Prasol v. Cattron-Theimeg, Incorporated, et al

Filing 97

OPINION AND ORDER granting in part and denying in part 86 Motion in Limine; granting in part 92 Motion in Limine; granting 93 Motion in Limine; denying 94 Motion in Limine. Signed by District Judge Sean F. Cox. (JHer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Cheryl Prasol,
Plaintiff,

Case No. 09-10248

v.

Honorable Sean F. Cox

Cattron-Theimeg, Inc., et al.
Defendants.
___________________________________/
OPINION & ORDER REGARDING MOTIONS IN LIMINE
Plaintiff Cheryl Prasol (“Plaintiff”) brought this product liability action against
Defendants for an injury allegedly caused by the defective design of a crane remote control.
Defendants are Cattron-Theimeg, Inc. (“Cattron”) and other related manufacturers of remote
controls for the operation of overhead cranes (together, “Defendants”). The first trial on this
matter concluded in a mistrial and, as a result, a second trial is set to begin on September 7,
2011. The matter is currently before the Court on Plaintiff’s motions in limine (Doc. No. 86)
and Defendants’ motions in limine (Doc. Nos. 92, 93, 94). The Court heard oral arguments on
these motions on September 6, 2011. For the reasons set forth below, the Court shall:
•

Grant Plaintiff’s motion in limine regarding any questions, comment, or argument
regarding “secondary gain,” “symptom magnification,” and “malingering;”

•

Grant Plaintiff’s motion in limine regarding any comments or statements of other
injuries;

•

Grant in part, and deny in part, Plaintiff’s motion in limine regarding any reference to
collateral sources;

•

Grant Plaintiff’s motion in limine regarding any question or comment about Plaintiff’s
positive test for opiates at the hospital;
1

•

Grant in part, and deny in part, Defendants’ Motion In Limine Regarding Testimony,
Argument and Evidence of Michael Gerhardt v. Cattron-Theimeg;

•

Grant Defendants’ Motion In Limine Regarding Cattron-Theimeg Documents; and

•

Deny Defendants’ Motion In Limine Regarding the Testimony of Plaintiff’s Purported
Expert, Kenneth Blundell.

I.

Plaintiff’s Motions In Limine
A.

Secondary Gain/Malingering

Plaintiff seeks to exclude questions, comments, statements or arguments about
“secondary gain,” “symptom magnification,” and “malingering.” Plaintiff asserts that no
medical opinion exists to establish a foundation or causal link for any such testimony, and that
such testimony is irrelevant for the purposes of determining the extent of Plaintiffs’ injuries.
Plaintiff further states that “[s]tatements about unidentified people with unidentified injuries and
complaints are irrelevant to prove the nature and extent of Plaintiff’s injuries.”
As stated on the record, Defendants agree not to introduce evidence or illicit statements
regarding “secondary gain,” “symptom magnification,” and “malingering.” Accordingly,
Plaintiff’s Motion in Limine, to the extent that it relates to questions, comments, statements or
arguments about “secondary gain,” “symptom magnification,” and “malingering,” is granted.
B.

Other Injuries

Plaintiff seeks to preclude any “comment, statement, innuendo, argument or other
implication that Plaintiff injured her back and lower extremities anywhere other than work on
November 16, 2006.” (Plf’s Br. at 2).
As stated on the record, Defendants agree not to introduce evidence or illicit statements
regarding any of Plaintiff’s injuries that are unrelated to Plaintiff’s November 16, 2006 accident.
2

Accordingly, Plaintiff’s Motion in Limine regarding statements or comments of injuries Plaintiff
may have endured anywhere other than work on November 16, 2006, is granted.
C.

Collateral Sources

Plaintiff is currently receiving, or has applied for, benefits from collateral sources, such
as workers compensation benefits, and disability benefits through the United States Railroad
Retirement Board and/or Social Security Administration. Plaintiff seeks to exclude any evidence
regarding benefits Plaintiff has applied for, may receive, or has received from collateral sources.
Specifically, Plaintiff seeks to exclude evidence of benefits from the United States Railroad
Retirement Board or the Social Security Administration. Plaintiff asserts that evidence of
collateral source payments is inadmissable pursuant to the collateral source rule.
Although Defendants have not responded to Plaintiff’s motion in limine regarding
collateral sources, Defendants previously contended that collateral source evidence is admissible
under Michigan law pursuant to M.C.L. § 600.6303. In the first trial on this matter, the Court
partially rejected that argument.
M.C.L. § 600.6303, Michigan’s collateral source statute, provides, in pertinent part:
(1) In a personal injury action in which the plaintiff seeks to recover
for the expense of medical care, rehabilitation services, loss of
earnings, loss of earning capacity, or other economic loss, evidence
to establish that the expense or loss was paid or is payable, in whole
or in part, by a collateral source shall be admissible to the court in
which the action was brought after a verdict for the plaintiff and
before a judgment is entered on the verdict. Subject to subsection
(5), if the court determines that all or part of the plaintiff's expense or
loss has been paid or is payable by a collateral source, the court shall
reduce that portion of the judgment which represents damages paid
or payable by a collateral source by an amount equal to the sum
determined pursuant to subsection (2). This reduction shall not
exceed the amount of the judgment for economic loss or that portion
of the verdict which represents damages paid or payable by a
3

collateral source.
(4) As used in this section, “collateral source” means benefits
received or receivable from an insurance policy; benefits payable
pursuant to a contract with a health care corporation, dental care
corporation, or health maintenance organization; employee benefits;
social security benefits; worker's compensation benefits; or medicare
benefits.
M.C.L. § 600.6303 (emphasis added).
While Defendants are correct in their assertion that evidence of collateral sources is
admissible under Michigan law, § 600.6303(1) clearly and unambiguously states that, in a
personal injury action, evidence of a collateral source is admissible “after a verdict for the
plaintiff and before a judgement is entered on the verdict.” See Shivers v. Schmiege, 285
Mich.App. 636, 654 (2009) (holding that after a verdict is rendered “[c]ollateral source payments
can only be used to reduce corresponding amounts awarded for the same type of damages.”).
Accordingly, the Court grants Plaintiff’s motion to the extent that Defendants may not
introduce evidence related to collateral source benefits prior to the jury’s verdict on Defendants’
liability. The Court also denies Plaintiff’s motion to the extent that, if the jury enters a verdict in
favor of Plaintiff, Defendants may introduce evidence of collateral source benefits before
judgement is entered, pursuant to M.C.L. § 600.6303.
D.

Positive Test for Opiates at Hospital

Plaintiff states that, on the day of her accident, she was given the medications Fentanyl
and morphine by medical personnel. Plaintiff was subsequently screened for drugs at the
hospital and tested positive for opiates. Plaintiff seeks to preclude Defendants from making
“any question, comment or argument regarding opiates” found in the toxicology report. (Plf’s
Br. at 3). Plaintiff asserts that any reference to her positive test for opiates is irrelevant and
4

should be denied pursuant to FED. R. EVID. 402. Alternatively, Plaintiff contends that the
probative value of any evidence of Plaintiff’s positive test for opiates is outweighed by its
prejudicial effect.
As stated on the record, the parties agree that evidence and testimony of Plaintiff’s
positive drug test is not admissible and Defendants agree not to raise this issue at trial.
Accordingly, Plaintiff’s motion to preclude any reference during trial of Plaintiff’s positive test
for opiates is granted.
II.

Defendants’ Motion In Limine Regarding Testimony, Argument and Evidence of
Michael Gerhardt v. Cattron-Theimeg
On April 2, 2009, Plaintiffs Michael and Debra Gerhardt filed a complaint in Kentucky

state court against Cattron, alleging product liability claims related to an alleged inadvertent
activation of a Cattron remote control. (Plf’s Resp #3, Doc. No. 50, Ex. 1).
Defendants seek to exclude from evidence any testimony, argument, or evidence of the
Gerhardt case. Defendants assert that evidence related to the Gerhardt case is irrelevant and
prejudicial because the accident in the Gerhardt case occurred one-and-a-half years after the
accident at issue in this case and the incidents are not substantially similar. Moreover, because
the Gerhardt accident occurred after the accident in this case, Defendants assert that the
Gerhardt case cannot be used to establish notice of a defective design on the part of Defendants.
Although Plaintiff did not respond to Defendants’ motion, Plaintiff’s counsel stated at the
September 6, 2011 hearing that Plaintiff will rely on her response filed before first trial on this
matter. Previously, Plaintiff’s counsel agreed that he would not move to admit the Gerhardt
documents into evidence. Plaintiff, however, asserted that testimony regarding the Gerhardt
complaint is relevant because it arises out of the same or similar circumstances as the accident in
5

this case. The Gerhardt complaint alleges that the “paddle control arm that controlled the north
movement of the crane was inadvertently engaged through contact with the table block
assembly, thereby causing the overhead crane to move the table block assembly north, slamming
and pinning Mr. Gerhardt against Furnace #5.” (Plf’s Resp. # 3 at 2). The Gerhardt complaint
further alleges that “the subject controller was not equipped with adequate and proper guarding.”
Id.
Plaintiff alleged that evidence of the Gerhardt case is admissible to impeach the
credibility of witness Robert Aiken, Defendants’ corporate representative. Plaintiff stated that
the Gerhardt complaint was filed on April 2, 2009, but that Mr. Aiken testified on January 29,
2010, that he was not aware of any objects coming into contact with Vectran remote controls and
causing injury, or of any lawsuits that have alleged to have occurred as a result.
Evidence of substantially similar incidents, as the Plaintiff seeks to admit, is generally
viewed on a case-by-case basis. Croskey v. BMW of North America, Inc., 532 F.3d 511, 514 (6th
Cir. 2008). “[T]here is no blanket prohibition under Michigan or federal law against admitting
such evidence on plaintiff's claims of design defect and negligence.” Id.
Defendants direct the Court to the Michigan Supreme Court case Fredericks v. General
Motors, 411 Mich. 712 (1981). In Fredericks, the plaintiff brought a product liability action
against General Motors after he was injured while operating an unguarded die. The plaintiff
attempted to introduce evidence of accidents involving other General Motors dies that occurred
after the plaintiff’s accident. In that case, the court stated:
The evidence offered by plaintiff to establish accidents involving
other General Motors dies was not admissible to prove notice to
defendant as they occurred after the accident in issue and were
irrelevant to this action. The proffered proof of defendant's own
6

writings and publications decrying the use of unguarded dies lacked
sufficient foundation for admission as plaintiff's counsel was unable
to relate them to the Fredericks occurrence or the testimony of
defendant's safety engineer.
Id. at 720.
Here, Defendants are correct in their assertion that Plaintiff may not introduce evidence
of the Gerhardt case for the purposes of showing knowledge or notice of the alleged design
defect on the part of Defendants. At the time of Plaintiff’s accident, the Gerhardt incident had
not yet occurred and Defendant could not have plausibly been on notice that the Vectran remote
was defective.
Courts in the Sixth Circuit, however, have found that evidence of subsequent accidents is
admissible to prove causation or existence of a dangerous condition. Jackson v. Target Corp.,
2001 WL 533600 (E.D. Mich. 2011) (Zatkoff, J.); Bush v. Michelin Tire Corp., 963 F.
Supp.1436, 1451 (W.D. Ky. 1996); Lohr v. Stanley-Bostitch, Inc., 135 F.R.D. 162, 166 (W.D.
Mich. 1991). In order to introduce this evidence, the party seeking admittance of the evidence
has the burden of establishing the evidence’s relevance. Jackson, 2001 WL 533600 at * 2. “To
be admissible, such evidence must be substantially similar to the occurrence in question [so as to
be relevant]” to the issue of causation. Anderson v. Whittaker Corp., 894 F.2d 804, 813 (6th Cir.
1990).
In this case, if Plaintiff is seeking to introduce evidence of the Gerhardt case for the
purposes of causation, Plaintiff has the burden of showing that the accident is substantially
similar to Plaintiff’s accident. Here, Plaintiff previously alleged that while operating a crane to
move a bundle of metal tubes, a chain landed on one of the gears of the remote control, causing it
to drop the load of metal tubes on her leg. In support of her assertion that the two accidents are
7

substantially the same, Plaintiff quoted the pleadings in Gerhardt, which state that the “paddle
control arm that controlled the north movement of the crane was inadvertently engaged through
contact with the table block assembly, thereby causing the overhead crane to move the table
block assembly north, slamming and pinning Mr. Gerhardt against Furnace #5.” (Plf’s Resp. #3,
Ex. 2).
With the information previously provided by Plaintiff, the Court finds that Plaintiff has
not met her burden of showing that the Gerhardt accident is substantially similar to her accident.
First, Plaintiff admitted that the remote control used in the Gerhardt incident is not the same as
the remote control used by Plaintiff at the time of her accident. While the remote control
Plaintiff used on the day of her accident was produced by Vectron, the remote control used by
Gerhardt was manufactured several years later by Cattron and was modified by Cattron to meet
the purchaser’s specifications. Furthermore, Plaintiff has failed to establish that Gerhardt was
using the remote control in a same or similar manner as the Plaintiff in this case, or that Gerhardt
was using the remote control in a same or similar environment as Plaintiff in this case. For these
reasons, Plaintiff has not established that evidence or testimony of the Gerhardt accident are
relevant and the Court shall preclude any testimony or evidence of the Gerhardt case for the
purposes of causation or existence of a dangerous condition.
Alternatively, Plaintiff previously contended that evidence of the Gerhardt complaint
should be admissible for purposes of impeaching Mr. Aiken. During his January 29, 2010
deposition, Mr. Aiken testified as follows:
Q:

Have you been made aware of other injuries that have
occurred because of Vectran remotes or other similar
remotes?
***
8

Q:
A:

Q:
A:

Of objects coming into contact with the remotes and then
causing some type of injury?
I’m not aware of any. And I’m – I’ve been doing this work
for quite some time, and I don’t know of any situations like
that.
Are you aware of any other lawsuits that have alleged that to
have occurred?
No.

(Aiken Dep., Doc. No. 59, Ex. 2 at 53-54). The complaint in the Gerhardt case was filed almost
nine months before Plaintiff deposed Mr. Aiken. Plaintiff seeks to impeach Mr. Aiken on his
knowledge of the earlier Gerhardt injury and lawsuit.
As stated above, Plaintiff has not shown that the Gerhardt accident is the same or
substantially similar to the accident in this case, and thus, has not established the relevancy of
the Gerhardt evidence. Therefore, with regard to Plaintiff’s intent to use the Gerhardt case to
impeach Mr. Aiken on cross-examination, the Court defers decision on the issue because the
Court’s decision depends on how the testimony develops. If Plaintiff seeks to introduce
statements regarding the Gerhardt case for impeachment purposes, the Court will rule on any
objections within the context of the questioning and testimony.
To summarize, the Court shall grant Defendants’ motion in limine to the extent that
Plaintiff is precluded from referencing any testimony, argument, or evidence related to the
Gerhardt case for the purposes of establishing notice or knowledge on the part of the Defendant.
Similarly, Plaintiff is precluded from referencing any testimony, argument, or evidence related to
the Gerhardt case for the purposes of establishing causation or existence of a dangerous
condition. Finally, the Court defers decision on Defendants’ motion to the extent that Plaintiff
seeks to introduce testimony, argument, or evidence relating to the Gerhadt case to impeach Mr.
Aiken on cross-examination.
9

III.

Defendants’ Motion In Limine Regarding Cattron-Theimeg Documents
Defendants seek to preclude from evidence two exhibits from Plaintiff’s Exhibit List

submitted with the December 28, 2010 Joint Pretrial Statement. These exhibits, documents
which are titled “Cattron-Theimeg Familiarization and Operating Instructions” and “CattronTheimeg Paddle Controller Operation and Maintenance Instructions,” were obtained by
Plaintiff’s counsel from a response to interrogatories in the Gerhardt litigation, discussed in Part
II, above.
Defendants allege that these documents should be excluded under FED. R. EVID. 402,
because they are irrelevant to any issues involved in this lawsuit. The documents at issue in
Defendants’ motion relate to operating instructions for the Cattron remote at issue in the
Gerhardt case. As previously stated, the remote at issue in this case was manufactured by
Vectran, and remote in the Gerhardt case was manufactured by Cattron a number of years after
the Vectran remote was manufactured.
At the hearing on this motion, Plaintiff’s counsel stated that he would rely on his
previous brief in response to Defendants’ motion. Plaintiff previously contended that these
exhibits are relevant to this case because they pertain to the “operation and function of Vectran
remotes.” Plaintiff, however, has failed to establish that the Vectran remote in this case and the
Cattron remote in the Garhardt case are the same or substantially similar so as to utilize the
same operation and maintenance instructions. For the same reasons discussed in Part II, above,
Plaintiff has not presented the Court with sufficient evidence to establish the relevancy of these
documents.
Accordingly, the Court grants Defendants’ motion in limine to exclude these exhibits

10

pursuant to FED. R. EVID. 402.
IV.

Defendants’ Motion In Limine Regarding the Testimony of Plaintiff’s Purported
Expert, Kenneth Blundell
Defendants also request this Court to strike the testimony of Plaintiff’s expert, Dr.

Kenneth Blundell, and preclude Dr. Blundell from testifying at trial. This issue was addressed in
Defendants’ motion for judgment as a matter of law, filed pursuant to Fed. R. Civ. P 50(b) on
July 29, 2011 (Doc. No. 74), and Defendants rely on the arguments therein. The Court denied
Defendants’ Rule 50(b) motion on August 31, 2011. (Doc. No. 95).
Defendants assert that Dr. Blundell should be precluding from testifying because Dr.
Blundell has never examined a Vectran remote control like the one utilized by Plaintiff during
her accident. Defendants also assert that Plaintiff’s expert has never presented an alternative
design, and therefore Dr. Blundell is not qualified to give any opinion in this case..
For the same reasons stated in the Court’s August 31, 2011 Opinion & Order Denying
Defendants’ Motion for Judgment as a Matter of Law, the Court denies Defendants’ Motion in
Limine Regarding Testimony of Plaintiff’s Expert, Kenneth Blundell.
CONCLUSION
For the reasons stated above, IT IS ORDERED THAT Plaintiff’s motion in limine
regarding any question, comment, or argument regarding “secondary gain,” “symptom
magnification,” and “malingering is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s motion in limine regarding any comments or
statements of other injuries is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s motion in limine regarding any reference to
collateral sources is GRANTED IN PART and DENIED IN PART.
11

IT IS FURTHER ORDERED that Plaintiff’s motion in limine regarding any question or
comment about Plaintiff’s positive test for opiates at the hospital is GRANTED.
IT IS FURTHER ORDERED that Defendants’ motion in limine regarding testimony,
argument and evidence of Michael Gerhardt v. Cattron-Theimeg is GRANTED IN PART. The
Court shall DEFER DECISION as to Plaintiff’s use of testimony and evidence related to
Michael Gerhardt v. Cattron-Theimeg for the purposes of impeachment.
IT IS FURTHER ORDERED that Defendants’ motion in limine regarding CattronTheimeg documents is GRANTED.
IT IS FURTHER ORDERED that Defendants’ motion in limine regarding the testimony
of Plaintiff’s expert, Kenneth Blundell is DENIED.
IT IS SO ORDERED.
S/Sean F. Cox
SEAN F. COX
UNITED STATES DISTRICT JUDGE
Dated: September 6, 2011
I hereby certify that a copy of the foregoing document was served upon counsel of record on
September 6, 2011, by electronic and/or ordinary mail.
S/Jennifer Hernandez
Case Manager

12