosures as 28 “Owner of M/Y ROSEMARY’S BABY.” (Opp’n 3.) Again, Rule 26(a) requires the 12 11cv2009 1 parties to furnish names of witnesses to be relied on at trial. AVI failed to do this, and 2 has provided no explanation as to why their failure to do so was substantially justified. 3 As explained above, knowing who a witness is far different than knowing that the other 4 party intends to rely on their testimony. 5 If these witnesses were allowed to testify at trial, Almquist would have no time to 6 depose them and prepare for trial. This would work a substantial hardship on Almquist, 7 if it were even possible. Thus, the Court finds that exclusion of these witnesses is an 8 appropriate sanction4. Because it would be unfair for AVI to present these witnesses in 9 trial, they are hereby excluded from trial under the Court’s discretion and pursuant to 10 Fed. R. Civ. P. 37. Accordingly, the Court GRANTS Almquist’s motion in limine to 11 exclude witnesses not disclosed during discovery. 12 13 E. Motion #5 - To Exclude or Limit Evidence of PCIP Insurance 14 Purchased by Plaintiff After Defendant Denied his Maintenance and 15 Cure Claim 16 Almquist seeks to exclude evidence of the Pre-Existing Condition Insurance Plan 17 (“PCIP”) he purchased after Defendant ceased paying for his medical treatment because 18 the expenses paid by PCIP are subject to a lien. (Pl.’s Mot. #5 [Doc. 63] 2.) Defendant 19 opposes on the grounds that such evidence is relevant to (1) the amount of damages to 20 award, and (2) AVI’s defense that it is not liable for punitive damages. (Def.’s Opp’n #5 21 [Doc. 83] 2, 8.) In their motions, both parties discuss the collateral source rule. Plaintiff 22 argues that this rule disallows any offset in damages, and thus, evidence of Plaintiff’s 23 PCIP is not relevant to the issue of damages. (Pl.’s Mot. #5 3.) Defendant argues that the 24 collateral source rule is not applicable to maintenance and cure claims, and thus, the jury 25 should be presented with evidence that would reduce Plaintiff’s award of damages. 26 27 4 AVI’s argument that there is ample time between their tardy disclosure and trial. (Opp’n 28 6.) While this may have been true at the time the motions in limine were filed, it is no longer the case. Almquist cannot be prejudiced by failing to depose these untimely disclosed witnesses. 13 11cv2009 1 (Def.’s Opp’n #5 6.) Additionally, Defendant argues that even if the collateral source 2 rule applies, the amount of damages is limited to the expenses “actually incurred,” which 3 requires evidence of the amounts accepted as full payment from PCIP, not simply the 4 amount billed by the medical providers. (Id. 6-7.) Both parties’ arguments miss the 5 bigger picture. 6 First, it is important to understand that liability for medical bills comes from 7 Almquist’s claims for “cure.” As this Court has already explained, a seaman has the 8 right to “cure,” which encompasses “the reasonable medical expenses for treatment until 9 the seaman is fit for duty or until maximum recovery is reached.” Moore v. United 10 States, 817 F. Supp. 2d 1136, 1150 (N.D. Cal. 2011) (citing Vella v. Ford Motor Co., 11 421 U.S. 1, 5 (1975)). Second, because the Court notes that if Almquist prevails in this 12 matter, he will be entitled to “reasonable medical expenses . . . until maximum recovery 13 is reached.” Therefore, “cure” is by definition both backward and forward-looking. If 14 Almquist is found to be entitled to “cure,” AVI will be potentially obligated to pay for 15 his past and future medical expenses. So, even if his insurance company enforces a lien 16 on the potential judgment in the future, AVI will still be liable for reimbursing Almquist 17 for his payment of that lien. In addition, the insurance records are relevant to prove the 18 amounts actually accepted by the medical providers as full payment, which is the 19 appropriate measure for damage calculations.5 20 Accordingly, the Court DENIES Almquist’s motion in limine to exclude or limit 21 evidence of PCIP insurance. 22 23 24 25 5 The Court recognizes that during trial, Almquist seeks only “past cure.” (Joint 26 Statement of Relief Sought [Doc. 56].) This does not change the Court’s ruling on this issue. Even if Almquist is only presenting evidence of past medical expenses, both parties will need to 27 introduce evidence of PCIP insurance to establish what damages Almquist is entitled to. And, if Almquist is successful in establishing the existence of a lien on a judgment in this case, this 28 evidence must come in to avoid the unfair result of his damages award for cure being reduced by an amount that he is obligated to repay to the insurance company. 14 11cv2009 1 F. Motion #6 - To Preclude Defendant and its Witnesses and Counsel 2 From Referring to Almquist Yacht Management as a “Company” 3 Almquist seeks to preclude the use of the term “company” when referring to 4 Almquist Yacht Management claiming such term is “misleading and legally improper.” 5 (Pl.’s Mot. #6 [Doc. 68] 2.) AVI opposes. (Def.’s Opp’n #6 [Doc. 84].) Despite the 6 parties quibbling over the definition of the word company, Almquist fails to explain why 7 referring to Almquist Yacht Management as a “company” will mislead or confuse the 8 jury. Without any explanation as to why the use of “company” should be excluded, the 9 Court DENIES Plaintiff’s Motion to preclude AVI and its witnesses and counsel from 10 referring to Almquist Yacht Management as a “company.” 11 12 13 14 G. Motion #7 - To Exclude Evidence of Plaintiff’s Relationships with Other Yacht Owners Almquist seeks to exclude evidence of his relationship with other yacht owners as 15 irrelevant. (Pl.’s Mot. #7 [Doc. 65] 3.) He argues that “evidence of Plaintiff’s 16 relationships with any other yacht owner/employers and the services he performed or did 17 not perform for them under different arrangements has no bearing on any issue to be 18 decided in this trial and should be therefore excluded entirely.” (Id. 4.) AVI opposes on 19 the grounds that such information is relevant to Almquist’s ability to select his own 20 customers and make his own work schedule, two factors that AVI alleges go to the issue 21 of whether Almquist was an employee of AVI. (Def.’s Opp’n #7 [Doc. 85].) 22 In order to rule on this motion, the Court must determine what legal authority 23 Almquist makes his exclusion motion under. This is problematic, because noticeably 24 absent from the motion is any reference to any evidentiary rules, standards, or case law. 25 However, it appears that Almquist’s argument hinges exclusively on the relevance of this 26 information. Therefore, the Court analyzes this motion under FRE 402, “[i]rrelevant 27 evidence is not admissible.” 28 15 11cv2009 1 As previously stated in the Court’s order denying summary judgment, “[w]hile 2 there is no settled set of criteria for determining” whether an employment relationship 3 exists, “the Supreme Court has indicated that ‘[o]ne must look at the venture as a whole.” 4 The Ninth Circuit has followed this guidance by using a series of factors that focus on 5 the degree of control exercised by the alleged employer over the injured party. Glynn, 57 6 F.3d at 1495. Factors to be considered include “payment, direction, supervision, and 7 source of the power to hire and fire.” Id. (citing Matutute v. Lloyd Bermuda Lines, Ltd., 8 931 F.2d 231, 236 (3d Cir.1991); accord Boy Scouts of Am. v. Graham, 86 F.3d 861, 865 9 (9th Cir. 1996) (citing Heath v. Am. Sail Training Ass’n, 644 F. Supp. 1459, 1468 (D.R.I. 10 1986)). Other factors include considering who has the power to determine the route of 11 the ship and the activities of its crewmembers. See McAllister, 337 U.S. at 795. 12 In light of this legal framework, it appears that the employment inquiry is a sort of 13 “totality of the circumstances” test which allows the fact finder to look at any number of 14 factors that relate to “the venture as a whole.” AVI first argues that “[e]vidence that 15 Almquist provided services to at least eleven different yacht owners, at the same time he 16 was doing work for AVI, is highly probative of the scope of AVI’s very limited direction 17 and supervision of his activities.” (Opp’n 3.) Although the Court is unconvinced that 18 this evidence is “highly probative,” the evidence still does appear relevant. If evidence 19 is introduced regarding Almquist’s other work and arrangements, this evidence could 20 help the jury decide how Almquist operated with respect to AVI. Therefore, it appears 21 that this evidence is relevant to examining “the venture as a whole.” This evidence will 22 still be weighed against any direct evidence of Almquist’s work for AVI. 23 Additionally, AVI asserts that this evidence is relevant to the determination of 24 Almquist’s seaman status. AVI argues that because Almquist worked for other vessels, a 25 jury could conclude that he did not have “a connection with a vessel in navigation which 26 is substantial in terms of both its duration and nature.” [Def.’s Opp’n 7 [Doc. 85] 4.) 27 As the Court already stated in its Order denying summary judgment, part of the 28 inquiry into seaman status is whether the “purported seaman must have a connection to a 16 11cv2009 1 vessel in navigation (or to an identifiable group of such vessels) that is substantial in 2 terms of both its duration and its nature.” Keller Found./Case Found. v. Tracy, 696 F.3d 3 835, 842 (9th Cir. 2012) (citing Chandris, 515 U.S. at 368). Evidence of Almquist’s 4 other work is relevant, at a minimum, to the “duration” of his connection to M/Y 5 ALLEGRO. If Almquist was working for another vessel, then he could not have been 6 working for AVI on M/Y ALLEGRO. Almquist will of course have the opportunity to 7 present direct evidence of the “duration” of his connection with M/Y ALLEGRO, and 8 the jury will have to weigh the competing. 9 Accordingly, the Court DENIES Almquist’s Motion to exclude evidence of his 10 relationships with other yacht owners. 11 12 H. Motion #8 - To Exclude Trial Exhibit No. FL 13 Almquist seeks to exclude Trial Exhibit No. FL, a chart the purports to summarize 14 Almquist’s hourly work, for three reasons: (1) there is no sponsoring witness; (2) the 15 information is not reliable; and (3) “the document seeks to draw a distinction not 16 recognized in the law between the time Captain Almquist spent “captaining” or piloting 17 the ALLEGRO versus the time he spent working on ‘cleaning or maintenance’ of the 18 vessel.” (Pl.’s Mot. #8 [Doc. 66] 3.) 19 AVI contends that this chart is admissible under rule 1006, which states “[a] 20 proponent may use a summary, chart, or calculation to prove the content of voluminous 21 writings . . . that cannot be conveniently examined in court” so as long as it is made 22 available to other parties. Fed. R. Evid. 1006. AVI asserts that the chart was prepared 23 using invoice information provided, in substantial part, by Almquist. Whether or not 24 AVI cannot introduce a similar exhibit under Rule 1006 is a question that will be 25 resolved at trial. However, the chart, as it is formatted now, is inadmissible for the 26 following reasons. 27 With regard to Plaintiff’s third reason, Defendant argues that the document is 28 relevant because “Plaintiff can only count toward the Chandris 30% rule of thumb, the 17 11cv2009 1 hours he spent actually at sea navigating, and not his dockside cleaning and maintenance 2 hours.” (Def.’s Opp’n #8 [Doc. 86] 7.) While the actual hours stated in the chart for each 3 of these categories may be an accurate reflection of the invoice details and work 4 performed, the summarization of the data in this manner is misleading because it implies 5 that this is the correct allocation for purposes of the 30% rule. However, the actual rule is 6 less clearly defined, stating “a worker who spends less than about 30 percent of his time 7 in the service of a vessel in navigation should not qualify as a seaman[.]” Tracy, 696 8 F.2d at 842 (quoting Chandris, 515 U.S. at 371) (emphasis added). Thus, it is for the jury 9 to determine which of Almquist’s activities – including captaining, cleaning, and 10 maintenance – should be considered “in the service of a vessel in navigation.” This chart 11 implies that only those hours that Almquist spent “captaining” are “in the service of a 12 vessel in navigation.” However, AVI has not provided any authority supporting such a 13 distinction. Thus, the probative value of this exhibit is outweighed by concerns of 14 misleading the jury. 15 Accordingly, the Court GRANTS Almquist’s Motion to exclude trial exhibit No. 16 FL. 17 18 III. DEFENDANT’S MOTIONS IN LIMINE 19 A. 20 AVI argues that evidence of insurance and related matters should be excluded Motion #1 - To Exclude Evidence of Insurance and Related Matters 21 under Federal Rules of Evidence 411, 401, and 403. 22 “Evidence that a person was or was not insured against liability is not admissible 23 to prove whether the person acted negligently or otherwise wrongfully. But the court 24 may admit this evidence for another purpose, such as proving a witness's bias or 25 prejudice or proving agency, ownership, or control.” Fed. R. Evid. 411. 26 AVI maintains that evidence of insurance should be excluded pursuant to rule 411 27 because “[t]he courts have with substantial unanimity rejected evidence of liability 28 insurance for the purpose of proving fault… [m]ore important, no doubt, has been the 18 11cv2009 1 feeling the knowledge of the presence or absence of liability insurance would induce 2 juries to decide cases on improper grounds.” (Def’s Mot. #1 [Doc. 69-1] 5) (quoting Fed. 3 R. Evid. 411, Advisory Committee Notes - 1972 Proposed Rules.) AVI is mistaken. 4 Almquist’s claim for maintenance and cure does not rely on Plaintiff proving any 5 negligence or other wrongful acts, rendering the exclusionary power of Rule 411 6 inapplicable. Theoretically, AVI’s argument can only apply to Almquist’s claims for 7 punitive damages. (See Answer [Doc 4] 8-9.) However, this is never mentioned in the 8 instant motion, and Plaintiff has submitted that “the insurance-related evidence in this 9 case is not being offered to prove negligent, reckless or wrongful conduct.” (Pl.’s Opp’n 10 #1 [Doc. 87] 8.) Defendant also argues that, “if the jury were advised that there was 11 insurance covering a crewmember, it might immediately assume that Plaintiff was 12 covered and find him to be a seaman (crewmember) without engaging in the legal 13 analysis necessary to a determination of seaman status.” (Id. 6.) It is unclear how this 14 argument connects to Rule 411, and Defendant provides no legal basis, authority, or 15 substantive argument to support this conclusory statement. Therefore, the Court finds 16 that evidence of insurance is admissible under Rule 411, as it is not being offered to 17 “prove whether [AVI] acted negligently or otherwise wrongfully.” 18 Additionally, AVI argues that this evidence should be excluded because it is not 19 relevant, and to the extent that it is relevant, that the admission of the evidence would be 20 unduly prejudicial. (Def.’s Mot. #1 7.) Specifically, AVI argues that “[a] jury would 21 certainly be confused and mislead when more than half of the exhibits Plaintiff seeks to 22 introduce relate to and reference insurance” when this case “does not even have an 23 insurance company as a party and does not involve issues of insurance coverage.” (Id.) 24 The Court disagrees. 25 “Evidence is relevant if: (a) it has any tendency to make a fact more or less 26 probable that it would be without the evidence; and (b) the fact is of consequence in 27 determining the action.” Fed. R. Evid. 401.“The court may exclude relevant evidence if 28 its probative value is substantially outweighed by a danger of one or more of the 19 11cv2009 1 following: unfair prejudice, confusing the issues, misleading the jury, undue delay, 2 wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. 3 Almquist argues that evidence of insurance is relevant to establish: (1) his 4 relationship with the M/Y ALLEGRO; (2) Defendant’s control over the enterprise: (3) 5 his position as an employee; (4) as impeachment evidence against Leo Frey; and (5) both 6 as direct evidence of the claims handling process and as impeachment evidence against 7 Teresa McNail, the insurance claimsperson who denied the maintenance and cure claim. 8 (Pl.’s Opp’n #1 [Doc. 87] 1.) The Court agrees. As explained above, the jury must 9 decide whether an employment relationship existed between Almquist and AVI by 10 analyzing the “venture as a whole.” Information regarding AVI’s insurance application 11 and insurance policy is directly relevant to this calculus. Further, the Court finds that 12 any prejudice that Defendant might suffer as a result of this evidence is not so significant 13 that it outweighs the probative value. 14 Accordingly, the Court DENIES AVI’s motion in limine to exclude evidence of 15 insurance and related matters. 16 17 18 19 20 B. Motions #2 - To Preclude Evidence of Subjective Belief of Employment/Seaman Status AVI seeks to preclude Almquist from introducing evidence or testimony reflecting 21 a subjective belief as to whether he was a seaman, “captain,” or “master,” asserting such 22 evidence is not relevant. (Def.’s Mot. # 2 [Doc. 70-1] 1.) Almquist opposes, arguing that 23 “the ‘total circumstances’ of his employment are relevant and admissible to determine 24 whether Almquist had the required relationship or connection to a vessel in navigation to 25 qualify as a seaman.” (Pl.’s Opp’n #2 [Doc. 88] 3.) 26 27 28 Almquist’s testimony regarding his relationship with AVI is highly relevant to the issues to be tried in this case. This includes his subjective belief as to whether he was a 20 11cv2009 1 “seaman,” “captain,” or “master.” At this time, the Court is not convinced that 2 introduction of this testimony will unfairly prejudice AVI, especially because Almquist 3 will be subject to cross examination and AVI will have the opportunity to introduce 4 evidence and present expert testimony to contradict said testimony. AVI’s argument that 5 “Plaintiff is not an expert, was not disclosed as one, and therefore cannot express 6 opinions” is incorrect. (Def.s’ Reply #2 [Doc. 96] 4.) Indeed, the Federal Rules of 7 Evidence explicitly allow lay witness testimony. Fed. R. Evid. 702. 8 9 10 Accordingly, the Court DENIES AVI’s motion in limine to preclude Almquist from testifying about his subjective belief that he was employed by AVI as a seaman, “captain,” or “master.” 11 12 13 C. Motion #3 - To Preclude Undisclosed Expert Opinions 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Federal Rule of Civil Procedure 26(a)(2), concerning the required disclosures in connection with expert testimony, provides: (B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report--prepared and signed by the witness--if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. ... (C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state: (i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify. AVI argues that Almquist should be precluded from introducing opinion testimony from Drs. Sabina Wallach, Tawny Ngo and Frederick J. De La Vega, Almquist’s treating 21 11cv2009 1 physicians, because he failed to properly disclose these experts and provide the required 2 reports under FRCP 26(a)(2)(B) and (C). 3 4 5 6 7 8 Plaintiff opposes, stating that all three doctors were disclosed on Plaintiff’s witness list, but that “[n]one of these treating doctors were retained as expert witnesses by Plaintiff and none submitted an expert report.” (Pl.’s Opp’n #3 [Doc. 89] 2.) Plaintiff contends that because his treating physicians were not retained as experts, they fall within the exception to Rule 26(a)(2)(B)’s disclosure requirement as set out in Goodman v. Staples the Office Superstore, LLC, 644 F.3d 817, 825-26 (9th Cir. 2011). 9 10 “Goodman confirms that a treating physician is not required to make a Rule 11 26(a)(2)(B) report to the extent the treating physician’s opinions are formed during the 12 course of the treatment and limited to the scope of treatment rendered.” Robinson v. HD 13 Supply, Inc., 2013 WL 3816009 * 4 (E.D. Cal. July 19, 2013). However, “when 14 identifying experts such as treating physicians who are not retained . . . the party must 15 state the ‘subject matter’ on which the witness is expected to testify and ‘a summary of 16 the facts and opinions’ to which the witness is expected to testify.” Id. Almquist 17 presents no evidence or argument that he timely disclosed these treating physicians to 18 AVI, or that he provided the “subject matter” and “summary of facts and opinions” 19 required by Rule 26(a)(2)(C). Because Almquist fails to explain why this omission was 20 substantially justified or harmless, the Court excludes these witnesses from testifying 21 because it would unfairly prejudice AVI, which never had a chance to prepare for this 22 testimony. 23 Accordingly, the Court GRANTS AVI’s motion in limine to preclude any 24 undisclosed expert witness testimony from Drs. Sabina Wallach, Tawny Ngo, and 25 Frederick J. De La Vega. 26 27 28 D. Motion #4 - To Preclude Evidence and Testimony of Dockside Maintenance Work by Plaintiff 22 11cv2009 1 AVI seeks to preclude Almquist “from offering testimony or documentary 2 evidence of dockside maintenance work performed by Almquist to count toward and as 3 support for his calculation of time spent in service of a vessel.” (Def.’s Mot. #4 [Doc. 724 1] 1-2.) Specifically, AVI argues that “maintenance work on a vessel safely tied to its 5 dock is not a sea-based activity, and does not count toward the Chandris 30% in6 navigation requirement.” (Id. 3.) AVI essentially argues that Almquist’s time spent 7 doing “dockside maintenance work” does not count as towards whether or not he had a 8 connection to M/Y ALLEGRO while “in navigation,” and should thus be excluded. The 9 Court disagrees. 10 11 12 13 14 15 16 17 18 19 20 The Supreme Court has explicitly held that “the underlying inquiry whether a vessel is or is not “in navigation” for Jones Act purposes is a fact-intensive question that is normally for the jury and not the court to decide.” Chandris, 515 U.S. 347, 373. So, the Court cannot exclude evidence of “maintenance work on a vessel safely tied to its dock,” as the jury could interpret such work to count towards the 30% requirement. See id. (citing 2 M. Norris, Law of Seamen § 30.13, p. 364 (4th ed. 1985) (“[A] vessel is in navigation . . . when it returns from a voyage and is taken to a drydock or shipyard to undergo repairs in preparation to making another trip, and likewise a vessel is in navigation, although moored to a dock, if it remains in readiness for another voyage.” (footnotes omitted))). It is up to the jury to decide whether Almquist’s “dockside maintenance work” applies to the 30% calculus. 21 22 Accordingly, the Court DENIES AVI’s motion in limine to preclude evidence and 23 testimony of Almquist’s dockside maintenance work. 24 25 E. Motion #5 - To Exclude Evidence of Work Without Documentary Evidence 26 27 28 AVI next seeks to exclude “evidence as to the type of work [Almquist] performed for AVI or the amount of work he performed for AVI or other vessel owners if he did not 23 11cv2009 1 produce documentation or otherwise reliably identify that information during discovery.” 2 (Def.’s Mot. #5 [Doc. 73-1] 2.) Almquist does not oppose AVI’s motion to the extent that 3 it is “is simply a prophylactic motion designed to preclude the parties from attempting to 4 introduce new invoices or other documents concerning the services Plaintiff performed 5 for Defendant that were not disclosed during discovery,” or “[t]o the extent the motion 6 seeks to exclude evidence of services performed by Plaintiff for other yacht owners and 7 any documents associated therewith.” (Pl.’s Opp’n #5 [Doc. 91] 2-3.) However, 8 Almquist opposes to the extent that AVI “is seeking to somehow prevent or restrict 9 Plaintiff from orally testifying in full detail as to the services he performed for Defendant 10 regardless of what invoices the parties were able to find and exchange during discovery.” 11 (Id. 3.) 12 13 14 15 16 17 18 19 20 AVI argues that Almquist’s testimony, unsupported by documentary evidence, does not satisfy Rule 401, subsection (a), which states that evidence is relevant if it has “any tendency to make a fact more or less probable that it would be without the evidence.” Fed. Rule Evid. 401. Specifically, AVI argues that because Almquist is allegedly an alcoholic, his testimony is not credible. (Def’s Mot. #5 5-6) (citing Rheaume v. Patterson, 289 F.2d 611, 614 (2d Cir. 1961)) However, Rheaume stands for the opposite position. That case explicitly held that the “determination of [credibility] issues was for the jury, not the judge.” Id. at 614. Thus, it is not for the Court to exclude such evidence from the jury’s consideration. 21 22 Next, AVI argues that even if the testimony is relevant, it would be prejudicial and 23 should be excluded pursuant to Rule 403. Specifically, AVI argues that because 24 Almquist “could not recall at his deposition the identity of his purported employers or 25 provide documentation as to the length of time and type of work he performed[,] 26 [i]ntroduction of this evidence would be especially prejudicial to AVI who did not have 27 the opportunity to question or examine any of the witnesses who could either contradict 28 or verify these statements, nor could it contradict or verify these statements through 24 11cv2009 1 documentation (which Plaintiff never submitted).” (Def’s Mot. #5 6.) The Court does not 2 find this argument persuasive. AVI will have the opportunity at trial to cross examine 3 Almquist, and if he presents testimony of work that he “could not recall at his 4 deposition,” then AVI may attempt to bring this alleged disconnect to the jury’s 5 attention. 6 7 8 9 10 11 12 Finally, AVI argues that Almquist’s testimony should be excluded pursuant to Rule 602, which states: “A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony.” AVI again points to Almquist’s alleged alcoholism, claiming that this affects his memory, and thus, vitiates his personal knowledge. (Def’s Mot. #5 6-7.) This is the same argument that AVI made under Rule 401, and again, the Court does not find this argument persuasive. 13 14 Accordingly, the Court GRANTS IN PART and DENIES IN PART Defendant’s 15 Motion to exclude evidence not produced during discovery and to preclude Plaintiff 16 from testifying about work performed that is not substantiated by documentary evidence. 17 The Court will not allow introduction of additional documentary evidence not produced 18 during discovery. However, the Court will allow Almquist to testify to relevant facts 19 that are within his personal knowledge. 20 21 22 F. Motion #6 - To Preclude Evidence and Testimony Concerning Plaintiff’s Purported Entitlement to Maintenance. 23 24 Defendant seeks to preclude Plaintiff from offering evidence concerning his claim 25 for the maintenance portion of the maintenance and cure damages he is seeking. 26 Defendant argues that “[u]nder the circumstances of this case, any award of maintenance 27 to Almquist would be, plain and simple, an unfair and unjustifiable windfall.” (Def.’s 28 Mot. #6 [Doc. 74-1] 4.) Essentially, AVI seeks for this Court to rule, as a matter of law, 25 11cv2009 1 that Almquist is not entitled to maintenance. AVI should have made this argument 2 through a motion to dismiss or motion for summary judgment. This argument is 3 inappropriate for a motion in limine. Motions in limine are limited to rulings on the 4 admissibility of evidence, not for obtaining judgment rulings. Engman v. City of 5 Ontario, 2011 U.S. Dist. LEXIS 66128, *24 (C.D. Cal. June 20, 2011). Accordingly, the 6 Court DENIES Defendant’s motion in limine to preclude evidence or testimony 7 concerning Plaintiff’s purported entitlement to maintenance. 8 9 10 G. Motion #7 - To Bifurcate Trial and Exclude Evidence of Financial Condition in Phase I 11 Defendant seeks to bifurcate the trial, addressing only the liability issues in Phase 12 I and then, if necessary, addressing the damages issues in Phase II. (Def.’s Mot. #7 [Doc. 13 75-1] 1.) Defendant argues that bifurcation is appropriate in maritime cases where 14 seaman status is at issue. (Id. 4.) (citing DeRoches v. Sonat Exploration, Inc., CIV. A. 15 91-4506, 1993 WL 121285 (E.D. La. Apr. 12, 1993 and McGraw v. J. Ray McDermott 16 & Co., Inc., 81 F.R.D. 23, 24 (E.D. La. 1978) to support this statement). The Court 17 agrees in part. 18 19 20 21 22 “For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims.” Fed. Rule Civ. Proc. 42(B). Both parties agree that the threshold issue in this matters is whether Almquist was 23 employed by AVI as a “seaman.” If the jury ultimately finds that Almquist was not 24 employed as a seaman, then the jury need not hear evidence concerning the scope of 25 maintenance and cure and damages. In that case, for the jury also to hear the entire 26 evidence on the scope of maintenance and cure and issues regarding damages would be a 27 waste of judicial time. Therefore, the court believes the most expeditious and least 28 26 11cv2009 1 prejudicial way to address Almquist’s employment and seaman status is to bifurcate the 2 trial. 3 4 5 6 7 8 9 10 Since the same witnesses and similar evidence will be used throughout all portions of trial, the Court finds it appropriate to use the same jury for all issues. Thus, the parties will select a jury, after which the Court will bifurcate the trial into a “seaman status” and employment phase(the “first phase”), and a liability and damages phase (the “second phase”). The Court will first receive evidence with respect to Almquist’s employment as a seaman. After the close of evidence in this phase, the jury will deliberate on whether Almquist was employed by AVI as a seaman. Once this issue is resolved, the parties will be permitted to put on additional evidence of liability and damages, if necessary. 11 12 AVI also moves to prevent Almquist from providing evidence of AVI’s financial 13 condition and value as a company (1) from the first phase of the trial and (2) until such 14 time as entitlement to punitive damages has been decided by jury. Because the Court has 15 bifurcated the trial and limited the first phase of trial to determining whether Almquist is 16 a seaman, the Court agrees that evidence of AVI’s financial condition and value as a 17 company is inadmissible during the first phase of trial, as it is irrelevant to the seaman 18 status inquiry. However, at this time, it unclear whether or not such evidence will be 19 relevant in the second phase of trial. So, any objections AVI has to such evidence being 20 introduced after the first phase of the trial is completed, will be addressed at that time. 21 Accordingly, the Court GRANTS IN PART6 Defendant’s motion in limine to 22 bifurcate liability and damages issues, and bifurcates the trial as set out above. 23 // 24 // 25 // 26 6 The Court notes that AVI requests bifurcation of the trial with a phase to address seaman 27 status and liability. However, the Court feels that the issues of liability should not be addressed until the initial issues of employment and seaman status have been determined. Otherwise, if the 28 jury finds that Almquist was not a employed as a seaman, then the time and resources spent determining the scope of liability will have been wasted. 27 11cv2009 1 IV. CONCLUSION & ORDER 2 In light of the foregoing, the parties’ pending motions in limine are GRANTED 3 IN PART and DENIED IN PART as indicated above. The Court recognizes that the 4 truncated nature of motions in limine may mean that the Court is unaware of important 5 information regarding this motion. The Court is not foreclosing any further argument on 6 these motions during trial by either side. This decision represents the Court’s view of 7 the issues at this time and is subject to reconsideration at any time prior to a final 8 judgment being issued. 9 10 IT IS SO ORDERED. DATED: May 8, 2014 11 12 M. James Lorenz United States District Court Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 28 11cv2009

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