Kechi Township v. Freightliner, LLC et al

Filing 163

MEMORANDUM AND ORDER denying 130 Motion in Limine; taking under advisement 132 Motion in Limine; granting 134 Motion in Limine; granting 136 Motion in Limine; granting in part and denying in part 142 Motion in Limine. Signed by District Judge Monti L. Belot on 1/6/2012. (aa)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KECHI TOWNSHIP, et al.,
Plaintiffs,
v.
FREIGHTLINER, LLC N/K/A DAIMLER
TRUCKS NORTH AMERICA LLC,
Defendant.

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CIVIL ACTION
No.

10-1051

MEMORANDUM AND ORDER
Before the court are the following motions:
1.

Defendant Freightliner, LLC n/k/a Daimler Trucks North
America LLC’s (“Daimler”) motion in limine to exclude
evidence of plaintiffs’ exemplar truck and exemplar battery
cable bus bar (Doc. 130) and memorandum in support (Doc.
131).

2.

Daimler’s motion in limine to prevent recovery or claim for
economic damages (Doc. 132) and memorandum in support (Doc.
133).

3.

Daimler’s

motion

in

limine

to

exclude

other

incident

evidence (Doc. 134) and memorandum in support (Doc. 135).
4.

Daimler’s

motion

in

limine

to

exclude

prejudicial

statements incorrectly identifying defendant’s name and
statements

of

defendant’s

size,

wealth,

and

corporate

citizenship (Doc. 136) and memorandum in support (Doc.
137).
5.

Plaintiffs Kechi Township and Employers Mutual Casualty

Company’s

(“Kechi”)

motion

in

limine

(Doc.

142)

and

memorandum in support (Doc. 143).
All parties seek to prohibit the admission of certain evidence
at trial.

To the extent it can with the information before it, the

court will briefly rule on each motion.

The court cautions the

parties, however, that nothing in this Order will preclude the
admissibility

of

the

relevant at trial.

excluded

evidence

if

it

otherwise

becomes

See Turley v. State Farm Mut. Ins. Co., 944 F.2d

669, 673 (10th Cir. 1991) (“The better practice would seem to be that
evidence of this nature . . . should await development of the trial
itself.”).

By

the

same

taken,

nothing

said

herein

should

be

constituted as a final ruling admitting evidence to which a valid
objection is made at trial.
Analysis
A.

Evidence of the Exemplar Truck and Battery (Doc. 130)
Daimler moves to exclude evidence of Kechi’s exemplar truck and

battery cable bus bar because it lacks authentication and foundation
pursuant to Fed. R. Evid. 901(a).

Daimler claims that Kechi has not

provided any supporting evidence that the exemplar truck or battery
cable bus bar are examples of or match the incident truck and battery
cable bus bar. Daimler asserts that the exemplar truck is a Model FL60 whereas the incident truck is a Model FL-70.
Kechi stated at the Daubert hearing on January 4, 2012, that it
would not introduce evidence of the Model FL-60 truck.

Daimler’s

motion in limine on this issue is therefore moot.
Daimler also argues that evidence of the exemplar truck and
battery cable bus bar is not relevant to the material issues, and will
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mislead and confuse the jury.

Fed. R. Evid. 401-403.

Daimler

contends that Kechi has no basis to assume that the exemplar truck and
battery cable bus bar are in the same condition as they were when they
left the factory or in the same condition as the incident truck and
battery cable bus bar when they left the factory.
Daimler’s arguments regarding Kechi’s failure to review design
drawings or manufacturing specifications related to the incident truck
and Kechi’s assumptions that the exemplar truck and battery cable bus
bar match the incident truck can be developed on cross-examination and
later argued during closing arguments.

See, however, footnote 1,

infra.
Daimler’s motion in limine is denied.
B.

(Doc. 130).

Economic Loss (Doc. 132)
Daimler moves to exclude evidence of economic loss from the

incident truck because recovery of economic loss is barred by the
economic loss doctrine.

Daimler does not argue for preclusion of

evidence related to the shop building and its contents.
The court will take this matter under advisement because the
status of the economic loss doctrine as it pertains to this type of
case appears to be unsettled.

The court will allow evidence of the

value of the incident truck during trial.

The verdict form will

reflect a separate line item for the damages to the incident truck.
In the event that Kechi prevails and is awarded damages for the
incident truck, Daimler may move for judgment as a matter of law on
those damages pursuant to the economic loss doctrine.
C.

2006 Truck Fire (Doc. 134)
Daimler moves to exclude evidence related to the 2006 truck fire
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involving a 2005 Freightliner truck because it is not substantially
similar to the fire in the incident truck.
Kechi does not respond to this motion.

Therefore, the court

presumes that it does not intend to offer such evidence.

Daimler’s

motion is sustained.
D.

Daimler’s Wealth and Size (Doc. 136)
Daimler moves to prohibit Kechi from referring to Daimler as

“Daimler

Chrysler”

because

subsidiary of Chrysler.
Chrysler in any way.

Daimler

is

not

a

business

unit

or

Daimler argues that it is not related to
Daimler also argues that Kechi should be

prohibited from introducing evidence regarding Daimler’s size, wealth,
and corporate citizenship because it is not relevant under Fed. R.
Evid. 401, 402.
Kechi does not respond to this motion.

Therefore, the court

presumes that it does not intend to offer such evidence.

Daimler’s

motion is sustained.
E.

Kechi’s Motion in Limine (Doc. 142)
1.

Settlement Offers, Insurance Companies and Net Worth

Daimler does not intend to offer this evidence.

Kechi’s motion

on these grounds is therefore moot.
2.

Eric Benstock and Ronald Simmons

Kechi moves to preclude the testimony of Eric Benstock and Ronald
Simmons on the basis that Daimler failed to disclose these witnesses
as experts.

Benstock and Simmons were disclosed as experts by Delco

Remy in February 2011.
action in May 2011.

Delco Remy, however, was dismissed from this

At no point during the course of this litigation

has Daimler disclosed that it also intends to call these two experts
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as witnesses in its case-in-chief.
pretrial

order

that

states

any

Daimler points to language in the
party

may

call

another

party’s

The pretrial order, however, was entered after Delco Remy

witnesses.

was no longer a party to the action.
Although these experts were disclosed during discovery, Kechi had
no knowledge of their continued involvement as witnesses after Delco
Remy exited the case.

Therefore, Kechi was unable to challenge their

testimony in a Daubert motion as that deadline was prior to the final
witness disclosure deadline.

Moreover, Daimler does not explain how

these experts’ testimony would be necessary and helpful to the jury
in light of the fact that it will be presenting the testimony of John
Maurus, Tavis Leake and Lance Romig.
Kechi’s motion to exclude Benstock and Simmons is granted.
3.

Captain Tavis Leake and Lance Romig

Kechi objects to the admission of any expert testimony from Leake
and Romig.
who

Daimler

Daimler asserts that these witnesses are fact witnesses
disclosed

abundance of caution.

as

potential

expert

witnesses

out

of

an

Daimler contends that the witnesses’ testimony

will be fact testimony.
Leake responded to the fire and is employed by the Sedgwick
County Fire Department.

Leake’s opinions are presumably based on his

investigation at the fire scene.

Kechi was provided with his report

during discovery and has taken Leake’s deposition.

Kechi objects to

his designation as an expert on Daimler’s final witness list. It does
not appear that Daimler will call Leake as a live witness.

Instead,

Daimler has designated testimony from Leake’s deposition.

Notably,

however, Kechi has not specifically objected to Leake’s designation.
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Instead, Kechi has filed a general objection to the designation on the
basis that the witness will be appearing live.
case, Kechi is correct.

If that is indeed the

The court will not allow a deposition to be

read into the record if the witness will appear live.

Leake’s

deposition can be used for impeachment purposes.
In any event, should Leake testify as a live witness in this case
and

give

an

expert

opinion

that

was

not

disclosed

during

his

deposition, Kechi may make a proper objection. At this time, however,
Kechi

has

not

identified

any

specific

opinions

that

should

be

excluded.
Romig is employed by Daimler as a District Services Manager.
Daimler’s witness list states that Romig will testify pertaining to
the design and manufacture of the incident truck, his opinions related
to quality assurance, testimony relating to the incident fire and
refuting plaintiffs’ claims relating to causation. Kechi asserts that
Romig was only disclosed during discovery as a witness who would offer
testimony about the “accident, Plaintiffs’ claims and damages.” (Doc.
143 at 5). At this point, the court is unable to determine the extent
of Romig’s testimony and the prior disclosures as those documents are
not before the court. Moreover, given the representations by Daimler,
it appears that Romig is a fact witness who has personal knowledge of
the design of the incident truck.
admissible and relevant.

That testimony would presumably be

Because the court has not been presented

with Romig’s testimony, however, it cannot rule on its admissibility
at this time.
4.

Argument that Fire Started in the Trash, Stove or John
Deere
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Kechi asserts that this argument is not supported by the evidence
in this case. Daimler, however, will offer testimony from both Maurus
and Leake that the fire’s origin may have been from the stove or the
John Deere.
fire.

These opinions are based on the investigation of the

Kechi’s motion is denied.
5.

Hearsay Statements of Jacob Cox and Curtis McColm

The court will take this motion under advisement and rule on the
admission of the evidence during trial.

However, Kechi must be

prepared to address Daimler’s authority and argument (Doc. 154 at 910) should it persist in objecting to Cox and/or McColm’s evidence.
6.

Design Drawings of the Incident Truck

Kechi contends that Daimler cannot argue that Kechi had an
affirmative

obligation

to

inspect

and

present

design

drawings.

Daimler responds that it has disclosed drawings during their third
supplemental disclosures1 and will offer testimony from a witness who
has intimate knowledge of the design of the incident truck.
Daimler

does

not

respond,

however,

to

Kechi’s

contention

concerning argument of Kechi’s alleged obligation to inspect and
present design drawings.

There is no requirement under the Kansas

Products Liability Act that a plaintiff must inspect and present
design drawings.

Therefore, argument to the jury in opening or

1

As the court noted in its Memorandum and Order of January 6,
2012 (Doc. 162), it may be that there are no drawings or
specifications pertaining to the battery cable and, in particular, the
cap nut.
A couple of drawings were received at Martin’s Daubert
hearing (exhs. 10 and 11) but they do not appear to show the battery
cable. Assuming counsel are not familiar with this court’s views on
the purpose of a trial in a civil case, they should know that he
expects the truth to come out. This court strongly disfavors hidethe-ball trial tactics. Counsels’ attention is invited to Fed. R.
Evid. 614.
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closing that Kechi had some sort of legal obligation to inspect will
not be allowed.
Conclusion
Daimler’s motion in limine to exclude evidence of the exemplar
truck and battery cable is denied.

(Doc. 130).

Daimler’s motion to

prevent recovery on Kechi’s claim for economic damages of the incident
truck is taken under advisement.

(Doc. 132).

Daimler’s motion in

limine to exclude other incident evidence and evidence of Daimler’s
wealth and size is granted.

(Docs. 134, 136).

limine is granted in part and denied in part.

Kechi’s motion in

(Doc. 142).

IT IS SO ORDERED.
Dated this

6th

day of January 2012, at Wichita, Kansas.

s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE

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