Wielgus v. Ryobi Technologies, Inc. et al

Filing 251

MEMORANDUM Opinion and Order. Signed by the Honorable Young B. Kim on 5/21/2012. (aac, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAROSLAW WIELGUS,

)
)
Plaintiff,
)
)
v.
)
)
RYOBI TECHNOLOGIES, INC., et al., )
)
Defendants.
)

No. 08 CV 1597

Magistrate Judge Young B. Kim

May 21, 2012

MEMORANDUM OPINION and ORDER
In this product-liability suit brought pursuant to this court’s diversity jurisdiction,
Jaroslaw Wielgus alleges that Ryobi Technologies, Inc., One World Technologies, Inc., and
Home Depot, USA, Inc. (collectively, “the defendants”), are liable for hand injuries he
sustained in March 2006 while using the Ryobi Model BTS10S—a table saw that the
defendants manufactured and/or sold. His complaint includes claims for negligence, breach
of implied warranty, and strict liability under Illinois law. (R. 84.) The parties consented to
this court’s jurisdiction, (R. 65, 90), and the case has progressed to the pre-trial phase. On
May 16, 2012, the court issued its first opinion ruling on several pending motions in limine.
(R. 247-48.) In this second opinion, the court tackles defendants’ motions in limine numbers
12, 16, 17, 18, 20, 24, 26, 28, and 30. For the following reasons, motion numbers 12
(R. 179), 24 (R. 191), and 30 (R. 197) are granted in part and denied in part without
prejudice, motion numbers 16 (R. 183), 17 (R. 184), 18 (R. 185), and 28 (R. 195) are denied
without prejudice, and motion numbers 20 (R. 187), and 26 (R. 193) are granted:

Legal Standard
Included in the district court’s inherent authority to manage trials is the broad
discretion to rule on motions in limine. Aldridge v. Forest River, Inc., 635 F.3d 870, 874-75
(7th Cir. 2011). The purpose of such motions is to perform a “gatekeeping function and
permit[] the trial judge to eliminate from further consideration evidentiary submissions that
clearly ought not to be presented to the jury because they clearly would be inadmissible for
any purpose.” Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir.
1997). The moving party bears the burden of demonstrating blanket inadmissibility. See
Mason v. City of Chicago, 631 F.Supp.2d 1052, 1056 (N.D. Ill. 2009). Absent such a
showing, evidentiary rulings should be deferred until trial, where decisions can be better
informed by the context, foundation, and relevance of the contested evidence within the
framework of the trial as a whole. Anglin v. Sears, Roebuck & Co., 139 F.Supp.2d 914, 917
(N.D. Ill. 2001). “A pre-trial ruling denying a motion in limine does not automatically mean
that all evidence contested in the motion will be admitted at trial,” Bruce v. City of Chicago,
No. 09 CV 4837, 2011 WL 3471074, at *1 (N.D. Ill. July 29, 2011), for the court may revisit
evidentiary rulings during trial as appropriate in its exercise of its discretion, see Luce v.
United States, 469 U.S. 38, 41-42 (1984).

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Analysis
I.

Motion in Limine No. 12 to Bar Wielgus’s Counsel from Making Inflammatory
Statements or Arguments
Defendants’ motion number 12 is granted in part and denied in part without prejudice.

The defendants seek to bar Wielgus’s counsel from making “inflammatory statements,
comments, argument, suggestion or innuendo.” (R. 179, Mot. ¶ 2.) Pointing to statements
made by Wielgus’s counsel in a prior lawsuit, the defendants contend that Wielgus’s counsel
should be precluded from making similar comments in the present lawsuit, including, for
example, the following: (1) urging the jurors to “send defendants a message”; (2) asking the
jurors to “place themselves” in Wielgus’s position; (3) attempting to connect the defendants
to a conspiracy among table saw manufacturers to keep flesh-detection technology off the
market; and (4) implying that the defendants destroyed documents. (Id. at ¶¶ 2, 4-6.)
According to the defendants, such comments serve no purpose other than to inflame the
passions of the jury.
The court finds that the defendants’ objections are best dealt with during the course
of the trial. The defendants may make more specific objections then if they believe that
Wielgus’s counsel has made an inflammatory or misleading statement, and the propriety of
that statement can be resolved when presented in context. See Saad v. Shimano Am. Corp.,
No. 98 C 1204, 2000 WL 1036253, at *25 (N.D. Ill. July 24, 2000). The same is true of the
defendants’ objections to Wielgus’s anticipated presentation of evidence regarding their
supposed document destruction. The defendants may re-raise their objections regarding this
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evidence at trial when the court will be better able to judge that evidence in the context of
the trial as a whole. As for comments relating to an alleged conspiracy among saw
manufacturers, that objection will be addressed more specifically in a forthcoming opinion
addressing the multiple motions in limine that the defendants filed relating to Wielgus’s
conspiracy theory.
The court however grants the motion in part and bars Wielgus from making “send a
message” comments as these comments are, and have been deemed, problematic when
phrased as a request for punitive damages, which Wielgus is not seeking. See Betts v. City
of Chicago, 784 F.Supp.2d 1020, 1033 (N.D. Ill. 2011); Christmas v. City of Chicago, 691
F.Supp.2d 811, 820 (N.D. Ill. 2010) (any “message” or “punishment” arguments must not
imply entitlement to punitive damages where none available); see also Osorio v. One World
Techs., Inc., 659 F.3d 81, 90 (1st Cir. 2011) (finding “problematic” counsel’s suggestion
during opening statements that jury “send a message” to Ryobi management). This case is
about whether Wielgus is entitled to recover any compensatory damages for his injuries. As
such, there is no place for comments such as “send a message to the defendants.” In his
response to this motion in limine, Wielgus argues that the First Circuit in Osorio found this
particular “send a message” comment to be “within the bounds of acceptable zealous
advocacy.” (R. 233, Pl.’s Resp. at 69.) The court is perplexed by this argument because the
First Circuit in Osorio commented that, “[w]e are most concerned by counsel’s suggestion
during opening statements that the jury ‘send a message’ to Ryobi management by imposing

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liability since, as Ryobi notes, we have deemed similar arguments improper in the past.”
Osorio, 659 F.3d at 90.
Nor are “golden rule” appeals appropriate. United States v. Roman, 492 F.3d 803, 806
(7th Cir. 2007); see also Bruce, 2011 WL 3471074, at *7. The “golden rule” appeal asks the
jury to place itself in the plaintiff’s shoes. The Seventh Circuit has explained that “golden
rule” appeals are “universally recognized as improper because it encourages the jury to depart
from the neutrality and to decide the case on the basis of personal interest and bias rather than
on the evidence.” Roman, 492 F.3d at 806 (quoting United States v. Teslim, 869 F.2d 316,
328 (7th Cir.1989)). Therefore, Wielgus is barred from asking the jurors to place themselves
in his shoes.
II.

Motion in Limine No. 16 to Bar Wielgus from Referring to Any Deposition
Testimony or Introducing Any Exhibits During Wielgus’s Opening Statement
Defendants’ motion number 16 is denied without prejudice. The defendants ask the

court to bar Wielgus from referring to any deposition testimony or introducing exhibits
during his opening statement, arguing that such evidence should not be introduced before the
evidentiary stage of the trial. (R. 183 ¶¶ 1, 3.) “The purpose of an opening statement is to
state what evidence will be presented . . . . It is not an occasion for argument.” Testa v.
Village of Mundelein, Ill., 89 F.3d 443, 446 (7th Cir. 1996) (citing United States v. Dinitz,
424 U.S. 600, 612 (1976)). The court agrees with Wielgus that this motion is premature and
overly broad and that he is entitled to comment about his evidence and to tell the jury what
he intends to demonstrate during the trial. (R. 222, Pl.’s Resp. at 77.) The defendants may
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renew their objections during Wielgus’s opening statement when the court may deal with
them in context and instruct the jury, if necessary, to disregard the objectionable references
and to bear in mind that opening statements are not evidence. See Soltys v. Costello, 520
F.3d 737, 744 (7th Cir. 2008); Walden v. City of Chicago, ___ F.Supp.2d ___, 2012 WL
718435, at *1 (N.D. Ill. Mar. 6, 2012).
The court however cautions both parties that they must not attempt to introduce
evidence during their opening statement or to publish the content of any exhibit without leave
of court. There is a significant difference between telling the jury that the party expects to
have certain witnesses provide certain testimony and comment on the expected testimony and
quoting verbatim from a deposition transcript and then telling the jury that the quoted
testimony is from a witness’s deposition transcript. The former is permissible because the
party is merely commenting on what the party intends to show during the trial, while the
latter is not permissible because the party is offering evidence.
III.

Motion in Limine No. 17 to Bar Wielgus from Presenting Video and In-Court
Demonstrations of the SawStop Technology on a Model That is Not Substantially
Similar to the BTS10S
Defendants’ motion number 17 is denied without prejudice. The defendants seek to

bar Wielgus from introducing any demonstration (via video or live) of the SawStop
technology on table saw models that are not substantially similar to the BTS10S. Citing
Federal Rules of Evidence 402 and 403, the defendants argue that a demonstration of the

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flesh-detection technology on a model other than the BTS10S has “no relevance to any issue
in this case and will lead to juror confusion.” (R. 184, Mot. ¶ 4.)
The court has discretion to admit demonstrative exhibits. Nachtsheim v. Beech
Aircraft Corp., 847 F.2d 1261, 1278 (7th Cir. 1988). Their admission is governed by the
balancing test in Federal Rule of Evidence 403. Evidence will be excluded under Rule 403
only if its probative value is “insignificant compared to its inflammatory nature so that the
evidence unfairly prejudices the defendant.” United States v. Gorman, 613 F.3d 711, 720-21
(7th Cir. 2010) (emphasis in original) (internal quotation marks omitted).

That a

demonstration is not conducted on the exact product at issue does not mean the evidence is
irrelevant or overly prejudicial under Rule 403. See Crossley v. Gen. Motors Corp., 33 F.3d
818, 822 (7th Cir. 1994) (no abuse of discretion in admitting into evidence videotape of
rollover tests involving different model automobile than model automobile involved in
accident).
Here, the defendants understate the relevance of a demonstration of the SawStop
technology and overstate the potential resultant prejudice. As Wielgus argues, a
demonstration of the SawStop technology is relevant because it will help the jury understand
how the flesh-detection technology functions. (R. 233, Pl.’s Resp. at 79.) And, if Wielgus’s
Rule 26 expert, Dr. Stephen Gass (inventor of the SawStop technology), testifies, as
expected, that SawStop functions in the same manner on the BTS10S model as on the
demonstrated model, the probative value of the demonstration could substantially outweigh

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the danger of any unfair prejudice. His clarifying testimony also could alleviate any jury
confusion stemming from the difference in the models.
Because the admission of this demonstrative evidence may depend on the testimony
of certain witnesses and how the demonstration relates to their opinions, this type of motion
presents a question that is best resolved in the course of the trial when the court will be in a
better position to weigh the probative value of the demonstration against its prejudicial effect
under Rule 403. The defendants may re-raise their objection regarding relevance and unfair
prejudice at trial. Should the demonstration be allowed, the defendants may seek a limiting
instruction asking the jury to consider the use of the demonstration for a limited purpose. See
Wipf v. Kowalski, 519 F.3d 380, 387 (7th Cir. 2008).
IV.

Motion in Limine No. 18 to Bar Wielgus from Presenting an In-Court
Demonstration of the SawStop Technology in Addition to the Testimony of
Dr. Gass Describing the Technology and a Video Demonstrating the Technology
Defendants’ motion number 18 is denied without prejudice. The defendants anticipate

that Wielgus will not only have Dr. Gass describe how the SawStop technology works, but
will also present video and live demonstrations of the technology. In their motion number
18, the defendants argue that any live demonstration should be precluded as unfairly
cumulative of the in-court description and video demonstration. (R. 185, Mot. ¶¶ 3, 6.) Rule
403 provides that “[a]lthough relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of . . . needless presentation of cumulative evidence.”

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As with the defendants’ motion number 17, because the admission of an in-court
demonstration of the SawStop technology may depend on how Dr. Gass testifies and how the
demonstrations will proceed, the defendants’ motion presents an objection best left for trial.
That said, the defendants’ point that Dr. Gass’s testimony describing the technology plus a
video demonstration of the technology plus an in-court live demonstration of the technology
may be cumulative is well-taken. Wielgus should be prepared to select one form of
demonstration should the court deem the presentation of all three forms to be needlessly
duplicative under Rule 403. See Noffsinger v. The Valspar Corp., No. 09 C 916, 2011 WL
9795, at *7 (N.D. Ill. Jan. 3, 2011) (“Whether evidence is unnecessarily cumulative is an
issue for trial and within the prerogative of the trial judge.”).
V.

Motion in Limine No. 20 to Bar Wielgus from Introducing Evidence of Other
Verdicts
Defendants’ motion number 20 is granted. The defendants move to bar Wielgus from

introducing evidence of, or referring to, other verdicts entered against them in different
lawsuits. (R. 187.) Wielgus does not oppose this motion. (R. 233, Pl.’s Resp. at 81.)
Wielgus must refrain from mentioning or referring to the verdicts entered against the
defendants during the trial.
VI.

Motion in Limine No. 24 to Bar Wielgus from Referring to the Defendants’
Financial and Corporate Status
Defendants’ motion number 24 is granted in part and denied in part without prejudice.

The defendants seek to bar Wielgus from presenting evidence of their “size, wealth, financial

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condition, corporate relationship to other companies, out of state residency and/or corporate
status.” (R. 191, Mot. ¶ 1.) As to their corporate status, the defendants did not develop any
arguments why that particular information is irrelevant or prejudicial in and of itself.
Because it is appropriate for the jury to receive some background information about the
defendants and their relationship to each other, see Saad, 2000 WL 1036253, at *26, motion
number 24 is denied in part without prejudice. The court notes, however, that should
Wielgus refer to the defendants’ corporate status in a way to inflame the jury, the defendants
may raise a specific objection at trial and the court will deal with the propriety of the
statement at that time.
As to their financial condition, the defendants claim that such evidence is irrelevant
given Wielgus’s decision not to seek punitive damages. Alternatively, they argue that even
if their size and financial status were relevant, that evidence is unfairly prejudicial to an
extent that outweighs its limited probative value. Wielgus acknowledges that he is not
seeking punitive damages. He claims, however, that the defendants’ financial status is
“highly relevant” because he intends to demonstrate at trial that they possessed the financial
means to incorporate the SawStop technology when they learned of its existence in 2002.
According to Wielgus, this evidence will rebut the defendants’ anticipated defense that they
would have had insufficient time to design a table saw equipped with such technology before
the date of Wielgus’s injury. (R. 233, Pl.’s Resp. at 90.)

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Although this court agrees with Wielgus that Shuff v. Consolidated Rail Corp., No.
91 C 5326, 1994 WL 548232 (N.D. Ill. Oct. 5, 1994), to which the defendants cite, is not
instructive, Peters v. Northern Trust Co., No. 92 C 1647, 2001 WL 1002499 (N.D. Ill. Aug.
29, 2001), to which Wielgus cites, is also not instructive. In Shuff, the motion in limine was
unopposed. And in Peters, the defendant conceded that his financial status was an issue at
the damages phase, but not at the liability phase. Here, Wielgus seeks to introduce evidence
of the defendants’ financial status to address liability. Accordingly, neither case resolves the
present dispute.
The core issue to be resolved in this case is whether the BTS10S was unreasonably
dangerous when it left the defendants’ control in 2005. Under Illinois law, Wielgus is
entitled to prove this by showing that an alternative design was feasible. See Blue v. Envtl.
Eng’g, Inc., 215 Ill.2d 78, 93 (2005). But he must show that it “was feasible in terms of
costs, practicality, and technology.” See id. Wielgus anticipates that the defendants will
argue that SawStop, LLC’s failure to produce a model table saw like the BTS10S
incorporating flesh-detection technology is probative evidence regarding the lack of
feasibility. To counter that argument, Wielgus seeks to present evidence demonstrating the
“dramatic difference in resources between the two companies,” which, Wielgus alleges,
would demonstrate that the defendants “could have placed flesh-detection technology in its
saws long before the [s]ubject [s]aw was manufactured.” (R. 233, Pl.’s Resp. at 90.)

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Evidence of a defendant’s financial status may be relevant if the plaintiff is seeking
punitive damages. See, e.g., El-Bakly v. Autozone, Inc., No. 04 C 2767, 2008 WL 1774962,
at *4-5 (N.D. Ill. April 16, 2008); Georgeson v. DuPage Surgical Consultants, LTD., No. 05
C 1653, 2007 WL 914207, at *3 (N.D. Ill. March 22, 2007) (citing Kemezy v. Peters, 79 F.3d
33, 36 (7th Cir. 1996)); Hollowell v. Wilder Corp., 318 Ill.App.3d 984, 990 (5th Dist. 2001).
But absent a request for punitive damages, evidence of financial status is generally not
relevant at the liability stage. See El-Bakly, 2008 WL 1774962, at *5; cf. Rush Univ. Med.
Ctr. v. Minnesota Min. & Mfg. Co., No. 04 C 6878, 2009 WL 3229435, at *3 (N.D. Ill. Oct.
1, 2009) (issue of finances of a party can distract jury from issues in case). Moreover, the
danger of its probative value being outweighed by its unfairly prejudicial impact is
particularly high where a plaintiff references a defendant’s financial status for the purpose
of invoking the jury’s sympathy by conjuring a David versus Goliath scenario.
Although the inquiry regarding the feasibility of implementing the SawStop
technology involves assessing the cost of adding that technology to the BTS10S, the court
fails to see how evidence of the defendants’ overall wealth or bottom-line financial status is
relevant to that question. And Wielgus has not pointed to any case where a court has allowed
the admission of this kind of evidence to demonstrate feasibility. Wielgus may still attempt
to rebut the defendants’ feasibility defense by demonstrating that implementing the
technology was possible without impairing the utility of the BTS10S while also not being
overly costly to implement. Wielgus may also rebut by explaining SawStop, LLC’s inability

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to produce a model table saw like the BTS10S. These can be done without referring to the
defendants’ net worth or financial status. Accordingly, this court agrees that what little
probative value the evidence of the defendants’ bottom-line financial status has is
substantially outweighed by the danger of unfair prejudice it might cause in coloring the
jury’s perception of the relevant issues.1 See Georgeson, 2007 WL 914207, at *3 (limiting
evidence of financial status to request for punitive damages).
VII.

Motion in Limine No. 26 to Bar Wielgus from Referencing the Defendants’
Liability Insurance and from Questioning Prospective Jurors Concerning Their
Connection to the Insurance Industry
Defendants’ motion number 26 is granted. The defendants move to bar Wielgus from

eliciting testimony concerning their liability insurance and questioning prospective jurors
regarding any connection they may have with insurance companies. Wielgus agrees to the
defendants’ motion so long as they likewise refrain from eliciting similar testimony and
questioning the jurors in that manner.2 Federal Rule of Evidence 411 governs the admission
of evidence of liability insurance, instructing that “[e]vidence that a person was or was not
insured against liability is not admissible to prove whether the person acted negligently or

1

This ruling does not preclude Wielgus from asserting at trial that testimony elicited by the
defendants opened the door to their financial condition. Wielgus must raise this argument
with the court prior to offering any evidence barred by this ruling.

2

Wielgus notes that his agreement is contingent on this court’s denial of the defendants’
motion to add Travelers Insurance Company (“Travelers”) as a real party in interest (R. 211).
(R. 233, Pl.’s Resp. at 109-10.) After Wielgus filed his response to motion number 26, this
court denied the defendants’ motion to join Travelers as a party (R. 242), and so that
contingency is no longer at play.
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otherwise wrongfully.” Such evidence may be admissible, however, for another purpose,
such as “proving a witness’s bias or prejudice or proving agency, ownership, or control.” Id.
Where, as here, the question is one of negligence, evidence of insurance coverage is not
admissible absent a showing that the parties intend to use such evidence for an alternate
purpose. King v. Harrington, 447 F.3d 531, 533 (7th Cir. 2006). None has been offered.
Accordingly, the parties are barred from presenting evidence of liability insurance during the
trial. Nor shall prospective jurors be questioned in a manner that indicates that either party
has insurance. See Saad, 2000 WL 1036253, at *16; see also Samos v. United Exposition
Serv. Co., No. 90 C 5911, 1993 WL 498192, at *2 (N.D. Ill. Dec. 1, 1993) (noting that “no
question shall be asked that implies, or in any way indicates, that the Defendant has
insurance”).
VIII. Motion in Limine No. 28 to Bar Wielgus from Presenting Lay Opinion
Testimony Regarding the Design or Safety of the BTS10S
Defendants’ motion number 28 is denied without prejudice. The defendants seek to
prevent Wielgus and his lay witnesses from providing “any opinions regarding the design or
safety” of the Ryobi BTS10S table saw. (R. 195, Mot. ¶ 7.) In moving to exclude, the
defendants did not identify any specific troublesome lay opinions they expect Wielgus to
present at trial.
This motion is both premature and overbroad. Federal Rule of Evidence 701 provides
that lay witnesses are permitted to give opinions which are “(a) rationally based on the
perception of the witness; (b) helpful to a clear understanding of the witness’ testimony or
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the determination of a fact in issue, and (c) not based on scientific, technical, or other
specialized knowledge.” In other words, “[l]ay opinion testimony is admissible only to help
the jury or the court to understand the facts about which the witness is testifying and not to
provide specialized explanations or interpretations that an untrained layman could not make
if perceiving the same acts or events.” United States v. Conn, 297 F.3d 548, 554 (7th Cir.
2002) (internal quotation marks omitted). Without more details about the lay opinions to be
excluded, the court is unable to rule on their admissibility under Rule 701. Should lay
testimony stray into the realm of specialized or technical interpretations of the technology,
the defendants may raise more specific objections at trial. See Hawthorne Partners v. AT&T
Techs., Inc., 831 F.Supp. 1398, 1401 (N.D. Ill. 1993).
IX.

Motion in Limine No. 30 to Exclude Witnesses from the Courtroom During Trial
Defendants’ motion number 30 is granted in part and denied in part without prejudice.

The defendants request to exclude all witnesses except the parties and their corporate
representatives from the courtroom during trial, arguing that witnesses should be allowed to
testify from their own personal knowledge without the benefit of the preceding testimony.
The defendants point to Illinois precedent in support of this motion. While state law governs
substantive issues in a diversity action, federal law governs procedural ones. Gacek v.
American Airlines, Inc., 614 F.3d 298, 301 (7th Cir. 2010). The defendants’ request to
exclude witnesses implicates a procedural issue, not a substantive one. See Saad, 2000 WL
1036253, at *18. Accordingly, Federal Rule of Evidence 615, not Illinois law, controls. And

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Rule 615 provides that upon a party’s request, or sua sponte, the court must exclude
witnesses from the trial so that they cannot hear the testimony of others. But the court need
not exclude, among others, “a person whose presence a party shows to be essential to
presenting the party’s claim or defense.” Fed. R. Evid. 615(c).
Wielgus does not raise any specific opposition to the exclusion of non-expert
witnesses. (R. 233, Pl.’s Resp. at 97-98.) But Wielgus invokes the Rule 615(c) exemption
from excluding his expert witnesses and requests that they be present during Wielgus’s
testimony to base their opinions on the details of the accident as described by him and the
testimony of the defendants’ experts.
The rationale for excluding “fact” or “occurrence” witnesses is premised on the
concern that having heard the testimony of others, the witnesses may inappropriately tailor
their testimony to conform to the testimony of previous witnesses. Geders v. United States,
425 U.S. 80, 87 (1976); Hill v. Porter Memorial Hosp., 90 F.3d 220, 223 (7th Cir. 1996).
No such danger is present with expert witnesses, whose testimony, by nature, is based on
facts and information provided by others. What’s more, Federal Rule of Evidence 703
expressly provides that “[a]n expert may base an opinion on facts or data in the case that the
expert has been made aware of or personally observed.” Accordingly, the motion is granted
as to non-expert witnesses but denied as to expert witnesses without prejudice. The parties
are permitted to identify expert witnesses they wish to have present in the courtroom and to

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show that their presence is essential to their claims and defenses. The court will address this
particular matter at the pretrial conference.
Conclusion
For the foregoing reasons, defendants’ motion in limine numbers 12 (R. 179), 24
(R. 191), and 30 (R. 197) are granted in part and denied in part without prejudice, motion
numbers 16 (R. 183), 17 (R. 184), 18 (R. 185), and 28 (R. 195) are denied without prejudice,
and motion numbers 20 (R. 187), and 26 (R. 193) are granted.
ENTER:

_________________________________
Young B. Kim
United States Magistrate Judge

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