Manuel et al v. Traditional Sporting Goods Inc et al

Filing 109

OPINION AND ORDER re 68 MOTION in Limine by Ardesa, S.A., Traditional Sporting Goods Inc Regarding Certain Evidentiary Issues: Court ORDERS (1) Motion in Limine re certain evidentiary issues is GRANTED IN PART and DENIED IN PART; (2) portions of Dfts' motion re claim for punitive damages are PASSED until Court determines Dfts' MSJ on claim for punitive damages. Signed by Judge Karl S. Forester on 12/14/2011.(DAK)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON

CIVIL ACTION NO. 5:09-CV-406-KSF
TIFFANY MANUEL, ET AL.,

v.

PLAINTIFF,

OPINION AND ORDER

TRADITIONAL SPORTING GOODS, INC., ET AL.,

DEFENDANTS.

**********
This matter is before the Court upon the motion in limine filed by the Defendants, Traditional
Sporting Goods, Inc. (“Traditions”) and Ardesa S.A. (“Ardesa”)(collectively, “Defendants”)
regarding certain evidentiary issues [DE #68]. This matter is fully briefed and is ripe for review.
Defendants’ motion has several discrete components.

The Court will address each

component in the order set out in Defendants’ motion.
I.

Standard for Rule 402 and Rule 403 Motions in Limine
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the court discussed

the admissibility of evidence as follows:
Rule 402 provides the baseline:
All relevant evidence is admissible, except as otherwise provided by
the Constitution of the United States, by Act of Congress, by these
rules, or by other rules prescribed by the Supreme Court pursuant to
statutory authority. Evidence which is not relevant is not admissible.
“Relevant evidence” is defined as that which has “any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” Rule 401. The Rule’s basic
standard of relevance thus is a liberal one.

Id. at 587. The Sixth Circuit recognized many years ago that a court should not “deprive plaintiffs
of their legitimate right to place before the jury the circumstances and atmosphere of the entire cause
of action which they have brought into the court, replacing it with a sterile or laboratory
atmosphere....” In re Beverly Hills Fire Litigation, 695 F.2d 207, 217 (6th Cir. 1982).
Federal courts have held that Fed. R. Evid. 403 is an extraordinary remedy and carries a
strong presumption in favor of admissibility. U.S. v. Grant, 256 F.3d 1146, 1155 (11th Cir. 2001).
In In re Air Crash Disaster, 86 F.3d 498 (6th Cir. 1996), the Sixth Circuit explained:
Rule 403 does not exclude evidence because it is strongly persuasive or compellingly
relevant – the rule only applies when it is likely that the jury will be moved by a piece
of evidence in a manner that is somehow unfair or inappropriate. The truth may hurt,
but Rule 403 does not make it inadmissible on that account.
Id. at 538. “Virtually all evidence is prejudicial or it isn’t material. The prejudice must be ‘unfair.’”
Koloda v. General Motors Parts Div., General Motors Corp., 716 F.2d 373, 378 (6th Cir. 1983).
II.

Analysis
The parties agree that the size, geographic location and specialization of the Defendants’

counsels’ law firms are not admissible evidence in the case. The parties also agree that settlement
discussions or negotiations are not admissible evidence. The parties further agree that expert
testimony of a witness not so identified pursuant to the Court’s scheduling order and/or other
applicable rules, as well as references or testimony from Plaintiff or any other lay witness as to any
statements made to them by a treating physician concerning a diagnosis, treatment or prognosis of
Tiffany Manuel’s physical condition, are not admissible evidence in this case. Accordingly, these
portions of Defendants’ motion will be granted.

2

Next, Defendants seek to preclude any reference or testimony from Plaintiff or any other lay
witness as to any future reasonable and necessary medical treatment for Tiffany Manuel and any
associated expenses or costs. Defendants argue that such testimony is based on speculation and is
irrelevant without a proper foundation. Plaintiff objects to this portion of Defendants’ motion and
argues that Tiffany Manuel should be permitted to testify as to any plans or intentions she has of
continuing medical treatments, as well as the anticipated cost of such future treatment, so long as
there is some factual basis for her testimony. The Court agrees with Plaintiff that any objection to
particular testimony based on speculation or lack of foundation is more appropriately made
contemporaneously with the objectionable testimony at trial and may be determined at that time.
Accordingly, this portion of Defendants’ motion will be denied.
Defendants also move to preclude any questions or evidence relating to the failure of the
Defendants to call any witness during the trial of this case. Defendants seek to pre-empt the
application of the “missing witness” rule, pursuant to which “[a]n adverse inference is permitted
from the failure of a defendant to call witnesses if they are ‘peculiarly within (his) power to produce’
and if their testimony would ‘elucidate the transaction.’” United States v. Blakemore, 489 F.2d 193,
195 (6th Cir. 1973)(quoting Wynn v. United States, 397 F.2d 621, 625 (D.C. Cir. 1967)). Defendants
rely on Allstate Ins. Co. v. Shuler, 53 F.3d 331 (6th Cir. May 2, 1995)(unpublished), an unpublished
table decision noting that “the ‘missing witness’ or ‘uncalled witness’ rule is inapplicable in federal
court.” Id. at *3. However, Allstate relies on the holding in a case from the Fifth Circuit, Herbert
v. Wal-Mart Stores, Inc., 911 F.2d 1044 (5th Cir. 1990) and is inconsistent with Blakemore, a
published opinion from the Sixth Circuit. Moreover, as an unpublished decision, Allstate is not
precedentially binding under the doctrine of stare decisis, but is considered for its persuasive value
3

only. United States v. Sanford, 476 F.3d 391, 396 (6th Cir. 2007). Accordingly, the Court finds that
it is bound by Blakemore, which permits application of the “missing witness” rule. However, as
noted by Blakemore, the application of the “missing witness” rule is to be carefully restricted to
situations where: 1) the uncalled witnesses are peculiarly within the control or power of one party;
and 2) the anticipated testimony of the uncalled witnesses will “elucidate the transaction.”
Blakemore, 489 F.2d at 195-196.
Here, Defendants have not identified any particular witnesses whom they do not anticipate
calling to testify at trial. Thus, the Court is unable to determine whether the circumstances
surrounding the failure to call these witnesses justify the application of the “missing witness” rule.
Accordingly, this portion of Defendants’ motion will be denied. To the extent that Defendants seek
to preclude application of the “missing witness” rule to a particular witness, Defendants may make
an objection at the trial of this matter.
Next, Defendants seek to preclude any statement or testimony comparing or contrasting the
relative wealth of the parties. Defendants argue that such evidence is irrelevant, immaterial and
would prejudice the jury. However, Plaintiff argues that the wealth of a defendant is relevant in
cases involving requests for punitive damages, such as this one, because “a punitive damages award
must remain of sufficient size to achieve the ‘twin purposes of punishment and deterrence.’” Bach
v. First Union Nat. Bank, 486 F.3d 150, 155 (6th Cir. 2007)(quoting Romanski v. Detroit
Entertainment, LLC, 428 F.3d 629, 649 (6th Cir. 2005)).
Although Plaintiff is seeking punitive damages in this case, Defendants’ motion for summary
judgment on Plaintiff’s punitive damages claim is still pending before the Court. Accordingly, this

4

portion of Defendants’ motion will be passed until the Court determines Defendants’ motion for
summary judgment on Plaintiff’s claim for punitive damages.
Defendants also seek to preclude Plaintiff from offering, referring to or, in any way,
presenting information to the jury related to whether any party maintains any type of insurance,
including liability insurance, as well as the costs or limits of any such policy. Plaintiff does not
object to Defendants’ motion. Accordingly, this portion of Defendants’ motion will be granted.
Next, Defendants seek to preclude any hypothetical questions from counsel to fact or lay
witnesses. Although Defendants do not point to any particular anticipated questions or testimony
that they believe would be improper, Defendants rely on Rules 602, 701 and 702 of the Federal Rules
of Evidence and generally argue that such questions would be irrelevant, immaterial and would
prejudice the jury. Plaintiff objects, arguing that this request is far too broad. Plaintiff also points
out that there is potential to ask a hypothetical question that would be relevant and not prejudicial.
The Court rejects Defendants’ invitation to preclude any hypothetical questions in a vacuum and,
accordingly, denies this portion of Defendants’ motion. To the extent that Defendants have an
objection to a specific question, they may make a contemporaneous objection at the trial of this
matter.
Defendants also seek to preclude any reference, testimony or evidence regarding any
subsequent remedial measures taken by Defendants with regard to the Traditions Tracker 209
muzzleloading rifle. However, Defendants do not point to any specific subsequent remedial measure
taken with respect to this rifle that they seek to preclude. In addition, Defendants rely on Rule 407
of the Federal Rules of Evidence as grounds to exclude evidence of subsequent remedial measures.
Although Rule 407 precludes the use of evidence of subsequent remedial measures to prove
5

negligence, culpable conduct, a defect in a product or its design or a need for a warning or
instruction, the Rule further provides that such evidence is admissible for another purpose, such as
impeachment or proving ownership, control, or the feasibility of precautionary measures. Because
Defendants’ motion fails to point to any specific evidence that they deem objectionable, the Court
is unable to evaluate whether this evidence is admissible. Thus, because of the vagueness of
Defendants’ motion, as well as the potential relevance of such evidence under the circumstances
described in Rule 407, this portion of Defendants’ motion will be denied. To the extent that
Defendants have an objection to specific evidence, they may raise this objection at the trial of this
matter.
Defendants next seek to preclude the admission of expert reports of any expert permitted to
testify in this matter. Plaintiff does not object to this portion of Defendants’ motion. Thus, this
portion of Defendants’ motion will be granted.
Next, Defendants seek to preclude Plaintiff’s counsel from making a request or demand for
production of items or documentation in front of the jury. According to Defendants, such a request
should have been dealt with in discovery and it would be highly prejudicial to Defendants to make
such a request in front of the jury. Plaintiff objects, arguing the Defendants’ motion is overly broad.
According to Plaintiff, if a witness should testify at trial as to the existence of some document that
has not been produced in discovery, it would be highly prejudicial to Plaintiff to prohibit a request
about this document. Regardless, Defendants’ motion is so vague and overly broad that the Court
is unable to determine what, exactly, Defendant seeks to exclude. Accordingly, Defendants’ motion
will be denied.

6

Defendants also seek to preclude Plaintiff and lay witnesses from testifying or offering
opinions regarding specialized knowledge of economic evaluation, on the grounds that such
witnesses are not qualified as economic experts by knowledge, skill, experience, training or
education. Again, Defendants do not point to any specific testimony from any specific witness that
they seek to preclude. Regardless, Plaintiff objects to the extent that Defendants’ motion would
preclude testimony from Tiffany Manuel, or any other knowledgeable lay witnesses, as to Kevin
Manuel’s earnings. Plaintiff also objects to the extent that Defendants seek to preclude testimony
from Tiffany Manuel as to her medical expenses. Plaintiff argues that this information is well within
the personal knowledge of Tiffany Manuel and requires no specialized skill.
Without the identification of specific testimony from a specific witness that Defendants
believe should be precluded, the Court cannot properly evaluate whether this evidence is admissible.
Thus, because Defendants’ motion is so vague, this portion of Defendants’ motion will be denied.
However, the Court notes that, when presenting opinion testimony by lay witnesses, the parties are
bound by the requirements of Rules 701 and 702 of the Federal Rules of Evidence. The Court
further notes that, to the extent that facts regarding Kevin Manuel’s earnings and/or the medical
expenses incurred by Tiffany Manuel are rationally based on any lay witness’s perception, testimony
about these facts by these witnesses is not based on scientific, technical, or other specialized
knowledge and is otherwise not precluded by Rules 701 or Rule 702. Otherwise, to the extent that
Defendants have an objection to specific evidence, they may raise this objection at the trial of this
matter.
Finally, Defendants seek to preclude Plaintiff’s counsel from making any “send a message”
arguments in opening or closing statements. According to Defendants, such arguments would be
7

inappropriate and would invite the jury to render a verdict on bases other than the evidence. Plaintiff
objects to Defendants’ motion and argues that such an argument is permissible to the extent that it
would support its claim for punitive damages. However, as Defendants’ motion for summary
judgment on Plaintiff’s punitive damages claim is still pending before the Court, this portion of
Defendants’ motion will be passed until the Court determines Defendants’ motion for summary
judgment on Plaintiff’s claim for punitive damages.
Accordingly, the Court, being fully and sufficiently advised, hereby ORDERS as follows:
1.

Defendants’ motion in limine regarding certain evidentiary issues [DE #68] is GRANTED
IN PART and DENIED IN PART as set forth above; and

2.

the portions of Defendants’ motion related to Plaintiff’s claim for punitive damages are
PASSED until the Court determines Defendants’ motion for summary judgment on
Plaintiff’s claim for punitive damages.
This December 14, 2011.

8