Jones et al v. Naber
ORDER granting in part and denying in part 21 Motion in Limine, subject to the limitations set forth; granting 22 Motion in Limine, subject to the limitations set forth (see text of Order). Signed by Magistrate Judge Mark A Roberts on 9/3/2019. (skm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
NANCY ALICE JONES, Individually
and as the personal representative of the
Estate of David Allen Jones and SCOTT
ORDER IN LIMINE
FRANCIS JOHN NABER,
This matter is before the Court on the parties’ motions in limine. (Docs. 21, 22.)
Each party timely resisted the other’s motion. (Docs. 23, 24.) Plaintiffs filed a reply.
(Doc. 25.) “A district court has wide discretion in admitting and excluding evidence.”
Bennett v. Hidden Valley Golf & Ski, Inc., 318 F.3d 868, 878 (8th Cir. 2003) (citations
omitted). For the following reasons, Plaintiffs’ motion in in limine (Doc. 21) is granted
in part and denied in part. Defendant’s motion in in limine (Doc. 22) is granted.
This case involves a motor vehicle accident in rural Dubuque County. Plaintiffs’
decedent, David Jones, was driving a motorcycle when he collided with a manure
spreader being towed by Defendant Francis Naber on his tractor. Plaintiffs’ Complaint
(Doc. 1) alleges Defendant was at fault in a number of particulars resulting in damages
to Plaintiffs. Defendant denies the allegations that attribute fault to him and raises the
affirmative defense of comparative fault. (Doc. 6.)
The testimony of defense experts
Plaintiffs seek to prohibit Defendant’s experts from testifying beyond those
opinions, facts, and data disclosed in their January 2019 report. Plaintiffs are concerned
these experts may offer undisclosed opinions regarding Mr. Jones’s speed or regarding
whether he was improperly passing at the time of the collision. Defendant counters that
his experts calculated the minimum and maximum speeds Mr. Jones could have been
traveling. (Doc. 24 at 1.) This does not appear to be quite accurate. Plaintiffs point out
that Defendant’s experts have not calculated Mr. Jones’s maximum speed. (Doc. 25.) It
appears that the experts calculated only Mr. Jones minimum speed to be within a range
of 44.4 to 53.0 mph. (Doc. 21-1 at 8.) The experts admit the actual speed is impossible
The fact that the experts have identified a range (which itself has a
“minimum” and “maximum”) creates some possibility of confusion, but that confusion
can be avoided with caution.
Defendant argues the experts opined that Mr. Jones would have had sufficient time
to recognize a slow-moving vehicle and slow down to avoid the collision. Based on the
experts’ report (Doc. 21-1) and Defendant’s response, it does not appear Defendant
intends to offer expert opinions either regarding Mr. Jones’s actual speed or that he was
traveling too fast for conditions. Nor does it appear Defendant intends to offer opinions
from his experts that Mr. Jones was attempting to illegally pass him. Defendant concedes
expert witnesses cannot testify regarding whether any person was violating the law.
Defendant is correct that his experts are not prohibited from discussing their observations
and measurements, including the location of no passing zones and the positions of the
vehicles relative thereto. To the extent Plaintiffs’ motion seeks to prevent experts from
testifying beyond their disclosed opinions, the motion is granted. Both parties shall
caution their respective experts to limit their testimony to opinions previously disclosed.
Mr. Jones’s firearm
Plaintiffs seek to exclude evidence that shows Mr. Jones had a firearm in his
possession at the time of the collision because it is irrelevant, prejudicial, and likely to
confuse the jury and thus inadmissible pursuant to Federal Rules of Evidence 401, 402,
and 403. Defendant does not resist this motion. Plaintiffs’ motion in limine to exclude
reference to or evidence of Mr. Jones’s possession of a firearm is granted.
Evidence of settlement negotiations, offers, or demands
Defendant does not resist Plaintiffs’ motion to exclude evidence of settlement
negotiations, offers, or demands pursuant to Federal Rule of Evidence 408. Plaintiffs’
motion regarding this topic is therefore granted.
Mr. Jones’s health condition and life expectancy
Medical records show Mr. Jones had a history of heart disease, smoking, and
consumption of alcohol. Plaintiffs argue that without expert testimony to tie this evidence
to a decrease in Mr. Jones’s life expectancy, the evidence is inadmissible because it would
invite the jury to speculate. Plaintiffs’ cite authorities from Washington and Illinois for
the proposition that evidence of Mr. Jones’s health, smoking, and alcohol consumption
must be supported by “competent medical evidence proof” showing its impact on Mr.
Jones’s life expectancy.
The case is before the Court pursuant to its diversity jurisdiction. 28 U.S.C. §
1332. Neither party has suggested that the law of another state applies. Iowa law
One of the elements of damage in a wrongful death action is the present
worth or value of the estate which decedent would reasonably be expected
to have saved and accumulated as a result of his or her efforts between the
time of death and the end of his or her natural life had he or she lived.
[Citations omitted]. Relevant on this issue is evidence disclosing decedent’s
age and life expectancy, characteristics and habits, health, education or
opportunity for education, general ability, other occupational qualifications,
industriousness, intelligence, manner of living, sobriety or intemperance,
frugality or lavishness, and other personal characteristics that are of
assistance in securing business or earning money.
Iowa-Des Moines Nat. Bank v. Schwerman Trucking Co., 288 N.W.2d 198, 201 (Iowa
1980). Iowa Civil Jury Instruction 200.37 provides, “the statistics from a standard
mortality table are not conflict collusive. You may use this information together with
other evidence about [the decedent’s] health, habits, occupation, and lifestyle when
deciding the issue of future damages.” These authorities seem to contemplate that a jury
will consider a range of factors in determining life expectancy without the intercession of
expert witnesses. The Court declines to require medical evidence demonstrating how
Mr. Jones’s health, habits, or other characteristics may impact his life expectancy.
Plaintiffs’ motion on this issue is denied.
Mr. Jones’s prior relationships
Defendant does not resist Plaintiffs’ motion to exclude evidence concerning Mr.
Jones’s romantic relationships prior to his marriage to Plaintiff Nancy Jones, other than
his marriage to Judy Jones. Plaintiffs’ motion on this issue is granted.
Nancy Jones’s prior relationships
Defendant does not resist Plaintiffs’ motion to exclude evidence concerning Nancy
Jones’s romantic relationships prior to her marriage to Mr. Jones. Plaintiffs’ motion on
this issue is granted.
The financial condition of David and Nancy Jones
Defendant does not resist Plaintiffs’ motion to exclude evidence of the financial
condition of David and Nancy Jones. Plaintiffs’ motion on this issue is granted.
Testimony of Defendant regarding Mr. Jones’s operation of the
motorcycle before the collision
Defendant testified in his deposition that he did not have personal knowledge of
how fast Mr. Jones was going before impact. (Doc. 21-4 at 4.) He further testified that
following the impact he saw the motorcycle but not did not see Mr. Jones “right away.”
(Id. at 5.) Thus, he agrees he did not see Mr. Jones prior to the collision. Nevertheless,
Defendant argues he may have perceived sounds that may be “helpful to clearly
understanding the witness’s testimony or to determining a fact in issue.” Federal Rule
of Evidence 701. He also appears to argue he was able to conclude what happened based
on these perceptions and perhaps his observations after he felt the collision or saw Mr.
Jones or his motorcycle. For example, Defendant posits he could tell he was struck from
behind and concluded the motorcycle must have been traveling faster than he was.
Without having heard the evidence, the Court has difficulty predicting whether this
conclusion is controversial. Nevertheless, in light of Mr. Naber’s admissions about his
lack of personal knowledge and when he first saw Mr. Jones, the parties are cautioned
they will need to carefully lay foundation for his testimony about what he perceived, how
he perceived it, and what conclusions he may have reached. Defendant’s counsel shall
advise Mr. Naber of this concern in advance of trial. Plaintiffs’ motion is denied without
prejudice to any objections it may assert at trial regarding the sufficiency of the foundation
or the limits of Defendant’s personal knowledge.
Nancy Jones’s prior motor vehicle accident
Defendant did not resist Plaintiffs’ motion to exclude evidence of Nancy Jones’s
October 2017 motor vehicle collision as irrelevant, prejudicial, and likely to confuse the
jury and, therefore, inadmissible under Federal Rules of Evidence 401, 402, and 403.
Plaintiffs’ motion is granted.
Defendant’s motions in limine
Plaintiffs do not oppose Defendant’s motion to exclude evidence of liability
insurance pursuant to Federal Rule of Evidence 5.411. Defendant’s motion on this issue
Plaintiffs do not oppose Defendant’s motion to exclude evidence concerning
settlement negotiations pursuant to Federal Rule of Evidence 408. Defendant’s motion
on this issue is granted.
Defendant’s traffic citation
Plaintiffs do not oppose Defendant’s motion to exclude evidence regarding the
facts that Defendant was charged with making an unsafe turn and that the charge was
ultimately dismissed. Defendant’s motion on this issue is granted.
Official accident reports
Defendant seeks to exclude the official accident reports prepared by the Iowa State
Patrol. It does not appear that Plaintiffs intend to offer those reports into evidence. They
anticipate the officers may need to use their reports to refresh their recollection at trial.
Plaintiffs do not oppose Defendant’s motion so long as the reports may be used to refresh
the officers’ recollection and so long as the officers are permitted to testify regarding
their findings and conclusions. The Court does not read Defendant’s motion to be so
broad as to prohibit refreshing the officers’ recollection or to prohibit the officers from
testifying regarding their findings and conclusions. Defendant’s motion on this issue is
Opinion evidence regarding statutory violations
Plaintiffs do not object to Defendant’s motion to exclude opinion evidence
regarding statutory violations. However, Plaintiffs raise the same concerns regarding
limiting investigating officers from testifying regarding their findings and conclusions.
Again, the Court does not read Defendant’s motion to be so broad. Defendant’s motion
on this issue is granted.
Evidence regarding other charges
Plaintiffs do not object to Defendant’s motion to exclude evidence regarding other
traffic citations. This evidence does not appear to be relevant. Federal Rule of Evidence
401. Defendant’s motion on this issue is granted.
Evidence regarding other accidents
Plaintiffs do not object to Defendant’s motion to exclude evidence of Defendant’s
involvement in a different accident. This evidence does not appear to be relevant.
Federal Rule of Evidence 401. Defendant’s motion on this issue is granted.
Subsequent remedial measures
Defendant seeks to exclude evidence that after the accident someone installed a
rearview mirror on his tractor and a slow-moving vehicle symbol on his manure spreader.
Defendant argues these are subsequent remedial measures that are inadmissible pursuant
to Federal Rule of Evidence 407 which provides:
When measures are taken that would have made an earlier injury or harm
less likely to occur, evidence of the subsequent measures is not admissible
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as
impeachment or--if disputed--proving ownership, control, or the feasibility
of precautionary measures.
Fed. R. Evid. 407
Plaintiffs assert Rule 407 permits them to introduce evidence of subsequent
remedial measures for impeachment purposes or to show ownership, control or the
feasibility of precautionary measures if disputed. It seems unlikely Defendant will dispute
ownership or control of his tractor or manure spreader. It also seems unlikely Defendant
will argue that it was not feasible to install a slow-moving vehicle sign or a rearview
mirror. It remains to be seen how any witness might be impeached by the post-accident
implementation of these remedial measures. Defendant’s motion is granted on this issue,
subject to the following reservation. If, during trial, Plaintiffs believe there is a basis to
admit evidence of remedial measures, they shall raise the issue outside the presence of
the jury or at sidebar prior to making any reference to subsequent remedial measures.
For the reasons stated above, Plaintiffs’ motion in limine (Doc. 21) is granted in
part and denied in part, subject to the limitations set forth above. Defendant’s motion
in limine is granted, subject to the limitations set forth above. Counsel for the parties
shall inform all witnesses of this ruling and instruct them not to volunteer, disclose, state,
or mention any of the evidence or topics on which the Court has granted the motions in
limine. The attorney who calls a non-party witness is responsible for notifying such
IT IS SO ORDERED this 3rd day of September, 2019.
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