Passmore v. Barrett Jr et al

Filing 125

OPINION AND ORDER granting in part and denying in part 117 Motion in Limine. Signed by Magistrate Judge Andrew P Rodovich on 4/6/2016. (rmn)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ROSIE PASSMORE, Individually and as
Personal Representative of the Estate of
Willie J. Passmore, Deceased,

)
)
)
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Plaintiff,
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v.
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)
JAMES R. BARRETT JR., Individually and )
d/b/a Los Sueños,
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Defendant.
)

Case No. 2:13-cv-290

OPINION AND ORDER
This matter is before the court on the Defendant’s Motions in Limine [DE 117] filed by
the defendant, James R. Barrett Jr., on April 1, 2016. For the following reasons, the motion is
GRANTED IN PART and DENIED IN PART.
Background
Passmore has alleged that the defendant, James R. Barrett Jr., negligently ran over and
killed her husband, Willie Passmore, while Willie was working at Boss Truck Shop in Gary,
Indiana. This matter is set for trial on April 11, 2016.
Discussion
First, Barrett has requested the court to bar any reference to insurance, including
communication between Passmore and an insurance adjuster. Passmore has no objection to this
request. This request is GRANTED.
Second, Barrett has requested the court to bar any reference to the parties’ settlement
negotiations or their high-low agreement. Passmore has no objection to this request. This
request is GRANTED.

Third, Barrett has requested the court to bar any evidence of crimes or citations, except
those allowed under Federal Rule of Evidence 609. Passmore has no objection to this request,
but she has indicated that any order should apply to both parties. This request is GRANTED.
The parties may not admit any evidence of crimes or citations, except those allowed under Rule
609.
Fourth, Barrett has requested the court to allow him to present evidence or exhibits in a
PowerPoint presentation. Passmore has no objection to this request. This request is
GRANTED.
Fifth, Barrett has requested the court to exclude any untimely evidence. Passmore has no
objection to this request, but she has requested the court to issue the order against both parties.
This request is GRANTED. The parties cannot introduce untimely evidence.
Sixth, Barrett has requested the court to bar any photographs, video, or reports that depict
Willie’s death. He has argued that the portion of the video showing Willie’s death and that any
photographs of Willie’s body at the scene, in an autopsy or coroner report, or at the funeral or
burial are irrelevant, prejudicial, and likely to evoke sympathy from the jury. Because Willie’s
pain and suffering is not at issue and Barrett has admitted that Willie is deceased, Barrett has
claimed that any depiction of Willie’s death is irrelevant and unduly prejudicial under Rule 403.
Passmore has argued that the video of Willie’s death is relevant and that the probative
value outweighs any prejudice. She has indicated that the video is necessary for the jury to
assess Willie’s conduct, including whether he was in harm’s way and whether he knew that the
truck was about to move. The court agrees that the entire video is necessary to assess whether
Willie placed himself in peril and whether he was contributorily negligent. Without the entire
video, the jury would have trouble assessing how the truck ran over Willie and whether his

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conduct was negligent. The probative value of the video outweighs any prejudice. Therefore,
this request is DENIED regarding the surveillance video.
Passmore also has argued that two photographs are relevant and that their probative value
outweighs any prejudice. Barrett contends that Willie instructed him to pull out of the bay, but
Passmore contends that the circumstantial evidence shows otherwise. Passmore has testimony
from Bosselman employees that a job is not complete until the technician returns the work order
to the service writer to complete the sale, that a work order is not complete until the vehicle
mileage has been entered, and that a customer cannot pay until the service writer has the
completed work order. Passmore intends to admit Coroner photo #45, which shows Willie’s
clipboard on the ground near his body, and Coroner photo #71, which shows a closeup of the
clipboard and the attached work order without the mileage entered. Based on the proximity of
the work order to Willie’s body and the testimony about Bosselman’s procedures, Passmore has
argued that the jury could infer that Willie did not complete the job or instruct Barrett to pull out.
The photographs showing the clipboard near Willie’s body are relevant to whether he
instructed Barrett to pull out of the bay. The probative value of those photographs outweighs
any prejudicial effect. Therefore, this request is DENIED regarding any photographs showing
the clipboard or the work order near Willie’s body. However, any other photographs showing
Willie’s body without the clipboard or the work order are irrelevant. The prejudicial effect of the
photographs showing his body without the clipboard outweighs any probative value. Therefore,
this request is GRANTED to any other photographs depicting Willie’s body.
Seventh, Barrett has requested the court to bar evidence of Passmore’s emotional distress,
grief, sorrow, wounded feelings, or solatium. Indiana’s wrongful death statute allows spouses to
recover for emotional damages. See TRW Vehicle Safety Sys., Inc. v. Moore, 936 N.E.2d 201,

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222 (Ind. 2010) (“Under Indiana’s wrongful death statute, recovery for emotional damages is
allowed for spouses and dependent children.”). Moreover, a surviving spouse “may recover for
the loss of care, love and affection, and the training and guidance of the deceased.” Challenger
Wrecker Mfg. Inc. v. Estate of Boundy, 560 N.E.2d 94, 99 (Ind. Ct. App. 1990) (citations
omitted). This request is DENIED. The jury will be instructed regarding wrongful death
damages pursuant to Indiana’s Model Civil Jury Instruction No. 727.
Eighth, Barrett has requested the court to prohibit Passmore from making a “Golden
Rule” argument that asks the jurors to place themselves in her or Willie’s shoes. Passmore has
no objection to this request. This request is GRANTED.
Ninth, Barrett has requested the court to prohibit Passmore from asking the jury to send a
message or to punish the defendants. Passmore has no objection to this request. This request is
GRANTED.
Tenth, Barrett has requested the court to bar evidence of hedonic damages, the value of
Willie’s life or the lost pleasures of life to Willie. Passmore has agreed that she cannot introduce
evidence of hedonic damages, but she has indicated that she can introduce evidence of the value
of Willie’s life to her. This request is GRANTED. Passmore cannot offer evidence of hedonic
damages. However, she may introduce evidence of the lost care, love, and affection that Willie
would have provided to her.
Eleventh, Barrett has requested the court to prohibit Passmore from referencing
relationships between people other than her and Willie. He has indicated that the Indiana
Wrongful Death Act does not allow a surviving spouse to seek damages as a result of the loss of
love, care, and affection between the decedent and other relatives outside of the spouse. Because
Passmore cannot seek damages based on how Willie’s death affected her adult children and

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grandchildren, Barrett has argued that mentioning Passmore’s children or grandchildren is
irrelevant and unfairly prejudicial. The court disagrees with Barrett. Passmore can mention her
children and grandchildren without asking the jury to compensate her for how Willie’s death has
affected them. This request is DENIED. However, Passmore should not describe how Willie’s
death has affected the lives of other relatives.
Twelfth, Barrett has requested the court to bar Passmore’s post-accident diary. Passmore
has no objection to this request. This request is GRANTED.
Thirteenth, Barrett has requested the court to bar Willie’s funeral video. The video was
prepared for and shown at Willie’s funeral to document his life. Barrett has indicated that the
video includes titles and photographs that depict how Willie’s death has affected his friends and
family members outside of Passmore. For example, the video includes titles such as “Father of
the Year,” “Loving Son,” and “Special Brother and Friend ‘Will Dollar.’” Without seeing the
video, the court finds that the video could show how Willie’s death affected the lives of other
relatives beyond Passmore. Moreover, the video could confuse the jury into believing that
Passmore can recover damages for how Willie’s death affected individuals beyond Passmore.
Therefore, this request is GRANTED CONDITIONALLY. Passmore may make a showing,
outside of the presence of the jury, that the video would not unfairly depict how Willie’s death
affected other relatives and friends.
Fourteenth, Barrett has requested the court to bar a home video showing a family
vacation to Wisconsin Dells. He has indicated that the video contains audio, including hearsay
from family members that is not subject to cross-examination. Additionally, Barrett has argued
that the video depicts Willie with other relatives, which could unfairly show how his death
affected them. Similar to above, this video could confuse the jury into believing that Passmore

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can recover for how Willie’s death affected other relatives. Therefore, this request is
GRANTED CONDITIONALLY. Passmore may make a showing outside of the presence of
the jury.
Fifteenth, Barrett has requested the court to prohibit Passmore from commenting that
Barrett and his insurer failed to apologize or that Barrett did not show remorse after the accident.
Passmore has no objection to this request. This request is GRANTED.
Sixteenth, Barrett has requested the court to prohibit Passmore from commenting that he
delayed the trial. Passmore has no objection to this request. This request is GRANTED.
Seventeenth, Barrett has requested the court to prohibit Passmore from asking the jury to
be Willie’s voice, to do justice for Willie, or commenting that Willie cannot tell his side of the
story. Passmore has no objection to asking the jury to be Willie’s voice or to do justice for
Willie. However, she has argued that the “Golden Rule” does not include mentioning that the
decedent cannot tell his side of the story in a wrongful death action. It is unclear how
mentioning that Willie could not tell his side of the story would invite the jury to abandon their
neutrality and to decide this case based on personal interest. Therefore, this request is
GRANTED IN PART and DENIED IN PART. Passmore can mention that Willie cannot tell
his side of the story. However, she cannot make a “Golden Rule” argument, ask the jury to be
Willie’s voice, or ask the jury to do justice for Willie.
Eighteenth, Barrett has requested the court to prohibit Bosselman, a third party intervenor
in this action, from presenting evidence in this matter. He has argued that it would be unfair to
allow Bosselman to take an active role in the trial because the court denied his motion for an
adverse inference against Passmore because Bosselman was a “minor” participant in this action.
The court agrees with Barrett’s argument. Therefore, this request is GRANTED. If Bosselman

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takes an active role in the trial, Barrett may move for an adverse inference based on its increased
role.
Nineteenth, Barrett has requested the court to bar reference to this motion. Passmore has
no objection to this request. This request is GRANTED.
Based on the foregoing reasons, the Defendant’s Motions in Limine [DE 117] are
GRANTED IN PART and DENIED IN PART.
ENTERED this 6th day of April, 2016.
/s/ Andrew P. Rodovich
United States Magistrate Judge

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