HINTON v. OUTBOARD MARINE CORPORATION et al

Filing 165

ORDER on 142 Motion in Limine to Exclude Certain Evidence. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MICHAEL HINTON,
Plaintiff,
v.
OUTBOARD MARINE
CORPORATION, et al.,
Defendants.

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1:09-cv-00554-JAW

ORDER ON MOTION TO EXCLUDE CERTAIN EVIDENCE
With an impending trial, Michael Hinton moves in limine to obtain a pretrial
ruling on certain issues. Pl.’s First Mot. in Limine to Exclude Certain Evid. (Docket
# 142) (Pl.’s Mot.). The Defendants responded. Defs.’ Resp. to Pl.’s Mot. in Limine to
Exclude Certain Evid. (Docket # 155) (Defs.’ Opp’n).

In this Order, the Court

focuses solely on whether the Defendants will be allowed to call Plaintiff’s counsel,
Arthur J. Greif, as a witness.
Observing that OMC Recreational Boat Group, Inc. and Outboard Marine
Corporation (collectively OMC) listed Mr. Hinton’s trial lawyer, Arthur J. Greif,
Esq., as a witness, Mr. Hinton moves for an order preventing OMC from calling his
lawyer to testify. Pl.’s Mot. at 2-3.

Mr. Hinton’s counsel worries that OMC is

attempting to disqualify him from continuing to represent Mr. Hinton. Id. at 2. He
notes that despite the requirements of the Pretrial Order, OMC failed to set forth a
description of Mr. Greif’s proposed testimony and that, if he has personal

knowledge, OMC failed to properly list him as such in their initial disclosures and
interrogatory answers.

Id.

at 2-3.

OMC responds that Mr. Greif is “the only

witness who has personal knowledge of the attempted service on the Defendants
OMC or who can testify as to Plaintiff’s admission that in 1989 Four Winns, Inc.
was a separate corporation with its own board of directors, etc.” Defs.’ Opp’n at 14.
To begin, before OMC is allowed to call Mr. Greif as a witness, they must
obtain the Court’s permission. D. ME. LOC. R. 39(d) (“No attorney shall without
leave of Court conduct the trial of a jury action in which the attorney is a witness
for the party represented at trial”). OMC has not sought that permission.1
Moreover, OMC does not address the applicability of Rule 3.7 of the Maine
Rules of Professional Conduct, which generally forbids an attorney from acting as
an advocate at a tribunal in which the lawyer is likely to be a necessary witness.
ME. R. PROF. CONDUCT 3.7. The Rule contains two exceptions potentially applicable
here:
(1) The testimony relates to an uncontested issue; or
(2) Disqualification would work substantial hardship on the client.
Id. 3.7(a)(1), (3). The Maine Professional Rules note that the mixing of advocate
and witness roles may confuse or mislead the jury because it “may not be clear
whether a statement by an advocate-witness should be taken as proof or as an

Although OMC listed Mr. Greif as a witness in its Final Pretrial Memorandum, Defs.’ Pretrial
Mem. at 4 (Docket # 101), the Report of Final Pretrial Conference and Order does not refer to this
issue. Report of Final Pretrial Conf. and Order (Docket # 103). The parties should have raised this
issue front and center with the Magistrate Judge on December 5, 2011 and should have proposed a
means to brief and resolve it. The first the Court was aware of the issue was with the January 6,
2012 Hinton motion and the January 13, 2012 OMC response. At the very least, the parties should
have alerted the Court to this issue at the Daubert hearing on January 10, 2012.
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analysis of the proof.” Id. Comment (2). The Maine Professional Rules allow the
attorney to act as a witness if “the testimony will be uncontested” and “the
ambiguities in the dual role are purely theoretical.”

Id. Comment (3).

If the

testimony is contested, the Rules provide that “a balancing is required between the
interests of the client and those of the tribunal and the opposing party.”

Id.

Comment (4). The Rules mention such factors as “whether it is a bench, jury trial,
or other proceeding, the nature of the case, the importance and probable tenor of the
lawyer’s testimony, and the probability that the lawyer’s testimony will conflict
with that of other witnesses.”

Id.

“Even if there is risk of such prejudice, in

determining whether the lawyer should be disqualified, due regard must be given to
the effect of disqualification on the lawyer’s client. It is relevant that one or both
parties could reasonably foresee that the lawyer would probably be a witness.” Id.
In view of these serious considerations, the Court turns to why OMC insists
that they must call opposing counsel as a witness. Turning first to Mr. Greif ‘s
knowledge of attempted service of process, this issue relates to OMC’s three-year
statute of limitations defense in which OMC contends that the statute of limitations
expired on this claim on September 10, 2003.

Defs.’ Opp’n at 2.

The Court

preliminarily addressed this issue in a December 10, 2010 Order. Order Denying
Mot. for J. on the Pleadings (Docket # 38) (Order). In that Order, the Court set
forth the convoluted history of this lawsuit from the July 18, 2003 filing of the
Complaint, through three amended complaints, dismissals, service of process issues,
requests for enlargement, and an intervening suggestion of bankruptcy. Id. at 1-4.

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It concluded that disputed factual issues precluded a definitive answer on whether
OMC’s statute of limitations defense bars this action. Id.
To place the question of service of process in proper context, in response to
OMC’s earlier statute of limitations motion, Mr. Hinton asserted that after filing
the Complaint on July 18, 2003, he served OMC, Inc.’s registered agent on
September 12, 2003, he served Outboard Maine Corporation on March 8, 2004, he
served Four Winns, Inc. on June 18, 2004, and that he received an email
acknowledgement from the attorneys for the Chapter 7 Trustee for Outboard
Marine Corporation on July 24, 2004. Id. at 8-9. OMC denied that it received
service at these times and has put Mr. Hinton to his proof. Defs.’ Opp’n at 8-9.
OMC contends that Mr. Greif, who directed Mr. Hinton’s efforts to effect service, is
a necessary witness on this issue. Id. at 14.
The second basis for seeking Mr. Greif’s testimony—that Mr. Greif is the only
person who can testify about Mr. Hinton’s admission that in 1989 Four Winns, Inc.
was a separate corporation—is more elusive. Mr. Hinton named Four Winns, Inc.
and Four Winns Boats, L.L.C. as party Defendants in the First Amended Complaint
filed on September 9, 2003. State Ct. Record Attach. 5 First Am. Compl. (Docket
# 6) (First Am. Compl.). On October 15, 2003, he dismissed his claim against Four
Winns Boats, LLC. Id. Attach. 10 Dismissal of a Party Pursuant to M.R. Civ. P.
41(a)(1)(i). On August 16, 2004, the same day Outboard Marine filed a suggestion
of bankruptcy, the Maine Superior Court dismissed Four Winns, Inc. as a party

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Defendant. Order at 3.2 Finally, on February 2, 2009, Mr. Hinton filed a Second
Amended Complaint, alleging that Four Winns, Inc. was a division of Outboard
Marine Corporation. Id. at 3.
If Four Winns, Inc. was a division of Outboard Marine Corporation, Mr.
Hinton can claim that in impleading Outboard Marine Corporation, he is suing
Four Winns, Inc. too and if his suit against Outboard Marine Corporation is timely
so is his suit against Four Winns, Inc. By contrast, if Four Winns, Inc. was a standalone corporation, OMC says he dismissed the timely claim in 2003 and 2004 and he
cannot now resurrect the lawsuit against Four Winns, Inc.
To prove that Four Winns was a stand-alone corporation in 1989, when the
accident boat was sold, OMC intends to confront Mr. Greif with his own allegation,
namely the First Amended Complaint in which he alleged that “Defendant, Four
Winns, Inc., was principally engaged in the manufacture of recreational boats and
component parts in 1989.” First Am. Compl. ¶ 2. To buttress their contention,
OMC cites Schott Motorcycle Supply, Inc. v. Am. Honda Motor Co., Inc., 976 F.2d 58
(1st Cir. 1992) in which the First Circuit wrote that “[a] party’s assertion of fact in a
pleading is a judicial admission by which it normally is bound throughout the
course of the proceeding.” Defs.’ Opp’n at 12 (citing Schott, 976 F.2d at 61).
The Court is not at all certain that Schott would hold Mr. Hinton to an early
and disavowed allegation. In Schott, the plaintiff had alleged that it was a party to
a particular contract and then in an attempt to avoid summary judgment, it
In its Order, the Court observed that the state court record on the period from May 3, 2004 to
February 4, 2009 is sparse and unclear. Order at 3. However, the parties seem to agree that the
Superior Court dismissed Mr. Hinton’s claim against Four Winns, Inc. on August 16, 2004. Id.
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asserted that contract had been revoked. 976 F.2d at 61. Noting that the plaintiff
had “clearly and unambiguously alleged in its original complaint and amended
complaints that it was a party to the 1985 Agreement,” the First Circuit affirmed
the district court’s conclusion that the “plaintiff should not be allowed to contradict
its express factual assertion in an attempt to avoid summary judgment.” Id.
In the unusual circumstances of this case, where the manufacturer of the
accident boat has undergone a series of chameleon-like changes, OMC has the
laboring oar to convince the Court to hold Mr. Hinton to the allegation in the First
Amended Complaint. In Lady v. Neal Glaser Marine, Inc., 228 F.3d 598 (5th Cir.
2000), the Fifth Circuit described Outboard Marine Corporation as follows:
“Outboard Marine Corporation, doing business as OMC, Inc., doing business as
OMCCC, doing business as Chris Craft.” Id. at 598. Here, there is evidence of
perhaps three more identities: OMC Recreational Boat Group, Inc., Four Winns
Boats, L.L.C., and Four Winns, Inc.

Given OMC’s multiple identities, it is

unremarkable that Mr. Hinton was flummoxed for a while about whom to sue. In
these circumstances, the Court remains to be convinced that OMC should be
allowed to call Mr. Hinton’s lawyer and grill him about his early and rectified
identification of the proper defendant.
Neither of these issues, however, affects the trial of the products liability
claim. Therefore, in view of OMC’s position, the Court is not inclined to allow the
parties to proceed forward at the same time on both the products liability and
corporate identity/statute of limitations claims. FED. R. CIV. P. 42(b); McKellar v.

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Clark Equip. Co., 101 F.R.D. 93, 94 (D. Me. 1984) (listing bifurcation criteria). The
Maine Rules of Professional Conduct advise strongly against proceeding with a
trial, where the lawyer for a party is called as a witness and cross-examined by the
opposing party’s counsel.

A simple example will suffice.

During his closing

argument, when Mr. Greif presents his view of his own testimony, he would be
vouching for his own credibility, a potential violation of the Maine Rules of
Professional Conduct. ME. R. PROF. CONDUCT 3.4(e) (“A lawyer shall not in trial, . . .
assert personal knowledge of facts in issue except when testifying as a witness, or
state a personal opinion as to . . . the credibility of a witness”). Yet, to properly
represent his client, he cannot ethically avoid discussing an issue that requires
juror resolution. As both witness and attorney, Mr. Greif would be in an untenable
position.
In the Court’s view, if OMC wishes to present Mr. Greif as a witness on this
issue, the Court should bifurcate the case, allowing Mr. Greif to proceed forward
with the products liability aspect of the lawsuit on January 30, 2012 and putting
aside for the time being the dense question of whether the current OMC Defendants
are the proper defendants and whether they were brought in too late. If Mr. Hinton
successfully obtains a verdict, the Court would convene a separate jury to find facts
necessary to resolve OMC’s statute of limitations and corporate identity defenses. If
this occurs, the Court will address whether another member of Mr. Greif’s firm
could ethically represent Mr. Hinton or whether it will be necessary to obtain new
counsel to proceed with this part of the lawsuit. If Mr. Hinton is unsuccessful, the

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case is over and the Court, the parties, and the jurors will be relieved from resolving
these questions.
The Court is scheduling an immediate conference of counsel to discuss this
matter.
SO ORDERED.

/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 23rd day of January, 2012

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