Knudson v. M/V American Spirit et al

Filing 181

ORDER granting in part and denying in part 144 Motion in Limine; denying 145 Motion in Limine; denying 146 Motion in Limine; granting 148 Motion in Limine; granting 149 Motion in Limine; granting 150 Motion in Limine; denying 151 Motion in Limine; denying 152 Motion in Limine; denying 153 Motion in Limine; denying 154 Motion in Limine; denying 155 Motion in Limine; see order for rulings on 157 Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JEFFREY TODD KNUDSON,
Plaintiff,
Case No. 14-14854
vs.
HON. GEORGE CARAM STEEH
M/V AMERICAN SPIRIT, et al.,
Defendants.
____________________________/
ORDER REGARDING MOTIONS IN LIMINE
[ECF NOS. 144, 145, 146, 148, 149, 150, 151, 152,
153, 154, 155, 157-2, 157-3, 157-4, 157-7, 157-8, 157-9, 157-10]
This matter has come before the court on various motions in limine
filed by both parties. The court heard oral argument by the parties on
some of the motions on March 18, 2019 and does not believe that oral
argument will aid its determination as to the other motions.
Defendants move to exclude the opinion testimony of Robert Ancell
[ECF NO. 144] as going beyond his area of expertise and as being
duplicative of other witnesses. The court holds that Ancell will be
permitted to testify about the relevant job market and may give his opinion
about what jobs are available for plaintiff in light of the clearly established
limitations identified by the doctors who have examined plaintiff. Ancell
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will not be permitted to interpret the medical reports, as that is beyond his
expertise. The motion in limine is GRANTED in part AND DENIED in part.
Defendants move to exclude the opinion testimony of Lani Granum
[ECF NO. 145] as diagnosing plaintiff’s conditions. As a licensed clinical
social worker, plaintiff may elicit Ms. Granum’s testimony regarding her
“evaluation, treatment and prevention of mental and emotional disorders.”
The motion in limine is DENIED, subject to appropriate objections at trial.
Defendants move to exclude Dr. Michael Thomson’s testimony
regarding plaintiff’s alleged future economic losses [ECF NO. 146].
Defendants’ arguments, that Thomson’s assumptions are speculative, and
that he lacks credibility, can be demonstrated to the jury on
cross-examination. Defendants’ motion in limine is DENIED.
Defendants move to exclude reference to prior, unrelated and
allegedly negligent acts of Jon Olney [ECF NO. 148]. This motion is not
opposed by plaintiff. The court GRANTS defendants’ motion.
Defendants move to exclude testimony of Dalton Bertrand and to
exclude evidence of other incidents involving the landing chair [ECF NO.
149]. The prior incident involving Mr. Cook occurred over 20 years ago
and was not substantially similar to the circumstances of plaintiff’s accident.
The subsequent incident involving Mr. Bertrand occurred four months after
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plaintiff’s accident and is not relevant to demonstrate that plaintiff’s
accident was foreseeable. The court GRANTS defendants’ motion.
Defendants move to exclude evidence of subsequent remedial
measures [ECF NO. 150] Evidence of subsequent remedial measures is
not admissible to prove negligence, culpable conduct, a defect in a product
or design, or a need for a warning or instruction. FRE 407. Such
evidence may be admitted for impeachment, which is what plaintiff seeks
regarding Mr. Anderson’s testimony that the lowering chair was safe and
did not require a fall protection device. However, Mr. Anderson’s
testimony was directed to the time period of plaintiff’s accident, not
anything that occurred after. The public policy of encouraging remedial
safety practices to be implemented to improve safety favors excluding the
evidence in this case. Finally, plaintiff argues that defendants had a
pre-existing safety rule in place for unprotected free-fall risks over six feet,
and the subsequent safety measures adopted brought defendants into
compliance with their own rule. However, there is no evidence to support
plaintiff’s theory that the pre-existing safety rule applies to the lowering
chair. In fact, Anderson testified that rule applies where there is a risk of a
free-fall into an uncovered hole. (Anderson dep., p. 56). Defendants’
motion is GRANTED.
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Defendants move to exclude evidence of the reasonable costs of
living in South Bend, Indiana [ECF NO. 151] and limit evidence of an
appropriate maintenance rate to plaintiff’s actual expenses for food and
lodging. A shipowner is not relieved of its duty to pay maintenance where
it has forced an injured seaman into poverty and dependence on the
charity of others. See McWilliams v. Texaco, Inc., 781 F.2d 514, 518 (5th
Cir. 1986). The court finds that evidence of the reasonable cost of food
and lodging in South Bend, Indiana, where plaintiff was convalescing, is
relevant to the determination of a reasonable maintenance amount. While
plaintiff cannot collect more than the $45 per day defendants are paying in
maintenance, he can argue to the jury that defendants were callous in
failing to pay him a reasonable maintenance for approximately two years
following his accident for purposes of seeking punitive damages.
Defendant’s motion is DENIED.
Defendants move to exclude evidence of the subsistence rate of
$77.25 per day for food and lodging in the Terms and Conditions [ECF NO.
152]. This motion is related to the previous one, and the court finds that
the contractual subsistence rate for uninjured seamen is relevant to the
issue of determining a reasonable living allowance for an injured seaman.
Defendants’ motion is DENIED.
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Defendants move to exclude evidence of the Claims Arbitration
Agreement offered to plaintiff [ECF NO. 153]. Offers to compromise are
inadmissible to prove liability or damages pursuant to FRE 408. The
Claims Arbitration Agreement itself is not an offer to compromise or a
settlement of plaintiff’s claims. Defendants’ motion is DENIED.
Defendants move to exclude testimony regarding privileged
communications [ECF NO. 154]. Plaintiff states that he will not seek to
introduce the content of any communication between defendants and
counsel, but the fact, date and subject of such communications are not
protected by the attorney-client privilege or work-product doctrine. The
court holds that such evidence relating to communications with attorneys is
admissible, limited to assessing the willfulness, if any, of defendants. As
such, defendant’s motion is DENIED. Given plaintiff’s statement that he
does not intend to elicit testimony or offer evidence as to defendants’
communications with their P&I Club, the motion is GRANTED without
prejudice. If plaintiff’s intention in this regard changes, he must obtain
prior permission from the court before asking any questions about
defendants’ communications with their P&I Club.
Defendants move to exclude testimony of certain members of
plaintiff’s family and friends [ECF NO. 155] as cumulative. Each witness
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has a unique relationship with plaintiff and can offer different perspectives
regarding the impact of the accident. The court DENIES defendants’
motion.
Plaintiff moves to exclude evidence of any altercation between
himself and Jerry Gilligan [ECF NO. 175-2]. The court finds that evidence
of the altercation is relevant to plaintiff’s credibility as a witness as well as
to whether he would have been promoted or hired by another vessel but for
his injury. Plaintiff’s motion is DENIED.
Plaintiff moves to exclude evidence that defendants were
contractually obligated to or could only pay plaintiff $8 per day in
maintenance due to restrictions relating to labor laws [ECF NO. 175-3].
The court finds that defendants’ witnesses are not precluded from testifying
why they paid plaintiff $8 a day in maintenance. Plaintiff’s motion is
DENIED.
Plaintiff moves to exclude evidence that plaintiff was having an
intimate relationship with a married woman [ECF NO. 175-4]. The court
finds the evidence of the relationship is relevant to plaintiff’s emotional
damages, but the fact that the woman was married is not relevant.
Therefore, no reference may be made to the marital status of the woman at
issue. The motion is GRANTED in part and DENIED in part.
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Plaintiff moves to exclude evidence of plaintiff’s arrest for suspicion of
driving under the influence of alcohol in the early 1990’s [ECF NO. 175-7].
Any limited probative value is outweighed by its prejudicial effect.
Plaintiff’s motion is GRANTED.
Plaintiff moves to exclude evidence that he was an alcoholic or has a
history of abusing alcohol prior to his accident [ECF NO. 175-8]. The court
finds that any evidence of alcohol abuse before or after the accident is
relevant and admissible. Plaintiff’s motion is DENIED.
Plaintiff moves to exclude evidence requested but not produced by
defendants in discovery [ECF NO. 157-9]. Plaintiff does not identify any
witnesses or documents he seeks to exclude. The court DENIES
plaintiff’s motion without prejudice.
Plaintiff moves to exclude testimony or evidence produced by any
M/V American Integrity crew member for which defendants did not provide
contact information to plaintiff [ECF NO. 157-10]. In response, defendants
identify the crew members they may call as witnesses. Plaintiff has
deposed each of these crew members. The court DENIES plaintiff’s
motion without prejudice.

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The above rulings are subject to appropriate objections at trial.
IT IS SO ORDERED.
Dated: March 20, 2019
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
March 20, 2019, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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