Thomas v. Barnett et al

Filing 223

ORDER granting in part in part Defendant's 200 Motion in Limine regarding Plaintiff's experts' reports; denying Defendant's 201 Motion in Limine regarding references to the subject machine as a "tractor;" denying a s moot Defendant's 202 Motion in Limine as to certain standards and regulations; and denying as moot Defendant's 206 Motion in Limine as to dissimilar machinery and/or machinery manufactured after the subject machine. Signed by District Judge Keith Starrett on November 14, 2016 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
RICKY BARNETT

PLAINTIFF

V.

CIVIL ACTION NO. 2:15-CV-2-KS-MTP

DEERE & COMPANY

DEFENDANT

MEMORANDUM OPINION AND ORDER
The Court previously discussed the background of this case,1 and it already
addressed numerous motions.2 For the reasons below, the Court:
•

grants in part Defendant’s Motion in Limine [200] regarding
Plaintiff’s experts’ reports;

•

denies Defendant’s Motion in Limine [201] regarding references
to the subject machine as a “tractor;”

•

denies as moot Defendant’s Motion in Limine [202] as to certain
standards and regulations; and

1

See Thomas v. Barnett, No. 2:15-CV-2-KS-MTP, 2015 U.S. Dist. LEXIS
181554, at *2-*5 (S.D. Miss. May 15, 2015).
2

See, e.g. Barnett v. Deere & Co., No. 2:15-CV-2-KS-MTP, 2016 U.S. Dist.
LEXIS 154774 (S.D. Miss. Nov. 8, 2016) (granting in part and denying in part
Defendant’s motion to exclude the testimony of Thomas Berry); Barnett v. Deere &
Co., No. 2:15-CV-2-KS-MTP, 2016 U.S. Dist. LEXIS 154099 (S.D. Miss. Nov. 7,
2016) (granting Defendant’s motion to exclude the testimony of Edward Karnes);
Barnett v. Deere & Co., No. 2:15-CV-2-KS-MTP, 2016 U.S. Dist. LEXIS 128002 (S.D.
Miss. Sept. 20, 2016) (granting in part and denying in part Defendant’s motion to
exclude the testimony of Nathaniel Fentress); Barnett v. Deere & Co., No. 2:15-CV2-KS-MTP, 2016 U.S. Dist. LEXIS 128003 (S.D. Miss. Sept. 20, 2013) (granting in
part and denying in part Defendant’s motion to exclude certain testimony by Molly
Struble); Barnett v. Deere & Co., No. 2:15-CV-2-KS-MTP, 2016 U.S. Dist. LEXIS
123114 (S.D. Miss. Sept. 11, 2016) (denying Defendant’s motion to exclude the
testimony of Dr. Philip Blount); Barnett v. Deere & Co., No. 2:15-CV-2-KS-MTP,
2016 U.S. Dist. LEXIS 117312 (S.D. Miss. Aug. 31, 2016) (denying Plaintiff’s motion
for sanctions for alleged spoliation of evidence).

•

A.

denies as moot Defendant’s Motion in Limine [206] as to
dissimilar machinery and/or machinery manufactured after the
subject machine.

Expert Reports [200]
Defendant argues that the Court should prohibit the introduction of Plaintiff’s

experts’ reports into evidence at trial. In response, Plaintiff represents that he does not
intend to offer his experts’ reports, except for certain charts related to his life care plan
and the various elements thereof. The Court grants this motion in part. Specifically,
it is granted as unopposed, except with respect to Molly Struble’s life care plan chart
and the chart prepared by Stan Smith, Plaintiff’s economist. If Defendant has any
objections to those particular exhibits, the Court will address them at trial.
B.

References to Mower as a “Tractor” [201]
Defendant argues that Plaintiff, his witnesses, and his counsel should be

prohibited from referring to the subject lawn mower as a “tractor.” Deere contends that
the machine which is the subject of this case is a “zero turn mower” or a “residential
riding lawn mower,” rather than a “tractor.” In response, Plaintiff observes that the
machine’s own operator’s manual refers to it as a “lawn tractor.”
The Court believes that members of the jury pool will, in their own experience,
know the difference between a large, agricultural tractor and a lawn mower. There is
little to no danger that this issue will confuse the jury or prejudice Defendant’s case.
Even if there were such a danger, Defendant will have the opportunity to address the
issue when it presents its own evidence and cross-examines Plaintiff’s witnesses. This
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motion is denied.
C.

References to Inapplicable Standards [202]
Defendant argues that the Court should exclude evidence related to certain

regulations and standards on the basis that they are inapplicable to the machine which
is the subject of this case. Plaintiff apparently intends to present evidence of other
standards for the purpose of demonstrating that a machine without a roll over
protection system (“ROPS”) is defective and unreasonably dangerous, and that a ROPS
can be incorporated in a mower’s design without impairing its utility, usefulness,
practicality, or desirability.
It appears that this issue is moot insofar as it pertains to Plaintiff’s design defect
claim, and the Court granted Defendant’s Motion for Summary Judgment [136] as to
that claim. Accordingly, the motion is denied as moot. If the parties wish to address
the issue further at trial, in the event that Plaintiff seeks to present evidence
implicated by this motion, they may do so.
D.

Dissimilar Machinery/Machinery Manufactured Later [206]
Defendant argues that the Court should exclude Plaintiff from referring to or

presenting any evidence of 1) machinery dissimilar to the subject lawn mower, and 2)
machinery manufactured after the date on which the subject mower was
manufactured. Defendant believes that Plaintiff intends to use such evidence to
demonstrate that ROPS were offered as standard or optional equipment on machines
dissimilar to the one which is the subject of this case, and on similar machines
manufactured later than the one in this case.
3

In response, Plaintiff argues that evidence of machines manufactured later is
admissible to show the feasibility, practicality and/or safety of alternative designs, i.e.
machines with ROPS. Plaintiff also argues that evidence of purportedly dissimilar
machines is admissible for the same purposes.
It appears that this issue is moot insofar as it pertains to Plaintiff’s design defect
claim, and the Court granted Defendant’s Motion for Summary Judgment [136] as to
that claim. Accordingly, the motion is denied as moot. If the parties wish to address
the issue further at trial, in the event that Plaintiff seeks to present evidence
implicated by this motion, they may do so.
SO ORDERED AND ADJUDGED this 14th day of November, 2016.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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