Garrard v. Pirelli Tire LLC et al

Filing 181

Pre-Trial Order. Signed by Judge G. Patrick Murphy on 2/4/2013. (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROBERT T. GARRARD, and
WILLIAM JASPER,

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Plaintiff,
vs.
PIRELLI TIRE LLC, et al.,
Defendants.

CIVIL NO. 11-824-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
This matter came before the Court for a final pre-trial conference and all pending motions
hearing. The hearings were spread out over several days. After much hard work by everyone,
this case is now ready for trial. The Court ruled on the record and articulated its reasoning for all
issues raised by the motions. The ensuing is an attempt to highlight some aspects the Court
believes bear reiteration and ensures everyone is on the same page now on the eve of trial.
Plaintiffs and Defendant have taken great length to clean up the docket and stream-line
this case. After all the Rule 41 dismissals, the only claims that remain are as follows: (1)
Plaintiff Robert Garrard’s strict liability claim against Pirelli Deutschland GMBH d/b/a Pirelli
Reifenwerke; and (2) Plaintiff William Jasper’s strict liability claim against Pirelli Deutschland
GMBH d/b/a Pirelli Reifenwerke (“Pirelli”).
The first matter the Court took up was Plaintiffs’ Rule 26(a)(3) pre-trial disclosures (Doc.
142) and Pirelli’s objections to Plaintiffs’ disclosures (Doc. 148). Plaintiffs disclosed several
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witnesses expected to present evidence at trial, which Pirelli objected to as untimely (See Doc.
148). The alleged untimely witnesses are as follows: Scott Bourne, Mark Pursley, Sean George,
and Terry Amrein (Doc. 148, p. 1-2). Additionally, Plaintiffs disclosed Brian Elbert as a witness
who may present evidence at trial, which Pirelli objected to as untimely (Doc. 148, p. 3).
Plaintiffs withdrew Scott Bourne, Mark Pursley, Terry Amrein, and Brian Elbert as witnesses.
The Court entertained argument on Pirelli’s objection to Sean George. Pirelli’s objection to Sean
George was GRANTED.
Pirelli also objected to Plaintiffs’ witness Sheriff William Heffington.

The parties

reached an agreement on Sheriff Heffington. However, the Court was clear to articulate and,
even today to reiterate, what Sheriff Heffington can and cannot say from the witness stand.
Dr. Adrian Davis and Sheriff Heffington were listed as witnesses Plaintiffs intend to
present by deposition (See Doc. 142). Pirelli lodged objections to each of these depositions
because the depositions were from the initial state court action, Jasper v. Garrard, Circuit Court
of Calhoun County, Case No. 2010-L-4 (See Doc, 148). Pirelli was not a party to the state court
action. The Court SUSTAINED Pirelli’s objections.
Plaintiffs identified several photographs as exhibits Plaintiffs expected to offer into
evidence (Doc. 142). The images included photos of the scene, of the motorcycles, and of the
Plaintiffs themselves after the incident (Doc. 142). Pirelli lodged objections to the photos (Doc.
148), which the Court OVERRULED.
The Illinois State Police Traffic Crash Report is also an item Plaintiffs expect to offer as
evidence (Doc. 142). Pirelli filed an objection to this disclosure citing multiple hearsay rules
(Doc. 148). For the reasons stated on the record, Pirelli’s objection was GRANTED IN PART

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and DENIED IN PART.
Plaintiffs identified medical records, bills, and ambulance reports as expected or possible
evidence (See Doc. 142). Initially, the Court reserved ruling on all issues and objections relating
to the medical. The parties worked diligently and have submitted stipulations for both Plaintiffs’
medical bills. The Court found all the objections related to the medical MOOT. If an issue
resurfaces during trial, the Court will pass on it then.
Both parties’ pre-trial disclosures contain items that may be offered as evidence at trial.
In an attempt to avoid an exercise in futility, the Court did not articulate rulings on these issues.
Here again, the Court will address objections on these matters if and when they arise during trial.
Next, the Court took up Pirelli’s motion in limine (Doc. 155) and Plaintiffs’ response to
the motion (Doc. 161). Plaintiffs offered no objection to many things Pirelli sought to exclude
from trial (See Doc. 161 compared with Doc. 155). The Court believes some issues are
noteworthy.
Pirelli sought to exclude any reference from Dr. Adrian Davis “or from any other medical
records as to the underlying cause of the motorcycle accident or attributing fault of the accident
to tire failure[.]” (Doc. 156, p. 7). In analyzing this issue, the Court was mindful of the Seventh
Circuit’s Opinion in United States v. Pollard, 790 F. 2d 1309 (7th Cir. 1986) and Cook v.
Hoppin, 783 F.2d 684 (7th Cir. 1986) along with Federal Rule of Evidence 803(4). The Court
GRANTED Pirelli’s motion on this issue. The Court noted if Plaintiffs want to submit some of
Dr. Davis’ medical records, the records could be redacted to conform to the Court’s ruling. See
Pollard, 790 F.3d at 1313 (“a district court can redact the statement so as to render it admissible,
rather than let an inadmissible portion of the statement taint the whole and refuse to admit the

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entire statement.”).
Pirelli also moved in limine to exclude all fact witnesses, except the parties and corporate
representatives, from the courtroom throughout the course of this trial (Doc. 156; see also FED.
R. EVID. 615). The Court GRANTED Pirelli’s motion on this issue (Doc. 156). The Court
cautioned everyone that each party is responsible for policing this Order because the Court
simply has no idea who the witnesses are in this case.
The Court then delved into Pirelli’s Rule 26 disclosures (Doc. 141) and Plaintiffs’
amended objections (Doc. 165). The parties reached an agreement on the following witnesses
expected to testify at trial: Jeffrey Walde, Edward Sebak, and Thomas Carter. The Court did not
address the merits of Plaintiffs’ objections to these witnesses.
Plaintiffs objected to the deposition testimony of Larry Henson and William Jasper,
which was given in the state court action of Jasper v. Garrard (Doc. 141). Pirelli stated that it
has issued trial subpoenas to Mr. Henson and expects Mr. Henson to testify live. It appeared to
the Court the issue was MOOT. The Court will pass on Plaintiffs’ objection if the issue comes
up during trial.
With regard to the content of Mr. Henson and Mr. Jasper’s deposition testimony (See
Doc. 165, p. 4-5), the Court ruled there will be no testimony about the consumption of alcohol.
Moreover, any mention of the infamous Fast Eddie’s Bon Air is also prohibited. Pirelli can
mention the bandana or “kerchief” that Mr. Garrard purchased shortly before incident. However,
any reference to the kerchief may compel the Court to give the jury a limiting instruction that the
State of Illinois does not require motorcyclists to wear a helmet and such a consideration should
play no role in deliberations. If the parties abide by their agreement set forth in Court today,

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February 4, 2013, then a limiting instruction may not be necessary. The Court took great length
to set forth its reasoning on this matter on the record.
Plaintiffs filed a motion to exclude Mr. Michael DiTallo’s testimony pursuant to Daubert
v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (See Doc. 154). The issue of expert
testimony begins with Federal Rule of Evidence 702. However, the analytical framework of
Rule 702 in conjunction with Daubert has been artfully stated in Cummins v. Lyle Industries, 93
F.3d 362(7th Cir. 1996). The Seventh Circuit, in interpreting Daubert, has “endorsed a two-step
analysis for the district courts to use in evaluating expert testimony . . . .” Id. at 367. The Court
is mindful of its role as a “gatekeeper” with respect to expert testimony concerning scientific,
technical, or other specialized knowledge.

Plaintiffs’ motion to exclude (Doc. 154) was

GRANTED IN PART and DENIED IN PART. Mr. DiTallo may state his conclusions on
testing he has performed and which is capable of being repeated. However, Mr. DiTallo may not
simply regurgitate what he has read in a pamphlet.
Finally, the Court directed its attention to Plaintiffs’ omnibus motion in limine (Doc.
151). Plaintiffs’ motion contained 15 issues they sought to exclude from trial (See Doc. 151).
The Court finds it unnecessary to address every issue here, but certainly some matters are
noteworthy. First, Plaintiffs’ wanted to exclude Pirelli from introducing evidence of a lack of
prior incidents regarding the subject tire (Docs. 151 and 152). The Court GRANTED Plaintiffs’
motion on this issue.
Plaintiffs also sought to exclude any reference of missing evidence (Docs. 151 and 153).
Here, the missing evidence is the frames of Plaintiffs’ motorcycles, which have been destroyed.
The Court GRANTED Plaintiffs’ motion on this issue.

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At an informal and formal jury

instruction conference on January 30, 2013, the Court also ruled, over Pirelli’s objection, that it
will not give a jury instruction that addresses missing evidence.
It is well established that any money Plaintiffs recover will not be subject to federal
income taxes. See In re Air Crash Disaster Near Chicago, Ill on May 15, 1979, 803 F.2d 304 (7
th Cir. 1986); Adams v. Johnson & Johnson, No. 07-497-GPM, 2009 WL 8652948 (S.D. Ill.
2009). Plaintiffs wanted to exclude any mention during trial that a financial recovery will not be
taxed. Plaintiffs’ motion on this issue was DENIED. Moreover, the Court intends to give the
jury an instruction on this point of law.
Finally, the Court turned its attention to the underlying state court action, Jasper v.
Garrard, which was initially filed in the Circuit Court of Calhoun County. For the reasons stated
on the record, Plaintiffs’ motion as to this issue was GRANTED IN PART and DENIED IN
PART. Any mention of this lawsuit will be couched as a “prior proceeding.”
A significant amount of hard work has been done on the front end in an attempt to limit
distractions and sidebars during trial. The Court is mindful though that unanticipated events will
occur and the Court will pass on these issues when presented.

IT IS SO ORDERED.
DATED: February 4, 2013
/s/ ZA ctàÜ|v~ `âÜÑ{ç
G. PATRICK MURPHY
United States District Judge

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