BICKFORD v. MARRINER
Filing
49
ORDER granting in part and dismissing in part without prejudice 33 Motion in Limine to Exclude Any Evidence of the Existence of Insurance ; granting in part and dismissing in part without prejudice 34 Motion in Limine Regarding Treatment of Alc ohol Abuse; dismissing without prejudice 35 Motion in Limine Regarding Child Support Obligation; granting 36 Motion in Limine Regarding Collateral Source Rule; granting in part dismissing in part without prejudice 37 Motion in Limine Regarding Criminal Convictions; granting in part and denying in part 39 Motion in Limine to Exclude Evidence Proffered Through the Deposition of Paul McFaraland By JUDGE JOHN A. WOODCOCK, JR. (jgw)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DAVID A. BICKFORD,
Plaintiff,
v.
ALAN D. MARRINER,
Defendant.
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2:12-cv-00017-JAW
ORDER ON MOTIONS IN LIMINE
In this admiralty case, David A. Bickford alleges that he sustained chemical
burns to his wrists and hands on February 12, 2010, while washing lobster buoys
aboard Alan D. Marriner’s vessel, the F/V COOL BREEZE. Mr. Marriner denies all
liability, asserting that Mr. Bickford has not worked for him since approximately
2002 and that the F/V COOL BREEZE was not even in the water on February 12,
2010. The parties have submitted and the Court has ruled on six motions in limine
in anticipation of trial.
I.
EVIDENCE OF THE EXISTENCE OF INSURANCE
Mr. Marriner moves in limine to exclude any evidence of his own liability
insurance coverage as well as any evidence of the Plaintiff’s lack of health
insurance. Def. Alan D. Marriner’s Mot. in Limine to Exclude Any Evidence of the
Existence of Insurance (ECF No. 33) (Def.’s First Mot.). Regarding evidence of Mr.
Bickford’s lack of health insurance, there is no disagreement. Mr. Bickford assures
the Court that he “recognizes the irrelevant and prejudicial nature of this evidence”
and that he has “no intention of mentioning or offering evidence that he lacked
medical insurance coverage at the time of the injury.” Pl.’s Opp’n to Def.’s Mot. in
Limine to Exclude Any Evidence of the Existence of Insurance, 2-3 (ECF No. 38)
(Pl.’s First Opp’n). Based on the agreement of the parties, the Court grants Alan
Marriner’s motion in limine regarding the admissibility of evidence of Mr. Bickford’s
lack of medical insurance.
Regarding whether Mr. Marriner had liability insurance, Mr. Bickford agrees
that such evidence is generally inadmissible but stresses that there is “a myriad of
circumstances” that “could render the Defendant’s liability insurance policy
admissible.”
Id. at 2.
He posits as an example the Defendant’s putting “his
finances in issue by testifying or otherwise presenting himself as someone without
adequate finances to pay any damage award.” Id. Mr. Bickford thus urges the
Court to deny the motion in limine “as not yet ripe for adjudication.” Id.
As the parties recognize, “[e]vidence that a person was or was not insured
against liability is not admissible to prove whether the person acted negligently or
otherwise wrongfully.” FED. R. EVID. 411. Mr. Bickford is correct that Rule 411
prohibits the admission of such evidence only when a party seeks to introduce it as
proof of fault or negligence. See id. (“But the court may admit this evidence for
another purpose, such as proving a witness’s bias or prejudice or proving agency,
ownership, or control”); see, e.g., Conde v. Starlight I, 103 F.3d 210, 213-14 (1st Cir.
1997) (holding that repeated references to a witness as an “adjuster” did not
contravene Rule 411 because they were intended to show the possible bias or
2
prejudice of the witness rather than to prove negligence). However, as the Advisory
Committee on Evidence Rules explained, Rule 411 is based on “the feeling that
knowledge of the presence or absence of liability insurance would induce juries to
decide cases on improper grounds.” FED. R. EVID. 411 advisory committee’s note
(1972). As it is possible that the evidence or argument at trial will justify the
admission of evidence of liability insurance, the Court dismisses without prejudice
this aspect of Mr. Marriner’s motion. The Court cautions Mr. Bickford, however,
that before he seeks to introduce such evidence, he must alert the Court and explain
why the potential prejudice to Mr. Marriner would not substantially outweigh its
probative value.1 See FED. R. EVID. 403.
II.
PAUL MCFARLAND’S DEPOSITION
In his second motion in limine, Mr. Marriner seeks to exclude any evidence
from or reference to the deposition of Paul McFarland. Def. Alan D. Marriner’s Mot.
in Limine to Exclude Evidence Proffered Through the Deposition of Paul
McFaraland [sic] (ECF No. 39) (Def.’s Second Mot.).
Mr. Bickford opposes this
motion. Pl.’s Opp’n to Def.’s Mot. in Limine to Exclude Evidence Proffered Through
the Deposition of Paul McFarland (ECF No. 40) (Pl.’s Second Opp’n).
Mr. Marriner represents that “[t]he primary factual dispute in this action is
whether or not Defendant’s lobster boat, F/V COOL BREEZE was even in the water
Mr. Bickford’s counsel was plaintiff’s counsel in Conde v. Starlight I and according to the
First Circuit, he repeatedly referred to one of the witnesses as an “adjuster” during direct and
redirect examination and in closing argument. Id. 103 F.3d at 213-14. The First Circuit concluded
these references were not improper because the “entire defense centered on [the adjuster’s]
credibility.” Id. at 214. No similar circumstances appear in this case and the Court is decidedly
skeptical about Mr. Bickford’s contention that evidence of liability insurance might be admissible.
1
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on the date plaintiff says he was injured while working aboard her.” Def.’s Second
Mot. at 2. Relevant to this dispute is an invoice dated February 15, 2010, for 242.09
gallons of diesel fuel.
Pl.’s Second Opp’n Attach. 2, Fuel Invoices of the Def.
Provided by the O’Hara Corp., 2 (ECF No. 40-2). On its face, the invoice suggests
that Journey’s End Marina, in Rockland, Maine, dispensed fuel on February 8,
2010, to the boat “Cool Breeze.” Id. Mr. Bickford alleges that his injury occurred on
board the F/V COOL BREEZE on February 12, 2010. Pl.’s Compl. and Demand for
Jury Trial ¶¶ 3-11 (ECF No. 1) (Compl.).
Seeking to rebut the obvious implications of this invoice, Mr. Marriner states
in his brief that he “has a scallop boat in addition to the COOL BREEZE, which is a
lobster boat, and purchases fuel for it at Journey’s End Marina as well.” Def.’s
Second Mot. at 3. According to Michael Davee, the General Manager of Journey’s
End Marina, the “fact that the vessel name ‘COOL BREEZE’ appears on a fuel
invoice to the account of Mr. Marriner for a purchase of fuel in February of 2010
does not establish that that vessel received the fuel charged on that invoice.” Id.
Attach. 2, Aff. of Michael Davee, ¶ 7 (ECF No. 39-2) (Davee Aff.).
Mr. Bickford provided formal notice to the O’Hara Corporation (O’Hara),
which owned Journey’s End Marina, that it would be deposed on September 14,
2012, regarding the February 2010 invoice and fuel sale. See Pl.’s Second Opp’n
Attach. 3, Pl.’s Second Notice of Dep. (ECF No. 40-3). Pursuant to Federal Rule of
Civil Procedure 30(b)(6), Mr. Bickford requested that O’Hara designate one or more
persons to testify on its behalf. Id.; see FED. R. CIV. P. 30(b)(6).
4
O’Hara’s General Manager, Paul McFarland, Sr., appeared to testify on
O’Hara’s behalf, although Mr. McFarland acknowledged that “O’Hara Corporation
[hadn’t] really officially designated” him to testify. Pl.’s Second Opp’n Attach. 4, Tr.
Testimony from Dep. of Paul McFarland, Sr., 6:20-25 (ECF No. 40-4) (McFarland
Dep.). Mr. Marriner now seeks to exclude, on three grounds, the entirety of Mr.
McFarland’s deposition.
A.
Rule 30(b)(6)
Mr. Marriner first contends that Mr. McFarland was not competent to testify
about the invoices.
Def.’s Second Mot. at 3-4.
He argues that “[d]uring the
deposition, it became clear that the deponent did not have the requisite knowledge
to provide information about how the accounts were set up and what could or could
not be concluded from the information appearing on the Journey’s End Marina
invoices.” Id. at 4. He maintains that, given Mr. McFarland’s lack of knowledge,
Mr. Marriner “had a right to continue the deposition and ask questions of” Pam Lea
and Mike Davee, both of whom Mr. McFarland said knew more about Journey’s End
Marina’s account systems than he did. Id.
Although Mr. Marriner does not specifically mention Rule 30(b)(6), the
substance of this objection seems to be that O’Hara improperly designated Mr.
McFarland under Rule 30(b)(6) because two other employees—namely, Ms. Lea and
Mr. Davee—were more knowledgeable than Mr. McFarland about the designated
subjects of the deposition. Def.’s Second Mot. at 4 (“If it becomes apparent at the
deposition that the witness lacks knowledge, the organization must designate an
5
appropriate witness”) (citing Great Am. Ins. Co. of N.Y. v. Vegas Constr. Co., Inc.,
251 F.R.D. 534, 540 (D. Nev. 2008)). In response, Mr. Bickford denies that Rule
30(b)(6) requires an “official” designation and asserts that Mr. McFarland did
indeed have the requisite knowledge to be a competent witness for O’Hara. Pl.’s
Second Mot. at 5-9.
Rule 30(b)(6) provides that “[t]he named organization must [ ] designate one
or more officers, directors, or managing agents, or designate other persons who
consent to testify on its behalf. . . . The persons designated must testify about
information known or reasonably available to the organization.” FED. R. CIV. P.
30(b)(6). Courts have held that Rule 30(b)(6) requires deposed corporations to both
properly identify a capable witness and adequately prepare the witness to answer
questions about the designated topics. See 8A CHARLES ALAN WRIGHT, ARTHUR R.
MILLER,
AND
RICHARD L. MARCUS, FEDERAL PRACTICE
AND
PROCEDURE § 2103, at
458-461 (3d ed. 2010) (WRIGHT, MILLER, AND MARCUS).
On the merits of Mr. Marriner’s objection, this appears to be a close case. Mr.
McFarland’s testimony shows that Mr. McFarland was knowledgeable generally
about Journey’s End Marina’s business practices but suggests that O’Hara made no
attempt to identify the most appropriate designee or to prepare Mr. McFarland to
testify. Mr. McFarland testified that he was the General Manager of O’Hara and
that he had worked at O’Hara in various capacities since the early to mid-1970s,
starting as a general laborer on the dock, and including a stint as a plant
superintendent; moreover, he had personal experience pumping gas for vessels and
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had personal knowledge of O’Hara’s key-based self-serve pumping system and of the
way O’Hara generates fuel invoices. McFarland Dep. at 4:17-25, 5:16-6:3, 11:1713:13 (ECF No. 40-5). However, Mr. McFarland also testified that O’Hara “[hadn’t]
really officially designated” him to testify, that Pam Lea knew more than he did
about “the assigning of account information to a fuel account linked to a key,” and
that Mike Davee knew more than he did about “the accounting system and the
assignment of a key.” Def.’s Second Mot. at 4.
To the extent that Mr. McFarland was not prepared to testify about all
relevant “information known or reasonably available” to O’Hara, O’Hara arguably
fell short of its obligations under Rule 30(b)(6). FED. R. CIV. P. 30(b)(6). On the
other hand, Rule 30(b)(6) does not require the designee to have personal knowledge
on the designated subject matter. See 8A WRIGHT, MILLER, AND MARCUS § 2103, at
455 n.8; Vegas Constr., 251 F.R.D. at 538.
Even if Mr. Marriner has the better argument on the merits of his Rule
30(b)(6) objection, disputes over Rule 30(b)(6) are typically resolved in discovery.
See 8A WRIGHT, MILLER, AND MARCUS § 2103, at 468 (“One remedy . . . is to require
that the corporation designate additional witness to provide the missing
information”).
Here, by contrast, Mr. Marriner is asking for much stronger
medicine: he wants the Court to exclude the entire deposition.
This medicine is much too strong, especially because Mr. Marriner had and
still has a number of less drastic remedies. First, assuming Mr. Marriner had, as
he asserts, “a right to continue the deposition and ask questions of the more
7
knowledgeable individuals,” he slept on that right.
Def.’s Second Mot. at 4.
Furthermore, even though the Rule 30(b)(6) deposition was completed just before
the expiration of the extended discovery period, Mr. Marriner could have sought a
brief further extension of the deadline to complete depositions of Ms. Lea or Mr.
Davee, but he failed to do so.2 Finally, nothing prevents Mr. Marriner from calling
Ms. Lea and Mr. Davee as witnesses during the upcoming trial and, in fact, he has
listed them as potential witnesses in his pretrial memorandum.3
Def. Alan D.
Marriner’s Final Pretrial Mem., 3 (ECF No. 28) (Def.’s Final Pretrial Mem.). If it is
true, as Mr. Marriner claims, that Mr. McFarland’s deposition testimony reveals
that he is not as familiar as he should be with the invoices, the limits of his
knowledge will become readily apparent when contrasted with the testimony of Ms.
Lea and Mr. Davee. Under these circumstances, the Court declines to exclude the
entire Rule 30(b)(6) deposition.
B.
Lack of Foundation
Mr. Marriner’s second ground for excluding Mr. McFarland’s testimony is
that Mr. McFarland “lacks knowledge, and therefore a foundation, to testify to the
facts at issue.” Id. at 5. Mr. Marriner seeks to exclude the entire deposition on this
ground, id. at 6 n.3, but ends his motion by asking the Court in the alternative to
exclude Mr. McFarland’s testimony “specifically with respect to identification of
what vessel fuel sold by Journey’s End Marina was pumped into.” Id. at 7. Mr.
The original discovery deadline was August 14, 2012. Scheduling Order, 2 (ECF No. 9). On
August 28, 2012, the parties filed a joint motion to reopen discovery for two weeks, to September 15,
2012, which was granted the same day. Jt. Mot. to Reopen Disc. (ECF No. 15); Order (ECF No. 18).
3
So has Mr. Bickford. Pl.’s Final Pretrial Mem., 4 (ECF No. 29).
2
8
Bickford does not respond separately to this objection in his opposition. See Pl.’s
Second Opp’n at 1-9.
Mr. Marriner’s foundation-based objection lacks merit as to nearly all of Mr.
McFarland’s testimony.4 As the Court has already noted, Mr. McFarland testified
that he was the General Manager of O’Hara and that he had worked at O’Hara in
various capacities since the early to mid-1970s, starting as a general laborer on the
dock, and including a stint as a plant superintendent. McFarland Dep. at 4:17-25,
5:16-6:1. His testimony revealed that he has personal experience pumping gas for
vessels. Id. at 6:2-3. It is clear from his testimony that he has personal knowledge
of O’Hara’s key-based self-serve pumping system and of the way O’Hara generates
fuel invoices.
Id. at 11:17-13:13 (ECF No. 40-5).
The Court overrules Mr.
Marriner’s objection generally as to Mr. McFarland’s testimony.
Mr. Marriner specifically objects on foundational grounds to the following
questions:
[MR. GILZEAN:] Okay. Okay. Based on your understanding of how
O’Hara Corporation dispenses its fuel and invoices, is it your position
— is it your belief that the fuel that was dispensed, the 242.09 gallons,
ended up in the F/V Cool Breeze?
MR. WELTE: Objection, foundation. He has already said he can’t.
[MR. GILZEAN:] I am asking about your belief based on how you
understand the system works, your system, your invoicing system,
your dispensing system.
MR. WELTE: Objection, foundation.
4
The Court has not been given a complete transcript of Mr. McFarland’s deposition.
9
Def.’s Second Mot. at 5.
During Mr. Marriner’s own deposition, Mr. Marriner
explained that O’Hara Corporation issued fuel keys to its regular customers, like
Mr. Marriner, and that the customer could then come to the pump, insert the fuel
key, and dispense fuel charged to his account.
Id. at 2.
As Mr. McFarland
acknowledged, a person with the F/V COOL BREEZE customer key could pump gas
into any vessel. Id. at 5. Thus, based on the invoice alone, Mr. McFarland could not
even say that Alan Marriner pumped the gas much less that it was pumped into the
F/V COOL BREEZE. Id. In light of this testimony, and given Mr. McFarland’s
acknowledgement that he lacked direct knowledge of the fuelings in question, see
id., the Court agrees that Mr. McFarland would be required to speculate if he
testified as to whether O’Hara Corporation dispensed fuel into the F/V COOL
BREEZE on February 15, 2010.
The Court therefore sustains Mr. Marriner’s
objection to the questions from 18:4 through 18:15 of the O’Hara Corporation
deposition and grants Mr. Marriner’s motion in limine on this issue.5
C.
Attorney Gilzean’s Representations Regarding Use of the
Deposition
Finally, Mr. Marriner argues that the Court should hold Mr. Bickford’s
attorney, Jonathan E. Gilzean, to his alleged representation that he would not use
Mr. McFarland’s deposition at trial. Def.’s Second Mot. at 6-7. Mr. Marriner noted
during Mr. McFarland’s deposition that he was reserving his right to “either notice
other depositions or to continue [Mr. McFarland’s] deposition.” Id. at 6. However,
according to Mr. Marriner’s attorney, William H. Welte, when he contacted
5
Curiously, neither party submitted Mr. McFarland’s answer.
10
Attorney Gilzean shortly after the deposition to discuss next steps, Attorney Gilzean
“indicated that given the obvious fact of the witness’s lack of knowledge, the
deposition would not be used.”
Id.
Attorney Gilzean has a slightly different
recollection: that what he actually said during this conversation was that he “did
not know what evidence he would use at trial” and that he “did not think he would
use the fuel receipts.” Pl.’s Second Opp’n at 4 (emphasis in original); id. Attach. 1,
Aff. of Jonathan E. Gilzean, ¶¶ 10-11 (ECF No. 40-1) (Gilzean Aff.).
Attorney
Gilzean also declares that Attorney Welte stated during that conversation that he
“would reread the transcripts and get back to me,” but that “[n]o further discussions
were held on this topic until” the November 14, 2012 email discussed below.
Gilzean Aff. ¶¶ 13-14.
Mr. Marriner reports that “during the pre-trial conference,” which took place
on November 8, 2012, “when asked by the Magistrate Judge if there was going to be
any testimony introduced through deposition testimony, plaintiff’s counsel
consistently responded in the negative.” Def.’s Second Mot. at 6; Minute Entry (ECF
No. 30). Again, Attorney Gilzean’s account differs from Mr. Marriner’s: “During the
final pretrial conference . . . I stated solely that I did not foresee any need for the
use of video depositions in this case, not that I would not seek to use deposition
transcript testimony recorded stenographically.”
Gilzean Aff. ¶ 15. Only in an
email sent on November 14, 2012, claims Mr. Marriner, did Attorney Gilzean
“inform defendant that he was not standing by the earlier representation, stating ‘I
know I indicated that I didn’t think we would use any of the stuff from O’Hara
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Corporation but after speaking with David Anderson, we are going to seek to have
the Feb 15, 2010 invoice admitted.’” Def.’s Second Mot. at 6-7. Attorney Gilzean
does not dispute Mr. Marriner’s characterization of his email. Gilzean Aff. ¶ 14.
Attorneys are constantly talking to each other and it is not that uncommon
that, as adversaries, they emerge from the same conversation with different
impressions of what was said.
Attorney Welte interpreted Attorney Gilzean’s
statement that he thought he would not use Mr. McFarland’s deposition transcript
as an affirmative promise not to do so; Attorney Gilzean viewed his statement as
tentative. There are ways in which an attorney can extract an enforceable promise
from the other side. In this case, however, the colloquy between Attorney Welte and
Attorney Gilzean is too ambiguous to be enforceable.
Regarding representations made at the Pretrial Conference about the use of
the McFarland deposition, the Court observes that Mr. Marriner failed to raise this
issue in his Final Pretrial Memorandum and Mr. Bickford listed the Rule 30(b)(6)
deposition of O’Hara Corporation and its exhibits as a potential trial exhibit. Def.’s
Final Pretrial Mem. at 1-6; Pl.’s Final Pretrial Mem. at 6. The Magistrate Judge’s
Final Pretrial Order makes no mention of any agreement not to use Mr.
McFarland’s deposition and to the contrary contains the standard orders regarding
the use of both videotaped and transcribed depositions at trial. Report of Final
Pretrial Conf. and Order, 4-5 (ECF No. 31). There is no indication on the docket
that Mr. Marriner objected to the contents of the Final Pretrial Order.
If Mr.
Marriner wished to preserve an objection to the use of the Rule 30(b)(6) transcript
12
at trial, he should have raised this issue in his Final Pretrial Memorandum and,
having raised it at the Pretrial Conference, he should have made certain that the
parties’ agreement was ratified by the Court in its Pretrial Order.
The Court will not intervene in this private squabble.
D.
Conclusion
The Court sustains Mr. Marriner’s objection to the questions from lines 18:4
through 18:15 of the O’Hara Corporation deposition and grants Mr. Marriner’s
motion in limine to this extent but denies Mr. Marriner’s motion as to the rest of the
deposition.
III.
TREATMENT FOR ALCOHOL ABUSE
Mr. Bickford moves in limine to exclude any documents or testimony relating
to his treatment for alcohol abuse. Pl.’s Mot. in Limine Regarding Treatment for
Alcohol Abuse (ECF No. 34) (Pl.’s First Mot.).
He asserts that the patient-
psychotherapist privilege applies to such evidence and that, in any event, evidence
of such treatment is not relevant to any issue in the case and its admission would
unfairly prejudice Mr. Bickford.
Id. at 1-3.
Mr. Bickford asks the Court to
“preclude the Defendant from mentioning or offering into evidence any documents
or testimony relating to treatment for alcohol abuse.”
Id. at 3.
Mr. Marriner
opposes the motion by positing ways in which evidence of alcoholism may become
relevant at trial and by submitting that the order sought is “overly broad” since it
“seeks to limit all evidence of alcoholism.” Def.’s Resp. in Opp’n to Pl.’s Mot. in
13
Limine Regarding Treatment for Alcohol Abuse, 1-3 (ECF No. 44) (Def.’s First
Opp’n).
The parties’ arguments are like ships in the night. Two observations are in
order.
First, the motion seeks to exclude evidence of alcohol treatment, not of
alcoholism.
Second, the Magistrate Judge has already ruled that the patient-
psychotherapist privilege protects any communications with a counselor, and Mr.
Marriner did not object to this ruling. Order on Responses to Order to Show Cause
(ECF No. 22). The patient-psychotherapist privilege protects only communications
with a counselor; as Mr. Bickford appears to acknowledge, it does not preclude a
party from introducing evidence of the fact of alcohol treatment. Pl.’s First Mot. at 2
(“the issue is whether the Defendant should be allowed to ask the Plaintiff the
question in the first instance or refer to such treatment at any point during the
trial”). Mr. Bickford contends that evidence of the fact of treatment is “in no way
relevant to any fact at issue in this case” and that, even if it is relevant, it should be
excluded as unfairly prejudicial under Federal Rule of Evidence 403. Id. at 2-3.
The Court agrees with Mr. Bickford and perhaps with Mr. Marriner as well
that evidence of the details of Mr. Bickford’s treatment for alcoholism is not
admissible. The Court therefore grants Mr. Bickford’s motion in limine to exclude
evidence—whether by testimony or documents—of any specifics of Mr. Bickford’s
treatment for alcohol abuse.6 The Court dismisses the motion without prejudice
Of course, if Mr. Bickford opens the door to this line of questioning, Mr. Marriner may be
allowed to follow up.
6
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insofar as it seeks to prohibit any reference to the fact of treatment for alcohol
abuse or any reference to alcoholism.7
IV.
CHILD SUPPORT OBLIGATIONS
Mr. Bickford’s second motion in limine seeks to exclude any documents or
testimony referring to his court-ordered child support obligations.
Pl.’s Mot. in
Limine Regarding Child Support Obligation (ECF No. 35) (Pl.’s Second Mot.). Mr.
Bickford notes that the Magistrate Judge already determined that a May 2007
document concerning his child support obligations was relevant because it made
mention of his employer in May 2007. Id. at 1-2. The Magistrate Judge ordered
Mr. Bickford to produce this document in discovery. See Report of Hearing and
Order Re: Discovery (ECF No. 17). Mr. Bickford now contends that Mr. Marriner
may introduce evidence of his employer in May 2007 by other means—namely
through an answer to one of Mr. Marriner’s interrogatories. Pl.’s Second Mot. at 2.
Thus, argues Mr. Bickford, the probative value of such evidence is substantially
outweighed by the danger of unfair prejudice. Id. at 2-3. Mr. Marriner’s main
contention in opposition is that the order sought by Mr. Bickford—which would
exclude not only the May 2007 document but all documents or testimony referring
to child support obligations—would be unnecessarily broad and would not be able to
account for unforeseen developments at trial. Def.’s Resp. in Opp’n to Pl.’s Mot. in
The parties have not squarely raised and the Court has not reached whether evidence that
Mr. Bickford is an alcoholic would be admissible. This issue is a difficult one and depends largely on
trial context. See, e.g., Eaton v. Hancock Cnty., No. 1:08-cv-00370-JAW, 2011 U.S. Dist. LEXIS
67092, *14-15 (D. Me. June 22, 2011); Orlowski v. Eriksen, No. 07 C 4015, 2009 U.S. Dist. LEXIS
66893, *4-7 (N.D. Ill. July 31, 2009). However, the potential for prejudice is great and the probative
value questionable. Before Mr. Marriner seeks to admit such evidence, he must first approach the
Court.
7
15
Limine Regarding Treatment for Alcohol Abuse, 1-3 (ECF No. 43) (Def.’s Second
Opp’n).
Assuming its relevance, the Court does not agree with Mr. Bickford’s blanket
assertion that the fact that a person has been ordered to pay child support is
necessarily prejudicial; child support orders are routinely issued in divorce cases
against the non-custodial parent. The Court agrees with Mr. Bickford’s general
proposition that evidence that a personal injury plaintiff is in arrears in his or her
child support payments would not generally be admissible. See Eaton, 2011 U.S.
Dist. LEXIS 67092 at *23; United States v. Newell, 584 F. Supp. 2d 272, 274 (D. Me.
2008) (“[T]he Court believes that overdue child support or child welfare payments
may not pass Rule 403 muster”). Here, Mr. Marriner contends that the state of
Maine Department of Health and Human Services (DHHS) document dated May
2007 mentions that Mr. Bickford was employed by a particular employer at that
time. Def.’s Second Opp’n at 2. Mr. Marriner also maintains that Mr. Bickford used
a similar document from 2006 during his deposition examination of his fiancée
Crystal Lalli as to her knowledge of his employment. Id. Mr. Marriner observes
that Ms. Lalli has been listed as a witness at trial and he proposes to question her
at trial in the same way Mr. Bickford questioned her at the deposition. Id.
The parties have not provided the Court with a copy of the contested DHHS
document or Mr. Bickford’s answer to the interrogatory. Without reviewing the
documents and without a trial context, the Court will not rule on this matter and
dismisses the motion.
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However, the Court alerts the parties that it does not consider the DHHS
document necessarily inadmissible.
The fact that Mr. Bickford made a
representation about his employment as of May 2007 in a state form, perhaps under
oath, might be relevant to whether he was later employed by Mr. Marriner. At the
same time, the fact that Mr. Bickford was employed by a particular employer in
2007—without more—is weak evidence that he was still employed by that employer
in 2010. All of this may become clearer during trial.
Without prejudging admissibility, the Court urges counsel to consider
entering into a stipulation that avoids the prejudicial impact of child support
arrearages but allows Mr. Marriner to present evidence to the jury that Mr.
Bickford represented to a state agency under oath (if he did) that he was employed
by a particular employer in May 2007. Mr. Marriner must approach the Court if he
seeks to introduce this evidence. For now, the Court dismisses without prejudice
Mr. Bickford’s motion in limine.
V.
COLLATERAL SOURCE RULE
Mr. Bickford’s third motion in limine seeks to exclude any documents or
testimony referencing the fact that medical bills relating to his injury have been
paid by MaineCare. Pl.’s Mot. in Limine Regarding Collateral Source Rule (ECF
No. 36) (Pl.’s Third Mot.). He claims that, as this is a personal injury suit brought
pursuant to the Jones Act and general maritime law, both the substantive and
evidentiary components of the collateral source rule apply. Id. at 1-2. He says that
MaineCare is a “textbook collateral source.” Id. at 2.
17
“Under the collateral source rule, the plaintiff need not offset his or her
recovery from the defendant by the amount of any benefits received from a source
collateral to the defendant.” McGrath v. Consolidated Rail Corp., 136 F.3d 838, 840
(1st Cir. 1998). Accordingly, the so-called evidentiary component of the rule—which
in federal court amounts to little more than a straightforward application of Federal
Rules of Evidence 401, 402, and 403—generally prohibits the admission of evidence
of the receipt of benefits from a collateral source. See Fitzgerald v. Expressway
Sewerage Constr., Inc., 177 F.3d 71, 74 (1st Cir. 1999) (“the Federal Rules of
Evidence (and in particular Rules 401, 402, and 403) are malleable enough to deal
with the principal evidentiary issues contemplated by the collateral source rule:
relevancy and unfairly prejudicial effect”). As the First Circuit recently reiterated:
The collateral source rule is meant to guard against two risks: that
after a jury has found liability and goes on to assess damages it will
deduct from the appropriate award whatever compensation a plaintiff
is receiving for injuries from a source other than a liable defendant
(health insurance benefits, say), and the more general risk that a jury
will regard the receipt of such benefits as a reason to avoid finding
liability at all in a close case.
Crowther v. Consolidated Rail Corp., 680 F.3d 95, 98-99 (1st Cir. 2012) (Souter, J.).
At the same time, “the rule is not absolute and courts have carved out exceptions to
the collateral source doctrine.” McGrath, 136 F.3d at 840; see, e.g., Crowther, 680
F.3d at 98-100 (finding no reversible error in the admission of evidence of collateral
source benefits to show malingering); McGrath, 136 F.3d at 841 (same); Falconer v.
Penn Maritime, Inc., 397 F. Supp. 2d 62, 67 (D. Me. 2005) (noting that if the
plaintiff “opens the door” at trial, evidence of the receipt of collateral source benefits
may become admissible).
18
In his opposition, Mr. Marriner appears to concede that the evidence at issue
is generally inadmissible “with respect to the Jones Act count,” arguing only that
such evidence would become relevant if Mr. Bickford offers his medical bills “as part
of [his] case under Counts III and/or IV,” which allege that Mr. Marriner failed to
provide maintenance and cure. Def.’s Opp’n to Pl.’s Mot. in Limine Re Collateral
Source Rule, 3 (ECF No. 41) (Def.’s Third Opp’n).
According to Mr. Marriner,
“[p]ayment by a third-party or through a public benefit program relieves the
defendant of any obligation to pay maintenance and cure,” and “[s]uch payments
are not subject to the collateral source rule.” Id. Mr. Bickford does not appear to
take a contrary view, as he is not pursuing payment of his medical bills under a
maintenance and cure theory. See id. at 2-3; Report of Final Pretrial Conference
and Order at 2 (ECF No. 31) (reporting that “Plaintiff’s Claimed Special Damages”
include “[m]edical bills of $1,081 on negligence claim only”).
Thus, it appears that the parties agree both that it would generally be
improper for Mr. Marriner to introduce evidence of the MaineCare payments with
respect to the Jones Act count, and that Mr. Marriner need not introduce such
evidence with respect to the maintenance and cure counts, since Mr. Bickford will
not be seeking recovery of his medical bills under those counts.
understanding, the Court grants Mr. Bickford’s third motion in limine.
On this
If Mr.
Bickford opens the door—by putting his medical bills in issue on the subject of
maintenance and cure or otherwise—this ruling will not prevent Mr. Marriner from
seeking the Court’s permission to introduce evidence of the MaineCare payments.
19
VI.
CRIMINAL CONVICTIONS
Mr. Bickford’s fourth motion in limine seeks to exclude any documents or
testimony referencing his five prior misdemeanor convictions. Pl.’s Mot. in Limine
Regarding Criminal Convictions (ECF No. 37) (Pl.’s Fourth Mot.).
A Criminal
History Record issued by the Maine State Bureau of Identification reveals that Mr.
Bickford has been convicted of five misdemeanor crimes, all of which are more than
ten years old. Id. at 1-2.
Mr. Bickford acknowledges that Federal Rule of Evidence 404(b) permits the
admission of evidence of a prior conviction for a purpose other than propensity to
commit crime—such as to prove “motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” Id. at 2; FED. R. EVID.
404(b). According to Mr. Bickford, however, “none of the convictions are relevant to
any of the exceptions listed in FED. R. EVID. 404(b)(2).” Pl.’s Fourth Mot. at 2. Mr.
Bickford contends further that the Federal Rules of Evidence prohibit the use of the
convictions to impeach his testimony, since each conviction was for a crime that did
not involve a dishonest act or false statement and that was not punishable by death
or by imprisonment for more than one year. Id. at 3; see FED. R. EVID. 609(a).
Finally, Mr. Bickford maintains that even if his prior convictions are found to be
relevant to an issue in the case, they should be excluded under Rule 403. Pl.’s
Fourth Mot. at 3-4.
While appearing to agree with Mr. Bickford’s view that his prior convictions
are inadmissible, Mr. Marriner asks the Court to deny the motion “with respect to
20
Rule 404 pending proffer of evidence and unfolding of theories and defenses at
trial.”
Def.’s Response in Opp’n to Pl.’s Mot. in Limine Regarding Criminal
Convictions, 2 (ECF No. 42) (Def.’s Fourth Opp’n).
“Until evidence is offered,”
contends Mr. Marriner, “it cannot be determined whether the [Rule 404(b)
exceptions] might arise during the trial.” Id. at 1. Mr. Marriner does not dispute
Mr. Bickford’s contention that evidence of the prior convictions cannot be used to
impeach Mr. Bickford’s testimony under Rule 609.
The Court agrees with Mr. Bickford that evidence of these old misdemeanor
convictions is inadmissible absent unusual circumstances. At the same time, the
Court agrees with Mr. Marriner that it cannot absolutely rule out the possibility
that this evidence will become relevant under Rule 404(b) based on developments at
trial. If he seeks to introduce evidence of the convictions, Mr. Marriner would face a
high bar in convincing the Court that admission is proper. The Court grants the
motion as to Rule 609 and dismisses it without prejudice as to Rule 404(b). Mr.
Marriner must alert the Court if he intends to mention or introduce evidence of Mr.
Bickford’s prior convictions during trial.
VII.
CONCLUSION
The Court GRANTS in part and DISMISSES in part without prejudice
Defendant Alan D. Marriner’s Motion in Limine to Exclude Any Evidence of the
Existence of Insurance (ECF No. 33).
21
The Court GRANTS in part and DENIES in part Defendant Alan D.
Marriner’s Motion in Limine to Exclude Evidence Proffered Through the Deposition
of Paul McFaraland [sic] (ECF No. 39).
The Court GRANTS in part and DISMISSES in part without prejudice
Plaintiff’s Motion in Limine Regarding Treatment for Alcohol Abuse (ECF No. 34).
The Court DISMISSES without prejudice Plaintiff’s Motion in Limine
Regarding Child Support Obligation (ECF No. 35).
The Court GRANTS Plaintiff’s Motion in Limine Regarding Collateral Source
Rule (ECF No. 36).
The Court GRANTS in part and DISMISSES in part without prejudice
Plaintiff’s Motion in Limine Regarding Criminal Convictions (ECF No. 37).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 28th day of December, 2012
22
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