Von Wiegen et al v. Shelter Mutual Insurance Company

Filing 55

MEMORANDUM OPINION & ORDER: 1) 37 FIRST MOTION in Limine to Prohibit Certain Comments, Evidence re Other Lawsuits, Testimony is GRANTED in part and DENIED in part. 2) Unless the dft obtains prior approval from the Court, the dft including its attys & witnesses, shall be prohibited from offering any of the following (listed within order). Signed by Judge Danny C. Reeves on 12/17/2013.(SCD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
ERIC P. VON WIEGEN and
PAMELA VON WIEGEN,
Plaintiffs,
V.
SHELTER MUTUAL INSURANCE
COMPANY,
Defendant.

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Civil Action No. 5: 13-040-DCR

MEMORANDUM OPINION
AND ORDER

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Plaintiffs Eric P. von Wiegen and Pamela von Wiegen have moved the Court to
prohibit at trial certain comments, evidence, and testimony that they believe are improper.
[Record No. 37] Having reviewed the motion and response, the Court finds that a reply is
not needed.1 For the reasons set forth below, the plaintiffs’ motion will be granted, in part,
and denied, in part.
I.
This case arises out of an automobile accident involving Plaintiff Eric von Wiegen
that occurred on July 9, 2010. [Record No. 1-1] Von Wiegen claims that he was injured
when his automobile was rear-ended by a vehicle operated by another driver. Because the

1

This motion lists twenty-nine separate items that the plaintiffs seek to exclude; however, there is no
indication that the defendant intends to offer evidence, arguments or comments regarding many of the items
listed. Thus, it appears that much of this motion is wholly unnecessary.

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alleged injuries exceeded the insurance coverage of the other driver, after settlement, the
plaintiffs submitted a claim under the underinsured motorist (“UIM”) policy issued by the
defendant.
The plaintiffs have asserted two claims in this action. First, they contend that Shelter
owes them UIM benefits under their policy. Second the von Wiegens assert that Shelter
acted in bad faith in adjusting their UIM claim. On July 17, 2013, the Court bifurcated the
bad faith claim, and stayed discovery on that claim until the underlying coverage issue is
resolved. [Record No. 15] After discovery on the first claim, the parties filed several
motions, including the motion in limine discussed herein.
II.
While the Federal Rules of Evidence do not explicitly authorize in limine rulings, the
practice has developed pursuant to a district court’s inherent authority to manage the course
of trials. Luce v. United States, 469 U.S. 38, 41 (1984). Although a party can ask the Court
to make an in limine ruling on evidentiary matters, it is within the Court’s discretion to do
so. In short, there is no right to an in limine ruling. Huddleston v. United States, 485 U.S.
681, 688–89 (1988). In fact, a ruling on a motion in limine is nothing more than a
preliminary opinion which allows the parties to better formulate their trial strategy. United
States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994). In addition, “[t]he court has the power
to exclude evidence in limine only when evidence is clearly inadmissible on all potential
grounds.” Ind. Ins. Co. v. GE, 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004).

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A.

Agreed Exclusions

There are a number of matters that the plaintiffs seek to exclude and that Shelter
agrees should be excluded. In addition, these matters would be improper if presented during
trial. The Court will grant the plaintiffs’ motion with respect to those items.
Accordingly, the following will be excluded: any negative or disparaging remarks
about attorneys and the legal profession [Record No. 37, ¶2]; testimony regarding increases
in insurance premiums as the result of lawsuits [Id., ¶4]; references to the negative effects
of jury awards on businesses [Id., ¶5]; testimony that Plaintiff Eric P. von Wiegen caused or
contributed to the accident or his injuries on July 9, 20102 [Id., ¶¶7,8]; evidence containing
sensitive personal identifiers [Id., ¶18]; testimony about ethnic backgrounds or religious
beliefs [Id., ¶19]; arguments that the jury must expend special efforts to be fair and impartial
to corporations [Id., ¶21]; improper speaking objections [Id., ¶22]; evidence regarding
plaintiffs’ use of any amount recovered or the taxation of that amount [Id., ¶¶23, 24];
arguments that the jury should reduce future earnings for personal consumption [Id., ¶25];
“Golden rule” arguments [Id., ¶28]; and any testimony or suggestions regarding the potential
testimony of any witness not called. [Id., ¶29] The plaintiffs’ motion will be granted with
respect to those matters.

2

In response to the plaintiffs’ requests to admit, Shelter admits that Brittany Turley was the sole cause
of the July 9, 2010 collision, and that she was the sole cause of the injuries suffered by Eric P. von Wiegen
on July 9, 2010. [Record No. 4, p. 7]

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B.

Contested Exclusions
1.

Evidence that Shelter is a “good company”

The plaintiffs attempt to exclude “[a]ny and all attempts” by Shelter to show that it
is “good company” or that it timely pays valid claims. [Record No. 37, ¶1] The plaintiffs
cite Estate of Miller v. Ford, No. 2:01-cv-545-FtM-29DNF, 2004 U.S. Dist. LEXIS, at *7
(M.D. Fla. Nov. 17, 2004), in support of this request. In that case, as here, the court was
faced with a number of motions in limine, one of which was a motion to prevent Ford from
offering references, remarks or evidence concerning its “good acts.” Id. at *10-11. The court
sustained the motion, noting that such an offering would be irrelevant and prejudicial. Id.
Here, however, the Court declines to issue such a broad ruling because there is no
indication that these remarks would necessarily be improper. To illustrate: at least part of
the plaintiffs’ case is centered upon the supposition that Shelter acted improperly in its
scheduling of an Independent Medical Examination and in handling the plaintiffs’ claim.
[See., e.g., Record No. 35, p. 12.] For the sake of argument, Shelter could rebut this assertion
by offering evidence showing that it acted properly and in a timely manner in processing the
von Wiegens’ claims. A ruling as broad as the plaintiffs request would act as a bar to such
a proper proffer by Shelter.
At this time, it is simply too speculative to determine whether Shelter should be
precluded from offering any evidence that it is a good company or that it timely pays claims.
And the plaintiffs have not shown that this evidence would be “clearly inadmissible on all

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potential grounds.” See Ind. Ins. Co., 326 F. Supp. 2d at 846. Accordingly, the plaintiffs’
request will be denied.
2.

Testimony of Calvin D. Cranfill

The plaintiffs also move to exclude any testimony of Calvin D. Cranfill, or any
reference to his opinions on economic damages in this case. However, the plaintiffs have
filed two other motions in limine regarding the exclusion of Cranfill’s testimony, which will
be addressed after the scheduled hearing of the matter. [Record Nos. 32, 36] Accordingly,
the Court will not address this issue until those motions are fully ripe.
3.

Cause of Injury

The plaintiffs seek to exclude any testimony that Plaintiff Eric P. von Wiegen suffered
any injuries to his neck, left arm, shoulder, or hand, at any time prior to July 9, 2010. The
plaintiffs contend that Shelter admitted that Eric P. von Wiegen had no prior injuries in its
discovery responses. [Record No. 37, ¶9] However, the admission by Shelter actually stated
that Shelter has “no factual evidence that Plaintiff, Eric P. von Wiegen, suffered any injuries
to his neck, left arm/shoulder, and hand at any [] time prior or subsequent to July 9, 2010.”
[Record No. 4, p. 7 (emphasis added)] The admission was limited to the evidence Shelter
had at that time. Accordingly, if Shelter subsequently discovered any evidence of a previous
injury before or during trial, it would be allowed to present such evidence without
contravening its admission. Accordingly, the request to exclude evidence of injury prior to
July 9, 2010, will be denied.

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4.

Evidence from State Court Case

The plaintiffs seek to exclude any evidence, deposition testimony, documents, or
pleadings in the case of Eric P. von Wiegen & Pamela von Wiegen v. Brittany Turley, Civil
Action No. 11-CI-3170, without prior notice to opposing counsel. [Record No. 37, ¶16]
Shelter responds that it does not object to this motion, and gives notice that “documents from
the Fayette Circuit Court action will be used to impeach Plaintiffs if their testimony or
arguments presented by their counsel are inconsistent with the information presented in the
Fayette Circuit Court action.” [Record No. 51, p. 5] Because Shelter has given notice in
accordance with the plaintiffs’ request, this motion will be denied.
5.

Opposing Counsel’s Files

The plaintiffs also state that “[n]o counsel shall make demands or requests before the
jury for matters or documents found in the opposing counsel’s or party’s files.” [Record No.
37, ¶17] Shelter responds that this should be denied because it is vague and ambiguous, and
the Court agrees. This request will be denied.
6.

Settlement Offers

The plaintiffs next seek to exclude evidence, statements, or any reference to settlement
letters or offers to settle, or prior settlement discussions. [Record No. 37, ¶20] Shelter
responds that it does not object to this request “to the extent it pertains to settlement demands
or offers, but does reserve the right to introduce documents relating to attempts to resolve this
matter to the extent they relate to Plaintiffs’ failure to comply with the terms and conditions
of the applicable insurance policies.” [Record No. 51, p. 5]
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Evidence of settlement offers and negotiations by either party are inadmissible unless
one of the limited exceptions is met. Fed. R. Evid. 408. Without viewing the documents
Shelter may proffer and without an explanation regarding the purpose of the use thereof, the
Court cannot determine whether such documents may be admissible. Accordingly, this
request will be denied.
7.

References to Equally-Available Witnesses

The plaintiffs next seek to exclude any reference or suggestion by Shelter that the
plaintiffs have not called any witness equally available to both parties in this case. [Record
No. 37, ¶27 (citing United States v. Virgen-Moreno, 265 F.3d 276, 291 (6th Cir. 2001) and
Elam v. Menzies, 594 F.3d 463, 469 (6th Cir. 2010).] The defendant requests that this motion
be denied insofar as it prevents Shelter from commenting on the absence of evidence to
support the plaintiffs’ claims.
“When it would be natural under the circumstances for a party to call a particular
witness . . . and the party fails to do so, tradition has allowed the adversary to use this failure
as the basis for invoking an adverse inference.” 2 McCormick on Evidence § 265 (6th ed.)
In Kentucky, an “adverse inference” is inapplicable where a witness is available to both
parties. Whitcomb v. Whitcomb, 267 S.W.2d 400, 402 (Ky. 1954); see also Menzies, 594
F.3d at 469 (“Some precedent exists suggesting that no adverse inference may be drawn from
the failure to depose a witness who was equally available to both parties.”). Accordingly,
the Court will grant this motion to the extent it is consistent with the “adverse inference”

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standard under Kentucky law. Any comment regarding the failure of a witness to testify,
where the witness was equally available, will be limited.
C.

General Exclusions

The plaintiffs seek a number of broad exclusions, without argument or explanation
of the impropriety of the evidence as it may apply in this case. They seek to exclude: (1) any
personal derogatory remarks concerning opposing counsel, any experts, or the parties; (2)
testimony or evidence from non-testifying witnesses or a witness whose identity was not
specifically disclosed; (3) statements from counsel regarding a belief that a witness is
“honorable”; (4) any expression by an attorney concerning the credibility of a witness or the
merits of the opposing party’s case; (5) comments on any item not in evidence; and (6) expert
testimony that differs from the expert’s report or deposition. [Record No. 37, pp. 2-4]
Shelter objects to these requests as overly broad and inconsistent with the Federal
Rules of Evidence. [Record No. 51, p. 3] The Court agrees. For example, counsel may
question the qualifications of a witness who is being offered as an expert witness. See Fed.
R. Evid. 701, 702. Such a line of questioning could be considered a “personal derogatory
remark” by counsel. And parties are permitted to attack the credibility of adverse witnesses,
even where they have called the witness. See Fed. R. Evid. 607.
If an expert witness testified differently than his or her deposition, this would be a
proper matter for cross-examination, not necessarily exclusion of the testimony. And jurors
are specifically instructed that statements by lawyers and arguments are not evidence, and
that jurors, alone, are responsible for determining the credibility of witnesses. See, e.g. Sixth
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Circuit Pattern Jury Instructions § 1.04(3); 1.07. Comments on items not in evidence may
– or may not – violate the “best evidence” rule. See Fed. R. Evid. 1002. The Court will deny
the plaintiffs’ motion regarding these matters. [See Record No. 37, ¶3, 10, 11, 12, 13, 14,
15.]
III.
Based on the foregoing discussion and analysis, it is hereby
ORDERED as follows:
1.

The plaintiffs’ Motion in Limine [Record No. 37] is GRANTED, in part, and

DENIED, in part.
2.

Unless the defendant obtains prior approval from the Court, the defendant,

including its attorneys and witnesses, shall be prohibited from offering any of the following:
any negative or disparaging remarks about attorneys and the legal profession [Record No.
37, ¶2]; testimony regarding increases in insurance premiums as the result of lawsuits [Id.,
¶4]; references to negative effects of jury awards on businesses [Id., ¶5]; testimony that
Plaintiff Eric P. von Wiegen caused or contributed to the accident or his injuries on July 9,
2010 [Id., ¶¶7,8]; evidence containing sensitive personal identifiers [Id., ¶18]; testimony
about ethnic background or religious beliefs [Id., ¶19]; arguments that the jury must expend
special efforts to be fair and impartial to corporations [Id., ¶21]; improper speaking
objections [Id., ¶22]; evidence regarding plaintiffs’ use of any amount recovered or the
taxation of that amount [Id., ¶¶23, 24]; arguments that the jury should reduce future earnings
for personal consumption [Id., ¶25]; adverse inferences regarding equally-available
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witnesses. [Id., ¶27]; “Golden rule” arguments [Id., ¶28]; and any testimony or suggestion
regarding the potential testimony of any witness not called. [Id., ¶29]
This 17th day of December, 2013.

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