Aspen American Insurance Company v. Interstate Warehousing Inc et al

Filing 145

OPINION AND ORDER: The 105 MOTION in Limine Regarding Trial Issues filed by Interstate Warehousing Inc, is GRANTED in part and DENIED in part; the Motion for Separation of Witnesses filed by Interstate 107 is GRANTED; the Motion to Amend/Correct Seventh Motion in Limine filed by Aspen American 116 is GRANTED; the First Motion in Limine to Exclude any Evidence in Support of Defendant's Act of God Defense filed by Plaintiff Aspen American Insurance Co. 108 is DE NIED; the Second Motion in Limine to Exclude Unauthenticated Climatological or Meteorological Data filed by Aspen American 109 is DENIED; the Third Motion in Limine to Exclude Expert Opinions by Persons Who Have Not Been Timely Disclosed filed by Aspen American 110 is GRANTED in part and DENIED in part; the Fourth Motion in Limine to Exclude Testimony of Witnesses Who Have Not Been Timely Disclosed filed by Aspen American 111 is GRANTED; the Fifth Motion in Limine to Exclude Reference to Snow Removal Policies filed by Aspen American 112 is GRANTED in part and DENIED in part; the Sixth Motion in Limine to Exclude Defendant's Untimely Document Production filed by Aspen American 113 is DENIED; the Seventh Motion in Limine to Preclude Objections to Admission of FEMA Snow Load Safety Guide Pursuant to FRE 902 filed by Aspen American 114 is GRANTED; and the Eighth Motion in Limine to (I) Preclude Objections to Inferences Made Due to Spoliation of Evidence & (II) Permit Witnesses to Testify About Spoliated Evidence filed by Aspen American 115 is GRANTED inpart and DENIED in part. Signed by Judge William C Lee on 8/14/2021. (lhc)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ASPEN AMERICAN INSURANCE CO.,
as subrogee of Eastern Fish Company,
Plaintiff,
v.
INTERSTATE WAREHOUSING, INC.,
Defendant.

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Case No. 1:14-CV-383

OPINION AND ORDER
This matter is before the Court for resolution of numerous pretrial motions. The motions,
in the order they were docketed, include the following:
1) Motion in Limine Regarding Trial Issues filed by Defendant Interstate Warehousing, Inc.
(ECF No. 105);
2) Motion for Separation of Witnesses filed by Interstate (ECF No. 107);
3) First Motion in Limine to Exclude any Evidence in Support of Defendant’s Act of God
Defense filed by Plaintiff Aspen American Insurance Co. (ECF No. 108);
4) Second Motion in Limine to Exclude Unauthenticated Climatological or Meteorological Data
filed by Aspen American (ECF No. 109);
5) Third Motion in Limine to Exclude Expert Opinions by Persons Who Have Not Been Timely
Disclosed filed by Aspen American (ECF No. 110);
6) Fourth Motion in Limine to Exclude Testimony of Witnesses Who Have Not Been Timely
Disclosed filed by Aspen American (ECF No. 111);
7) Fifth Motion in Limine to Exclude Reference to Snow Removal Policies filed by Aspen

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American (ECF No. 112);
8) Sixth Motion in Limine to Exclude Defendant’s Untimely Document Production filed by
Aspen American (ECF No. 113);
9) Seventh Motion in Limine to Preclude Objections to Admission of FEMA Snow Load Safety
Guide Pursuant to FRE 902 filed by Aspen American (ECF No. 114);
10) Eighth Motion in Limine to (I) Preclude Objections to Inferences Made Due to Spoliation of
Evidence & (II) Permit Witnesses to Testify About Spoliated Evidence filed by Aspen American
(ECF No. 115); and
11) Motion to Amend/Correct Seventh Motion in Limine filed by Aspen American (ECF No.
116).
STANDARD OF REVIEW
The Federal Rules of Evidence do not explicitly authorize in limine rulings. However, a
district court has inherent authority to manage the course of trials. Fed. R. Evid. 103(c); Luce v.
United States, 469 U.S. 38, 41 n. 4 (1984). District courts have broad discretion in ruling on
motions in limine. Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002); Aldridge
v. Forest River, Inc., 635 F.3d 870, 874-75 (7th Cir. 2011). However, evidence should be
excluded only when inadmissible on all possible grounds. Hawthorne Partners v. AT & T Techs.,
Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993). As a result, in some instances courts should defer
rulings until trial, particularly where context would be helpful in determining matters such as
relevancy, foundation, and potential prejudice. See id. 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. Id. at 1401. And while a pre-trial ruling granting a motion in limine does bar the
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introduction of certain evidence, trial judges remain free to alter previously issued in limine
rulings, within the bounds of sound judicial discretion. Luce, 469 U.S. at 41-42.
DISCUSSION
I. Motion in Limine Regarding Trial Issues filed by Defendant Interstate
Warehousing, Inc. (ECF No. 105).
Interstate Warehousing presents its pretrial issues in a single motion (ECF No. 105) and
supporting brief (ECF No. 106), although the issues presented are numerous. Interstate “moves
the Court to issue an order in limine prohibiting Plaintiff, its attorneys, and Plaintiff’s witnesses
from introducing evidence of, making statements concerning, or attempting to convey to the jury
in any manner, either directly or indirectly, at any time during the trial of this action, the
following:
1. Defendant’s financial, economic, or insured status;
2. Settlement agreements or negotiations;
3. A heightened or different standard of care for a bailee/property owner;
4. Evidence of claims of privilege by Defendant;
5. Defendant’s failure to call witnesses;
6. Defendant’s prior or subsequent acts;
7. The existence of any motion in limine;
8. The suggestion that this litigation is Plaintiff’s only opportunity for relief;
9. Evidence for which no foundation is laid, which is not relevant, which was not disclosed in
accordance with the Court’s orders, and testimony that fails to meet Rule 702 standards;
10. Statements intended to demonize Defendant Interstate Warehousing, Inc. as a company;

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11. Claims of negligent hiring, retention, training, and/or supervision of any of Interstate’s
employees and/or agents.
12. Statements advancing a ‘Golden Rule’ argument;
13. Testimony, argument, comment or statements advancing Plaintiff’s claim that Defendant
committed spoliation of evidence outside or beyond the instruction the Court has stated will be
read to the jury;
14. Testimony, argument, comment or statements advancing Plaintiff’s claim that Defendant was
‘grossly negligent’;
15. Testimony, argument, comment or statements regarding the limitation of damages clause
contained in the warehousing agreement at issue in this case;
16. Testimony, argument, comment or statements implying that the substantive law of any other
jurisdiction, other than Michigan Law should apply to this case; and
17. Testimony, argument, comment or statements based on pure speculation and conjecture and
are not supported by known facts or evidence.”
Defendant’s Motion In Limine, pp. 1-2. The Court will address each issue in turn.
A. Defendant’s financial, economic, or insured status.
Interstate argues that Aspen American “should be prohibited from introducing into
evidence, or conveying to the jury in any manner, Defendant’s relative economic or financial
status. Such discussion or evidence is inappropriate argument which is presented to sway a jury
that the Defendant can afford to pay Plaintiff and can afford a substantial verdict.” Id., p. 1
(citing Igo v. Coachman Industries, Inc. (Sportscoach), 938 F.2d 650, 653 (1991)).
Aspen American acknowledges that, as a general rule, evidence of a party’s financial,
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economic, or insured status is not admissible. Nonetheless, Aspen American argues that in this
instance Interstate’s motion “should be denied in its entirety. All of the ‘references’ and evidence
challenged by the Defendant are entirely germane to matters that are at issue in this case, and
therefore all exceed (by a considerable margin) the low threshold needed to establish relevance.”
Plaintiff’s Opposition to Defendant’s Motion In Limine (ECF No. 128), p. 2. Aspen American
contends that while “[Federal Rule of Evidence] 411 states: ‘[e]vidence that a person was or was
not insured against liability is not admissible to prove whether the person acted negligently or
otherwise wrongfully . . . the court may admit this evidence for another purpose, such as proving
a witness’s bias or prejudice or proving agency, ownership, or control.’ . . . Under this plain
language, there are certain circumstances in which Defendant’s financial, economic, or insured
status would be relevant and admissible. Defendant’s blanket, generalized Motion to preclude
evidence of its ‘financial, economic, or insured status’ must therefore be denied.” Id., p. 3. Aspen
American insists that “[n]one of the cases cited by Defendant in support of this generalized
Motion show evidence of insurance as uniformly impermissible.” Id. In other words, because
such evidence may become relevant and admissible during trial, Aspen American asks the Court
to deny Interstate’s motion on this point.
Aspen American is correct that such evidence can be relevant and admissible in certain
instances, depending on the evidence and issues presented at trial. But as Interstate argues in its
reply brief, the possibility that such evidence might become relevant and admissible at trial is not
grounds for denying Interstate’s motion in limine:
Interstate is completely surprised at Plaintiff’s objection to Interstate’s first
Motion in Limine. While it is true that there may be valid reasons from
introduction evidence [sic] of a party’s financial, economic [or] insurance status at
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a trial, none of the reasons exist in this case. Th[e] issues in this case, that being
Interstate’s culpability in causing or allowing the collapse of the subject
warehouse roof, do not appear to necessitate advising the jury about the
Interstate’s financial, economic or insurance status. As such, those issues should
be excluded because they are not relevant to any issue to be tried to the jury in this
case. As such, such evidence should be excluded unless, during the course of trial,
one of those issues becomes relevant pursuant to Federal Rule of Evidence 402.
Reply in Support of Defendant’s Motion In Limine (ECF No. 130), pp. 2-3.
The Court agrees with Interstate and GRANTS the motion in limine to preclude evidence
of Interstate’s financial, economic or insured status. Should this evidence become relevant to an
issue during trial, the Court will revisit the matter if raised by a party outside the presence of the
jury. This is true of all the Court’s rulings since by their nature rulings on motions in limine are
preliminary in nature and can be changed or tailored during trial if circumstances warrant. Ocasio
v. Turner, No. 2:13-CV-303, 2015 WL 13817409, at *1 (N.D. Ind. Sept. 15, 2015).
B. Evidence of settlement agreements or negotiations.
Interstate’s motion in limine includes another common and standard request: to preclude
evidence of any settlement negotiations between the parties. Interstate’s argument in support of
this request is simple and concise:
Federal Rule of Evidence 408 provides, in relevant part:
Evidence of the following is not admissible–on behalf of any party–either to
prove or disprove the validity or amount of a disputed claim or to impeach
by a prior inconsistent statement or a
contradiction:
(1) furnishing, promising, or offering–or accepting, promising to accept, or
offering to accept–a valuable consideration in compromising or attempting
to compromise the claim; and (2) conduct or a statement made during
compromise negotiations about the claim…
Fed. R. Evid. 408. Consequently, any testimony or evidence regarding any
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attempts to negotiate a settlement of this matter should not be admitted at trial and
the Plaintiff should be precluded from making any comments about settlement
negotiations before the jury.
Memorandum of Law in Support of Defendant’s Motion In Limine (ECF No. 106), pp. 2-3.
Again, this is a common and standard pretrial request, as even Aspen American concedes
(see Plaintiff’s Opposition Brief, p. 5: “evidence of settlement agreements or negotiations [is]
generally inadmissible.”). Still, Aspen American opposes Interstate’s motion, arguing that:
A trial court only has power to exclude evidence in limine when the specific piece
of evidence is clearly inadmissible on all potential grounds. See Hawthorne
Partners v. AT&T Technologies, Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993).
Defendant does not point to any particular evidence of such settlement discussion
or negotiations that should be excluded. Apart from the limitations set by Fed. R.
Evid. 408, no further limitations on admissibility of evidence in this respect
should be applied by this Court.
Id., p. 5. Interstate replies by stating that “Interstate, again, is surprised that Plaintiff stated an
objection hereto because such evidence is categorically excluded by the Federal Rules of
Evidence. As such, it appears Plaintiff is objecting simply for the purposes of objecting.”
Defendant’s Reply (ECF No. 130), p. 4. Interstate reiterates that Rule 408 expressly excludes
such evidence except in very limited circumstances. Interstate argues that “[s]hould one of the
exception situations arise in this case, then the appropriate course of action would, again, be to
approach the Court outside the presence of the jury to advise the Court of the issue and allow the
Court to make a determination as to whether such evidence is more probative than prejudicial
and should be presented to the trier of fact.” Id., p. 5. Interstate concludes by noting that the
parties in this case have engaged in several settlement discussions and negotiations, and that
“both parties engaged in these settlement discussions with the belief that the trier of fact would
never be advised of the settlement efforts, to include the respective settlement demands and
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offers exchanged between the parties. To deny Interstate’s Second Motion in Limine would
frustrate the entire purpose of F.R.E. 408, which is to facilitate settlement of case without the
ramifications of such efforts being used against the party at trial.” Id. The Court agrees and
therefore GRANTS Interstate’s motion in limine as to evidence of settlement negotiations.
C. Evidence of a heightened or different standard of care for a
bailee/property owner.
Interstate moves the Court to preclude any evidence “that Interstate was, or should be
subjected to, a heightened and/or different standard of care because it was a bailee and the owner
of the subject warehouse where Plaintiff’s goods were stored at the time of the subject incident.”
Memorandum of Law in Support of Defendant’s Motion In Limine (ECF No. 106), p. 3.
Interstate argues as follows:
The duties of a bailee are well settled under Michigan law. Specifically, the
Michigan Supreme Court has held that when a bailment is beneficial to both
parties (i.e. a mutually beneficial bailment) then the duty of the bailee in keeping
the property is “to keep and preserve the property with ordinary care–that care
which a prudent man ordinarily takes of his own property.” Godfrey v. City of
Flint, 284 Mich. 291, 297, 279 N.W. 516, 518 (1938). It is clear in this case that
the bailment of Plaintiff’s goods was a mutually beneficial bailment because
Plaintiff need a refrigerated location to store its goods until such time as the goods
(frozen seafood) were distributed to costumers. Defendant provided Plaintiff a
refrigerated location to store its goods for a fee. As such, Defendant provided
Plaintiff with a needed refrigerated storage facility and Plaintiff compensated
Defendant for the use of Defendant’s refrigerated storage facility. Thus, the facts
of this case clearly show that the bailment in this case was a mutually beneficial
bailment and Defendants only needed to exercise ordinary care in storing
Plaintiff’s goods. As such, Plaintiff should not be allowed to introduce evidence,
make statements or arguments, or otherwise convey to the jury in any manner that
Interstate should be held to a higher standard of care or that Defendant is strictly
liable for the incident giving rise to this matter.
Additionally, Defendant anticipates that Plaintiff will attempt to argue or
otherwise convey to the jury that FEMA Guidelines, relied on by Plaintiff’s snow
removal expert Jeremey Swenson, regarding snow and ice removal procedures
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and considerations provided the appropriate standard of care. However, the
FEMA Guidelines relied on by Mr. Swenson are not synonymous with industry
standards and, further, the FEMA Guidelines themselves disclaim any legal
liability or responsibility for the information contained therein. Because of the
explicit limitation of the FEMA Guidelines, Plaintiff should not be allowed to
argue, or otherwise insinuate, that the FEMA Guidelines create a duty or a legal
standard of care. At most, the FEMA Guidelines are, perhaps, evidence of
Interstate’s alleged negligence. However, allowing Plaintiff to use the FEMA
Guidelines to create a standard of care would confuse the jury and be unduly
prejudicial to Defendant and should be excluded under Federal Rule of Evidence
403.
Id., pp. 3-4.
Aspen American again concedes the general rule regarding the standard of care, but
argues that Interstate’s motion should be denied on this issue:
There is no dispute that a bailor-bailee relationship existed between Aspen’s
insured and Defendant. And there is no dispute that a mutually beneficial
bailment, under Michigan law, requires the bailee to keep and preserve the
property with ordinary care. See Godfrey v. City of Flint, 284 Mich. 291 (1938).
Neither of those facts prevents Plaintiff from arguing that Defendant was grossly
negligent in its handling of Plaintiff’s goods.
Plaintiff’s Opposition Brief (ECF No. 128), p. 5 (italics in original). Aspen American contends
that Interstate “attempts to smuggle an underlying evidentiary issue into this section of its Motion
in Limine, alleging that the FEMA Guidelines referenced by Mr. Swenson in his deposition do
not reflect the industry standard of care. This is a separate issue that should not be tied into the
legal standard applied to the Parties’ bailor/bailee relationship. Nonetheless, it is improper and
should be denied.” Id. Aspen American argues as follows:
Plaintiff addressed the FEMA Guidelines in its own Motion in Limine (Dkt. 114),
and those arguments are fully incorporated herein. Defendant is concerned that
Plaintiff may seek to utilize the FEMA Guidelines to set separate standards of
care. Instead, Defendant suggests that the FEMA Guidelines “[a]t most, […] are,
perhaps, evidence of Interstate’s alleged negligence.” (Dkt. 106 Sec. 3). As the
Court knows, bailment law involves a presumption of negligence on the part of
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the bailee, so such standards apply to bailment claims:
The mere fact that fires are sometimes spawned by other than negligent
conduct is, in our opinion, no reason to eviscerate the general rule. Such is
the result if the presumption of negligence is rebuttable by the sole fact that
the damage was occasioned by fire.
Certainly some losses caused by fire or theft may be totally excusable.
However, it is equally true that these losses may result from a lack of due
care. Because either one of these alternatives is possible we believe that
where the bailed property is lost, damaged or stolen, while it was in the
exclusive control of the bailee, he should be charged with the burden of
going forward to rebut the presumption with evidence to establish that the
loss, damage or theft was occasioned without his fault. This may require a
defendant-bailee to produce evidence of the actual circumstances
surrounding the origins of the fire or the theft, including the precautions
taken to prevent the loss.
Columbus Jack Corp. v. Swedish Crucible Steel Corp., 227 N.W.2d 506, 510-511
(Mich.S.Ct. 1975). As Defendant agrees, the FEMA Guidelines may be used as
evidence of negligence, which is part of a bailment claim. Section 3 of
Defendant’s Motion in Limine must therefore be denied.
Id., pp. 5-6.
Interstate replies by insisting that Aspen American, not Interstate, is attempting to impose
a different standard of care in this case:
Plaintiff attempts to defeat Interstate’s third Motion in Limine which seeks to
prevent Plaintiff from hijacking the standard of care by arguing that the FEMA
Guide creates the standard of care in this case. The FEMA Guide Plaintiff seek[s]
to utilize[] does not create a legal standard of care and should not be used to do
so. Of course, Plaintiff, through its expert witness(s), is free to advise the jury of
the contents of the FEMA Guide and what it claims are best practices. However,
to claim that the FEMA Guide creates an “industry standard” (i.e. a standard of
care in the warehousing industry) goes too far. In fact, the FEMA Guide itself
explicitly disclaims its use as an industry standard or a standard of care by
disclaiming any legal liability or responsibility for the information contained
therein. Therefore, Plaintiff should not be allowed to argue, or otherwise
insinuate, that the FEMA Guide create a duty, an industry standard or legal
standard of care. See Gannon v. Menard, Inc. 2019 WL 7584294 at 7 (S.D.Ind.
2019) (citing Wal-Mart Stores, Inc. v. Wright, 774 N.E.2d 891 (Ind. 2002)
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(holding generally that policy manuals and rules as evidence of a standard of care
is inappropriate).
Defendant’s Reply (ECF No. 130), p. 6.
Interstate insists in its motion in limine that Aspen American should be precluded from
arguing that the FEMA Guidelines themselves delineate the applicable standard of care in this
case, while Aspen American insists the Guidelines are admissible to show that Interstate was
negligent. The parties appear to be arguing about an issue on which they both agree: “[T]here is
no dispute that a mutually beneficial bailment, under Michigan law, requires the bailee to keep
and preserve the property with ordinary care. See Godfrey v. City of Flint, 284 Mich. 291 (1938)”
(Plaintiff’s Opposition Brief (ECF No. 128), p. 5)); “To be clear, the standard of care of Interstate
as a bailee is in this case is the duty to use ordinary care. Godfrey v. City of Flint, 284 Mich. 291,
297, 279 N.W. 516, 518 (1938).” Defendant’s Reply (ECF No. 130), p. 6. Not only do the parties
agree on the standard of care and cite the same case in support, but Interstate even concedes that
“Plaintiff, through its expert witness(s), is free to advise the jury of the contents of the FEMA
Guide and what it claims are best practices.” Interstate is correct. Aspen American can present
the FEMA Guidelines at trial to support its argument that Interstate’s conduct leading up to the
roof collapse was negligent or grossly negligent, just as Interstate concedes, but cannot argue that
those Guidelines set the standard of care. Put another way, Aspen American can present the
FEMA Guidelines at trial to support its argument that Interstate was negligent or grossly
negligent in the way it handled (or failed to handle) the snow accumulation, but cannot argue that
Interstate’s alleged failure to follow those Guidelines, by itself, requires the jury to find that
Interstate was negligent. Accordingly, Interstate’s motion in limine on this point is GRANTED in

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part and DENIED in part. The motion is granted in that Aspen American cannot argue that the
FEMA Guidelines set the standard of care in this case (which is one of ordinary care); the motion
is DENIED in that Aspen American can present this evidence at trial in support of its argument
that Interstate was negligent.
D. Evidence of claims of privilege by Defendant.
Interstate moves the Court to preclude “Plaintiff, its counsel, and Plaintiff’s witnesses . . .
from introducing evidence of, making statements or arguments concerning, or conveying to the
jury in any manner any objection by Defendant to certain discovery or any assertion of privilege
by Defendant during pre-trial proceedings in this case.” Memorandum in Support (ECF No. 106),
p. 4. Interstate argues as follows:
Such evidence is irrelevant, highly prejudicial, and, therefore, inadmissible under
Federal Rules of Evidence 402 and 403. Furthermore, Federal Rule of Evidence
states that in a civil lawsuit, “state law governs privilege regarding a claim or
defense for which state law supplies the rule of decision.” FED. R. EVID. 501. As
such this court must apply Indiana law regarding the use of claims of privilege at
trial. Indiana Rule of Evidence 501(d)(1) holds that, commenting on or attempting
to draw an inference from a claim of privilege is prohibited. As such, Plaintiff, its
counsel, and Plaintiff’s witnesses should be barred from introducing evidence of,
making statements or arguments concerning, or conveying to the jury in any
manner any objection by Defendant to certain discovery requests or any assertion
of privilege by Defendant during pre-trial proceedings in this case.
Id., pp. 4-5.
Aspen American opposes Interstate’s motion on this point, arguing that it “is overly broad
and fails to mention any specific piece of evidence here that Defendant wishes to be excluded.”
Plaintiff’s Opposition Brief (ECF No. 128), p. 7. Aspen American reiterates its argument that “a
trial court only has power to exclude evidence in limine when the specific piece of evidence is
clearly inadmissible on all potential grounds. . . . Here, a blanket motion to preclude ‘evidence of
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claims of privilege by Defendant’ is overly broad and fails to mention any specific piece of
evidence here that Defendant wishes to be excluded. Section 4 of Defendant’s Motion in Limine
must therefore be denied.” Id., p. 8 (internal citation omitted).
In reply, Interstate contends that Aspen American’s objection misses the point:
Plaintiff objects, again, for reasons that appear to be objection for the sake of
objection, to Interstate’s fourth Motion in Limine which seeks to prohibit Plaintiff
from presenting to the jury any evidence, argument or comment regarding any
claims of privilege asserted by Interstate. Oddly, Plaintiff objects by agreeing that
claims of privilege should be barred pursuant to Federal Rule of Evidence 501 and
state law authority regarding privilege. However, while agreeing that claims of
privilege should be barred at trial, Plaintiff then argues that the Court should deny
Interstate’s Motion in Limine, apparently because the request is too broad.
However, to Interstate’s knowledge, there were very few claims of privilege
asserted in this case. As such, it is readily apparent to Plaintiff what information it
cannot divulge to the jury. As such, this Court should prohibit Plaintiff from
presenting any evidence, argument or comment to the jury regarding any claim of
privilege asserted by Interstate in this case over Plaintiff’s objection. Of course,
should an instance arise at trial which may require evidence to be presented
regarding a privileged matter, then Plaintiff should raise that issue outside the
presence of the jury so that the Court can hear argument and determine if the
evidence should be presented to the jury over the claim of privilege.
Defendant’s Reply (ECF No. 130), pp. 6-7 (italics added).
Indiana Rule of Evidence 501(d) provides as follows1:
Except with respect to a claim of the privilege against self-incrimination in a civil
case:
1

The parties agree that Indiana state evidentiary rules on privilege apply in this diversity
case: see Plaintiff’s Opposition Brief (ECF No. 128), p. 7 (“Fed. R. Evid. 501 states that in civil
cases “state law governs privilege regarding a claim or defense for which state law supplies the
rule of decision.” See also, Arc Welding Supply Co., Inc. v. American Welding & Gas, Inc., 2017
WL 2901230, at *2 (S.D. Ind. May 4, 2017) (noting that “[i]f a case is before the court on
diversity jurisdiction, the court must apply state privilege law.”); Defendant’s Memorandum in
Support (ECF No. 106), p. 4 (“Federal Rule of Evidence states that in a civil lawsuit, “state law
governs privilege regarding a claim or defense for which state law supplies the rule of decision.”
FED. R. EVID. 501. As such this court must apply Indiana law regarding the use of claims of
privilege at trial.”).
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(1) Neither the judge nor counsel may comment upon the claim of a privilege,
whether in the present proceeding or on a prior occasion. No inference may be
drawn from the claim of a privilege.
(2) In jury cases, the judge, to the extent practicable, must conduct proceedings so
as to allow parties and witnesses to claim privilege without the jury’s knowledge.
(3) If requested by a party against whom the jury might draw an adverse inference
from a claim of privilege, the court must instruct the jury that the jury must not
draw an adverse inference from the claim of privilege.
Ind. R. Evid. 501(d). The language of the rule is clear and Interstate’s motion is GRANTED.
Accordingly, neither party may introduce evidence of, make statements or arguments concerning,
or convey to the jury in any manner any objection by either party to certain discovery or any
assertion of privilege by either party during pre-trial proceedings in this case.
E. Defendant’s failure to call witnesses.
Interstate moves the Court to preclude “Plaintiff, its counsel, and Plaintiff’s witnesses . . .
from introducing evidence of, making statements concerning, or conveying to the jury in any
manner that Defendant failed to call any witness equally available to all parties in this case. Each
party has subpoena power consistent with the Federal Rules of Civil Procedure, and any undue
comment or reference to the fact that a witness is not called as part of the Defendant’s
case-in-chief would be irrelevant, highly prejudicial, and, therefore, inadmissible under Federal
Rules of Evidence 402 and 403.” Defendant’s Memorandum in Support (ECF No. 106), p. 5.
Aspen American opposes this request, too, arguing that “[i]nferences due to failure to call
certain witness have been permitted in civil cases by Indiana courts.” Plaintiff’s Opposition Brief
(ECF No. 128), p. 8.
In its reply brief, Interstate argues as follows:

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Plaintiff objects to Defendant’s fifth Motion in Limine which seeks to prevent
Plaintiff’s counsel from introducing evidence of, making statements concerning,
or conveying to the jury in any manner that Defendant failed to call any witness
equally available to all parties in this case. Interstate notes that its fifth Motion
in Limine does not seek to prevent any comment or argument regarding the failure
to call any witness that was under the exclusive control of Interstate. Again,
Interstate notes that each party has subpoena power consistent with the Federal
Rules of Civil Procedure and is free to request any person to appear and testify in
court. As such, if a witness is one that Plaintiff wants to call at trial, it should not
be allowed to refuse to call said witness in its case-in-chief on the hopes that
Defendant will call the witness, only to then make undue comment or reference to
the fact that Interstate did not call a witness Plaintiff could have easily called.
Allowing such a tactic would be irrelevant, highly prejudicial, and, therefore,
inadmissible under F.R.E. 402 and 403.
Defendant’s Reply (ECF No. 130), pp. 7-8 (boldface and underlining in original). Interstate’s
motion seeks only to bar comments or statements regarding Interstate’s failure to call “any
witness equally available to all parties” and is, once again, a standard and common request in
pretrial motions. United States v. Ogoke, 860 F.3d 924, 930 (7th Cir. 2017) (holding that a party
may not argue an adverse inference from an opposing party’s failure to call a witness, absent a
showing that the witness was available only to that party.”).
Accordingly, Interstate’s motion in limine on this point is GRANTED. Furthermore, the
Court precludes either party from introducing evidence of, or making statements concerning, or
conveying to the jury in any manner, that the other party failed to call a witness that was available
to both.
F. Defendant’s prior or subsequent acts.
Interstate moves the Court to preclude Aspen American from introducing any evidence of
Interstate’s prior or subsequent acts, arguing as follows:
Plaintiff, its counsel, and Plaintiff’s witnesses should be prohibited from
introducing evidence of, making statements or arguments concerning, or
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conveying to the jury in any manner any prior or subsequent acts involving
Defendant. Federal Rule of Evidence 404(b)(1) provides, “[e]vidence of a crime,
wrong, or other act is not admissible to prove a person’s character in order to
show that on a particular occasion the person acted in accordance with the
character.” “It is well settled that prior acts may not be admitted to prove that a
person acted in a similar fashion in the case at hand.” Lataille v. Ponte, 754 F.2d
33, 35 (1st Cir. 1985). Moreover, any such evidence would also be highly
prejudicial and, therefore, inadmissible under Evidence Rule 403.
Defendant’s Memorandum in Support (ECF No. 106), p. 5.
In response, Aspen American argues again that Interstate’s motion should be denied
because it is over broad:
Defendant alleges that its prior or subsequent acts are highly prejudicial and are
allegedly inadmissible pursuant to Fed. R. Evid. 403. It provides no support as to
why such evidence is highly prejudicial and therefore inadmissible beyond the
limiting powers of Fed. R. Evid. 404(b), nor does it provide any statements,
arguments, documents, or other specific evidence that it seeks to exclude. Section
6 to Defendant’s Motion in Limine is therefore unspecific, overgeneralized, and
should be denied as duplicative of what procedural remedies are already available
to Defendant under Fed. R. Evid. 403 and 404.
Plaintiff’s Opposition Brief (ECF No. 128), p. 9.
Interstate, in its reply brief, once again accuses Aspen American of objecting for the sake
of objecting:
Another surprising objection, which again appears to be an objection for the sake
of objection, is Plaintiff’s objection to any prior or subsequent acts. Interstate
notes that Plaintiff agrees that F.R.E. 404 prohibits the introduction of prior or
subsequent acts of Defendant for the purpose of proving that Interstate was
negligent with respect to the collapse of the Hudsonville, Michigan warehouse
roof, which again leave Interstate pondering why there is an objection at all. At its
essence, Plaintiff’s argument really appears to take exception to Interstate’s
position that the evidence would be prejudicial under F.R.E. 403. However,
Interstate is not the entity that has made the determination that evidence of prior
or subsequent acts is prejudicial. That determination was made by the rules
committee which noted that “[prior or subsequent acts are] of slight probative
values and may be very prejudicial. [Such evidence] tends to distract the trier of
fact from the main question of what actually happened on a particular occasion.”
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FED R. EVID. 404 cmt. A. As such, the Court should grant Defendant’s sixth
Motion in Limine over Plaintiff’s objection and bar any evidence pertaining to
prior or subsequent acts of Interstate.
Defendant’s Reply (ECF No. 130), p. 8 (capitalization in original).
Federal Rule of Evidence 404 states in relevant part as follows:
(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible
to prove a person’s character in order to show that on a particular occasion the
person acted in accordance with the character.
(2) Permitted Uses. This evidence may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.
Fed. R. Evid. 404(b)(1), (2). Again, the language of the rule is clear and Aspen American’s
argument that Interstate’s request is unspecific and overgeneralized is unavailing. Accordingly,
Interstate’s motion in limine on this point is GRANTED and Aspen American, its counsel, and
its witnesses are prohibited from introducing evidence of, making statements or arguments
concerning, or conveying to the jury in any manner any prior or subsequent acts involving
Interstate.
G. The existence of any Motion in Limine.
Interstate moves the Court to preclude Aspen American from presenting “any testimony,
evidence or reference to the existence or filing of this motion in limine, or to the fact that
Defendants sought to exclude evidence, or to any ruling this Honorable Court has made
regarding this Motion in Limine. The filing of a motion to exclude certain inadmissible evidence,
and the fact that such a motion has been submitted to the Court is inadmissible under Federal
Rule of Evidence 403.” Defendant’s Memorandum in Support (ECF No. 106), p. 6.
Aspen American responds by arguing that “[a] generalized argument that the mention of
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motions in limine is ‘inadmissible under Federal Rule of Evidence 403’ is too sweeping in scope
to be decided in limine. . . . In the unlikely event that either party chooses to introduce evidence
of pretrial motions in its case in chief, the other side will have the opportunity to object on
applicable evidentiary grounds at trial. Section 6 of Defendant’s Motion in Limine is thus overly
broad and must be denied.” Plaintiff’s Opposition Brief (ECF No. 128), pp. 9-10 (citation
omitted).
Interstate replies as follows:
Plaintiff also objects, again apparently for the sake of objecting, to Interstate’s
seventh Motion in Limine seeking to prevent Plaintiff from advising the jury of
the existence of the parties’ respective Motions in Limine. However, Plaintiff’s
objection, that Interstate’s Motion in Limine is too broad fails to state what is
actually objectionable. Interstate asks this Court to prevent Plaintiff from
mentioning the existence of its motion in limine, or the order ruling on
Defendant’s Motion, at trial. In fact, Plaintiff’s argument for its objection is not
cogent because Plaintiff agrees that a party should object to the introduction of
pre-trial motions at trial. As such, there appears to be no legitimate objection and
the Court should grant Interstate’s seventh Motion in Limine and prevent Plaintiff
from advising the jury about the existence of this Motion in Limine.
Defendant’s Reply (ECF No. 130), p. 9.
The purpose of a motion in limine is to obviate the need for a party to object to evidence
in the presence of the jury. Thus, Aspen American’s argument that Interstate’s motion in limine
should be denied because Interstate would have the right to object to any attempt by Aspen
American to introduce evidence that Interstate filed motions in limine, once again, misses the
point. Motions in limine are supposed to streamline, not complicate, evidentiary issues.
Interstate’s request is common and reasonable and is GRANTED. Neither party will be permitted
to present any testimony, evidence or reference to the existence or filing of any motion in limine,
or to the fact that the other party sought to exclude evidence, or to any ruling this Court has made
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regarding any motion in limine.
H. The suggestion that this litigation is Plaintiff’s only opportunity for relief.
Interstate moves the Court to preclude “Plaintiff and Plaintiff’s counsel [from]
suggest[ing] or argu[ing] to the jury that Plaintiff’s only chance to receive compensation for its
alleged damages lies with the jury in this litigation.” Defendant’s Memorandum in Support (ECF
No. 106), p. 6. Interstate argues as follows:
The suggestion is irrelevant to the issues the jury must decide in this case and will
unfairly arouse the jury’s sympathy for Plaintiffs. In Stillman v. Norfolk &
Western Railway Co., the Court rejected a plaintiff’s claim that his counsel should
have been permitted to inform the jury that plaintiff would receive no worker’s
compensation benefits because he was limited to recovery under the Federal
Employers’ Liability Act. 811 F.2d 834, 838 (4th Cir. 1987). The court held that
plaintiff’s ineligibility for worker’s compensation was completely irrelevant to the
issues presented in the case and allowing the jury to consider such information
could have prejudiced the railroad. Id. at 838. See also, Weinell v. McKeesport
Connecting Railroad Co., 411 F.2d 510, 512 (3rd Cir. 1969).
Where the only purpose for injecting irrelevant evidence into a trial is to
improperly sway the jury in a particular party’s favor, such evidence should be
expressly prohibited. Id.; Fed. R. Evid. 403. Any suggestion that this lawsuit is
Plaintiff’s sole source of compensation for Plaintiff’s alleged damages would
undoubtedly generate sympathy for the Plaintiff and prejudice Interstate. Thus,
Plaintiff should not be permitted to argue or insinuate that this trial is its only
chance to receive compensation for its alleged injuries. Such a claim is
misleading, entirely irrelevant, and unduly prejudicial to Defendant and must be
barred pursuant to Federal Rule of Evidence 403.
Id., pp. 6-7.
In response, Aspen American claims the cases Interstate cites in support of its argument
are inapplicable, then again argues that Interstate’s motion should be denied because Interstate
does not cite any specific evidence it seeks to exclude and because Interstate is free to object at
trial:

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Plaintiff should be afforded the opportunity to present its prima facie case to the
jury by whatever means it chooses to under the Federal Rules of Evidence. As
previously established, a trial court only has power to exclude evidence in limine
when the specific piece of evidence is clearly inadmissible on all potential
grounds. . . . Defendant fails to mention any specific piece of evidence here, and is
free to frame this motion, if applicable, as a proper objection during trial. At this
juncture, Section 8 of Defendant’s Motion in Limine must be denied.
Plaintiff’s Opposition Brief (ECF No. 128), p. 10.
In reply, Interstate argues that Aspen American is opposing its motion in limine on this
point because “Plaintiff clearly . . . intends to plead to the sympathy of the jurors to prevail in this
case. In fact, Plaintiff has no choice but to do so because Plaintiff is desperate to convince the
jury that Interstate was grossly negligent in causing the collapse.” Defendant’s Reply (ECF No.
130), p. 9.
In sum, Aspen American objects to Interstate’s motion on the grounds that it is over
broad and premature, while Interstate argues that Aspen American is attempting to clear a path to
appeal to the sympathy of the jury. The Court is not moved by either argument, but will grant the
motion anyway because any statements, comments or arguments that this case is Aspen
American’s only change to recoup its alleged damages is irrelevant and unduly prejudicial.
Accordingly, the motion is GRANTED and Aspen American’s counsel and witnesses are
precluded from mentioning or arguing to the jury that Plaintiff’s only chance to receive
compensation for its alleged damages lies with the jury in this litigation.
I. Evidence for which no foundation is laid, which is not relevant, which was
not disclosed in accordance with the Court’s orders, and testimony that fails
to meet Rule 702 standards.
Interstate moves the Court to preclude “Plaintiff, Plaintiff’s counsel, and Plaintiff’s
witnesses . . . from introducing evidence for which no foundation is laid, which is not relevant to
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the issues in this action, and which was not disclosed in accordance with the Court’s orders.”
Defendant’s Memorandum in Support (ECF No. 106), p. 7. Interstate argues as follows:
The Rules of Evidence require Plaintiff to show that their witnesses have personal
knowledge of the matters to which they are testifying, FED. R. EVID. 602, and
that the evidence they present is what they purport it to be. FED. R. EVID. 902(a).
Additionally, evidence that does not have any tendency to make a fact more or
less probable than it would be without the evidence is not relevant and, therefore,
not admissible at trial. FED. R. EVID. 401, 402. Further, any evidence not
disclosed in accordance with the Court’s Case Management Order must be barred
at trial absent a showing of good cause for its admission notwithstanding its
untimely disclosure. If the evidentiary prerequisites of a proper foundation,
relevance, and timely disclosure have not been satisfied, Plaintiffs’ evidence
should be barred at trial.
Additionally, Federal Rule of Evidence 702, along with Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and its
progeny, govern the admissibility of expert evidence. Winters v. Fru-Con, Inc.,
498 F.3d 734, 741 (7th Cir. 2007). Daubert requires the Court to safeguard that
expert testimony is both relevant and reliable by acting as a “gatekeeper” when
such evidence is proffered. Kumho Tire v. Carmichael, 526 U.S. 137, 141, 119
S.Ct. 1167, 1171, 143 L.Ed.2d 238, (1999). In Kumho Tire, the Supreme Court
noted that Rule 702 did not differentiate between “scientific” knowledge and any
other forms of specialized knowledge. Id. at 149. Thus, Kumho Tire extended
Daubert’s relevance and reliability requirements, such that they apply to all expert
testimony and not merely to scientific testimony. Id. at 137.
In light of Daubert and Kumho Tire, the Seventh Circuit adopted a two-step
methodology to help district courts determine whether an expert’s testimony
satisfies Rule 702. Bamcor, LLC v. Jupiter Aluminum Corporation, 767
F.Supp.2d 959, 973 (N.D. Ind. Feb. 7, 2011). First, the Court must satisfy the
reliability requirement by determining that: (1) the proffered expert is qualified in
the applicable field; and (2) the opinion is founded on sound methodology. Smith
v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000). When analyzing an
expert’s qualifications to offer an opinion, the Court should consider the expert’s
“full range of practical experience as well as academic or technical training. . . .”
Id.
In this case, Defendant anticipate[s] that Plaintiff will attempt to introduce expert
testimony that does not meet the criteria laid out by Daubert and its progeny.
Specifically, it is anticipated that Plaintiff will attempt to introduce evidence and
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testimony from James Goes, Plaintiff’s structural engineering expert, who is
anticipated to opine that the subject collapse was not caused by the enormous
amount of snowfall, but was instead caused by an alleged joist connection failure.
However, as admitted by Mr. Goes, his “opinion is based on extremely limited
information” and is made “with very low certainty.” Based on Mr. Goes’ own
statements, his purported expert opinions do not meet the exacting standard for
admission set out in Daubert and its progeny. More specifically, Mr. Goes’
purported opinion is not founded on sound methodology as admitted by Mr. Goes
himself because his opinions are based on “extremely” limited information and
are made with “very low” certainty. Ford Motor Co., 215 F.3d at 718. Therefore,
because Mr. Goes’ opinions do not meet the exacting standards for admissibility
as set forth in Daubert and its progeny, his opinions are not admissible under
Federal Rule of Evidence 702 because they will not help the trier of fact, are not
based on sufficient facts or data, and are not the product of reliable principles and
methods. See FED. R. EVID. 702.
Mr. Goes’ opinions are also not admissible because his opinions are nothing more
than mere speculation or conjecture. Mr. Goes admits that he never actually
inspected the joist he claims failed and caused the subject collapse. As such, Mr.
Goes’ opinions are not based on any known or provable fact, making his joist
failure opinion nothing more than guess (i.e. conjecture). Skinner v. Square D.
Co., 516 N.W.2d 475, 480-481 (Mich. 1994). Therefore, this Court must not
allow Plaintiff, Plaintiff’s counsel, Mr. Goes, or another of Plaintiff’s other
witnesses to testify, comment or introduce any evidence which indicates that the
subject roof collapse was caused by an unverifiable joist failure.
Id., pp. 7-9.
Aspen American responds by arguing that Mr. Goes is qualified to testify as an expert in
this case and that Interstate’s motion to exclude his testimony is based on a mischaracterization
of his expected testimony. Plaintiff’s Opposition Brief (ECF No. 128), pp. 10-13.
The Court need not address the parties’ arguments on this point because the issue is the
weight to be given to Mr. Goes’ testimony, not its admissibility. If, as Interstate contends, Mr.
Goes’ testimony is based on speculation and conjecture, Interstate can establish that through
cross-examination and presentation of its own expert. At this juncture, however, Interstate’s
motion in limine on this point is DENIED.
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J. Statements intended to demonize Defendant Interstate Warehousing, Inc.
as a company.
Interstate moves the Court to preclude “Plaintiff, its counsel, and Plaintiff’s witnesses . . .
from making statements intended to demonize Interstate as a warehousing company. Whether
made during Plaintiffs’ opening statement, case-in-chief, or closing argument, such statements
could only serve to inflame the passions of the jury and unfairly prejudice Interstate. Such
statements and arguments are, therefore, barred by Federal Rule of Evidence Rule 403.”
Defendant’s Memorandum in Support (ECF No. 106), p. 9.
Not surprisingly, Aspen American opposes this request also. Aspen American insists as
follows:
In its three-sentence argument in Section 10 of its Motion in Limine, Defendant
fails to tell this Court what it means by “demonize Defendant Interstate
Warehousing Inc. as a company.” This is not a legal standard, but a subjective
phrase. It tends to show that Defendant is worried that its grossly negligent
behavior and its spoliation of evidence may make it look unfavorable in the eyes
of the jury. But this is the bed Defendant made; it now must lay in it.
As previously established, a trial court only has power to exclude evidence in
limine when the specific piece of evidence is clearly inadmissible on all potential
grounds. . . . Defendant once again fails to mention any specific piece of evidence
here. At this juncture, Section 10 of Defendant’s Motion in Limine must be
denied.
Plaintiff’s Opposition Brief (ECF No. 128), p. 13.
In reply, Interstate argues as follows: “[I]n Plaintiff’s objection to Interstate’s tenth
Motion in Limine, Plaintiff states, in relation to its purported gross negligence claim, which is
clearly not supported by any fact, that Interstate made its bed and ‘must lay in it.’ This statement
clearly underscores the need for the Court to issue an order in limine which directly prevents
Plaintiff, Plaintiff’s counsel and/or Plaintiff’s witnesses from making any statements which
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demonize or disparage Interstate as a company at trial.” Defendant’s Reply (ECF No. 130), pp.
12-13.
Whether the evidence causes the jury to think poorly of Interstate is of no moment to the
Court. That said, comments or statements by Aspen American’s counsel or any of its witnesses
that are intended to disparage or “demonize” Interstate are not evidence, and those are the types
of comments Interstate seeks to exclude. Interstate’s request is reasonable and well-taken and its
motion in limine on this point is GRANTED.
K. Claims of negligent hiring, retention, training, and/or supervision of any
of Interstate’s employees and/or agents.
Interstate moves the Court to preclude “Plaintiff, Plaintiff’s counsel, and Plaintiffs’
witnesses . . . from making any claims of negligent hiring, training, supervision, and/or retention
of any of Interstate’s employees and/or agents.” Defendant’s Memorandum in Support (ECF No.
106), p. 9. Interstate states that it “has admitted, or will admit, that all of Interstate’s employees
and agents involved in the issues being litigated in this case were acting in the course and scope
of their employment with respect to the alleged acts or omissions Plaintiff has asserted against
Interstate.” Id. Interstate cites several cases in support of the proposition that “no independent
claim of negligence shall lie against an employer for negligent hiring, training, supervision, or
retention where the employer has stipulated that the employee was acting in the course and scope
of his employment with the employer when the alleged incident occurred.” Id., p. 10 (citations
omitted). Interstate then pivots a bit to a separate evidentiary issue by arguing that Aspen
American should be precluded from presenting evidence of Interstate’s employees’ employment
and training files:

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Furthermore, Plaintiff should be barred from introducing any evidence related to
any employee’s or agent’s employment or training files because such files and
documents are irrelevant, highly prejudicial, and do not tend to make a fact at
issue more or less true under the circumstances of this case since Interstate has
admitted, or will admit, that its employees and agents involved in the subject
warehouse collapse, including those who were involved all pre-collapse activities
and inspections, were acting within the course and scope of their employment
when the subject incident occurred. Therefore, evidence regarding any of
Interstate’s employees and/or agents employment and training files are not
relevant to any triable issue in this case and are inadmissible under Federal Rules
of Evidence 402 and 403.
Id., pp. 10-11.
Aspen American responds by first noting that it has not alleged any claim for negligent
hiring, training or supervision. But Aspen American argues that it should be permitted to present
evidence that Interstate’s employees were not adequately trained. Aspen American argues as
follows:
Defendant asserts that . . . no independent claim of negligence shall be made
against an employer for negligent hiring, training, supervision, or retention.
Plaintiff has no direct claim for negligent hiring, training, supervision, or
retention against Defendant. Defendant also wrongly argues that Plaintiff should
be barred from introducing evidence related to any employee’s or agent’s
employment or training files due to supposed lack of relevance or highly
prejudicial nature but fails to explain why this evidence is highly prejudicial or
irrelevant. Defendant incorrectly alleges that evidence of an employee’s
employment and training materials is not relevant to any triable issue in this
matter under Fed. R. Evid. 402 and 403. Defendant’s employees’ employment
records and training materials are directly relevant to the duty and breach elements
of Plaintiff’s negligence and gross negligence claims. Gross negligence is found
when “conduct is so reckless as to demonstrate a substantial lack of concern for
whether an injury results.” Xu v. Gay, 668 N.W.2d 166, 170 (Mich. App. 2003).
The jury, as factfinder, could easily conclude that Defendant’s complete lack of
training materials available to its employees for snow incidents such as the one
that resulted in the damages to Plaintiff’s goods rises to the level of gross
negligence.
It also follows, then, that the method of Defendant’s employees’ work and training
could show how Defendant’s employees breached their duty to Plaintiff through
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the manner of their training and work as warehousemen. Evidence of their work
and training materials directly shows that Defendant’s complete disregard for
training or educating its employees amounted to a “substantial lack of concern for
whether an injury results.” Xu, 668 N.W.2d at 170. Indeed, no one at the subject
warehouse had a background or received training related to building construction,
roofing work, snow removal or building maintenance. Dkt. 41-6, p. 39-40; p 73,
li. 11 to p. 74, li. 7. Defendant’s employees’ work records and training are clearly
relevant in this matter and should be admissible at trial of this matter.
Plaintiff’s Opposition Brief (ECF No. 128), pp. 13-14. It goes without saying that Aspen
American cannot present any argument or evidence in support of a nonexistent claim. But the
real issue here is whether Aspen American can present evidence of Interstate’s employees’
training and whether those employees were capable and competent to handle the situation
involving the warehouse roof. This evidence is relevant to Aspen American’s negligence and
gross negligence claims and is admissible in that context.
Accordingly, Interstate’s motion in limine on this point is GRANTED to the extent that
Aspen American will be precluded from presenting evidence or argument that Interstate is liable
for negligent hiring, retention or supervision–claims that Aspen American admits it does not
assert–and DENIED to the extent that Interstate seeks to preclude Aspen American from
presenting evidence of Interstate’s employees’ background and training. As stated, this evidence
is relevant to Aspen American’s claims and Interstate’s objection goes to the weight to be
accorded that evidence rather than its admissibility.
L. Statements advancing a “Golden Rule” argument.
Interstate moves the Court to preclude “Plaintiff, Plaintiff’s counsel, and Plaintiff’s
witnesses . . . from introducing evidence, making statements concerning, or conveying to the jury
in any manner that the jury should imagine itself in the Plaintiff’s position and render a verdict in

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Plaintiff’s favor because doing so will make the community safer and will prevent Defendant
and/or others similarly situated as Defendant from harming the jurors, the jurors’ families, or
someone close to the jurors. These so called “Golden Rule” arguments are “universally
recognized as improper because [they] encourage[] the jury to depart from neutrality and to
decide the case on the basis of personal interest and bias rather than on the evidence.” . . .
Accordingly, such arguments are highly prejudicial and therefore inadmissible under Federal
Rule of Evidence 403. Defendant’s Memorandum in Support (ECF No. 106), p. 11 (citations
omitted). Interstate elaborates as follows:
Allowing Plaintiff to make any argument, mention, or elicit testimony which is
designed to sway the jury away from its role as a neutral arbiter in this case is
misconduct which would play to large of a role in the outcome and could not be
cured by asking the jury to remain neutral. The only way to ensure a fair trial for
both parties is to prevent Plaintiff from asking, mentioning, or introducing any
testimony, argument or evidence which may seek to have the members of the jury
to abandon there [sic] duty to remain neutral.
...
Additionally, it is anticipated that Plaintiffs’ counsel will, throughout the course
of trial, argue that the jury has the power to improve the safety of themselves,
their family members, and their community by rendering a verdict that will reduce
or eliminate allegedly “dangerous” or “unsafe” conduct.
Id., pp. 11-12. Interstate then presents a lengthy discussion of the “Golden Rule” and “Reptile”
theories, which Interstate says supports its motion. According to Interstate, the “‘reptilian
imperative’ or ‘reptile tactic,’ is based on a book by David Ball and Don Keenan entitled
‘Reptile: The 2009 Manual of the Plaintiff’s Revolution’ and seeks to convince the jury that a
verdict for the plaintiff will make the community safer because it will prevent the defendants or
others similarly situated from harming the jurors, their families, or someone close to them. This

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argument needs to be recognized for what it truly is–an attempt to resurrect ‘Golden Rule’
arguments.’” Defendant’s Memorandum in Support (ECF No. 106), p. 12. Interstate then devotes
seven pages, nearly a third of its memorandum, to a law review type discussion of the “Golden
Rule” and “Reptilian Complex” theories as presented in Mr. Ball’s and Mr. Keenan’s book, and
why such arguments should not be permitted at trial. Id., pp. 11-17.
Aspen American’s response, in its entirety, is as follows:
Despite using 2,100+ words to explain and argue the “Golden Rule” and “Reptile”
theories in its Motion in Limine Section 12, Defendant fails to devote even one of
those words to a specific piece of evidence that it seeks to exclude in limine.
Once again, a trial court only has power to exclude evidence in limine when the
specific piece of evidence is clearly inadmissible on all potential grounds. . . .
Despite its longwindedness, Section 10 of Defendant’s Motion in Limine is
vague, overly broad, and must be denied.
Plaintiff’s Opposition Brief (ECF No. 128), p. 15.
In its reply brief, Interstate argues that all it is asking the Court to exclude are comments
or statements to the jury implying that they should find in favor of Aspen American and award
damages because doing so would protect the jurors or other people from the dangers of
improperly stored food products. Interstate argues that such comments or statements “seek[] to
draw the jury away from logic and reason and base their determination of the case on fear and
emotion.” Plaintiff’s Reply (ECF No. 130), p. 15.
The Court agrees with Interstate and GRANTS the motion in limine on this point.
“Golden Rule” and “Reptile Complex” theories aside, what Interstate is asking for in its motion
in limine is an order precluding Aspen American from making comments or statements to the
jury, explicit or implied, that are intended to appeal to the jury’s fear or emotion as outlined in

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Interstate’s memorandum. Such statements or comments are wholly inappropriate and improper
and the Court will not tolerate them, whether they are called “Golden Rule” arguments or
“Reptilian Complex” arguments or “Please Find in Our Favor Because Defendant is Mean”
arguments. Accordingly, Interstate’s motion in limine is GRANTED on this point.
M. Testimony, argument, comment or statements advancing Plaintiff’s claim
for spoliation of evidence outside or beyond the instruction this Court has
stated will be read to the jury.
Interstate moves the Court to preclude “Plaintiff, Plaintiff’s counsel and Plaintiff’s
witnesses . . . from mentioning, arguing or commenting on the alleged spoiliation of evidence
committed by Defendant.” Defendant’s Memorandum, pp. 18-19. This Court ruled in a previous
order that Interstate committed spoliation of certain evidence following the roof collapse and that
the Court would give an instruction informing the jury that it could, but was not required to, find
that the evidence destroyed by Defendant’s pursuant to local health authority orders was
unfavorable to Defendant. See Opinion and Order (ECF No. 75), pp. 18-19 (“The Court will
provide a preliminary and final jury instruction that the jury may, but is not required to, conclude
that evidence that might have been obtained from an inspection of the warehouse components
removed from the site would have been unfavorable to Interstate. . . . The jury will be permitted
to hear and consider evidence from both parties about Interstate’s failure to preserve the
structural components (or make them available for inspection) and how and to what degree
Aspen American was prejudiced by Interstate’s actions in that regard. . . . The Court reserves the
right to alter the wording to, and supplement, the preliminary and final jury instruction and to
impose other sanctions for spoliation before or during trial, if appropriate.”).
Interstate argues that a jury instruction is all that is needed and that Aspen American
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should be precluded from arguing or even mentioning that Interstate spoliated evidence.
According to Interstate:
After the roof collapse giving rise to this litigation, Plaintiff requested that one of
its experts inspect the roof collapse site to inspect, in part, the roof joist where the
subject collapse occurred. Plaintiff’s expert made numerous attempts to inspect
the collapse site but purportedly could not see the part of the roof he desired to
inspect. Ultimately, state and local health departments directed Defendant to
remove the debris, destroy Plaintiff’s contaminated product, and remove the
“harborage” from the area. Defendant notified Plaintiff about the orders from the
state and local health departments. After a sufficient time, but before the deadline
imposed by the health departments, Defendant destroyed the contaminated
product, cleared the collapse debris and removed the harborage as directed by
state and local health officials and destroyed the collapsed roof materials.
Defendant anticipates that, at trial, Plaintiff will argue, comment, or otherwise
insinuate that Defendant’s intentionally spoiliated [sic] evidence for the sole
purpose of attacking the character of Defendant and implanting in the minds of the
jury that Defendant is deceitful, fraudulent, or attempted to cover up its negligence
in this case. However, Plaintiff should be prevented from arguing, mentioning, or
otherwise commenting on the alleged spoliation of evidence in this case pursuant
to Federal Rule of Evidence 403.
Plaintiff’s spoliation of evidence claim has already been presented and addressed
by this court in Plaintiff’s Motion for Summary Judgment regarding Plaintiff’s
claim that Defendant’s spoliated evidence. After reviewing the arguments and
designated evidence, the Court determined that Defendant’s actions did
technically meet the definition of spoliation of evidence. However, the Court also
noted that Defendant was placed between “a rock and a hard place” because it was
faced with Plaintiff’s preservation of evidence letter demanding that Defendant
preserve the warehouse structure for inspection and directives from state and local
authorities to remove and destroy the very same evidence Plaintiff requested be
preserved. Ultimately, Defendant was forced to comply with health department
authorities directives. Thus, this Court found that Defendant’s spoliation of
evidence was not a deliberate attempt by Interstate to squirrel away evidence in an
effort to prevent Aspen American from conducting an inspection and investigation
into the cause of the roof collapse. Accordingly, the Court determined that it
would give an instruction informing the jury that it could, but was not required to,
find that the evidence destroyed by Defendant’s pursuant to local health authority
orders was unfavorable to Defendant.
If Plaintiff is permitted to comment, argue or otherwise mention throughout the
trial that Defendant spoliated evidence, it would leave the impression with the
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members of the jury that Defendant’s actions were intentional and deliberate and
an attempt to destroy unfavorable evidence. Such a result would unduly and
substantially prejudice the Defendant at trial and create a clearly unfair benefit to
Plaintiff, especially when considering Plaintiff’s purported gross negligence
claim.
Therefore, Plaintiff, Plaintiff’s counsel and Plaintiff’s witnesses should be
prohibited from mentioning, arguing or commenting on the alleged spoiliation
[sic] of evidence committed by Defendant pursuant to Federal Rule of Evidence
403, and the only mention of spoiliation [sic] of evidence at trial should come
from the Court’s previously approved jury instruction as stated in the Court’s
summary judgment order.
Defendant’s Memorandum (ECF No. 106), pp. 17-19.
Aspen American responds by contending that Interstate is attempting to preclude Aspen
American from presenting any evidence or argument regarding spoliation even though this Court
has already ruled that such evidence and argument would be permitted. According to Aspen
American:
Defendant here attempts to have its cake and eat it too: impermissibly destroy the
evidence, and then prevent the jury from drawing negative inferences from that
improper conduct. In fact, Defendant goes a step further, moving this Court to
completely bar Plaintiff from even referencing Defendant’s sanctioned conduct,
seeking to pretend as though no evidence ever existed and that the Court’s Order
(Dkt. 75), is somehow superfluous. Such request is not based in law.
Defendant alleges that because this issue has already been addressed by the Court,
it does not need to be addressed further. This is not so. The Court’s Order of
December 5, 2019, (Dkt. 75), offered the following:
The jury will be permitted to hear and consider evidence from both parties
about Interstate’s failure to preserve the structural components (or make
them available for inspection) and how and to what degree Aspen American
was prejudiced by Interstate’s actions in that regard.
Dkt. 75, p. 18.
To pretend as though spoliation is not relevant would result in jury instructions
without a reason. Defendant is attempting to maximize its benefit from having
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spoliated evidence while reducing any possible negative inferences that may be
drawn from such actions. This defeats the purpose of a determination of spoliation
of evidence and should not be granted.
Plaintiff’s Opposition Brief (ECF No. 128), pp. 15-16.
Interstate replies by reiterating its position that an instruction regarding spoliation, which
the Court indicated it would give to the jury, is all that is necessary to ensure that Aspen
American’s spoliation argument is presented to the jury and that argument or evidence on that
point would be unduly prejudicial. According to Interstate:
Predictably, Plaintiff argues that the Court’s sanction is not enough. Plaintiff
wants to deny Interstate all opportunity to present a defense in this matter in order
to present Plaintiff’s position and turn what is a minor sanction into the crux of
the case and prevent Interstate from receiving a fair trial. Of course, Plaintiff is
free to notify the jury that Mr. Goes was not able to perform all of the inspection
activities he wanted to perform because the components were removed. Mr. Goes
is also free to testify about what evidence he would have been looking for if he
would have performed the inspection he wanted to perform. However, that is as
far as Plaintiff’s evidence should be permitted to go. To allow Plaintiff to go
further would be to impose a more harsh sanction on Interstate than the Court
deemed was warranted under the circumstances, would severely prejudice
Interstate at trial, and would ensure that Interstate does not receive a fair trial. As
such, the Court must limit Plaintiff’s presentation of evidence and its references to
the word “spoliation” and the negative connotation that would surely be carried
with it.
Defendant’s Reply (ECF No. 130), pp. 16-17.
Interstate’s concern about the negative connotation of the word spoliation and the impact
that evidence of spoliation might have on the jury is understandable; but it goes with the territory.
As Aspen American points out, the Court has already addressed the issue of spoliation,
concluded that Interstate did commit spoliation, and expressly held that both parties would be
permitted to present evidence on this point and that an appropriate jury instruction would be
provided to the jury. The Court did not hold that Aspen American would be precluded from
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presenting any evidence or argument on the issue of spoliation. Accordingly, Interstate’s motion
in limine is DENIED on this point.
N. Testimony, argument, comment or statements advancing Plaintiff’s claim
that Defendant was “grossly negligent.”
Interstate moves the Court to preclude Aspen American from presenting evidence or
argument on its claim for gross negligence, arguing as follows:
Interstate anticipates that Plaintiff, its counsel, or Plaintiff’s witnesses will attempt
to argue, suggest, or make comment that Interstate was grossly negligent in this
matter. However, Plaintiff, its counsel and Plaintiff’s witnesses should not be
allowed to argue, suggest, and or make any comment regarding Plaintiff’s belief
or claim that Interstate was grossly negligent in this case. Plaintiff’s sole purpose
for asserting a gross negligence claim in this case is because Plaintiff is seeking to
avoid the limitations of damages clause which was a part of the Warehouse
Contract between Plaintiff’s insured and Defendant.
Defendant’s Memorandum (ECF No. 106), p. 19.
In response, Aspen American insists that this section of Interstate’s motion in limine is an
improper attempt to preclude evidence of a claim that this Court has already ruled must be
presented to a jury. Aspen American argues as follows:
The primary claim of Plaintiff’s case in chief can be summarized in one simple
point that the jury must decide: whether the warehouse roof collapse was the
result of Defendant’s gross negligence. To somehow seek to prevent Plaintiff
from presenting the lynchpin issue in its case is bizarre, flawed on its face,
unfounded in relevant case law, and must be denied.
Defendant alleges that this evidence would somehow be prejudicial. This is a
clear tactic to attempt to avoid permitting the jury to find that Defendant was
grossly negligent. If successful, Defendant theorizes it would then be shielded by
alleged contractual limitations. The fear that the jury would not be able to
distinguish between the threshold of gross negligence and ordinary negligence is
baseless. This Court recognized the issue squarely when ruling on the parties’
summary judgment motions: “Genuine issues of material fact preclude a finding
that the limitation clause is enforceable as a matter of law. Fact issues exist
concerning the reasonableness of Interstate’s actions, i.e., whether they constituted
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gross negligence, and so Interstate is not entitled to summary judgment on the
issue of its ability to limit its liability.” (Dkt. 56, p. 19). “The issue of Interstate’s
alleged gross negligence must be determined by a jury. . . .” Id. at p. 27.
Plaintiff’s Opposition Brief (ECF No. 128), pp. 16-17 (citing and quoting Court’s March 13,
2019, Opinion and Order (ECF No. 56)). Aspen American insists that “it is for the jury to decide
whether Defendant’s conduct rose to the level of gross negligence.” Id., p. 17. Interstate’s reply
reiterates its argument that a jury instruction is all that is needed to present the issue of gross
negligence to the jury and that no evidence on that point is needed (and that admitting it would
unduly prejudice Interstate).
Aspen American is correct that Interstate’s request is bizarre, especially in light of this
Court’s prior rulings on the issue of gross negligence. The issue is one for the jury to decide and
the jurors must hear evidence in order to do so. Interstate’s motion in limine on this point
amounts to a disguised motion for partial summary judgment, since Interstate argues that its
actions did not amount to gross negligence as that term is defined by Michigan law. But as Aspen
American points out, this issue has already been addressed and decided. Accordingly, Interstate’s
motion in limine on this point is DENIED.
O. Testimony, Argument, Comment or Statements regarding the limitation
of damages clause contained in the warehousing agreement at issue in this
case.
Interstate moves the Court to preclude “Plaintiff, Plaintiff’s counsel, and Plaintiff’s
witnesses . . . from mentioning, arguing, testifying or otherwise informing the jury about the
limitation of damages clause contained in the warehousing agreement between the parties
pursuant to Federal Rule of Evidence 403.” Defendant’s Memorandum (ECF No. 106), p. 21.
Interstate argues as follows:
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On April 23, 2013, Plaintiff’s insured and Defendant entered into a warehousing
contract. The warehousing contract contained an explicit limitation of damages
clause which limited Defendant’s liability if Plaintiff’s stored goods were
damaged while stored in Defendant’s warehouse. . . .
First, the fact that there was a limitation of damages clause is not relevant to any
issue in this case. There is no dispute that the limitation of damages clause exists
in this case, that the clause is applicable if Defendant is found to be negligent, and
that the clause is not applicable if Defendant is found to be grossly negligent for
the warehouse collapse at issue in this case. Accordingly, the only issue that the
jury needs to determine is if the subject roof collapse was an Act of God under
Michigan law, whether Defendant was negligent and such negligence was the
proximate cause of the roof collapse, or, if Defendant was negligent, did
Defendant’s actions amount to gross negligence. The limitation of damages clause
has no bearing weather [sic] o[r] not Defendant was negligent (or grossly
negligent) or not [sic]. As such, the limitation of damages clause is not relevant
pursuant to Federal Rule of Evidence 402 and such evidence should be excluded
at trail.
Additionally, Defendant anticipates that Plaintiff will attempt to introduce the
limitation of damages clause at trial because of Plaintiff’s claim of gross
negligence. As noted by the Court during summary judgment proceedings, if
Defendant is found to have been simply negligent, then the limitation of damages
clause in this case will limit Plaintiff’s recovery. However, if Plaintiff can
convince the jury that Defendant was grossly negligent in preventing the
warehouse roof collapse, then the limitation of damages clause will not affect
Plaintiff’s recovery. As such, by mentioning the limitation of damages clause,
which is irrelevant to Defendant’s alleged negligence, Plaintiff can attempt to
inflame the passion and sympathy of the jury and prejudice Defendant by
indicating how much the limitation of damages clause in the warehousing contract
would limit Plaintiff’s recovery of its claimed full damages. Therefore, Plaintiff,
Plaintiff’s counsel, and Plaintiff’s witnesses should be barred from mentioning,
arguing, testifying or otherwise informing the jury about the limitation of damages
clause contained in the warehousing agreement between the parties pursuant to
Federal Rule of Evidence 403.
Id., pp. 20-21.
Aspen American responds by arguing that the limitation of damages clause is part of the
warehouse contract between the parties and insisting that “[t]here is no question that the entirety
of the contract between Plaintiff and Defendant, including the limitations of damages clause, is
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relevant.” Plaintiff’s Opposition Brief (ECF No. 128), p. 18. Aspen American insists that “[t]he
jury, as finder of fact, is entitled to hear all relevant evidence, including the terms of the
agreement of the parties.” Id., p. 19.
Interstate replies by arguing that the warehouse agreement or contract between the parties
should be excluded from the evidence altogether because it is undisputed that a contract existed
and that Aspen American has alleged that Interstate breached it. Therefore, the
contract–including the limitations clause–is irrelevant to the issues the jury must decide and its
introduction into evidence would unduly prejudice Interstate because it could potentially cause
the jury to determine that Interstate was grossly negligent not based on the evidence of
Interstate’s conduct but instead on the fact that Aspen American could not recover as much in
damages if the jury were to conclude that Interstate was only liable for ordinary negligence. But
as Interstate points out, “by mentioning the limitation of damages clause, which is irrelevant to
Defendant’s alleged negligence, Plaintiff can attempt to inflame the passion and sympathy of the
jury and prejudice Defendant by indicating how much the limitation of damages clause in the
warehousing contract would limit Plaintiff’s recovery of its claimed full damages.” Defendant’s
Reply (ECF No. 130), p. 21. Interstate concludes by arguing as follows:
[D]espite the fact that the Agreement should not be presented to the jury, Plaintiff
seeks to introduce it at trial because, as indicated in Interstate’s Memorandum of
Law in Support of its Motion in Limine, Plaintiff wants to argue or comment
about the limitation of damages clause in front of the jury to engender sympathy
so that the jury will find that Interstate was grossly negligent. Plaintiff hopes that
the jury will find that the limitation of damages clause in the Agreement is unfair,
will abandon logic and reason, and will find that Interstate was grossly negligent
so that Plaintiff can avoid the limitation of damages clause. Because of this,
namely engendering sympathy, the Agreement’s probative value is greatly
outweighed by the risk of prejudice at trial. This is especially true in light of the
fact that there is no dispute about the existence of the Agreement or the
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Agreements contents. As such, even if the Agreement was relevant, which it is
clearly not, the Agreement should be excluded at trial pursuant to F.R.E 403.
Id., p. 20.
The Court agrees with Interstate that the warehouse contract itself is not relevant and the
introduction of the contract, containing the limitations clause, would be unduly prejudicial. The
jury’s duty will be to determine whether Interstate was negligent or grossly negligent and the
limitations clause in the parties’ contract is not relevant to that issue. As Interstate points out, if
the jury finds that Interstate was not negligent, the limitations clause is rendered moot; if the jury
finds Interstate liable for ordinary negligence, the limitations clause would apply to limit Aspen
American’s recovery; and if the jury finds that Interstate was grossly negligent, the limitations
clause would not apply and the jury will assess damages accordingly. Therefore, the contract
itself is irrelevant–all the jury needs to know is the undisputed fact that the parties entered into a
contract for Interstate to store Aspen American’s insured’s food products and that Aspen
American alleges that Interstate breached that contract by negligently causing the destruction of
those products. Whether the limitation clause applies is not an issue the jury needs to decide. It
will be decided implicitly by the jury’s verdict on the issues of negligence and gross negligence,
which the jurors must render based only on their assessment of Interstate’s conduct, not on the
amount of damages Aspen American may or may not be able to recover as a result of that verdict.
Accordingly, the Court GRANTS Interstate’s motion in limine on this point.
P. Testimony, Argument, Comment or Statements implying than the
substantive law of any other jurisdiction, other tha[n] Michigan Law,
should apply to this case.
Interstates moves the Court to preclude “Plaintiff, Plaintiff’s counsel and Plaintiff’s

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witnesses . . . from commenting, arguing, testifying or making any statements that the substantive
law of any other state other than the laws of Michigan should be applied in this case. During the
summary judgment proceedings in this case, both parties agreed that Michigan law controlled in
this case. In fact, the Court noted the parties[’] agreement in [its] summary judgment order and
found that Michigan law would apply in this case. Therefore, Plaintiff should be barred from
arguing or attempting to applying the substantive law of any other state other than the State of
Michigan.” Defendant’s Memorandum (ECF No. 106), p. 21-22.
For once Aspen American does not disagree with Interstate’s position. In keeping with
the tenor of this litigation, however, Aspen American does not simply concede the point, instead
responding as follows: “Plaintiff concedes that Michigan law applies to this case. By making this
contention, Plaintiff nonetheless maintains that the Federal Rules of Civil Procedure and the
Federal Rules of Evidence also apply to this case.” Plaintiff’s Opposition Brief (ECF No. 128), p.
19.
In reply, Interstate makes an additional (and equally unnecessary) point:
Plaintiff does not appear to object to Interstate’s sixteenth Motion in Limine
regarding the fact that Michigan law controls the substantive issues in this case.
Plaintiff’s argument, to the extent there is an argument, is that the Federal Rules
of Civil Procedure and the Federal Rules of Evidence also apply in this case.
However, Interstate’s sixteenth Motion in Limine only applies to the substantive
law governing this case. The Federal Rules of Civil Procedure and the Federal
Rules of Evidence are procedural laws which Interstate agrees control the
procedural aspects of this case.
Defendant’s Reply (ECF No. 130), p. 20. Both sides are correct: Michigan law applies to the
substantive claims, which both sides concede, and the Federal Rules of Civil Procedure and the
Federal Rules of Evidence apply to the procedural aspects of the trial. So why was the Court

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required to spend time reviewing the parties’ briefs on this issue and addressing the matter?2 In
any event, Interstate’s motion in limine is GRANTED on this point and neither party may present
evidence or argument that any law other than Michigan state law applies to the substantive
claims in this case (assuming either side was going to do so). Moving on.
Q. Testimony, argument, comment or statements based on pure speculation
and conjecture and are not supported by known facts or evidence.
Lastly, Interstate moves the Court to preclude “Plaintiff’s counsel or Plaintiff’s witnesses
[from] attempt[ing] to introduce evidence or testify about facts or evidence which are not known
or supported in this case[]” on the basis that “speculation and conjecture are not sufficient to
support negligence under Michigan law.” Defendant’s Memorandum (ECF No. 106), p. 22
(citation omitted). Interstate insists that “based on well-settled Michigan law, and Federal Rules
of Evidence 401, 402 and 403, Plaintiff, Plaintiff’s counsel, and Plaintiff’s witnesses should be
barred from introducing evidence or testimony which is based on speculation and conjecture.” Id.
Aspen American responds by arguing as follows:
Defendant once again fails to mention any specific piece of evidence . . . . Instead,
it merely presents the broad assertion that speculation and conjecture are not
sufficient to support a theory of negligence.
As fully briefed in Plaintiff’s Motion in Limine #8 . . . , Plaintiff’s witnesses, both
2

As noted above, Interstate repeatedly accuses Aspen American of lodging unnecessary
objections to its motion in limine simply for the sake of objecting, which is largely true. But on
this point both Interstate and Aspen American engage in unnecessary quibbling over a matter on
which they agree, playing a game of one-upmanship over the applicability of the Federal Rules.
Rather than simply stating its agreement that Michigan law applies, Aspen American felt
compelled to jump in and add that the Federal Rules also apply, causing Interstate to poke back
by arguing, “Yes, but the Federal Rules only apply to procedural matters!” Neither party has put
much effort at all into picking its battles, opting instead to throw all manner of issues–real and
concocted–into their motions in limine, and to contest or argue about issues on which there is no
real dispute.
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expert and lay, will necessarily offer certain speculations and implications due to
Defendant’s spoliation of evidence. And as more fully explained in Section XIII
supra, to pretend as though spoliation is not relevant, and therefore speculations
and implications are barred from being made, would result in Defendant
benefitting from spoliating evidence and reducing any possible negative
inferences that may be drawn from such actions.
Plaintiff’s Opposition Brief (ECF No. 128), p. 19.
In its reply, Interstate does not completely agree with nor completely dispute Aspen
American’s argument:
[W]hile Interstate agrees that Plaintiff’s witnesses can testify about the evidence
for which they would have looked if they had performed a through inspection
during the numerous times they were onsite. However, Plaintiff’s witnesses
should not be allowed to testify what they “believe” or “think” the evidence would
have shown. Such testimony would violate the Court’s sanction order, would
severely prejudice Interstate, and would deny Interstate a fair trial.”
Defendant’s Reply (ECF No. 130), p. 21. Once again, both sides have a point. Aspen American is
correct that it is proper for witnesses to offer opinions or assessments under certain
circumstances; and Interstate is correct that opinions that are based solely on speculation or
conjecture are rarely admissible. In this instance Aspen American’s argument that Interstate’s
motion in limine on this point is overly broad is correct. Whether any witness, expert or lay, may
offer opinion testimony depends on the nature and context of that witness’ testimony (and, of
course, their personal knowledge of the facts about which they are testifying). This is not an issue
that can be addressed now and a blanket order precluding Aspen American from presenting any
testimony containing opinion, speculation or conjecture is unwarranted. Instead, such issues can
only be resolved during trial upon objection of a party to the testimony of a witness. Accordingly,
the Court DENIES Interstate’s motion in limine on this point.

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II. Motion for Separation of Witnesses.
In addition to its motion in limine, Interstate filed a separate motion for separation of
witnesses, stating as follows:
Defendant, Interstate Warehousing, Inc., by counsel, hereby respectfully moves
the Court, pursuant to Rule 615 of the Federal Rules of Evidence, for an order
separating each witness on Plaintiff’s witness list and any rebuttal witnesses called
by Plaintiff, excluding the designated representative of Aspen American Insurance
Co. who will be representing Plaintiff at trial, during the trial of this matter and
precluding such witnesses from remaining inside the courtroom during any
portion of the trial apart from the time each witness must be in the courtroom to
give his or her testimony. Defendant further requests that the Court instruct the
witnesses to refrain from discussing with any other witnesses what his or her
testimony was or is expected to be or what occurred inside the courtroom during
that witness’s testimony.
Defendant’s Motion for Separation of Witnesses (ECF No. 107), p. 1. This, of course, is a
common and perfunctory pretrial request and Aspen American does not oppose it (having not
filed a response to the motion). Accordingly, the motion for separation of witnesses is
GRANTED.
III. Motions in Limine and Motion to Correct filed by Plaintiff Aspen American.
Aspen American filed eight motions in limine (ECF Nos. 108 through 115, inclusive) and
a Motion for Leave to Correct Its Motion In Limine #7 (ECF No. 116). In the latter motion,
Aspen American requests leave to attach an exhibit to its motion in limine #7 that was
inadvertently not included when the motion was filed. Interstate did not file a response to the
motion and so it is unopposed. The Court GRANTS the motion. The exhibit, attached as Exhibit
1 to Aspen American’s motion (and docketed as ECF No. 116-1) is admitted and will be
considered by the Court when addressing Aspen American’s motion in limine #7.

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A. Plaintiff’s Motion in Limine #1–Motion in Limine to Exclude any
Evidence in Support of Defendant’s “Act of God” Affirmative Defense.
Aspen American moves the Court “to bar any and all voir dire, statement, testimony,
questioning, impeachment, cross-examination, expert testimony, or argument, by innuendo or
otherwise, at any time during the course of trial to convey to the jury information regarding or
making references or comparison that an act of God may have contributed to or was the
proximate cause of the injuries sustained by Plaintiff.” Plaintiff’s Motion in Limine #1 (ECF No.
108), p. 1. Interstate, of course, has asserted the Act of God affirmative defense, claiming it is not
liable for the roof collapse and subsequent destruction of the food products because those losses
were the result of an act of God, i.e., the alleged historic snowfall, not the result of any
negligence on the part of Interstate. Aspen American, however, argues that Interstate should be
precluded from presenting evidence or argument in support of this defense because it is
unsupported under Michigan law. Aspen American argues as follows:
Michigan law recognizes “act of God” as an affirmative defense that requires a
defendant to show that the roof collapse . . . proceed[ed] from natural causes and
cannot be anticipated and provided against, such as unprecedented storms, or
freshets, lightning, earthquakes, etc.” Golden & Boter Transfer Co. v. Brown &
Sehler Co., 177 N.W. 202, 204 (Mich. 1920).
There is little argument as to the material facts themselves in this matter: the snow
accumulation on the roof of Defendant’s warehouse gradually increased over the
weeks leading up to the collapse itself. Defendant knew that heavy snow
accumulations could cause the roof to collapse. Further, defendant had the ability
to shore the roof from the inside or remove snow from the roof to reduce the
weight on the roof.
As such, Defendant should be barred from presenting evidence to the factfinders
that it could not have anticipated or provided against this snow. Human
agency–that is, the conscious decision to allow the snow to continue to
accumulate atop the roof–at minimum contributed to Aspen’s losses. “Act of
God” must be eliminated from Defendant’s arsenal.
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Id., p. 2.
Interstate responds by arguing as follows:
At the heart of this issue is the question of whether the snow storm(s) prior to the
subject collapse was/were unprecedented. Interstate argues that the storms were
unprecedented and not anticipated while Plaintiff claims the opposite. Which
party’s position is correct is a quintessential question that must be resolved by the
jury. The meteorological data, which will be presented at trial, clearly shows that
the region where the subject collapse occurred experienced one of the highest
snowfalls in history. As such, the historical data indicates that the snow storm
giving rise to the subject collapse could be deemed “unprecedented” by the trier of
fact. Plaintiff claims that the snowfall was not unprecedented, but fails to provide
any cogent argument that shows why the storm was not unprecedented. The best
Plaintiff can do is argue that the snow fall giving rise to subject collapse occurred
for over a period of weeks. This argument might go to the anticipation element of
the unprecedented storm, but by no means proves that the storm could be
anticipated.
This again is a question for the jury to decide. To perform its function, the jury
must be presented the evidence. If Defendant is successful in carrying its burden,
there is sufficient evidence for the jury to find that the subject collapse was an
“Act of God.”
Defendant’s Response to Plaintiff’s Motion in Limine #1 (ECF No. 119), pp. 2-3.
In reply, Aspen American reiterates its arguments that Interstate should be precluded from
presenting its Act of God defense because it has no evidence to support it and because Interstate
spoliated evidence thereby preventing either side from determining the proximate cause of the
roof collapse. Plaintiff’s Reply (ECF No. 141), pp. 1-3.
This Court declines Aspen American’s invitation to preclude Interstate from presenting
its Act of God defense, since doing so would require the Court to find facts and weigh the
evidence. As the Court stated in its previous order ruling on Aspen American’s motion for partial
summary judgment, “[i]n the present case, whether an Act of God was the sole proximate cause

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of the injury underlying this lawsuit is for a jury to decide, since Interstate’s affirmative defense
is intertwined with the issue of its alleged gross negligence.” Opinion and Order of March 13,
2019 (ECF No. 56), p. 19. Accordingly, Aspen American’s motion in limine #1 is DENIED.
B. Plaintiff’s Motion in Limine #2–Motion in Limine to Exclude
Unauthenticated Climatological or Meteorological Data.
Aspen American moves the Court “to bar evidence Defendant may attempt to admit
relating to the weather conditions that existed both at the time Plaintiff suffered its damages and
the months leading up to said event.” Plaintiff’s Motion in Limine #2 (ECF No. 109), p. 1. Aspen
American argues as follows:
In its responses to Plaintiff’s discovery requests, and throughout its motion
practice, Defendant has referenced documents that either purport to explain
weather conditions that existed in the months leading up to the Roof Collapse, or
purport to provide historical context for annual snowfall in “Grand Rapids Area,
MI.” See Defendant’s Designation of Evidence in Support of Motion for Partial
Summary Judgment (Dkt. 37), Exhibits G and H. However, at no point has
Defendant identified a witness that can lay proper foundation establishing that
these documents accurately and verifiably provide snowfall data for Grand
Rapids, MI, let alone that this data can somehow be traced back to the snowfall at
the warehouse location specifically.
Moreover, admission of these documents without proper authentication, or
without a witness to explain how the data relates to the warehouse location itself,
would unfairly prejudice Plaintiff and mislead the jury, encouraging them to
simply apply the broad snowfall data to the warehouse location itself without the
requisite corroboration of a climatological/meteorological expert or the individual
who compiled the data him/herself.
Id., p. 2.
In response, Interstate contends that the climatological data at issue is admissible on
several bases, including pursuant to Federal Rule of Evidence 901 because Interstate “may call an
individual from the NOAA to testify at trial to authenticate the subject climatological data

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previously produced by Interstate[,]” that the data is self-authenticating pursuant to Fed.R.Evid.
902(5) as a publication of an official agency (the NOAA), and/or that this Court could take
judicial notice of the document pursuant to Federal Rule of Evidence 201. Defendant’s Response
(ECF No. 120), pp. 1-5. Interstate also points out that Aspen American “has been in possession
of the historical weather data for upwards of five (5) years and its purported meteorological
expert, Mark McGinnis, utilized the same historical weather data, as well as additional data, in
his expert witness report. Accordingly, if deemed necessary, Plaintiff can have Mr. McGinnis
give context to the historical weather data in his testimony at trial.” Id., p. 5.
In reply, Aspen American reiterates its argument that “the identification of the ‘Grand
Rapids Area’ does little to aid the jury in determining how much snowfall was at the precise
location where the Roof Collapse occurred.” Plaintiff’s Reply (ECF No. 142), p. 1.
Interstate’s arguments are well taken and sufficient to defeat Aspen American’s motion in
limine #2. But there is another more fundamental reason to deny it, which is that Aspen
American’s objection goes to the weight to be accorded the evidence rather than its admissibility.
Accordingly, Aspen American’s motion in limine #2 is DENIED.
C. Plaintiff’s Motion in Limine #3–Motion in Limine to Exclude Expert
Opinions by Persons Who Have not Been Timely Disclosed.
Aspen American moves the Court “[p]ursuant to Federal Rules of Evidence 104(a) and
Federal Rules of Civil Procedure 26 and 37, . . . for this Court to preclude Interstate . . . from
offering at trial any expert witnesses. Defendant has never disclosed any expert witnesses in this
matter.” Plaintiff’s Motion in Limine #3 (ECF No. 110), p. 1.
Interstate responds by stating that it “does not object to the principle that Defendant

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should not be permitted to call any witness who was not or has not been disclosed in this matter.
However, Interstate does object to Plaintiff’s Motion in Limine as it pertains to Lisa
Stefanovsky.” Defendant’s Response to Plaintiff’s Motion in Limine #4 (ECF No. 122), p. 1.
Interstate explains that:
Lisa Stefanovsky is a Health Officer with the Ottawa Department of Public
Health. On or about March 11, 2014, one day after the roof collapse giving rise to
this matter, Ms. Stefanovsky authored a letter advising Interstate that the certain
food products stored in the warehouse at the time of the collapse, including the
food owned by Plaintiff’s insured, was seized by the Michigan Department of
Agriculture. In addition, Ms. Stefanovsky’s March 11, 2014 letter directed
Interstate to destroy the seized food product and remove the collapsed portion of
the warehouse roof.
Plaintiff’s attempt to exclude Ms. Stefanovsky from testifying must be denied.
First, Plaintiff, or Plaintiff’s counsel, was provided Ms. Stefanovsky’s March 11,
2014 letter during discovery in this case. As such, Ms. Stefanovsky was disclosed
during discovery and Plaintiff, or Plaintiff’s counsel, knew, or should have
known, that she had information relevant to Plaintiff’s claims and Interstates
defenses in this case. As such, Plaintiff’s claim that Ms. Stefanovsky was not
disclosed and that her testimony would surprise and prejudice Plaintiff is
completely baseless.
Additionally, one of the claims asserted by Plaintiff against Interstate is that
Interstate committed conversion with respect to Plaintiff’s insured’s food product
stored at the Warehouse. Ms. Stefanovsky’s testimony in this case is highly
relevant in this case, in particular, as it relates to Plaintiff’s conversion claims
asserted against Interstate. Ms. Stefanovsky’s testimony will clearly demonstrate
that Interstate did not convert Plaintiff’s insured’s food products in this case.
Even assuming that Ms. Stefanovsky was not disclosed in discovery, which she
clearly was, her testimony is highly relevant, extremely probative, and Ms.
Stefanovsky should be allowed to testify at the trial of this matter.
Furthermore, Ms. Stefanovsky is the author of the March 11, 2014 letter. As such,
Ms. Stefanovsky is the record custodian who can, if necessary, provide testimony
to authenticate the Ottawa Department of Public Health Record for admission at
trial. As such, even if Ms. Stefanovsky does not provided any substantive
testimony at the upcoming trial of this matter, she should be permitted to testify
for purposes of authenticating the March 11, 2014 letter from the Ottawa
Department of Public Health at trial.
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Id., pp. 1-3.
In reply, Aspen American argues as follows:
Defendant argues that it should be spared the consequences of its failure to
disclose Lisa Stefanovsky pursuant to Fed. R. Civ. P. 26 because, during the
course of discovery, it provided to Plaintiff a letter authored by Ms. Stefanovsky.
Dkt. 122 at 2. Notably, nowhere in the Response does Defendant even attempt to
convince the Court that it complied with the requirements of the Rule.
Fed. R. Civ. P. 26 has no exception for instances where a party provides a letter
written by a third party during the course of discovery to the opposing party but
fails to identify the letter author as a potential witness. Nor does Defendant offer
any case law in its Response to support this peculiar position.
Plaintiff’s Reply (ECF No. 133), p. 1.
Interstate argues that Ms. Stefanovksy’s testimony would be relevant to Aspen
American’s conversion claim. However, on July 30, 2021, while the motions in limine were
pending, the Court ruled on Interstate’s motion for partial summary judgment and granted the
motion as to Aspen American’s conversion claim. Opinion and Order (ECF No. 144). Since there
is no conversion claim remaining in this case, Ms. Stefanovsky’s testimony is not needed on that
issue. Accordingly, Aspen American’s motion in limine will be GRANTED in part and DENIED
in part. The Court holds that neither party will be permitted to call any expert witness who has
not been timely disclosed. However, to the extent that Ms. Stefanovsky’s testimony would be
required to authenticate her letter, the motion is denied.3
D. Plaintiff’s Motion in Limine #4–Motion in Limine to Exclude Testimony
of Witnesses Who Have Not Been Timely Disclosed.
3

A stipulation by the parties that the letter is authentic would obviate the need for Ms.
Stefanovsky’s appearance at trial. The Court encourages the parties to put forth a more concerted
effort to stipulate to the admission of as many exhibits as possible when they construct a Final
Pretrial Order.
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Aspen American moves the Court “ to preclude Interstate . . . from offering testimony
from any witnesses that it has not yet disclosed. Plaintiff seeks to prevent Defendant from
offering at trial any testimony from witnesses who have not been disclosed within the required
time. Under Fed. R. Civ. P. 26 and 37, parties cannot introduce testimony at trial by a witness
that was not disclosed prior to the discovery deadline and within a timely manner.” Plaintiff’s
Motion in Limine #4 (ECF No. 111), p. 1. In the body of its motion, Aspen American again
addresses the testimony of Ms. Stefanovsky and argues that it should be excluded due to
Interstate’s alleged failure to properly identify her as a witness. Id., pp. 2-5. Aspen American
does not challenge any other specific witnesses, but contends that Interstate “has failed to
disclosure [sic] the identity of Stefanovsky until the eve of trial. Accordingly, Defendant should
be precluded from calling Stefanovsky, or anyone else not timely disclosed, as witnesses at trial.”
Id., p. 5.
The Court has already ruled on the admissibility of Ms. Stefanovsky’s testimony, limiting
it as outlined above. In that regard, Aspen American’s motion is moot. However, as to the basic
proposition that Interstate “should be precluded from calling [any witness] not timely disclosed”
is a valid request that, once again, applies equally to both sides. To that extent, the motion is
GRANTED and neither party shall be permitted to call any witness not previously and properly
disclosed.
E. Plaintiff’s Motion in Limine #5–Motion in Limine to Exclude Reference
to Snow Removal Policies.
Aspen American moves the Court “to bar any and all voir dire, statement, testimony,
questioning, impeachment, cross-examination, expert testimony, or argument, by innuendo or

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otherwise, at any time during the trial that conveys to the jury information regarding, making
references to, or comparing alleged policies and procedures that Interstate . . . had in place for
snow removal at the time of the incident.” Plaintiff’s Motion in Limine #5 (ECF No. 112), p. 1.
Aspen American elaborates as follows:
Not once has Defendant come forward with evidence of the existence of any
policy and procedure regarding snow removal or snow events in effect at the time
of the incident throughout the course of discovery in this matter. In fact,
Defendant’s employee, Nate Tippmann (“Tippmann”), testified that Defendant
did not have a policy or procedure in effect regarding snow removal or snow
events in 2014. Defendant has blatantly admitted this point in past filings: “While
there were no written procedures or instructions for snow removal from the roofs
of any of Defendant’s facilities prior to March 2014, maintenance personnel at the
Hudsonville warehouse would routinely remove snow from around the openings
of scuppers (drains) and drainage paths when the accumulation would exceed an
estimated ten (10) inches.” Defendant’s Memorandum of Law in Support of
Defendant’s Motion for Partial Summary Judgment (Dkt. 36) at 3. Defendant
cannot now introduce a policy or procedure regarding snow removal or snow
events at the time of the incident at the trial of this matter, and this Court should
enter an order barring Defendant from doing so at trial.
Id., p. 2 (italics in original).
In response, Interstate contends that:
Plaintiff’s argument that Defendant never provided evidence of a policy or
procedure with regard to snow removal during the pendency of this litigation
clearly misstates the evidence and is not supported by admissible evidence
developed in this matter. Plaintiff cites to the Deposition of Nate Tippmann dated
June 11, 2015 to support this statement; however, a reading of the deposition
transcript shows that Mr. Tippmann, in reality, stated that Interstate did not have
formal written policies and/or programs in place regarding snow event response
or snow removal. See PLAINTIFF’S EXHIBIT 5, DEPOSITION OF NATE
TIPPMANN DATED JUNE 11, 2015 at page 250, lines 2-14. However, earlier in
the same deposition, Mr. Tippmann described the informal verbal snow removal
policies, those being that warehouse personnel would routinely remove snow from
around the opening of the scuppers (drains) and drainage paths when the
accumulation would exceed an estimated ten (10) inches. See PLAINTIFF’S
EXHIBIT 5, DEPOSITION OF NATE TIPPMANN DATED JUNE 11, 2015 at
page 119, lines 5-8; 121, lines 1-4. See also PLAINTIFF’S EXHIBIT 6 AT 47,
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LINES 15-18. Further, Plaintiff’s own purported snow removal expert
acknowledged in his deposition various verbal policies Interstate Warehousing
had in place at the time of the collapse with respect to addressing and monitoring
snow loads on the warehouse roof. See DEPOSITION OF JEREMY SWENSON
at page 43, lines 14-16, page 44, lines 10-20; [Exhibit A]. Therefore, Plaintiff’s
claim that Interstate had no policies for snow removal is not supported by the
evidence developed in this case. In fact, the opposite is true, and Plaintiff’s own
expert, Mr. Swenson, has so acknowledged this in his deposition.
Defendant’s Response to Plaintiff’s Motion in Limine #5 (ECF No. 123), p. 2 (italics and
capitalization in original; boldface added).
In reply, Aspen American concedes that Interstate can introduce evidence of its informal
procedures for snow removal, but continues to maintain that Interstate cannot present evidence at
trial of any formal written policies or procedures (because none existed):
Defendant concedes in its Response that “it did not have a written snow removal
policy in place, and that it has not produce[d] a written snow removal policy in
discovery.” Dkt. 123 at 3. Defendant also agrees that it should not be allowed to
introduce evidence of a written policy at trial. Id. Plaintiff concurs with these
admissions by Defendant. Based upon these two concessions alone, Plaintiff’s
underlying Motion should be granted.
Even if the Court grants Plaintiff’s underlying Motion, Defendant will be free to
present evidence that its conduct did not rise to the level of gross negligence. An
order preventing Defendant from making references or comparisons to snow
removal policies or procedures would not necessarily prevent its witnesses,
whether employees, officers, or the like, from testifying to the discussions they
had amongst themselves regarding the removal of the snow during the date and
time in question, or at any point prior. But to now allege after over six years of
litigation that these verbal discussions rose to the level of “policies” or
“procedures” and then to characterize them as such within the purview of the jury
would be highly prejudicial to Plaintiff.
Plaintiff’s Response (ECF No. 134), pp. 1-2 (italics added).
Once again there does not appear to be any disagreement here. As Interstate concedes in
its response brief:

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Interstate agrees that it did not have a written snow removal policy in place on the
date of the subject accident, and that it has not produce a written snow removal
policy in discovery. Therefore, at most, Interstate should not be allowed to
introduce evidence of a written snow removal policy. However, barring Interstate
from presenting any evidence of its verbal snow removal policies would be
extremely prejudicial and would, essentially, prevent Interstate from providing
any defense against Plaintiff’s claim in this matter.
Defendant’s Response to Plaintiff’s Motion in Limine #5 (ECF No. 123), p. 3. So Interstate
concedes that it cannot introduce evidence of any formal or written snow removal policy, but
contends that it can still present evidence of its informal procedures for snow removal, which is
correct. This evidence, obviously, is relevant to the issues in this case, especially the linchpin
claims of negligence and gross negligence. Accordingly, Aspen American’s motion in limine on
this point is GRANTED in part (precluding Interstate from mentioning or presenting any
evidence of a formal snow removal policy or written procedure) and DENIED in part (permitting
Interstate to present evidence and testimony regarding its informal procedures for dealing with
excessive snow accumulation on the warehouse roof.)
F. Plaintiff’s Motion in Limine #6–Motion in Limine to Exclude Defendant’s
Untimely Document Production.
Aspen American moves the Court “to bar any and all voir dire, statement, testimony,
questioning, impeachment, cross-examination, expert testimony, or argument, by innuendo or
otherwise, at any time during trial that conveys to the jury information stemming from
Interstate[’s] . . . untimely, amended discovery responses (and documents produced therewith).
Further, Plaintiff moves for an order from this Court barring Defendant’s use or citation to
documents not produced in discovery, including but not limited to Document 67-1 (email from
Ralph Den Hartigh); Document 67-3 (Affidavit of Nate Tippmann); Document 67-3, Exhibit A

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(unknown log); and Document 67-3, Exhibit B (letter).” Plaintiff’s Motion in Limine #6 (ECF
No. 113), p. 1. Aspen American argues that these documents should be excluded from evidence
because they were not timely disclosed during discovery, which it notes “closed on September
28, 2019.” Id., p. 3. The documents at issue were submitted by Interstate as part of its response in
opposition to Aspen American’s motion for sanctions for spoliation, which this Court ruled on in
an Opinion and Order entered on December 5, 2019 (ECF No. 75). As Aspen American correctly
points out, the Court denied Aspen American’s motion to strike the untimely exhibits because the
Court did not rely on them when ruling on the motion for sanctions. Aspen American renews its
objection to the documents now on the grounds that they were not disclosed timely pursuant to
Fed.R.Civ.P. 26 and 37. Aspen American argues as follows:
On April 17, 2019, this Court granted Aspen leave to file a motion related to
Interstate’s spoliation of evidence. . . . Aspen filed its spoliation motion on May 1,
2019. . . . Interstate filed its response to Aspen’s spoliation motion on May 16,
2019. . . . In its responsive filing, Interstate relied on the Untimely Documents that
were never disclosed during discovery.
On May 20, 2019, without leave of Court, Interstate served Aspen with
Defendant’s Responses to Plaintiff’s Requests for Admission . . . and Defendant’s
Responses to Plaintiff’s Request for Documents . . . , which Aspen received by
mail on May 23, 2019.
Plaintiff’s Motion in Limine #5 (ECF No. 113), p. 3.
In response, Interstate argues that the documents at issue were not untimely, but were
proper supplemental discovery responses pursuant to Fed.R.Civ.P. 26: “Rule 26(e) simply
requires parties to supplement or correct its responses “in a timely manner if the party learns that
in some material respect the disclosure or response is incomplete or incorrect, and if the
additional or corrective information has not otherwise been made known to the other parties

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during the discovery process or in writing.” Defendant’s Response to Plaintiff’s Motion in
Limine #6 (ECF No. 124), p. 4 (citing Fed. R. Civ. P 26(e)(1)(A)). Interstate also argues that
even assuming the disclosures were untimely, Aspen American cannot claim that it is prejudiced
by the alleged late disclosure:
[A]ll the subject documents were formally produced in discovery on May 20,
2019, nearly two (2) years ago. As such, Plaintiff had ample time and
opportunity2 to examine witnesses or seek additional discovery related to the
information in the alleged untimely responses. However, Plaintiff simply elected
to take no action and instead appears to attempt to prejudice defendants by
seeking outright exclusion of relevant evidence which it had in its possession
since May 2019.
Id., p. 5.
In reply, Aspen American continues to assert that Interstate’s discovery responses were
untimely. Aspen American also argues that its motion should be granted because “Plaintiff has
been severely prejudiced, and Defendant provided no justification for its failure to provide timely
and proper discovery responses.” Plaintiff’s Reply (ECF No. 135), p. 3. Aspen American doesn’t
explain exactly how it has been unduly prejudiced by the (arguably) untimely disclosure of
documents it has had in its possession for over two years, it simply states in conclusory fashion
that it has been. The Court also notes that Aspen American raises no issue as to the relevance of
the documents at issue–instead moving to exclude them altogether because they were disclosed
after the close of formal discovery. The Court concludes that the documents at issue are
admissible at trial and DENIES Aspen American’s motion in limine #6.
G. Plaintiff’s Motion in Limine #7–Motion in Limine to Preclude Objections
to Admission of FEMA Snow Load Safety Guide Pursuant to FRE 902.
Aspen American moves the Court “ to preclude all objections to admission of FEMA’s

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Snow Load Safety Guide (FEMA p-957/January 2013–Catalog No: 13052-4) into evidence that
may be raised by Interstate . . . .” Plaintiff’s Motion in Limine #7 (ECF No. 114), p. 1. Aspen
American argues as follows:
Plaintiff produced the expert report of Jeremy Swenson, CSP (“Swenson”) during
the discovery of this case to review case documents and opine on the
reasonableness of Defendant’s conduct with respect to snow and ice removal (or
lack thereof) in the weeks leading up to the Roof Collapse. Swenson relied on
multiple sources in conjuring up [sic] his opinions, one such resource being the
FEMA P-957–Snow Load Safety Guide (“FEMA Guide”), which was attached to
Swenson’s expert report and previously produced to Defendant. A January 2013
copy of the FEMA Guide is attached hereto as Exhibit 1.
Aspen respectfully requests that this Court admit the FEMA Guide prior to trial.
In doing so, the Court would relieve FEMA employees from the burden and
expense of testifying at trial for the sole purpose of laying the foundation to admit
a self-authenticating document. The admission of this exhibit would also conserve
judicial resources by shortening the length of trial, as the live testimony of an
additional foundation witness would no longer be necessary.
Plaintiff’s Motion in Limine #7 (ECF No. 114), pp. 1-2.
In response, Interstate argues as follows:
At the outset it is highly unusual for a party to seek to prohibit a party from stating
an objection to the admission of evidence or testimony at a trial. The purpose of a
Motion in Limine is not to ask a court to force a party to waive . . . potential
appeal issues by prohibiting the party from raising an objection. “The purpose of a
motion in limine is to prevent the display of potentially prejudicial material to the
jury until the trial court has the opportunity to rule on its admissibility.” Lehman
v. State, 777 N.E.2d 69, 76 (Ind. Ct. App. 2002). As such, since Plaintiff’s Motion
in Limine #7 does not actually seek to exclude any evidence, it should be den[ied]
in its entirety.
Additionally, Interstate anticipates that Plaintiff will attempt to argue or otherwise
convey to the jury that the FEMA Guide prescribes the legal standard of care in
this matter. If fact, Plaintiff essentially admits in Motion in Limine #7 that
“According to Swenson, the FEMA Guide is used in the snow and ice removal
industry as an industry standard by property owners, building and facility
managers, and snow removal contractors.” As such, Interstate firmly believe that
Plaintiff intends to use the FEMA Guide to blur the lines between the practices
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and procedures contained in the FEMA Guide, and the legal standard of care for
negligence. In order to do so, Plaintiff has to prevent Interstate from objecting to
the introduction of the FEMA Guide at trial.
Defendant’s Response to Plaintiff’s Motion in Limine #7 (ECF No. 125), pp. 1-2.
In its reply, Aspen American argues as follows:
At the outset, it bears repeating that Plaintiff’s request in its underlying Motion in
Limine #7 is not a blanket request for FEMA’s Snow Load Safety Guide (the
“Guide”) to be used for any and all purposes that Plaintiff sees fit. Rather, it is a
narrow request seeking a preliminary ruling from this Court that said Guide is
self-authenticating under Fed. R. Evid. 902 and admissible as a public records
exception to the rule against hearsay under Fed. R. Evid. 803(8). Nowhere in
Defendant’s Response . . . does Defendant argue against the self-authenticating
nature of the Guide. Nor does the Response contain any allegation that the Guide
is inadmissible hearsay. Therefore, absent objection, Plaintiff’s underlying Motion
should be granted.
...
With a preliminary ruling that the Guide is both self-authenticating and admissible
as a hearsay exception, judicial resources will be conserved by eliminating the
need of live witness testimony regarding foundational aspects of the document
itself. Because Defendant addressed neither point in its Response, it is self-evident
that it will not be prejudiced by this narrow preliminary ruling.
Plaintiff’s Reply (ECF No. 136), pp. 1-2. Aspen American acknowledges that Interstate “will
[not] be prevented from raising any of its objections to the substance or purpose of the Guide at
the appropriate time during the trial.” Id., p. 2.
The Court agrees with Aspen American that the FEMA Guide should be admitted into
evidence as a self-authenticated record pursuant to Rule 902 and an exception to the hearsay rule
pursuant to Fed.R.Evid. 803(8) as it is a public record. The admission of the document, as Aspen
American points out, will expedite and streamline the trial (a bit, anyway) by obviating the need
for Aspen American to call a FEMA employee or officer to testify for the purpose of

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authenticating the exhibit at issue. Most importantly, though, Interstate objects not to the
admission or relevance of the exhibit, but rather the concern that “Plaintiff will attempt to argue
or otherwise convey to the jury that the FEMA Guide prescribes the legal standard of care in this
matter.” This objection is well taken, but has already been resolved by the Court’s ruling on
Interstate’s motion in limine seeking to preclude Aspen American from introducing evidence of a
heightened or different standard of care for a bailee/property owner,” in which the Court
concluded that “Aspen American can present the FEMA Guidelines at trial to support its
argument that Interstate’s conduct leading up to the roof collapse was negligent or grossly
negligent, just as Interstate concedes, but cannot argue that those Guidelines set the standard of
care.” See page 11, above. Therefore, Interstate’s objection to the exhibit has already been
granted: Aspen American cannot state or imply that the FEMA Guide sets the legal standard of
care applicable in this case, but it can introduce the Guide as one piece of evidence in support of
its claims that Interstate’s actions prior to the roof collapse were negligent or grossly negligent.
That leaves Aspen American’s request for a ruling that the FEMA Guide is admissible
without the need for testimony from a FEMA employee and as an exception to the hearsay rule
under Rule 803(8). This is a reasonable request that will serve to expedite the trial and is
GRANTED.
I. Plaintiff’s Motion in Limine #8–Motion in Limine to (I) Preclude
Objections to Inferences Made Due to Spoliation of Evidence & (II) Permit
Witnesses to Testify About Spoliated Evidence.
Aspen American moves the Court “to bar any and all objections to inferences made and
conclusions drawn by Plaintiff’s experts in their reports, deposition testimony, or during the
course of their trial testimony which were made out of necessity due to the spoliation of evidence
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by Interstate . . . . Plaintiff further moves for an order allowing its witnesses, including expert
witnesses James Goes and Jeremy Swenson, to testify with respect to spoliation of evidence, as
provided in this Court’s Opinion and Order of December 5, 2019 (Dkt. 75), which states: “The
jury will be permitted to hear and consider evidence from both parties about Interstate’s failure to
preserve the structural components (or make them available for inspection) and how and to what
degree Aspen American was prejudiced by Interstate’s actions in that regard.” Plaintiff’s Motion
in Limine #8 (ECF No. 115).
Interstate responds by arguing as follows:
At the outset, Interstate notes that what Plaintiff is actually requesting that the
Court judicially permit Plaintiff to introduce evidence at trial without any right to
objections or cross-examination by Interstate. Granting Plaintiff’s Motion in
Limine #8 would certainly tip the “scales of justice” in Plaintiff’s favor and
eliminate the adversarial system of justice in favor of a lopsided one-way fight. As
such, the Court should deny Plaintiff’s Motion in Limine #8 in its entirety to
preserve an element of fundamental fairness in this case.
Additionally, Interstate does not object to Plaintiff’s expert witnesses testifying
with respect to the fact that Interstate cleared the debris from the collapse site (the
alleged spoliation of evidence) and what evidence the respective experts would
have been attempting to find in the collapsed warehouse debris. However,
Interstate reasonably believes that Plaintiff’s experts intend to go well beyond
what they would have attempted to find and draw numerous unreasonable
inferences and conclusions about what they were sure to find. Allowing Plaintiff
or Plaintiff’s expert witnesses to draw unreasonable inference and conclusions,
unchecked by an appropriate and timely objection, would be unduly prejudicial to
Interstate and would not further the interests of justice.
Defendant’s Response (ECF No. 126), p. 2.
Aspen American replies by arguing as follows:
As yet another example of what became a theme in Defendant’s responses to
Plaintiff’s various motions in limine, Defendant once again misconstrued the
specific request in the underlying Motion. At its core, Plaintiff moves this Court
to prevent Defendant from objecting to expert testimony reports on foundational
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grounds based on the simple fact that Plaintiff’s experts were prevented from
obtaining requisite foundational knowledge by Defendant’s spoliation of
evidence. If Defendant were afforded the opportunity to benefit from this
spoliation by keeping Plaintiff’s expert testimony out of the purview of the jury,
this would grossly “tip the scales of justice” in Defendant’s favor despite
Defendant’s argument to the contrary in its Response.
Plaintiff’s Reply (ECF No. 137), p. 2.
Again, both sides have a point. The Court will not enter an order permitting Aspen “to
introduce evidence at trial without any right to objections or cross-examination by Interstate” and
to that extent the motion is DENIED. However, Aspen American expressly states that such a
blanket preclusion is not what it is seeking and that it merely moves the Court to preclude
Interstate from objecting to Aspen American’s expert evidence on foundational grounds. Aspen
American’s motion is GRANTED, however, in that Aspen American will be permitted to present
evidence and testimony that its agents were unable to access or observe parts of the warehouse
after the collapse since they had been removed by Interstate, and what they would have looked
for if the relevant parts of the structure had not been removed. Even Interstate concedes this
when it states that it “does not object to Plaintiff’s expert witnesses testifying with respect to the
fact that Interstate cleared the debris from the collapse site (the alleged spoliation of evidence)
and what evidence the respective experts would have been attempting to find in the collapsed
warehouse debris.” Interstate’s objection is founded on its concern “that Plaintiff’s experts intend
to go well beyond what they would have attempted to find and draw numerous unreasonable
inferences and conclusions about what they were sure to find.” Interstate will not be denied the
right to object to any such testimony or to conduct cross-examination of any witnesses offering
such testimony. At the same time, the Court declines Interstate’s invitation to “deny Plaintiff’s

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Motion in Limine #8 in its entirety to preserve an element of fundamental fairness in this case.”
For these reasons, Aspen American’s motion in limine #8 is granted in part and denied in part.
CONCLUSION
For the reasons explained above, the Motion in Limine Regarding Trial Issues filed by
Defendant Interstate Warehousing, Inc. (ECF No. 105) is GRANTED in part and DENIED in
part; the Motion for Separation of Witnesses filed by Interstate (ECF No. 107) is GRANTED; the
Motion to Amend/Correct Seventh Motion in Limine filed by Aspen American (ECF No. 116) is
GRANTED; the First Motion in Limine to Exclude any Evidence in Support of Defendant’s Act
of God Defense filed by Plaintiff Aspen American Insurance Co. (ECF No. 108) is DENIED; the
Second Motion in Limine to Exclude Unauthenticated Climatological or Meteorological Data
filed by Aspen American (ECF No. 109) is DENIED; the Third Motion in Limine to Exclude
Expert Opinions by Persons Who Have Not Been Timely Disclosed filed by Aspen American
(ECF No. 110) is GRANTED in part and DENIED in part; the Fourth Motion in Limine to
Exclude Testimony of Witnesses Who Have Not Been Timely Disclosed filed by Aspen
American (ECF No. 111) is GRANTED; the Fifth Motion in Limine to Exclude Reference to
Snow Removal Policies filed by Aspen American (ECF No. 112) is GRANTED in part and
DENIED in part; the Sixth Motion in Limine to Exclude Defendant’s Untimely Document
Production filed by Aspen American (ECF No. 113) is DENIED; the Seventh Motion in Limine
to Preclude Objections to Admission of FEMA Snow Load Safety Guide Pursuant to FRE 902
filed by Aspen American (ECF No. 114) is GRANTED; and the Eighth Motion in Limine to (I)
Preclude Objections to Inferences Made Due to Spoliation of Evidence & (II) Permit Witnesses
to Testify About Spoliated Evidence filed by Aspen American (ECF No. 115) is GRANTED in
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part and DENIED in part.
The parties, their attorneys, and their witnesses are prohibited from introducing evidence
of, making statements concerning, or attempting to convey to the jury in any manner, either
directly or indirectly, at any time during the trial of this action, the evidence or arguments
precluded by this order. The Court reiterates that rulings on motions in limine are preliminary in
nature and the Court has the discretion to alter previously issued in limine rulings, within the
bounds of sound judicial discretion. Luce, 469 U.S. at 41-42. The Court will exercise that
discretion and alter or amend the rulings contain herein if warranted during trial.

Date: August 14, 2021.
/s/ William C. Lee
William C. Lee, Judge
U.S. District Court
Northern District of Indiana

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